This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1039

 

State of Minnesota,

Respondent,

 

vs.

 

Bryan Patrick Six,

Appellant.

 

Filed ­­­May 29, 2007

Affirmed

Dietzen, Judge

Dissenting, Randall, Judge

 

Fillmore County District Court

File No. CR-05-48

 

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Brett A. Corson, Fillmore County Attorney, 101 Fillmore Street, P.O. Box 307, Preston, MN 55965 (for respondent)

 

John M. Stuart, State Public Defender, Ngoc L. Nguyen, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges the district court’s imposition of consecutive sentences totaling 53 months for his convictions of attempted kidnapping and attempted second-degree criminal sexual conduct, arguing that the sentence unfairly exaggerated the criminality of his conduct and violated the terms of his plea agreement.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

On a morning in September 2005, a 15-year-old female (the victim) was walking on a road near Canton, Minnesota when she observed a red car driven by an unknown man, who police later identified as appellant Bryan Six.  After turning around and pulling alongside the victim, appellant said, “Hey baby, what’s your name?”  The victim said, “please sir, just leave me alone” and kept walking.  Appellant told the victim to get in the car.  The victim kept walking, and appellant again told her to get in the car.  The victim again refused and kept walking.

Appellant then got out of the car, pursued the victim, and ordered her to stop.  The victim told police that appellant then pushed her, causing her to fall into a ditch.  While she was lying in the ditch, the victim looked back at appellant and saw that he had moved “really close” to her and was undoing his pants.  Something distracted appellant, and he walked toward his car, but then looked back at the victim and said that “if she ‘f-in’ moved, he would kill her.”  Suddenly, the victim observed another car on the road, and she waved to that car as it passed.  The car stopped, and she jumped into it and asked the driver to take her home.  She told the driver that appellant had almost raped her.

The state charged appellant with 13 counts arising out of the incident.  In November 2005, appellant entered an Alford/Goulette plea to one count of attempted kidnapping under Minn. Stat. §§ 609.17, .25 (2004) and one count of attempted second-degree criminal sexual conduct under Minn. Stat. §§ 609.17, .343, subd. 1(c) (2004) (prohibiting sexual conduct that causes someone to have “a reasonable fear of imminent great bodily harm”).  The state dismissed the other 11 counts, and the parties agreed that appellant would receive a guidelines sentence.  The district court ordered a presentence investigation (PSI) and continued the matter for sentencing.

The PSI concluded that convictions of attempted kidnapping and attempted second-degree criminal sexual conduct allowed permissive consecutive sentencing without departure from the Minnesota Sentencing Guidelines.[1]  The PSI recommended consecutive sentences because appellant “takes no responsibility for this offense,” is a safety risk to the community, and is not amenable to treatment.

At the sentencing hearing, the state relied on the PSI report and recommended consecutive sentences.  Appellant’s attorney argued that concurrent sentences were part of the plea agreement and that consecutive sentences would unfairly exaggerate the criminality of appellant’s conduct.  The district court found that “there is sufficient difference between the two crimes that were charged which justifies the use of consecutive sentencing,” “that the victim in this case through shear fortuity got away, and as a result a more serious crime was not committed,” and that appellant is a “threat to public safety.”  The district court sentenced appellant to the presumptive sentence of 29 months for the attempted kidnapping conviction and the presumptive sentence of 24 months for the attempted second-degree criminal-sexual-conduct conviction.  The district court determined that the sentences should run consecutively. 

D E C I S I O N

Appellant does not challenge his conviction.  Rather, he argues that the imposition of consecutive sentences, which resulted in an aggregate sentence of 53 months, unfairly exaggerated the criminality of his conduct.  A district court has broad discretion in sentencing, State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981), and its “decision regarding permissive, consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct,” State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998). 

Consecutive sentences are permissive for multiple offenses against persons, even when the offenses involve a single victim.  Minn. Sent. Guidelines cmt. II.F.04.  And permissive consecutive sentencing is not a departure from the guidelines.  Id. 

Appellant first argues that his sentence is disproportionate to sentences imposed in similar cases.  A reviewing court may examine sentences imposed in similar cases to determine whether the sentence is disproportionate and, therefore, unfairly exaggerates the criminality of an offender’s conduct.  Neal v. State, 658 N.W.2d 536, 548 (Minn. 2003) (citing State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988)).  Appellant argues that his case is comparable to State v. Dominguez, 663 N.W.2d 563 (Minn. App. 2003).[2]  In Dominguez, this court upheld a 60-month sentence, which was an upward departure, for aiding and abetting the kidnapping of multiple victims.  Id. at 567.  Because Dominguez was an upward departure and did not involve a permissive consecutive sentence, it is distinguishable.

