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This opinion is nonprecedential except as provided by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
A22-0744

State of Minnesota,
Respondent,

vs.

Jeramy John Wharton,
Appellant.

Filed March 27, 2023
Affirmed
Slieter, Judge

Kandiyohi County District Court
File No. 34-CR-20-865

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

Shane D. Baker, Kandiyohi County Attorney, Julianna F. Passe, Assistant County
Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant argues that he is entitled to a new trial because (1) the district court abused
its discretion by admitting relationship evidence pursuant to Minn. Stat. § 634.20 (2022),
and (2) the prosecutor committed misconduct by eliciting prejudicial testimony from
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witnesses and failing to prepare its witnesses. In the alternative, appellant asserts that the
cumulative effect of these errors requires a new trial. Because the district court acted within
its discretion by admitting relationship evidence and because the prosecutor did not commit
misconduct, we affirm.
FACTS
Respondent State of Minnesota charged appellant Jeramy John Wharton with two
counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343,
subd. 1(a), (g) (2012). The complaint alleged that Wharton committed the offense against
M.B. when she was approximately 11 years old. M.B. is Wharton’s daughter and the
offense occurred when she was staying with Wharton at his home.
Prior to trial, the state sought to introduce evidence pursuant to Minn. Stat. § 634.20,
of three instances of similar sexual misconduct Wharton committed against other family or
household members. One instance resulted in Wharton’s 2017 conviction of first-degree
criminal sexual conduct involving another daughter, A.S. The other two instances involved
pending charges of criminal sexual conduct.
Over Wharton’s objection, the district court granted the state’s motion in part by
allowing evidence related to the 2017 conviction pursuant to section 634.20, but excluding
evidence of the other two alleged instances of criminal sexual conduct.
During the trial, A.S. testified about the facts underlying Wharton’s 2017 conviction
for criminal sexual conduct against her. Prior to A.S.’s testimony and during its final
instructions, the district court provided limiting instructions to the jury about how it should
consider A.S.’s testimony.
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M.B., the victim of the current offense, also testified. She said that Wharton is her
biological father and that some time in spring 2013, when she was temporarily living at
Wharton’s residence, Wharton “grabbed” her arm, causing her to fall onto his bed where
he proceeded to inappropriately touch her.
The jury returned guilty verdicts on both charges of second-degree criminal sexual
conduct. Following conviction of one count of second-degree criminal sexual conduct, the
district court imposed a presumptive executed prison sentence of 36 months. 1
Wharton appeals.
DECISION
I. The district court acted within its discretion by admitting the relationship
evidence.

In general, evidence about criminal activity unrelated to the crime for which a
person is on trial is inadmissible. See State v. Spreigl, 139 N.W.2d 167, 169 (Minn. 1965).
However, the district court may allow the state to present “[e]vidence of domestic conduct
by the accused . . . against other family or household members,” which is commonly
referred to as “relationship evidence.” Minn. Stat. § 634.20; State v. Matthews, 779
N.W.2d 543, 549 (Minn. 2010). “Domestic conduct” includes “domestic abuse,” which is
defined, in part, as criminal sexual conduct. Minn. Stat. §§ 634.20, 518B.01, subd. 2(a)(3)

1 At the time of his sentence, Wharton was serving a prison sentence for another
criminal-sexual-conduct offense. That offense, as well as this second-degree
criminal-sexual-conduct offense, are eligible for a permissive consecutive sentence. Minn.
Sent’g Guidelines 6 (2012). The district court imposed a permissive consecutive sentence
with a duration based on a zero criminal history score, as required by the sentencing
guidelines. Minn. Sent’g Guidelines 2.F.2.a (2012).
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(2022). “Family or household members” include “parents and children.” Minn. Stat.
§ 518B.01, subd. 2(b) (2022). Such relationship evidence is generally admissible “unless
the probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issue, or misleading the jury.” Minn. Stat. § 634.20; State v. McCoy, 682 N.W.2d
153, 156 n.1 (Minn. 2004); see also State v. Fraga, 864 N.W.2d 615, 627 (Minn. 2015)
(adopting the statute as a rule of evidence).
We review the district court’s decision to admit relationship evidence for an abuse
of discretion. McCoy, 682 N.W.2d at 161. “A district court abuses its discretion when its
decision is based on an erroneous view of the law or is against logic and the facts in the
record.” Bobo v. State , 969 N.W.2d 829, 836 (Minn. 2022) (quotation omitted). “For a
reversal of a district court’s evidentiary ruling, [an appellant] must prove that the admission
of evidence was erroneous and prejudicial.” State v. Loving, 775 N.W.2d 872, 879 (Minn.
2009). This court “will reverse the district court’s ruling if the error substantially
influenced the jury’s decision.” Id.
Probative Value

