This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jeffrey Wayne Thibodeau,
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,
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, 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.
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.
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
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.
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 (
the Confrontation and Due Process clauses of the
In prosecutions of
certain sexual offenses,
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.
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 (
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 (
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. 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,
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.
third issue is whether the district court abused its discretion in denying a Schwartz hearing. See Schwartz
v. Minneapolis Suburban Bus Co., 258
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 . . . .
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 . . . .”
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 (
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.”
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 (
3. Ineffective Assistance of Counsel
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 (
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 (
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