                         This opinion will be unpublished and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
                                    A15-1686

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Douglas Thomas Deitering,
                                       Appellant.

                                 Filed August 15, 2016
                                       Affirmed
                                      Ross, Judge

                            Hennepin County District Court
                              File No. 27-CR-13-25356

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

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

James M. Ventura, Wayzata, Minnesota; and

Jesse P. Oelfke, Carver, Minnesota (for appellant)


      Considered and decided by Johnson, Presiding Judge; Ross, Judge; and

Stauber, Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       Douglas Deitering faced a second-degree burglary charge for entering his former

paramour’s house and stealing or mutilating her bras, blouses, and panties. Deitering

claimed during his bench trial that the damaged clothes found in his house were part of a

planned erotic photoshoot that he and the victim had contemplated and that he never

entered her home without permission. The district court deemed Deitering’s assertions

incredible and found him guilty. Deitering argues on appeal that the district court erred by

excluding evidence of a sex tape featuring him and the victim, an email exchange between

the two, and photographs of the victim in her underwear. He also argues that his trial

counsel was ineffective for not requesting a separate hearing on the state’s motions in

limine regarding that evidence. Because the district court did not abuse its discretion by

prohibiting the proffered evidence and because the allegedly deficient representation had

no possible bearing on the outcome, we affirm.

                                           FACTS

       The state charged Douglas Deitering with second-degree burglary after H.H.

reported that he entered her Minnetonka house without permission, stole clothing from

inside, and cut holes in clothing that he stole and in other clothing that he left behind.

       According to the state’s trial evidence, Deitering and H.H. were separately married,

next-door neighbors who began a lengthy sexual affair around 2006. H.H. decided to end

the sexual nature of the relationship sometime before July 2013, but the two continued to

maintain a friendship, communicating socially in person and by email. Deitering repeatedly


                                              2
attempted to rekindle the sexual relationship, but H.H. began seeing another man, J.Y.

Deitering learned about J.Y. when he saw J.Y.’s phone number on H.H.’s telephone, and

he confronted H.H., who told him that J.Y. was just a business caller.

       The state also presented evidence that on July 31, 2013, H.H. severed her

relationship with Deitering entirely. Deitering had moved to Eden Prairie, and H.H. met

Deitering at his new home and told him that she wanted him out of her life. Three days

later, in the early morning of August 3, H.H. was in bed at J.Y.’s home when she and J.Y.

were awakened by noises outside. It was Deitering. He pounded on the door and yelled at

J.Y. to send H.H. outside. J.Y. dialed 9-1-1 and asked for help. Police arrived to discover

that Deitering had slashed the tires on H.H.’s car and scraped a message into the driver’s

side, “I cheat on my husband.” Police found Deitering nearby and arrested him. Police also

searched his car, finding utility knives, a black ski mask, binoculars, and two cut pieces of

tan, nylon fabric.

       H.H. returned to her own home later that day and discovered that someone had been

inside. She found that most of her bras and panties were missing, and so were several of

her dresses. A few remaining bras and blouses had been cut, leaving holes in the breast

area. H.H. called police and reported the intrusion and vandalism, suspecting Deitering.

There were no signs of forced entry, and Deitering knew the access code to H.H.’s garage.

Police executed a search warrant at Deitering’s house and discovered many articles of

H.H.’s clothing inside his gun safe—dresses, bras, and panties. Some of the clothing had

been haphazardly cut to leave exposing holes in the breast and crotch areas. Police found




                                             3
pieces of fabric corresponding to the excised garments that police had recovered from

H.H.’s home.

       Deitering testified to counter the state’s incriminating account. He told the court that

his sexual relationship with H.H. had lasted until August 2, 2013. He claimed that several

times during their affair H.H. had posed for him wearing lingerie. He said that on July 31

she met him at his home so he could photograph her. According to Deitering, H.H. brought

bags of lingerie with her and spent the morning cutting sexually revealing holes in the

clothing and modeling them while he took pictures. Deitering asserted that they had sex

and that H.H. left at about noon for a meeting. In her haste, he said, H.H. mistakenly took

a bag of her cut-up clothing with her. Deitering then put the remaining clothes in his gun

safe so that his children would not find them. Deitering admitted to vandalizing H.H.’s car,

but he denied entering her home and stealing or mutilating her clothes.

       The district court considered the competing stories and rejected Deitering’s. It found

him guilty of second-degree burglary and denied his motion for a new trial.

       Deitering appeals.

