Opinion
A18-0288
07-15-2020
STATE of Minnesota, Respondent, v. Brian James WILKIE, Appellant.
Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, Saint Paul, Minnesota; and Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Appellate Public Defender, Saint Paul, Minnesota, for appellant.
Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, Saint Paul, Minnesota; and Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Appellate Public Defender, Saint Paul, Minnesota, for appellant.
OPINION
McKEIG, Justice. Following a bench trial, appellant Brian Wilkie was convicted of attempted third-degree criminal sexual conduct. Minn. Stat. § 609.17, subd. 1 (2018) ; see Minn. Stat. § 609.344, subd. 1(b) (2018). On appeal, Wilkie argued that the State failed to prove that he committed an act that was "a substantial step toward, and more than preparation for" the commission of third-degree criminal sexual conduct. A divided panel of the court of appeals affirmed Wilkie's conviction. State v. Wilkie , 924 N.W.2d 38 (Minn. App. 2019). Because the State proved that Wilkie committed an act that was "a substantial step toward, and more than preparation for" the commission of third-degree criminal sexual conduct, we affirm.
FACTS
The facts are not in dispute. In the fall of 2016, the Internet Crimes Against Children Task Force started a joint operation in Owatonna to investigate individuals seeking sexual contact with children. Special Agent John Nordberg created a decoy profile of a 14-year-old boy, "JT," on an online dating application.
We will refer to Special Agent Nordberg as JT when discussing the communications between Wilkie and the undercover agent.
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On November 14, 2016, Wilkie sent a message to JT. Within 5 minutes, Wilkie asked JT if he was free to meet later that night, sent JT explicit photographs, and requested explicit photographs in return. Although the profile listed JT as 18 years old, JT told Wilkie that he was only 14 years old and twice asked Wilkie if that was all right. Wilkie responded, "Yup." Wilkie engaged JT in conversation, asking him about his sexual experiences and preferences. Within an hour, Wilkie and JT had agreed to meet the following afternoon to have sex. Wilkie said that he would pick up JT somewhere other than at his house, so JT suggested they meet at the power plant in Owatonna.
In the 24 hours following their initial communication, Wilkie asked JT for "pics" or "nudes" more than 15 times and continued to ask if JT was available to meet up. Wilkie asked for reassurance that JT would not "get [him] in trouble" and that it was "not going to be a trap." JT reassured Wilkie.
On November 15, JT texted Wilkie to say that he was at school but would be leaving in about an hour. Around 1:30 p.m., Wilkie drove toward the power plant in anticipation of meeting JT. While in the car, Wilkie spoke to an agent posing as JT on the phone. Wilkie told JT, "I'm actually on the way to the power plant so um, I hope you're not trying to get me in trouble cuz I don't want to get in trouble cuz I hate cops." He continued, "[A]s long as you don't say anything cuz you know what it is, cuz I'm older than you so I don't want ... neither one of us get in trouble, okay?" JT reassured him again. Wilkie said, "Okay, so but you want to meet though, have fun?" JT agreed.
They resumed texting and discussed how they could be the most discreet. Wilkie did not want JT to be seen getting into his car, and JT did not want to drive around while he was skipping school. They ultimately agreed that the best place for them to meet that afternoon was at JT's home, before his mother returned that evening. JT gave Wilkie the address of a house that agents use during undercover operations. Around 1:40 p.m., Wilkie parked in front of JT's home. At JT's direction, Wilkie walked up to the house and knocked on the door, believing that he would have penetrative sex with JT once he was inside. Officers answered the door and arrested him.
Relevant to this appeal, Wilkie was charged with attempted third-degree criminal sexual conduct. Minn. Stat. § 609.17, subd. 1 ; see Minn. Stat. § 609.344, subd. 1(b). The attempt statute provides that "[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime." Minn. Stat. § 609.17, subd. 1 (emphasis added). Wilkie pleaded not guilty and waived his right to a jury.
