State v. Tscheu

MEYER, Justice

(concurring).

CONCURRENCE

I concur in the affirmance of Tscheu’s conviction but write separately because the majority has incorrectly applied Minnesota’s standard of review for when a conviction is based solely on circumstantial evidence. By giving the State the benefit of *866 all inferences from the evidence, the majority has essentially eliminated our traditional sufficiency review standard. Nevertheless, when properly evaluated under our traditional standard, I would conclude that the evidence was sufficient to establish guilt of the offense of which Tscheu was convicted.

The relevant facts, briefly stated, are these. On February 26, 2005, at around 3:00 p.m., J.B. and two of his children arrived at the Crow Wing County cabin of Bonita Thoms to pick up a camper that he stored on her property. J.B. had called the night before around 6:55 p.m. to let Thoms know he was coming. No one answered, so he left a message. J.B.’s father was Thoms’s second husband, before he passed away some 10 years earlier. When J.B. arrived, he noticed water flowing in the area of the septic system and Thoms’s dog covered with ice crystals. The dog normally stayed inside. After knocking on the door and receiving no answer, J.B. entered the cabin. He heard the shower running and approached the bathroom, calling out Thoms’s name. He opened the bathroom door and saw a foot sticking out of the faucet end of the bathtub. He peeked around the shower curtain and saw Thoms, the shower still running, the bathtub full, and her head mostly submerged under water.

J.B. called 911 and went outside to shovel snow as he waited for assistance. Deputy Donald J. Downie, responding from the sheriffs office located in Brainerd, arrived within an hour, talked to J.B., and then entered the cabin. There was no sign of fresh forced entry, and the lights were off. The deputy entered the bathroom, shut off the shower, which was cold at the time, and drained the bathtub. He noted that the water had been set for a warmer temperature, that the room appeared to have been humid for quite some time and that the floor was wet. Thoms was lying on her right side, nude except for a bra, and her wristwatch was pushed down onto the base of her hand. Her eyeglasses were also in the bathtub.

As the deputy was taking photographs in the area of the body, J.B. told the deputy that he couldn’t find Thoms’s purse or ear keys. The deputy then decided to take photographs of the entire cabin. In the kitchen, on the countertop, there was an angel food ring, a block of pepper jack cheese, two tubs of whipped topping, a sack of puppy chow, and a daily newspaper that appeared to have been unread. The bed in the bedroom was made, and there was no sign of a struggle in the house. The primary source of heat for the cabin was a wood-burning stove in the living room; and because the cabin was chilly, J.B. started a fixe while the deputy was still there. They never found the purse or ear keys. At some point the death investigator arrived, and the body was transported to the morgue in Coon Rapids. The death was considered nonsuspicious, but required further investigation. Meanwhile, J.B. was given permission to spend the weekend at the cabin with his children. While there, they closed the cabin down, draining the water and changing the locks.

On March 1, 2005, the deputy received a preliminary medical examiner’s report concluding that the cause of Thoms’s death was asphyxia from drowning in an undetermined manner. During the autopsy protocol, the medical examiner had conducted a sexual assault examination, according to Bureau of Criminal Apprehension (BCA) procedures, which included clipping the fingernails and taking swabs of the vagina, perineum, and anal cavity, *867 all samples of which were sealed and sent to the BCA. The sheriffs office opened an investigation with BCA assistance, and the decision was made to start “from square one,” canvassing the neighborhood and interviewing friends, relatives, and other people in Thoms’s life. On March 17, 2005, law enforcement interviewed Tscheu, a relative by marriage. Thoms’s third husband was his uncle, one of his uncle’s sons was his best friend, and he had been to the cabin many times. Thoms’s third husband (Tscheu’s uncle) passed away in June 2004. Tscheu told the deputy that he last saw Thoms in August 2004, and that he heard that she had been strangled.

