author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Steven Wayne McBRIDE, Appellant.
    No. C5-02-1346.
    Supreme Court of Minnesota.
    July 31, 2003.

      Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, St. Paul, MN, James C. Back-strom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Hastings, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Steven Wayne McBride was convicted in Dakota County of first-degree murder while committing criminal sexual conduct in the second degree for the death of Dillon Blocker. He was sentenced to life in prison without the possibility of parole. On appeal, McBride alleges that his conviction should be reversed because the district court erred when it admitted a notebook into evidence having concluded that (1) the second search warrant for his residence was supported by probable cause and (2) McBride lacked standing to object to the search. McBride further asserts that the evidence supporting his conviction was insufficient. We affirm.

Denise Patch met McBride in February 2001. One month later, they leased a two-bedroom apartment in Lakeville. Patch had two children from a prior relationship — a daughter, B.D.B., born on April 25, 1996, and a son, Dillon Blocker, born on September 26, 1997. When they met, Patch was working at B’Eagan With Us, a daycare center, and McBride was working at a Coca-Cola plant. Some time after they moved in together, McBride quit working.

Both Dillon and B.D.B. attended the daycare center where their mother worked, and Dillon took special speech classes through the Eagan school district. Beginning in May 2001, daycare personnel, Dillon’s teacher, and the school nurse began questioning Patch about various bruises found on Dillon’s buttocks, abdomen, and face. Patch told them that the bruises were from Dillon falling at daycare or while playing. One day in June, however, Patch came into the daycare center crying and told the employees that McBride was not allowed to pick up her children because he had spanked Dillon. Family members also noticed bruises on Dillon’s body and saw McBride strike Dillon on several occasions. McBride’s brother testified that he once witnessed McBride strike Dillon in the chest when- he was crying and, at another time, saw him grab Dillon by the face to get his attention. Patch’s nephew testified'that on their way to Valleyfair Amusement Park, he witnessed McBride hit Dillon numerous times on the head to keep Dillon awake.

Beginning in the middle of July 2001, Dillon and B.D.B.’s attendance at daycare became sporadic. Patch testified that she started keeping Dillon home at that time because he had bruises. At the end of August, Patch quit her job at the daycare and started working nights at Target. Patch was six months pregnant with McBride’s child at the time. While she was working at Target, Patch would leave the children in McBride’s care. On one occasion, upon returning home from work, she noticed new bruises on Dillon!s back and shoulders. On another occasion, she found bite marks on his wrists. When questioned by Patch, McBride said that the bruises on Dillon’s back and shoulders were caused when Dillon fell and rolled under B.D.B.’s bike and that the bite marks on his wrists were from Dillon having bitten himself. Because Dillon continued to have bruises and she was afraid that child protection would take him away, Patch kept Dillon home more in September, declined a home visit by his new speech teacher, and fabricated excuses for why Dillon could not attend his speech classes the first two weeks in September.

On September 17, the day before Dillon died, Patch testified that she did not notice anything different about Dillon. He ate breakfast, lunch, and dinner and his appetite appeared normal. He spent the day playing with his toys, taking a nap, and watching videos. Patch testified that Dillon still had bruises on his cheeks and bite marks on his wrists. In the afternoon, Patch watched Dillon urinate in the toilet and she did not notice any injuries to his genitals or abdomen. At some point during the day, Dillon showed Patch that he had little bumps on his tongue, which Patch characterized as “sores.” In response, McBride gave Dillon some medication and put Orajel, an oral topical medicine, on his tongue. Before going to work that night at 9:30 p.m. and leaving the children in McBride’s care, Patch got the children ready for bed. When Patch left for work, Dillon was wearing a sweatshirt with a picture of a soccer ball on the front.

Sometime between 2:15 and 2:45 a.m., Patch received a phone call from McBride. McBride told Patch that Dillon had fallen in the bathroom, had hit his head and penis, and was crying. McBride asked Patch to come home. When Patch got home, she saw that Dillon had another mark on his face across his cheek and eyes, a red mark on his penis, and a scrape on his forehead. Patch also told police that Dillon was wearing a different shirt than he was wearing when she left for work. When putting ice on Dillon’s head and penis, Patch noticed that his ability to speak was “different” and that he seemed to be having trouble breathing.. Concerned, Patch called poison contrql to see if the Orajel that had been put on Dillon’s tongue earlier could affect him this way. After poison control assured her that it should not be a problem, Patch repeatedly asked McBride if they should take Dillon to the doctor .because she was concerned about his breathing and thought he may have a concussion from the bump on his head. McBride responded that Dillon would be fine until morning. Patch and McBride then took Dillon into the master bedroom and propped him up on pillows. While McBride lay on the bed with Dillon, Patch read a cardiopulmonary resuscitation (CPR) manual. Patch testified that while holding the telephone in her hand, she again asked McBride if they should call 911 and McBride told her to put the telephone down, that Dillon would be fine until the morning, and they could take him to the doctor then. Patch eventually fell asleep on the couch in the living room. When she woke in the morning, she went into the bedroom and found Dillon dead. Patch telephoned 911 while McBride carried Dillon to the living room. Patch tried CPR but it was to no avail.

At 7:01 a.m. on September 18, 2001, the Lakeville Police Department received the 911 call from Patch and two officers responded to the call. Upon entering the apartment, the officers saw Dillon lying on the living room loveseat and confirmed that he was dead. When asked what happened, McBride and Patch stated that sometime during the night a toilet seat had fallen on Dillon’s penis which caused him to fall over and strike his head in the bathroom. - Because of the visible physical trauma to Dillon and the implausibility of McBride and Patch’s explanation, the officers decided an investigation was warranted.

Scientists from the Minnesota Bureau of Criminal Apprehension (BCA) were called to the apartment to do a crime scene investigation. They found blood on the walls and doors of the master bedroom and bathroom and on a number of items in the bathroom. They also found a cloth belt from a bathrobe, still damp with blood and saliva, hidden behind some containers in the closet. The BCA took blood samples to perform DNA analysis and determined that the samples matched Dillon’s DNA. The BCA also performed DNA analysis on various samples of saliva and determined that the saliva on the cloth belt and Dillon’s fingers matched Dillon’s DNA.'The saliva around Dillon’s lips, mouth, and cheek area contained a mixture of Dillon and Patch’s DNA which was consistent with Patch trying to perform CPR on Dil-Ion. One of the BCA scientists also performed measurements -on the toilet. Based on his measurements, the-scientist testified that Dillon would have had to be “almost on his knees or squatted way down before his penis would have been in the position for the [toilet] seat to possibly come in contact with .it.”

Dr. Lindsey Thomas, a forensic pathologist and Dakota County coroner who performed the autopsy, estimated that Dillon died around 5:00 a.m. on September 18, 2001. The autopsy revealed that Dillon had older injuries — one to four days old— to his large bowel and to his mesentery, the connecting tissue that holds the small bowel in the abdomen. Thomas also found fibrinous peritonitis in Dillon’s abdominal cavity, leading Thomas to believe that Dillon’s small bowel also had previously been ruptured and its contents had leaked into his abdominal cavity. In addition to these older injuries, Thomas found that Dillon had recent injuries to his liver, pancreas, mesentery, and large and small bowels. These new injuries caused more of the small bowel contents to spill into Dillon’s abdominal cavity, adding to the infection that had previously developed. In addition to the injuries to his abdomen, Thomas found that Dillon-had'both recent and older injuries to his head that caused bleeding on the surface of the brain and swelling of the brain. In Thomas’ view, blows of significant force were needed to cause both the old and new injuries. Thomas testified that in her opinion, even though Dillon may have eventually died from the older injuries to his abdomen, the recent injuries to his head and abdomen directly contributed to his death.

Dr. Janice Ophoven, a pediatric forensic pathologist, testified for the defense. In Ophoven’s opinion, Dillon died from complications from the older injuries to his abdomen that had resulted in peritonitis. She further testified that his head injuries were both older and insufficient to have caused his death.

In rebuttal, the state called two expert witnesses, Dr. Judson Reaney and Dr. Mitchel Morey. Reaney, a pediatrician who specialized in child abuse and neglect cases, agreed with Thomas that the recent injuries to Dillon’s abdomen contributed to Dillon’s death and testified that, in his opinion, Dillon would not have died that night absent the new injuries. Morey, an assistant medical examiner certified in neuropathology, testified that the injuries to Dillon’s head occurred anywhere from a day before to just before Dillon’s death.

