Opinion
A17-0450
12-26-2017
State of Minnesota, Respondent, v. Juan Manuel Ortega-Rodriguez, Appellant
Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2016). Affirmed
Worke, Judge Ramsey County District Court
File No. 62-CR-16-271 Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Toussaint, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the sufficiency of the evidence supporting his first-degree criminal-sexual-conduct conviction. We affirm.
FACTS
On January 11, 2016, Officer Chase Tao met with the family of 10-year-old G.M. who reported that she had been sexually abused by her stepfather, appellant Juan Manuel Ortega-Rodriguez. G.M.'s mother, M.M., reported that G.M. told her that Ortega-Rodriguez began touching her around September 2, 2015. M.M. stated that G.M. told her that Ortega-Rodriguez "touched her private part with his private part."
Ortega-Rodriguez was not married to G.M.'s mother, but he was G.M.'s father figure. --------
G.M. reported that Ortega-Rodriguez began touching her "breasts over her clothes" and around January 1, 2016, he "started to put his 'private' in between her legs." G.M. reported that the last time that Ortega-Rodriguez put "his genitals in between her legs" was January 9. Ortega-Rodriguez was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2014), and second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2014).
At Ortega-Rodriguez's court trial, G.M. testified that Ortega-Rodriguez entered her life when she was around one year old. G.M. testified that when she turned ten years old, Ortega-Rodriguez started touching her "breast" "under [her] shirt." G.M. testified that this occurred "most days," and estimated that Ortega-Rodriguez touched her in this way approximately 20 times. G.M. testified that Ortega-Rodriguez also touched the outside of her "vagina."
G.M. testified that beginning around January 2, 2016, Ortega-Rodriguez's "private [part] went on the outside of [her] vagina." She testified that Ortega-Rodriguez "put his private to [hers], not into, but like on the outside of [hers]." G.M. stated: "He would just open my legs, and then his penis would go not into my vagina, just like on the outside, kind of like where my thighs are." G.M. further explained that she would be lying down with Ortega-Rodriguez behind her and she could feel his penis touch her inner thighs and the outside of her vagina. She testified that Ortega-Rodriguez did this to her "at least twice a day" for approximately two weeks. G.M. stated that Ortega-Rodriguez warned her that if she told anyone they would both go to jail.
M.M. testified that G.M. told her that Ortega-Rodriguez touched her "private parts" with "his parts." G.M.'s sister, R.N., testified that G.M. told her that there was "no penetration" but that Ortega-Rodriguez's "male part" "was near her [private parts]." R.N. testified that G.M. stated that Ortega-Rodriguez's "male parts would touch around her vagina and her anus."
Officer Tao testified that on January 11, 2016, G.M. reported that Ortega-Rodriguez began touching her around September 2, 2015. G.M. reported to the officer that around January 1, 2016, Ortega-Rodriguez "used his genital to touch her." The officer stated that G.M. explained that Ortega-Rodriguez would "take off his pants, his underwear. He would take hers off, too, her underwear and pants. He kept her legs together. He put his 'private' in between her legs and then moved back and forth . . . until he's done."
Investigator Corinn Jimenez testified that during a follow-up interview with G.M., G.M. reported that Ortega-Rodriguez's penis touched "[i]n between her legs on her inner thigh," "not . . . her vagina." She further testified that G.M. reported that Ortega-Rodriguez's penis "touched like the top part of her vagina." Investigator Jimenez testified that bedding from Ortega-Rodriguez's home was tested, but no semen or DNA was found.
Registered nurse, Sara Wirkkala, testified that G.M. disclosed that Ortega-Rodriguez would pull down her pants and put his "private parts in between her inner thighs." She stated that G.M. did not tell her that Ortega-Rodriguez's private part touched her private part. She also stated that G.M. did not report Ortega-Rodriguez putting "his penis in her vagina." Wirkkala testified that G.M.'s physical exam was consistent with the statement that no penetration occurred.
The district court found Ortega-Rodriguez guilty of first- and second-degree criminal sexual conduct and sentenced him to 144 months in prison. This appeal followed.
DECISION
Ortega-Rodriguez argues that the evidence was insufficient to support his first-degree criminal-sexual-conduct conviction. When considering a claim of insufficient evidence, this court carefully analyzes the record to determine whether the evidence, viewed in the light most favorable to the conviction, was sufficient to allow the fact-finder to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Because a district court as the fact-finder is in the best position to evaluate the credibility of witnesses and weigh evidence, this court gives the district court's verdict "due deference." State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998). This court assumes that the district court, acting as fact-finder, was persuaded by the evidence supporting the conviction. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). This 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 that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
Penetration
Ortega-Rodriguez first argues that the state failed to prove penetration. Ortega-Rodriguez was convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii), which provides that:
A person who engages in sexual penetration with another person, or in sexual contact with a person under 13 years of age as defined in section 609.341, subdivision 11, paragraph (c), is guilty of criminal sexual conduct in the first degree if:
. . . .
(h) the actor has a significant relationship to the complainant, the complainant was under 16 years of age at the time of the sexual penetration, and:
. . . .
(iii) the sexual abuse involved multiple acts committed over an extended period of time.
