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This opinion will be unpublished and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
A17-1259

State of Minnesota,
Respondent,

vs.

Aaron Leeroy McCulloch,
Appellant.

Filed July 23, 2018
Affirmed
Reyes, Judge

St. Louis County District Court
File No. 69VI-CR-16-1172

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

Mark S. Rubin, St. Louis County Attorney, Sharon Chadwick, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presid ing Judge; Johnson, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his conviction of first-degree criminal sexual conduct, arguing
that the evidence is insufficient to support his conviction. We affirm.

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FACTS
On the evening of August 13, 2016, A.E. attended a con cert with her father and
consumed several beers to the point of intoxi cation. After the concert, A.E.’s father
dropped her off at her apartment building, where she encountered appellant Aaron Leeroy
McCulloch, a resident of the building. A.E. and appellant talked outside the apartment
building, and then A.E. invited appellant to her apartment.
A.E. and appellant consumed beers and shots of tequila in A.E.’s apartment, played
video games, and then began kissing. A.E. testified that she consented to the contact until
appellant bit down hard on her le ft breast, causing severe pain and leaving a large bruise.
According to A.E., appellant then followed her to the kitchen, and when she told him she
receives disability benefits and does not work , he became angry and hit her in the face,
causing the back of her head to smash into the kitchen cabinets and leaving facial scratches.
A.E. did not remember much of what follo wed. She next remembered lying face-
down on her bed, naked, while appellant penetrated her ana lly with his penis and pushed
her face into the bed. A.E. said that her head struck the wall ne xt to her bed, that she felt
pain in her anal area, that she told appellant no and to stop, and that she cried loudly while
being penetrated. The last th ing A.E. remembered was appellant striking her hard on her
lower back and bruising her. When she awoke later that day, appellant was gone. A.E.
spent the rest of the day in her apartment by herself.
The next day, A.E.’s father went to her apartment to check on her. He noticed marks
on A.E.’s neck and face, and it appeared to him that she had been beaten up. He convinced
her to go to the hospital for treatment.

3
At the hospital, A.E. reported that appellant had sexually assaulted her. The hospital
staff took swab samples from A.E.’s vagina, perineum, rectum, cervix, mouth, and left
breast. Subsequent forensic testing of th e cervical swab by the Minnesota Bureau of
Criminal Apprehension found semen and a DNA mixture inclusive of both A.E. and
appellant and exclusive of 99.999 percent of the human population. The forensic testing
found semen on the anal and perineal swabs, and amylase, an enzyme in saliva, on the swab
of her left breast. DNA testing was not perfo rmed on the anal or perineal swabs because
they lacked sufficient quantities of semen, or on the breast swab. The hospital staff took
photographs of the scratches on A.E.’s shoulder, face, and neck, and of the bruises on her
lower-middle back, knee, leg, and left breast.
Law-enforcement officers responded to A. E.’s report of sexual assault. They
collected the swab samples and recorded a statement from A. E., who identified appellant
as the perpetrator. The officers located appella nt at his apartment, and after he admitted
having sexual contact with A.E., they arrested him and transported him to jail. Following
a Miranda warning, appellant waived his rights and agreed to be interviewed.
Appellant told the officers that he and A.E. drank and played video games in her
apartment, and that, after they kissed, she led him to her bedroom where they attempted
sexual intercourse in different positions. Appe llant claimed that he could not achieve an
erection because of his guilty feelings over having a girlfriend, and that A.E. felt rejected
and began acting strangely, so he panicked and left. The officers asked appellant if he had
thrown A.E. into a wall, and appellant initially said no. After further questioning, appellant
said that he does not get violent, that he did not remember doing anything violent, and that

