This opinion will be unpublished and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

A04-1303

 

 

State of Minnesota,
Respondent,

vs.

Daniel Edwin Jones,
Appellant.

 

Filed August 22, 2005

Affirmed in part, reversed and remanded in part.

Peterson, Judge

 

Dakota County District Court

File No. K4031566

 

 

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

 

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN  55033 (for respondent)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

A jury found appellant Daniel Edwin Jones guilty of third-degree criminal sexual conduct, third-degree controlled-substance crime, child neglect, and child endangerment.  The district court sentenced Jones on the criminal-sexual-conduct and controlled-substance convictions, imposing an upward durational departure on the criminal-sexual-conduct sentence.  In this direct appeal challenging the sentencing departure and the criminal-sexual-conduct, child-neglect, and child-endangerment convictions, Jones argues that (1) the evidence was insufficient to prove an element of third-degree criminal sexual conduct, specifically, that the victim was physically helpless when he had sex with her and that he should have known that she was physically helpless; (2) the evidence was insufficient to support the child-neglect and child-endangerment convictions; and (3) the upward durational departure, based on Jones’s failure to seek medical help for the victim, violated his right to a jury trial under Blakely.  We affirm the convictions and reverse the upward durational departure and remand for resentencing.

FACTS

            While on duty on the night of November 6 and early morning of November 7, 2000, Burnsville Police Officer Daniel Long was dispatched to Fairview Ridges Hospital.  When Long arrived at the hospital, he saw medical personnel working on a person, later identified as the victim, B.P.  He also saw two males, one of whom was Michael Hunt.  Hunt appeared to Long to be under the influence of a narcotic.  The victim died at the hospital.

            At about 1:30 a.m. on November 7, Detective Clark Holden spoke to Hunt in the hospital emergency room.  Hunt asked about B.P.’s condition and, upon learning that she had died, told Holden the following:  They had been at a trailer near a ski area in Burnsville.  One of Hunt’s relatives was staying at the trailer.[1]  Hunt and B.P. had used methamphetamine that night.  B.P. had gotten methamphetamine from Hunt’s relative.  Both Hunt and B.P. ingested the methamphetamine by wrapping it in a tissue or piece of toilet paper and swallowing it.  Hunt declined to give his relative’s name to Holden.  The conversation ended at about 2:00 a.m. when Hunt was taken away for treatment.

            At about 3:00 a.m., a nurse told Holden that Hunt wanted to talk to him again.  After Hunt told Holden that his relative was staying at the trailer and that he would give Holden the relative’s name, Hunt wrote the name “Daniel Jones” on a piece of paper and gave Holden directions to the trailer.

Hunt then told Holden the following:  Hunt and B.P. had been at the trailer on November 6, and B.P. had taken a rather large quantity of methamphetamine that had been provided by Jones.  After taking the methamphetamine, B.P., Hunt, and Jones went to a house in south Minneapolis.  Hunt described B.P.’s condition at the Minneapolis house “as being out of it.”  Hunt’s description made it clear to Holden that B.P. was “heavily under the influence.”  Jones took B.P. back to the trailer, indicating to Hunt that he would care for her.  Hunt and Jamein Raspberry remained at the Minneapolis house for a period of time after Jones and B.P. left.  Hunt and Raspberry eventually left the Minneapolis house and went to the Burnsville trailer.  At the trailer, they pounded on the doors and windows for some time before Jones let them in.  Jones told them that B.P. had apparently overdosed.  Hunt suggested calling 911, but Jones said not to call.  Hunt indicated that they tried to revive B.P. by performing CPR and also by putting her in a cold bath.  Eventually, B.P. was taken to the hospital in Raspberry’s car.

Jones was charged with one count each of third-degree murder; third-degree criminal sexual conduct; third-degree controlled-substance crime; child neglect; and child endangerment.  The charges were tried to a jury.

