Thоmas J. Morstad appeals from a judgment of conviction of gross sexual imposition. He contends that the еvidence is insufficient to support the court’s verdict. We affirm.
In a criminal trial to a court without a jury, like this one, our standard of review is the same as if the case had been tried to a jury.
State v. Johnson,
“In reviewing the sufficiency of the evidence to convict, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom tо see if there is substantial evidence to warrant a conviction. State v. Dubs,390 N.W.2d 41 (N.D.1986). A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt aftеr viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor. City of Fargo v. McMorrow,367 N.W.2d 167 (N.D.1985). To justify a conviction of gross sexual imposition, the Statе must establish beyond a reasonable doubt [defendant’s] sexual contact with a child less than fifteen years old. North Dakota Century Code § 12.1-20-03(2)(a).”
Viewing the evidence in a light most favorable to the verdict, the record shows that Mоrstad ordered his nine-year-old daughter to sleep in his bed on consecutive evenings. He rubbed his penis on her lеg one evening and inserted his finger in her vagina the next evening. Expert medical testimony, though it neither confirmed nor denied that the sexual contact complained of occurred, was not, as the trial court observed, “inсompatible with guilt” of gross sexual imposition.
Morstad argues that because the child described events that the еvidence proved never occurred, her descriptions of sexual contact are not credible and, therefore, are *646 insufficient to sustain a felony conviction. The child’s erroneous descriptions relаte to peripheral events, such as the time and place Morstad picked up her and her siblings on the eve of the weekend during which the criminal conduct took place.
Although the child mistakenly depicted peripheral events that preceded the crime, “she did not deviate from her basic position” that Morstad touched her sexually on consecutive evenings.
See Schill,
Because this cаse was tried to the court without a jury, it was “the exclusive function of the [judge, as fact finder,] to weigh the evidence and judge the credibility of witnésses. We will not substitute our judgment for that of the [fact finder] where the evidence is conflicting, if оne of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.”
Schill,
Morstad also argues, utilizing a variety of theories,' that some сorroboration is, or, at minimum, should be, required to sustain a verdict of guilt in cases of this nature. We rejected a similаr argument in
Schill, supra,
holding that the uncorroborated testimony of a child, if deemed credible by the fact finder, is sufficient to sustain a conviction of a sexual offense. That conclusion was a logical corollary to our long-stаnding rules that: (1) intelligence, not age, is the linchpin of witness competency,
see Schill, supra; State v. Oliver,
Morstаd’s final and alternative contention is that the “verdict was contrary to the weight of the evidence” and that this court should, therefore, grant his request for a new trial. But, Morstad did not raise this contention below by timely moving the trial cоurt for a new trial pursuant to Rule 33(a) and (c), NDRCrimP, and we will not consider this matter for the first time on appeal.
E.g., Olmstead v. First Interstate Bank of Fargo, N.A.,
Counsеl claimed at oral argument, however, that submission to the trial court of a Rule 33 motion would have been a “futile act” and that, in any event, he made and argued the motion “informally” at Morstad’s sentencing hearing. Counsel lodged a nearly identical argument, albeit in a different context, in
Livingood v. Meece,
We conсlude that the child’s testimony established the essential elements of the crime of gross sexual imposition and is sufficient to sustain the conviction. Accordingly, the judgment of conviction is affirmed.