This opinion will be unpublished and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

A03-1085

 

 

In the Matter of the Welfare of:  A.H.J., Child.

 

 

Filed June 29, 2004

Affirmed

Halbrooks, Judge

 

 

Olmsted County District Court

File No. J6-03-50443

 

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

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, Kathy M. Wallace, Assistant County Attorney, Olmsted County Government Center, 151 4th Street Southeast, Rochester, MN 55904 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant A.H.J. was adjudicated delinquent on two counts of fifth-degree criminal sexual conduct.  Appellant challenges the adjudication, arguing that (1) the admission of the police officer’s testimony violated his Fifth Amendment right against self-incrimination and (2) the state failed to prove lack of consent.  Because any error in admitting the police officer’s statements was harmless and because the evidence was sufficient to prove that appellant engaged in nonconsensual sexual contact, we affirm.

FACTS

            The complainant is a 16-year-old female, who attended Mayo High School in Rochester.  She has been diagnosed as being mild to moderately mentally impaired and functions on a first- or second-grade level in her reading, writing, and math skills.  Barbara Nichols, the complainant’s speech clinician, testified that the complainant is “fairly limited” in her ability to communicate.

            On March 19, 2003, the complainant reported to Nichols that while she was waiting for the bus, a young man grabbed her breasts so hard that it hurt and asked her if she wanted to have sex.  According to Nichols, the complainant appeared very ashamed of what happened.  Nichols reported the statements to the complainant’s case manager, the school social worker, and the school liaison police officer.

            According to the school social worker, the complainant identified the boy who was bothering her by his first name and indicated that he lived in the same apartment building as she did.  The complainant also stated the boy bothered her at the school bus stop and in her apartment building hallway and laundry room.  The complainant told the social worker that in addition to squeezing her breast, the boy also grabbed her in the vaginal area.  The social worker showed the complainant the school directory and the complainant pointed to 16-year-old appellant’s photograph.

            The next day, the complainant approached Kelly Theuner, a paraprofessional who worked with the special-needs students at the school, and reported that she was again approached at the bus stop that morning by appellant and that appellant grabbed her in the vaginal area and then said some things such as that she should “touch it and suck it.”  Theuner asked another teacher, Jill Hillesheim, to talk with her and the complainant.  Hillesheim testified that the complainant stated that the boy grabbed her and pointed to her vaginal area.  The complainant also told Hillesheim that she had told the boy to leave her alone after he grabbed her at the bus stop that morning.

            Officer Bush, the liaison officer at the school, interviewed the complainant.  The complainant told Officer Bush that the boy touched her while she was waiting for the bus and when she was in the hallway and the laundry room of her apartment complex.  She also explained that one time the boy grabbed her breast and squeezed so hard that it hurt, and that the boy said things to her like, “I love you.”  The complainant identified the boy who touched her as appellant.  She further told Officer Bush that she did not want anything to do with appellant and had told appellant to go away and to leave her alone.

            After talking to the complainant, Officer Bush interviewed appellant at the school.  The Mayo High Minority Liaison, Mulageta Habib, was also present at this interview.  Officer Bush testified that appellant was calm with a “matter of fact” demeanor during the interview.  Appellant told Officer Bush that he knew the complainant because he knew her brother, but he denied having had any contact with the complainant.  Officer Bush characterized this interview as a “non-custodial interview.”

            On March 27, 2003, a juvenile-delinquency petition was filed charging appellant with two counts of criminal sexual conduct in the fifth degree in violation of Minn. Stat. § 609.3451, subds. 1(1), 2 (2002) (gross misdemeanor).  A bench trial was held in May 2003.  Both appellant and the complainant testified consistently with what they had previously told Officer Bush, the teachers, and the social worker.  When asked if she had ever told appellant “no,” the complainant answered that she had.  The district court found appellant guilty of both counts.  A disposition hearing followed, where appellant was adjudicated delinquent, placed on probation until his nineteenth birthday, and ordered to follow all recommendations.  This appeal follows.

D E C I S I O N

I.

 

            Appellant argues that his federal and state constitutional rights against self-incrimination were violated because he was not provided with a Miranda warning or told during his interview with Officer Bush that he was free to leave or that he could call his parents.  Appellant did not raise these issues before the district court.  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).  Constitutional claims, however, may be considered for the first time on appeal in the interests of justice if the parties had adequate briefing time and when such issues were implied in the district court.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).  On this record, we conclude that appellant waived this argument.

            But because of the serious nature of appellant’s claim, in the interests of justice, we will address the merits.  To determine whether a Miranda warning was required, a court should first determine whether the defendant was in police custody.  State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998); State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973) (extending Miranda protection to juveniles who are subject to custodial interrogation).  The ultimate determination of custody is subject to independent review.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).  This court should determine whether, in light of the circumstances surrounding the interrogation, a reasonable person would have felt free to leave or to terminate the interrogation.  In re G.S.P., 610 N.W.2d 651, 657 (Minn. App. 2000).  If it is determined that the defendant was in custody and that a Miranda warning was required, the reviewing court should determine whether the erroneous admission of statements could have reasonably affected the verdict.  See In re T.J.C., 670 N.W.2d 629, 631 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).

