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This opinion will be unpublished and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
A17-1615

State of Minnesota,
Respondent,

vs.

Joshua Dale Swift,
Appellant.

Filed September 17, 2018
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-16-30849

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

Michael O. Freeman, Hennepin Coun ty Attorney, Brittany D. Lawon n, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Jesson, Judg e; and Klaphake,
Judge.


 Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant argues that the evidence is insufficient to support his conviction for third-
degree criminal sexual conduct. We affirm.
FACTS
In March 2016, S.R. moved with her mother, step-father, and si blings to Sartell.
S.R. was 14 years old. She had trouble making friends in Sarte ll, so she created profiles
on social media sites Tinder and Plenty of Fish. While she initially thought these sites were
just for meeting people and hanging out, she later learned that Tinder was more of a “hook
up” site. Because Tinder requires users to be at least 18 year s old, S.R. listed her age as
18.
It was on Tinder that S.R. first had contact with appellant Jo shua Dale Swift. The
two began communicating through o ther applications, including S napchat and TextNow.
Swift was 35 years old. The two decided to meet in person on A pril 6, 2016. This was a
school day for S.R., who was in eighth grade. S.R. called her school, pretending to be her
mother, and reported she would be out that day. Swift then picked up S.R. outside a church
across the street from S.R.’s home. Swift drove the two of the m to his home in Mound.
They stopped for coffee and food on the road. When they reached Swift’s home, the two
talked, watched movies, and kissed. Then Swift drove S.R. home. She arrived around 2:00
p.m., before her mother would return from work.
The two met three more times, under similar circumstances, on April 11, 21, and
May 2, 2016. Each day was a sch ool day, requiring S.R. to call her school, pretending to

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be her mother, and excuse herself. During their last meeting o n May 2, the two went to
Minnehaha Falls because it was Swift’s birthday, walked around and took photos, and then
went to Swift’s home where they had sexual intercourse.
On May 10, 2016, flowers from Swift arrived at S.R.’s home. S.R.’s younger sister
alerted their mother. S.R.’s mother was concerned about who se n t t h e f l o w e r s . S . R .
eventually admitted the flowers were from a man and that she had sex with him. Records
of text messages between S.R. and Swift demonstrate that S.R. t hanked Swift for the
flowers but told him he could not send things like that to her house. Swift indicated the
flower company (alerted by S.R.’s mother) called him. And then he asked how old S.R.
really was, and stated “[y]ou are only 14 years old. I cannot talk to you anymore. You lied
to me.”
The following day, S.R.’s mother brought her to the police sta tion to report this
relationship. An officer interviewed S.R., and she identified Swift as the man she had been
seeing. The officer asked her about the sexual contact general ly, but did not inquire in
much detail. S.R. told the officer she had sexual intercourse with Swift twice, on the second
and fourth meetings. The officer did not ask S.R. to complete a sexual-assault examination
because more than 72 hours since the last alleged sexual encounter had already passed.
S.R. was interviewed again a few days later by a female office r. To that officer,
S.R. reported she had sexual intercourse with Swift on three occasions—all of the meetings
but the first—and she defined intercourse as a penis in a vagina. S.R. explained that Swift
had performed oral sex on her, but that she had not performed o ral sex on him. S.R.
described and drew sketches of S wift’s house including the outs ide, the living room, and

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the bedroom. She described a medical device in Swift’s room and identified the sheets on
his bed as purple. S.R. said she only had sex with Swift in his bedroom.
Police executed a warrant on Swift’s house. The layout of the outside of the house,
along with the inside of the living room and bedroom, was large ly consistent with S.R.’s
drawings. And Swift’s sheets were, in fact, purple. Swift volunteered to come to the police
station to speak with officers. H e explained that he thought h e had been dealing with an
18 to 20 year old. He explained that he has trouble meeting wo men his own age (35)
because he looks younger. He also explained that he had cystic fibrosis, explaining the
medical device in his bedroom. When asked whether he brought S .R. to his home, Swift
responded “[u]m, I would have to say that you can come to that conclusion on your own.”
And in response to whether the t wo had sex, Swift responded, “U m, um, I would love to
have a lie detector test.”
In November 2016, the state filed a complaint against Swift, c harging him with
third-degree criminal sexual conduct-victim between the ages of 13-15 and defendant more
than 24 months older.
1 The charge stemmed from his last three meetings with S.R. on
April 11, 21, and May 2. The case proceeded to a three-day jur y trial, where S.R., her
mother, and three police officers who investigated the case testified.
In her testimony, S.R. describe d her contacts with Swift. She told the jury they had
sexual intercourse three times, during each of their last three meetings. During at least the
first sexual encounter, the sex started in the living room before going to the bedroom. She

1 In violation of Minnesota Statutes section 609.344, subd. 1(b) (2014).

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reported that Swift performed oral sex on her, but that she also performed it on him on two
occasions. She also reported that Swift took a video of them having sex during their third
meeting. When asked about some of the inconsistencies between her testimony and her
previous statements to police, S.R. explained that she was emba rrassed to talk about the
whole situation, especially with strangers and a male police officer.
The jury found Swift guilty of third-degree criminal sexual co nduct for the final
meeting on May 2, 2016. They acquitted him of the charge on the earlier two dates. The
district court stayed imposition of Swift’s sentence and placed him on 180 days of home
monitoring, as well as five years’ probation.
Swift appeals.
D E C I S I O N
Swift argues that there was ins ufficient evidence to convict h im of third-degree
criminal sexual conduct because the only eyewitness against him—S.R.—was not credible.
W h e n r e v i e w i n g a c l a i m o f i n s u f f icient evidence, this court is limited to a painstaking
analysis of the record to determ ine 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).
Generally, “a conviction can rest on the uncorroborated testim ony of a single
credible witness.” State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969). And

