Opinion
No. A05-189.
Filed December 13, 2005.
Appeal from the Clay County, District Court, File No. K8-04-1035.
Mike Hatch, Attorney General, and
Lisa N. Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, (for appellant)
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
On appeal from a conviction of first-degree criminal sexual conduct, appellant argues that there was an insufficient factual basis for his guilty plea because, although he admitted to engaging in intercourse with his girlfriend's 14-year-old niece, a fact established by the victim's pregnancy, appellant did not admit to the use of force or coercion. Appellant also argues that the record does not indicate he knew that he was entering an Alford plea, and the district court failed to properly elicit an Alford plea. We affirm.
FACTS
In April 2004, Moorhead Police were contacted by the mother of a 14-year-old girl, L.R., who informed them that L.R. had given birth to a baby and that the father of the baby was an adult male who had sexually assaulted L.R., appellant Jaime Urrabazo. L.R.'s mother told the police that she and her children had a close relationship with appellant as he was her sister's boyfriend, and the father of her sister's two children who L.R. occasionally babysat. L.R.'s mother told the police that she took L.R. to the doctor after noticing that L.R. was gaining weight. The doctor informed them that L.R. was 24 weeks pregnant. After L.R. gave birth, genetic testing indicated that, by a probability of 99.9%, appellant is the father of L.R.'s child.
During a police interview, L.R. described three incidents of sexual conduct between her and appellant. The first incident occurred sometime in the spring of 2002 when L.R. was babysitting. Appellant, who was home, locked the door and sat beside L.R. on the sofa. Appellant began "sweet talking" L.R. and touching her on top of her clothing in her vaginal area. Appellant left the room briefly but returned and forced himself on top of L.R. Appellant began kissing L.R.'s face and pulled down her pants and underwear. Appellant also began pulling down his pants and boxers. L.R. told appellant that she was a virgin and that she did not want this to happen. Appellant then sexually penetrated L.R.
The second incident occurred approximately one week later. L.R.'s aunt asked her to babysit while she was at a dance. Her aunt told her that appellant would be home shortly to get dressed and would meet her at the dance. When appellant arrived, L.R. told him that she had to go home to get some things while he got ready for the dance. L.R. told the police she did this because she did not want to be alone with appellant. When L.R. returned, appellant locked the door and approached her while she was sitting on the sofa. L.R. told appellant that she did not want to do this and unsuccessfully attempted to push appellant away. Appellant pulled down both of their pants and sexually penetrated L.R.
The final incident occurred in May or June 2002. L.R. and her younger sister were at appellant's home. While L.R.'s sister and appellant's children were napping, appellant asked L.R. to touch his genitalia, and she refused. Appellant then pulled down both of their pants and sexually penetrated L.R. While this was happening, L.R. noticed that her sister was in the hallway watching the sexual assault. When L.R.'s sister asked what they were doing, appellant picked up L.R. and acted like he was wrestling with her. Appellant offered L.R.'s sister money not to tell anyone what she had seen.
On May 26, 2004, appellant was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2002). On August 4, 2004, appellant entered a guilty plea in exchange for an agreement from the state that it would not request an upward departure from the recommended guideline sentence of 144 months. A separate complaint charging appellant with criminal sexual conduct in the second degree was also dismissed as part of the plea agreement. The district court denied appellant's request for a downward departure and sentenced appellant to 144 months in prison and imposed a 5-year conditional-release period. Appellant now appeals, seeking to withdraw his guilty plea.
DECISION
Appellant argues that he should be allowed to withdraw his guilty plea because the plea lacked an adequate factual basis. While appellant challenges the factual basis and procedure for his August 4, 2004 guilty plea, this argument was not raised with the district court. A defendant may withdraw a guilty plea after sentencing by filing "a timely motion and proof to the satisfaction of the court that withdrawal [of the plea] is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Appellant did not file any post-sentencing motions with the district court. Generally, this court will not decide issues which were not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). A review of the record, however, shows that appellant's guilty plea was supported by an adequate factual basis. Appellant argues that the statute under which he was charged requires sexual penetration, personal injury, and the use of force or coercion. See Minn. Stat. § 609.342, subd. 1(e)(i) (2002). Appellant acknowledges that there was sexual penetration, and that under Minnesota law, pregnancy is considered a personal injury under the statute. See Minn. Stat. § 609.341, subd. 8 (2002). Appellant argues, however, that the state failed to provide a factual basis for the element of use of force or coercion. While appellant refused to admit that he forced L.R. to have sex with him, the record contains an adequate factual basis to support the coercion element of the statute. Minn. Stat. § 609.341, subd. 14 (2002) defines "coercion" as
[w]ords or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.
The requirement of coercion is satisfied when an actor causes "a complainant . . . fear while accomplishing sexual contact." State v. Middleton, 386 N.W.2d 226, 230 (Minn. 1986). Here, appellant locked the door, L.R. attempted to resist appellant's advances, and, on one occasion, appellant overcame L.R.'s resistance using physical force. Because these circumstances amount to coercion, appellant's argument fails.
Appellant also argues that the district court erred by failing to follow the proper procedures for an Alford plea. Again, this issue was not raised in the district court and, therefore, will not be addressed on appeal. Roby, 547 N.W.2d at 357. We note, however, that the record shows that appellant did not enter an Alford plea but rather, pleaded straight up to the first-degree criminal-sexual-conduct charge. Therefore, this argument is also without merit.