STATE OF MINNESOTA
IN SUPREME COURT
A22-1679
Hennepin County Hudson, C.J.
State of Minnesota,
Respondent,
vs. Filed: May 8, 2024 Office of Appellate Courts Jerry Arnold Westrom,
Appellant.
________________________
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota, for respondent.
Eric J. Nelson, Halberg Criminal Defense, Bloomington, Minnesota, for appellant.
SYLLABUS
1. The district court did not err in concluding that the genetic analysis of a
napkin discarded by appellant was not a search because the analysis was only capable of
matching appellant’s DNA to the DNA found at the crime scene and appellant had no
reasonable expectation of privacy in his identifying information.
1 2. Any error in precluding appellant from presenting alternative-perpetrator
evidence at trial was harmless beyond a reasonable doubt.
3. The district court did not abuse its discretion when it excluded testimony
from appellant’s expert as late discovery because the district court properly exercised its
authority to respond to violations of the Minnesota Rules of Criminal Procedure.
4. The State did not commit prosecutorial misconduct during its closing
argument because none of the prosecutor’s statements constituted error.
5. The circumstantial evidence presented at trial was sufficient to support the
jury’s verdict that appellant was guilty of first-degree premeditated murder, and appellant
advances no reasonable hypothesis inconsistent with appellant’s guilt.
6. Appellant did not receive ineffective assistance of counsel in violation of his
constitutional rights because appellant has not demonstrated that trial counsel’s personal
interests materially limited the representation, and appellant was not prejudiced by the
representation.
7. No cumulative errors denied appellant his right to a fair trial where only one
potential error was present, and the error was harmless beyond a reasonable doubt.
8. It was error to convict appellant of both first-degree felony murder and the
lesser-included offense of second-degree intentional murder.
Affirmed in part, reversed in part, and remanded.
2 OPINION
HUDSON, Chief Justice.
A jury found appellant Jerry Arnold Westrom guilty of first-degree premeditated
murder under Minn. Stat. § 609.185(a)(1) (2022) and second-degree intentional murder
under Minn. Stat. § 609.19, subd. 1(1) (2022). The district court entered judgments for
conviction on both counts and imposed a sentence of life with the possibility of parole after
30 years. On direct appeal to our court, Westrom challenges the district court’s evidentiary
rulings regarding DNA evidence, alternative-perpetrator evidence, and expert testimony.
He also argues that the State committed prejudicial prosecutorial misconduct, that there
was insufficient evidence to support his convictions, that he received ineffective assistance
of counsel, and that cumulative errors denied him his right to a fair trial. Because the
district court did not commit any error requiring reversal, Westrom’s constitutional rights
were not violated during his trial, and the State presented sufficient evidence, we affirm
Westrom’s conviction of first-degree premeditated murder. But because the district court
violated Minn. Stat. § 609.04 (2022) when it entered a conviction on the lesser-included
second-degree murder offense in addition to the conviction for first-degree premeditated
murder, we reverse the second-degree murder conviction and remand to the district court
to vacate that conviction.
FACTS
On June 13, 1993, Jeanie Childs was found stabbed to death in her South
Minneapolis apartment. Her body was lying face-up on the floor of her bedroom, naked
except for a pair of socks. The bed was soaked with blood, and blood covered the walls of
3 the bedroom and the adjoining bathroom. While investigating the crime scene, police noted
several bloody footprints on the floor of the bedroom, a bloodstained towel hanging on the
bathroom wall, and a bloodstained washcloth on the toilet seat. The Bureau of Criminal
Apprehension (“BCA”) took lifts of the footprints and catalogued several of the items in
the apartment for forensic analysis. Childs’ autopsy revealed that she had been stabbed
about 65 times. She had a stab wound to her heart, and several of the wounds appeared to
have been made after she had died. A large, deep slash ran across her abdomen. Hairs
were found on her hands, which had suffered multiple defensive wounds.
Police initially investigated Childs’ boyfriend, Arthur Gray, who held the lease of
the apartment where Childs was killed. Gray was unemployed but had been described as
Childs’ trafficker or pimp. 1 He had allegedly physically abused Childs previously in the
apartment where she was killed. Gray was identified as the source of the hairs on Childs’
hands, and his DNA was found on the comforter of the bed. Gray had an alibi, though, as
he was purportedly with a friend at a motorcycle rally in Wisconsin at the time of the
murder. Ultimately, the case went cold.