In addition to the injuries to Dillon’s head and abdomen, Thomas found that Dillon had numerous rib fractures in various stages of healing, recent lacerations and scrapes on his face and neck, and bruises and bite marks of various ages all over his body. One of Dillon’s front teeth had been knocked out and was found in his stomach during the autopsy, and he had circular burns on his palms and wrist that were consistent with cigarette burns.

Finally, Thomas found injuries of varying ages on Dillon’s penis and scrotum. Dillon’s penis was swollen and the tip of the penis was very bruised. Thomas believed that the injury to the tip of the penis was “recent.” Dillon also had bruises and scrapes around his scrotum. At the base of the penis, Dillon had an older bruise that Thomas believed was three days to a week old. Thomas estimated that the bruise on the right side of the scrotum was approximately 12 to 48 hours old and that the bruise on the left side of the scrotum was recent. Thomas further testified that the injuries to the tip of Dillon’s penis and the base were consistent with bite marks.

Dr. Paul DeGallier, a forensic dentist, examined the bite marks on Dillon’s body in an attempt to identify their source. As part of his analysis, DeGallier prepared molds of the teeth of McBride, Patch, B.D.B. and McBride’s brother. DeGallier then selected and analyzed eight of the bite marks found on Dillon’s body. DeGal-lier testified that to a reasonable degree of medical certainty, McBride was the source of the eight bite marks tested. DeGallier also testified that to a reasonable degree of medical certainty, McBride was the source of the bite marks at the base of Dillon’s penis, on the left side of Dillon’s scrotum, and on Dillon’s tongue. As to the recent bite mark on the tip of Dillon’s penis, DeGallier stated that he could not definitely say that the bite came from McBride.

In their investigation of Dillon’s death, the police interviewed a number of Patch and McBride’s neighbors, B.D.B., and two women McBride talked with on the telephone the night Dillon was injured. John Hofbauer and Sarah Anderson lived in the apartment directly above Patch and McBride’s apartment. Hofbauer testified that on September 17 around 8:00 or 8:30 p.m., he heard loud noises that sounded as if something was striking the wall coming from Patch and McBride’s apartment. Hofbauer also testified that sometime between 11:00 and 11:30 p.m. a telephone rang downstairs for four or five minutes without being answered and that around 11:30, he thought he heard a shower running but he couldn’t be sure where it was coming from.

Sarah Anderson testified that when she returned home from her night job around 1:30 a.m. on September 18, she saw McBride talking on the telephone through the apartment window. Anderson stated that she heard a telephone ringing constantly downstairs between 1:45 and 2:30 a.m. Shortly after Anderson went to bed around 2:30 a.m., she heard a car pull up and a downstairs door slam.

Lula Belle Cavanaugh, an upstairs neighbor, testified that she heard a little boy crying at about 2 a.m. on the morning of September 18, saying “it hurt” and then heard someone hollering at him to “shut up.”

Melissa Dreir met McBride at a nightclub on September 14, the Friday -night before Dillon’s death,- and gave McBride her number. On September 17, Dreir received a telephone call from McBride at 11:26 p.m. and they talked for seven minutes. Dreir stated that McBride seemed calm and normal on the phone and she did not hear any noise in the background.

Kari Donahue met McBride on the Qwest personal line on September 16, and they exchanged numbers. On the evening of September 17, McBride telephoned Donahue “sometime in between 10:00 and 10:30ish,” and they talked 30 to 45 minutes. McBride called Donahue back around 11:30 p.m. and they talked for approximately five or six minutes. During the first two conversations, Donahue did not hear any noise in the background. Donahue telephoned McBride back around 11:50 p.m. and they talked for approximately 10 minutes. At that time, Donahue could hear a boy crying. McBride told Donahue that the boy’s name was Dillon, that the neighbors — -who he claimed were Dillon’s parents — we re having a fight, and he was baby-sitting until things calmed down. Donahue testified that she could hear Dillon saying, “I’m tired” and McBride telling him to stand up and that he could not lay down. McBride then told Donahue that he was going to bring Dillon back to his “parents” because he was stupid and McBride could not take it anymore.

Investigator Forbord talked with B.D.B., Dillon’s five-year-old sister, shortly before 9:00 the morning of September 18. B.D.B. told Forbord that after Patch left the night before, McBride put Dillon in a time out and made him stand in the corner by the door in the living room. Although B.D.B. was supposed to be asleep in her bedroom, she heard McBride spank Dillon with both a belt and his hand and that was “what got bruises all over him.” B.D.B. also told Forbord that McBride would put them in the bathroom to check for bruises after spanking them and that when Patch came home, Patch and McBride argued about all the “owies” on Dillon. B.D.B. also heard Patch and McBride talking about how Dillon was acting like “he had no tongue in his mouth.”

As part of the investigation of Dillon’s death, the police obtained search warrants to search Patch and McBride’s apartment. The first warrant, issued on September 18, allowed the police to search for any correspondence between McBride and Patch, but no correspondence was seized. Three days later, on September 21, police obtained a second search warrant to search the apartment. As issued, the second search warrant allowed the police to search for all items listed in the first search warrant plus clothes of McBride and first-aid manuals or books. The supporting affidavit attached to the application for the second warrant noted that the police had observed a first-aid manual in the living room during the first search and that Patch had told police that she was reading the manual the night of Dillon’s death.

During the execution of the second search warrant, the police seized a notebook that contained two notes — one written by Patch to McBride and one written by Patch to herself. In the note to McBride, Patch wrote “[p]lease do not spink (sic) him or play rough them buns have- to heal.” At the bottom of the note, Patch noted that “P.S. He (sic) lips had Dry blood on them,” and at the top, she wrote' “I can’t know if I’ll make [it] through the Day.” In- the note written by Patch to herself, more on the order of a journal entry, Patch expressed her inability to “deal with [McBride] always leave (sic) marks on [Dillon]” and how Dillon “has to miss another hole (sic) week of school.” She also wrote of her concern with McBride’s inability to control his temper, noting “[h]e always tells me he’ll stop putting his hands on him but it never happens.” At the end, Patch wrote that she was scared to bring their baby into the world because if he treats Dillon “like that,” he would do the same thing to the baby. . .

On October 22, 2001, a Dakota County grand jury indicted McBride on four separate counts for the death of Dillon: murder in the first degree (while committing child abuse); murder in the first degree (while committing criminal sexual conduct); murder in the second degree (intentional); and murder in the second degree (commission of a felony). McBride went to trial in April 2002, and the jury returned a guilty verdict on all counts except for intentional murder in the second degree. For the conviction .of murder in the first degree while committing criminal sexual conduct in the second degree under Minn.Stat. § 609.185(2) (2002), also referred to as felony-murder, McBride was sentenced to life in prison without the possibility of parole. McBride asks that we reverse this conviction, asserting that the district court erred when it concluded that he did not have standing to challenge the seizure of the notebook and that the search warrants allowing the police to search the apartment for correspondence were not supported by probable cause. McBride also contends that there was insufficient evidence for the jury to find him guilty of the felony-murder conviction.

I.

At trial, McBride moved to suppress the notebook seized during the' execution of the second search warrant asserting that the provision that allowed police to search for correspondence between Patch and McBride was not supported by probable cause. The district court denied McBride’s motion on two grounds. First, the court concluded that “[i]t is not uncommon that a primary caretaker would exchange information with the substitute caregiver about the children,” and “[t]he police had probable cause to believe that correspondence would be located at the scene given the relationship of the parties.” Second, the court concluded that McBride, lacked “standing to argue for suppression of the written correspondence” because Patch, and not McBride, created the correspondence and the notebook was not found in “[McBride’s] belongings” at the apartment. McBride contends that the court erred in admitting the notebook into evidence and asks us to conclude both that McBride had “standing” to challenge the seizure of the notebook and that the second search warrant was not supported by-probable cause.

When reviewing a pretrial order denying a motion to suppress evidence, we may independently review the facts and determine whether the district court erred in not suppressing the evidence as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). When facts are not in dispute, standing is a question of law that we review de novo. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). When reviewing whether a search warrant is supported by probable cause, however, we afford great deference to the court’s finding of probable cause and limit our review to ensuring that the court had a substantial basis for concluding that probable cause existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn.1999).

