This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
MacArthur Willard Hardin,
Goodhue County District Court
File No. K6011013
John Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Craig R. Anderson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Stephen Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066 (for respondent)
Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.
Appellant MacArthur Hardin appeals from a conviction for second- and fifth-degree criminal sexual conduct, arguing that the evidence was insufficient because the victim’s testimony was not credible. We affirm.
MacArthur Hardin, A.J., and A.J.’s seven-year-old son, A.J.R., were tenants in Doris Fuller’s home in Red Wing. Hardin, who was 38 years old at the time of the offense, and A.J. had a romantic relationship, and they shared a room in Fuller’s basement. A.J.R. occupied a second room in the basement. Eventually, Hardin and A.J. ended their relationship, and A.J. moved into A.J.R.’s room.
A.J. worked from 10:00 p.m. to 6:00 a.m. Typically, when A.J. left for work, A.J.R. was asleep in their room. While A.J. worked, Fuller “[kept] an eye on [A.J.R.].” On several occasions, A.J. came home from work and found A.J.R. sleeping in Hardin’s room.
On November 15, 2000, A.J.R.’s aunt reported to Goodhue County Social Services (GCSS) that A.J.R. was being sexually abused. She advised that A.J.R. disclosed to two of his uncles that his mother’s boyfriend had touched his penis and solicited oral sex from him. Kathryn Bystrom, a social worker with GCSS, and Detective Craig Lunde of the Red Wing Police Department interviewed A.J.R. the following day regarding the report. In the videotaped interview, A.J.R. identified Hardin as the reported abuser, stating that Hardin was “feeling on” him and was “feeling” his “private” and “pushing it around.” He also reported that Hardin “would play with [A.J.R.’s] private part while [A.J.R.] was sleeping.” A.J.R. told Bystrom and Lunde that Hardin touched his “private” using a screwdriver with a purple handle. A.J.R. indicated that Hardin had touched his penis on more than one occasion.
Shortly thereafter, Bystrom and Lunde visited the home where A.J.R. and A.J. lived. Although Hardin no longer lived in the house at the time of the visit, Bystrom and Lunde found the purple-handled tool in the room Hardin had occupied. Lunde determined that the tool was a toy nut driver. Bystrom and Lunde interviewed A.J.R. a second time on November 22, 2000.
Hardin was charged in Goodhue County District Court with second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2000), and fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(1) (2000). After waiving his jury trial rights, Hardin proceeded with a bench trial.
At trial, A.J.R. testified that Hardin carried A.J.R. into Hardin’s room and “would play with [A.J.R.’s] private part while [A.J.R.] was sleeping.” According to A.J.R., Hardin touched his “private” with “the little tool,” which was admitted into evidence. Using an anatomically accurate doll of a boy, A.J.R. demonstrated the abuse. A.J.R. testified that, when the abuse occurred, he tried to leave the room, but Hardin “wouldn’t let [him] up.” He stated, “I just tried to still get up, and [he] pushed me back down.” A.J.R described Hardin’s facial expression during the sexual contact as “mean looking.” A.J.R. testified that he feared Hardin, because he had observed Hardin hit his mother during a fight.
The state also introduced the videotape of A.J.R.’s interview with Bystrom and Lunde. A.J.R.’s statements regarding events other than the method of abuse were, at times, inconsistent with his trial testimony. During the interview, for example, A.J.R. stated that Hardin had used duct tape to cover A.J.R.’s mouth. A.J.R reported that when the abuse occurred, he would get up, tell Hardin to stop, go back to his room, and lock the door. Referring to the alleged sexual abuse, A.J.R. stated that Fuller, the owner of the home who lived upstairs, “had a dream about it,” and she “woke up because she heard all the racket.” A.J.R. also stated during the interview that he went into Hardin’s room to watch television because he and his mother did not have cable.
After her relationship with Hardin ended, A.J. was romantically involved with Dwight Taylor, a longtime friend. At trial, Taylor testified that, during a visit to the home in Red Wing, A.J.R. told him that Hardin had touched his penis and “behind.”
A.J. also testified and admitted during cross-examination that she had previously been involved with GCSS after reports of alleged child abuse were made. A.J. suggested that her children had put themselves “in the system” previously by falsely accusing A.J. of abuse in an attempt to “get back at [her].”
Hardin was convicted of second- and fifth-degree criminal sexual conduct. This appeal followed.
Our review of a claim of insufficient evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). When the sufficiency of the evidence is raised on appeal, a reviewing court’s standard of review is the same for bench trials as it is for jury trials. State v. Hough,585 N.W.2d 393, 396 (Minn. 1998). A reviewing court will uphold the verdict if the fact-finder, giving due regard to the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, could have reasonably found the defendant guilty of the charged offense. State v. Thomas,590 N.W.2d 755, 757-58 (Minn. 1999).
