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This opinion will be unpublished and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
A19-0405

State of Minnesota,
Respondent,

vs.

Jon Andrew Burlingame,
Appellant.

Filed January 27, 2020
Affirmed in part, reversed in part, and remanded
Klaphake, Judge*

Wadena County District Court
File No. 80-CR-17-325

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Kyra L. Ladd, Wadena County Attorney, Wadena, Minnesota (for respondent)

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

Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and
Klaphake, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment 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
KLAPHAKE, Judge
Appellant Jo n Andrew Burlingame challenges his convictions for electronic
solicitation of a child to engage in sexual conduct, Minn. Sat. § 609.352, subd. 2a(1) (2014),
and electronic communication with a child describing sexual conduct, Minn. Stat.
§ 609.352, subd. 2a(2) (2014), arguing that the evidence is insufficient on the solicitation
offense, the district court erred by rejecting his entrapment defense, and he was erroneously
convicted of both offenses when the electronic -communication offense was a lesser -
included offense of the solicitation offense. Because the electronic-communication offense
is a lesser -included offense of the solicitation offense, we reverse and remand for the
district court to vacate that conviction, but we otherwise affirm.
D E C I S I O N
In considering a claim of insufficient evidence, an appellate court conducts a
detailed review of the record to determine whether the evidence, when viewed in the light
most favorable to the conviction, is sufficient to support a guilty verdict. State v. Caldwell,
803 N.W.2d 373, 384 (Minn. 2011). Applying both the presumption of innocence and the
requirement of proof beyond a reasonable doubt, we will not disturb a conviction if the
fact-finder could reasonably conclude that the defendant was g uilty. State v. Ortega, 813
N.W.2d 86, 100 (Minn. 2012). For sufficiency claims, convictions resulting from bench
trials apply the same standard of review as those resulting from jury trials. State v. Levie,
695 N.W.2d 619, 626 (Minn. App. 2005).

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Burlingame was convicted of child-solicitation, which includes “ soliciting a child
or someone the person reasonably believes is a child to engage in sexual conduct.” Minn.
Stat. § 609.352, subd. 2a(1). “Solicit” for purposes of this statute is defined as
“commanding, entreating, or attempting to persuade a specific person.” Id., subd.
1(c)(2014). Burlingame argues that the state did not meet its burden to prove that he
solicited a law enforcement officer posing as a fifteen -year-old girl, “Sabrena,” to engage
in sexual conduct because text messages he sent to Sabrena are “devoid of any commands,
serious requests, or attempts to persuade [her] to engage in sexual conduct and he never
attempted to meet with [her].” We disagree.
While the evidence does not show that Burlingame directly commanded or entreated
Sabrena to engage in sexual conduct , it does show that he employed a persistent , indirect
method to persuade her to engage in sexual conduct with him. As we have previously
noted, solicitation is alway s “in some degree[,] ambiguous” and may be “implied by the
defendant’s words” or acts. State v. McGrath , 574 N.W.2d 99, 102 (Minn. App. 1998)
(quotation omitted), review denied (Minn. Apr. 14, 1998). During four days of increasingly
sexually explicit electronic communications, Burlingame incrementally linked himself and
his sexual desires to Sabrena, asking for an exclusive relationship, describing his penis to
her, masturbating while he engaged her in conversation, sending and seeking “hot”
photographs,1 graphically describing their potential sexual liaisons, establishing that she

1 Burlingame posits that the state “attempts to imbue meaning to [his] requests for
photographs” that does not exist, suggesting that they were merely his attempt to verify
Sabrena’s age. This view of the evidence is contrary to the district court’s finding of guilt

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lived within driving distance, and, finally, suggesting that he “come over” while her mother
was not home. His statements could only be intended to persuade Sabrena to engage i n
some form of sexual conduct with him. See id. at 101 (allowing “a plausible inference that
[the perpetrator] intended to engage [the child victim] in some form of sexual conduct”
when the perpetrator simultaneously bumped the victim’s hip and “stated th at he was
‘horny’ when he was young and explained how he was able to ejaculate ‘five times in a ten
minute period’”).
Burlingame next argues that the district court erred by determining that he did not
meet his burden to prove that he was entrapped by law enforcement during his
communications with Sabrena. “[O]fficers of the law shall not incite crime to punish its
perpetrator, [and] shall not lead a man into crime . . . .” State v. Boylan, 197 N.W.2d 281,
281 (Minn. 1924). Entrapment is proven in two steps. First, the defendant must show by
a fair preponderance of evidence that the government engaged in inducement. State v.
Garcia, 927 N.W.2d 338, 341 (Minn. App. 2019). This is shown by “persuasion,
badgering, or pressure by the state.” State v. Olkon, 299 N.W.2d 89, 108 (Minn. 1980). If
this step is met, the state must then “prove beyond a reasonable doubt that the accused was
predisposed to commit the crime charged.” Garcia, 927 N.W.2d at 341 (quotation
omitted).2

and to the record evidence, which clearly shows that he requested the photographs for a
sexual reason, and not an innocuous one.
2 As set forth in Garcia, normally the issue of entrapment is addressed in a pretrial hearing.
927 N.W.2d at 341 -42. Here, defense counsel agreed that the district court could take
under advisement Burlingame’s motion to dismiss on the ground of entrapment, and the
parties could present evidence relative to the issue at trial.

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The conduct of law enforcement consisted of merely posting an advertisement as a
15-year-old seeking a friend , to which Burlingame responded and sent sexually explicit
messages. The district court noted that the closest the state came to “persuasion, badgering,
or pressure” was in asking Burlingame whether he “wanted more than just talk,” but that
isolated statement occurred after Burlingame had sent her numerous sexually explicit
communications. The district court correctly concluded that Burlingame did not meet his
burden to prove that law enforcement induced him to commit the charged crimes. See State
v. Oanes, 543 N.W.2d 658, 664 (Minn. App. 1996) (ruling that entrapment not shown when
a police officer merely approached a prostitute, and the prostitute initiated a sexual
exchange by telling the officer of the cost for “a woman of his choice,” brought him to a
room, and told him to undress); State v. Olson, 361 N.W.2d 899, 905 (Minn. App. 1985)
(requiring the defendant to establish that the state did more than merely solicit the subject
crime), rev’d in part on other grounds, 379 N.W.2d 524 (Minn. 1986).
Burlingame’s final argument is that he was erroneously convicted of both charged
offenses.3 The state concedes that the electronic-communication conviction is a lesser -
included offense of the child-solicitation offense and should not have resulted in a second
conviction. We agree. See Minn. Stat. § 609.04, subd. 1(4) (2018) (barring a conviction
for a second “crime necessarily proved if the crime charged were proved”) . We therefore
reverse in part and remand for the district court to vacate the electronic -communication

3 Although the record is somewhat unclear regarding whether Burlingame was convicted
of both offenses, we rely on the “official judgment of conviction” to make that
determination. Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted).

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conviction. See State v. Pflepsen, 590 N.W.2d 759, 766 (Minn. 1999) (stating that when a
defendant is found guilty of an offense and a lesser -included offense, the district court
should make a determination of guilt as to both offenses but formally convict only on the
more ser ious offense, allowing the district court to retain jurisdiction over the lesser -
included offense if the more serious conviction is later vacated).
Affirmed in part, reversed in part, and remanded.