At trial, the State presented evidence consistent with the facts discussed above. At the close of the State's case-in-chief, Wilkie made a motion for a judgment of acquittal on the attempt charge, arguing that his conduct did not constitute a "substantial step" toward the uncompleted offense of third-degree criminal sexual conduct that involved "more than preparation." The district court denied Wilkie's motion. Following the denial of the motion for acquittal, the defense rested. The district court found Wilkie guilty on all counts. A divided panel of the court of appeals affirmed. Wilkie , 924 N.W.2d 38. We granted Wilkie's petition for review.
ANALYSIS
Wilkie argues that the State failed to prove that he committed an act that was "a substantial step toward, and more than preparation for" the commission of the uncompleted offense of third-degree criminal sexual conduct. As part of his argument, Wilkie contends that the Legislature incorporated the holding of State v. Dumas , 118 Minn. 77, 136 N.W. 311, 314 (1912), into the attempt statute, Minn. Stat. § 609.17, when it included the phrase "a substantial step toward, and more than preparation for." According to Wilkie, Dumas instructs that, to prove attempt, it is not sufficient to show that the defendant took just any step toward the commission of an offense; instead, the step must be an overt act, the nature of which directly tends in some substantial degree to accomplish the intended offense. Wilkie also cites State v. Johnson , 243 Minn. 296, 67 N.W.2d 639, 642 (1954), for the proposition that, in the context of an uncompleted sex offense, an attempt "begins with the initial attack." Finally, he claims that, in light of Johnson , it is clear that a person's travel to, or arrival at, the location of the intended crime is not a substantial step toward committing criminal sexual conduct.
The State contends that Wilkie's reliance on Johnson is misplaced because it involved the uncompleted offense of assault with intent to rape. See 67 N.W.2d at 641–42. According to the State, the uncompleted offense in this case (sexually penetrating a child who is too young to consent) is materially distinguishable from the uncompleted offense in Johnson because the offense here does not require "an attack." The State also observes that courts in other jurisdiction have affirmed attempt convictions based on evidence that is very similar to the evidence presented in this case. See, e.g. , State v. Peterman , 280 Kan. 56, 118 P.3d 1267, 1273 (2005) (holding that the defendant's act of driving to meet a third party "to pick up a [fictitious] child for the purpose of sexual intercourse constituted an overt act beyond mere preparations"); State v. Reid , 393 S.C. 325, 713 S.E.2d 274, 277 (2011) (holding that "an agreement to meet a fictitious minor at a designed place and time, coupled with traveling to that location, may constitute evidence of an overt act, beyond mere preparation, in furtherance of the crime").
We begin our analysis by considering Wilkie's contention that the statutory phrase "a substantial step toward, and more than preparation for" incorporates the holding of Dumas . We considered a similar argument in State v. Degroot , No. A18-0850, 946 N.W.2d 354 (Minn. July 15, 2020).
In Degroot , we explained that the first step in statutory interpretation is to determine whether the statute's language, on its face, is unambiguous. Id. , 946 N.W.2d at 359. Because our preliminary analysis was limited to the plain language of the statute, we did not consider Dumas . See id. , 946 N.W.2d at 360. Instead, we considered the common and approved usage of the word "preparation." We explained that "prepare" means "[t]o make ready beforehand for a specific purpose, as for an event or occasion." Id. (quoting The American Heritage Dictionary of the English Language 1391 (5th ed. 2018)). Applying that definition, we concluded that "the only reasonable interpretation of the phrase ‘more than preparation for,’ is that it excludes substantial steps that occur beforehand to make ready for the intended offense." Id. We also concluded that the phrase does not require the State to prove a substantial step occurred at the time and place of the intended crime. Id. For the reasons explained in Degroot , we find that the statute is unambiguous and apply its plain meaning. See id. , 946 N.W.2d at 360-61.
Next, we consider Wilkie's contention that it is "well settled" under Minnesota law that "while a sexual act on the part of the defendant is not required," an attempted sex offense "begins with the initial attack." For support, Wilkie points to Dale v. State , 535 N.W.2d 619 (Minn. 1995), State v. Peterson , 262 N.W.2d 706 (Minn. 1978), and State v. Johnson , 243 Minn. 296, 67 N.W.2d 639 (1954). Wilkie's reliance on these cases is misplaced.
