State v. Zephier

• Decision Date: 31 January 2022
• Docket Number: A20-0757
• Parties: State of Minnesota, Respondent, v. Marcel Dylan Zephier, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent,
v.
Marcel Dylan Zephier, Appellant.

No. A20-0757

Court of Appeals of Minnesota

January 31, 2022

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Redwood County District Court File No. 64-CR-19-501

Keith Ellison, Attorney General, St. Paul, Minnesota; and Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota; and Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and Jesson, Judge.

OPINION

JOHNSON, JUDGE

A Redwood County jury found Marcel Dylan Zephier guilty of two counts of first-degree criminal sexual conduct based on evidence that he sexually abused a nine-year-old

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girl. We conclude that the district court did not err by admitting into evidence a video-recording and transcript of a forensic interview of the complainant or by admitting into evidence expert testimony concerning delayed reporting by victims of sexual abuse. We also conclude that Zephier is not entitled to a new trial on the grounds of prosecutorial misconduct. We further conclude that the post-conviction court did not err by denying, without an evidentiary hearing, Zephier's claim that his trial attorney provided him with ineffective assistance of counsel. Therefore, we affirm.

FACTS

In April 2019, 17-year-old B.H. confided to a staff member of a girls' group home that, when she was nine years old, she was sexually abused by Zephier. The group home reported the information to an officer of the Lower Sioux Indian Reservation Police Department, who arranged for a forensic interview of B.H. During the interview, B.H. stated that, on the day in question, she went to her uncle's home. Zephier answered the door and told her that her cousins were in a back room. As she and Zephier walked toward the back room, Zephier pulled her into his bedroom. B.H. told the interviewer that she was afraid and screamed but that no one was present to hear her. She said that Zephier pushed her onto his bed and tried to remove her pants but that she kicked and began to cry. Zephier became frustrated and hit her, swore at her, and told her to stop crying. She stopped kicking but continued to scream and cry. B .H. stated that Zephier inserted his penis into her vagina. When he had finished penetrating her, he forced her to touch his penis with her hands and then told her to get out. During the interview, B.H. stated that Zephier had done similar things to her cousin and to her sister. She stated that the incident involving her sister had

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not previously been reported but that the incident involving her cousin had been the subject of a court proceeding. A police officer later interviewed Zephier, who denied the accusations.

In June 2019, the state charged Zephier with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. §609.342, subd. 1(a), (h)(i) (2010). In December 2019, the state filed a motion in limine to establish the admissibility of expert testimony concerning delayed reporting by sexual assault victims, Spreigl evidence of Zephier's sexual assaults of two other young female cousins, a video-recording and transcript of the forensic interview of B.H., and Zephier's prior charge of domestic assault by strangulation. After a hearing, the district court granted the state's motion with respect to the expert testimony and the Spreigl evidence, denied the motion with respect to Zephier's prior charge, and deferred its ruling with respect to the video-recording and transcript of the forensic interview. The district court stated that it would rule on the admissibility of the forensic interview after B.H. testified at trial.

The case was tried over two days in early January 2020. B.H. was the state's first witness. Her trial testimony was very similar to the statements she had made during the forensic interview. Zephier's trial attorney did not cross-examine her. The state called seven other witnesses, including a group-home staff member, B.H.'s father, and a Lower Sioux Indian Reservation police officer. B.H.'s sister testified that Zephier sexually assaulted her when she was eight or nine years old. The forensic interviewer testified and laid a foundation for the video-recording and transcript of B.H.'s forensic interview. The district court admitted the video-recording and transcript of the forensic interview after

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finding that B.H.'s credibility had been challenged. The prosecutor played for the jury an excerpt of the forensic interview in which B.H. described the sexual assault by Zephier. A law-enforcement officer testified that Zephier previously had sexually assaulted a then-11-year-old cousin, which resulted in a conviction of fifth-degree criminal sexual conduct. The state's final witness was Erica Staab-Absher, who testified as an expert concerning the prevalence of delayed reporting among victims of sexual assault. Zephier did not testify and did not present any other evidence.

