This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-1662

State of Minnesota, 

Respondent, 

vs. 

Frederick Raymond Couch, 

Appellant.

Filed December 19, 2016

Affirmed

Jesson, Judge

Hennepin County District Court

File No. 27-CR-14-27906

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, 

Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Jesson, 

Judge. 
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U N P U B L I S H E D O P I N I O N

JESSON, Judge

Appellant Frederick Raymond Couch argues that the district court committed 

reversible error by admitting evidence of his relationship with a former girlfriend and that 

the district court erred when it entered convictions and imposed sentences on counts of 

both third-degree criminal sexual conduct and a pattern-of-stalking conduct. Because the 

district court did not abuse its discretion in admitting the relationship evidence under 

Minnesota Statutes section 634.20 (2014) and because third-degree criminal sexual 

conduct is not a lesser-included offense of a pattern-of-stalking conduct, we affirm.

FACTS

In August 2014, the victim, J.A., moved from Texas to Minnesota, where she lived 

with her three children, mother, aunt, uncle, and grandfather. Shortly thereafter, J.A. met 

appellant Frederick Raymond Couch online, and the two began dating. During the 

relationship, they texted each other daily, met at J.A.’s house, discussed “normal, everyday 

things,” and had sex. Couch mainly visited J.A. at her house, and they did not do much 

outside of his visits. J.A. considered him a boyfriend. 

The relationship was short-lived. After a month, J.A. tried to end the relationship 

after her uncle expressed concerns about Couch. Despite her attempt to end contact with 

him, Couch continued calling and texting J.A., as well as driving by her house.

On September 4, 2014, Couch knocked on J.A.’s bedroom window, asking her to 

bring him food. She brought him food outside, but he did not like it and flipped the plate 

into J.A.’s face. Couch began walking away, but he turned around and hit J.A. in the face 
3

with his fist. After an ensuing argument, he put his hands down J.A.’s pants and digitally 

penetrated her. As J.A. turned to go inside her house, Couch grabbed her from behind, 

picked her up, and choked her, telling her he wanted to have sex outside. J.A. testified that 

she told him she did not want to have sex, but then did have sex with Couch because “he 

was gonna [sic] make good on his threats.” 

That evening, J.A.’s mother called the police because she heard a commotion and 

saw red marks across J.A.’s face. The police arrived shortly after the call. J.A. told the 

police that Couch punched and choked her. But she did not tell the police about the sexual

conduct because she did not want her mother to hear about it. Later that night, Couch 

threatened to return to the house and burn it down; the police were called again. The next 

day, J.A. obtained an order for protection against Couch. Despite the order, Couch 

continued to communicate with J.A.

On September 19, Couch knocked on J.A.’s bedroom window and requested that 

she come outside. J.A.’s mother called the police and Couch was arrested. At that point, 

J.A. told police that Couch raped her on September 4. Couch was charged by amended 

complaint with third-degree criminal sexual conduct, stalking, pattern-of-stalking conduct, 

domestic assault by strangulation, and domestic assault.

At trial, over defense counsel’s objection, the district court admitted evidence of 

Couch’s previous domestic conduct in a relationship he had with H.M.1 Couch and H.M.’s 

relationship was also short-lived. H.M. met Couch online and they dated for a few weeks 

 

1 The district court also gave limiting instructions before the evidence was presented and 

in jury instructions. 
4

in June 2014. H.M. thought that Couch was nice and considered him a boyfriend. They

spent time at her home, as well as Couch’s sister’s house. They had sex at her home. 

H.M. testified that when Couch was drinking, he was often rude and angry. He hit

her in the face with an open hand. A few days later, Couch returned, again hit H.M. with 

his open hand and, as she fell on the bed, held her down and sexually penetrated her against 

her will. Four days later he returned, forced his way into her apartment, and choked her. 

He left and slashed her car tires. 

Couch did not testify at trial. He was found guilty of all charges and sentenced to 

135 months in prison on the conviction of third-degree criminal sexual conduct and 43 

months on the conviction of a pattern-of-stalking conduct, to be served concurrently. This 

appeal follows. 

D E C I S I O N

I. The district court properly admitted evidence of Couch’s abuse of H.M.

as relationship evidence under Minnesota Statutes section 634.20.