Generally, the Minnesota cases that have concluded a sentence is disproportionate to the offender’s conduct have involved either an upward departure from the presumptive sentence or multiple victims.  See Neal, 658 N.W.2d at 548 (holding that a quadruple-upward-departure imposed for a kidnapping conviction was disproportionate to the sentences imposed for similar crimes); Norris, 428 N.W.2d at 71 (holding that the imposition of consecutive sentences for assaults against multiple victims, which were made consecutive to a life sentence for first-degree murder, unfairly exaggerated the criminality of the defendant’s conduct).  Here, appellant’s sentence was not an upward departure or a sentence for crimes against multiple victims.  Thus, appellant has not shown a comparable disproportionality.

Second, appellant argues that his consecutive sentences are disproportional because the same behavior satisfied the elements of both of his offenses.  Specifically, appellant argues that the confinement that formed the basis of the kidnapping charge is also the force and coercion that formed the basis of the criminal sexual conduct charge.

Kidnapping requires a showing that the defendant “confines or removes from one place to another, any person without the person’s consent.”  Minn. Stat. § 609.25, subd. 1 (2004).  Criminal sexual conduct in the second degree requires a showing of “sexual contact” and “circumstances existing at the time of the act [that] cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant . . . .”  Minn. Stat. § 609.343, subd. 1(c) (2004).  Attempt requires “an act which is a substantial step toward . . . the commission of the crime” and intent to commit that particular crime.  Minn. Stat. § 609.17, subd. 1 (2004).  But intent is an inference that is drawn by the fact-finder from the totality of the circumstances.  State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989).  Thus, appellant’s convictions of attempted kidnapping and attempted second-degree criminal sexual conduct required an act that was a substantial step toward the confinement of the victim and toward sexual contact that caused the victim to have a reasonable fear of imminent bodily harm, coupled with a showing of intent to commit the crime gleaned from the totality of the circumstances.

The district court reviewed the evidence, including the statement appellant made during the guilty plea proceedings, and concluded that “the confinement did occur separately and did occur prior to the attempted criminal sexual conduct.”  Appellant argues that the district court’s conclusion is not supported by the record and relies on State v. Welch, 675 N.W.2d 615 (Minn. 2004), to support his position. 

In Welch, the victim was pushing a baby stroller in a park when the defendant approached her, made comments with sexual overtones to her, and then threw her to the ground and slammed the victim’s head against the sidewalk several times.  Id. at 617.  Welch was charged with second-degree criminal sexual conduct and kidnapping.  On appeal, the supreme court reversed, concluding that the confinement involved in the defendant positioning himself on top of the victim was completely incidental to the criminal sexual conduct and did not support a conviction for kidnapping.  Id. at 620.  It reasoned that “confinement or removal must be criminally significant in the sense of being more than merely incidental to the underlying crime, in order to justify a separate criminal sentence [for kidnapping].”  Welch, 675 N.W.2d at 620 (quoting State v. Smith, 669 N.W.2d 19, 32 (Minn. 2003), overruled on other grounds by State v. Leake, 699 N.W.2d 312, 323 (Minn. 2005)).

In Welch, the defendant challenged his conviction of second-degree criminal sexual conduct on the ground that the evidence was not sufficient to support the conviction.  But Welch was convicted under a different portion of the statute, which required a showing that the defendant “cause[d] personal injury to the complainant” and “use[d] force or coercion to accomplish the sexual contact . . . .”  Minn. Stat. § 609.343, subd. 1(e)(i); see Welch, 675 N.W.2d at 619.  Here, appellant pleaded guilty and was convicted of attempted criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(c), which merely required a showing that appellant caused the victim to have a “reasonable fear of imminent great bodily harm.”  We agree that appellant may argue that the evidence is not sufficient to support consecutive sentences, but appellant has not challenged his conviction and, therefore, for purposes of his appeal, appellant has admitted the underlying elements of both offenses.  Thus, the district court’s conclusion that the victim had a reasonable fear of imminent great bodily harm is supported by the record. 

More importantly, the facts in this case establish the commission of separate and distinct acts of attempted confinement.  Specifically, appellant attempted to confine the victim by: (1) ordering the victim to get into his car; (2) forcing the victim into the ditch; and (3) ordering the victim, as she was lying in the ditch, not to “f-in” move or he would kill her.  See State v. Butterfield, 555 N.W.2d 526, 532 (Minn. App. 1996) (holding that where defendant did not spend the entire time assaulting the victim but continued to confine her, kidnapping was not merely incidental to the commission of a sexual assault), review denied (Minn. Dec. 17, 1996).  Appellant’s verbal commands, which constituted part of the attempted confinement of the victim, were separate from his conduct in moving “really close” to the victim, undoing his pants to initiate sexual contact, and causing the victim to have a fear of imminent great bodily harm.  Thus, the confinement that formed the basis of appellant’s attempted kidnapping conviction was “criminally significant” and was not “the very force and coercion” that supported his attempted-criminal-sexual-conduct conviction.  The district court’s conclusion that “there is sufficient difference between the two crimes that were charged which justifies the use of consecutive sentencing” is not clearly erroneous.

