State v. Stempfley

900 N.W.2d 412, 2017 WL 3496403

• Court: Supreme Court of Minnesota
• Decided: August 16, 2017
• Docket: A15-1247; A15-1255
• Status: Published

Opinions

OPINION

CHUTICH, Justice.

A jury acquitted respondent Randall Samuel Stempfley of third- and fourth-degree criminal sexual conduct as a principal, but found him guilty of third- and fourth-degree criminal sexual conduct on an accomplice-liability theory. At sentencing, Stempfley moved for a downward dis-positional departure, arguing in part that he played a “minor or passive role”, in the crime. The district court granted Stempf-lejfs motion, stayed execution of a 140-month sentence for 15 years, and required Stempfley to comply with numerous probationary conditions. A divided panel of the court of appeals affirmed.

The State petitioned for review, arguing that the district court did not make findings of fact on the departure grounds and, alternatively, that the record does not support the district court’s finding that Stempfley played a minor or passive role in the crime. The State does not argue that the sentencing factor of a minor or passive role in the crime cannot be used to support a dispositional departure. We affirm.

FACTS

On October 30, 2012, B.D., age 14, was visiting friends in Bena. Tina Smith, then 24 years old, arrived and invited B.D. to come drink alcohol with her across the street at Smith’s grandmother’s house. B.D. and a friend accepted the invitation and drank from a bottle of rum with Smith and her boyfriend, Stempfley, who was 38 years old. Eventually B.D. and her friend both left. Before they left, Smith told B.D. to call her later, giving her Stempfley’s phone number. Smith answered when B.D. called about 30 minutes later, and invited B.D. to a cabin rented by Stempfley.

Late that night, B.D. walked about a half mile to the cabin, a single-room dwelling furnished with a bed and a futon. B.D., Smith, and Stempfley drank from á liter bottle of rum that Stempfley had purchased.¹ No one else was present. B.D. estimated that she consumed 10 or 11 shots of rum. After about two hours of drinking, Stempfley and Smith began kissing on the bed. B.D. remained on the other side of the bed and texted on her phone. B.D. eventually moved to the futon. Later, when Stempfley and Smith had stopped kissing and B.D. felt tired, B.D. returned to the bed to lie down.

Accounts conflict, even among the State’s witnesses, about what happened next. B.D. testified at trial to the following. Smith got on top of her and began kissing her, pulled her pants down, and engaged in oral sex. B.D. told Smith, “[Y]ou need to stop. This is weird.” She testified that while this occurred, Stempfley was lying next to them on the bed. At some point, B.D. testified, Stempfley held one or both of her hands and penetrated her vagina with his fingers. B.D. testified that Stempfley’s arms were over her; he was “holding one hand”; and that she was “weirded out,” “was trying to get them off [her],”, and “was trying to grab [her] clothes.” According to B.D., while Stempf-ley continued to hold her hand, Smith penetrated B.D.’s vagina with her tongue. B.D. testified that she was scared.

On cross-examination, B.D. admitted telling a friend that she did not “rémember much of what happened." She also testified that she did not remember how her clothes were removed and that it was “possible” that she had removed them herself. The State also entered into evidence at trial a recording of a statement that B.D. .gave to the Cass County Sheriffs Office shortly after the assault. In that statement, B.D. said that she got on the bed to lie down. She blacked out, and when she awoke, Stempfley was holding her hands down, while Smith was “going down” on her. She stated that Smith then held her hands while Stempfley digitally penetrated her.

Smith testified for the State at Stempf-ley’s trial,² Her account differed from B.D.’s. According to Smith,-when she and B.D. started kissing, B.D. was not wearing a shirt; then B.D. took off her own pants and eventually all of her clothes. B.D. kissed Smith as well and did not resist or say no. Stempfley was on the bed next to them, and while Smith engaged in oral sex with B.D., Smith “asked him to grab [B.D’s] arms and he did.” When asked why, she wanted Stempfley to hold B.D.’s arms, Smith replied, “I don’t know.” She testified that, other than holding her arms, Stempf-ley did not touch B.D., and that neither Smith nor Stempfley used force against B.D.

