State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1502

State of Minnesota,
Respondent,

vs.

Jeffrey Michael Murdent,
Appellant.

Filed October 31, 2022
Affirmed
Bryan, Judge

Anoka County District Court
File No. 02-CR-18-3956

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from the final judgment s of conviction for third-degree criminal
sexual conduct, appellant argues that the district court erred when it decided to exclude
evidence of the victim’s past sexual conduct. In addition, appellant argues that the district
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court erred when it decided to admit evidence of appellant’s prior act s towards another
individual. We affirm the convictions because the district court did not abuse its discretion.
FACTS
Respondent State of Minnesota charged appellant Jeffrey Michael Murdent , an
inmate at the Minnesota Correctional Facility at Lino Lakes (MCF-Lino Lakes), with three1
counts of third -degree criminal sexual conduct against his cellmate, K.L.M., in violation
of Minnesota Statutes section 609.344, subdivision 1(c) (2016). According to the amended
complaint, in the two days after Murdent and K .L.M. became cellmates, Murdent sexually
assaulted K.L.M. three times. K.L.M. promptly reported the sexual assaults and underwent
a sexual assault examination, which included collection of DNA samples from semen
recovered on K.L.M.’s penis, scrotum, and anus. The semen from K.L.M.’s penis was his
own. The semen from K.L.M.’s scrotum was a mixture of two people’s semen: Murdent
and an unidentified male. The semen from K.L.M.’ s rectum was a mixture from two or
more persons: Murdent and at least one unidentified male.
Prior to trial, the state served notice that it intended to introduce evidence regarding
Murdent’s prior acts involving another inmate. Murdent objected and moved in limine to
exclude this evidence. On June 1, 2021, the district court heard testimony regarding the
issue. The state offered two witnesses: Murdent’s former cellmate , A.R., and a clinical
program therapist from MCF-Lino Lakes. A.R. testified that during the two weeks that he
shared a cell with Murdent, Murdent tried to pressure him to have sex, including making

1 The state initially charged Murdent with two offenses but amended its complaint on the
first day of trial, adding a third charge.
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requests that Murdent perform oral sex on A.R. and that they wa tch each other masturbate.
A.R. further testified that Murdent offered A.R. a pair of shoes in exchange for sexual acts,
and A.R. fe lt threatened by Murdent because Murdent blocked the entryway of the cell
while making his demands . Although he stated tha t he never engaged in sexual acts with
Murdent, A.R. believed Murdent was “going to lash out and attack [him], possibly kill
[him].” The district court found that the state had “proven by clear and convincing
evidence that [A.R.] felt as though he was bei ng threatened to carry out or perform sexual
actions or allow Mr. Murdent to perform sexual actions on him.” The district court,
however, reserved an admissibility ruling because it had not determined yet “[w]hether or
not that incident or those incidents even shows a common scheme or plan.”
Murdent also moved in limine to admit “testimony that the alleged victim may have
had other sexual partners under Rule of Evidence 412(1)(B).” Murdent argued that the
“evidence is probative to the issue of consent and the alleged victim’s credibility as he
denies having sexual contact with men.” Murdent clarified that he was “not implying a
particular person” and “not accusing [K.L.M.] of a particular act.” The state argued that
its forensic scientist would testify t hat the DNA results “indicate[] that no conclusions can
be made regarding an additional contributor to the mixture” because it could have
transferred from other inmates or Murdent and may not have been the result of sexual
conduct. The district court deni ed Murdent’s motion, concluding that the evidence was
inadmissible under Minnesota Rules of Evidence 412 and 405:
First, the Court notes that the State’s forensic witness had
stated that the presence of sperm cell fractions on K.L.M.’s
scrotum from an unidentified male does not prove that K.L.M.
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was having consensual sex with other men. Rather, it is just as
likely that the sperm cell fractions were found on K.L.M.’s
scrotum through transfer because K.L.M. was living in very
close quarters with men. As a result, the probative value of
such evidence is negligible at best and is substantially
outweighed by the inflammatory prejudicial nature of such
evidence. The Court also notes that even if this evidence did
not establish the possibility that K.L.M. lied about having
sexual relationships with men, it would be inappropriate for
such evidence to be used to conclude that K.L.M. must have
lied about having non- consensual sex with Defendant. This
type of evidence (under rule 405 of the Minn. R. of Evidence)
is generally excluded character evidence of a specific
incidence of conduct to attempt to demonstrate that the victim
is not a believable witness.

