STATE OF MINNESOTA IN COURT OF APPEALS A23-0200
State of Minnesota, Respondent,
vs.
David Alan Williams, Appellant.
Filed February 5, 2024 Affirmed in part, reversed in part, and remanded Larson, Judge
Hennepin County District Court File No. 62-CR-20-6412
Keith Ellison, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Slieter, Presiding Judge; Cochran, Judge; and Larson,
Judge.
SYLLABUS
1. Under Minn. Stat. § 609.341, subd. 3 (2016), the infliction of bodily harm
alone constitutes “force;” the factfinder need not find that the infliction of bodily harm
caused a victim to submit to penetration to meet the statutory definition. 2. The exception to multiple convictions and sentences in Minn. Stat.
§ 609.035, subdivision 6, does not apply when the state charges alternative theories for
committing a single act of criminal sexual conduct.
OPINION
LARSON, Judge
Appellant David Alan Williams appeals from the district court’s judgment of
conviction finding him guilty of two counts of first-degree criminal sexual conduct. See
Minn. Stat. § 609.342, subd. 1(e)(i) (2016) (force or coercion); id., subd. 1(e)(ii) (2016)
(mentally impaired, mentally incapacitated, or physically helpless). Williams challenges
the sufficiency of the evidence supporting the jury’s guilty verdict on both counts, and, in
the alternative, argues the district court improperly convicted and sentenced him twice for
the same offense. Because we conclude that respondent State of Minnesota presented
sufficient evidence to support the jury’s guilty verdict on both counts, we affirm in part.
But because the district court improperly convicted and sentenced Williams twice for the
same offense, we reverse in part and remand to the district court to vacate one of Williams’s
convictions and the corresponding sentence, while leaving the guilty verdicts intact.
FACTS
We derive the following facts from the testimony presented at trial. In June 2018,
S.S. moved into an apartment building in Saint Paul, Minnesota. At the time, Williams
was the sales and marketing manager for the apartment building. A few days later, S.S.
attended a going-away party for a member of the building’s management team. At the
2 party, S.S. had at least two beers and some clear liquor that Williams poured into her second
beer.
As the party wound down, Williams suggested that he, S.S., and a few others go to
a nearby bar. S.S. testified that she felt “drunk” at this point. Worried about S.S., S.S.’s
friend (first friend) joined the group heading to the bar. S.S. continued drinking at the bar.
At some point, Williams kissed S.S., who pulled back from the kiss.
The group relocated to another bar to play pool. S.S. did not remember walking
from the first bar to the second. Another friend (second friend) testified that S.S. was “very
intoxicated” when she left the first bar, and second friend went to the second bar only to
keep an eye on S.S. First friend testified that she, similarly, only went to the second bar to
watch over S.S. First friend was very worried about S.S. and testified that the bartenders
at the first bar also expressed concern for S.S. First friend described how, on the walk to
the second bar, Williams had his hands all over S.S. and pulled S.S. in for a kiss, at which
point S.S. “kind of shoved him off, but she was really drunk and stumbling, and he pulled
her back in again.”
At the second bar, first friend tried unsuccessfully to convince the bartender to stop
serving S.S. Williams kept trying to kiss S.S., who told Williams multiple times that she
was not going to sleep with him. Second friend described Williams as “really aggressively
kissing” S.S. and testified that S.S. “was kind of struggling to stand up a little bit.” First
friend similarly described how Williams “was handsy and trying to kiss [S.S.], and she
would push him away.”