During. cross-examination, defense counsel used a statement that Smith had given to the Sheriffs Office to impeach her testimony. In that statement, Smith said that Stempfley did not hold BJD.’s arms. .When asked at trial to explain the discrepancy between her prior statement and her trial testimony, Smith testified that her earlier statement was intended to protect Stempf-ley, who was her boyfriend at the time.

Stempfley did not testify at the trial, but he did give a recorded statement to the Sheriffs Office three days after the events at the cabin, which.the State entered into evidence and played for the jury at trial. He told investigators that when Smith and B.D. started kissing, he rolled over to the other side of the bed and watched television. Stempfley also stated that he was uncomfortable with having B.D. at the cabin because she had told him and. Smith that she was 15 years old.

B.D. and Smith both testified that the three eventually fell asleep-on the bed. Thé next day, B.D. was unable to find a ride home until early afternoon, so she spent the morning with Smith and Stempfley. B.D. testified that Stempfley said to her, “Oh, wow! That was a crazy night. That was so fun.”

Two days later, B.D, went to school. She used a phone in the school’s office to call her mother, and a school employee overheard her describing the assault. The employee reported the incident, which led to criminal charges against Stempfley and Smith.

Stempfley was charged,with five counts: (1) .third-degree criminal sexual conduct, Minn, Stat. § 609.344, subd. 1(b) (2016) (“sexual penetration with another person ... [who] is at least 18 but less than 16 years of age and the actor is more than 24 months older than the complainant”); (2) fourth-degree criminal sexual conduct, Minn. Stat. § 609.345, subd. 1(b) (2016) (“sexual contact with another person ... [who] is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant”); (3) furnishing alcohol to a person under 21 years old, Minn. Stat. § 340A.503, subd. 2(1) (2016); (4) aiding and abetting third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(b); see Minn. Stat. § 609.05, subd. 1 (2016) (“intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime”); and (5) aiding and abetting fourth-degree criminal sexual conduct, Minn. Stat. §§ 609.05, subd. 1, 609.345, subd. 1(b). Stempfley pleaded not guilty to all charges.

The jury acquitted Stempfley of counts 1 and 2, committing criminal sexual conduct as a principal, but found him guilty of counts 4 and 5, third- and fourth-degree criminal sexual conduct as an accomplice. The jury also found Stempfley guilty of furnishing alcohol to a minor.³

By finding Stempfley not guilty of criminal sexual conduct as a principal, the jury necessarily found that Stempfley did not engage in either sexual penetration or sexual contact with B.D. See Minn. Stat. §§ 609.341, subds. 11, 12 (2016) (defining “sexual contact” and “sexual penetration”); 609.344, subd. 1(b) (defining third-degree criminal sexual conduct), 609.345, subd. 1(b) (defining fourth-degree., criminal sexual conduct). By finding Stempfley guilty of aiding and abetting Smith’s .acts of sexual penetration and sexual contact, .the jury found that he played an “intentional role in aiding” the commission of these crimes and made “no reasonable effort” to prevent them.⁴

Based on Stempfley’s criminal history score of six, the Pre-Sentence Investigation Report recommended an executed sentence of 140 months—the presumptive duration—for third-degree criminal sexual conduct. Minn. Sent. Guidelines 4.B. Stempfley’s counsel argued, and the State agreed, that the third- and fourth-degree convictions arose out of ¿ single behavioral incident. The State accordingly requested that the court sentence' Stempfley for third-degree criminal sexual conduct and sought an executed sentence of 168 months, the upper -limit of the presumptive sentencing range. Id.

Stempfley’s counsel moved for a downward dispositional departure,⁵ arguing that Stempfley played a “minor or passive role” in the crimes and -that he “is particularly amenable to probation as shown by his criminal record wherein he has not accumulated significant new crimes for several years.”⁶ At the sentencing hearing, Stempfley’s counsel argued that Stempf-ley’s role was minor or passive because “Tina Smith was already doing her act,” and, in only holding. B.D.’s hand, Stempf-ley’s conduct “didn’t seem like it was something that materially added in that endeavor since she was already doing it.”

The district court made the following findings:

[T]his was a conviction for an action that it’s pretty clear to the Court having dealt with Ms. Smith’s case and everything' that went on there and then the trial that Ms. Smith was the primary aggressor.