Hunt was 15 years old on November 6, 2000.  He testified at trial as follows:  In the afternoon on November 6, he and B.P., who was his brother’s girlfriend, went to the trailer where Jones was staying.  Raspberry was also there.  At the trailer, Hunt drank quite a bit of alcohol, possibly more than half of a case of beer.  Hunt, B.P., Jones, and Raspberry went into the smaller bedroom in the trailer, and Hunt swallowed methamphetamine that was wrapped up in toilet paper.  The four decided to go to Minneapolis to watch a football game.  Hunt did not see B.P. take methamphetamine, but, during the ride to Minneapolis, she told him that she had taken methamphetamine at the trailer.  Raspberry and Jones also took methamphetamine at the trailer.  Hunt did not know if B.P. had gotten the methamphetamine from Jones.  On the way to Minneapolis, B.P. was sweating a little, but she was able to talk.  At the Minneapolis home, B.P. was sweating, and her body was shaking.  When Jones left with B.P. to go back to the trailer, B.P. was in bad shape.  Hunt was with Jones “continuously from the time [he] got to that trailer until the time [Jones] left the Minneapolis home to go back to the trailer,” and he did not see or know of B.P. having sex with Jones.  When Hunt and Raspberry later returned to the trailer, they pounded on the door for several minutes before Jones let them in.  Jones said that B.P. was not breathing or moving.  B.P. was on a bed in a bedroom and was wearing only a bra and underpants.  Jones and Hunt tried to give B.P. CPR and then put her in a bathtub with ice, but she did not wake up.  Hunt wanted to call 911, but Jones said not to, so Hunt and Raspberry brought B.P. to the hospital in Raspberry’s car.

Michael Block, a limousine driver, testified that at about 6:30 p.m. on November 6, he picked up Jones, Hunt, a young lady, and a young man at the trailer and brought them to south Minneapolis.  At about 8:30 p.m., Block returned to south Minneapolis to pick up Jones and the young lady, B.P.  Block described B.P. as being wobbly, with two males assisting her, as she walked to the limo.  Block testified that during the ride, B.P. was “getting agitated” and “stressing out a little bit.”  Block could tell that she was not feeling well.  B.P.’s shoes were in the limo, but she was unable to put them on.  When they got to the trailer, Block carried B.P. inside and laid her on a couch.  Block noticed that B.P. was soaking wet and told Jones to get some ice and put it on her.  When Block asked B.P. how she was doing, he did not get a specific answer, just murmurings, nothing coherent.

A search warrant was executed on the trailer.  On top of a coffee table in the living room were unopened containers of Chinese food, a magazine, and a used condom.  An empty condom box was next to an ottoman in the center of the living room.  An empty condom wrapper was in the southeast corner of the small bedroom.  The small bedroom had papers with Jones’s name on them.  In the bathroom were B.P.’s blue jeans and a strip of unopened condom wrappers that were the same brand as the wrapper found in the bedroom.

Hunt testified that, when they were watching television at the trailer before going to Minneapolis, the coffee table was right in front of them, and he did not remember seeing a used condom on the coffee table.  He thought that, if one had been there, he would have remembered seeing it.  Raspberry did not see a condom on the coffee table while he was at the trailer.

Dr. Lindsey Thomas, a forensic pathologist, performed B.P.’s autopsy.  B.P. was 16 years old when she died.  A toxicology screen showed a very high level of methamphetamine, 7.35 milligrams per liter, and a small amount of amphetamine, .26 milligrams per liter.  Thomas determined that methamphetamine caused B.P.’s death.  Thomas testified that when death results from methamphetamine, a typical concentration is in the four to five milligrams-per-liter range.

Thomas testified that when methamphetamine is eaten as opposed to injected, she would expect symptoms to increase as more methamphetamine is absorbed.  Glenn Hardin, a forensic psychologist, testified that peak levels from taking methamphetamine occur about three to four hours after taking it.

Amy Tierney, a forensic scientist, testified that semen matching Jones’s DNA profile was present on the bra B.P. was wearing when she arrived at the hospital, on the vaginal swab from the sexual-assault kit used during B.P.’s autopsy, and on the comforter seized from the bedroom in the trailer.  A condom seized from the living room also contained semen, but it was not analyzed for DNA.

Jones testified on his own behalf.  He denied providing methamphetamine to B.P., Hunt, or Raspberry.  He admitted having sexual intercourse with B.P. on November 6, but he claimed that it occurred around 1:30 or 2:00 p.m., before they went to Minneapolis.  He testified that he did not use a condom when he had sex with B.P. and was not sure if the condom on the coffee table was his.  He thought that the condom was probably on the coffee table before they left for Minneapolis.

The jury found Jones not guilty of third-degree murder and guilty of the remaining charges.  The district court sentenced Jones to an executed term of 102 months on the criminal-sexual-conduct conviction, an upward durational departure from the presumptive term of 78 months, and to an executed term of 27 months on the controlled-substance conviction, with the sentences to run concurrently.  The district court did not impose sentences for the child-neglect and child-endangerment convictions.

