State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0160

State of Minnesota,
Respondent,

vs.

Gerald Karl Ackerson,
Appellant.

Filed December 24, 2018
Affirmed
Kalitowski, Judge*

Clay County District Court
File No. 14-CR-16-1623

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

Brian J. Melton, Clay County Attorney, Pamela L. Foss , Assistan t County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Florey, Judge; and Kalitowski,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment 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
KALITOWSKI, Judge
Appellant Gerald Karl Ackerson challenges his conviction of first-degree criminal
sexual conduct, arguing that insufficient evidence supported the conviction.1 We affirm.
D E C I S I O N
Ackerson argues that the state failed to provide sufficient evidence of the
penetration and injury elements for first-degree criminal sexual conduct ( CSC). An
appellate court examining a sufficiency -of-the-evidence challenge “conduct [s] a
painstaking review of the record to determine whether the evidence and reasonable
inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient
to allow the jury to reach its verdict.” Lapenotiere v. State, 916 N.W.2d 351, 360-61 (Minn.
2018) (quotation omitted). This court “extend[s] a broad review of questions of fact when
reviewing the sufficiency of the evidence, and leave [s] the weight and credibility of the
testimony in the province of the jury.” Id. at 361 (quotations and citation omitted). In order
to find Ackerson guilty of first-degree CSC—mentally-impaired victim/personal injury,
the state had to prove that he (1) “engage[d] in sexual penetration,” (2) with the victim
A.F., (3) caused her “personal injury,” and (4) knew or had reason to know that A.F. was
mentally impaired. See Minn. Stat. § 609.342, subd. 1(e)(ii) (2014) (listing elements).

1 Appellant also appealed his “conviction” of third-degree criminal sexual conduct, but the
district court, after erroneously entering a conviction for that charge, vacated it. Ackerson
therefore has no third-degree conviction to appeal. See State v. Hoelzel, 639 N.W.2d 605,
609 (Minn. 2002) (concluding that verdict of guilt, without recorded judgment of
conviction, is not final, appealable judgment).

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Penetration element
“‘Sexual penetration ’ means any of the following acts committed without the
complainant’s consent . . . (2) any intrusion however slight into the genital or anal openings
. . . by any par t of the body of another person .” Minn. Stat. § 609.341, subd. 12 (2)(ii)
(2014). The record indicates that A.F. is a vulner able disabled adult who suffers from
traumatic brain injury, preventing her from “us[ing ] protective reactions,” and making it
difficult to “ambulate, stay vertical, [and] reposition” herself. At trial, A.F. testified that
Ackerson pulled her into a vacant apartment, “ pulled [her] pants down” and, after she
“pushed him away and said no,” he “ put his penis in [her]—or tried to put it in [her]
vagina.” A.F. testified that she felt Ackerson’s penis “in between my vagina and my anus.
. . . It hurt. . . . Down there on my vagina.” Three other witnesses testified at trial that A.F.
told them a similar account of the assault and the sexual assault nurse examiner testified
about how A.F. had stated during her examination that Ackerson started “jabbing his penis
in [her] butt.”
Ackerson argues that the evidence is “more consistent” with attempted CSC because
A.F. repeatedly used the word “tried” when describing the allegations. But Ackerson’s
argument ignores A.F.’s testimony and the evidence presented against this contention. See
Poehler v. Cincinnati Ins. Co., 899 N.W.2d 135, 141 (Minn. 2017) (stating that courts “may
consult the dictionary definitions” of words and “apply them in the context of [a] statute”);
The American Heritage Dictionary of the English Language 919, 1636 (4th ed. 2006 )
(defining “slight” as “[s]mall in size, degree, or amount,” and “intrude” as “[t]o put or force
in inappropriately”). Here, A.F.’s testimony and the testimony of other witnesses supports

