                          This opinion will be unpublished and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
                                     A15-1662

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                               Frederick Raymond Couch,
                                       Appellant.

                                Filed December 19, 2016
                                        Affirmed
                                      Jesson, Judge

                             Hennepin County District Court
                               File No. 27-CR-14-27906

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, 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 Ross, Presiding Judge; Schellhas, Judge; and Jesson,

Judge.
                         UNPUBLISHED OPINION

JESSON, Judge

       Appellant Frederick Raymond Couch argues that the district court committed

reversible error by admitting evidence of his relationship with a former girlfriend and that

the district court erred when it entered convictions and imposed sentences on counts of

both third-degree criminal sexual conduct and a pattern-of-stalking conduct. Because the

district court did not abuse its discretion in admitting the relationship evidence under

Minnesota Statutes section 634.20 (2014) and because third-degree criminal sexual

conduct is not a lesser-included offense of a pattern-of-stalking conduct, we affirm.

                                         FACTS

       In August 2014, the victim, J.A., moved from Texas to Minnesota, where she lived

with her three children, mother, aunt, uncle, and grandfather. Shortly thereafter, J.A. met

appellant Frederick Raymond Couch online, and the two began dating. During the

relationship, they texted each other daily, met at J.A.’s house, discussed “normal, everyday

things,” and had sex. Couch mainly visited J.A. at her house, and they did not do much

outside of his visits. J.A. considered him a boyfriend.

       The relationship was short-lived. After a month, J.A. tried to end the relationship

after her uncle expressed concerns about Couch. Despite her attempt to end contact with

him, Couch continued calling and texting J.A., as well as driving by her house.

       On September 4, 2014, Couch knocked on J.A.’s bedroom window, asking her to

bring him food. She brought him food outside, but he did not like it and flipped the plate

into J.A.’s face. Couch began walking away, but he turned around and hit J.A. in the face


                                             2
with his fist. After an ensuing argument, he put his hands down J.A.’s pants and digitally

penetrated her. As J.A. turned to go inside her house, Couch grabbed her from behind,

picked her up, and choked her, telling her he wanted to have sex outside. J.A. testified that

she told him she did not want to have sex, but then did have sex with Couch because “he

was gonna [sic] make good on his threats.”

       That evening, J.A.’s mother called the police because she heard a commotion and

saw red marks across J.A.’s face. The police arrived shortly after the call. J.A. told the

police that Couch punched and choked her. But she did not tell the police about the sexual

conduct because she did not want her mother to hear about it. Later that night, Couch

threatened to return to the house and burn it down; the police were called again. The next

day, J.A. obtained an order for protection against Couch. Despite the order, Couch

continued to communicate with J.A.

       On September 19, Couch knocked on J.A.’s bedroom window and requested that

she come outside. J.A.’s mother called the police and Couch was arrested. At that point,

J.A. told police that Couch raped her on September 4. Couch was charged by amended

complaint with third-degree criminal sexual conduct, stalking, pattern-of-stalking conduct,

domestic assault by strangulation, and domestic assault.

       At trial, over defense counsel’s objection, the district court admitted evidence of

Couch’s previous domestic conduct in a relationship he had with H.M.1 Couch and H.M.’s

relationship was also short-lived. H.M. met Couch online and they dated for a few weeks


1
  The district court also gave limiting instructions before the evidence was presented and
in jury instructions.

                                             3
in June 2014. H.M. thought that Couch was nice and considered him a boyfriend. They

spent time at her home, as well as Couch’s sister’s house. They had sex at her home.

       H.M. testified that when Couch was drinking, he was often rude and angry. He hit

her in the face with an open hand. A few days later, Couch returned, again hit H.M. with

his open hand and, as she fell on the bed, held her down and sexually penetrated her against

her will. Four days later he returned, forced his way into her apartment, and choked her.

He left and slashed her car tires.

       Couch did not testify at trial. He was found guilty of all charges and sentenced to

135 months in prison on the conviction of third-degree criminal sexual conduct and 43

months on the conviction of a pattern-of-stalking conduct, to be served concurrently. This

appeal follows.

                                     DECISION

       I.     The district court properly admitted evidence of Couch’s abuse of H.M.
              as relationship evidence under Minnesota Statutes section 634.20.

       Couch challenges the district court’s admission of H.M’s testimony as relationship

evidence under Minnesota Statutes section 634.20. Under that statute, the district court

may admit “[e]vidence of domestic conduct by the accused against the victim of domestic

conduct, or against other family or household members,” provided that certain conditions

are met. Minn. Stat. § 634.20. Relationship evidence is 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.




                                             4
Matthews, 779 N.W.2d 543, 549 (Minn. 2010).2 Thus, such evidence is admissible if its

probative value is not substantially outweighed by 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). 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).

