State v. Stempfley, Minn.S.Ct., 8/16, 2017. A jury found Mr. Stempfley guilty of third and fourth degree criminal sexual conduct on an accomplice liability theory. After a lot of drinking B.D., age fourteen, Tina Smith, age twenty-four, and Mr. Stempfley, age thirty eight, found themselves late at night in a one room cabin in the woods.
There was more drinking and memory and accounts of events started to diverge. B.D. said that Tina Smith got on top of her, began kissing her, pulled her pants down and engaged in oral sex. B. D. also said that while this was going on Mr. Stempfley held one or both of her hands and penetrated her vagina with his fingers. While Mr. Stempfley continued holding B.D.'s hand. B.D. said that Tina penetrated her vagina with her tongue.
As might be expected, everyone's account got impeached. B.D. had previously admitted that she didn't remember much of what had happened. Tina Smith said that B.D. removed her own clothes and willingly participated in their kissing. Tina had said at trial that when she engaged in oral sex with B.D. she asked Mr. Stempfley to grab B.D.'s arms, which he did. Tina had previously stated that Mr. Stempfley had not held B.D.'s arms during the oral sex.
And so on.
The jury acquitted Mr. Stempfley of the counts which charged him as a principal. At sentencing he moved for a dispositional departure, arguing that he had played a "minor or passive role" in the (Smith) offenses and that he was particularly amenable to probation. Inexplicably, the state did not dispute that what sounds like offense based reasons were a valid basis for a dispositional departure. Instead, it argued both that the trial court had not made adequate findings and that even if it did those findings didn't support the departure. Here's what Justice Chutich said about that:
When we compare Stempfley’s role to that of Smith, the record supports the district court’s finding that Stempfley played a minor role here. Smith was the one who started drinking with B.D., invited B.D. to the cabin, and initiated the sexual penetration that is the basis for Stempfley’s conviction. Stempfley’s conduct—not objecting to B.D.’s visit to the cabin or her drinking and holding one or both of B.D.’s hands—was comparatively minor. According to Smith’s testimony and the jury’s verdict, Stempfley did not have any sexual contact with B.D. Nor did he prompt or encourage Smith to begin sexual contact with B.D. Smith testified that Stempfley did not become involved in Smith’s sexual penetration of B.D. until Smith asked him to hold B.D.’s hand, which is consistent with a finding of passivity. These facts are sufficient to support the conclusion that Stempfley’s offense was significantly less serious than the typical case.
That last sentence is more typically what gets said to support a durational departure, rather than a dispositional departure.
The court was quick to emphasize that one's status as an accomplice is not enough to support a departure. "As the law requires, the district court's departure analysis focused on the facts of this particular case." Summing up, Justice Chutich said:
In sum, we are bound to uphold the district court’s evaluation of the facts and its discretionary sentencing decision unless our review of the record reveals an abuse of that discretion. Applying this deferential standard, we conclude that the district court acted within its broad discretion here. The trial testimony is conflicting and must be interpreted in light of the jury’s verdict, which rejected a large portion of the State’s case. Without the benefit of observing witness testimony and the opportunity to weigh credibility, we cannot say that the district court abused its discretion by finding that Stempfley’s minor or passive role in the offense was a substantial and compelling reason to depart from the Guidelines. Even if we might have come to a different conclusion had we been weighing the evidence ourselves, that is not the applicable standard upon appellate review.
Justice McKeig took no part. Justice Hudson dissented. She took umbrage at what the trial court said supported the departure, and how the court said it, remarks that she characterized as "colloquial and offhand comments":
[T]he district court made three statements that Stempfley contends support his dispositional departure: Smith “was the primary aggressor,” Smith “was the one that got things going,” and “basically the train had already left the station” when Stempfley got involved.
Covering the bases, Justice Hudson also said that even if these "colloquial and offhand remarks" constituted sufficient findings they still didn't support the departure. These findings, if they were "findings," did not amount to the "substantial and compelling" circumstances to support either that Mr. Stempfley played a minor or passive role or that his offense conduct was less serious than the typical case. As Justice Hudson saw it:
Stempfley’s intervention, particularly as an adult male aiding and abetting the sexual assault of a child, cannot constitute a minor or passive role.
.....
[T]he majority’s exclusive focus on why Stempfley’s conduct was minor or passive solely in comparison to Smith’s conduct misses the mark. Without evidence in the record demonstrating why this case is different from the typical case of aiding and abetting a sexual crime—and not merely that Stempfley’s conduct was different than Smith’s—the dispositional departure is unsupported by the record.
Finally, Justice Hudson is annoyed and concerned by the majority's failure to address the typical dispositional departure question, "Is Mr. Stempfley particularly amenable to probation?" She's worried that by its silence on this question, the court has surely left itself open to the claim that playing a "minor or passive" role is itself sufficient to support a dispositional departure. If nothing else, the majority's silence muddies the waters on what's fair game to argue in support of a dispositional departure.
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