Appellant also argues that “this court should carefully scrutinize the evidence supporting the kidnapping offense” in deciding the sentencing issue.  Appellant’s conviction was entered pursuant to a guilty plea, which considerably limits the record upon which the sentencing issue is to be decided.  Nevertheless, as demonstrated above, we have carefully scrutinized the record in assessing appellant’s kidnapping conduct and see no abuse of discretion. 

Third, appellant argues that at the time of trial, he understood the plea agreement to provide for concurrent sentences.  At the sentencing hearing, appellant’s attorney admitted that he was not aware that consecutive sentences were permissive under the guidelines.  Respondent argues that the parties agreed to only the presumptive sentence for each crime, and that there was no agreement on whether the sentences would run concurrently or consecutively. 

Here, the district court concluded that appellant was not promised anything regarding concurrent or consecutive sentences.  We agree.  At the guilty-plea hearing, appellant’s attorney described the terms of the plea agreement as follows: “if [appellant] pleads guilty to these two charges [attempted kidnapping and attempted second-degree criminal sexual conduct] . . . the remaining counts of the complaint will be dismissed and . . . the State is going to recommend a presumptive sentence  . . . .”  The rule 15 petition to enter a guilty plea indicated that in exchange for appellant pleading guilty to the attempted kidnapping and attempted second-degree criminal sexual conduct, the state would (1) dismiss the remaining charges and (2) recommend the presumptive sentence.  On this record, we cannot say that the district court’s finding that there was no agreement on this issue is clearly erroneous.

            Affirmed.

RANDALL, Judge (Dissenting)

 

             I respectfully dissent on the sentences for the charges of attempted kidnapping and attempted second-degree criminal sexual conduct.  Appellant pleaded guilty to both charges as part of a plea agreement and is only appealing his sentence, not the convictions.  The state argues that appellant cannot challenge the factual background for his guilty pleas, claiming that he pled guilty pursuant to the plea bargain and is not attacking the sufficiency of the evidence to convict him on appeal.  I understand the state’s argument that sufficiency of the evidence is not on appeal, but when challenging the imposition of permissive consecutive sentences, the grounds are that consecutive sentencing “unfairly exaggerates the criminality of [the] conduct.”  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).  The only common sense way to argue the criminality of the conduct is to look at the underlying conduct!

            It is not in dispute that the victim was terrified.  The facts of record would easily support assault in the fifth degree under Minn. Statute § 609.224, subd. 1(2004) or terroristic threats under Minn. Statute § 609.713, subd. 1 (2004).  Instead, the state chose to bury appellant with thirteen different criminal counts:  two counts of kidnapping, two counts of attempted kidnapping, attempted first-degree sexual assault, two counts of attempted third-degree sexual assault, two counts of fourth-degree sexual assault, terroristic threats, false imprisonment, and fifth-degree sexual assault.  Under that pressure, appellant chose to agree to an Alford plea of attempted kidnapping and attempted second-degree sexual conduct with an understanding that he would receive a presumptive sentence, not an upward departure.

            The majority is correct that consecutive sentences for multiple offenses against a person are “permissive,” not technically an upward departure.  However, normal presumptive sentences, are just that, presumptive.  Permissive consecutive sentencing is a hybrid, not quite an upward departure, but unlike a true presumptive sentence, consecutive sentencing is barred when it would unduly exaggerate the criminality of the defendant’s conduct.

The sufficiency of the evidence on attempted kidnapping and attempted criminal sexual conduct second degree is not on appeal, but the facts underlying both counts are on appeal.  I conclude from the factual record that if sufficiency of the evidence was the issue, the attempted kidnapping probably would not stand, and there would be no chance the attempted second degree sexual conduct would withstand appellate scrutiny.  On the attempted kidnapping, the best facts for the state are that appellant pushed the victim, and that caused her to fall to the ground.  Then, without ever touching her again, appellant started to undo his belt buckle, then turned back toward his car, but looked back at the victim and hollered that if she moved, “he would kill her.”  That’s it!  The majority adds, “Suddenly, the victim observed another car on the road, and she waved to that car as it passed.  The car stopped, and she jumped into it and asked the driver to take her home.”  Terrified, yes.  Attempted confinement—really debatable—for proof beyond a reasonable doubt—probably not.

