                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0111

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Corey James Fordham,
                                     Appellant.

                                Filed January 17, 2017
                                       Affirmed
                                   Schellhas, Judge

                           Kandiyohi County District Court
                              File No. 34-CR-14-1089

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Shane Becker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and

Ross, Judge.
                          UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his conviction of third-degree criminal sexual conduct,

arguing that he proved the mistake-of-age affirmative defense and that the evidence

therefore is insufficient to support the conviction. We affirm.

                                           FACTS

       A jury found appellant Corey Fordham guilty of third-degree criminal sexual

conduct (sexual penetration with another who is at least 13, but under 16, when the actor

is more than 24 months older than the other person). Fordham admits that, at age 20, he

had sexual intercourse with J.J., who was age 15. Fordham maintains that he reasonably

believed J.J. was age 16 at the time.

       The evidence at trial revealed that, after J.J. notified Fordham by telephone that she

had left her foster home, he picked her up in his vehicle sometime after midnight and

brought her to his mother’s home, where he lived. Fordham and J.J. slept for a time and

then had sexual intercourse the same day, after Fordham’s mother left for work. The

testimony was conflicting about when Fordham learned J.J.’s true age. J.J. testified that she

never lied to Fordham or anyone else about her age and that she told Fordham her age and

school grade about a week after they met. She also testified that she met Fordham’s mother

upon her arrival at Fordham’s home on August 31, 2014, and that Fordham’s mother did

not ask J.J. her age until later that day, after Fordham had engaged in sexual intercourse

with her. J.J. also testified that, when she and Fordham later visited his half-sister, she told

the half-sister that she was 15 years old, which did not seem to surprise Fordham.


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       Fordham testified that he was in high school when he met J.J., and that they talked

about the schools they were in but never discussed their specific ages. He claimed that as

soon as he and J.J. arrived at his home on August 31, 2014, his mother asked J.J. her age,

and J.J. said that she was 18 but did not have an I.D. to prove it. Fordham claimed that he

asked J.J. why she lied to his mom about her age and that she then told him that she was

16. Fordham also testified that after he and J.J. had sexual intercourse, they met his sister-

in-law, who asked J.J. her age, and that J.J. initially said she was 18. Because his sister-in-

law did not believe J.J., J.J. confessed to being 15. Fordham testified that he was upset

when he learned that J.J. was 15. But a sheriff’s detective testified that, on September 25,

2014, when she asked Fordham how old he thought J.J. was on that date, Fordham said he

thought that she was 16 years old because she was a sophomore in high school.

       Fordham’s mother testified that upon meeting J.J. on August 31, 2014, she asked

J.J. her age, and that J.J. said she was 18. And Fordham’s half-sister testified that she met

J.J. at her mother’s home on the afternoon of August 31, 2014, that her mother asked J.J.

her age at that time, and that J.J. said she was 18 but did not have her driver’s license to

prove her age.

       A mutual friend of J.J.’s and Fordham’s testified that she was present when J.J. and

Fordham first met while in a concession line at a high-school football game. At that time,

the mutual friend was in high school, J.J. was in middle school, and the friend and Fordham

were dating. After meeting J.J., Fordham told the mutual friend that he thought that J.J.

was cute and sexy, which caused the friend to tell Fordham that J.J. was in middle school




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in the seventh grade, because she thought Fordham already had graduated from high school

at the time. The friend noted that Fordham “didn’t really seem to care.”

       This appeal follows.

                                     DECISION

       Arguing that he met his burden of proving the affirmative defense of mistake of age,

Fordham challenges his conviction of third-degree criminal sexual conduct in violation of

Minn. Stat. § 609.344, subd. 1(b) (2014). One element of that crime is that the alleged

victim of the crime was at least 13 years old, but less than 16, and that the defendant was

more than 24 months older than the alleged victim. See Minn. Stat. § 609.344, subd. 1(b).

A reasonable belief that the victim was 16 years old or older at the time of the sexual

penetration is an affirmative defense. See id. Proving the mistake-of-age affirmative

defense negates that element, resulting in insufficient evidence to support a conviction. See

id.

       Fordham does not dispute that he was more than 24 months older than J.J. Rather,

Fordham argues that the evidence is insufficient to support his conviction because he

proved by a preponderance of the evidence that he reasonably believed J.J. was 16 when

he engaged in sexual intercourse with her. To determine the sufficiency of the evidence,

we must consider whether the evidence was sufficient to establish the mistake-of-age

affirmative defense. See State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003) (stating

that question of whether affirmative defense of mistake of age was proved by a

preponderance of the evidence “is akin to a challenge to the sufficiency of the evidence”),

review denied (Minn. Nov. 18, 2003).


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       Our review “is limited to a painstaking analysis of the record to determine whether

the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow

the jurors to reach the verdict that they did.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn.

2011). In our review, “we must assume the jury believed the state’s witnesses and

disbelieved any evidence to the contrary.” Id. (quotation omitted). This assumption is

especially significant when “resolution of the case depends on conflicting testimony, as it

is the function of the jury to evaluate the credibility of the witnesses.” State v. Pippitt, 645

N.W.2d 87, 92 (Minn. 2002). A reviewing court will not disturb the jury’s verdict if the

jury, “upon application of the presumption of innocence and the State’s burden of proving

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

of the charged offense.” State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015).

       Having raised the affirmative defense of mistake of age, Fordham had the burden of

proving that it was more likely than not that he believed J.J. was 16 years old at the time

of the sexual encounter. Kramer, 668 N.W.2d at 37. Fordham claims that he reasonably

believed J.J. was 16 because she was friends with older people, she had been introduced to

him by J.J.’s older friend, and she had liquor with her when she got into Fordham’s car on

August 31, 2014. He also claims that he made a reasonable mistake about J.J.’s age because

she told him she was age 16 before the sexual intercourse. If the jury believed Fordham’s

testimony, the jury could have reasonably found that Fordham had proved that it was more




                                               5
likely than not that he was mistaken about J.J.’s age. But the witnesses’ testimony at trial

was conflicting about what J.J. said about her age, when she said it, and to whom.

       The case depended entirely on what testimony the jury believed. “[I]t is the function

of the jury to evaluate the credibility of the witnesses.” Pippitt, 645 N.W.2d at 92. When,

as here, the evidence was in conflict, the jury had to resolve the conflict and could do so

by weighing the credibility of witnesses. Id. at 94; see also State v. Pendleton, 706 N.W.2d

500, 512 (Minn. 2005) (stating that “[e]ven where witness credibility has been challenged,

the jury may nonetheless believe the witness”).

       The evidence supporting Fordham’s mistake-of-age affirmative defense consisted

of the testimony of Fordham and his family members, some of which was inconsistent in

detail. The jury had to assess that testimony in light of all other witnesses’ contradictory

testimony. Considering all the evidence, we conclude that nothing in this record suggests

that the jury improperly credited the state’s witnesses in its rejection of Fordham’s defense.

The evidence is sufficient to support Fordham’s conviction.

       Affirmed.




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