State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0442

State of Minnesota,
Respondent,

vs.

David Garrett Tynes,
Appellant.

Filed March 18, 2019
Affirmed in part, reversed in part, and remanded
Johnson, Judge

Hennepin County District Court
File No. 27-CR-17-9240

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Deborah Ellis, Ellis Law Office, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
After a court trial, the Hennepin County District Court found David Garrett Tynes
guilty of two criminal offenses based on evidence that he exchanged text messages with a
person with the intent to hire a 15-year-old prostitute. On appeal, Tynes challenges the

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sufficiency of the evidence and the imposition of multiple sentences. We conclude that the
evidence is sufficient to prove that Tynes reasonably believed that the fictitious girl with
whom he exchanged text messages was under the age of 16. We also conclude that the
district court erred by imposing two sentences for a single behavioral incident. Therefore,
we affirm in part, reverse in part, and remand for resentencing.
FACTS
On April 12, 2017, Tynes called a telephone number in an online advertisement on
backpage.com for “Princess Kylie .” The advertisement included three photographs
depicting a you ng female and described her as 18 years old and a “very mature, sexy,
sensual, and passionate woman who loves to have FUN.” The advertisement also stated
that “2 girls” were “available to generous men.” The advertisement had been placed by
the Minnetonka Police Department as part of a prostitution “sting” targeting men intending
to engage in sexual conduct with prostitutes under the age of 16.
Police officers did not answer Tynes’s telephone call. Instead, Detective O’Keefe
sent a text message to Tynes while pretending to be Princess Kylie. Detective O’Keefe
texted, “hi baby.” Tynes responded by texting, “Hi – may I come and see you,” and, after
a few more exchanges, “I would love to see u for an hour.” Detective O’Keefe texted,
“180h,” which was intended to indicate an hourly rate of $180, and Tynes responded, “Ok.”
When Detective O’Keefe asked Tynes, “what u like?,” he responded, “FS,” which
Detective Wenmark later testified is shorthand for “full service ,” i.e., sexual intercourse.
Detective O’Keefe asked Tynes whether he liked “GFE, ” and Tynes responded, “Yes.”
Detective Wenmark later testified that GFE means “girlfriend experience ,” i.e., a

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“relationship type experience” that simulates the “kinds of interactions that would be
normal for a normal relationship.” Detective O’Keefe then provided Tynes with an
address, saying, “text me when u get there for more.”
Detective O’Keefe next sent Tynes a text message saying, “im a little youngr than
in my ad, but im professional .” After eight minutes without a response from Tynes,
Detective O’Keefe texted, “baby?” After Tynes acknowledged the text, Detective O’Keefe
continued the conversation by texting, “im almost 16 but I know what im doing and I want
to learn more.” Tynes responded by texting, “No thanks pls don’t txt me .” Detective
O’Keefe replied, “whatever.”
Approximately seven minutes later, Tynes resumed the correspondence by texting,
“Here.” Detective O’Keefe wrote, “are you just f---in with me?” Tynes responded, “No.”
Tynes texted again to say that he was at the address that had been given to him, which was
the location of a gas station. Detective O’Keefe wrote, “ok, u hard for me? i want u ready.”
Tynes responded, “Will be.” Detective O’Keefe then directed Tynes to a nearby apartment
by giving him an address, an apartment number, and an access code. Tynes arrived at the
apartment a few minutes later. Police officers were waiting and arrested Tynes when he
knocked on the apartment door. When the officers searched him incident to his arrest, they
found $211 in cash on his person.
The state charged Tynes with two offenses: (1) hiring, offering, or agreeing to hire
an individual whom he reasonably believed to be between the ages of 13 and 15 to engage
in sexual penetration or sexual contact, in violation of Minn. Stat. § 609.324, subd. 1(b)(3)
(2016); and (2) using an electronic-communication system to solicit a person younger than

