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This opinion will be unpublished and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
A18-1629

State of Minnesota,
Respondent,

vs.

Lawrence Raymond Burns,
Appellant.

Filed August 19, 2019
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-17-8159

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

Michael O. Freeman, Hennepin County Attorney, Charles S. Gerlach, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from his conviction for fourth-degree criminal sexual conduct,
appellant challenges the validity of his Norgaard plea. Because appellant tendered a valid
Norgaard plea and the record contains a sufficient factual basis to support his plea, we
affirm.
FACTS
Respondent State of Minnesota charged appellant Lawrence Raymond Burns with
fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(d) (2016), for
engaging in sexual contact with a victim, knowing or having reason to know that the victim
was physically helpless. Appellant entered a Norgaard plea1 and agreed to plead guilty to
the charged offense in exchange for a prison sentence. Appellant also signed a Norgaard
addendum, acknowledging that he reviewed the evidence the state would offer against him
at trial, did not recall the circumstances of the offense, believed there was a substantial
likelihood he would be found guilty beyond a reasonable doubt based on the strength of
the state’s evidence, an d did not claim he was innocent. At the plea hearing, appellant

1 In a Norgaard plea, the defendant enters a plea of guilty but “claims a loss of memory,
through amnesia or intoxication, regarding the circumstances of the offense but the record
establishes that the defendant is guilty or likely to be convicted of the crime charged.” State
v. Johnson, 867 N.W.2d 210, 215 (Minn . App. 2015) (quotations omitted), review denied
(Minn. Sept. 29, 2015); see also State ex rel. Norgaard v. Tahash , 110 N.W.2d 867, 871-
72 (Minn. 1961) ( affirming district court ’s acceptance of guilty plea where defendant
claimed loss of memory regarding circumstances of offense).

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entered a plea o f guilty to the charged offense. The district court accepted appellant’s
Norgaard plea and imposed the agreed-upon sentence. This appeal follows.
D E C I S I O N
I. Legal Standard
Appellant challenges the validity of his Norgaard plea. A defendant does not have
an absolute right to withdraw a guilty plea. State v. Raleigh , 778 N.W.2d 90, 93 (Minn.
2010). However, “a court must allow a defendant to withdraw a guilty plea, even after
sentencing, if ‘withdrawal is necessary to correct a manifest injustice.’” State v. Theis, 742
N.W.2d 643, 646 (Minn. 2007) (quoting Minn. R. Crim. P. 15.05, subd. 1 ). A manifest
injustice occurs if a plea is not valid. Raleigh, 778 N.W.2d at 94. To be valid, a plea must
be accurate, voluntary, and intelligent. Id. We review the validity of the plea de novo. Id.
II. Accuracy of Appellant’s Norgaard Plea
Appellant does not challenge the voluntary or intelligent nature of his plea, and the
sole issue presented on appeal is whether the Norgaard plea was accurate. “A guilty plea
is inaccurate if it is not supported by a proper factual basis.” Johnson, 867 N.W.2d 210 at
215. A factual basis is proper if there are sufficient facts on the record to establish that the
defendant’s conduct was within the charge to which he pleaded guilty. Id. If the
defendant’s statements during his plea negate an essential element of the offense, the
factual basis for the plea is inadequate. State v. Iverson , 664 N.W.2d 346, 350 (Minn.
2003). The adequacy of the factual basis is usually established by the defendant explaining
the circumstances surrounding the crime. State v. Ecker , 524 N.W.2d 712, 716 (Minn.
1994). In a Norgaard plea, a factual basis may be established if the defendant “claims a