            We conclude that, even assuming appellant was in custody and the statements were erroneously admitted at trial, any error was harmless beyond a reasonable doubt.  See State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997) (stating a “conviction may stand so long as the admission of the statement was harmless beyond a reasonable doubt”).  An error is harmless beyond a reasonable doubt only if the verdict was “surely unattributable” to the error.  State v. McDonough, 631 N.W.2d 373, 384 (Minn. 2001).  The error should not be considered harmless unless the weight of other evidence was so overwhelming that a reasonable trier of the facts would have arrived at the verdict without the prejudicial evidence.  Juarez, 572 N.W.2d at 291.

            In the present case, the only corroborating evidence obtained from the interview was that appellant knew who the complainant was and that they lived in the same apartment complex.  Appellant asserts that because of this corroboration, admission of the statements was prejudicial error following State v. Hannon, 636 N.W.2d 796, 807 (Minn. 2001).  But in Hannon, the statements substantially corroborated the circumstantial evidence of the murder, including the motive, mode, opportunity, and time, and the court noted that the statements constituted significant admissions almost amounting to a full confession.  Id.  Here, appellant’s statements, at most, corroborated evidence of opportunity for some of the touching, which was not necessary for the conviction.  Appellant’s other statements – denying ever touching the complainant in a sexual way and denying ever being at the bus stop with the complainant – do not corroborate motive, mode, opportunity, or time.

            Furthermore, the district court found the complainant credible, and it is not necessary for the victim’s testimony to be corroborated in prosecution for criminal sexual conduct.  State v. Hookom, 474 N.W.2d 624, 630 (Minn. App. 1991).  Even so, the state presented ample evidence to corroborate the necessary facts for conviction through the testimony from other witnesses.  Therefore, even if the admission of Officer Bush’s statements was error, the error was harmless beyond a reasonable doubt.  Appellant is not entitled to a new trial on this ground.

II.

            The next issue is whether there was sufficient evidence to prove appellant committed criminal sexual conduct in the fifth degree.  We apply the same standard of review to court adjudications of delinquency as to criminal jury verdicts when determining whether the evidence was sufficient to support a conviction.  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  In considering a claim of the sufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  In considering an appeal based on insufficiency of the evidence, this court must assume that the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Criminal sexual conduct in the fifth degree is committed if “a person engages in nonconsensual sexual contact.”  Minn. Stat. § 609.3451, subd. 1(1) (2002).  Appellant argues that the complainant’s lack of consent was not sufficiently proven.  Appellant contends that a complainant’s lack of consent should be proven to have been communicated before the juvenile engaged in any contact and that the lack of consent should be proven to have been communicated in a way that a reasonable juvenile would have understood that no consent existed.

            In order for sexual contact to be considered consensual, “a person’s words or overt actions [must] indicate a freely given present agreement to perform a particular sexual act with [another].”  10 Minnesota Practice, CRIMJIG 12.52 (1999).  Here, there is no evidence in the record that the complainant indicated in any way that she was freely agreeing to appellant grabbing her breast at the bus stop or any other location.  Instead, the complainant testified that appellant touched her several times, that she told appellant that she did not want him to talk to her, and that she did not want him.  When asked whether she ever told appellant “no,” the complainant said, “Yes.”

            Minnesota law does not require that nonconsent be communicated before the sexual contact occurs or that it be communicated at all.  Instead, nonconsent has been interpreted to extend to a situation in which the complainant has been physically attacked or has emerged from the incident so shaken or traumatized that no reasonable person would believe the complainant desired that particular sexual contact.  See, e.g., State v. DeBaere, 356 N.W.2d 301, 304 (Minn. 1984) (finding that injury to complainant was proof of her nonconsent); State v. Buckhalton, 296 N.W.2d 881, 883 (Minn. 1980) (finding nonconsent where defendant used or threatened use of dangerous weapon).  Here, the record reflects that appellant’s breast was squeezed so hard that she had bruises and that the pain kept her awake at night.  In addition, several people testified that the complainant seemed both ashamed and embarrassed after the incidents.  Under these circumstances, even though the record is not clear as to when the complainant told appellant “no,” the record supports the finding that no reasonable person would believe the complainant desired that particular sexual contact.  Further, there is no authority to support appellant’s argument that a different standard to measure effectiveness of communication should apply to juveniles, and we reject such an assertion.  Viewing the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to support the district court’s finding that appellant engaged in nonconsensual sexual contact with the complainant.

            Affirmed.