This opinion will be unpublished and

may not be cited except as provided by

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







In the Matter of the Welfare of:

M.A.V., Juvenile.



Filed October 11, 2005


Lansing, Judge



Mower County District Court

File No. J5-04-50545



John Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant MAV)


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


Patrick W. Flanagan, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent State of Minnesota)


            Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an adjudication of delinquency for third-degree criminal sexual conduct, MAV argues that the evidence was insufficient to support the adjudication and that the district court shifted the burden of proof to him in violation of his right to due process.  Because the evidence supports the district court’s finding that sexual penetration occurred and the court did not shift the burden of proof to MAV, we affirm.


            The facts underlying MAV’s adjudication stem from an incident in August 2004 when SAU, then 12 years old, was in a residential garage with four other juveniles.  The juveniles, including SAU, were drinking alcohol.  SAU remembers lying on a lawn chair with her 15-year-old boyfriend MAV, kissing him, and vomiting from the effects of the alcohol.  At some point, SAU passed out and does not remember anything else that happened that night.

            DMG, MAV’s cousin, and EV, MAV’s friend, testified that they observed SAU and MAV kissing.  EV saw SAU put her hands down MAV’s pants and also testified that “[MAV] just started rubbing [SAU].”  After they had been in the garage about an hour, HLI, SAU’s friend, tried to persuade SAU to leave with her.  SAU refused and HLI left with EV.  DMG, who lived at the residence, went into the house about 1:00 a.m., leaving SAU and MAV alone in the garage.

When SAU awakened at about 6:00 a.m. the following morning, she heard MAV say, “Why did you take your clothes off?” and “I will put them back on for you.”  MAV assisted SAU in putting on her underpants.  Her sweater was off and her outer pants, which fastened with a tie, were loose and untied.  As she tried to stand, she fell on the garage floor and went back to sleep.  When she again awakened a few hours later, she went home.  Upon arriving home, SAU changed her clothes and discovered blood on the crotch panel inside her underpants, which were on sideways and torn.  She had no cuts on her body, and she was not menstruating. 

A few days after the incident, SAU and HLI saw MAV at a park.  SAU and HLI testified that SAU asked MAV what he did to her, and he said that he had “fingered” her, which they understood to mean digital penetration.

            The Mower County Attorney filed a petition in juvenile court charging MAV with criminal sexual conduct in the third and fourth degrees.  Following a hearing the district court found that the state proved both charges beyond a reasonable doubt and adjudicated MAV delinquent on third-degree criminal sexual conduct.  MAV appeals, arguing that the evidence was insufficient to support the findings and that the district court impermissibly shifted the burden of proof to MAV.



            On appeal from a determination that each of the elements of a delinquency petition has been proved beyond a reasonable doubt, “an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).  We view the record in the light most favorable to the district court’s determination and assume the trier of fact believed the testimony supporting the decision and disbelieved any contrary evidence.  Id.

MAV asserts that the state presented only circumstantial evidence that was insufficient to support beyond a reasonable doubt the district court’s findings of third- and fourth-degree criminal sexual conduct.  Circumstantial evidence is entitled to the same weight as other evidence, but “[a] conviction based entirely on circumstantial evidence merits stricter scrutiny.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  “Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.”  State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).  To challenge a conviction based on circumstantial evidence, an appellant must show that the evidence and reasonable inferences that can be drawn from it are consistent with a rational hypothesis other than guilt.  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003). 

Third-degree criminal sexual conduct is defined as engaging in “sexual penetration with another person . . . [if] the complainant is under 13 years of age and the actor is no more than 36 months older than the complainant.”  Minn. Stat. § 609.344, subd. 1(a) (2004).  Consent is not a defense.  Id.  MAV does not dispute that at the time of the offense SAU was 12 years old and he was less than 36 months older than SAU.  Consequently, MAV disputes only whether the evidence at trial was sufficient to prove sexual penetration.  “Sexual penetration” includes “any intrusion however slight into the genital or anal openings . . . of the complainant’s body by any part of the actor’s body or any object used by the actor for this purpose.”  Minn. Stat. § 609.341, subd. 12(2)(i) (2004).

