                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1910

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Ernest Henry Chouinard,
                                        Appellant.

                                Filed December 15, 2014
                                       Affirmed
                                      Ross, Judge

                               Dakota County District Court
                               File No. 19HA-CR-12-3406

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

James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County
Attorney, Heather D. Pipenhagen, Assistant County Attorney, Hastings, Minnesota (for
respondent)

Max A. Keller, Lexie D. Stein, Keller Law Offices, Minneapolis, Minnesota (for
appellant)


         Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,

Judge.
                        UNPUBLISHED OPINION

ROSS, Judge

      The state accused Ernest Chouinard of getting into a sleeping seven-year-old girl’s

bed and rubbing her vagina, and a jury convicted him of second-degree criminal sexual

conduct. Before trial, the district court announced that it would allow the state to

introduce evidence that, shortly before Chouinard entered the girl’s bedroom, he made

comments to a neighbor about wanting to have sex with the neighbor’s 13-year-old

daughter. The district court denied Chouinard’s request to admit evidence that the seven-

year-old victim had been previously sexually abused by her brother. Chouinard appeals

his conviction, challenging the district court’s decision to admit his pre-assault sexual

comments but not to admit the girl’s sex-abuse history. He also maintains that the victim

was an incompetent witness and that the evidence was insufficient to convict him.

Because none of Chouinard’s arguments identifies any abuse of discretion or legal error,

we affirm.

                                        FACTS

      The mother of seven-year-old K.M. reported to Rosemount police that house guest

Ernest Chouinard had sexually abused K.M. during the previous night. K.M. told police

that Chouinard came into her bedroom while she slept, lay in her bed, and rubbed her

vagina. Dakota County charged Chouinard with second-degree criminal sexual conduct.

      The state disclosed that it intended to present Spreigl evidence indicating that,

within two hours before Chouinard entered K.M.’s bedroom, he made comments to a

neighbor that he wanted to have sex with her 13-year-old daughter. The neighbor testified


                                           2
during a hearing that Chouinard was visiting in her home and drinking alcohol at about

2:30 a.m. when he became belligerent. She asked Chouinard to leave, and he did not.

During the altercation he told her that if he did not “f - - k” her 13-year-old daughter now,

he would “have her before she turned 17.” She called the police, who arrived and cited

Chouinard for trespassing.

       The district court determined that Chouinard’s statements to the neighbor were

admissible. It found specifically that Chouinard told her “that he would ‘f - - k’ her

daughter now, when she was 13, or have her before she was 17.” The district court

reasoned that this evidence was permitted under evidentiary rule 404(b) because it

showed corpus delicti (the doing of the act charged), intent to have sex with a minor, and

a common scheme or plan.

       Chouinard disclosed that he intended to introduce evidence that K.M. had

previously been sexually abused by her older brother. He maintained essentially that this

evidence would support his theory that the prior abuse had left K.M. so hypersensitive to

potential abuse that she misinterpreted his allegedly appropriate touching to be

inappropriate, sexually abusive touching. The district court was not persuaded and it held

the prior-abuse evidence inadmissible.

       K.M. testified at trial. She became openly emotional and cried. She needed two

breaks during her direct examination and one during her cross-examination. She testified

that Chouinard put his hand on her “down-there section,” which she described through

questioning to be her vagina. She demonstrated for the jury what Chouinard did with his

hand, placing “her right hand on her left hand, both palms down, and [making] a rubbing


                                             3
motion with it.” K.M. said that this rubbing made her feel uncomfortable. In addition to

K.M.’s live testimony, the jury heard recorded interviews of K.M. with a police officer

and a social worker. In both interviews, K.M. relayed that Chouinard had rubbed her

vaginal area.

       K.M.’s older sister also testified. She told the jury that she heard Chouinard and

K.M. talking and came into the bedroom to find Chouinard lying shirtless in K.M.’s bed

and K.M. angrily demanding that he get out.

       Chouinard testified on his own behalf. His testimony vacillated. He first told the

jury that he had gone upstairs to take a shower, and then he told the jury that he had gone

upstairs to check on K.M. He claimed that after he saw K.M. in bed he kissed her on the

head. When asked whether he touched K.M. “anywhere on her body,” Chouinard said,

“No.” But he later answered, “Yes, it’s possible,” when asked if it was “possible [his]

hand may have touched part of her body.” He added later, “I mean, she was squirming . .

. . I may have touched her, who knows?” He answered, “I don’t know about that,” when

asked directly if it was possible that he touched her vagina, but then he denied that he

touched her “anywhere that [he] should not be touching [K.M.].”

       The jury found Chouinard guilty of second-degree criminal sexual conduct.

Chouinard appeals from his conviction.

                                     DECISION

       Chouinard first challenges the district court’s decision to admit evidence of

Chouinard’s statements to K.M.’s neighbor about his interest in having sex with her 13-

year-old daughter within two hours before his assault of K.M. Evidence of a defendant’s


                                            4
prior bad acts, known as Spreigl evidence, cannot be admitted to prove character or that

the defendant acted consistent with his character. Minn. R. Evid. 404(b); State v. Spreigl,

272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). But the district court may admit it for

other purposes, such as “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). The district court has

discretion whether to admit Spreigl evidence. State v. Ness, 707 N.W.2d 676, 685 (Minn.

2006).

         Chouinard contends that the district court abused its discretion by failing to find

exactly the words Chouinard uttered about the 13-year-old. The district court could admit

the statement if it was proved by clear and convincing evidence that Chouinard made the

statement. See Id. at 685–86. Whether the statement is probative of something other than

character, such as intent or state of mind, is a question of law. The record

overwhelmingly establishes that Chouinard made the statement. But Chouinard maintains

that an ambiguity nevertheless renders the statement inadmissible.