4
loss of memory, through amnesia or intoxication, regarding the circumstances of the
offense” but the record establishes that “the defendant is guilty or likely to be convicted of
the crime charged.” Id.
a. Appellant’s Plea Qualifies as a Norgaard Plea
Appellant argues that his plea is invalid because it does not qualify as a Norgaard
plea. “A plea constitutes a Norgaard plea if the defendant asserts an absence of memory
on the essential elements of the offense but pleads guilty because the record establishes,
and the defendant reasonably believes, that the state has sufficient evidence to obtain a
conviction.” Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009), review denied (Minn.
Apr. 21, 2009). District courts should accept Norgaard pleas “with caution,” making
certain that the defendant understands his rights, as such a plea is not supported by the
defendant’s unequivocal admission of guilt. Ecker, 524 N.W.2d at 716-17.
Here, the district court stated at the hearing that appellant “ would be entering the
plea on a Norgaard basis.” Defense counsel agreed that appellant was entering a Norgaard
guilty plea, and led appellant through the plea petition. Appellant indicated that he
understood the plea petition and waived his right to a jury trial. The district court indicated
that appellant provided a “knowing, intelligent, and voluntar[y]” waiver of his rights, and
asked counsel to “go through the Norgaard portion of this plea” with appellant. Defense
counsel explained the Norgaard addendum to appellant on the record, and appellant
confirmed that his attorney “read through it line by line” with him. Appellant agreed that
by entering a Norgaard plea, he was stating that he could not “remember all of the detail
because of [his] state of intoxication.” The exchange continued:

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COURT: And do you have any recollection of the events that
happened that night?
DEFENDANT: Not in a whole year.
COURT: Okay. And were you intoxicated at the time of those
events?
DEFENDANT: Yes. I drank a half a bottle of whiskey.
COURT: And do you have any reason —
DEFENDANT: In a short period of time.
COURT: Do you have any reason to doubt the accuracy of the
reports that were compiled?
DEFENDANT: No.
COURT: Do you understand that [if] you went to trial, those
reports would be what the State’s witnesses would be testifying
to?
DEFENDANT: That is correct.
COURT: So you’ve told the Court that you believe that if there
was a trial, the evidence that would be in those reports would
be exactly what the witnesses would be testifying to.
DEFENDANT: Correct.
COURT: And you agree that there would be a substantial
likelihood that a jury would hear all that and find you guilty
beyond a reasonable doubt?
DEFENDANT: Correct.
COURT: And you’re not making any claim today that you’re
innocent of what those reports would say?
DEFENDANT: Not to my knowledge.
COURT: Well — okay.
DEFENDANT: I’m saying the knowledge that I — once I
looked at everything, questioned everything, put the reports

6
there, questioned it, broke it down, no. The jury would find me
guilty.
COURT: Okay.
DEFENDANT: There’s no doubt about it.
When entering a Norgaard plea, either counsel or the district court should “indicate
explicitly on the record” that the defendant is entering such a plea, and “[t]he defendan t
should be questioned directly regarding whether he or she understands the legal
implications of such a plea.” Ecker, 524 N.W.2d at 717. The exchange between the district
court and appellant demonstrates that this occurred. Appellant stated in his own words that
he could not remember the events due to intoxication , did not claim to be innocent, and
recognized that a jury would find him guilty given the state’s evidence. Appellant agreed
that by proceeding with the Norgaard plea, he would be “just as guilty as [he] would be if
[he] otherwise remembered the incident and were able to testify from [his] memory.” The
record establish es that appellant understood the terms of the plea agreement and the
Norgaard addendum, and wanted to plead guilty on that basis. Appellant’s plea constitutes
a valid Norgaard plea.
b. A Sufficient Factual Basis Supports the Charge
Appellant argues that even if his plea qualifies as a valid Norgaard plea, the factual
basis provided by the state did not support the criminal charge. Appellant entered a plea
of guilty to fourth -degree criminal sexual conduct, which provides that “[a] person who
engages in sexual contact with another person is guilty of criminal sexual conduct in the
fourth degree if . . . the actor knows or has reason to know that the complainant is mentally

