Opinion
No. C0-01-2037.
Filed November 5, 2002.
Appeal from the District Court, Mille Lacs County, File No. K200537.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, and Janelle P. Kendall, Mille Lacs County Attorney, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, (for appellant)
Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
William Palmisano appeals from his conviction of second-degree criminal sexual conduct, arguing that the evidence submitted to the court on the element of sexual contact was too inconclusive and contradictory to support his conviction. Because the direct and circumstantial evidence is adequate to support the district court's finding of sexual contact, we affirm.
FACTS
The district court found William Palmisano guilty of one count of second-degree criminal sexual conduct for sexual contact with R.N., age seven. The state initially charged Palmisano with three counts of second-degree criminal sexual conduct and one count of attempted second-degree sexual conduct for incidents involving R.N. and her two sisters, A.A., age twelve, and A.W., age eleven. Two of the counts were dismissed, and the remaining two counts were submitted to the district court on stipulated facts under Minn.R.Crim.P. 26.01, subd. 3. The stipulated evidence included audiotaped interviews, videotaped interviews, and written transcripts. The district court found Palmisano guilty of one count of second-degree criminal sexual conduct involving R.N.
The evidence at trial established that Palmisano met the three children during the summer of 1999. On February 6, 2000, Palmisano was at their house, visiting the children and their mother. In the early afternoon he was alone in the basement of the home with R.N. In R.N.'s interview with a police officer and in a later interview with a social worker she said that while she was seated on Palmisano's lap playing computer games, Palmisano unsnapped and unzipped her pants. After unzipping R.N.'s pants, Palmisano began putting his hand in her shirt and then put his hands inside R.N.'s pants. According to R.N., Palmisano asked her if she liked it. R.N. said, "No." R.N. asked Palmisano to stop, but he did not.
A.A. reported that she observed the sexual contact from the other side of a sheet that partitioned the room. The children's mother had sent A.A. downstairs to see what R.N. and Palmisano were doing. A.A. saw Palmisano and R.N. from the side and partially from the front and saw Palmisano touching R.N.'s lower area. After A.A. realized what was happening, she ran upstairs to tell her mother. The children's mother called downstairs and told R.N. to come upstairs. When R.N. came up the stairs, her mother asked her how her pants became unzipped, and R.N. told her mother that Palmisano had undone them. In response to her mother's question, R.N. said that Palmisano had touched her in her private areas. The children's mother told Palmisano to leave, and he complied. She then contacted the police.
In an interview with a police investigator on February 11, 2000, Palmisano said that he was at the children's home on February 6 and that he was sitting at the computer with R.N. on his lap. He denied any sexual contact with R.N. Following his conviction on stipulated evidence, Palmisano brought this appeal.
DECISION
Palmisano's challenge to the sufficiency of the evidence is limited to the district court's finding that he had sexual contact with R.N. In reviewing a sufficiency-of-the-evidence challenge, we determine whether, given the facts in the record and the legitimate inferences that may be drawn from them, a factfinder could reasonably conclude that the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We do not retry the facts but instead view the evidence in the light most favorable to the district court's findings and assume that the district court believed the testimony that supports those findings and disbelieved any evidence that does not. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
For purposes of defining second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2000), "sexual contact" is "the intentional touching by the actor of the complainant's intimate parts" with sexual or aggressive intent. Minn. Stat. § 609.341, subd. 11(a) (2000). "Intimate parts" includes the primary genital area, groin, inner thigh, buttocks, or breast. Id. at subd. 5 (2000).
The evidence is uncontradicted that Palmisano was playing computer games with R.N. in her home and that during this time R.N. was sitting on Palmisano's lap. The point of contention is whether the state presented evidence sufficient to establish beyond a reasonable doubt that Palmisano intentionally touched R.N.'s genital area.
The audiotaped interviews, videotaped interviews, and transcripts provide both direct and circumstantial evidence that Palmisano touched R.N.'s genital area while she was seated on his lap. In both her audiotaped and videotaped statements, R.N. said that Palmisano placed his hand underneath her clothing and touched her chest and genital area. A.A. also stated in both her audiotaped and videotaped interviews that she saw Palmisano unzip R.N.'s pants and start touching her "lower area." The state also submitted the children's mother's statement that R.N.'s pants were unzipped when R.N. left the room in which she had been playing computer games with Palmisano.
Palmisano characterizes the state's affirmative evidence as inconclusive, contradictory, and therefore not credible. Specifically, Palmisano argues that the testimony of R.N. and A.A. is too conflicting to be conclusive, that R.N.'s testimony is not credible because it was elicited by leading questions, and that A.A.'s observation testimony is unconvincing because she could not have seen the alleged activity.
Although portions of R.N.'s and A.A.'s testimony are not completely consistent, their recounting of the significant events is consistent. Further, some inconsistency in testimony does not mean that the testimony is false. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (observing that human perceptions may differ because of fallibility rather than falseness). Palmisano also argues that R.N.'s account was inconclusive, contending that during the interview immediately after the incident R.N. told a police officer that Palmisano "started" to put his hand in her shirt and down her pants but stopped when she told him no. The record shows otherwise. R.N. does not state during the February 6 interview that Palmisano stopped touching her at her request.
Palmisano further claims that R.N.'s testimony lacks credibility because it was elicited by the use of leading and suggestive questions. Again, the record fails to support this claim. Most of R.N.'s statements were not elicited by the use of leading or suggestive questions. Leading questions were used sparingly to clarify an answer or to elicit initial information from R.N. But once a question was clear and the area of questioning established, leading questions were not used, and R.N. showed no reluctance in independently describing or demonstrating what happened. See State v. Struss, 404 N.W.2d 811, 816 (Minn.App. 1987) (upholding admissibility of out-of-court statements obtained through use of leading questions when child showed little reluctance in describing abuse), review denied (Minn. June 9, 1987). The occasional use of leading and suggestive questions in an interview of a seven-year-old child does not make the statements unreliable.
Finally, Palmisano argues that A.A. did not have a clear view of R.N. and himself from her position in the basement and therefore could not have seen the sexual contact she claims she saw. The only evidence considered on this subject was A.A.'s statement that she saw the incident and Palmisano's statement that she did not. This argument is essentially a challenge to witness credibility. The credibility of testimony and the weight given to the evidence are issues for the trier of fact, not issues for appellate review. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).
Viewing both the direct and circumstantial evidence in the light most favorable to the state, the evidence was sufficient for the district court to find beyond a reasonable doubt that Palmisano had sexual contact with R.N.