State v. Burlingame

• Decision Date: 27 January 2020
• Docket Number: A19-0405
• Parties: State of Minnesota, Respondent, v. Jon Andrew Burlingame, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. Jon Andrew Burlingame, Appellant.

A19-0405

STATE OF MINNESOTA IN COURT OF APPEALS

January 27, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed in part, reversed in part, and remanded

Klaphake, Judge^*

Wadena County District Court

File No. 80-CR-17-325

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul, Minnesota; and

Kyra L. Ladd, Wadena County Attorney, Wadena, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and Klaphake, Judge.

UNPUBLISHED OPINION

KLAPHAKE, Judge

Appellant Jon Andrew Burlingame challenges his convictions for electronic solicitation of a child to engage in sexual conduct, Minn. Sat. § 609.352, subd. 2a(1) (2014), and electronic communication with a child describing sexual conduct, Minn. Stat. § 609.352, subd. 2a(2) (2014), arguing that the evidence is insufficient on the solicitation offense, the district court erred by rejecting his entrapment defense, and he was erroneously convicted of both offenses when the electronic-communication offense was a lesser-included offense of the solicitation offense. Because the electronic-communication offense is a lesser-included offense of the solicitation offense, we reverse and remand for the district court to vacate that conviction, but we otherwise affirm.

DECISION

In considering a claim of insufficient evidence, an appellate court conducts a detailed review of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to support a guilty verdict. State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011). Applying both the presumption of innocence and the requirement of proof beyond a reasonable doubt, we will not disturb a conviction if the fact-finder could reasonably conclude that the defendant was guilty. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). For sufficiency claims, convictions resulting from bench trials apply the same standard of review as those resulting from jury trials. State v. Levie, 695 N.W.2d 619, 626 (Minn. App. 2005).

Burlingame was convicted of child-solicitation, which includes "soliciting a child or someone the person reasonably believes is a child to engage in sexual conduct." Minn. Stat. § 609.352, subd. 2a(1). "Solicit" for purposes of this statute is defined as "commanding, entreating, or attempting to persuade a specific person." Id., subd. 1(c)(2014). Burlingame argues that the state did not meet its burden to prove that he solicited a law enforcement officer posing as a fifteen-year-old girl, "Sabrena," to engage in sexual conduct because text messages he sent to Sabrena are "devoid of any commands, serious requests, or attempts to persuade [her] to engage in sexual conduct and he never attempted to meet with [her]." We disagree.

While the evidence does not show that Burlingame directly commanded or entreated Sabrena to engage in sexual conduct, it does show that he employed a persistent, indirect method to persuade her to engage in sexual conduct with him. As we have previously noted, solicitation is always "in some degree[,] ambiguous" and may be "implied by the defendant's words" or acts. State v. McGrath, 574 N.W.2d 99, 102 (Minn. App. 1998) (quotation omitted), review denied (Minn. Apr. 14, 1998). During four days of increasingly sexually explicit electronic communications, Burlingame incrementally linked himself and his sexual desires to Sabrena, asking for an exclusive relationship, describing his penis to her, masturbating while he engaged her in conversation, sending and seeking "hot" photographs,¹ graphically describing their potential sexual liaisons, establishing that shelived within driving distance, and, finally, suggesting that he "come over" while her mother was not home. His statements could only be intended to persuade Sabrena to engage in some form of sexual conduct with him. See id. at 101 (allowing "a plausible inference that [the perpetrator] intended to engage [the child victim] in some form of sexual conduct" when the perpetrator simultaneously bumped the victim's hip and "stated that he was 'horny' when he was young and explained how he was able to ejaculate 'five times in a ten minute period'").

Burlingame next argues that the district court erred by determining that he did not meet his burden to prove that he was entrapped by law enforcement during his communications with Sabrena. "[O]fficers of the law shall not incite crime to punish its perpetrator, [and] shall not lead a man into crime . . . ." State v. Boylan, 197 N.W.2d 281, 281 (Minn. 1924). Entrapment is proven in two steps. First, the defendant must show by a fair preponderance of evidence that the government engaged in inducement. State v. Garcia, 927 N.W.2d 338, 341 (Minn. App. 2019). This is shown by "persuasion, badgering, or pressure by the state." State v. Olkon, 299 N.W.2d 89, 108 (Minn. 1980). If this step is met, the state must then "prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged." Garcia, 927 N.W.2d at 341 (quotation omitted).²

The conduct of law enforcement consisted of merely posting an advertisement as a 15-year-old seeking a friend, to which Burlingame responded and sent sexually explicit messages. The district court noted that the closest the state came to "persuasion, badgering, or pressure" was in asking Burlingame whether he "wanted more than just talk," but that isolated statement occurred after Burlingame had sent her numerous sexually explicit communications. The district court correctly concluded that Burlingame did not meet his burden to prove that law enforcement induced him to commit the charged crimes. See State v. Oanes, 543 N.W.2d 658, 664 (Minn. App. 1996) (ruling that entrapment not shown when a police officer merely approached a prostitute, and the prostitute initiated a sexual exchange by telling the officer of the cost for "a woman of his choice," brought him to a room, and told him to undress); State v. Olson, 361 N.W.2d 899, 905 (Minn. App. ...