This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-712

 

In the Matter of the Welfare of: M.J.

 

Filed May 30, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. J7-03-57760

 

 

Leonardo Castro, Chief Public Defender, Melissa Haley, Assistant Public Defender, 317 South Second Avenue, Suite 200, Minneapolis, MN 55487 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondents)

 

            Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, Judge.*

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges his adjudication of delinquency for criminal sexual conduct in the second degree and his disposition.  Because we find sufficient evidence to support the adjudication and because the disposition was not an abuse of discretion, we affirm. 

FACTS

            Appellant was charged with one count of criminal sexual conduct in the second degree, in violation of Minn. Stat. §§ 609.343, subd. 1(a) (2002), 609.101, subd. 2 (2002), 609.109, subd. 7 (2002), for sexual contact with B.S.  This conduct was alleged to have happened between July 2001 and July 2002.  B.S. is the daughter of one of appellant’s father’s girlfriends.  B.S., her mother, appellant’s father, and several others lived in the same home, and appellant lived there part of the time. 

            After one of the other children in the home alleged that she had been abused, B.S. was interviewed at CornerHouse.  B.S. reported that she had been abused by appellant and by his father.  B.S. was five years old at the time of the interview.

            The district court initially denied the state’s motion to admit B.S.’s out-of-court statement from the CornerHouse interview under Minn. Stat. § 595.02, subd. 3 (2002), unless B.S. testified in court.  Later, the district court admitted the out-of-court statement without in-court testimony pursuant to Minn. R. Evid. 803(24) and 804(b)(5). 

            Following the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the district court revisited its decision, ruling that B.S.’s out-of-court statement was testimonial and therefore inadmissible absent an opportunity for cross-examination.  The district court permitted the state to reopen its case to call B.S. to testify.  Following B.S.’s testimony on June 30, 2004, the district court admitted her out-of-court statement from the interview at CornerHouse.

            Ultimately, the district court concluded that the state proved beyond a reasonable doubt that appellant committed criminal sexual conduct in the second degree against B.S., adjudicated appellant delinquent, placed him on probation until his 19th birthday, and as a condition of his probation, ordered him to successfully complete a program at the Mille Lacs Academy, an inpatient facility.  Because appellant had been accepted into Project Pathfinders, an outpatient program, he requested a disposition modification to allow such outpatient treatment.  The district court denied appellant’s motion.  This appeal follows. 

D E C I S I O N

I.

            The first issue is whether the evidence is sufficient to sustain the district court’s delinquency adjudication.  The state must prove the allegations in the petition beyond a reasonable doubt.  Minn. R. Juv. Delinq. P. 13.06.  On appeal from a determination that each element of a delinquency petition has been proved, “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 are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence.”  Id. 

            Minn. Stat. § 609.343, subd. 1(a) (2004), defines criminal sexual conduct in the second degree: “A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists: (a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. . . .”  Minn. Stat. § 609.341, subd. 11(a) (2004), defines sexual contact:

‘Sexual contact,’ for the purposes of sections 609.343, subdivision 1, clauses (a) to (f), . . . includes any of the following acts committed without the complainant’s consent, except in those cases where consent is not a defense, and committed with sexual or aggressive intent:

(i) the intentional touching by the actor of the complainant’s intimate parts, or

. . . .

 

(iv) in any of the cases above, the touching of the clothing covering the immediate area of the intimate parts.

 

            For a conviction under Minn. Stat. § 609.343, corroboration of the victim’s testimony is not required.  Minn. Stat. § 609.347, subd. 1 (2004).  But in an individual case, corroboration may be necessary to find the elements of the petition beyond a reasonable doubt.  See State v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004), review denied (Minn. June 29, 2004).  Credibility is a matter to be determined by the factfinder, and inconsistencies and conflicts in the evidence do not automatically require reversal.  Id.; see also State v. Moore, 433 N.W.2d 895, 900 (Minn. App. 1988) (upholding the sufficiency of evidence to support a jury verdict of criminal sexual conduct when appellant disputed whether interviewers used suggestive techniques); State v. Struss, 404 N.W.2d 811, 816 (Minn. App. 1987) (discussing the jury’s role in weighing the credibility of a witness in light of inconsistency in his testimony), review denied (Minn. June 9, 1987). 

            Here, the evidence of the criminal sexual conduct is found in forensic interviewer Judy Weigman’s interview with B.S. at CornerHouse.  After discussing whether appellant touched certain other people, Weigman asked about additional touching.  B.S. stated that appellant touched her and indicated by pointing to the picture of a girl on the wall that appellant touched her vagina.  B.S. stated that appellant touched her with his belt and his penis, and then stated that she wanted to go play.  Instead of ending the session, Weigman brought out anatomically correct dolls, and asked B.S. to show her how appellant touched her.  B.S. indicated by touching the female doll that appellant touched her vagina and then used a male doll to demonstrate that appellant touched her vagina with his penis.