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a finding that Ackerson made , at the very least , a “slight” “intrusion” into her “genitals”
and “anal opening.”
Ackerson also contends that insufficient evidence supports the penetration element
because of a lack of corroborating DNA evidence. But in a prosecution for first -degree
CSC, “the testimony of a victim need not be corroborated.” Minn. Stat. § 609.347, subd. 1
(2014). And we “assume as we must that the jury believed the State’s witnesses and
disbelieved conflicting evidence,” and recognize that “the jury is in the best position to
evaluate the evidence.” State v. Tscheu, 758 N.W.2d 849, 859, 861 (Minn. 2008). Here, the
jury evaluated the evidence, including A.F.’s statement about Ackerson “jabbing” his penis
“in [her] butt.” Looking at the evidence in a light most favorable to the verdict, we conclude
that sufficient evidence supports the “penetration” element. See State v. Sha mp, 422
N.W.2d 520, 526 (Minn. App. 1988) (concluding evidence sufficient to prove penetration
where victim testified that defendant touched her genital area, rubbed his fingers between
the folds of skin over her vagina, but did not insert his fingers “all the way”), review denied
(Minn. App. June 10, 1988).
Personal-injury element
“‘Personal injury’ means bodily harm as defined in section 609.02, subdivision 7,”
Minn. Stat. § 609.341, subd. 8 (201 4), which defines “bodily harm” as “physical pain or
injury, illness, or any impairment of physical condition ,” Minn. Stat. § 609.02, subd. 7
(2014). In State v. Bowser, the supreme court affirmed a conviction for first -degree CSC
where the defendant made a sufficiency-of-the evidence challenge and the victim testified
that “she felt considerable pain when defendant first penetrated her and the evidence also

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established that she suffered some personal injury in the form of the laceration of her
hymen, which resulted in bleeding.” 307 N.W.2d 778, 779 (Minn. 1981). T he supreme
court concluded that “[e]ither the pain or the minimal injury would be sufficient to establish
bodily harm under section 609.02 and therefore personal injury under section 609.341,
subd. 8.” Id.
Here, A.F. repeatedly testified at trial that “it hurt” in her genital and anal areas
when Ackerson “jabbed” her with his penis and that it continued hurting after the assault.
And the nurse -examiner’s report, entered into evidence without objection, states that a
“[b]right red secretion” was found in A.F.’s underwear and notes “bruising . . . to [A.F.’s]
left forearm, abrasion . . . to left knee, two areas of bruising noted to left anterior thigh.
Swelling, bleeding noted to anus.” The report concludes that A.F.’s “examination [wa] s
consistent with” her claim of assault. Based on this evidence, we conclude that A.F.
suffered both “pain” and “minimal injury,” proving “physical injury.”
Ackerson argues that because A.F. testified that she had a hemorrhoid at the time of
the assault that could have caused her pain, “the state failed to prove [he] caused the injury.”
Ackerson forfeits this argument because he fails to cite to law to support the contention
that a preexisting condition forecloses proving personal injury. See Scheffler v. City of
Anoka, 890 N.W.2d 437, 451 (Minn. App. 2017) (stating that “assignment of error on mere
assertion, unsupported by argument or authority, is forfeited and need not be considered
unless prejudicial error is obvious on mere inspection”), review denied (Minn. Apr. 26,
2017). Moreover, e ven if we considered the argument that the bleeding A.F. suffered
resulted from a hemorrhoid, the pain she felt during and after the assault still supports a

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finding that she suffered “physical injury” caused by Ackerson. See Tscheu, 758 N.W.2d
at 861 (affirming CSC conviction where victim experienced discomfort during penetration
due to existing hemorrhoids); Bowser, 307 N.W.2d at 779 (“Either the pain or the minimal
injury would be sufficient to establish bodily harm . . . and therefore personal injury.”). We
conclude the evidence sufficiently establishes, beyond a reasonable doubt, that Ackerson
sexually penetrated A.F. and caused her personal injury.
Affirmed.