      A. H.M. qualifies as a family or household member under Minnesota Statutes
         section 634.20.

       Couch argues that the district court erred by admitting evidence of H.M.’s abuse

because she does not qualify as his “family or household member,” as their relationship


2
  Relationship evidence is treated 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 it 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,
490-91, 139 N.W.2d 167, 169 (1965). Section 634.20 “allows much more latitude” than
the exceptions in rule 404(b). State v. Word, 755 N.W.2d 776, 784 (Minn. App. 2008).

                                               5
was not significant. A family or household member includes a “person involved in a

significant romantic or sexual relationship.” Minn. Stat. § 634.20; Minn. Stat. § 518B.01,

subd. 2(b)(7) (2014). To determine whether there is a significant relationship, courts may

consider the following: length of time of the relationship, type of relationship, frequency

of interaction between parties, and the length of time since termination (if terminated).3

Minn. Stat. § 518B.01, subd. 2(b).

       Couch and H.M. had a two-week relationship where they talked, texted, saw each

other on several occasions in different locations, and had sexual intercourse an unspecified

number of times. H.M. thought of Couch as her boyfriend. Couch argues that his

relationship with H.M. could not be called significant because the relationship only lasted

two weeks, they mostly visited at H.M.’s apartment, and only occasionally had sex. There

is no evidence that their feelings were deep enough to qualify as love, Couch contends, and

a short-lived sexual relationship should not qualify as significant.

       But when determining whether a relationship is significant, we need not ascertain

whether the parties loved each other. Rather, we look at the frequency of interaction and

length and type of relationship. We also consider the length of time since termination.

Here, given the sexual nature of the relationship and the fact that H.M. considered Couch

her boyfriend, the relationship was intimate. And the pair saw each other frequently, albeit



3
  Couch does not argue that the district court failed to consider the four statutory factors to
determine whether the former relationship qualifies as a significant romantic or sexual
relationship. Cf. Sperle v. Orth, 763 N.W.2d 670, 675 (Minn. App. 2009) (requiring a
district court to consider the statutory factors to determine whether a relationship is
significant under the Domestic Abuse Act when issuing orders for protection).

                                              6
over a short period of time.     Finally, there was less than two months between the

termination of the relationship with H.M. and the relationship with J.A and less than one

year between H.M.’s relationship with Couch and her testimony at trial.

       In State v. Valentine, we allowed evidence of domestic abuse by the defendant

against his other girlfriend. We did so because evidence showing how a defendant treats

his family or household members, including other girlfriends, “sheds light on how the

defendant interacts with those close to him, which in turn suggests how the defendant may

interact with the victim.” 787 N.W.2d 630, 637 (Minn. App. 2010), review denied (Minn.

Nov. 16, 2010). To hold a relationship with a former girlfriend, H.M., to a higher standard

in terms of the frequency of interaction and length and type of relationship than his

relationship with J.A.—when the two relationships were strikingly similar—would defeat

the goal of relationship evidence: to shed light on how the defendant interacts with those

close to him.

       The district court did not err by concluding that evidence of H.M.’s prior abuse was

relationship evidence with respect to Couch’s abuse of J.A.

      B. The district court did not abuse its discretion in concluding that the probative
         value of the evidence was not outweighed by its unfair prejudice.

       Couch argues that even if evidence concerning H.M.’s abuse qualifies as

relationship evidence, it was improperly admitted because its probative value was

outweighed by its prejudicial effect. A prejudicial effect refers to unfair prejudice, not

merely damaging evidence or even severely damaging evidence. State v. Meyer, 749




                                            7
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.

       Couch argues that the state did not need 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.” Id. (quotation omitted). Couch points out that the

rationale for admitting relationship evidence stems from the concern that domestic abuse

cases often are difficult to prosecute due to the private nature of the actions and the abuser’s

assertion of control. This concern is not present here, he contends, because J.A. was not a

reluctant witness.

       J.A. testified, as did her mother, her aunt and uncle, and the investigating police

officer. But the abuse did occur in private. And while J.A.’s mother called the police when

she saw a red and purple mark across J.A.’s face, J.A. did not tell the police about the

nonconsensual sex until 15 days after the initial police interview. J.A. was questioned on

cross-examination about her failure to immediately report the sexual conduct to the police

that evening. And in closing arguments, Couch’s attorney strongly argued that the criminal

sexual conduct was not proved, pointing to the lack of physical evidence. The relationship

evidence of conduct against H.M. could have assisted the jury in weighing the credibility

of J.A.’s allegations, particularly given the delayed reporting and lack of a sexual assault

examination.

