State v. McNally

1

State of Minnesota, Respondent, v. Ryan Marshall McNally, Appellant.

No. A23-1278

Court of Appeals of Minnesota

December 2, 2024

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Hennepin County District Court File No. 27-CR-21-7938

Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bentley, Presiding Judge; Segal, Chief Judge; and Johnson, Judge.

BENTLEY, JUDGE

In this direct appeal from a conviction of second-degree criminal sexual conduct, appellant argues that he is entitled to a new trial because the district court abused its discretion by admitting evidence of a subsequent act of alleged abuse. Alternatively, appellant seeks resentencing because the district court violated his constitutional right to a jury trial under Blakely v. Washington, 542 U.S. 296 (2004), when the court determined the date of the offense by a preponderance of evidence, and thereby increased his criminalhistory score and established a longer presumptive sentence. In a pro se supplemental brief, appellant raises additional claims. Because we discern no abuse of discretion regarding the admission of other-bad-act evidence and appellant's supplemental arguments, and because we conclude that the Blakely violation was harmless beyond a reasonable doubt, we affirm.

FACTS

Respondent State of Minnesota charged appellant Ryan Marshall McNally III with second-degree criminal sexual conduct, Minn. Stat. § 609.343, subd. 1(a) (2014), alleging that McNally made his eight- or nine-year-old neighbor, B.J.Y., rub his penis. During a six-day jury trial in February 2023, the state presented evidence about the charged conduct involving B.J.Y., as well as evidence about a 2021 incident when McNally allegedly made his daughter, N.M., rub his penis. A summary of the evidence received at trial and the relevant procedural history follows.

B.J.Y. became friends with McNally's daughters after the McNallys moved to B.J.Y.'s neighborhood in Golden Valley in 2015. The children played together about once a week, typically at the McNally home. One day, when B.J.Y. was eight or nine years old, B.J.Y. went there to play with McNally's daughters. McNally answered the door and told B.J.Y. that his daughters were not home, but he invited B.J.Y. inside anyway. B.J.Y. sat with him on a couch and watched him play video games. McNally was wearing a robe with nothing underneath. At some point, McNally said that he had a stomachache and asked B.J.Y. to rub his stomach. After B.J.Y. complied, McNally repeatedly asked B.J.Y. to rub lower until B.J.Y.'s hand was on McNally's penis. McNally then asked B.J.Y. to "rub it." When B.J.Y. did, they felt semen on their hand.^[1] B.J.Y. testified that they felt uncomfortable, removed their hand, and told McNally that they had to leave. B.J.Y. ran home and washed their hands. B.J.Y. testified that they did not tell anyone about the incident until "[a] few years later."

In 2020, B.J.Y. told B.J.Y.'s grandmother and father about the alleged abuse. B.J.Y.'s father contacted the police, and B.J.Y. was forensically interviewed at a childadvocacy center a month later. The state charged McNally with criminal sexual conduct in April 2021.

In February 2021, after the incident with B.J.Y. but before he was charged in relation to it, McNally allegedly sexually abused his daughter, N.M. The district court allowed evidence relating to N.M. "to demonstrate a common scheme or plan" between the alleged incidents and to show that B.J.Y. was not fabricating their testimony. N.M. and her two sisters had stayed the night with McNally at a hotel in Eau Claire, Wisconsin. N.M.'s mother and McNally were separated, and he arranged for an overnight visit. The hotel room had one king-sized bed and one couch with a pullout bed. N.M.'s sisters fell asleep on the pullout, and N.M. initially fell asleep on the floor. McNally then woke N.M. and told her to lie on the bed with him. N.M. fell back asleep on the bed, but she woke up again when McNally grabbed her arm, "made [her] touch his penis," and made "[her] hand go . . . up and down." N.M. was afraid to move her hand away. She then felt wetness on her hand.

N.M. moved her arm away and fell asleep. The next morning, after McNally left the hotel room, N.M. told one of her sisters what McNally did. After N.M. and her sisters returned home later that day, N.M. told her other sister. N.M. then spoke with her mother about the incident.