During the investigation, law enforcement learned that on February 25, 2005, Thoms worked from 6:54 a.m. until 3:35 p.m. and that she went grocery shopping over the lunch break, purchasing the items found on her kitchen counter. Law enforcement identified the clothing Thoms wore that day from the store’s surveillance system and collected those items from her cabin.

In June 2005, the BCA informed law enforcement investigators that the BCA had obtained a DNA profile from a sperm cell fraction of the anal swabs taken during the autopsy. At that point, law enforcement began collecting biological specimens for DNA testing from persons of interest and forwarded the specimens to the BCA. None of the DNA profiles obtained from the specimens collected from persons of interest matched the DNA profile obtained from the sperm cell fraction. In a subsequent search of Minnesota’s offender DNA database, the BCA obtained a “hit,” or match, of Tscheu’s DNA profile with the DNA profile from the sperm cell fraction.

On September 23, 2005, law enforcement re-interviewed Tscheu, who repeated that he had last seen Thoms in August 2004. When asked if he ever had sex with her, he said “no.” Tscheu was also asked for a biological specimen for DNA testing, which he provided. The DNA profile obtained from Tscheu’s specimen matched the DNA profile from the sperm cell fraction.

Tscheu was indicted by grand jury for first-degree murder while committing first-degree criminal sexual conduct (personal injury) with force or violence and first-degree murder while committing first-degree criminal sexual conduct (fear of great bodily harm) with force or violence. At Tscheu’s trial, in addition to evidence related to the investigation, Thoms’s family members testified that when Thoms returned home from work, as a matter of routine, she would let her dog Ben out, lay her purse and keys on the counter, and put her groceries away. Although she would leave a propane heater on for Ben during the day, if the cabin was cold, she would start a fire in the wood-burning stove or take a bath to warm up. It was “really cold” that winter, and she was having difficulty “getting warmed up.” They also testified that she had a heart condition, for which- she took Coumadin, and that she did bruise easily.

The medical examiner who conducted the autopsy, Dr. Janis Amatuzio, testified that the cause of Thoms’s death was asphyxia from drowning and that the manner of death was homicide. 1 The estimated time of death was 18-24 hours before *868 Thoms was found, or sometime between 3:18 p.m. and 9:18 p.m., on February 25. Dr. Amatuzio concluded that death would not have occurred from an accidental fall or an arrhythmia because of the amount of water in the airways, lungs and stomach, which indicated no loss of consciousness. Dr. Amatuzio was aware of Thoms’s medications, including Coumadin, which can cause excess or easy bruising. Nevertheless, Dr. Amatuzio was of the opinion that patterns of injury, in the nature of peri-mortem bruising, were consistent with Thoms having been manually restrained in the bathtub, causing her to drown. Dr. Amatuzio guided the jury through a PowerPoint presentation of the death scene, autopsy photographs, and diagrams to explain her findings and opinion that the manner of death was homicide.

Dr. Amatuzio also described the sexual assault examination, part of the autopsy protocol, that included sterile swabbing of the anus, perineum, and vagina. She observed no signs of injury to these areas. She observed hemorrhoids around the outside of the anus but no injury. When asked what impact this could have on anal intercourse, she said that she would anticipate that the presence of hemorrhoids could cause that activity to be more uncomfortable but that it would not cause obstruction to the anus. As for the absence of injury, she said it “may or may not be unusual” in a situation of forced intercourse. When asked if she had an opinion regarding anal intercourse in this case, Dr. Amatuzio stated that based on BCA testing, Thoms had some sort of contact with another individual that caused the deposition of that individual’s DNA in her anus.

At the close of the State’s case, Tscheu moved for judgment of acquittal, arguing that the evidence was insufficient to sustain a conviction of the charged offenses. The motion was denied. Tscheu then presented several witnesses, including experts in criminal investigation and forensic pathology, and also testified on his own behalf. Tscheu testified that sometime after his uncle (Thoms’s husband) passed away, Thoms asked him to help her split firewood; and then one thing led to another, and they ended up having sex. He said that they had consensual vaginal sex on Thursday, February 24, and that he spent Friday night after work and all day Saturday at his parents’ home replacing the engine in one van with the engine from another van. He testified that he did not see Thoms on Friday and denied having anything to do with her death.

