This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Joseph Allen Winchester,

Filed August 3, 1999
Short, Judge

Dakota County District Court
File No. K898615

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Lawrence C. Clark, Assistant Dakota County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Parker, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Joseph Allen Winchester was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1998). A jury found Winchester guilty of both counts of criminal sexual conduct, and the trial court sentenced Winchester to 86 months. On appeal from his convictions, Winchester argues: (1) the evidence does not support the jury's verdict; and (2) he was denied a fair trial because of ineffective assistance of counsel. We affirm.



Winchester argues the evidence was insufficient to support his convictions. But, when evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether the jury could reasonably have found the defendant guilty of the charged offenses. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).

The record shows: (1) Winchester's four-year-old daughter testified she saw her father touching his "wiener" while he sat on the living room couch, and that her father touched her "bumpy" in a way that "hurt bad;" (2) Winchester admitted during trial that, on the night of the reported abuse, his daughter got out of bed while he was watching television in his jockey shorts on the living room couch; (3) Winchester's wife testified her daughter reported Winchester put his "wiener" in her "bumpy" and made it "wet;" (4) Winchester's daughter told a Suspected Child Abuse and Neglect case manager from Midwest Children's Resource Center that she saw her father rubbing his "wiener" as he watched an X-rated movie on the living room couch and showed the case manager where Winchester's "wiener" touched the inside of her vagina; and (5) adult books and magazines, pornographic movies, and a file containing over 250 cut-out pictures of vaginas were discovered at Winchester's residence.

Viewing these facts in the light most favorable to the jury's verdict, we conclude Winchester's convictions are supported by the evidence. See Minn. Stat. § 609.347, subd. 1 (1998) (stating testimony of sexual abuse victims need not be corroborated); State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (noting inconsistencies in testimony do not necessarily constitute basis for reversal).


In his pro se appellate brief, Winchester also argues he was denied a fair trial because of ineffective assistance of counsel. But a defendant who claims ineffective assistance of counsel must prove that counsel's performance fell below an objective standard of reasonableness and that, but for counsel's defective performance, the result of the proceeding would have been different. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)); see State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (recognizing strong presumption that counsel provided reasonable professional assistance); State v. Heinkel, 322 N.W.2d 322, 326 (Minn. 1982) (noting defendant bears burden of proving right to new trial).

The record demonstrates: (1) although defense counsel did not have a doctor examine Winchester's daughter, counsel established during trial that Winchester's daughter showed no physical symptoms of sexual abuse; (2) defense counsel effectively cross-examined Winchester's daughter and impeached the testimony of Winchester's wife; and (3) during trial, defense counsel entered the appropriate objections and delivered proper opening and closing statements. After a careful review, we conclude that Winchester was not denied a fair trial because of ineffective assistance of counsel. See State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998) (noting disputes with attorney's trial tactics not basis for ineffective assistance of counsel claim).


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.