Opinion
No. C5-97-2139.
Filed August 18, 1998.
Appeal from the District Court, Hennepin County, File No. J89756963.
John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, (for appellant T.D.H.).
Hubert H. Humphrey III, Attorney General, and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, (for respondent Hennepin County).
Considered and decided by Davies, Presiding Judge, Crippen, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant T.D.H. disputes the trial court's delinquency adjudication, contending that there was insufficient evidence to support a finding that he committed attempted fourth-degree criminal sexual conduct. We affirm.
FACTS
The trial court found that appellant assaulted the victim (age 12) in a garage across the alley from a park. The eyewitness (age 11), after hearing the victim scream, went into the garage and helped the victim escape.
In a dispositional order that placed appellant on probation, the court also ordered him to perform five days of community service, to submit to DNA tests, and to successfully complete a sex-offender treatment program.
DECISION
In reviewing a claim of insufficiency of the evidence, this court evaluates the record in a light most favorable to the state and assumes that the factfinder believed the state's witnesses and disbelieved any contrary evidence. In re Welfare of S.A.M. , 570 N.W.2d 162, 167 (Minn.App. 1997). We are to uphold the adjudication if the judge, giving due regard to the presumption of innocence and the state's burden of proving the offender's guilt beyond a reasonable doubt, could have reasonably found the offender guilty. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).
Appellant contends that there is insufficient evidence to support his adjudication because the testimony of the victim and the eyewitness was not credible. If the factfinder reasonably could have believed a witness, its credibility decision will not be disturbed. State v. Bias , 419 N.W.2d 480, 484-85 (Minn. 1988). Appellant contends that the credibility of the two girls is unusually suspect because (1) both girls identified him during a show up after he had already been arrested, (2) the victim had animosity towards him, and (3) the eyewitness only had a brief opportunity to see him and could not furnish reliable trial testimony because she and her mother had visited with appellant after the identification occurred.
The court reasonably could believe the two witnesses. Both girls positively identified appellant shortly after the attack and indicated that they were certain of their identification. Both girls also had ample opportunity to view appellant. The victim had known appellant for a month before the attack and was acquainted with appellant by name.