State of Minnesota v. Micheal Lee Cocuzzi ( 2023 )

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1558
State of Minnesota,
Respondent,
vs.
Micheal Lee Cocuzzi,
Appellant.
Filed December 4, 2023
Affirmed
Ross, Judge
Dodge County District Court
File No. 20-CR-21-284
Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and
Paul Kiltinen, Dodge County Attorney, Mantorville, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Ross, Judge; and Halbrooks,
Judge. ∗
∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
NONPRECEDENTIAL OPINION
ROSS, Judge
After the mother of a ten-year-old girl asked the girl why she had searched for “adult
sex with a child” on the internet, the girl reported that her father, Micheal Cocuzzi, had
repeatedly sexually assaulted her. The state charged Cocuzzi with second-degree criminal
sexual conduct. Cocuzzi’s older daughter testified at Cocuzzi’s trial that he had previously
similarly abused her. The jury asked the district court during deliberations about two of the
elements of second-degree criminal sexual conduct, and the court referred the jury back to
its written instructions. Cocuzzi argues on appeal from his conviction that the district court
should have excluded his older daughter’s testimony and answered the jury’s question.
Because the district court admitted the challenged testimony on two bases and Cocuzzi
challenges only one of them on appeal, we hold that the district court acted within its
discretion by admitting the testimony. We also hold that any error in the district court’s
failure to directly answer the jury’s question was not plain. We therefore affirm Cocuzzi’s
conviction.
FACTS
A mother found evidence of a search for “adult sex with a child” on a laptop
computer belonging to her ten-year-old daughter. We will call the daughter Shelly in the
interest of her privacy. Micheal Cocuzzi is Shelly’s father. When the mother asked Shelly
about the search, Shelly wrote a note explaining, “Dad he do[es] it to me and I wanted to
see what he c[o]uld do to me and he do[es] it every year and that’s why I want to stay and
live near [where] I know [I’m] safe.” Shelly told her mother how Cocuzzi had been sexually
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abusing her for years, beginning in June 2016 and occurring as recently as December 2020.
The mother reported the abuse to police.
A forensic investigator interviewed Shelly about the abuse. Shelly told the
interviewer that Cocuzzi and her mother were divorced and lived in different states. Shelly
said that she stayed with Cocuzzi in a hotel room in December 2020, when Cocuzzi
sexually assaulted her twice in the same evening. The first involved Cocuzzi rubbing her
vaginal area with his hand both over and under her clothing. The second involved him
rubbing her vaginal area unclothed, with his penis. The state charged Cocuzzi with three
counts of second-degree criminal sexual conduct. The state premised one of the counts on
Cocuzzi’s having sexually assaulted Shelly over an extended period.
The state gave notice before trial that it intended to introduce testimony from
Cocuzzi’s older daughter, whom we will call Mary, as Spreigl evidence. Cocuzzi opposed
the admission of the testimony as Spreigl evidence. The state questioned Mary at trial
during an unsworn offer of proof. Mary recounted that Cocuzzi sexually abused her when
she was six years old. She had reported the abuse to her mother, counselors, and police.
The district court allowed Mary to testify before the jury, admitting her testimony as
relationship evidence and later stating that it admitted the testimony both as relationship
evidence and as Spreigl evidence. The district court cautioned the jury not to find Cocuzzi
guilty based on his conduct against Mary but to use the evidence only as it bore on
Cocuzzi’s relationship with Shelly. Cocuzzi did not object to the district court’s admission
of the evidence on relationship grounds. After the close of testimony and arguments, the
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district court instructed the jury not to use Mary’s testimony as proof of Cocuzzi’s
character.
The jury began deliberating. Within minutes it wrote a two-part question, asking the
district court a question about the multiple-acts element of one of the criminal-sexual-
conduct charges and about the temporal element of one of the charges: “On count 3 the 5th
part are the touching with the hand and touching with the penis considered multiple acts?
Is an extended period of time considered occurring on the same day or different days?” The
district court replied, “You must rely on the evidence as presented and the jury
instructions.” Neither party objected or argued for a different answer before or after the
district court responded to the questions.
The jury found Cocuzzi guilty on all three counts of second-degree criminal sexual
conduct, and the district court convicted him of criminal sexual conduct involving multiple
acts committed over an extended period. It sentenced him to serve 108 months in prison.
Cocuzzi appeals.
