This opinion will be unpublished and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
State of Minnesota,
Thomas Dean DeWolf,
Filed January 2, 2007
Goodhue County District Court
File No. K2-04-1783
Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)
Stuart, State Public Defender, Melissa V. Sheridan, Assistant Public Defender,
1380 Corporate Center Curve,
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of first-degree criminal sexual conduct, appellant argues that (1) the victim’s testimony, and particularly her statements to police, did not establish that appellant used force or coercion to accomplish sexual penetration; (2) the district court abused its discretion in admitting Spreigl evidence that appellant had attempted to force sexual intercourse on another woman because the other incident had no marked similarity to the charged offense, did not show a common scheme or plan, and appellant’s intent was not at issue anyway; (3) the prosecutor committed prejudicial misconduct in closing argument and inflamed the passions of the jury by mimicking the victim’s distraught demeanor while testifying; and (4) the court abused its discretion in denying his motion for a downward dispositional departure despite a psychosexual evaluation that concluded that he was amenable to treatment. In a pro se supplemental brief, appellant argues that (1) his due-process rights were violated because a restraining order obtained by the victim prevented him from thoroughly investigating the victim and other witnesses before trial; and (2) the district court erred in admitting into evidence and allowing the jury to view during deliberations a videotaped interrogation of appellant showing appellant in restraints and wearing prison attire. We affirm.
The victim, 27-year-old M.W., lived with her children in a townhouse in a four-unit building. M.W. met appellant Thomas Dean DeWolf, who lived in another townhouse in the same building, in September 2003. Appellant lived with his fiancée, J.M., and their children. M.W. became good friends with J.M. and also considered appellant her friend.
During the night, on November 19, 2004, M.W. was awakened by appellant flashing a light in the hallway and then in her bedroom. Appellant asked M.W. to come with him, but she refused. Appellant approached M.W. and kissed her on the neck and ear. M.W. told appellant to quit and go home. Eventually, M.W. went with appellant because she did not want her daughters, who were in the same bedroom, to wake up. M.W. testified at trial as follows about the sexual assault: M.W. sat on the couch, and appellant approached her and began kissing her neck. Appellant tried to kiss M.W. on the neck and lips and to remove her clothes, but she kept pushing him away and telling him to stop. Appellant held M.W.’s wrists, pulled down his pants, and began rubbing his penis. Eventually, appellant got M.W.’s pants and underwear down and, without M.W.’s consent, began touching her with his hands in between her legs. Appellant then performed cunnilingus on M.W. Although M.W. did not consent to appellant performing cunnilingus on her, she allowed him to do so because she was too tired to resist. M.W. described herself as being scared and so exhausted from trying to push appellant away that she was unable to move. Appellant is six feet, one inch tall and weighs 200 pounds; M.W. is five feet, one inch tall and weighs 90 pounds. Appellant then climbed on top of M.W., inserted his penis into her vagina, and had sexual intercourse with her until he ejaculated.
After appellant left, M.W. went to a neighbor’s townhouse. The neighbor, C.H., described M.W. as hysterical and barely able to speak. M.W. called J.M., who was spending the night at her father’s home, and told her to come home. M.W. told J.M. that appellant had woken her up and started kissing her ear. J.M. described M.W. as sounding like she was out of breath. J.M. immediately drove home and confronted appellant. Appellant admitted touching M.W.’s leg and masturbating in front of her.
M.W. also called 911. Goodhue County Deputy Sheriff David Windels, who responded to the call, found M.W. and C.H. on the porch. Windels described M.W. as crying uncontrollably and rocking back and forth with her hands covering her face. For some minutes, M.W. did not respond to Windels’ questions about what had happened. Eventually, M.W. identified herself and responded to Windels’ questions.
M.W. stated to Windels: She got up and appellant followed her. She picked up her sleeping child from the couch, carried him downstairs, and then went back upstairs to meet appellant. M.W. told appellant to please respect her and that he needed to gain control. Appellant attempted to remove M.W.’s pants, but she said that her clothes needed to stay on. Appellant tried to pull M.W.’s pants down, eventually succeeding, and also pulled his own shorts down. Appellant then began rubbing his penis and touched M.W.’s leg. M.W. kept telling appellant “no” and trying to grab his arms and push him away. Appellant kissed M.W.’s neck and lips. Appellant tried to remove M.W.’s underpants while M.W. continued resisting him. Appellant placed his penis into her vagina and had sexual intercourse with M.W. until he ejaculated.
