This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0397
State of Minnesota, Respondent,
vs.
Gerald Exom, Appellant.
Filed February 13, 2017 Affirmed Ross, Judge
Hennepin County District Court File No. 27-CR-15-4314
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
The state charged Gerald Exom with criminal sexual conduct for repeatedly
molesting his stepdaughter. On the brink of trial, Exom unsuccessfully sought a continuance to hire private counsel, and the district court ruled preliminarily that the state
could offer evidence of Exom’s alleged prior sexual misconduct with his niece. The parties
proceeded under a stipulated-facts trial, after which the district court found Exom guilty.
Exom argues on appeal that the district court should have granted his continuance motion
and should have excluded the state’s relationship evidence. Because Exom did not provide
a compelling reason to delay trial, and because the district court’s evidentiary ruling was
properly within its discretion, we affirm.
FACTS
Sixteen-year-old E.M. reported in January 2015 that her stepfather, Gerald Exom,
sexually abused her once or twice a month from August 2013 to August 2014 while her
mother R.E. worked overnight shifts as a nurse. E.M. reported that Exom had touched her
breasts and buttocks under her clothing and that he had digitally penetrated her vagina.
Before the report, R.E., who was unaware of the sex acts, had noticed a series of
sexually suggestive computer messages between Exom and E.M. Exom had written to
E.M. that he wanted to “explore some things” with her but that they should wait until R.E.
was at work. He asked her to be his Valentine and told her to delete his messages so R.E.
would not see them. When R.E. confronted Exom about the messages, he denied that any
misconduct had occurred but admitted that he had “temptations.”
R.E. confronted Exom about E.M.’s revelation that he had been sexually abusing
her. Exom said that he had never touched E.M. and claimed that she had fabricated her
allegations. He also implied that the allegations were false because “things like that” would
have escalated beyond touching.
2 The state charged Exom with first-degree and third-degree criminal sexual conduct.
On the morning of jury selection four months after his first appearance, Exom asked the
district court to continue the trial so he could find a private attorney to replace his appointed
attorney. The district court confirmed with Exom’s attorney that she was in fact prepared
to try the case. Exom explained that he was “not sure [his appointed counsel was] prepared
to put on the best defense” for him. The district court ruled that Exom had not provided a
sufficient reason to delay the trial and denied the request. It stated that it knew Exom’s
attorney to be a qualified and excellent attorney and indicated that the jury panel and the
state’s witnesses were also ready to proceed with jury selection and trial.
Exom moved the district court to preclude the state’s evidence of his alleged past
sexual misconduct with his minor niece, T.J. The district court rejected the motion,
reasoning that the relationship evidence was more probative than prejudicial. It also
pledged to read a cautionary instruction before and after admitting the challenged evidence.
The parties agreed to proceed with a stipulated-facts bench trial under Minnesota
Rule of Criminal Procedure 26.01, subdivision 3, on an amended count of second-degree
criminal sexual conduct. Exom waived his trial rights and confirmed that the decision to
agree to a stipulated-facts trial was his own, not his attorney’s. The district court found
Exom guilty based on the stipulated evidence. It did not suggest in its findings that it relied
on T.J.’s allegations against Exom. Before sentencing, Exom wrote to the district court
complaining that he felt forced into the stipulated-facts trial because of the relationship-
evidence ruling. The district court reiterated that Exom had validly waived his trial rights.
It sentenced him to 94 months in prison. He appeals.
3 DECISION
I
Exom argues that the district court’s denying his request for a continuance to hire a
different attorney on the day of trial violated his right to counsel. The United States and
the Minnesota Constitutions guarantee a criminal defendant the right to the assistance of
counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But this is not an “unbridled” right
to choose his representation, and he must generally accept the court’s appointed counsel.
State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). It also does not
confer a right to a “meaningful relationship” with appointed counsel. Morris v. Slappy, 461
U.S. 1, 13–14, 103 S. Ct. 1610, 1617 (1983). It does afford a defendant a fair opportunity
to secure counsel of his own choice. Fagerstrom, 286 Minn. at 298, 176 N.W.2d at 264.
The decision whether to grant a motion to continue a trial falls within the district
court’s discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). We will not reverse
the decision to deny the motion unless the denial shows a clear abuse of discretion. Id.
Exom argues that the district court failed “to exercise any discretion at all” because it did
not inquire about his reasons for the motion. The record defeats the argument. The district
court asked Exom directly for his reason.