“We defer to the fact-finder on determinations of credibility.” State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002) (citing Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995)). The credibility of a witness and the weight given to the witness’s testimony are issues for a fact-finder to decide. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990); see also Hough,585 N.W.2d at 396 (during bench trial, fact-finder evaluates credibility). Further, “as the sole judge of credibility, [the fact-finder] is free to accept part and reject part of a witness’ testimony.” State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (citing Kmetz v. Johnson, 261 Minn. 395, 399, 113 N.W.2d 96, 99 (1962)).
A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact when “the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.” Minn. Stat. § 609.343, subd. 1(a) (2000). “A person is guilty of criminal sexual conduct in the fifth degree * * * if the person engages in nonconsensual sexual contact[.]” Minn. Stat. § 609.3451, subd. 1(1) (2000). “Sexual contact” includes “the intentional touching by the actor of the complainant’s intimate parts” with “sexual or aggressive intent.” Minn. Stat. § 609.341, subd. 11 (2000).
Challenging the credibility of A.J.R.’s testimony, Hardin argues that the evidence is not sufficient to support his convictions. He asserts that A.J.R. may have fabricated his claims that Hardin sexually abused him. In support of his argument, Hardin points to (1) several inconsistencies between A.J.R.’s testimony and his prior statements and (2) a possible motive for A.J.R. to fabricate the abuse claim. Hardin notes, for example, that, although A.J.R. told people that Hardin had touched his “behind” and asked A.J.R. to perform oral sex on Hardin, A.J.R. later abandoned these claims. Hardin also points to A.J.R.’s recantation at trial of his earlier claim that Hardin taped his mouth shut. Hardin also argues that A.J.R. gave conflicting accounts of how he ended up in Hardin’s bedroom and whether he could leave. Hardin further challenges the sufficiency of the evidence, claiming that reasonable doubt of his guilt exists, because A.J.R. could have fabricated the abuse claim either to get his mother out of an abusive relationship with Hardin or to facilitate his removal from his mother’s home, presumably by GCSS.
All of Hardin’s arguments are challenges to the district court’s determination of witness credibility. Rather than substitute our judgment regarding credibility, we defer to the fact-finder for such determinations. Watkins, 650 N.W.2d at 741 (citing Dale, 535 N.W.2d at 623). But even if we consider the inconsistencies, we conclude that they do not render the evidence supporting Hardin’s conviction insufficient. “Inconsistencies in testimony and conflicts in evidence do not automatically render the testimony and evidence false and are not bases for reversal.” State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000) (citation omitted), review denied (Minn. Feb. 24, 2000).
Taylor testified that A.J.R. told him that Hardin had touched A.J.R.’s penis and behind, and Bystrom testified that the initial report from A.J.R.’s aunt included allegations that Hardin requested oral sex from A.J.R. Although A.J.R. later testified that Hardin did not touch his behind, and the state did not allege that Hardin requested oral sex, the record contains ample evidence that Hardin touched A.J.R.’s penis. That A.J.R. mentioned Hardin taping his mouth in the videotaped interview but denied the taping at trial also has no impact on the evidence of Hardin’s charged conduct. Likewise, the different explanations of how A.J.R. got into Hardin’s room—either that A.J.R. went to Hardin’s room to watch television or that Hardin carried him—do not alter A.J.R.’s consistent and unrebutted testimony about Hardin’s sexual conduct once A.J.R. was in the room. Further, although A.J.R.’s accounts of whether he was able to leave Hardin’s room are different, each of the events may have occurred on a different occasion. Both accounts aptly demonstrate that A.J.R. did not consent to the touching.
Hardin’s credibility arguments regarding A.J.R.’s motives to fabricate also were considered and rejected by the fact-finder. We note that, aside from the assertion itself, the only other evidence of A.J.R.’s motive to fabricate the allegations was A.J.’s testimony about her involvement with GCSS. Although A.J. testified that her children falsely reported abuse to GCSS in the past, no such assertion was made as to A.J.R.
The quantity and weight of evidence establishing the charged conduct is substantial, unrebutted, and sufficient to uphold Hardin’s conviction. At trial, seven-year-old A.J.R. testified that Hardin, then 38, was “feeling” A.J.R.’s “private” and “pushing it around.” Hardin “would play with [A.J.R.’s] private part while [A.J.R.] was sleeping,” and touched A.J.R.’s “private” with the toy nut driver. A.J.R. demonstrated the abuse, which occurred more than once, for the district court.
Likewise, the record contains ample evidence of Hardin’s sexual or aggressive intent, including the nature of the contact and Hardin’s “mean looking” facial expression that accompanied the conduct. A.J.R. also testified that he attempted to leave Hardin’s room but was pushed down, which supports the conclusion that the sexual contact was nonconsensual. Other testimony, including that of Bystrom and Lunde, substantiated A.J.R.’s testimony. Because the evidence is sufficient to support Hardin’s conviction for second- and fifth-degree criminal sexual conduct, we affirm.