Filed September 25, 2007

Affirmed

Randall, Judge

Anoka County District Court

File No. K4-05-7486

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, Saint Paul, MN 55101; and

Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for respondent)

John Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414

Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

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

RANDALL, Judge

On appeal from a conviction and sentence of attempted first-degree criminal sexual conduct, appellant Sydney Vibart Theophil Kingston argues that the evidence was insufficient to support his conviction because the victim denied that sexual conduct occurred until police used a suggestive interviewing technique to obtain an inculpatory statement. Appellant also argues that the district court incorrectly calculated the presumptive sentence for his conviction. We affirm.

FACTS

On July 21, 2005, the Blaine Police Department was alerted to a possible sexual assault of a 12-year-old female resident of a Fridley apartment complex. T. S., a 17-year-old woman who was staying with her brother at the complex, allegedly witnessed the assault. T. S. told the police that in the afternoon on July 20, 2005, she decided to launder her clothes in the laundry room of the complex. As she entered the laundry room to remove clothes from the dryer, T. S. noticed a male resident of the complex, whom she later identified as appellant, and a young girl named M.J.M., who lived with her mother in the complex, in between a hot water heater and a dryer. According to T. S., appellant was kissing M.J.M’s neck, and her skirt was “pushed up” while appellant placed his hand near M.J.M.’s underwear area.

Upon being questioned by police, M.J.M. claimed that appellant forced her against a wall, lifted her skirt and placed his hand down her underwear onto her vagina. M.J.M. also told police that appellant attempted to put his finger inside her vagina, but she told him to stop when T. S. entered the room. She further alleged that appellant told her not to tell anyone about what had occurred and asked her to tell others that they were only talking. Based on these allegations, appellant was charged with attempted first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2004); second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2004); and fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(c) (2004).

At trial, T. S. testified that she was approximately ten feet from appellant and M.J.M. at the time of the alleged assault. T. S. further claimed that, as appellant was leaving the laundry room, he asked her, “Are we cool? You’re not going to say anything. You didn’t see anything.” Shortly thereafter, T. S. asked M.J.M. about the incident after she noticed M.J.M. talking to appellant again outside the complex. M.J.M. told her that appellant was her friend and that she had only been talking to him. After T. S. discovered which apartment M.J.M. and her mother, Roxanne Bour, occupied, she visited Bour and described what had happened. T. S. later called the police.

Bour testified that after T. S. told her what had occurred, she asked M.J.M. what had happened. M.J.M. refused to tell her “because it’s a secret.” Bour further testified that on the night of the alleged incident, M.J.M. was crying in her sleep and she again asked M.J.M. what was wrong. M.J.M. told Bour that she was affected by what had happened earlier that day, but remained unwilling to tell her about the incident because it was a secret.

M.J.M. also testified. She described appellant as a friend who enlisted her help with light chores. M.J.M. stated that, at the time of the alleged assault, she was checking laundry for her mother. Appellant was in the laundry room and asked her to approach him. She testified that appellant proceeded to push her against a water heater, lifted her skirt, and placed his hand on her vagina. M.J.M. claimed she did not initially tell Bour about the incident because she was scared and because appellant instructed her to tell her mother that they had only been talking.

Detective Rokeh testified that he interviewed M.J.M. in her apartment after T. S. reported the alleged incident, and M.J.M. initially denied that she had been assaulted. After Rokeh emphasized the importance of being honest and informed her that he had spoken with T. S. about the incident, M.J.M. offered an account that was consistent with T. S.’s version of the incident. Rokeh then brought M.J.M. to the police station to conduct a videotaped interview.

Appellant testified that he was present in the laundry room at the same time as M.J.M, but denied touching her. Appellant claimed that his purpose in entering the room was to retrieve power-steering fluid from a locker. While appellant stood between a dryer and his locker, M.J.M. allegedly entered the room and told appellant that she had been
injured when another girl pushed her. Appellant claimed that M.J.M. was in the process of showing him a bruise on her stomach when T. S. entered the room.

At the close of trial, appellant was found guilty of all three charges. The district court sentenced appellant to 72 months in prison for attempted first-degree criminal sexual conduct. The two remaining counts were vacated. This appeal followed.

D E C I S I O N

In 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,” was sufficient to allow the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

First, appellant argues that the evidence is insufficient to support his conviction because M.J.M. initially denied that appellant had touched her. We conclude otherwise. Based on the testimony at trial, a jury could reasonably find that appellant was guilty. M.J.M. may have originally told T. S., Bour, and Rokeh that she and appellant were only talking, but she later offered an account that was consistent with T. S.’s. There appear to be logical reasons for her reluctance to report the incident; M.J.M. testified that she was afraid and appellant asked her not to tell.

