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State v. Cabrera11/19/2002
Affirmed
Appellant was initially charged in Hennepin County District Court with second-degree attempted murder, first-degree criminal sexual conduct, and first-degree aggravated robbery. Following later additions, subtractions, and amended criminal complaints (none of which are at issue), appellant, pursuant to a Lothenbach stipulation, had a trial to the court on one count of attempted first-degree criminal sexual conduct and one count of kidnapping. Following the hearing, appellant was found guilty of attempted first-degree criminal sexual conduct and kidnapping. Appellant was sentenced to imprisonment for 43 months for criminal sexual conduct charge and another 43 months for kidnapping, that sentence to run consecutively to the 43 months imposed for criminal sexual conduct.
Appellant challenges his conviction for attempted criminal sexual conduct (the kidnapping conviction is not in issue), arguing that the district court's findings that he forcibly penetrated the victim and later beat her were insufficient to support the conviction for attempted first-degree criminal sexual conduct, which required that appellant take a substantial step toward causing personal injury in the process of accomplishing sexual penetration. We affirm.
FACTS
On April 15, 2001, M.I.L. went to a southeast Minneapolis nightclub with several people and stayed until approximately 1:00 a.m. Appellant Cabrera, with whom M.I.L. worked, offered to drive her and two other people home.
After leaving the nightclub, appellant told M.I.L. that he was going to bring her to a party at a residence. Appellant drove to the party even though M.I.L. told him that it was late, she did not want to go with him, and she wanted to go home. Shortly after arriving at the party, M.I.L. again told appellant that she wanted to go home.
Appellant, M.I.L., and another male, left the party and drove the other individual home to an unknown address on Central Avenue in northeast Minneapolis. After M.I.L. again told appellant that she wanted to go home he responded, "no, let's drive around." M.I.L. repeated that she wanted to go home.
Appellant drove for approximately an hour and then stopped in a secluded area. After appellant told M.I.L. that he wanted to touch her and make love to her, she responded no. Appellant became insistent and furious and stated that he was "horny." He then unzipped his pants and began to masturbate. Appellant then grabbed M.I.L.'s breasts, attempted to take her pants off, and placed two fingers into her vagina. M.I.L. fought with appellant, told him no, and stated that if he let her go she would not tell anyone.
Appellant exited the vehicle and dragged the victim out of the vehicle by her hair and told her to be quiet. Appellant then picked up a long narrow type of club, similar to the type used to lock a steering wheel to prevent auto theft, and hit M.I.L. in the head four times, causing her to become dizzy and disoriented to the point of possibly passing out. Appellant, while hitting M.I.L., said over and over, "I want to kill you. You are going to die." Sometime during the struggle, appellant took M.I.L.'s bracelet and a crucifix with Christ's face on it.
Appellant then dragged M.I.L. to a nearby river, took her by the hair, and submerged her head under water four times. On the fourth time that her head was submerged, M.I.L. made her body go limp, in an attempt to convince appellant that she was dead. After appellant raised M.I.L.'s head one last time, he ran to his vehicle and left the area. M.I.L. floated into deeper water, grabbed a log, and pulled herself out of the water. M.I.L. found some railroad tracks an
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