We begin by examining whether the district court erred in finding that McBride had no right to challenge the validity of the two search warrants that authorized the police to search the apartment where Patch and McBride resided. The court and McBride both describe the right to challenge the validity of a search warrant under the U.S. Constitution’s Fourth Amendment as an issue of standing. ' However, the United States Supreme Court has stated that when determining whether a defendant has had his or her Fourth Amendment rights violated, “the ‘definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.’ ” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). Thus, in determining whether a defendant can bring a claim asserting a violation of his .or her Fourth Amendment rights, the issue is “ ‘whether the disputed search * * * has infringed an interest of the defendant which the Fourth Amendment was designed to protect.’ ” State v. Carter, 569 N.W.2d 169, 174 (Minn.1997) (quoting Rakas, 439 U.S. at 140, 99 S.Ct. 421), overruled on other grounds by Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Therefore, we begin by examining whether McBride had an interest, protected by the Fourth Amendment, that was violated by the search of Patch and his apartment.

“The Fourth Amendment protects against unreasonable searches and seizures, and its protections are not triggered unless an individual has a legitimate expectation of privacy in the invaded space.” State v. Perkins, 588 N.W.2d 491, 492 (Minn.1999). Legitimate expectations of privacy are those expectations of privacy that “society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Fourth Amendment protections are personal rights that may not be asserted vicariously, Rakas, 439 U.S. at 133-34, 99 S.Ct. 421, and a defendant can seek the protections of the Fourth Amendment only if the defendant demonstrates that his Fourth Amendment rights, and not those of a third person, have been violated by the challenged search or seizure. United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993). If an indi-. vidual’s expectation of privacy-is violated, the evidence sought to he introduced against him or her may be suppressed. Rakas, 439 U.S. at 138, 99 S.Ct. 421.

In determining whether McBride had a protected interest in the notebook, we must begin by examining whether he had a legitimate expectation of privacy in the invaded space. The parties have differing views as to what constitutes “invaded space.” The state contends that McBride does not have a legitimate expectation of privacy in the notebook because the notebook belonged to Patch and he failed to show that he had mutual use of the notebook. McBride asserts that the Fourth Amendment violation in this case is not just the seizure of the notebook but also the entry into the apartment and the search that occurred. He further argues that he had a legitimate expectation of privacy in the nightstand where the notebook was found.

We have not previously examined the issue of whether a defendant has a legitimate expectation of privacy in an item located in the defendant’s residence when the item is owned by a third person. The Supreme Court and a number of other federal courts have addressed this issue, however. In Alderman v. United States, the prosecution attempted to introduce into evidence, against the homeowner, third-party conversations overheard on the homeowner’s premises by an unauthorized surveillance. 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In that case, the Court held that establishing an interest in the premises searched was sufficient to assert a claim under the Fourth Amendment, stating that:

If the police make an unwarranted search of a house and seize tangible property • belonging to third “ parties * * * the homeowner may object to its use against him, not because he had any interest in the seized items as “effects” -protected by the Fourth Amendment, but because they were the fruits of an unauthorized search of his house, which is itself expressly protected by the Fourth Amendment.

Alderman, 394 U.S. at 176-77, 89 S.Ct. 961. Building upon this analysis, the Court expanded its holding in a footnote, stating items seized pursuant to a valid search warrant, but belonging to third persons, can be used against a homeowner, thereby giving him a right to challenge the search and seizure of the third-party property. Id. at 177, n. 10, 89 S.Ct. 961.

In examining Minnesota’s Constitution, we note that Article I, Section 10 contains language identical to the United States Constitution’s Fourth Amendment protections against unreasonable searches and seizures. State v. Carter, 596 N.W.2d 654, 656 (Minn.1999). While we may interpret the Minnesota Constitution to provide more protection than the U.S. Constitution, it may not afford less. We conclude that McBride has a legitimate expectation of privacy in the apartment shared by Patch and McBride and therefore hé has the right to challenge the search of the apartment and the use ‘ of the notebook against him.

Having concluded that McBride has a Fourth Amendment right to challenge the seizure of the notebook, we then turn to McBride’s contention that the district court erred in finding that the search warrants were supported by probable cause. “A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate.” Harris, 589 N.W.2d at 787. In determining whether probable cause exists, the issuing judge

is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. at 788 (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Among the factors for the issuing judge to consider “are the type of crime, the nature of the items sought, the extent of the süspect’s opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items.” Id (citing State v. Pierce, 358 N.W.2d 672, 673 (Minn.1984)).

Both the first and second search warrants allowed the police to search for “any correspondence” between McBride and Patch. McBride contends that the affidavits of both warrants did not provide any reason to believe such correspondence existed or that it would be relevant to the crime under investigation. In response, the state contends that common sense and experience indicate that caregivers of small children who share responsibility for the children often write notes to each oth.er. Such evidence, the state asserts, is relevant to determining the history of care provided to Dillon and may ultimately help determine the cause of Dillon’s' death, the cause of pre-existing injuries, and who had access to the child and the apartment.

Agreeing with the state, the district court concluded that it was not uncommon for caregivers to exchange information. Noting that the police stated in the affidavits for the search warrants the relationship between McBride and Patch and that McBride was a caregiver for the children, the court further concluded that it was reasonable to expect that Patch would share information with McBride.

We are persuaded by the district court’s reasoning. Correspondence between Patch arid McBride is especially relevant in a case such as this where the child was abused and had a number of old and new injuries. We, therefore, conclude that there was probable cause for allowing the police to search for correspondence between Patch and McBride in the first search warrant issued on September 18, 2001.

This conclusion, however, does not end our analysis, as the seizure of the notebook did not occur during the execution of the first search warrant but during execution of the second warrant three days later. McBride asserts that the second search warrant, which again authorized the police to search for correspondence, was not supported by probable cause because it did not state additional or new facts to authorize the police to re-search for correspondence between McBride and Patch. In support of his argument, McBride relies oh State v. Zanter, 535 N.W.2d 624 (Minn.1995).

' In Zanter, the police sought and obtained three separate warrants to search the defendant’s home over a period of 27 months. Id. at 628-29. The first search warrant authorized the police to search for and seize keys of the murder victim, but the second and third warrants did not. Id. During the third search of the defendant’s home, the police seized a set of keys that belonged to the murder victim and were found in the bottom drawer of a dresser located in the basement. Id. at 629. Because the police did not provide new information with the third warrant application that would indicate that the previously listed items would now be discovered, we held that the issuing judge did not have a “substantial basis” for concluding that probable cause existed to search the home for the victim’s keys. Id. at 634. In so holding, we stated that:

Once the police have engaged in an exhaustive search of a particular place, they cannot expect to re-search that area at a later date without providing the issuing judge with new information sufficient to indicate that items sought, but not found, during prior searches will now be found. In such situations, the issuing judge must take particular care to separate the information that supported previous warrants from the new information that supports the current warrant application.

Id. at 633.

In this case, the additional facts provided in the supporting affidavit to the second search warrant were (1) the police and BCA executed the first search warrant on September 18, 2001 and several items of evidence were seized, (2) a first-aid manual was observed in the living room, (3) Patch had told investigators that she used the first-aid manual as a resource the night her son was injured, (4) the apartment had been secured as a crime scene since the execution of the first warrant, (5) the Dakota- County Coroners Office performed an autopsy on Dillon on September 18, 2001, (6) the preliminary cause of death was multiple blunt force trauma to the abdomen and head, (7) McBride was charged with murder in the second degree, and (8) McBride was being held in jail on bond.

If we were to conclude that the inclusion of the correspondence provision in the second warrant was without probable cause, we still would not reverse a district court’s decision if the error was found to be harmless beyond a reasonable doubt. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). A defendant who claims the court erred in admitting evidence has the burden of showing the error and any resulting prejudice. State v. Lynch, 590 N.W.2d 75, 80 (Minn.1999). In applying the harmless error test, the “appellate courts must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict. If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.” State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997) (citation omitted).

A review of the contents of the notebook indicates that it contained two notes written by Patch: one to McBride and one to herself. In the first note to McBride, Patch asked McBride to not spank Dillon or play rough with him because his “buns” needed to heal. The second note was from Patch to herself detailing how McBride left marks on the children when he disciplined them and how Dillon had to miss another week of school. She also stated that McBride had a bad temper that he could not control and that she was scared to bring their baby into the world because if he treated Dillon “like that,” he was going to do the same thing to the baby.