And the reason that Exom gave—that he wanted to replace his appointed counsel
because he doubted she was “prepared to put on the best defense”—is not sufficient to
require the district court to grant the motion to continue. It has become axiomatic that “[a]
defendant may not obtain a continuance by . . . arbitrarily choosing to substitute counsel at
the time of trial.” Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264. The supreme court
4 has repeatedly rejected claims that a district court abused its discretion for denying a
motion to continue shortly before the start of trial. See, e.g., State v. Worthy, 583 N.W.2d
270, 278 (Minn. 1998) (holding no abuse of discretion by denying a continuance requested
a few days before trial by defendant who did not have good cause to dismiss his court-
appointed attorney); State v. Vance, 254 N.W.2d 353, 359 (Minn. 1977) (affirming denial
of continuance requested a few days before trial because public defender was competent);
State v. Ahearn, 292 Minn. 449, 450, 194 N.W.2d 256, 256 (1972) (affirming denial of
continuance requested the day before trial because there was no substantial basis for
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0397
State of Minnesota, Respondent,
vs.
Gerald Exom, Appellant.
Filed February 13, 2017 Affirmed Ross, Judge
Hennepin County District Court File No. 27-CR-15-4314
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
The state charged Gerald Exom with criminal sexual conduct for repeatedly
molesting his stepdaughter. On the brink of trial, Exom unsuccessfully sought a continuance to hire private counsel, and the district court ruled preliminarily that the state
could offer evidence of Exom’s alleged prior sexual misconduct with his niece. The parties
proceeded under a stipulated-facts trial, after which the district court found Exom guilty.
Exom argues on appeal that the district court should have granted his continuance motion
and should have excluded the state’s relationship evidence. Because Exom did not provide
a compelling reason to delay trial, and because the district court’s evidentiary ruling was
properly within its discretion, we affirm.
FACTS
Sixteen-year-old E.M. reported in January 2015 that her stepfather, Gerald Exom,
sexually abused her once or twice a month from August 2013 to August 2014 while her
mother R.E. worked overnight shifts as a nurse. E.M. reported that Exom had touched her
breasts and buttocks under her clothing and that he had digitally penetrated her vagina.
Before the report, R.E., who was unaware of the sex acts, had noticed a series of
sexually suggestive computer messages between Exom and E.M. Exom had written to
E.M. that he wanted to “explore some things” with her but that they should wait until R.E.
was at work. He asked her to be his Valentine and told her to delete his messages so R.E.
would not see them. When R.E. confronted Exom about the messages, he denied that any
misconduct had occurred but admitted that he had “temptations.”
R.E. confronted Exom about E.M.’s revelation that he had been sexually abusing
her. Exom said that he had never touched E.M. and claimed that she had fabricated her
allegations. He also implied that the allegations were false because “things like that” would
have escalated beyond touching.
2 The state charged Exom with first-degree and third-degree criminal sexual conduct.
On the morning of jury selection four months after his first appearance, Exom asked the
district court to continue the trial so he could find a private attorney to replace his appointed
attorney. The district court confirmed with Exom’s attorney that she was in fact prepared
to try the case. Exom explained that he was “not sure [his appointed counsel was] prepared
to put on the best defense” for him. The district court ruled that Exom had not provided a
sufficient reason to delay the trial and denied the request. It stated that it knew Exom’s
attorney to be a qualified and excellent attorney and indicated that the jury panel and the
state’s witnesses were also ready to proceed with jury selection and trial.
Exom moved the district court to preclude the state’s evidence of his alleged past
sexual misconduct with his minor niece, T.J. The district court rejected the motion,
reasoning that the relationship evidence was more probative than prejudicial. It also
pledged to read a cautionary instruction before and after admitting the challenged evidence.
The parties agreed to proceed with a stipulated-facts bench trial under Minnesota
Rule of Criminal Procedure 26.01, subdivision 3, on an amended count of second-degree
criminal sexual conduct. Exom waived his trial rights and confirmed that the decision to
agree to a stipulated-facts trial was his own, not his attorney’s. The district court found
Exom guilty based on the stipulated evidence. It did not suggest in its findings that it relied
on T.J.’s allegations against Exom. Before sentencing, Exom wrote to the district court
complaining that he felt forced into the stipulated-facts trial because of the relationship-
evidence ruling. The district court reiterated that Exom had validly waived his trial rights.
It sentenced him to 94 months in prison. He appeals.
3 DECISION
I
Exom argues that the district court’s denying his request for a continuance to hire a
different attorney on the day of trial violated his right to counsel. The United States and
the Minnesota Constitutions guarantee a criminal defendant the right to the assistance of
counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But this is not an “unbridled” right
to choose his representation, and he must generally accept the court’s appointed counsel.
State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). It also does not
confer a right to a “meaningful relationship” with appointed counsel. Morris v. Slappy, 461
U.S. 1, 13–14, 103 S. Ct. 1610, 1617 (1983). It does afford a defendant a fair opportunity
to secure counsel of his own choice. Fagerstrom, 286 Minn. at 298, 176 N.W.2d at 264.
The decision whether to grant a motion to continue a trial falls within the district
court’s discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). We will not reverse
the decision to deny the motion unless the denial shows a clear abuse of discretion. Id.
Exom argues that the district court failed “to exercise any discretion at all” because it did
not inquire about his reasons for the motion. The record defeats the argument. The district
court asked Exom directly for his reason.
