Opinion
No. C5-98-1373.
Filed March 30, 1999.
Appeal from the District Court, Scott County, File No. 9714032.
Michael A. Hatch, Attorney General, and Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Bounleng Saengchanh was convicted of three counts of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344 (1996). He challenges his one conviction under Minn. Stat. § 609.344, subd. 1(c), arguing the evidence that he used force or coercion is insufficient to sustain the conviction. We affirm.
FACTS
On August 18, 1997, appellant Bounleng Saengchanh invited teenagers N.L.H. and A.L.L. into the apartment where he was staying in Shakopee, and they accepted. After watching television, appellant told N.L.H. that he had to talk with her. He pulled N.L.H. into the bedroom, where he had nonconsensual sexual intercourse with her. When appellant went to answer the telephone, N.L.H. got dressed and left the bedroom.
Appellant then pulled A.L.L. into the bedroom, lay on top of her, and digitally penetrated her. The girls left the apartment and went to A.L.L.'s home. They told A.L.L.'s father about the incident, and he called the police.
Appellant was charged with four counts of third-degree criminal sexual conduct, two counts with respect to each girl. Appellant waived his right to a jury trial, and the district court found appellant guilty of two counts of third-degree criminal sexual conduct, one count with respect to each girl, in violation of Minn. Stat. § 609.344, subd. 1(b) (defining crime as sexual penetration where complainant is at least 13 but less than 16 years of age and actor is more than 24 months older than complainant) and one count of third-degree criminal sexual conduct with respect to A.L.L., in violation of Minn. Stat. § 609.344, subd. 1(c) (defining crime as use of force or coercion to accomplish sexual penetration). This appeal followed.
DECISION
Appellant argues that the evidence is insufficient to sustain his conviction of third-degree criminal sexual conduct with respect to A.L.L., in violation of Minn. Stat. § 609.344, subd. 1(c) (1996). When there is a challenge to the sufficiency of the evidence, appellate review is
limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). This court will not disturb a verdict if the jury could reasonably have found the defendant guilty after giving "due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt." State v. Alton , 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted). We must assume that the jury believed the state's witnesses while disbelieving contradictory evidence. State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989). Where a defendant has waived his right to a jury trial, this court reviews the district court's findings as it would a jury verdict. State v. Knowlton , 383 N.W.2d 665, 669 (Minn. 1986).
Appellant claims the evidence is insufficient to support the district court's finding that he used force or coercion against A.L.L. See Minn. Stat. § 609.344, subd. 1(c) (providing third-degree criminal sexual conduct occurs when person "engages in sexual penetration with another person" and "uses force or coercion to accomplish the penetration"). For purposes of the criminal sexual conduct statutes, force is defined as
the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.
Minn. Stat. § 609.341, subd. 3 (1996). Bodily harm is "physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (1996).
Here, A.L.L. testified that appellant "pulled [her] by the hand" into the bedroom. See State v. Brouillette , 286 N.W.2d 702, 706 (Minn. 1979) (concluding force required by criminal sexual conduct statute was satisfied when defendant "grabbed [the victim] forcefully" and victim was fearful of getting hurt). She further testified that appellant lay on top of her, would not get off her, digitally penetrated her, and bruised her neck. See State v. Reinke , 343 N.W.2d 660, 662 (Minn. 1984) (explaining "pain" or "minimal injury" would be sufficient to show bodily harm in criminal sexual conduct case) (citation omitted). We conclude that this evidence is sufficient to sustain the finding that appellant used force to accomplish sexual penetration of A.L.L.
The finding that appellant used force is sufficient alone to sustain his conviction under Minn. Stat. § 609.344, subd. 1(c), but in the interest of providing a complete analysis, we also address appellant's challenge to the finding that he used coercion to accomplish sexual penetration of A.L.L. The applicable statute defines coercion as
words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.
Minn. Stat. § 609.341, subd. 14 (1996). The requirement of coercion is satisfied when an actor causes "a complainant * * * fear while accomplishing sexual contact." State v. Middleton , 386 N.W.2d 226, 230 (Minn. 1986).
Here, A.L.L. testified that she was afraid of appellant during the sexual assault. See State v. Meech , 400 N.W.2d 166, 168 (Minn.App. 1987) (concluding evidence was sufficient to show force or coercion when victim was afraid of actor during sexual assault). This evidence is sufficient to sustain the finding that appellant used coercion to accomplish sexual penetration of A.L.L.
In a pro se supplemental brief, appellant argues that he did not have sexual intercourse with either victim. But sexual penetration, not sexual intercourse, is an element of third-degree criminal sexual conduct. Minn. Stat. § 609.344, subd. 1. In any event, A.L.L. testified that appellant digitally penetrated her, N.L.H. testified that appellant had sexual intercourse with her, and a friend of appellant testified that appellant said he "put finger in vagina" [sic] of one of the girls. This evidence is sufficient to sustain the findings that appellant sexually penetrated both victims.
For the foregoing reasons, we conclude that there was sufficient evidence for the district court to convict appellant of third-degree criminal sexual conduct against A.L.L., in violation of Minn. Stat. § 609.344, subd. 1(c).