Windels testified that M.W. continued sobbing and rocking back and forth with her hands covering her face during the entire interview. Windels testified that M.W. took breaks between answers to questions and several times completely broke down and was unable to talk. As the interview progressed, the delays between M.W.’s answers became lengthier, eventually lasting five to six minutes each. M.W. described the sexual intercourse as lasting “forever” and said that appellant was supposed to be one of her best friends.
James Lawler, an investigator for the Goodhue County Sheriff’s Department, came to the scene and interviewed M.W. Lawler testified that during the interview, M.W. continued to cry, at times breaking down completely. M.W. was shaking and trembling while telling about the sexual assault.
Lawler and Windels brought M.W. to St. Mary’s Hospital, where she was examined by Debra Horsman, a registered nurse and sexual-assault nurse examiner. When Horsman entered the exam room, M.W. was sitting on the floor with her knees drawn to her chest and her head down in her arms, covering her face. For an hour, M.W. sat on the floor, saying nothing; she responded to questions by nodding her head “yes” or “no” but never lifted it to expose her face. Eventually, M.W. consented to a physical exam and then told Horsman that appellant had come to her apartment, pushed her on the couch, and penetrated her vagina. A vaginal swab confirmed the presence of appellant’s semen in M.W.’s vagina.
Lawler brought M.W. home from the hospital. About seven to seven and a half hours elapsed from the time Lawler arrived at the scene until he dropped M.W. off. During that entire time, whenever Lawler observed M.W., she was crying, upset, and physically shaking. Lawler described M.W. as “emotionally shattered” and “having a hard time coping with the incident.”
Psychologist Jamie Hoxmeier, who had been treating M.W. for adjustment disorder before the sexual assault, testified that M.W.’s behavior changed drastically after the sexual assault. Previously, M.W. had been functioning fairly well, and Hoxmeier was considering discontinuing her treatment. Afterwards, M.W.’s functioning became severely impaired to the point where she had “problems getting through every day life” and began reporting many new problems. Following the sexual assault, M.W. would be tearful throughout most sessions, and she had difficulty putting things into words, whereas previously she had been very articulate and verbal.
Hoxmeier testified that before the sexual assault, M.W. kept her apartment very bright and sunny, with curtains decorating but not covering the windows. Afterwards, she covered the windows with blankets, blocking out all of the sun, and told Hoxmeier “that she just developed a fear of having someone look in the windows, . . . and was very, very uncomfortable if she had her windows opened or uncovered.” M.W. removed almost all of the furniture from her living room. For long periods of time she would avoid going to the kitchen because she had to walk through the living room to get to the kitchen. She became afraid of driving unless she had another adult with her and had panic attacks whenever she went grocery shopping. Hoxmeier diagnosed M.W. as suffering from posttraumatic stress disorder after the sexual assault.
The district court admitted evidence about a prior sexual assault committed by appellant. In May 2004, appellant won concert tickets and took J.M.’s cousin, W.F., to the concert because J.M. was unable to go. During the drive home after the concert, appellant turned off the highway, drove into the parking lot of a closed business, and sexually assaulted W.F.
A jury found appellant guilty of one count each of first-, second-, third-, and fourth-degree criminal sexual conduct. The district court denied appellant’s motion for a judgment of acquittal or new trial and sentenced him to an executed term of 144 months in prison for the first-degree criminal-sexual-conduct conviction. This direct appeal challenging the conviction and sentence followed.
D E C I S I O N
1. Appellant argues that the evidence was insufficient to prove that he used force or coercion to accomplish sexual penetration or contact.
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 a 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 must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (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 that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). In evaluating the reasonableness of the jury’s decision to convict, the court defers to the jury on the issues of witness credibility and the weight to be assigned each witness’s testimony. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).
The offenses of which appellant was convicted all require proof that the defendant “use[d] force or coercion to accomplish” the sexual penetration or contact. Minn. Stat. §§ 609.342, subd. 1(e)(i), 609.343, subd. 1(d)(i), 609.344, subd. 1(e)(i), 609.345, subd. 1(c) (2004). Coercion is defined as
[t]he use by the actor of words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.
