                          This opinion will be unpublished and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
                                     A14-1498

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                     Gerald Michalec,
                                        Appellant

                                Filed September 21, 2015
                                        Affirmed
                                      Worke, Judge

                              Ramsey County District Court
                                File No. 62-CR-12-4939

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Andrew R.K. Johnson, Assistant County
Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea G. Barts, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and

Hooten, Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges his convictions of first- and third-degree criminal sexual

\conduct, arguing that the district court abused its discretion by (1) permitting the victim
to testify regarding appellant’s prior inappropriate sexual contact, (2) prohibiting

appellant from cross-examining the victim regarding a prior inconsistent allegation of

sexual contact, and (3) prohibiting appellant from impeaching the victim with her prior

misdemeanor theft charges. Appellant also asserts that the district court improperly

sentenced him to a lifetime conditional-release period. We affirm.

                                          FACTS

       In June 2010, J.M. reported to her school nurse that three months earlier her

grandfather, appellant Gerald Michalec, digitally penetrated her vagina.           J.M. had

previously disclosed the abuse to the school social worker, who took her to the school

police officer. J.M. initially denied the abuse to the officer, later explaining that she was

afraid she would be removed from her home and have to attend a different school. A

child-advocacy nurse subsequently interviewed J.M., and she additionally reported a

sexual-abuse incident by Michalec from Memorial Day weekend the prior year.

Michalec was charged with first- and third-degree criminal sexual conduct. See Minn.

Stat. §§ 609.342, subd. 1(g), .344 subd. 1(f) (2008).

       J.M. testified at the jury trial that over Memorial Day weekend, when she was 15

years old, she sneaked out of Michalec’s house, where she resided, to attend a party. The

party was cancelled and she went to the home of a male friend where she fell asleep. The

next morning, Michalec and J.M.’s father were waiting when she returned home.

Michalec asked her where she had been and what happened. J.M. eventually admitted to

having had sex. Michalec took her to the friend’s house where he spoke with the friend.

When they returned home, J.M. attempted to convince Michalec that she did not actually


                                             2
have sex. Michalec told her that he would take her to a clinic to “check.” J.M. pleaded

with him not to take her to the clinic. Michalec then “checked” her “by using his fingers”

to penetrate her vagina.

       The following March, when J.M. was 16 years old, J.M.’s friend sneaked into her

room and engaged in consensual sex with her. When the friend was about to leave,

Michalec came into the room, started yelling, and hit the friend, giving him a black eye.

Michalec instructed J.M. to remove her blanket so that he could “check” her. He then

digitally penetrated her vagina. J.M. testified that she told friends about the incident, but

did not immediately tell her counselor because she was afraid “that they would try and

put [her] in a foster home like last time.” “Last time” referred to a 2003 incident when

J.M. was nine years old and called 911 immediately after she awoke to Michalec

“breathing down on [her] vagina” and putting his penis on her foot. After that incident,

J.M. was placed in a foster home and removed from school for two months.

       Michalec moved in limine to prohibit evidence about the 2003 incident and to

permit cross-examination of J.M. regarding two prior thefts and a prior inconsistent

allegation of sexual abuse against her father. 1 The district court denied these requests.



1
   Michalec claims that J.M. had previously told a mental-health professional that her
father had raped her. She told the child-advocacy nurse that no one besides Michalec had
unwanted sexual contact with her. We note that the record does not include the notes
from the mental-health professional regarding this statement, only that Michalec moved
to cross-examine J.M. regarding the statement. The district court denied the motion,
finding that the potential of confusing the jury and creating unfair prejudice outweighed
its probative value. See Minn. R. Evid. 403 (stating that relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice or misleading the jury).

                                              3
Prior to the testimony about the 2003 incident, the district court instructed the jury that

that the evidence was offered for

             the limited purpose of demonstrating the nature and extent of
             the relationship between [Michalec] and [J.M.] in order to
             assist you in determining whether [Michalec] committed
             those acts in which [he] is charged in the [c]omplaint.
                    [Michalec] is not being tried for and not being
             convicted of any behavior other than the charged offenses.
             You are not to convict [Michalec] on the basis of conduct in
             2003, to do so might result in unjust, double punishment.

