In the Matter of the Welfare of: D. A. D., Child

This opinion will be unpublished and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
A17-0476

In the Matter of the Welfare of: D. A. D., Child

Filed September 5, 2017
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-JV-15-7377

Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant Public
Defender, St. Paul, Minnesota (for appellant D.A.D.)

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

Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, Assistant County
Attorney, Minneapolis, Minnesota (for respondent State of Minnesota)

Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Klaphake,
Judge.*
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this appeal from his extended jurisdiction juvenile convictions of aiding and
abetting first- and second-degree criminal sexual conduct, appellant argues that the state

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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failed to prove his guilt beyond a reasonable doubt and that his conviction of aiding and
abetting second -degree criminal sexual conduct must be vacated because it is a lesser
included offense of aiding and abetting first-degree criminal sexual conduct. We affirm in
part, reverse in part, and remand.
FACTS
Respondent State of Minnesota charged juvenile appellant D.A.D. by petition with
several counts of aiding and abetting fi rst-, second -, third -, and fourth -degree criminal
sexual conduct. The state alle ged that 16-year-old K.N. attended a party at a family
member’s home to watch a boxing match in May 2015. Appellant D.A.D. and A.K. were
at the party. After the fight was over, K.N. went to sleep in a makeshift bed under the
basement stairs, in the early morning hours of May 3. According to the petition, K.N. woke
to discover D.A.D. and A.K. on either side of her, kissing her and touching her all over her
body. K.N. said that D.A.D. penetrated her vagina with his fingers and his penis. During
the penile penetration, K.N. began to cry out for her father, and D.A.D. stopped. D.A.D.
and A.K. left the home, K.N. told family members she was raped, and K.N.’s mother called
the police.
The state moved to certify D.A.D. for trial as an adult. The district court held a
certification hearing, denied the state’s motion, and designated the matter an extended
jurisdiction juvenile (EJJ) prosecution. Before trial, the state dismissed the third - and
fourth-degree charges. The remaining charges were tried to a jury over the course of six
days. The jury heard testimony from K.N., K.N.’s sister, K.N.’s cousin, the mother of the
party’s hostess, a party guest, four police officers, two scientists from the Bureau of
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Criminal Appreh ension, a sexual -assault nurse examiner, a sexual-assault expert, A.K.
(who had pleaded guilty to fourth-degree criminal sexual conduct based on his involvement
in the incident), and D.A.D.
A.K. testified as follows:
Q: Did you see [K.N.] lay down under the stairs to go to
sleep?
A: Yes.
Q: Did she ask you to come and lay down next to her?
A: No.
Q: Did you hear her ask [D.A.D.] to come lay down next
to her?
A: No.
Q: After she laid down under the stairs, what did you do?
A: Laid down next to her.
. . . .
Q: Did you see where [D.A.D.] was?
. . . .
A: On the other side of her.
Q: When you laid down next to her, what did you do?
A: I kissed her neck.
Q: Did she kiss you back?
A: No.
Q: Did you touch her?
A: Yes.
Q: Did she touch you back?
A: No.
Q: Where did you touch her?
A: Her vagina.
Q: Was it over her clothes or under her clothes?
A: Over.
Q: What did you feel when you touched her vagina?
A: I felt fingers. I felt [D.A.D.’s] fingers down there.
Q: And what were his fingers doing?
A: Inside.
Q: They were inside [K.N.]?
A: Yes.
Q: Did you ever hear [K.N.] say, yes, that she wanted to do
that?
A: No.
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Q: Did you hear her say anything?
A: No.

K.N.’s testimony, in relevant part, was as follows:
Q: And you laid on your stomach to fall asleep. What
happened next?
A: I woke up to them —[D.A.D. and A.K.] had both c ame
in and [A.K.] was on my left side and [D.A.D.] was kind of on
my right-slash-backside.
. . . .
Q: What happened after you woke up to them on either
side?
A: They were kissing me on my neck and my face and they
were touching me all over my body.
. . . .
Q: [Did you] kiss them back?
A: No.
Q: Did you touch them back?
A: No.
Q: What did you do?
A: I laid there.
Q: You said you laid the re. What happened as you laid
there?
A: They continued to touch m e and feel me . . . . [A.K.]
was rubbing on my vagina and then [D.A.D .] lifted my butt
into the air, he put h is fingers inside me, and then he inserted
his penis into me.

