Not Charging the Right Subsection Results in Acquittal of CSC III Charges

State v. Blevins, MN.Ct.App., 11/25/2008.  The state had an extremely intoxicated victim and no apparent force in this criminal sexual conduct case.  In response, the state charged Blevins with pinpoint precision with two counts of criminal sexual conduct in the third degree, the "physically helpless" subsection, M.S. 609.344, S. 1(d).  This subsection provides that:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . the actor knows or has reason to know that the complainant is . . . physically helpless.

The jury convicted Blevins and he appealed, arguing, successfully as is turns out, that there was insufficient evidence that the victim was "physically helpless."  Among the statutory definitions of "physically helpless" is this one:

unable to withhold consent or to withdraw consent because of a physical condition...

The victim, T.W., consumes ten to twelve alcoholic drinks and was admittedly drunk.  In that condition, she was unable at bar closing time to find her car; Mr. Blevins offered his assistance.  He searched for the car underneath the crawl space under some porch, at which time he asked T.W. if he could kiss her and put his arm around her.   Here's what the court said happened next:

T.W. testified about appellant’s advances that she “was along with some of it but that’s not what [she] wanted” and that she made sure that appellant knew that she just wanted help finding her car. Appellant eased T.W. onto her back and asked if he could perform oral sex on her. T.W. testified: “I told him I didn’t want him to, and he just kept telling me it would be okay. . . . I asked him to please not and he said it will be fine. . . .” T.W. testified that because she felt stuck, uncomfortable, and afraid, she “just let it happen” and “waited for it to be over.” Appellant first performed oral sex on T.W. and then had sexual intercourse with her. During this time, T.W. did not scream or fight because she was afraid that appellant would harm her in other ways and because she was in an unfamiliar neighborhood.

T.W. did not consent to the sexual assault; the court had no difficulty making this determination.  In fact, at trial, the defense made a point of establishing this, asking her point blank whether she was "conveying to [Blevins] that you didn't want this sexual activity to occur."  The set the hook and the appellate court reeled in the reversal.  Why?  The statute requires the state to prove either that T.W. was able to withhold consent, or that she was able to withdraw consent.  She admitted that she not only could but was actually withholding consent; she was not, therefore, "physically helpless" under the statutory definition.  Well, you just gotta pay attention to those double negatives.

Of course, the state could have also charged Blevins with the same offense but under a different subsection, that of using force or coercion.  (1)(c).  See State v. Carter, 289 N.W.2d 454 (Minn. 1979).