This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



William Cappard,


Filed July 15, 1997


Huspeni, Judge

Hennepin County District Court

File No. 960222968

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

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

Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.



Appellant alleges that evidence was insufficient to support his conviction for criminal sexual conduct in the fourth degree. Because we find the evidence sufficient, we affirm.


Appellant William Cappard was charged with criminal sexual conduct in the third degree and fourth degree as a result of his actions toward N.R., the 14-year-old sister of his girlfriend, while he visited his girlfriend's home. Appellant waived his right to a jury trial; a bench trial was held.

N.R. testified that while watching movies with her sister and appellant one evening in the basement family room, her sister left the room to answer a telephone call. During the fifteen minute absence of N.R.'s sister, appellant massaged N.R.'s foot, moved his hand up her leg, unzipped her pants, put his hand inside and penetrated her vagina with his finger, and touched N.R.'s breasts over her shirt. N.R. told appellant that this conduct was improper.

N.R. further testified that when her sister returned, the sister and appellant had intercourse on the couch while under a blanket. N.R. was at the far end of the couch, and while appellant was having intercourse with her sister, appellant kept putting his foot on N.R.'s breasts; later appellant grabbed N.R.'s hand and put it on his pants over his penis. N.R. again resisted appellant's advances.

N.R. testified that she did not leave the room or tell her sister what happened because she was scared. The next day N.R. related the incident to a friend at work, and three days after the incident she told another friend at school. Subsequently N.R. related the incident to a school counselor. Police were called, and N.R. related the incident to the investigating officer.

N.R.'s sister, her school counselor, and the investigating officer also testified at the bench trial. N.R.'s school counselor testified that N.R. was agitated, upset, crying, and frightened when she described the incident with appellant. The investigating officer testified that N.R. was "reserved," "sad," and "kind of upset" when he interviewed her.

The officer also testified that he taped an interview with appellant regarding the incident. According to the officer, appellant admitted being at the house, watching movies, observing his girlfriend leave the room, and having intercourse on the couch with the girlfriend upon her return. Appellant stated to the officer that he may have inadvertently touched N.R.'s breast while he was engaging in intercourse, but he denied putting his hand down N.R.'s pants or penetrating her vagina with his finger.

The testimony of N.R.'s sister was consistent with N.R.'s description of watching movies, the telephone call, the sister's intercourse with appellant, the fact that N.R. was sitting at the other end of the couch by appellant's feet, and the fact that N.R. did not tell her sister that night about appellant's actions.

At trial appellant denied having any contact with N.R. while her sister was out of the room, but testified that he may have touched N.R.'s breast while he was having intercourse with the sister; that his foot may have hit N.R.'s knee, shoulder, or breast during an earlier movie when he got up from the couch to use the bathroom. As to the taped interview with the police officer, appellant stated that he had no recollection of telling the officer that his foot may have touched N.R.'s breast during intercourse with her sister and claimed the officer misunderstood what appellant was saying.

The trial court found appellant guilty of criminal sexual conduct in the fourth degree and not guilty of criminal sexual conduct in the third degree.


Appellant argues that evidence to convict him was insufficient because there was no proof that he intentionally engaged in sexual touching. We disagree and find the evidence sufficient to sustain the conviction.

Where there is a challenge to the sufficiency of the evidence, the review on appeal 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 finder of fact to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court will not disturb the verdict if the finder of fact, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proved guilty of the offense charged. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The reviewing court must assume that the finder of fact "believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Appellant argues that the trial court was inconsistent in acquitting him on the offense of criminal sexual conduct in the third degree and convicting him on the charge of criminal sexual conduct in the fourth degree. We find no inconsistency. The trial court concluded that, as to the charge of criminal sexual conduct in the fourth degree (sexual contact with a known juvenile), N.R.'s testimony and accounts of the incident were more credible than appellant's. N.R.'s testimony that appellant touched her pubic area with his hand and touched her breast with his foot during intercourse with N.R.'s sister was corroborated by N.R.'s statements to the school counselor and the police shortly after the incident occurred. In addition, appellant himself testified that his foot touched N.R.'s breast while he was having intercourse with N.R.'s sister. While there was conflicting testimony regarding whether the touching was intentional, the finder of fact was justified in accepting N.R.'s version of the incident. The trial court found that appellant "massaged the victim's breast with his foot," thus rejecting appellant's claim that the touching was accidental or unintentional.

The fact that the trial court concluded that the state failed to prove beyond a reasonable doubt that appellant had sexually penetrated N.R. does not undermine the conclusion that appellant did intentionally touch N.R.'s pubic area. The trial court may have acquitted appellant of criminal sexual conduct in the third degree (penetration) because N.R.'s trial testimony that appellant put his finger into her vagina was uncorroborated.[1] The record does not indicate that N.R. told anyone about appellant putting his finger inside her vagina; thus, unlike the "touching" incidents, there was no corroboration of her trial testimony regarding penetration.


[ ]1Corroboration of a complainant's testimony in a prosecution for criminal sexual conduct is generally not required. Minn. Stat. § 609.347, subd. 1 (1994); State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993). However, absence of corroboration of a complainant's testimony in a prosecution for criminal sexual conduct may well call for a holding in an individual case that there is insufficient evidence on which a fact- finder could find a defendant guilty beyond a reasonable doubt. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977).