This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).


Dean Valentine Miller, petitioner,


State of Minnesota,

Filed August 27, 1996
Klaphake, Judge

Hennepin County District Court
File No. 93-102652

Peter A. Cahill, 150 South Broadway Avenue, Wayzata, MN 55391; Philip G. Villaume, 7900 International Drive, Suite 675, Bloomington, MN 55425 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Davies, Judge.


Appellant Dean Valentine Miller challenges his conviction for second-degree criminal sexual conduct under Minn. Stat. § 609.343 (1992). Because the evidence was sufficient to support the conviction, there was no juror misconduct, and defense counsel provided effective assistance, we affirm.
I. Sufficiency of the Evidence

Under the applicable standard of review, this court must view the evidence in a light most favorable to the conviction. See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must also assume that the jury believed the evidence presented by the state and disbelieved contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Appellant argues that the complainant's uncorroborated testimony and limited recollection require a holding that the evidence was insufficient. Appellant cites the general proposition that "the absence of corroboration in an individual case ** may well call for a holding that there is insufficient evidence." State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977).
Conviction for second-degree criminal sexual conduct does not require corroboration of the complainant's testimony. Minn. Stat. §§ 609.343, 609.347, subd. 1 (1992). The state must prove that (1) appellant engaged in sexual contact with the complainant while she was under 16 years of age, (2) they had a "significant relationship," and (3) the sexual abuse involved multiple acts committed over an extended period of time. See Minn. Stat. § 609.343, subd. 1(h)(iii).
Whether and, if so, when the sexual contact occurred was the primary issue at trial, and this factual determination depended on witness credibility. The jury was entitled to find that the complainant's testimony was believable and appellant's was not. See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (exclusive function of jury to judge witness credibility).
The complainant was appellant's stepdaughter. Her memory of the string of incidents was consistent with a girl of her age experiencing a shock or trauma, and the lack of details in her memory was reasonable under the circumstances. She recalled the location and general circumstances of each encounter. She explained that her limited reporting of the incidents was to protect herself and her mother. Her reports to close friends, her aunt, and finally the police were also consistent with her confusion and uncertainty about appellant and the meaning of the contacts. See, e.g., State v. Hamilton, 289 N.W.2d 470 (Minn. 1979) (conviction on weak corroboration affirmed); Marshall v. State, 395 N.W.2d 362, 365 (Minn. App. 1986) (victim's testimony unequivocal and jury entitled to believe her story). Under these circumstances, there is no basis for requiring additional corroboration, and we uphold the conviction.
II. Juror Misconduct

To prevail on a juror misconduct claim, appellant must show that actual misconduct occurred and that the misconduct prejudiced him. State v. Henderson, 355 N.W.2d 484, 486 (Minn. App. 1984). Such misconduct must be reported to the trial court "at the first suspicion of juror misconduct." Id. (citing Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977)).
Anthony Stachnik, appellant's brother-in-law, was the sole witness to the alleged juror misconduct. At the postconviction hearing, he testified that he watched the entire trial and noticed "at several points" jurors were nodding off or sleeping. The trial court "did not observe any significant lapses in the attention of the jury." Although Stachnik could have reported this during trial breaks when he conversed with the state and defense attorneys, he did not. When he did finally report it after conviction, he could not affirmatively testify that the two jurors were sleeping. He was nonspecific as to the time the jurors were actually "nodding off." He also could assert only generally that one juror nodded off during testimony by a defense witness, so it is unclear what testimony that juror may not have heard.
The vagueness and untimeliness of Stachnik's report, coupled with his potential bias in favor of appellant and the trial court's own observation of the jury's attentiveness, supports the postconviction court's conclusion that there was no misconduct prejudicing appellant.
III. Effective Assistance of Counsel

To succeed in a claim of ineffective assistance of counsel
[t]he defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). There is a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
No evidence was presented to rebut this presumption. Appellant's expert did not review all of the evidence available to appellant's trial counsel. He also did not think any single piece of evidence would have changed the outcome. Appellant's trial counsel adequately explained his methods and trial tactics. He also explained his reason for not widely opening the door for character evidence, despite his client's desire to do so. The record demonstrates that he adequately prepared the case for trial and provided effective assistance of counsel to appellant.