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This opinion will be unpublished and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
A18-0850

State of Minnesota,
Respondent,

vs.

Darren Heath Degroot,
Appellant.

Filed April 22, 2019
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge
Concurring in part, dissenting in part, Cleary, Chief Judge

Nobles County District Court
File No. 53-CR-17-129

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

Kathleen A. Kusz, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistan t Nobles County Attorney, Slay ton, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Stauber, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Darren Heath Degroot appeals after the district court found him guilty of
attempted third- and fourth-degree criminal sexual conduct; ele ctronic solicitation of a
child to engage in sexual conduct (solicitation); electronic co mmunication with a child
describing sexual conduct (communication); and electronic distr ibution of any material,
language, or communication that r elates to or describes sexual conduct to a child
(distribution). He argues that t hree convictions must be vacat ed as lesser-included
offenses, and cannot be sentenced in any event, because they we r e p a r t o f a s i n g l e
behavioral incident. Finally, appellant argues that the district court erred when it imposed
lifetime conditional release becau se he was convicted of attemp ted third-degree criminal
sexual conduct. We affirm in part, reverse in part, and remand.
FACTS
Appellant was visiting Grindr 1 one morning around 9:30 a.m., from his home in
Edgerton. He began messaging the profile of a person named “Jo hnny.” Johnny was
actually a decoy profile set up by Special Agent John Nordberg as part of an undercover
operation. After a brief exchange, appellant asked if Johnny had ever been with a guy and
if he was a “bottom,” a term for someone who receives sexual pe netration. Johnny
responded that he “messed around a bit,” but he was “kinda young” and did not know if he
was a bottom. Johnny then stated “I’m 14, is that ok?” Appell ant replied “[o]h wow u r

1 Grindr is a social-media platform for, among other things, locating same-sex partners.

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young.” Despite having been inf ormed that he was talking to a 14-year-old, appellant
continued to send sexually expli cit messages. He asked if John ny had ever had anal
intercourse and if he was a “tight boy.” Appellant also sent several photos of an erect penis
and requested that Johnny send a picture of his buttocks.
Johnny gave appellant his cellular phone number, and the two began communicating
through text messages as well as the Grindr application. Appellant asked if Johnny would
like to try “dad son” which appellant explained as “[u]r my son I’m ur daddy n I do sexy
things to u” and “I cuddle u I take shower with u I give u cum in ur hole I play with ur butt
n penis I teach u new things.” Appellant then asked if Johnny was really 14. Johnny replied
that he was and asked if that was ok. Appellant replied “[y]es that’s ok bud.” He also
expressed a desire to have anal intercourse with Johnny.
After Johnny stated that he was home alone, the two arranged for appellant to meet
Johnny in Worthington for a sexual encounter. When appellant left his house in Edgerton,
he told Johnny he would be in Wo rthington in 45 minutes. While en route, appellant
continued to message Johnny, asking for directions and sending sexually explicit messages
including a request for Johnny to perform fellatio on him and a short video of himself
saying “hey son, it’s your daddy.” Johnny directed him to a ho use where Johnny was
supposedly staying. Appellant arrived around 3:00 p.m. He was arrested as he got out of
the vehicle. Officers searched appellant and found a leather b e l t , a n e n e m a , p e r s o n a l
lubricant, and a plastic spoon.
Appellant was charged with (1) attempted third-degree criminal sexual conduct in
violation of Minn. Stat. §§ 609. 344, subd. 1(b), and .17, subd. 1 (2016); (2) attempted

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fourth-degree criminal sexual conduct in violation of Minn. Sta t. §§ 609.345, subd. 1(b)
(2016), and .17, subd. 1; (3) electronic solicitation of a chil d to engage in sexual conduct
in violation of Minn. Stat. § 609.352, subd. 2a(1) (2016); (4) electronic communication
with a child describing sexual conduct in violation of Minn. St at. § 609.352, subd. 2a(2)
(2016); and (5) electronic dist ribution of any material, langua ge, or communication that
relates to or describes sexual conduct to a child in violation of Minn. Stat. § 609.352, subd.
2a(3) (2016). After a bench trial, the district court found him guilty of all counts.
At sentencing, the district cour t adjudicated appellant guilty of attempted third-
degree criminal sexual conduct, solicitation, and distribution. The district court refrained
from adjudicating either the fourth-degree criminal sexual cond uct or the electronic-
communication offenses. It found that these offenses were necessarily proved by proof of
attempted third-degree criminal sexual conduct and electronic s olicitation. The district
court’s warrant of commitment ne vertheless indicates that judgm ent of conviction was
entered all five counts.
The district court sentenced appellant on the convictions for attempted third-degree
criminal sexual conduct, electronic solicitation, and electronic distribution. It reasoned that
the three crimes were not part of one behavioral incident becau s e t h e o f f e n s e s w e r e
committed at different times and places. The district court al so stated without further
elaboration that there were different motivations for the three sentenced crimes. Using the
Hernandez2 method of sentencing, the district court sentenced appellant i n the order that

