State of Minnesota, Respondent, vs. Jeffrey Wayne Thibodeau, Appellant.

State of Minnesota, Respondent, vs. Jeffrey Wayne Thibodeau, Appellant. A04-2125, Court of Appeals Unpublished, December 27, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2125

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Wayne Thibodeau,

Appellant.

 

Filed December 27, 2005

Affirmed

Minge, Judge

 

Rice County District Court

File No. K9-03-662

 

 

Mike Hatch, Attorney General, Gunnar B. Johnson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

G. Paul Beaumaster, Rice County Attorney, Court House, 218 Third Street Northwest, Faribault, MN 55021 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant Jeffrey Wayne Thibodeau challenges his conviction for first-degree criminal sexual conduct, arguing that the district court erred by excluding evidence, that the evidence was insufficient, that the matter must be remanded for a Schwartz hearing, that there was prosecutorial misconduct, that there was judicial misconduct, and that he did not have adequate assistance of counsel.  We affirm.

FACTS

 

            At the age of 13, the complaining witness was told by her mother that appellant was probably her father.  Arrangements were then made for the girl to spend part of the Thanksgiving holiday at appellant's home.  On the evening before Thanksgiving, complainant fell asleep in the living room while appellant and his wife were watching a movie.  When she awoke, appellant's wife was asleep in the bedroom.  Appellant told complainant that he would sleep in the recliner in the living room and that she should sleep in the bedroom with his wife.  The complainant went to sleep, fully clothed in the bed with appellant's wife.

            Early Thanksgiving morning, complainant awoke because she felt someone touching her lower body.  She testified that her pants and underwear were pulled down around her knees and appellant was having sexual intercourse with her.  The complainant recognized appellant, pushed him away and yelled.  Appellant's wife was in the bed, but did not awaken.  The complainant ran upstairs and locked herself in the bathroom.

            Eventually, appellant's wife came to the bathroom and complainant told her what happened.  The complainant then got ready for Thanksgiving dinner.  The complainant said she did not bathe because "[she] was planning on going to the cops, and [she] knew what they had to have."  The family went to a friend's house for Thanksgiving dinner.  While at the friend's house, complainant also told appellant's step-daughter what occurred.

            At six or seven in the evening of Thanksgiving day, complainant returned to the home of her foster parents, and told them what happened.  They promptly took her to the Faribault Police Department where complainant reported the offense.  The police obtained the clothing complainant was wearing at the time of the offense and sent it to the Bureau of Criminal Apprehension (BCA).  Approximately 21 hours after the alleged assault, complainant was physically examined at Regions Hospital in St. Paul.  A sexual-assault nurse conducted a physical examination and took a blood sample for DNA testing.  This evidence was sent to the BCA for testing.  No semen was identified from the clothing or from the physical examination.

            At trial, the nurse testified that several factors can contribute to the absence of semen where semen had previously been present: (1) time; (2) use of a prophylactic; (3) bathing or washing; (4) going to the bathroom; and (5) wiping.  The nurse also testified on cross-examination that she found no signs of external trauma during her physical examination of complainant.

            Dr. Mohamed Sedqi, a forensic scientist at the BCA, analyzed the evidence taken from complainant and a DNA sample from appellant and testified at trial.  He stated that although no sperm or semen was found on the swabs taken from complainant's vaginal and perineal areas, a small quantity of a DNA mixture was found on complainant's clothing.  He further testified that the DNA profile was a mixture of DNA from two or more individuals, that neither appellant nor complainant could be excluded as contributors to this DNA mixture, and that based on the DNA, 98.1% of the general population could be excluded.  Dr. Sedqi also concluded that appellant could not be complainant's biological father.

            Appellant presented two witnesses: a police officer who interviewed complainant and the host of the Thanksgiving party, a friend of appellant.  Neither of appellant's witnesses testified to any material fact that was inconsistent with complainant's testimony.  Although appellant did not testify, the prosecution played a videotape of a police interview with appellant in which he stated that he and his wife had consumed a case and a half of beer while watching TV with complainant on Thanksgiving eve, and that he might have mistakenly had sexual contact with complainant if complainant was in the bed with his wife.

            Prior to trial, complainant told the police that she had had sex with a boyfriend five days before Thanksgiving.  She told the police that her boyfriend used a condom, that she wore different and clean clothes to appellant's home, and that she did not believe that any fluids got on her when she had sexual intercourse with her boyfriend.  This information was disclosed to appellant.  He attempted to introduce evidence of the encounter with the boyfriend to show a possible alternate source for the DNA mixture found on complainant's clothing.  The district court denied appellant's motion. 

            Prior to trial, the district court suggested that the prosecution amend the complaint to include second- and third-degree criminal sexual conduct charges, the prosecution moved to amend, and the district court granted the motion.  After a four-day trial, the jury found appellant guilty of first-, second-, and third-degree criminal sexual conduct.  The district court convicted appellant of first-degree criminal sexual conduct and sentenced him to 84 months, a downward departure from the presumptive sentence.  Appellant requested release for an extended visitation with his family prior to his incarceration but the district court denied that request.