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impaired, mentally incapacitated, or physically helpless.” Minn. Stat. § 609.345, subd.
1(d). “Sexual contact” includes “the intentional touching by the actor of the complainant’s
intimate parts.” Minn. Stat. § 609.341, subd. 11(a)(i) (2016). Such acts must be committed
without the complainant’s consent, and committed with sexual or aggressive intent. Id.,
subd. 11(a). “Physically helpless” includes a person who is “asleep or not conscious.” Id.,
subd. 9 (2016). “Intimate parts” include the genital area, groin, or inner thigh of another
person. Id., subd. 5 (2016).
The record contains ample evidence that the plea was accurate because appellant
engaged in prohibited sexual contact with the victim by touching her vagina while she was
physically helpless. A complaint “may provide a factual basis for a defendant’s plea, and
we are permitted to examine the complaint to assess whether a defendant’s plea was
accurate.” Sanchez v. State, 868 N.W.2d 282, 289 (Minn. App. 2015) (citation omitted),
aff’d, 890 N.W.2d 716 (Minn. 2017). According to the complaint and the probable -cause
statement, the victim told a police officer that she fell asleep in an empty bedroom during
a party and woke up to an unknown male rubbing her vagina. The prosecutor questioned
appellant at the plea hearing:
PROSECUTOR: And would you agree that [the victim] would
testify that she felt you touching her down by her vagina?
DEFENDANT: That’s what I would h ave — that’s what I
believe would be said by the reports and her statement that she
gave the police.
PROSECUTOR: Yeah. And based on all of the reports, you
would agree that [the victim] was sleeping when the touching
started?

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DEFENDANT: That’s my understanding, yes. It’s —
PROSECUTOR: . . . And that she never gave you permission
to do this, to touch her on her — outside of —
DEFENDANT: No.
PROSECUTOR: — her vagina? No. All right.
The state also presented forensic evidence that the victim’s DNA was present on
appellant’s hands. The record evidence demonstrates that appellant engaged in prohibited
sexual contact with the victim by touching her vagina, and that she did not consent to the
sexual contact because she was asleep.
Appellant acknowledges that the state’s evidence “ was sufficient to convict him,”
but claims that the state did not present direct evidence regarding his state of mind at the
time of the offense. Appellant offers an alternative explanation for the evidence, claiming
that the sexual contact was “a momentary touch involving a mistake.” Criminal sexual
conduct, however, does not require any specific intent on the part of the actor; all that is
required is the general intent to do the prohibited act . See State v. Lindahl , 309 N.W.2d
763, 766-67 (Minn. 1981) (noting that only general intent is required for criminal -sexual-
conduct offenses and that voluntary intoxication is not a defense to general-intent crimes);
see also State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012) (“[G]eneral intent only requires
an intention to make the bodily movement which constitutes the act which the crime
requires.”).
“[R]egardless of whether an offense is described as a specific - or general -intent
crime, a defendant must voluntarily do an act or voluntarily fail to perform an act.” Fleck,
810 N.W.2d at 309 (quotation omitted). “The volitional requirement is generally expressed

9
in terms of an exercise of the will. A reflex movement is not subject to the control of the
will.” Id. (quotation omitted). Here, the victim reported that appellant touched her vagina
while she was asleep. During the plea hearing, appellant acknowledged that the victim
would testify that she felt appellant touching her vagina , and there is no indication in the
record that appellant’s touching of the victim was anything other than a volitional act . In
addition, a ppellant agreed that he was not claiming to be innocent of the charge,
acknowledged that the jury would find him guilty, and agreed that the “state’s evidence
was sufficient to convict him.” Ecker, 524 N.W.2d at 717. The factual basis established
by the state’s anticipated evidence, and appellant’s admission that there was a substantial
likelihood the jury would find him guilty beyond a reasonable doubt, supports each element
of the charge.
Lastly, appellant argues that his plea was inaccurate because it was based on leading
questions by the prosecutor. “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, 760 N.W.2d at 12 (quotation omitted) .
As such, the use of leading questions to establish a Norgaard plea is discouraged. Ecker,
524 N.W.2d at 717. However, a prosecutor’s use of lea ding questions will not invalidate
a guilty plea as long as there is a sufficient factual basis in the record. Raleigh, 778 N.W.2d
at 95-96. Here, appellant testified that he reviewed the evidence, the plea petition, and the
Norgaard addendum with his attorney, and agreed that the testimony presented by the state
would be sufficient to convict him of the charged crime. The district court questioned
appellant to ensure that he understood his rights, and determined that an adequate factual

10
basis was established despite the prosecutor’s use of leading questions . The record
demonstrates that appellant’s guilty plea is supported by a sufficient factual basis. Because
appellant’s Norgaard plea was accurate, voluntary, and intelligent, we affirm.
Affirmed.