Minn. Stat. § 609.341, subd. 14 (2004).
M.W.’s testimony and the evidence that appellant is six feet, one inch tall and weighs 200 pounds and M.W. is five feet, one inch tall and weighs 90 pounds were sufficient to prove coercion. See State v. Meech, 400 N.W.2d 166, 168 (Minn. App. 1987) (concluding that the evidence was sufficient to prove coercion when the victim was fearful and overpowered by the defendant saying “shut up,” pushing up her nightgown, and holding down her hands). M.W.’s testimony was corroborated by her demeanor following the sexual assault and by the changes in her behavior observed by Hoxmeier. See State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990) (sexual assault victim’s demeanor after assault corroborated her testimony), review denied (Minn. Mar. 16, 1990).
There were inconsistencies between M.W.’s trial testimony and her statements to Windels, Lawler, and Horsman, regarding how long she continued resisting appellant and whether appellant masturbated, and whether he performed oral sex on her. But Lawler’s testimony indicated that the inconsistencies were insignificant. Lawler explained that sometimes after a traumatic incident, a victim might not completely remember the incident or that due to embarrassment, a victim may not provide information unless elicited by a specific question. It was the jury’s role to determine the credibility of M.W.’s testimony in light of the inconsistencies in M.W.’s accounts of what happened. See State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (when victim’s accounts of sexual abuse changed over time, credibility was for the jury to resolve), review denied (Minn. May 23, 1990); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (when child victim told officer that she had been sexually abused by defendant on five or more occasions but at trial testified to only three incidents, inconsistency between testimony and the prior statement was for jury to consider in weighing victim’s credibility).
The evidence was sufficient to support appellant’s convictions.
2. Appellant argues that the district court erred in admitting evidence of the sexual assault he committed against W.F.
Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Minn. R. Evid. 404(b). Such evidence is known as “Spreigl evidence” in Minnesota. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). To prevail, an appellant must show error and prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
Appellant argues that the district court erred in finding that the Spreigl evidence was relevant and material to the state’s case and that the probative value outweighed the potential for unfair prejudice. See State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002) (listing requirements for admission of Spreigl evidence).
Relevancy and materiality
In determining the relevance and materiality of Spreigl evidence, the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi. The closer the relationship between the events, the greater the relevance or probative value of the evidence and the lesser the likelihood the evidence will be used for an improper purpose.
585 N.W.2d at 390 (quotations omitted).
A Spreigl offense need not be
identical to the charged crime but “must have a marked similarity . . . to the
charged offense.” State v. Ness, 707 N.W.2d 676, 688 (
The following similarities exist between the prior offense and the current offense: both assaults took place during the night hours; appellant told both victims that he was not getting enough sex from his fiancée; appellant befriended the victims; appellant established a relationship with the women, who were either related or friendly with his fiancée, as being a safe person; appellant surprised both victims; appellant intended to get gratification from a victim he had picked out in advance; appellant used force to attempt to gain sexual gratification; after the misconduct, appellant acted remorseful to his victims; and he attempted to keep his misconduct secret.
W.F. testified that despite her resistance, appellant attempted to kiss her, opened his pants, pulled out his penis, and forced her mouth to come in contact with it, and held her there while she resisted. She was crying, resisting, and telling appellant “no” during the entire time of the assault. Similarly, in this case, appellant attempted to kiss M.W., pulled down his shorts to expose his penis, pulled off M.W.’s clothing, forced oral contact with M.W.’s vagina, and held her arms while she resisted. M.W. kept telling appellant “no” and trying to push him away until she became too exhausted to resist him further.
These similarities are sufficient to permit admission of the Spreigl incident. See State v. Blom, 682 N.W.2d 578, 612 (Minn. 2004) (holding that offenses were sufficiently similar when “[b]oth incidents also involved the kidnapping of young, petite women to remote, wooded areas” and “[b]oth incidents involved subduing the women by applying force at their neck and throat areas”); State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984) (in upholding admission of Spreigl evidence, supreme court stated, “[i]n this case the defendant allegedly entered the house of a female acquaintance without consent, forced himself on her, and then, when complaint was made, claimed consent. The other-crime evidence showed a pattern of similar aggressive sexual behavior by defendant against other women in the community.”).