Michalec was convicted on both counts. This appeal follows.

                                     DECISION

Testimony about prior inappropriate sexual contact

      Michalec first argues that the district court abused its discretion by allowing J.M.

to testify about the 2003 incident because the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice. Evidence of prior domestic

conduct between a defendant and a victim may be offered to “illuminate the history of the

relationship, that is, to put the crime charged in the context of the relationship between

the two.” State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). “Domestic conduct”

includes criminal sexual conduct committed against a family member.           Minn. Stat.

§§ 634.20, 518B.01, subd. 2(a)(3) (2008).       The admissibility of a prior incident of

domestic conduct depends on whether the offered evidence is evidence of similar

conduct, and whether the probative value of the evidence is substantially outweighed by

the danger of unfair prejudice. Minn. Stat. § 634.20; State v. Waino, 611 N.W.2d 575,



                                            4
579 (Minn. App. 2000).         Here, the parties do not dispute that the 2003 incident

constitutes similar conduct.

         We review a district court’s admission of similar-conduct evidence in a domestic-

abuse case under an abuse-of-discretion standard. McCoy, 682 N.W.2d at 161. If we

conclude that the district court abused its discretion by admitting the evidence, we must

then determine whether there is a reasonable possibility that the wrongfully admitted

evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn.

1994).

         Michalec argues that the evidence had low probative value and should have been

excluded because it did not illuminate the history of the relationship between the parties,

but was instead used to explain J.M.’s delayed reporting.         “Evidence that helps to

establish the relationship between the victim and the defendant or which places the event

in context bolsters its probative value.” State v. Lindsey, 755 N.W.2d 752, 756 (Minn.

App. 2008), review denied (Minn. Oct. 29, 2008). There is “inherent value of evidence

of past acts of violence committed by the same defendant against the same victim.” State

v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).

         In State v. Ness, the supreme court determined that the probative value of evidence

of prior allegations of child sexual abuse was outweighed by the potential for unfair

prejudice because the evidence was not relevant to the charged crime. 707 N.W.2d 676,

682, 689 (Minn. 2006). But Ness is distinguishable from the current case. Here, the

disputed evidence involves testimony about an incident between Michalec and the same

victim; Ness involved the admission of Spreigl evidence from a separate victim. See id.


                                              5
at 682; see also Bell, 719 N.W.2d at 638-39 n.6 (distinguishing Spriegl evidence,

governed by rule 404(b), from evidence offered under Minn. Stat. § 634.20). Moreover,

the Ness court held that recourse was not warranted because the erroneously admitted

testimony did not create “real and discernible prejudice” that significantly affected the

verdict. Id. at 691.

       In McCoy, the supreme court held that the district court did not abuse its discretion

by allowing relationship “evidence that, if believed by the jury, could have assisted the

jury by providing a context with which it could better judge the credibility of the

principals in the relationship.” 682 N.W.2d at 161. Here, J.M. was removed from her

home and school after reporting the 2003 incident, and described the foster-care

environment as “like containment.”       This testimony provides context for why J.M.

delayed reporting and initially denied the abuse to the school liaison officer. See State v.

Loving, 775 N.W.2d 872, 880 (Minn. 2009) (noting that relationship evidence has

increased probative value when it places the charged offense into proper context).

       Michalec also argues that J.M.’s testimony about the 2003 incident has low

probative value because it was duplicative of the nurse’s testimony, which explained why

child sexual-abuse victims often delay reporting. We are not persuaded. An expert, such

as a nurse, may identify behavioral characteristics commonly exhibited by sexually

abused adolescents, including delays in reporting. State v. Hall, 406 N.W.2d 503, 504-05

(Minn. 1987). But a nurse may not vouch for the credibility of another witness. Id.; see

also State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998). Moreover, direct testimony

explaining the delay in reporting has the additional purpose of refuting the defense that


                                             6
the accusation was fabricated. State v. Spencer, 366 N.W.2d 656, 660 (Minn. App.

1985), review denied (Minn. July 11, 1985). Unlike the nurse’s testimony that explains

why children in general delay reporting abuse, J.M.’s testimony provides specific context

for her own reporting delay.