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16 years old or a person he reasonably believed to be younger than 16 years old to engage
in sexual conduct, in violation of Minn. Stat. § 609.352, subd. 2a(1) (2016).
Tynes waived his right to a jury trial. A court trial was held in September 2017.
The state called three witnesses, each of whom was a police officer involved in the sting
operation. Tynes testified about his extensive experience hiring prostitutes, saying that he
had done so approximately 75 to 100 times in the four -year period before his arrest. He
testified further that he did not believe that the fictitious girl with whom he was texting was
under 16 years old and also that he understood the advertisement to say that he would have
a choice of two prostitutes upon his arrival.
In October 2017, the district court filed its findings of fact and verdict. The district
court found Tynes guilty on both counts. With respect to Tynes’s belief of the age of the
fictitious prostitute, the district court made specific findings, as follows:
Defendant believed he was communicating with a
person just under 16 years of age on the afternoon of April 12,
2017. There is little doubt the business of prostitution is done
in code with an overlay of deception to entice the interests of
potential patrons and avoid detection by authorities. But the
subsequent text messages, indicating the prostitute was
“almost (but not yet) 16,” dispensed any reasonable ambiguity.
Defendant’s suggestion that he relied on prior experience as a
basis for thinking the prostitute might be lying about being
underage is not credible.

Defendant’s claim is also undermined by his behavior.
Having declined the transaction before reinitiating contact
seven minutes later supports only one reasonable inference:
Defendant hesitated upon initially learning that he was dealing
with an underage prostitute, but decided to take the risk
anyway. As such, this element is pro ven beyond a reasonable
doubt.

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At a sentencing hearing in December 2017, the district court imposed a sentence of
18 months of imprisonment but stayed execution of the sentence for three years and ordered
Tynes to serve 120 days in the Hennepin County workhouse. The district court did not
specify the offense for which the sentence was imposed. The warrant of commitment states
that the same sentence is imposed for each offense and that the sentences are concurrent .
Tynes appeals.
D E C I S I O N
I. Sufficiency of Evidence
Tynes first argues that the evidence is insufficient to support his conviction of either
offense. He contends that the state did not prove beyond a reasonable doubt that he
reasonably believed that the fictitious person whom he solicited and agreed to hire for sex
was younger than 16 years old. Specifically, he contends that the age of the fictitious girl
was ambiguous because he received “mixed messages” and that he believed that another,
older prostitute would be available upon his arrival.
When reviewing the sufficiency of the evidence, we ordinarily undertake “a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficient” to support the conviction. State v.
Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation o mitted). “We will view the
evidence in the light most favorable to the verdict and a ssume that the factfinder
disbelieved any testimony conflicting with that verdict.” State v. Palmer, 803 N.W.2d 727,
733 (Minn. 2011) (quotation omitted). A verdict will not be overturned if the factfinder,
“acting with due regard for the presumption of innocence and the requirement of proof

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beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the
charged offense.” Ortega, 813 N.W.2d at 100.
The above-stated standard of review applies so long as a conviction is based on
direct evidence. State v. Horst , 880 N.W.2d 24, 39 (Minn. 2016). Direct evidence is
evidence that is “based on personal knowledge or observation and that, if true, proves a
fact without inference or presumption.” State v. Harris , 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted). Circumstantial evidence, on the other hand, is “ evidence from
which the factfinder can infer whether the facts in dispute existed or did not exist.” Id.
(quotation omitted). A conviction depend s on circumstantial evidence if proof of the
offense, or a single element of the offense, is based solely on circumstantial evidence. See
State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014). If a conviction necessarily depends
on circumstantial evidence, this court uses a heightened standard of review. See State v.
Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010); State v. Porte , 832 N.W.2d 303, 309
(Minn. App. 2013). In such a case, we apply a two -step test to determine the sufficiency
of the evidence. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). First, we identify the
circumstances proved. Id. (citing State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)).
“In identifying the ci rcumstances pr oved, we assume that the [factfinder] resolved any
factual disputes in a manner that is consistent with the [factfinder’s] verdict.” Id. (citing
Andersen, 784 N.W.2d at 329). Second, we “examine independently the reasonableness
of the inferences that might be drawn from the circumstances proved,” and then “determine
whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt.” Id. (quotations omitted). We consider the