"[A]ttempt is an inchoate crime that must be connected to an uncompleted substantive crime that was attempted. This connection is necessary to determine whether a defendant took a ‘substantial step toward’ committing the uncompleted crime ...." State v. Noggle , 881 N.W.2d 545, 549 (Minn. 2016). Dale , Peterson , and Johnson all concern attempts to complete substantive offenses that include an element of force or assault; this case does not. See Degroot , No. A18-0850, 946 N.W.2d at 362 n.12 ; Johnson , 67 N.W.2d at 641.
Wilkie maintains that the actor's conduct must plainly identify the nature of the uncompleted offense. We disagree. Articulating such a rule would transform the modified substantial-step standard adopted by our Legislature into one of the proximity approaches used in other jurisdictions. See Degroot , No. A18-0850, 946 N.W.2d at 361 n.10 (describing the proximity approaches to attempt liability). As we have explained, "no definite rule, applicable to all cases, can be laid down as to what constitutes an [attempt] within the meaning of our statute. Each case must depend largely upon its particular facts and the inferences which the jury may reasonably draw therefrom." Id. , 946 N.W.2d at 363 (quoting Dumas , 136 N.W. at 314 ). Although the substantial step must be strongly corroborative of the actor's criminal purpose, it need not objectively reveal the nature of the intended crime. See Model Penal Code § 5.01(2) (Am. Law Inst. 1985).
Finally, we review the sufficiency of the State's evidence. On appeal, we ask whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit a finder of fact to conclude that the defendant was guilty of the charged offense beyond a reasonable doubt. State v. Townsend , 941 N.W.2d 108, 110 (Minn. 2020).
During a 1-day trial, the State presented the testimony of five law enforcement officers involved with the decoy operation and Wilkie's arrest. The officers authenticated the messages exchanged between Wilkie and officers posing as JT, the audio recording of Wilkie's phone conversation with JT, and a video recording of Wilkie's arrest, which depicts Wilkie walking up to the house and knocking on the door. The logs, recordings, and transcripts of Wilkie's conversations with the decoy were admitted into evidence. The State's evidence also included copies of the explicit photographs that Wilkie sent to JT.
Wilkie does not dispute that his intent was to have penetrative sex with a 14-year-old boy, and the sufficiency of the evidence establishing Wilkie's intent was not challenged on appeal. With that intent, Wilkie pursued a sexual conversation with an individual he believed to be 14 years old. Even after agreeing to meet the following day, Wilkie tried to convince JT to meet later that night and repeatedly requested nude photographs from JT.
The next day, the decoy confirmed that he was leaving school and could meet with Wilkie. Wilkie drove toward their designated meeting spot. While driving, Wilkie spoke to the decoy on the phone, again asking for assurances that the decoy would not get Wilkie in trouble. After discussing how to avoid detection, Wilkie agreed that the best location for them to meet was at JT's home while JT was alone. Wilkie asked for JT's address and drove there. Approximately 10 minutes later, Wilkie parked in front of JT's home. At JT's direction, Wilkie walked up to the house and knocked on the door, believing that he would have penetrative sex with JT once he was inside.
When viewed in a light most favorable to the verdict, the evidence proves beyond a reasonable doubt that Wilkie intended to commit the crime of third-degree criminal sexual conduct and that he committed an act which was a substantial step toward, and more than preparation for, the commission of the intended crime. Wilkie formed an intent to commit the offense, he took a substantial step toward the offense by arranging to meet JT, and he moved beyond preparation when he walked up to JT's house and knocked on the door.
Standing alone, knocking on a door is an innocuous act. But when considered alongside the undisputed facts of this case, Wilkie's actions strongly corroborate that his criminal purpose was to meet a 14-year-old child in a private location to have penetrative sex. Following a modified substantial-step approach, we do not need to inquire into how close Wilkie came to committing his intended crime. See Degroot , No. A18-0850, 946 N.W.2d at 361 n.10. Based on this record, the court of appeals did not err when it concluded that the State presented sufficient evidence to support Wilkie's attempt conviction.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.