While the contents of the notebook support the state’s contention that McBride, and not Patch, inflicted the injuries on Dillon, a review of the remaining record indicates that there was ample other evidence that McBride inflicted the various injuries upon Dillon. For instance, the daycare and school personnel did not see bruises on Dillon until he began living with McBride. McBride’s brother saw McBride strike Dillon in the chest when he was crying and Patch’s nephew saw McBride hit Dillon numerous times on the head to keep him awake on the way to Valleyfair Amusement Park. B.D.B. told Investigator Forbord that McBride would discipline her and Dillon by spanking them with a belt and then would have them check to see if there were any bruises. B.D.B. also told Forbord that McBride put Dillon in a time out the night before his death, that she heard McBride spank Dillon with the belt and his hand, and that she heard her mother arguing with McBride when she came home about the “owies” on Dillon. Finally, both B.D.B. and Patch testified that McBride was home alone with Dillon and B.D.B. the night that Dillon was killed. Therefore, while not reaching the probable cause issue, we conclude that, even if we were to determine that the district court did err when it allowed the admission of the notebook, the error was harmless.

II.

McBride next alleges that the evidence presented at trial was insufficient for the jury to have found him guilty of felony-murder under Minn.Stat. § 609.185(2). Minnesota Statutes § 609.185(2) provides that a person is guilty of murder in the first degree if the person “causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another.” McBride challenges the sufficiency of the evidence on two grounds. First, McBride contends that the state did not prove that he committed criminal sexual conduct. Second, McBride asserts that even if he did commit criminal sexual conduct, the state did not prove that the criminal sexual conduct occurred at the same time as the fatal injuries to Dillon’s abdomen and head.

In reviewing a claim of insufficiency of the evidence, our scope of review is limited to ascertaining whether, based on the evidence presented at trial, a jury could have reasonably concluded that the accused is guilty of the offense. State v. Vick, 632 N.W.2d 676, 690 (Minn.2001). In doing so, we view the evidence in a light most favorable to the state and assume that the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. Id. If, giving due regard to the presumption of innocence and to the state’s burden of proving the defendant’s guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty, we will uphold the jury’s verdict. State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997).

In reviewing a jury conviction based on circumstantial evidence in a criminal case, the circumstantial evidence is entitled to as much weight as any other type of evidence as long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational or reasonable hypothesis except that of guilt. State v. Wallace, 558 N.W.2d 469, 472 (Minn.1997). We have recognized that even when the evidence is circumstantial, the jury is still in the best position to determine the credibility and weight of the evidence and therefore, when reviewing a guilty verdict, we assume that the jury believed the state’s witnesses. Id.

We begin by examining whether the jury could have reasonably concluded that McBride committed the underlying felony, criminal sexual conduct in the second degree. As to this issue, McBride does not challenge that the bite marks found on Dillon’s genital area constitute criminal sexual conduct but instead, challenges the jury’s conclusion that McBride was the source of those bite marks.

The primary evidence that McBride committed criminal sexual conduct against Dillon was Dr. DeGallier’s testimony regarding the bite-mark comparisons he performed. At trial, DeGallier testified that to a reasonable degree of medical certainty, McBride was the source of the bite marks at the base of Dillon’s penis, on the left side of Dillon’s scrotum, and on Dillon’s tongue. DeGallier farther testified that, due to the size of the penis and the bite mark, he could not definitely say that the recent bite mark on the tip of Dillon’s penis came from McBride.

While recognizing that credibility determinations are for the jury to make, McBride asks this court to disregard the testimony of DeGallier asserting that De-Gallier’s testimony is unreliable and not credible as a matter of law. McBride alleges that DeGallier upgraded his degree of certainty that McBride inflicted the bite marks on Dillon from “probable” or “possible” in his report and before the grand jury to “a reasonable degree of medical certainty” at the trial because he wanted to become board certified and needed to “testify in at least two trials.” McBride further asserts that DeGallier was more likely to be used as an expert witness again if his opinion conveyed a higher degree of certainty.

At trial, DeGallier acknowledged that he did change the degree of certainty but that the reason he did so was because he continued to study, analyze, and understand the data after he wrote his report. Further, DeGallier was fully cross-examined at trial as to his desire to be board certified and as to his changing conclusions, thereby allowing the jury to reach its own conclusions on whether DeGallier’s testimony was credible. Assuming as we must that the jury believed DeGallier’s testimony, a jury could have reasonably concluded that McBride inflicted the bite marks on Dillon’s genital area. We therefore hold that the jury’s determination that McBride was guilty of committing the underlying felony, criminal sexual conduct in the second degree, is supported by sufficient evidence.

In his second challenge to the jury’s conviction of felony-murder, McBride contends that the evidence is insufficient to prove that he killed Dillon while committing criminal sexual conduct because it is not possible to know when the act that caused Dillon’s death occurred. In order to prove that McBride inflicted the fatal blows on Dillon while committing criminal sexual conduct, the state must prove that “the ‘fatal wound’ was inflicted during the same ‘chain of events’ [in which the underlying felpny took place] so that the requisite time, distance, and causal relationship between the felony and killing are established.” State v. Russell, 503 N.W.2d 110, 113 (Minn.1993) (citing 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 7.5(f) at 223 n. 88 (1986)). “So long as the underlying felony and the killing are part of one continuous transaction, it is irrelevant whether the felony took place before, after, or during the killing.” Harris, 589 N.W.2d at 792.

In his argument, McBride emphasizes that he was alone with the children for five hours from approximately 9:30 p.m. until around 2:30 a.m. and that the experts testified that the recent injuries to Dillon’s abdomen and head occurred within 12 hours of death. McBride asserts that because the state’s evidence does not prove precisely when the criminal sexual conduct occurred or when the fatal blows were inflicted, a reasonable jury could not possibly conclude that McBride committed criminal sexual conduct either before or while inflicting the allegedly fatal blows to Dillon’s abdomen and head.

While the jury may not have known from the testimony at trial precisely when the various injuries and the bite marks occurred, a jury may have, nevertheless, reasonably believed that the beating and the criminal sexual conduct occurred as part of “the same chain of events.” In fact, the record as a whole would allow a jury to conclude that McBride tortured Dillon to death and that part of the torture included criminal sexual conduct in the second degree. We therefore hold that there is sufficient evidence for the jury to conclude that the criminal sexual conduct and the beating of Dillon occurred as part of “one continuous transaction.”

Affirmed.

      . Peritonitis is an infection of inflammation of the peritoneal cavity.

      . Thomas testified that the scrape marks on Dillon's neck looked like the type of marks that "you get when someone has tied something around their neck and they're trying to get it off their neck.” Dillon also had older scars on his neck that were consistent with fingernail scrapings that had healed.

      . Thomas defined a “recent” injury as one that occurred within the “one to twelve-hour time range, maybe eighteen hours.”

      . The Qwest personal line is a telephone line that operates like a chat line. People call into the personal line and record messages for other participants to listen to and possibly respond.

      . The police obtained a total of 12 search warrants. The search warrant issued on September 18 allowing the police to search the apartment was search warrant number one and the warrant issued on September 21 which allowed the police to again search the apartment was search warrant number six. For ease of reference, they will be referred to as the first and second search warrant.

      . The state does not challenge that McBride had a legitimate expectation of privacy in the apartment.

      . Other lower federal courts have likewise reached similar conclusions. See United States v. Issacs, 708 F.2d 1365, 1368 (9th Cir.1983) (determining resident could challenge a search of journals found in a safe even though defendant disclaimed ownership or awareness of journals at trial); United States v. Perez, 700 F.2d 1232, 1236 (8th Cir.1983) (concluding resident could challenge search of guest's luggage in his home).

      . McBride now challenges both search warrants for lack of probable cause, but in arguments to the district court he only challenged the second search warrant. Nevertheless, because both search warrants include identical provisions, we will address the issue for both.

      . A person is guilty of committing criminal sexual conduct in the second degree if he or she engages in sexual contact with a complainant that is under 13 years of age and the actor is more than 36 months older than the complainant. Minn.Stat. § 609.343, subd. 1(a) (2002). Further, the definition of “sexual contact” includes "the intentional touching by the actor of the complainant’s intimate parts * * * ” with sexual or aggressive intent. Minn.Stat. § 609.341, subd. 11(a) (2002).


source: Caselaw Access Project

author: ANDERSON, Paul H., Justice. PAGE, Justice

license: Public Domain

text:
    STATE of Minnesota, Petitioner, Appellant, v. Travis Wade KOENIG, Respondent.
    No. C4-02-303.
    Supreme Court of Minnesota.
    July 31, 2003.

      Michael A. Hatch, Minnesota Attorney General, Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Appellant.
    Joseph S. Friedberg, Lisa Lodin Peral-ta, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, Paul H., Justice.

