State of Minnesota v. James Michael Chermack ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1735
State of Minnesota,
Respondent,
vs.
James Michael Chermack,
Appellant.
Filed December 12, 2016
Affirmed
Jesson, Judge
Wright County District Court
File No. 86-CR-14-3145
Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General,
St. Paul, Minnesota; and
Tom Kelly, Wright County Attorney, Buffalo, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
JESSON, Judge
On appeal from his conviction of second-degree criminal sexual conduct,
appellant James Michael Chermack argues that the district court committed reversible
error by allowing the state to present evidence that he sexually touched his step-
granddaughter as relationship evidence under Minnesota Statutes section 634.20 (2012)
when the step-granddaughter was not a family or household member. He also argues that
the probative value of the evidence was substantially outweighed by its potential for
unfair prejudice. Because the step-granddaughter, who resided with Chermack in the
past, qualifies as a family or household member under the statute, and because the
probative value of the relationship evidence was not outweighed by its prejudicial effect,
the district court properly exercised its discretion by admitting the evidence. We affirm.
FACTS
According to trial testimony, in 2010, Chermack met his future wife, and they
moved in together. Near the end of 2011, T.B., his wife’s adult son, lived in Chermack’s
home for about five months, along with two children. T.B. has two biological children
who are half siblings: a son, T.J.B., born in October 2007; and a daughter, F.E.J.B., born
in June 2004.1
After this period of residency, T.J.B. and F.E.J.B. would still frequently visit the
home, including overnights. For a period of time, they visited nearly every other
weekend, sometimes without their parents. T.J.B. would also visit “a lot of times during
the week,” and F.E.J.B. would visit at least once a week in the summer. During these
visits, Chermack would sometimes be alone with the children while his wife was at work
or in another part of the house. On overnight visits, T.J.B. and F.E.J.B. would stay
1
T.B. later married his current wife, who has four children.
2
together in a room with a queen-sized bed and a television, and Chermack would come in
and watch movies with them.
In 2014, when T.J.B. saw his maternal grandmother, he told her that he wished to
tell her “a secret,” but that he was worried because his other grandmother would then
“kick [Chermack] out.” Eventually, he disclosed that Chermack had touched his penis
and also stated that Chermack has touched F.E.J.B. on her buttocks. Later, when his
mother learned of the allegations, he told her that the touching had occurred at
Chermack’s house when they were watching a movie in bed. The allegations were
reported to police. T.B. also reported T.J.B.’s story to F.E.J.B.’s mother, and F.E.J.B.
then told her mother that Chermack had put his hands down her pants. She also said that
Chermack would touch T.J.B. and make T.J.B. touch his penis.
Chermack was charged with three counts of second-degree criminal sexual
conduct committed against T.J.B. Before trial, the state moved to admit evidence of
F.E.J.B.’s abuse as relationship evidence under Minnesota Statutes section 634.20. The
prosecutor argued that the statute allowed evidence of acts against other family or
household members. Defense counsel opposed the motion, arguing that the statute was
designed to illuminate the history of a relationship between the defendant and a victim of
domestic abuse, rather than conduct against a third party. The district court granted the
motion, finding that the statutory requirements were met because F.E.J.B. was a family or
household member based on her relationship to the victim and to Chermack.
At trial T.J.B., who was then seven years old, indicated, using an anatomical
picture, that Chermack touched his penis. He stated that this happened in bed when he
3
was trying to fall asleep while he was wearing pajamas. He testified that it had happened
more than once, but he could not remember how many times. He stated that he had told
his mother, grandmother, and F.E.J.B. about it, but he could not remember specifically
what he told F.E.J.B.
F.E.J.B., who was then ten years old, also testified. Before she testified, the
district court gave a Spreigl-type cautionary instruction that her evidence was to be used
for the limited purpose of assisting the jury to determine whether the defendant
committed the charged offenses, not his character or whether he acted in conformity with
that character. F.E.J.B. testified that T.J.B. told her that Chermack had placed his hands
down T.J.B.’s pants. She also testified that Chermack placed his hands on her in her
private area about three times, when they were on a couch, and that she told T.J.B. that
Chermack had done the same thing to her as he did to T.J.B.