3 S.S. testified that she did not remember leaving the second bar and did not remember
much of the walk back to the apartment building. S.S. did recall leaning on first friend for
at least part of the walk home while Williams and second friend walked ahead. First friend
described how she “half carried, half walked” S.S. home and asked S.S. if she was okay
because Williams “seemed very handsy.” Second friend testified that, during the walk
home, Williams told him that the two women (S.S. and first friend) were “really drunk,”
and the two men (Williams and second friend) could “do whatever [they] want.” 1
When the group arrived at the apartment building, Williams entered through a side
entrance, and second friend went through the main entrance, where he found S.S. and first
friend waiting in the lobby. Both friends walked S.S. to her apartment and refused to leave
until S.S. locked her door, which she did. But before S.S. went to bed, she heard a knock
at the door and answered it to find Williams. S.S. testified that she did not believe she
invited Williams in, but that she did not prevent him from entering the apartment.
S.S. testified that she was “very intoxicated” when Williams arrived at her
apartment, and that her sole thought was to go to bed. S.S. remembered that shortly after
Williams arrived, she specifically told him that she was not going to sleep with him. After
changing her clothes, S.S. went to bed and recalled Williams was in the bed with her, but
S.S. could not recall who got into her bed first. S.S. rolled over to face away from Williams
and recalled him asking her questions as she drifted in and out of consciousness.
1 Williams denied making the “do whatever [they] want” comment.
4 S.S. awoke to Williams pulling her onto her back. Williams pulled her shorts to the
side and put his penis in her vagina. S.S. recalled feeling confused, feeling pain from the
friction, and “a dizzying feeling.” S.S. also testified that Williams made her feel afraid
when she awoke to him on top of her, and she feared that if she fought back against
Williams, he might seriously hurt her. S.S. described how she was “in and out” of
consciousness, and Williams did not listen when she told him to stop. S.S. further testified
that Williams pulled her on top of him and held her hips down while she tried to get off
him. S.S. also recalled that Williams attempted to perform oral sex on her and bit her
thighs and vagina. She remembered “very clearly it hurting and smacking his sweaty bald
head and trying to push him away,” but Williams only got more aggressive and made sure
that S.S. could not push him off of her. S.S. remembered thinking “that maybe if he just
finishes and gets whatever he was getting, then he’ll stop and go away.” The next thing
she remembered was waking up the following morning.
S.S. eventually reported the incident to the two friends. S.S. expressed to first friend
that she told Williams to stop, and showed first friend the bruises on her legs, which were
starting to fade because they were over a week old. First friend described some of the
bruises as “hickey-like” and others as “hand-print, fingerprint-type” bruises.
S.S. reported the alleged sexual assault to the police on December 16, 2019. The
police interviewed Williams on July 3, 2020. On October 7, 2020, the state charged
Williams with two counts of first-degree criminal sexual conduct. Count one charged
Williams with criminal sexual conduct in the first degree under Minn. Stat. § 609.342,
subd. 1(e)(ii), alleging that Williams sexually penetrated “and caused personal injury” to a
5 person he “knew or had reason to know” was “physically helpless.” Count two charged
Williams with criminal sexual conduct in the first degree under Minn. Stat. § 609.342,
subd. 1(e)(i), alleging that Williams sexually penetrated “and caused personal injury” to a
person and that Williams “used force or coercion to accomplish sexual penetration.”
The case proceeded to trial. Williams testified in his own defense and contradicted
much of the testimony presented by S.S. and the two friends. A jury found Williams guilty
on both counts. The district court entered judgment of conviction on both counts and
sentenced Williams to serve two concurrent 108-month prison terms—one for each count.
Williams appeals.
ISSUES
I. Was there sufficient evidence to support the jury’s finding that S.S. was
physically helpless and that Williams knew or should have known that she was physically
helpless?
II. Was there sufficient evidence to support the jury’s finding that Williams used
force or coercion to accomplish sexual penetration?
III. Did the district court improperly convict and sentence Williams twice for the
same offense?
ANALYSIS
Williams challenges the sufficiency of the evidence supporting the jury’s verdict on
count one, arguing the state failed to prove S.S. was physically helpless or, even if she was
physically helpless, that Williams knew or should have known that she was physically
helpless. Williams also challenges the sufficiency of the evidence supporting the jury’s
6 verdict on count two, arguing that the state failed to prove that he used force or coercion.