In the early morning hours of June 10, 2001, Travis Wade Koenig engaged in sexual activity with a 13-year-old girl whom he met through a telephone dating service. Koenig was subsequently charged with three counts of sexual misconduct, including child solicitation under Minn.Stat. § 609.352, subd. 2 (2002). The Hennepin County District Court dismissed the solicitation charge for lack of probable cause, finding that the child initiated contact with Koenig, willingly participated in multiple sexually-explicit conversations, and willingly decided to meet Koenig to engage in sexual activity. The court of appeals affirmed, concluding that the child’s receptive attitude and conduct left no opportunity for Koenig to solicit the child for sexual conduct. We reverse.

On the evening of June 9, 2001, respondent Travis Wade Koenig, then 31 years old, was on duty as a police officer in the City of Minneapolis. While on duty, Koe-nig placed several calls from his department-issued cellular telephone to the Minnesota Casual Sex Dateline. The calls were not recorded, but through an administrative subpoena, the police were able to obtain Koenig’s telephone records and verify that he had placed the calls to the dateline service. Koenig subsequently admitted that he made the calls and that he did so because he was in search of someone ready to have a sexual encounter. According to Koenig, users of this dateline service can post recorded messages to which other callers can then listen and respond if they choose.

Koenig was listening to messages posted by female callers when he heard a message posted by R.P. and J.L. According to Koe-nig, the message stated that the callers were two “hot chicks” from St. Louis Park who wanted to “party like rock stars,” were into “sex parties,” and could “go all night long.” Koenig testified that the message also stated something to the effect that the listener should call “if you think that you can keep up.” The message also stated that the callers were 18 and 19 years of age. At the time, R.P. was 13 and J.L. was 15.

Koenig responded to the message by leaving a voice-mail mentioning oral sex and stating that he would like to take the callers up on their offer. According to Koenig, R.P. replied by voice-mail, stating that she thought Koenig’s voice was sexy, inquiring if Koenig was muscular, and also inquiring about the “type of sex stuff’ he liked. This response started an exchange of approximately six or seven explicit voice-mail messages discussing various sexual acts. Koenig and R.P. then decided to talk live instead of via voice-mail. Koe-nig and R.P. talked by telephone for approximately 70-80 minutes. Koenig testified that R.P. told him about her sexual history and “what she likes and doesn’t like.” At some point, Koenig also briefly talked to J.L.

During one of the conversations, R.P. decided to take another call, which she termed a “booty call.” Koenig, thinking this was an excuse to end the conversation, told R.P. that he did not believe that she was going to call him back. Koenig testified that R.P. promised him that he could have any sexual favor he wanted if she did not call him back within five minutes. Koenig testified that it was R.P.’s idea to give a sexual favor because he “kept telling her” that he did not think she would call him back. R.P. called back about 20 minutes later.'

Koenig stated that R-.P. indicated she wanted to meet him and suggested a location for the meeting. They arranged' to meet later that same night. Koenig called R.P. when he was leaving work sometime after 1:00 a.m. so she could be ready. He called again at approximately 2:00 a.m. when he arrived at the meeting place, a local gas station. After waiting 15 minutes' and thinking that R.P. and J.L. had decided not to meet, Koenig called a third time. R.P. and J.L. responded to this call by indicating to Koenig that they still planned to meet him. Koenig subsequently testified that he was in a hurry because he did not want his wife to question why he had not come home after work.

Shortly thereafter, R.P. and J.L. arrived at the gas station and got into Koenig’s car. Koenig then drove around, looking for a hotel that had a vacancy. At each hotel, he would leave R.P. and J.L. in the car while he inquired about a room. R.P. told the police that Koenig made them wait in the car. Koenig found a vacant room at the third hotel they visited and registered for a room under a pseudonym. R.P. told the police that Koenig made her and J.L. walk into the hotel separately because he did not want them to be seen together because they looked so young. Nevertheless, Koenig stated that, even upon seeing R.P. and J.L. in the light of the hotel room, he believed that they were 18 and 19 years of age.

After entering the hotel room, J.L. went into the bathroom and stayed there because she did not want to participate in any sexual activity. Koenig then asked R.P. if he could have the sexual favor she had promised and he testified that she responded by saying, “No, problem.” The sexual favor he'.requested was for R.P. to perform oral sex while she was restrained by his handcuffs. R.P. complied with the request. Koenig and R.P. also engaged in anal sex. R.P. then told J.L. she could come out of the. bathroom because they were finished. After J.L. came out of the bathroom, Koenig turned on a pornographic movie for the three of them to watch. During the movie, Koenig and R.P. had oral and vaginal sex while J.L. remained in the room.

As to these events, R.P. told the investigating officer that she felt forced into having sex with Koenig, felt scared, thought that Koenig was a creep and too old, and was afraid that if she did not do what he wanted, he would hurt her or J.L. J.L. initially told the police that she and R.P. went to the hotel willingly’with Koenig and were not forced. However, in a later interview with an investigating officer and an Assistant Hennepin County Attorney, J.L. said that R.P. pressured her into accompanying her to the meeting with Koe-nig, that J.L. was scared, and that R.P. told J.L. that she was scared. J.L. also said that while she and R.P. were waiting in the car at one of the hotels, they discussed leaving before Koenig returned from the hotel, but he returned before they could leave. J.L. added that after the events in the hotel room, she wanted to run away and return to her home because she was uncomfortable and afraid. Nevertheless, she did not run away and Koenig drove both R.P. and J.L. home.

The encounter between Koenig, R.P., and J.L. came to light because of a subsequent report of a sexual assault of R.P. by one or more other males which occurred a few hours after R.P.’s meeting with Koe-nig. Following this assault, R.P. was taken to a medical center for a sexual assault examination. The nurse examining R.P. stated that R.P. told her that she had sexual intercourse with two other males before being raped by the men who had been arrested. Later that same day, an investigating officer interviewed R.P. about the sexual assault..

During the interview with R.P., the investigator inquired about the two other males with whom she had sexual intercourse earlier that morning. R.P. was only able to identify Koenig by his first name, but she gave the investigator Koe-nig’s cellular telephone number, through which the police tracked him down. When contacted, Koenig agreed to be interviewed. When interviewing Koenig on July 27, 2001, the police verified R.P.’s story about her meeting with him to engage in sexual activity. Koenig emphasized that the encounter was consensual, and vigorously denied that he knew R.P. and J.L.’s actual ages. Koenig also stated in the interview that R.P. left him a message the next day indicating that she wanted to meet again. Koenig said he called her back and lied about being out of town because he was feeling guilty about cheating on his wife. However, Koenig said that a few days later, on June 14, he attempted to reach R.P. again to have another sexual encounter, but was unable to reach her.

A criminal complaint was filed against Koenig on August 27, 2001, charging him with: (1) third-degree criminal sexual conduct for having sex with a minor (Minn. Stat. § 609.344, subd. 1(b) (2002)), a felony for which the penalty is imprisonment for not more than 15 years and/or payment of a fine of not more than $30,000 (MinmStat. § 609.344, subd. 2 (2002)); (2) solicitation of a. child to engage in sexual conduct (Minn.Stat. § 609.352, subd. 2),- a felony for which the penalty is imprisonment for not more than three years and/or payment of a fine of not more than $5,000 (Minn. Stat. § 609.352, subd. 2); and (3) fifth-degree criminal sexual conduct for engaging in sexual activity in the presence of a minor (Minn.Stat. § 609.3451, subd. 1(2) (2002)), .a gross misdemeanor for which the penalty is imprisonment for not more than one year and/or payment of a fine of not more than $3,000 (Minn.Stat. § 609.3451, subd. 2). Koenig may present an affirmative . defense to the sex-with-a-minor charge by showing by a preponderance of evidence that he believed R.P. was over the age of 16. Minn.Stat. § 609.344, subd. 1(b).

In December 2001, Koenig filed a motion tb dismiss all three counts for lack of probable cause. A Florence hearing was held to determine whether there was sufficient probable cause to support the charges. The investigating officer and Koenig provided testimony at the hearing. Koenig described his contacts and meeting with R.P. and J.L. There was also extensive testimony as to Koenig’s knowledge of the girls’ ages. Koenig testified that the dateline service states that callers have to be 18 years old to use the service. He testified that R.P. told him that she was 18 and that J.L. was 19. However, Koenig testified that during one of their telephone conversations, R.P. asked, “Well, how old, how young would I have to be for you not to mess with me?” Koenig replied by asking, “Well, you’re over 16, right?” R.P. responded that she was 17, almost 18.

