In Matter of Welfare of M.J., No. A05-712 (Minn. App. 5/30/2006), A05-712.

• Decision Date: 30 May 2006
• Docket Number: No. A05-712.,A05-712.
• Parties: In the Matter of the Welfare of: M.J.
• Court: Minnesota Court of Appeals

Page 1

Unpublished Opinion

In the Matter of the Welfare of: M.J. No. A05-712. Court of Appeals of Minnesota. Filed May 30, 2006.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Hennepin County, File No. J7-03-57760.

Leonardo Castro, Chief Public Defender, Melissa Haley, Assistant Public Defender, (for appellant)

Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, (for respondents)

Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, Judge.^*

UNPUBLISHED OPINION

MINGE, Judge

Appellant challenges his adjudication of delinquency for criminal sexual conduct in the second degree and his disposition. Because we find sufficient evidence to support the adjudication and because the disposition was not an abuse of discretion, we affirm.

FACTS

Appellant was charged with one count of criminal sexual conduct in the second degree, in violation of Minn. Stat. §§ 609.343, subd. 1(a) (2002), 609.101, subd. 2 (2002), 609.109, subd. 7 (2002), for sexual contact with B.S. This conduct was alleged to have happened between July 2001 and July 2002. B.S. is the daughter of one of appellant's father's girlfriends. B.S., her mother, appellant's father, and several others lived in the same home, and appellant lived there part of the time.

After one of the other children in the home alleged that she had been abused, B.S. was interviewed at CornerHouse. B.S. reported that she had been abused by appellant and by his father. B.S. was five years old at the time of the interview.

The district court initially denied the state's motion to admit B.S.'s out-of-court statement from the CornerHouse interview under Minn. Stat. § 595.02, subd. 3 (2002), unless B.S. testified in court. Later, the district court admitted the out-of-court statement without in-court testimony pursuant to Minn. R. Evid. 803(24) and 804(b)(5).

Following the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the district court revisited its decision, ruling that B.S.'s out-of-court statement was testimonial and therefore inadmissible absent an opportunity for cross-examination. The district court permitted the state to reopen its case to call B.S. to testify. Following B.S.'s testimony on June 30, 2004, the district court admitted her out-of-court statement from the interview at CornerHouse.

Ultimately, the district court concluded that the state proved beyond a reasonable doubt that appellant committed criminal sexual conduct in the second degree against B.S., adjudicated appellant delinquent, placed him on probation until his 19th birthday, and as a condition of his probation, ordered him to successfully complete a program at the Mille Lacs Academy, an inpatient facility. Because appellant had been accepted into Project Pathfinders, an outpatient program, he requested a disposition modification to allow such outpatient treatment. The district court denied appellant's motion. This appeal follows.

DECISION I.

The first issue is whether the evidence is sufficient to sustain the district court's delinquency adjudication. The state must prove the allegations in the petition beyond a reasonable doubt. Minn. R. Juv. Delinq. P. 13.06. On appeal from a determination that each element of a delinquency petition has been proved, "an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination." In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)). "We are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence." Id.

Minn. Stat. § 609.343, subd. 1(a) (2004), defines criminal sexual conduct in the second degree: "A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists: (a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. . . ." Minn. Stat. § 609.341, subd. 11(a) (2004), defines sexual contact:

`Sexual contact,' for the purposes of sections 609.343, subdivision 1, clauses (a) to (f), . . . includes any of the following acts committed without the complainant's consent, except in those cases where consent is not a defense, and committed with sexual or aggressive intent:

(i) the intentional touching by the actor of the complainant's intimate parts, or

. . . .

(iv) in any of the cases above, the touching of the clothing covering the immediate area of the intimate parts.

For a conviction under Minn. Stat. § 609.343, corroboration of the victim's testimony is not required. Minn...