Finally, Williams argues in the alternative that we must reverse and remand to the district
court to vacate one conviction and corresponding sentence because the district court
improperly convicted and sentenced Williams twice for the same offense. We address
Williams’s sufficiency challenges in part I, and the conviction and sentencing issue in
part II.
I.
Williams argues the state presented insufficient evidence to sustain his convictions
for both counts. “When evaluating the sufficiency of the evidence, appellate courts
‘carefully examine the record to determine whether the facts and the legitimate inferences
drawn from them would permit the jury to reasonably conclude that the defendant was
guilty beyond a reasonable doubt of the offense of which he was convicted.’” State v.
Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). “The evidence must be
viewed in the light most favorable to the verdict, and it must be assumed that the fact-finder
disbelieved any evidence that conflicted with the verdict.” Id. “The verdict will not be
overturned if the fact-finder, upon application of the presumption of innocence and the
State’s burden of proving an offense beyond a reasonable doubt, could reasonably have
found the defendant guilty of the charged offense.” Id.
The state may prove its case using either direct or circumstantial evidence. State v.
Olson, 982 N.W.2d 491, 495 (Minn. App. 2022). “Direct evidence is evidence based on
personal knowledge or observation that, if true, proves a fact without inference.” State v.
Olson, 887 N.W.2d 692, 700 (Minn. App. 2016) (citing Bernhardt v. State, 684 N.W.2d
7 465, 477 n.11 (Minn. 2004)). When the state supports an element with direct evidence, we
painstakingly review “the record to determine whether the evidence, when viewed in a light
most favorable to the conviction, was sufficient to permit the jurors to reach the verdict
which they did.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted).
Circumstantial evidence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted). We apply a heightened two-step standard when reviewing the
sufficiency of circumstantial evidence. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012).
First, we “identify the circumstances proved.” State v. Silvernail, 831 N.W.2d 594, 598
(Minn. 2013). In this step, “we defer to ‘the jury’s acceptance of the proof of these
circumstances’” and “assume that the jury believed the State’s witnesses and disbelieved
the defense witnesses.” Id. at 598-99 (quotations omitted). Second, we determine if the
circumstances proved, when viewed in their entirety “are ‘consistent with guilt and
inconsistent with any rational hypothesis except that of guilt,’” and “not simply whether
the inferences that point to guilt are reasonable.” Id. at 599 (quotation omitted). During
this step, we do not defer “to the factfinder’s choice between reasonable inferences.” State
v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010) (quotation omitted). The
circumstantial evidence the state presents “must form a complete chain that, in view of the
evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a
reasonable doubt any reasonable inference other than guilt.” State v. Al-Naseer, 788
N.W.2d 469, 473 (Minn. 2010) (quotation omitted).
8 A. Count One—Minn. Stat. § 609.342, subd. 1(e)(ii)
Williams first challenges whether the state presented sufficient evidence to sustain
the jury’s verdict on count one. Under Minn. Stat. § 609.342, subd. 1(e)(ii):
A person who engages in sexual penetration with another person . . . is guilty of criminal sexual conduct in the first degree if . . . the actor causes personal injury to the complainant, and . . . the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.
Accordingly, to convict Williams, the state needed to prove: (1) Williams sexually
penetrated S.S.; (2) Williams caused personal injury to S.S.; and (3) Williams knew or had
reason to know that S.S. was “mentally impaired, mentally incapacitated, or physically
helpless.” 2 Williams argues the state failed to prove beyond a reasonable doubt that S.S.
was physically helpless, and further argues that, even if S.S. was physically helpless, the
state failed to prove that Williams knew or should have known that S.S. was physically
helpless. We address each argument in turn.
