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This opinion will be unpublished and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
A17-0029

State of Minnesota,
Respondent,

vs.

Tymaine Lee Muckle,
Appellant.

Filed December 11, 2017
Affirmed
Jesson, Judge

Traverse County District Court
File No. 78-CR-15-129

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

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi Lyn n Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Sixteen-year-old appellant Tymaine Lee Muckle would periodically babysit his
mother’s friend’s four -year-old daughter, H.Z. H.Z. testified that when Muckle babysat
her, he sexually abused her, kept her from leaving the room where the abuse occurred, and
2
threatened to kill her if she told anyone about the abuse . Muckl e argues the evidence
presented at trial was insufficient to support his convictions for aggravated first -degree
witness tampering, second -degree criminal sexual conduct, and false imprisonment. We
affirm.
FACTS
While appellant Tymaine Muckle’s sexual a buse of H.Z. took place years earlier,
H.Z. did not report any abuse until she was in third grade. H.Z. disclosed the abuse as part
of a game she was playing with a classmate, a game where the children told each other
secrets. H.Z. told her friend that she had been sexually abused by Muckle. H.Z.’s friend
insisted they tell their teacher , and the two reported the abuse. Law enforcement
investigated, and Muckle was arrested.
While Muckle was a juvenile at the time of the abuse, the state moved to certify him
as an adult. The motion was granted and Muckle was charged as an adult with two counts
of each: second-degree criminal sexual conduct—complainant under 13 years of age and
actor more than 36 months older; 1 second-degree criminal sexual conduct —actor used
force or coercion to accomplish sexual contact; 2 aggravated first-degree tampering with a
witness;3 and false imprisonment —intentional restraint .4 One of each of these counts
related to the first incident of abuse and the other related to the l ast incident. While H.Z.
testified that the abuse took place in 2011, the state charged the incident s as taking place

1 Minn. Stat. § 609.343, subd. 1(a) (2008).
2 Minn. Stat. § 609.343, subd. 1(e)(i) (2008).
3 Minn. Stat. § 609.498, subd. lb(a)(4) (2008).
4 Minn. Stat. § 609.255, subd. 2 (2008).
3
in January and May, 2010. Muckle pleaded not guilty to all counts and the case went to
trial. At trial, the jury received evidence that we now summarize.5
From 2009 to approximately 2013, H.Z.’s mother and Muckle’s mother were close
friends. Each woman has multiple children and those children spent considerable time
together over those years. Muckle is approximately 12 years older than H.Z. The mothers
went out together throughout their friendship, and sometimes left H.Z. in Muckle’s care.
This was when Muckle sexually abused H.Z., restrained her against her will, and threatened
to kill her if she told “anybody” about the abuse.
H.Z. testified and the jury saw a videotaped interview of H.Z. conducted by a
forensic interviewer after she reported the abuse. H.Z. testified that she was either four or
five years old when she was abused by Muckle. She characterized the abuse as beginning
after New Year’s Day during her kindergarten school year. The abuse lasted about five
months and ended in May of that sa me year. H.Z. knew it ended in May, based on a
conversation she had with her kindergarten teacher, where she learned about the May Day
holiday. H.Z. was in kindergarten from fall 2010 to spring 2011.
H.Z. described the sexual abuse as Muckle touching her in he r “private parts” and
identified those private parts as her vagina. Sometimes this touching took place over her
underwear and other times when her underwear was removed. When Muckle would
attempt to touch her, H.Z. would push, kick and attempt to get him off of her. If H.Z. tried
to get away from Muckle, he would stop her “almost every time.” When H.Z. attempted