In 2018, the police began working with the FBI to review Childs’ murder. They
sent a DNA sample from the crime scene to DNA Solutions, Inc. to create a single
nucleotide polymorphism (“SNP”) profile 2 that could be compared with profiles on
1 The parties do not appear to dispute that Childs earned money through prostitution or that her clients frequently visited the apartment. 2 A single nucleotide polymorphism (“SNP,” pronounced “snip”) profile extracts highly informative segments from a DNA sample and can be used to predict the source’s physical appearance, identify distant genetic relationships, and indicate susceptibility to
4 commercial genealogical databases to identify the source’s relatives. After receiving the
SNP profile, police arranged for it to be uploaded to several commercial genealogical
websites, including GEDmatch, Ancestry.com, and MyHeritage. A potential match was
located on MyHeritage that appeared to be a first cousin to the source of the crime scene
DNA. Law enforcement then used the match to construct a family tree that identified
Westrom as the likely source.
After learning that Westrom would be attending a hockey game in Mequon,
Wisconsin, police followed him to the game and watched him order food from a concession
stand. Westrom wiped his mouth with a napkin and threw it away in a trash can.
Investigators took the napkin out of the trash can and sent it to the BCA for analysis. The
BCA generated a short tandem repeat (“STR”) DNA profile from the residue on the napkin
and found that it matched the crime scene sample. Police then obtained a search warrant
to collect a known sample of Westrom’s DNA (to validate the match) and took Westrom
into custody. He was subsequently charged with second-degree intentional murder in
violation of Minn. Stat. § 609.19, subd. 1(1). A grand jury later indicted Westrom for first-
degree premeditated murder in violation of Minn. Stat. § 609.185(a)(1).
Westrom moved to suppress all evidence stemming from the police’s comparison
of the SNP profile created from DNA gathered from the crime scene with other profiles on
disease. Erin Murphy, Law and Policy Oversight of Familial Searches in Recreational Genealogy Databases, 292 Forensic Sci. Int’l. e5, e5–e6 (2018). By contrast, law enforcement has traditionally utilized short tandem repeat (“STR”) profiles in forensic investigations. Id. STR profiles focus exclusively on noncoding segments of DNA that do not yield information about the source but can be used to easily distinguish individuals from each other. Id.
5 commercial genealogical databases. His motion also contested the admissibility of
evidence obtained through the STR analysis of DNA taken from his discarded napkin. The
district court denied Westrom’s motion and concluded that no search had occurred because
Westrom held no expectation of privacy in the information contained within his DNA when
police only used his DNA for the purpose of identification.
The State arranged for Mark Ulrick, a forensics administrator for the City of
Minneapolis, to testify about the friction ridge footprint analysis he had performed that
identified Westrom as the source of three bloody footprints left at the crime scene.
Westrom hired Dr. Michael Nirenberg to dispute these results using the Reel Method of
forensic podiatry, which analyzes a subject’s morphological features by measuring
multiple dimensions of a footprint. The State challenged Dr. Nirenberg’s methodology,
and a Frye-Mack 3 hearing was held. During the hearing, the State confronted
Dr. Nirenberg with evidence that the footprint samples he relied on from Westrom were
collected using a different procedure from what Dr. Nirenberg assumed in his analysis. In
response, Dr. Nirenberg stated, “it weakens my findings significantly.”
About 4 months after the hearing, and shortly before trial was scheduled to begin,
Westrom disclosed a new report from Dr. Nirenberg that utilized two additional methods
of forensic podiatry: the Visual Overlay Method (which examines a footprint’s traced
outline) and the Gunn Method (which measures the distance between various points on a
3 Minnesota uses the Frye-Mack standard for judging the admissibility of expert testimony that involves “a novel scientific theory” or “emerging scientific techniques.” State v. Garland, 942 N.W.2d 732, 746 (Minn. 2020) (citations omitted) (internal quotation marks omitted).
6 footprint). The district court ordered that Westrom be precluded from offering evidence
related to any of the forensic podiatry methods, because the Reel Method did not meet the
Frye-Mack standard and the other methods were disclosed too late. It also found that
forensic podiatry in general was unreliable for purposes of identification and that the Gunn
and Visual Overlay Methods would not have met the Frye-Mack standard even if they had
been presented sooner.