I’m not quite sure what the words that [defense counsel] used, but I liked them when I heard them, and that is basically the train had already left the station before Mr. Stempfley got involved to the extent that he did.

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Third-degree criminal sexual conduct, the range is 119 to 168, and the middle of the box, as suggested by the folks down south, is 140 months. The Court is going to impose 140 months, but I’m going to stay execution of that absolutely based on the request ..., the minor or passive role in the crimes.

Had you been found guilty of that, Mr. Stempfley, which is what the jury decided, you would have been looking at the whole thing, but that’s not what they found you guilty of at all. They found you guilty of holding one hand. The witness couldn’t decide if it was one hand or two, but there was certainly some involvement, and the stay on that 140 months is going to be for a period of 15 years....

The court attached numerous probationary conditions to the stay.⁷ For the crime of furnishing alcohol to a minor, the district court sentenced Stempfley to 365 days incarceration and waived the $50 minimum fine.

A divided court of appeals affirmed. State v. Stempfley, Nos. A15-1247, A15-1255, 2016 WL 3884326, at *7 (Minn. App. July 18, 2016). The court of appeals held that an offender’s minor or passive role is an adequate reason for a downward dispo-sitional departure and that the record supported the district court’s finding that Stempfley played a minor or passive role in the third- and fourth-degree criminal sexual conduct. Id. at *5. The court noted that the jury found that “Stempfley had no direct sexual contact with B.D.”; the record supported the district court’s finding that Stempfley became involved only after Smith had initiated the crime; and, although “consent is not a defense [to Stempfley’s crime], it matters when considering whether [Stempfley] played a minor or passive role in the offense.” Id.

ANALYSIS

I.

We first consider the State’s claim that the district court did not make adequate findings of fact to support the departure grounds. The Minnesota Rules of Criminal Procedure, the Minnesota Sentencing Guidelines, and Minnesota Statutes section 244.10, subdivision 2 (2016), all require the district court to make a record of its reasons for any deviation from the Guidelines. Minn. R. Crim. P. 27.03, subd. 4(C) (“[T]he court must make findings of fact supporting the departure.”); Minn. Sent. Guidelines 2.D.I.C. (“[T]he court must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.”); Minn. Stat. § 244.10, subd. 2 (“[T]he district court shall make written findings of fact as to the reasons for departure from the Sentencing Guidelines in each case in which the court imposes or stays a sentence that deviates from the Sentencing Guidelines applicable to the case.”).⁸

Here, the district court made several statements relevant to Stempfley’s comparative culpability: “Smith was the primary aggressor,” the “train had already left the station before Mr. Stempfley got involved to the extent that he did,” and the jury found Stempfley “guilty of holding one hand.” The State and the dissent characterize these statements as “offhand” comments that do not rise to the level of factual findings. We disagree. Although these findings could have been more thorough and precise, they nonetheless provide us with the information that we need to undertake a meaningful review of the sentencing decision.⁹ Consequently, the district court made adequate findings of fact.¹⁰

II.

The State argues that the record does not support the district court’s finding that Stempfley played a minor or passive role. We disagree.

“We review a district court’s decision to depart from the presumptive guidelines sentence for an abuse of discretion.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (citation omitted). Under our precedent and the common meaning of “minor” or “passive,” the district court did not abuse its discretion in concluding that Stempfley played a minor role in the commission of this crime.

In State v. Carson, 320 N.W.2d 432, 438 (Minn. 1982), we upheld a downward dura-tional departure based on the offender’s minor or passive role. There, the defendant was one of two women who robbed a drug store. Id. at 434. The other woman carried a gun and struck a pharmacist, on the head, while Carson “was more passive.” Id. We affirmed the district court’s downward durational departure for her conviction for aggravated robbery. Id. at 438. We stated that “[w]hether or not the defendant played a passive role in the offense is the type of factual issue best decided at the trial court level in most cases.” Id.

Our analysis in Carson, and the common-sense meaning of “minor” and “passive,” show that whether a defendant’s role in an offense was minor or passive depends on a comparison of the defendant’s conduct to the conduct of other participants in the crime. See id. at 434, 438; The American Heritage Dictionary of the English Language 1122 (5th ed. 2011) (defining “minor,” in part, as “[l]esser or smaller in amount, extent, or size”); id. at 1289 (defining “passive,” in part, as “[ajccepting or submitting without objection or resistance; submissive”); see also State v. Bendzula, 675 N.W.2d 920, 924 n.5 (Minn. App. 2004) (concluding that defendant could not have played a minor or passive role in the crime because he “was the sole actor”).

