                          This opinion will be unpublished and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
                                     A14-1588

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                           Ruben Alonso Avendano Contreras,
                                      Appellant.

                                   Filed June 8, 2015
                                Affirmed and remanded
                                     Stauber, Judge

                               Dakota County District Court
                               File No. 19HA-CR-13-3476

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant was charged with and found guilty of two counts of first-degree

criminal sexual conduct. In this appeal, he argues that the evidence is insufficient to
sustain the convictions, and the district court erred by entering convictions for both

counts, although the court sentenced him on only one count. We affirm appellant’s

conviction of the charge for which he was sentenced, but we remand to the district court

to vacate the second judgment of conviction.

                                           FACTS

       Appellant Ruben Alonso Avendano Contreras lived with RLG, who is the mother

of TAL, from the time that TAL was four or five years old until she was 11 years old.

During that time, appellant sexually abused TAL. TAL told her mother about the abuse,

but her mother did not believe her, and appellant denied the allegations. After TAL once

again told her mother that appellant was sexually abusing her, her mother and appellant

decided to go to TAL’s school and try to get help for her because her mother thought she

was mentally ill. Knowing of this plan, TAL finally approached a teacher, who made a

mandatory report to Dakota County Social Services. A child-abuse investigation was

initiated, and appellant was charged with two counts of first-degree criminal sexual

conduct, Minn. Stat. §§ 609.342, subds. 1(g) (victim under 16, significant relationship),

1(h)(iii) (2012) (victim under 16, significant relationship, multiple acts).

       At trial, TAL described sexual contact and anal, oral, and vaginal penetration by

appellant. TAL is learning-impaired and attends special education classes; her testimony

is simple, and she has some difficulty understanding questions and identifying concepts

such as time. But she was able to accurately describe male genitalia and ejaculation,

identify times of year by reference to seasons or to school, and to testify about the acts of




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abuse. She also described an act of anal penetration that occurred not long before she

reported the abuse to her teacher.

       Dakota County child protection worker Susan Boreland testified that during her

interview, TAL was “very distraught” and “very, very sad,” and she cried while

describing the abuse. TAL told her that appellant said that all the girls at her school do

the same thing with their dads. Her description of TAL’s statement is consistent with

TAL’s trial testimony.

       Detective Andrea Newton of the Burnsville Police Department introduced an

audio recording and transcript of TAL’s interview. The transcript is consistent with

TAL’s trial testimony. Newton attempted to document dates of abuse but was unable to

because of TAL’s developmental delays. Newton did not collect sheets or clothing for

laboratory examination because the presumed dates of abuse had occurred long before the

date of investigation, and these items had been washed.

       Laurel Edinburgh, a pediatric nurse practitioner at the Midwest Children’s

Resource Center, also testified. She interviewed TAL and did a physical examination,

the results of which were normal and showed no evidence of injury. But Edinburgh also

noted that “it is rare to find any biological evidence on [a child’s body] more than 24

hours after the last contact.” She also testified, “[I]t is most common to have a normal

exam of a child after they have been sexually abused.”

       The defense presented one witness, Nancy Peralta, who worked at TAL’s school

and provided interpreting services. Peralta testified that the mother had come in seeking

help because TAL “was talking crazy and she was trying to figure out why. [Her mother]


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said that [TAL] had been accusing [appellant] of some things and the mom at that time

didn’t believe anything. And so she was looking for help for her daughter.”

       Appellant waived his rights to a jury trial. The district court found appellant guilty

of two counts of first-degree criminal sexual conduct, entered convictions on both counts,

and sentenced appellant on count two (multiple acts) to 172 months in prison. This

appeal followed.

                                     DECISION

                                             I.

       We review a claim of insufficiency of the evidence to ascertain whether the record

facts and the legitimate inferences drawn from those facts permit a factfinder to

reasonably conclude that the defendant is guilty of the charged offense. State v. Stein,

776 N.W.2d 709, 714 (Minn. 2010). The reviewing court views the evidence in the light

most favorable to the verdict and assumes that the factfinder believed the state’s

witnesses and disbelieved contrary evidence. Id. The same standard of review applies to

both bench and jury trials. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011).

