Warmbold v. State, No. A04-2103 (MN 9/27/2005)
| Decision Date | 27 September 2005 |
| Docket Number | No. A04-2103.,No. A04-1973.,A04-2103.,A04-1973. |
| Parties | Dana A. Warmbold, petitioner, Appellant (A04-1973), Respondent (A04-2103), v. State of Minnesota, Respondent (A04-1973), Appellant (A04-2103). |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Itasca County, File No. KX-02-2401.
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, (for Warmbold)
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, and John J. Muhar, Itasca County Attorney, Itasca County Courthouse, (for State)
Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*
UNPUBLISHED OPINION
In this consolidated appeal from a postconviction order affirming his conviction of first-degree criminal sexual conduct involving force or coercion, Dana Warmbold argues that (1) the evidence is insufficient to prove that he used force or coercion to accomplish sexual penetration, (2) he was denied the effective assistance of counsel because of a conflict of interest, and (3) the prosecutor committed prejudicial misconduct. The state challenges Warmbold's sentence, arguing that the district court abused its discretion by, in effect, applying Blakely retroactively to reduce Warmbold's sentence to the presumptive term. We affirm Warmbold's conviction, but we reverse his sentence and remand.
On the evening of November 6, 2003, R.M. called the police and reported that appellant Dana Warmbold had beaten and raped her. When officer Jason Karjala arrived at R.M.'s house, R.M. was intoxicated and in pain. She told Karjala that Warmbold had been at her house for three days, and that he had beaten and raped her. Karjala called an ambulance, and R.M. was transported to the hospital.
At the hospital, R.M. told Karjala that Warmbold had had vaginal and anal sex with her and that the anal sex had caused her to bleed. She also said that Warmbold had burned her with cigarettes. Karjala saw bruises on R.M., and pictures taken at the hospital confirm that R.M. was bruised. DNA samples taken from R.M. matched Warmbold's DNA.
Warmbold was arrested and charged with kidnapping and two counts of first-degree criminal sexual conduct. At trial, R.M. testified that Warmbold stopped by her house in the afternoon of November 2 and that she offered him a beer. Warmbold then told R.M. that he had been angry when she refused to let him into her house back in May, and that he would kill her if she ever did that again. After drinking all afternoon, R.M. lay down for a nap and told Warmbold that he could sleep on the couch. But she warned him that he was not going to have sex with her.
R.M. and Warmbold continued to drink the following day. R.M. testified that when she woke up that night, she and Warmbold were naked and Warmbold was making genital contact with her. R.M. asked Warmbold to stop and told him that it hurt. But Warmbold did not stop, and over the next two or three days he continued to have vaginal intercourse with R.M. and attempted to have anal sex. R.M. testified that each time, she asked Warmbold to stop. She also testified that the attempted anal sex hurt and caused her to bleed. R.M. indicated that she did not remember Warmbold hitting or beating her. She could not explain the bruise on her back or the cigarette burns on her foot and stomach, but she indicated that she might have bruised herself when she fell down the stairs.
The jury found Warmbold guilty of first-degree criminal sexual conduct involving the use of force or coercion and third-degree criminal sexual conduct. But the jury acquitted him on charges of kidnapping and first-degree criminal sexual conduct involving fear of great bodily harm. The court sentenced Warmbold under the dangerous-offender statute to a 240-month prison term, a departure from the presumptive 161-month sentence. The upward departure was based on judicial findings that Warmbold treated the victim with particular cruelty and was a danger to public safety.
Warmbold did not appeal his conviction and sentence directly. Instead, he filed a postconviction petition, challenging the sufficiency of the evidence and alleging ineffective assistance of counsel and prosecutorial misconduct. Warmbold also challenged his sentence. The postconviction court reduced Warmbold's sentence to the presumptive term, reasoning that the upward departure was based on judicial findings, in violation of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). The court denied Warmbold relief on all other issues. This consolidated appeal from the postconviction court's order follows.
A petition for postconviction relief is a collateral attack on a judgment that carries a presumption of regularity and cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). For that reason, this court accords great deference to the postconviction court's findings and will not reverse those findings unless they are clearly erroneous. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). A postconviction court's decision will be upheld absent an abuse of discretion. State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990).
Warmbold argues that the evidence is insufficient to support his conviction of first-degree criminal sexual conduct because it does not establish that he used force or coercion to accomplish sexual penetration. We disagree.
When reviewing a sufficiency-of-the-evidence claim, the reviewing court must conduct a painstaking review of the record and legitimate inferences that may be drawn from the record, to determine whether a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). The reviewing court must look at the evidence in the light most favorable to the verdict and must assume that the jury disbelieved testimony that conflicted with the verdict. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).
To obtain a conviction of first-degree criminal sexual conduct involving the use of force or coercion, the state had the burden of proving beyond a reasonable doubt that Warmbold engaged in non-consensual sexual contact with R.M., caused her personal injury, and "use[d] force or coercion to accomplish sexual penetration." Minn. Stat. § 609.342, subd. 1(e)(i) (2002); 10 Minnesota Practice, CRIMJIG 12.03 (1999). Warmbold concedes that the evidence is sufficient to establish that he engaged in sexual contact with R.M. without her consent and caused her physical injury. But he argues that the evidence is insufficient to prove that he used force or coercion to accomplish sexual penetration.
The relevant statute defines "force" as "[t]he infliction . . . or threatened infliction by the actor of bodily harm or [the] commission or threat of any other crime . . . against the complainant . . ., which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) . . . also causes the complainant to submit." Minn. Stat. § 609.341, subd. 3 (2004). The statute defines "coercion" as "words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon . . . the complainant . . . or force the complainant to submit to sexual penetration or contact." Id., subd. 14 (2004). Proof of coercion does not require proof of a specific act or threat. Id.
The use of force or coercion need not precede or be separate from the sexual contact but may occur concurrently with it. See State v. Middleton, 386 N.W.2d 226, 230 (Minn. 1986) (). The force or coercion requirement is minimal and is satisfied "when the actor inflicts bodily harm or pain or the threat thereof on another while accomplishing sexual contact." In re Welfare of D.L.K., 381 N.W.2d 435, 438 (Minn. 1986).
The supreme court has held that the force or coercion requirement was satisfied when the defendant came up behind a female classmate, hit or tapped her on the shoulder, reached under her jacket after she turned, and grabbed and pinched her breast for two seconds, causing her pain. State v. Brouillette, 286 N.W.2d 702, 706 (Minn. 1979). Similarly, the court held that evidence that the complainant was bruised when the defendant grabbed her breast and pulled her part way into his car was sufficient to establish force or coercion. State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985). And in a case factually similar to the case at hand, the court determined that force or coercion had been established when the victim testified that she awoke to find her clothing partly removed and the defendant on top of her making genital contact, and the evidence showed that she experienced vaginal redness and soreness from the surprise sexual contact. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).
As Warmbold concedes, the evidence, viewed in the light most favorable to the verdict, is more than sufficient to establish that Warmbold inflicted pain and caused R.M. to suffer personal injury while accomplishing sexual penetration. The evidence shows that, over the course of two or three days, Warmbold continued to have sexual contact with R.M., even though she repeatedly asked Warmbold to stop and told him that it hurt. R.M. also testified that Warmbold's attempt to have anal sex with her caused her to bleed. In addition, officer Karjala testified that R.M. was in a lot of pain when he arrived at her house and indicated that he saw bruises and cigarette burns on her. Although R.M. testified that she did not remember Warmbold hitting her or beating her, she initially told Karjala that Warmbold had inflicted the bruises and burns.
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