Lavalle v. Commissioner of Public Safety

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C6-98-751

In the Matter of the Welfare of: C.M.P., Child.

 Filed December 8, 1998

 Reversed

Davies, Judge

Aitkin County District Court

File No. J19750157

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent state)

Bradley C. Rhodes, Aitkin County Attorney, Lisa Roggenkamp Rakotz, Senior Assistant County Attorney, Aitkin County Attorney's Office, Courthouse West Annex, Aitkin, MN 56431 (for respondent state)

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant C.M.P.)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.

 U N P U B L I S H E D O P I N I O N

 DAVIES, Judge

Appellant contends the evidence was insufficient to support his adjudication of delinquency for third-degree criminal sexual conduct. He claims the state failed to prove beyond a reasonable doubt that he knew or should have known that the alleged victim was "physically helpless" as required by statute. We agree and reverse.

 FACTS

A female, A.V., and appellant, C.M.P., both 17 years old, attended a party. Before and during the party, A.V. drank hard liquor and beer and became very intoxicated. C.M.P. also drank beer at the party, but witnesses differed as to how significantly he was affected by the alcohol.

C.M.P. admitted he knew that A.V. was very intoxicated when they had sexual intercourse in a ditch near the party, but he claimed the intercourse was consensual. A.V. testified that they kissed and C.M.P. touched her breasts and vaginal area before he penetrated her. She testified they were both lying on the ground when C.M.P. said, "why don't you get on top and please me," to which she said, "I don't think its right * * * besides you have a girlfriend, I don't think its right, I don't think we should do it." She testified that he then pulled her on top of him and penetrated her, and that she told him "no," and "it wasn't right." She testified, "I tried so hard to get out of it, it was like I didn't have any muscle strength to move. And then finally I rolled off of him and I passed out."

 D E C I S I O N

The state must prove beyond a reasonable doubt every fact necessary to constitute the offense charged in a delinquency petition. In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).

On appeal from a determination that the elements have been proved, an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.

 Id. We view the record in the light most favorable to upholding the determination and assume the fact-finder disbelieved any contrary evidence. Id.

The state charged C.M.P. with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(d) (1996), which states:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:

* * *

(d) the actor knows or has reason to know that the complainant is * * * physically helpless. "Physically helpless" is defined as when a person is:

(a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.

Minn. Stat. § 609.341, subd. 9 (1996). "Consent" is defined as "words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor." Id. at subd. 4 (1996).

When the trial court found the state had proved C.P.M.'s third-degree criminal sexual conduct beyond a reasonable doubt, it implicitly found that A.V. was "physically helpless." Viewing the record in the light most favorable to the adjudication, the evidence does not support this finding. On appeal, the state concedes that "[A.V.] was able to communicate her nonconsent," and the evidence supports this conclusion. The legitimate inference from A.V.'s testimony is that she was able both to withhold consent and to communicate nonconsent. The state did not prove beyond a reasonable doubt that A.V. was "physically helpless." As a result, C.M.P.'s adjudication of delinquency is not adequately supported by the evidence.[1]

 Reversed.

[1] In 1994, the definition of "physically helpless" was changed significantly. The state's argument that, due to A.V.'s drunkenness she was unable to physically resist, appears to rely on the earlier definition. Before August 1, 1994, part (b) of the definition was "unable to withhold consent or to withdraw because of a physical condition." Minn. Stat. § 609.341, subd. 9 (1992) (emphasis added). This court interpreted this as unable to withdraw from the unwelcome physical contact. See, e.g., State v. Peng, 524 N.W.2d 21, 23 (Minn. App. 1994) (holding that "unable * * * to withdraw" meant unable to withdraw from physical contact and stating "[i]f the legislature had intended the term `withdraw' to refer only to withdrawal of consent, it could have used the phrase `withdraw consent.'"). At the time Peng was issued, the legislature had, in fact, already changed the phrase to "unable to * * * withdraw consent because of a physical condition." 1994 Minn. Laws ch. 636, § 31 (emphasis added).