Around that same time, Westrom’s counsel approached the State about a possible
conflict of interest: he had represented the district court judge’s niece in a personal injury
case. At the State’s request, a hearing was held, and it was determined that the
representation was “successfully completed in 2017.” This information allayed the State’s
concerns about any potential bias in favor of Westrom’s counsel. During a subsequent
hearing to set a new trial date, the judge criticized Westrom’s counsel for not investigating
alternative-perpetrator evidence sooner, and counsel accused the judge of “personalizing
it.”
Westrom moved next to introduce alternative-perpetrator evidence. He named
Arthur Gray, as well as three other people who had been subjects in the original
investigation. In a reply memorandum, Westrom named an additional individual who had
also been investigated. The district court determined that Westrom had proffered sufficient
foundational evidence to connect Gray to the crime but not the other four people.
At trial, the State presented the DNA evidence linking Westrom to the crime scene
and called Ulrick and Dr. Alicia Wilcox, an expert witness on latent print analysis, to testify
about their findings that connected Westrom to the bloody footprints. Dr. Nirenberg’s
7 reports and testimony were precluded, and Westrom called no forensic or medical experts
at trial. The jury found Westrom guilty of both charged counts. The district court
sentenced Westrom to life in prison with the possibility of parole after 30 years. Westrom
appealed to our court.
ANALYSIS
Westrom advances seven challenges to his convictions for first-degree premeditated
murder and second-degree intentional murder. We address each argument in turn before
considering an additional issue that was not raised by the parties.
I.
Westrom first claims that his constitutional rights were violated when police
generated and analyzed an STR profile containing DNA gathered from his discarded
napkin. We review the district court’s legal conclusions on the constitutionality of searches
and seizures de novo. State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007). Both the
United States and Minnesota Constitutions guarantee people the right “to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures” by the
government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. 4 A search occurs when the
government intrudes upon a “reasonable expectation of privacy” to gain information. Katz
v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). This expectation of
privacy must also be maintained subjectively, State v. Gail, 713 N.W.2d 851, 860 (Minn.
4 Although our state constitution “provide[s] greater protection against suspicionless law enforcement conduct than the Fourth Amendment,” State v. Leonard, 943 N.W.2d 149, 156 (Minn. 2020), Westrom does not argue that we should interpret our state constitution more broadly than the federal constitution here.
8 2006), and it is usually lost if an object is abandoned. City of St. Paul v. Vaughn,
237 N.W.2d 365, 370–71 (Minn. 1975).
Even if the seizure of an object does not violate an expectation of privacy, the
subsequent testing of the object to reveal further information may yet implicate additional
privacy interests. See Skinner v. Ry. Lab. Execs.’ Ass’n, 489 U.S. 602, 616 (1989) (finding
a further invasion of privacy in the “ensuing chemical analysis” of a lawfully obtained
biological sample). But the United States Supreme Court has held that when the analysis
of an STR sample lawfully obtained from an arrestee can only reveal the identity of the
source—and not more personal information such as “predisposition for a particular disease
or other hereditary factors not relevant to identity”—a search has not occurred. Maryland
v. King, 569 U.S. 435, 464–65 (2013). In King, the Court wrote, “[i]n this respect the use
of DNA for identification is no different than matching an arrestee’s face to a wanted poster
of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal
a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a
crime scene.” Id. at 451.
Here, Westrom asserts no property interest in the discarded napkin as an “effect,”
but maintains that he nevertheless held an expectation of privacy in the genetic information
police extracted from the DNA and used to link him with evidence from the crime scene.
Noting the “deeply personal and private nature of DNA profiles,” Westrom claims that the
seizure of his napkin gave police “access to all of [his] genetic information.” But the facts
before us reflect otherwise. The STR profile generated from Westrom’s discarded napkin
was analyzed using the same method as the STR profile in King. Both analyses gave police
9 access to only the noncoding parts of the subjects’ DNA; thus, the analyses were incapable
of “revealing information beyond identification.” King, 569 U.S. at 464 (citation omitted)
(internal quotation marks omitted). Because the police had lawfully acquired possession
of the napkin and did not extract from it information beyond the equivalent of a genetic
“fingerprint,” their analysis of the napkin was not a search.
