This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1274

 

State of Minnesota,
Respondent,

vs.

John Clark Wosika,
Appellant.

 

Filed August 8, 2006

Affirmed

Peterson, Judge

 

Hubbard County District Court

File No. KX-03-230

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Mary R. McKinley, Assistant Attorney Generals, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

Gregory D. Larson, Hubbard County Attorney, Second Floor, Hubbard County Courthouse, 301 Court Avenue, Park Rapids, MN  56470 (for respondent)

 

 

Bradford W. Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, St. Paul, MN  55105 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Appellant John Clark Wosika appeals from his conviction of first-degree criminal sexual conduct, arguing that the evidence does not establish penetration, which is an essential element of the offense.  We affirm.

FACTS

            Wosika was charged by complaint with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (1996), based on allegations that between 1995 and 1998, Wosika engaged in sexual penetration with a boy under the age of 13. 

            At Wosika’s jury trial, the victim, J.P., who was 19 years old at the time of trial, testified that he moved in with Wosika at the age of 9 or 10 because of instability in J.P.’s home.  J.P. and his mother knew Wosika because he owned the local hardware store.  J.P. and his older brother often hung out with other boys at the hardware store, and Wosika took the boys on fishing and camping trips.  Eventually, J.P.’s older brother moved in with Wosika, and J.P. moved in a short time later.   

            J.P. testified that the sexual contact began within a few months after he moved in with Wosika.  J.P. testified that the sexual contact started with a “hand job” and “masturbation,” and within 6 months escalated to “oral sex.”  When asked if Wosika performed “oral sex” on J.P., and if J.P. performed “oral sex” on Wosika, J.P. answered, “Yes, sir.”  J.P. testified that approximately one year after moving in, he performed “anal sex” on Wosika.  When asked when the “anal intercourse” happened, J.P. answered that it occurred during the winter.  No other evidence describing the sexual activity that occurred between Wosika and J.P. was offered.

            The jury found Wosika guilty, and the district court sentenced him to 86 months in prison.  This appeal followed.

D E C I S I O N

            When reviewing a challenge to the sufficiency of the evidence, this court is limited to determining whether the jury could reasonably find the defendant guilty of the offense based on the evidence in the record and the legitimate inferences that can be drawn from the evidence.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  This court views the evidence in the light most favorable to the verdict and assumes that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  Id.  A jury verdict will not be disturbed if the jury, 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.  Id.

A person is guilty of first-degree criminal sexual conduct if the person engages in sexual penetration with a complainant who is under 13 years of age and the person is more than 36 months older than the complainant.  Minn. Stat. § 609.342, subd. 1(a) (1996).  Sexual penetration means “sexual intercourse, cunnilingus, fellatio, or anal intercourse” or “any intrusion however slight into the genital or anal openings . . . of the complainant’s body by any part of the actor’s body or any object used by the actor for this purpose.”  Minn. Stat. § 609.341, subd. 12(1), (2)(i) (1996). 

Wosika was charged with committing acts of sexual penetration against J.P.  The district court instructed the jury that sexual penetration includes “any contact between the penis of one person and the mouth, tongue or lips of another person,” “any intrusion, however slight, of the penis of one person into the anal opening of another person,” and “any intrusion, however slight, of any part of one person’s body (or of any object held by one person) into the genital or anal openings of another person’s body.” 

            Wosika argues that J.P.’s testimony, which described J.P.’s sexual activity with Wosika as “oral sex” and “anal sex” was insufficient to prove penetration.  Penetration is an element of first-degree criminal sexual conduct, but the conviction may be based on the testimony of one witness, and no corroboration is required.  State v. Perez, 404 N.W.2d 834, 839 (Minn. App. 1987), review denied (Minn. May 20, 1987).  The supreme court has explained that:

            The general view is that “proof of penetration need not be in any particular form of words,” and there are many cases saying that testimony by a complainant that the accused had “sexual intercourse” or “intercourse” with her or “raped” her is sufficient, if believed, to establish penetration. . . .

 

            Of course, testimony such as this has to be considered not in the abstract but in the context of the particular case.

 

State v. Steinbrink, 297 N.W.2d 291, 292 (Minn. 1980) (quoting 75 C.J.S. Rape § 71 (1952)) (citation omitted).  The supreme court held in Steinbrink that the record demonstrated that the 15-year-old complainant knew the meaning of the terms “making love” and “sexual intercourse,” which she used to describe the act of penetration by the defendant, and that the terms were sufficient for the jury to find that penetration occurred.  Id. 

            At the time of Wosika’s jury trial, J.P. was a 19-year-old man who had graduated from high school, had taken college-level courses, and had been active in sports and president of his class.  He was not a child testifying about matters that a child would not be expected to know about.  Although J.P. did not describe the sexual activity in detail or define the terms he used, the jury could reasonably conclude that he knew the meaning of the words he used to describe the sexual activity that occurred.  The jury could, therefore, reasonably infer from J.P.’s use of the terms “oral sex” and “anal sex” that penetration occurred.

            Affirmed.