This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Brian John Bybee,


Filed June 1, 1999


Kalitowski, Judge

Crow Wing County District Court

File No. K2972535

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Donald F. Ryan, Crow Wing County Attorney, Lower Level Co. Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

John M. Stuart, State Public Defender, Phyllis J. Kirwin, Special Assistant Public Defender, 6401 University Avenue N.E., Suite 201, Fridley, MN 55432 (for appellant)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Harten, Judge.



A jury found appellant Brian John Bybee guilty of burglary and criminal sexual conduct in the third degree. Appellant challenges the sufficiency of the evidence and contends the district court abused its discretion by not granting a downward departure from the sentencing guidelines. We affirm.



In reviewing a challenge to the sufficiency of the evidence, we determine

whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude the defendant was guilty of the offense charged.

State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (citation omitted).

This court reviews the evidence in the light most favorable to the verdict and assumes the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.

State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996), review denied (Minn. Jan. 21, 1997).

To convict appellant of third-degree criminal sexual conduct, the state was required to prove appellant:

(1) sexually penetrated J.T.;

(2) knew or had reason to know J.T. was physically helpless when the penetration occurred.

Minn. Stat. § 609.344, subd. 1(d) (1998).

Appellant first contends the evidence is insufficient to show he sexually penetrated J.T. because: (1) J.T. did not call anyone for more than an hour after the alleged assault; (2) when J.T. first reported the incident she stated only that she might have been raped; and (3) J.T.'s physical examination turned up no evidence of semen or penetration.

J.T. testified at trial that she awoke with appellant on top of her in her bed, and that appellant's penis was in her vagina. This testimony alone is sufficient because, in sexual assault cases, the victim's testimony is enough to sustain a conviction. Minn. Stat. § 609.347, subd. 1 (1998); State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984). Further, the record shows that appellant told a police officer that he had done "something stupid" and "maybe [I] might have used [my] fingers to penetrate her." Appellant's admission also was sufficient evidence to support the conviction. See Minn. Stat. § 609.341, subd. 12 (1998) (sexual penetration includes any intrusion however slight in the victim's genital or anal openings).

Moreover, J.T.'s delay in calling and her equivocal statement about what had occurred are not inconsistent with appellant's guilt because sexual assault victims often are traumatized and in denial after an assault. Nor is the physical examination evidence determinative in light of the unrebutted expert testimony that the absence of evidence of semen or penetration does not mean that a sexual assault did not occur. Viewed in the light most favorable to the conviction, we conclude the evidence of penetration was sufficient to support the conviction.

Appellant contends the evidence was insufficient to show that J.T. was physically helpless when penetration occurred. We disagree. Appellant contends J.T.'s testimony that she was undressed and assaulted before she awoke was unbelievable. But we must view the facts in the light most favorable to the conviction, and credibility determinations are left to the jury. Further, evidence in the record, including the fact that J.T. went to bed while she had friends in her home, established that J.T. was very tired. We conclude the evidence that J.T. was asleep when penetration occurred is sufficient to uphold the conviction.


Appellant contends the district court abused its discretion by refusing to grant a downward departure from the sentencing guidelines. We disagree.

The district court has great discretion in the imposition of a sentence and the reviewing court cannot substitute its judgment for that of the district court.

State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996). Generally, when the sentence imposed is within the guidelines range, the reviewing court will not review the district court's exercise of discretion. State v. Whittaker, 568 N.W.2d 440, 453 (Minn. 1997). When the district court chooses not to depart from the presumptive sentence, no explanation for the decision is required. State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).

Appellant cites State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982), and contends that because the reasons given for the departure in Trog apply here, he should have received a downward departure. We disagree. Trog does not hold that a defendant who satisfies the Trog factors is entitled to a downward departure. Rather, Trog was an affirmance of the district court's downward departure, which concluded that the court's consideration of appropriate factors was not an abuse of discretion.

Appellant also contends the district court abused its discretion by not following the recommendations based on the court-authorized psychiatric exam. We disagree. A favorable presentence investigative report is not, by itself, a mitigating factor in sentencing determinations. Hamilton v. State, 398 N.W.2d 680, 683 (Minn. App. 1987), review denied (Minn. Mar. 13, 1987). Further, appellant's contention that the district court did not appropriately consider the effects of a reduced sentence on society and the individual defendant is without merit. Appellant cites no authority requiring the district court to base its decision on these factors. Nor did appellant establish that society would be better off if appellant received a shorter sentence.

Finally, appellant cites State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989), contending this is "one of those rare cases in which [the court] is justified in interfering with the trial court's decision not to downwardly depart." We disagree. Unlike Hennum, where the defendant was the victim of years of physical and mental abuse, appellant here offers no evidence to mitigate the seriousness of the offense. We conclude appellant has failed to demonstrate the district court abused its broad discretion.