Couch challenges the district court’s admission of H.M’s testimony as relationship 

evidence under Minnesota Statutes section 634.20. Under that statute, the district court 

may admit “[e]vidence of domestic conduct by the accused against the victim of domestic 

conduct, or against other family or household members,” provided that certain conditions 

are met. Minn. Stat. § 634.20. Relationship evidence is relevant because it assists in 

illuminating the history of the relationship between the defendant and the victim, and it 

may also help to prove motive or help the jury to assess witness credibility. State v. 
5

Matthews, 779 N.W.2d 543, 549 (Minn. 2010).2 Thus, such evidence is admissible if its 

probative value is not substantially outweighed by the danger of unfair prejudice against 

the defendant, confusing the issue, misleading the jury, undue delay, or the unnecessary 

presentation of cumulative evidence. Minn. Stat. § 634.20. 

Evidentiary rulings generally rest within the district court’s discretion, and this court 

will not reverse a district court’s decision on the admission of evidence absent an abuse of 

that discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). This rule applies to 

the admission of relationship evidence. Matthews, 779 N.W.2d at 553. If the district court 

erroneously admits evidence, an appellate court will nonetheless affirm unless the appellant 

establishes prejudice from the abuse of discretion, which occurs if there is a reasonable 

possibility that the wrongfully admitted evidence significantly affected the verdict. State 

v. O’Meara, 755 N.W.2d 29, 35 (Minn. App. 2008). This court, however, reviews matters 

of statutory construction de novo. State v. Barnslater, 786 N.W.2d 646, 650 (Minn. App. 

2010), review denied (Minn. Oct. 27, 2010). 

A. H.M. qualifies as a family or household member under Minnesota Statutes 

section 634.20.

Couch argues that the district court erred by admitting evidence of H.M.’s abuse 

because she does not qualify as his “family or household member,” as their relationship 

 

2 Relationship evidence is treated differently from evidence of other crimes or bad acts, 

which is addressed under Minnesota Rule of Evidence 404(b). Other-crimes evidence is 

not admissible to prove that a defendant acted in conformity with his character, but it may 

be admissible for other purposes, such as to prove motive, intent, plan, knowledge, identity, 

or absence of mistake or accident. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 

490-91, 139 N.W.2d 167, 169 (1965). Section 634.20 “allows much more latitude” than 

the exceptions in rule 404(b). State v. Word, 755 N.W.2d 776, 784 (Minn. App. 2008). 
6

was not significant. A family or household member includes a “person involved in a 

significant romantic or sexual relationship.” Minn. Stat. § 634.20; Minn. Stat. § 518B.01, 

subd. 2(b)(7) (2014). To determine whether there is a significant relationship, courts may 

consider the following: length of time of the relationship, type of relationship, frequency 

of interaction between parties, and the length of time since termination (if terminated).3 

Minn. Stat. § 518B.01, subd. 2(b). 

Couch and H.M. had a two-week relationship where they talked, texted, saw each 

other on several occasions in different locations, and had sexual intercourse an unspecified

number of times. H.M. thought of Couch as her boyfriend. Couch argues that his 

relationship with H.M. could not be called significant because the relationship only lasted 

two weeks, they mostly visited at H.M.’s apartment, and only occasionally had sex. There 

is no evidence that their feelings were deep enough to qualify as love, Couch contends, and 

a short-lived sexual relationship should not qualify as significant. 

But when determining whether a relationship is significant, we need not ascertain 

whether the parties loved each other. Rather, we look at the frequency of interaction and 

length and type of relationship. We also consider the length of time since termination. 

Here, given the sexual nature of the relationship and the fact that H.M. considered Couch 

her boyfriend, the relationship was intimate. And the pair saw each other frequently, albeit 

 

3 Couch does not argue that the district court failed to consider the four statutory factors to 

determine whether the former relationship qualifies as a significant romantic or sexual 

relationship. Cf. Sperle v. Orth, 763 N.W.2d 670, 675 (Minn. App. 2009) (requiring a 

district court to consider the statutory factors to determine whether a relationship is 

significant under the Domestic Abuse Act when issuing orders for protection). 
7

over a short period of time. Finally, there was less than two months between the 

termination of the relationship with H.M. and the relationship with J.A and less than one 

year between H.M.’s relationship with Couch and her testimony at trial. 

