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Warmbold v. State9/27/2005
In this consolidated appeal from a post-conviction order affirming his conviction of first-degree criminal sexual conduct involving force or coercion, Dana Warmbold argues that (1) the evidence is insufficient to prove that he used force or coercion to accomplish sexual penetration, (2) he was denied the effective assistance of counsel because of a conflict of interest, and (3) the prosecutor committed prejudicial misconduct. The state challenges Warmbold's sentence, arguing that the district court abused its discretion by, in effect, applying Blakely retroactively to reduce Warmbold's sentence to the presumptive term. We affirm Warmbold's conviction, but we reverse his sentence and remand.
FACTS
On the evening of November 6, 2003, R.M. called the police and reported that appellant Dana Warmbold had beaten and raped her. When officer Jason Karjala arrived at R.M.'s house, R.M. was intoxicated and in pain. She told Karjala that Warmbold had been at her house for three days, and that he had beaten and raped her. Karjala called an ambulance, and R.M. was transported to the hospital.
At the hospital, R.M. told Karjala that Warmbold had had vaginal and anal sex with her and that the anal sex had caused her to bleed. She also said that Warmbold had burned her with cigarettes. Karjala saw bruises on R.M., and pictures taken at the hospital confirm that R.M. was bruised. DNA samples taken from R.M. matched Warmbold's DNA.
Warmbold was arrested and charged with kidnapping and two counts of first-degree criminal sexual conduct. At trial, R.M. testified that Warmbold stopped by her house in the afternoon of November 2 and that she offered him a beer. Warmbold then told R.M. that he had been angry when she refused to let him into her house back in May, and that he would kill her if she ever did that again. After drinking all afternoon, R.M. lay down for a nap and told Warmbold that he could sleep on the couch. But she warned him that he was not going to have sex with her.
R.M. and Warmbold continued to drink the following day. R.M. testified that when she woke up that night, she and Warmbold were naked and Warmbold was making genital contact with her. R.M. asked Warmbold to stop and told him that it hurt. But Warmbold did not stop, and over the next two or three days he continued to have vaginal intercourse with R.M. and attempted to have anal sex. R.M. testified that each time, she asked Warmbold to stop. She also testified that the attempted anal sex hurt and caused her to bleed. R.M. indicated that she did not remember Warmbold hitting or beating her. She could not explain the bruise on her back or the cigarette burns on her foot and stomach, but she indicated that she might have bruised herself when she fell down the stairs.
The jury found Warmbold guilty of first-degree criminal sexual conduct involving the use of force or coercion and third-degree criminal sexual conduct. But the jury acquitted him on charges of kidnapping and first-degree criminal sexual conduct involving fear of great bodily harm. The court sentenced Warmbold under the dangerous-offender statute to a 240-month prison term, a departure from the presumptive 161-month sentence. The upward departure was based on judicial findings that Warmbold treated the victim with particular cruelty and was a danger to public safety.
Warmbold did not appeal his conviction and sentence directly. Instead, he filed a post-conviction petition, challenging the sufficiency of the evidence and alleging ineffective assistance of counsel and prosecutorial misconduct. Warmbold also challenged his sentence. The post-conviction court reduced Warmbold's sentence to the presumptive te
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