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State v. Athey

Court of Appeals of Minnesota

June 10, 2013

State of Minnesota, Respondent,
v.
Jeffery Floyd Athey, Appellant.

UNPUBLISHED OPINION

Douglas County District Court File No. 21CR111113.

Lori Swanson, Minnesota Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and Chad Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent).

John D. Ellenbecker, St. Cloud, Minnesota (for appellant).

Considered and decided by Stoneburner, Presiding Judge; Connolly, Judge; and Rodenberg, Judge.

STONEBURNER, Judge.

Appellant challenges his conviction of fourth-degree criminal sexual conduct, arguing that the district court erred by admitting certain DNA evidence over appellant's objection based on lack of foundation. We affirm.

FACTS

In relevant part, complainant C.R. alleged that appellant Jeffery Floyd Athey slapped her face and touched her vagina without consent while she was intoxicated and sleeping. C.R. and Athey were alone in C.R.'s house briefly while her boyfriend drove another person home after the group had returned to C.R.'s house from an evening of drinking at a local bar. C.R. went to bed. She remembers Athey slapping her face and telling her to get out of bed to drink more beer with him. She said no, fell back asleep, and woke up to Athey's hands in her vagina. At trial, Athey admitted touching C.R.'s inner thigh but denied touching or penetrating her vagina.

Swabs for DNA analysis were taken from C.R.'s vagina by a nurse who performed a sexual-assault examination. Those samples were sealed and delivered to law enforcement officers, who forwarded the samples to the Bureau of Criminal Apprehension (BCA) for testing. Officer Melrose, one of the investigating officers, testified that he swabbed Athey's fingers and thumbs for possible DNA evidence. He did not recall swabbing Athey's cheek to obtain a "control" DNA sample, but he sent all samples taken from Athey to the BCA with a document identifying the source of each sample. The document that arrived at the BCA identifies swabs from Athey's fingers, thumbs, and from his cheek.

BCA forensic scientist Marlijn Hoogendoorn profiled four DNA samples received by the BCA: one from C.R. and three from Athey. She concluded that neither C.R. nor Athey could be "excluded from being possible contributors to the DNA mixture obtained from the hand swabs" of Athey, although 99.1% of the general population could be excluded from being contributors. Hoogendoorn testified that the amount of DNA other than his own found on Athey's hand would probably not be transferred from contact such as a handshake or slapping a person. Using the swabs identified as having come from Athey's cheek as control samples of Athey's DNA, Hoogendoorn testified that she did not identify DNA that could have come from Athey in DNA retrieved from the swabs taken from C.R.'s vagina.

Athey objected to Hoogendoorn's testimony regarding the control sample of his DNA, arguing that there was no evidence in the record that such a sample was collected from him. In response to the objection, the state was permitted to recall Officer Melrose, who testified that he recalled swabbing Athey's fingertips and thumbs but did not recall taking a swab from Athey's cheek, and his report does not indicate that he took the cheek sample. But Officer Melrose testified that when taking swabs from someone's fingers for DNA testing, it is a "routine course of business" to also take and submit a control sample from that person. Officer Melrose testified that, consistent with routine practice, he would have taken a sterile swab out of its package and swabbed the inside of the person's mouth for such a sample.

The jury found Athey not guilty of the charge of third-degree criminal sexual conduct (penetration) but guilty of the lesser-included offenses of fourth- and fifth-degree criminal sexual conduct (sexual contact with incapacitated person and nonconsensual sexual contact, respectively). Athey was ...


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