When asked on redirect where D.A.D. and A.K. were touching her when she woke, K.N.
responded “my butt and my vagina.” But when asked for more detail, she said, “I don’t
remember.”
The sexual-assault nurse examiner testified that she examined K.N. approximately
four hours after the incident. She testified that K.N.’s labia “was swollen to the point where
[the labia minora] was actually protruding out” beyond the labia majora and that K.N.’s
hymen “was swollen out.” The nurse also indicated that K.N.’s vagina was too swollen to
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tolerate an examination with a speculum and that she was uncomfortable even attempting
an internal cotton swab.
D.A.D. testified at trial and implied that the sexual activity was consensual. He
testified that K.N. invited him to “come lay by” her, that she kissed him, and that she moved
to position herself for intercourse.
The jury found D.A.D. guilty of aiding and abetting first - and second-degree
criminal sexual conduct. The district court sentenced D.A.D. to 144 months in prison on
the first-degree count and 90 months in prison on the second -degree count, to be served
concurrently. The district court stayed execution of the prison terms and placed D.A.D. on
EJJ probation until his 21st birthday. D.A.D. appeals.
D E C I S I O N
I.
D.A.D. contends that the evidence was insufficient to sustain the jury’s guilty
verdicts. 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 jury to reach its verdict. State v. Webb, 440 N.W.2d
426, 430 (Minn. 1989). Because a jury is in the best position to evaluate the credibility of
witnesses and weigh evidence, we give a jury verdict “due deference.” State v. Brocks ,
587 N.W.2d 37, 42 (Minn. 1998). We assume the jury was persuaded by the evidence
supporting the conviction, especially “where resolution of the case depends on conflicting
testimony, because weighing the credibility of witnesses is the exclusive function of the
jury.” State v. Pieschke , 295 N.W.2 d 580, 584 (Minn. 1980). We will not disturb the
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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 v. State , 684 N.W.2d 465, 476 -77 (Minn.
2004).
“A person is criminally liable for a crime committed by another if the person
intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the
other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2014). D.A.D. was found guilty
of aiding and abetting first-degree criminal sexual conduct under Minn. Stat. § 609.342,
subd. 1(e)(ii) (2014), which provides that a “person who engages in sexual penetration with
another person . . . is guilty of criminal sexual conduct in the first degree if . . . the actor
causes personal injury to the complainant, and . . . the actor knows or has reason to know
that the complainant is . . . physically helpless[.] ” Sexual penetration incl udes “any
intrusion however slight into the genital or anal openings . . . of the complainant’s body by
any part of the actor’s body[.]” Minn. Stat. § 609.341, subd. 12 (2014). A sleeping person
is physically helpless. Id., subd. 9 (2014). D.A.D. was also found guilty of second-degree
criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(e)(ii) (2014), which
provides that a “person who engages in sexual contact with another person is guilty of
criminal sexual conduct in the second degre e if . . . the actor causes personal injury to the
complainant, and . . . the actor knows or has reason to know that the complaina nt is . . .
physically helpless[.]”
D.A.D. does not contest that he engaged in sexual penetration and contact with K.N.
or that K.N. suffered personal injury as a result. But he asserts that “no rational jury could
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have found on the evidence the state presented that K.N. was physically helpless when [he]
sexually touched and penetrated her.” He argues that the “record unequivocally establishes
that K.N. was awake when [D.A.D.] sexually penetrated her,” that K.N. “gave material
inconsistent statements about whether she was awake or asleep when the sexual touching
began,” and that “no rational jury . . . would have resolved thi s material conflicting
evidence against [D.A.D.].”
D.A.D.’s argument is unavailing when the following evidence is viewed in the light
most favorable to the conviction s. A.K. testified that after he saw K.N. lie down to go to
sleep, he lay down next to her and that D.A.D. was on the other side of her. A.K. testified
that he kissed K.N.’s neck and touched her vagina, and that K.N. did not kiss or touch him
back. A.K. also testified that when he touch ed K.N.’s vagina, he “felt [D.A.D.’s] fi ngers
down there” and that D.A.D.’s fingers were “ [i]nside” of K.N. A.K. testified that he did
not hear K.N. say anything during this touching. A.K.’s testimony provided a basis for the
jury to conclude D.A.D. digitally penetrated K.N.’s vagina while K.N. was asleep.
K.N.’s testimony that she woke up to D.A.D. and A.K. “touching [her] all over [her]
body” supports this view of the evidence. Although K.N. could not testify regarding what
D.A.D. did to her while she was asleep , A.K.’s testimony sufficientl y establishes that
D.A.D. digitally penetrated K.N. before she woke up. The jury’s verdicts indicate that it
resolved inconsistencies in K.N.’s testimony regarding whether she was awake or asleep
when the sexual touching began in favor of the state. In addition, the verdicts indicate that
the jury discredited D.A.D.’s testimony suggesting that K.N. was awake and consented to
his sexual advances. We defer to the jury’s resolution of any inconsistencies in the trial
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testimony. See Pieschke , 295 N.W.2d at 584 (stating that “weighing the credibility of
witnesses is the exclusive function of the jury”).
In sum, A.K.’s testimony, as buttressed by K.N.’s testimony, was sufficient to allow
the j ury to reasonably conclude , beyond a reasonable doubt , that D.A. D. was guilty of
aiding and abetting first- and second-degree criminal sexual conduct, because it proves that
he digitally penetrated K.N.’s vagina while she was asleep. We therefore do not disturb
the jury’s verdicts.
II.
D.A.D. argues, and the state a grees, that his EJJ conviction for aiding and abetting
second-degree criminal sexual conduct must be vacated because it is a lesser included
offense of aiding and abetting first-degree criminal sexual conduct. Minn. Stat. § 609.04,
subd. 1 (2014), allows convictions for “either the crime charged or an included offense, but
not both.” “A lesser degree of the same crime” or “[a] crime necessarily proved if the
crime charged were proved” is an included offense. Minn. Stat. § 609.04, subd. 1. In
determining whether an offense constitutes an included offense, we look to the statutory
elements and apply de novo review. State v. Cox , 820 N.W.2d 540, 552 (Minn. 2012);
State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986).
[T]he proper procedure to be followed by th e [district]
court when the defendant is convicted on more than one charge
for the same act is for the court to adjudicate formally and
impose sentence on one count only. The remaining
conviction(s) should not be formally adjudicated at this time.
If the a djudicated conviction is later vacated for a reason not
relevant to the remaining unadjudicated conviction(s), one of
the remaining unadjudicated convictions can then be formally
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adjudicated and sentence imposed, with credit, of course, given
for time already served on the vacated sentence.

