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STATE OF MINNESOTA IN SUPREME COURT A06-2239

Crow Wing County

Gildea, J. Concurring, Meyer, J. Took no part, Magnuson, C.J., and Dietzen, J.

State of Minnesota, Respondent, vs. David Michael Tscheu, Appellant. ________________________ Filed: December 31, 2008 Office of Appellate Courts

Lori Swanson, Attorney General, St. Paul, Minnesota; and Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota, for respondent. Mark D. Nyvold, St. Paul, Minnesota, for appellant. ________________________

SYLLABUS 1. The district court did not err in denying appellants motion for judgment of

acquittal because the evidence, when construed in the light most favorable to the verdict, was sufficient to support the verdict.

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2.

The district court did not abuse its discretion in allowing use of appellants

convictions for impeachment. 3. Appellant did not meet his burden of proving that the unobjected-to

evidentiary errors are properly before this court for review. Affirmed. OPINION GILDEA, Justice. Following a jury trial in Crow Wing County District Court, appellant David Michael Tscheu was convicted of first-degree murder in connection with the death of Bonita Thoms. Tscheu filed a direct appeal to this court, arguing that the district court erred (1) when it denied his motion for judgment of acquittal at the close of the States case, (2) by permitting his prior convictions to be used for impeachment, and (3) by admitting hearsay testimony. We affirm. The evidence at trial established that Bonita Thoms was last seen alive on Friday, February 25, 2005. She went to work that day, and records from a local grocery store confirm that she made purchases at the store on February 25, presumably during her lunch break. Records from Thomss employer indicate that she left work at

approximately 3:35 p.m. A witness testified to seeing Thoms in her car, apparently on her way home, sometime between 3:30 and 4:35 p.m. and when she was approximately 5 miles from her home. Later that evening, Thomss stepson J.B. tried to reach Thoms by telephone, but was unsuccessful. J.B. telephoned Thoms again the morning of Saturday, February 26, 2

but he again failed to reach her. J.B. wanted to tell Thoms that he was coming to her residence in Aitkin, Minnesota, to pick up a camper that he had stored on her property. J.B. arrived at Thomss home at approximately 3:30 p.m. on Saturday, February 26. When he arrived, J.B. saw Thomss red Buick LeSabre parked in the driveway. He also noticed that water was running on the ground outside of the house, and that Thomss dog, which normally slept indoors, was outside and had been outside long enough for ice crystals to form on his face. J.B. entered Thomss home through the closed but unlocked front door; he called out to Thoms, but received no response. J.B. then heard the shower running. When he opened the bathroom door, J.B. found Thoms dead in the bathtub. He then called 911. Crow Wing County Deputy Sherriff Donald Downie arrived at Thomss home around 4:08 p.m. in response to the 911 call. Downie testified that there were no signs of fresh forced entry to the front door, and that other doors to the home were still locked when he arrived. In the bathroom he noted that an "older" shower curtain, which had been repaired with masking tape that had yellowed, was intact and three-quarters closed. A pair of womens underwear was hanging from the shower rod and three pairs were on the floor. Thoms was laying on her right side in the tub and was nude except for her brassiere and a wrist watch, which had been pushed up onto her left hand. The shower was spraying cold water onto Thomss head. The bathtub was filled with water to the overflow drain, and most of Thomss head, including her mouth and nose, were submerged. Thomss eyeglasses were floating in the water. Downie turned off the

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shower and drained the tub. Downie then photographed the scene, and photographs he took were introduced into evidence at trial.1 Downie also testified that he saw a newspaper from February 25 that appeared unread, and several perishable food items on the counter in Thomss kitchen. These items matched those Thoms purchased at the grocery store on February 25, and the State offered testimony that Thoms normally would have immediately placed the perishable items into the refrigerator upon returning home. Although the house was searched, Thomss purse and keys, usually kept on the kitchen counter, were never located. One of Thomss daughters testified that because Thoms heated her home with a wood-burning stove, and it had been very cold that winter, Thoms would often take a bath to warm up after arriving home from work. Thomss other daughter testified that Thoms would remove her watch and eyeglasses before bathing, and that Thoms generally only showered if she wanted to wash her hair, which she did every other day. In addition to the background evidence about Thoms and the crime scene evidence, the State also offered testimony from Dr. Janis Amatuzio who performed the autopsy. Dr. Amatuzio determined that Thoms died sometime between 3:18 and 9:18 p.m. on Friday, February 25, as a result of asphyxia from drowning. She concluded that Thomss death was a homicide based on bruise patterns on the body, the way the body
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Downie admitted at trial that he "could have done a better job" of handling the crime scene. He stated that he should not have drained the water in the bathtub before photographing the scene and that he should not have allowed J.B. to spend the night at Thomss residence after the body was removed, but before the investigation was complete. The defense also offered expert testimony establishing that investigators did not handle the crime scene so as to preserve evidence. 4

