State v. Vetaw-Cage, A19-0702

State of Minnesota, Respondent, v. Demarlo Lashawn Vetaw-Cage, Appellant.

A19-0702

STATE OF MINNESOTA IN COURT OF APPEALS

July 13, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed in part, reversed in part, and remanded

Segal, Chief Judge

Hennepin County District Court

File No. 27-CR-18-2024

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and Reyes, Judge.

UNPUBLISHED OPINION

SEGAL, Chief Judge

In this direct appeal from final judgment, appellant argues that his convictions of first- and second-degree criminal sexual conduct must be reversed and remanded for a new trial because the prosecutor committed misconduct and the district court abused its discretion in certain evidentiary rulings. Appellant also challenges the district court's imposition of lifetime conditional release because the convictions for first- and second-degree criminal sexual conduct were entered simultaneously. We affirm in part, reverse in part, and remand.

FACTS

In September 2017, nine-year-old K.B. (the child) reported to her mother that appellant Demarlo Lashawn Vetaw-Cage had sexually abused her. Vetaw-Cage and mother had previously been involved in a romantic relationship and have four children together. Vetaw-Cage is not the biological father of the child, but acted as her stepfather during his relationship with mother. At the time the child made the disclosure, mother had just confronted the child and one of her sisters because mother discovered them "messing" with the diapers of one of their younger twin siblings. Mother called the police and told the girls that people who behave like that go to jail. When she asked the girls what was going on, she was told "[t]hat they were, like, basically touching each other's private parts and taking off the diapers." Mother asked the child who taught her that behavior, and the child became upset and said that Vetaw-Cage raped her.

Mother took the child for an interview at CornerHouse, which conducts forensic interviews of child-abuse victims. During the interview, the child reported that Vetaw-Cage had touched her "in a bad way" and that he used to touch her "in the bottom private part." She stated that he was "digging" in her private part and that it hurt. She indicated that the abuse happened when she was seven or eight years old and lived at a brown house.Mother and the children lived in a brown house from November 5, 2014, until mid-March 2015. Vetaw-Cage was a frequent guest at the home and left personal items there.

Respondent State of Minnesota charged Vetaw-Cage with two counts each of first-degree and second-degree criminal sexual conduct. The state alleged that between January 5, 2014, and October 26, 2015, Vetaw-Cage sexually abused the child on multiple occasions and that he had a significant relationship with the child due to his romantic relationship with mother and the fact that he acted as her stepfather. Vetaw-Cage waived his right to a jury trial and proceeded to a court trial.

Both Vetaw-Cage and the state brought pretrial motions. The pretrial motions relevant to this appeal include a motion by Vetaw-Cage to admit evidence to show that the child could have acquired knowledge of sexual activities from other sources. The state moved to admit relationship evidence under Minn. Stat. § 634.20 (2018) concerning Vetaw-Cage's history of committing violence against mother and allegations by two of the child's siblings that they had also been sexually abused by Vetaw-Cage.

The district court denied Vetaw-Cage's motion to admit evidence of the child's potential alternative source of sexual knowledge, but granted the state's motion to admit relationship evidence regarding Vetaw-Cage's physical abuse of mother and testimony from one of the two siblings, a sister, about being sexually abused by Vetaw-Cage. The district court determined that testimony from the other sibling, a brother, about being sexually abused by Vetaw-Cage was not admissible because the brother had recanted the allegation.

Following a court trial, the district court found Vetaw-Cage guilty of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2014) (sexual contact with a child under 13) and second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2014) (sexual contact), but acquitted Vetaw-Cage of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (sexual penetration) and second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(h)(iii) (2014) (multiple acts). The district court sentenced Vetaw-Cage to 360 months for first-degree criminal sexual conduct and imposed a lifetime conditional-release period. This appeal follows.

DECISION

I. The prosecutor did not commit misconduct.

Vetaw-Cage alleges that the prosecutor engaged in misconduct by eliciting testimony concerning sexual abuse of the child's brother. Vetaw-Cage asserts that the testimony was ruled inadmissible by the district court in its pretrial order.

The contested questioning involves testimony by the child. At the trial, the prosecutor asked the child if Vetaw-Cage hurt her siblings. Defense counsel objected to the question on the basis of "foundation as [to] how the witness observed this or whether she was told this." The district court indicated that it would rule on the admissibility when the child explained how she knew this information. The child then testified that she had seen Vetaw-Cage touch her siblings' private parts with his on more than one occasion. Defense counsel made no further objections to the testimony during the trial.

Vetaw-Cage asserts on appeal that the prosecutor intentionally violated the court's order by questioning the child about sexual abuse of her brother. Since the objection at trial was only on the basis of foundation, we treat Vetaw-Cage's claim of prosecutorial misconduct as unobjected-to error. We review unobjected-to claims of prosecutorial misconduct under a modified plain-error standard, considering whether there is "(1) error, (2) that is plain, and (3) affects substantial rights." State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Error is plain if it "contravenes case law, a rule, or a standard of conduct." Id. Even where misconduct occurs, this court will reverse only when the defendant was denied a fair trial. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).

Vetaw-Cage argues that the prosecutor failed in her duty to adequately prepare the child to testify and elicited testimony from the child that had been ruled inadmissible. Under Minnesota caselaw, "the state has an absolute duty to prepare its witnesses to ensure they are aware of the limits of permissible testimony." State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003); see also State v. Ray, 659 N.W.2d 736, 744 (Minn. 2003) (noting that the court was "troubled" by the prosecutor's repeated attempts to elicit testimony that had been ruled inadmissible). It appears, however, that the pretrial ruling concerned potential testimony by the brother, not the child, and that the question, thereby, did not contravene the district court's order.

The district court's pretrial order states that "potential testimony of the male sibling . . . is excluded due to his recantation." At the pretrial hearing, the court summarized its ruling as follows: "it does not appear that [the child's brother] has information that is admissible. [The child's sister] might if she testifies first and that it's a consistentstatement." The court's ruling thus related to testimony by the brother. The challenged testimony, however, was not from the brother, but rather from the child about an incident she witnessed and about which she had firsthand knowledge.

We also note that the prosecutor was not aware of the potential testimony of the child until the day before trial when the child disclosed for the first time to the prosecution that she had seen Vetaw-Cage engage in sexual abuse of her brother. In addition, Vetaw-Cage had the opportunity to cross-examine the child at trial about inconsistencies in her statements regarding whether she had witnessed sexual abuse of her brother.

Because the district court's order only explicitly excluded the brother's testimony, the prosecutor did not intentionally attempt to elicit inadmissible evidence when questioning the child about what she had personally observed. We therefore conclude that the prosecutor's questioning of the child did not constitute plain error.

II. The district court did not abuse its discretion by admitting relationship evidence under Minn. Stat. § 634.20.

Vetaw-Cage argues that the district court abused its discretion by admitting relationship evidence under Minn. Stat. § 634.20, because the evidence had little probative value and was unfairly prejudicial. Under Minn. Stat. § 634.20, a district court may admit evidence of "domestic conduct" by a defendant unless the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice" to the defendant, "or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Such evidence is admissible to illuminate the relationship between an accusedand an alleged victim and provide context for the alleged incident. State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).

We review a district court's admission of relationship evidence for abuse of discretion. State v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008), review denied (Minn. Oct. 29, 2008). To be entitled to relief, an appellant must show that the district court abused...