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in criminal-sexual-conduct crimes, the testimony of a victim do es not require
corroboration. Minn. Stat. § 609.347, subd. 1 (2016).
S.R. was the only witness who testified to the sex act that co nstituted Swift’s
conviction for criminal sexual c onduct. Swift argues that beca use S.R. lied at multiple
instances throughout this case, a nd because she made inconsiste nt statements, she is not
credible enough to provide sufficient proof for that conviction and there is no corroborating
evidence. We address each argument in turn.
Swift argues that, because of S.R.’s multiple lies, she is not credible. And S.R. did
lie—she misrepresented her age on a dating site and did not inform Swift of her actual age
until after he found out from the flower company. She excused herself from school,
pretending to be her mother. S.R. initially lied to her mother about who sent her the
flowers, telling her she did not know who they were from, then saying they were from a
friend, before admitting they came from an older man. But thes e are all lies that the jury
was made aware of. During her testimony, S.R. admitted to each of the above instances
and explained some of the reasoning behind it. The jury heard this and still determined she
was sufficiently credible to support the verdict. This is the appropriate role for the jury.
See State v. Mems , 708 N.W.2d 526, 531 (Minn. 2006) (“Assessing the credibility of a
witness and the weight to be given a witness’s testimony is exclusively the province of the
jury.”).
Swift further argues that S.R.’s statements to police are inco nsistent with her
testimony at trial, making her not credible. Some inconsistenc ies in S.R.’s testimony do
exist, but inconsistencies do not necessarily constitute false testimony or require reversal.

7
State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). And when assessing the sufficiency
of evidence, a reviewing court must recognize that inconsistencies in evidence are resolved
in favor of the state. State v. Budreau, 641 N.W.2d 919, 929 (Minn. 2002).
The inconsistencies here are minor and do not directly relate to the elements of the
crime that the jury determined took place on May 2, 2016. Swift points to the fact that S.R.
told police that she did not perform oral sex on Swift, but at trial testified that she had. S.R.
also said to police that the two only had sex in the bedroom, w hile she testified that sex
began in the living room and moved to the bedroom. But in this case, the required elements
for third-degree criminal sexual conduct are that sexual penetr ation occurred between a
victim who is between 13 and 16 years old, with a perpetrator who is more than 24 months
older than the victim. Minn. Stat. § 609.344, subd. 1(b). S.R . never wavered on the fact
that there was sexual intercourse during multiple meetings with Swift.
Inconsistencies “are a sign of the fallibility of human percep tion—not proof that
false testimony was given at trial.” State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983)
(quoting State v. Hanson , 286 Minn. 317, 355, 176 N.W.2d 607, 618 (1970)). This is
especially true in regard to a traumatic or extremely stressful incident. Id. And S.R. is a
14 year old who was admittedly nervous and embarrassed to discu ss sexual acts with
strangers.2

2 Swift also states in his brief that S.R. “lied” about Swift vi deotaping the two having sex
because she did not bring it up prior to trial. But there is n o indication in the record that
this was at all inconsistent with her previous statements, because there is no evidence that
S.R. was ever asked if Swift had videotaped their interactions.

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Finally, Swift argues there is no corroborating evidence to support S.R.’s testimony.
But corroborating evidence is not necessary in criminal-sexual-conduct cases. Minn. Stat.
§ 609.347, subd. 1. Swift argues that this case is an exception to that general rule, since it
is the type of case contemplated in State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977), which
states that while corroboration of a victim’s testimony is not required, an individual case
“may well call for a holding that there is insufficient evidence upon which a jury could find
the defendant guilty beyond a reasonable doubt.” But in Ani, the court determined
corroboration was not needed because the victim’s testimony was positive, uncontradicted,
and there was corroborating evidence. Id. Here, too, the victim’s testimony was detailed,
largely consistent as to the elements of the crime, and uncontradicted because Swift never
denied the crime on the record. No corroboration is required.
And even if corroboration was required, there is corroborating evidence here. The
number of times S.R. met with Swift is corroborated by the days she missed school in April
and May—and her mother never ca lled in her absence during those months. S.R. could
accurately describe Swift’s house, both the exterior and interior. She knew the color of his
sheets, and other accurate details about his bedroom. This corroborates S.R.’s testimony.3

3 Swift argues these facts only corroborate that she was in his home, not that the two had
sex. But this argument is not persuasive. The fact that S.R. was there, in Swift’s bedroom,
and familiar with details as specific as the color of his sheet s does provide some
corroboration and support for her testimony. See State v. Myers , 359 N.W.2d 604, 608
(Minn. 1984) (determining that even with no physical evidence t o corroborate a victim’s
testimony, other witness testimony supporting the date and time of an alleged incident, and
testimony that provided support f or the consistent and positive nature of the victim’s
statements, provided some corroboration); State v. Star, 248 Minn. 571, 576, 81 N.W.2d
94, 98 (1957) (holding that in t he context of accomplice corrob oration, corroborating

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Credibility determinations are the province of the jury, and t he testimony of a
criminal-sexual-conduct victim does not require corroboration. Thus we determine S.R.’s
testimony provided sufficient ev idence to prove Swift committed third-degree criminal
sexual conduct.
Affirmed.

evidence “may be circumstantial in nature and may relate to the conduct of the accused,
such as evidence of his presence at the scene of the crime”).