IN COURT OF APPEALS
Elmer Mark Meldrum,
Filed November 28, 2006
Stearns County District Court
File No. K6-05-1410
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, Saint Paul, MN 55101-2134; and
Kendall, Stearns County Attorney, Room 448 Stearns County Administrative
M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender,
Elmer Mark Meldrum, OID No. 217498, MCF-St. Cloud, 2305 Minnesota Boulevard Southeast, St. Cloud, MN 56304-2424 (pro se appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Kalitowski, Judge.
S Y L L A B U S
Relationship evidence and Spreigl evidence are analogous and the danger presented by both to a fair trial are significant. The precaution of providing a limiting instruction for Spreigl evidence should be applied to relationship evidence. Even in the absence of a request from counsel, upon admittance of relationship evidence, the district court should provide a cautionary instruction when other-crime evidence is admitted, and again during its final charge to the jury.
O P I N I O N
This is an appeal from appellant’s conviction of domestic assault, Minn. Stat. § 609.2242, subds. 1(1), 4 (2004); terroristic threats, Minn. Stat. § 609.713, subd. 1 (2004); and obstructing legal process or arrest, Minn. Stat. § 609.50, subd. 1(2) (2004). Appellant argues that the district court committed plain error by failing to provide a cautionary instruction upon the state’s introduction of relationship evidence. Appellant, in a pro se supplemental brief, raises additional issues challenging his conviction, which we found to be without merit. We affirm here because the absence of a cautionary instruction did not constitute reversible error.
Appellant Elmer Mark Meldrum was convicted in
Stearns County District Court of domestic assault, Minn. Stat. § 609.2242,
subds. 1(1), 4 (2004); terroristic threats, Minn. Stat. § 609.713, subd. 1
(2004); and obstructing legal process or arrest, Minn. Stat. § 609.50,
subd. 1(2) (2004). Appellant’s
convictions arose from an altercation with his wife, Sandra Meldrum, on
three family members were home on
S. M. was at a neighbor’s house when the altercation between her parents began but later returned home after a friend reported hearing her parents arguing. Sandra “called” appellant on his excessive drinking and appellant became aggressive towards Sandra. Appellant lay across Sandra’s legs, pinning her down in the recliner. Appellant refused to allow Sandra to move even after her persistent requests that appellant “move away [and] back off.” Appellant spoke incompletely, repeatedly asking Sandra “what if?” or “guess what?” Appellant grew angrier, expecting Sandra to answer. A few times appellant told Sandra, “[y]ou know, I could hurt you.”
As appellant continued pinning her down, Sandra grew uncomfortable and afraid. Sandra feared appellant would hurt her or himself. Sandra’s fears stemmed from appellant’s level of intoxication as well as past situations where appellant had grown out of control, shoving and choking her.
Although this altercation primarily involved verbal threats, appellant, more than once, grabbed Sandra by the chin, firmly turning her head towards his. Appellant continued lying across Sandra’s legs, keeping his face within a foot or two of hers. The altercation lasted three hours with appellant screaming at Sandra and “literally spitting and drooling like a crazy man.”
S. M. returned home and witnessed appellant holding Sandra captive in the chair. S. M. found Sandra visibly upset and screaming at appellant to get off her. Appellant told S. M. to leave or else she “would pay” but Sandra requested S. M. stay. Afraid of what appellant might do next, S. M. ran to the neighbor’s house, called the police, and told them appellant was threatening her mother.
Upon arrival at the Meldrum residence, Cold Spring police officers Eric Boucher and Delroy Hageman heard arguing and a female in distress. After no one responded to their knocking, Boucher and Hageman entered the open front door. The officers found Sandra crying in a bathroom and appellant seated in a chair. Sandra reported what had happened – appellant threatened her, grabbed her beneath the throat, forced her to look at him, and held her down against her will. Sandra appeared “completely terrified” to the officers. The officers decided to arrest appellant for domestic assault at which point appellant became uncooperative and argumentative. Appellant resisted arrest and was tasered after approaching one of the officers.
Prior to trial, the district court denied a request for use of Spreigl evidence and ruled that appellant’s prior convictions could not be used for impeachment under the Jones factors. However, the court ruled that evidence of appellant’s four prior domestic abuse convictions were admissible as “relationship evidence” under Minn. Stat. § 634.20 (2004). Appellant’s four prior convictions include two domestic abuse gross misdemeanors in 1997 and felony domestic abuse convictions in 1999 and 2002.
At the end of trial, the court indicated that no Spreigl evidence cautionary instruction would be given unless counsel could provide a reason to include it. Neither counsel provided a reason. Again, before instructing the jury, the court questioned whether either counsel had any additions or corrections to the jury instructions. Neither party commented.
1. Did the district court commit plain error by failing to give the jury a cautionary instruction on evidence of appellant’s prior convictions admitted as relationship evidence?
2. Does appellant state any valid claim in his pro se supplemental brief?
I. Plain Error
courts are granted “considerable latitude” in the selection of language for
jury instructions. State v. Baird, 654 N.W.2d 105, 113 (
an objection at district court, an appellate court may only review for “plain
error.” State v. Crowsbreast, 629 N.W.2d 433, 437 (
review for plain error, an unobjected-to alleged error will only be corrected
upon a finding of the following: (1)
error; (2) it is plain; and (3) it affects the defendant’s substantial
rights. State v. Griller, 583 N.W.2d 736, 740 (
Appellant claims the district court erred by failing to provide the jury with a cautionary instruction related to the “relationship evidence,” thereby entitling him to a new trial. We disagree.