We note that Westrom has not challenged on appeal the creation of a SNP profile
from his DNA left at the 1993 crime scene or the genealogical analysis that was conducted
using this profile. Although the earlier SNP profile could reveal personal information
beyond merely identity, we focus only on the claims before us and express no opinion on
the potential privacy concerns the analysis of such profiles may generate. 5 Accordingly,
5 Westrom submitted a citation of supplemental authority directing us to a new Minnesota law, the “Genetic Information Privacy Act,” which prohibits direct-to-consumer genetic testing companies from collecting, testing, or disclosing any Minnesotan’s genetic data without first obtaining the consumer’s express consent. See Minn. Stat. § 325F.995, subd. 2(a)(2), as amended by, Act of May 23, 2023, ch. 57, art. 4, § 18. The law also provides that companies must not disclose genetic data to law enforcement “unless the disclosure is made pursuant to a valid search warrant or court order.” Id., subd. 2(a)(3). Because Westrom does not challenge the handling of his genetic data recovered from the crime scene and sent to genetic testing companies for analysis, this law is not implicated in his appeal. We note, however, that law enforcement should pay heed to these protections, which evidence the privacy interests of Minnesotans as expressed by the Legislature, in future investigations. Westrom also claims that the police violated Minnesota law during their investigation and that these violations warrant suppression of his DNA evidence. Specifically, he alleges that the police used a “false pretense” to identify Westrom by using a fake MyHeritage account in violation of Minn. Stat. § 609.527 (2022), disseminated confidential investigative data to third parties by uploading the crime scene profile to MyHeritage in violation of Minn. Stat. § 13.09(a) (2022), and violated Minn. Stat. § 609.43 (2022) when they committed the previous two offenses as public employees. Westrom did not raise these claims before the district court, so we will not consider them here. See State v. Myhre, 875 N.W.2d 799, 807 (Minn. 2016) (“When . . . a defendant fails to preserve
10 we find that the district court did not err in concluding that the genetic analysis of a napkin
discarded by Westrom—capable only of matching his DNA to the DNA found at the crime
scene—was not a search under the United States or Minnesota Constitutions.
II.
Westrom next claims that he was denied the right to a fair trial when the district
court precluded him from introducing evidence of four alleged alternative perpetrators. We
review the exclusion of alternative-perpetrator evidence by the district court for an abuse
of discretion. State v. Woodard, 942 N.W.2d 137, 141 (Minn. 2020). Yet even if the
district court erred, we must further find that the error was not harmless beyond a
reasonable doubt to reverse the district court’s decision. State v. Ferguson, 804 N.W.2d
586, 590 (Minn. 2011). The exclusion of evidence is harmless beyond a reasonable doubt
when, “assuming the potential damage of the excluded evidence were fully realized, a
reasonable jury ‘would have reached the same verdict.’ ” Troxel v. State, 875 N.W.2d 302,
308 (Minn. 2016) (quoting State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)).
Criminal defendants have a constitutional right to present a complete defense by
introducing evidence that shows an alternative perpetrator committed the crime, id. at
590–91, but “[t]his right is not absolute.” State v. Jenkins, 782 N.W.2d 211, 224 (Minn.
2010). We require defendants to satisfy the two-step test outlined in State v. Hawkins
before admitting alternative-perpetrator evidence. 260 N.W.2d 150, 159 (Minn. 1977).
First, a defendant must make a foundational proffer that has “an inherent tendency to
issues for review at every level of the judicial process and provides no excuse for his failure, those issues are forfeited and we will not consider them.”).
11 connect [a third party] with the actual commission of the crime.” Id. (citation omitted)
(internal quotation marks omitted). Second, “evidence of a motive of the third person to
commit the crime, threats by the third person, or other miscellaneous facts which would
tend to prove the third person committed the act” may be introduced if the ordinary rules
of evidence are satisfied. Id.
Although the district court admitted evidence concerning one of Westrom’s alleged
alternative perpetrators—Arthur Gray—it denied Westrom’s proffers concerning four
other people: G.V., J.E., J.C., and T.K. Westrom contends that his proffers as to each of
these four other individuals satisfied the Hawkins test and that the district court abused its
discretion in finding otherwise.