At trial, the state established these facts through witness testimony and exhibits. As to B.J.Y.'s allegations, the jury heard testimony from B.J.Y., B.J.Y.'s father and grandmother, the forensic interviewer who interviewed B.J.Y., and the police officer who spoke with B.J.Y.'s father about the allegations. The jury also viewed a recording of B.J.Y.'s forensic interview.

As to N.M.'s allegations, the jury heard testimony from N.M., N.M.'s mother and grandmother, the forensic interviewer who interviewed N.M., and two police officers who investigated N.M.'s allegations. The jury also viewed a redacted recording of N.M.'s forensic interview, photographs of the hotel room, and screenshots of text messages between one of N.M.'s sisters and N.M.'s mother.

On each day that the jury was presented evidence relating to N.M., and directly before the testimony of four of the six witnesses, the district court issued an instruction like the following:

Members of the jury, the State is about to introduce evidence of an occurrence on or about February 20th, 2021, at a hotel in Eau Claire, Wisconsin. This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint. The defendant is not being tried and may not be convicted of any offense other than the charged offense. You are not to convict the defendant on the basis of occurrences on February 20th, 2021, in Eau Claire. To do so might result in unjust double punishment.

The district court issued a similar instruction before closing argument.

The district court also instructed the jury that, to convict McNally, it must find that the offense date relating to the incident involving B.J.Y. occurred between August 31, 2015, and December 31, 2019. That offense-date range was wider than the range alleged in the original complaint, which only extended to August 30, 2017. The state had amended its complaint during the trial to reflect the wider offense-date range.

The jury found McNally guilty of second-degree criminal sexual conduct. A sentencing worksheet assigned four felony points to McNally's criminal-history score, including two points for two felony convictions from 2004. At McNally's sentencing hearing, defense counsel questioned the inclusion of those two points on the ground that the 2004 offenses would have decayed in 2019 for purposes of calculating McNally's present criminal-history score under the Sentencing Guidelines. Minn. Sent'g Guidelines 2.B.1.c. (Supp. 2019). Defense counsel reasoned that, if the offense against B.J.Y. had occurred after the 2019 decay dates, the two points should not have been included in McNally's criminal-history score for this conviction.

In response, the district court asked whether defense counsel agreed that, "[w]ith regard to all of these factual issues" relating to the criminal-history score, the standard of proof was "not proof beyond a reasonable doubt to a jury, but it's to the [c]ourt by a preponderance that the state has the burden." Defense counsel agreed. The state did not directly address which burden of proof was correct but responded that the court could make a finding that the offense occurred before 2019-and at the latest on August 30, 2017- based on B.J.Y.'s testimony and B.J.Y.'s statements in the video of the forensic interview. The state noted that even if it had "to have [the] jury come back and figure this out[,] . . . the state would present the transcript of the trial and that would be it." The district court then found "based solely on the trial evidence that the state has proven that the offense for sentencing was between August 31, 2015, and August 30, 2017, at least to a preponderance of the evidence to the Court." Accordingly, the district court kept the criminal-history score at four and sentenced McNally to 91 months in prison.

McNally appeals.

DECISION

McNally argues for a new trial on the basis that the district court abused its discretion by admitting evidence that McNally sexually abused N.M. He also seeks resentencing because the district court violated his constitutional right to a jury trial when it imposed a presumptive sentence based in part on findings relating to the offense date that the court itself determined by a preponderance of the evidence. We address McNally's arguments in turn.

I

Evidence of other bad acts, also known as Spreigl evidence is "generally not admissible to prove the defendant's character for committing crimes." State v. Gomez, 721 N.W.2d 871, 877 (Minn. 2006) (citing State v. Spreigl, 139 N.W.2d 167 (Minn. 1965)); see also Minn. R. Evid. 404(b) (providing rule for admissibility of other-acts evidence). But Spreigl evidence "may be admissible for other purposes," including to show a "common scheme or plan" and to rebut a defendant's contention "that the conduct on which the charge was based was a fabrication." State v Clark, 738 N.W.2d 316, 346 (Minn. 2007) (...