State v. Tibbetts

• Citation: 281 NW 2d 499
• Decision Date: 06 July 1979
• Docket Number: No. 47974.,47974.
• Parties: STATE of Minnesota, Respondent, v. Jack Durand TIBBETTS, Appellant.
• Court: Minnesota Supreme Court

281 N.W.2d 499 (1979)

STATE of Minnesota, Respondent, v. Jack Durand TIBBETTS, Appellant.

No. 47974.

Supreme Court of Minnesota.

July 6, 1979.

Michael F. Fetsch, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, John O. Sonsteng, County Atty., and Carol A. Collins, Asst. County Atty., Hastings, for respondent.

Heard before KELLY, TODD, and SCOTT, JJ., and considered and decided by the court en banc.

OTIS, Justice.

This is an appeal from a conviction for two counts of criminal sexual conduct in the second degree, Minn.St. 609.343(a), and two counts of criminal sexual conduct in the fourth degree, Minn.St. 609.345(b). We reverse and remand for a new trial.

The pertinent statutes are as follows:

Minn.St. 609.343 "CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE. A person is guilty of criminal sexual conduct in the second degree and may be sentenced to imprisonment for not more than 15 years if he engages in sexual contact with another person and if any of the following circumstances exists:

"(a) The complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant\'s age nor consent to the act by the complainant is a defense; * * *."

Minn.St. 609.345 "CRIMINAL SEXUAL CONDUCT IN THE FOURTH DEGREE. A person is guilty of criminal sexual conduct in the fourth degree and may be sentenced to imprisonment for not more than five years, if he engages in sexual contact with another person and if any of the following circumstances exists:

* * * * * *

"(b) The complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant and uses this authority to coerce the complainant to submit. In any such case, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor reasonably believes the complainant to be 16 years of age or older; * * *."

Minn.St. 609.341: "Definitions.

* * * * * *

"Subd. 11. `Sexual contact\' includes any of the following acts committed without the complainant\'s consent, if the acts can reasonably be construed as being for the purpose of satisfying the actor\'s sexual or aggressive impulses, except in those cases where consent is not a defense:

"(i) The intentional touching by the actor of the complainant\'s intimate parts, * * *."

With respect to each count the court's charge included, among other things, the following:

"* * * if you are satisfied beyond a reasonable doubt that on or between Friday, the 13th of February, and Sunday, the 14th of March, 1976, * * * first, that the defendant intentionally touched the victim\'s buttocks, or the clothing covering the immediate area of his buttocks, and secondly, that the touching could reasonably be construed as being for the purpose of satisfying the defendant\'s sexual impulses, * * * then you should find him guilty of the crime charged * * *."

We are of the opinion that the charge as given obscured and diluted the time-honored rule that in a criminal case the state must prove all facts beyond a reasonable doubt, and accordingly we hold that defendant was denied due process of law and is entitled to a new trial.

By instructing the jury that "the touching could reasonably be construed as being for the purpose of satisfying the defendant's sexual impulses" the degree of proof was shifted from acts which must be proved beyond a reasonable doubt to acts which could reasonably be construed or interpreted to be for an improper purpose. In ordinary parlance the use of the word "could" means something which is "possible," here suggesting to a jury that it had the right to convict if it found that an improper purpose was only one of several reasonable alternatives. It was tantamount to charging that if this purpose could reasonably be inferred, to reach a verdict of guilty the jury need not exclude other reasonable inferences which might lead to an opposite conclusion. In other words, by failing to charge that proof of guilt must be beyond a reasonable doubt and by charging instead that it could merely be a reasonable construction of the evidence the protection afforded an accused is emasculated and the jury is invited to select one of several possible conclusions if each of them can be logically supported.

Two recent cases of the United States Supreme Court underscore the constitutional dimensions of the reasonable doubt rule, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In the Winship case, the Supreme Court had this to say in holding that the Due Process clause of the Fourteenth Amendment requires for conviction proof beyond a reasonable doubt of every fact necessary to constitute the crime charged:

"The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock `axiomatic and elementary\' principle whose `enforcement lies at the foundation of the administration of our criminal law.\' * *

"The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. * * *

"Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community

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