This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Richard J. Knudtson,



Filed February 1, 2005


Kalitowski, Judge


Clay County District Court

File No. K0-03-1245


Mike Hatch, Attorney General, Thomas R. Ragatz, Blaine A. Markuson, Assistant Attorneys General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130; and


Lisa Borgen, Clay County Attorney, P.O. Box 280, Moorhead, MN 56561 (for respondent)


Dennis D. Fisher, Stefanson, Plambeck & Foss, 403 Center Avenue, Suite 302, P.O. Box 1287, Moorhead, MN 56561-1287 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of attempted third-degree criminal sexual conduct, arguing that the evidence is insufficient to establish (1) that he used coercion as required for a conviction of third-degree criminal sexual conduct; and (2) that he committed a “substantial step” toward commission of the crime, as required for a conviction of attempt.  We affirm.


            In considering a claim of insufficient 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, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).


            Appellant first argues that the prosecution failed to prove the coercion element of third-degree criminal sexual conduct.  Coercion, for purposes of criminal sexual conduct, does not require that the victim submit to the actor.  State v. Middleton, 386 N.W.2d 226, 230 (Minn. 1986).  In Middleton, the supreme court held that when an actor coerces a victim so as to cause the victim fear while accomplishing sexual contact, the requirement for coercion for criminal sexual conduct in the fourth degree is satisfied.  Id.  The coercion element is the same for third-degree criminal sexual conduct, except that we must determine whether the evidence supports a finding that appellant attempted to accomplish sexual penetration, rather than sexual contact.

            Our review of the record indicates that the victim, who was 17 at the time, testified that appellant served him an alcoholic drink, watched a pornographic movie with him, and questioned him about his sexual orientation and activities.  Appellant then exposed himself to the victim and masturbated.  Next, appellant sat near the victim while still exposed and grabbed him in the crotch over his clothing.  Appellant told the victim not to be scared and that if he “did things” to appellant, appellant would “do things” to him.  The victim testified that he was scared and uncomfortable and that when he attempted to leave, he discovered that appellant had locked the doors.  He further testified that appellant told him that he could not go home because he had been drinking.  The victim testified that he then locked himself in the bathroom for a time, later asked to go outside, and finally escaped when appellant briefly went back in the house to get him a glass of water.

            We conclude that, in light of our standard of review, the evidence, when viewed in the light most favorable to the verdict, was sufficient to allow the jurors to conclude that appellant coerced the victim such that the victim felt fear when appellant attempted to accomplish sexual penetration.


            Appellant also argues that the prosecution failed to show that appellant made a “substantial step” toward sexual penetration of the victim.  Minnesota law provides that “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime . . . .”  Minn. Stat. § 609.17, subd. 1 (2002).  “Sexual penetration” includes, inter alia, any of the following nonconsensual acts under Minnesota law:  sexual intercourse, cunnilingus, fellatio, or anal intercourse.  Minn. Stat. § 609.341, subd. 12 (2002).

            The supreme court has analyzed a challenge to the sufficiency of the evidence for attempted first-degree criminal sexual conduct, which requires attempted sexual penetration and personal injury.  See Dale v. State, 535 N.W.2d 619, 623-24 (Minn. 1995).  In Dale, the defendant argued that he never engaged in an act that amounted to a “substantial step” toward commission of first-degree criminal sexual conduct.  Id. at 623.  But the court found that the evidence was sufficient to conclude that the defendant had attempted sexual penetration when he placed the victim in a headlock, threatened to kill her, forcibly restrained her, and ripped off her clothes.  Id. at 623-24.

            Here, a review of the record shows that at one point, the victim told police that appellant moved to sit on the floor next to the victim with his genitals exposed to the victim and said something to the effect of, “if you do me, I’ll do you.”  Then appellant grabbed the victim in the crotch over the victim’s jeans.  Because we review all evidence and the legitimate inferences from that evidence in the light most favorable to the verdict, we conclude that on these facts the evidence was sufficient for the jury to find that appellant made a substantial step toward sexual penetration of the victim.