This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-2079

 

 

In the Matter of the Welfare of:  A.D.S.

 

Filed August 7, 2001

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. J00055575

 

 

Kathryn R. Burke Browne, Albert T. Goins, Sr., Ward, Goins & Wood P.A., 1919 University Avenue West, Suite 116, St. Paul, MN 55104; and

 

Manly A. Zimmerman, Zimmerman & Bix, Ltd., 4535 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant A.D.S.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

 

            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

            Appellant A.D.S. was charged with criminal sexual conduct in the second degree.  A.D.S. contends the evidence was insufficient to prove the charge beyond a reasonable doubt.   We affirm.

FACTS

            On October 23, 1999, 13-year-old A.D.S. visited family friends in Minneapolis with his father and brother.  A.D.S. played in the yard with five-year-old T.L.J. and her seven-year-old brother W.J.   A.D.S.'s father was on the front porch talking to T.L.J.'s and W.J.'s mother.  A.D.S.'s brother stayed by their father's truck while the younger children played together.  T.L.J. testified that she, W.J., and A.D.S. were sitting by the side of her house when A.D.S. unbuttoned and unzipped her pants and "digged in [her] underwears."  T.L.J. testified that A.D.S. touched her on her "private," where she goes to the bathroom.  W.J. claimed that A.D.S. offered to pay him twenty cents not to tell what happened.  After A.D.S. left, W.J. reported the incident to his mother.  T.L.J. then told her mother what happened. 

T.L.J.'s and W.J.'s mother was on the enclosed front porch with A.D.S.'s father and could see the children playing except when they were on the grass on the side of the house.  A.D.S.'s father could see the children running around, but never saw them sitting on the grass.  A.D.S.'s brother went to the side of the house when it was time to leave and saw A.D.S., T.L.J., and W.J. standing up.  A next-door neighbor testified that she could see the children out her front window but admitted she was also paying attention to her own children and she may have left the front room to use the bathroom.  Another person in the house next door testified that he saw the children running around but did not see anything inappropriate.  A.D.S. denies that he was sitting on the grass and denies that he pulled T.L.J.'s pants down or touched her.

            The court found the younger witnesses' testimony credible, stating:

Both [T.L.J.] and [W.J.] were clear on the events they experienced, their testimony was consistent but not identical.  They spoke in language appropriate for their ages.  They were frank and sincere and seemed to understand the importance and significance of being in a courtroom and expected to tell the truth.  [T.L.J.'s] demeanor was consistent with fear, sadness, embarrassment, and shame.   [W.J.'s] demeanor was one of confidence as to what he saw happen and the facts as he related them contained his beliefs consistent with his observations.  Neither child indicated any motive to lie nor did either of them indicate any knowledge of why [A.D.S., his father, and brother] had stopped by.  Overall, their testimony was compellingly credible.

 

The district court concluded that the state proved beyond a reasonable doubt that A.D.S. engaged in criminal sexual contact with T.L.J.

D E C I S I O N

            On appeal from a determination that the elements of a delinquency petition have been proved beyond a reasonable doubt, "an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination."  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  We are required to view the record in the light most favorable to the determination.  Id.  Our analysis must assume that the factfinder believed the state's witnesses and rejected contradictory evidence.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997). 

            A.D.S. claims that the evidence was insufficient to prove his guilt beyond a reasonable doubt because the state failed to prove each element of the offense and the adjudication was based on inconsistent testimony of very young witnesses. 

In a proceeding adjudicating the delinquency of a juvenile, the state must prove the charge beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075 (1970).  A.L.J. was charged with criminal sexual conduct in the second degree, which requires the state to prove that the actor engaged in sexual contact with a complainant under 13 years of age where the actor is more than 36 months older than the complainant.  Minn. Stat. § 609.343, subd. 1(a) (1998).   Sexual contact includes "the intentional touching by the actor of the complainant's intimate parts," which must be committed with "sexual or aggressive intent."  Minn. Stat. § 609.341, subd. 11(a)(i) (1998). 

A.D.S. claims the state failed to prove that the alleged contact with T.L.J. was committed with sexual or aggressive intent.  See State v. Tibbetts, 281 N.W.2d 499, 501 (Minn. 1979).  T.L.J. testified that A.D.S. "digged in [her] underwears" and touched her "private," where she goes to the bathroom, on her skin.  T.L.J. testified that it was not okay that A.D.S. touched her "private."  W.J. testified that T.L.J. was "looking nervous," that A.D.S. was "mean," and that he was "bugging" T.L.J.  This court has found it difficult to believe that an actor's repeated touching of a complainant's intimate parts could be anything but sexually or aggressively motivated.  In re Welfare of C.S.K., 438 N.W.2d 375, 377 (Minn. App. 1988).  The district court found the testimony of T.L.J. and W.J. credible because it was appropriate for their ages and T.L.J.'s reactions to the incident showed fear, sadness, embarrassment, and shame, which the court found to be indicators of truth and veracity.  Viewing the evidence in the light most favorable to the state, we find the court could reasonably conclude that A.D.S.'s actions were committed with sexual or aggressive intent.

            A.D.S. claims the district court erred in accepting as credible evidence the testimony of T.L.J. and W.J. because there were some contradictions in their testimony and also contradictory testimony from other witnesses.  Specifically, A.D.S. claims that T.L.J. and W.J. testified inconsistently as to whether A.D.S. unzipped or unbuttoned T.L.J.'s jeans, whether T.L.J. was sitting on A.D.S.'s lap or sitting next to him, and whether T.L.J.'s pants were pulled down or A.D.S. put his hand into her pants before they were unzipped.  We have found that "ínconsistencies are a sign of human fallibility and do not prove testimony is false, especially when the testimony is about a traumatic event."  State v. Mosby, 450 N.W.2d 629, 634 (Minn. App. 1990) (citation omitted), review denied (Minn. Mar. 16, 1990).

Here, the court's commendably detailed findings noted that the children's testimony was consistent but not identical and that the testimony overall was "compellingly credible."  "[M]inor inconsistencies between a victim's testimony and her previous statements are not ground for reversal."  State v. Garden, 404 N.W.2d 912, 916 (Minn. App. 1987) (citation omitted), review denied (Minn. June 25, 1987).  A.D.S. also claims there were inconsistencies between the testimony of the children and the adults, since none of the adults saw any inappropriate behavior.  The trier of fact, and not the reviewing court, must determine the weight and credibility of the witnesses' testimony.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

The district court found that the incident lasted only a matter of seconds, that the testimony of the adult witnesses failed to establish that A.D.S. and T.L.J. were ever in any adult's continuous view, and that the location of the incident as described by the children could not be seen out the neighbor's front window or from the front porch where T.L.J.'s and W.J.'s mother and A.D.S.'s father were sitting.  The record supports the district court's conclusion that the state proved the charge of second-degree criminal sexual conduct beyond a reasonable doubt. 

            Affirmed.



            * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.