                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1127

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Nicolas Martinez-Feliciano,
                                     Appellant.

                                  Filed July 5, 2016
                                      Affirmed
                                  Schellhas, Judge

                            Dakota County District Court
                            File No. 19HA-CR-14-1655

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

James C. Backstrom, Dakota County Attorney, Elizabeth Swank, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Larkin, Presiding Judge; Schellhas, Judge; and Smith,

John, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant argues that his conviction of first-degree criminal sexual conduct is not

supported by sufficient evidence. We affirm.

                                        FACTS

      On May 9, 2014, at about 9:30 p.m., M.M. returned home after running an errand.

As she approached the bedroom that she shared with her boyfriend, appellant Nicolas

Martinez-Feliciano, and her nine-year-old daughter C.M., M.M. noticed that the door to

the bedroom was “kind of closed.” M.M. found this to be unusual because, as she put it,

“we would never close that door.” M.M. entered the darkened room and saw movement.

She turned on the light and saw C.M. lying “at the edge of the bed” covered with a blanket

and Martinez-Feliciano standing “by the corner of the bed” with his pants unzipped and

“somewhat down.”

      M.M. began hitting Martinez-Feliciano and yelling for her son. When Martinez-

Feliciano fled to the bathroom, M.M. approached C.M., hugged her, and asked her what

had happened. M.M. then noticed that C.M.’s pants and underwear were pulled down

almost to her knees. M.M. touched C.M.’s legs and asked her, “‘[D]id he touch you here?’”

C.M. said, “‘[N]o, where he touch[ed] me was here,’ pointing her finger to in between her

legs.” M.M. went into the bathroom and confronted Martinez-Feliciano, who responded,

“‘I didn’t do anything, I didn’t do anything.’” With the assistance of her son, M.M.

removed Martinez-Feliciano from their home. According to M.M., “When we got




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[Martinez-Feliciano] out of the house he knelt down and he said, ‘[P]lease forgive me, I

won’t do that again.’”

       M.M. and her son summoned and spoke with police, who located Martinez-

Feliciano at a neighbor’s home and arrested him. C.M. was transported by ambulance to a

hospital, where Laurel Edinburgh, a pediatric nurse practitioner, spoke with M.M. and

conducted a medical interview and examination of C.M. in the early morning hours of

May 10, 2014. C.M. indicated to Edinburgh that Martinez-Feliciano touched C.M.’s

genitals with his penis on “many” occasions, including the previous night. C.M. also

indicated to Edinburgh that Martinez-Feliciano ejaculated onto C.M.’s body on at least one

occasion but that he did not ejaculate onto her body the previous night. During the medical

examination, Edinburgh swabbed C.M.’s genital area; forensic testing of the swab showed

the presence of male DNA of which Martinez-Feliciano could not be excluded as being a

contributor. Edinburgh ultimately made a clinical diagnosis of child sexual abuse.

       Respondent State of Minnesota charged Martinez-Feliciano with first-degree

criminal sexual conduct (bare genital-to-genital sexual contact between complainant under

13 years of age and actor more than 36 months older than complainant), second-degree

criminal sexual conduct (multiple instances of sexual contact where actor has significant

relationship with complainant under 16 years of age), second-degree criminal sexual

conduct (sexual contact between complainant under 13 years of age and actor more than

36 months older than complainant), and fifth-degree criminal sexual conduct (masturbation

or lewd exhibition of genitals in presence of minor).




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       At a three-day bench trial, the state presented the testimony of C.M., M.M.,

Edinburgh, police officers, and forensic scientists. The state also admitted exhibits,

including a video recording of Edinburgh’s medical interview of C.M. and an audio

recording of Edinburgh’s medical examination of C.M. Martinez-Feliciano testified in his

own defense, claiming that he entered the shared bedroom on the evening of May 9, 2014,

to charge his phone and denying that he had sexual contact with C.M. on that night or at

any other time. The district court then found Martinez-Feliciano guilty of first-degree

criminal sexual conduct, guilty of both counts of second-degree criminal sexual conduct,

and not guilty of fifth-degree criminal sexual conduct, and it sentenced Martinez-Feliciano

to 150 months’ imprisonment for first-degree criminal sexual conduct.

