This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-1651
State of Minnesota, Respondent,
vs.
Michael Arthur Boelz, Appellant.
Filed August 11, 2014 Affirmed Hudson, Judge
Stearns County District Court File No. 73-CR-12-5767
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and
Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Smith, Presiding Judge; Halbrooks, Judge; and
Hudson, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Appellant argues that the evidence is insufficient as a matter of law to sustain jury
verdicts of second-degree criminal sexual conduct, maintaining that he did not have a significant relationship with the complainant because he did not “reside” with her as
required by Minn. Stat. § 609.343, subd. 1(h)(iii) (2010). He also argues that the state
failed to prove beyond a reasonable doubt that he committed a single act of sexual
contact under Minn. Stat. § 609.343, subd. 1(a) (2010), and that the prosecutor committed
misconduct amounting to plain error affecting his substantial rights. We affirm.
FACTS
After allegations that appellant Michael Arthur Boelz engaged in sexual contact
with M.S. and C.S., the daughters of his girlfriend, P.R., the state charged him by
amended complaint with two counts each of second-degree criminal sexual conduct, in
violation of Minn. Stat. § 609.343, subd. 1(a) (2010), with the complainant under 13
years old and the actor more than 36 months older; and Minn. Stat. § 609.343,
subd. 1(h)(iii) (2010), with the actor having a significant relationship to a complainant
under 16 years old, and the abuse involving multiple acts committed over an extended
period.
At appellant’s jury trial, M.S., who was then 17, testified that she lived in the
Pantown townhomes in St. Cloud with her mother from kindergarten until sixth grade.
She testified that appellant visited “all the time” and “every day,” that he and her mother
would drink together, and that he would spend the night “every night.” She testified that
when she was between 9 and 12 years old, appellant would rub her breasts and vaginal
area over her clothes “many times,” “every other day,” and “a lot of times,” but she did
not remember how many times or the specific days it occurred. She indicated that when
the acts occurred, her mother was sometimes in the same room, but did not intervene.
2 M.S. did not tell appellant to stop or tell anyone else about it because she was scared.
She finally told K.J., her foster parent, in 2012, after P.R.’s parental rights had been
terminated. C.S., who was 16 at the time of trial, also testified that, when she was in
about fourth grade, appellant also touched her breasts and vagina in the townhome.
K.J. testified that in 2012, C.S. became upset and eventually disclosed that
appellant had sexually touched her. A St. Cloud police officer trained in the Cornerhouse
interviewing process then interviewed both girls. M.S.’s Cornerhouse interview
statements corroborated her testimony that abuse occurred. But C.S. testified that
appellant touched her sexually only twice, while she had stated in the interview that the
abuse happened several times a month. Appellant also testified and denied touching
either child sexually.
The jury found appellant guilty of both counts relating to M.S., but not guilty of
the counts relating to C.S. The district court sentenced appellant to 84 months on the
violation of Minn. Stat. § 609.343, subd. 1(h) (iii), but did not sentence him on the
additional count, which the district court considered to arise from the same behavioral
incident. This appeal follows.
DECISION
I
Appellant maintains that the evidence is insufficient as a matter of law to convict
him of violating Minn. Stat. § 609.343, subd. 1(h)(iii), arguing that the state failed to
prove beyond a reasonable doubt that he had a significant relationship with M.S. because
he did not “reside” in the same dwelling with her. The state maintains that this court
3 should not consider this issue because appellant failed to raise it in district court.
Generally, arguments not raised below are waived. Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996). But the Minnesota Rules of Criminal Procedure allow this court to review
errors not raised below if they affect substantial rights. Minn. R. Crim. P. 31.02.
Appellant’s plea of not guilty required the state to prove all elements of the offense
beyond a reasonable doubt. State v. Clow, 600 N.W.2d 724, 726 (Minn. App. 1999),
review denied (Minn. Oct. 21, 1999). And “a conviction based upon anything less than
‘proof beyond a reasonable doubt of every fact necessary to constitute the crime’ violates
the Due Process Clause of the Fifth Amendment” and constitutes plain error affecting
substantial rights. Id. (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073
(1970)). We therefore address appellant’s argument.
When reviewing a challenge to the sufficiency of the evidence, this court
thoroughly analyzes the record to determine whether, based on the record and legitimate
inferences drawn from it, the jury reasonably could find the defendant guilty of the
offense. State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999). In doing so, we view
the evidence in the light most favorable to the verdict and assume that the jury believed
the evidence supporting the guilty verdict and disbelieved any evidence to the contrary.
