This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Gary Raymond Tomberlin,




Filed February 5, 2002


Halbrooks, Judge



Anoka County District Court

File No. K3002616



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


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


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his convictions of second-degree criminal sexual conduct, arguing that the evidence to sustain the convictions is insufficient as a matter of law.  Because we find that the evidence supports his convictions, we affirm.


            Appellant Gary Tomberlin married Marie Tomberlin on July 15, 1997.  A day or two before their wedding, appellant met his wife’s 12-year-old niece, A.J.  Because A.J. had difficulty getting along with her mother, she moved in with Marie and appellant, a few miles from her mother in California.  A.J. regarded her aunt as a second mother.

            Both appellant and Marie worked as truck drivers, and they let A.J. travel with them periodically.  In the summer of 1999, appellant and A.J. embarked on a summer-long trucking trip.  Marie did not go because she had had back surgery and could no longer drive a truck.  While on the road, A.J. and appellant slept in bunk beds in the truck’s cab.  But on one occasion, while the truck was being repaired, they stayed in a hotel room.

            According to A.J., while staying at the hotel, she got “buzzed” from some liquor provided to her by appellant.  He then talked her into having sex with him.  After that encounter, A.J. stated that appellant made her feel as if she “owed” him and they engaged in sexual intercourse almost daily while on the trip.  A.J. testified that she once told appellant to stop.  Although he responded that he did not want her to feel pressured, appellant then made A.J. feel guilty if she avoided or refused sexual contact with him.  A.J. stated that she believed that she could not leave appellant while on the road because she had no means to do so and did not know how she would explain it to her family.

            At some point in the trip, appellant dropped A.J. off with two of his wife’s friends in Arizona.  Although A.J. returned to California in the fall of 1999, she said nothing about appellant sexually abusing her because she feared that it would hurt Marie too much.  Around Thanksgiving, appellant and Marie decided to move to Minnesota in order to care for his mother and asked A.J. if she wanted to go with them.  A.J. agreed to the move because she felt that it was a better option for her than moving back in with her mother.

            While in Minnesota, the three of them first lived with appellant’s mother.  Following appellant’s mother’s death, they moved into a mobile home in January 2000.  It was then that the sexual abuse resumed.

Rather than driving longer trips, appellant began working days and was home more often at night.  A.J. testified that appellant would sometimes stay up late at night watching television and having a few drinks.  After Marie went to bed, appellant would come into A.J.’s room and sexually fondle her.  Her efforts to pretend to be asleep and roll away from him were unsuccessful.  When asked at trial whether appellant digitally penetrated her vagina, A.J. denied it six times.  But when reminded of a statement she gave to a police investigator, A.J. testified that appellant did penetrate her with his fingers and that her previous denials were “[b]ecause I didn’t want to say it.” 

A.J. told no one about the abuse until she got into an argument with Marie over a lie she told about where she had spent the night.  After talking to A.J., Marie called A.J.’s mother who contacted the authorities.  A.J.’s mother testified at trial that Marie told her that appellant had admitted abusing A.J. while they were on the road together in the summer of 1999.  Marie denied making any such statement.

The police took statements from A.J. and Marie and arrested appellant.  The state charged appellant with two counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(b), (h)(iii) (2000), and two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(b), (h)(iii) (2000).

The case was tried to a jury.  During trial, A.J.’s mother testified that, when A.J. was five years old, A.J. falsely told a teacher that her stepfather, whom her mother had recently married, had abused her.  A.J. testified that she had no recollection of the accusation, but agreed that that allegation was false and speculated that she said it because “I was angry or something.”

Two of A.J.’s friends testified that they had heard appellant make comments about A.J.’s chest and buttocks from time to time.  In addition, one friend testified that appellant admitted to giving A.J. hickeys.

At the close of its case, the state introduced Spreigl evidence of appellant’s 1984 conviction for criminal sexual conduct involving his stepdaughter.  The stepdaughter, then 24, testified that from the time she was 3 until she was 7 or 8, appellant came into her bedroom at night and touched her vagina and made her touch his penis.  The abuse stopped when she reported it to a teacher and the police became involved.

Appellant denied having any sexual contact with A.J.  Both he and Marie testified that A.J. must have made it all up for “retaliation for sanctions or punishment for rules that have been placed on her over the last year.”  Appellant stated that, if he ever remarked about her body, it was only to counter her self-deprecating comments and that A.J.’s statements about alcohol-induced sexual contact with him were false because he would never drink and operate his truck.  As impeachment, the state offered evidence of appellant’s 1990 DWI conviction for operating his truck with an alcohol concentration more than twice the legal limit. 

The jury convicted appellant of both counts of second-degree criminal sexual conduct, but acquitted him of the first-degree charges.  This appeal follows.


            When reviewing a challenge to the sufficiency of the evidence, this court examines the record to see if the jury, in accordance with principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably found the defendant guilty as charged.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1998).  Consistent with this deferential review, credibility issues are left to the jury and we assume that the jury “believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998) (footnote omitted).

            Appellant argues that A.J.’s testimony is an insufficient basis for his conviction because she had a strong motive to fabricate, had previously falsely accused her stepfather of sexual abuse, and had acted in a manner inconsistent with a victim of sexual abuse.  While appellant poses his challenge as one to the sufficiency of the evidence, his argument is essentially an attack on A.J.’s credibility.  He does not dispute that the evidence, if true, meets the standard for conviction.  Rather, he contends that the evidence against him should be disregarded because he believes that there is a basis to conclude that A.J. lied.

Credibility determinations are solely the responsibility of the fact-finder.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  We assume, as we must, that the jury believed A.J.’s testimony and disbelieved the evidence to the contrary.  Here, there is certainly sufficient evidence that appellant had a significant relationship with A.J., was in a position of authority with respect to her, and engaged in multiple acts of illegal sexual contact with her to sustain the jury’s verdict.