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This opinion will be unpublished and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
A18-0884

State of Minnesota,
Respondent,

vs.

David Michael Dillard,
Appellant.

Filed March 18, 2019
Affirmed
Florey, Judge

Brown County District Court
File No. 08-CR-17-970

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

Charles W. Hanson, Brown County Attorney, Breck Rolfsrud, Assistant County Attorney,
New Ulm, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pu blic Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant David Michael Dillard appeals his conviction of first -degree criminal
sexual conduct, arguing that his Norgaard plea was not accurate because the factual basis

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failed to establish that there was a substantial likelihood a jury would find beyond a
reasonable doubt that he used force or coercion to accomplish s exual penetration. We
affirm.
FACTS
In September 2017, appellant was arrested on allegations of sexually assaulting a
family friend, 16-year-old K.G. The night before his arrest, appellant had been drinking
heavily at K.G.’s home with her mother and step father. Appellant was invited to stay t he
night in their living room.
After K.G.’s mother and step father went to b ed, appellant entered K.G.’s room
where she was sleeping. Appellant laid down in K.G.’s bed and kissed her. He digitally
and orally penetrated K.G., and attempted to vaginally penetrate her with his penis. K.G.
screamed, ran into her parents’ bedroom, and immediately reported the incident to her
mother, who called 9-1-1.
Appellant was arrested and charged with 11 counts of criminal sexual conduct. The
state notified appellant of its intention to seek an aggravated sentence on the grounds that
K.G. was particularly vulnerable due to age, and the offense was committed in a location
in which K.G. had an expectation of privacy.
In February 2018, appellant entered a Norgaard plea1 of guilty to count one: first -
degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(i) (2016). As part of the

1 A Norgaard plea is one in which the defendant “claims a loss of memory, through
amnesia or intoxication, regarding the circumstances of the offense,” but pleads guilty
because “the record establishes that the defendant is guilty or likely to be convicted of the

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agreement, the state abandoned its intention to seek an aggravated sentence. At the plea
hearing, appellant affirmed having seen a copy of the criminal complaint, that the events
therein occurred at a time when he was intoxicated, and that he had no recollection of the
events alleged. Appellant affirmed that he had reviewed the state’s evidence ag ainst him
and that he believed that , if the state’s evidence was presented at trial, there was a
substantial likelihood that a jury would find him guilty beyond a reasonable doubt.
As part of the factual basis to support his plea, appellant affirmed that he knew K.G.
and that he was at her home on the evening of the sexual assault . He affirmed his
understanding that K.G. gave a statement to law-enforcement officers reporting that
appellant “went into her room while she was asleep,” that he “removed her pants and
underwear,” that he “held her down and . . . touched her vaginal area with [his] mouth,”
that he “penetrated her vagina with [his] fingers,” that he “removed [his] pants
and . . . attempted to penetrate her vagina . . . with [his] penis,” and that “she felt a huge
shot of pain when [he] attempted to . . . enter her vagina with [his] penis.” Appellant also
affirmed his understanding that the collection of DNA samples “indicated that K.G.’s DNA
was on [his] penis.” The district court accepted appellant’s plea.
Appellant was convicted of first -degree criminal sexual conduct, and the district
court dismissed the remaining ten counts against him. Appellant was sentenced to an
executed prison term of 192 months. This appeal followed.

crime charged.” State v. Johnson , 867 N.W.2d 210, 215 (Minn. App. 2015) (quotations
omitted), review denied (Minn. Sept. 29, 2015).