was found, and the significant amount of water in Thomss stomach and lungs. Dr. Amatuzio noted that Thoms was taking a number of medications--including a blood thinner that caused her to bruise easily--but she ruled out cardiac arrhythmia as the cause of death. According to Dr. Amatuzio, the pattern of injuries on the body suggested that Thoms was restrained in the bathtub by pressure on her left leg and a hand on the back of her neck, causing her to drown. Those injuries included a cluster of round bruises located just above Thomss left knee, consistent with fingertip pressure; subcutaneous hemorrhaging in the strap muscles of the posterior neck, suggesting a restraint hold; burst blood vessels in both eyes, indicating neck compression; a bruise on the left side of Thomss jaw; and circular bruises--two on Thomss left front arm and three below her left shoulder--that were consistent with fingertip pressure. Dr. Amatuzio testified that all of these injuries were inflicted perimortem, meaning at or around the time of death. Dr. Amatuzio testified that other injuries on the body suggested that Thoms was involved in a struggle: a scrape or abrasion behind and below her left ear, indicating contact with an oval-shaped or linear object, such as a kitchen countertop; a superficial bruise on her left elbow, possibly caused by a fall against a blunt surface; a linear mark running from Thomss left hip and down her thigh, suggesting impact with a straight object such as a piece of furniture or a door; bruises on her left upper chest and back; and three round bruises in the front and one bruise in the back of Thomss right upper arm, likely caused by thumb and fingertip pressure and consistent with a restraint hold. Dr. Amatuzio testified that these struggle-related injuries were inflicted perimortem. 5

Finally, regarding bruising on Thomss body, Dr. Amatuzio described defensive injuries that included subcutaneous bleeding in the knuckle of the left third finger, indicating that Thoms was involved in an altercation or tried to push someone away, and a small bruise on the outside of Thomss left wrist, suggesting that Thoms was grabbed or tried to ward off a blow. The defensive injuries were suffered perimortem. Dr. Amztuzio also conducted a sexual assault exam as part of the investigation. There were no signs of injury to the vagina, perineum, rectum, or anus. Hemorrhoids around the outside of the anus were also uninjured. When asked whether it would be unusual for someones anal cavity not to show signs of injury after forced intercour se, Dr. Amatuzio testified that the anus may or may not show evidence of tears or injury, depending on the degree and rapidity of the force used. She also noted that hemorrhoids could cause anal intercourse to be uncomfortable, but that they would not cause any obstruction to the anus. Semen was found inside Thomss rectum that matched Tscheus DNA. DNA analyst Kristine Deters testified that, statistically speaking, such a match would not be expected to occur more than once among the worlds population. Semen consistent with Tscheus DNA was also found on Thomss perineum. Deters estimated that 99.95% of the general population could be excluded as contributors to the perineal deposit.2

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As part of the investigation, samples from 12 other people termed "persons of interest" were examined and all 12 were excluded as DNA contributors to the semen found in Thomss rectum and perineum. 6

