This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In the Matter of the Welfare of: A.K.W., Child.


Filed June 17, 2003


Minge, Judge


St. Louis County District Court

File No. J301650898


John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant A.K.W.)


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


Alan L. Mitchell, St. Louis County Attorney, Angela K. Shambour, Assistant County Attorney, 403 Government Service Center, 320 West Second Street, Duluth, MN 55802 (for respondent)


            Considered and decided by Hudson, Presiding Judge, Minge, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

MINGE, Judge

Appellant was adjudicated delinquent for attempted second-degree criminal sexual conduct.  Based on appellant’s history of sexual misconduct and the evidence in this case, the district court properly concluded that appellant did not abandon his actions in good faith and that his conduct constituted an attempt to commit the crime charged.  We affirm.



            The victim, a ten-year-old girl, was attending a sleepover at the home of a girlfriend.  In the middle of the night, the victim went into the bathroom.  When she opened the door to leave, she found her host’s 16-year-old brother, A.K.W., standing in the doorway.  A.K.W. would not allow the victim to leave the bathroom, forced her back into the bathroom, shut and locked the door, and stood in front of the door, blocking her exit.  The victim testified that A.K.W. attempted to unbuckle and remove her bib overalls.  The victim also testified that A.K.W. asked her to remove her overalls, which she refused to do.  The victim was crying.  At one point A.K.W. restrained the victim by grabbing her arm.  After several minutes and several requests on the part of the victim to be allowed to leave the bathroom, A.K.W. removed her glasses, wiped her tears, kissed her on the forehead, and opened the door.  As he was returning to his room, A.K.W. told the victim not to tell anyone what had happened.

            The victim returned to her girlfriend’s room; her friend immediately noticed that she was crying and asked her what was wrong.  Initially, the victim would not tell, stating that it was too embarrassing.  The victim told her girlfriend’s mother that she wanted to go home.  The victim’s mother came for her, took her home, and called the police.

            The police interviewed the victim, the victim’s mother, A.K.W., and A.K.W.’s parents.  A police officer who interviewed A.K.W. testified that A.K.W. told her, “that he wasn’t 100% sure what he wanted—what he was going to do, but that he had sexual thoughts in his head.”  A.K.W. also stated that he let the victim leave the bathroom after he “came to his senses.” 

            A.K.W.’s parents reported that this was not the first time he had exhibited inappropriate sexual behavior directed towards young girls.  A.K.W. had touched his sister’s private parts through her clothing a couple of years earlier.  In 1999, he had an inappropriate incident with another of his sister’s girlfriends.  He touched that girl’s private parts through her clothing, pulled her pants down to look at her underwear, and put his finger in her mouth.  On a separate occasion, that girl found A.K.W. sitting next to her on the floor in his sister’s room.  That girl’s father had confronted A.K.W. in the presence of his parents, repeatedly asking A.K.W. if he had touched his daughter’s private parts.  A.K.W. finally said yes.  The parents of that girl notified the police but decided not to prosecute because A.K.W.’s parents arranged for A.K.W. to receive counseling.

            At the trial in this case, the court heard testimony about A.K.W.’s encounter with the victim in this case and Spreigl evidence about his encounter with another girl.  The court found that A.K.W. had committed the act of attempted criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2000) and the act of false imprisonment in violation of Minn. Stat. § 609.255, subd. 2 (2000).  The court adjudicated A.K.W. as a delinquent, placed him on probation for two years, sentenced him to a 120-day residential sex offender program, required four weeks on a probation work crew, prohibited him from accessing the Internet, and required A.K.W. to provide a DNA sample and register as a sex offender.  This appeal followed.



            In a juvenile delinquency case, the district court is awarded broad discretion and this court will affirm “so long as the trial court determination is not arbitrary.”  In re Welfare of T.J.M., 413 N.W.2d 221, 225 (Minn. App. 1987) (citation omitted).  Trial court dispositional findings of fact will be accepted unless clearly erroneous.  Id.  The district court, as the trier of fact, is entitled to determine the credibility of witnesses and the weight given to evidence. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (finding that the jury determines the credibility of and weight given to testimony).  When reviewing evidence from a district court hearing, this court must determine if, based on the facts in the record and the reasonable inferences from those facts, it was reasonable to find the defendant guilty of the charges.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).


            The first issue to address is whether the district court properly concluded that appellant intended to commit the crime of second-degree criminal sexual conduct.  Second-degree criminal sexual conduct is committed when there is sexual contact, the victim is less than 13 years of age, and the actor is more than 36 months older than the victim.  Minn. Stat. § 609.343, subd. 1(a) (2000).  The definition of sexual contact includes the intentional touching of the victim’s intimate parts.  Minn. Stat. § 609.341, subd. 11(a)(i) (Supp. 2001).

