This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the
Welfare of: D.J.J., Child.
Filed May 16, 2006
Washington County District Court
File No. 82-20910Y
John Stuart, State Public
Defender, Ann McCaughan, Assistant Public Defender,
Mike Hatch, Attorney General, 1800
Douglas Johnson, Washington County Attorney, Janet A. Reiter, Assistant County Attorney, 14949 – 62nd Street North, Box 6, Stillwater, MN 55082 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
The district court adjudicated DJJ delinquent following a determination that the state proved the allegations in a petition charging him with fifth-degree criminal sexual conduct. In this appeal from adjudication, DJJ challenges the sufficiency of the evidence to establish that he acted with sexual or aggressive intent. Because direct and circumstantial evidence supports the district court’s findings, we affirm.
F A C T S
Twelve-year-old KMH and fourteen-year-old DJJ were playing basketball with other friends outside KMH’s house in April 2004. When KMH left the group, DJJ followed her. He approached her and grabbed her breast through her clothing. KMH testified that DJJ then followed her into the house where he pushed her onto a couch, climbed on top of her, and began to move up and down.
The Washington County Attorney filed a delinquency petition charging DJJ with fifth-degree criminal sexual conduct. Following a hearing the district court found that DJJ intentionally touched the clothing covering KMH’s breast without her consent. DJJ appeals from the court’s delinquency adjudication, arguing that the evidence is insufficient to show that he acted with sexual or aggressive intent.
D E C I S I O N
Fifth-degree criminal sexual conduct requires
nonconsensual sexual contact. Minn.
Stat. § 609.3451, subd. 1(1) (2002).
“Sexual contact” is defined as the intentional touching of another’s
intimate parts or the clothing covering the immediate area of intimate parts if
the action is performed with sexual or aggressive intent.
DJJ concedes on appeal that he touched KMH’s
breast and that it is an intimate part of her body. See
Minn. Stat. § 609.341, subd. 5 (2002) (defining “intimate parts” of human
being to include breast); see also In re
Welfare of D.L.K., 381 N.W.2d 435, 437 (
On appeal from a delinquency adjudication,
this court is limited to ascertaining whether, given the facts and legitimate
inferences drawn from them, the district court could reasonably determine that the
state proved each element of the delinquency petition beyond a reasonable
The evidence supports the determination that DJJ committed fifth-degree criminal sexual conduct. The court heard testimony from KMH and four other witnesses. KMH testified that DJJ grabbed her breast without her consent and “pinched it really hard” for two or three minutes. The court received into evidence a photograph showing a noticeable bruise on KMH’s breast, and KMH testified that the bruise was larger and darker before the date of the photo. One of the friends who was outside KMH’s home on the day of the incident testified that he saw DJJ follow KMH and touch her breast when they were outside the home.
argues that the evidence of his intent is circumstantial and insufficient
because it also supports his alternative explanation that he was tickling KMH
and accidentally touched her breast.
Intent is usually proved by circumstantial evidence. State
v. Hardimon, 310 N.W.2d 564, 566 (
DJJ did not testify at the hearing and first raised his explanation of accidental
touching at the disposition hearing, after the determination of guilt and only
when pressed by the court to take responsibility for his actions. An investigator testified that DJJ had
previously denied touching KMH. In
addition to the direct-observation testimony that DJJ pinched KMH’s breast, the
photographic evidence of the bruise on KMH’s breast stands in opposition to
DJJ’s claim of accidental touching. When
DJJ presented his explanation at the disposition hearing, the court expressly
stated that it did not find DJJ credible.
The court could reasonably infer from the evidence that DJJ’s contact
demonstrated an aggressive intent.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.