This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Obdulio Chavarria Cerceno,
File No. K299415
Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas L. Ruth, Steele County Attorney, 317 North Cedar, P.O. Box 616, Owatonna, MN 55060 (for respondent)
Lawrence Hammerling, Deputy State Public Defender, Marie Wolf, Assistant Public Defender, 2829 Unviersity Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.
In this appeal from a conviction of second-degree criminal sexual conduct, appellant Obdulio Chavarria Cerceno argues that the evidence was insufficient to prove beyond a reasonable doubt the statutory requirement that he had a significant relationship with the victim. We affirm.
A jury found Cerceno guilty of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (1998). The victim is a daughter in the S. family.
Cerceno first stayed with the S. family for several months in 1985. In 1989 he again lived with the S. family. The S. family provided a place for Cerceno to live and paid many of his education and transportation expenses. In return, Cerceno helped out around the family farm.
Sometime in 1992, Cerceno moved out of the S. house and into an apartment. The victim was approximately six or seven years old when Cerceno moved out. After moving out, Cerceno continued to visit the S. family and frequently stayed at their house on weekends and for overnight visits.
The victim testified that the stays occurred more than once a month, on both weekends and weekdays. She also stated that Cerceno would come over on holidays and that he attended church with the family on Sundays and helped out around the farm after church. The victim’s father testified that Cerceno stayed at the S. house once a week after moving out. The victim’s mother testified that when Cerceno first moved, he frequently came back and stayed with them on weekends. Cerceno testified that he stayed at the S. family home “maybe once a month, sometimes twice” or “[m]aybe every two months.” He also stated that he stayed at the S. home once to babysit the children when the parents went on vacation for several days and that he babysat at other times for one or two days at a time. He usually stayed at the S. house one to three days at a time.
The victim testified that Cerceno repeatedly sexually assaulted her for several years, but she could not remember the first time it occurred. She thought it could have been when he was still living at the S. house. At trial, she recalled a sexual assault when she was six or seven years old. She stated that she was touched like that on a regular basis anytime she and Cerceno were in the house together. She said it happened “[t]oo many times to count.” The last time it happened was a week before she revealed the sexual assaults to her parents during March 1999.
When reviewing a claim of insufficient evidence in a criminal case, this court determines
whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged.
State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (quotation and citation omitted). We review the evidence in the light most favorable to the conviction and assume the jury believed the state’s witnesses and disbelieved any contrary evidence. Id.
Minn. Stat. § 609.343, subd. 1(h)(iii) (1998) provides:
A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists:
* * * *
the actor has a significant relationship to the complainant, the complainant was under 16 years of age at the time of sexual contact, and:
* * * *
the sexual abuse involved multiple acts committed over an extended period of time.
Cerceno argues that the evidence is insufficient to demonstrate that he had a significant relationship with the victim.
A “significant relationship” includes the situation of “an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse.” Minn. Stat. § 609.341, subd. 15(3) (1998). Cerceno urges us to examine legislative history to determine the meaning of “resides” as used in the statute. But in State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied, (Minn. June 19, 1996), this court determined that when “resides” is given its ordinary meaning, the statute is not ambiguous. Therefore, this court cannot “substitute [a] proposed interpretation based on legislative history, but must effectuate the legislature’s intent expressed in its clear choice of words.” Id. In Sebasky, this court concluded, “To reside means to ‘live, dwell, abide, sojourn, stay, remain, lodge * * * [or] have a settled abode for a time.’” Id. (omission and alteration in original) (quoting Black’s Law Dictionary 1308 (6th ed. 1990)).
Sebasky was charged with sexually assaulting two young boys, whom he hired to perform odd jobs in his business. Id. at 96. One of the boys, J.W., stayed overnight with Sebasky at Sebasky’s residence almost every weekend. Id. The other boy, D.G., stayed at Sebasky’s house as many as six nights per week during the summer. This court concluded that the “complainants’ frequent, but discontinuous, stays of two to six days at a time are specifically covered by the statute’s use of the term ‘intermittently.’” Id. at 100 (citing Webster’s New Universal Unabridged Dictionary 959 (2d ed. 1983) (defining “intermittently” as “with intermissions; at intervals”)).
A jury could have reasonably believed the state’s witnesses and found that Cerceno resided with the S. family intermittently, according to the time intervals recited by the victim, her father, and her mother. According to the witnesses, Cerceno stayed overnight with the S. family anywhere from once per week to once per month for approximately seven years. Sometimes he stayed at the S. house for several days at a time, and he spent holidays with the S. family. The evidence supports a jury finding that Cerceno had a significant relationship with the victim as required under Minn. Stat. § 609.343, subd. 1(h)(iii), because he resided intermittently in the same dwelling as the victim.