Westrom’s proffer as to G.V. included evidence that G.V. was Childs’ client, that
G.V. had an appointment with her the day of her death, and that G.V. was described by a
witness as a “fatal attraction.” Westrom’s proffer as to J.E. included evidence that J.E.’s
appearance was like a man seen leaving Childs’ apartment building the day of the murder
and his blood was found in the building’s stairwell. Westrom’s proffer as to J.C. included
evidence that J.C.: (1) was convicted of murdering a woman in 1994, where the victim
was found lying naked with multiple knife wounds in her blood-spattered apartment with
no signs of forced entry; (2) could not be excluded as a contributor of the DNA found on
Childs’ comforter; and (3) admitted to having been in Childs’ apartment building before.
Finally, Westrom’s proffer as to T.K. included evidence that T.K. lived two doors down
from Childs, was “in and out” of his apartment the day of the murder, waved a knife
12 threateningly at residents the next day while referring to Childs as “the prostitute,” and had
multiple convictions for criminal sexual conduct.
We need not decide here whether any of Westrom’s proffers were sufficient under
the Hawkins test. Even if the jury had been presented with the evidence contained in all
of these proffers (and if the “potential damage” of the evidence had been fully realized),
we are convinced that a reasonable jury would have returned the same verdict. Troxel,
875 N.W.2d at 308. There was strong forensic evidence inculpating Westrom. See State
v. Vance, 714 N.W.2d 428, 439 (reasoning that the exclusion of alternative-perpetrator
evidence was harmless beyond a reasonable doubt because “the evidence incriminating
[the defendant] was strong.”). Although there was evidence (of varying strength) that may
arguably have tended to connect one or more of these alleged alternative perpetrators to
the commission of the crime, there was no evidence that any of these alleged alternative
perpetrators stood barefoot in Childs’ blood when she died, as was the case for Westrom. 6
We therefore conclude that the exclusion of the evidence contained in all of Westrom’s
proffers “did not affect the outcome of the trial” and that any error in excluding it was
harmless beyond a reasonable doubt. Id.
III.
Westrom asserts that Dr. Nirenberg’s second report was wrongly excluded as late
discovery and that he was entitled to a Frye-Mack hearing to assess the reliability of the
two additional methods of forensic podiatry introduced by the second report. District
6 J.C.’s footprints were compared with one of the prints left at the crime scene, and the result was inconclusive.
13 courts enjoy considerable discretion in enforcing the rules of discovery. State v. Lindsey,
284 N.W.2d 368, 373 (Minn. 1979).
If a party “fails to comply with a discovery rule or order, the court may, on notice
and motion, order the party to permit the discovery, grant a continuance, or enter any order
it deems just in the circumstances.” Minn. R. Crim. P. 9.03, subd. 8. When ordering the
preclusion of evidence as a sanction for violating discovery rules, we have held that judges
should consider: “(1) the reason why disclosure was not made; (2) the extent of prejudice
to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and
(4) any other relevant factors.” Lindsey, 284 N.W.2d at 373.
Here, Westrom’s late disclosure of Dr. Nirenberg’s second report shortly before the
scheduled trial violated Minn. R. Crim. P. 9.02, subd 1., which required him to disclose all
expert reports before the Rule 11 Omnibus Hearing. Thus, upon the State’s motion to
preclude this report as late discovery, the district court was entitled to enter any order it
deemed just in the circumstances, including the preclusion of the report. The Lindsey
factors support this decision. First, the district court found that “nothing in the record
indicat[ed] that defense counsel or Dr. Nirenberg were prevented from inquiring” earlier
into the faulty procedure employed in gathering the data for the first report. Second, the
late disclosure significantly prejudiced the State’s ability to prepare for trial, which was at
that time set to begin just 1 month later. 7 Third, a continuance would not have been
7 Westrom’s argument that the trial was continued 2 days after the ruling excluding Dr. Nirenberg’s testimony (thus alleviating concerns of delay) misunderstands our standard of review. Logically, we must examine whether the district court abused its discretion by considering the circumstances as they existed at the time the district court’s
14 feasible, given the time necessary for a Frye-Mack hearing and the 2½ years the case had
already been pending. Considering the wide berth given the district court in managing
discovery matters, we conclude the district court did not abuse its discretion in precluding
the testimony of Dr. Nirenberg regarding his second report. 8
IV.
