Oji Konata Markham v. State of Minnesota

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1093

Oji Konata Markham, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 20, 2015
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File Nos. 27-CR-10-25000, 27-CR-11-8107

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, III, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Chutich, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

UNPUBLISHED OPINION

REILLY, Judge

Oji Konata Markham pleaded guilty to a failure to register as a predatory offender

charge and a first-degree burglary charge. Markham later moved to withdraw both guilty
pleas, arguing that he was not required to register as a predatory offender in Minnesota

and that the factual basis for his burglary plea was insufficient to establish the

independent-crime element of first-degree burglary. We conclude that Markham’s guilty

plea for failure to register is invalid but that the factual basis of his burglary plea is

sufficient. Therefore, we affirm in part, reverse in part, and remand.

FACTS

In March 2014, Markham petitioned for postconviction relief, requesting to

withdraw his guilty pleas for failure to register as a predatory offender and first-degree

burglary.

Failure to Register Offense & Plea

In 1994, the State of Indiana charged Markham with child molestation. The

probable cause affidavit stated that, on April 22, 1994, A.S., who was 13 years old at the

time of the offense, along with three other girls, were at an apartment with three young

men, including Markham. A.S. stated that Markham took her into a bedroom and

penetrated her vagina with his penis without her permission. Another girl who was with

A.S. at the time corroborated that Markham and A.S. engaged in sexual intercourse in a

bedroom. Markham was 19 years old at the time of the offense.

The State of Indiana initially charged Markham for “being sixteen years of age or

older, [and] perform[ing] or submit[ing] to sexual intercourse with [A.S.], a child twelve

years of age or older but under sixteen years of age,” under Indiana Code section 35-42-

4-3 (1993). The charge was then amended to “Sexual Battery (D),” which stated that

Markham, “a person who, with intent to arouse or satisfy [his] own sexual desires or the

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sexual desires of [A.S.], touched [A.S.] when [A.S.] was compelled to submit to said

touching by force or the imminent threat of force.” Markham pleaded guilty to the sexual

battery charge in addition to another charge. The stipulated factual basis for the plea

stated that on April 27, 1994, in Lake County, Indiana, Markham, with the intent to

arouse his sexual desires, touched A.S., and that Markham compelled the touching by the

use of force.

At some point, Markham moved to Minnesota and was informed that he was

required to register as a predatory offender due to his conviction in Indiana. On June 2,

2010, the state charged Markham with failure to register as a predatory offender, in

violation of Minn. Stat. § 243.166, subds. 5(a), 5(b), 1b, 5a, 10 (2008), for conduct

occurring between March 22-June 2, 2010. In November 2010, Markham pleaded guilty

to the failure to register charge and was released pending sentencing.

First-Degree Burglary Offense

While the sentencing for the failure to register charge was pending, the state

charged Markham with first-degree burglary. On March 20, 2011, T.T. called 911 to

report a break in. When officers arrived at T.T.’s residence, Markham was inside the

house with T.T., who then came running out of the house yelling that Markham had a

gun. T.T. informed officers that Markham was recently served with an order for

protection (OFP) precluding contact with her, and he was upset with her. Officers

observed that the screen to a rear window of the residence was removed and the window

was opened. Officers could not locate the gun.

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 The state charged Markham with one count of first-degree burglary, in violation of

Minn. Stat. § 609.582, subd. 1(a) (2010) (occupied dwelling). On July 11, 2011, the state

amended the complaint and added additional counts of first-degree burglary, in violation

of Minn. Stat. § 609.582, subd. 1(c) (2010) (assault of a person within the building), and

prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subds.

1(2), 2(b) (2010). Markham pleaded guilty to the initial first-degree burglary charge

(occupied dwelling) on July 12, 2011, in exchange for dismissal of the charges in the

amended complaint and for a 60-month prison sentence. The district court sentenced

Markham to 60 months in prison for burglary and 36 months in prison for failure to

register, to be served concurrently.