On the charge of attempted criminal sexual conduct in the second degree, an essential element is “sexual contact.”  You have zero sexual contact in this case, nothing even close to that element.  The state relies on “attempt.”  Attempt requires “an act which is a substantial attempt toward . . . the commission of [a] crime.”  Minn. Stat. § 609.17, subd. 1 (2004).  There is nothing sexual in the few words that appellant spoke to victim.  The yelling to “stay there” or “he would kill her” goes only to fifth-degree assault or terroristic threats, or the count of kidnapping.  And at best, the yelling is a real weak link to a real weak attempted “kidnapping” charge.  The entire “substantial step” toward the charge of “attempted criminal conduct second” is starting to unbuckle one’s belt while in the vicinity of the victim before running away!

            I suggest that appellant was arbitrarily overcharged with the thirteen different criminal counts.  All counts were based on the two skimpy lines of facts that both the majority and I agree are all that happened.  That pressure led to whatever the best plea bargain that appellant and his attorney thought they could salvage.

The prevailing attitude surrounding this case was the image of the worst case possible scenario.  That simply did not happen, but impacted the charging and the sentencing almost as if it had.

            As the majority sets out, the sentencing judge put on the record “that the victim in this case through shear fortuity got away, and as a result a more serious crime was not committed.”

It is “possible” that if there had not been a passing motorist, something else would have happened.  It is “possible” that if there was not a passing motorist, nothing more would have happened.  The speculation is useless and contrary to due process and fundamental fairness, which dictates that the state has to prove, beyond a reasonable doubt, the essential elements of a crime, not just the essential elements of what “could have become a crime” if everything had come to pass.  This rule applies to the essential elements of attempted crimes as well as completed crimes.

            The convictions will stand, as they are not appealed.  The case law is somewhat sparse on permissive consecutive sentencing.  It is somewhat in the nature of an upward departure.  The majority cites Welch, which I do find instructive.  In State v. Welch, 675 N.W.2d. 615, 617 (Minn. 2004), an attempted sexual assault case that is analogous to this case, the defendant tackled the victim, straddled her with his legs, and held her down with his arms.  When she attempted to escape, he grabbed her hair and repeatedly struck her head against the concrete.  Id.  The supreme court held that the evidence showed that “[n]o removal—let alone incidental removal—was even alleged.”  Id. at 620.  The court ordered the conviction for kidnapping reversed and the sentence vacated.  Id. at 621.  In our case, the kidnapping charge was based on acts that were part of the attempted sexual assault.  As above stated, I cannot find anything in the record even close to the essential elements of second-degree criminal sexual conduct.  In support of its decision in Welch, the supreme court also cited State v. Smith, 669 N.W.2d 19 (Minn. 2003), overruled on other grounds by State v. Leake, 699 N.W.2d 312 (Minn. 2005).

            In Smith, the supreme court first held that where the confinement or removal of the victim is completely incidental to the perpetration of a separate felony, it does not constitute kidnapping.  Id. at 32.  Further, the court noted that “convictions that rest solely on acts incidental to the commission of one crime . . . unduly exaggerate the criminality of the conduct.”  Id.

In our case, the kidnapping charge was based on acts that were part of the attempted sexual assault.  As above stated, I cannot find anything in the record even close to the essential elements of second-degree criminal sexual conduct.  Under Smith and Welch, the kidnapping charge and the sexual assault charge unduly exaggerate the criminality of the conduct.  In Welch, the supreme court noted that the alleged facts of the case involved less confinement than in Smith.  Welch, 675 N.W.2d at 621.  Here, there is even less physical confinement than in Welch!

            The community reaction to appellant, a stranger with an out-of-town license plate (appellant lived in Iowa and was driving a car belonging to someone else from Louisiana), was swift and judgmental.  The local prosecutor found 13 different criminal counts out of a push, two or three angry statements hurled at the victim, and appellant’s act of unbuckling his belt buckle before he ran away.  The state even argued in its brief that the evidence would support the finding that appellant intended to kidnap the victim and take her away from her home in Canton, Minnesota, and very likely even into Iowa, where appellant lived.  There is absolutely nothing in this record to back up the state’s exaggerated argument.

            I do not rest my dissent on appellant’s claim that his plea bargain called for concurrent sentences.  That is in dispute, and he did receive, not an upward departure, but a permissive sentence.  But, as pointed out, permissive consecutive sentencing is barred when to do so would unduly exaggerate the criminality of a defendant’s conduct; “conduct” meaning what he did, not speculating about a worst case scenario.

            I dissent, and would reverse and remand on the sentencing issue and direct the imposition of a 29-month and a 24-month concurrent sentence.