D E C I S I O N

I.

            Jones argues that the evidence is insufficient to support his third-degree criminal-sexual-conduct conviction.

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  For a defendant to be convicted based on circumstantial evidence alone, however, the circumstances proved must be “consistent with the hypothesis that the [defendant] is guilty and inconsistent with any rational hypothesis [other than] guilt.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Even with this strict standard, the fact-finder is in the best position to weigh the credibility of evidence and thus determines which witnesses to believe and how much weight to give to their testimony.  State v. Daniels, 361 N.W.2d 819, 826-27 (Minn. 1985).  But “[i]nconsistencies in the state’s case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.”  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

            To support a conviction of third-degree criminal sexual conduct, the state must prove that the defendant (1) sexually penetrated the victim and (2) knew or had reason to know that the victim was physically helpless when the penetration occurred.  Minn. Stat. § 609.344, subd. 1(d) (2000).  “‘Physically helpless’ means that a person is (a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.”  Minn. Stat. § 609.341, subd. 9 (2000).

            Jones admits having sexual intercourse with B.P. on November 6, 2002, and he does not dispute that she was physically helpless when they returned to the trailer from Minneapolis.  He argues that the sexual intercourse occurred earlier in the day, around 1:30 or 2:00 p.m.

The following evidence supports the state’s theory of the case:  Hunt was with Jones “continuously from the time [he] got to the trailer until the time [Jones] left the Minneapolis home to go back to the trailer,” and he did not see or know of B.P. having sex with Jones.  During the search of the trailer, a used condom was found on a coffee table in the living room.  While watching television at the trailer, Hunt did not recall seeing a condom on the coffee table, which was right in front of him.  Hunt thought that he would have recalled seeing a condom if it had been on the coffee table.  Raspberry did not see a condom on the coffee table.  When Hunt and Raspberry returned to the trailer, they pounded on the door for several minutes before Jones let them in, and when they entered the trailer, B.P. was on a bed in the small bedroom wearing only a bra and underpants.  An empty condom wrapper was in the southeast corner of the small bedroom.  In the bathroom were B.P.’s blue jeans and a strip of unopened condom wrappers that were the same brand as the wrapper found in the bedroom.

            Citing Hunt’s grand-jury testimony that, before going to Minneapolis, he took a shower at the trailer and afterwards saw B.P. and Jones in the bedroom together, Jones argues that the grand-jury testimony is inconsistent with Hunt’s trial testimony that he was with B.P. and Jones from the time he arrived at the trailer until Jones and B.P. left Minneapolis.  But “[i]nconsistencies in testimony and conflicts in evidence do not automatically render the testimony and evidence false and are not bases for reversal.”  State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).  This court defers to the fact-finder’s credibility determinations.  State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002).

            Jones argues that the coffee table was cluttered, so the condom could have been on it and gone unnoticed.  It is the jury’s role to determine the weight of a witness’s testimony.  Daniels, 361 N.W.2d at 826-27.  Jones also argues that due to Hunt’s and Raspberry’s drug use and intoxication, it is unlikely that they would have noticed a condom on the coffee table or, if they did notice it, it is unlikely that they later would have recalled seeing it.  A witness’s state of intoxication at the time of events about which he testifies goes to the credibility of his testimony, and witness credibility is an issue for the jury to determine.  State v. Jones, 347 N.W.2d 796, 800-01 (Minn. 1984); State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977).

            Jones argues that the evidence presented by the state is consistent with his innocence.  But Jones’s argument isolates individual pieces of evidence.  When reviewing a conviction based on circumstantial evidence, the evidence is viewed as a whole.  Bias, 419 N.W.2d at 484; see also Moore, 481 N.W.2d at 361 (noting that “the evidence as a whole may support a finding of premeditation even if no single piece of evidence standing alone would be sufficient” and that “[w]hat is required is that the circumstances lead so directly to a finding of premeditation as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt of premeditated murder”).

            Jones argues that because the jury found him not guilty of third-degree murder, the evidence does not support the theory that he provided methamphetamine to B.P. intending to incapacitate her so that he could have sex with her.  But to support a third-degree criminal-sexual-conduct conviction, it is not necessary to prove that a defendant intended to incapacitate or did in fact incapacitate the victim; it is only necessary to prove that the defendant knew or had reason to know that the victim was physically helpless when the penetration occurred.  See Minn. Stat. § 609.344, subd. 1(d) (elements of third-degree criminal sexual conduct).