            The complainant's victim's advocate reported to the prosecutor that after complainant testified, one of the jurors said "sorry" to complainant as the jurors recessed.  The complainant did not hear the comment but the advocate did.  The prosecutor reported this information to defense counsel.  Appellant requested a Schwartz hearing but the district court denied the motion.  This appeal follows.

D E C I S I O N

 

I.

            The first issue is whether the district court abused its discretion when it denied appellant's attempt to introduce evidence of complainant's sexual intercourse with her boyfriend.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

            Under the Confrontation and Due Process clauses of the United States and Minnesota constitutions, "[e]very criminal defendant has a right to fundamental fairness and to be afforded a meaningful opportunity to present a complete defense."  State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (quotation omitted), review denied (Minn. Jan. 23, 1996).  But there is "no right to introduce evidence that either is irrelevant, or whose prejudicial effect outweighs its probative value."  Id. at 866 (emphasis in original).  The defendant "must still comply with established rules of evidence designed to assure both fairness and reliability in ascertaining guilt or innocence."  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000).

            In prosecutions of certain sexual offenses, Minnesota law and evidentiary rules provide that "[e]vidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury."  Minn. Stat.      § 609.347, subd. 3 (2002); Minn. R. Evid. 412(1).  But when the prosecution offers evidence of "semen, pregnancy, or disease at the time of the incident, . . . evidence of specific instances of the victim's previous sexual conduct is admissible solely to show the source of the semen, pregnancy, or disease."  Minn. Stat. § 609.347, subd. 3(b); see Minn. R. Evid. 412(1)(B).  Such evidence will only be admissible where the probative value of the evidence is not substantially outweighed by the prejudicial or inflammatory nature of the evidence.  Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1).

            Here, appellant argues that the district court improperly excluded evidence that the complainant's boyfriend could be an alternate source for the semen found on complainant's clothing.  Appellant theorized that complainant wore the same clothes during the encounter with her boyfriend as she wore to appellant's home on Thanksgiving and that complainant's boyfriend was the alternate source of the evidence.

In the pretrial order, the district court relied on facts in the complaint which were based on Dr. Sedqi's analysis of the complainant's clothing.  The district court denied appellant's motion, noting "that the evidence will not exonerate [appellant], the evidence would only serve to inflame and prejudice the jury."  Also, there was no evidence of the boyfriend's DNA type or whether it was part of the 1.9% of the population with DNA similar to that found on complainant's clothing.  In any event, appellant's DNA was part of the 1.9% of the population that could not be excluded as contributors to the DNA mixture which was found.  Finally, complainant had stated that she wore different clothing on the two occasions, that the encounter with the boyfriend was five days earlier, and that she had bathed since then.  Based on the facts in this case, we conclude that the district court did not abuse its discretion by excluding evidence of complainant's sexual history. 

II.

            The second issue is whether the record is sufficient to support the conviction.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            "Minor inconsistencies and conflicts in evidence do not necessarily render testimony false or provide the basis for reversal."  State v. Johnson, 679 N.W.2d 378, 387 (Minn. App. 2004) (citing State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983)), review denied (Minn. Aug. 17, 2004).  Inconsistencies and credibility determinations are for the jury to assess.  Id. (citing State v.  Pippitt, 645 N.W.2d 87, 92 (Minn. 2002)).  Unless the evidence of guilt is insufficient, the complainant's testimony need not be corroborated.  State v. Cichon, 458 N.W.2d 730, 735 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  A prompt report by a complainant is corroborative evidence of a rape.  Johnson, 679 N.W.2d at 387. 

            Here, appellant argues that the alleged rape setting described by complainant is a "virtually impossible" scenario, that her testimony was inconsistent, and that insufficient evidence existed to convict him of criminal sexual conduct in the first-, second-, or third-degree.[1]  The 13-year-old complainant testified that she awoke early Thanksgiving morning to find appellant having sexual intercourse with her.  She promptly reported the offense to numerous people that day:  appellant's wife and step-daughter, complainant's foster parents, Faribault police, and a Regions sexual-assault nurse.  The police obtained complainant's clothing which Dr. Sedqi of the BCA later determined contained physical evidence of sexual activity.  Dr. Sedqi also concluded that neither appellant nor complainant could be excluded as contributors to the DNA mixture present on the clothes although 98.1% of the general population could be excluded as contributors.

Although physical evidence of sexual penetration was not found on complainant, the Regions sexual-assault nurse testified that evidence of semen can be lost for various reasons including use of the bathroom, which complainant testified she did after the assault.  And any alleged inconsistencies in complainant's testimony were about minor, nonmaterial facts.  The jury had the opportunity to assess the unusual setting in which the assault was alleged to have occurred and complainant's credibility.  In the videotape of appellant's interview by the police, he conceded that he might have had sexual contact with complainant.  Based on the record, we conclude there is adequate evidence for the jury to conclude that appellant was guilty of first-degree criminal sexual conduct.  We will not disturb the jury's verdict.  Therefore, we affirm appellant's conviction.