When we compare Stempfley’s role to that of Smith, the record supports the district court’s finding that Stempfley played a minor role here. Smith was the one who started drinking with B.D., invited B.D. to the cabin, and initiated the sexual penetration that -is the basis for Stempfley’s conviction. Stempfley’s conduct—not objecting to B;D.’s visit to the cabin or her drinking and holding one or both of B.D.’s hands—was comparatively minor. According to Smith’s testimony and the jury’s verdict, Stempfley did not have any sexual contact with B.D. Nor did he prompt or encourage .Smith to begin sexual contact with B.D. Smiths testified that Stempfley did not become involved in Smith’s sexual penetration of B.D. until Smith asked' him to hold B.D.’s hand, which is consistent with a finding of passivity; These facts are sufficient to 'Support the conclusion that Stempfley’s offense was significantly less serious than the typical case. . .

The State and'the disséñt' assert that Stempfley’s role cannot be minor or passive because he prevented B.D.’s escape while the assault occurred. The district court did not find that by holding B.D.’s hand Stempfley prevented her escape, and witness testimony on this issue was conflicting.¹¹ The district court, which ‘“sits with a unique perspective on all stages of a case, ... [was] in the best position to evaluate [Stempfley’s] conduct,’ ” including the question of whether Stempfley prevented B.D.’s escape. Solberg, 882 N.W.2d at 626 (quoting State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998)). The district court was able to observe the witnesses’ testimony and demeanor, as. well as any physical gestures that B.D. used to describe Stempfley’s conduct. We defer to the district court’s decision and refrain from conducting our own factfinding on appeal, especially when the record contains inconsistent evidence.

The State also argues that affirmance here would effectively establish, a categorical rule that offenders who are convicted as accomplices will always be entitled to a departure for their minor or passive roles. The law clearly holds otherwise. Accomplices are “legally responsible” for the acts of their codefendants, and a categorical rule that a sentencing departure may rest solely on an offender’s status as an accomplice would be inconsistent with that principle. State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985).

'Moreover, the State’s argument misreads the district court’s findings, which refer specifically to the unique facts and circumstances of Stempfley’s offense. The district court’s findings that Smith was the “primary aggressor” and that she began the sexual penetration “before Mr. Stempf-ley got involved to the extent that he did” show that the court’s departure decision was based upon its review of Stempfley’s conduct, not his status as an accomplice. As the law requires, the district court’s departure analysis focused on the facts of this particular case. Cf. State v. Leja, 684 N.W.2d 442, 452 (Minn. 2004) (stating that when evaluating a durational departure request, courts should examine “each participant’s conduct in relation to the crime”).

In sum, we are bound to uphold the district court’s evaluation of the facts and its discretionary sentencing decision unless our review of the record reveals an abuse of that discretion. Applying this deferential standard, we conclude that the district court acted within its broad discretion here. The trial testimony is conflicting and must be interpreted in light of the jury’s verdict, which rejected a large portion of the State’s case. Without the benefit of observing witness testimony and the opportunity to weigh credibility, we cannot say that the district court abused its discretion by finding that Stempfley’s minor or passive role in the offense was. a substantial and compelling reason to depart from the Guidelines. Even if we might have come to a different conclusion had we been weighing the evidence ourselves, that is not the applicable standard upon appellate review.¹²

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

. MCKEÍG, J„ took no part in the consideration or decision of this case.

1 . Smith testified that she did not see Stempf-ley drinking out of the bottle of rum and that only she and B.D. shared it. B.D. testified that all three of them were drinking from the bottle.

2 . Smith pleaded guilty to third-degree criminal sexual conduct before Stempfley’s trial occurred.

3 . For this offense, the district court sentenced Stempfley to 365 days in jail.

4 . The district court instructed the jury that "[t]he defendant is guilty of a crime committed by another person when the defendant has played an intentional role in aiding the commission of the crime and made no reasonable effort to prevent the crime before it was committed.”

