This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Christopher Lee Shavers,
Filed December 18, 2007
Stearns County District Court
File No. KX-05-4682
Lori Swanson, Attorney General, Rita Coyle Demeules, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Stearns County Attorney,
John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*
In this appeal from a conviction of criminal sexual conduct with a person under age 16, appellant contends that he proved the affirmative defense of mistake-of-age and, therefore, the evidence was insufficient to support the conviction. Because the evidence was sufficient to sustain the conviction, we affirm.
A jury found appellant Christopher Lee Shavers guilty of third-degree criminal sexual conduct, which entails engaging in sexual penetration with another who is at least 13, but under 16 years old, when the actor is more than 24 months older than that person. Shavers admitted that, when he was 20 years old, he allowed J.K., a female, to voluntarily perform oral sex on him. J.K. was 14 years old at the time. Shavers contended that he believed she was 16 years of age. The law makes mistake-of-age an affirmative defense to the crime. Shavers argues that he met his burden of proving that defense and that he should have been acquitted.
The evidence at trial was in conflict. J.K. testified that she met Shavers in the summer of 2004 through T.R., a mutual friend. J.K. stated that she never told Shavers how old she was and that she did not think he knew her age in 2004, unless a mutual friend told him.
After that first meeting, J.K. testified that she and Shavers met twice or three times more but always in the company of at least one other person. Then, in July 2004, she was home alone when Shavers came to her house and told her that another friend, M.W., had left something at J.K.’s home. J.K. asked Shavers if he wanted to come in to look for the item, and he said he did. When J.K. invited him in, he entered and sat down. J.K. approached him to inquire whether he was going to look for the item, and he grabbed her, pushed her down, and laid on top of her. She testified that he pulled her pants and underwear down and penetrated her vagina with his penis.
About a month later, J.K. told a friend what happened, and a few months after that she told her mother. She gave a report to the police on that day.
T.R. testified that, when Shavers met J.K., he told Shavers that J.K. was 14 years old, although she really was 13. Shavers was 20 at that time.
Shavers testified in his defense, acknowledging consensual oral sex but denying vaginal intercourse. He stated that T.R. told him that J.K. was 14 and that he believed T.R. Shavers said that meeting was in 2003 and that, by the time of the sexual encounter, “a couple years passed.” Because of that passage of time, Shavers said he believed J.K. was 16. He admitted, however, that if he met J.K. in 2003 when she was 14, she would have been only 15 in 2004 on the date of the alleged offense. Shavers also testified that he was seven years older than J.K. He admitted that he told an investigating officer that he was 19 when he had sex with J.K., and he acknowledged that, if that were the case, J.K. would have been 12 on the date of the incident because Shavers was admittedly seven years older than she.
Despite the information that Shavers had about J.K.’s age before the sexual incident, he contends that he was confused about how long he had known J.K. and he thought it was possibly two years, which would make her 16. Shavers contends on appeal that the evidence was sufficient to establish his mistake-of-age defense.
A jury found Christopher Lee Shavers guilty of criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(b) (2004). One of the essential elements of that crime, and the only one in dispute in this appeal, is that the alleged victim of the crime was at least 13 years old, but less than 16, and that the defendant was more than 24 months older than the alleged victim. Proof of the affirmative defense of mistake-of-age negates that element, with the result that the evidence is insufficient to support a conviction.
Shavers acknowledges that, no matter how old he believed J.K. to be, he was more than 24 months older than she. But, he contends, the evidence was sufficient to establish his defense that he believed J.K. was 16 when the sexual penetration—whether oral and consensual, or vaginal and nonconsensual—occurred.
The question before us is that of the overall sufficiency of the evidence to sustain the conviction; recognizing that, to answer that question, we must consider whether the evidence was sufficient to establish the defense of mistake-of-age. Our review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the verdict, was sufficient to permit the jury to reach that verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In our review, we must assume that the jury believed the prosecution witnesses and disbelieved evidence contrary to their testimony. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially so when the resolution of the issue depends mainly on a review of 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 that the defendant was guilty of the charged offense. Bernhardt v. State,684 N.W.2d 465, 476-77 (Minn. 2004).
Having raised the affirmative defense of mistake-of-age, Shavers had the burden of proving that it was more likely than not that he believed J.K. to be 16 years old, or older, at the time of the sexual encounter. State v. Kramer, 668 N.W.2d 32, 36 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).
Shavers admits that, when he met J.K., he believed his friend T.R.’s declaration that J.K. was 14 years old. Shavers thought he met J.K. in 2003 and thought that possibly two years had passed between the time of the introduction and the sexual incident. Although Shavers’s testimony as to dates and times was imprecise, if the jury believed that the incident occurred two years after the first meeting between J.K. and Shavers, the jury could reasonably find that Shavers had adequately shown his mistake as to J.K.’s age. However, all of the state’s evidence shows that the incident happened in 2004, and Shavers offers nothing to contradict that evidence except his surmise that the encounter happened later, possibly a couple of years later.
The case depended entirely on whom the jury believed. Credibility determinations are to be made by the jury. State v. Johnson,679 N.W.2d 378, 384 (Minn. App. 2004) (citing State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002)), review denied (Minn. Aug. 17, 2004). When, as here, the evidence is in conflict, the jury is called upon to resolve that conflict and may do so by weighing the credibility of witnesses. Pippitt, 645 N.W.2d at 94.
The only evidence supporting Shavers’s defense was his own speculation as to when the incident occurred. The jury needed to assess his testimony in light of the contradictory testimony of J.K. Furthermore, the jury was entitled to consider the contradictions in statements Shavers made to the police.
Considering all the evidence, the jury properly credited the state’s witnesses and rejected Shavers’s defense. The evidence was sufficient to support Shavers’s conviction.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.