       The factfinder is the exclusive judge of witness credibility and the weight to be

given a witness’s testimony. State v. Mems, 708 N.W.2d 526, 531 (Minn. 2006). As

such, the factfinder may “accept part and reject part of a witness’s testimony.

Inconsistencies or conflicts between one witness and another do not necessarily constitute

false testimony or serve as a basis for reversal.” Id. (citation omitted). “[A] conviction

can rest on the uncorroborated testimony of a single credible witness.” State v. Foreman,

680 N.W.2d 536, 539 (Minn. 2004) (quotations omitted). Although appellant argues that


                                             4
this is not true if the single witness’s testimony is “of dubious veracity,” this exception

has been applied in limited situations: a child victim exposed to highly suggestive

material, inexplicable or questionable actions by the witness, or eyewitness identification

by a witness who saw a subject for a limited time and who made the identification in an

error-ridden lineup process. Id.

       Appellant argues that TAL’s testimony was not credible because she was exposed

to suggestive themes through a Spanish-language television program that “featured

themes of rape, inappropriate touching, and child abandonment.” But TAL and her

mother were questioned about this; according to their testimony, the program content

would not have provided the type of knowledge of male anatomy or ejaculation that TAL

testified to in court. Her mother testified that TAL watched some pornography on a

tablet belonging to appellant’s sister, but again, her exposure to this was limited because

the tablet belonged to someone who did not live in the home.

       Appellant acknowledges that the testimony of a victim of criminal sexual conduct

need not be corroborated. See Minn. Stat. § 609.347, subd. 1 (2012). Nonetheless, he

argues that the absence of corroboration in an individual case may mean that there is

insufficient evidence upon which a jury could find the defendant guilty beyond a

reasonable doubt. See State v. Johnson, 679 N.W.2d 378, 387 (Minn. App. 2004), review

denied (Minn. Aug. 17, 2004). But in Johnson, although the victim’s testimony was

inconsistent, there was no corroboration, she recanted her testimony, and her conduct was

“inconsistent” with forcible rape, this court affirmed the conviction. Id. In affirming,

this court noted that inconsistencies were matters of credibility for the factfinder to


                                              5
assess, the victim was threatened by the defendant’s friends and therefore sought to

recant her testimony, and her prompt report of the rape lent credibility to her testimony.

Id.

       Here, TAL’s testimony was consistent with her report to Boreland, Newton, and

Edinburgh. Boreland and Newton described how TAL cried during the interview.

Finally, TAL stated that she reported the abuse because appellant indicated that he was

going to start abusing her younger sister. Her mother was not aware of any emotional

behavior that would cause her to suspect abuse, but TAL reported being abused over a

six-year period. Although there was no physical evidence of sexual penetration,

Edinburgh testified that this is true in the majority of child sexual-abuse cases.

Ultimately, the district court, as factfinder, made an assessment of TAL’s credibility and

concluded that she was credible. On this record, there is sufficient evidence to sustain

appellant’s conviction for first-degree criminal sexual conduct.

                                             II.

       The state concedes that the district court improperly entered convictions on both

counts in violation of Minn. Stat. § 609.04, subd. 1 (2012). This subdivision states that

an offender “may be convicted of either the crime charged or an included offense, but not

both. An included offense may be . . . [a] crime necessarily proved if the crime charged

were proved.” Id.

       Appellant was convicted of sexually penetrating a victim under the age of 16

while having a significant relationship with the victim as a single incident, and sexually

penetrating a victim under the age of 16 multiple times while having a significant


                                              6
relationship with the victim. Minn. Stat. §§ 609.342, subds. 1(g); (h)(iii). Proof of the

multiple acts charge, subdivision 1(h)(iii), necessarily includes proof of the single-act

crime charged under subdivision 1(g), if the single act occurred during the same time

period as the multiple acts, as it did here. The district court erred by entering convictions

on both offenses and, instead, should have entered a conviction only on the offense for

which appellant was sentenced, the multiple acts count. We therefore remand appellant’s

conviction of Minn. Stat. § 609.342, subd. 1(g), to the district court to vacate the

judgment of conviction on count one.

       Affirmed and remanded.




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