This opinion will be unpublished and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

C7-98-1312

State of Minnesota,

Respondent,

vs.

Somvang Sam Phrachansiry,

Appellant.

Filed April 27, 1999

Affirmed

Shumaker, Judge

Benton County District Court

File No. K897987

Mike Hatch, State Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael Jesse, Benton County Attorney, Benton County Courthouse, 531 Dewey Street, Foley, MN 56329 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue S.E., No. 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.

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

SHUMAKER, Judge

Appellant Somvang Sam Phrachansiry challenges his convictions after a jury trial of three counts of criminal sexual conduct in the third degree, arguing that he established the affirmative defense of mistake of age; the jury returned inconsistent verdicts; and the trial court erred in sentencing him for offenses that were part of a single behavioral incident. We affirm.

FACTS

On the evening of August 30, 1997, T.E.W. celebrated her fourteenth birthday with some friends at G.B.'s apartment. Seventeen-year-old G.B. lived there with her boyfriend, the 34-year-old appellant.

T.E.W. testified that, at one point during the party, she went into the kitchen to prepare an alcoholic drink and appellant came in and asked her to step into the hall. She did so, and, once in the hall, appellant asked her to go downstairs with him. When they reached the laundry room, appellant forced her inside, pushed her down, covered her mouth, pinned her arms, and raped her.

She testified that after appellant let her go she went outside to look for her friends. About thirty minutes later, she encountered appellant outside. She testified that he carried her back to the laundry room and raped her again in the same manner as he had done earlier.

The state charged appellant with four counts of criminal sexual conduct in the third degree. At trial, appellant admitted having had sexual intercourse with T.E.W. but contended that it was consensual and that he believed that she was celebrating her sixteenth birthday.

There was conflicting evidence as to T.E.W.'s apparent age. There was also evidence about T.E.W.'s manner of dress, her conduct, and the ages and conduct of her friends.

The jury returned verdicts of guilty on three counts and not guilty on the remaining count. The trial court sentenced appellant on Count IV to 58 months in prison and on Count I to 18 months, to run concurrently.

D E C I S I O N

Claiming that "grave doubts" exist regarding his guilt, appellant argues that the interests of justice require the reversal of his convictions. Appellant argues that he proved, by a preponderance of the evidence, that he believed T.E.W. to be at least sixteen years old at the time of the offenses. Appellant also argues that the jury's verdict finding him not guilty of force or coercion in the first incident under Count II is inconsistent with the jury's finding of guilty by use of force or coercion in the second incident under Count IV. Finally, appellant contends that the court could not properly sentence him for multiple offenses that were part of a single behavioral incident.

I.

A conviction can rest upon the testimony of a single credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). The victim's testimony in criminal sexual conduct cases need not be corroborated. Minn. Stat. § 609.347, subd. 1 (1998); State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984); State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993). The fact-finder determines the weight and credibility of the witness's testimony. State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996), review denied (Minn. Jan. 21, 1997). A jury, as the sole judge of credibility, is free to accept or reject any part of a witness's testimony. State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977).

Appellant argues that he mistakenly believed T.E.W. to be at least 16 years old, based on her own statements, dress, and conduct, and on the ages and conduct of her friends.

The testimony was in conflict as to whether T.E.W. ever lied about or misstated her age. Both appellant and G.B. testified that T.E.W. told some of appellant's friends before the party that she was going to be sixteen. T.E.W. denied ever having said that and testified that she never told anyone she was older than fourteen. T.E.W.'s friends testified that they had never heard T.E.W. tell anyone that she was older than fourteen.

The trial evidence showed that on the night of the party T.E.W. wore a fitted short sleeve shirt and a pair of shorts. She acted the same as or similarly to her friends who ranged in age from thirteen to seventeen.

The court instructed the jury on appellant's affirmative defense of mistake of age and on the burden of proof for that defense.

Questions as to T.E.W.'s apparent age, her representations as to age, and appellant's belief as to her age raised credibility issues for the jury to resolve. Id. The jury obviously believed T.E.W. and rejected appellant's affirmative defense. The record supports the jury's determination.