                                      DECISION

                                              I

       Deitering argues that the district court erred by excluding evidence supporting his

version of the events, depriving him of his rights to present a complete defense, to confront

witnesses against him, and to a fair trial. Evidentiary rulings fall within the discretion of

the district court. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). An appellant

challenging an evidentiary ruling bears the burden of showing that the district court abused


                                              4
its discretion and that its ruling unfairly prejudiced his defense. Id. When a district court

incorrectly excludes evidence in violation of the defendant’s constitutional rights, the

verdict must be reversed if “there is a reasonable possibility that the verdict might have

been different if the evidence had been admitted.” State v. Graham, 764 N.W.2d 340, 351

(Minn. 2009) (quotation omitted). We apply this standard to the evidence that Deitering

tried unsuccessfully to admit, which was a video recording of him and H.H. having sex,

photographs of H.H. wearing lingerie, and email correspondence between them.

Sex Tape

       Deitering tried to enter into evidence a video recording that he says was filmed in

April 2013 and features him and H.H. having sex. The district court declared the video

irrelevant and unduly prejudicial, suspecting that it was being offered only to shame H.H.

       We reject as meritless Deitering’s argument that the video was relevant to show that

his sexual relationship with H.H. lasted until the time of the burglary. Evidence must be

relevant to be admissible. Minn. R. Evid. 402. Evidence is relevant if it has “any tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401.

Even relevant evidence may be excluded if it is merely cumulative. Minn. R. Evid. 403.

Both parties agreed that Deitering and H.H. were previously engaged in a sexual

relationship, so the video is either irrelevant or unnecessarily cumulative on that fact. And

it is similarly irrelevant or unnecessarily cumulative as to when the sexual relationship

ended, because the district court found that the relationship ended at least by July 2013,

which is three months after Deitering claims the video was recorded. The recording adds


                                             5
nothing to the fact that the district court already found—that Deitering and H.H. had a

sexual relationship that ended before the burglary.

January to March 2013 Emails

       The district court ruled that certain emails were hearsay and irrelevant. Deitering

and H.H. exchanged the emails between January and March 2013, discussing marital

issues, health problems, and their relationship. Deitering argues that admitting the emails

would have allowed him to impeach H.H.’s testimony as to when their relationship ended.

H.H. testified that her affair with Deitering ended about a year and a half before the August

2013 burglary, but then she conceded that they might have had sex after that. A prior

inconsistent statement that was not delivered under oath may be admitted for the purpose

of impeachment. State v. Thames, 599 N.W.2d 122, 125 (Minn. 1999); Minn. R. Evid. 613.

We have reviewed the emails and do not find anything in them clearly inconsistent with

H.H.’s trial testimony or with the district court’s findings. The email exchange, like the sex

tape, occurred during a time that the district court found the relationship to be still ongoing.

The emails were therefore irrelevant or needlessly cumulative.

Photographs of H.H.

       The district court refused to admit a series of undated photographs showing H.H.

wearing bras and panties, rejecting Deitering’s contention that the photographs supported

the allegedly planned clothing-cut-out photoshoot. See Minn. R. Evid. 404(b). The district

court found the photographs irrelevant and unduly prejudicial. We are not persuaded to

reverse by Deitering’s argument that the photographs depict the “exact situation” of his

proffered defense that he and H.H. were planning a “sexy” photoshoot involving garments


                                               6
with the breast and crotch areas excised. The proffered photographs do not include

underwear with cutouts. They do not make his argument any stronger, and they certainly

do not depict the “exact situation” as the supposedly planned photoshoot that he described.

The district court did not abuse its discretion by excluding the photos.

                                             II

       Deitering argues that his trial counsel gave him ineffective assistance by failing to

request a hearing on the state’s motions in limine to exclude the same evidence that we

have just held to be either irrelevant or needlessly cumulative. To succeed on this argument,

Deitering must show both that his trial counsel provided objectively deficient

representation and that but for the deficiency the evidentiary decision and the trial would

have come out differently. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

Deitering does not explain how a full hearing would have resulted in a different evidentiary

decision or how admitting the evidence would have prompted a different verdict. Because

the underlying evidence is at best cumulative and would, at most, merely corroborate the

fact-findings the district court already made, the second element of the constitutional

argument fails. So even assuming Deitering could establish that any minimally competent

attorney would have sought and secured a hearing on the motions, he cannot prevail on his

ineffective-assistance-of-counsel claim.

       Affirmed.




                                             7