The state questioned Koenig regarding his employment at a high school where the student age range is 14 to 18, and had him testify that he has children, the oldest being a 12-year-old boy. The investigating officer testified that he was struck by how young R.P. looked when he. first saw her and that he estimated her age to be between 13 and 15. However, Koenig, testified that he assumed R.P. was old enough to consent because of her knowledge, explicit language, and sexual history. He testified that R.P.’s figure comported with someone of 18 years of age. He stated that she was “heavier set,” “very well-developed on her chest,” and had “full lips.” He testified that R.P. was approximately 5'5" and assumed she was short because of her ethnicity. He stated that she was dressed provocatively and wearing heavy makeup. Koenig also testified that, when told by the police that R.P. was 13, he thought he was going to die, became flushed, and saw black spots because he did not know she was that young.

In an order issued in February 2002, the district court denied the motion to dismiss the charge of third-degree sexual conduct with a minor because the court concluded there were fact issues regarding Koenig’s affirmative defense of mistake as to R.P.’s age. Koenig had presented an affirmative defense to this count, attempting to show by a preponderance of evidence that he believed R.P. was over the age of 16. Minn.Stat. § 609.344, subd. 1(b). The motion to dismiss the fifth-degree count for lack of probable cause was granted. That dismissal was not contested further.

The district court also dismissed the solicitation charge for lack of probable cause. The court concluded that Koenig intended to engage- in sexual conduct, but no evidence supported a finding of solicitation. The court stated that, because “R.P. initiated contact with the defendant by posting a voice message on a telephone dating service and participating in numerous, lengthy conversations with defendant, there is no evidence of solicitation.” The court- concluded that the conversations were mutual, that there were multiple voice-mail messages by each party, that the content of the conversations focused heavily on sex, that both parties were willing to speak with each other and arrange to meet, and that the purpose of the meeting was to engage in sexual activity.

The state appealed, and the court of appeals affirmed. State v. Koenig, 649 N.W.2d 484, 488 (Minn.App.2002). The court of appeals characterized the sequence ■ of voice-mail messages and later telephone conversations as a “process of negotiation” instead of solicitation. Id. The court agreed with the district court’s finding that R.P. initiated contact by being the first to post a message -and concluded that the

message unmistakably suggested a willingness to engage in sexual activity. R.P. did not exhibit any reluctance to discuss engaging in sexual activity, and her receptive attitude left no room for the “commanding, entreating, or attempting to persuade” that the statute prohibits.

Id. The court of appeals concluded that solicitation cannot occur when “the child’s own words or conduct lead so directly to the sexual activity that the adult does not engage in any form of persuasion.” Id. The court further concluded that in creating this statute, the legislature’s intent was to “prohibit any persuasive conduct by adults that might entice children to engage in sexual activity.” Id.

The state petitioned for review, which we granted. On appeal, the state asserts that the district court erred when it dismissed the solicitation charge on the ground that sufficient probable cause did not exist to conclude that Koenig solicited R.P. to engage in sexual conduct.

The only issue before us in this case is whether Koenig’s behavior constituted sufficient solicitation to support probable cause under the child solicitation statute. “[T]he test of probable cause is whether the evidence worthy of consideration * * * brings the charge against the prisoner within reasonable probability.” Florence, 306 Minn, at 446, 239 N.W.2d at 896 (emphasis omitted) (quoting State ex rel. Hastings v. Bailey, 263 Minn. 261, 266, 116 N.W.2d 548, 551 (1962)). The purpose of a probable cause hearing is to “protect a defendant unjustly or improperly charged from being compelled to stand trial.” Id. at 454, 239 N.W.2d at 900. We have held that “the production of exonerating evidence by .a defendant at the probable cause hearing does not justify the dismissal of the charges if the record establishes that the prosecutor possesses substantial evidence that will be admissible at trial and that would justify denial of a motion for a directed verdict of acquittal.” State v. Rud, 359. N.W.2d 573, 579 (Minn.1984). The purpose of a probable cause hearing can be accomplished “without requiring the prosecutor to call any witnesses.” Id. On appeal, we will accept the district court’s findings of fact unless clearly erroneous. State v. Colvin, 645 N.W.2d 449, 453 (Minn.2002).

This is the first case we have reviewed under the child solicitation statute, which was enacted in 1986. Act of March 25, 1986, ch. 445, § 3, 1986 Minn. Laws 778, 779. This statute criminalizes the solicitation of children to engage in sexual conduct and reads as follows:

Subdivision 1. Definitions. As used in this section:
(a) “child” .means a person 15 years of age or younger;
(b) “sexual conduct” means sexual contact of. the individual’s primary genital area, sexual penetration as defined in section 609.341, or sexual performance as defined in section 617.246; and c) “solicit” means commanding, entreating, or attempting to persuade a specific person in person, by telephone, by letter,' or by computerized or other electronic means.
Subd. 2. Prohibited act. A person 18 years of age or older who solicits a child or someone the person reasonably believes is a child to engage in sexual conduct with intent to engage in sexual conduct is guilty of a felony and may be sentenced to imprisonment for not more than three years, or to payment of a fine of not more than $5,000, or both.
Subd. 3. Defenses. Mistake as to age is not a defense to a prosecution under this section.

Minn.Stat. § 609.352 (2002). Subdivision 1(c) was amended in 2000 to include the words “in person, by telephone, by letter, or by computerized or other electronic means.” Act of April 3, 2000, ch. 311, § 3, 2000 Minn. Laws 189, 211-12.

We review de novo the construction of a criminal statute. Colvin, 645 N.W.2d at 452. The object of statutory interpretation is to effectuate the intent of the legislature. Minn.Stat. § 645.16 (2002); Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 831 (Minn.2002). The rules of statutory construction require that a statute’s words and phrases are to be given their plain and ordinary meaning. Minn.Stat. § 645.16; Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn.2001). When the language of the statute is ambiguous, the intent of the legislature controls. Minn. Stat. § 645.16; Colvin, 645 N.W.2d at 452. When reviewing a statute, we assume that the legislature does not intend to violate the United States and Minnesota Constitutions or intend absurd or unreasonable results. Minn.Stat. § 645.17 (2002); Chapman, 651 N.W.2d at 831. Penal statutes are to be construed strictly so that all reasonable doubt concerning legislative intent is resolved in favor of the defendant. Colvin, 645 N.W.2d at 452. However, strict construction does not require that we assign the narrowest possible interpretation to the statute. State v. Zacher, 504 N.W.2d 468, 478 (Minn.1993).

Here, under a plain meaning analysis, we must examine the definition given by the statute for the term solicitation. “Solicit” is defined as “commanding, entreating, or attempting to persuade a specific person.” Minn.Stat. § 609.352, subd. 1(c) (2002). The dictionary definition of “solicit” is “[t]o seek to obtain by persuasion, entreaty, or formal application.” The American Heritage Dictionary 1163 (2d College ed.1982). While we do not rely on this definition of solicit because the statute provides a definition, we note that the statute’s definition appears to be in accord with the general understanding of the word “solicit.” “Entreat” is defined as “[t]o make an earnest request of.” Id. at 457. “Earnest” is defined as “[m]arked by or showing deep sincerity or seriousness.” Id. at 434. Regarding an attempt to persuade, an “attempt” is defined as “[a]n effort or try.” Id. at 139. “Persuade” means “[t]o cause (someone) to do something by means of argument, reasoning, or entreaty.” Id. at 926. “Command” means “[t]o direct with authority; give orders to.” Id. at 296. The statute requires that the acts of commanding, entreating, or attempting to persuade be directed at a specific person. Minn.Stat. § 609.352, subd. 1(c).

The lower courts focused on the fact that R.P. had posted a voice-mail message on the dateline service indicating her interest in sexual activity. We first note that R.P.’s posting was a general and open invitation; it was not directed to any specific person. But, more importantly, her conduct as the minor is not controlling. Koenig initiated contact by sending a voice message to R.P. After listening to R.P.’s general posting, Koenig contacted R.P., indicated that he was interested in her offer, and that he enjoyed sex. While the court of appeals characterized the series of voice-mail messages and later telephone conversations as' a form of negotiation and not solicitation, based on the number of calls and the nature of the conversations, these contacts can reasonably be considered attempts by Koenig to persuade R.P. to engage in sexual activity with him.

It is significant that during one of the telephone conversations, R.P. asked Koe-nig what age would be too young. R.P. asked this question after having earlier told Koenig that she was 18 years old. Instead of pausing at this signal and proceeding cautiously, Koenig said, “Well, you’re over 16, right?” This rejoinder could be read as an indication to R.P. that the correct answer was over 16. Further, at one point when R.P. decided to take another telephone call, albeit what she termed to be a “booty call,” Koenig, convinced that R.P. would not call him back, testified that he “kept telling her” that he did not believe that she was going to call him back. In other words, it is reasonable to conclude that Koenig was attempting to persuade R.P. not to terminate the conversation in hopes that it would lead to sexual activity. In fact, R.P. did promise Koenig a sexual favor if she did not call him back within five minutes.

