State v. Bird

• Decision Date: 11 April 1980
• Docket Number: No. 48943.,48943.
• Citation: 292 NW 2d 3
• Parties: STATE of Minnesota, Respondent, v. Donald BIRD, Appellant.
• Court: Minnesota Supreme Court

292 N.W.2d 3 (1980)

STATE of Minnesota, Respondent, v. Donald BIRD, Appellant.

No. 48943.

Supreme Court of Minnesota.

April 11, 1980.

C. Paul Jones, Public Defender, and Evalynn Welling, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Gary Hansen, Spec. Asst. Atty. Gen., and Elizabeth Cutter, Law Clerk, St. Paul, Harry Christian, County Atty., LeCenter, for respondent.

Considered and decided by the court en banc without oral argument.

YETKA, Justice.

Defendant was found guilty by a district court jury of a charge of criminal sexual conduct in the first degree, Minn. Stat. § 609.342(b) (1976) (sexual penetration of complainant between 13 and 16 years old by actor who is more than 48 months older and is in a position of authority over the complainant and uses this authority to coerce the complainant to submit). The trial court sentenced defendant to a maximum prison term of 20 years and denied defendant's petition for postconviction relief. On this appeal from the judgment of conviction and from the order denying postconviction relief, defendant contends that the evidence of his guilt was legally insufficient, that his trial was unfair because of the vagueness of the allegations as to the dates on which he allegedly committed certain prior crimes against complainant, and that the postconviction court abused its discretion in failing to order a psychological examination of complainant and in failing to order a new trial on the basis of complainant's alleged recantation of her trial testimony. We affirm.

1. Defendant's first contention is that the evidence failed to establish that he was in a "position of authority" over complainant or that he used this position of authority to coerce complainant to submit to sexual penetration.

Minn. Stat. § 609.342(b) (1976), which defendant was convicted of violating, provides a 20-year prison term for sexual penetration of a complainant between 13 and 16 years old by an actor who is more than 48 months older and is in a position of authority over the complainant and uses this authority to coerce the complainant to submit. Minn. Stat. § 609.341, subd. 10 (1976), defines "position of authority" as follows:

"Position of authority" includes but is not limited to any person acting in the place of a parent and charged with any of a parent\'s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act.

In State v. Waukazo, 269 N.W.2d 373 (Minn. 1978), we upheld a conviction under this section where the evidence established that an adult son of the complainant's foster parents had a position of authority over the complainant and used this authority to coerce the complainant to submit to sexual penetration.

The evidence at the trial in this case established that defendant, who was 47 years old at the time of the incident, was complainant's uncle, that complainant's parents occasionally left complainant in defendant's care, and that defendant abused his position of authority and responsibility over complainant, who was only 14 at the time, by showing her pornographic movies and by coercing her into engaging in sexual activity with him by telling her that she had to do what he told her to do and that she would be in "big trouble" if she refused. Complainant's...