       This appeal follows.

                                     DECISION

       “[Appellate courts] use the same standard of review in bench trials and in jury trials

in evaluating the sufficiency of the evidence.” State v. Palmer, 803 N.W.2d 727, 733

(Minn. 2011). Under that standard, “[appellate courts] carefully examine the record to

determine whether the facts and the legitimate inferences drawn from them would permit

the [fact-finder] to reasonably conclude that the defendant was guilty beyond a reasonable

doubt of the offense of which he was convicted.” State v. Fox, 868 N.W.2d 206, 223 (Minn.

2015), cert. denied, 136 S. Ct. 509 (2015). “[Appellate courts] view the evidence presented

in the light most favorable to the verdict, and assume that the fact-finder disbelieved any

evidence that conflicted with the verdict.” Id. “The verdict will not be overturned if the

fact-finder, upon application of the presumption of innocence and the State’s burden of


                                             4
proving an offense beyond a reasonable doubt, could reasonably have found the defendant

guilty of the charged offense.” Id.

       Martinez-Feliciano challenges the sufficiency of the evidence to support his

conviction of first-degree criminal sexual conduct. The elements of that crime are (1) a

complainant under 13 years of age, (2) an actor more than 36 months older than the

complainant, and (3) sexual contact between the actor and the complainant, defined as “the

intentional touching of the complainant’s bare genitals . . . by the actor’s bare genitals . . .

with sexual . . . intent.” Minn. Stat. §§ 609.341, subd. 11(c), .342, subd. 1(a) (2012).

According to Martinez-Feliciano, the state’s evidence was insufficient to prove that he had

sexual contact with C.M. on May 9, 2014.

       But the state presented direct evidence of sexual contact: C.M.’s testimony that, on

May 9, 2014, Martinez-Feliciano pulled down her pants and underwear, lay down on top

of her in the shared bed, and “put [his penis] in [her vagina].” The state introduced evidence

to corroborate C.M.’s testimony, including M.M.’s testimony that on May 9 she entered

the shared bedroom to find C.M. lying “at the edge of the bed” with her pants and

underwear halfway down her legs and Martinez-Feliciano standing “by the corner of the

bed” with his pants unzipped and “somewhat down.” C.M.’s testimony was corroborated

further by evidence that a swab of C.M.’s genital area revealed the presence of male DNA

of which Martinez-Feliciano could not be excluded as being a contributor. Moreover,

C.M.’s testimony was largely consistent with her prior disclosures of sexual abuse, which

were introduced into evidence through the testimony of M.M. and Edinburgh and through

the recordings of Edinburgh’s medical interview and examination of C.M. And M.M.


                                               5
testified that after she and her son removed Martinez-Feliciano from their home shortly

after Martinez-Feliciano’s alleged sexual abuse of C.M., Martinez-Feliciano “knelt down

and he said, ‘[P]lease forgive me, I won’t do that again.’”

       The district court found the testimony of C.M. and M.M. to be credible and found

that Martinez-Feliciano’s denials of sexual contact with C.M. were not credible. The court

further found that “any doubt as to whether [the male] DNA [on the swab taken from

C.M.’s genital area] came from [Martinez-Feliciano] is so minute as to be unreasonable.”

We accept these findings without reservation. See State v. Al-Naseer, 788 N.W.2d 469, 473

(Minn. 2010) (recognizing that “the trier of fact is in the best position to determine

credibility and weigh the evidence”); State v. Super, 781 N.W.2d 390, 396 (Minn. App.

2010) (stating that “[t]he factfinder is the exclusive judge of witness credibility”), review

denied (Minn. June 29, 2010).

       Against the backdrop of the district court’s underlying findings, and viewed in the

light most favorable to the guilty verdict, the record shows that the facts and the legitimate

inferences drawn therefrom permitted the court reasonably to find that Martinez-Feliciano,

with sexual intent, intentionally touched C.M.’s bare genitals with his own bare genitals on

May 9, 2014. We conclude that sufficient evidence supports Martinez-Feliciano’s

conviction of first-degree criminal sexual conduct.

       Affirmed.




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