Kidnapping Near Bemidji

2006-M-26          State of Minnesota, Respondent, vs. Stephanie Dawn Losh, Appellant.

DESCRIPTION OF THE CRIME:  Ms. Losh was indicted for the second-degree murder of Brian Jenny.  Ms. Losh pleaded guilty to kidnapping.

In October, 2002, Jenny and a relative hosted a late-night party at their remote cabin near Federal Dam.  Losh and her friends attended the party.  Losh and one friend left the party to acquire more beer.  Upon their return, they saw a second friend beating Jenny in the head with a baseball bat.  Losh’s friends loaded Jenny into the trunk of the car.  The killer instructed Losh to drive the car to a bog where Jenny was dumped.  Jenny died of massive head wounds a few days later.

The District judge sentenced Losh to a prison term of 20 months, which was longer than the recommended sentence for that crime for a person with Losh’s criminal record, but the judge suspended her prison sentence pending her good behavior.  He assigned her to a county jail for one year, required her to abstain from drugs in the future, and to participate in random drug testing. 

The guidelines recommended a prison sentence of 89 months for the kidnapping conviction, so Losh’s sentence was a(longer) upward durational departure and a )shorter) downward dispotional departure (shorter actual prison time).  The sentencing judge explained that the upward durational departure was justified because the kidnap victim suffered great bodily harm, was released in unsafe conditions, and the vulnerability of the victim at the time of release.

Less than a month after Losh completed her sentence in the county jail, she was again consuming a narcotic and was ordered to complete her 120-month sentence in prison.

AT THIS APPEAL:  Losh appealed on two grounds.  First, she claimed that a 2004 decision by the U.S. Supreme Court should be applied retroactively to Losh’s 2002 sentence and that trial judges could not accept plea bargains based on alleged facts that had not been specifically found by a jury.  

Second, Losh claimed that the trial judge abused his discretion in exceeding the 89-month recommended sentence by imposing an upward durational departure to 120 months.

THIS DECISION:  Justice Gildea voted to support Justice Barry Anderson’s majority opinion on both grounds.

First, the Minnesota Supreme Court held that the Blakely opinion by the U.S. Supreme Court in 2004 did not apply retroactively to Losh’s 2002 sentencing after her first opportunity for a direct appeal expired in 2003.

Second, the Minnesota Supreme Court held that the sentencing court did not abuse its discretion in adding 31 months to the kidnapping conviction because Losh left Jenny in dangerous circumstances in the swamp, while suffering from great bodily harm, in greatly vulnerable condition.

DATE OF DECISION:  September 28, 2006

RECORD NUMBER:  2006-170

FULL OPINION:  A04-1028,

DESCRIPTION:  [MURDER]  [KIDNAPPING]  [CRIME]