Appellant also claims that Rokeh’s investigation involved numerous improprieties that necessitate reversal. First, appellant relies on T. S.’s testimony that Rokeh told her during her initial interview that “someone is getting arrested” well before a thorough investigation had been completed. In response to questions about this statement, Rokeh testified that it was taken out of context. Rokeh claimed he qualified the statement by saying “if all the facts are correct . . . it sounds like someone may go to jail.” (Emphasis added.) The jury is in the best position to evaluate the credibility of the witnesses. Moore, 438 N.W.2d at 108. This court must assume that the jury believed Rokeh to the detriment of appellant. Id.

In addition, appellant argues that Rokeh’s interview technique with M.J.M. was unduly suggestive. Rokeh initially interviewed M.J.M. in her apartment. At first, M.J.M. denied that appellant touched her. But after Rokeh emphasized the importance of being honest and informed her that he had spoken with T. S. about the incident, M.J.M. offered a version of events that was consistent with T. S.’s account. Later, Rokeh brought M.J.M. to the police station and conducted a video-recorded interview session that involved leading questions and allegedly suggestive body language and demonstration. Appellant contends that these tactics were inconsistent with the “Cognitive Graphic Forensic Interviewing” technique. Appellant’s attorney conducted a thorough cross-examination of Rokeh that involved scene-by-scene playback of the video and was intended to demonstrate the suggestive nature of the interview. Rokeh claimed his actions were justified because M.J.M. had already provided him with a statement, and the interview was intended only to produce a record of M.J.M.’s previous account of the incident. Rokeh further asserted that leading questions were necessary because M.J.M. had difficulty concentrating and needed to be reminded of the interview topic.

It is arguable that Rokeh did not follow all appropriate procedures in interviewing M.J.M. But the jury had the opportunity to view the video and hear Rokeh’s justifications for the interview procedure. Viewing the evidence in a light most favorable to the verdict, the jury considered the propriety of the interview tactics and their affect on M.J.M. in determining the appropriate weight to give to M.J.M.’s testimony. Moore, 438 N.W.2d at 108. Additionally, there is the corroborative testimony of Bour and T. S., a bystander who had no previous connection to any of the parties to the alleged incident. A reasonable juror could have found, beyond a reasonable doubt, that appellant attempted to engage in first-degree criminal sexual conduct.

II.

Appellant contends that the district court based his 72-month sentence on a misinterpretation of the sentencing guidelines. Appellant believes that the appropriate presumptive sentence for his conviction is 43 months. A district court’s interpretation of the sentencingguidelines is subject to denovo review. State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005). Criminal penal statutes must be construed strictly. State v. Soto, 378 N.W.2d 625, 627 (Minn. 1985). When interpreting penal statutes “all reasonable doubt concerning legislative intent should be resolved in favor of the defendant.” State v. Maurstad, 733 N.W.2d 141, 150 (Minn. 2007) (quoting State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002)).

A defendant should be sentenced according to the sentencing guidelines in effect at the time the crime was committed. Minn. Sent. Guidelines III.F (2004). The sentencing guidelines in effect at the time appellant committed the offense denote that the presumptive sentence for attempted first-degree criminal sexual conduct “is one-half of that found in the appropriate cell of the Sentencing Guidelines Grid [for the completed offense] or any mandatory minimum, whichever is longer.” Minn. Sent. Guidelines II.G (2004). The grid groups first-degree criminal sexual conduct with first-degree assault. See Minn. Sent. Guidelines IV (2004). The corresponding cell applicable to a person convicted of first-degree criminal sexual conduct or first-degree assault with no criminal history provides for an 86-month presumptive sentence. Id. One-half of the cell number is 43 months. However, this does not complete our inquiry because the offense of “Criminal Sexual Conduct, First Degree” is footnoted.

Footnote 2 of the guidelines clarifies that the presumptive sentence for first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. (2)(b) (2004), is a minimum of 144 months. Id. It appears that the footnote was added to distinguish the presumptive sentences for the two offenses, first-degree criminal sexual conduct and first-degree assault, which happened to be grouped in the same row.[1] 144 months does not appear in the cell, but we conclude that by adding the footnote, the sentencing guidelines commission intended for the 144-month presumptive sentence to be read into the cell for purposes of calculating the presumptive sentence for attempted first-degree criminal sexual conduct.

We understand appellant’s argument over the language and structure of the guidelines. This is a close issue, and compelling arguments can be made for either side. But our reading of the guidelines does not lead us to believe that a bona fide doubt or ambiguity exists that entitles appellant to the relief he demands.

Affirmed.

[1] As an aside, we commend the sentencing guidelines commission for its subsequent clarification of this issue. Later versions of the guidelines created a separate grid for sexual offenses, segregating the offense of first-degree criminal sexual conduct from other crimes. Compare Minn. Sent. Guidelines IV. (2004) with Minn. Sent. Guidelines IV (2007).