In the Matter of the Welfare of: S.A.W., Child.

In the Matter of the Welfare of: S.A.W., Child. A06-914, Court of Appeals Unpublished, May 8, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-914

 

In the Matter of the

Welfare of:

S.A.W., Child.

 

Filed May 8, 2007

Affirmed Hudson, Judge

 

Goodhue County District Court

File No. J3-05-50615

 

John M. Stuart, State Public Defender, Susan J. Andrews, Jodie L. Carlson, Assistant Public Defenders, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant child)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Stephen N. Betcher, Goodhue County Attorney, Erin L.K. Schmickle, Assistant County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, Minnesota 55066 (for respondent state)

 

            Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant S.A.W. challenges his adjudication of delinquency for second-degree criminal sexual conduct and the constitutionality of the statute requiring juveniles to register as predatory offenders.  Because there is sufficient evidence to support the district court's findings, and because the application of the predatory-offender registration statute to juveniles is constitutional, we affirm.

FACTS

            On numerous occasions in 2005, appellantthen fifteen years oldbabysat A.J., the six-year-old daughter of his mother's friend.  In September 2005, A.J. disclosed to her mother that appellant had inappropriately touched her.  A.J.'s mother reported the incident to the Red Wing Police Department. 

            A Red Wing police officer interviewed A.J. using anatomically correct drawings to assist A.J. in identifying the parts of her body appellant touched.  A.J. pointed to the drawing's genitals, mouth, buttocks, and chest.  In addition, A.J. intimated that appellant penetrated her.  Goodhue County charged appellant with two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(a), .343, subd. 1(a) (2004). 

            At trial, A.J. testified that appellant undressed her, put his privates on hers, "humped" her, and ejaculated on her mother's blanket and pillow.  A.J. used anatomically correct dolls to simulate the various sexual activities that appellant perpetrated.  But A.J. did not testify that appellant penetrated her; nor did the state present any evidence proving that appellant penetrated A.J.

At the completion of the bench trial, the district court concluded that appellant was not guilty of the first-degree criminal-sexual-conduct charges, but he was guilty of the second-degree criminal-sexual-conduct charge.  After adjudicating appellant delinquent, the district court ordered appellant to be placed on six months of probation and to register as a predatory offender.  This appeal follows. 

D E C I S I O N

I

            Appellant challenges the sufficiency of the evidence on which his adjudication of delinquency for second-degree criminal sexual conduct is predicated.  When reviewing a claim of insufficiency of the evidence, appellate courts must determine "whether the facts in the record and the legitimate inferences drawn from them would permit the [fact-finder] to reasonably conclude that the defendant was guilty beyond a reasonable doubt."  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  The evidence is viewed in the light most favorable to the state.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  This standard of review is applicable to bench trials.  Davis, 595 N.W.2d at 525. 

            At the conclusion of the bench trial, the district court concluded that appellant committed second-degree criminal sexual conduct but not first-degree criminal sexual conduct.  A person is guilty of second-degree criminal sexual conduct if the person "engages in sexual contact with another person" and the other person "is under 13 years of age and the actor is more than 36 months older than the complainant."  Minn. Stat. § 609.343, subd. 1(a) (2004) (emphasis added).  Alternatively, a person is guilty of first-degree criminal sexual conduct if the person "engages in sexual penetration with another person" and the other person "is under 13 years of age and the actor is more than 36 months older than the complainant."  Minn. Stat. § 609.342, subd. 1(a) (2004) (emphasis added).  Appellant argues that the district court's conclusion is inconsistent: that if A.J.'s testimony lacked sufficient credibility to support a finding of penetration, it is equally insufficient to support a finding of sexual contact.

            When victims of sexual abuse change their stories, issues of credibility are for the fact-finder to resolve.  State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990), review denied (Minn. May 23, 1990).  The assessment of the credibility of witnesses and weighing their testimony is within the exclusive province of the fact-finder.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Inconsistencies and conflicts in testimony do not require reversal; they are just factors that the fact-finder may consider when making credibility determinations.  State v. Johnson, 679 N.W.2d 378, 387 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004).  In addition, a victim's story need not be corroborated.  Minn. Stat. § 609.347, subd. 1 (2004).  Detailed and consistent testimony is sufficient.  State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984). 

            Here, A.J. offered graphic and disturbing testimony regarding appellant's sexual conduct.  She testified that he undressed her, put his privates on hers, and "humped" her.  Although the district court did not find this testimony credible enough to establish penetrationa determination it had the prerogative to makethis testimony was sufficient to support the district court's adjudication.  Appellant's proposition that a failure to establish penetration precludes a finding of sexual contact defies logic; not all sexual contact requires penetration.  Viewing the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to support appellant's adjudication of delinquency for second-degree criminal sexual conduct. 

II

            Appellant challenges, on due-process grounds, the constitutionality of Minn. Stat. § 243.166, subd. 1b(a)(1)(iii) (2006), which requires certain juveniles to register as predatory offenders.  Challenges to the constitutionality of a statute are reviewed de novo.  State v. Shattuck, 704 N.W.2d 131, 135 (Minn. 2005).  The power of an appellate court "to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary."  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  The party challenging the constitutionality of a statute has the burden of demonstrating beyond a reasonable doubt that the statute violates a constitutional provision.  Id. 

The supreme court has held that predatory-offender registration requirements do not violate due process because they are "civil and regulatory in nature and are imposed in the interest of public safety."  Kaiser v. State, 641 N.W.2d 900, 905 (Minn. 2002).  Furthermore, this court has previously rejected similar challenges to the constitutionality of the predatory-offender registration statute as applied to juveniles.  See In re Welfare of J.R.Z., 648 N.W.2d 241, 249 (Minn. App. 2002) (sustaining the constitutionality of requiring juveniles younger than age 14 to register as predatory offenders), review denied (Minn. Aug. 20, 2002); In re Welfare of C.D.N., 559 N.W.2d 431, 434 (Minn. App. 1997) (holding that registration statute as applied to juveniles does not violate due process and is consistent with rehabilitative purpose of juvenile-court system), review denied (Minn. May 20, 1997).  Nevertheless, appellant urges this court to reconsider settled precedent by citing examples of Minnesota criminal law treating juveniles differently from adults.  But adjudication of delinquency is not a criminal proceeding, nor is predatory-offender registration a punitive sanction.  In re Welfare of C.D.N, 559 N.W.2d at 43334.  As such, appellant has failed to put forth a novel argument warranting the abandonment of settled law. 

            Affirmed.

 

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