John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

John J. Muhar, Itasca County Attorney, W. James Mason, Assistant County Attorney, Itasca County Courthouse, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for Respondent)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.

Juvenile appellant C.M.W. challenges his delinquency adjudication claiming that the evidence was insufficient to prove him guilty of the underlying offense, third-degree criminal sexual conduct. We affirm.

Friday evening, M.O. called his girlfriend, complainant A.P., and asked her to join them the next day. On Saturday, complainant arrived and joined the boys in their cabin. The four of them spent the evening talking and drinking beer. Complainant became tired and went to lie down in the bedroom. Sometime later, M.O. came into the bedroom where complainant was sleeping lightly and the two had sexual intercourse. M.O. returned to the adjoining room, but complainant remained in the bedroom where she overheard W.B. tell M.O. that he let M.O. "tax his girlfriends all the time" and he "could do it too because [complainant] wouldn't remember it."[1]

At the trial, complainant testified that sometime after overhearing the boys' conversation she again had sexual intercourse; initially she believed it was with M.O., but she later realized it was with W.B. Complainant also testified that thereafter appellant, using a condom, penetrated her vagina with his penis. The district court heard conflicting testimony from the others involved. M.O. testified that he never saw the other two boys have sex with complainant, but stated that he was upset with complainant because she was "all over" W.B. and she took her shirt off for him. Although W.B. initially denied having sexual intercourse with complainant, W.B. testified at the trial that he did have consensual sexual intercourse with her.

1. Appellant claims that the evidence is insufficient to establish that he sexually penetrated complainant. He concedes that the testimony of the victim in a sexual assault case need not be corroborated. Minn. Stat. § 609.347, subd. 1 (1996). Nonetheless, relying on complainant's testimony that (1) the bedroom was dark and (2) she could not really see the boys, appellant contends that complainant had no basis for her belief that he penetrated her.

By his argument, appellant challenges complainant's ability to observe him and thereby attempts to undermine her credibility. Under our standard of review, however, we must assume that the district court found complainant's testimony credible and believed her testimony. See Merrill, 274 N.W.2d at 111. Complainant testified that appellant penetrated her with his penis. Moreover complainant stated that she could identify appellant "[b]ecause [he] had a condom" and she consistently identified appellant as the person who had penetrated her following her sexual intercourse with W.B. Viewing this evidence in the light most favorable to the state, we conclude the evidence supports the district court's finding that appellant sexually penetrated complainant.

2. Appellant further argues that the evidence is insufficient to establish that complainant was "physically helpless" at the time of the incident. Appellant contends that complainant was able to communicate nonconsent because (1) although she was under the influence of alcohol, she was aware of what she was doing, (2) she was able to consent to sex with M.O., (3) she repeatedly communicated to appellant her lack of consent, and (4) nothing prevented her from communicating.

A person commits third-degree criminal sexual conduct if the actor engages in sexual penetration with another person and

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) (1996). "Physically helpless" is defined as meaning

that a 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 (1996) (emphasis added).

Viewing the record in a light most favorable to the state and resolving all inconsistencies in the state's favor, the record demonstrates: (1) complainant had approximately four cans of beer that evening but ate little or nothing; (2) she had difficulty walking and her speech was slurred; (3) she was fatigued and half-asleep at various times; (4) M.O. described complainant as "out of it totally" and thought that she passed out after they had sex; (5) when W.B. first got on her, complainant mistook him for M.O.; (6) complainant did not know what was going on until appellant got on her; (7) she attempted to push appellant off, but said nothing; (8) she was only able to communicate after appellant got off her; and (9) she was scared. Based on this evidence, the district court expressly found that complainant was "under the influence of alcohol and fatigued."

Furthermore, appellant's knowledge of complainant's helplessness can be inferred from the statement complainant overheard while the boys were talking in the adjoining room--W.B. could "tax" M.O.'s girlfriend because complainant "wouldn't remember it." Given this record and the district court's findings, we conclude the district court could reasonably infer that complainant was unable to communicate nonconsent and that she was "physically helpless."

Affirmed.

[ ]¹ W.B. and M.O. testified that "tax" means to have sexual intercourse.