Second, for previous sexual conduct to be admissible it must
tend to show a common scheme or plan of similar s exual
conduct under circumstances similar to the case at issue. The
mere fact that K.L.M. may have engaged in a same -sex
consensual relationship is not evidence of a “common scheme
or plan of similar sexual conduct,” and is not probative of
whether K.L.M. consented to have sex with Defendant.

The matter proceeded to a jury trial, and the Murdent did not dispute that he sexually
penetrated K.L.M. The only issue for the jury was whether Murdent used force or coercion
to accomplish the sexual penetration. K.L.M. testified that after only a few hours of
Murdent being placed in the cell, Murdent stated that K.L.M. was attractive and tried
kissing K.L.M. on the neck. K.L.M. t estified that he t old Murdent that he was not
interested, but Murdent made another advance later that evening. When K.L.M. refused to
take his clothes off, Murdent raised his voice and told him “to take [his] f -cking clothes
off.” In his testimony, K.L.M. explained that Murdent then forced anal and oral sex on
him. K.L.M. did not resist or use the emergency alert system in his cell because he was
fearful Murdent would hurt him before staff could respond. K.L.M. was also interviewed
5
by an investigator shortly after reporting the allegations. Portions of this interview were
admitted, including K.L.M.’s statements that Murdent offered coffee in exchange for
sexual favors. In addition, K.L.M. told the investigator that he is “not interested in guys,
and I like females,” and that he is “not like th at” because “[i]t’s just against [his] beliefs.”
At the end of the state’s case, the district court ruled on the other -act evidence:
[A.R.] made it clear that, according to him, Mr. Murdent talked
a lot about sex, was really persistent, made [A.R.] feel
uncomfortable, offered him shoes, wanted to be engaged in
watching each other masturbate, that he also felt he was
blocked from the exit, felt that Mr. Murdent said that if Mr.
Murdent went down for that instance so would the victim,
[A.R.]. So it kind of s hows a common scheme or plan.

. . . . In some ways one could argue that the fact that Mr.
Murdent did not force himself on [A.R.] may actually be
helpful to Mr. Murdent.

But I think that the probative value of the prior here outweighs
any prejudicial ef fect. And I will bring one other thing up for
the record, and that is that [A.R.] testified that Mr. Murdent had
offered him shoes to watch him masturbate, that he had – he
being Mr. Murdent, offered him gifts in exchange for sexual
favors.

When [K.L.M.] testified, I’m not sure if it was his testimony or
if it was the statement he gave to the correctional officer
investigator, that Mr. Murdent would bring him coffee. And
so I think that can be seen as well as part of the same motive of
giving gifts for s exual favors. So that would certainly weigh
towards allowing it in. . . . [S]o the Spriegl is going to be
admissible. And [defense] can still, obviously, cross -examine
[A.R.] as well.

Ultimately, t he state never introduced A.R.’s testimony because Murde nt testified about
those interactions himself.
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The jury found Murdent guilty of all three counts of criminal sexual conduct in the
third degree. The district court sentenced Murdent to two concurrent sentences of 180
months’ imprisonment for counts 1 and 2. Murdent appeals.
DECISION
Murdent asserts error in the district court’s decision to exclude evidence concerning
K.L.M.’s semen and the semen from unidentified persons other than Murdent . In addition,
Murdent challenges the district court’s decision to admit evidence of Murdent’s conduct
involving A.R. 2 Because the semen evidence does not meet the requirements of either of
the two applicable exceptions, and because it had limited probative value, the district court
did not abuse its discretion in excluding this evidence. In addition, because the evidence
of Murdent’s prior acts included specific behavior consistent with a common scheme or
plan, the district court did not abuse its discretion in admitting that evidence.
I. Decision to Exclude Semen Evidence
The admission of evidence relating to a victim’s prior sexual conduct in a criminal
sexual conduct case is governed by rule and statute, commonly referred to as the rape shield
rule. Under Minnesota Rule of Evidence 412 and Minnesota Statutes section 609.347,
subdivision 3 (2020), evidence of prior sexual conduct of the victim “shall not be