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D E C I S I O N
There is no absolute right to withdraw a guilty plea after it has been entered. Perkins
v. State, 559 N.W.2d 678, 685 (Minn. 1997). However, “a court must allow withdrawal of
a guilty plea if withdrawal is necessary to correct a ‘manifest injustice.’” State v. Raleigh,
778 N.W.2d 90, 93 (Minn. 2010) (quoting Minn. R. Crim. P. 15.05, subd. 1). Manifest
injustice occurs if a plea is not valid. Id. at 94. A constitutionally valid plea must be
voluntary, intelligent, and accurate. Id.; see also Perkins , 559 N.W.2d at 688. The
defendant bears the burden of showing that his plea was invalid. Lussier v. State , 821
N.W.2d 581, 588 (Minn. 2012). The validity of a guilty plea is a question of law we review
de novo. Raleigh, 778 N.W.2d at 94.
A plea must be accurate to ensure that a defendant is not pleading guilty to a more
serious crime than that for which he could be convicted if his case went to trial. Id. An
accurate plea must be established on a proper factual basis. Lussier, 821 N.W.2d at 588.
A proper factual basis exists “if the record contains a showing that there is credible
evidence available which would support a jury verdict that defendant is guilty of at least as
great a crime as that to which he pled guilty.” Nelson v. State, 880 N.W.2d 852, 859 (Minn.
2016) (quotation omitted).
“Ordinarily, an adequate factual basis is established by questioning the defendant
and asking the defendant to explain in his or her own words the circumstances surrounding
the crime.” Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (quotation omitted) ,
review denied (Minn. Apr. 21, 2009) . If the defendant enters a Norgaard plea, however,
the factual basis must be established by other means. Id. In Williams, this court enunciated

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a two-prong standard for establishing a valid Norgaard plea: (1) the record must provide a
strong factual basis to satisfy the es sential elements of the offense and (2) the defendant
must “specifically acknowledge on the record at the plea hearing that the evidence the State
would likely offer against him is sufficient for a jury, applying a reasonable doubt standard,
to find the defendant guilty.” Johnson, 867 N.W.2d at 215 (quotation omitted); Williams,
760 N.W.2d at 12-14.
To convict appellant of first-degree criminal sexual conduct, the district court had
to find that the supporting factual basis satisfied the fo llowing statutory elements:
(1) appellant intentionally, and without consent, sexually penetrated K.G.; (2) appellant
caused personal injury to K.G.; and (3) appellant used force or coercion to accomplish the
act. Minn. Stat. § 609.342, subd. 1(e)(i); 10 Minnesota Practice, CRIMJIG 12.03 (2015);
see also State v. O’Brien, 364 N.W.2d 901, 904 (Minn. App. 1985) (“The elements of [first-
degree criminal sexual conduct] are (1) penetration, (2) personal injury to the victim, and
(3) penetration accomplished through force or coercion.”), aff’d as modified, 369 N.W.2d
525 (Minn. 1985).
Appellant argues that his Norgaard plea was inaccurate because it failed to establish
that there was a substantial likelihood that a jury would find, beyond a reasonable doubt,
that he used force or coercion to accomplish sexual penetration. Specifically, appellant
asserts (1) the factual basis “did not establish that [he] held K.G. down to overcome
resistance for the purpose of accomplishing penetration,” (2) “there was no evidence
offered that K.G. would testify that she felt threatened or feared that [he] would inflict
bodily harm upon her,” (3) “there was no evidence offered that K.G. said [appellant] used

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words or circumstances, confinement, or superior size or strength, to accomplish the sexual
penetration,” and (4) the state did not specify at the plea hearing that K.G.’s report of
feeling “a huge shot of pain when [appellant] attempted to . . . enter her vagina with [his]
penis,” would be evidence offered to prove force or coercion. We are not persuaded.
The factual basis established that appellant intentionally sexually penetrated K.G.
without her consent. Sexual penetration includes “any intrusion, however slight, of the
penis into the female genital opening,” or “any contact between the female genital opening
of one person and the mouth, tongue, or lips of another person,” or “[a]ny intrusion,
however slight, of any part of one person’s body . . . into the genital . . . openings of
another person’s body.” CRIMJIG 12.03; see also Minn. Stat. § 609.341, subd. 12 (2016).
At the plea hearing, appellant affirmed his understanding that K.G. reported he
“went into her room while she was asleep,” that he “removed her pants and underwear,”
that he “touched [K.G.’s] vaginal area with [his] mouth,” that he “penetrated her vagina
with [his] fingers,” and that he “removed [his] pants” and “attempted to penet rate her
vagina . . . with [his] penis.” Appellant also affirmed his understanding that the DNA
samples collected from him and K.G. “indicated that K.G.’s DNA was on [his] penis.”
The factual basis also established that appellant caused personal injury to K.G.
Physical pain constitutes personal injury. See Minn. Stat. §§ 609.341, subd. 8, .02, subd.
7 (2016); CRIMJIG 12.03. At the plea hearing, appellant affirmed his understanding that
K.G. reported “she felt a huge shot of pain when [appellant] attempted to . . . enter her
vagina with [his] penis.”

