This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-95-1827

State of Minnesota,
Respondent,

vs.

Larry Alfred Martinson,
Appellant.

Filed August 6, 1996
Affirmed
Willis, Judge

Carver County District Court
File No. K894199

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael A. Fahey, Carver County Attorney, Tara E. Keehr, Assistant County Attorney, Carver County Justice Center, 600 East Fourth Street, Chaska, MN 55318 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

A jury convicted appellant Larry Alfred Martinson of criminal sexual conduct in the first degree, finding that he had engaged in multiple acts of penetration with his son, M.J.M., over an extended period of time. The district court sentenced him to 86 months in prison. Martinson appeals, arguing that the evidence was insufficient to support the conviction. We affirm.

D E C I S I O N

When reviewing a challenge to the sufficiency of the evidence in a criminal proceeding, an appellate court's review of the evidence

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

The state charged Martinson and the jury convicted him under Minn. Stat. ' 609.342, subd. 1(h)(iii) (1994), which states that a person is guilty of criminal sexual conduct in the first degree if that person engages in sexual penetration with another person,

the actor has a significant relationship to the complainant, the complainant was under 16 years of age at the time of the sexual penetration, and * * * the sexual abuse involved multiple acts committed over an extended period of time.

Martinson concedes that M.J.M. was under 16 years of age and that, as his father, Martinson has a significant relationship with M.J.M. He argues, however, that the evidence does not show that he engaged in sexual penetration or that there were multiple acts over an extended period of time.

The record contains evidence of Martinson's confession to Carver County Sheriff's Detective Thomas Gibbs, in which Martinson told Gibbs that 10 separate acts of sexual penetration occurred. Martinson told Gibbs that he penetrated M.J.M.'s rectum with his penis on three occasions, that he performed oral sex on M.J.M. on three occasions, and that he made M.J.M. perform oral sex on him on four occasions. Martinson told Gibbs that these acts occurred late at night in his townhome, but that he could not remember the exact dates and times.

Under Minn. Stat. ' 634.03 (1994), "[a] confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed * * * ." The section "discourages coercively acquired confessions and makes the admission reliable." In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984). The state must offer corroborating evidence to "bolster the confession by independent evidence of trustworthiness." Id. The evidence does not need to corroborate all or any of the elements individually, but should provide "`independent evidence of attending facts or circumstances from which the jury may infer the trustworthiness of the confession.'" Id. (quoting Smoot v. United States, 312 F.2d 881, 885 (D.C. Cir. 1962)).

Travis Freeman testified that he heard sounds he believed to be two separate acts of sexual intercourse between Martinson and M.J.M. Freeman testified that he heard "moanings you would hear if you were having sexual relationships" coming from Martinson's townhome at approximately 2:00 a.m. He testified that he has not heard the type of groan he heard coming from Martinson's townhome in any context other than sexual intercourse. Freeman heard M.J.M. saying, "[N]o, stop, that hurts, ouch." The sounds lasted approximately three minutes and then Freeman heard someone walking down the stairs in Martinson's townhome. When a person walked back up the stairs about a minute later, Freeman heard M.J.M. saying, "[O]h no, not again," and heard Martinson talking in a calm voice, saying, "[I]t's okay, it's okay." He then heard M.J.M. saying, "[O]h my God, it hurts."

Child protection social worker Carole Cole testified that she interviewed M.J.M. at his school. When Cole first began speaking with M.J.M., M.J.M. was "full of smiles." When she asked M.J.M. if anyone had ever touched him in a way that made him feel unsafe or uncomfortable, M.J.M.'s demeanor changed. He responded to Cole's question in the negative, but he put his head down and became "teary-eyed." Detective Gibbs testified that when he asked M.J.M. questions about sexual contact and about whether someone had told him not to talk about having experienced sexual contact, M.J.M. appeared to fight back tears and "his chin quivered."

The record shows that during the interview in which Martinson confessed to Detective Gibbs, Gibbs asked Martinson if he thought a person who sexually abused a child would deserve a second chance. Gibbs testified that Martinson at first stated, "[I]f I got help," and then became very flustered and said, "[I]f whoever did it got help."

Dr. Michelle London testified that she examined M.J.M. at Minneapolis Children's Hospital. She testified that M.J.M.'s physical condition was normal, but that his anal sphincter opened further than she would normally expect. Dr. London testified that this symptom is associated with neurologic or neuromuscular problems, constipation, or sexual assault. Dr. London testified that M.J.M. had no history of neurologic or neuromuscular problems or constipation. She testified that her findings after examining M.J.M. are not inconsistent with the possibility of sexual assault.

Social worker Deborah Conley testified that she spoke with M.J.M. after his physical examination. When Conley asked M.J.M. if he understood why he was there, M.J.M. said that it was regarding something that had happened a few nights earlier. When Conley asked M.J.M. to elaborate, M.J.M. told her that his father had been drinking a lot of beer during the previous three weeks and that his father would come into his room at night. M.J.M. told Conley that it "felt kind of weird." When Conley asked M.J.M. what felt weird, he refused to elaborate but said that his father told him, "[Y]ou know what's been going on for the past few days, don't tell anyone."

From this evidence, the jury could infer the trustworthiness of Martinson's confession that he engaged in multiple acts of sexual penetration of M.J.M. As a result, Martinson's confession to Detective Gibbs is sufficiently corroborated under section 634.03 with regard to whether multiple acts of sexual penetration occurred.

Martinson argues, however, that even if the jury could conclude that multiple acts of sexual penetration occurred, the record does not show that the acts occurred over an extended period of time. The jury could have concluded that the multiple acts of penetration occurred over an extended period of time from the evidence that M.J.M. told Conley that during the previous three weeks Martinson had been drinking a lot of beer and that he would come into M.J.M.'s room at night and it "felt kind of weird." Further, the jury could have inferred that the acts took place over an extended period of time from Martinson's admission to Detective Gibbs that there were 10 different incidents.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.