This opinion will be unpublished and

may not be cited except as provided by

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



In the Matter of the Welfare of: I.T.L., Child.


Filed December 11, 2007


Peterson, Judge


Ramsey County District Court

File No. J906551492



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

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

Susan Gaertner, Ramsey County Attorney, Jill E. Fedje, Assistant County Attorney, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


The district court acquitted appellant of the crime charged in the delinquency petition, first-degree criminal sexual conduct (sexual contact with a victim under age 13 when the defendant is more than 36 months older), but found him guilty of fifth-degree criminal sexual conduct (lewd exhibition of the genitals in the presence of a minor under age 16).  Appellant argues that fifth-degree criminal sexual conduct involving indecent exposure is not a lesser-included offense of first-degree criminal sexual conduct, and, therefore, the district court erred in finding him guilty of fifth-degree criminal sexual conduct.  We affirm.


            Appellant I.T.L.’s mother often babysat the seven-year-old victim.  In December 2005, the victim told her 12-year-old cousin, S.Q.O., that she had been sexually abused by appellant.  S.Q.O. reported the allegation to the victim’s mother, and on December 25, 2005, the victim disclosed the sexual abuse to her mother, who then contacted police. 

            The victim testified at trial that she saw appellant’s private part on one occasion during the fall of 2005 when they were watching television in appellant’s bedroom.  The victim described appellant’s “private part” as the part you use “to go to the bathroom” and testified that appellant instructed her to “suck my private part” while exposing it.  The victim did not recall whether appellant touched her. 

            Several witnesses testified at trial about the victim’s out-of-court statements.  S.Q.O. testified that the victim said that appellant made her have sex with him.  The victim’s mother testified that the victim told her that appellant “made her suck his penis.”  St. Paul Police Officer Alan Singleton, who responded to the call on December 25, 2005, testified that although the victim had difficulty talking about what had happened, she disclosed that the “thirteen-year-old son of her mother’s friend took her into a bedroom, locked the door, dropped his pants and literally forced her to have oral sex on him.” 

            Pursuant to police-department procedure, Singleton referred the victim to Midwest Children’s Resource Center (MCRC) for evaluation.  On December 28, 2005, a nurse employed by MCRC conducted a videotaped interview of the victim.  During the interview, the victim made conflicting representations to the nurse.  Initially, the victim said, “He made me suck it, but I didn’t do it.”  Later, the nurse sought clarification by asking, “Okay.  He made you suck it?  And what did you do?  What part of your body sucked it?”  The victim answered, “I didn’t actually – I told him no and he made me.”  The victim repeatedly denied that appellant’s penis went into her mouth, stating, “It just touched my lips.”  Near the end of the statement, when asked to be specific about what had happened, the victim said that she did not recall what had happened. 

            A delinquency petition was filed alleging that I.T.L. committed first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2004) (sexual contact with a victim under age 13 when defendant is more than 36 months older).  The case was tried to the district court, which found appellant guilty of committing fifth-degree criminal sexual conduct in violation of Minn. Stat. § 609.3451, subd. 1(2) (2004) (lewd exhibition of the genitals in the presence of a minor under age 16), but acquitted him of the first-degree criminal-sexual-conduct charge.  Regarding the finding of guilt, the court explained that the victim’s trial testimony that she saw appellant’s private parts was consistent with all of her out-of-court statements.  Regarding the acquittal, the court explained that it was disturbed by the inconsistent use of language in testimony about the victim’s out-of-court statements and the victim’s lack of recall about specific details.  The district court withheld adjudication and placed appellant on intensive supervised probation.  This appeal followed. 


[I]n a jury trial, the district court must instruct on a lesser offense if the evidence warrants the instruction. . . .  More specifically, . . . the court must instruct the jury on a lesser-included offense when:  (1) the offense in question is an included offense;  and (2) a rational basis exists for the jury to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime.  The same standard applies in a bench trial.  In fact, . . . the court in a bench trial could grant a motion to acquit of a greater charged offense but deny the motion as to all lesser-included offenses, including one that was not charged.


State v. Slaughter, 691 N.W.2d 70, 76-77 (Minn. 2005) (citations omitted).

            “The legislature has defined a lesser included offense” to include “a lesser degree of the same crime.”  State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quotation omitted).  “Minnesota rules of criminal procedure preclude the [district] court from adding new and different charges once jeopardy has attached.”  Id. at 157.  “A jury can, however, find the defendant guilty of any lesser-included offense, whether or not the lesser-included offense was part of the complaint or indictment.”  Id. (emphasis omitted).  “Upon an indictment or complaint for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or complaint, and guilty of any degree inferior to that.”  Minn. Stat. § 631.14 (2004).  Under Minn. Stat. § 631.14, the district court “may submit lesser-included offenses on its own motions where the evidence warrants their submission.”  State v. Kobow, 466 N.W.2d 747, 752 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).

            Appellant was charged with first-degree criminal sexual conduct but found guilty of fifth-degree criminal sexual conduct.  As defined by the legislature, fifth-degree criminal sexual conduct is a lesser-included offense of first-degree criminal sexual conduct, and the district court articulated a rational basis for finding appellant guilty of fifth-degree criminal sexual conduct and not guilty of first-degree criminal sexual conduct.

            Appellant relies on State v. Bashire, 606 N.W.2d 449, 452-53 (Minn. App. 2000), review denied, (Minn. Mar. 28, 2000).  But Bashire is not on point because the defendant in Bashire specifically conceded that the offense on which he requested an instruction was not a lesser-included offense of either of the charged crimes.  Id. at 452.

The district court did not err in finding appellant guilty of fifth-degree criminal sexual conduct.