State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
D.A.D. was convicted and sentenced for both first - and second -degree criminal
sexual conduct under Minn. Stat. § 609.342, subd. 1(e)(ii), and Minn. Stat. § 609.343, subd.
1(e)(ii). First-degree criminal sexual conduct requires sexual penetration, whereas second-
degree criminal sexual conduct requires sexual contact. Minn. Stat. §§ 609.342, subd.
1(e)(ii), .343, subd. 1(e)(ii). Because sexual penetration n ecessarily involves sexual
contact, second-degree criminal sexual conduct is a lesser included offense of first -degree
criminal sexual conduct. State v. Kobow, 466 N.W.2d 747, 752 (Minn. App. 1991), review
denied (Minn. Apr. 18, 1991) . Thus, the judgment of conviction on D.A.D.’s second -
degree EJJ conviction must be reversed under Minn. Stat. § 609.04, subd. 1.
Conclusion
Because the evidence was sufficient to sustain the jury’s guilty verdicts, we affirm
in part, leaving the judgment on D.A.D.’s EJJ conviction for aiding and abetting first -
degree criminal sexual conduct undisturbed. But because D.A.D.’s second-degree criminal
sexual conduct offense is a lesser included offense, we reverse the judgment on that offense
and remand for the district court to vacate th e attendant sentence, while leaving the
underlying guilty verdict in place.
Affirmed in part, reversed in part, and remanded.