1985, the legislature enacted Minnesota Statute § 634.20, granting the
district court discretion to admit “relationship evidence,” evidence of an
accused’s similar conduct of domestic abuse, after determining that the
probative value of the evidence is not substantially outweighed by the danger
of unfair prejudice. State v. McCoy, 682 N.W.2d 153, 159 (
evidence is similar to, but is not considered, Spreigl evidence. See id. (stating that relationship
evidence is at least “conceptually distinct from Spreigl evidence” because the latter is often evidence of an
unrelated crime whereas the former is evidence of prior conduct between the
accused and the alleged victim and may be offered to put the crime charged in
the relationship between the two). However,
the purpose of each type of evidence is similar. See
State v. Henriksen, 522 N.W.2d 928, 929 (
Rules of Evidence 105 states that “[w]hen evidence which is admissible . .
. for one purpose but not admissible . . . for another purpose is admitted, the
courts, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.” Rule 105
addresses the specific situation where a particular jury instruction is
requested. A specific instruction
regarding the permissible use of Spreigl
evidence should be given upon request. State v. Broulik, 606 N.W.2d 64, 69 (
[b]oth at the time the evidence is received and in the final charge, the court should admonish the jury that the testimony is received for the limited purpose of establishing identity. It is the court’s duty to advise the jury in unequivocal language that defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.
Broulik, 606 N.W.2d at 68
(quoting State v. Billstrom, 276
cautionary instruction at time evidence was admitted and at close of trial), review denied (Minn. Mar. 15, 1994).
purpose of a cautionary instruction is to ensure that the jury uses the
other-crimes evidence solely for the permissible purpose and not to convict the
defendant due to the prior bad acts. State v. Williams, 593 N.W.2d 227, 237 (
Here, appellant argues that the absence of a cautionary instruction led the jury to improperly utilize the evidence of his four prior convictions. Specifically, appellant is concerned that (1) the prosecutor focused extensively on the evidence during closing arguments to the extent that it likely became a focal point during jury deliberations; (2) the nature of the prior convictions rendered them particularly susceptible to misuse by the jury; and (3) reference to appellant owning a firearm may have led the jury to perceive appellant as posing a greater danger and consequently deserving of punishment.
court must look at the entire record to determine if there is a significant
likelihood that the jury misused the evidence, resulting in the evidence
improperly affecting the verdict. State v. Frisinger, 484 N.W.2d 27, 31 (
A cautionary instruction is strongly preferred. However, the absence thereof does not automatically constitute plain error. Instead, other evidence offered during trial may negate the allegation that the probative value of other-crimes evidence is outweighed by its potential for unfair prejudice. Such is the case here where appellant failed to object to the lack of a cautionary instruction and other evidence presented at trial supported appellant’s conviction. In addition, the prosecution did not suggest an improper use of the other-crimes evidence.
II. Pro se Issues
Appellant raises six challenges in his pro se supplemental brief arguing that his convictions should be reversed. We find appellant’s arguments to be without merit.
litigants are generally held to the same standards as attorneys. Liptak
v. State, 340 N.W.2d 366, 367 (
First, appellant claims that 60 hours of recorded conversation between appellant (in jail) and his wife should have been played at trial. This assertion remotely refers to the record, however, it is deemed waived because appellant fails (1) to provide a record of the conversations; (2) to state a probative argument as to why the tapes should be admitted; and (3) to provide any legal authority supporting their admission. See Krosch, 642 N.W.2d at 719; see also State v. Palmer, 391 N.W.2d 857, 859 n.1 (Minn. App. 1986) (holding that the party seeking review has a duty to ensure that the appellate court is presented with a record sufficient to show the alleged error and all matters necessary to decide the question presented).
appellant claims ineffective assistance of counsel because his attorney failed to
effectively argue against the admission of appellant’s prior convictions and to
ensure that the district court judge was removed for cause. These arguments lack merit because in order
to succeed, appellant must affirmatively prove that: (1) “his counsel’s representation ‘fell below
an objective standard of reasonableness’’’ and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (
Appellant’s third, fourth, and sixth claims, that the district court judge should have recused himself, that appellant was not competent to stand trial, and that a letter submitted by appellant’s wife should have exonerated him, respectively, lack merit. These allegations are outside the record and appellant fails to provide any supporting legal authority. Therefore, these allegations are deemed waived.
appellant asserts that the police officers intentionally lied and falsified
information. These arguments lack merit because the jury is the exclusive judge
of witness credibility and determine the weight of the evidence. Dale v. State, 535 N.W.2d 619, 623 (
D E C I S I O N
When relationship evidence is admitted, a cautionary instruction is strongly preferred, however, the absence thereof does not automatically constitute plain error. The absence of a cautionary instruction here did not constitute reversible error. Other evidence offered during trial negated appellant’s allegation that the probative value of the relationship evidence was outweighed by unfair prejudice. The issues raised by appellant in his pro se supplemental brief are without merit.
 State v. Spreigl, 272