Westrom claims that the State committed prosecutorial misconduct during its
closing argument and that this misconduct warrants a new trial. When a defendant fails to
object to alleged prosecutorial misconduct at trial—as Westrom did—we apply the
modified plain-error test of State v. Ramey, 721 N.W.2d 294, 299–300 (Minn. 2006), under
which “the defendant has the burden to demonstrate that the misconduct constitutes
(1) error, (2) that was plain.” State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010). “If
the defendant is successful, the burden then shifts to the State to demonstrate that the error
did not affect the defendant’s substantial rights.” Id. If the defendant satisfies the first two
decision was made. Cf. State v. Harris, 589 N.W.2d 782, 790 (Minn. 1999) (disregarding facts relevant to a district court’s probable cause determination because those facts were “unknown . . . at the time the warrant was issued”). Given the sequence of events here, the district court’s concern about discovery-induced delay was valid. 8 The district court further determined that the entire field of forensic podiatry— which differs from the print-based friction ridge analysis employed by the state—did not meet the Frye-Mack standard for admissibility. After conducting a Frye-Mack hearing at which Dr. Nirenberg testified about the Reel Method and about forensic podiatry in general, the district court concluded that “there is much more work to be done before foot morphology for identification purposes, using things such as size and shape measurements, can be generally considered scientifically accepted and reliable.” Because the Gunn and Visual Overlay Methods are similarly rooted in the field of forensic podiatry, the district court reasoned that they would not have met the Frye-Mack standard, even if they were timely disclosed. We agree.
15 prongs and the State fails to satisfy the third prong, we determine “whether the error should
be addressed to ensure fairness and the integrity of the judicial proceedings.” Id.; see also
State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).
In making a closing argument, the State may “vigorously argue its case” by pointing
out the lack of merit in a particular defense, but it “may not belittle the defense, either in
the abstract or by suggesting that the defendant raised the defense because it was the only
defense that may be successful.” State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005).
Additionally, the State may present “all legitimate arguments on the evidence and all
proper inferences that can be drawn from that evidence.” State v. Pearson, 775 N.W.2d
155, 163 (Minn. 2009). But it may not “speculate without a factual basis.” Id.; see also
State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016). Neither may the State improperly call
attention to the fact that the defendant did not testify at trial. State v. Naylor, 474 N.W.2d
314, 321 (Minn. 1991).
Here, Westrom takes issue with three statements made by the prosecutor during
closing argument. First, he argues that the prosecutor belittled his defense and argued facts
not in evidence when he referred to the defense theory as “fantasy” and equated the
probability of its truth to that of winning the lottery. Second, he claims that the prosecutor’s
mention of “wet semen” improperly speculated that Westrom’s semen was deposited in
Childs’ apartment at the time of the murder. And third, Westrom contends that the
prosecutor’s response of “no, no, no, no, no” to the notion that Westrom could argue he
had left DNA evidence at the apartment on a prior occasion—when he previously told
police that he had never been there—improperly called attention to Westrom’s decision
16 not to testify at trial. He also claims that this statement suggested that Westrom’s conduct
after Childs’ death sufficiently proved his guilt, contrary to this court’s holding in State v.
McTague, 252 N.W. 446, 448 (Minn. 1934).
None of Westrom’s prosecutorial misconduct arguments succeed. We have
previously held that a prosecutor’s use of the word “fantasy” in reference to the defense’s
theory was, when put in the proper context, a comment on the “merits or the supporting
evidence of possible defenses,” and not a belittlement of the defense. State v. Davis,
982 N.W.2d 716, 727 (Minn. 2022). Here, the context shows that the prosecutor was
pointing out the difficulty in squaring the theory that Westrom had never visited the
apartment with the evidence in this case—the idea that someone other than Westrom
“magically transported” his bloody footprints and DNA to the crime scene was a “fantasy.”
Because this comment was a critique of the merits of Westrom’s transfer theory, and not
an abstract belittlement of Westrom’s defense, it was not misconduct. Similarly, the
prosecutor’s statement that the chances of the physical crime scene evidence appearing the
way it did without Westrom having ever visited the apartment are as low as winning the
lottery was not “speculation” but rather a “proper inference” drawn from the extreme
unlikelihood of the transfer theory.
Next, the prosecutor’s mention of “wet semen” did not imply that the semen was
deposited at the time of the murder, but rather, for the transfer theory to be true, “somebody
or something would have had to have Mr. Westrom’s wet semen on them or on the
object . . . and then deposited the semen on the comforter, all while leaving no trace of
themselves.” When looking at the context in which the prosecutor discussed this subject,
17 then, it is apparent that that the prosecutor was only claiming that Westrom’s semen must
have been “wet” whenever it was deposited, not that it was deposited contemporaneously
with the murder.