5 . A dispositional departure is one that stays a presumptively executed sentence, or executes a presumptively stayed sentence. See Minn. Sent. Guidelines l.B.5.a. A durational departure, by .contrast, increases or decreases the length of the presumptive sentence. Id. at 1.B.5.b. As discussed in State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016), dispositional departures focus on the. characteristics of the offender and durational departures focus on the seriousness of the offense itself.

6 .According to the Pre-Sentence Investigation Report, the most recent felony in Stempfley's criminal-history report, a third-degree assault, occurred in 2007.

7 , Among other things, the conditions included the following requirements: (1) submit to a psychosexual evaluation and follow the recommendations from the evaluation; (2) abstain from the use of alcohol or controlled substances; (3) have no contact with Tina Smith, B.D., or the other minor who had accompanied B.D. to Smith’s grandmother’s house; (4) have no contact with minor females until the recommendations of the psychosexual evaluation are completed; and (5) not use or possess any pornographic material.

8 . Here, the district court did not file a departure report. The Guidelines require that the reasons for departure "be stated in the sentencing order or recorded in the departure report and filed with the Commission.” Minn. Sent. Guidelines 2.D.I.C. Reporting departures to the Minnesota Sentencing Commission enables careful tracking of departures and furthers the Guidelines’ goal of uniformity in sentencing. See Tucker v. State, 799 N.W.2d 583, 586 (Minn. 2011). Although failure to file a departure report is not itself sufficient grounds for reversal, we strongly encourage the district courts to file them. See also Minn. R. Crim. P. 27.03, subd. 4(C).

9 . The dissent asserts that the district court’s findings were inadequate because they did not demonstrate the existence of "identifiable, substantial, and compelling circumstances” warranting departure. Minn. Sent. Guidelines 2.D.I. But the district court did identify the substantial and compelling circumstances: Stempfley’s minor or passive role in the crimes. This reason is explicitly included in the Guidelines’ list of "factors that may be used as [a] reason[] for departure,” id. at 2.D.3.a.(2), and has been upheld in our own precedent as a reason for departure, see State v. Carson, 320 N.W.2d 432, 434, 438 (Minn. 1982). Thus, when adequately supported by the record, a minor or passive role is an "identifiable, substantial, and compelling” reason for departure.

Certainly, the district court must state on the record those facts that make the offender’s role minor or passive, and that is what the district court did here. It identified a substantial and compelling reason for departure—Stempfley's minor or passive role in the crimes—and made findings of fact supporting that reason: Smith was the primary aggressor, she began the assault without Stempfley’s assistance or participation, and Stempfley's conduct in "holding one hand” was the basis for the guilty verdict. These findings of fact were the basis for the court's conclusion that Stempfley’s role was minor or passive, so we must examine the record to ensure that it contains support for these findings.

10 .The State, echoing the dissent at the court of appeals, argues that the district court actually relied upon the disparity between the sentence that Smith received and the sentence that the State sought for Stempfley. We take the district court at its word that it stayed Stempfley's sentence based on his "minor or passive role” in the offense and not because of the sentence that Smith received.

11 . Smith testified that B.D. kissed her in response and that no force or coercion occurred . during the sexual conduct,, Further, B.D.’s testimony that she was trying to .escape was embedded- in a description of Stempfley digitally penetrating her. But the jury acquitted Stempfley of engaging in digital penetration, and it is especially difficult to discern on .appellate review which parts of B.D.’s testimony the jury might have believed.

12 . The State also argues that the court of appeals erred by considering the near-decayed status of two of Stempfley’s prior felonies as a factor that "exaggerated” his criminal history score and provided further "support” for the departure. Stempfley, 2016 WL 3884326, at *6. When it considered the aged prior felonies, the court of appeals had • already decided that the district court’s reasons for departure were supported. by the record. Thus, the court of appeals’ discussion of this issue was dicta. But, to the extent that this language could be read as discounting prior felonies before they reach the 15-year decay threshold specified by the Guidelines, such a view does not reflect the law. See Minn. Sent. Guidelines 2.B.I.C.; see also State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981) ("General disagreement with the Guidelines of the legislative policy on which the Guidelines' are based does not justify departure.”).