State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1967

State of Minnesota,
Respondent,

vs.

Joseph William Erie,
Appellant

Filed November 6, 2017
Affirmed
Worke, Judge

Scott County District Court
File No. 70-CR-15-16553

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler , Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Johnson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant was convicted of first - and second-degree criminal sexual conduct. He
argues that his conviction on the first-degree charge should be reversed because the
evidence was insufficient to prove an element of the offense. We affirm.
FACTS
Appellant Joseph William Erie was charged with first- and second-degree criminal
sexual conduct. According to the complaint, in June 2015, Erie was babysitting four-year-
old A.H. and her sister at his home. A.H.’s sister walked into the kitchen and saw A.H.
with her shorts halfway down her buttocks and Erie standing directly behind A.H. When
Erie saw the sister, he pulled A.H.’s shorts up. As the girls left the kitchen, A.H. told her
sister that Erie had “put his pee pee in [her] butt.”
At Erie’s jury trial, A.H. testified that Erie touched her bare buttocks with his
“private part.” A.H. also indicated that Erie spat on his pe nis before touching her. There
was also evidence that Erie’s DNA was found just above and below A.H.’s anal opening.
And a registered nurse testified that a physical exam conducted on A.H. the day the assault
was reported showed redness around A.H.’s anus.
A.H.’s sister testified tha t when she walked into the kitchen , she saw that A. H.’s
pants and underwear were pulled down. She testified that Erie was standing behind A.H.
and his “pee pee was in [A.H.]’s butt.”
The jury found Erie guilty of first- and second-degree criminal sexual conduct. Erie
moved for a directed verdict on the first -degree convicti on, arguing that , based on the

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state’s evidence, no reasonable jury could have found that he touched A.H.’s anal opening
with his bare genitals. The district court denied Erie’s motion. This appeal followed.
D E C I S I O N
Erie was convicted of fir st- and second -degree criminal sexual conduct, b ut he
challenges only the sufficiency of the evidence supporting the first-degree criminal-sexual-
conduct conviction, arguing that the evidence failed to prove that he touched his bare
genitals to A.H.’s anal opening. We disagree.
Direct evidence “proves a fact without inference or presumption. ” Bernhardt v.
State, 684 N.W.2d 465, 477 n.11 (Minn. 2004) (quotation omitted). Testimony from a
person who perceived a fact through her senses is direct evidence. State v. Williams, 337
N.W.2d 387, 389 (Minn. 1983). Here, A.H.’s sister testified that she saw Erie touch A.H.’s
anal opening with his bare genitals. This is direct evidence. Thus, we apply the traditional
standard of review to Eric’s insufficient-evidence claim. See State v. Horst, 880 N.W.2d
24, 39 (Minn. 2016). Under the traditional standard, this court review s 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). The reviewing court must assume that “the jury believed
the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore , 438
N.W.2d 101, 108 (Minn. 1989). This court “will not disturb the verdict if the jury, acting
with due regard for the presumption of innocence and [the requirement] of . . . proof
beyond a reasonable doubt, could reasonably conclude [the] defendant was . . . guilty of
the [charged] offense.” Bernhardt, 684 N.W.2d at 476-77 (quotation omitted).

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A person is guilty of first-degree criminal sexual conduct when he engages in sexual
penetration with another person, or in sexual contact with a person under 13 yea rs of age
and he is more than 36 months older than the complainant. Minn. Stat. § 609.342, subd.
1(a) (2014). Sexual contact with a person under 13 includes the intentional touching of the
complainant’s bare genitals or anal opening by the actor’s bare g enitals or anal opening
with sexual or aggressive intent. Minn. Stat. § 609.341, subd. 11(c) (2014).
The sister’s testimony that she saw Erie’s “pee pee . . . in [A.H.]’s butt” is direct
evidence that Erie touched his bare genitals to A.H.’s anal opening . Erie attempts to
undercut the sister’s testimony by arguing that it was contradicted by A.H. when she said
that Erie put his penis “on” her buttocks. But this statement was itself contradicted by
A.H.’s sister who testified that A.H.’s exact words afte r the incident were, “[Erie] put his
pee pee in my butt.” (Emphasis added.) The jury was “in the best position to weigh the
credibility of the evidence and thus determine which witnesses to believe and how much
weight to give their testimony.” State v. Hughes, 749 N.W.2d 307, 312 (Minn. 2008) The
jury believed that there was proof beyond a reasonable doubt that there was sexual contact
between Erie’s bare genitals and A.H.’s anal opening.
Based on the record, there is no reason to disturb the jury’s verdict. The jury
believed the sister’s testimony with support from other evidence at trial, such as DNA
evidence and the physical examination showing redness around A.H.’s anal opening, and
reasonably concluded that Erie was guilty of first-degree criminal sexual conduct.
Affirmed.