Wharton asserts that the district court abused its discretion by allowing A.S.’s
testimony about Wharton’s prior criminal-sexual-conduct offense, arguing that “[t]here
was little, if any, legitimate probative value to A.S.’s testimony.”
The Minnesota Supreme Court has stated that the rationale for admitting
relationship evidence is to illuminate the relationship between the defendant and the victim,
as well as to put the crime in the context of that relationship. McCoy, 682 N.W.2d at 159.
In Ware, we concluded that “the probative value of relationship evidence involving a
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family or household member is high because ‘evidence showing how a defendant treats his
family or household members . . . sheds light on how the defendant interacts with those
close to him, which in turn suggests how the defendant may interact with the victim.’”
State v. Ware, 856 N.W.2d 719, 729-30 (Minn. App. 2014) (quoting State v. Valentine, 787
N.W.2d 630, 637 (Minn. App. 2010), rev. denied (Minn. Nov. 16, 2010)).
During A.S.’s testimony, she explained that when she was between ages 12 and 14,
Wharton would touch her inappropriately and “have sexual intercourse” with her. She
testified that, as a result, she became pregnant at age 14 and Wharton was the biological
father of the child.
In support of his argument that the district court erred by allowing this evidence,
Wharton emphasizes that A.S.’s testimony did not provide any evidence about M.B.
Wharton’s argument misapprehends the purpose of relationship evidence . A.S.’s
testimony sheds light on Wharton’s relationship with M.B., his daughter, by showing his
conduct with another daughter when she was about the same age as M.B. at the time of the
incident. This falls squarely within probative relationship evidence as defined by
controlling caselaw. See Valentine, 787 N.W.2d at 637.
2

2 As to Wharton’s assertion that the district court abused its discretion by admitting A.S.’s
testimony because it did not affect M.B.’s credibility, we disagree. Relationship evidence
can be probative in part because it may assist a jury in assessing the credibility of the
victim’s account. See Matthews, 779 N.W.2d at 549. By these facts, the district court
acted within its discretion by admitting the testimony of A.S.
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Danger of Unfair Prejudice

“When balancing the probative value against the potential prejudice, unfair
prejudice is not merely damaging evidence, even severely damaging evidence; rather,
unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair
advantage.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).
Persuasion by illegitimate means includes “leading the jury to improperly conclude that
[the defendant] has a propensity to behave criminally and should now be convicted, and
punished, for the charged offenses.” State v. Hormann, 805 N.W.2d 883, 891 (Minn. App.
2011), rev. denied (Minn. Jan. 17, 2012).
Wharton argues that unfair prejudice from A.S.’s testimony “easily outweighed its
probative value, and should have been excluded” because A.S.’s testimony amounted to
propensity evidence that “ merely impugned Wharton’s character and suggested he was
worthy of punishment.” Based on the record, we disagree.
As discussed, the evidence has probative value pursuant to Valentine because it
reveals how Wharton interacted with another young daughter while she was in his home.
This, in turn, suggests how Wharton may have interacted with M.B. And, although “[a]ll
evidence offered against defendants in criminal trials is prejudicial to some extent ,” State
v. Spaeth, 552 N.W.2d 187, 195 (Minn. 1996), the district court provided two sets of
limiting instructions to the jury. The district court carefully prefaced the introduction of
A.S.’s testimony with the following:
You are about to hear evidence of conduct by the defendant
from April 2015 in Kandiyohi County. This evidence is being
offered for the limited purpose of demonstrating the nature and
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extent of the relationship between the defendant and his
household or family members in order to assist you in
determining whether the defendant committed those acts with
which the defendant is charged in the complaint.

The defendant is not being tried for and may not be convicted
of any behavior other than the charged offenses. You are not
to convict the defendant on the basis of conduct from April
2015 in Kandiyohi County.

And the district court repeated a similar limiting instruction during its final instructions to
the jury.
A district court’s limiting instruction “lessen[s] the probability of undue weight
being given by the jury to the evidence.” State v. Lindsey, 755 N.W.2d 752, 757 (Minn.
App. 2008) (quotation omitted), rev. denied (Minn. Oct. 29, 2008). Courts trust that juries
follow the cautionary instructions the district court issues. See Matthews, 779 N.W.2d at
550. The danger of unfair prejudice in this case is therefore low because the district court
gave the jury a cautionary instruction twice. See Lindsey, 755 N.W.2d at 757. And, as we
have already noted, the evidence was highly probative. Accordingly, the record supports
the district court’s finding that the probative value of Wharton’s prior acts of criminal
sexual conduct against another daughter was not substantially outweighed by the danger of
unfair prejudice.
II. Prosecutorial misconduct was not committed.