And the reason that Exom gave—that he wanted to replace his appointed counsel
because he doubted she was “prepared to put on the best defense”—is not sufficient to
require the district court to grant the motion to continue. It has become axiomatic that “[a]
defendant may not obtain a continuance by . . . arbitrarily choosing to substitute counsel at
the time of trial.” Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264. The supreme court
4 has repeatedly rejected claims that a district court abused its discretion for denying a
motion to continue shortly before the start of trial. See, e.g., State v. Worthy, 583 N.W.2d
270, 278 (Minn. 1998) (holding no abuse of discretion by denying a continuance requested
a few days before trial by defendant who did not have good cause to dismiss his court-
appointed attorney); State v. Vance, 254 N.W.2d 353, 359 (Minn. 1977) (affirming denial
of continuance requested a few days before trial because public defender was competent);
State v. Ahearn, 292 Minn. 449, 450, 194 N.W.2d 256, 256 (1972) (affirming denial of
continuance requested the day before trial because there was no substantial basis for
dissatisfaction or distrust with defendants’ appointed counsel); State v. Huber, 275 Minn.
475, 480–81, 148 N.W.2d 137, 141–42 (1967) (affirming denial of continuance requested
the day before trial because defendant gave no indication he was denied opportunity to find
private counsel in the time leading up to trial). Exom did not express that he wanted a
different attorney until shortly before jury selection was to begin, choosing not to bring a
motion or seek other counsel during the months preceding the trial. The reason that Exom
offered to support his motion would not warrant a continuance, let alone compel one.
The district court therefore did not abuse its discretion by finding Exom’s reason
insufficient to grant the continuance.
II
Exom asks us to reverse his conviction based on the district court’s allegedly
erroneous ruling that the state could introduce evidence of his reported prior sexual conduct
with his niece, T.J. We also review evidentiary rulings for an abuse of discretion. State v.
Matthews, 779 N.W.2d 543, 553 (Minn. 2010). And we will reverse the conviction here
5 only if Exom establishes that the district court abused its discretion and that his defense
was consequently prejudiced. See State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
Exom maintains that the district court improperly admitted the state’s evidence of
T.J.’s allegations as relationship evidence. We conclude otherwise.
“Relationship evidence” is shorthand for evidence of domestic conduct that is
admissible under certain circumstances. A district court may admit evidence of “domestic
conduct by the accused against the victim of domestic conduct, or against other family or
household members . . . unless the probative value is substantially outweighed by the
danger of unfair prejudice.” Minn. Stat. § 634.20 (2014). Domestic abuse evidence is
evidence of domestic conduct. Id. “Domestic abuse” includes criminal sexual conduct, and
“family or household members” includes blood relatives. Minn. Stat. § 518B.01, subd.
2(a)(3), (b)(3) (2014). Evidence of domestic conduct by the accused against family or
household members other than the victim may be admitted under section 634.20. State v.
Fraga, 864 N.W.2d 615, 627 (Minn. 2015). “Evidence that helps to establish the
relationship between the victim and the defendant or which places the event in context
bolsters its probative value.” State v. Barnslater, 786 N.W.2d 646, 652 (Minn. App. 2010)
(quotation omitted), review denied (Minn. Oct. 27, 2010). And “evidence showing how a
defendant treats his family or household members . . . sheds light on how the defendant
interacts with those close to him, which in turn suggests how the defendant may interact
with the victim.” State v. Valentine, 787 N.W.2d 630, 637 (Minn. App. 2010), review
denied (Minn. Nov. 16, 2010).
6 Exom does not contend that T.J. was not a family or household member at the time
of the alleged abuse. Nor does he (or could he) dispute that the alleged sexual misconduct
qualifies as domestic conduct under section 634.20. He contends instead that the probative
value of T.J.’s allegations is substantially outweighed by their risk of unfair prejudice to
his defense. The evidence has probative value under Valentine because it reveals how
Exom interacted inappropriately with another young, female relative while she lived in his
residence. This tends to show how he treats his young, female relatives, “which in turn
suggests how the defendant may interact with the victim.”
As to the balance of the probative value of this evidence against any prejudice, the
district court should instruct the jury as to the limited use of relationship evidence.
Barnslater, 786 N.W.2d at 653; see also State v. Ware, 856 N.W.2d 719, 729 (Minn. App.
2014) (“A district court’s limiting instruction lessens the probability of undue weight being
given by the jury to the evidence.” (quotation omitted)). The district court followed that
approach here, mitigating any prejudice by announcing that it had intended to give the jury
cautionary instructions to limit its use of the evidence. Courts trust that juries follow the
cautionary instructions the district court issues. See Matthews, 779 N.W.2d at 550. We
understand that Exom’s alleged prior sexual misconduct with his niece is prejudicial. And
we can assume that the weighing of competing interests was close enough that not all
district court judges would have chosen to admit the evidence. But on balance, we do not
believe that the district court’s decision to admit the relationship evidence was beyond its
reasonable discretionary range.
Affirmed.