DECISION
Cocuzzi raises two challenges to his conviction. He argues first that the district court
wrongfully admitted Mary’s testimony as Spreigl evidence, maintaining both that the state
did not provide clear and convincing evidence that he abused Mary and that the evidence’s
potential for unfair prejudice outweighed its probative value. He argues second that the
district court should have defined the term “extended period of time” by declaring that
extended means more than a span of minutes. Neither argument leads us to reverse.
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I
Cocuzzi argues that the district court improperly admitted Mary’s testimony of prior
sexual abuse as Spreigl evidence. We will address Cocuzzi’s Spreigl argument, but we
emphasize that our Spreigl analysis is wholly unnecessary to our decision. The analysis is
unnecessary because the district court expressly admitted the challenged testimony on two
evidentiary bases—as Spreigl evidence under Minnesota Rule of Criminal Procedure 7.02
and as relationship evidence of domestic conduct under Minnesota Statutes section 634.20
(2022)—but Cocuzzi now challenges the admission only on the Spreigl basis. He fails to
argue that the testimony was inadmissible as relationship evidence. At most, he suggests
in a footnote that the district court must not have really intended to admit the testimony as
relationship evidence (despite the fact that the district court plainly stated that it was doing
just that). He so suggests because the state had not asked the district court to admit the
testimony as relationship evidence and, he proffers, the judge would have been acting as
an advocate and violating the Code of Judicial Conduct by admitting the evidence on a
theory not raised by the state. The suggestions fail for lack of development.
Because Cocuzzi never develops his footnoted conjecture, we will not consider it.
We may deem allegations unsupported by argument or authority to be waived. State v.
Krosch, 642 N.W.2d 713, 719 (Minn. 2002). Cocuzzi has not asserted or offered any
authority indicating that we must ignore the district court’s stated ground for admitting the
evidence, and we decline to craft his implicit argument for him. The record informs us that
the district court admitted the testimony expressly on two grounds, including relationship
evidence, and Cocuzzi never objected to the district court’s decision to admit the testimony
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on that ground. And he has not argued on appeal that the testimony was inadmissible on
that ground. Cocuzzi’s decision not to challenge on appeal the district court’s decision to
admit the testimony as relationship evidence renders inconsequential his contention that it
is inadmissible as Spreigl evidence.
Although it is unnecessary to our decision, we add that we also are unpersuaded by
Cocuzzi’s Spreigl argument on the merits. We review the district court’s admission of prior
bad acts evidence, also called Spreigl evidence, for an abuse of discretion. State v. Griffin,
887 N.W.2d 257, 261–62 (Minn. 2016); see also State v. Spreigl, 139 N.W.2d 167 (Minn.
1965). We are satisfied that the district court acted within its discretion by admitting the
evidence.
Cocuzzi maintains that the district court abused its discretion by admitting Mary’s
testimony that Cocuzzi had previously sexually abused her. A district court acts within its
discretion to admit this sort of bad-acts evidence if five requirements are met:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indicate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.
Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005) (quotation omitted). Cocuzzi contends
that the state did not meet two of those five, arguing that the state failed to provide clear
and convincing evidence that he sexually abused Mary and that the potential for unfair
prejudice outweighed the evidence’s probative value. Neither argument is convincing.
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We reject Cocuzzi’s contention that the state failed to provide clear and convincing
evidence that he molested Mary. Evidence is clear and convincing if there is a high
probability that the facts asserted are true. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.
1998). Mary had previously disclosed the abuse to her mother, her counselor, and police,
and the district court implicitly found Mary’s allegations to be credible. We defer to the
district court’s findings on credibility. State v. Heath, 685 N.W.2d 48, 59 (Minn. App.
2004), rev. denied (Minn. Nov. 16, 2004). Although Mary’s different accounts varied
somewhat, the variations are not so extraordinary that we would supplant the district
court’s credibility finding. The evidence of Cocuzzi’s prior conduct was clear and
convincing.
We also reject Cocuzzi’s contention that the potential unfair prejudice from Mary’s
testimony outweighed its probative value. Spreigl evidence is admissible to respond to a
defense of mistake or fabrication if the Spreigl evidence depicts conduct that is similar to
the trial allegations, suggesting a common scheme or plan. State v. Ness, 707 N.W.2d 676,
688 (Minn. 2006). The district court admitted the testimony in that context, reasoning, “I
do think that it is very probative in light of what I understand to be your client’s position,
which is that this did not happen.” The state accurately highlights the similarities in
Shelly’s and Mary’s allegations of abuse. Both are Cocuzzi’s biological daughters. Both
were prepubescent children when Cocuzzi allegedly sexually assaulted them. Both alleged
assaults occurred during Cocuzzi’s parenting time. And both involved similar sexual
touching without penetration. The Spreigl evidence was probative to show a common
scheme, undercutting Cocuzzi’s defense that Mary had fabricated her account.