In State v. Valentine, we allowed evidence of domestic abuse by the defendant 

against his other girlfriend. We did so because evidence showing how a defendant treats

his family or household members, including other girlfriends, “sheds light on how the 

defendant interacts with those close to him, which in turn suggests how the defendant may 

interact with the victim.” 787 N.W.2d 630, 637 (Minn. App. 2010), review denied (Minn. 

Nov. 16, 2010). To hold a relationship with a former girlfriend, H.M., to a higher standard 

in terms of the frequency of interaction and length and type of relationship than his 

relationship with J.A.—when the two relationships were strikingly similar—would defeat 

the goal of relationship evidence: to shed light on how the defendant interacts with those 

close to him.

The district court did not err by concluding that evidence of H.M.’s prior abuse was 

relationship evidence with respect to Couch’s abuse of J.A.

B. The district court did not abuse its discretion in concluding that the probative 

value of the evidence was not outweighed by its unfair prejudice.

Couch argues that even if evidence concerning H.M.’s abuse qualifies as 

relationship evidence, it was improperly admitted because its probative value was 

outweighed by its prejudicial effect. A prejudicial effect refers to unfair prejudice, not 

merely damaging evidence or even severely damaging evidence. State v. Meyer, 749 
8

N.W.2d 844, 849 (Minn. App. 2008). Rather, unfairly prejudicial evidence gives one party 

an unfair advantage because it persuades by illegitimate means. Id. 

Couch argues that the state did not need the evidence. The state’s need for 

relationship evidence “is naturally considered as part of the assessment of [its] probative 

value versus [its] prejudicial effect.” Id. (quotation omitted). Couch points out that the 

rationale for admitting relationship evidence stems from the concern that domestic abuse 

cases often are difficult to prosecute due to the private nature of the actions and the abuser’s 

assertion of control. This concern is not present here, he contends, because J.A. was not a 

reluctant witness. 

J.A. testified, as did her mother, her aunt and uncle, and the investigating police 

officer. But the abuse did occur in private. And while J.A.’s mother called the police when 

she saw a red and purple mark across J.A.’s face, J.A. did not tell the police about the 

nonconsensual sex until 15 days after the initial police interview. J.A. was questioned on 

cross-examination about her failure to immediately report the sexual conduct to the police 

that evening. And in closing arguments, Couch’s attorney strongly argued that the criminal 

sexual conduct was not proved, pointing to the lack of physical evidence. The relationship 

evidence of conduct against H.M. could have assisted the jury in weighing the credibility 

of J.A.’s allegations, particularly given the delayed reporting and lack of a sexual assault 

examination. 

Whether this probative value is outweighed by any prejudicial effect is a closer 

issue. But we review only for an abuse of discretion, not to see whether we would reach a 

different result. In this case, the prejudicial effect of the relationship evidence was lessened 
9

because the district court twice gave cautionary instructions to the jury. Those instructions 

informed the jury that the evidence was being submitted for the limited purpose of assisting

the jury to determine whether Couch committed the charged offense, it was to be used to 

demonstrate the nature and extent of his relationship with H.M., the jury was not to convict 

Couch of any other offense, and it was not to convict him on the basis of any occurrence 

against H.M.4 See State v. Lindsey, 755 N.W.2d 752, 757 (Minn. App. 2008) (stating that 

cautionary instructions lessened the probability that the jury would give undue weight to 

relationship evidence), review denied (Minn. Oct. 29, 2008); see also State v. Ferguson, 

581 N.W.2d 824, 833 (Minn. 1998) (stating that this court assumes that a jury follows the 

district court’s instructions). Furthermore, in its closing argument, the state’s reference to 

the relationship evidence was very brief and reminded the jury not to convict Couch based 

on his actions against H.M.5

We conclude that, on this record, the probative value of the relationship evidence is 

high because it “sheds light on how the defendant interacts with those close to him, which 

in turn suggests how the defendant may interact with the victim.” Valentine, 787 N.W.2d 

at 637. And given the district court’s cautionary instructions, the danger of unfair prejudice 

 

4 These instructions follow the appropriate pattern jury instructions when a party introduces 

relationship evidence under section 634.20. See 10 Minnesota Practice CRIMJIG 2.07 

(2015). 