State v. Fleck, 777 N.W.2d 233, 236 (Minn. 2010). We 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 is guilty
of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
4 A person may be convicted of second-degree criminal sexual conduct under Minn.
Stat. § 609.343, subd. 1(h)(iii), if that person “has a significant relationship to the
complainant,” who was under 16, and the abuse involved multiple acts committed over
an extended time period. By statute, “significant relationship” includes “an adult who
jointly resides intermittently or regularly in the same dwelling as the complainant and is
not the complainant’s spouse.” Minn. Stat. § 609.341, subd. 15(3) (2010). Appellant
argues that the state failed to prove beyond a reasonable doubt that he “reside[d]
intermittently” with M.S. because he maintained a separate residence during the period
that he stayed overnight at times with P.R.
The definition of “resides intermittently” presents a matter of statutory
interpretation, which this court reviews de novo. See State v. Hayes, 826 N.W.2d 799,
803 (Minn. 2013) (stating that whether a defendant’s conduct met the statutory definition
of a crime presents a question of statutory interpretation, reviewed de novo). Our goal in
statutory interpretation is to ascertain and give effect to legislative intent. Sanchez v.
State, 816 N.W.2d 550, 556 (Minn. 2012); Minn. Stat. § 645.16 (2012). “If the
[l]egislature’s intent is clear from the statute’s plain and unambiguous language, then we
interpret the statute according to its plain meaning without resorting to the canons of
statutory construction.” State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013). A statute is
ambiguous if it is susceptible to more than one reasonable interpretation. Bearder v.
State, 806 N.W.2d 766, 772 (Minn. 2011).
Appellant argues that the statute is ambiguous and that, under the rule of lenity, it
must be construed in his favor. See, e.g., State v. Nelson, 842 N.W.2d 433, 443 (Minn.
5 2014) (concluding that when a criminal statute was ambiguous and none of the
alternative reasonable interpretations was most persuasive, under the rule of lenity, the
statute would be construed in favor of the defendant). But this court has previously
concluded that Minn. Stat. § 609.341, subd. 15(3), is unambiguous, concluding that two
underaged boys’ “frequent, but discontinuous stays of two to six days at a time [at a
defendant’s home] are specifically covered by the statute’s use of the term
‘intermittently.’” State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review
denied (Minn. June 19, 1996). In Sebasky, we noted that “[t]o reside means to ‘live,
dwell, abide, sojourn, stay, remain, . . . [or] have a settled abode for a time.’” Id. (quoting
Black’s Law Dictionary 1308 (6th ed. 1990)). And we defined “intermittently” as
meaning “‘with intermissions; at intervals.’” Id. (quoting Webster’s New Universal
Unabridged Dictionary 959 (2d ed. 1983)).
Appellant argues that, in order to establish residency, a person must have both
physical presence in a residence and an intent to settle there, citing cases dealing with the
residency requirement for judges, see In re Conduct of Karasov, 805 N.W.2d 255 (Minn.
2011), and with the domicile of a person for tax purposes, see Mauer v. Comm’r of
Revenue, 829 N.W.2d 59, 68 (Minn. 2013). He argues that the term “intermittently” in
the context of residency logically refers to a person such as a “snowbird,” who resides
with intent in Minnesota for a certain period of time, but resides in another location for a
different period. He maintains that he had no intent to reside at any time with P.R. and
her children, keeping his possessions in another location and only staying there on some
evenings.
6 We reject appellant’s argument. The statute’s plain language provides that a
“significant relationship” may be defined in terms of a defendant residing with the
complainant on an intermittent basis. Minn. Stat. § 609.343, subd. 1(h)(iii). The statute
does not contain an intent requirement or a requirement that the defendant spend every
night at a residence with the complainant. See Sebasky, 547 N.W.2d at 100. And
although appellant testified that he stayed at P.R.’s home three to four times per month,
M.S. testified that he was at the townhome “every day” and spent the night “every night.”
M.S. also stated in the Cornerhouse interview that although appellant had his own home,
he “mostly” stayed at her mother’s house. “[T]he jury is in the best position to evaluate
the credibility of the evidence.” State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). On
this record, the jury could reasonably have found that appellant “resid[ed] intermittently”
with M.S. and determined that the state proved beyond a reasonable doubt that he
violated Minn. Stat. § 609.343, subd. 1(h)(iii).
II
Appellant argues that the evidence does not support his conviction of violating
Minn. Stat. § 609.343, subd. 1(a), which requires that the defendant “engage[] in sexual
contact” with a complainant under 13 years of age, when the defendant is more than 36
months older than the complainant. Id. He maintains that the state failed to prove that he
engaged in a specific act of sexual contact, proving only that unspecified acts occurred
over several years when M.S. lived in the townhome. But generally, in cases charging
criminal sexual conduct based on multiple acts over an extended period of time, specific
dates need not be charged or proved. See State v. Becker, 351 N.W.2d 923, 927 (Minn.
