This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1718

 

State of Minnesota,
Respondent,

vs.

James Howard Derosier,
Appellant.

 

Filed June 7, 2005

Affirmed in part, reversed in part, and remanded

Minge, Judge

 

Aitkin County District Court

File No. K7-01-76

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Thomas Murtha, Aitkin County Attorney, 209 N.W. Second Street, Aitkin, MN 56431 (for respondent)

 

Stephen V. Grigsby, Robert D. Miller, 2915 Wayzata Boulevard South, Suite 101 Minneapolis, MN 55405 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Crippen, Judge.*

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges his conviction and sentence for first-degree criminal sexual conduct.  He argues that he was denied the right to a unanimous verdict.  Appellant also asserts that the jury-determination requirement of Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to this case and that he should have been given the presumptive sentence for first-degree criminal sexual conduct committed before August 1, 2000.  Because we conclude that appellant was not denied his right to a unanimous verdict, we affirm appellant’s conviction.  But because we conclude that appellant’s sentence violates Blakely, we reverse and remand for resentencing.

FACTS

 

Appellant James Derosier was charged with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(b), 2(a) (2000), for having a sexual relationship with a 15-year-old female when he was 49 years old.  The victim had been an employee of appellant during the summer of 2000, when the offense took place. 

            At trial, the victim testified that she and appellant had engaged in sexual intercourse more than 11 times during June, July, and August of 2000.  She could not provide exact dates, times, or places where the acts occurred.  The state also introduced DNA evidence that the victim conceived a child with appellant.  A medical doctor testified that conception occurred during the month of June.  

            The district court instructed the jurors that to convict appellant of first-degree criminal sexual conduct, one element they must find was “that [appellant’s] act took place on or about June, July, or August 2000 in Aitkin County[.]”  The jury returned a guilty verdict. 

            At the sentencing hearing, the state moved the district court to impose an upward durational departure and sentence appellant to 288 months in prison.  Appellant moved the district court to impose a downward durational departure.  The district court determined that no substantial or compelling reason existed to depart from the mandatory minimum sentence and sentenced appellant to 144 months in prison under Minn. Stat. § 609.342, subd. 2(b) (2000), which applies to all offenses occurring on or after August 1, 2000.

            Appellant filed an appeal with the court of appeals in November 2003.   In March 2004, appellant filed a motion to stay the direct appeal so that he could file a petition for postconviction relief with the district court.  The court of appeals granted appellant’s motion to stay the appeal and ordered appellant to file letters with the court each month explaining the status of the case.  

            Appellant then filed a petition for postconviction relief with the district court.  Appellant sought to reduce his sentence from 144 months to 86 months.  The presumptive sentence for first-degree criminal sexual conduct under the Minnesota Sentencing Guidelines was 86 months for crimes committed before August 1, 2000.  Minn. Stat. § 609.342 (1998); Minn. Sent. Guidelines IV (1997) (showing the presumptive guideline sentence for a defendant with a criminal history score of zero who is convicted of first-degree criminal sexual conduct is 86 months).  For offenses committed after August 1, 2000, the presumptive guideline sentence was increased to 144 months because of the amended statutory minimum sentence.  Minn. Stat. § 609.342 (2000); 2000 Minn. Laws ch. 311, art. 5, § 10.  Appellant argued that if the district court upheld his conviction, the district court should reduce his sentence to 86 months because it is impossible to determine whether the jury believed the offense occurred before or after August 1, 2000.

            The district court denied appellant’s petition for postconviction relief.  The district court noted that before the trial, appellant was aware of the change in the statute but failed to object to the jury instructions.  The district court determined that appellant’s sentence would be appropriate only if “there is no reasonable likelihood that all of [appellant’s] acts” occurred before August 1, 2000.  Because the victim testified that she engaged in sexual intercourse with appellant in August 2000, the district court concluded that appellant’s sentence was proper.  This appeal follows.

D E C I S I O N

 

I.

            The first issue is whether appellant was denied his right to a unanimous verdict because the district court instructed the jury that it only had to find that appellant committed the crime in June, July, or August 2000.  Appellant argues that this instruction permitted the jury to convict him without unanimous agreement on when appellant committed the crime.

            We afford the district court wide discretion regarding jury instructions and will reverse only if the district court clearly abuses its discretion.  State v. Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001).  A party who fails to object to jury instructions at trial generally forfeits the right to appeal on the grounds that the jury instructions were erroneous.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  We may consider such a claim only if the district court’s alleged error constitutes plain error.  State v. Baird, 654 N.W.2d 105, 109 (Minn. 2002); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

Because appellant failed to object to the jury instructions at trial, we must determine whether the district court committed plain error.  It is fundamental that a jury must be unanimous on the question of whether a defendant committed the act that constitutes an element of the crime charged.  Stempf, 627 N.W.2d at 355.  But “[u]nanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.”  State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988) (citation omitted).  Generally, in cases charging criminal sexual conduct based on multiple acts over an extended period of time, specific dates need not be charged or proved.  See State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984) (holding that a defendant can be convicted of sexual abuse if the prosecution proves abuse occurred within a reasonable period of time; specific dates of abuse need not be proven);State v. Poole, 489 N.W.2d 537, 543 (Minn. App. 1992), (providing “specific dates need not be charged or proven in a sexual abuse case”) aff’d, 499 N.W.2d 31 (Minn. 1993). 

