This opinion will be unpublished and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

C6-01-1376

 

In the Matter of the Welfare of:

 

B.G.H.

 

Filed April 16, 2002

Affirmed

Harten, Judge

 

Anoka County District Court

File No. J0-00-51255

 

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

 

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

 

Robert M. Johnson, Anoka County Attorney, 325 East Main Street, Anoka, MN 55303; and

 

Gaylord A. Saetre, Todd County Attorney, Jane M. Gustafson, Assistant County Attorney, Todd County Courthouse, 212 Second Avenue South, Long Prairie, MN 56347 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges his delinquency adjudications on two counts of second-degree criminal sexual conduct.  He argues that there was insufficient evidence to support the adjudications because the victim’s trial testimony contradicted her earlier allegations, which themselves were contradicted by physical evidence.  Because we conclude that there was sufficient evidence to support the adjudications, we affirm. 

F A C T S

 

Appellant B.G.H. is the maternal uncle of S.H.  In early February 2000, appellant, then 15 years old, was staying with S.H., then 4 years old, and her mother, A.H. On 3 February, A.H. was out of town and left S.H. in appellant’s care for the day.  She also arranged for her ex-husband, Daniel Brown, to spend the night with appellant and S.H.[1]  Brown arrived around 6 p.m. after appellant had been alone with S.H. for six to seven hours.  Brown testified that S.H. stayed in her room rather than coming out to meet him, which was unusual. 

A few days later, after appellant left, S.H. told her mother that she did not want to see appellant again.  On 15 February, when S.H. saw a boy and girl kissing on television, she said to her mother, “[B]oys are gross.”  She also told her mother that appellant had “licked my butt.”  A.H. asked where this happened and S.H. responded, “[B]ack on your bed.”  A.H. had S.H. demonstrate the event using one of her dolls.  S.H. spread the doll’s legs and licked its crotch.  A.H. then recalled that she had observed S.H. a couple days earlier playing with a thermometer near her crotch. 

            Long Prairie Police Chief Steven Neet conducted a video taped interview of S.H.  S.H. told Neet that the incident took place in her mother’s bedroom when appellant was babysitting her.  She said that appellant licked her “back butt” with his tongue and that he touched her private parts over her clothes.  S.H. also reported that she saw appellant’s hard “pee-pee,” that he touched her “front butt” with his “pee-pee,” that he made her touch his “pee-pee” and that something “like milk” came out of his “pee-pee” on his stomach.  S.H. said appellant cleaned himself with a purple handkerchief. 

            A.H. found S.H.’s purple dress under her bed and gave it to the police.   Testing by Bureau of Criminal Apprehension (Bureau) found three spots of semen.  One spot had an insufficient amount for DNA testing.  The other two spots revealed a mixture of semen from two persons.  DNA testing showed that neither appellant nor Dan Brown could be ruled out as the source of the semen mixture, but that 99.996 % of the population could. 

            Brown denied any sexual contact with S.H. or appellant.  He testified that his semen might have gotten on the dress after he masturbated in the shower and threw the towel in the dirty clothes hamper.  Brown testified that S.H. liked the dress and sometimes pulled it out of the dirty clothes hamper.  A Bureau scientist testified that it is possible, but unlikely, that semen could be transferred from one item to another. 

            A delinquency petition was filed in juvenile court alleging that appellant committed two counts of second-degree criminal sexual conduct by engaging in sexual contact with a person under 13 years of age and engaging in sexual contact with a person under 16 years of age when the offender has a significant relationship to the victim.  See Minn. Stat. § 609.342, subd. 1(a), (g) (2000).[2]  

An adjudicatory hearing (trial) was held on 12 April 2001.  Before the trial, the juvenile court found S.H. competent to testify.  At the trial, S.H. answered preliminary questions about being alone with appellant in her mother’s bedroom.  But she testified she could not remember appellant touching her and denied touching or seeing his penis.  The juvenile court then received into evidence without objection the videotape, transcript of the earlier interview and the DNA testing results.   

The juvenile court found that the prosecution had proved the two second-degree criminal sexual conduct charges beyond a reasonable doubt.  This appeal followed.

D E C I S I O N

 

            The Fourteenth Amendment to the constitution mandates that, in a delinquency adjudication, the state prove every element of the charged offense beyond a reasonable doubt.  See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970).  On appeal from a finding that each of the elements in a delinquency petition has been proven 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) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).  Courts review the evidence in the light most favorable to the determination.  Id

            The juvenile court found that S.H.’s earlier interview was more credible than her trial testimony and relied heavily on the police interview in its decision.  Appellant does not contest the admissibility of the videotape, but argues the interview was unreliable evidence because it was contradicted by S.H.’s trial testimony.

The factfinder is given great deference in determining witness credibility.  See State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999). In relying on the earlier interview, the juvenile court noted that S.H. had no motive to lie and used age appropriate language.  Courts have recognized these factors as indicia of reliability.  See In re Welfare of L.E.P., 594 N.W.2d 163, 170 (Minn. 1999).  Additionally, the trial occurred over a year after the incident while the interview took place within two weeks of it.   S.H. was only five years old at the time of trial and may have forgotten some details of the incident.  Moreover, this court has recognized that recanting is “a frequent characteristic of child abuse victims.”  State v. Cain, 427 N.W.2d 5, 8 (Minn. App. 1988).   

            In a sexual abuse case, a conviction can rest upon the testimony of a single witness.  See Minn. Stat. § 609.347, subd. 1 (2000).  However, absence of corroborating evidence may “require a holding that the evidence at trial was insufficient to sustain the conviction.”  Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995) (quotation omitted).  The juvenile court found that S.H.’s videotaped statements were corroborated by testimony that appellant had been alone with S.H. during the time of the incident.  Opportunity to commit an offense has been recognized as a factor in determining sufficient evidence to support a conviction.  See State v. Burns, 524 N.W.2d 516, 521 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995).  The juvenile court further noted S.H.’s behavior after the incident.  She reported her allegations in a “natural and un-coaxed sequence of events,” told her mother she no longer wanted to see appellant, and was found playing with a thermometer in a “sexually suggestive manner” soon after she had been alone with appellant.

In addition to her behavior, physical evidence corroborates S.H.’s allegations.  She stated that appellant wiped up his semen with a purple handkerchief or cloth.  DNA evidence offered at trial showed that appellant could not be ruled out as the source of semen on S.H.’s purple dress even though 99.996 % of the population could.    Appellant contends that the semen found on S.H.’s dress does not corroborate her allegations because Brown’s semen was also found on the dress.  As the juvenile court noted, however, there were no allegations of sexual conduct by Brown and nothing other than S.H.’s explanation of why appellant’s semen was on S.H.’s dress.  See State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), (Inconsistencies 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).

            Given the juvenile court’s belief of S.H.’s pretrial interview answers, the DNA evidence on S.H.’s dress, and other corroborating evidence, we conclude that the juvenile court could reasonably find that the state had proved beyond a reasonable doubt the charges against appellant.

            Affirmed.



[1]  Brown is not S.H.’s biological father.

[2] The petition also alleged two counts of first-degree criminal sexual conduct for engaging in sexual penetration of a person under 13 years of age and engaging in sexual penetration of a person under 16 years of age when the offender has a significant relationship to the victim.  See Minn. Stat. § 609.342, subd. 1 (a), (g) (2000).  The juvenile court found that the state had not proved these charges beyond a reasonable doubt.