This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Elizabeth Villanueva,



Filed September 12, 2000


Kalitowski, Judge


Hennepin County District Court

File No. 99041173


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


Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Elizabeth Alicia Villanueva challenges her conviction of child neglect of her son, L.V., in violation of Minn. Stat. § 609.378, subd. 1(a)(2) (1998).  Appellant contends the district court abused its discretion by (1) admitting a consulting psychologist’s testimony concerning appellant’s statement regarding the difference between abuse and discipline; and (2) permitting the prosecutor to cross‑examine appellant about her skepticism concerning L.V.’s diagnosis of attention deficit hyperactivity disorder.  We affirm.





Evidentiary rulings generally rest within the discretion of the district court and will not be overturned absent a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  If the district court has erred in admitting evidence, we determine whether there is a reasonable possibility 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 more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

Appellant argues that the district court erred by permitting a psychologist to testify concerning a statement appellant made during a parental assessment in June 1999.  The psychologist testified that during the assessment, she asked appellant to define “abuse” and appellant responded, “if there is not blood, broken bones, or the child is in a coma, then it is okay.” 

Appellant claims this evidence was inadmissible under Minn. R. Evid. 404(a), which provides that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”  Because we are not persuaded that this statement constitutes character evidence subject to the strictures of rule 404, we disagree. 

Appellant’s attempt to define “abuse” does not, on its face, evince a character trait or a propensity for a particular type of behavior.  Thus, her statement differs from the sort of character evidence more typically involved in cases arising under rule 404(a).  See, e.g., Rairdon v. State, 557 N.W.2d 318, 324 (Minn. 1996) (holding prosecutor made improper reference to character evidence by referring to accused as a “violent man”); State v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (noting that evidence of prior threats is inadmissible if offered to show defendant’s propensity or disposition to commit the crime charged); State v. Richardson, 514 N.W.2d 573, 577 (Minn. 1994) (holding that rule 404(a) barred prosecutor from questioning witnesses about their awareness of defendant’s drug dealing activities where sole purpose was to attempt to prove guilt by character).  Because the statement at issue does not constitute “character evidence,” appellant’s reliance on State v. Loebach is misplaced.  See State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981) (holding rule 404(a) prohibits introduction of evidence of “battering parent” syndrome or that defendant has characteristics of a “battering parent” unless the defendant first raises the issue).

Appellant also contends the statement was inadmissible because of its overwhelmingly prejudicial effect.  We disagree.  Under Minn. R. Evid. 403, relevant evidence may be excluded if its prejudicial effect substantially outweighs its probative value.  Rulings concerning the relevance of evidence are generally left to the district court’s sound discretion.  State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995).  Evidence is relevant if it

logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. 


Id.  Even highly prejudicial evidence is admissible if it is necessary to establish an essential element of the state’s case.  See, e.g., State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999) (holding evidence of prior gang crime activity admissible against defendant charged with crime for the benefit of a gang, despite prejudice, because gang-crime statute required that gang’s primary purpose include the commission of certain offenses), review denied (Minn. Aug. 25, 1999); State v. Spencer, 366 N.W.2d 656, 660 (Minn. App. 1985) (holding evidence of defendant’s harsh disciplinary methods admissible, despite prejudice, because of its relevance in showing why victim had legitimate fear of reporting abuse), review denied (Minn. July 11, 1985). 

Here, the district court acknowledged the significant potential for prejudice, but concluded that appellant’s statement was admissible because it was highly probative of her reasons for permitting Basil Brown to punish L.V. in April 1999, despite the previous abuse by Brown in 1998.  In order to prove the elements of neglect of a child, the state had to show that appellant “knowingly” permitted the continuing physical abuse of L.V.  Minn. Stat. § 609.378, subd. 1(a)(2) (1998).  Appellant’s perception of the nature of “discipline” versus “abuse” was relevant to determining whether she knowingly permitted Brown to inflict further abuse when she directed him to punish L.V. in April 1999.  Because the statement was relevant to proving an essential element of the state’s case, the court did not abuse its discretion in determining that the statement’s probative value outweighed its prejudicial effect.   


            Appellant argues that the district court abused its discretion by permitting the prosecutor to cross-examine appellant concerning her skepticism over L.V.’s diagnosis of attention deficit hyperactivity disorder (ADHD) and her belief that he could control his behavior without the aid of Ritalin.  She maintains that this evidence was irrelevant to any issue before the jury and thus was inadmissible under Minn. R. Evid. 402.  We disagree.

In general, rebuttal evidence consists of that which “explains, contradicts, or refutes earlier evidence.”  State v. Gore, 451 N.W.2d 313, 316 (Minn. 1990).  A determination of what constitutes proper rebuttal evidence rests almost entirely within the district court’s discretion.  State v. Brown, 500 N.W.2d 784, 788 (Minn. 1993).

Appellant testified on direct examination concerning her love and respect for L.V., her efforts to comply with child protection services’ recommendations for controlling his behavior through alternative techniques, and her ultimate decision that L.V.’s escalating behavioral problems in 1999 merited physical discipline.  We conclude that through this testimony appellant “opened the door” to the prosecutor’s relatively limited inquiry into her beliefs about the legitimacy of L.V.’s ADHD diagnosis and prescribed treatment.  This evidence was relevant because it tended to discredit appellant’s testimony that she reasonably concluded that L.V.’s behavior would be best controlled through physical discipline.

Appellant also argues that the cross-examination constituted reversible error because it resulted in the admission of highly prejudicial evidence and allowed the prosecutor to insinuate that appellant was a bad parent who did not want her child to receive needed medication.   We disagree. 

This court will not reverse a conviction based on the erroneous admission of objected-to evidence that is harmless beyond a reasonable doubt.  State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998).  An error is harmless beyond a reasonable doubt “[i]f the verdict actually rendered was surely unattributable to the error.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  We examine the record as a whole in assessing whether an erroneous admission was harmless, considering the strength of the state’s evidence and the weaknesses of any defense evidence.  State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).  As a general rule, an error is less likely to be prejudicial where the evidence of guilt is strong.  State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).

Here, even if we were to assume that the prejudicial effect of the testimony outweighed its relevance, any resulting error was harmless.  Our review of the record reveals that the prosecutor’s cross-examination on this subject was relatively brief and the prosecutor did not even discuss this aspect of appellant’s testimony during closing argument, much less encourage the jury to misuse it.  In addition, the record contains substantial evidence in support of the conviction.  Appellant was aware that Basil Brown had inflicted sufficient physical injuries on L.V. in January 1998 to warrant his conviction for malicious punishment of a child.  She agreed that several authorities subsequently told her that discipline resulting in physical injury is not permissible.  Notwithstanding, she gave Brown express permission to use a belt to punish L.V. in April 1999, and that beating resulted in physical injury to L.V.  Finally, although appellant claimed she was in the next room during the April 1999 beating, L.V. testified that he saw appellant during the beating and was “sad” because she did nothing to stop it.

We conclude that any prejudice that resulted from permitting the prosecutor to briefly cross-examine appellant concerning L.V.’s ADHD was harmless beyond a reasonable doubt.