            A criminal attempt is committed when a person “does an act which is a substantial step toward, and more than preparation for, the commission of the crime.”  Minn. Stat.    § 609.17, subd. 1 (2000).  There must be a showing of specific intent to commit the crime.  State v. Schmitz, 559 N.W.2d 701, 704 (Minn. App. 1997), review denied (Minn. April 15, 1997).  Intent is a “subjective state of mind usually established only by reasonable inference from surrounding circumstances.”  State v. Schweppe, 237 N.W.2d 609, 614 (Minn. 1975) (citation omitted).  If the party does not admit to the intent to commit a crime, the intent must then be established through circumstantial evidence. 

            Here, because A.K.W. did not admit that he intended to touch the victim, the intent determination is based upon circumstantial evidence.  Convictions based upon circumstantial evidence merit stricter scrutiny than convictions based on direct evidence.  State v. Scharmer, 501 N.W.2d 620, 621-22 (Minn. 1993) (citing Bias, 419 N.W.2d at 484).  The circumstantial evidence must point unerringly to A.K.W.’s guilt.  See State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  In order for circumstantial evidence to establish A.K.W.’s guilt, there must not be any other possible scenarios than intent on A.K.W.’s part to touch the victim’s intimate parts.  See id.

            Here, it was established that A.K.W. tried to pull down the victim’s overalls.  A.K.W. stated he had a sexual impulse driving him to act but that he was not sure what he intended to do.  A.K.W. now states that his intention was to look, and he asserts that the Spreigl evidence regarding his actions with the prior victim supports his contention.  While A.K.W. earlier admitted that he had touched the private parts of the other girlfriend of his sister, A.K.W. now states that the admission was a reply to an angry, threatening confrontation with the girl’s father. 

            We find that the evidence here is sufficient to establish that A.K.W. intended to touch the victim’s private parts.  This was not A.K.W.’s first inappropriate sexual behavior directed towards young girls.  In both of the prior instances, there was evidence that A.K.W. had touched the victim’s private parts through the victim’s clothing.  Here, A.K.W. pushed the victim back into the bathroom, closed and locked the door, attempted to unbuckle her overalls, took off her glasses, wiped her tears, kissed her on the forehead, and told her not to tell anyone else what had happened.  Spreigl evidence detailing A.K.W.’s prior acts was specifically admitted to indicate intent.  See Minn. R. Evid. 404(b); State v. DeWald, 464 N.W.2d 500, 502-03 (Minn. 1991) (Spreigl evidence is admissible to prove “motive, opportunity, intent, absence of mistake or accident, identity or common scheme or plan” (emphasis added) (citation omitted)).  Although we do not find A.K.W.’s prior acts determinative of intent, when these acts are combined with the circumstantial evidence in this case, we conclude that the court did not abuse its discretion in finding that A.K.W. intended to touch the victim’s private parts.


            A.K.W. contends that whatever action he was taking or was planning on taking, he abandoned his intention to commit a sexual offense.  The statute provides:

It is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith and abandoned the intention to commit the crime.


Minn. Stat. § 609.17, subd. 3 (2000).  It is A.K.W.’s responsibility to raise the defense that he abandoned his intent to commit the crime.  Cf. State v. Currie, 267 Minn. 294, 306, 126 N.W.2d 389, 398 (1964) (holding defendant has the burden to show withdrawal from conspiracy).  At that point, the burden rests on the state to prove there was no abandonment.  See id. at 306, 126 N.W.2d at 398. 

An attempt is not voluntarily abandoned within the scope of [Minn. Stat.] § 609.17, subd. 3, if a defendant refrains from carrying out his criminal act because of intervening circumstances, such as being frightened by the arrival of law enforcement personnel.


State v. Cox, 278 N.W.2d 62, 66 (Minn. 1979) (citation omitted) (finding it was not voluntary abandonment when the defendant was concerned that noise might attract the attention of other people).

            The police investigator testified that approximately seven weeks after the charged incident, A.K.W. stated that he abandoned his aggressive conduct toward the victim because he “came to his senses.”  A.K.W. claims that he then allowed the victim to leave the bathroom without further touching her.  The trial court appropriately discounted this claim of abandonment.  The facts indicate that A.K.W. had behaved this way before and that he had taken substantial steps toward completing the offense, severely frightening the victim and causing her to cry. 

A.K.W. did not establish reasonable doubt that he had a change of heart.  Instead, it appears that he abandoned his attempt because the victim resisted and any further pursuit on his part and her resistance could have alerted both his sleeping parents and his sister.  In addition, A.K.W. told the victim to not tell anyone what had happened.  This indicates a lack of a voluntary, good-faith abandonment.  Given A.K.W.’s history, it is not credible that he “came to his senses” and in good faith abandoned his intent.  Rather, he abandoned further assault because of the proximity of witnesses and the resistance and crying of the victim.


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