7 1984) (holding that a defendant may be convicted of sexual abuse if the prosecution
proves that the abuse occurred within a reasonable period of time, and specific dates of
abuse need not be proven); State v. Poole, 489 N.W.2d 537, 544 (Minn. App. 1992),
(stating that “specific dates need not be charged or proven in a sexual abuse case”), aff'd,
499 N.W.2d 31 (Minn. 1993). “[T]he precise date is an essential element of the crime
only where the act done is unlawful during certain seasons, on certain days or at certain
hours of the day.” Becker, 351 N.W.2d at 927.
As in Becker, the relevant statute does not require proof that sexual contact
occurred on a specific date. See id. Although M.S. testified that she did not remember
specific dates on which sexual contact occurred, she testified that appellant touched her
sexually a number of times when she was between 9 and 12 years old. The jury was
instructed that an element of the crime was that appellant engaged in the contact during a
period between about August 29, 2003 and August 19, 2007; appellant has not challenged
those instructions. Based on the evidence presented, the jury could reasonably infer that
appellant engaged in sexual contact with M.S. at least once during that period, and the
evidence supports his conviction under Minn. Stat. § 609.343, subd. 1(a).
III
Appellant argues for the first time on appeal that the prosecutor committed
misconduct that deprived him of a fair trial. In reviewing claims of unobjected-to
prosecutorial misconduct, we apply a modified plain-error test. State v. Carridine, 812
N.W.2d 130, 146 (Minn. 2012) (citing State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006)). To meet this test, appellant must establish that the misconduct amounted to error
8 and that the error was plain. Id. An error is plain “if [it] contravenes case law, a rule, or
a standard of conduct.” Id. (quotation omitted). If plain error is established, the state
bears the burden to prove that no reasonable likelihood exists that the absence of the
misconduct would have significantly affected the jury’s verdict. Ramey, 721 N.W.2d at
302. “When considering whether an error had a significant effect on the verdict, we
consider the strength of the evidence against the defendant, the pervasiveness of the
improper suggestions, and whether the defendant had an opportunity to (or made efforts
to) rebut the improper suggestions.” State v. Hohenwald, 815 N.W.2d 823, 835 (Minn.
2012) (quotation omitted). “Finally, if all three prongs . . . are satisfied, the court
determines whether to address the error to ensure fairness and integrity in judicial
proceedings.” State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010).
Eliciting inadmissible testimony
Appellant argues that the prosecutor committed misconduct by eliciting
inflammatory hearsay evidence that C.S. told K.J. that appellant had ejaculated on her,
which was deemed inadmissible by the district court. An appellate court “will not
hesitate to order a new trial when the state, intentionally or unintentionally, elicits
information ruled to be inadmissible and we conclude that information is prejudicial to
the defendant.” State v. Flowers, 734 N.W.2d 239, 260 (Minn. 2007).
Ruling on a defense motion in limine, the district court indicated its concern with
possible hearsay statements about information relayed to investigators. The district court
noted that there appeared to be “a single disclosure” to K.J. and ruled that it would allow
K.J.’s testimony “if there was a statement to [her] that triggered the investigation, and it’s
9 consistent with the statements in the Cornerhouse [interview].” But the district court
stated that it would “exclude any testimony if she says . . . the girls brought it up again
last month or something like that” which would be “getting too far down the line” and
negatively affect “credibility and probative value.”
In the course of questioning K.J. about her conversation with C.S., the prosecutor
asked, “Did the topic of semen come up at all?” K.J. responded that she had asked C.S.
“if she knew what semen was,” and “if she knew what masturbation was,” and that C.S.
replied that she did. K.J. then testified that she asked C.S., “then where did that go?”, and
C.S. stated that it would be “all over her and she’d have to wipe it off.” Appellant argues
that this testimony violated the district court’s limiting order because it was inconsistent
with the Cornerhouse interview in which C.S. stated that appellant may have been
masturbating when he touched her, but that she did not know what masturbation was.
We conclude that the prosecutor’s elicitation of this testimony did not constitute
plain error affecting appellant’s substantial rights. See Ramey, 721 N.W.2d at 302. The
district court’s ruling generally restricted testimony with respect to any later statements
made to K.J., not with respect to statements made during the initial disclosure to her.
Therefore, no plain error occurred. And even if the prosecutor had improperly
questioned K.J., no reasonable likelihood exists that the absence of the misconduct would
have had a significant effect on the jury’s verdict. The questionable exchange was brief,
and the prosecutor immediately clarified that K.J., not C.S., initially brought up the topic
of semen. And because the jury acquitted appellant of charges based on his alleged
conduct involving C.S., any inconsistency between C.S.’s disclosure to K.J. and her
10 statements in the Cornerhouse interview would not likely have affected the jury’s verdict
relating to appellant’s conduct against M.S.