Postconviction Proceedings

On October 25, 2012, Markham filed a pro se petition for postconviction relief,

arguing that his criminal history score was incorrectly calculated. The district court

denied his petition and, on appeal, we reversed and remanded the case due to a violation

of Markham’s right to counsel. Markham v. State, No. A13-0141 (Minn. App. Nov. 6,

2013) (order op.).

On March 3, 2014, counsel for Markham filed a petition for postconviction relief.

Markham argued that the failure to register plea was not valid because he was not

required to register as a predatory offender in Minnesota, and that his burglary plea was

insufficient to establish guilt. The district court denied Markham relief, finding that the

sexual battery conviction would be chargeable in Minnesota as fourth-degree sexual

conduct or attempted fourth-degree sexual conduct. The district court also denied

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Markham’s motion to withdraw his burglary guilty plea, finding that Markham entered

the victim’s home without her consent and had contact with her, in violation of the no-

contact part of the OFP.

Markham appeals both convictions.

DECISION

Markham contends that his guilty pleas are inaccurate and therefore invalid, and

that the pleas “must be withdrawn.” This court reviews a district court’s ultimate

decision to deny postconviction relief for an abuse of discretion. State v. Rhodes, 675

N.W.2d 323, 326 (Minn. 2004). Because the validity of a guilty plea is a question of law,

we apply de novo review. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

A defendant does not have an absolute right to withdraw a guilty plea. State v.

Theis, 742 N.W.2d 643, 646 (Minn. 2007). The district court must allow a defendant to

withdraw a guilty plea at any time if “withdrawal is necessary to correct a manifest

injustice.” Minn. R. Crim. P. 15.05, subd. 1. Manifest injustice exists when a guilty plea

is invalid. Theis, 742 N.W.2d at 646. For a guilty plea to be valid, it “must be accurate,

voluntary and intelligent.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The

defendant bears the burden of establishing that the plea was invalid. Raleigh, 778

N.W.2d at 94.

I. Failure to Register Guilty Plea

Markham maintains that his guilty plea was inaccurate because his Indiana

conviction is not equivalent to Minnesota’s fourth-degree criminal sexual conduct or

attempted fourth-degree criminal sexual conduct conviction. “The accuracy requirement

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protects a defendant from pleading guilty to a more serious offense than that for which he

could be convicted if he insisted on his right to trial.” Id. To be accurate, a plea

establishes a proper factual basis, which is adequate “if the record contains sufficient

evidence to support the conviction.” Id.

Under the Minnesota predatory offender registration statute, a person with a

Minnesota conviction is required to register as a predatory offender if:

(1) the person was charged with . . . a felony violation of or
attempt to violate, or aiding, abetting, or conspiracy to
commit, any of the following, and convicted of . . . that
offense or another offense arising out of the same set of
circumstances:
(i) murder under section 609.185, clause (2);
(ii) kidnapping under section 609.25;
(iii) criminal sexual conduct under section
609.342; 609.343; 609.344; 609.345; 609.3451,
subdivision 3; or 609.3453; or
(iv) indecent exposure under section 617.23,
subdivision 3;
...

Minn. Stat. § 243.166, subd. 1b(a) (2008). An individual with an out-of-state conviction,

however, is only required to register if the person was “convicted of . . . an offense that

would be a violation of a law described in paragraph (a) if committed in [Minnesota].”

Minn. Stat. § 243.166, subd. 1b(b)(1). Notably, the 2008 predatory offender registration

statute did not include the language “arising out of the same set of circumstances” in the

registration requirements for out-of-state offenses. State v. Patterson, 819 N.W.2d 462,

464-65 (Minn. App. 2012), review denied (Oct. 24, 2012).

The postconviction court found that Markham’s Indiana sexual battery conviction

satisfied the elements of fourth-degree criminal sexual conduct under Minn. Stat.

