This opinion will be unpublished and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


State of Minnesota,


Gerald Bryan Becker,

Filed September 21, 1999
Randall, Judge

Rice County District Court
File No. K2-97-1576

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Meredith A. Erickson, Acting Rice County Attorney, Courthouse, Faribault, MN 55021 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of third-degree criminal sexual conduct following a trial to the court. He asserts that the evidence was insufficient to support his conviction. He argues that the state failed to prove beyond a reasonable doubt that the complainant did not consent and failed to prove that sexual penetration was accomplished by force or coercion. We affirm.


K.H., a 16-year-old female, first met appellant, Gerald Bryan Becker, on December 12, 1997, at a Mankato coffee shop. The next evening, both K.H. and appellant again went to the coffee shop. That evening, appellant joined K.H. and her friends at their table. K.H. gave appellant her phone number, and he gave her his pager number. They made plans to go for a drive the next day.

On December 14, K.H. paged appellant, and he came to her house to pick her up. They drove to Faribault and parked in Faribault's Wilderness Park. They each had a beer, then appellant began tickling K.H. and said he wished she was 18. After holding hands for a time, appellant grabbed K.H.'s thigh. K.H. asked him to stop, and he did. Appellant then grabbed K.H.'s head and kissed her. When appellant reached his hand into K.H.'s crotch area, K.H. told him to stop. He stopped, but attempted to touch her genital area approximately two more times. Each time she asked him to stop, and he complied. Eventually, appellant climbed between the car's bucket seats and got into the back seat. K.H. told him she did not want to get in the back seat with him and said, "You know what happens in the back seat." He responded, "Yeah, I know, and it won't happen." He then grabbed her arm and started to pull her into the back seat. She testified that although she crawled over the console between the front seats and got into the back seat, she felt that she was forced to do so because he twisted her arm, causing her pain.

Once they were both in the back seat, appellant grabbed K.H.'s head again and started kissing her. Next, he grabbed her hips and pulled her towards him so that she was lying on the back seat. He kissed her stomach, then lifted her bra and began kissing her breasts. He asked her to touch him back, and she responded by putting an arm on his back. He then removed one of her boots, took off one leg of her pants and underwear, and began inserting his finger into her vagina and performing cunnilingus on her. He next unzipped his pants, removed his penis, and began rubbing it against K.H.'s genitals. K.H. eventually said, "No," and pushed appellant. He stopped and said, "See, I'm not one of the bad guys, you know, I stopped." K.H. testified that she wanted to tell him to stop earlier, but she was frozen and shaking.

K.H. told appellant that she had been sexually assaulted before and that his actions were "really creeping [her] out." Appellant hugged her and got back into the front seat while she got dressed. After dressing, she climbed into the front seat and smoked a cigarette. Appellant and K.H. went for a walk around the park and stopped to eat before returning to Mankato, where appellant dropped K.H. off at her house.

After returning home, K.H. called a friend and told her friend that she had been raped. Her friend suggested K.H. call the police, which K.H. did. K.H. was eventually sent to the hospital, where the emergency room doctor noted tenderness in K.H.'s shoulder, upper arm, and elbow. The doctor also observed a small bruise on her elbow.

Appellant was charged with criminal sexual conduct in the third and fourth degree. After a bench trial, the district court determined that appellant committed both offenses but, noting that fourth-degree criminal sexual conduct is a lesser-included offense of third-degree criminal sexual conduct, entered a conviction on only the third-degree criminal sexual conduct charge. The district court sentenced appellant to 108 months.


On appeal, the reviewing court applies the same standard of review to bench trials and jury trials. State v. Lehikoinen, 463 N.W.2d 770, 772 (Minn. App. 1990). The appellate court must limit its review

"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 [trier of fact] to reach the verdict which [it] did."

Id. (quoting State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)) (alteration in original). "[T]he reviewing court must 'assume the [trier of fact] believed the state's witnesses and disbelieved any contrary evidence.'" Id. (quoting State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988)) (alteration in original).