            The evidence is sufficient to support Jones’s criminal-sexual-conduct conviction.

II.

A . . . caretaker who willfully deprives a child of necessary . . . health care, or supervision appropriate to the child’s age, when the . . . caretaker is reasonably able to make the necessary provisions and the deprivation harms or is likely to substantially harm the child’s physical, mental, or emotional health is guilty of neglect of a child . . . .

 

Minn. Stat. § 609.378, subd. 1(a)(1) (2000).

            A . . . caretaker who endangers the child’s person or health by:

            (1) intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death;  or

            (2) knowingly causing or permitting the child to be present where any person is selling or possessing a controlled substance . . . is guilty of child endangerment . . . .

 

Id., subd. 1(b).

            Jones argues that the evidence is insufficient to support the child-neglect conviction because he attempted to assist B.P. by performing CPR, which shows that he provided health care or supervision.  But the child-neglect offense is defined in objective terms.  B.P. had taken methamphetamine, and the record contains evidence that, when Hunt and Raspberry returned to the trailer, Jones said B.P. had overdosed, indicating that he knew she had taken methamphetamine.  Based on that knowledge and the progression of B.P.’s symptoms, additional health care was necessary.

Jones also argues that the evidence is insufficient to support the child-neglect and child-endangerment convictions because the evidence is insufficient to prove that he was B.P.’s caretaker.  “‘Caretaker’ means an individual who has responsibility for the care of a child as a result of a family relationship or who has assumed responsibility for all or a portion of the care of a child.”  Minn. Stat. § 609.376, subd. 2 (2000).  A finding that Jones had assumed responsibility for B.P.’s care is supported by the evidence that, when Jones left Minneapolis with B.P., he said that he would take care of her.

The evidence is sufficient to support Jones’s child-neglect and child-endangerment convictions.

III.

The district court sentenced Jones to an executed term of 102 months on the criminal-sexual-conduct conviction, which is a 24-month upward durational departure. The district court stated that it imposed the departure “for not seeking some help for [B.P.] the night she died.”   Jones argues that the sentencing departure violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). 

In Blakely, the Supreme Court explained that when, in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), it expressed the rule 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,’” Blakely, 542 U.S. at ___, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. 2348), the prescribed statutory maximum meant

the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.  In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.  When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority.

 

Id. at 2537 (citations and quotation omitted) (emphasis in original).

Applying Apprendi and Blakely to Minnesota’s legislatively created sentencing-guidelines system, the Minnesota Supreme Court recently concluded that “the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is ‘the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.’”  State v. Shattuck, ___ N.W.2d ___, ___, 2005 WL 1981659, at *8 (Minn. Aug. 18, 2005) (quoting Blakely, 124 S. Ct. at 2537).  The supreme court held in Shattuck that the provisions of Minnesota Sentencing Guidelines II.D. that permit the district court to impose an upward durational departure based on judicial findings are facially unconstitutional.  Shattuck, 2005 WL 1981659, at*9.  The supreme court then concluded “that the unconstitutional portion of Minn. Sent. Guidelines II.D may be severed from the remaining provisions of the guidelines.  Section II.D is unconstitutional only insofar as it allows the district court to impose an upward durational departure based on the court’s own findings.”  Shattuck, 2005 WL 1981659, at *10. 

The supreme court did not identify specific language that may be severed as “the unconstitutional portion of Minn. Sent. Guidelines II.D,” but when discussing severability, the supreme court explained that “[w]hile the mechanism for departing from the presumptive sentence further affects proportionality, retaining the Sentencing Guidelines while striking down that unconstitutional mechanism with respect to upward durational departures better serves the goal of proportionality than invalidating the Sentencing Guidelines in their entirety.”  Shattuck, 2005 WL 1981659, at *12 (citation omitted).  Based on the discussion of severability in Shattuck, we understand that the mechanism for imposing an upward durational departure from the presumptive sentence is the unconstitutional portion of Minn. Sent. Guidelines II.D that has been severed from the remaining provisions of the guidelines. 

Because the mechanism for imposing an upward durational departure from a presumptive sentence has been severed from the sentencing guidelines, we reverse the upward durational departure and remand for resentencing.

Affirmed in part, reversed and remanded in part.