Wharton argues that the prosecutor committed misconduct by failing to prevent two
witnesses from making inadmissible statements during direct examination. Wharton did
not object to this alleged misconduct.
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When prosecutorial misconduct is unobjected to during trial, appellate courts apply
a modified plain-error test. State v. Ramey, 721 N.W.2d 294, 297-98 (Minn. 2006). Plain
error consists of (1) error, (2) that is plain, and (3) affects substantial rights. State v. Leake,
699 N.W.2d 312, 327 (Minn. 2005) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998)). The appellant bears the burden of satisfying the first two prongs of the plain-error
test. Ramey, 721 N.W.2d at 302. “An error is plain if it was clear or obvious,” and plain
error may be demonstrated “if the error contravenes case law, a rule, or a standard of
conduct.” Id. (quotations omitted).
Once the defendant demonstrates plain error, the burden shifts to the state “to
demonstrate lack of prejudice; that is, the misconduct did not affect substantial rights.” Id.;
Minn. R. Crim. P. 31.02. “Plain error affects a defendant’s substantial rights if there is a
reasonable likelihood that the errors had a significant effect on the jury’s verdict.” State v.
Bustos, 861 N.W.2d 655, 663 (Minn. 2015) (quotation omitted).
Wharton argues that the two statements are plainly misconduct because the
prosecutor either intentionally elicited inadmissible and prejudicial answers from the
testifying witnesses or failed to properly prepare the witnesses to prevent them from
offering inadmissible testimony.
Two lines of caselaw are relevant to this analysis. First, “[i]t is improper for a
prosecutor to ask questions that are calculated to elicit or insinuate an inadmissible and
highly prejudicial answer.” State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001). And
second, because “ Minnesota law is crystal clear” that “the state has an absolute duty to
prepare its witnesses to ensure that they are aware of the limits of permissible testimony,”
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failure to prevent a witness from spontaneously offering inadmissible testimony is
misconduct. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003), rev. denied (Minn.
June 25, 2003).
M.B.’s Testimony
The first purportedly inadmissible statement came from M.B., when the prosecutor
questioned her about disclosing the incident with Wharton to her mother:
Q: And why did you tell your mom?

A: ‘Cause I felt that it needed to come out since I knew he
wasn’t gonna come out and hurt me since he was already in
prison but I was still nervous to come out sooner because I
didn’t know if he had friends that would come to the house and
hurt me in any way.

Wharton contends that M.B.’s reference to his imprisonment was inadmissible and
that the state had a duty not to elicit such testimony or, alternatively, to prepare its witnesses
not to offer such testimony. References to a defendant’s incarceration can be unfairly
prejudicial, but there is no general rule that such references are per se error. State v.
Manthey, 711 N.W.2d 498, 506 (Mi nn. 2006). We must consider the context of the
reference. See State v. Shaka, 927 N.W.2d 762, 770-71 (Minn. App. 2019) (revealing
defendant’s custody status to lay foundation for recorded jail phone calls was not plain
error), rev. dismissed (Minn. Nov. 19, 2019); see also State v. Guzman, 892 N.W.2d 801,
813 (Minn. 2017) (considering the context and purpose of a statement by a witness about
incarceration).
In this case, the context of M.B.’s statement was relevant. See Minn. R. Evid. 401
(“‘Relevant evidence’ means evidence having any tendency to make the existence of any
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fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.”). Wharton’s incarceration provided the
circumstances for M.B. to feel safe enough to report the incident. Considering the context
of M.B.’s statement and that nothing in the record suggests that the prosecutor intended to
elicit objectionable or prejudicial statements regarding Wharton’s imprisonment, the
statement did not amount to error.
Detective’s Testimony
Wharton argues that the second inadmissible statement came from the detective who
interviewed M.B. The detective was questioned by the prosecutor as follows:
Q: Are you familiar with Mr. Wharton?

A: I heard his name, maybe had some dealings with him in the
past but I mean I’ve heard his name just from working for so
long so.

Wharton contends that the detective’s answer, whether elicited intentionally or
“merely blurted out,” amounts to plain error. It can be plain error for a prosecutor to elicit
testimony from an officer about knowing a defendant from “prior contacts and incidents.”
State v. Strommen, 648 N.W.2d 681, 686-89 (Minn. 2002) (holding that it was plain error
to elicit statements from a police officer regarding prior contacts with the defendant when
identity was not at issue and another witness testified that the defendant had been charged
for killing someone). However, “Strommen did not hold that the officer’s comments about
prior contacts, on their own, were reversible plain error.” Valentine, 787 N.W.2d at 641.
Unlike Strommen, the detective’s statement that he knew Wharton from prior
“dealings” was not coupled with an earlier, inadmissible statement that Wharton had
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committed a crime. Moreover, the detective’s vague statements about “maybe” having had
“dealings” with Wharton and having “heard his name just from working so long” did not
imply that the detective’s familiarity was based on bad acts committed by Wharton. In
addition, the prosecutor quickly changed the topic after the detective ’s statement, making
it clear that he did not intend to elicit the testimony. Therefore, even if the detective’s
statement was an error, it was not plain.
Wharton did not meet his burden to show prosecutorial misconduct due t o
inadmissible testimony under the plain-error test. Therefore, we need not address whether
Wharton’s substantial rights were affected.
III. The cumulative effect of any errors did not impact the fairness of the trial.
In rare cases, “the cumulative effect of trial errors can deprive a defendant of his
constitutional right to a fair trial when the errors and indiscretions, none of which alone
might have been enough to tip the scales, operate to the defendant’s prejudice by producing
a biased jury.” State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012) (quotation omitted).
“The test is whether the effect of the errors considered together denied appellant a fair
trial.” Valentine, 787 N.W.2d at 642.
Because the preceding analysis did not establish multiple errors , there is no
cumulative effect that deprived Wharton of a fair trial. See id.
Affirmed.