In Stempf, the state charged the defendant with one count of possession of methamphetamine.  627 N.W.2d at 357.  At trial, the state introduced evidence that appellant had possessed methamphetamine on two specific, separate occasions.  Id. at 354.  The defendant presented different defenses for each alleged act of possession.  Id. at 358.  In its closing argument, the state told the jury it could find the defendant guilty if some of the jurors believed the defendant had possessed methamphetamine on the first occasion but other jurors believed he had possessed methamphetamine on the second occasion.  Id.  The district court refused to instruct the jury to evaluate the two acts individually and to agree unanimously that the state had proven one of the acts beyond a reasonable doubt.  Id. at 354.  On appeal, we reversed, stating that “[b]ecause the state did not elect which act of possession it was relying on for conviction, we find the trial court’s refusal to give a specific unanimity instruction violated appellant’s right to a unanimous verdict.”  Id. at 358.

Here, the appellant was charged with a single count of sexual misconduct based on a series of sexual encounters with the victim over a period of several months.  The victim testified that there were at least 11 times when sexual penetration occurred during the period of June through August 2000.  Specific dates were not identified, rather the charge and the testimony concerned ongoing sexual contact.  Indeed, given the victim’s resulting pregnancy and proof of the appellant’s paternity, the larger issue at trial was whether appellant held a position of authority that affected his culpability.[1] In Stempf, although only one offense was charged, the defendant’s conduct occurred on two different, known dates and in two different, known locations.  The Stempf offenses were not alleged to be a single course of conduct.  Additionally, while the defendant in Stempf provided different defenses to each offense, here appellant used the same defense for each act.  We determine that here there is a commonality that was lacking in Stempf, and the jurors unanimously agreed that the offense occurred during the defined time period.[2]  Therefore, we determine the district court did not err in its instructions.

            Even if the district court’s instructions were error, we conclude that the instructions did not violate appellant’s substantial rights.  The requirement that plain error affect substantial rights is fulfilled if “the error was prejudicial and affected the outcome of the case.”  Griller, 583 N.W.2d at 741.  At trial, the state provided DNA evidence that appellant fathered the victim’s child.  Appellant did not dispute the evidence.  We conclude the jury’s verdict was not affected by the jury instruction which appellant now challenges.

 

 

II.

            The second issue is whether the district court erred in applying the mandatory minimum sentence that took effect on August 1, 2000, to sentence appellant.  This issue raises the question of whether there was any act of sexual penetration after August 1, 2000, and whether the state or the appellant had the obligation to request a jury determination of the date of the offense.[3]  Minnesota courts have held that when a crime requiring only a single offense occurs on an unspecified date within a specified time period, a defendant has a right to have a jury decide the date of the offense.  State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992); State v. Goldenstein, 505 N.W.2d 332, 347-48 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  The jury must resolve any reasonable doubt in favor of the defendant.  Robinson, 480 N.W.2d at 646.

            The supreme court has previously held that a defendant’s right to a jury determination of the date or dates of the offense must be exercised by requesting an appropriate jury charge.  State v. Murray, 495 N.W.2d 412, 412-13 (Minn. 1993).  This court has held that a defendant could waive this right by failing to request a special interrogatory.  State v. Lunsford, 507 N.W.2d 239, 244 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).  Because appellant failed to request a special interrogatory, he has waived the issue under Murray.

But appellant contends that he has a constitutional right to a jury determination on this issue and that, under the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), that right cannot be easily waived.  We review constitutional challenges under Blakely using the de novo standard.  See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998) (stating that constitutional challenges are reviewed de novo), review denied (Minn. Feb. 24, 1999).

In Blakely, the United States Supreme Court considered whether a district court could impose an upward durational departure on a defendant’s sentence based on additional aggravating factors found by the judge, not the jury. 124 S. Ct. at 2535-36.  The Supreme Court stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Id. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000)). 

The Minnesota Supreme Court has held that Blakely applies to cases in which a defendant’s sentence is an upward durational departure from the presumptive sentence.  State v. Shattuck, 689 N.W.2d 785 (Minn. 2004) (per curiam) (ordering additional briefing on appropriate remedy).  When a statute sets forth a mandatory minimum sentence for a crime, the presumptive sentence under the Minnesota Sentencing Guidelines is the longer of the mandatory minimum statutory sentence or the sentence provided in the Guidelines Grid.  Minn. Sent. Guidelines II.E.  We have stated that under Blakely, a defendant must make an explicit waiver of the right to have a jury consider factors used to enhance a defendant’s sentence.  State v. Whitley, 682 N.W.2d 691, 696 (Minn. App. 2004).  The waiver of the right to have such a jury determination must be knowing, intelligent, and voluntary.  Id.

Here, appellant’s sentence was based on the district court judge’s implicit finding that an act of penetration occurred in August 2000 so that appellant could be sentenced under Minn. Stat. § 609.342 (2000).  There was evidence in the record that supports the finding.  Without such a finding, the maximum sentence the district court could have imposed was 86 months.  See Minn. Stat. § 609.342 (1998).  The district court judge’s finding was used to increase appellant’s sentence by 58 months, or almost five years.  We conclude that to increase appellant’s sentence from 86 to 144 months, Blakely requires a jury determination that the offense occurred in August or that appellant knowingly, intelligently, and voluntarily waived his right to such a jury determination.  Appellant did not make a knowing, intelligent, and voluntary waiver of the right to such a jury determination.  Therefore, we reverse appellant’s sentence and remand for resentencing in light of Blakely.

            In these circumstances, placing the burden on the defendant to request a special interrogatory asking the jury to determine the date of the offense conflicts with the holding of Blakely.  Under Blakely, a defendant has the right to a jury determination of any facts that extend the duration of the sentence, and the burden is on the state, not the defendant, to prove these facts.

            In sum, because appellant’s jury verdict was unanimous, we affirm appellant’s conviction.  But because appellant did not make a knowing, intelligent, and voluntary waiver of his right to have a jury determine whether the offense occurred after August 1, 2000, we conclude that appellant’s sentence violates Blakely.  We reverse and remand for resentencing consistent with Blakely.

            Affirmed in part, reversed in part, and remanded.