This opinion will be unpublished and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

C2-01-225

 

In the Matter of the Welfare of:

 

G.A.K., Jr.

 

Filed August 14, 2001

Affirmed

Harten, Judge

 

Mahnomen County District Court

File No. J9-00-50042

 

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

 

Eric O. Boe, Mahnomen County Attorney, Shane D. Baker, Assistant County Attorney, 311 North Main Street, P.O. Box 439, Mahnomen, MN 56557 (for respondent)

 

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Harten, Presiding Judge, Willis, Judge, and Parker, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Following a bench trial, appellant G.A.K challenges his Extended Jurisdiction Juvenile (EJJ) delinquency adjudication on charges of first-degree criminal sexual conduct.  Appellant alleges that the evidence was insufficient to sustain the juvenile court’s finding that he committed the offense charged.  We affirm.

FACTS

On February 2, 2000, Melissa Makey drove her youngest children, T.M. and D.M., to the home of Kari Thompson, intending to leave them in Thompson’s care while she attended to personal business.  At the time, T.M. was three years old.  Thompson, her daughter, and her son, appellant G.A.K., 14, were present when Makey arrived at Thompson’s home.  Makey returned to Thompson’s home that evening to pick up her children.  The events alleged to have occurred that day are the subject of the adjudication at issue.

            At trial, Makey testified that when she returned to Thompson’s home, T.M. was crying and said that “Guy Guy did nasty things to [T.M.].”  G.A.K., known to some as Guy Guy, was present when T.M. made this statement.  Following a heated exchange, Makey left Thompson’s home with her children. 

            Makey testified that she took her children to a friend’s home that evening and noticed that T.M. was “walking kind of funny.”  T.M. said that she was experiencing pain in her vaginal area and again said words to the effect that “Guy Guy did nasty things” to her.  Makey then decided to take T.M. to a physician.  A physician examined T.M. that same evening and noticed red inflamed tissue in T.M.’s vagina with a small amount of tissue abraded away.  A second physician examined T.M. on February 4 and also observed an abraded area in her vagina.  The second physician stated that T.M.’s injuries “may be consistent with contact to the genital area,” including possible “penile or digital contact.”  Both physicians testified that T.M.’s injuries could have been the result of causes other than sexual contact. 

            On February 3, Jannette Ryker of Mahnomen County Human Services conducted a videotaped interview with T.M.  The prosecutor showed the videotape at trial and Ryker confirmed that it accurately depicted the complete interview with T.M.  The videotape depicted the following exchange between Ryker and T.M., with Ryker asking the questions:

Q:        Are there any kind of touches that you don't like?

 

A:        [Shakes head]

 

Q:        How about touches that hurt?

 

A:        Yep.

 

Q:        Yep.  Can you tell me what kind of touches hurt?

 

A:        Um.  The butt part.

 

Q:        The butt part.  Has anyone ever touched you on the butt part?

 

A:        Guy Guy.

 

* * * *

 

Q:        What happened when he touched you on the butt part?

 

A:        Um.  He put water on me.

 

Q:        He put water on you.  OK.  Do you know what he touched you on the butt part with?

 

A:        [Nods]

 

Q:        What?

 

A:        His nasty thing.

 

Q:        His nasty thing.  OK.  So he put his nasty thing on your butt part.  OK.  Did he just touch your butt part or did he put the nasty thing in your butt part.

 

A:        He did.

 

Q:        He did what?

 

A:        Put his nasty thing in my butt part.[1]

 

* * * *

 

Q:        Where were you when Guy Guy did that?

 

A:        At Kari T.’s.

 

            Thompson’s daughter testified that she had gone to school that day and had returned between 3:30 and 4:00 p.m.  She testified that when she returned home, Thompson was not present and G.A.K. said that he had been watching T.M. and D.M. since noon. 

            Finally, Makey testified that since the alleged incident, T.M. has exhibited unusual behavior; specifically, T.M. has had nightmares followed by screaming at night and has begun to touch herself “down there.”   

            The prosecutor charged 14-year-old G.A.K. with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd 1(a) (1998).  The juvenile court certified the case for EJJ handling and G.A.K. waived his right to a jury trial.  After finding that G.A.K. is more than 36 months older than T.M., the juvenile court found:

[T.M.’s] accusations against [G.A.K.] have been consistent and there is no evidence that those accusations have resulted from coaching or suggestive statements by others.  The results of the physical examination and the child’s subsequent behavior are both consistent with a sexual assault, and [G.A.K.] clearly had the opportunity to commit the offense.

 

Accordingly, the juvenile court found that G.A.K. had committed first-degree criminal sexual conduct.  This appeal followed.

