State v. Hoang Xuan Nguyen, A11-2035
| Decision Date | 13 November 2012 |
| Docket Number | A11-2035 |
| Parties | State of Minnesota, Respondent, v. Hoang Xuan Nguyen, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Hennepin County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Debra J. Lund, Theresa R. White, Assistant County Attorneys, Nicholas Thompson, Certified Student Attorney, Minneapolis, Minnesota (for respondent)
Arthur R. Martinez, Minneapolis, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
UNPUBLISHED OPINION
On appeal from his conviction of second-degree criminal sexual conduct, appellant argues that the evidence was insufficient to support his conviction because thestate failed to prove beyond a reasonable doubt that appellant acted with sexual or aggressive intent. Because we conclude the evidence is sufficient to support the district court's findings, we affirm.
The state charged appellant Hoang Xuan Nguyen with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct arising from allegations that he engaged in sexual contact with his wife's granddaughter, then five-year-old B.M.1 The complaint alleged that, on November 28 or 29, 2009, B.M. spent the afternoon at appellant's house while B.M.'s mother, L.M., was at work. When L.M. picked up her daughter and brought her home, B.M. complained that it hurt when she urinated and that her "grandpa" had touched her vagina. The police were called, and Officer Jeffrey Bailey responded. B.M. told Officer Bailey that appellant had put his hand down her pants and put his fingers inside of her vagina. B.M. was transported to Children's Hospital where a forensic interview was conducted by a nurse, Leah Mickschl. Mickschl reported that B.M. had small abrasions on her labia minora and labia majora. B.M. told Mickschl that her "grandpa" had put his hands down her pants and that "now it hurts to go potty."
A bench trial was held on June 7 and 8, 2011. At trial, B.M., now six years old, testified that, while she and appellant were watching television, appellant "put his hands in my pants." She said, "[h]e makes me hurt, and then when I go home, uhm, I pee andthat hurts," adding that, "he put his hand in my stuff, but I forgot what it's called." She also recalled telling her mother and the nurse at the hospital that her "grandpa" touched her "stuff."
B.M.'s mother, L.M., testified that when she went to pick B.M. up from appellant's house, she noticed that both of B.M.'s ears were very red. She asked B.M. what happened, but B.M. said that she did not know. L.M. took B.M. home and asked her to change her clothes to get ready for bed. L.M. testified that B.M. began crying and said, "grandpa, he put his hand in my vagina." L.M. stated that B.M. said she tried to stop appellant from touching her but that he did not stop. L.M. observed B.M.'s vagina and saw that it was "red," like a "tear or something."
B.M.'s 16-year-old brother, R.H., and B.M.'s 14-year-old brother, D.H., both testified that they were at appellant's house on the day of the incident. D.H. spent most of the day in the upstairs of the house, while R.H. spent most of the day in the basement near appellant's bedroom. Both brothers testified that B.M. spent most of the day watching television with appellant in his basement bedroom. R.H. testified that the bedroom door was open, but that he was watching television in the other room and did not hear or see anything suspicious.
Officer Bailey testified that he interviewed B.M. following the incident and that B.M. said she was watching television with "grandpa" and that "grandpa put his hand down her pants and put it inside—or, put his fingers inside of her." Officer Bailey asked B.M. if appellant had asked her to touch his penis, and B.M. responded, "nothing like that happened."
Leah Mickschl testified that B.M. told her that her "grandpa" "put his hand under her pants . . . rubbed on her potty and now it hurts to go potty." In the course of her examination, Mickschl observed a "superficial abrasion between the labia minora and labia majora."
Officer Tracy Aaron Martin testified that he took appellant's statement during a police interview on November 30, 2009, and a video and transcript of the interview was admitted into evidence. During the interview, appellant repeatedly denied intentionally touching B.M.'s vagina and specifically denied touching B.M. under her clothes. Appellant stated that he accidentally touched her vagina on top of her clothes while picking her up.
At the close of the trial, the district court found the state had failed to prove penetration beyond a reasonable doubt, and found appellant guilty of second-degree criminal sexual conduct, but not guilty of first-degree criminal sexual conduct. The district court concluded that the contact was "sexual" because there was no other reasonable explanation for the contact. This appeal follows.
Appellant argues that the evidence was insufficient to sustain his conviction. Specifically, appellant contends that there was insufficient evidence to conclude that he touched B.M. intentionally or with sexual or aggressive intent. In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did. State v.Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was proven guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). The standard of review is the same for bench trials and jury trials. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).
When a conviction is based on circumstantial evidence, we review that conviction applying heightened scrutiny. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). We must determine "whether the reasonable inferences that can be drawn from the circumstances proved support a rational hypothesis other than guilt." Id. (quotation omitted). In reviewing circumstantial evidence, the reviewing court first identifies the "circumstances proved." State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010) (quotation omitted). In identifying the circumstances proved, "we defer, consistent with our standard of review, to the [fact-finder's] acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the [s]tate." Id. (quotation omitted). The second step is to "examine independently the reasonableness of all inferences that might be drawn from the circumstances proved" while giving "no deference to the fact finder's choice between reasonable inferences." Id. at 329-30 (quotation omitted). "[T]he circumstances proved must be consistent with guilt and inconsistent with any rational hypothesis except that of guilt." Id. at 330.
The state contends that this court should not apply a heightened-scrutiny standard to the circumstantial evidence in this case, arguing that the Minnesota Supreme Court's decision in Al-Naseer extending the circumstantial evidence test to cases where a single element relies exclusively on circumstantial evidence should be limited to cases involving the element of premeditation in a murder conviction. But the court in Al-Naseer stated that "the test for reviewing the sufficiency of the evidence in cases involving circumstantial evidence is most evident in first-degree murder cases," indicating that the supreme court was not limiting the use of the circumstantial evidence test to the element of premeditation in murder cases, but rather was using those cases as an example.2 Al-Naseer, 788 N.W.2d at 474 (emphasis added). Moreover, Minnesota courts have recently applied heightened scrutiny to circumstantial evidence in multiple cases involving both direct and circumstantial evidence but not involving premeditation or murder. See, e.g., State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012) (); State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011) (); State v. Nelson, 812 N.W.2d 184, 188-89 (Minn. App. 2012) (). Therefore,we apply a heightened-scrutiny analysis of circumstantial evidence to the facts of this case.
Viewing the evidence in the light most favorable to the conviction, the circumstances proved are that appellant spent the afternoon with B.M. and that he rubbed her vagina under her clothes, causing a minor abrasion on the inside of B.M.'s labia. We must next determine whether the reasonable inference to be drawn from these circumstances is consistent with appellant's guilt, in other words, whether appellant touched B.M. with sexual or aggressive intent. Minn. Stat. § 609.343 (2008) makes it a crime to engage in "sexual contact" with someone under the age of 13 when the actor is more than 36 months older than the complainant. Id., subd. 1(a). "Sexual contact" is defined as "any of the following acts . . . committed with sexual or aggressive intent: the intentional touching by the actor of the complainant's intimate parts, or . . . the touching of the clothing covering the immediate area of the intimate parts . . . ." Minn. Stat. § 609.341, subd. 11(a) (Supp. 2009). The ...
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