III.

            The third issue is whether the district court abused its discretion in denying a Schwartz hearing.  See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d. 301, 303 (1960).  A Schwartz hearing is conducted by interviewing jurors to determine whether improprieties have compromised the integrity of the jury's decision.  Id.  "The standard of review for denial of a Schwartz hearing is abuse of discretion."  State v. Church, 577 N.W.2d 715, 721 (Minn. 1998); see also State v. Rainer, 411 N.W.2d 490, 498 (Minn. 1987).  The trial court should be liberal in granting a hearing, but the defendant must first present evidence thatif unchallengedwould warrant the conclusion that jury misconduct occurred.  Rainer, 411 N.W.2d at 498. 

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify [as to the internal deliberations of the jury], . . . except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror . . . .

 

Minn. R. Evid. 606(b).

            In the case before us, the district court concluded the juror's remark overheard by the victim advocate did not indicate juror misconduct.  Rather, the juror simply "was demonstrating an emotion induced by the testimony she had heard; . . . the expression of emotion was tantamount to a juror crying, laughing, or expressing any other emotion during the course of the trial."  The district court noted that the juror's emotion is specifically protected by rule 606(b).  "[A] juror may not testify as to . . . the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict . . . ."  Minn. R. Evid. 606(b).  Given the discretion the district court has to grant a Schwartz hearing, it did not abuse its discretion by denying appellant's motion where the remark was ambiguous and did not demonstrate that the juror could not be impartial when evaluating the evidence in the record.

IV.

1.  Prosecutorial Misconduct

            Appellant raises other claims.  First, he alleges that certain comments by the prosecutor during voir dire, opening statements, and final argument, and the prosecutor's use of claimed perjured testimony constituted misconduct.  With regard to the comments, appellant did not object to the comments at trial.  As a general rule, absent such an objection, he waived his right to have them considered on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  There is no claim the plain error exception to the waiver rule is applicable and we do not consider that exception.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            Appellant's contentions that complainant perjured herself or that the transcripts were altered are without merit.  The differences between complainant's testimony and her guardian's testimony were minor, dealt with nonmaterial matters, and do not indicate perjury.

 

2.  Judicial Misconduct

            Appellant asserts that the district court abused its discretion because it did not fairly decide certain evidentiary issues, permitted the prosecution to amend the complaint to include two lesser-included charges, and denied his request for release prior to incarceration.  With respect to evidentiary rulings, we note that the district court's decision to reserve the issue of Spriegl evidence until trial is irrelevant because the prosecution never presented this evidence at trial.  We have already discussed the exclusion of evidence of prior sexual conduct and concluded that it was not an abuse of discretion.

            Next we consider the district court's decision to permit the prosecution to amend the complaint to include two lesser-included charges.  The rules of procedure provide that "[t]he court may permit an indictment or complaint to be amended at any time before verdict . . . if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."  Minn. R. Crim. P. 17.05.  Although appellant was found guilty of all three charges by the jury, the court only convicted him of first-degree sexual misconduct, the original charge; the other charges were lesser-included offenses; and the amended charges did not require any additional evidence to be proven.  The district court did not err to permit the prosecution to amend the complaint and, in any event, appellant has shown no prejudice.

            Appellant requested release to see his family prior to his commitment but the district court denied the request.  Sentencing is within the district court's discretion.  State v. Gossler, 505 N.W.2d 62, 69 (Minn. 1993).  Neither Minn. R. Crim. P. 27 nor 28 requires a district court to release a defendant on his own recognizance prior to commencement of incarceration.  See Minn. R. Crim. P. 27, 28.  Appellant has not shown an abuse of the district court's discretion. 

3.  Ineffective Assistance of Counsel

            Finally, we consider the ineffective-assistance-of-counsel claim.  To prevail on a claim of ineffective assistance of counsel, "defendant must affirmatively prove that his counsel's representation ‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . .  ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). 

            Appellant claims ineffective assistance of counsel, but does not refer to any specific shortcomings.  A review of the record indicates that appellant received a thorough and vigorous defense.  While appellant may have disagreed with some of his counsel's tactics, counsel is responsible for trial strategy, and an appellate court will not
review matters of trial strategy.  See State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986); see also Minn. R. Prof. Conduct 1.2(a).

            Affirmed.

[1] Appellant was charged with first-degree criminal sexual conduct which requires "sexual penetration with another person . . . [if] the complainant is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant."  Minn. Stat. § 609.342, subd. 1(b) (2002).  Second-degree criminal sexual conduct required only "sexual contact," Minn. Stat. § 609.343, subd. 1(b) (2002), while third-degree criminal sexual conduct requires only "sexual penetration" without requiring the actor to be "in a position of authority" over the complainant, Minn. Stat. § 609.344, subd. 1(b) (2002).