The jury found Tscheu not guilty of first-degree murder while committing first-degree criminal sexual conduct (fear of great bodily harm) with force or violence. The jury found him guilty of first-degree murder while committing first-degree criminal sexual conduct (personal injury) with force or violence, and he was committed to the custody of the Commissioner of Corrections for the mandatory life term without possibility of release. 2

I.

The majority states that “even though verdicts based on circumstantial evidence may warrant stricter scrutiny, we still construe conflicting evidence in the light most favorable to the verdict and assume that the jury believed the State’s witnesses and disbelieved the defense witnesses.” This review standard is akin to *869 the Eighth Circuit Court of Appeals’ approach. E.g., United States v. Reed, 297 F.3d 787, 789 (8th Cir.2002) (evaluating a conviction based on strictly circumstantial evidence “in the light most favorable to the government” and giving “the government the benefit of all inferences that reasonably may be drawn from the evidence” (internal quotation marks omitted)). This is not a correct application of Minnesota’s sufficiency review standard when a conviction is based solely on circumstantial evidence. While we give deference to the jury’s evaluation of weight and credibility issues, unlike the Eighth Circuit, we assess the rationality of the inferences from the evidence and whether they establish guilt beyond a reasonable doubt. By giving nearly complete deference to the jury’s resolution of conflicting inferences of fact, the majority has effectively eliminated our traditional standard of review.

A.

In Minnesota, in assessing the sufficiency of the evidence, “we make a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict.” State v. Brown, 732 N.W.2d 625, 628 (Minn.2007). “But, when a conviction is based solely on circumstantial evidence, that evidence must be consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis except that of guilt. In such cases the circumstantial evidence must do more than give rise to suspicion of guilt; it must point unerringly to the accused’s guilt.” State v. McArthur, 730 N.W.2d 44, 49 (Minn.2007) (citations and internal quotation marks omitted).

Minnesota’s traditional circumstantial evidence standard incorporates the burden of proof in sufficiency review:

Circumstantial evidence will not sustain conviction of a crime unless the sum of reasonable inference therefrom is “consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt.” That proposition is founded upon the presumption of innocence and its demand that guilt be proved beyond a reasonable doubt. “If any one or more circumstances found proved are inconsistent with guilt, or consistent with innocence, then a reasonable doubt as to guilt arises.” State v. Johnson, 173 Minn. 543, 545 , 217 N.W. 683, 684 (1928); State v. Larson, 207 Minn. 515 , 292 N.W. 107 (1940).

State v. Kaster, 211 Minn. 119, 121 , 300 N.W. 897, 899 (1941). The Raster court, in reversing an arson conviction, accepted the State’s evidence but made an independent evaluation of the inferences derived from the circumstantial evidence and whether they established guilt beyond a reasonable doubt. Id. at 121 , 300 N.W. at 899 ; see also McArthur, 730 N.W.2d at 50 (affirming murder conviction following independent evaluation of circumstantial evidence); State v. Jones, 516 N.W.2d 545, 549 (Minn.1994) (reversing assault conviction following independent evaluation of circumstantial evidence); State v. Loss, 295 Minn. 271, 281 , 204 N.W.2d 404, 410 (1973) (affirming manslaughter conviction following independent evaluation of circumstantial evidence).