Credible evidence of a process of persuasion continued when Koenig arranged to pick up R.P. and J.L. Unquestionably, Koenig’s ultimate goal was to engage in sexual activity with R.P. Moreover, upon leaving work to meet with R.P/ and J.L., Koenig called to let them know he was coming and called again when he arrived at the agreed upon meeting place, and then called yet again to make sure that they were going to meet him. Koenig drove to multiple hotels in search of a room, something that, as minors, R.P. and J.L. could not do by themselves. He then arranged for a room when he found a hotel with a vacancy. Finally, R.P. stated that when Koenig located a hotel room, he had R.P. and J.L. walk in separately because they looked so young. Nevertheless, when asked at the Florence hearing what age Koenig thought the children were after seeing them in the light of the hotel room, he replied he believed them to be the ages they had told him, 18 and 19. Once in the hotel room, Koenig made a serious request to engage in sexual activity when he asked R.P. for the sexual favor that she had promised. This favor was engaging in oral sex while R.P. was restrained by his handcuffs. Koenig next engaged in anal sex with R.P., after which he turned on a pornographic movie, which was then followed by further sexual activity with R.P.

The common meaning of entreat requires an element of seriousness in the request. Given that the conversations were explicit as to their sexual nature, it is a reasonable conclusion that Koenig was serious about pursuing sexual activity with R.P. His attempts to prevent R.P. from ending the telephone conversation and to keep her interested are indications of his earnest intention and resolve to pursue sexual activities with her. Koenig also testified that he was under a time constraint because he was married and needed to find somebody within a short period of time who was serious about engaging in sexual activities. This scenario encompasses sufficient aspects of entreatment and attempts to persuade to support the charge under the statute within reasonable probability. There is substantial evidence admissible at trial and not inherently incredible which would be adequate to withstand a motion for directed verdict of acquittal. See Rud, 359 N.W.2d at 579. Therefore, we conclude there was sufficient probable cause to charge Koenig with entreating and attempting to persuade R.P. to engage in sexual activity in violation of Minn.Stat. § 609.352, subd. 1(c).

Because we conclude that the statute’s definition of solicitation is plain, an analysis of the legislature’s intent is unnecessary to support our conclusion that there was sufficient probable cause to charge Koenig. However, given the dissent’s narrow interpretation of the statutory definition of solicitation, we will review the statute’s legislative history. Such a review supports our interpretation of the statute.

Legislative research indicates that Representative David Bishop, the House author of the bill, wished to criminalize the mere request for sexual activity so long as the request was accompanied by á sincere intent to engage in sexual activity. See Hearing on H.F. 1835, H. Comm. Fam. and Crim. L., 74th Minn. Leg., February 19, 1986 (audio tape) (comments of Rep. Bishop). The legislature added the “intent to engage in sexual conduct” language as part of the prohibited act in order to increase the state’s burden of proof. Id. Requiring the state to show intent was added to eliminate the potential that joking or frivolous offers would be subject to prosecution. Id. The intent element makes solicitation an act rather than speech, i.e., the act of attempting to persuade a child to engage in sexual activity. See Senate debate on S.F. 1592, 74th Minn. Leg., March 17, 1986 (audio tape) (comments of Sen. Reichgott, sponsor of Senate bill). To further secure against First Amendment violations, the legislature required the state to show that the defendant was soliciting “a specific person.” Hearing on H.F. 1835, H. Comm. Fam. and Crim. L., 74th Minn. Leg., February 19, 1986 (audio tape) (comments of Rep. Bishop). Representative Bishop noted that with the addition of this language, a rock musician singing a song including solicitous words could not be prosecuted. Id. These comments indicate that the focus of the bill was on criminalizing conduct and not speech.

The legislature appears to have concluded that there was a need to criminalize the act of child solicitation because solicitation often leads to abuse, prostitution, and kidnapping, which are commonly associated with sexual conduct. Hearing on S.F. 1592, S. Judiciary Comm., 74th Minn. Leg., February 7, 1986 (audio tape) (comments of Sen. Reichgott). The legislature saw a need to protect vulnerable children, particularly runaways and truants. Senate debate on S.F. 1592, 74th Minn. Leg., March 17, 1986 (audio tape) (comments of Sen. Reichgott). Senator Bergland noted that solicitation was a widespread problem, in various districts. Id. After debating whether to make solicitation a gross misdemeanor as opposed to a felony, the legislature voted in favor of making it a felony because of the need for a greater deterrent effect due to the potential harm to children. Id.

When considering whether to eliminate mistake of age as a defense to the charge of solicitation, the Senate Judiciary Committee, to which the bill was referred, received testimony from Olmsted County Attorney Raymond F. Schmitz. Hearing on S.F. 1592, S. Judiciary Comm., 74th Minn. Leg., February 7, 1986 (audio tape). Schmitz reported that he had had difficulty prosecuting a defendant who approached 11- and 12-year-old boys and made an offer for sex because there was no penalty under the law for this type of behavior. Id. Schmitz argued that even if a victim lies about his or her age, an adult should not be allowed to hide behind the fact that the victim indicated he or she was 17 or 18 or older because the subject at issue concerns criminal activity against children. Id. Schmitz also argued to the legislature that if a person is planning to engage in sexual activities with someone in a youthful age range, that person takes the risk of criminal sanctions if he or she does not take the trouble to satisfactorily verify the solicited person’s age. Id.

For all of the foregoing reasons, we conclude that there is sufficient credible evidence of probable cause to support the charge against Koenig for the solicitation of a child for sexual activity. We hold that the district court erred when it dismissed this charge against Koenig and therefore we reverse the decision of that court and the affirmance of the decision by the court of appeals. We remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

BLATZ, C.J., took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully dissent. While the facts of this ease are disturbing and sordid, I, unlike the court, cannot allow myself to be swept away by them in order to ignore the clear language of the statute to reach the conclusion that there is probable cause sufficient to charge Koenig with solicitation of a child to engage in sexual conduct under Minn.Stat. § 609.352 (2002). As the court has noted above, the purpose of a Florence hearing is to determine whether there are sufficient grounds to establish probable cause to believe that the defendant is guilty of a charged offense, not to decide his guilt in the matter. See State v. Schwartz, 266 Minn. 104, 108, 122 N.W.2d 769, 772 (1963). To satisfy this burden, the state must establish probable cause for each element of the charged offense. Thus, in this case, the state’s failure to establish probable cause as to each element under Minn.Stat. § 609.352, subd. 2 (2002), means that Koenig’s actions, while despicable, are not criminal.

We have long held that “[e]very law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2002); State v. Larivee, 656 N.W.2d 226, 229 (Minn.2003). To sustain Koenig’s charge of solicitation of a child to engage in sexual conduct, there must be evidence to establish that (1) he “solicitfed] a child * * ⅜ to engage in sexual conduct” and (2) that he had the “intent to engage in sexual conduct.” The statute defines the first required element for a violation of section 609.352, “solicit,” as “commanding, entreating, or attempting to persuade a specific person in person, by telephone, by letter, or by computerized or other electronic means.” Minn.Stat. § 609.352, subd. 1 (2002). Because the statute does not provide a special definition for “commanding,” “entreating,” or “attempting to persuade,” these words must be read “according to their common and approved usage.” Minn.Stat. § 645.08 (2002). In the Random House Webster’s Unabridged Dictionary (2d. ed.2001), “command” is defined as “to direct with specific authority or prerogative; order”; “entreat” is defined as “to ask (a person) earnestly; beseech; implore; beg”; and “persuade” is defined as “to prevail on (a person) to do something, as by advising or urging.” Id. at 410, 649, 1446. Implicit in the statute’s use of each of these words is a requirement that the accused take some affirmative step to pressure a child to engage in sexual conduct. There is no evidence in this record that Koenig directed with specific authority, asked earnestly, beseeched, implored, begged, sought to prevail upon, or pressured R.P. in any way to engage in sexual conduct. Therefore, there is no evidence that Koenig, as required to support a charge under the statute, took any action to command, entreat, or attempt to persuade R.P. to engage in sexual conduct. Without any evidence with respect to this first element of the crime, the state has failed to meet its burden under Florence because without such evidence it cannot establish probable cause to believe that Koenig . violated Minn.Stat. § 609.352, subd. 2.

