State of Minnesota, Respondent, vs. Billy Joe Phillips, Appellant.

State of Minnesota, Respondent, vs. Billy Joe Phillips, Appellant. A04-170, Court of Appeals Unpublished, January 24, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-170

 

State of Minnesota,

Respondent,

 

vs.

 

Billy Joe Phillips,

Appellant.

 

Filed January 24, 2006

Affirmed in part, reversed in part, and remanded Willis, Judge

 

Goodhue County District Court

File No. K7-03-182

 

Mike Hatch, Attorney General, Thomas R. Ragatz, John S. Garry, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Stephen N. Betcher, Goodhue County Attorney, 454 West Sixth Street, Red Wing, MN  55006-2475 (for respondent)

 

John M. Stuart, State Public Defender, Sean Michael McGuire, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this appeal from convictions of criminal sexual conduct and an order denying a postconviction petition, appellant argues that he was denied effective assistance of counsel, that the statement he gave to police was coerced and involuntary, and that the record is insufficient to support the convictions.  He also argues that the district court violated his Sixth Amendment rights under Blakely v. Washington by imposing a sentence with an upward durational departure based on judicially found aggravating factors.  We affirm in part, reverse in part, and remand.

FACTS

In 1996 and early 1997, appellant Billy Joe Phillips lived with his then-wife, Ruth Hunecke, and her three children in Goodhue.  B.H., Hunecke's daughter and youngest child, turned six in September 1996.  Shortly before her birthday, B.H. complained about her "private" hurting, and Hunecke took her to the doctor.  The doctor noted that her vagina was "raw" and that possible causes were bubble baths or B.H.'s "experimenting." 

On December 31, 1996, Hunecke saw Phillips masturbating under a blanket on the living-room couch while B.H. sat in a chair nearby.  Hunecke later asked B.H. about the incident and if Phillips ever touched her.  B.H. told her that Phillips had not touched her but that Phillips watched pornographic movies with her.  Hunecke confronted Phillips, and Phillips moved out in February 1997.  Phillips and Hunecke were divorced in June 1997. 

            Two weeks after Phillips moved out, the police informed Hunecke that Phillips had hired someone to kill her.  Hunecke told the police about the December 31, 1996 incident.  She also told social services about the incident, and B.H. was subsequently interviewed by a social worker.  B.H. gave vague and conflicting statements regarding Phillips's sexual conduct with her.

            In December 2002, B.H. watched a movie in which a football team raped a young girl.  The next day, B.H. told a peer group at school about the sexual abuse she suffered when she lived with Phillips.  School officials contacted authorities, and B.H. was interviewed by another social worker.  B.H. was referred to Midwest Children's Resource Center (MCRC), where, later that month, she was interviewed and given a physical examination.  The abuse that B.H. described in the MCRC interview was more extensive than that she described in the 1997 interview.

            In January 2003, Phillips was charged with three counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a), (g), (h)(iii) (2002); three counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a), (g), (h)(iii) (2002); and two counts of fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(1), (2) (2002).  After Phillips was arrested, Officers Peter Badker and Pat Thompson interrogated him.  Phillips eventually confessed that after having "a couple beers," he touched and massaged B.H.'s buttocks with his hand.  He also confessed to masturbating under a blanket while B.H. was in the room.

             After a bench trial, the district court found Phillips guilty of all eight charges.  The district court imposed a 172-month sentence on the first charge, a double upward durational departure from the 86-month presumptive sentence.  The district court supported the upward departure by finding several aggravating factors.

Phillips petitioned for postconviction relief, arguing that he received ineffective representation because his counsel did not challenge the admission of his statement on Miranda grounds.  The district court denied Phillips's request.  On appeal, Phillips challenges his convictions, his sentence, and the denial of postconviction relief.

D E C I S I O N

I.