Finally, the statement that Westrom’s testimony to police was inconsistent with any
explanation other than the transfer defense was not a comment on his failure to testify. In
context, the statement suggests that, if the defense argues that Westrom left DNA at Childs’
apartment on a prior occasion, it would be “[i]nconsistent with his statement” that he had
never visited the apartment before. This statement is a comment on the testimony Westrom
did give, not his failure to testify. This comment does not implicate McTague in any way.
That case dealt with reference to evidence of flight, escape, or passing under an assumed
name—circumstances not present here. See McTague, 252 N.W. at 448. Because none of
the prosecutor’s statements constituted error, we need not proceed further in the modified
Ramey test; Westrom’s arguments on this issue lack merit.
V.
Westrom next claims that the circumstantial evidence was insufficient to support
his convictions. When a conviction is based on circumstantial evidence, we apply a “two-
step analysis” to decide whether the evidence is sufficient. State v. Moore, 846 N.W.2d
83, 88 (Minn. 2014). First, we identify the circumstances proved, winnowing down the
evidence presented at trial to a subset of facts consistent with the jury’s verdict, and
disregarding evidence inconsistent with the verdict. State v. Hassan, 977 N.W.2d 633, 640
(Minn. 2022). Second, we independently examine the reasonable inferences that can be
drawn from the circumstances proved, when viewed as a whole. State v. Cox, 884 N.W.2d
18 400, 412 (Minn. 2016). Circumstantial evidence is sufficient only if “the reasonable
inferences are consistent with the hypothesis that the accused is guilty and inconsistent
with any rational hypothesis other than guilt.” Hassan, 977 N.W.2d at 640.
Here, the circumstances proved, when viewed as a whole, support a reasonable
inference that Westrom murdered Childs and did so with premeditation. The circumstances
proved are as follows: Childs was stabbed 65 times, with many of the stab wounds in vital
areas of her body. Some of the wounds were inflicted after she died. Blood splatter and
autopsy evidence showed that Childs’ attacker pursued her across multiple rooms, targeted
vital parts of her body, and kept stabbing her after she died. Westrom’s DNA was present
on several items in the areas where the attack occurred. Westrom left three bare footprints
in Childs’ blood while facing the window in her bedroom.
These circumstances proved support a reasonable inference that Westrom
committed premeditated murder. See, e.g., State v. Fox, 868 N.W.2d 206, 225–26 (Minn.
2015) (determining that 48 stab wounds to vital parts of the victim’s body supported
premeditation); State v. Chomnarith, 654 N.W.2d 660, 665 (Minn. 2003) (determining that
the use of an industrial grade knife to inflict “precise wounds to vital areas” supported
premeditation).
Westrom advances two hypotheses that are inconsistent with guilt. First, he claims
that he could have “happened upon the murder scene, where there were footprints from
other people and DNA from other men, when coming to visit the victim, in whose
apartment his DNA had been deposited on a previous visit . . . and fled.” Second, he argues
that something could have triggered him to kill Childs in a “heat of passion.”
19 But when the circumstances proved are viewed as a whole, neither of these
hypotheses are reasonable. It strains credulity to conclude that Westrom simply happened
upon the scene of the crime and chose to walk barefoot through Childs’ blood to stand in
front of the window—where her body lay on the floor next to him—and then leave. There
is simply no set of reasonable inferences that could lead to this result. Was Westrom
hypnotized into walking up to Childs’ body? Was he directed at gunpoint to stand barefoot
in her blood? The totality of the circumstances here “exclude beyond a reasonable doubt”
both the ultimate and “intermediate” inferences which would have to be drawn to align
Westrom’s first hypothesis of innocence with the circumstances proved. State v. Colgrove,
996 N.W.2d 145, 155 (Minn. 2023); id. at 162 (Thissen, J., dissenting).
Westrom’s second hypothesis, that he killed Childs in a heat of passion, fails
because there is no evidence that suggests Westrom was “provoked” into the killing, as is
required under a heat of passion defense. State v. Johnson, 719 N.W.2d 619, 627 (Minn.