At trial the state presented evidence that established the following chain of evidence:  (1) MAV and SAU were boyfriend and girlfriend; (2) MAV and SAU were lying close together on a lawn chair; (3) MAV and SAU were kissing for an extended period of time; (4) EV saw MAV and SAU touching each other in intimate places; (5) SAU passed out and has little memory of what happened; (6) DMGleftthegarage around 1:00 a.m., leaving MAV and SAU alone; (7) when SAU awoke around 6:00 a.m., her sweater was off, her pants were untied, and MAV was pulling up her underpants; (8) SAU’s underpants were torn, on sideways, and had blood on the crotch panel that was not attributable to any visible cuts on her body or to menstruation; (9) SAU and HLI testified that MAV told them he had “fingered” SAU; and (10) SAU, DMG, and EV each testified that he or she did not want MAV to get in trouble.  This chain of evidence supports the district court’s conclusion, beyond a reasonable doubt, that sexual penetration occurred.  

MAV argues that the evidence of his alleged statement that he had “fingered” SAU is unreliable because SAU failed to reveal the statement until shortly before his trial.  This argument discounts not only SAU’s sworn testimony, but also HLI’s corresponding testimony.  And the argument that the evidence is fabricated runs counter to the strong evidence that none of the other juveniles wanted MAV to get into trouble for his conduct.  The district court has broad discretion in deciding issues of credibility, and the court acted within its discretion in accepting SAU’s and HLI’s account of the conversation.

The alternative theory that MAV offers to explain the evidence does not provide a rational hypothesis inconsistent with guilt.  He suggests that SAU removed her own clothes because she was drunk and had been vomiting.  While this part of his explanation might be reasonable, MAV’s account of the source of the blood on SAU’s underpants is untenable.  He suggests that because she was unable to stand without falling when she first woke up, she likely was more unstable during the night and “[s]he easily could have injured herself and gotten some blood on her underwear.”  Weretheinjury in question a bruise, this explanation might be plausible, but the record offers no support for the theory that SAU fell or injured herself in a way that would result in blood on the crotch panel of her underpants.  To the contrary, the record indicates SAU had sustained no visible cuts.  The strong chain of circumstantial evidence and the testimony that MAV admitted that he “fingered” SAU support the district court’s decision, beyond a reasonable doubt, that MAV digitally penetrated SAU, thereby committing third-degree criminal sexual conduct.

The same evidence supports the district court’s finding that MAV was guilty of fourth-degree criminal sexual conduct.  Fourth-degree criminal sexual conduct is defined as “sexual contact with another person” when the victim is less than 13 years of age and the person charged is fewer than 36 months older.  Minn. Stat. § 609.345, subd. 1(a) (2004).  “Sexual contact” includes acts that are “committed with sexual or aggressive intent” and involve touching another’s intimate parts or the clothing covering intimate parts.  Minn. Stat. § 609.341, subd. 11(a)(i), (ii), (iv) (2004).  In addition to the circumstantial evidence, EV testified that he directly witnessed MAV’s sexual contact with SAU.  Viewing the evidence in the light most favorable to the adjudication and giving proper deference to the district court’s assessment of witness credibility, the evidence was also sufficient to support a finding of guilt of fourth-degree criminal sexual conduct.


            Due process requires that the state prove every element of a crime beyond a reasonable doubt.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (1970)).  In its memorandum the district court stated, “While the exact nature of any penetration is largely circumstantial, it is the only explanation that fits all of the facts.  No contrary hypothesis was submitted on behalf of the Juvenile.”  MAV argues that this statement shifted the burden of proof.  

            The district court did not shift the burden of proof to MAV.  The statement in the court’s findings addresses the standard used to evaluate a finding of guilt based on circumstantial evidence.  Circumstantial evidence must be consistent with a hypothesis of guilt and “inconsistent with any rational hypothesis except that of guilt.”  State v. Bernhardt, 684 N.W.2d 465, 477 (Minn. 2004).  The court referred to the lack of an alternative explanation only after listing the chain of circumstantial evidence that pointed toward MAV’s guilt.  Although MAV does not bear the burden of putting forth a countervailing hypothesis, the absence of a reasonable hypothesis other than guilt supports the adjudication.  The court concluded that sexual penetration was the only explanation supported by all of the facts including the presence of blood on  SAU’s underpants.  The district court could not ascertain a reasonable alternative explanation and the court observed that MAV did not suggest one.  The district court’s statement, which correctly evaluated the circumstantial evidence, did not shift the burden of proof to MAV.