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Birkbeck v. State

Evidence, including the victim's testimony, the results of the defendant's polygraph examination, incest-related material found in the defendant's bedroom on computer, the defendant's previous sexual relationship with a high school girl and testimony from the victim's co-workers and examining psychologist, supported the defendant's convictions for the sexual battery and child molestation of his stepdaughter.

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A jury found Benjamin Birkbeck guilty of the sexual battery and child molestation of his stepdaughter, H. L. He appeals, challenging the sufficiency of the evidence and contending that he received ineffective assistance of counsel. He also claims that the trial court erred by admitting certain evidence against him and by commenting improperly on the evidence. We find no reversible error and affirm. On appeal from his criminal convictions, Birkbeck no longer enjoys a presumption of innocence, and we construe the evidence in a light favorable to the jury’s verdict.1 We neither weigh the evidence nor assess the credibility of the witnesses, but merely determine whether the evidence was sufficient to enable a rational trier of fact to find all the essential elements of the crimes charged beyond a reasonable doubt.2

Viewed in this manner, the evidence shows that Birkbeck married H. L.’s mother in 1992, when H. L. was six years old. H. L. testified that one day when she was eight, Birkbeck entered her room while she was playing with Barbie dolls. He asked her to pretend to be a Barbie doll and to undress and lie on her bed. After she complied, Birkbeck inserted a Barbie doll in her anus, then told her not to tell anyone. According to H. L., Birkbeck played this “Barbie game” on two more occasions. Birkbeck tried to initiate the game a fourth time, but H. L. told him that she did not want to play because it hurt. Instead, Birkbeck took off her pants and inserted his fingers into her vagina. Afterward, he threatened her not to tell anyone.

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