This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,


Richie Gene Probert,


Filed May 9, 2000


Davies, Judge


Hennepin County District Court

File No. 98034690



Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge, Davies, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant was convicted of first-degree assault for inflicting great bodily harm on his three-month-old son.  He challenges admission of evidence that his son had suffered rib fractures one month before the alleged offense when there was no clear-and-convincing evidence that appellant was responsible for that injury.  Because any error in admitting this evidence was harmless, we affirm.


            Appellant Richie Gene Probert stated that on March 24, 1998, he had placed his son, L.P., on an 18-inch-high living-room couch as he went to fix a bottle of formula in the kitchen.  When he returned, he found L.P. rigid and shaking on the carpet next to the couch.  Appellant claimed he picked L.P. up and shook him lightly, slapped his face lightly, and then put some water on his face in an attempt to get a response.  Appellant asked his wife to call 911 because L.P. was limp, unresponsive, his eyes had rolled back, and he was having trouble breathing.

At the hospital, L.P. was found to have pupils of unequal size, which is indicative of a significant increase in intracranial pressure.  He had a bruise on his forehead, but no other signs of external trauma.  L.P. was diagnosed as having suffered brain damage.  The emergency-room doctors reported the case as a possible “shaken baby.”

            Appellant was subsequently charged with first-degree assault.  The only issue at trial was whether L.P.’s injuries were caused by an accident or whether appellant intentionally injured him.  The state presented a number of expert witnesses to testify about shaken-baby syndrome, including the physicians who treated L.P.  These experts all agreed that L.P.’s injuries were not consistent with appellant’s explanation of events.  L.P. was convicted and sentenced to an 86-month prison term.  This appeal follows.



Rulings on evidentiary matters rest within the sound discretion of the trial court and will not be reversed absent a prejudicial abuse of that discretion.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

A.        Relationship Evidence

The state wanted to introduce evidence of month-old posterior rib fractures to show that appellant had a history of providing explanations for injuries to L.P. that were inconsistent with how the injuries actually occurred.

The trial court allowed a family friend to testify that she remembered a bruise on L.P’s chest that she had seen two weeks to two months before the shaking incident (around the time the rib fractures would have occurred).  She testified that when she asked appellant about the bruise he said it might have been caused by a seatbelt being too tight.  The state provided evidence that this explanation was inconsistent with the injury.

Evidence showing the history of the relationship between a defendant and victim is “ordinarily admissible in criminal prosecutions, regardless of its reference to another crime.”  State v. Blanchard, 315 N.W.2d 427, 431 (Minn. 1982).  Relationship evidence is important in domestic-abuse cases because it helps the jury put the defendant’s conduct in context and assists the jury in assessing the defendant’s intent and motivation.  State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994).

Minn. Stat. § 634.20 (1998) provides that:

Evidence of similar prior conduct by the accused against the victim of domestic abuse[1] * * * is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.


See also State v. Cross, 577 N.W.2d 721, 726 n.2 (Minn. 1998) (noting that this statute expressed legislative intent in domestic-abuse prosecutions to remove evidence of “similar prior conduct” from “clear and convincing” standard of rule 404(b)).

Notwithstanding this change, it was error to admit this evidence because the state did not establish a proper foundation linking appellant to L.P.’s previous injury, either by direct evidence or by evidence eliminating all other possible perpetrators.  In admitting this evidence, the trial court erred.

B.        Diagnosis Evidence

            An expert witness may rely on facts and data that would be inadmissible at trial to form an opinion, Minn. R. Evid. 703(a), but the expert may actually testify only to information that is independently admissible, Minn. R. Evid. 703(b).  Because these earlier injuries were not linked to appellant, the trial court erred in allowing the experts to testify that these injuries were, in part, the basis for their diagnosis; this evidence was not independently admissible.

C.        Harmless Error

Where the trial court has erred in admitting evidence, the reviewing court must determine whether there is a reasonable probability that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been favorable to the defendant without the evidence, then the error is prejudicial.  Id.

Appellant’s own inculpatory statements to hospital personnel, viewed with the testimony of the four experts (excluding references to the prior bruises), provided compelling evidence of appellant’s guilt.  The evidentiary error that occurred was harmless beyond a reasonable doubt.


            In his pro se brief, appellant challenges the sufficiency of the evidence and claims ineffective assistance of counsel.

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did. 


State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must further assume that  “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

            Appellant argues that the evidence was insufficient to prove that he intended to inflict bodily harm.  Because intent is subjective, it must generally be proved by inferences drawn from a person’s conduct in light of the surrounding circumstances.  State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996).  The jury apparently believed the experts’ opinions that the injuries were inconsistent with appellant’s story and that the injuries were not accidental.  This evidence is sufficient to support the inference that appellant intended to inflict bodily harm on the baby.  See State v. Ostlund, 416 N.W.2d 755, 760-61 (Minn. App. 1987) (holding medical experts’ testimony regarding child’s injuries sufficient to support reasonable inferences that injuries were not caused by accidental fall from couch, but by shaking), review denied (Minn.  Feb. 24, 1988). 

            Appellant also argues ineffective assistance of counsel based on his attorney’s decision not to request a lesser-included-offense jury instruction.  A defense counsel’s tactical decisions are insufficient to support a claim of ineffective assistance of counsel.  See State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998) (dispute with attorney’s trial tactics not basis for finding ineffective assistance of counsel).  The attorney’s failure to request a “lesser-included” instruction was a matter of trial strategy.  See State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (attorney’s failure to request an intoxication jury instruction was trial strategy).

The arguments in appellant’s pro se brief fail.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Domestic abuse includes physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members.  Minn. Stat. § 518B.01, subd. 2(a) (1998).