This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Dennis DeLong,




Filed March 13, 2001


Halbrooks, Judge


Hennepin County District Court

File No. 99080744



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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Paul C. Engh, 1600 Foshay Tower, 821 Marquette Avenue, Minneapolis, MN 55402 (for appellant)




            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of fourth-degree criminal sexual conduct on the grounds that (1) the evidence was insufficient to prove that he was in a position of authority over the 17-year-old victim, (2) the trial court’s instruction did not adequately define “position of authority,” and (3) the trial court erred in failing to submit the lesser-included offense of fifth-degree criminal sexual conduct.  Because there is sufficient evidence in the record to support the conviction, and because we conclude that the trial court did not err or abuse its discretion, we affirm.


            On July 31, 1999, K.G. spent the night at the home of her friend, K.D.  K.G., then 17 years old, had been friends with K.D. for years and had often stayed overnight at K.D.’s family’s apartment.  Appellant, in addition to being K.D.’s father, had also been K.G.’s coach for a number of sports over the years. 

            On the morning of August 1, 1999, K.G. was sleeping on the couch in appellant’s living room.  She was positioned on her side with her face toward the back of the couch.  K.G. testified that she was awakened by appellant rubbing her feet, but she continued to feign sleep.  A noise or a voice was heard coming from a nearby bedroom.  At the sound of the noise, appellant stopped rubbing K.G.’s feet, left the couch, and moved to a chair. 

            A few minutes later, appellant returned to the couch and began to rub K.G.’s feet again.  K.G. testified that appellant took off her socks and licked her left foot and ankle.  Another sound came from somewhere in the apartment, and appellant moved away once again. 

            When appellant returned a few moments later, he laid down next to K.G., with his stomach against her back.  K.G. testified that appellant put his hands on her hips and proceeded to rub himself against her for some period of time.  There was another sound and appellant got up quickly and went into the bathroom, where K.G. could hear him coughing, running water, and flushing the toilet.  When appellant came out of the bathroom, he shook K.G. by the shoulder, and told her that he and his wife were leaving and that he would take her home.  Appellant then drove K.G. home. 

            K.G.’s father was not home when she arrived, so K.G. went to a neighbor’s home and told her what had happened.  The neighbor testified that K.G. was crying, shaking, and visibly upset.  The neighbor encouraged K.G. to tell her father about the incident, which K.G. later did.  When K.G. and her father called appellant that night, he initially denied that anything occurred.  Appellant subsequently acknowledged that he had rubbed K.G.’s feet and very briefly rubbed his body against hers. 

The next day, K.G. and her father went to the police, and K.G. gave a formal statement.  K.G. described how appellant had rubbed her feet, licked her ankle, and “dry-humped” her with an erect penis.  Appellant voluntarily provided a statement to the police on August 5, 1999.  During the interview, appellant admitted to taking off K.G.’s socks, briefly massaging her feet in an effort to awaken her, and having a sexual urge when he brushed up against K.G.  Appellant denied licking K.G.’s foot or ankle or any type of sexual contact with her. 

            Appellant was charged with fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345 (1998).  Trial resulted in a conviction.  This appeal follows.


I.            Sufficiency of the Evidence

            Appellant contends that there was insufficient evidence to establish that he was in a position of authority over K.G., and, therefore, one of the required elements of fourth-degree criminal sexual conduct was not met.  In support, appellant asserts that K.G. was an uninvited guest in his apartment and that he did not agree, implicitly or explicitly, to supervise her.

            When reviewing a claim of insufficiency of the evidence, this court’s function is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. 


State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).  The evidence must be viewed in the light most favorable to the conviction, and the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence.  Id.  “Deciding the credibility of witnesses is generally the exclusive province of the jury.”  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (citations omitted).  An appellate court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the state’s burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was proven guilty of the offense charged.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Minn. Stat. § 609.341, subd. 10 (1998), defines “position of authority” as follows:

“Position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act.


Appellant argues that this definition is somehow “vague” or “unclear,” as applied to these facts.  Appellant further contends that a “position of authority” must be in some way bestowed by the actual parent and/or acknowledged by the child, but he offers no legal authority for this proposition. 

            This court has previously concluded that a “‘person in a position of authority’ is broadly defined” under Minn. Stat. § 609.341, subd. 10.  State v. Willette, 421 N.W.2d 342, 345 (Minn. App. 1988), review denied (Minn. May 16, 1988).  We have also confirmed that the statutory definition “does not contain an exclusive list of persons in a position of authority.”  State v. Larson, 520 N.W.2d 456, 461 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994). 