There is no dispute that there was no sexual penetration. Ortega-Rodriguez argues that the statute requires "sexual penetration" because it states: "the complainant was under 16 years of age at the time of the sexual penetration." Minn. Stat. § 609.342, subd. 1(h) (emphasis added). But sexual penetration is not required because the overarching language in subdivision 1 applies to paragraphs (a) through (h) and includes "sexual contact with a person under 13." Further, interpreting paragraph (h)(iii) to require sexual penetration would lead to absurd results because a person could be found guilty of first-degree criminal sexual contact if he engaged in one instance of sexual contact with a person under 13 years of age, see Minn. Stat. § 609.342, subd. 1(a) (a person is guilty of first-degree criminal sexual conduct if he engages in sexual penetration or sexual contact with a person under 13 years of age and he is more than 36 months older than the victim), but not guilty if he engaged in multiple instances of sexual contact with a person under 13 years of age and had a significant relationship to the victim. See id. We conclude that the state was not required to prove sexual penetration in order for the district court to find Ortega-Rodriguez guilty of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii).
Genital-to-genital contact
Ortega-Rodriguez argues that even if he could be found guilty of first-degree criminal sexual conduct based on sexual contact, the evidence is still insufficient because it does not support a finding of genital-to-genital contact. He claims that the evidence is insufficient because G.M. was the only witness, her testimony was vague and confusing, and there was a lack of corroborating evidence.
"[S]exual contact with a person under 13" is defined as
the intentional touching of the complainant's bare genitals or anal opening by the actor's bare genitals or anal opening with sexual or aggressive intent or the touching by the complainant's bare genitals or anal opening of the actor's or another's bare genitals or anal opening with sexual or aggressive intent.Minn. Stat. § 609.341, subd. 11(c) (2014). Victims' testimony in cases of first-degree criminal sexual conduct need not be corroborated. Minn. Stat. § 609.347, subd. 1 (2014); State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977) (stating that lack of corroboration could result in insufficient evidence to support a guilty verdict, but not in a case when the victim's testimony is positive, not contradicted, and strongly corroborated by other evidence). And credibility determinations are for the fact-finder. Brocks, 587 N.W.2d at 42.
G.M. testified that Ortega-Rodriguez's "private [part] went on the outside of [her] vagina," and that Ortega-Rodriguez "put his private . . . on the outside of [hers]." G.M. stated: "[H]is penis would go not into my vagina, just like on the outside, kind of like where my thighs are." G.M. explained that she would be lying down with Ortega-Rodriguez behind her and she could feel his penis touching the outside of her vagina.
The district court stated that G.M. was "open, honest and truthful . . . appeared to understand the gravity of the situation. . . . lacked any apparent malice. . . . lacked a poor attitude, and genuinely appeared to answer the attorney's questions to her best ability." The district court found that Ortega-Rodriguez "intentionally touched his penis to G.M.['s] . . . vagina." The district court found G.M. to be credible.
Moreover, even though G.M.'s testimony did not require corroboration, it was corroborated by M.M.'s testimony that G.M. told her that Ortega-Rodriguez touched her "private parts" with "his parts"; R.N.'s testimony that G.M. told her that Ortega-Rodriguez's "male part" "was near her [private parts]"; R.N.'s testimony that G.M. stated that Ortega-Rodriguez's "male parts would touch around her vagina and her anus"; and Investigator Jimenez's testimony that G.M. reported that Ortega-Rodriguez's penis "touched like the top part of her vagina."
Ortega-Rodriguez argues that corroboration was necessary because Wirkkala testified that G.M. stated that Ortega-Rodriguez put his "private parts in between her inner thighs" and that G.M. did not tell her that Ortega-Rodriguez's private part touched her private part. But inconsistencies in the state's case do not require reversal of a verdict. See Pieschke, 295 N.W.2d at 584. Further, when Wirkkala interviewed G.M., G.M. indicated on a picture of a girl that Ortega-Rodriguez's penis touched between her upper thighs—her vagina is between her upper thighs. He also argues that corroboration was necessary because there was no physical or forensic evidence. Investigator Jimenez testified that no semen or DNA was found on bedding from Ortega-Rodriguez's home. But G.M. did not testify that Ortega-Rodriguez ever ejaculated. And Wirkkala testified that she expected G.M.'s physical exam to be normal because G.M. did not report that Ortega-Rodriguez penetrated her vagina with his penis. Corroboration was not required because this type of evidence was lacking. The evidence is sufficient to show that Ortega-Rodriguez touched his bare genitals to G.M.'s bare genitals with sexual intent.
Extended period of time
Finally, Ortega-Rodriguez argues that the state failed to show that the sexual abuse occurred over an extended period of time.
Under Minn. Stat. § 609.342, subd. 1(h)(iii), a person is guilty of first-degree criminal sexual conduct if he engages in sexual penetration or sexual contact with a person under 13 years of age, he has a significant relationship to the complainant, the complainant was under 16 years of age at the time of sexual penetration, and the sexual abuse involved multiple acts committed over an extended period of time. "Sexual abuse" is not defined by statute. "Extended period of time" is not defined by statute. Ortega-Rodriguez argues that "sexual abuse" should be limited to "sexual contact," meaning genital-to-genital contact, and that the time-frame is January 2-9, 2016. The state counters that "sexual abuse" is a broader term encompassing Ortega-Rodriguez's touching of G.M. under her shirt, which began around September 2, 2015.
There exists no bright-line rule regarding the minimum amount of time required to constitute an "extended period of time" under the criminal-sexual-conduct statutes. See State v. Campa, 399 N.W.2d 160, 162 (Minn. App. 1987), review denied (Minn. Feb. 13, 1987) (concluding that evidence was sufficient to show multiple acts over an extended period of time despite fact that victim never testified to a specific date). We have determined in the first-degree criminal-sexual-conduct context that a fact-finder could infer that sexual acts took place over an extended period of time when there was evidence of several different incidents. G.M. testified that the sexual contact occurred "at least twice a day" during the first nine days of January. The district court appropriately concluded that the abuse occurred over an extended period of time, regardless of which time-frame we consider.
Affirmed.