I. Consent

Appellant first argues that the state failed to prove beyond a reasonable doubt that K.H. did not consent to sexual activity with him. See State v. Heinzer, 347 N.W.2d 535, 537 (Minn. App. 1984) (recognizing state must prove beyond reasonable doubt that defendant engaged in sexual conduct with complainant without her consent), review denied (Minn. July 26, 1984).

Consent is defined as

words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.

Minn. Stat. § 609.341, subd. 4(a) (1998).

K.H. did testify that when appellant kissed her, she kissed him back. While he was kissing her breasts, he asked her to touch him, and she responded by putting her arm around his back. However, K.H. was certain that when appellant began taking off her pants and underwear, she did not assist him or raise her hips to permit him to remove her clothing. She testified that when he inserted his finger and tongue in her vagina she was frozen and that when he began rubbing his penis against her she was frozen and shaking.

Under Minnesota law, failure to resist does not constitute consent. See Minn. Stat. § 609.347, subd. 2 (1998) (stating in criminal-sexual-conduct prosecution "there is no need to show that the victim resisted the accused"); Heinzer, 347 N.W.2d at 537 ("[I]t is not required that the complainant use physical resistance in refusing to submit to an act of sexual penetration by force."). Consent requires words or overt acts "indicating a freely given present agreement to perform a particular sexual act with the actor." Minn. Stat. § 609.341, subd. 4(a) (emphasis added). Appellant waived a jury and agreed to try this case to the court, making the district judge the finder of fact and the weigher of credibility. It is possible other fact-finders may have gone the other way. This record is sufficient to support a verdict holding that K.H. did not freely give a present agreement to appellant to perform a particular sexual act on her. With that finding of fact upheld, the evidence is sufficient to support the district court's conclusion that K.H. did not consent to appellant's sexually penetrating her.

II. Force or Coercion

Appellant argues that the state failed to prove that sexual penetration was accomplished by force or coercion. See Minn. Stat. § 609.344, subd. 1(c) (1998) (stating person guilty of third-degree criminal sexual conduct if person uses force or coercion to accomplish penetration of another). The district court found that appellant used coercion to accomplish penetration and did not address whether penetration was accomplished by force. Thus, we only consider whether the record supports the district court's finding of coercion. If it does not, the conviction must be reversed.

Coercion is defined as

words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.

Minn. Stat. § 609.341, subd. 14 (1998).

Appellant grabbed K.H.'s arm and pulled her into the back seat of the car. K.H. testified that he twisted her arm when he pulled her and that it was painful. She also testified that once she was in the back seat, she was held down by appellant, who was on top of her and who was bigger and stronger than she was. When asked at trial if she was afraid during the incident, K.H. stated that she was because she "had an experience like that before with a different person." When asked by the prosecutor why she was afraid of appellant, specifically, she responded:

I had that -- when I looked into his eyes I didn't see anything in there at all. And the look that he had just, I don't know, something that you don't see in, you know, people that you walk down, you know, you meet them on the street. They have something in their eyes, I don't know how to describe it, but there was just nothing there.

This statement by itself may not have supported a finding of coercion. But, combined with appellant's use of force to get K.H. in the backseat and his use of his body to keep her there, K.H.'s fear was reasonable. See State v. Gamez, 494 N.W.2d 84, 87 (Minn. App. 1992) (upholding third-degree criminal sexual conduct conviction where complainant testified she was frightened by "crazed" look on defendant's face, she told defendant to stop but he continued advances, and he held her down while assaulting her), review denied (Minn. Feb. 23, 1993). On this record, the evidence was sufficient to support the district court's finding that appellant used coercion to accomplish penetration.

Because we conclude that the evidence supports the district court's findings that K.H. did not consent and that appellant used coercion, we uphold appellant's conviction of third-degree criminal sexual conduct.