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evidence as a whole rather than examine each piece in isolation. Andersen, 784 N.W.2d at
332.
The parties disagree as to whether Tynes’s convictions are based solely on direct
evidence or are based in part on circumstantial evidence. The district court’s findings and
conclusions do not characterize the evidence as being either direct or circumstantial. Tynes
contends that , although the text messages are direct evidence of the communication s
themselves, his belief concerning whether Princess Kylie was younger than 1 6 years old
depends on circumstantial evidence. In response, the state contends that the text messages
between Tynes and Detective O’Keefe constitute direct evidence that Tynes reasonably
believed that Princess Kylie was younger than 1 6 years old. The state cites two opinions
in support of its contention that the reasonable -belief element is supported by direct
evidence, but both opinions are concerned with a defendant’s intent to commit a crime, not
a defendant’s belief concerning a n external, verifiable fact. See State v. Charlton , 338
N.W.2d 26, 29-30 (Minn. 1983); State v. Gundy , 915 N.W.2d 757, 764-65 (Minn. App.
2018), review denied (Minn. Aug. 7, 2018). Because none of Tynes’s text messages
expressly and specifically state his belief concerning the age of the fictitious girl, we
believe that the district court’s verdicts necessarily rest on circumstantial evidence. Thus,
we will analyze the sufficiency of the evidence under the heightened circumstantial -
evidence standard of review.
At the first ste p of the circumstantial -evidence analysis, we must identify the
circumstances proved that are potentially relevant to the question whether Tynes
reasonably believed that the fictitious girl with whom he was exchanging text messages

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was under the age of 16. See M oore, 846 N.W.2d at 88. O ur identification of the
circumstances proved is informed by the fact that Tynes testified at trial and by the district
court’s specific findings of fact, which expressly rejected Tynes’s testimony that he did not
believe that the fictitious girl was under the age of 16 . This is so because an appellate
court’s application of the circumstantial -evidence standard of review may not usurp the
factfinder’s exclusive role in evaluating the credibility of witnesses:
As the fact finder, the jury is in a unique position to determine
the credibility of the witnesses and weigh the evidence before
it. State v. Gatson, 801 N.W.2d 134, 144 (Minn. 2011). It “is
free to accept part and reject part of a witness’s testimony.”
State v. Landa , 642 N.W.2d 720, 725 (Minn. 2002). To be
clear, the first step of our circumstantial-evidence test protects
these principles —it requires an appellate court to winnow
down the evidence presented at trial by resolving all questions
of fact in favor of the jury’s verdict, resulting in a subset of
facts that constitute “the circumstances proved.” See State v.
Hawes, 801 N.W.2d 659, 670 (Minn. 2011) (disregarding
evidence inconsistent with the verdict).

Having preserved th e jury’s credibility findings, the
appellate court considers at the next step whether a reasonable
inference of guilt can be drawn from the circumstances proved,
viewed as a whole, and whether a reasonable inference
inconsistent with guilt can be drawn fro m the circumstances
proved, again viewed as a whole. State v. Al -Naseer, 788
N.W.2d 469, 474-75, 478-79 (Minn. 2010). This second step
does not encroach on the jury’s credibility determinations
because the act of inferring involves the drawing of permissible
deductions, not actual fact finding by the jury. See State v.
Jones, 266 Minn. 526, 124 N.W.2d 729, 731 (1963). The
second part of the second step —determining whether a
reasonable inference inconsistent with guilt can be drawn —
also ensures that ther e is no reasonable doubt as to the
defendant’s guilt.

Harris, 895 N.W.2d at 600-01 (emphasis added).