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he did not think he would throw A.E. into a wa ll. The officers asked appellant if he bit
A.E., and appellant said he did not remember. Appellant told the officers that he did not
think that A.E. had passed out.
Respondent State of Minnesota charged appe llant with (1) first-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2016) (causing personal
injury and use of force or co ercion), and (2) first-degree criminal sexual conduct, in
violation of Minn. Stat. § 609.3 42, subd. 1(e)(ii) (2016) (c ausing personal injury to a
physically helpless victim). 1 Following trial, a jury foun d appellant not gu ilty of first-
degree criminal sexual conduct with a physically helpless victim, but guilty of first-degree
criminal sexual conduct for use of force or coercion. The district court entered a conviction
of first-degree criminal sexual conduct and sentenced appellant to 90 months’
imprisonment. This appeal follows.
D E C I S I O N
I. The jury’s acquittal of first-degree crim inal sexual conduct against a physically
helpless victim does not constitute a reason to question A.E.’s credibility.
Appellant argues that the jury’s acquitta l of one first-degree criminal-sexual-
conduct charge provides cause to question A.E.’s credibility because the state did not
present evidence corroborating her testimony. We disagree.
Appellate courts must assume that the jury “believed the state’s witnesses and
disbelieved any evidence to the contrary.” State v. Hall, ___ N.W.2d ___, ___ 2018 WL

1 The state also charged appellant with third- degree assault in viol ation of Minn. Stat.
§ 609.223, subd. 1 (2016), which the state later dismissed.

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2407194, at *6 (Minn. App. May 29, 2018) (quoting State v. Moore, 438 N.W.2d 101, 108
(Minn. 1989)). “This is especially true 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.2d 580, 584 (Minn. 1980 ). “[I]t is well-settled that a
conviction can rest on the uncorroborated testimony of a single credible witness.” Staunton
v. State, 784 N.W.2d 289, 298 (Minn. 2010) (quoting State v. Hill , 285 Minn. 518, 518,
172 N.W.2d 406, 407 (1969)). But reviewing courts may raise doubts about the sufficiency
of the evidence when the victim’s testimony is uncorroborated and additional reasons exist
to question the victim’s credibility. See State v. Foreman, 680 N.W.2d 536, 538-39 (Minn.
2004).
In general, “acquittals . . . shed no light on which circumstance s the jury believed
or disbelieved . . . [and] only demonstrate that the jury believed the state failed to establish
the elements of [the offense.]” State v. Montermini , 819 N.W.2d 447, 461 (Minn. App.
2012). Here, the district court instructed the jury that, as an element of first-degree criminal
sexual conduct against a physically helple ss victim, the state had to prove beyond a
reasonable doubt that appellant knew or had reason to know that A.E. was physically
helpless. The evidence presented included appe llant’s statement that he did not believe
A.E. passed out because she had spoken to him the entire time. The state submitted no
physical evidence or expert testimony to establish the precise cause of A.E.’s memory loss.
As a result, the jury’s acquittal on the charge of criminal sexual conduct with a physically
helpless victim demonstrates only that the st ate failed to sufficien tly prove appellant’s
knowledge of A.E.’s condition; it does not show that the jury found A.E.’s testimony not

6
credible. Nor does it constitu te an “additional reason” to question A.E.’s credibility.
Therefore, this is not a cas e in which the uncorroborate d testimony of a victim is
insufficient to support the conviction. See Foreman, 680 N.W.2d at 538-39. Moreover,
we observe that the state presented substant ial corroboration of A.E.’s trial testimony,
including forensic evidence, photographs of her injuries, and her prior consistent reports of
sexual assault.
II. The evidence is sufficien t to support appellant’s co nviction of first-degree
criminal sexual conduct.
Appellant concedes that he “intentionally penetrated A.E.,”2 but he argues that the
evidence was insufficient to prove that (1) the penetr ation occurred without her consent;
(2) he used force or coercion to accomplish the penetration of A.E.; and, (3) he caused
personal injury to her. We disagree.
Our review of a sufficiency-of-the-evidenc e challenge is “limited to a painstaking
analysis of the record to determine whether the evidence, when view ed in a light most
favorable to the conviction, wa s sufficient to permit the jurors to reach the verdict which
they did.” State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005) (quotation omitted). We
will not disturb the verdict if the jury, in acting with due re gard for the presumption of
innocence and the requirement of proof bey ond a reasonable doubt, could reasonably

