John M. Stuart, Minnesota State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge and Harten, Judge.

Questioning both the trial court's sentence and the sufficiency of evidence of his guilt, Ernest Ingram appeals his conviction for first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (1994). We affirm.

Appellant was charged with two counts of first-degree criminal sexual conduct. He was convicted of sexual penetration causing personal injury in violation of Minn. Stat. § 609.342, subd. 1(e)(1) (1994) and sentenced to 237 months, 1.5 times the presumptive sentence. Appellant challenges the sufficiency of evidence for a conviction, the trial court's exercise of sentencing discretion, and several trial court evidentiary rulings.

In reviewing a claim of insufficiency of the evidence, we will affirm if the verdict represents a reasonable conclusion, viewing the evidence in a light most favorable to the state and assuming that the jury believed the state's witnesses and disbelieved contrary evidence, but having due regard for the state's burden of proving appellant's guilt beyond a reasonable doubt. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

The record shows abundant evidence permitting a reasonable jury to convict appellant. This evidence includes: J.A.'s testimony, which the jury evidently credited; testimony from the security guard who first received J.A.'s report of the rape; the testimony of the police officer who responded to the guard's call and who interviewed J.A.; testimony from the sexual assault nurse who examined J.A. at the hospital; photographs of J.A. taken at the hospital showing facial injuries; and J.A.'s torn underwear.

Appellant's assertion regarding the lack of corroboration of J.A.'s testimony is similarly meritless. In a prosecution for criminal sexual conduct, there is no requirement that a complainant's testimony be corroborated. Minn. Stat. § 609.347, subd. 1 (1996); State v. Enger, 539 N.W.2d 259, 262 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995). Still, the absence of corroboration in a particular case may call for a holding that there is insufficient evidence upon which the jury could find the defendant guilty. State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977). For example, if the state's case consisted solely of J.A.'s testimony, it is possible that corroboration would be required. See id. at 700. But that is not the case here. J.A.'s testimony was corroborated by the security guard, the responding officer, and the sexual assault expert. Even if corroboration were required, the requirement was amply met in this case.

The minor inconsistencies in J.A.'s testimony, which appellant cites as proof that she is lying, are inconsequential and were considered by the jury. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (stating that inconsistencies in the state's case do not automatically require reversal of the jury's verdict because the jury considers them in weighing the witnesses' credibility); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (citations omitted) (noting that it is the exclusive function of the jury to weigh the credibility of the witnesses when conflicting testimony is presented). Minor inconsistencies, the supreme court has said, "are a sign of the fallibility of human perception--not proof that false testimony was given at trial." State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (quoting State v. Hanson, 286 Minn. 317, 335, 176 N.W.2d 607, 618 (1970)).

The trial court based its sentencing decision on the victim's vulnerability and on the presence of her two-year-old child in the next room during the assault. Appellant now argues that the upward departure was not justified because J.A.'s child did not witness the assault and because the child was never directly threatened. Appellant's claim is without merit and misstates the law.

The presence of a child in an adjoining room during a sexual assault on the parent contributes to the vulnerability of the parent and is analogous to a reduced physical capacity under Minn. Sent. Guidelines II.D.2.b(1). State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989); see also State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) (stating that a crime does not have to take place in front of a child for the child's presence to be an aggravating factor), review denied (Minn. Jan. 16, 1992). There is no requirement that the assailant threaten the child before the court may treat the child's presence as an aggravating factor for sentencing.

The trial court also departed from the sentencing guidelines because of J.A.'s vulnerability. The victim's vulnerability due to "age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender" may be an aggravating factor under the sentencing guidelines. Minn. Sent. Guidelines II.D.2.b(1); see also State v. Elvin, 481 N.W.2d 571, 576 (Minn. App. 1992) (stating that particular vulnerability of the victim was supported by the record and could be used as the basis for upward durational departure), review denied (Minn. Apr. 29, 1992).

J.A. has a history of psychiatric problems and was admitted to the hospital in 1993 for treatment of depression. In his statement to police, appellant admitted that he thought that J.A. might be taking Valium or Prozac because she was so "spacey" and "laid back." The trial court found J.A.'s vulnerability "clear" based on her testimony and her background--presumably referring to her history of emotional illness and appellant's statements that indicate he was aware of her problems. Thus, the trial court did not abuse its discretion in departing from the presumptive sentence in this case.

We review rulings on evidentiary matters only to determine if the trial court abused its discretion and if any errors substantially influenced the jury to convict. State v. Lonergan, 505 N.W.2d 349, 353 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993); Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). The tape and accompanying transcript to which appellant objects record a conversation between appellant and a police officer after appellant was in custody. In the course of the interview, appellant stated: "Look Sarge, there is no denying that I got a criminal record, but I've never been arrested for this." Appellant asserts that the statement constituted character evidence inadmissible under Minn. R. Evid. 404(a).

There is no evidence that the prosecution offered the tape to show that appellant acted in conformity with the previous bad acts to which he alludes on tape, and the statement about his record was exculpatory in the sense that he was attempting to convince the police that while he may have a criminal record, he was not a sex offender. See State v. Gonzales-Guerrero, 364 N.W.2d 792, 794 (Minn. 1985) (admitting prior statement of defendant because purpose was not to show action in conformity, but to show the jury how defendant tried to escape prosecution). The trial court did not abuse its discretion in admitting the tape.

The decision whether to permit a litigant to recall a witness lies within the discretion of the trial court. State v. Collins, 276 Minn. 459, 473, 150 N.W.2d 850, 860 (1967), cert. denied, 390 U.S. 960 (1968). Appellant believes that the witness would have testified that J.A. telephoned appellant at the apartment and that this testimony was crucial to appellant's case. There is no evidence to support this assertion, and we find no evidence that the court abused its discretion on this tangential matter.

Appellant argues, pro se, that the trial court erred in admitting the testimony of the sexual assault nurse clinician who examined J.A. in the hospital on the night of the assault. Appellant asserts that the nurse's reference to a statistical study regarding the nature of injuries observed in women victims of sexual assault was reversible error, citing State v. Boyd, 331 N.W.2d 480 (Minn. 1983). Boyd is a "statistical probability" case in which a physician testified that a defendant was the father of a child born to a 14 year-old girl, basing this testimony in part on the assumption that the girl would testify that she had sex with the defendant and in part on the statistical probability based on blood tests that the defendant was the father. Id. at 481. The supreme court held that such testimony had to be altered to omit references to the degree of probability that the defendant was the father, because such references undermined the presumption of innocence. Id. at 483.

The nurse who attended J.A. based her testimony on her personal examination of the victim, a study she conducted at Hennepin County Medical Center, and epidemiological studies of assault victims. The testimony merely recounted the known frequency and distribution of such injuries and was not "probability evidence" within the meaning of Boyd. Furthermore, appellant failed to object to this testimony during trial, and he is "deemed to have forfeited his right to have the issue considered on appeal." State v. Wellman, 341 N.W.2d 561, 564 (Minn. 1983).

Affirmed.