5 We would be more concerned about potential prejudice from this relationship evidence if 

Couch’s abuse of H.M. were more frequent or more violent than that involving J.A. That 

was not the case here. The situations were remarkably similar.
10

is reduced. Accordingly, the district court properly exercised its discretion by admitting 

the relationship evidence. 

II. The district court did not commit reversible error when it imposed 

sentences on both the criminal sexual conduct and the pattern-ofstalking convictions because the former is not a lesser-included offense 

of the latter. 

The district court entered convictions on Couch’s third-degree criminal sexual 

conduct offense and his pattern-of-stalking-conduct offense and sentenced him to 

concurrent sentences of 135 months on his conviction of third-degree criminal sexual 

conduct and 43 months on his conviction of a pattern-of-stalking conduct. The sentences 

are to be served concurrently. Couch argues that this amounts to error because third-degree 

sexual conduct is a lesser included offense of pattern-of-stalking conduct. There were no 

objections on this ground at sentencing. But this court may correct an illegal sentence at 

any time. Minn. R. Crim. P. 27.03, subd. 9.

In Minnesota, a person may only be convicted of “either the crime charged or an 

included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2014). The legislature has 

defined a lesser-included offense as:

1) A lesser degree of the same crime; or

2) An attempt to commit the crime charged; or

3) An attempt to commit a lesser degree of the same crime; or

4) A crime necessarily proved if the crime charged were proved; or

5) A petty misdemeanor necessarily proved if the misdemeanor charge were 

proved.

Id.

Criminal sexual conduct is not a lesser degree of pattern-of-stalking conduct. See

Minn. Stat. § 609.749, subd. 5. There is no crime for an “attempt” to commit a pattern-of-
11

stalking conduct. See id.; Minn. Stat. § 609.17 (2014) (explaining that whoever intends to 

commit a crime and does an act, which is a substantial step toward the commission of that 

crime, is guilty of an attempt to commit that crime). Nor is there a corresponding petty 

misdemeanor, compare Minn. Stat. § 609.02, subd. 4a (2014) (defining a petty 

misdemeanor as an offense prohibited by statute, which does not constitute a crime and for 

which a sentence of a fine not more than $300 may be imposed), with Minn. Stat. 

§ 609.749, subd. 5 (making a pattern-of-stalking-conduct conviction a felony). Therefore, 

third-degree criminal sexual conduct will only be a lesser-included offense if it is 

“necessarily proved” when a pattern-of-stalking conduct is proved. Minn. Stat. § 609.04, 

subd. 1(4).

To determine whether one offense is necessarily proved by another, the court must 

look at statutory definitions, not the facts of the particular case. State v. Gisege, 561 

N.W.2d 152, 156 (Minn. 1997); State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982).6 A person 

is guilty of a pattern-of-stalking conduct if he or she engages in two or more criminal acts 

within a five-year period, toward a single victim or members of a single household, which 

the actor knows or has reason to know would cause the victim to feel terrorized or fear 

bodily harm, and the conduct causes this reaction. Minn. Stat. § 609.749, subd. 5(a). The 

state need not prove each criminal act beyond a reasonable doubt for the act to constitute 

an act for a pattern-of-stalking-conduct conviction. See id., subd. 5(b) (the state must show 

 

6 We note that this analysis differs from the single-behavioral-incident determination under 

Minnesota Statute 609.035 (2014), which is based on the particular facts of the case. Here, 

Couch does not argue that the district court erred in sentencing because his conduct 

constituted a single behavioral incident. 
12

that a defendant did “violate or attempt to violate” the enumerated offenses to constitute a 

criminal act under this statute). In contrast, to be convicted of third-degree criminal sexual 

conduct, there must be intentional sexual penetration through use of force or coercion. 

Minn. Stat. § 609.344, subd. 1(c) (2014). Consequently, because intentional sexual 

penetration is not “necessarily proved” when a pattern-of-stalking conduct is proved, 

criminal sexual conduct in the third degree is not a lesser-included offense of pattern-ofstalking conduct. The district court’s imposition of concurrent sentences for the two 

convictions was within the court’s discretion. 

Affirmed.