D E C I S I O N

G.A.K. claims that the evidence adduced at trial was insufficient to sustain the district court’s findings because the state failed to prove that penetration or sexual contact occurred.  In support of this contention, G.A.K. points out that T.M. did not specifically state whether the two were clothed during the alleged incident.  Further, G.A.K. claims that T.M.’s statements were unclear insofar as T.M. did not explain with precise clarity what occurred, instead using terminology such as “nasty thing.” 

In reviewing a sufficiency-of-the-evidence claim, a reviewing court views the evidence in a light most favorable to the verdict and assumes that the factfinder disbelieved any testimony conflicting with the result reached.  State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999).  The appellate court reviews the “evidence and its legitimate inferences.”  State v. Grube, 531 N.W.2d 484, 491 (Minn. 1995).

The verdict will be upheld if the fact finder, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty of the offense charged.

 

Thomas, 590 N.W.2dat 757-58 (footnote omitted).  A reviewing court applies the same standard of review to cases heard by a court without a jury as is applied to those heard by a jury.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1978).

Here, G.A.K. was accused of violating Minn. Stat. § 609.342, subd. 1(a) (1998), which proscribes “sexual contact with a person under 13 years of age” where, for instance, the victim is under 13 years of age and the actor is more than 36 months older than the victim.  The term “sexual contact with a person under 13” is defined as

the intentional touching of the complainant’s bare genitals or anal opening by the actor’s bare genitals or anal opening with sexual or aggressive intent or the touching by the complainant’s bare genitals or anal opening of the actor’s or another’s bare genitals or anal opening with sexual or aggressive intent. 

 

Minn. Stat. § 609.341, subd. 11(c) (1998).

            In support of these charges, the prosecutor offered the testimony of several witnesses.  Thompson’s daughter testified that G.A.K. was alone with Makey’s children during the afternoon of February 2.  T.M. stated in an interview that G.A.K. touched her “butt part” with his “nasty thing” and that the touch hurt.  She told her mother that G.A.K. did “nasty things” to T.M.  Two physicians testified that T.M. had an abrasion on her genitals which could have been caused by sexual contact.

            Strictly speaking, as appellant observes, the above-referenced evidence does not explicitly demonstrate that G.A.K.’s bare genitals made contact with T.M.’s bare genitals.  Our review, however, encompasses not only the evidence adduced at trial, but also the legitimate inferences derived therefrom.  Grube, 531 N.W.2d at 491.  Furthermore, the weight and credibility of witnesses’ testimony are the province of the factfinder.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  Accordingly, the district court was permitted to credit T.M.’s age-appropriate language describing G.A.K.’s “nasty thing” and how he put it in her “butt part.”  Cf. State v. Lonergan, 505 N.W.2d 349, 354 (Minn. App. 1993) (non-leading interview questions, child victim’s use of age-appropriate language, and child victim’s good memory of events provided guarantees of trustworthiness such that videotaped testimony by child victim was admissible in sexual assault case), review denied (Minn. Oct. 19, 1993).  The juvenile court was permitted to draw the inference from T.M.’s statements that T.M. was referring to G.A.K.’s bare genitals touching T.M.’s bare genitals.  This inference is bolstered to some degree by the testimony of two physicians who indicated that abrasions on T.M.’s vagina may have been caused by sexual contact.  In sum, viewing the evidence in the light most favorable to the adjudication, we conclude that the evidence was sufficient to support the inference that G.A.K.’s bare genitals touched those of T.M. and that G.A.K. committed first-degree criminal sexual conduct.[2] 

            Affirmed.



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

[1] We have transcribed T.M.’s statements from the videotape.  The parties dispute whether T.M. used the preposition “in” or “on” in describing what G.A.K. did with his “nasty thing.”  The juvenile court found that T.M. said “in,” and we defer to that finding.

[2] We note in passing that the juvenile delinquency petition alleged that G.A.K. engaged in “sexual penetration” with T.M., rather than contact of G.A.K.’s bare genitals with those of T.M.  However, the prosecutor need not prove with precise conformity every allegation contained in the juvenile petition; the state meets its burden so long as it proves the substance of the crime charged.  In re Hitzemann, 281 Minn. 275, 280, 161 N.W.2d 542, 545 (1968).  Here, the substantive criminal statute requires only that the state prove that G.A.K.’s bare genitals made contact with those of T.M.  Because the state proved that beyond a reasonable doubt, we need not examine whether the state proved “sexual penetration” as alleged in the juvenile petition.  Neither party raised any issue based on the wording of the juvenile petition.