State of Minnesota, Respondent, vs. Richard Herbert Hamman, Appellant.

State of Minnesota, Respondent, vs. Richard Herbert Hamman, Appellant. A06-1187, Court of Appeals Unpublished, August 14, 2007.

This opinion will be unpublished and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

A06-1187

 

 

State of Minnesota,
Respondent,
 
vs.
 
Richard Herbert Hamman,
Appellant.

 

 

Filed August 14, 2007

Affirmed

Peterson, Judge

 

Clay County District Court

File No. K7-05-78

 

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

Brian J. Melton, Clay County Attorney, 807 North 11th Street, P.O. Box 820, Moorhead, MN  56561 (for respondent)

 

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            In this appeal from a conviction of fourth-degree criminal sexual conduct, appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that he touched the victim with sexual or aggressive intent.  We affirm.

FACTS

            Thirteen-year-old M.P. was babysitting her younger brother and sisters when appellant Richard Herbert Hamman knocked on the door to M.P.'s house sometime between 8:00 and 9:00 p.m.  Appellant was M.P.'s neighbor, and his son was friends with M.P.'s younger brother.  M.P. testified that when she opened the door, appellant began grabbing her chest and her crotch with his hand.  Appellant was talking about God and told M.P. that she "should save [her] body for [God] and [her] virginity."  M.P. said "don't," pushed appellant way, and shut and locked the door.   

            M.P. then called her friend T.V. and asked her to come over because M.P. was scared to be alone.  While T.V. and M.P. were in the house, the telephone rang, and the caller ID indicated that the call was coming from appellant's residence.  T.V. answered the telephone, and when the man on the telephone asked to talk to M.P., T.V. told him that M.P. was sleeping.  The telephone rang again a short time later, and the caller ID again indicated that the call was coming from appellant's residence.  T.V. answered and again told the man on the telephone that M.P. was sleeping.  When a third call came from appellant's residence, T.V. answered and hung up before the caller could say anything.  After the third telephone call, appellant's son appeared at M.P.'s door.  T.V. answered the door, and when the boy asked if could see M.P. outside, T.V. told him no.  T.V. shut the door, and the boy went away.  After the boy left, M.P. called her mother at work.  M.P.'s mother came home from work, and T.V.'s mother came to M.P.'s home with a friend.  After discussing the situation, they called the police. 

            Appellant was charged with fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subds. 1(b), 2 (2004).  After a court trial, appellant was found guilty and sentenced.  Execution of his sentence was stayed, and appellant was placed on probation for ten years.  This appeal follows.

D E C I S I O N

            The state must prove "beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged."  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In reviewing a claim of insufficient evidence in a criminal case, this court determines "whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged."  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (quotation omitted).  We review the evidence in the light most favorable to the conviction and "assume that the jury believed the state's witnesses and disbelieved any contrary evidence."  Id.  (quotation omitted).  When reviewing a sufficiency-of-the-evidence claim in a case heard before the court without a jury, we apply the same standard of review that is applied in a case heard by a jury.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979). 

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

                        (b) the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant.  Consent by the complainant to the act is not a defense.  In any such case, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor believes the complainant to be 16 years of age or older[.]

 

Minn. Stat. § 609.345, subd. 1(b) (2004).  "Sexual contact" includes "the intentional touching by the actor of the complainant's intimate parts" or "the touching of the clothing covering the immediate area of the intimate parts" committed with sexual or aggressive intent.[1]  Minn. Stat. § 609.341, subd. 11(a)(i), (iv) (2004).

            Appellant argues that the evidence was insufficient to support his conviction because the state failed to prove beyond a reasonable doubt that appellant acted with sexual or aggressive intent when he touched M.P. over her clothing.  Appellant contends that although the district court found that he touched M.P.'s intimate parts, the court never specifically found that the touching was motivated by sexual or aggressive intent and a finding of sexual or aggressive intent cannot be inferred from the record.

            In a case tried without a jury, "[i]f the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding."  Minn. R. Crim. P. 26.01, subd. 2.  Because the district court made a general finding of guilty,[2] it is deemed to have made a finding that appellant committed the touching with sexual or aggressive intent.  The evidence is sufficient to sustain such a finding. 

            When construing statutes, this court construes words "according to their common and approved usage."  Minn. Stat. § 645.08(1) (2006).  In their common and approved usages, "sexual" means "[o]f, relating to, involving, or characteristic of sex, sexuality, the sexes, or the sex organs and their functions,"  The American Heritage Dictionary of the English Language 1654 (3d ed. 1992),  and "aggressive" means "[a]ssertive, bold, and enterprising."  Id. at 34.  M.P. testified that when she opened the door, appellant began grabbing her chest and her crotch with his hand while telling her that she "should save [her] body for [God] and [her] virginity."  Because appellant committed the touching while referring to M.P.'s virginity, the evidence supports a legitimate inference that the touching was related to sex or sexuality, and this inference supports a finding that appellant touched M.P. with sexual intent.  The evidence also supports a legitimate inference that appellant touched M.P. to emphasize what he was telling her and that the touching was an assertive expression of appellant's message to M.P.  This inference supports a finding that appellant touched M.P. with aggressive intent.

            In a pro se supplemental brief, appellant makes arguments that are not supported by evidence in the record.  These arguments do not establish a basis for reversing appellant's conviction.

            Affirmed.

[1] The touching must also be committed "without the complainant's consent, except in those cases where consent is not a defense."  Minn. Stat. § 609.341, subd. 11(a) (2004).  Because the touching occurred when M.P. was 13 years old, consent is not a defense.  Minn. Stat. § 609.345, subd. 1(b).

 

[2] Following trial, the district court issued written findings of fact and conclusions of law in which the court concluded that the state "met its burden of proof beyond a reasonable doubt that . . . [appellant] did engage in sexual contact with another person and that person was at least 13, but less than 16 years of age, and the actor was more than 48 months older than the complainant."  But because appellant had asserted a mental-illness defense, the court did not find appellant guilty and, instead, ordered that the matter proceed to trial on the mental-illness defense in accordance with Minn. R. Crim. P. 20.02.  Following further proceedings, the district court found appellant guilty.