2 Under State v. Hernandez , a district court sentencing a defendant on the same day for
multiple convictions based on multiple offenses that were not part of “a single behavioral

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the crimes were committed: a stayed sentence of 15 months in p rison on the distribution
offense, a stayed sentence of 20 months in prison on the solici tation offense, and an
executed sentence of 30 months in prison for attempted third-de gree criminal sexual
conduct. The district court al s o i m p o s e d a l i f e t i m e - c o n d i t i o n al-release term. In its
sentencing order, and thoughtfully anticipating the then-unresolved legal issue concerning
whether appellant’s conduct was sufficient to amount to an attempt, the district court stayed
the sentences pending appeal.
This appeal followed.
D E C I S I O N
I. The district court did not err in finding appellant guilty o f attempted third-
and fourth-degree criminal sexual conduct.

Appellant argues that the evidenc e is insufficient to prove an attempt to commit
third- or fourth-degree criminal sexual conduct. “In consideri ng a claim of insufficient
evidence, the record is reviewed t o determine whether the evide nce, when viewed in the
light most favorable to the conviction, is sufficient to allow the jurors to reach their
verdict.” State v. Olhausen, 681 N.W.2d 21, 25 (Minn. 2004 ). Appellate courts use the
same standard of review in bench trials. State v. Palmer , 803 N.W.2d 727, 733 (Minn.
2011).
To be found guilty of an attempt, the defendant must intend to commit a crime and
must take a substantial step toward the commission of that crim e. Minn. Stat. § 609.17,

incident or course of conduct” can increase the defendant's cri minal-history score
incrementally as each successive sentence is imposed. 311 N.W.2d 478, 481 (Minn. 1981).

6
subd. 1; State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980). An attempt is an inchoate crime
that must be connected to an uncompleted substantive crime. State v. Noggle, 881 N.W.2d
545, 549 (Minn. 2016). Here, the substantive crimes charged ar e third-degree criminal
sexual conduct and fourth-degree criminal sexual conduct.
A person commits third-degree criminal sexual conduct when he engages in “sexual
penetration” with a complainant who is “at least 13 but less th an 16 years of age and the
actor is more than 24 months older than the complainant.” Minn . Stat. § 609.344, subd.
1(b). “Sexual penetration” is defined to include “sexual intercourse, cunnilingus, fellatio,
or anal intercourse; or . . . any intrusion however slight into the genital or anal openings.”
Minn. Stat. § 609.341, subd. 12 ( 2016). The elements for fourt h-degree criminal sexual
conduct are the same except it prohibits “sexual contact” rather than “sexual penetration.”
Minn. Stat. § 609.345, subd. 1(b). “Sexual contact” is defined to include “the intentional
touching by the actor of the comp lainant’s intimate parts.” Mi nn. Stat. § 609.341, subd.
11(a)(i) (2016). Accordingly, in order to prove attempted third- and fourth-degree criminal
sexual conduct, respectively, the state was required to prove appellant intended to sexually
penetrate and have sexual contact with a complainant who is “at least 13 but less than 16
years of age and the actor is more than 24 months older than the complainant” and that he
took a substantial step toward sexually penetrating and having sexual contact with that
complainant. Minn. Stat. §§ 609.17 (2016), .344, subd. 1(b), .345, subd. 1(b).
Appellant, a 36-year-old man who believed that he was communic ating with a 14-
year-old child, does not challenge the sufficiency of the evidence concerning his intent. He
sent Johnny numerous messages explaining what sexual acts he would like to perform with

