STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1181

State of Minnesota,
Respondent,

vs.

Thomas Charles Thompson,
Appellant.

Filed January 24, 2006

Reversed

Toussaint, Chief Judge

Saint Louis County District Court

File No. K1-04-100551

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Worke, Judge.

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

TOUSSAINT, Chief Judge

This expedited appeal is from a conviction for attempted second-degree criminal sexual conduct. Appellant Thomas Charles Thompson challenges the sufficiency of the evidence. Because we conclude that there was insufficient evidence to support the conviction, we reverse.

FACTS

Thompson was charged with second-degree criminal sexual conduct and attempted first-degree criminal sexual conduct for a 1996 incident in which he was found alone in a house with his girlfriend’s granddaughter, T.W., then four or five years old, who was taking a bath. T.W.’s mother arrived at the house and found the back door locked. When she knocked on the door, Thompson answered, wearing only a pair of boxer shorts that were wet on the sides. He told T.W.’s mother that he was giving T.W. a bath. T.W.’s mother saw T.W. naked in the bathtub, and when she yelled at Thompson he was so taken aback he could hardly speak.

T.W.’s mother did not go to police in 1996 because T.W. said Thompson did not touch her. In August 2003, however, police contacted T.W.’s mother about the incident, and, based on her account, the state charged Thompson.

Thompson moved to dismiss the charges for lack of probable cause. After the district court denied the motion, Thompson waived his right to a jury trial and the matter was tried to the court. At trial, the prosecution amended the complaint, dropping the charge of second-degree criminal sexual conduct and replacing the charge of attempted first-degree criminal sexual conduct with a charge of attempted second-degree criminal sexual conduct. The prosecution called only T.W.’s mother and the police investigator who had taken her statement. The victim, T.W., who was 13 at the time of trial, did not testify.

T.W.’s mother testified that T.W.’s grandmother was providing day care for her. On the day of the incident, when T.W.’s mother met the grandmother on the road, the grandmother told her that T.W. was at her house in the care of Thompson, her boyfriend at the time, and that they were sitting at the table having dinner. When T.W.’s mother reached the grandmother’s house, she found that the back door, the entrance used by the family, was locked. T.W.’s mother testified that she had never been at the house when this door was locked.

When T.W.’s mother peered in the back-door window, she saw food, as well as silverware, on the plates on the table. She pounded on the door, then saw Thompson going from the bathroom to the bedroom. When he came to the door, he was dressed only in boxer shorts. The shorts were “wet on the sides like from – because he was wet and had pulled them on.” Thompson opened the door, and T.W.’s mother yelled at him. She testified, “He was very shaken up. He could barely speak.”

T.W.’s mother testified that, when she entered the house, T.W. was naked in the bathtub. When she asked Thompson why T.W. was in the tub, he replied that he was just giving her a bath. T.W.’s mother testified that she had never given Thompson permission to bathe T.W. When she got T.W. out to the car, T.W.’s mother testified, she asked T.W. if Thompson “had touched her, and she said no.”

The district court issued an order finding Thompson guilty of attempted second-degree criminal sexual conduct. This appeal followed.

D E C I S I O N

Second-degree criminal sexual conduct is committed when the offender, acting with sexual intent, touches the “intimate parts” of a person under the age of 13. Minn. Stat. § 609.343, subd. 1(a) (1996). An attempt is committed when a person “with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime.” Minn. Stat. § 609.17, subd. 1 (1996). Thompson argues that the evidence at trial, showing he was in sole charge of a four- or five-year-old girl while she was naked in the bathtub and he was dressed only in boxer shorts, is insufficient to prove beyond a reasonable doubt that he attempted to commit second-degree criminal sexual conduct. The state concedes that this evidence is insufficient to support Thompson’s conviction.

In reviewing the sufficiency of the evidence, this court conducts a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the factfinder to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The same standard of review applies whether the court or a jury made the determination of guilt. See State v. Ibarra, 355 N.W.2d 125, 130 (Minn. 1984). This court must assume the factfinder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). A conviction based entirely on circumstantial evidence merits stricter scrutiny. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). The circumstantial evidence must form a complete chain that leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. Id. The factfinder, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.

The state’s evidence proved four basic, incriminating facts: (1) Thompson was in sole charge of T.W. while she was naked in the bathtub; (2) Thompson was dressed only in boxer shorts; (3) the back door to the house was locked; and (4) Thompson was flustered when T.W.’s mother confronted him.

Thompson argues that this evidence is insufficient to prove beyond a reasonable doubt that (a) he initiated T.W.’s bath, or (b) that, if he did, he did it with an improper purpose. Thompson also points out that the state had to prove not just that he had a sexual intent in getting T.W. into the bath, but that he acted with the intent to touch her “intimate parts,” and that he completed a substantial step toward that end. See State v. Stevenson, 656 N.W.2d 235, 239 (Minn. 2003) (holding that the specific intent required for an attempt is the intent to commit the particular crime alleged). Thompson argues that the evidence is insufficient to prove these elements beyond a reasonable doubt. We agree.

The state’s circumstantial evidence fails to disprove a rational hypothesis that T.W. initiated her own bath while Thompson was getting dressed or that Thompson put T.W. in the bathtub because she had spilled food or drink on herself. It fails to negate the possibility that T.W.’s grandmother locked the back door, or that Thompson was flustered merely because he was largely disrobed and in the presence of a woman. But most importantly, the evidence fails to prove beyond a reasonable doubt that Thompson took a substantial step toward the completed offense of second-degree criminal sexual conduct, given T.W.’s statement to her mother that Thompson did not touch her.

Most cases of attempted criminal sexual conduct involve a far more substantial step toward completion of the offense. See, e.g., State v. Meemken, 597 N.W.2d 582, 586 (Minn. App. 1999) (holding that evidence that defendant touched child on upper thigh after asking if he could touch her was sufficient to prove attempted second-degree criminal sexual conduct), review denied (Minn. Sept. 28, 1999). It is true that an act may constitute an attempt even if it is not criminal itself. Id. And arguably, if there were sufficient evidence of sexual intent, the act of getting a child undressed for a bath would constitute a substantial step towards committing criminal sexual conduct. But that evidence is not present here.

We conclude that the evidence is insufficient to prove Thompson committed attempted second-degree criminal sexual conduct, and therefore his conviction must be reversed.

Reversed.