Video-recorded CornerHouse interviews of both children were played for the
jury.2 During T.J.B.’s interview, which was recorded when he was six years old, he at
first denied the allegations, but then stated that Chermack “stays in [his] bed” and
“touches [his penis].” He indicated that this had happened more than once, through his
pants and underwear, when he was in F.E.J.B.’s bed and watching movies. He also stated
that Chermack had put his hand on the skin of Chermack’s private parts. According to
T.J.B., these events had happened when he was from four to six years old. He also
2
CornerHouse is a child-abuse training and evaluation center whose stated mission
includes assessing suspected child sexual abuse and coordinating forensic interview
services.
4
indicated that F.E.J.B. had told him that Chermack also touched her when he sat by her in
the living room.
In F.E.J.B.’s CornerHouse interview, which was conducted when she was nine
years old, she indicated that T.J.B. told her that Chermack lay in bed with T.J.B. and
“start[ed] feeling things,” touching T.J.B.’s penis. T.J.B. also told her that Chermack
asked him “to do the same thing back.” She did not witness this because she was
sleeping and was “a hard sleeper.” She also said that when she was five, Chermack had
rubbed her vagina once underneath her clothes when they were on a couch together. She
at first stated that he had touched her only once, but then indicated that this had happened
on two other occasions over her clothes.
Chermack testified that all of T.B.’s children, including those of T.B.’s current
wife, came to visit the home. He testified that he had never touched T.J.B. or had T.J.B.
touch him and that he never touched F.E.J.B. He testified that once in a while, when
T.J.B. got scared, he would come and crawl into his wife’s side of the bed, and that once
Chermack watched a movie with only T.J.B. and F.E.J.B. when his wife was watching a
movie inappropriate for children. He remembered that this occurred near the end of
February 2013.
At closing argument, the state referred to F.E.J.B.’s testimony that she had been
touched and urged the jury to consider her testimony as corroborating T.J.B.’s testimony
that he had been touched. The prosecutor argued that it could not be an accident because
it happened multiple times and because F.E.J.B. “indicated it happened to her as well.”
5
The jury convicted Chermack of two counts of second-degree criminal sexual
conduct and acquitted him of a third count relating to multiple acts over an extended
period of time. Because both counts arose from the same behavioral incident, the district
court only adjudicated one count and sentenced Chermack to 36 months, with a stay of
execution and probation for 25 years. This appeal follows.
DECISION
Chermack challenges the district court’s admission of F.E.J.B.’s testimony as
relationship evidence under Minnesota Statutes section 634.20. Under that statute, the
district court may admit “[e]vidence of similar conduct by the accused against the victim
of similar conduct, or against other family or household members,” provided that certain
conditions are met. Minn. Stat. § 634.20.3 Relationship evidence is considered relevant
because it assists in illuminating the history of the relationship between the defendant and
the victim, and it may also help to prove motive or help the jury to assess witness
credibility. State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010) (quotation omitted).4
Thus, such evidence is admissible if its probative value is not substantially outweighed by
3
In 2013, the Minnesota legislature changed the language of section 634.20 to refer to
“domestic conduct,” rather than “similar conduct.” 2013 Minn. Laws ch. 47, § 7. This
change applied to crimes committed on or after August 1, 2013. Id. Based on T.J.B.’s
allegations of the date of the sexual contact, the district court applied the 2012 version of
the statute, and we refer to that version here.
4
Relationship evidence is considered differently from evidence of other crimes or bad
acts, which is addressed under Minnesota Rule of Evidence 404(b). Other-crimes
evidence is not admissible to prove that a defendant acted in conformity with his
character, but may be admissible for other purposes, such as to prove motive, intent, plan,
knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b); State v.
Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). Section 634.20 “allows much
more latitude” than the exceptions to rule 404(b). State v. Word, 755 N.W.2d 776, 784
(Minn. App. 2008).
6
the danger of unfair prejudice against the defendant, confusing the issue, misleading the
jury, undue delay, or the unnecessary presentation of cumulative evidence. Minn. Stat.
§ 634.20.