Because appellant claimed that there was consent, the Spreigl incident was relevant to show appellant’s intent to act without consent. See DeBaere, 356 N.W.2d at 305 (stating that Spreigl evidence “was highly relevant to the issue of consent” in a sexual assault case). Ness, the case relied on by appellant, did not involve a claim of consent.
Prejudicial Effect versus Probative Value
When balancing the probative value of Spreigl testimony against the prejudicial effect, the district court “must consider how necessary the Spreigl evidence is to the state’s case. Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the [district] court admit the Spreigl evidence.” State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citations omitted). Necessity has been clarified by the supreme court:
“Need” for other-crime evidence is not necessarily the absence of sufficient other evidence to convict, nor does exclusion necessarily follow from the conclusion that the case is sufficient to go to the jury. A case may be sufficient to go to the jury and yet the evidence of other offenses may be needed because, as a practical matter, it is not clear that the jury will believe the state’s other evidence bearing on the disputed issue.
v. State, 695 N.W.2d 109, 120 (Minn. 2005) (quotation omitted). To determine need, the district court “must
identify the precise disputed fact to which the Spreigl evidence would be relevant.”
The district court found:
The State’s case is challenged certainly in this particular case because of the . . . unique nature of these alleged crimes. There are no other witnesses. It involves an alleged perpetrator and alleged victim, no other witnesses. In this particular case there’s a lack of physical evidence as to the consent issue. In fact, the defense was able to obtain testimony from one of the State’s witnesses, the SANE nurse, that the physical evidence that did exist was consistent with consensual sex. There also is evidence in this case of stress by the defense and undoubtedly will be argued with regards to the alleged victim’s lack of credibility on the issue of consent and what went on, and also evidence of pre-existing mental and physical impairments that, again, go to her lack of credibility.
In light of the absence of other witnesses and appellant’s emphasis on issues relating to M.W.’s credibility, including the inconsistencies between her trial testimony and prior statements and her pre-existing mental and physical impairments, the district court did not err in finding that the probative value of the Spreigl testimony was not outweighed by its potential for unfair prejudice. Also, before W.F. testified and again during final instructions, the district court instructed the jury that appellant could not be convicted based on prior bad acts, thus, guarding against the potential for unfair prejudice. See State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985) (noting that district court guarded against undue prejudice by giving jury instructions).
3. This court
reviews claims of prosecutorial misconduct only to determine whether “the
misconduct, when considered in light of the whole trial, impaired the
defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678
(Minn. 2003). In cases involving less
serious misconduct, the standard is “whether the misconduct likely played a
substantial part in influencing the jury to convict.”
Appellant argues that the prosecutor committed misconduct during closing argument when, while reviewing M.W.’s testimony, she changed her voice to mimic M.W.’s voice. M.W. is hearing-impaired. Appellant argues, “By using a whining tone of voice in an attempt to mimic [M.W.], the prosecutor was obviously encouraging a conviction based on sympathy for the complainant rather than the evidence at trial.”
As the record does not contain a recording of the prosecutor’s tone of voice, the district court was in the best position to determine whether the argument was proper, and it overruled appellant’s objection to the argument.
The authority cited by appellant does not address the issue of whether a prosecutor commits misconduct by mimicking a witness during argument. While appellant contends that the argument played to the jury’s sympathies, he does not argue that the argument mischaracterized the evidence or inaccurately depicted M.W.’s tone of voice. See State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (stating that a prosecutor may argue reasonable inferences from evidence in the record and is not constrained to deliver a colorless argument).
Even if the argument was improper, it was only minor misconduct. The district court instructed the jury that they should rely on their recollection of the evidence and disregard any contrary attorney remarks. The jury is presumed to have followed the court’s instructions. State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002). The alleged misconduct was isolated and occurred near the end of an argument that covered 25 transcript pages. See State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (stating that prosecutor’s argument must be evaluated as a whole, without solitary comments being taken out of context); State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (finding no prejudice when remarks were isolated and not representative of closing argument viewed in its entirety). The evidence against appellant was strong in that the evidence regarding M.W.’s demeanor immediately after the assault and the later changes in her behavior strongly corroborated her trial testimony, which, overall, was consistent with her prior out-of-court statements. Under these circumstances, we conclude that any misconduct did not play a substantial part in influencing the jury to convict.