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And lastly , the factual basis established that appellant used force or coercion to
accomplish the offense. Minn. Stat. § 609.341, subd. 3 (2016), provides:
“Force” means the infliction, attempted infl iction, or
threatened infliction by the actor of bodily harm or commission
or threat of any other crime by the actor against the
complainant or another, which (a) causes the complainant to
reasonably believe that the actor has the present ability to
execute the threat and (b) if the actor does not have a significant
relationship to the complainant, also causes the complainant to
submit.

Minn. Stat. § 609.341, subd. 14 (2016), provides:
“Coercion” means the use by the actor of words or
circumstances that c ause the complainant reasonably to fear
that the actor will inflict bodily harm upon the complainant or
another, or the use by the actor of confinement, or superior size
or strength, against the complainant that causes the
complainant to submit to sexual penetration or contact against
the complainant’ s will. Proof of coercion does not require
proof of a specific act or threat.

At the plea hearing, appellant affirmed his understanding that K.G. reported he
“went into her room while she was asleep” and that he “held her down” while sexually
penetrating her. If this evidence had been presented to a jury, there is a substantial
likelihood that it would have found, beyond a reasonable doubt, that the circumstances in
which 39 -year-old appellant sexually assaul ted 16 -year-old K.G. —by entering her
bedroom, uninvited, slipping into her bed while she was sleeping, and holding her down—
caused K.G. reasonably to fear that appellant would inflict bodily harm upon her , and
ultimately caused K.G. to submit to the sexual penetration against her will . See Minn.
Stat. § 609.341, subd. 14; see, e.g., State v. Stufflebean, 329 N.W.2d 314, 316 (Minn. 1983)
(affirming defendant’s conviction of fourth -degree criminal sexual conduct, holding that

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the element of force or coercion was established by evidence that complainant awoke, with
part of her clothing removed, and with defendant “lying partially nude on top of her”); see
also State v. Carter, 289 N.W.2d 454, 455 (Minn. 1979) (affirming defendant’s conviction
of third-degree criminal sexual conduct, holding that, “although neither using actual force
nor verbalized threats of force,” 35 -year-old defendant, who drove 15 -year-old
complainant to “an isolated area,” “intentionally created an atmosphere of fear which
caused complainant to finally submit to his sexual advances”). The first prong of the
Williams standard was met.
The second prong of the Williams standard—that the defendant acknowledge on the
record at the plea hearing that the evidence is sufficient to support his or her conviction —
was also met. Before establishing the factual basis for count one, appellant affirmed that
“[he] believe[d] that if the State’s evidence was presented against [him] at trial, that there[]
[was] a substantial likelihood that [he] would be found guilty beyond a reasonable doubt
by a jury.” After establishing the factual basis through his ac knowledgment of the
statements K.G. gave to law enforcement , appellant, again, affirmed that “the testimony
that would be given, if consistent with these police reports and the forensic reports, in this
case would lead a jury to find [him] guilty beyond a reasonable doubt.”
Because the factual basis satisfied the statutory elements of first -degree criminal
sexual conduct, and because appellant acknowledged that the state’s evidence was
sufficient to support his conviction, the district court properly accept ed appellant’s
Norgaard plea.
Affirmed.