7
him, including anal intercourse, touching Johnny’s genitals and buttocks, and fellatio.
Appellant arranged to travel to Johnny’s house in preparation to perform those acts. This
amply proves appellant’s intent to sexually penetrate and have sexual contact with a
complainant who is “at least 13 but less than 16 years of age” and that appellant is “more
than 24 months older tha n the complainant.” See State v. Edrozo , 578 N.W.2d 719, 723
(Minn. 1998) (noting that a defe ndant’s own words are directly relevant and highly
probative of intent).
In order to prove an attempt crime, the state is also required to prove that appellant
took a substantial step toward the commission of the charged offense. Minn. Stat. § 609.17,
subd. 1. The supreme court has stated that what constitutes a substantial step for purposes
of an attempt largely depends on the particular facts of the case. State v. Dumas, 136 N.W.
311, 314 (Minn. 1912). Generally, a person must commit “an overt act or acts tending, but
failing, to accomplish” the crime. Id. “The overt acts need not be such that, if not
interrupted, they must result in the commission of the crime.” Id. But the act or acts must
be more than mere preparation. Id.
Our recent decision in State v. Wilkie is instructive. 924 N.W.2d 38 (Minn. App.
2019), pet. for review filed (Minn. Feb. 27, 2019). In that case, the defendant arranged,
through social media, to meet a child to engage in sexual penet ration, sent explicit
photographs to the child, negotiated to meet at the child’s home, obtained directions to the
house, went to the location, and knocked on the door. Id. at 39-40. We reasoned that the
only purpose for the in-person meeting was to engage in sexual penetration and that the
defendant’s actions were not remote in time or place from the i ntended crime. Id. at 42.

8
Under these circumstances, we concluded that the evidence was sufficient to prove that the
defendant took a substantial step toward committing third-degree criminal sexual conduct.
Id. at 42-43.
The facts here are similar to those in Wilkie. Appellant questioned Johnny, who he
believed to be a 14-year-old child, regarding his sexual experi ence, solicited Johnny to
engage in sexual activity, sent explicit photographs, and arranged, via social media, to meet
Johnny to engage in sexual contact and penetration. He obtained directions to meet Johnny
and drove a significant distance—from Edgerton to Worthington—i n order to engage in
sexual activity with him. Cf. Minn. Stat. Ann. § 609.17 advisory comm. cmt. (West 1963)
(“For example, ‘A’ buys a gun to hold up a bank. . . . If . . . he goes to the bank and on
arriving is frightened away by the presence of police this prob ably would constitute an
attempt in most jurisdictions, including Minnesota.”). These a ctions were not remote in
time or place from the intended crimes. Upon arrival at Johnny ’s house, “the only thing
left to take place was sexual penetration.” Wilkie, 924 N.W.2d at 42. Here, the facts
amounting to a step toward commission of the charged offenses are at least as substantial
as those in Wilke. Appellant drove all the way from Edgerton to Worthington,
communicating his sexual intent all along the way via electroni c communications to who
he believed to be a 14-year-old child with whom he wanted to imitate intrafamilial sex acts.
He gathered up and brought with h im multiple items designed to aid in the encounter he
was anticipating. On this record, and in light of our holding in Wilke, the evidence is easily
sufficient to prove a substantial step toward completion of third- and fourth-degree criminal
sexual conduct.

9
Appellant argues that he cannot be found guilty of attempting s exual conduct with
a 14-year-old, because he was in fact communicating with Agent Nordberg, a 47-year-old
man, and the state was required to prove the existence of a com plainant between the ages
of 13 and 16 years old.
At its core, appellant’s argument is that it was impossible for him to commit the
crimes of third- and fourth-degree criminal sexual conduct and he therefore cannot be
guilty of an attempt to commit the impossible crimes. But impossibility is not a defense to
an attempt. “An act may be an attempt notwithstanding the circ umstances under which it
was performed or . . . the act itself were such that the commis sion of the crime was not
possible, unless such impossibility would have been clearly evident to a person of normal
understanding.” Minn. Stat. § 609.17, subd. 2; see also State v. Bird , 285 N.W.2d 481,
482-83 (Minn. 1979) (recognizing that neither factual nor legal impossibility is a defense
to an attempt charge under Minn. Stat. § 609.17). The state was not required to prove the
existence of a complainant betwe en the ages of 13 and 16 years old in order to prove an
attempt.
II. The electronic-distribution charge is an included offense o f the solicitation
charge.

