State of Minnesota, Respondent, vs. Cecil Allen Bearskin, Appellant.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-1338

State of Minnesota,

Respondent,

vs.

Cecil Allen Bearskin,

Appellant.

Filed April 21, 1998

Affirmed Toussaint, Chief Judge

Hennepin County District Court

File No. 9689685

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

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Foley, Judge.*

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

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

TOUSSAINT, Chief Judge

Appellant Cecil Allen Bearskin was convicted of two counts of first-degree criminal sexual conduct for the sexual molestation of his two stepdaughters, L.T. (age 5) and M.T. (age 7). On appeal, Bearskin challenges the sufficiency of the evidence as to whether there was penetration. Because there is sufficient evidence to support the convictions, we affirm.

D E C I S I O N

Where there is a challenge to the sufficiency of the evidence, our review on appeal 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).

First-degree criminal sexual conduct is defined as:

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

(a) the complainant is under thirteen years of age and the actor is more than thirty six months older than the complainant.

Minn. Stat. § 609.342, subd. 1 (1996). "Sexual penetration" includes "sexual intercourse, cunnilingus, fellatio, or anal intercourse." Minn. Stat. § 609.341, subd. 12 (1996).

`Cunnilingus constitutes sexual penetration if there is an [sic] contact between the female genital opening of one person and the mouth, tongue, or lips of another person, however slight.'

State v. Blom, 358 N.W.2d 63, 64 (Minn. 1984) (quoting CRIMJIG 12.02). "[P]enetration of the vagina is not required for the act of cunnilingus to constitute `sexual penetration' under our statute." Id.

Bearskin argues that the state failed to meet its burden of proving sexual penetration. We disagree.

At trial, L.T. (the younger daughter) testified:

Q Before [Bearskin] went downstairs, what did he do?

A Licked me right here (pointing).

* * *

Q When he licked you, was it bare skin or was it on the clothes?

A Bare skin.

M.T. (the older daughter) testified:

Q Okay. And when [Bearskin] was under the covers, what was he doing?

A Licking me.

Q Okay. And what part of you was he licking?

A My private.

The jury also saw both children indicate on drawings where on their bodies Bearskin had licked them.

Personnel from the Cornerhouse Child Abuse Evaluation Center in Minneapolis interviewed both children. The interviews were videotaped, and the tapes were shown to the jury. During the interview, L.T. stated that Bearskin had pulled off her underwear and licked her on her "private." L.T. then demonstrated with a male and female doll that Bearskin had licked her in her crotch area. During M.T.'s interview, she stated that Bearskin had pulled her shorts and underwear down to her knees and licked her on her "private" (pointing to her crotch). She performed the same scenario with the dolls.

The children's testimony was also corroborated by their mother (Bearskin's wife), who testified:

Q And what did [the children] say happened?

A They said that he took their underwear off and licked them between the legs.

Although the two children did not explicitly state that Bearskin's tongue came into contact with their female genital openings, juries are "entitled to make reasonable inferences from the evidence, including inferences based on their experiences or common sense." State v. Filippi, 335 N.W.2d 739, 742 (Minn. 1983). For a jury to infer from testimony that Bearskin licked her "private" and that Bearskin's tongue had come into contact with each child's genital opening is a reasonable inference. The evidence when viewed in a light most favorable to the conviction was sufficient to permit the jury to reasonably conclude that Bearskin committed first-degree criminal sexual conduct.

Affirmed.