2 Appellant argues in his pro se supplemental brief that the DNA evidence is insufficient
to prove that he anally penetrated A.E. However, because appellant admits that he
vaginally penetrated A.E., and the statute dr aws no distinction between vaginal and anal
penetration, Minn. Stat. § 609.341, subd. 12 (2 016), his contention that he did not anally
penetrate the victim is irrelevant to his conviction.

7
conclude that the defendant was guilty of the charged offense. Bernhardt v. State , 684
N.W.2d 465, 476-77 (Minn. 2004).
To convict appellant of first-degree crim inal sexual conduct in violation of Minn.
Stat. § 609.342, subd. 1(e)(i), the state ha d to prove beyond a r easonable doubt that
appellant (1) committed sexual penetration of A.E.; (2) used force or coercion to
accomplish the sexual penetration; and (3) caused personal injury to A.E. State v. O’Brien,
364 N.W.2d 901, 904 (Minn. App. 1985), aff’d as modified, 369 N.W.2d 525 (Minn. 1985).
Under the statute defining criminal “sexual pe netration,” the state also had to prove that
appellant committed either sexual intercourse, an al intercourse, or in trusion into A.E.’s
genital or anal openings, without her consent. See Minn. Stat. § 609.341, subd. 12.
A. The evidence is sufficient to prove that A.E. did not consent to the sexual
penetration.

Appellant argues that the evidence is insufficient to prove that A.E. did not consent
to the penetration because his version of the events, as told to the investigating officers, is
“at the very least as credible as A.E.’s version.” We are not persuaded.
For first-degree criminal sexual conduct, c onsent is defined as “words or overt
actions by a person indicating a freely given present agreement to perform a particular
sexual act with the actor.” Minn. Stat. § 609.341, subd. 4(a) (2016). “Corroboration of the
victim’s testimony is not required to show lack of consent.” Id. at subd. 4(c).
A.E. testified at trial that she did not consent to either sexual intercourse with
appellant or any further sexual contact after a ppellant bit her breast. Appellant identifies
no evidence contradictory to A.E.’s testimony other than his own statements. Because we

8
defer to the jury’s cr edibility determinations, Pieschke, 295 N.W.2d at 584, appellant’s
contention that his account is as credible as the victim’s account is unavailing. The
evidence presented is sufficient to support the jury’s verdict that appellant’s penetration of
A.E., which he admits to, was committed without her consent.
B. The evidence is sufficient to prove that appellant used force or coercion
to accomplish the sexual penetration of A.E.
Appellant argues that the evidence is insu fficient to prove that he used force or
coercion to accomplish the sexual penetration of A.E. because she had limited memory of
the assault, did not specifically testify that appellant used force, and the yellow color of the
bruise on A.E.’s lower back indicates that the bruise was older than the date of the reported
assault.3 We disagree.
As an element of first-degree criminal sexual conduct, the state must prove that “the
actor use[d] force or coercion to accomplish sexual penetration.” Mi nn. Stat. § 609.342,
subd. 1(e)(i). To establish the use of force to accomplish sexual penetration, the state had
to prove that appellant either in flicted, attempted to inflict, or threatened to inflict bodily
harm on A.E., or committed or attempted to commit another crime against her. See Minn.
Stat. § 609.341, subd. 3 (2016). To estab lish the use of coercion to accomplish sexual
penetration, the state had to prove that appellant either caused A.E. to reasonably fear that
he would inflict bodily harm on her, or used confinement or superior size or strength to

3 Appellant also argues in his pro se supplemental brief that the yellow color of the bruise
on A.E.’s lower back, when compared to th e other bruises photographed on A.E.’s body,
shows that it was not caused during the reported assault. We addre ss appellant’s pro se
argument here.