In a pro se supplemental brief, appellant argues that the prosecutor committed misconduct by referring to him as having a sexual addiction and stating that appellant “would not stop until he got what he came for. . . . Because, as he told the investigators, he snaps and becomes two different people, and he doesn’t stop until he gets what he came for.” Appellant argues that these statements indicate that he has serious sexual problems. The record supports the assertion that appellant has a sexual addiction. The argument, therefore, was not misconduct.
4. Appellant argues that the district court erred by not granting his request for a downward dispositional departure from sentencing guidelines.
to depart from sentencing guidelines rests within the district court’s
discretion and will not be reversed absent an abuse of discretion. State
v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court must order the presumptive
sentence provided in the sentencing guidelines unless “substantial and
compelling circumstances” warrant a departure, and only in a rare case will we
reverse the district court’s imposition of the presumptive sentence. State
v. Kindem, 313 N.W.2d 6, 7 (
argues that the district court erred in refusing to depart downward
dispositionally based on an evaluation that concluded that he is amenable to
treatment in a probationary setting. The
fact that a mitigating factor is present does not obligate the court to grant a
downward departure. State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (quotation
omitted), review denied (
5. Appellant raises additional issues in a pro se supplemental brief.
Appellant argues that a restraining order obtained by M.W. prohibiting appellant from any direct or indirect contact with her, her children, and her children’s fathers violated his due process rights because it prevented him from thoroughly investigating the case. The argument is unpersuasive. Appellant has not shown that his investigation was impeded. He obtained statements from M.W.’s ex-husband and other members of her family, including her father, mother, and sister. Nothing in the record suggests that appellant was prohibited from subpoenaing these witnesses to testify at trial.
Appellant next argues that admission into evidence of the videotape of his interview with Lawler was improper because appellant was in prison attire, wearing orange clothes and sandals and in restraints. See Minn. R. Crim P.26.03, subd. 2(b) (stating that “[a]n incarcerated defendant or witness shall not appear in court in the distinct attire of a prisoner). Minn. R. Crim. P. 26.03, subd. 2(b), addresses the defendant’s presence in the courtroom during trial.
Minn. R. Crim. P. 26.03, subd. 2(b), applies to evidence presented by videotape
and the district court erred in admitting the videotape into evidence,
appellant is not entitled to reversal if the error was harmless, or, in other
words, appellant’s conviction was “surely unattributable” to the error.
claims that excessive bail kept him incarcerated before and during trial,
causing severe mental anguish and emotional distress, which hampered his
ability to defend himself. Appellant
makes no legal argument and cites no authority that supports this claim. A claim that is not supported by argument or
citation to legal authority is deemed waived.
State v. Krosch, 642 N.W.2d
713, 719 (Minn. 2002). A pro se litigant
is held to the same standard as an attorney.
See State v. Seifert, 423
N.W.2d 368, 372 (
Finally, we reject appellant’s argument that the cumulative effect of trial errors deprived him of a fair trial. Under some circumstances, the cumulative effect of multiple harmless errors may deny a fair trial and, therefore, require reversal for a new trial. State v. Litzau, 650 N.W.2d 177, 180 (Minn. 2002). When determining whether reversal is appropriate, we balance the egregiousness of the errors against the weight of proof against the defendant. State v. Cermak, 350 N.W.2d 328, 334 (Minn. 1984). A new trial is not warranted when “errors did not affect the jurors’ deliberations or their assumptions about appellant’s innocence or guilt.” State v. Erickson, 610 N.W.2d 335, 341 (Minn. 2000). The cumulative effect of any errors that occurred during appellant’s trial was insufficient to require reversal. Compare State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (concluding that the cumulative effect of the following errors required reversal: district court instructed jury to continue deliberating until they reached a unanimous verdict; appellant’s confrontation rights were violated; and prosecutorial misconduct in closing argument, which turned Spreigl evidence into improper substantive evidence).