This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Michael Page Bancroft,



Filed May 22, 2007


Randall, Judge


Hubbard County District Court

File No. K9-04-262



Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Donovan Dean Dearstyne, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Street, Park Rapids, MN  56470 (for respondent)


John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction of second-degree criminal sexual conduct, appellant argues that evidence that he had sexual contact with his stepdaughter was insufficient to support the conviction.  He claims that the state presented no evidence that appellant, who lived with the victim’s mother, acted in the place of a parent or was charged with any parental duties.  Appellant also argues that he is entitled to a new trial because the attorneys stipulated that he was in a “position of authority” without obtaining appellant’s personal waiver of his right to a jury trial on that element.  We affirm.


            A.B. and appellant Michael Bancroft began living together in December 1999.  At the time, A.B. had three children, including two daughters, T.D., born June 6, 1988, and L.U., born June 30, 1989.  The children, who had previously resided with A.B.’s parents in Wisconsin, moved in with their mother and appellant in April 2001.  Shortly thereafter, in July 2001, appellant and A.B. were married.

            In April 2004, appellant was charged with two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(b) (2004).  The complaint alleged that appellant touched both T.D. and L.U. in a sexual manner while they were sleeping.  Appellant pleaded not guilty, and a jury trial was held on the matter. 

            At trial, A.B. testified that on the evening of April 4, 2004, she and appellant went to a local bar for drinks and socializing.  According to A.B., the couple left the bar at about midnight after appellant became intoxicated.  A.B. testified that when the couple arrived home, appellant vomited when he got out of the van.  A.B. then helped appellant into the house, undressed him, and put him to bed.  Before going to bed, A.B. went downstairs to check on her children. 

            A.B. testified that she was awakened when L.U. called to her from the hallway.  According to A.B., when she went down to the room that was shared by L.U. and T.D., she found the girls sitting on T.D.’s bed crying.  Both girls told A.B. that appellant had touched them on their “private areas.”  A.B. subsequently went upstairs and confronted appellant with the allegations.  According to A.B., appellant sat on the edge of the bed and said, “What do you want me to do about it?”  A.B. then went back downstairs to ask the girls if they were absolutely sure that appellant touched them inappropriately.  A.B. testified that the girls were crying and holding onto each other, and replied that this was something they would not lie about.  A.B. stated that when she went back upstairs to further discuss the matter with appellant, he already had his clothes on and was looking for money.  A.B. gave appellant $27, told him to get out, and called the police. 

            Both T.D. and L.U. testified at trial.  T.D. testified that during the night, she felt someone touching her vaginal area as she lay on her stomach.  She then noticed the bathroom light being shut off and the person going upstairs.  T.D. also testified that somewhat later, the bathroom light was back on, and she felt someone touching her private area again.  According to T.D., she rolled over and saw appellant standing next to L.U.’s bed. 

            L.U. testified that she felt someone poking at her vaginal area, woke up, and saw appellant.  According to L.U., appellant told her to go back to sleep and that everything was OK.  After appellant went upstairs, L.U. turned on the light and discovered that her sister was awake.  L.U. stated that when she asked T.D. if appellant had touched her, T.D. answered in the affirmative. 

            Appellant testified in his defense and told the jury that he recalled going to the bar, becoming intoxicated, and being helped into bed by his wife.  Appellant also testified that he got up during the night to use the downstairs bathroom.  After using the bathroom, he stepped across the hallway to look in on the girls.  According to appellant, they looked fine, so he turned off the light and went back upstairs to bed.  Appellant testified that when he was confronted with the allegations by his wife, he was still feeling the effects of the alcohol and decided to “defuse” the situation by leaving.  Appellant testified that he did not touch either girl inappropriately. 

            The jury acquitted appellant of the count involving T.D., but convicted appellant of the count involving L.U.  The district court sentenced appellant to a 21-month stayed sentence and placed appellant on probation.  This appeal followed.   




            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 a light most favorable to the conviction,” is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing 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).  The reviewing court 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 reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant was convicted of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(b) (2004).  This statute provides in part:

            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 exist:


            . . . .


            (b) the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant.


Id.  Position of authority is defined as:

            “Position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act. 


Minn. Stat. § 609.341, subd. 10 (2004). 