II.

Appellant next argues that the jury's inconsistency in finding him not guilty under Count II and guilty under Count IV requires reversal of the Count IV conviction. Each of the two counts charged criminal sexual conduct with the use of force or coercion. See Minn. Stat. § 609.344, subd. 1(c) (1996). Count II pertained to the first incident and Count IV to the second. Appellant contends that the first and second incidents were virtually identical and that the verdicts necessarily would have to be identical. Although there were differences between the incidents, each occurred in substantially the same manner and in the same location. But an arguably logical inconsistency between the verdicts will not provide a basis for overturning a conviction if the evidence is sufficient to support the conviction. State v. Brown, 455 N.W.2d 65, 70 (Minn. App. 1990), review denied (Minn. July 6, 1990); Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987). If the jury believed T.E.W.'s version, as it clearly did, the evidence was sufficient to support convictions under both counts. The jury under our system, however, has the de facto prerogative to acquit a defendant despite the evidence. See State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995) (the jury may exercise leniency even if they believe the defendant to be guilty).

III.

Appellant lastly argues that his convictions arose from a single behavioral incident and that the court could properly sentence him for only one of the convictions. Minn. Stat. § 609.035, subd. 1 (1996) (if defendant's conduct constitutes more than one offense, he can be punished for only one).

An appellate court reviews the trial court's determination that the conduct underlying two offenses was not a single behavioral incident for purposes of sentencing to determine whether that decision was supported by the record. State v. Nordby, 448 N.W.2d 878, 880 (Minn. 1989). The trial court's determination, however, will not be reversed on appeal unless it is clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). Among the factors to consider are "the singleness of purpose of the defendant and the unity of time and of place of the behavior." State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). When determining whether multiple offenses arose from a single behavioral incident for purposes of unity in time and place, it must be determined whether the offenses occurred at substantially the same time and place and arose from a continuous and uninterrupted course of conduct. State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989). In State v. Johnson, 273 Minn. 394, 141 N.W.2d 517 (1966), the supreme court emphasized that "apart from the factors of time and place, the essential ingredient of any test is whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective." Id. at 404, 141 N.W.2d at 525 (emphasis is omitted).

In previous cases, the supreme court has found that, although there may be unity in time and place between multiple offenses, they do not necessarily arise out of the same behavioral incident. See State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979) (holding that while offenses both involved coerced sexual intercourse with same fifteen-year-old girl and both occurred in same general place on the same day, the offenses were separated by a period of approximately five hours and neither act bore any essential relationship to the other); State v. Krampotich, 282 Minn. 182, 187-88, 163 N.W.2d 772, 776 (1968) (holding that several crimes were not part of a single behavioral incident where, although all the crimes occurred during the same evening, the period extended two and one-half hours, and, although all the crimes occurred in or by the victim's automobile, the automobile itself was moved from place to place); Bookwalter, 541 N.W.2d at 295 (holding that sexual assault and attempted murder were not part of a single behavioral incident where they occurred in or near the victim's van at two distinct times and places, and that a single common criminal objective failed to underlie both offenses). But cf. State v. Herberg, 324 N.W.2d 346, 349 (Minn. 1982) (holding that two incidents of first-degree criminal sexual conduct committed against the same victim, separated by both time and place, arose out of a single behavioral incident because the defendant's motivation in both incidents was "to satisfy his perverse sexual needs").

Here the evidence reasonably supports the conclusion that the rapes were separate behavioral incidents and were not part of a continuous course of conduct. The first rape was a completed act and appellant then allowed T.E.W. to leave the premises. He did not pursue her and, in fact, he admitted that he had no intent to have any further sexual contact with her. The evidence shows that appellant fortuitously encountered T.E.W. again a half-hour after the first rape and that he committed the second offense spontaneously thereafter. Although the first incident seemed to have been planned to some extent by appellant, the second appeared to be impulsive. There were sufficient differences between the incidents to support the trial court's conclusion that they were separate.

Affirmed.