1. Physically Helpless
Williams argues the evidence shows that S.S. was not physically helpless because
she was able to open her apartment door for Williams, talked to him, changed her clothing
unassisted, got into bed, awoke when Williams rolled her onto her back, and then
repeatedly verbalized her nonconsent during the sexual encounter. Williams acknowledges
that S.S. testified that she was in and out of consciousness during the sexual encounter, but
2 Williams does not contest that the state presented sufficient evidence on the first two elements.
9 discredits this testimony, saying that the weight of the evidence shows that “on the whole,
[S.S.] was awake and conscious.” We apply the direct-evidence test to this issue because
testimony from a complainant is direct evidence. See, e.g., State v. Epps, 949 N.W.2d 474,
487 (“Testimony provided by a witness, concerning what the witness saw or heard, is
considered direct evidence . . . .”) (Minn. App. 2020), aff’d, 964 N.W.2d 419 (Minn. 2021).
Under Minn. Stat. § 609.341, subd. 9 (2016), a person is “physically helpless” when
they are: “(a) asleep or not conscious, (b) unable to withhold consent or to withdraw
consent because of a physical condition, or (c) unable to communicate nonconsent and the
condition is known or reasonably should have been known to the actor.” As relevant here,
the jury found S.S. met the physically helpless definition because she was intermittently
“asleep or not conscious” during the sexual encounter. 3
This case is akin to State v. Berrios, in which the complainant’s testimony showed
that she “was extremely intoxicated,” fell unconscious, and “awoke to discover [the
defendant] removing her pants.” 788 N.W.2d 135, 142 (Minn. App. 2010), rev. denied
(Minn. Nov. 16, 2010). The complainant told the defendant “no” but passed out again and
awoke to find the defendant “on top of her” with his penis inside her vagina. Id. During
3 On a special-verdict form, the jury found S.S. met all three definitions of physically helpless. Because we conclude the state presented sufficient evidence to prove S.S. was “asleep or not conscious,” we do not analyze whether the state presented sufficient evidence to meet the other two grounds. See Epps, 949 N.W.2d at 482 (addressing alternative means of committing first-degree criminal sexual conduct and explaining “the state need not prove that both [alternative means] were used for our court to sustain a conviction”); State v. St. Claire, No. A17-1003, 2018 WL 2293334, at *3 (Minn. App. May 21, 2018), rev. denied (Minn. Aug. 7, 2018) (concluding the evidence was sufficient to support the conviction based on one statutory definition and therefore declining to consider the sufficiency of the evidence regarding an alternative statutory definition).
10 the encounter, the complainant “could not move her body, and ‘kept passing out.’” Id.
Despite Berrios’s argument that the complainant “was not physically helpless because she
was able to recall certain details about . . . the sexual encounter,” we concluded that
sufficient evidence showed the complainant was physically helpless because she was
asleep or unconscious. Id. We reasoned that the complainant’s testimony regarding gaps
in her memory was “consistent with the testimony that [she] was severely intoxicated and
experienced intermittent periods of unconsciousness.” Id.
Similarly, here the state presented evidence from numerous witnesses regarding
S.S.’s intoxication prior to the sexual encounter. S.S. then testified extensively about the
details relating to the sexual encounter. She testified that she was “very intoxicated” when
Williams arrived at her apartment and that she was in and out of consciousness throughout
the sexual encounter. Because S.S. testified that she was intermittently “asleep or not
conscious,” her testimony is sufficient to sustain the jury’s finding that she was physically
helpless. 4 See Minn. Stat. § 609.341, subd. 9(a).
For this reason, the state’s evidence established, beyond a reasonable doubt, that
S.S. was physically helpless.
4 Williams relies on State v. Blevins, 757 N.W.2d 698 (Minn. App. 2008), to support his argument that there is insufficient evidence to show that S.S. was physically helpless. But Blevins is distinguishable because it only addressed whether the complainant was “unable to withhold consent,” not whether the complainant was “asleep or not conscious.” 757 N.W.2d at 700; see also Minn. Stat. § 609.341, subd. 9.