Appellant next argues that his convictions for attempted fourth -degree criminal
sexual conduct, electronic communication with a child describin g sexual conduct, and
electronic distribution of any material, language, or communica tion describing or related
to sexual conduct to a child must be vacated because all are included offenses of attempted

10
third-degree criminal sexual conduct. Whether a crime is an included offense is a question
of law, which is reviewed de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
The state agrees that appellant cannot properly be convicted of the attempted fourth-
degree criminal sexual conduct and electronic-communication offenses. At the sentencing
hearing, the district court reco gnized that the attempted fourt h-degree criminal sexual
conduct and communication offenses are lesser-included offenses. As a result, the district
court explicitly declined to adj udicate appellant guilty of tho se counts. The warrant of
commitment, however, indicates that appellant was convicted of those counts. The oral
sentence prevails over the written order. State v. Staloch , 643 N.W.2d 329, 331 (Minn.
App. 2002).
Because the warrant of commitment reflects that appellant was a djudicated of all
five counts, we remand to the district court to correct the warrant of commitment and vacate
the judgments of conviction err oneously entered for attempted f ourth-degree criminal
sexual conduct and electronic distribution of sexual material to a child. See Minn. R. Crim.
P. 27.03, subd. 10 (“Clerical mistakes in a judgment, order, or in the record arising from
oversight or omission may be corrected by the court at any time . . . .”).
The state argues that the distribution count is not an included offense of solicitation,
and that appellant was properly convicted of and sentenced for both of these proved
offenses. A defendant “may be convicted of either the crime charged or an included offense
but not both.” Minn. Stat. § 609 .04, subd. 1 (2016). A crime necessarily proved upon
proof of another crime is an included offense. Minn. Stat. § 6 09.04, subd. 1(4). When
determining if multiple convictio ns are prohibited, the court m ust compare the statutory

11
elements of both crimes and determine whether the elements of t he crimes are different.
State v. Holmes , 778 N.W.2d 336, 340 (Minn. 2010). In the present context, if it is
impossible to commit the solicitation offense without also comm itting the electronic-
distribution offense, then the latter is a lesser-included offense. State v. Roden, 384 N.W.2d
456, 457 (Minn. 1986).
The distribution charge is a lesser-included offense of solicitation because proof of
the latter necessarily proves the former. Both crimes require an actor who is 18 years of
age or older, use of electronic means, and intent to arouse sex ual desire of any person.
Minn. Stat. § 609.352, subd. 2a (2016). The crimes differ in o nly one element. The
solicitation offense prohibits soliciting a child to engage in sexual conduct, while the
distribution offense prohibits dis tributing any material, langu age, or communication that
relates to or describes sexual conduct to a child. Minn. Stat. § 609.352, subd. 2a(1), (3).
“Solicit” is defined to include “commanding, entreating, or att empting to persuade a
specific person . . . by computer ized or other electronic means .” Minn. Stat. § 609.352,
subd. 1(c) (2016). “Commanding, entreating, or attempting to p e r s u a d e ” a c h i l d
necessarily requires that the actor direct some sort of material, language, or communication
towards the child. And because the solicitation charge requires that the person solicit the
child to engage in sexual conduct, that solicitation necessaril y “relates to or describes
sexual conduct.” We cannot discern how a person could solicit a child “by computerized
or other electronic means” to engage in sexual conduct without also distributing a
communication that relates to sexual conduct to that child. Ac cordingly, the electronic-

12
distribution charge under Minn. S tat. § 609.352, subd. 2a(3), i s a lesser-included offense
of the solicitation charge under Minn. Stat. § 609.352, subd. 2a(1).
Even though the distribution co unt is a lesser-included offense, appellant may still
be convicted for both crimes i f the offenses constitute separat e criminal acts. State v.
Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). Here, the district court b ased appellant’s
solicitation conviction on appellant’s messages where he planned a sexual encounter with
Johnny, and said that he wanted to touch Johnny’s genitals, see his buttocks, and make
Johnny feel good. The district c ourt recognized that these mes sages could also form the
basis for the distribution conviction. But the court relied on the explicit photographs, video,
and discussion of a father/son fetish when it found that the state had proved the distribution
charge. We must decide whether these are separate criminal acts.
“The inquiry into whether two offenses are separate criminal a cts is analogous to an
inquiry into whether multiple offenses constituted a single behavioral incident under Minn.
Stat. § 609.035.” Id. Because appellant also argues that his sentences must be reve rsed
based on Minn. Stat. § 609.035 (2016), the analysis of whether appellant’s offenses
constitute separate criminal act s is identical to the single be havioral incident analysis
below.
III. All five offenses were part o f one behavioral incident.