Evidentiary rulings generally rest within the district court’s discretion, and this
court will not reverse a district court’s decision on the admission of evidence absent an
abuse of that discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). This rule
applies to the admission of relationship evidence. Matthews, 779 N.W.2d at 553. If the
district court erroneously admits evidence, an appellate court will nonetheless affirm
unless the appellant establishes prejudice from the abuse of discretion, which occurs if
there is a reasonable possibility that the wrongfully admitted evidence significantly
affected the verdict. State v. O’Meara, 755 N.W.2d 29, 35 (Minn. App. 2008).5 This
court, however, reviews matters of statutory construction de novo. State v. Barnslater,
786 N.W.2d 646, 650 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010).
5
We note the state’s argument that the plain-error standard for unobjected-to error
applies in this case because the defense did not object to the evidence in the district court
on the ground now advanced on appeal. If a party fails to object to an error before the
district court, in order to obtain reversal, that party must establish (1) an error; (2) that is
plain; and (3) that affects a defendant’s substantial rights. State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998). We recognize that this standard applies if a party has shifted
theories on appeal. See State v. Bailey, 732 N.W.2d 612, 623 (Minn. 2007) (stating that a
party may not “obtain review by raising the same general issue litigated below but under
a different theory”) (quotation omitted)). But here, the defense argued to the district
court the same general theory presented on appeal: that the proposed evidence did not fall
within the statutory requirements for relationship evidence under Minnesota Statutes
section 634.20.
7
A. F.E.J.B. qualifies as a family or household member under Minnesota Statutes
section 634.20.
Chermack argues that the district court erred by admitting evidence of F.E.J.B.’s
abuse as relationship evidence because she does not qualify as his “family or household
member” as specified by statute for the admission of relationship evidence. Minn. Stat.
§ 634.20. For the purpose of admitting relationship evidence, section 634.20 defines
“[f]amily or household members” as
(1) spouses and former spouses;
(2) parents and children;
(3) persons related by blood;
(4) persons who are presently residing together or who have resided
together in the past;
(5) persons who have a child in common regardless of whether they have
been married or have lived together at any time;
(6) a man and woman if the woman is pregnant and the man is alleged to be
the father, regardless of whether they have been married or have lived
together at any time; and
(7) persons involved in a significant romantic or sexual relationship.
Minn. Stat. § 634.20; Minn. Stat. § 518B.01(b) (2012). Chermack argues that because
the relationship between him and F.E.J.B., who is his step-grandchild, is not listed in the
statute, evidence of prior abuse of F.E.J.B. was inadmissible to assist in proving abuse of
T.J.B. See Minn. Stat. § 518B.01(b).
However, another category of relationships listed in the statute is “persons who
have resided together in the past.” Minn. Stat. § 518B.01. At trial, Chermack testified
that T.B. and his then-wife lived in Chermack’s home for five months in 2011.6 His
attorney then asked, “How about any children?”, and Chermack replied, “Two.”
6
T.B.’s former wife also testified that she lived in the home for about five months, but
recalled the year as 2010 rather than 2011.
8
Although T.B. later married a woman with four children, who also spent time at
Chermack’s home, there is no indication in the record that the “two children” who lived
there for a five-month period with T.B. were other than F.E.J.B. and T.J.B. Because the
record establishes that Chermack and F.E.J.B. “have resided together in the past,” the
district court did not err by concluding that evidence of F.E.J.B.’s prior abuse fell within
the category of relationship evidence with respect to Chermack’s abuse of T.J.B. See id.
Chermack points out that the district court also found that F.E.J.B.’s status as “the
sister of the victim” justified admitting the evidence as relationship evidence. To this
extent, the district court’s analysis is incorrect. It is not the relationship between the
victim and the other family member that is relevant in deciding whether to admit
relationship evidence. Rather, it is the relationship between the other family member and
the defendant. State v. Valentine, 787 N.W.2d 630, 637-38 (Minn. App. 2010), review
denied (Minn. Nov. 16, 2010). But we conclude that the district court’s mistaken
analysis of addressing the relationship between T.J.B. and F.E.J.B., rather than the one
between Chermack and F.E.J.B., is harmless in view of its other legally sufficient ground
for admitting the relationship evidence.
