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STATE OF MINNESOTA IN COURT OF APPEALS A09-1819

State of Minnesota, Respondent, vs. James Jean Austin, Appellant.

Filed September 28, 2010 Affirmed Toussaint, Chief Judge Olmsted County District Court File No. 55-CR-08-7358 Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Rochester, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Muehlberg, Judge. SYLLABUS 1. To convict a defendant of second-degree criminal sexual conduct under

Minn. Stat.

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