Ramsey County District Court File No. 62-CR-12-535
Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Worke, Judge.
Appellant challenges his conviction of first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342, subd. 1(a) (2010), arguing that the evidence was insufficient because the victim was not a credible witness and her allegations were uncorroborated. He also raises two evidentiary challenges and argues that the jury-selection process was unfairly prejudicial. We affirm.
M.H. is the mother of five young children. From May to September 2011, two of M.H.'s children, H.D. and E.D., lived with M.H.'s brother, C.H., in a one-bedroom apartment in St. Paul. Appellant Anthony Allen Tessman and his two children also lived in C.H's apartment. The men usually slept in the living room while the children slept in the bedroom.
In October 2011, M.H. was driving with four of her children and a friend. While arguing with her friend, M.H. said, "Suck my dick." H.D., then six years old, sat up in the back seat and said, "Oh my God, Mom, that is so nasty. I had to do that at [C.H.'s] house. [Tessman] told me to keep it a secret, but it's so nasty. It was just so nasty, I had to wash my mouth." Upon arriving at her cousin's house, M.H. called the police. While M.H. spoke with the police, her cousin, T.M., asked H.D. if anyone touched her in a "no-zone." H.D. told T.M. that "[Tessman] made her suck his dick."
The police instructed M.H. to take H.D. to Midwest Children's Resource Center, a clinic that specializes in child abuse. Kristine Wilk, a registered nurse trained in interviewing children about allegations of abuse, interviewed H.D. Wilk later testified that H.D. told her that "[Tessman] had essentially put his penis on [H.D.'s] lips, " and "a little what she referred to as peep-it was like a drop of pee went on her tongue."
Tessman was charged with first-degree criminal sexual conduct. He pleaded not guilty and requested a jury trial. The district court found H.D. to be competent to testify. H.D. identified Tessman and testified that he had slept with her in the bedroom on the night of the incident. Although H.D. initially had some difficulty focusing on the questions, she testified that Tessman "was trying to make me suck his wienie" and "[i]t touched my lip." She testified that Tessman told her not to tell anyone.
Tessman testified that he and C.H. usually slept in the living room, but he admitted to sleeping in the bedroom with his children on one occasion. But he stated that he never slept with H.D. and never placed his penis next to her mouth or asked her to suck his penis. Tessman testified that he believed that someone had sexually abused H.D. because she would inappropriately touch him over his clothes. But he acknowledged that he did not report this behavior to social services.
The jury found Tessman guilty of first-degree criminal sexual conduct. The district court sentenced him to 156 months' imprisonment, the presumptive sentence under the ...