       Michalec asserts that the danger in admitting unfairly prejudicial testimony of the

2003 incident was high and may have motivated the jury to punish him for being a bad

person or for the prior bad act rather than for the charged crime. The appellant has the

burden to show unfair prejudice. State v. Rucker, 752 N.W.2d 538, 549 (Minn. App.

2008), review denied (Minn. Sept. 23, 2008). Damaging evidence alone does not create

unfair prejudice; rather, unfair prejudice results when evidence persuades by illegitimate

means, giving one party an unfair advantage. Bell, 719 N.W.2d at 641. Although the

evidence was not favorable to Michalec, he has not proved that the jury used the evidence

as propensity evidence or that the state received an unfair advantage.

       Additionally, the jury received a cautionary instruction regarding the 2003

incident, limiting use of the testimony to relationship evidence to assist the jury in

determining whether the defendant committed the acts with which he was charged. We

presume that juries follow the court’s instructions, State v. Gatson, 801 N.W.2d 134, 151

(Minn. 2011), and we presume that the jury in Michalec’s case followed the district

court’s cautionary instruction.    Consequently, the district court did not abuse its

discretion by concluding that the probative value of the testimony regarding the 2003

incident was not substantially outweighed by the danger of unfair prejudice.




                                             7
Preclusion of prior criminal-sexual-conduct allegation

         Michalec next argues that the district court abused its discretion when it prohibited

him from cross-examining J.M. about a prior inconsistent statement regarding a sexual-

abuse allegation against her father. The district court concluded that the potential of

confusing the jury outweighed the probative value of J.M.’s prior statement, noting that

Michalec could impeach J.M. through other prior inconsistent statements. Michalec

asserts that this was error that violated his constitutional right to present a complete

defense, and that he is therefore entitled to a new trial.

         The scope of cross-examination is largely left to the district court’s discretion and

we will not reverse absent an abuse of that discretion. State v. Lanz-Terry, 535 N.W.2d

635, 641 (Minn. 1995). But when an error implicates a constitutional right, a new trial

will be awarded unless the error is harmless beyond a reasonable doubt. State v. Davis,

820 N.W.2d 525, 533 (Minn. 2012). An error is harmless when the reviewing court is

“satisfied beyond a reasonable doubt that if the evidence had been admitted and the

damaging potential of the evidence fully realized, a [reasonable] jury . . . would have

reached the same verdict.” Post, 512 N.W.2d at 102. When reviewing constitutional

error, we first determine whether there was error, and, if so, whether the error was

harmless beyond a reasonable doubt. State v. Ferguson, 804 N.W.2d 586, 590 (Minn.

2011).

         Evidence of prior sexual conduct of the victim “shall not be admitted nor shall any

reference to such conduct be made in the presence of the jury, except by court order.”

Minn. R. Evid. 412(1). Prior sexual conduct includes allegations of sexual abuse. State


                                               8
v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18,

1991). But “evidence of a victim’s past sexual conduct may be admitted where it is

constitutionally required.” Id.

         Michalec argues that J.M.’s inconsistent statement is highly relevant because it

went to her credibility and possibility of fabrication.        We have held that “prior

accusations of rape are relevant only to the victim’s propensity to be truthful if there has

been a determination that the prior accusations were indeed fabricated.” State v.

Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19,

1993).

         In Kobow, the appellant was convicted of criminal sexual conduct for sexually

abusing his girlfriend’s fourteen-year-old daughter. 466 N.W.2d at 748. Kobow was not

permitted to elicit testimony from a witness that the victim had made allegations that

people other than Kobow had sexually abused her. Id. at 749. On appeal, Kobow argued

that the district court’s exclusion was an abuse of discretion which denied him his right to

present a defense. Id. at 750–51. This court reasoned that the victim was not subject to

impeachment because Kobow could not demonstrate that the victim’s prior allegations

were false. Id. at 751. Accordingly, the “[a]llegations by the victim of prior sexual abuse

came within the provisions of the rape shield laws,” and the district court did not abuse

its discretion. Id.

         At trial, Michalec conceded that he could not prove that J.M.’s prior accusation

was false. As a result, we conclude that the district court did not abuse its discretion by

precluding Michalec from cross-examining J.M. about her prior sexual-abuse allegations.