We first address Phillips's argument that the record is insufficient to support his convictions.  When an appellant challenges the sufficiency of the evidence, we review the record to determine "whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt."  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  We view the record in the light most favorable to the conviction.  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, and we assume that the fact-finder believed the evidence supporting the state's case and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  Our review of bench trials is the same as our review of jury trials when determining the sufficiency of the evidence.  Davis, 595 N.W.2d at 525.

            The district court found Phillips guilty of all counts with which he was charged.  To support Phillips's first- and second-degree criminal-sexual-conduct convictions, the evidence must show that Phillips engaged in "sexual penetration" and "sexual contact" with B.H. and that Phillips was more than 36 months older than B.H., that he had a significant relationship with B.H., and that the "sexual abuse involved multiple acts committed over an extended period of time."  Minn. Stat. §§ 609.342, subd. 1(a), (g), (h)(iii), .343, subd. 1(a), (g), (h)(iii) (2002).  The evidence must show that Phillips "engage[d] in nonconsensual sexual contact" and that he "engage[d] in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present" to support his convictions of fifth-degree criminal sexual conduct.  Minn. Stat. § 609.3451, subd. 1(1), (2) (2002).

            The state presented substantial evidence supporting Phillips's convictions.  B.H. testified that on numerous occasions when Hunecke was not home, Phillips (1) watched pornographic movies with her, (2) penetrated her vagina with his fingers and penis, (3) penetrated her anus with his penis, and (4) penetrated her mouth with his penis.  She demonstrated the abuse that she described using dolls.  

Hunecke testified that she frequently left B.H. and her brothers at home with Phillips while she was at work or running errands, that she and Phillips owned pornographic movies, and that B.H. had complained about "her private hurting."  She also testified that she saw Phillips masturbating on the couch in their living room while B.H.then six-years oldsat in a chair watching television and that a week later, when Hunecke asked B.H. about the incident, B.H. told her that Phillips and B.H. watched "movies with guys and girls in it with no clothes on . . . playing with each other and themselves."  Hunecke testified that B.H. was unusually "clingy" and frequently wanted to accompany her when she ran errands. 

            B.H.'s brother, T.H., testified that on one occasion, he opened the door to Phillips's bedroom and saw Phillips and B.H. sitting on the bed.  T.H. testified that B.H. looked really sad and had a "get me out of here" look on her face and that Phillips sternly told T.H. to get out and followed T.H. to the front door and locked it behind him. 

            The state also called Kristin Johnson, the social worker who interviewed B.H. in March 1997 after Hunecke told the police about the December 31, 1996 incident, and Amy Johnson, the social worker who interviewed B.H. in December 2002 after B.H. disclosed the abuse to the peer group at school.  Kristin Johnson testified that B.H. gave conflicting stories about the abuse but that B.H. indicated with anatomically correct dolls that Phillips had masturbated in front of her and touched her vagina with his hand.  Amy Johnson testified that B.H. said that Phillips touched her on the inside of her vagina with his hand, mouth, and penis; that he made her perform oral sex on him; that the abuse happened more than 20 times; and that Phillips told her that "this would be fun" and that "it won't do no harm."  The state introduced a videotape of the Amy Johnson interview.   

The state also introduced a videotape of an interview of B.H. conducted by Beth Carter, a registered nurse and case manager, at MCRC on December 10, 2002.  Carter testified that after the interview, she conducted a physical examination of B.H. during which B.H. said that Phillips touched her vagina with his hand and penis and touched her anus with his penis.  Carter testified that at the physical examination "everything appeared to be normal." 

Phillips argues that the lack of physical evidence of sexual assault renders the record insufficient.  But Carter testified that 99% of physical examinations of sexual abuse victims are normal and that an examining medical professional "may not see anything at all or there may be no signs" of abuse.  Furthermore, corroborating evidence is not necessary in a prosecution for criminal sexual conduct.  Minn. Stat. § 609.347, subd. 1 (2002); State v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004) (noting that corroborating physical evidence is not necessary to support a conviction).