Appellant argues that all five offense were based on the same behavioral incident
and that the district court therefore erred by imposing multiple sentences. “[I]f a person’s
conduct constitutes more than on e offense . . . , the person ma y be punished for only one
of the offenses . . . .” Minn. Stat. § 609.035, subd. 1. This means a district court “cannot

13
impose multiple sentences (even c oncurrent sentences) for multi ple offenses committed
against the same victim in a single behavioral incident.” State v. Herberg , 324 N.W.2d
346, 348 (Minn. 1982). When, as here, multiple charged offenses have an intent element,
determining whether a course of conduct consists of a single be havioral incident requires
examination of whether the crimes occurred at substantially the same time and place, and
whether the conduct was motivated by an effort to obtain a single criminal objective. State
v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). But “the essential ingredient” is “whether
the segment of conduct involved was motivated by an effort to o btain a single criminal
objective.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (quotation omitted)
(emphasis omitted).
The state bears the burden of sho wing by a preponderance of the evidence that the
conduct underlying multiple offenses did not occur as part of a single behavioral incident.
State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000). Whether the offenses were part
of a single behavioral incident is a mixed question of law and fact. Bakken, 883 N.W.2d
at 270. An appellate court reviews the district court’s findin gs of fact for clear error and
its application of the law de novo. Id. This inquiry is not “mechanical,” but instead requires
consideration of all facts and circumstances. Id.
We start by determining whether appellant’s offenses were motiv ated by one
criminal objective. When analyzing this factor, we consider “w hether all of the acts
performed were necessary to or incidental to the commission of a single crime and
motivated by an intent to commit that crime.” Id. at 271 (quotation omitted).

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Here, all of appellant’s acts were motivated by an intent to co mmit the crime of
third-degree criminal sexual c onduct. As discussed above, appe llant was properly found
guilty of attempt because he intended to commit the crime of third-degree criminal sexual
conduct and took a substantial step toward committing it. The electronic-solicitation and
distribution offenses were committed in order to accomplish the criminal sexual conduct.
See State v. Longo , 909 N.W.2d 599, 611 (Minn. App. 2018) (“When an offense is
committed with the intent of fac ilitating another offense or is but a means toward
committing another offense, the offenses are part of the same behavioral incident.”). When
appellant solicited Johnny to engage in anal intercourse, his i ntent was not to stop at
solicitation. Appellant desired to actually engage in that sexual activity—as evidenced by
appellant’s concession on appeal t hat he intended to commit the s e x o f f e n s e s — a n d
soliciting Johnny was a means to that end. When appellant sent explicit photos, messages,
and a video, his actions were part of his attempted grooming of Johnny to engage in sexual
activity. See State v. Muccio , 890 N.W.2d 914, 924 (Minn. 2017) (noting that sexual
predators often expose a child to sexual content in order to desensitize the child and lower
the child’s inhibitions with resp ect to later criminal sexual a cts). And, as discussed,
appellant took a substantial step toward completion of the thir d-degree criminal sexual
conduct. In this context, appella nt’s purpose in distributing sexual material was “both
linked to and designed to facilita te the commission of the late r crime” of criminal sexual
conduct. Id.
It is true that broad statements of criminal purpose do not cre ate a single course of
conduct. Cf. Bakken, 883 N.W.2d at 271 ( concluding possession of multiple images o f

15
child pornography was not a single criminal purpose of satisfyi ng sexual urges). But
appellant’s actions here were ste ps toward sexual contact and p enetration with Johnny.
Compare State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997) (“[O]btaining as much money
as possible is too broad an objective to constitute a single criminal goal within the meaning
of section 609.035.”), with Langdon v. State , 375 N.W.2d 474, 476 (Minn. 1985)
(concluding that stealing “as much money as he could that afternoon from the coin boxes
on the washers and dryers in the several laundry rooms within t he apartment complex” to
be a single criminal objective).
The offenses also occurred at s ubstantially the same time. Alt hough the offenses
took place over several hours, they were part of a continuous conversation that culminated
with an attempted third-degree sex crime. See State v. Jones, 848 N.W.2d 528, 533 (Minn.
2014) (concluding the defendant’s offenses occurred at substant ially the same time when
he sent 33 text messages to the victim in a two-and-a-half-hour span). The offenses took
place in separate locations. Appellant sent the explicit photo graphs and messages from
Edgerton but the attempt was completed in Worthington. This do es not compel a
conclusion that the offenses were not part of one behavioral in cident. See Herberg, 324
N.W.2d at 349 (concluding that although two acts of criminal se xual conduct occurred in
separate places, they were still part of a single course of con duct because the defendant’s
underlying motivation remained the same). Considering all the facts and circumstances,
we conclude that appellant’s offe nses were all part of one beha vioral incident.
Accordingly, the district court erred when it imposed multiple sentences.