The court attempts to avoid the statute’s requirements by relying on facts that shed no light on whether Koenig commanded, entreated, or attempted to persuade R.P. to engage in sexual conduct. For the court, it is enough that the facts suggest that he intended, if possible, to engage in sexual conduct with R.P. the evening in question and that he likely knew or should have known that R.P. was younger than 15 years of age. However, each, of the incidents relied on by the court merely support the conclusion that Koenig desired to engage in sexual conduct that evening and he likely knew or should have known that R.P. was younger than 15 years of age.

The court begins its analysis relying on R.P.’s question regarding what age -was too young for Koenig to engage in sexual conduct and his response of, <cWell you’re over 16 right?” The court found this to be “significant” evidence of Koenig’s attempt to persuade R.P. to engage in sexual conduct. However, this question and its response go to whether Koenig knew that R.P. was a child under the age of 15, a fact that has no relevance to the solicitation charge. Nothing about either the question or response say anything either implicitly or explicitly about whether Koenig commanded, entreated, or attempted to persuade R.P. to do anything;

The court also relies on Koenig’s discussion with R.P. regarding whether she would call him back after taking another call, including what it describes as Koe-nig’s “attempt[] to persuade” R.P. to call him back, and R.P.’s eventual promise that if she did not call him back within five minutes he could have a sexual favor. The court concludes from this discussion that Koenig’s “earnest” attempts to persuade R.P to continue talking to him are the equivalent of an attempt by Koenig to persuade R.P. to engage in sexual conduct. However, the statute requires a showing that the accused attempted to persuade the child to engage in sexual conduct, not that the accused attempted to persuade the child to continue a sexually explicit conversation. Thus, Koenig’s efforts to keep R.P. on the telephone do not provide probable cause to believe that he solicited R.P. to engage in sexual conduct.

Similarly, the court relies on the evidence that Koenig called R.P. when she did not immediately show up at the designated meeting place; picked up R.P and J.L; drove to several hotels, which R.P. and J.L could not have done on their own; arranged for a room; and asked about, the sexual favor that R.P. had promised him earlier in the evening as further evidence of the process of persuasion. Each of these pieces of evidence provides support for the proposition that Koenig intended to engage in sexual conduct with R.P., but they do not provide probable cause to believe that Koenig commanded, entreated, or attempted to persuade R.P. to engage in sexual conduct. Nor do any of Koenig’s words or acts related to that evidence support probable cause.

Rather, the record establishes that R.P. willingly left a sexually explicit message on the hotline; responded to Koenig’s sexually explicit postings in response to her initial posting; gave him her direct number so he could call her at home; engaged in sexually explicit phone conversations with Koenig; before interrupting one of these conversations to take another phone call, promised him a sexual favor if she did not call back within five minutes; called him back approximately 20 minutes later; met him at a gas station; got into his car; went with him to several hotels as he tried to find a room; once a room was found, went to it with Mm; and engaged in sexual conduct with him.

As indicated, there is no evidence of solicitation unless one reads the statute and the record, as the court does here, and concludes that a defendant may be charged with a violation of Minn.Stat. § 609.352 solely on the basis that the accused had a sexually explicit conversation with a child with intent to engage in sexual conduct. This reading collapses the two required elements of the statute into one and fails to give effect to the part of the statute that requires the defendant to “solicit” the child. Indeed, the court’s interpretation of the statute is so broad that I cannot imagine any sexually explicit conversation between an individual 18 years or older and a child under the age of 16 that would not be punishable under Minn. Stat. § 609.352, subd. 2. Because we have long held that “[e]very law shall be construed, if possible, to give effect to all its provisions,” Minn.Stat. § 645.16, I cannot but conclude, based on the language of the statute, that there needs to be more than just proof of a sexually explicit conversation between the accused and a child to establish probable cause to believe that the accused solicited the child to engage in sexual conduct.

While agreeing to and then engaging in sexual conduct with a child is despicable and may subject the accused to a criminal sexual conduct charge, that alone does not satisfy the requirements for bringing a charge under section 609.352, subdivision 2. In its efforts to avoid placing blame on R.P., the court has completely taken Koe-nig’s actions out of context and placed them into a vacuum from which it then reviews the record and applies the law. This skews the lens through which we must look to find evidence of solicitation. More properly, the accused’s conduct must be viewed in context with the child’s behavior to determine whether or not solicitation has indeed occurred. Doing so does not equate to or require blaming the child. Nor does it use the child’s conduct to justify the defendant’s actions. Rather, it merely places Koenig’s conduct in the proper context to determine whether or not probable cause exists as to each element of section 609.352, subdivision 2.

This raises the question: Can a willing child be solicited under Minn.Stat. § 609.352. The answer of course is yes, but only if the accused commands, entreats, or attempts to persuade the child to engage in sexual conduct with the intent to engage in sexual conduct. If there was any evidence showing that R.P. did not want to engage in any of the conversations with Koenig, did not want to meet Koenig, or expressed that she was unwilling to engage in sexual conduct with Koenig, after which Koenig commanded, entreated, or attempted to persuade her to do otherwise, then the first element required for a solicitation charge would be satisfied. However, if the child acts voluntarily, as R.P. did in this case, and the accused does not need to and therefore does not command, entreat, or attempt to persuade the child to do anything, as the record here indicates, there can be no solicitation. Although Koenig’s conduct is abhorrent, I cannot in good conscience read out of the statute, as the court does, the requirement that the defendant take some action, however minimal, that constitutes commanding, entreating, or attempting to persuade the child to engage in sexual conduct. Nor can I read the record, as the court does, to justify its result. Therefore, I would affirm the dismissal of the solicitation charge for lack of probable cause.

Finally, I do not understand the court’s review of legislative history given its holding that Koenig’s actions fit within the “plain meaning” of the statute. We have stated over and over again that “[w]hen the words of the law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16. Here, the statutory definition of “solicit” is unambiguous. The only possible reason for the court to engage in an examination of legislative history is in an effort to bring its expansive reading of the facts within its expansive reading of the statute’s “plain meaning.” Doing so violates our rules of statutory construction. If Minn.Stat. § 609.352, subd. 2, is ambiguous and requires the court to resort to consideration of legislative history in order to give its provisions meaning, we are required to “resolve ambiguity concerning the ambit of the statute in favor of lenity” towards the defendant. State v. Stevenson, 656 N.W.2d 235, 239 (Minn.2003). Here, that would require that the district court and the court of appeals be affirmed. Either section 609.352, subdivision 2, is ambiguous or it is not. The court cannot have it both ways.

      . A "booty call” is defined as "[a] call to arrange a sexual rendezvous.” A Dictionary of Slang at http://www.pee-vish.co.uk/'slangfb.htm (last visited July 22, 2003).

      . Minn. R.Crim. P. 11.03 provides that the court shall hear a defendant's motion for dismissal of the complaint against him for lack of probable cause that he committed the offense charged. This type of hearing has come to be called a Florence hearing based on the case of State v. Florence, 306 Minn. 442, 239 N.W.2d 892 (1976).

      . In the context of attempt crimes, we have interpreted the statutory definition of attempt, Minn.Stat. § 610.27, repealed 1963, ("[a]n act done with intent to commit a crime and tending, but failing, to accomplish it”), as requiring "more than the mere solicitation of another to commit.” State v. Lowrie, 237 Minn. 240, 242-43, 54 N.W.2d 265, 266 (1952). ”[M]ere acts of preparation remote from the time and place of the intended crime, unaccompanied by other overt acts performed pursuant to the attempt, are insufficient to constitute such an attempt.” Id. at 243, 54 N.W.2d at 266-67. However, the legislature considered this case law definition in concluding that additional legislation was needed to address the problem of child solicitation. Hearing on S.F. 1592, S. Judiciary Comm., 74th Minn. Leg., February 7, 1986 (audio tape) (comments of Sen. Reichgott).

      . The dissent criticizes the court's interpretation of the evidence. In response, we emphasize that the proper focus here is not on whether Koenig was guilty or innocent of the charges filed against him, but whether there was sufficient probable cause to move the case forward. In its unfalteringly narrow view of Koenig's conduct, the dissent appears te lose sight of the narrow issue which is before us. Further, the focus here is on Koe-nig's conduct and not that of the child. In its narrow review of the facts and its conclusion as to their meaning, the dissent conveniently ignores too -much that transpired between Koenig and the child.

      . Mistake as to age is not a defense to such a charge. Minn.Stat. § 609.352, subd. 3 (2002).