11 2. Knowledge
Williams argues that, even if the evidence was sufficient to prove S.S. was
physically helpless, the state failed to prove that Williams knew or had reason to know that
S.S. was physically helpless. According to Williams, the facts proved fail to eliminate the
rational hypothesis that Williams did not know, or have reason to know, that S.S. was
physically helpless, and therefore the state failed to prove beyond a reasonable doubt that
Williams had the requisite mental state to commit the offense charged.
Under Minn. Stat. § 609.02, subd. 9(2) (2016), “know” means “the actor believes
that the specified fact exists.” As it was in this case, a defendant’s mental state is “generally
proven through circumstantial evidence.” See, e.g., Al-Naseer, 788 N.W.2d at 474
(quotation omitted). Thus, we apply the heightened two-step circumstantial-evidence test
to evaluate whether sufficient evidence proved Williams knew or should have known that
S.S. was physically helpless. See Ortega, 813 N.W.2d at 100.
Here, viewing the evidence in the light most favorable to the verdict, deferring “to
the jury’s acceptance of the proof of these circumstances,” and assuming “that the jury
believed the State’s witnesses and disbelieved the defense witnesses,” see Silvernail, 831
N.W.2d at 598-99, we identify the circumstances proved. The state proved: (1) Williams
spent all evening with S.S., who showed obvious signs of heavy intoxication, including
being “half carried” home; (2) throughout the evening, S.S. rejected Williams’s advances
and said that she was not going to sleep with him; (3) during the walk back to the apartment
building, Williams told second friend that the two women, S.S. and first friend, were very
drunk and the two men could do whatever they wanted; (4) both friends were worried about
12 what Williams might do, walked S.S. to her apartment, and made sure S.S. locked her door;
(5) Williams later went to S.S.’s apartment, knocked on the door, and entered S.S.’s
apartment after she opened the door; (6) S.S. told Williams she was not going to sleep with
him; (7) S.S. changed her clothes and got into bed; (8) Williams asked S.S. questions as
she drifted in and out of consciousness; (9) S.S. awoke when Williams rolled her onto her
back and was afraid of Williams when he was on top of her; (10) S.S. repeatedly verbalized
nonconsent and physically resisted Williams during the sexual encounter; and (11) S.S.
slipped “in and out” of consciousness during the sexual encounter.
We next evaluate whether the circumstances, when viewed as a whole, are
consistent with guilt and inconsistent with any rational hypothesis except for guilt. See id.
at 599. Williams argues the circumstances proved fail to eliminate the rational hypothesis
that Williams neither knew, nor should have known, that S.S. was physically helpless
during the sexual encounter, because she was able to open the apartment door, put herself
to bed, and was able to speak to Williams before and during the sexual encounter. We are
not persuaded.
Again, our analysis is guided by Berrios. There, the state presented evidence that
the complainant was extremely intoxicated and required assistance walking home. Berrios,
788 N.W.2d at 143. The complainant testified that “she passed out . . . after telling
[Berrios] ‘no’ and was unconscious when he penetrated her.” Id. We concluded that
“[f]rom this testimony alone, there was ample evidence for the jury to conclude that Berrios
knew or had reason to know that [the complainant] had been rendered physically helpless
by her alcohol consumption.” Id.
13 Here, similarly, the evidence proved that S.S. was highly intoxicated when she
walked home with Williams and the two friends. Throughout the night, she rejected
Williams’s advances. And S.S. passed out, only to wake up during the sexual encounter.
Further, direct evidence proved that S.S. was not conscious for portions of the encounter.
During those times, S.S. was neither able to verbalize nonconsent nor able to physically
resist Williams. In stark contrast, direct evidence proved S.S. verbalized nonconsent and
physically resisted Williams while she was conscious. From this evidence, the only
reasonable inference is that Williams knew, or should have known, that S.S. was
unconscious during portions of the sexual encounter, because she would have ceased
resisting Williams while she was unconscious. We therefore conclude that sufficient
evidence supported the jury’s finding that Williams knew or should have known S.S. was
physically helpless.