The jury found Zephier guilty of both charges. The district court sentenced him to 144 months of imprisonment. Zephier timely filed a notice of appeal. He later moved this court for a stay and a remand so that he could file a petition for post-conviction relief, and this court granted the motion. In November 2020, he petitioned for post-conviction relief and alleged that his trial attorney provided him with ineffective assistance of counsel. In May 2021, the post-conviction court denied his petition without an evidentiary hearing. This court later dissolved the stay and reinstated the appeal.

DECISION

I. Admissibility of Forensic Interview

Zephier argues that the district court erred by admitting into evidence the video-recording and transcript of the forensic interview of B.H. He argues that the evidence should have been excluded on the ground that it is inadmissible hearsay.

Hearsay evidence is defined as an out-of-court statement that is offered to prove the truth of the matter asserted in the statement. Minn. R. Evid. 801(c); State v. Litzau, 650 N.W.2d 177, 182-83 (Minn. 2002). Hearsay evidence generally is inadmissible as

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substantive evidence. Minn. R. Evid. 802; State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999). But some out-of-court statements are not considered hearsay. Minn. R. Evid. 801(d). For example, a prior statement by a witness that is consistent with the witness's trial testimony is considered non-hearsay and, thus, is not inadmissible on hearsay grounds. Minn. R. Evid. 801 (d)(1)(B). The applicable rule provides: "A statement is not hearsay if . .. [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness . . . ." Id. The purpose of rule 801(d)(1)(B) is to allow a party '"to enhance the credibility of a witness and as substantive evidence if the court determines the statements would be helpful in evaluating credibility.'" State v. Farrah, 735 N.W.2d 336, 344 (Minn. 2007) (quoting 11 Peter N. Thompson, Minnesota Practice - Evidence § 801.01 at 439 (3d ed. 2001)). That purpose is not served, however, unless the credibility of the witness has been challenged. See id.; State v. Fields, 679 N.W.2d 341, 347-48 (Minn. 2004); State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997). We apply an abuse-of-discretion standard of review to a district court's ruling on a hearsay objection. State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019).

Zephier contends that B.H.'s credibility was not challenged before the district court admitted the prior consistent statement. The district court expressly stated that B.H.'s credibility had been challenged, "particularly" by Zephier's emphasis on the evidence that she had delayed reporting the incident. In its subsequent post-conviction order, the court reiterated that B.H.'s credibility was challenged in Zephier's opening statement and in his

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trial attorney's questioning of other witnesses. The post-conviction court likely was referring to Zephier's trial attorney's comment in his opening statement that "[t]here are disagreements about what happened, if anything happened." In cross-examining other witnesses, Zephier's trial attorney sometimes asked questions that appear designed to cast doubt on the truthfulness of B.H.'s accusations. Zephier contends that the comment in the opening statement is too general to constitute a credibility challenge for the purposes of rule 801(d)(1)(B). He also contends that, before the district court's ruling, his trial attorney had not raised the issue of B.H.'s delayed report with any witness.

The applicable caselaw indicates that the credibility challenge required by Nunn and subsequent opinions need not be direct or explicit. The circumstances of State v. Bakken, 604 N.W.2d 106 (Minn.App. 2000), rev. denied (Minn. Feb. 24, 2000), are very similar to this case. The appellant was convicted of criminal sexual conduct toward a 13-year-old child, whose interview by a police officer was recorded and later introduced into evidence under rule 801(d)(1)(B). Id. at 108. On appeal, this court noted that the child's credibility had been challenged because the child "was the only witness to present firsthand evidence against Bakken" and, for that reason, the child's credibility "was central to the case." Id. at 109.

In this case, it was similarly obvious-if not more so-that the parties' evidence and arguments were focused on whether B.H.'s testimony was credible. Before trial, the state sought leave to call an expert witness to testify about B.H.'s delay in...