       Whether this probative value is outweighed by any prejudicial effect is a closer

issue. But we review only for an abuse of discretion, not to see whether we would reach a

different result. In this case, the prejudicial effect of the relationship evidence was lessened


                                               8
because the district court twice gave cautionary instructions to the jury. Those instructions

informed the jury that the evidence was being submitted for the limited purpose of assisting

the jury to determine whether Couch committed the charged offense, it was to be used to

demonstrate the nature and extent of his relationship with H.M., the jury was not to convict

Couch of any other offense, and it was not to convict him on the basis of any occurrence

against H.M.4 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). Furthermore, in its closing argument, the state’s reference to

the relationship evidence was very brief and reminded the jury not to convict Couch based

on his actions against H.M.5

       We conclude that, on this record, the probative value of the relationship evidence is

high because it “sheds light on how the defendant interacts with those close to him, which

in turn suggests how the defendant may interact with the victim.” Valentine, 787 N.W.2d

at 637. And given the district court’s cautionary instructions, the danger of unfair prejudice




4
  These instructions follow the appropriate pattern jury instructions when a party introduces
relationship evidence under section 634.20. See 10 Minnesota Practice CRIMJIG 2.07
(2015).
5
  We would be more concerned about potential prejudice from this relationship evidence if
Couch’s abuse of H.M. were more frequent or more violent than that involving J.A. That
was not the case here. The situations were remarkably similar.


                                              9
is reduced. Accordingly, the district court properly exercised its discretion by admitting

the relationship evidence.

       II.    The district court did not commit reversible error when it imposed
              sentences on both the criminal sexual conduct and the pattern-of-
              stalking convictions because the former is not a lesser-included offense
              of the latter.

       The district court entered convictions on Couch’s third-degree criminal sexual

conduct offense and his pattern-of-stalking-conduct offense and sentenced him to

concurrent sentences of 135 months on his conviction of third-degree criminal sexual

conduct and 43 months on his conviction of a pattern-of-stalking conduct. The sentences

are to be served concurrently. Couch argues that this amounts to error because third-degree

sexual conduct is a lesser included offense of pattern-of-stalking conduct. There were no

objections on this ground at sentencing. But this court may correct an illegal sentence at

any time. Minn. R. Crim. P. 27.03, subd. 9.

       In Minnesota, a person may only be convicted of “either the crime charged or an

included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2014). The legislature has

defined a lesser-included offense as:

              1) A lesser degree of the same crime; or
              2) An attempt to commit the crime charged; or
              3) An attempt to commit a lesser degree of the same crime; or
              4) A crime necessarily proved if the crime charged were proved; or
              5) A petty misdemeanor necessarily proved if the misdemeanor charge were
                 proved.
Id.

       Criminal sexual conduct is not a lesser degree of pattern-of-stalking conduct. See

Minn. Stat. § 609.749, subd. 5. There is no crime for an “attempt” to commit a pattern-of-



                                            10
stalking conduct. See id.; Minn. Stat. § 609.17 (2014) (explaining that whoever intends to

commit a crime and does an act, which is a substantial step toward the commission of that

crime, is guilty of an attempt to commit that crime). Nor is there a corresponding petty

misdemeanor, compare Minn. Stat. § 609.02, subd. 4a (2014) (defining a petty

misdemeanor as an offense prohibited by statute, which does not constitute a crime and for

which a sentence of a fine not more than $300 may be imposed), with Minn. Stat.

§ 609.749, subd. 5 (making a pattern-of-stalking-conduct conviction a felony). Therefore,

third-degree criminal sexual conduct will only be a lesser-included offense if it is

“necessarily proved” when a pattern-of-stalking conduct is proved. Minn. Stat. § 609.04,

subd. 1(4).

       To determine whether one offense is necessarily proved by another, the court must

look at statutory definitions, not the facts of the particular case. State v. Gisege, 561

N.W.2d 152, 156 (Minn. 1997); State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982).6 A person

is guilty of a pattern-of-stalking conduct if he or she engages in two or more criminal acts

within a five-year period, toward a single victim or members of a single household, which

the actor knows or has reason to know would cause the victim to feel terrorized or fear

bodily harm, and the conduct causes this reaction. Minn. Stat. § 609.749, subd. 5(a). The

state need not prove each criminal act beyond a reasonable doubt for the act to constitute

an act for a pattern-of-stalking-conduct conviction. See id., subd. 5(b) (the state must show


6
 We note that this analysis differs from the single-behavioral-incident determination under
Minnesota Statute 609.035 (2014), which is based on the particular facts of the case. Here,
Couch does not argue that the district court erred in sentencing because his conduct
constituted a single behavioral incident.

                                             11
that a defendant did “violate or attempt to violate” the enumerated offenses to constitute a

criminal act under this statute). In contrast, to be convicted of third-degree criminal sexual

conduct, there must be intentional sexual penetration through use of force or coercion.

Minn. Stat. § 609.344, subd. 1(c) (2014).         Consequently, because intentional sexual

penetration is not “necessarily proved” when a pattern-of-stalking conduct is proved,

criminal sexual conduct in the third degree is not a lesser-included offense of pattern-of-

stalking conduct. The district court’s imposition of concurrent sentences for the two

convictions was within the court’s discretion.

       Affirmed.




                                             12