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§ 609.345, subd. 1(c) (2008). A defendant is guilty of fourth-degree criminal sexual

conduct in Minnesota if he “engages in sexual contact with another person” and “uses

force or coercion to accomplish the sexual contact.” Minn. Stat. § 609.345, subd. 1(c).

The relevant statute defines “sexual contact” as

any of the following acts committed without the
complainant’s consent, except in those cases where consent is
not a defense, and committed with sexual or aggressive
intent:
(i) the intentional touching by the actor of the
complainant’s intimate parts, or
(ii) the touching by the complainant of the actor’s, the
complainant’s, or another’s intimate parts effected by a
person in a position of authority, or by coercion, or by
inducement if the complainant is under 13 years of age or
mentally impaired, or
(iii) the touching by another of the complainant’s intimate
parts effected by coercion or by a person in a position of
authority, or
(iv) in any of the cases above, the touching of the clothing
covering the immediate area of the intimate parts.

Minn. Stat. § 609.341, subd. 11(a). And “intimate parts” are defined as “the primary

genital area, groin, inner thigh, buttocks, or breast of a human being.” Id., subd. 5. The

Indiana sexual battery offense that Markham was convicted of requires:

A person who, with intent to arouse or satisfy the person’s
own sexual desires or the sexual desires of another person,
touches another person when that person is:
(1) compelled to submit to the touching by
force or the imminent threat of force; or
(2) so mentally disabled or deficient that
consent to the touching cannot be given;
commits sexual battery, a Class D felony. However, the
offense is a Class C felony if it is committed by using or
threatening the use of deadly force or while armed with a
deadly weapon.

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I.C. § 35-42-4-8.

As Markham correctly points out, the elements of Indiana’s sexual battery statute

do not require that the touching occur on a specific area of the complainant’s body,

whereas the Minnesota statute requires touching of the complainant’s “intimate parts.”

The cases relied on by the postconviction court, Frazier v. State, 988 N.E.2d 1257, 1259-

60 (Ind. App. 2013), and McCarter v. State, 961 N.E.2d 43, 45 (Ind. App. 2012) transfer

denied, 967 N.E.2d 1034 (Ind. 2012), do discuss sexual battery cases involving the

touching of the complainant’s intimate areas. The focus of both cases was whether force

or coercion was used to effect the touching. See Frazier, 988 N.E.2d at 1261; McCarter,

961 N.E.2d at 45-46.

Markham relies on three Indiana cases to illustrate that an Indiana sexual battery

conviction can rest on facts that would not support a fourth-degree criminal sexual

conduct conviction in Minnesota, mainly due to the area of touching. These cases are

persuasive. In Wells v. State, the defendant was convicted of sexual battery for undoing a

victim’s robe, pushing it off her shoulders, grabbing the victim by the throat, pushing her

onto the bed, and unfastening his pants. 568 N.E.2d 558, 560 (Ind. App. 1991). In

Walker v. State, the defendant was convicted of sexual battery for pushing the victim into

the back seat of a car, covering the victim’s mouth, pulling down the victim’s leggings,

getting on top of her, kissing her neck, and telling her that she was pretty. 988 N.E.2d

341, 344 (Ind. App. 2013) transfer denied, 992 N.E.2d 207 (Ind. 2013). In Ball v. State,

the defendant was charged with sexual battery for licking and kissing the face of a

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sleeping woman. 945 N.E.2d 252, 253 (Ind. App. 2011) transfer denied, 962 N.E.2d 640

(Ind. 2011).1

In sum, these cases illustrate that Indiana’s sexual battery statute penalizes a

broader range of conduct than Minnesota’s fourth-degree criminal sexual conduct statute.

Furthermore, Indiana’s sexual battery statute does not require the prohibited touching to

occur in an “intimate area.” Thus, our comparison of the two laws leads us to the

conclusion that the elements of the Minnesota and Indiana statutes are not equivalent.

