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This opinion will be unpublished and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
A19-0867

State of Minnesota,
Respondent,

vs.

David Laurence Cal,
Appellant.

Filed March 16, 2020
Affirmed
Bryan, Judge

Anoka County District Court
File No. 02-CR-18-2190

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

Anthony C . Palumbo, Anoka County Attorney, Kelsey R . Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
In this direct appeal, appellant challenges the validity of his guilty plea for the
following two reasons: (1) the district court did not sufficiently inform him of the intent

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element of the offense; and (2) no accurate factual basis supported the plea. We affirm and
conclude that appellant entered a valid plea.
FACTS
Respondent Stat of Minnesota charged appellant David Laurence Cal with one count
of first-degree criminal sexual conduct and two counts of second -degree criminal sexual
conduct for sexual contact with a child under 13 . Cal pleaded guilty to the first -degree
charge and the state agreed to dismiss the other two charges . The state also agreed to a
downward departure from the otherwise applicable 144 -month sentence to a sentence of
120 months. At the plea hearing, Cal maintained his innocence, but entered an Alford plea1
to first-degree criminal sexual conduct.
In support of the Alford plea, the district c ourt and the attorneys questioned Cal
regarding his rights and the evidence of the facts in the case. Cal agreed that he had
sufficient opportunity to discuss the case with his attorney, that he understood the law and
the charges, and that he understood the information included in the complaint and the police
reports. Cal also acknowledged and waived any potential defenses that he might have had
at trial. Specifically, Cal’s attorney asked him, “Mr. Cal, you and I talked about, as well,
some of the possible defenses . Do you understand that by pleading guilty we’re waiving
any potential defenses in your case, true?” Cal replied, “Yes, ma ’am.” The state then
submitted its offer of proof , which included a description of anticipated testimony if the

1 An Alford plea allows the defendant to enter a guilty plea, while maintaining a claim of
innocence. State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (adopting North Carolina
v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970)).

3
matter were to proceed to trial . The state described how its witnesses would testify that
Cal and J.A.M. lived in the same home and were alone togeth er at times. In addition, the
state explained that J.A.M. would testify that beginning when she was about six years old,
Cal was her mother’s boyfriend. She would also testify that Cal engaged in sexual conduct
with her a number of times . She would testify that the sexual conduct included both anal
and vaginal penetration. She would further testify that the conduct was not an isolated
incident, but instead took place over a period of eight months. Specifically, the victim
would describe that Cal’s “private was involved with her private” and that it “hurt her butt
when that happened.” The state also discussed presenting Cal’s statement to the police in
which Cal stated that J.A.M. would have been in his physical space and presence with him
without clothing on, and he could have engaged in sexual contact with J.A. M. believing
that it was with J.A.M.’s mother.
After the state described the anticipated evidence, t he district court asked Cal,
“Would you agree that if the testimony came in as [the state] just outlined, that there would
be sufficient evidence for a jury to find you guilty of this charge beyond a reasonable
doubt? Would you agree with tha t, sir?” Cal answered, “Yes, s ir.” The district court
accepted the plea based on the state’s offer of proof and Cal’s belief that a jury would find
him guilty of first-degree criminal sexual conduct. At sentencing, the district court
sentenced Cal to the agreed-upon 120-month term of imprisonment. This appeal followed.
D E C I S I O N
Cal challenges the validity of his Alford plea on two, related grounds. First, Cal
argues that he entered an invalid plea because he was not adequately informed as to the

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meaning of the “sexual or aggressive intent ” element of first -degree cri minal sexual
conduct. Second, Cal argues that he entered an invalid plea because the “sexual or
aggressive intent” element is not accurately supported by a sufficient factual basis.
A party may seek direct appeal of an Alford plea. State v. Newcombe, 412 N.W.2d
427, 430 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). To be valid, a guilty
plea must be intelligent, voluntary, and accurate. State v. Ecker , 524 N.W.2d 712, 716
(Minn. 1994); State v. Trott , 338 N.W.2d 248, 251 (Minn. 1983) . “[C]areful scrutiny of
the factual basis for the plea is necessary within the context of an Alford plea because of
the inherent conflict in pleading guilty while maintaining innocence.” State v. Theis, 742
N.W.2d 643, 648-49 (Minn. 2007). “Assessing the validity of a plea presents a question
of law that we review de novo.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The
burden of proof is on the appellant to show invalidity. Id.
I. Cal entered an intelligent guilty plea.

Cal argues that the Alford plea is invalid because the district court never informed
him of the nature of the intent element. We conclude that Cal had sufficient understanding
of the intent element of the offense to enter an intelligent guilty plea.
“The record must show that the defendant understood the elements of the offense
and any available defenses, and the possible consequences of conviction.” State v. Lyle,
409 N.W.2d 549, 551 -52 (Minn. App. 1987). Appellate courts may safely presume that
counsel has adequately informed the defendant on the nature and elements of the offense .
State v. Russell, 236 N.W.2d 612, 613 (Minn. 1975).

