State v. Tynes, A18-0442

• Decision Date: 18 March 2019
• Docket Number: A18-0442
• Parties: State of Minnesota, Respondent, v. David Garrett Tynes, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. David Garrett Tynes, Appellant.

A18-0442

STATE OF MINNESOTA IN COURT OF APPEALS

March 18, 2019

This opinion will be unpublished and may not be cited except as provided by Minn.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

Johnson, Judge

Hennepin County District Court

File No. 27-CR-17-9240

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Deborah Ellis, Ellis Law Office, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson, Judge.

UNPUBLISHED OPINION

JOHNSON, Judge

After a court trial, the Hennepin County District Court found David Garrett Tynes guilty of two criminal offenses based on evidence that he exchanged text messages with a person with the intent to hire a 15-year-old prostitute. On appeal, Tynes challenges the sufficiency of the evidence and the imposition of multiple sentences. We conclude that the evidence is sufficient to prove that Tynes reasonably believed that the fictitious girl with whom he exchanged text messages was under the age of 16. We also conclude that the district court erred by imposing two sentences for a single behavioral incident. Therefore, we affirm in part, reverse in part, and remand for resentencing.

FACTS

On April 12, 2017, Tynes called a telephone number in an online advertisement on backpage.com for "Princess Kylie." The advertisement included three photographs depicting a young female and described her as 18 years old and a "very mature, sexy, sensual, and passionate woman who loves to have FUN." The advertisement also stated that "2 girls" were "available to generous men." The advertisement had been placed by the Minnetonka Police Department as part of a prostitution "sting" targeting men intending to engage in sexual conduct with prostitutes under the age of 16.

Police officers did not answer Tynes's telephone call. Instead, Detective O'Keefe sent a text message to Tynes while pretending to be Princess Kylie. Detective O'Keefe texted, "hi baby." Tynes responded by texting, "Hi - may I come and see you," and, after a few more exchanges, "I would love to see u for an hour." Detective O'Keefe texted, "180h," which was intended to indicate an hourly rate of $180, and Tynes responded, "Ok." When Detective O'Keefe asked Tynes, "what u like?," he responded, "FS," which Detective Wenmark later testified is shorthand for "full service," i.e., sexual intercourse. Detective O'Keefe asked Tynes whether he liked "GFE," and Tynes responded, "Yes." Detective Wenmark later testified that GFE means "girlfriend experience," i.e., a "relationship type experience" that simulates the "kinds of interactions that would be normal for a normal relationship." Detective O'Keefe then provided Tynes with an address, saying, "text me when u get there for more."

Detective O'Keefe next sent Tynes a text message saying, "im a little youngr than in my ad, but im professional." After eight minutes without a response from Tynes, Detective O'Keefe texted, "baby?" After Tynes acknowledged the text, Detective O'Keefe continued the conversation by texting, "im almost 16 but I know what im doing and I want to learn more." Tynes responded by texting, "No thanks pls don't txt me." Detective O'Keefe replied, "whatever."

Approximately seven minutes later, Tynes resumed the correspondence by texting, "Here." Detective O'Keefe wrote, "are you just f---in with me?" Tynes responded, "No." Tynes texted again to say that he was at the address that had been given to him, which was the location of a gas station. Detective O'Keefe wrote, "ok, u hard for me? i want u ready." Tynes responded, "Will be." Detective O'Keefe then directed Tynes to a nearby apartment by giving him an address, an apartment number, and an access code. Tynes arrived at the apartment a few minutes later. Police officers were waiting and arrested Tynes when he knocked on the apartment door. When the officers searched him incident to his arrest, they found $211 in cash on his person.

The state charged Tynes with two offenses: (1) hiring, offering, or agreeing to hire an individual whom he reasonably believed to be between the ages of 13 and 15 to engage in sexual penetration or sexual contact, in violation of Minn. Stat. § 609.324, subd. 1(b)(3) (2016); and (2) using an electronic-communication system to solicit a person younger than 16 years old or a person he reasonably believed to be younger than 16 years old to engage in sexual conduct, in violation of Minn. Stat. § 609.352, subd. 2a(1) (2016).

Tynes waived his right to a jury trial. A court trial was held in September 2017. The state called three witnesses, each of whom was a police officer involved in the sting operation. Tynes testified about his extensive experience hiring prostitutes, saying that he had done so approximately 75 to 100 times in the four-year period before his arrest. He testified further that he did not believe that the fictitious girl with whom he was texting was under 16 years old and also that he understood the advertisement to say that he would have a choice of two prostitutes upon his arrival.

In October 2017, the district court filed its findings of fact and verdict. The district court found Tynes guilty on both counts. With respect to Tynes's belief of the age of the fictitious prostitute, the district court made specific findings, as follows:

Defendant believed he was communicating with a person just under 16 years of age on the afternoon of April 12, 2017. There is little doubt the business of prostitution is done in code with an overlay of deception to entice the interests of potential patrons and avoid detection by authorities. But the subsequent text messages, indicating the prostitute was "almost (but not yet) 16," dispensed any reasonable ambiguity. Defendant's suggestion that he relied on prior experience as a basis for thinking the prostitute might be lying about being underage is not credible.

Defendant's claim is also undermined by his behavior. Having declined the transaction before reinitiating contact seven minutes later supports only one reasonable inference: Defendant hesitated upon initially learning that he was dealing with an underage prostitute, but decided to take the risk anyway. As such, this element is proven beyond a reasonable doubt.

At a sentencing hearing in December 2017, the district court imposed a sentence of 18 months of imprisonment but stayed execution of the sentence for three years and ordered Tynes to serve 120 days in the Hennepin County workhouse. The district court did not specify the offense for which the sentence was imposed. The warrant of commitment states that the same sentence is imposed for each offense and that the sentences are concurrent. Tynes appeals.

DECISION

I. Sufficiency of Evidence

Tynes first argues that the evidence is insufficient to support his conviction of either offense. He contends that the state did not prove beyond a reasonable doubt that he reasonably believed that the fictitious person whom he solicited and agreed to hire for sex was younger than 16 years old. Specifically, he contends that the age of the fictitious girl was ambiguous because he received "mixed messages" and that he believed that another, older prostitute would be available upon his arrival.

When reviewing the sufficiency of the evidence, we ordinarily undertake "a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient" to support the conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). "We will view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict." State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011) (quotation omitted). A verdict will not be overturned if the factfinder, "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." Ortega, 813 N.W.2d at 100.

The above-stated standard of review applies so long as a conviction is based on direct evidence. State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). Direct evidence is evidence that is "based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). Circumstantial evidence, on the other hand, is "evidence from which the factfinder can infer whether the facts in dispute existed or did not exist." Id. (quotation omitted). A conviction depends on circumstantial evidence if proof of the offense, or a single element of the offense, is based solely on circumstantial evidence. See State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014). If a conviction necessarily depends on circumstantial evidence, this court uses a heightened standard of review. See State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010); State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). In such a case, we apply a two-step test to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, we identify the circumstances proved. Id. (citing State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)). "In identifying the circumstances proved, we assume that the [factfinder] resolved any factual disputes in a manner that is consistent with the [factfinder's] verdict." Id. (citing Andersen, 784 N.W.2d at 329). Second, we "examine independently the reasonableness of the inferences that might be drawn from the circumstances proved," and then "determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt." Id. (quotations...