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cause A.E. to submit to sexual penetration against her will. Minn. Stat. § 609.341, subd.
14 (2016). “Bodily harm” is defined, for the purposes of criminal sexual conduct, as
“physical pain or injury, illne ss, or any impairment of physical condition.” Minn. Stat.
§ 609.02, subd. 7 (2016).
Here, the state presented evidence to the jury of photographs of the bruises on A.E.’s
body taken the day after the assault, including one showing a bruise on her lower back.
Appellant presented no evidence and called no witnesses to place the age of the bruises in
doubt. A.E. testified that sh e did not have the bruises before the night of the assault, and
that appellant caused the bruise on her lowe r back by striking her “really hard” while
penetrating her. An examining nurse testified for the state that she could not determine the
age of the bruises based on their color and did not know whether a yellow color suggested
a particularly advanced stage of healing.
The state also introduced ot her evidence that appellant used force or coercion to
accomplish the sexual penetration of A.E. Contrary to appellant’s assertion, A.E.
specifically testified about appellant’s use of force or coercion, which included the
infliction of physical pain. A.E. testified th at she remembered appellant “forcing himself
on me, pushing me face down on the bed . . . , [and] forcing [his penis] into my anal area.”
A.E. testified that the penetration caused “a lo t of pain,” that she was scared and crying,
and that she told appellant to stop. When reporting the sexual assault, A.E. provided the
investigating officers with the same details and told them th at she felt appellant “shoving
my back down and kind of hurting me, and then I felt him putting himself in my anal area.”
A.E. also testified that her head banged against the wall next to her bed while being

10
penetrated. Based on this record, we conclude that the evidence is sufficient for the jury
to find that appellant used force or coercion to accomplish the sexual penetration of A.E.
C. The evidence is sufficient to prove that appellant caused personal injury
to A.E.
Appellant argues that the evidence is insu fficient to prove that he caused personal
injury to A.E. “An assignment of error based on mere assertion and not supported by any
argument or authorities in appellant’s brief is waived and will not be considered on appeal
unless prejudicial error is obvious on mere inspection.” State v. Andersen , 871 N.W.2d
910, 915 (Minn. 2015) (quotation omitted). Appellant cites neither legal authority nor the
record in support of his argument. Nevert heless, even if we considered appellant’s
argument on the merits, his argument is unpersuasive.
Personal injury is define d as “bodily harm as de fined in section 609.02,
subdivision 7, or severe mental anguish or pregnancy.” Minn. Stat. § 609.341, subd. 8
(2016). Bodily harm is defined in Minn. Stat. § 609.02, subd. 7, as “physical pain or injury,
illness, or any impairment of p hysical condition.” Pain or minimal injury is sufficient to
establish bodily harm under section 609.02. State v. Jarvis, 665 N.W.2d 518, 522 (Minn.
2003). Bruising constitutes “bodily harm” and “personal injury.” State v. Sollman , 402
N.W.2d 634, 636 (Minn. App. 1987). “[I]njuries need not necessarily be coincidental with
actual sexual penetration, they need only be sufficiently rela ted to the act to constitute
‘personal injury’ . . . .” Id. This court has concluded that “personal injury” was sufficiently
proven when the evidence showed that the victim’s “injur ies occurred on the night of the

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alleged assault and that they either were caused by the actual sexual act or were sufficiently
related to the assault.” Id.
Here, the photographic evidence overwhelmingly demonstrates that A.E. sustained
scratches and bruising on multiple locations of her body. A.E. testified that none of the
scratches or bruises were present before the night of the assault. In addition, she
experienced physical pain many times during the assault, including when appellant bit her
breast, struck her face, and penetrated her. The evidence is sufficient to prove that appellant
caused personal injury to A.E.
For these reasons, we conclude that the evidence is sufficient to support appellant’s
conviction of first-degree crime sexual conduct for use of force or coercion.
Affirmed.