State of Minnesota, Respondent, vs. Joseph Raymond Roche, Appellant.

State of Minnesota, Respondent, vs. Joseph Raymond Roche, Appellant. A04-2118, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and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

A04-2118

 

State of Minnesota,

Respondent,

 

vs.

 

Joseph Raymond Roche,

Appellant.

 

Filed December 20, 2005

Affirmed

Randall, Judge

 

Olmsted County District Court

File No. K1-03-579

 

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

 

Raymond F Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN  55904-3710 (for respondent)

 

John Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from his conviction for second-degree criminal sexual conduct, appellant argues that the victim's testimony that appellant touched her on the lower abdomen was not sufficient to support the conviction.  Appellant claims the lower abdomen is not part of the "primary genital area," and therefore not included in the victim's "intimate parts."  We find the evidence easily sufficient to support the verdict of second-degree criminal sexual conduct.  We affirm.

FACTS

            Appellant Joseph Raymond Roche ("appellant") married Jeannette Roche ("Roche") on September 16, 2002.  At that time, the couple lived in a three-bedroom trailer home in Byron with Roche's five-year-old son, and eleven-year-old daughter, V.V.P.  Appellant and Roche shared a room at one end of the trailer, while the two children each had their own individual rooms at the opposite end. 

            On the evening of December 4, 2002, V.V.P. prepared for bed by changing into a long t-shirt and underwear that covered up to her belly button, and eventually went to sleep in her room around 8:30 p.m.  V.V.P. awoke at around 1:00 a.m. and felt appellant's hand underneath her underwear touching her "private area," tickling her in a "bad way."  To stop appellant from continuing to touch her, V.V.P. rolled over, and appellant then left the room.   

            The following morning, V.V.P. awoke and caught the bus to school as normal, without telling her mother about the incident that had occurred.  At school, V.V.P. told a friend what had happened, and then decided to talk with her school counselor, Nancy Nixa.  In her meeting with Nixa, V.V.P. claimed that appellant touched her "between her legs underneath her underwear."  Based on this information, Nixa contacted Olmsted County Social Services ("OCSS"), and Tom Paltzer from OCSS and Detective Lee Rossman investigated the alleged misconduct.

            Paltzer and Rossman interviewed V.V.P. using a "Corner House Technique."  The procedure involved showing V.V.P. anatomical drawings of both genders and asking her to identify various body parts on the drawings after Paltzer circled them.  At one point, Paltzer circled the external genitalia on the female drawing and V.V.P. identified this region as a "private part."  During the interview, V.V.P. also claimed that appellant touched her in her "private area."

            After Paltzer and Rossman completed the interview with V.V.P., they conducted an interview with appellant at the law enforcement center.  During the interview, appellant denied entering V.V.P.'s room and claimed that he never touched her.  Appellant returned home after the interview, but began acting uncharacteristically.  The next morning, he would not get out of bed or respond to Roche's questions.  Roche became concerned about appellant's behavior, and decided to bring him to meet with his mother at her home.          

            When appellant and Roche arrived at appellant's mother's home, they began to discuss V.V.P.'s allegations.  Eventually, appellant admitted that he had fantasized about young girls, and that he also had touched V.V.P. in her "private area" the previous night.  Appellant was taken to the Generose psychiatric ward at St. Mary's Hospital for assistance.  Upon being admitted to Generose, a nurse questioned appellant about what had precipitated his visit.  Appellant's response was similar to what he had provided to Roche and his mother.  He again admitted that he had entered V.V.P.'s bedroom and touched her inappropriately by sliding his hand under her clothing.    

            While appellant was at Generose, he agreed to another interview with Paltzer and Rossman.  At that time, appellant admitted having fantasies about young women around the ages of 12 to 13.  He admitted touching V.V.P. on her stomach and then moving his hand under her underwear.  He denied touching her pubic area.

            Appellant was charged with two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subds. 1(a), and 1(g) (2002).  Following a bench trial, appellant was convicted on both counts of criminal sexual conduct in the second-degree.  This appeal followed.     

D E C I S I O N

            Appellant argues that there was insufficient evidence to convict him of second-degree criminal sexual conduct.  In considering a claim of insufficient evidence, this court's review "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction," is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

To be convicted of second-degree criminal sexual conduct, the state must prove, inter alia, that the defendant engaged in sexual contact.  Minn. Stat. § 609.343, subd. 1(a), (g) (2002).  Sexual contact is defined as intentional touching that involves the complainant's "intimate parts."  Minn. Stat. § 609.341, subd. 11(a)(i), (b)(i) (2002).  Under the statute, intimate parts include the "primary genital area, groin, inner thigh, buttocks, or breast of a human being."  Minn. Stat. § 609.341, subd. 5 (2002).

            Appellant argues that there is insufficient evidence to convict him of second-degree criminal sexual conduct since he claims there is no evidence that he touched the victim's "primary genital area."  Appellant asserts that the phrase "primary genital area" must be strictly construed, limiting this area to include only the reproductive organs and external genitalia.  Appellant concedes that he touched the victim's lower abdominal area
underneath her underwear, but, appellant contends that the lower abdomen is not encompassed within the definition of "primary genital area." 

            Penal statutes are to be construed strictly so that all reasonable doubt concerning legislative intent is resolved in favor of the defendant.  State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002).  However, strict construction does not require this court to assign the narrowest possible interpretation to the statute.  State v. Zacher, 504 N.W.2d 468, 473 (Minn. 1993).  The rules of statutory construction require that a statute's words and phrases are to be given their plain and ordinary meaning.  Hince v. O'Keefe, 632 N.W.2d 577, 582 (Minn. 2001). 

            Appellant's interpretation of the statute ignores the statute's plain meaning and broad language.  The "primary genital area," by its name, extends beyond the actual genitals themselves.  The expansive nature of the statutory language defining intimate parts show unambiguous legislative intent to include more than just the actual sex organs within the definition of forbidden touching.  The inclusion of "groin and inner thigh," along with "buttocks and breasts," within the definition makes clear the intent to incorporate the areas immediately surrounding the genitalia.  Construing the phrase in a common-sense manner comports with the plain meaning of the statute.  Thus, we conclude the immediate area surrounding the external genitalia can be part of the "primary genital area."

               Appellant next claims that the evidence presented was sufficient (if evidence of guilt at all) only to prove attempted second-degree criminal sexual conduct, as appellant claims the evidence in the record demonstrates, at most, that he touched the victim's stomach before startling her and withdrawing his hand.  We disagree.  V.V.P. testified that appellant touched her in her "private area," tickled her "in a bad way," and her school counselor testified that V.V.P. told her that appellant touched her "between her legs underneath her underwear."  There was corroborating testimony from a school counselor, appellant's nurse, and a social services worker.  Appellant's nurse also testified that appellant admitted touching the victim inappropriately by sliding his hand under the victim's clothing.  It is not to say that, if the verdict had come back guilty of attempted criminal sexual conduct, the record would not have supported that verdict.  It is to say that the record supports the verdict of the completed act, second-degree criminal sexual conduct.

               After Paltzer testified and identified the area that the victim claimed appellant touched, the court instructed that the record reflect that appellant touched the victim's "vaginal area, genital area."  Paltzer testified that the victim identified the area directly above the external genitalia as the region that the appellant touched.  Finally, appellant admitted that he reached under the victim's underwear

               We conclude the fact-finder could have reasonably found that appellant touched the victim's primary genital area.  The evidence is sufficient to support the verdict of second-degree criminal sexual conduct.

               Affirmed.