5 Because Muckle was only convicted of charges pertaining to the May 2010 incident, we
do not describe the alleged January 2010 incident in detail.
4
to leave, Muckle , on at least one occasion , grabbed her arm and on another occasion,
spanked H.Z. When H.Z. asked Muckle why he was touching h er, he told her it was
because he did not have a girlfriend yet.
The final incident of abuse took place in the living room at the Wheaton Inn, where
H.Z. and her family were living at the time. H.Z. told Muckle to stop touching her, or she
would tell her mother. Muckle responded saying if she told “anybody” he would “give
[her] a spanking or [] would kill [her].”
H.Z.’s testimony was largely consistent with the video -taped forensic interview ,
with a few exceptions . In the video -taped interview, H.Z. stated the touching happened
only over her underwear , instead of sometimes over her underwear and sometimes when
her underwear was removed. In the video, H.Z. noted that Muckle would pinch her to get
her to open her legs, but at trial said she did not remember the pinching.
H.Z.’s mother also testified and described changes in H.Z.’s behavior that she
noticed prior to H.Z. beginning kindergarten in the fall of 2010. H.Z. would drop to the
floor and beg her mother not to be left with Muckle or go to his home. H.Z. began to play
in a sexual manner with her dolls, and that she googled terms including movie or pop stars
and “sex.” H.Z. started counseling due to this behavior and she was later diagnosed with
ADHD. H.Z. never reported the sexual abuse to a counselor. H.Z.’s mother testified that
Muckle was out of the state for a time but when he returned to Minnesota, H.Z. stopped
going to the local pool and stopped spending time with her friends. H.Z., her mother and
her siblings resided at the Wheaton Inn from December 2009 to March 2011.
5
The jury heard from H.Z.’s third-grade teacher, who was also the dean of students
at H.Z.’s school when H.Z. was in kindergarten. The teacher testified that H.Z. had trouble
in school starting at the beginning of her kindergarten year. Specifically, H.Z. seemed not
to care about the consequences of her actions.
Lastly, the jury heard from Muckle’s mother. She testified that Muckle was not
present in the state of Minnesota during the time H.Z. was in kindergarten. While he lived
with his mother in Wheaton during his 2009-2010 school year, completing his freshman
year of high school, Muckle moved to Colorado in August 2010 to live with his father.
Muckle was 16 years old at the time of the move. He completed his sophomore and junior
years of high school in Colorado. His school transcripts from those years were produced
at trial. During those years, Muckle ’s mother testified that Muckle never visited
Minnesota.
After receiving this evidence, the jury deliberated and found Muckle guilty of
aggravated first -degree tampering with a witness; second -degree criminal sexual
conduct—complainant under 13 years of age and actor more than 36 months older; and
false imprisonment, all relating to the May 2010 incident. Muckle was acquitted of both
counts of second-degree criminal sexual conduct —actor used force or coercion to
accomplish sexual contact, as well as all other charges stemming from the alleged January
2010 incident. The district court entered convictions for the May 2010 offenses and
sentenced Muckle on the most serious offense, aggravated first-degree witness tampering,
to 96 months in prison.
Muckle appeals the convictions.
6
D E C I S I O N
Muckle challenges each of his three convictions, arguing that insufficient evidence
was produced at trial to find him guilty beyond a reasonable doubt. In considering
sufficiency-of-the-evidence claims, this court’s review is limited to an analysis of the
record to determine whether the evidence, when viewed in the light most favorable to the
conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume “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 is especially true when resolution of the matter
depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.
1980). The reviewing 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 o ffense. Bernhardt v.
State, 684 N.W.2d 465, 476 -77 (Minn. 2004). We examine the convictions for witness
tampering, criminal sexual conduct and false imprisonment each in turn.
I. Evidence was sufficient to prove Muckle committed aggravated first -degree
witness tampering.

Muckle makes two arguments to support his assertion that the state failed to present
adequate evidence to support his witness tampering conviction. First, he argues that stating
he would kill H.Z. if she told “anybody” about the sexual abuse does not fit within the plain
meaning of Minnesota’s witness tampering statute. Second, he argues that even if that
7
language could fall within the conduct the statute prohibits, the state failed to prove Muckle
had the adequate intent to commit the crime.
Minnesota Statutes section 609.498, subdivision 1b (2008), states:
(a) A person is guilty of aggravated first -degree witness
tampering if the person causes or, by means of an implicit or
explicit credible threat, threatens to cause great bodily harm or
death to another in the course of committing any of the
following acts intentionally:

. . . .

(4) preventing or dissuading or attempting to prevent or
dissuade a person from providing information to law
enforcement authorities concerning a crime.