            Appellant makes several specific challenges to the validity of the interview.  He attacks the reliability of B.S. as a witness, inconsistencies in her statements, lack of context for some statements, and protracted questioning by the interviewer.  Appellant’s expert witness, clinical psychologist Mary Kenning, criticized many aspects of Weigman’s interview of B.S. and concluded that it was of limited reliability.  Weigman responded to a number of these criticisms in her testimony.

            The district court found that B.S. “made nearly all of her statements voluntarily with very little prompting by the interviewer.”  The district court further found that Weigman’s questions were not unduly leading and that she did not lead B.S. to make the demonstration with the dolls, which the district court characterized as “vivid” and “unambiguous and persuasive on the ultimate issue.”  On their face, B.S.’s statements show that appellant intentionally touched her vagina with sexual or aggressive intent.  The district court considered the interview itself, Kenning’s criticisms of the interview, and Weigman’s explanations of the interview, and found that the interview was not protracted or unreliable and that B.S.’s responses were not inconsistent with respect to fundamentals or the result of improper questioning. 

            Appellant asserts that the state failed to prove other elements of his offense.  Appellant argues that there is no evidence from the interview of where the offense took place.  But the district court found that it occurred at his father’s house, where B.S. also lived.  Appellant’s mother testified that he lived at his father’s house periodically around the time of the offense and that B.S.’s mother and her children lived in the home as well.  Appellant also argues that the interview contained an insufficient description from which to infer sexual or aggressive intent.  But the district court found the requisite intent based on the “vivid description and illustration with the dolls.”  “Intent must be determined from all the objective facts and circumstances, including the defendant’s conduct and/or statements at the time of the act.”  State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983).  Appellant’s arguments on these elements of his offense are not persuasive.

            We conclude that based on the record, the district court could reasonably determine that Weigman’s interview was persuasive, that the elements of the petition were proven beyond a reasonable doubt, that appellant violated Minn. Stat. § 609.343, subd. 1(a), and that appellant was delinquent.

II.

            The second issue is whether the district court abused its discretion in ordering appellant’s disposition.  “The district court has broad discretion to order dispositions authorized by statute, and the disposition will not be disturbed absent an abuse of discretion.”  In re Welfare of J.S.H.-G., 645 N.W.2d 500, 504 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).  The district court’s disposition must be “necessary to the rehabilitation of the child.”  Minn. Stat. § 260B.198, subd. 1 (2004); see In re Welfare of J.A.J., 545 N.W.2d 412, 414 (Minn. App. 1996) (stating that the court must take the least-drastic step necessary).  Also, a district court ordering an out-of-home placement must make findings of fact showing

(1) why public safety is served by the disposition; (2) why the best interests of the child are served by the disposition; (3) what alternative dispositions were proposed to the court and why such recommendations were not ordered; (4) why the child's present custody is not acceptable; and (5) how the correctional placement meets the child's needs.

 

In re Welfare of N.T.K., 619 N.W.2d 209, 211 (Minn. App. 2000) (citing Minn. Stat. § 260B.198, subd. 1(m) (Supp.1999) and Minn. R. Juv. P. 15.05, subd. 2(A)).

            Appellant argues that his placement in inpatient treatment at the Mille Lacs Academy was not necessary or in his best interests.  Appellant argues that he has had no new offenses in the three years since this offense, that he has no previous failed placements, and that the tensions in his home were due to the presence of his father, who is now in prison.  Appellant also concludes that outpatient treatment in the Project Pathfinders program would have been a more suitable disposition.

            The district court considered a psychological report and a predisposition report from the juvenile probation department.  The psychological report identifies a number of risk factors for appellant’s reoffending and states that appellant’s home is unstable, noting appellant’s changes in housing in the prior year, appellant’s mother’s unstable and sometimes violent relationships with different men, and appellant’s sporadic school attendance.  The report concludes that inpatient treatment for appellant should be considered, but if that cannot be arranged, it recommends intensive outpatient services.  The predisposition report also notes the instability in appellant’s life, focusing on appellant’s changing residences, poor school attendance, and marijuana use.  The report also recommends inpatient treatment. 

            The district court found that inpatient treatment was necessary to restore appellant to law-abiding behavior because of appellant’s risk factors for reoffending and the problems in his home, including the family’s inability to keep him in school and his drug use.  The district court found that the disposition was in appellant’s best interests because staff at the Mille Lacs Academy specialize in addressing the needs of lower-functioning children and because the structured therapeutic environment can address his own victimization as well.  The district court denied appellant’s motion to modify his disposition to Project Pathfinders for these same reasons. 

            Based on the record, we conclude that the district court did not abuse its discretion in ordering inpatient treatment at the Mille Lacs Academy

            Affirmed.



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