This opinion will be unpublished and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

A05-1477

 

State of Minnesota,

Respondent,

 

vs.

 

Mitchell Gerald Nelson,

Appellant.

 

Filed September 5, 2006

Affirmed

Kalitowski, Judge

 

Douglas County District Court

File No. K8-04-411

 

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

 

Christopher Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (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

KALITOWSKI, Judge

Appellant Mitchell Gerald Nelson argues that the evidence was insufficient to support his conviction of third-degree criminal sexual conduct because the evidence did not establish that the victim was physically helpless or that appellant knew or had reason to know that she was physically helpless.  We affirm.

D E C I S I O N

When considering a claim of insufficient evidence, this court’s review is limited to a careful assessment of the record to determine “whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000) (quotation omitted).  When reviewing the record, this court must view the evidence in the light most favorable to a conviction.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Determining the weight and credibility of witness testimony is a matter for the jury.  Id.  We must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  Id.

Sexual penetration of another constitutes criminal sexual conduct in the third degree if “the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.”  Minn. Stat. § 609.344, subd. 1(d) (2002).  A person is “physically helpless” if that person is “(a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.”  Minn. Stat. § 609.341, subd. 9 (2002). 

            Here, complainant M.R. was appellant’s friend and ex-girlfriend.  On March 24, 2004, M.R. and appellant met for breakfast and then went to appellant’s apartment to watch a video.  After arriving at the apartment, appellant and M.R. smoked marijuana.  M.R. testified that she felt the effect of the marijuana immediately, in that the room started spinning and she felt dizzy and nauseous.  She lay down on a sofa while appellant continued to smoke marijuana with two other men.  M.R. then fell asleep.  After falling asleep, M.R. testified that she intermittently woke up to appellant and two other men engaging in various acts of sexual penetration of her body.  M.R. explained that she was initially able to tell the men to stop and that they were hurting her, but was unable to move or speak throughout most of the encounter. 

            After the men stopped, M.R. said that appellant shook her awake.  M.R. left appellant’s apartment and reported the incident to police that afternoon.  M.R. then went to the emergency room, where a nurse examined her using a sexual assault kit.  Vaginal and perineal swabs indicated at least two DNA contributors, with appellant’s DNA being the predominate profile.   

Appellant argues that there was insufficient evidence to prove that M.R. was “physically helpless” because she was able to relay everything that occurred to her, was able to decline the men’s initial overtures, and was able to pull up her pants at one point.  But this court has interpreted the definition of “physically helpless” as applying to a situation where “the complainant felt helpless,” because of a physical condition, “to stop the attack.”  State v. Griffith, 480 N.W.2d 349-50 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  In Griffith, the complainant testified that although she was awake during the attack and could feel the appellant penetrate her, she was unable to voice her nonconsent or withdraw from the attack, as she was heavily intoxicated.  Id. This court reasoned that from complainant’s testimony that she “couldn’t say anything” and that she “didn’t know what to do,” the jury “could have inferred that this ‘helplessness’ was due to her ‘physical condition’ – drunkenness, fatigue, sickness – of which the appellant was aware.”  Id. at 350 (emphasis omitted). 

Here, M.R. testified that not long after she smoked marijuana, she began to feel dizzy, nauseous, and exhausted.  And during her description of the attack, she testified that (1) had she been sober, she would have left when appellant and another man began touching her inappropriately; (2) due to the effects of marijuana, “it took every ounce of strength that [she] had” to tell the men to leave her alone initially; (3) she wanted to tell the man digitally penetrating her to stop but “wasn’t able to say anything;” and (4) during vaginal and anal penetrations, she wanted to get up, but was unable to do so.  M.R. also testified that “[t]here [were] several . . . points . . . that [she] wanted to say something, that [she] wanted to do something, and [she] physically couldn’t.”  Thus, although M.R. was awake for portions of the attack, the jury, like the jury in Griffith, could have inferred that she was physically helpless due to the effects of marijuana. 

Appellant also argues that the evidence was insufficient to convict him because appellant and the two codefendants offered consistent accounts of the incident indicating that M.R. was a willing and coherent participant in their sexual activities.  But “assessment of witness credibility is a jury function.”  State v. Reese, 692 N.W.2d 736, 741 (Minn. 2005).  The jury has the exclusive role of resolving conflicting testimony because the jury has the opportunity to observe the demeanor of the witnesses and weigh their credibility.  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).  

            Finally, appellant argues that the evidence was insufficient to establish that he knew or had reason to know that M.R. was physically helpless.  He contends he was without reason to know she was helpless because he had smoked marijuana with her in the past without her becoming incapacitated and because, after smoking marijuana on the morning at issue, she was able to talk with the three men and to walk to the bathroom. 

But the jury evaluated all of the evidence and found that M.R. was physically helpless and that appellant knew or had reason to know that she was physically helpless.  And M.R.’s testimony supported this finding.  Thus, under the applicable standard of review, we must assume that the jury believed M.R.’s testimony and disbelieved that she was a coherent and active participant, as appellant and his codefendants maintained.  When viewed in a light most favorable to the conviction, the evidence supports the conclusions that M.R., because of her condition, felt helpless to stop the attack against her and that appellant knew or had reason to know of her condition.  We conclude that the evidence was sufficient to convict appellant of criminal sexual conduct in the third degree.

            Affirmed.