            Here, there was sufficient evidence to support appellant’s position of authority vis‑ŕ‑vis K.G.  K.G. had a long-standing relationship with appellant, who was both a coach and her friend’s father.  K.G. testified at trial that she considered appellant to be “[n]ot exactly like a dad figure, but like a close friend.”  She further testified that her relationship with appellant was closer than typical of other “fathers of friends” or “coaches.”  K.G. had spent the night at appellant’s home on numerous occasions before this incident occurred.  In fact, K.G. had earlier lived with appellant’s family for a short time.  See State v. Hall, 406 N.W.2d 503, 505-06 (Minn. 1987) (defendant in position of authority where victim was babysitting for defendant’s children for only a one-month period).  On this night, K.G. was a guest in appellant’s home.  Whether or not appellant individually invited K.G. or was specifically asked by K.G.’s father to supervise her is not dispositive.  See State v. Waukazo, 269 N.W.2d 373, 374 (Minn. 1978) (adult son of victim’s foster parents found to be in position of authority despite lack of duty or authority to care for child). 

            The fact that appellant was not formally given authority over K.G. is not determinative.  The incident occurred in appellant’s home, a place within his exclusive control.  As an adult in the residence, appellant’s responsibilities reasonably included at least a minimum degree of protection of K.G.’s health and welfare.  That limited responsibility is sufficient to place appellant within the broad definition of “position of authority.” 

II.        Jury Instructions

            Appellant maintains that the trial court erred by failing to adequately define the term “position of authority.”  The trial court instructed the jury on this issue as follows:

A person is in a position of authority if he is a parent or is charged with any duty or responsibility for the health, welfare, or supervision of a child, no matter how brief.


Appellant’s trial counsel did not object to the instruction.  To come within the scope of this court’s review, an unobjected-to jury instruction must contain error, the error must be plain, and the error must affect substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

Trial courts are allowed “considerable latitude” in the selection of language for jury instructions.  Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999) (quoting State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990)).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted).  In order to show prima facie evidence of error, appellant must show that the instruction contained “a material misstatement of law when read in the context of the instructions as a whole.”  State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980).  There is no reversible error if the court’s jury instructions, when read as a whole, correctly state the law in language that can by understood by the jury.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). 

We conclude that the instruction here accurately paraphrases the law set out in Minn. Stat. § 609.341, subd. 10.  The trial court’s jury instruction was not plain error. 

III.            Failure to Submit the Lesser-Included Offense 

            Finally, appellant contends that the district court erred in not submitting fifth-degree criminal sexual conduct to the jury as a lesser-included offense.  The relevant difference between the charges of fourth-degree and fifth-degree criminal sexual conduct is the “position of authority” element.  Appellant speculates that the jury could have convicted him of fifth-degree sexual conduct but acquitted him of fourth-degree if they had found that he was not in a position of authority with respect to K.G. 

But appellant’s counsel did not request an instruction on the lesser-included offense. 

[A] defendant who does not request submission or object to the lack of submission of a lesser offense forfeits his right to raise on appeal a claim that the lesser offense should have been submitted.


State v. Morales, 324 N.W.2d 374, 376 (Minn. 1982); accord Minn. R. Crim. P. 26.03, subd. 18(3).  Appellant contends that the trial court should have sua sponte submitted the lesser-included offense. 

A trial court should submit an instruction on a lesser offense when:  (1) the offense in question is an “included” offense; and (2) a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime. 


State v. Nystrom, 596 N.W.2d 256, 261 (Minn. 1999) (citation omitted).  The trial court has the discretion to determine what, if any, lesser offense to submit to the jury.  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).  In addition, the elements that differentiate the crimes must be sufficiently disputed so that the jury may make a distinction.  Id. 

In determining what, if any, lesser degrees should be submitted, the test should be whether the evidence would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified.


State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975).  In this case, the evidence did not warrant submission of the lesser offense.

            Further, both fourth-degree and fifth-degree criminal sexual conduct require sexual or aggressive intent.  Appellant consistently denied any such intent throughout trial.  Therefore, there was no basis for submitting the fifth-degree instruction.  Either appellant was guilty of fourth-degree sexual conduct, based on K.G.’s testimony, or he was entitled to an acquittal, based on his own testimony.  See State v. Bates, 507 N.W.2d 847, 853 (Minn. App. 1993) (no basis for submitting lesser-included offense instruction where defendant denied sexual contact, an element of both offenses), review denied (Minn. Dec. 27, 1993).  The trial court properly instructed the jury.