16
We reverse and remand for the district court to vacate appellan t’s convictions for
electronic distribution and attemp ted fourth-degree criminal se xual conduct. We also
reverse appellant’s multiple sentences and remand to the district court to sentence appellant
only for the most serious crime, attempted third-degree criminal sexual conduct. See State
v. St. John , 847 N.W.2d 704, 708 (Minn. App. 2014) (noting that section 60 9.035
contemplates that a defendant w ill be punished for the most ser ious offense because
imposing up to the maximum punishment includes punishment for all offenses).
IV. The district court erred when it imposed a lifetime conditional release.

Appellant argues that the distric t court erred in imposing a li fetime conditional
release. The state agrees. A mandatory lifetime conditional r elease is imposed when a
person is convicted of third-degree criminal sexual conduct and has a previous sex offense.
Minn. Stat. § 609.3455, subd. 7(b) (2016). But the statute does not authorize the imposition
of a conditional release term w hen a person is convicted of attempted criminal sexual
conduct. Id.; see also Noggle, 881 N.W.2d at 550-51 (holding that Minn. Stat. § 609.3455,
subd. 6 (2014), does not authorize the imposition of a ten-year-conditional-release term for
attempted third-degree criminal sexual conduct). The district court erred when it imposed
a lifetime-conditional-release term.
In sum, we affirm in part, reverse in part, and remand. On remand, the district court
must (1) vacate appellant’s convi ctions for electronic distribu tion of sexual material to a
child and attempted fourth-degree criminal sexual conduct, (2) correct the warrant of
commitment to reflect convictions for only electronic solicitat ion and attempted third-

17
degree criminal sexual conduct, and (3) resentence appellant fo r only attempted third-
degree criminal sexual conduct.
Affirmed in part, reversed in part, and remanded.

C/D-1
CLEARY, Chief Judge (concurring in part, dissenting in part)
While I concur with the majority’s opinion, affirming the conv ictions for electronic
communication with a child describing sexual conduct and electronic solicitation of a child
to engage in sexual conduct, correcting the warrant of commitme nt, vacating appellant’s
convictions for attempted fourth-degree criminal sexual conduct and electronic distribution
of sexual material to a child, and remanding for resentencing, I respectfully dissent from
the majority’s decision to affirm the judgment of conviction fo r attempted third-degree
criminal sexual conduct charges under Minn. Stat. §§ 609.344, subd. 1(b), .345, subd. 1(b)
(2016).
The majority concludes that the totality of Degroot’s conduct constitutes a
substantial step toward committi ng third- and fourth-degree cri minal sexual conduct. I
disagree. As I outlined in my dissent in State v. Wilkie , conduct such as Degroot’s
constitutes mere preparation. 9 24 N.W.2d 38, 43-44 (Minn. App. 2019) (Cleary, C.J.,
dissenting), pet. for review filed (Minn. Feb. 27, 2019). I will not repeat all of my analysis
from Wilkie, but in summary, the caselaw illustrating “attempt” in felony level sex-related
crimes involves physical contact, words delivered in person, or an attack. See id. at 43
(discussing caselaw surrounding attempt in sex-related crimes). I believe the majority in
Wilkie erroneously expanded the legal definition of an “attempt” by c oncluding that
knocking on the front door of a decoy’s house—an act that does not involve physical
contact, words delivered in person, or an attack—constitutes a substantial step toward a
crime that requires sexual penetration. Id. at 43-44. In this case, the majority expands that
definition even further. Degroot never made it onto property w here the criminal conduct

C/D-2
was to occur: the officers immediately arrested him after he p arked his vehicle in the lot
across the street from the decoy’s house. Once again, the majority conflates the Degroot’s
intent to commit the crime with t he drive to the parking lot an d labels it “an attempt.”
Under these circumstances, it cannot be said that Degroot’s act ions were more than mere
preparation.
While Degroot’s conduct was r epugnant and illegal, the convict ions for electronic
communication with a child describing sexual conduct and electronic solicitation of a child
to engage in sexual conduct more accurately and more specifical ly address his criminal
conduct. Accordingly, I would reverse the judgment of conviction on the attempted third-
degree criminal sexual conduct ch arges and remand for resentenc ing on the remaining
convictions.