2 In a supplemental brief, Murdent raises claims of ineffective assistance, arguing that his
counsel failed to more effectively argue for admission of the semen evidence, more
effectively cross examine K.L.M., and seek admission of statements regarding K.L.M.’s
credibility. These arguments are unavailing because Murd ent does not include legal
authority and because these concerns relate to trial strategy. See State v. Krosch , 642
N.W.2d 713, 719- 20 (Minn. 2002) (declining to address arguments in the absence of
citations to legal authority); State v. Doppler , 590 N.W.2d 627, 633 (Minn. 1999)
(concluding that matters of trial strategy cannot support claims of ineffective assistance).
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admitted .” Nor “shall any reference to such conduct be made in the presence of the jury,
except by court order.” Minn. R. Evid. 412(1); Minn. Stat. § 609.347, subd. 3. The rape
shield rule “serves to emphasize the general irrelevance of a victim’s sexual history, ” but
it does not operate to “ remove relevant evidence from the jury’s consideration .” State v.
Crims, 540 N.W.2d 860, 867 (Minn. App. 1995), rev. denied (Minn. Jan. 23, 1996). There
are two relevant exceptions to the rape shield rule permitting admission of evidence
regarding the victim’s prior sexual conduct when “consent of the victim is a defense in the
case” and if the evidence meets the following requirements:
(i) evidence of the victim’s previous sexual conduct
tending to establish a common scheme or plan of similar sexual
conduct under circumstances similar to the case at i ssue,
relevant and material to the issue of consent; [or]
(ii) evidence of the victim’s previous sexual conduct
with the accused.

Minn. R. Evid. 412(1)(A) .3 Even if the evidence satisfies one of the two exceptions, a
district court may admit the eviden ce only if the probative value of the evidence is not
substantially outweighed by its inflammatory or prejudicial nature. Minn. Stat. § 609.347,
subd. 3; Minn. R. Evid. 412(1). We review the admission and exclusion of evidence for
an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) .

3 To the extent that any portions of Murdent’s brief could be construed as arguing that the
semen evidence satisfied another exception set forth at rule 412(1)(B), we also reject this
argument. The exception set forth at (1)(B) applies to evidence of specific instances of the
victim’s prior sexual conduct that is offered to show the source of the semen. Here,
Murdent did not offer evidence of any specific act or to show a specific source of the semen.
Instead, Murdent sought to cast doubt on K.L.M.’s statements to the investigator regarding
his sexual orientation. Accordingly, t he exception at (1)(B) does not apply in this case.
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Murdent sought to introduce evidence that the semen on K.L.M.’s penis satisfied
the exception set forth in rule 412(1)(A)(ii). In addition, Murdent sought to introduce
evidence that semen on K.L.M.’s scrotum and anus satisfied the exception set forth in rule
412(1)(A)(i).4 We are not persuaded that the evidence regarding K.L.M.’s own semen
found on his penis satisfies the exception set forth in rule 412(1)(A)(ii). This evidence,
without more, does not s how that K.L.M. and Murdent engaged in sexual acts prior to the
alleged offenses. In fact, the record contains no evidence that K.L.M. and Murdent had
any contact prior to becoming cellmates on the date of the first offense.
We are similarly unconvinced that the evidence regarding semen found on K.L.M.’s
scrotum and anus satisfies the exception set forth at rule 412(1)(A)(i) for three reasons.
First, Murdent did not offer the evidence to show the identity of a third party or to show
that a sexual act occurred at a specific time or place. Instead, he offered the evidence only
to cast doubt on K.L.M.’s statement to the investigator that he is “not interested in guys.”
As the district court noted, s uch a purpose is not related to the type of evidence
contemplated by the first exception: evidence of a common scheme or plan. Second, even
assuming that Murdent had suggested that K.L.M. engaged in a specific sexual act as part
of a scheme or plan, Murdent offers no evidence regarding the circumstances of any act.
The rule, however, requires the district court to compare the circumstances of the prior