(Emphasis added.) Because “the meaning of a criminal statute is intertwined with the issue
of whether the State proved beyond a reasonable doubt that the defendant violated the
statute, it is often necessary to interpret a criminal statute when evaluating an insufficiency-
of-the-evidence claim.” State v. Vasko , 889 N.W.2d 551, 556 (Minn. 2017). Muckle
argues that because he threatened to kill H.Z. if she told “anybody,” and not specifically
law enforcement authorities as the statutory language states, this threat is too broad to fall
within the statute’s purview. We disagree.
Viewing this set of facts in the light most favorable to the conviction, this is a
situation where after H.Z. threatened to tell her mother about what Muckle was doing,
Muckle, who was 16 years old, told H.Z., who was four years old, not to report abuse to
anybody. He threaten ed to kill her if she d id not comply. Muckle’s contention is that to
be convicted of witness tampering he must precisely tell a four-year-old not to report abuse
to “law enforcement.” This argument flies in the face of reality. Most four-year-olds could
8
not define the phrase “law enforcement.” But a four-year-old can understand—as this one
did—a threat to kill her if she told anybody. We do not interpr et the witness tampering
statute to always equate the term “anybody” with “law enforcement,” but in the specific
context of this case Muckle’s comments fall within the purview of those the statute
prohibits.6
This application of the statu te is consistent with a Missouri Court of Appeals
decision in a case with analogous facts, State v. Pullum, 281 S.W.3d 912, 913-14 (Mo. Ct.
App. 2009). In Pullum, the defendant threatened the seven-year-old victim by saying “he
would kill her if she told anyone about his sexual misconduct with her.” Id. at 914
(emphasis added). The victim then waited more than a year to report the defendant’s
actions. Id. The court engaged in an analysis of whether a threat not to tell “anyone” is
sufficient to violate Missouri’s witness tampering statute which, similar to the Minnesota
statutes, requires an attempt to persuade a victim from reporting a crime “ to any peace
officer, or state, local or federal law enforcement officer or prosecuting agency or to any

6 In support of his argument that “anybody” should not qualify under Minnesota Statutes
section 609.048, subdivision 1b(a)(4), Muckle cites multiple unpublished cases decided by
this court, where the language at issue is much more specific to law enforcement. See State
v. Johnson, No. A10-965, 2011 WL 2622688, at *1 (Minn. App. July 5, 2011) (the defendant
“threatened to kill the victim if she told police what had happened”) (emphasis added), review
denied (Minn. Sept. 28, 2011); State v. Rios, No. CX-00-1726, 2001 WL 856243, at *1 (Minn.
App. July 31, 2001) (the defendant told the victim’s friend that “if the victim pressed charges,
he would ruin the victim’s life or kill her”) (emphasis added); and State v. McGinnis, No. A15-
1043, 2016 WL 3659127, at *2 (Minn. App. July 11, 2016) (the defendant told a witness to a
shooting “to keep her mouth shut, and said, ‘ If the cops talk to you, you don’t know me, you
weren’t there, [you] don’t know nothing’”) (emphasis added) (alteration in original) , review
denied (Minn. Sept. 28, 2016). While these cases hold that phrases like “cops,” “police,” and
“press charges” are sufficient to sustain a conviction, they do not reach the issue here where
more general language is used.
9
judge.” Id. at 915 (citing Mo. Rev. Stat. § 575.270.2 (200 0)). The court held that a
reasonable juror could find that the “defendant attempted, by threatening [the victim] if she
told ‘anyone,’ to prevent or dissuade [the victim] from reporting defendant’s actions to the
proper authorities.” Pullum, 281 S.W.3d at 916. Just as the defendant’s more general
threat in Pullum could reasonably include law enforcement authorities, so does Muckle’s
threat to the four-year-old here.
Muckle further argues that even if his behavior could be prohibited by the
aggravated witness tampering statutory language, the state failed to prove he had the
requisite intent to commit the crime. Again, we disagree.
The statute requires that a defend ant intentionally prevent, or attempt to prevent, a
person from providing law enforcement with information about a crime. Minn. Stat.
§ 609.498, subd. 1b(a)(4). The use of the words intentionally and attempt makes witness
tampering a specific intent crime. State v. Collins, 580 N.W.2d 36, 44 (Minn. App. 1998),
review denied (Minn. July 16, 1998). While intent is often proved by circumstantial
evidence, this is not always the case . See State v. Cooper, 561 N.W.2d 175, 179 (Minn.
1997) (stating intent is generally proved through circumstantial evidence) . Here, there is
direct evidence of Muckle’s intent, in his statement that he would kill H.Z. if she told
“anybody.” And if Muckle intended that H.Z. understand this threat , he would likely not
have stated explicitly “law enforcement authorities” because most four -year-olds would
10
not understand such language. It is much more likely that a four-year-old would understand
not to tell “anybody.”7
Because “anybody” can include law enforcement, Muckle’s threat is direct evidence
of his intent. This fulfills the intent element the statute requires, and the state has therefore
met its burden in providing sufficient evidence for a jury to find Muckle guilty of
aggravated witness tampering.
II. Sufficient evidence supports Muckle’s second-degree criminal sexual conduct
conviction.