B. Count Two—Minn. Stat. § 609.342, subd. 1(e)(i)
Williams next challenges whether the state presented sufficient evidence to sustain
the jury’s verdict on count two. Williams argues the state failed to prove beyond a
reasonable doubt that he used either “force” or “coercion” to accomplish sexual
penetration. 5 Again, we apply the direct-evidence test because the complainant’s
testimony on this element is direct evidence. See, e.g., Epps, 949 N.W.2d at 487.
5 Because we conclude there was sufficient evidence to support the jury’s finding that Williams used force to accomplish sexual penetration, we do not reach the question of whether Williams used coercion.
14 Under Minn. Stat. § 609.342, subd. 1(e)(i), “[a] person who engages in sexual
penetration with another person . . . is guilty of criminal sexual conduct in the first degree
if . . . the actor causes personal injury to the complainant, and . . . the actor uses force or
coercion to accomplish sexual penetration.” Thus, to convict Williams, the state must
prove: (1) Williams engaged in sexual penetration of S.S.; (2) Williams caused personal
injury to S.S.; and (3) Williams used “force or coercion to accomplish sexual penetration.”
Minn. Stat. § 609.342, subd. 1(e)(i). 6 Under the statute,
“[f]orce” means the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.
Minn. Stat. § 609.341, subd. 3 (2016). And “‘bodily harm’ means physical pain or injury,
illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7 (2016).
Williams argues the state failed to prove that he used force to accomplish sexual
penetration because the state offered no evidence that Williams used the infliction or
threatened infliction of bodily harm to “cause [S.S.] to submit” to the sexual encounter.
See Minn. Stat. § 609.341, subd. 3. Williams’s argument rests on a misreading of the
definition of “force.” Contrary to Williams’s argument, “force” does not require the actor
6 Williams does not contest that the state presented sufficient evidence on the first two elements.
15 to use the infliction of bodily harm to cause a victim to submit. Rather, the statute defines
“force” disjunctively as:
the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.
Id. (emphasis added); see also In re Marriage of Goldman, 748 N.W.2d 279, 283 (Minn.
2008) (“[W]e normally interpret the conjunction ‘or’ as disjunctive.”).
Reviewing the statute, an Oxford comma precedes the first “or,” indicating that “the
infliction, attempted infliction, or threatened infliction” of bodily harm is a list of three
items. See The Chicago Manual of Style, § 6.19 (17th ed. 2017) (“When a conjunction
joins the last two elements in a series of three or more, a comma—known as the serial or
series comma or the Oxford comma—should appear before the conjunction.”) The second
“or,” on the other hand, divides the first part of the definition from the second part.
Consequently, only the second part of the definition requires the state to prove that
conditions (a) and (b) were satisfied. In other words, the statute defines “force” to mean:
(1) “the infliction . . . of bodily harm”; (2) the “attempted infliction . . . of bodily harm”;
(3) the “threatened infliction . . . of bodily harm”; or (4) “commission or threat of any other
crime . . . which (a) causes the complainant to reasonably believe that the actor has the
present ability to execute the threat and (b) if the actor does not have a significant
relationship to the complainant, also causes the complainant to submit.” Thus, “force”
16 includes “the infliction . . . of bodily harm,” 7 and a jury need not find that the infliction of
bodily harm caused the complainant to submit. 8
Here, S.S.’s testimony was sufficient direct evidence to show that Williams used
“force” to accomplish sexual penetration. Specifically, S.S. testified about feeling pain
from the friction of Williams putting his penis in her vagina, describing it as “a jam-it-in
sort of thing.” S.S. also testified that Williams pulled her on top of him and that it hurt as
he held her hips down while she tried to get off of him. Finally, S.S. testified that she
remembered that it hurt when Williams tried to perform oral sex on her, he bit her thighs
and vagina, and when she tried to push him away, he only became more aggressive. First
friend corroborated this testimony by describing the bruising she observed on S.S.’s thighs.
