This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-98-289

State of Minnesota,

Respondent,

vs.

Kou Lor,

Appellant.

Filed March 23, 1999

Affirmed

Anderson, Judge

Stearns County District Court

File No. K7-96-461

Michael A. Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)

John M. Stuart, State Public Defender, Paul C. Thissen, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

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

ANDERSON, Judge

Appellant contends that (1) the pool from which appellant's jury was drawn did not reflect a representative cross-section of the community, and (2) the state did not prove appellant's guilt beyond a reasonable doubt. We affirm.

FACTS

Appellant Kou Lor was charged with first-degree criminal sexual conduct under Minn. Stat. §§ 609.342, subd. 1(a), 609.346, subd. 2 (1996). Before the trial, appellant objected to the composition of the jury because no racial minority members were included. Appellant requested, in connection with this objection, that the district court review a brief appellant had submitted in an earlier case where appellant objected to the composition of the jury. Appellant, however, did not offer into evidence a copy of that brief or any evidence regarding the composition of the jury, other than a list of the jury venire in this case. After the district court overruled the objection, appellant waived a jury trial. After a four-day trial, the court found appellant guilty of first-degree criminal sexual conduct and sentenced appellant to 122 months in prison.

D E C I S I O N

I.

"The Sixth Amendment requires that the pool from which a jury is drawn reflect a representative cross-section of the community." Hennepin County v. Perry, 561 N.W.2d 889, 895 (Minn. 1997) (citing Taylor v. Louisiana, 419 U.S. 522, 527-28, 95 S. Ct. 692, 696-97 (1975)). The Sixth Amendment does not, however, guarantee a defendant a jury of a particular racial composition. Id. To establish that the composition of a jury pool fails the requirement that it reflect a fair cross-section of the community, a defendant must make a prima facie showing that (1) the group allegedly excluded is a "distinctive" group in the community; (2) the group in question was not fairly represented in the venire; and (3) the underrepresentation was the result of a "systematic" exclusion of the group from the jury-selection process. Id. at 896 (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668-69 (1979); State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994)).

Appellant argues that because no Asians and no minorities were included in the jury venire for appellant's trial, the state did not provide him with the opportunity for a fairly representative jury, and, therefore, the conviction must be reversed. Appellant's failure to offer any proof of his claim provides no evidence in the record for us to review on appeal. See Minn. R. Civ. App. P. 110.01. (The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any."); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (this court will generally not consider matters not argued and considered in court below). But even if respondent's earlier brief were properly before this court, we also note that the arguments raised in appellant's earlier case were rejected by this court after concluding that appellant had failed to meet the burden of establishing a prima facie case of either underrepresentation or systematic exclusion of Asian Americans. See State v. Lor, No. C2-97-1806, 1998 WL 566822 (Minn. App. Sept. 8, 1998), review denied (Minn. Nov. 24, 1998).

Appellant's only evidence on this appeal is that there were no minorities in the jury pool. This alone is not sufficient to establish that underrepresentation was the result of a systematic exclusion of the group from the selection process. See Perry, 561 N.W.2d at 896 (requiring defendant to establish prima facie case showing that underrepresentation of distinctive group in community was result of systematic exclusion of group from jury-selection process).

II.

In order for a person to be convicted, due process requires that the state must prove every element of the crime beyond a reasonable doubt. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-73 (1970)). When considering a challenge to the sufficiency of evidence, an appellate court "must view the evidence in the record in the light most favorable to the jury's verdict and must assume the jury believed the state's witnesses and disbelieved contrary evidence." Robinson, 539 N.W.2d at 238. "The findings of a trial court, after a waiver of a jury trial, are entitled the same weight as a jury verdict." State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996). A conviction may rest on the uncorroborated testimony of a single, credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). Credibility determinations are within the province of the factfinder. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Appellant argues that the state did not prove beyond a reasonable doubt that appellant sexually penetrated N.H and that when the record is viewed as a whole, it appears that N.H. made up the story about having sex with appellant to impress her friends. To support his argument he relies on the following evidence: (1) N.H. told friends varying accounts of what occurred; (2) N.H. was unable to identify correctly the location of the apartment where they had sex; (3) N.H. had difficulty identifying appellant from a police photo line-up; and (4) she provided inconsistent statements as to whether appellant was able to speak English well.

N.H. testified that she had sex with appellant. Despite N.H.'s failure to identify correctly the location of the apartment where appellant stayed, according to the testimony of an investigator, N.H. provided a description of the inside of the apartment that matched the apartment where appellant stayed. Although N.H. did not immediately pick out appellant from a photo line-up, her final conclusion was correct. Finally, N.H. testified that she thought appellant spoke English well and claimed that she told the investigator the same.

In addition to N.H.'s testimony, A.C., who had introduced N.H. and appellant over the phone, also testified that both N.H. and appellant admitted to her that they had sex. Any inconsistencies in the testimony given by N.H. and by other witnesses are to be resolved in favor of the state. See State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990) (inconsistencies in evidence are resolved in favor of state).

The evidence was sufficient for the trial court to find that appellant committed first-degree criminal sexual conduct.

Affirmed.