4 The district court also excluded the semen evidence as improper character evidence, citing
Minnesota Rule of Evidence 405. In light of our decision affirming the exclusion of the
evidence under rule 412, we need not address rule 40 5. Similarly, we need not address
whether the evidence could be characterized as impeachment evidence or whether the
evidence would have been properly excluded under rules 608 or 613(b).
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sexual conduct with the circumstances of the “case at issue. ” In the absence of any
evidence regarding the circumstances of prior sexual conduct, the semen evidence cannot
satisfy the requirements of this exception. Third, even assuming that the semen evidence
showed that K.L.M. had previously consented to a sexual act with a n unidentified male,
the district court correctly concluded that Murdent is unable to show how K.L.M.’s prior
consent is relevant or material to the question of whether K.L.M. consented to sexual
activity with Murdent.
Finally, turning to the next step in the analysis under rule 412, we agree with the
district court’s assessment of the probative value of the evidence and the risk of unfair
prejudice presented by the evidence. Even assuming that the evidence satisfied the
requirements of the exceptions at rule 412(A)(1), it has limited probative value because the
presence of a third party’s semen does not indicate consent, establish K.L.M.’s sexual
orientation, contradict the statements K .L.M. made to the investigator, or (given the
possibility of transference noted by the district court) show that K.L.M. had sexual contact
with any other persons. For these reasons, the district court did not abuse its discretion
when it excluded the semen evidence offered by Murdent .
II. Decision to Admit Evidence of Murdent’s Acts Involving A.R.
Murdent also challenges the district court ’s admission of prior acts evidence .
Murdent argues that the evidence of prior acts involving A.R. was unrelated to whether
Murdent forced sexual contact with K.L.M . Because the state’s trial evidence included
evidence that Murdent pressured K.L.M. in ways that are similar to how Murdent treated
A.R., the district court did not abuse its discretion when it admitted the prior acts evidence .
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Generally, “[e]vidence of other crimes, wr ongs, or acts is not admissible to prove
the character of a person to show that the person acted in conformity therewith on a
particular occasion.” State v. Ness , 707 N.W.2d 676, 685 (Minn. 2006) (citing Minn. R.
Evid. 404(b)). “The overarching concern . . . is that [such evidence] might be used for an
improper purpose, such as suggesting that the defendant has a propensity to commit the
crime or that the defendant is a proper candidate for pun ishment for his or her past acts.”
State v. Fardan, 773 N.W.2d 303, 315 (Minn. 2009) (quotations omitted). Prior acts
evidence, may however, be admitted to show , among other things, “a common scheme or
plan.” Ness, 707 N.W.2d at 865. To show a common scheme, the evidence “need not be
identical in every way to the charged crime but must instead be sufficiently or substantially
similar to the charged offense —determined by time, place and modus operandi.” State v.
Kennedy, 585 N.W.2d 385, 391 (Minn. 1998).
The district court must also consider whether the probative value of the evidence
outweighs its potential for unfair prejudice. Fardan, 773 N.W.2d at 319. Unfair prejudice
is “not merely damaging evidence, even severely damaging evidence; rather, unfair
prejudice is evidence that persuades by illegitimate means.” State v. Schultz, 691 N.W.2d
474, 478 (Minn. 2005). And “[t]he closer the relationship in time, place, and modus
operandi . . . the less likely the evidence will be used improperly by the jury.” State v.
Blom, 682 N.W.2d 578, 612 (Minn. 2004). The district court balances the relevance of the
prior act, the state’s need for the evidence, and the risk that the evidence may be used as
propensity evidence. Fardan, 773 N.W.2d at 319. If admissibility is a close question, the
district court should exclude the evidence. Id. at 316. “A district court’s decision to admit
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[rule 404(b)] evidence is reviewed for an abuse of discretion.” State v. Griffin, 887 N.W.2d
257, 261 (Minn. 2016).
In this case, the district court determined that A.R.’s testimony was evidence of a
common scheme o r plan because Murdent “talked a lot about sex, was really persistent,
made [A.R.] feel uncomfortable, offered [A.R.] shoes [in exchange for sex], [and] wanted
to be enga ged in watching each other masturbate .” In addition, the district court
determined that A.R. “felt he was blocked from the exit , [and] felt that [Murdent] said that
if [he] went down for that instance so would [A.R.] .” The district court reasoned that
because Murdent offered gifts in exchange for sexual acts to both A.R. and K.L.M., that
evidence also went to “that same motive of giving gifts for sexual favors.” The district
court concluded “that the probative value of the prior outweighs any prej udicial effect.”
We agree with the district court that the evidence regarding Murdent’s interactions
with K.L.M. includes several similarities with the evidence of Murdent’s interactions with
A.R. See State v. DeBaere , 356 N.W.2d 301, 305 (Minn. 1984) (holding that similarit ies
in “aggressive sexual behavior” between prior attempted sexual assaults and actual sexual
assault rendered rule 404(b) e vidence admissible). For example, both instances occurred
during unguarded hours, and the solicitation began shortly after Murdent was placed in the
each of the men’s cells. Both A.R. and K.L.M. initially rejected Murdent’s advances, and
Murdent offered both men gifts in exchange for sexual contact. In addition, Murdent asked
both men to engage in watching each other masturbate, and both A.R. and K.L.M. reported
that Murdent positioned himself in such a way as to block their path to the cell door. Given
these specific similarities, the district court did not abuse its discretion when it determined
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that the prior acts evidence was evidence of a common scheme or plan. We also discern
no abuse of discretion in the weight that the district court gave to this evidence or in the
assessment of the unfair prejudice that the prior acts evidence presented.
Affirmed.