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Appeals process affirms conviction of sex offender

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News Worthington,Minnesota 56187 http://www.dglobe.com/sites/default/files/styles/square_300/public/fieldimages/4/0711/10-wehmeyer.jpg?itok=7fwLYjBW
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Appeals process affirms conviction of sex offender
Worthington Minnesota 300 11th Street / P.O. Box 639 56187

JACKSON -- An opinion filed Tuesday through the Minnesota Court of Appeals affirms a 2007 Jackson County District Court ruling that convicted a Windom native to life in prison for second-degree criminal sexual conduct, but removed five years from the date he may be eligible for supervised release.

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Ricky Lee Wehmeyer, now 45, was charged in 2006 with two counts of second-degree criminal sexual conduct after allegedly touching a 6-year-old child inappropriately while living in Lakefield with the child's mother.

The case went to trial six months after the charges were filed, but ended with a deadlocked jury.

During a second trial a few months later, the jury found Wehmeyer guilty.

The district court sentenced him to a mandatory life sentence with a minimum of 360 months incarceration.

The heavy sentence followed a series of past convictions that began in 1989 with charges of kidnap, assault and criminal sexual conduct. He was convicted on the conduct charge and sentenced to 36 months in prison. Between 1992 and 2006, Wehmeyer was convicted of theft, criminal damage to property, possession of methamphetamine, receiving stolen property, controlled substance crimes and more. In addition, he was convicted a second time for criminal sexual conduct, for intentionally providing false information as a predatory offender and for failing to register properly as a sex offender.

Wehmeyer, after being turned down for post-conviction relief, appealed his conviction through the appellate court, arguing the district court decision on several points. Through attorneys, he argued the evidence was insufficient to support his conviction, that the court abused its discretion by admitting evidence from former convictions, that the court erred by not ordering a new trial for discovery violations and that his life sentence was not valid for several reasons.

During his last trial, the state offered into evidence a portion of Wehmeyer's plea transcript from a previous case in which he pleaded guilty to criminal sexual conduct with a 10-year-old girl. In his appeal, Wehmeyer objected, stating it was an error for the district court to allow the evidence. The appellate court disagreed, stating it was relevant and material due to the similarities between this case and the one involving the 10-year-old. The evidence also helped show that the charge against Wehmeyer was not fabricated and that the contact was intentional, the appellate opinion states.

The discovery argument stems from a disclosure during the second trial of an interview tape both the defense and the prosecution were unaware of until an officer testified to its existence. Defense counsel did not object to the late discovery at the time of trial. The appellate court opinion states the nondisclosure was inadvertent and defense did not ask for a continuance, therefore the district court did not commit error by failing to grant a new trial based on the discovery violation.

In his appeal, Wehmeyer also argued that the evidence presented at trial was insufficient to prove he was guilty of criminal sexual conduct.

"This court cannot retry facts but must take the view of the evidence most favorable to the jury verdict and must assume that the jury believed the state's witnesses and disbelieved any contrary evidence," the opinion states. "If the jury could have reasonably found the defendant guilty, giving due regard to the presumption of innocence and the state's burden of proof beyond a reasonable doubt, the verdict will not be reversed."

Weighing the credibility of a witness is a function left exclusively to the jury, the document states.

Wehmeyer's arguments against life sentence are varied, claiming the state failed to give proper notice of their intention to seek such a sentence, that he was not charged by indictment, that his counsel failed to inform him of the possibility of a life sentence and that the district court miscalculated the mandatory minimum term of imprisonment.

The appellate court shot down all but the last argument, stating he had fair notice he faced life in prison and the potential sentence was readily ascertainable. The charge, the document states, did not need to be prosecuted by indictment because the enhancement factor that brought the life sentence was a provision of the repeat sex offender statute. Wehmeyer's claim of ineffective assistance of counsel failed because there is no support in the record that he would have accepted a plea or that counsel did not make sufficient effort to settle the case.

The one argument the appellate court agreed with is that the minimum term of imprisonment was incorrectly calculated by five years.

"We reverse and remand for the district court to recalculate the minimum term of imprisonment and impose a term of imprisonment that does not exceed the statutory maximum term of 300 months," the document states.

Wehmeyer would be eligible for supervised release approximately 25 years after his admittance date of Sept. 20, 2007 -- sometime in 2032, give or take credit for time served.

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