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Accordingly, the relevant circumstances proved are as follows: Tynes exchanged
text messages with Detective O’Keefe, who pretend ed to be Princess Kylie . In one text
message, Detective O’Keefe wrote, “im almost 16.” Tynes promptly responded by texting,
“No thanks pls don’t txt me.” But Tynes later resumed the exchange of text messages
without further prompting by Detective O’Keefe. Thereafter , no additional information
was provided to Tynes concerning Princess Kylie ’s age. Tynes testified that he did not
believe that Princess Kylie was younger than 16 , but that part of his testimony is not
credible.
At the second step of the analysis, we must “examine independently the
reasonableness of the inferences that might be drawn from the circumstances proved” and
“determine whether the circumstances proved are consistent with guilt.” Moore, 846
N.W.2d at 88 (quotations omitted). The state ’s theory is that, based on Detective
O’Keefe’s text message saying , “im almost 16,” Tynes reasonably believe d that Princess
Kylie was under the age of 16. We agree that the state’s inference is a reasonable inference
in light of the circumstances proved.
At the second step of the analysis, we also must “determine whether the
circumstances proved are . . . inconsistent with any rational hypothesis except that of guilt.”
Id. (quotation omitted). Tynes contends that the circumstantial evidence is consistent with
a rational hypothesis that he was not expecting an underage person at the apartment and
believed that he would be able to choose a n older prostitute upon his arrival . But that
hypothesis is inconsistent with the circumstances proved, which reflect the district court’s
specific finding that Tynes’s testimony on the central issue is not credible. In other words,

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the inference that Tynes is not guilty is not a reasonable inference in light of the fact that
the district court, having heard and considered his testimony, decided that the belief to
which he testified is simply not true. Thus, t he only rational hypothesis is that Tynes,
having received information that Princess Kylie was “almost 16,” reasonably believed that
she was only 15 years old.
Before concluding, we note that Tynes appears to contend that his conviction on
count 2 should be reversed as a matter of law in light of State v. Moser, 884 N.W.2d 890
(Minn. App. 2016), in which the defendant was convicted of electronically soliciting a 14-
year-old girl who claimed to be 16 years old. Id. at 894. This court reversed the
defendant’s conviction on the ground that the statute setting forth the offense was
unconstitutional as applied to the defendant, who had solicited the girl over the internet
without having met her in person , because the statute precluded him from asserting a
mistake-of-age defense. Id. at 905-06. Tynes appears to contend that his text messages
with Detective O’Keefe raise a similar constitutional issue. But this court rejected such an
argument in State v. Olson , 884 N.W.2d 906 (Minn. App. 2016), review denied (Minn.
Nov. 15, 2016), in which we reasoned that the due-process concerns implicated in Moser
are not present if the state is required to prove that a defendant reasonably believed that the
person being solicited was under the age of 16. Id. at 912. Furthermore, the girl in Moser
specifically stated that she was 16, whereas Detective O’Keefe specifically informed Tynes
that Princess Kylie was “almost 16,” which caused him to reasonably believe that she was
only 15 years old. Thus, Moser is not a basis for concluding that the statute at issue in this
case is unconstitutional or that the evidence in this case is insufficient.

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In sum, the evidence is sufficient to support Tynes’s convictions.
II. Multiple Sentences
Tynes also argues that the district court erred by imposing two sentences, one for
each offense, on the ground that the two offenses arise from a single behavioral incident.
See Minn. Stat. § 609.035, subd. 1 (2016); State v. Bakken, 883 N.W.2d 264, 270 (Minn.
2016); State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012). The state concedes that the
two offenses arise from a single behavioral incident and that this court should reverse and
remand the case to the district court for vacatur of one of the two formal adjudications and
its corresponding sentence. We agree. On remand, the district court shall resentence Tynes
by formally adjudicating and imposing a sentence on only one count.
Affirmed in part, reversed in part, and remanded.