            Phillips also argues that the record is insufficient because B.H. might have been exposed to improper influence.  Phillips relies on State v. Huss, in which the Minnesota Supreme Court reversed a conviction of criminal sexual conduct for insufficient evidence.  506 N.W.2d 290, 293 (Minn. 1993).  But in Huss, the supreme court found the victim's testimony "particularly troublesome," and there was undisputed evidence that the victim was repeatedly exposed to a book and an accompanying audio tape about sexual abuse.  Id.at 29293.  The supreme court noted that an expert witness testified that the words used by the victim indicate that exposure to the book and tape "may have caused the child to imagine the abuse."  Id.at 293.  There is no evidence of such improper influence here.

Phillips also argues that B.H.'s inconsistent statements to her mother and the various interviewing social workers and case manager establish reasonable doubt.  But in cases involving criminal sexual conduct, weighing the credibility of a complaining witness who gives conflicting stories is a function of the fact-finder.  State v. Reichenberger, 289 Minn. 75, 7980, 182 N.W.2d 692, 695 (1970).  And we have upheld many convictions of criminal sexual conduct in which there was evidence that the victims' accounts of the abuse changed over time.  See, e.g., State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000); State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990), review denied (Minn. May 23, 1990); State v. Garden, 404 N.W.2d 912, 916 (Minn. App. 1987), review denied (Minn. June 25, 1987); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987).  Here, the district court found that "the victim's testimony was very credible" and that "her testimony regarding the essence of the offense committed was consistent, detailed, [and] repeated over and over again."

The record includes direct testimony from B.H., Hunecke, and T.H.  Hunecke's and T.H.'s testimony corroborates B.H.'s testimony, as does the testimony and other evidence provided by the interviewing social workers and case manager.  Viewing the record in the light most favorable to the convictions, we conclude that the evidence in the record and all necessary inferences drawn from it support the district court's judgments of conviction.

II.

            Phillips also argues that the district court erred by admitting the statement he gave to the police when he was arrested.  He argues that his confession was the product of coercion and deception, and therefore was involuntary.

            When a defendant seeks to suppress a confession on the ground that the confession was involuntary, the state has the burden of proving by a preponderance of the evidence that the confession was given voluntarily.  State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995).  The district court's findings regarding factual disputes are reviewed for clear error.  State v. Buchanan, 431 N.W.2d 542, 552 (Minn. 1988).  But we are not bound by the district court's legal determinations; rather, it is our duty "to independently determine, on the basis of all factual findings that are not clearly erroneous, whether or not the confession was voluntary."  Thaggard, 527 N.W.2d at 807 (quotation omitted). 

When determining whether a confession or statement was involuntary or coerced, we consider all relevant factors, including the defendant's "age, maturity, intelligence, education, experience, ability to comprehend, lack of or adequacy of warnings, length and legality of detention, nature of interrogation, physical deprivations, limits on access to counsel and friends, and others."  State v. Wilson, 535 N.W.2d 597, 603 (Minn. 1995) (quotation omitted).  A statement is involuntary if police actions were so coercive, manipulative, and overpowering that they deprived the suspect of "his ability to make an unconstrained and wholly autonomous decision to speak as he did."  State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991).

The district court did not make findings regarding the relevant factors, but the record shows that Phillips (1) was 38 years old, (2) has been married three times, (3) has a high-school education, (4) served in the military, and (5) has work experience as a machinist, a security guard, and a long-haul truck driver.  Nothing in the record indicates that he has any intelligence deficiencies or difficulties with comprehension.

Officers Badker and Thompson interrogated Phillips for two hours.  The record shows that at the outset of the interrogation, Officer Badker read Phillips a Miranda warning.  Phillips signed the Miranda waiver and agreed that his rights had been fully explained to him and that he wanted to make a voluntary statement.  At various points during the interrogation, Phillips asked for water, tissue, and cigarettes, all of which were provided.  Although Phillips argues that he was not provided with counsel or medication for his heart condition, the record shows that he made no request for either.

