This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-917

 

In the Matter of the Welfare of: A.J.C.

 

Filed March 23, 2004

Affirmed

Wright, Judge

 

Scott County District Court

File No. 03-05168

Cottonwood County District Court

File No. J7-02-50121

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant A.J.C.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Patrick J. Ciliberto, Scott County Attorney, Scott County Government Center, 200 West Fourth Avenue, Shakopee, MN  55379; and

 

L. Douglas Storey, Cottonwood County Attorney, Nicholas A. Anderson, Assistant County Attorney, 1044 Third Avenue, Windom, MN  56101 (for respondent state)

 

            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his delinquency adjudication on two counts of fifth-degree criminal sexual conduct, one count of fourth-degree criminal sexual conduct, and one count of third-degree criminal sexual conduct, arguing that (1) the evidence is insufficient to sustain the adjudications and (2) the district court abused its discretion in admitting appellant’s statement to police.  We affirm.

FACTS

On June 26, 2002, 13-year-old C.W. reported to a lifeguard that 14-year-old A.J.C. had touched her inappropriately while they were swimming at a public pool in Windom.  The lifeguard reported the incident to the police department, which assigned Officer Donna Duis to conduct an investigation.  Duis arrived at the pool and took statements from A.J.C., C.W., and E.A., who also had been swimming at the pool. 

A.J.C. told Duis that, while he was in the pool, some girls tried to take his shorts off.  He snapped the straps on the girls’ swimsuits to get them to stop.  A.J.C. stated that he may have rubbed his hand over the girls’ tops and bottoms, but he had not done so intentionally or in a sexual manner.

E.A. told Duis that he had gotten into a fight with A.J.C. because A.J.C. admitted digitally penetrating a second person, M.W.  M.W. was no longer at the pool when Duis arrived. 

Duis next spoke with C.W., who reported that A.J.C. tried to pull the top of her swimsuit down between 20 and 30 times.  When A.J.C. succeeded in pulling down C.W.’s swimsuit top, he grabbed her breasts.  C.W. stated that, when she tried to slap and kick A.J.C., he grabbed her leg, pulled her toward him, and grabbed her vagina.  C.W. reported that A.J.C. grabbed her vagina between 10 and 20 times. 

Two days later, C.W., M.W., and J.R., accompanied by their parents, spoke with Duis at the police department about A.J.C.’s actions at the pool on June 26.  On this occasion, C.W. reported that A.J.C. tried to pull her top down between 5 and 10 times.  He touched her on the inside of her swimsuit top once and grabbed her vaginal area approximately five times on the outside of her swimsuit. 

C.W.’s testimony at the delinquency hearing, however, was inconsistent with the statements she gave to Duis on June 26 and 28.  For example, C.W. testified on direct examination that A.J.C. pulled her swimsuit top down five times and hit her buttocks once.  But A.J.C. did not touch her vaginal area.  On cross-examination, C.W. testified that A.J.C. grabbed her vagina and pushed on her vagina with his fist “about a couple times.” 

During the June 28 interview, M.W. reported that A.J.C. put his hand inside her swimsuit and squeezed her bottom.  M.W. denied that A.J.C. digitally penetrated her.  At the delinquency hearing, however, M.W. testified that, when A.J.C. reached inside her swimsuit, he digitally penetrated her vagina three times.  M.W. also testified that A.J.C. squeezed her breasts twice. 

During her meeting with Duis on June 28, J.R. recounted that, when A.J.C. tried to dunk her in the swimming pool, she attempted to kick him in the groin.  A.J.C. then picked her up and digitally penetrated her vagina through her swimsuit.  When J.R. told A.J.C. to release her, he said, “No.”  At the delinquency hearing, J.R. testified that, despite struggling to get away from A.J.C., she could not do so.  During her encounter with A.J.C., J.R. was both angry and scared. 

The state filed a delinquency petition, charging A.J.C. with one count of third-degree criminal sexual conduct against J.R., in violation of Minn. Stat. § 609.344, subd. 1(c) (2000); two counts of fourth-degree criminal sexual conduct against C.W. and J.R. respectively, in violation of Minn. Stat. § 609.345, subd. 1(c) (2000); and three counts of fifth-degree criminal sexual conduct against C.W., J.R., and M.W. respectively, in violation of Minn. Stat. § 609.3451, subd. 1 (2000).  Following a delinquency hearing, the district court found that the state proved that A.J.C. committed the following offenses: fifth-degree criminal sexual conduct against M.W.; and third-, fourth-, and fifth-degree criminal sexual conduct against J.R.  The district court found that the state did not prove that A.J.C. committed any of the criminal sexual conduct charges involving C.W.  The district court placed A.J.C. on probation for 180 days and ordered him to comply with all conditions of probation, including sex offender registration and counseling.  This appeal followed.

