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State v. Welch2/5/2004
Minn. Stat. § 609.17, subd. 1. Interpreting the intent prong of "attempt," this court has statedthat '"an attempt to commit any crime requires a specific intent to commit that particular offense.'" State v. Zupetz, 322 N.W.2d 730, 734 (Minn. 1982) (quoting Rollin M. Perkins, Criminal Law at 573-74 (2d ed. 1969)). "Intent is an inference drawn by the [finder of fact] from the totality of circumstances." State v. Raymond, 440 N.W.2d 425, 426 (1989).
Viewing the evidence in the light most favorable to the verdict, Welch's arguments are not persuasive. The district court's finding that the initial conversation between S.V. and Welch contained a "sexual overtone" is supported by the evidence. Second-degree criminal sexual conduct does not require an intent to commit rape. Under Minn. Stat. § 609.341, subd. 11(a), "sexual contact" includes the intentional "touching of the clothing covering the immediate area of the intimate parts" when that touching is "committed with sexual * * * intent." In light of the "sexual overtone" of Welch's statements to S.V., the Spreigl evidence concerning Unnamed Woman #2 (where Welch partially exposed the torso of his victim by pulling up her clothes before masturbating near her), and the positioning of Welch on top of S.V., it was not error for the district court to find both sexual intent and intent to engage in sexual contact.
II.
Welch argues that the failure to prove the underlying felony of attempted second-degree criminal sexual conduct eliminated a necessary element of his kidnapping conviction, that it be done to facilitate a felony. "Kidnapping" is defined as follows:
Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person's consent or, if the person is under the age of 16 years, without the consent of the person's parents or other legal custodian, is guilty of kidnapping and may be sentenced as provided in subdivision 2:
(2) To facilitate commission of any felony or flight thereafter; or
(3) To commit great bodily harm or to terrorize the victim or another * * *.
Minn. Stat. § 609.25, subd. 1. Because we hold that there was sufficient evidence to justify the criminal sexual conduct conviction, Welch's challenge to the underlying felony element of his kidnapping conviction also fails.
Welch does not argue that his actions were too minimal to constitute confinement or removal for purposes of the crime of kidnapping. But, while Welch's appeal was pending, this court decided State v. Smith, 669 N.W.2d 19 (Minn. 2003), which held as follows:
We believe that confinement or removal must be criminally significant in the sense of being more than merely incidental to the underlying crime, in order to justify a separate criminal sentence. Under our current sentencing scheme, convictions that solely rely on acts incidental to the commission of one crime—here confining Holder in the course of murder—to constitute the elements of kidnapping (confinement) unduly exaggerate the criminality of the conduct. We conclude that where the confinement or removal of the victim is completely incidental to the perpetration of a separate felony, it does not constitute kidnapping.
Id. at 32 (footnote omitted).
In this case, the facts clearly do not support a conviction for kidnapping. No removal–let alone nonincidental removal–is even alleged. Further, the confinement that forms the basis of the kidnapping is the very force and coercion that supports the attempted second-degree criminal sexual conduct conviction. If such incidental conduct can support a kidnapping conviction, it is difficult to
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