Phillips's primary argument that his confession was involuntary is based on the technique Officers Badker and Thompson used during the interview.  Throughout the interrogation, the officers told Phillips that they knew that he had abused B.H. and that Phillips needed to stop denying it and tell the truth.  The officers told Phillips that B.H.'s physical examination yielded evidence proving that Phillips sexually abused her.  They also told Phillips that the judge and county attorney think that he is a "bastard." 

The officers contrasted Phillips's situation with that of other sex offenders.    They implied that Phillips was not like the other offenders and that if he told them the truth, the officers would be able to help him out by telling the judge that Phillips was forthcoming.  At no point in the interrogation did the officers promise Phillips that he would not be prosecuted if he told the truth. 

Although the officers deceived Phillips about the existence of physical evidence, lying to a suspect about the strength of the state's case is not by itself enough to make a confession involuntary.  See Thaggard, 527 N.W.2d at 810 (citing Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct. 851, 857 (1987), and Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520 (1986)).  Confessions obtained through the other techniques used in Phillips's interrogationminimizing Phillips's moral culpability and providing reasons why the offense might have happenedhave been held voluntary.  See, e.g., Thaggard, 527 N.W.2d at 812; Pilcher, 472 N.W.2d at 333-34.  And all of the other relevant factors appear to indicate that Phillips's confession was given voluntarily.  We therefore conclude that the district court did not err by determining that Phillips's confession was voluntary and not the product of coercion.

III.

 

            Phillips also challenges the district court's denial of his petition for postconviction relief on the ground that his trial counsel was ineffective.  A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

            To prove that he received ineffective assistance of counsel, Phillips must affirmatively show that his "counsel's representation ‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  A "reasonable probability" means "a probability sufficient to undermine confidence in the outcome."  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  We consider the totality of the evidence before the judge or jury in making this determination.  Gates, 398 N.W.2d at 562.  But we need not address both the performance and prejudice prongs if one is determinative.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).

            Phillips argues that his trial representation was ineffective because counsel chose not to challenge the admission of Phillips's confession on Miranda grounds.  At a pretrial hearing, Phillips's counsel did not dispute that Phillips signed a Miranda waiver and instead argued that the confession was inadmissible because Phillips was coerced.  But even if Phillips's counsel had successfully challenged the admission of the confession on Miranda grounds and Phillips's confession was suppressed, there is ample record evidence supporting Phillips's convictions without the confession.  We therefore conclude that Phillips has failed to establish that counsel's decision to forgo challenging the admission of the confession on Miranda grounds affected the result of the proceeding.  Because Phillips did not make an affirmative showing of prejudice, we conclude that the district court did not err by denying Phillips's claim that he is entitled to postconviction relief on the ground that he received ineffective assistance of counsel.

IV.

 

            Phillips additionally argues that his sentence must be reversed because the district court based the upward durational departure on judicially found facts in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The application of Blakely presents a constitutional issue, which this court reviews de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).  

In Blakely, the Supreme Court held that the sentencing judge may not impose a sentence greater than "the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."  542 U.S. at 303, 124 S. Ct. at 2537.  The Court held that an upward durational departure could not be imposed based on judicial findings alone.  Id.at 304-05, 124 S. Ct. at 253738.  Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 133 (Minn. 2005).  Blakely requires that factual findings supporting an upward durational departure from the presumptive guidelines sentence must be found by a jury, admitted by the defendant, or found by the district court with the defendant's consent.  Id. at 141-42.

Phillips was found guilty and sentenced before Blakely was decided.  But because Blakely announced a new rule of constitutional criminal procedure while his direct appeal was pending, he is entitled to review of his sentence in light of Blakely.  See O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  The upward durational departure was based on the district court's findings of aggravating factors.  Phillips did not admit to those findings, nor did he waive his right to a jury determination of the aggravating factors.  We therefore conclude that the sentence violated Phillips's Sixth Amendment rights under Blakely, and we reverse his sentence and remand for resentencing.

Affirmed in part, reversed in part, and remanded.