B. The probative value of the evidence was not outweighed by unfair prejudice.
Chermack argues that even if evidence concerning F.E.J.B.’s abuse falls within the
category of relationship evidence, it was improperly admitted because its probative value
was outweighed by its prejudicial effect. In determining whether the probative value of
evidence is outweighed by its prejudicial effect, the concept of unfair prejudice does not
refer to merely damaging evidence or even severely damaging evidence. State v. Meyer,
9
749 N.W.2d 844, 849 (Minn. App. 2008). Rather, unfairly prejudicial evidence gives one
party an unfair advantage because it persuades by illegitimate means. Id.Chermack argues that the evidence of sexual touching against F.E.J.B. in 2008
was unfairly prejudicial because it did not involve the victim in this case, T.J.B. But the
probative value of evidence is bolstered if the evidence helps establish the relationship
between the victim and the defendant or places the event in context. State v. McCoy, 682
N.W.2d 153, 159 (Minn. 2004). Here, evidence of F.E.J.B.’s abuse had probative value
because she visited Chermack at the same time as T.J.B. and because her testimony of her
own abuse was similar to that of T.J.B.’s. Therefore, it helps to place the allegations of
T.J.B.’s abuse in context. See id. In addition, because the abuse against F.E.J.B. was not
more serious than that committed against T.J.B., the jury was less likely to improperly
convict Chermack based on evidence of his conduct toward F.E.J.B.
Chermack also argues that the state did not have a need for the evidence. The
state’s need for relationship evidence “is naturally considered as part of the assessment of
[its] probative value versus [its] prejudicial effect.” Meyer, 749 N.W.2d at 849.
Chermack points out that T.J.B. did not recant, he reported the abuse to several people, he
testified at trial, and other witnesses supported his allegations. But the abuse occurred in
private, in Chermack’s home; T.J.B. was only seven years old at the time of trial; and he
was initially reluctant to tell the CornerHouse interviewer about the abuse. Chermack
also testified and denied abusing T.J.B. Therefore, the relationship evidence of conduct
against F.E.J.B. assisted the jury in weighing the credibility of T.J.B.’s allegations.
10
We also note that any prejudicial effect of the relationship evidence was lessened
because the district court gave two cautionary instructions to the jury. Those instructions
informed the jury that the evidence was being submitted for the limited purpose of
assisting in determining whether Chermack committed the charged offense, it was not to
be used to prove his character or that he acted in conformity with that character, the jury
was not to convict Chermack of any other offense, and it was not to convict him on the
basis of any occurrence against F.E.J.B.7 See State v. Lindsey, 755 N.W.2d 752, 757
(Minn. App. 2008) (stating that cautionary instructions lessened the probability that the
jury would give undue weight to relationship evidence), review denied (Minn. Oct. 29,
2008); see also State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (stating that this
court assumes that a jury follows the district court’s instructions). Although the
prosecutor at closing argument argued that F.E.J.B.’s testimony corroborated T.J.B.’s
testimony, he also reminded the jury of the court’s instruction not to convict Chermack
based on the abuse of F.E.J.B. Finally, the jury found Chermack not guilty of an
additional count of criminal sexual conduct against T.J.B., which tends to show that the
jury was not prejudicially influenced by the relationship evidence. See State v. DeWald,
463 N.W.2d 741, 745 (Minn. 1990) (stating that acquittal of some charges demonstrates
that the jury conscientiously considered the evidence rather than resorting to passion or
prejudice).
7
These instructions follow the pattern jury instructions for Spreigl evidence, rather than
those for relationship evidence. See 10 Minnesota Practice, CRIMJIG 2.01, .07, 3.16
(2015). But the general instruction under CRIMJIG 2.01 has been approved by this court
for relationship evidence. See State v. Sanders, 743 N.W.2d 616, 621 (Minn. App. 2008),
aff’d, 775 N.W.2d 883 (Minn. 2009).
11
The district court has broad discretion in weighing the probative value of evidence
against its prejudicial effect. State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993) (applying
Minn. R. Evid. 403); McCoy, 682 N.W.2d at 159 (recognizing that balancing test for
relationship evidence mirrors that provided in Minn. R. Evid. 403). We conclude that, on
this record, the probative value of the relationship evidence was not outweighed by its
prejudicial effect, and the district court did not abuse its discretion by admitting it.
Affirmed.
12