Muckle argues that insufficient evidence was produced at trial to prove he
committed the convicted offense of second -degree criminal sexual conduct . To support
this argument, Muckle asserts the testimony of the child victim was “not credible” and the
corroborating evidence presented in the case was “entirely lacking and utterly
unconvincing, even recognizing the appellate standard of review.”
Generally, the testimony of a single credible witness may be sufficient to sustain a
conviction. State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). The credibility and the
weight to afford a witness’s testimony is a question for the jury. State v. Weya us, 836
N.W.2d 579, 586 -87 (Minn. App. 2013), review denied (Minn. Nov. 12, 2013). Under

7 Muckle argued that his comment not to t ell “anybody” was not direct evidence as it was
too broad to show his intent, and asked instead that this court consider the comment
circumstantial evidence and appl y the heightened scrutiny circumstantial evidence
requires. In doing so, Muckle urges the court to consider that he made the comment in
response to H.Z. stating she would tell her mother about the abuse, and therefore could
have intended simply to dissuade H.Z. from telling her mother. B ut because we hold that
“anybody” includes law enforcemen t, Muckle’s comment is direct evidence of his intent
and we reject Muckle’s argument that the circumstantial evidence standard should apply.
11
Minnesota law, in cases involving criminal sexual conduct, the victim’s testimony need
not be corroborated. Minn. Stat. § 609.347, subd. 1 (20 08); see also State v. Ani, 257
N.W.2d 699, 700 (Minn. 1977) (upholding constitutionality of the statute). While a lack
of corroboration in an individual case may call for a holding of insufficient evidence, such
is not the case when a victim’s testimony is “positive and not contradicted, and was strongly
corroborated by other evidence.” Ani, 257 N.W.2d at 700.
Muckle’s credibility argument rests on H.Z.’s inconsistencies as to the nature of the
sexual conduct, where it took place and when it occurred . We consider then, how t hose
inconsistencies relate to the elements of the offense.
In order to prove this sexual misconduct offense , the state needed to show that:
(1) Muckle touched H .Z.’s intimate parts, or the clothing in the immediate area of her
intimate parts; (2) Muckle’s act was committed with sexual or aggressive intent; (3) at the
time of the act, H.Z. was under the age of 13; (4) Muckle was more than 36 months older
than H.Z.; and ( 5) the act took place on or about May 1, 2010. Minn. Stat. § 609.343,
subd. 1(a); 10 Minnesota Practice, CRIMJIG 12.15 (2017).
The first four of these elements are clearly met. H.Z. consistently stated that Muckle
touched her “private parts” either over her underwear or without underwear, and identified
her private parts as her vagina. Muckle’s act was committed with sexual intent,
exemplified by him telling H .Z. he was touching her because he did not have a girlfriend
yet. A comparison of H.Z.’s and Muckle’s birthdates show that she was under 13, and he
is over 36 months older than her.
12
The last element we consider then is when the act took place. In contrast to the
charged date of May 1, 2010, H.Z. testified that the sexual abuse took place during her
kindergarten year, on or about May 1, 2011. She identifies this date specifically based on
a conversation with her kindergarten teacher. But in May of 2011, Muckle was living with
his father in Colorado. And H.Z. alleges that the abuse took place at the Wheaton Inn, but
she and her family had already moved out of the Wheaton Inn a nd into a house in March,
2011. While contradictory, t hese two inconsistencies fail to show that there was
insufficient evidence to convict Muckle of criminal sexual conduct , in light of H.Z.’s
consistent testimony that the abuse happened on multiple occasions, that each time Muckle
touched her vagina, and that Muckle threatened her life . “[I]nconsistencies are a sign of
human fallibility and do not prove testimony is false, especially when the testimony is
about a traumatic event.” State v. Mosby, 450 N.W.2d 629, 634 (Minn. App. 1990), review
denied (Minn. Mar. 16, 1990). Minor inconsistencies are immaterial when a victim’s
testimony is consistent as a whole. State v. Jackson , 741 N.W.2d 146, 153 (Minn. App.
2007).
Further, t here is corroborating evidence that Muckle committed criminal sexual
conduct around the charged date. First, while H.Z. states she was in kindergarten at the
time of the abuse, she also stated she was either four or five years old. H.Z. would have
been four years old in May 2010, and five years old in May 2011. Second, H.Z.’s mother
testified that H.Z. started exhibiting behavioral problems including sexualized behavior
around the time she started kindergarten, this would be in fall 2010 and prior to May 2011.
Third, t he dean of students at H.Z.’s school reported challenging behaviors from H.Z.
13
starting at the beginning of kindergarten in fall 2010. Lastly, H.Z. reported the abuse
happened at the Wheaton I nn where she was living with her family. In May 2010, she
would have been living at the Inn. By May 2011, her family had already moved from the
Wheaton Inn to a house. And in May 2011, Muckle would have already left the state and
moved to Colorado to live with his father. In May 2010, Muckle lived with his mother in
the same town as H.Z. 8 Given H.Z.’s consistent testimony that the abuse happened on
multiple occasions, the type of touching it involved, and statements Muckle made to H.Z.,
and the corroborating evidence that Muckle abused H.Z. in May 2010, there is sufficient
evidence for a reasonable jury to find Muckle guilty of the offense.
Muckle compares this case to State v. Butenhoff, 279 Minn. 177, 188, 155 N.W.2d
894, 900 (1968), a case where th e court held that inconsistent, contradictory and
uncorroborated testimony of a seven-year-old victim was not enough to sustain a criminal
sexual conduct conviction. But Butenhoff presented significantly more inconsistencies
than we observe here. The vic tim there provided alternative explanations for the