Next, Markham argues that sexual battery is not equivalent to attempted fourth-

degree criminal sexual conduct. The postconviction court found that Markham’s

“conduct in Indiana, his use of force to touch the victim with the intent to arouse his own

sexual desires, is equivalent to attempted fourth-degree criminal sexual conduct.”

A person is guilty of an attempt to commit a crime if he or she, with intent to

commit a crime, does an act which is a substantial step toward, and more than preparation

for, the commission of the crime. Minn. Stat. § 609.17 (2008). The entire factual basis

for Markham’s Indiana guilty plea stipulated

4. That the victim in the cause [sic] is [A.S.]
5. That on April 27, 1994, in Gary, Lake County, Indiana
the defendant came into contact with the victim.
6. That with the intent to arouse the sexual desires of the
defendant, the defendant touched the victim.
7. That the defendant compelled the touching of the
victim by the use of force.
8. That all of these events occurred in Lake County,
Indiana.

1
In Ball, the Indiana Court of Appeals reversed the sexual battery conviction because the
court concluded that the “mental disability or deficiency” element of sexual battery was
not proven beyond a reasonable doubt. 945 N.E.2d at 258.

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 This factual basis does not satisfy the mens rea required for attempted fourth-

degree criminal sexual conduct in Minnesota. Rather, the factual basis before us only

establishes the intent to arouse sexual desires by touching the victim. This basis does not

establish that Markham intended to commit sexual contact, as defined by Minnesota law,

by touching A.S.’s intimate parts.

Because Indiana’s sexual battery statute does not require the prohibited touching

to occur in an “intimate area,” it is not equivalent to Minnesota’s fourth-degree criminal

sexual conduct statute. Accordingly, Markham’s Indiana conviction does not require him

to register as a predatory offender in Minnesota, and his guilty plea to the failure to

register offense is inaccurate. Thus, Markham’s failure to register guilty plea is invalid,

and the district court erred by denying his petition to withdraw the plea pursuant to the

manifest-injustice standard. See Minn. R. Crim. P. 15.05, subd. 1 (allowing a defendant

to withdraw a guilty plea upon “proof to the satisfaction of the court that withdrawal is

necessary to correct a manifest injustice”). Therefore, we reverse Markham’s failure to

register as predatory offender conviction and remand the matter to the district court for

further proceedings.

II. First-Degree Burglary Guilty Plea

To be guilty of burglary, a defendant must “enter[] a building without consent and

with intent to commit a crime, or enter[] a building without consent and commit[] a crime

while in the building.” Minn. Stat. § 609.582, subd. 1. If the “the building is a dwelling

and another person, not an accomplice, is present in it when the burglar enters or at any

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time while the burglar is in the building,” he is guilty of first-degree burglary. Id., subd.

1(a). Markham maintains that the district court erred in concluding that the independent-

crime element of the burglary statute was fulfilled by the violation of a no-contact

provision of an OFP. The state concedes that the violation of a no-entry portion of an

OFP is insufficient to satisfy the independent-crime element, but argues that a violation

of another OFP provision, such as no-contact, is sufficient to satisfy this element.

The state relies on State v. Colvin to support its proposition that an independent

crime can be established when a defendant violates a provision of an OFP other than the

no-entry provision. In Colvin, the defendant was charged with first-degree burglary

arising from the illegal entry into the home of his ex-wife. 645 N.W.2d 449, 450 (Minn.

2002). Colvin’s ex-wife obtained an OFP that prohibited Colvin from entering his ex-

wife’s residence, having any contact with her, and entering or calling her workplace. Id.

at 450-51. Colvin entered the ex-wife’s residence through a window; the ex-wife was not

home but another resident found him in the home. Id. at 451.

The supreme court began its analysis in Colvin by reaffirming that the state must

prove that the defendant intended to commit an independent crime other than trespass in

order for the burglary conviction to stand. Id. at 452 (citing State v. Larson, 358 N.W.2d

668, 670 (Minn. 1984)). The supreme court concluded that although the violation of a

no-entry provision of an OFP is insufficient to establish the independent-crime element,

an OFP violation can be accomplished in multiple ways, and the nature of the violation

will determine if it constitutes an independent crime. Id.