D E C I S I O N

I.

In a juvenile delinquency proceeding, the state must prove beyond a reasonable doubt each element of the offense charged in the petition.  In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984).  When reviewing a sufficiency-of-the-evidence claim, we evaluate the record and any legitimate inferences that can be drawn from the record in the light most favorable to the adjudication.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).  We will not disturb the delinquency finding if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude from the evidence that the juvenile committed the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  The factfinder, not the reviewing court, determines the weight and credibility of a witness’s testimony.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985); State v. Folley, 378 N.W.2d 21, 26 (Minn. App. 1985); see also State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999).  “The resolution of conflicting testimony is the exclusive function of the [factfinder] because it has the opportunity to observe the demeanor of witnesses and weigh their credibility.”  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).

A.J.C. challenges the sufficiency of the evidence offered to prove that he acted with sexual or aggressive intent.  He contends that the state failed to prove his sexual or aggressive intent as a matter of law because he was acquitted on all counts of criminal sexual conduct against C.W.  Intent is a subjective state of mind typically established only by reasonable inferences drawn from the totality of the circumstances.  State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975); State v. Alladin, 408 N.W.2d 642, 648 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).  The statements of a juvenile regarding his or her intent are not binding on the factfinder when the juvenile’s conduct demonstrates a contrary intent.  State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989).  Rather, intent is determined from the totality of facts and circumstances, including the juvenile’s conduct and statements at the time of the act.  See State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983).  Sexual or aggressive intent can be established through repeated attempts to accomplish sexual contact.  In re Welfare of T.J.C., 670 N.W.2d 629, 633 (Minn. App. 2003); In re Welfare of C.S.K., 438 N.W.2d 375, 377 (Minn. App. 1988). 

A.J.C.’s contention that his acquittal of fourth- and fifth-degree criminal sexual conduct against C.W. establishes that the state failed to prove that he acted with sexual or aggressive intent against M.W. and J.R. lacks support in Minnesota law and the record.  Inconsistent testimony and conflicting evidence are not bases for reversal.  State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).  The district court determined that C.W. was not a credible witness because “with each telling of the alleged misconduct against her, the quality and quantity of sexual contact made against her consistently changed.”  And C.W. testified that A.J.C. committed the offenses against her between 7:00 p.m. and 8:00 p.m. when M.W. and J.R. were at the pool.  This aspect of C.W.’s testimony conflicts with that of M.W. and J.R. who testified that they left the pool at 5:00 p.m.  The district court’s findings as to C.W.’s credibility, however, have no bearing on the district court’s determination that M.W. and J.R. were credible witnesses.  See id.

The record establishes that A.J.C. possessed the requisite sexual intent for fifth-degree criminal sexual conduct when he touched M.W. and J.R.  A person is guilty of fifth-degree criminal sexual conduct if the person engages in nonconsensual sexual contact.  Minn. Stat. § 609.3451, subd. 1 (2000).  “Sexual contact” includes “the intentional touching by the actor of the complainant’s intimate parts” without the complainant’s consent when committed with sexual or aggressive intent.  Minn. Stat.      § 609.341, subd. 11(a)(i) (2000).  The record supports the district court’s finding that A.J.C.’s sexual or aggressive intent against M.W. was evinced by A.J.C. touching M.W.’s breasts and vagina multiple times, squeezing M.W.’s breasts, and penetrating M.W.’s genital opening three times. 

M.W. testified that A.J.C. squeezed her breasts and digitally penetrated her vagina three times under her swimsuit.  M.W. also testified that she told A.J.C. to stop and tried to flee.  M.W.’s testimony was corroborated by E.A.’s report to Duis that A.J.C. admitted digitally penetrating M.W.  Despite her inconsistent statements as to whether actual penetration occurred, M.W. consistently recounted, both to Officer Duis and at the delinquency hearing, that A.J.C. put his hand inside her swimsuit to touch her vaginal area approximately three times.  In light of the evidence presented that A.J.C. repeatedly touched M.W.’s breasts and vagina without her consent, we conclude that there is sufficient evidence from which the district court could reasonably conclude that A.J.C. acted with sexual or aggressive intent in effectuating sexual contact with M.W.  Accordingly, there is sufficient evidence to support A.J.C.’s delinquency adjudication of fifth-degree criminal sexual conduct against M.W. 