Therefore, the state presented direct evidence that Williams inflicted bodily harm on S.S.,
and this evidence proved Williams used force to accomplish sexual penetration.
We conclude sufficient evidence supported the jury’s verdict on count two.
7 In 2021, the legislature amended the definition of “force” to make it clear that the infliction of bodily harm is “force” under the statute. 2021 Minn. Laws 1st Spec. Sess. ch. 11, art. 4, § 6 at 2034 (“‘Force’ means either: (1) the infliction by the actor of bodily harm; or (2) . . . .”) (codified at Minn. Stat. § 609.0341, subd. 3 (2022)). 8 This statutory interpretation is consistent with Minnesota Supreme Court precedent, see In re Welfare of D.L.K., 381 N.W.2d 435, 438 (Minn. 1986) (“In [prior] cases we have found the requirement of force satisfied when the actor inflicts bodily harm or pain or the threat thereof on another while accomplishing sexual contact.” (citation omitted)), and our nonprecedential opinion in State v. Bingham, A20-0318, 2020 WL 7688680, at *3 (Minn. App. Dec. 28, 2020), rev. denied (Minn. Mar. 30, 2021).
17 II.
Williams alternatively argues that the district court erred when it convicted and
sentenced him for two counts of first-degree criminal sexual conduct because both counts
were based on the same conduct. We agree.
We review whether an offense is subject to multiple convictions de novo. State v.
Ferguson, 808 N.W.2d 586, 590 (Minn. 2012). “Upon prosecution for a crime, the actor
may be convicted of either the crime charged or an included offense, but not both.” Minn.
Stat. § 609.04, subd. 1 (2016). Minnesota appellate courts have consistently construed
section 609.04 to bar multiple convictions for the same offense stemming from a single
act. See, e.g., State v. Cruz, 997 N.W.2d 537, 556 (Minn. 2023) (vacating, sua sponte, a
duplicative second-degree intentional murder conviction when defendant was also
convicted of first-degree felony murder stemming from a single killing); State v. Holmes,
778 N.W.2d 336, 340 (Minn. 2010) (“This statute ‘generally forbids two convictions of the
same offense . . . on the basis of the same conduct.’” (quoting State v. Haase, 341 N.W.2d
879, 881 (Minn. 1984))); State v. Spears, 560 N.W.2d 723, 726-27 (Minn. App. 1997)
(vacating three of six convictions of first-degree criminal sexual conduct where convictions
were based on three distinct acts), rev. denied (Minn. May 28, 1997). In fact, the Minnesota
Supreme Court has explicitly applied section 609.04 to duplicative first-degree criminal-
sexual-conduct convictions based on a single act. See State v. Bowser, 307 N.W.2d 778,
779 (Minn. 1981).
But the legislature has set forth certain exceptions to the prohibition in
section 609.04. At issue here, the district court entered two convictions relying on Minn.
18 Stat. § 609.035, subd. 6 (2016). Section 609.035, subdivision 6, states that “prosecution
or conviction for committing a violation of sections 609.342 to 609.345 with force or
violence is not a bar to conviction of or punishment for any other crime committed by the
defendant as part of the same conduct.” (Emphasis added.)
Williams argues the district court erred when it relied on section 609.035,
subdivision 6, to impose multiple convictions. 9 The state disagrees, arguing that the words
“with force or violence” found in subdivision 6 are critical, and that “any other crime,” in
this context, must mean any crime other “than criminal sexual conduct committed with
force or violence.” Thus, the state argues, two convictions are authorized where, as here,
the defendant is charged with one count of criminal sexual conduct committed with force
or violence, and one count of criminal sexual conduct committed without force or violence.