Improper conduct during closing argument
Appellant argues that the prosecutor committed misconduct during closing
argument by improperly vouching for witnesses and arguing based on facts not in
evidence. A prosecutor commits misconduct if he or she “implies a guarantee of a
witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion
as to a witness’s credibility.” State v. Patterson, 577 N.W.2d 494, 497 (Minn.1998)
(quotation omitted). But a prosecutor has “a right to analyze the evidence and vigorously
argue that the state’s witnesses were worthy of credibility whereas defendant and his
witnesses were not.” State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977). When
analyzing statements made at closing argument, a reviewing court considers “the closing
argument as a whole, rather than just selective phrases or remarks that may be taken out
of context or given undue prominence.” Carridine, 812 N.W.2d at 148 (quotation
omitted).
Appellant first argues that the prosecutor personally guaranteed the credibility of
C.S. and M.S. During closing argument, the prosecutor stated,
So when they’re remembering these acts that occurred, they’re remembering them through the eyes of children. And, you know, if you really want to think about who’s good at dissembling. Who is really good at not being truthful? Somebody that has a lot more experience, they’ve lived a longer life. They can say two contradictory things and try to make them sound consistent. There are some adults that are very good about lying. These girls are good kids. But they’re not the most sophisticated teenagers. Do you think they’re
11 different? They will come in here and lie about all of this in the way that’s been suggested.
Appellant argues that these comments amounted to improper vouching because the
prosecutor was endorsing the girls’ credibility and implying that appellant was not being
truthful. But as long as a prosecutor does not intentionally misstate the evidence or
mislead the jury as to inferences it may draw, he may argue all reasonable inferences
from the evidence in the record. State v. McCray, 753 N.W.2d 746, 753–54 (Minn.
2008). Here, the prosecutor’s statements that the girls were credible witnesses because
they were young did not constitute vouching. See, e.g., State v. Gail, 713 N.W.2d 851,
866 (Minn. 2006) (calling a witness “a believable person” and “frank and sincere” was
not improper vouching); State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012)
(holding that prosecutor’s comments that a witness was “very sincere” and “very frank in
his testimony” were not improper vouching because the statements were arguments
regarding credibility), review denied (Minn. Mar. 19, 2013). And the prosecutor made
his comments implying that adults may be less believable witnesses in the context of
challenging appellant’s credibility based on inconsistencies in his testimony about when
he met P.R. and his assertion that during their several-year relationship, he was never
alone with M.S. or C.S. Therefore, these comments do not constitute plain error.
Appellant also argues that the prosecutor improperly attempted to bolster the
credibility of C.S. and M.S. by informing the jury that they “didn’t want to come in here.
They didn’t want to have to talk about this.” But even if made in error, this remark did
not affect appellant’s substantial rights because it was brief, and the state’s case against
12 appellant was strong, including M.S.’s testimony consistent with her previous statements
to K.J. and the Cornerhouse investigator. See Hohenwald, 815 N.W.2d at 835.
Finally, appellant argues that the prosecutor argued facts not in evidence when he
stated during closing argument that “the children have told you the defendant threatened
them, threatened to kill their mother, threatened to hurt their family.” “[A] prosecutor
should not refer to facts not in evidence.” State v. McArthur, 730 N.W.2d 44, 53 (Minn.
2007). Appellant is correct that M.S. testified only that appellant would threaten to hurt
her mother, not to kill her, and that the girls indicated that appellant did not say he would
do anything to harm them if they reported the abuse. Although the prosecutor erred by
making this remark, the error was not plain because a threat to “hurt their family” could
also refer to a threat to hurt P.R. And it did not affect appellant’s substantial rights. The
remark was brief, and in closing, defense counsel had the opportunity to rebut the
assertion that appellant had threatened their mother by pointing out that M.S. had only
mentioned those threats in her testimony, not her previous statements. When viewed as a
whole, the prosecutor’s closing argument properly focused on assessing the evidence and
the inferences to be drawn from it. See State v. Glaze, 452 N.W.2d 655, 662 (Minn.
1990) (finding no prejudice to the appellant when remarks were isolated and did not
represent the closing argument viewed in its entirety).
Appellant maintains that, even if none of the errors was sufficient to reverse by
itself, their cumulative effect justified a new trial. We conclude, however, that any minor
errors in this case do not warrant that result. See, e.g., State v. Davis, 820 N.W.2d 525,
539 (Minn. 2012) (declining to grant a new trial based on the cumulative impact of
13 various errors, stating that “this case does not resemble the close factual cases in which
we have ordered new trials for cumulative errors” and that the errors, taken together,
were not “‘enough to tip the scales’ toward producing a biased jury”) (quotation omitted).
Affirmed.