A05-1128

State of Minnesota,

Respondent,

vs.

John Charles Boudin,

Appellant.

Filed June 13, 2006

Affirmed

Randall, Judge

Stearns County District Court

File No. T2-04-2423

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

John C. Provinzino, Rockville City Attorney, P.O. Box 1556, St. Cloud, MN 56302 (for respondent)

John M. Stuart, State Public Defender, John L. Foley, Assistant Public Defender, 816 West St. Germain Street, Suite 410, St. Cloud, MN 56301 (for appellant)

Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

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

RANDALL, Judge

Appellant challenges his conviction of misdemeanor domestic assault, arguing that the evidence is insufficient to support the conviction. We affirm.

FACTS

This appeal stems from an altercation on December 4, 2004, between John Boudin and his girlfriend, K.S., who lived together in K.S.’s home. K.S. picked Boudin up after work on December 4, and he had been drinking. When they arrived home, Boudin accused K.S. of having an affair. K.S. told Boudin to leave, and at some point she called 911 but hung up before speaking to the operator. The 911 operator called back and spoke with a male and a female, both of whom the operator described to a responding police officer as uncooperative. Boudin eventually left the house, and K.S. locked the door behind him.

According to K.S., Boudin called her several times while he was outside and asked for a jacket. She refused to let him inside the house, and Boudin eventually broke open the door. K.S. called 911 a second time, reporting that she did not want Boudin in her house and that “[h]e shoved me on the floor and hit my head.” Officer Bruce Bechtold, one of the responding police officers, wrote in an incident report that K.S. told him that after Boudin broke open the door, “he grabbed her and pushed her up against the wall, causing the back of her head to hit the wall near the front door.” Officer Bechtold advised another officer that probable cause existed to charge Boudin with domestic assault. K.S. informed Officer Bechtold that she did not want Boudin arrested, and she refused to give a statement. Boudin was transported to jail and charged with domestic assault.

At a bench trial, Officer Bechtold testified consistently with his narrative report. He testified that he did not see any bruises or scratches on K.S. and that he found no damage to the wall that Boudin allegedly pushed K.S. into. K.S. testified that she never feared Boudin, that he did not hurt or threaten her, and that she called 911 only as a threat to get him to leave her house. She testified that her statement to the 911 operator that Boudin had pushed her down was untrue and that at no time had Boudin touched her. She also said, “[W]hen I realized that [the police] were going to arrest [Boudin], I was upset because I love him and I didn’t want him to get arrested.”

Based on the testimony of two of the responding police officers, the 911 recording, and pictures of the damage caused by Boudin to the front door, the district court found Boudin guilty of domestic assault. It also found that K.S. “is in fact a victim and that her testimony here today is not credible in light of the fact that she states that she still maintains a relationship with [Boudin], that . . . he still stays [at her house] on occasion, [and] that she loves him.” Boudin was sentenced to 90 days in jail. This appeal followed.

D E C I S I O N

When considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did. See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); see also Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (stating that the standard of review is the same for jury and bench trials). The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

A person is guilty of misdemeanor domestic assault if he “(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.” Minn. Stat. § 609.2242, subd. 1 (2004).[1] When an element of a crime requires an “intent to cause fear in another,” as the domestic-assault statute does, the “intent of the actor, as contrasted with the effect upon the victim, becomes the focal point for inquiry.” State v. Ott, 291 Minn. 72, 75, 189 N.W.2d 377, 379 (1971). Whether the requisite intent exists is a determination for the fact-finder. Id. “The trial court’s factual findings are subject to a clearly erroneous standard of review.” State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

Boudin argues that under clause (1) of section 609.2242, subd. 1, the state did not prove beyond a reasonable doubt that he committed an act with intent to cause fear of immediate bodily harm. He contends that he broke open the door because it was cold outside and he wanted to get his jacket. The district court made no finding regarding Boudin’s intent but merely stated that “[t]he Court is going to find [Boudin] guilty of domestic assault.”

The record supports the finding that Boudin intentionally inflicted bodily harm upon K.S., satisfying clause (2) of the domestic-assault statute. After calling 911, K.S. told the operator that Boudin “shoved me on the floor and hit my head.” In a narrative statement accompanying his incident report, Officer Bechtold wrote that K.S. told him that Boudin pushed her against a wall, causing the back of K.S.’s head to hit the wall. In a statement to an agent conducting a presentence-investigation report, Boudin said, “I ended up pushing her after she was clinging on me. She fell, I walked out of the house, she locked me out, and called the cops.” The record is sufficient to support the district court’s conclusion that Boudin was guilty of intentionally inflicting or attempting to inflict bodily harm on K.S.

Boudin argues that K.S.’s under-oath trial testimony should be believed instead of her statements to the 911 operator and Officer Bechtold. We understand the argument, but the fact-finder has the exclusive function of judging witness credibility and weighing the evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992); see also State v. Pendleton, 706 N.W.2d 500, 512 (Minn. 2005) (stating that the fact-finder, not the appellate court, “determine[s] the credibility and weight to be given to the testimony of witnesses”). The district court concluded that K.S.’s trial testimony was not credible because “she still maintains a relationship with [Boudin], . . . he stays [at her house] on occasion, . . . [and] she loves him. Her testimony here today is self-serving to try and keep [Boudin] from facing any consequences for this charge.” The district court credited Officer Bechtold’s testimony and statements made by K.S. on the night of the incident over K.S.’s attempt to recant her statements at trial.

Affirmed.

[1] The victim must be a family or household member, which includes “persons who are presently residing together or who have resided together in the past.” Minn. Stat. § 609.2242, subd. 1; Minn. Stat. § 518B.01, subd. 2(b)(4) (2004). Boudin concedes that K.S. is a family or household member under the domestic-abuse statute.