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Cocuzzi maintains that Mary’s testimony was prejudicial in that it portrayed him as
a sexual predator. But he does not point to any testimony or statements by the prosecutor
that so characterized Mary’s account. He speculates that the district court’s cautionary
instruction compounded the prejudice. To the contrary, we assume that juries follow
district court instructions, State v. Matthews, 779 N.W.2d 543, 550 (Minn. 2010), and we
therefore will not assume that the district court’s repeated cautioning against using the
testimony as character evidence against Cocuzzi aggravated any danger that the jury would
apply the evidence unfairly. Although the evidence was prejudicial, Cocuzzi points to
nothing in the record that supports his view that it was unfairly prejudicial. We cannot
conclude that its potential for unfair prejudice outweighed its probative value. We therefore
hold that the district court did not abuse its discretion by admitting the testimony.
II
Cocuzzi argues that the district court inappropriately failed to answer the jury’s
question during deliberations. The district court may, among other options in its exercise
of discretion, respond to a jury’s request for additional instructions during deliberation by
providing additional instructions or by repeating portions of its original instructions. Minn.
R. Crim. P. 26.03, subd. 20(3); State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986) (“The
court has the discretion to decide whether to amplify previous instructions, reread previous
instructions, or give no response at all.”). We review unobjected-to jury instructions only
for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Because Cocuzzi did
not offer the district court any different answer or object to the answer the district court
gave, we will review only for plain error.
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Cocuzzi’s jury-instruction challenge does not survive our plain-error review. Under
that review, we would reverse only if we identified an error, determined that the error was
plain, and concluded that the error affected Cocuzzi’s substantial rights. State v. Milton,
821 N.W.2d 789, 805 (Minn. 2012). An error is “plain” when it is “clear or obvious.” Id.
at 807. Put differently, an error is plain when the error clearly or obviously contradicts the
law. State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017). And an error affects substantial
rights only if it was prejudicial, affecting the outcome of the case. Griller, 583 N.W.2d at
741. If Cocuzzi can establish that a plain error affecting his substantial rights occurred, we
may correct the error only if it also seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Id. at 740. For the following reasons, we conclude that
even if the district court’s failure to instruct the jury differently constituted an error, the
error was not plain.
We must decide whether failing to elaborate on the meaning of “extended period of
time” in the context of Cocuzzi’s charge of second-degree criminal sexual conduct was
plain error. A person is guilty of second-degree criminal sexual conduct when he engages
in sexual contact against a complainant with whom he has a significant relationship if the
complainant is younger than sixteen and the abuse involved multiple acts “over an extended
period of time.” Minn. Stat. § 609.343, subd. 1(h)(iii) (2020). The supreme court has
characterized it as “well settled that the [district] court’s instructions must define the crime
charged and . . . explain the elements of the offense.” State v. Ihle, 640 N.W.2d 910, 916
(Minn. 2002). We generally agree with Cocuzzi that the district court should attempt to
answer a jury’s question about the meaning of an element of a criminal offense when the
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jury expresses uncertainty about it. But Cocuzzi’s extensive argument in search of a
definition here informs us that the district court did not plainly err by not answering the
question more substantively.
Cocuzzi’s argument demonstrates that the district court’s alleged error in failing to
define the phrase was not plain. As Cocuzzi acknowledges, “‘Extended period of time’ is
not defined by statute, nor have Minnesota’s appellate courts interpreted the phrase.”
Whether the phrase must refer to a period that covers more than a lengthy span of hours is
an issue that Cocuzzi attempts to answer only by inference, citing or referencing more than
seven cases and a dictionary discussing uses of the word “extended” in various contexts,
none excluding the possibility that an extended period can include a span of hours. Cocuzzi
may be correct that “extended period of time” refers to a longer period. But the district
court’s failure to answer the jury’s question by stating that this is so did not clearly or
obviously contradict the law. In the absence of any statute or caselaw expressly establishing
that “extended” cannot include an extended period within a day, we cannot say that the
district court plainly erred by not declaring so to the jury. We therefore need not address
whether the alleged error impacted Cocuzzi’s substantial rights or whether, if it did,
correcting the error in this case is required to protect the fairness, integrity, or public
reputation of the judiciary.
Affirmed.
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