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The offense of conviction requires proof of “sexual or aggressive intent.” See Minn.
Stat. § 609.341, subd. 11(c) (2016) (defining “[s]exual contact with a person under 13” as
requiring “sexual or aggressive intent”).2 Here, neither the attorneys nor the district court
expressly defined the intent element on the record at the time of the Alford plea. However,
the district court confirmed on the record that Cal had a chance to speak with his attorney3
so that he understood the elements of the charged offenses . Pursuant to Russell, 236
N.W.2d at 613, a district court is not required to explain in detail the nature of the elements
of charged offenses. We presume that Cal’s counsel had informed him of nature of the
“sexual or aggressive intent” element of the offense. Cal entered an intelligent guilty plea.
II. Cal entered an accurate guilty plea.

Cal argues that the Alford plea is in accurate because the factual basis does not
establish that he acted with “sexual or aggressive intent .” More precisely, Cal challenges
the factual basis in light of his statement to police. Because we find that the state
established a proper factual basis, we conclude that Cal entered an accurate guilty plea.
Accuracy requires that the plea be supported by a proper factual basis and there
“must be sufficient facts on the record to support a conclusion that defendant ’s conduct
falls within the charge to which he desires to plead guilty.” State v. Iverson, 664 N.W.2d
346, 349 (Minn. 2003) (quotation omitted). I n a conventional guilty plea, “an adequate
factual basis is usually established by questioning the defendant and asking the defendant

2 The legislature added this language in 1994. 1994 Minn. Laws ch. 636, art. 2, §§ 32 at
2205, 34 at 2206.
3 Cal does not challenge the effectiveness of his plea counsel. Instead, he argues that the
district court failed to inform him of the nature of the intent element.

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to explain in his or her own words the circumstances surrounding the crime.” Ecker, 524
N.W.2d at 716. Unlike in a conventional guilty plea however, “[a]n Alford plea is not
supported by the defendant’s admission of guilt, and is actually contradicted by his claim
of innocence.” Theis, 742 N.W.2d at 649. To establish a strong factual basis in an Alford
plea, the defendant acknowledges that after hearing the state’s anticipated evidence, a jury
would find the defendant guilty. Id.
In support of the Alford plea, the state submitted an offer of proof, descri bing the
anticipated trial testimony. The state explained that its witnesses would testify that Cal and
J.A.M. lived in the same home and were alone together at times. In addition, the state
described how J.A.M. would testify that beginning sometime in the spring of 2017, Cal
was her mother’s boyfrien d. She would also testify that Cal engaged in sexual conduct
with her a number of time s. She would testify that the conduct included anal and vaginal
penetration, describing that Cal’s “private was involved with her private” and that it “hurt
her butt” w hen that happened. Cal’s conduct is overtly sexual in nature, and therefore
sexual intent can be inferred from the nature of the conduct itself. See State v. Austin, 788
N.W.2d 788, 792 (Minn. App. 2010) (“ [a] subjective sexual intent typically must be
inferred from the nature of the conduct itself”), review denied (Minn. Dec. 14, 2010). We
conclude that these facts are sufficient to support the Alford plea.
Cal challenges the sufficiency of this factual basis and directs this court to his
statement to t he police. 4 Cal told police officers that he might have engaged in sexual

4 Cal does not assert an unwaived defense on appeal. See State v. Cox, No. A04-30, 2004
WL 2796190, at *4 (Minn. App. Dec. 7, 2004) (concluding that “[a]lthough sleep -related

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contact with J.A.M. believing that J.A.M. was her mother. On appeal, Cal argues that this
statement is exculpatory, negating the sufficiency of the state’s description of its
anticipated evidence. We disagree for two reasons. First, Cal agreed that the jury would
find him guilty, despite his statement to the police. In its description of evidence, the state
explicitly paraphrased the statement to police, and noted that Cal might have engaged in
sexual contact with J.A.M . believing that J.A.M. was her mother. After hearing this part
of the factual basis, Cal agreed that the jury would find him guilty. Cal cannot successfully
appeal the Alford plea merely because he now has a diff erent belief regarding the weight
and inferences that a jury might give to his statement than he did at the time of his guilty
plea.
Second, the statement to police could be interpreted by a jury as inculpatory rather
than exculpatory. It seems unlikely that the jury would believe that Cal had mistaken the
six-year-old J.A.M. for her mother long enough to engage in both vaginal and anal
penetration with her even once, let alone on multiple occasions over the course of eight
months. Moreover, the statement includes an admission that Cal engaged in sexual
conduct, making the factual basis stronger than it would be in the absence of such a
statement.

automatism is not listed in rule 9.02, it is sufficiently analogous to intoxication and differs
sufficiently from a not-guilty defense such that notice of the defense is required under rule
9.02”). Cal did not raise or notice a sleep-related automatism defense in this case .
Moreover, even if Cal had raised such a defense, Cal expressly waived all potential
defenses during the Alford plea. He does not now challenge the validity of the plea on this
basis. Instead, he only challenges the factual basis provided in support of the plea. We
analyze the fa ctual basis to determine whether the anticipated evidence is sufficient to
convict, despite Cal’s decision to maintain his innocence. Theis, 742 N.W.2d at 649.

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Under careful scrutiny, the factual basis provided in this case is sufficient to
conclude that there is a strong probability that jury would find Cal guilty, notwithstanding
his claims of innocence. Cal entered an accurate guilty plea, supported by a proper factual
basis.
Affirmed.