Historically, courts recognized the difference between direct and circumstantial evidence. The rational hypothesis standard for evaluating circumstantial evidence was derived from Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850). In that case, the defendant was charged with murder in a prosecution based entirely on *870 circumstantial evidence. Id. at 310 . The court described the value of circumstantial evidence, noting that it was a medium of proof often “leading to inferences and conclusions as strong as those arising from direct testimony.” Id. at 311 . The court also noted disadvantages in that “a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions.” Id. at 312 . The court advised that “great care and caution ought to be used in drawing inferences from proved facts.” Id. To that end, the court set out the following rule:

[T]he circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty, that the accused, and no one else, committed the offense charged. It is not sufficient that they create a probability, though a strong one; and if, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential, therefore, that the circumstances taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis.

Id. at 319 . Courts throughout the country, federal and state, adopted the Webster rule as a jury instruction to guide the jury in evaluating circumstantial evidence. Irene Merker Rosenberg & Yale L. Rosenberg, “Perhaps What Ye Say is Based Only on Conjecture” — Circumstantial Evidence, Then and Now, 31 Hous. L.Rev. 1371, 1392 (1995).

Over a century later, in Holland v. United States, 348 U.S. 121, 139-40 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), a unanimous Supreme Court determined that in circumstantial evidence cases, a jury instruction on reasonable doubt obviated the need for an additional rational hypothesis instruction. 3 The federal courts, bound by Holland, thereafter abandoned the rational hypothesis instruction and also the rational hypothesis review standard. E.g., United States v. Francisco, 410 F.2d 1283, 1286 (8th Cir.1969) (abandoning rational hypothesis appellate review standard). Although we followed the Holland rule, eliminating the jury instruction in State v. Turnipseed, 297 N.W.2d 308, 313 (Minn.1980), we retained the traditional rational hypothesis review standard. E.g., McArthur, 730 N.W.2d at 49 .

Cases based on circumstantial evidence require careful review because of the “ ‘danger legitimately associated with circumstantial evidence — that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree.’ ” People v. Kennedy, 47 N.Y.2d 196 , 417 N.Y.S.2d 452 , 391 N.E.2d 288, 291 (1979) (quoting People v. Benzinger, 36 N.Y.2d 29 , 364 N.Y.S.2d 855 , 324 N.E.2d 334, 335 *871 (1974)); cf. State v. Waltz, 237 Minn. 409, 416 , 54 N.W.2d 791, 796 (1952) (stating that “where circumstantial evidence consists in reasoning from a minor fact or series of minor facts to establish a principal fact, the process is fatally vicious if the circumstances, from which an attempt is made to deduce a conclusion of guilt, depends upon speculation and conjecture”). Minnesota’s rational hypothesis review standard “allowfe] the appellate court to oversee whether the jury’s inferences from circumstantial evidence were in fact rational and sufficient to establish proof beyond a reasonable doubt.” Rosenberg & Rosenberg, supra, at 1415. “[Njeither the reasonable doubt charge nor the counterpart, any-rational-trier-of-fact appellate review standard comes to grips with the separate issue addressed by use of the reasonable hypothesis of innocence test at the trial and appellate levels, namely, the proper evaluation of circumstantial evidence.” Id. at 1420. Given the lack of a jury instruction on the evaluation of circumstantial evidence, I believe it imperative that we retain our traditional rational hypothesis standard of review.

B.

Although the majority’s sufficiency review standard includes the words “rational hypothesis,” by giving nearly complete deference to the jury’s resolution of conflicting inferences of fact that may be drawn from the evidence, the majority has virtually eliminated our traditional sufficiency standard of review for convictions based solely on circumstantial evidence. Under the majority’s view, a conviction based on circumstantial evidence will not be disturbed unless there are no rational inferences of guilt in the evidence. The majority draws support for crediting all inferences in favor of the State from State v. Asfeld, 662 N.W.2d 534 (Minn.2003), and State v. Race, 383 N.W.2d 656 (Minn.1986). In each case we gave deference to the jury’s evaluation of witness credibility, but I read neither as crediting all other inferences in favor of the State. Asfeld, 662 N.W.2d at 546 ; Race, 383 N.W.2d at 662 .

