This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Kenwaniee Shimon Tate,



Filed June 5, 2001


Shumaker, Judge


Anoka County District Court

File No. K2991420




Mike Hatch, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Robert M. A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge. 



U N P U B L I S H E D  O P I N I O N




            Appellant contends that the evidence at his trial was inconsistent and insufficient to support his convictions for criminal sexual conduct.  We affirm.



A jury found 22-year-old appellant Kenwaniee Shimon Tate guilty of criminal sexual conduct in violation of Minn. Stat. §§ 609.344, subd. 1(b), and 609.345, subd. 1(b) (1998), for having sexual intercourse with T.W., age 13.

At the trial, T.W. related how she and her brother, J.D., had sneaked out of their mother’s home to visit T.W.’s friend, D.L., Tate, and others at an apartment.  She explained that she and J.D. drank alcohol and, at one point, a woman, whom T.W. believed to be Tate’s sister, came into the apartment.  Tate told T.W. and J.D. to hide in the bathroom because the woman did not like white people.  T.W. testified that later Tate led her into a bedroom where they had intercourse that caused her some pain and bleeding.  In his testimony, Tate admitted seeing T.W. and others at the apartment but he denied going into a bedroom with her or ever having sex with her.

A detective who interviewed T.W. testified that T.W. did not mention the alcohol, hiding in the bathroom, or pain and bleeding from the intercourse.  D.L., J.D., and Tate’s girlfriend, Latonya Hickbottom, all testified to different versions of what T.W. told them or failed to tell them about having sex with Tate.

Tate appeals from judgments of conviction of third-degree and fourth-degree criminal sexual conduct.


Tate contends that the evidence equally supports the alternative possibilities that he did and that he did not have sexual intercourse with T.W.  Because of this balance, he argues, the evidence is insufficient to establish the elements of criminal sexual conduct beyond a reasonable doubt.

When the sufficiency of the evidence for a conviction is challenged, we make a  thorough review of the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict.


State v. Larson, 605 N.W.2d 706, 710 (Minn. 2000).  When credibility is at issue, as it is here, “we must recognize that the jury is in the best position to evaluate witness credibility.”  State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000) (quotation omitted).  We assume that the jury disbelieved any testimony conflicting with its verdict.  State v. Thames, 599 N.W.2d 122, 126-27 (Minn. 1999).  We will uphold the verdict if, giving due regard to the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, the jury reasonably could have found the appellant guilty.  Id. at 127 (citation omitted).

The trial court sentenced Tate on the conviction of third-degree criminal sexual conduct.[1]  To support a conviction of that crime, the state must establish beyond a reasonable doubt that the accused engaged in sexual penetration with a person at least 13 years old, but less than 16 years of age, and that the accused was more than 24 months older than that person.  Minn. Stat. § 609.344, subd. 1(b) (1998).  Tate does not dispute that the state met its burden regarding the elements relating to age, but does dispute the jury’s conclusion that he had intercourse with T.W.

Witnesses in the state’s case were not entirely consistent with each other in their testimony.  But inconsistencies in the prosecution’s evidence do not require reversal of a conviction if the testimony, taken as a whole, is consistent and credible.  State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (citing State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980)).  See also State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), (stating that “[i]nconsistencies in testimony and conflicts in evidence do not automatically render the testimony and evidence false and are not bases for reversal.”), review denied (Minn. Feb. 24, 2000).

T.W.’s testimony as to her sexual contact with Tate was consistent.  Inconsistencies involved collateral details about what T.W. allegedly told others regarding the incident and omission of certain collateral details.  The jury reasonably could have concluded that collateral inconsistencies and omissions did not impair T.W.’s credibility as to the dispositive elements.  Furthermore, “[i]t is a well-established rule that a conviction can rest upon the testimony of a single credible witness.”  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).

The jury also heard impeachment evidence that Tate had a prior conviction for giving false information to the police, thus calling into question Tate’s veracity in denying that he had intercourse with T.W.  Additionally, the jury heard of Tate’s girlfriend’s suspicions that Tate had sex with T.W. and learned of the girlfriend’s confrontation with Tate over those suspicions.  Tate did not deny the confrontation.

Like almost every trial, there were two sides to the story.  Although there was evidence to support both versions of the facts, that evidence was not equally balanced, as Tate suggests.  Rather, the jury determined that the state’s evidence was more credible than Tate’s.  It was the jury’s proper function to resolve the conflicts in the evidence.  Bakken, 604 N.W.2d at 111.  It is only where a jury’s resolution is unsupported by credible evidence as to the elements of a crime that reversal is warranted.  That is not the case here.



[1] Tate has included in his appeal his conviction of fourth-degree criminal sexual conduct but has not separately addressed that conviction.