This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-852

 

State of Minnesota,

Respondent,

 

vs.

 

Robert James Grzeskowiak,

Appellant.

 

 

Filed March 28, 2000

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 98052627

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Hennepin County Attorney’s Office, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

                        Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

Appellant claims that the evidence is insufficient to support his conviction of  attempted third-degree criminal sexual conduct.  Because the jury, crediting the victim’s testimony, could reasonably conclude that appellant was guilty beyond a reasonable doubt, we affirm.    

FACTS

            After work on April 30, 1998, appellant Robert James Grzeskowiak joined other coworkers at a bar.   Appellant offered female coworker L.S. a ride home and she accepted.  When they arrived at L.S.’s house, appellant followed L.S. as she went upstairs to let her puppy out of the bedroom. According to L.S., appellant threw a dog toy down the stairs.  When the puppy followed it, appellant closed the door, tackled L.S. on the bed and began kissing and groping her.  L.S. rolled of the bed to get away, but appellant pinned her to the floor.  

            L.S. told appellant to get off of her, but he did not comply.  Instead, he held her wrists above her head with one hand.  With the other, he removed his pants.  L.S. could feel that he was maneuvering, trying to penetrate her.  L.S., kicking and struggling, continued to tell him “no”, but appellant mocked her.  When L.S. gained some leverage, appellant got off her, ran down the stairs, and left her house. 

            L.S., frightened and upset but unable to leave because she had left her truck at the bar, telephoned friends and made several 911 calls from her cell phone.  Arriving officers found L.S. upset and crying, but not intoxicated.  L.S. told them what happened and handed them appellant’s heavy silver bracelet, which she recovered from her bed.   L.S. told the officers that appellant may have removed her nylons and underwear, but at trial testified that appellant had not removed any of her clothing.  L.S. waited a day or so before deciding to request prosecution of appellant.  A police officer explained to the jury that, in his experience, it is normal for victims of sexual assaults to react this way.

            Appellant testified on his own behalf, and agreed that he had taken L.S. home.  But he claimed he was only in her living room for a few minutes, looking at her movie collection and greeting her pets, before leaving to meet his friends at another bar.  A friend who met him at that bar testified that appellant’s demeanor was normal.  Another testified appellant’s bracelet had a weak clasp.

            The jury found appellant guilty of attempted third degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (1996) and Minn. Stat. § 609.17 (1996) (attempted sexual penetration, using force or coercion).   

ISSUE

Is the evidence sufficient to support the jury’s guilty verdict?

D E C I S I O N

            Appellant argues that the evidence was insufficient to support the jury’s guilty verdict.  We review an insufficiency-of-evidence appeal to determine whether, in light of the inferences that can be drawn from the evidence, the jury could reasonably find the defendant guilty beyond a reasonable doubt.  State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997).  We view the evidence in the light most favorable to the conviction and assume the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 

            Third-degree criminal sexual conduct requires proof of “engag[ing] in sexual penetration with another person [and] the actor uses force or coercion to accomplish the penetration.”   Minn. Stat. § 609.344, subd. 1(c).   The attempt statute provides:

Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime * * * .

 

Minn. Stat. § 609.17.  Appellant claims that a reasonable jury could not have found him guilty of all the elements of attempted third degree criminal sexual conduct beyond a reasonable doubt because L.S.’s intoxication and her inconsistent statements rendered her testimony unreliable.  We disagree.

            The jury measures the ultimate credibility of any witness. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  Minor inconsistencies in state's case, including slight differences between a witness’s testimony and earlier statements, are generally not enough to render the evidence insufficient to support a guilty verdict.  See, e.g., State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (recognizing that the jury determines credibility and weight given to testimony of individual witnesses); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (recognizing that a determination of witness credibility is an exclusive jury function, and concluding that inconsistencies in state's case do not require reversal of a jury verdict).          

            The jury had the opportunity to judge the credibility of both L.S. and appellant.  The police officers’ testimony, the recorded 911 calls, and L.S.’s cell-phone records corroborated much of L.S.’s testimony.  The district court instructed the jury on the need to find guilt beyond a reasonable doubt and the need to evaluate all evidence, including credibility. Apparently the jury believed L.S.’s testimony, notwithstanding defense counsel's attempt to discredit her by highlighting her intoxication and inconsistencies between her testimony and her statements to police. 

            In light of the inferences that can be drawn from the corroborating telephone records and police-officer testimony, and the deference we give to jury determinations of witness credibility, we hold that the evidence was sufficient for a reasonable jury to find appellant guilty beyond a reasonable doubt.

            Affirmed.