In the Matter of the Welfare of:  D.J.J., Child.

In the Matter of the Welfare of:  D.J.J., Child. A05-1014, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1014

 

 

In the Matter of the

Welfare of:  D.J.J., Child.

 

 

Filed May 16, 2006

Affirmed

Lansing, Judge

 

Washington County District Court

File No. 82-20910Y

 

John Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Douglas Johnson, Washington County Attorney, Janet A. Reiter, Assistant County Attorney, 14949 62nd Street North, Box 6, Stillwater, MN 55082 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court adjudicated DJJ delinquent following a determination that the state proved the allegations in a petition charging him with fifth-degree criminal sexual conduct.  In this appeal from adjudication, DJJ challenges the sufficiency of the evidence to establish that he acted with sexual or aggressive intent.  Because direct and circumstantial evidence supports the district court's findings, we affirm.

F A C T S

            Twelve-year-old KMH and fourteen-year-old DJJ were playing basketball with other friends outside KMH's house in April 2004.  When KMH left the group, DJJ followed her.  He approached her and grabbed her breast through her clothing.  KMH testified that DJJ then followed her into the house where he pushed her onto a couch, climbed on top of her, and began to move up and down.

The Washington County Attorney filed a delinquency petition charging DJJ with fifth-degree criminal sexual conduct.  Following a hearing the district court found that DJJ intentionally touched the clothing covering KMH's breast without her consent.  DJJ appeals from the court's delinquency adjudication, arguing that the evidence is insufficient to show that he acted with sexual or aggressive intent.

D E C I S I O N

Fifth-degree criminal sexual conduct requires nonconsensual sexual contact.  Minn. Stat. § 609.3451, subd. 1(1) (2002).  "Sexual contact" is defined as the intentional touching of another's intimate parts or the clothing covering the immediate area of intimate parts if the action is performed with sexual or aggressive intent.  Id. § 609.341, subd. 11(a)(i), (iv) (2002).  In a juvenile-delinquency proceeding, the state bears the burden of proving each element of the charged offense beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075 (1970).

DJJ concedes on appeal that he touched KMH's breast and that it is an intimate part of her body.  See Minn. Stat. § 609.341, subd. 5 (2002) (defining "intimate parts" of human being to include breast); see also In re Welfare of D.L.K., 381 N.W.2d 435, 437 (Minn. 1986) (concluding that grabbing and pinching victim's breast constitutes sexual contact).  But he disputes the sufficiency of the evidence to show that he acted with sexual or aggressive intent. 

On appeal from a delinquency adjudication, this court is limited to ascertaining whether, given the facts and legitimate inferences drawn from them, the district court could reasonably determine that the state proved each element of the delinquency petition beyond a reasonable doubt.  See Minn. R. Juv. Delinq. P. 13.06 (stating standard of proof); In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (applying general appellate deference standards to juvenile proceeding).  In reviewing a claim of insufficient evidence, we review the record in the light most favorable to the determination and evaluate whether sufficient evidence supports it.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume that the court believed testimony supporting the determination and disbelieved contrary evidence.  S.M.J., 556 N.W.2d at 6.

            The evidence supports the determination that DJJ committed fifth-degree criminal sexual conduct.  The court heard testimony from KMH and four other witnesses.  KMH testified that DJJ grabbed her breast without her consent and "pinched it really hard" for two or three minutes.  The court received into evidence a photograph showing a noticeable bruise on KMH's breast, and KMH testified that the bruise was larger and darker before the date of the photo.  One of the friends who was outside KMH's home on the day of the incident testified that he saw DJJ follow KMH and touch her breast when they were outside the home.

            DJJ argues that the evidence of his intent is circumstantial and insufficient because it also supports his alternative explanation that he was tickling KMH and accidentally touched her breast.  Intent is usually proved by circumstantial evidence.  State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981).  Circumstantial evidence may be gathered from a party's words or actions in light of all of the surrounding circumstances.  State v. Provost, 490 N.W.2d 93, 98 (Minn. 1992).  Because the fact-finder is in the best position to evaluate circumstantial evidence, the district court's determination is entitled to deference on review.  Webb, 440 N.W.2d at 430.

            DJJ did not testify at the hearing and first raised his explanation of accidental touching at the disposition hearing, after the determination of guilt and only when pressed by the court to take responsibility for his actions.  An investigator testified that DJJ had previously denied touching KMH.  In addition to the direct-observation testimony that DJJ pinched KMH's breast, the photographic evidence of the bruise on KMH's breast stands in opposition to DJJ's claim of accidental touching.  When DJJ presented his explanation at the disposition hearing, the court expressly stated that it did not find DJJ credible.  The court could reasonably infer from the evidence that DJJ's contact demonstrated an aggressive intent.  See State v. Ness, 707 N.W.2d 676, 687 (Minn. 2006) (observing that "sexual or aggressive intent can readily be inferred from the contacts themselves").  Further, although the court did not make specific findings on DJJ's conduct inside the house, the record contains direct evidence from three witnesses that his conduct involved behavior of a sexual nature.  From this testimony the court could also reasonably infer that DJJ acted with a sexual intent when he touched KMH's breast before entering the house.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.