This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2569

State of Minnesota,

Respondent,

vs.

Jason Dewayne Schwartz,

Appellant.

Filed October 14, 1997

Affirmed

Amundson, Judge

Kandiyohi County District Court

File No. KX-96-521

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)

John M. Stuart, State Public Defender, Patricia Rettler, Special Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Huspeni, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant Jason Dewayne Schwartz challenges his convictions for two counts of second-degree criminal sexual conduct, arguing that there was insufficient evidence. We affirm.

FACTS

Appellant Jason Dewayne Schwartz, who was 22 years old in the spring of 1996, occasionally babysat for his neighbors' three children, including four-year-old S.E. On March 9, 1996, Schwartz babysat the children. The next day, S.E. told her mother that she didn't want Schwartz to babysit anymore "because he was mean"; when S.E. would not elaborate, her mother did not pursue it. On March 14, 1996, Schwartz babysat again. The next morning, S.E. told her mother that she didn't want Schwartz to babysit her because he was mean and because he "picked her butt." Her mother asked S.E. what she meant by "butt," and S.E. pointed to her genital area. S.E. told her mother that Schwartz "picked her butt" more than once while making her sit on his lap.

That night, S.E.'s parents took her to an emergency room and contacted the sheriff's department. S.E. talked to Deputy Doug Magnuson, and was examined by Dr. Judith Snook, a pediatrician trained in child sexual abuse. In response to Dr. Snook's questions, S.E. explained through words, gesturing with her own body, and using pictures that Schwartz had fondled S.E.'s upper genital/clitoral area and that Schwartz had forced S.E. to stroke his penis. A few days later, Detective Tony Cruze conducted a taped interview with S.E., who again stated that Schwartz "picks her butt," which she demonstrated by fondling her genitals.

Schwartz was charged with two counts of second-degree criminal sexual conduct pursuant to Minn. Stat. § 609.343, subd. 1 (a) (1994), which is sexual conduct when the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. The jury found Schwartz guilty of both counts of second-degree criminal sexual conduct. This appeal followed.

D E C I S I O N

Sufficiency of the Evidence

On an appeal challenging the sufficiency of the evidence, this court's review is limited to determining whether the evidence, when viewed in the light most favorable to the verdict, was sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that "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).

Schwartz asserts that the state's evidence was insufficient to support his convictions because there was inadequate corroboration of S.E.'s testimony. Schwartz especially emphasizes the lack of medical evidence--Dr. Snook testified that there was no genital bruising and that S.E.'s hymen was intact--to corroborate S.E.'s claims.

These arguments are meritless. Minnesota case law establishes that convictions may rest upon the testimony of a single credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). The jury is in the best position to determine the credibility and weight given to a witness's testimony. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). More specifically, statutory law dictates that the testimony of a criminal sexual conduct complainant need not be corroborated. See Minn. Stat. § 609.347, subd. 1 (1996).

S.E.'s testimony was, in fact, corroborated by the testimony of S.E.'s mother, Deputy Magnuson, Dr. Snook, and Detective Cruze. Given that the alleged sexual conduct did not include any type of penetration or other type of injury-producing force, Schwartz's assertion based on the lack of medical corroboration, is baseless.

Affirmed.

Dated: October 8, 1997

______________________________________________

Judge Roland C. Amundson