No semen was found in Thomss vagina. Deters was asked about the possibility of seminal drainage from the vagina into the rectum after vaginal intercourse. She testified that typically vaginal intercourse causes an abundant amount of sperm in the vaginal cavity and only occasional sperm in the rectal cavity. Finally, regarding the DNA evidence, the State showed that a partial male DNA profile was obtained from Thomss fingernail clippings. Statistically speaking, 0.9 to 7.4% of the population, depending on ethnic background, could be expected to be included in the group having this particular profile. This profile was tested against other known samples of male individuals who submitted DNA samples to the Bureau of Criminal Apprehension (BCA) during the course of the investigation. Except for Tscheu and his father, all known samples were excluded.3 The States evidence also explained the investigation of Tscheu. Tscheu was initially identified as a person of interest because Thomss stepson identified him as someone who had visited Thomss residence in the past. Deputy Downie first contacted Tscheu about Thomss death on March 17, 2005. At that time, Tscheu said that the last time he had seen Thoms was shortly before August 2004. The record reflects that on the day of Thomss death, Tscheu and his father drove together to a construction site in Crosslake. Tscheus timesheet indicated that he worked 5.5 hours on that day. Tscheus father told police that he and Tscheu visited a Fleet Farm after work to purchase automobile parts. Tscheu told police that he then went home and changed the engine in
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There was no argument or evidence that Tscheus father was a possible third-party perpetrator. 7

his van that night. Downie estimated that it would take about 27 minutes to drive from the job site in Crosslake to Thomss residence in Aitkin. When asked about Thomss death, Tscheu told police that he heard from his mother or a man named B.B. that Thoms had been strangled, but B.B. did not corroborate Tscheus account. Tscheu also told Deputy Downie that he had never had sex with Thoms. Phone records did not indicate any calls between Thoms and Tscheu, and nothing belonging to Thoms was found at the Tscheu residence. Tscheu became the chief suspect after the semen found in Thomss rectum matched his DNA database profile on file with the BCA. Tscheu voluntarily provided a second DNA sample, which confirmed the match. The defense theory was that Tscheu had consensual sex with Thoms the night before her death, and that a third-party perpetrator murdered her. As potential third-party perpetrators, the defense identified two of Thomss stepsons, Michael and Shawn, and M.H., the half-brother of Thomss neighbor. Shawn resided in California and no

evidence was presented that he was in Minnesota on the date of the crime. Michael could not have committed the murder because he was in prison at that time.4 In support of the theory that M.H. committed the murder, the defense called J.J., whose sister, Michelle, was dating M.H. J.J. testified that she saw M.H. and Michelle around 2:30 p.m. on Friday, February 25 in Emily, Minnesota, which is approximately 16

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Michael and Shawn provided DNA samples to police during the investigation and their samples did not match the sample found on Thomss body.

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miles away from Thomss home in Aitkin. According to J.J., M.H. planned to collect some money from Thoms that day. She described M.H.s mood as "angry" and "furious" and said that around 3:40 p.m. she saw him get into a four-door, dark red- or marooncolored car. Another defense witness said that she saw a four-door, dark sedan--"either black or dark blue or possibly maroon"--in Thomss driveway at approximately 5:05 p.m. on February 25.5 The State contended that because its evidence showed that M.H. picked up a wire transfer in Crosslake, which was 26 minutes from Thomss residence, at 4:47 p.m., he could not have been at her residence by 5:05 p.m., when the dark sedan was reportedly seen in Thomss driveway. Moreover, the State offered evidence showing that M.H. was using a pickup truck in the weeks before the murder. The defense also presented testimony from Dr. Janice Ophoven, a forensic pathologist, who said that although she agreed that Thoms died from drowning, she could not say with certainty that homicidal violence caused the drowning. In particular,

Dr. Ophoven testified that bleeding in the eyes was not definitive evidence of suffocation. She also testified that Thoms could have died suddenly from her enlarged heart, which could not be detected during an autopsy. Finally, Tscheu testified on his own behalf and denied that he killed or sexually assaulted Thoms. He said that he drove himself to work on Thursday, February 24, and

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The same witness who reported seeing Thoms on her way home from work also testified that he saw her vehicle, which was red, in her driveway at approximately this time on February 25.

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went to Thomss home that night to make sure she had firewood. Tscheu claimed that after chopping the wood, he and Thoms talked and then had consensual sex. Tscheu

testified that no one knew about their ongoing relationship, because "[i]t was our business." He also testified that he worked on his van and never left home the night of Thomss death.6 The State impeached Tscheu with his prior statements to police that he had never had sex with Thoms and that he had not seen her for several months before her murder. Following his arrest, a grand jury indicted Tscheu for first-degree murder while committing first-degree criminal sexual conduct placing the victim in fear of great bodily harm in violation of Minn. Stat.

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