In the Matter of the Welfare of: C.L.W., Child.

In the Matter of the Welfare of: C.L.W., Child. A04-2059, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A04-2059

 

In the Matter of the Welfare of: C.L.W., Child

 

Filed September 13, 2005

Affirmed

Toussaint, Chief Judge

 

Redwood County District Court

File No. J4-04-50118

    John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michelle Dietrich, Redwood County Attorney, 250 South Jefferson, P.O. Box 130, Redwood Falls, MN 56283  (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant challenges his adjudication of delinquency, arguing that there was insufficient evidence of firstdegree or fifth-degree criminal sexual conduct.  Because the evidence of sexual penetration was sufficient to support the adjudication, we affirm.

FACTS

 

            Appellant C.L.W. (16) had a sleepover with his half-brother, D.S. (9), and two stepbrothers, A.B. (10) and R.B. (6).  After watching a movie together, they went to their bedrooms.  R.B. went to sleep in a bedroom, and the other three boys watched another movie in the adjoining "closet" bedroom. 

            After the second movie, appellant told A.B. and D.S. that he was going to put his penis in R.B.'s mouth.  He testified at trial that he was joking and that he then went to bed in the living room.  A.B. and D.S. testified that they saw appellant leave the closet, and A.B. watched appellant approach the sleeping R.B. while unzipping and unbuttoning his pants.  R.B. testified that appellant put "his weenie up [R.B.'s] mouth" while R.B. was sleeping.  Both A.B. and D.S. testified that appellant returned to the closet and said that he had "got it in."  

            After a court trial, the court determined that the state had met its burden on all three counts: first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2002); attempted first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a), 609.17 (2002); and fifth-degree criminal sexual conduct under Minn. Stat. § 609.3451, subd. 1(2) (2002).  After a hearing, the court issued a dispositional order adjudicating appellant delinquent, which he now appeals.

 

D E C I S I O N

            In the appeal of a delinquency adjudication, this court is "limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination."  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  The reviewing court views the evidence in a light most favorable to the determination and assumes that the factfinder found the state's witnesses credible and disbelieved any contrary evidence.  Id.  The victim's testimony need not be corroborated; but under certain circumstances, the absence of corroboration may demonstrate an insufficiency of evidence.  State v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004) (citing State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977)).  Corroboration may be provided by properly admitted prior consistent statements.  See id.

            The parties stipulated to the requisite age of the victim and the perpetrator; the state was required only to prove the element of sexual penetration.  Minn. Stat. § 609.342, subd. 1(a) (2002).  Appellant argues that the evidence is insufficient because (1) there was only circumstantial evidence that appellant placed his penis in R.B.'s mouth; and (2) R.B.'s description of the sexual contact was vague.  Appellant does not challenge the admission of the videotaped Cornerhouse interview, which is consistent with R.B.'s trial testimony.

            Six-year-old R.B. testified that appellant "stuck his weenie up [R.B.'s] mouth."  He answered, "No, when asked if it felt like appellant's penis "had something covering it."  The next morning, R.B. told A.B. and D.S. about the incident.  Later, he also told his mother, father, and a police officer. 

            A.B. and D.S. corroborated R.B.'s testimony with their own observations.  A.B. heard appellant say that he was going to put his penis in R.B.'s mouth and personally observed appellant leave their bedroom and enter R.B.'s bedroom.  A.B. also personally observed appellant unzipping and unbuttoning his pants and stopping next to R.B.'s head. Ten-year-old A.B. also testified that he did not tell his parents right away because he was afraid of appellant.  D.S. knew that appellant had gone into R.B.'s room, but he looked away.  Nine-year-old D.S. also testified that R.B. was afraid to open his eyes during the incident for fear that appellant might beat him up.  Both A.B. and D.S. testified that appellant returned to their bedroom and stated that he "got it in."  A.B. and D.S. also told their parents. 

            R.B.'s testimony was sufficiently detailed to describe sexual penetration.  Any greater detail would be unlikely because the incident took place at night and because R.B. was only six years old, had been sleeping prior to the incident, was afraid of appellant, and felt bad when it happened.  He consistently described the act on separate occasions to his brothers, his parents, the police officer, and the court. 

            Viewing the evidence in the light most favorable to the determination, there was sufficient evidence of sexual penetration.   

            Affirmed.

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