The record also establishes that A.J.C. possessed the requisite sexual intent for fifth-, fourth-, and third-degree criminal sexual conduct when he touched and digitally penetrated J.R.  As to the fifth-degree criminal sexual conduct against J.R., the district court found that the pressure A.J.C. exerted to penetrate J.R.’s genital opening through her swimsuit evinced his sexual or aggressive intent.  J.R. testified that A.J.C. digitally penetrated her vagina through her swimsuit.  When J.R. told A.J.C. to release her, he refused.  J.R.’s testimony was consistent with her statement to Duis on June 28.  Based on this record, the district court could reasonably conclude that A.J.C. acted with sexual or aggressive intent when he touched J.R. without her consent. Thus, A.J.C.’s challenge to the sufficiency of the evidence supporting the fifth-degree criminal sexual conduct offense fails. 

A person is guilty of fourth-degree criminal sexual conduct if he or she engages in sexual contact with another person and uses force or coercion to accomplish the sexual contact.  Minn. Stat. § 609.345, subd. 1(c).  “Sexual contact” includes “the intentional touching by the actor of the complainant’s intimate parts” without the complainant’s consent when committed with sexual or aggressive intent.  Minn. Stat. § 609.341, subd. 11(a)(i).  The definition of “force” includes the infliction of “bodily harm,” which is defined as “physical pain or injury . . . or any impairment of physical condition.”  Minn. Stat. § 609.341, subd. 3 (2000); Minn. Stat. § 609.02, subd. 7 (2000).  The term “coercion” means, in relevant part, “words or circumstances that . . . force the complainant to submit to sexual penetration or contact . . . .”  Minn. Stat. § 609.341, subd. 14 (2000). 

The district court found that A.J.C. used coercion to accomplish the sexual contact with J.R. and that A.J.C.’s sexual intent was demonstrated by A.J.C.’s physical restraint of J.R. during the sexual contact.  The record supports these findings.  J.R. testified that, despite her verbal requests and physical struggle to be released, A.J.C. held her while he digitally penetrated her vagina through her swimsuit.  J.R. also testified that she was scared and angry during the altercation.  This testimony was corroborated by her statements to Duis on June 28.  On this record, there is ample evidence supporting A.J.C.’s delinquency adjudication of fourth-degree criminal sexual conduct. 

When the evidence is viewed in the light most favorable to the delinquency adjudication, A.J.C.’s challenge to the evidentiary basis for the third-degree criminal sexual conduct adjudication also is unavailing.  A person who engages in sexual penetration with another person, using force or coercion to accomplish the penetration, is guilty of third-degree criminal sexual conduct.  Minn. Stat. § 609.344, subd. 1(c) (2000).  “Sexual penetration” means any nonconsensual “intrusion however slight into the genital or anal openings [ ] of the complainant’s body by any part of the actor’s body.”  Minn. Stat. § 609.341 subd. 12(2)(i) (2000).  The district court determined that A.J.C. possessed the requisite sexual intent based on the evidence that A.J.C. physically restrained J.R. while digitally penetrating her vagina.  As discussed above, J.R.’s testimony supports this determination and ultimately supports A.J.C.’s delinquency adjudication of third-degree criminal sexual conduct. 

II.

A.J.C next argues that the district court erred in admitting into evidence his statement to Officer Duis because he was not given a Miranda warning prior to questioning.  A.J.C. did not raise this issue before the district court.  As a general rule, we consider only matters decided by the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Generally, we will not consider issues, including constitutional challenges, that are raised for the first time on appeal.  See State v. Kremer, 307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976). We may, at our discretion, consider a newly raised issue to correct plain error.  See Minn. R. Crim. P. 31.02 (providing that plain errors may be considered on appeal even though they were not brought to the attention of the district court); State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  The plain-error test requires A.J.C. to demonstrate error that is plain and that affected substantial rights.  See State v. Burg, 648 N.W.2d 673, 677 (Minn. 2002).  This test cannot be met here because analysis of the issue requires consideration of questions of fact that were not fully developed or addressed in the juvenile proceedings.  Thus, we decline to address for the first time on appeal A.J.C.’s challenge to the admissibility of his statements. 

            Affirmed.