                                             9
Preclusion of cross-examination of victim’s prior thefts

       Michalec next argues that the district court abused its discretion by precluding

Michalec from cross-examining J.M. about her two theft charges because they were

misdemeanor charges that did not result in convictions.2 We will not reverse a district

court’s evidentiary ruling without a clear abuse of discretion. Miles v. State, 840 N.W.2d

195, 204 (Minn. 2013). In 2011, J.M. was caught stealing clothing from a department

store. In 2014, J.M. admitted to stealing a license plate from another person’s vehicle

and putting the plate on her own car.

       Under Minn. R. Evid. 608(b), specific instances of a witness’s conduct may, in the

discretion of the court, be inquired about on cross-examination for the purpose of

attacking the witness’s character for truthfulness. Thefts that involve dishonesty or false

statements can be probative of a witness’s character for truthfulness. State v. Clark, 296

N.W.2d 359, 368 (Minn. 1980).           But misdemeanor shoplifting does not necessarily

involve dishonesty or a false statement. State v. Darveaux, 318 N.W.2d 44, 48 (Minn.

1982).3 There is no indication that J.M.’s shoplifting involved dishonesty and therefore


2
  J.M. was over 18 years old at the time of these charges. Therefore, statute and the rules
of evidence regarding juveniles do not specially prohibit evidence of these charges. See
Minn. R. Evid. 609(d) (“Evidence of juvenile adjudications is not admissible under this
rule unless permitted by statute or required by the state or federal constitution.”); Minn.
Stat. § 260B.245, subd. 1(a) (2014) (“The disposition of the child or any evidence given
by the child in the juvenile court shall not be admissible as evidence against the child in
any case or proceeding.”).
3
  Darveaux held that a misdemeanor shoplifting conviction is inadmissible under Minn.
R. Evid. 609(a)(2), which permits evidence that a witness has been convicted of a crime
involving dishonesty or a false statement, regardless of the punishment. 318 N.W.2d at
48. Here, the district court apparently applied rule 609(a) when it reasoned that J.M.’s
thefts were inadmissible because they were misdemeanors that did not result in a

                                              10
the district court did not abuse its discretion by precluding cross-examination about that

incident.

         While the license plate theft more easily fits into a dishonest act, we conclude that

it had little probative value in informing the jury about J.M.’s propensity for truthfulness

regarding her testimony about Michalec’s criminal sexual conduct. Therefore, the district

court did not clearly abuse its discretion by prohibiting cross-examination about this

theft.

Lifetime Conditional Release

         Michalec finally argues that his conditional-release period must be reduced to 10

years because his third-degree criminal-sexual-conduct conviction does not result in a

lifetime conditional release. Subsequent to briefing, the Minnesota Supreme Court issued

State v. Nodes, 863 N.W.2d 77 (Minn. 2015). Nodes had pleaded guilty to two counts of

criminal sexual conduct arising from separate behavioral incidents and involving separate

victims. Id. at 78. The supreme court explained that:

                        [u]nder the statutory definition, an offender has a
                “prior sex offense conviction” if the offender was convicted
                of committing a sex offense before the offender has been
                convicted of the present offense, regardless of whether the
                offender was convicted for the first offense before the
                commission of the present offense, and the convictions
                involved separate behavioral incidents. By contrast, the
                definition of the phrase “previous sex offense conviction”
                requires that the offender be “convicted and sentenced for a
                sex offense before the commission of the present offense.”




conviction. However, the exclusion of these thefts under rule 609(a) does not prohibit
rule 608(b) from applying.

                                              11
Id. at 80 (quoting Minn. Stat. §609.3455, subd. 1(f),(g)). The supreme court held “that

the definition of ‘prior sex offense conviction’ in Minn. Stat. § 609.3455, subd. 1(g),

unambiguously includes a conviction for a separate behavioral incident entered before a

second conviction, whether at different hearings or during the same hearing.” Id. at 82.

       Here, Michalec was convicted of two separate counts of criminal sexual conduct

that involved two separate behavioral incidents. Although the counts involved very

similar conduct and the same victim, this does not distinguish his case from Nodes.

Therefore, under Nodes, Michalec was properly sentenced to a lifetime conditional-

release period.

       Affirmed.




                                            12
