Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Kenneth Kohler, Nobles County Attorney, Nobles County Courthouse, 319 Ninth Street, Worthington, MN 56187 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Harten, Judge.

WILLIS, Judge

Appellant James Lee Denoyer challenges his conviction of second-degree criminal sexual conduct, arguing there was insufficient evidence to support the jury's verdict. We affirm.

In December 1997, the state filed a complaint against Denoyer, alleging one count of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (1996). The complaint alleged sexual contact with K.G., who was nine years old at the time of the incident. After a two-day trial, the jury returned a verdict of guilty. The district court sentenced Denoyer to 45 months for his conviction of second-degree criminal sexual conduct, and this appeal followed.

Where there is a challenge to the sufficiency of the evidence, appellate review is

limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted); see also State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury "could reasonably conclude that a defendant was proven guilty"). This court must view the evidence in the light most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved contradictory evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Under Minn. Stat. § 609.343, subd. 1(a) (1996),

[a] person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if * * * :

(a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Id. Sexual contact includes "the intentional touching by the actor of the complainant's intimate parts" with sexual or aggressive intent. Minn. Stat. § 609.341, subd. 11(a)(i) (1996). Intimate parts include a person's buttocks and breasts. Id., subd. 5 (1996).

K.G. testified that (1) Denoyer removed some of her clothing while she was sleeping in an upstairs bedroom at her aunt's house; (2) when she awoke, she was wearing only a shirt and underwear, both of which Denoyer later removed; (3) she told Denoyer to stop, but he put his hands over her mouth and nose; (4) Denoyer touched her chest area, stating that "all he wanted to do was just kiss [her]"; (5) Denoyer laid on top of her and began removing his clothing, moaning while she tried to push him off her; (6) Denoyer turned her over and touched her buttocks; (7) she ran downstairs to tell her aunt what had occurred; (8) Denoyer ran after her and told her to stop or he would hurt her; and (9) Denoyer returned to the upstairs bedroom, dressed himself, and feigned sleep.

At trial, Denoyer testified that K.G. was mistaken about the whole incident, arguing that she fabricated the story. On appeal, Denoyer concedes that he intentionally touched K.G.'s intimate parts but argues that, because of his alleged intoxication, he lacked knowledge of the fact that it was K.G. whom he touched, citing Minn. Stat. § 609.02, subd. 9(3) (1996) (defining intentionally).

"Intentionally" means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, except as provided in clause (6), the actor must have knowledge of those facts which are necessary to make the actor's conduct criminal and which are set forth after the word "intentionally."

Id.; see also id., subd. 9(6) (1996) (providing that intent does not require proof of knowledge of minor's age even though age is essential element of crime). Essentially, Denoyer claims this was a case of mistaken identity, asserting that he merely intended to resume the consensual sexual activity he had begun earlier with K.G.'s aunt.

The defense of voluntary intoxication may be considered in determining a defendant's intent or state of mind. Minn. Stat. § 609.075 (1998). But a defendant must first "offer intoxication as an explanation for his actions." State v. Lopez, 587 N.W.2d 26, 28 (Minn. 1998) (citation omitted); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts generally review only those issues raised before district court). Denoyer did not admit to his actions or raise the defense of voluntary intoxication at trial, and, therefore, his claim of mistaken identity resulting from his alleged intoxication is not properly before this court.

But we nevertheless note that intent is a state of mind and is "generally proved circumstantially--by drawing inferences from the defendant's words and actions in light of the totality of the circumstances." State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (citation omitted). K.G.'s testimony regarding Denoyer's words and actions and the circumstances surrounding the incident provided the jury with a reasonable basis from which to infer Denoyer's intent.

Viewing the evidence in the light most favorable to the state and assuming the jury believed the state's witnesses and disbelieved contradictory evidence, there was sufficient evidence to support the jury's verdict.

Affirmed.