8 Muckle points to other inconsistencies in H .Z.’s testimony including whether Muckle
touched her over her underwear or when she was not wearing underwear, whether Muckle
pinched her during the abuse, whether Muckle had his clothes off or whether he asked H.Z.
to touch him. These inconsistencies are immaterial to the conviction. The elements of the
crime include eit her direct ly touching the intimate parts or touching of the clothing
immediately above those intimate parts. Muckle was acquitted of second-degree criminal
conduct using force or coercion and causing personal injury, so the pinching is
inconsequential. See Minn. Stat. § 609.343, subd. 1(e)(i). Whether Muckle had his clothes
off or asked H.Z. to touch him are not elements of the criminal sexual conduct offense he
was convicted of.
14
defendant’s actions, and stated he did not know the difference between truth and a lie.9 Id.
at 180, 155 N.W.2d at 895-96. And, critically, there was no corroboration of the victim’s
testimony in Butenhoff. Id. at 183, 155 N.W.2d at 897.
Here, H.Z. is unequivocal that the abuse happened and provides consistent details
as to how it happened. H.Z. does know the difference between truth and a lie, something
she explained during her forensic interview. And there is corroborating evidence provided
through testimony about H.Z.’s behaviors and her living situation. H.Z.’s largely
consistent testimony and corroborating evidence provides a course of events that is much
more consistent than that in Butenhoff.
Because H.Z.’s testimony was credible and the corroborating evidence sufficient to
correct any inconsistencies, there is sufficient evidence that Muckle committed criminal
sexual conduct in the second degree against H.Z.
III. Sufficient evidence proves Muckle committed false imprisonment.

Muckle further contends that insufficient evidence was presented at trial to convict
him of false imprisonment. That offense requires: (1) Muckle intentionally restrained H.Z.;
(2) that Muckle knew he had no authori ty to restrain her; (3) H.Z. was a child, and not
Muckle’s child, and H.Z.’s parent did not consent to the restraint; and (4) Muckle’s actions
took place on or about May 1, 2010. See Minn. Stat. § 609.255, subd. 2; 10 Minnesota
Practice, CRIMJIG 15.04 (2017).

9 The district court ultimately found that the victim knew the difference between the truth
and a lie and therefore allowed him to testify but, as the supreme court noted, that testimony
was notably inconsistent. Butenhoff, 279 Minn. at 180, 155 N.W.2d at 895.
15
The record plainly establishes the first three elements of false imprisonment. H.Z.
testified that Muckle stopped her from leaving the room at times when he abused her.
Muckle would reasonably have known that he could not restrain her from leaving certain
rooms while babysitting her. And even though Muckle was left in charge of watching H.Z.
at times, there is no indication that H.Z.’s mother consented to her confinement to certain
rooms. The last element is time, and Muckle asserts that there is no testimony or other
evidence on the record supporting a conviction for false imprisonment specifically during
the May incident. While this is true, H.Z. testified that Muckle kept her from leaving
“almost every time” he abused her, and we assume that the jury believed her. See Moore,
438 N.W.2d at 108. This testimony is sufficient evidence to satisfy the final element of
false imprisonment.
Because the state presented evidence to satisfy each element of each convicted
offense, we hold that there was sufficient evidence for a jury to find, beyond a reasonable
doubt, that Muckle committed aggravated first -degree witness tampering, second -degree
criminal sexual conduct, and false imprisonment.
Affirmed.