We are not persuaded by the state’s interpretation of subdivision 6. Our decision in
State v. Nowels, 941 N.W.2d 430 (Minn. App. 2020), rev. denied (Minn. June 16, 2020),
is instructive. In Nowels, the state charged defendant with first-degree aggravated robbery,
possession of a firearm by an ineligible person, and possession of ammunition by an
ineligible person, all resulting from the same incident. Id. at 435. Because Minn. Stat.
§ 609.035, subd. 3 (2016), authorizes multiple convictions and sentences when a defendant
is convicted of possession of a firearm or ammunition and “any other crime,” we were
confronted with deciding “whether the ‘any other crime’ language removes the bar against
9 Williams also challenges the district court’s decision to impose two sentences, which the state argues subdivision 6 authorized. Because we conclude the district court erred when it imposed two convictions, we do not reach the sentencing issue.
19 multiple convictions and sentences” and thereby authorized the district court to convict and
sentence the defendant on all three charges. Id. at 441. We engaged in a careful analysis
of our precedent, likening the case to State v. Mitchell, 881 N.W.2d 558 (Minn. App. 2016)
and State v. Patzold, 917 N.W.2d 798 (Minn. App. 2018).
In Mitchell, we addressed the meaning of “any other crime” in the context of the
burglary exception found in Minn. Stat. § 609.585 (2002). 881 N.W.2d at 564. The
Mitchell court reasoned that “other” means “[d]ifferent from that or those implied or
specified,” and because burglary was the crime specified, “the only reasonable
interpretation of ‘any other crime’ is a crime different from burglary.” Id. (alteration in
original).
In Patzold, we addressed whether Minn. Stat. § 609.035, subd. 6 (2016), the same
exception we address here, authorized the district court to convict and sentence the
defendant for one count of criminal sexual conduct committed with force or violence and
two counts of domestic assault, when all three counts were based on the same conduct. 941
N.W.2d at 809-10. The Patzold court reasoned that although “the jury determined that one
incident . . . constituted two different assault crimes,” a defendant “may not be adjudicated
and sentenced twice [for] the same offense.” Id. at 809-11 (alteration in original)
(quotation omitted). Thus, we concluded the defendant could only be sentenced for one of
the domestic-assault charges, and the district court must vacate the other sentence. Id. at
812.
20 The Nowels court applied these two cases, explaining:
In Mitchell and Patzold, the defendants were charged with two counts of the same crime, but each count was a different means of committing the same crime. Here, Nowels was also charged with two counts of the same crime—unlawful possession—but each count is a different means to commit the crime— possessing a firearm and possessing ammunition. And like Patzold, where we permitted punishment for both the domestic assault and sexual assault, Nowels may be convicted and punished for one unlawful-possession offense and aggravated robbery because aggravated robbery is “any other crime,” under the firearms-offense exception. See Minn. Stat. §§ 609.035, subd. 3, .04. But he cannot be convicted and punished for two possession offenses under the Mitchell and Patzold analytical frameworks.
941 N.W.2d at 442-43 (footnote omitted).
This case is strikingly similar to Nowels. Here, the state charged Williams with two
counts of the same crime—first-degree criminal sexual conduct—but each count was a
different means of committing the crime—one with force and the other upon a physically
helpless victim. We find no fault with the Nowels court’s reasoning. Under our caselaw,
Williams cannot be convicted and punished for two counts of the same crime stemming
from the same conduct. “[A]ny other crime,” as used in the context of subdivision 6, must
mean a crime other than criminal sexual conduct. Accordingly, we reverse in part and
remand to the district court with instructions to vacate one of Williams’s convictions and
the corresponding sentence.
21 DECISION
For the reasons given above, we affirm the jury’s verdict on both counts, but reverse
in part and remand to the district court with instruction to vacate one of the convictions and
corresponding sentence while leaving the guilty verdicts intact.
Affirmed in part, reversed in part, and remanded.