            Appellant argues that the evidence was insufficient to support his conviction for second-degree criminal sexual conduct because the state failed to present any evidence that appellant was in a “position of authority” over his stepdaughters.  We disagree. This court has concluded that a “‘person in a position of authority’ is broadly defined” under Minn. Stat. § 609.341, subd. 10.  State v. Willette, 421 N.W.2d 342, 345 (Minn. App. 1988), review denied (Minn. May 16, 1988).  We confirmed that the statutory definition “does not contain an exclusive list of persons in a position of authority.”  State v. Larson, 520 N.W.2d 456, 461 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994).

            Here, the record reflects that T.D. and L.U. began living with appellant in April 2001 and that appellant became the girls’ stepfather in July 2001.  L.U. testified that she got along with appellant and that their relationship was “[l]ike a dad and a daughter.”  Appellant testified that he had a good relationship with L.U. and agreed that he exercised some parental authority over her.  Although appellant testified that he did not discipline the children, he also testified that if there was an issue with the children and A.B. was not present, he would “try to deal with it.”  We note appellant’s ability to discipline the children is not dispositive of the issue.  See State v. Waukazo, 269 N.W.2d 373, 374 (Minn. 1978) (adult son of victim’s foster parents found to be in position of authority despite lack of duty or authority to care for the child).  The incident occurred in appellant’s home.  As an adult living with the children’s mother, appellant’s responsibilities would include at least a minimum degree of protection over his step-children’s health and welfare.  The case is not overwhelming.  But we conclude that based on this record, the evidence is sufficient to place appellant within the definition of “position of authority.” 


            Appellant argues that he is entitled to a new trial because his trial attorney “all but stipulated” to the fact that appellant was in a position of authority over his stepdaughters without first obtaining appellant’s waiver of his right to a jury trial on that element of the offense.  A criminal defendant has a constitutional right to a jury trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  This constitutional right includes the right to a jury determination of every element of the charged offense.  State v. Hinton, 702 N.W.2d 278, 281 (Minn. App. 2005), review denied (Minn. Oct. 26, 2005).  A defendant may stipulate to an element of the offense, but the stipulation must be accompanied by a personal waiver of his trial rights either orally or in writing.  State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004).

            Here, the record reflects that after voir dire, the following dialogue regarding the jury instructions occurred:

The Court:  Fifth element.  The defendant was in a position of authority over victim.  And then it defines, a position of authority includes but is not limited to any person who is a parent, is acting in the place of a parent or is charged with any rights, duties or responsibilities of a parent or who is charged, no matter how briefly, with any duty or responsibility for the health, welfare or supervision of a child.  And it just occurred to me that perhaps not all of that would be required and, depending upon the parties’ positions, maybe none of it.  But I don’t know that all of that is necessary.  Without having it in front of you I don’t expect you to having just heard it to - -

Mr. Larson:  I thought it said parent or stepparent.

Ms. Lovejoy:  Actually do have it I think.

Ms. Moore:  Yeah, I think legally he is a stepparent, so . . .

Ms. Lovejoy:  Yeah

The Court:  And - - -

Ms. Moore:  Which would qualify as a position of authority.

The Court:  And arguably then a position of authority includes any person who is a parent or acting in the place of a parent.  And so maybe just part of it would be applicable and not all of it.   

Ms. Moore:  I would agree.

Mr. Larson:  Yeah.


The district court later instructed the jury that the fifth element of the charged offense is:  “The [appellant] was in a position of authority over L.U.  Again, a position of authority includes but is not limited to any person who is a parent or is acting in the place of a parent.”  Appellant did not object to the jury instruction.

            A review of the record reveals that there was not a stipulation concerning the “position of authority” element of the offense.  The district court’s instruction did not remove that element from the jury’s consideration.  The jury had to decide whether appellant was in a position of authority over L.U.  The instruction was simply edited to eliminate the inapplicable portions of the definition and was agreed to by the attorneys for both parties.  Appellant is not entitled to a new trial on this issue.  There was nothing for appellant to personally waive on the record. 


            In his pro se supplemental brief, appellant appears to challenge the credibility of the witnesses, arguing that law enforcement’s failure to properly separate witnesses during interviews allowed the witnesses to concoct parallel stories.  A jury has the exclusive function of judging witness credibility and weighing the evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  The jury here apparently believed the state’s witnesses and disbelieved any evidence to the contrary.  See Moore, 438 N.W.2d at 108 (stating that appellate courts must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary).  Appellant failed to demonstrate a basis for reversal.