         It is true that the district court’s characterization of Chouinard’s crude comments

is somewhat ambiguous. After receiving and weighing the evidence of Chouinard’s

comments, the court concluded, “While the exact working is not precise, it can be said by

clear and convincing evidence that the Defendant did tell [the neighbor] that he wanted to

‘f - - k’ her 13 year old daughter at the time or when she was older.” One might logically,

but only by straining, read this finding as Chouinard interprets it: he said either one of

two things, but not both. That is, he argues that the district court found either that he said

that he wanted to have sex with the 13-year-old girl at that time, or that he said that he


                                              5
wanted to have sex with the girl but only after she got older. Chouinard maintains that the

statement that he wanted to have sex with the girl only after she grew older is not

probative of any intent or plan to have sex with the much younger K.M. and that the

district court’s inability to rule out the possibility that this was the actual statement

renders its admission of the evidence an abuse of discretion.

       We reject Chouinard’s argument. We first dismiss his strained interpretation of the

finding. We do so by observing that the finding arises from testimony that strongly

suggests that the district court did not find that Chouinard either said that he wanted to

have sex with the young child or said that he wanted to have sex with the child only after

she grew older. The neighbor’s testimony informs us that the district court found that

Chouinard was stating that he intended to have sex with the young girl either at the time

he made the statement or later after she aged. In other words, the district court found that

Chouinard expressed his sexual interest as a now-or-later disjunctive proposition. But our

holding does not rest on this observation. Under any interpretation (including

Chouinard’s), the statement evidences the disturbing relevant fact that, shortly before his

contact with the victim child, Chouinard, a 37-year-old man, was sexually aroused by a

13-year-old girl. For our purposes, it does not matter whether Chouinard was expressing

that he wanted to act at the time he made the statement or that he wanted to act at a later

date when sex with the girl might not constitute second-degree criminal sexual conduct.

The point is that Chouinard’s statement proves that within two hours before he climbed

shirtless into bed with one young girl, he had become sexually aroused by another young

girl. The statement evidences Chouinard’s extant pedophilic stimulation and his express


                                             6
desire to act on that stimulation at some point. It does not matter at what point he was

saying he would act; what matters is that he was sexually aroused by a child. We

therefore have no difficulty holding that the statement is probative of Chouinard’s

sexually charged state of mind shortly before he entered K.M.’s bedroom. The district

court did not abuse its discretion by admitting the Spreigl evidence. We observe that the

evidence might also be admissible immediate-episode evidence. See State v. Riddley, 776

N.W.2d 419, 425 (Minn. 2009) (explaining immediate-episode evidence).

       Chouinard also argues that the district court abused its discretion by denying his

request to admit evidence of K.M.’s alleged prior sexual abuse. Even if the rape-shield

law would otherwise prevent it, evidence of a victim’s past sexual conduct may be

admissible when excluding the evidence would infringe the defendant’s constitutional

right “to due process, his right to confront his accusers, or his right to offer evidence in

his own defense.” State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986). But Chouinard

does not coherently explain how the prior-sex-abuse evidence would have supported his

defense, and we are convinced it could not have. He speculates that the evidence would

have helped him show how the “oversensitive” K.M. must have misinterpreted what his

appellate counsel calls “an accidental pat to the midsection.” But his trial counsel made

no offer of proof tending to show that a child victim of sexual abuse is likely to confuse

an innocent touch with a sexual touch. And more difficult for Chouinard’s argument,

even if he had made such an offer of proof, any error in excluding the evidence is

harmless beyond any reasonable doubt. This is because K.M. testified and demonstrated

that Chouinard put his hand on her vagina and rubbed. The jury believed K.M.’s


                                             7
testimony, necessarily rejecting Chouinard’s assertion that he engaged in conduct that

might be construed as an accidental pat. The district court’s failure to allow evidence to

support the speculative theory that sexual assault victims might confuse accidental pats

with sexual touching therefore had no bearing on the guilty verdict here. The district

court acted well within its discretion by rejecting Chouinard’s argument and refusing to

admit the prior-abuse evidence.

       Chouinard’s next contention has even less merit. He maintains that the district

court was obligated sua sponte to stop the trial and initiate a hearing to test K.M.’s

competence as soon as it observed her break down emotionally during her testimony.

Chouinard fails to provide any legal standard for this supposed obligation. He bears the

burden of providing one, and we will not supply one for him. See Minn. R. Civ. App. P.

128.02, subd. 1(d). We are confident that, if there is such a standard, the district court did

not fail to meet it by not challenging the competency of a child sex-abuse victim after she

wept when asked about her assailant and what he did to her. When pressed, Chouinard’s

counsel acknowledged during oral argument on appeal that one could reasonably infer

from K.M.’s courtroom conduct not that she was incompetent but that she was distraught.

       Given that Chouinard’s indirect challenges to the district court’s evidentiary

rulings do not persuade us, we also hold that sufficient evidence supports Chouinard’s

conviction of second-degree criminal sexual conduct. A victim’s testimony alone is

sufficient to support a conviction. Minn. Stat. § 609.347 (2012); State v. Johnson, 679

N.W.2d 378, 387 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004). K.M.

testified unambiguously that Chouinard, who had just expressed his interest in young


                                              8
girls, got into her bed and fondled her sexually. The evidence supports the verdict, and

we affirm the conviction.

      Affirmed.




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