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 For example, the OFP in this case prohibited Colvin from:
(1) committing acts of domestic abuse against his ex-wife;
(2) having any contact with his ex-wife; (3) entering her
residence; and (4) entering or calling her workplace. If Colvin
had acted in contravention of either the first, second, or fourth
provision, his conduct would not resemble trespass, while
violation of the no-entry provision clearly does bear such a
resemblance.

Id.

Because the district court found that Colvin violated the no-entry provision of the

OFP, but did not make findings as to additional OFP violations, the supreme court

concluded that Colvin was not charged with the no-contact provision of the OFP. Id. at

453. The state’s argument that Colvin intended to violate the no-contact provision of the

OFP was unsupported by the record, and the supreme court reversed the conviction. Id.

at 455-56.

Here, on the other hand, Markham’s plea hearing established the following factual

basis:

[By Defense Counsel] Okay, and you entered her house and
had contact with her, is that right?
A Yes.
Q And you would agree that at some point, if not at the
beginning, at some point she didn’t want you there and you
stayed there, is that right?
A Yes.
Q And you didn’t have her permission to be in that house
and you were there?
A Right.
Q And you understand that that’s why you are charged with
Burglary, correct?
A Yeah.
Q She actually had an Order for Protection against you at the
time, and you knew that, correct?
A Right.

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The prosecutor then asked:

Q Mr. Markham, by going into the house -- or staying in the
house without permission and violating the OFP, you agree
that that was crime that you committed while in the house?
[Brief pause.] You violated the OFP while you were in the
house, correct?
A Yes.
A And you agree that that would constitute a Burglary in the
First Degree?
A Yes.

As Markham notes, the OFP is not a part of the record, but the factual record

establishes the existence and the general terms of the OFP. The usual way to satisfy the

factual-basis requirement is for the defendant to express in his own words what

happened. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). But the factual basis in a

plea petition may be supplemented by a summary of the evidence, such as is provided in

the complaint. See Vernlund v. State, 589 N.W.2d 307, 311 (Minn. App. 1999); State v.

Bishop, 545 N.W.2d 689, 691 (Minn. App. 1996) (stating that the factual basis for a

guilty plea “may be ascertained from the record, which may include defendant’s

testimony from the guilty plea hearing or other proceedings before the trial court,

testimony of other witnesses, or statements summarizing the evidence”) (citing Trott, 338

N.W.2d at 251).

Here, the record establishes that Markham knew that T.T. had an order for

protection against him, and he knew that entering T.T.’s residence and contacting T.T.

violated the OFP. A defendant who knows of the existence of the OFP is considered to

know the contents of the OFP. See Minn. Stat. § 518B.01, subd. 14(b) (2010) (describing

that an OFP violation occurs when a “person to be restrained knows of the existence of

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the order” and violates the order). The burglary complaint stated that “[o]fficers

confirmed an active OFP #27FA111651 that T.T. had against the defendant preventing

him from having any contact with her or her residence and preventing him from stalking,

threatening, assaulting or harassing T.T. The OFP was issued on March 7, 2011 and

expires on March 8, 2013.” And Markham’s plea petition stated “see record” in the

relevant paragraph describing the crime.

In sum, unlike the victim in Colvin, T.T. was in the house when Markham

admitted to entering it, and Markham admitted to having contact with her while in the

house. The complaint stated that the OFP contained a no-contact provision and that T.T.

told officers that Markham had just been served with the OFP and was mad at her. The

factual record establishes an accurate factual basis for the independent-crime element of

first-degree burglary, and therefore Markham’s guilty plea is valid. Accordingly, the

district court did not abuse its discretion by denying Markham’s postconviction petition

to withdraw his first-degree burglary plea.

Affirmed in part, reversed in part, and remanded.

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