In circumstantial evidence cases, “the ultimate determination of guilt is based also on inferences from the evidence.” Rosenberg & Rosenberg, supra, at 1416. If the majority’s view is correct, meaning that we have abandoned our venerable sufficiency review standard in which we make an independent evaluation of the rationality of the inferences and whether they establish guilt beyond a reasonable doubt, then we should at least be forthright in making that known. And if, on appeal, we are not going to make an independent evaluation, then perhaps we should revisit Tumipseed to consider cautionary instructions so that the jury will be advised that circumstantial evidence must exclude every rational hypothesis except that of guilt. See 297 N.W.2d at 313 . As for Tscheu’s appeal, I would conclude that when evaluated in accord with our traditional standard, the evidence was sufficient to support the conviction.

II.

Tscheu challenges the sufficiency of the evidence regarding the identity of the perpetrator. The State’s evidence included testimony that there were no signs of fresh-forced entry into Thoms’s cabin, that Tscheu’s DNA was found in Thoms’s anal cavity, and that all other persons of interest had been excluded. In addition, Tscheu testified that he had been to the cabin many times, that he had consensual sex with Thoms, and that he lied to law enforcement about it. He also said he had no reason to harm Thoms, did not sexually assault her, and did not kill her. On cross- *872 examination, Tscheu admitted that when law enforcement executed a search warrant at his home, they found no communications of any sort or “anything” to indicate the existence of an ongoing romantic relationship; and he admitted that nothing was found in Thoms’s cabin to that effect either. A verdict of guilty cannot properly be based solely on the jury’s disbelief of a defendant’s denial of the charges. Nevertheless, the jury may “ ‘use its disbelief to supplement the other evidence against him’ adduced by the government.” United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir.1995) (quoting United States v. Stanley, 928 F.2d 575, 577 (2d Cir.1991)). I would conclude that the evidence submitted at Tscheu’s trial, and the justifiable inferences that may be drawn from that evidence, established that Tscheu was responsible for the death of Thoms. 4

Tscheu also contends that the evidence was insufficient to establish that he caused Thoms’s death while committing first-degree criminal sexual conduct (causing personal injury) with force or violence. 5 The felony murder rule may apply if “ ‘the “fatal wound” was inflicted during the same “chain of events” [between the felony and the killing] so that the requisite time, distance, and causal relationship between the felony and killing are established.’ ” State v. McBride, 666 N.W.2d 351, 365 (Minn.2003) (quoting State v. Russell, 503 N.W.2d 110, 113 (Minn.1993)); see 2 Wayne R. LaFave, Substantive Criminal Law § 14.5(f) (2d ed.2003).

There was testimony that if Thoms’s cabin was cold when she returned home from work, she would start a fire in the wood-burning stove or take a bath to warm up; that it was “really cold” that winter; and that at around the same time the day after she died, while Officer Downie was at the cabin, J.B. started a fire because it was cold. Thoms’s shoes were found in her bedroom closet, her jacket was hanging in the entry closet, clothing that she had on the day she died was in the bathroom hamper and underwear was on the bathroom floor. The drain to the bathtub was found engaged, the shower running, and the water set for a warmer temperature. The medical examiner testified that Thoms had a curvilinear mark running from her left hip to her thigh, suggesting impact with a door, and bruising on her left wrist and third finger, indicating an altercation and defense injuries to ward off a blow or push someone away. Thoms was manually restrained in the bathtub, causing her to drown; and Tscheu’s DNA was in her anal cavity. Thoms’s dog Ben, who meant “everything to her,” was outside.