2006). Because this hypothesis is not supported by any evidence in the record, it cannot
be deemed a rational inference. State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008) (“[The
defendant] must . . . point to evidence in the record that is consistent with a rational theory
other than guilt”). Accordingly, because the circumstances proved are consistent with an
inference of guilt and inconsistent with any inference contrary to guilt, we conclude that
there was sufficient evidence to convict Westrom of first-degree premeditated murder.
VI.
Westrom argues that he received ineffective assistance of counsel in violation of his
constitutional rights. We use the test set out in Strickland v. Washington to evaluate
20 ineffective assistance of counsel claims. 466 U.S. 668, 687 (1984); Leake v. State,
737 N.W.2d 531, 536 (Minn. 2007). Under this test, a party must demonstrate that:
(1) counsel’s performance fell below an “objective standard of reasonableness”; and
(2) there is a reasonable probability that, but for counsel’s error, the outcome would have
been different. Strickland, 466 U.S. at 669, 688. “We need not address both the
performance and prejudice prongs if one is determinative.” State v. Rhodes, 657 N.W.2d
823, 842 (Minn. 2003). “If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S.
at 697. When a defendant shows that a conflict of interest “actually affected the adequacy
of his representation,” he “need not demonstrate prejudice in order to gain relief.”
Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting Cuyler v. Sullivan,
446 U.S. 335, 349–50 (1980)) (internal quotation marks omitted). “But until a defendant
shows that his counsel actively represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance.” Id. (citation omitted)
(internal quotation marks omitted).
Here, Westrom claims that a personal interest of his trial lawyer led to a material
limitation of his representation. But the record shows only that Westrom’s trial counsel
found it necessary to disclose a possible conflict of interest due to his prior representation
of the district court judge’s niece. That matter was “successfully completed in 2017.”
Here, the State was the party vulnerable to prejudice from the potential conflict of interest.
Yet after learning that there was no overlap in the dates of representation, the State
communicated to the judge that it had no further concerns. Because Westrom has not
21 demonstrated that his trial counsel had a personal interest that led to a material limitation
of his representation, we conclude that his claim for ineffective assistance of counsel, based
on conflict of interest, fails.
Westrom also alleges that other deficiencies by his trial counsel affected his
representation. But even if trial counsel had acted as Westrom claims he should have—
investigating J.C. as an alternative perpetrator sooner, objecting to the prosecutor’s
statements during closing arguments, and disclosing Dr. Nirenberg’s second report in a
timely fashion—it would not have changed the outcome of Westrom’s case, for reasons we
have given above. Thus, even if the performance of Westrom’s trial counsel fell below an
objective standard of reasonableness, he did not receive ineffective assistance because he
was not prejudiced by his counsel’s representation.
VII.
Westrom’s final argument is that his convictions must be overturned due to errors
that, “when taken cumulatively, had the effect of denying [him] a fair trial.” State v.
Keeton, 589 N.W.2d 85, 91 (Minn. 1998). Specifically, he points to five alleged errors that
occurred at the district court: (1) failure to suppress DNA evidence; (2) exclusion of
alternative-perpetrator evidence; (3) exclusion of the testimony of Dr. Nirenberg;
(4) prosecutorial misconduct; and (5) ineffective assistance of counsel. But because we
find the potential for error (and harmless error, at that) in only the exclusion of alternative-
perpetrator evidence, there is no evidence of cumulative error here.
22 VIII.
We also consider one issue not raised on appeal. We have previously addressed sua
sponte the issue of a district court’s error in entering judgments of conviction for both
first-degree felony murder and second-degree intentional murder. See State v. Cruz,
997 N.W.2d 537, 556 (Minn. 2023). Under Minn. Stat. § 609.04, subd. 1 (2022), a
defendant “may be convicted of either the crime charged or an included offense, but not
both.” “In Minnesota, every lesser degree of murder is an included offense.” State v.
Zumberge, 888 N.W.2d 688, 697 (Minn. 2017); see also State v. Leinweber, 228 N.W.2d
120, 125 (Minn. 1975). Here, the district court entered judgments of conviction for both
first-degree felony murder and second-degree intentional murder after the jury returned
guilty verdicts on both charges. Entering judgments of conviction on both of these murder
charges was error. Accordingly, we remand to the district court to vacate the second-degree
intentional murder conviction but otherwise leave the guilty verdicts in place.
CONCLUSION
For the foregoing reasons, we affirm Westrom’s conviction of first-degree
premeditated murder but reverse and remand for the district court to vacate the
second-degree murder conviction.