I believe that the inferences that may reasonably be drawn from this evidence *873 are that Thoms was interrupted while she was preparing to warm up in the bathroom; that an altercation ensued, causing injury; and that sexual penetration, restraint in the bathtub, and death occurred in relatively short order. It is true, as Tscheu points out, that the bathroom was small, items in the area of the bathtub appeared undisturbed, and there was no injury to Thoms’s intimate areas. But the homicide occurred in the bathroom, and the medical examiner testified that the absence of injury to intimate areas would not rule out penetration by force. While there was no evidence as to the precise timing of the sexual activity and homicide, the rational inferences drawn from the evidence as a whole established that the underlying felony and homicide were one continuous transaction. That normally homebound Ben was left outside excluded any hypothesis of a romantic encounter ending badly. I tend to agree with Tscheu that a good deal of the State’s case was built on speculation. 6 Nevertheless, after independent evaluation of the record, I would conclude the evidence was sufficient to support the conviction.

. The medical examiner used the term "homicidal violence” on the death certificate, a nonspecific term for death caused by violent activity of another, because she did not want to put a more specific term in a public document, particularly during an ongoing investigation.

. Both of the charged offenses carry the mandatory term of life without possibility of release. Minn.Stat. § 609.185(a)(2) (2006); Minn.Stat. § 609.106 (2006).

. The Holland court believed that a special jury instruction would be confusing because testimonial evidence is no different from circumstantial evidence. Holland, 348 U.S. at 140 , 75 S.Ct. 127 . There is, however, a distinction between the two categories: “With regard to the former, the jury must determine whether the particular assertion is true, whereas in the latter case, the jury must not only decide whether it is true, but also whether guilt logically can be inferred from such evidence.” Rosenberg & Rosenberg, supra, at 1411.

. The majority concludes that Tscheu's hypothesis of a third-party perpetrator was not reasonable. In State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995), we said that in challenging a conviction based on circumstantial evidence, appellant "must point to evidence in the record that is consistent with a rational theory other than guilt.” But the ultimate determination we make on appeal is whether the inferences derived from the circumstantial evidence are rational and establish guilt beyond a reasonable doubt: " 'If any one or more circumstances found proved are inconsistent with guilt, or consistent with innocence, then a reasonable doubt as to guilt arises.’ ” Kaster, 211 Minn. at 121 , 300 N.W. at 899 (quoting Johnson, 173 Minn. at 545 , 217 N.W. at 684 ).

. Minn.Stat. § 609.185(a)(2) (2006) (providing that whoever "causes the death of a human being while committing ... criminal sexual conduct in the first ... degree with force or violence” is guilty of first-degree murder); Minn.Stat. § 609.342, subd. l(e)(i) (2006) ("A person who engages in sexual penetration with another person ... is guilty of criminal sexual conduct in the first degree if ... the actor causes personal injury to the complainant ... [and] the actor uses force ... to accomplish sexual penetration....”).

. Neither the prosecutor nor defense counsel asked that the jury be given lesser-included offenses, both apparently in pursuit of a "go-for-broke,” all-or-nothing verdict. The omission of warranted lesser-included offenses does not amount to error when the defendant expressly waives such instructions. State v. Dahlin, 695 N.W.2d 588, 598 (Minn.2005). But we have also emphasized that " '[n]either the prosecution nor the defense can limit the submission of such lesser degrees as the trial court determines should be submitted.' " Id. (quoting State v. Leinweber, 303 Minn. 414, 421 , 228 N.W.2d 120, 125 (1975)). "While in theory a jury must acquit whenever the state has not proved all the elements of a charged offense, '[wjhere one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the juiy is likely to resolve its doubts in favor of conviction,' rather than let the defendant go free entirely.” State v. Harris, 713 N.W.2d 844, 850 (Minn.2006) (quoting Keeble v. United States, 412 U.S. 205, 212-13 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973)). When defendants opt for an all-or-nothing verdict, appellate courts rarely afford relief when, with the benefit of hindsight, the strategy may have been mistaken. E.g., State v. Fulford, 290 Minn. 236, 245 , 187 N.W.2d 270, 276 (1971) (Peterson, J., concurring).