This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Edward George Cooper,


Filed December 31, 2002

Affirmed in part, reversed in part, and remanded.

Toussaint, Chief Judge


Mille Lacs District Court

File No. K500600


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


Walter Kaminsky, Sherburne County Attorney, Sherburne County Courthouse, 13880 Highway 10, Elk River, MN  55330 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Edward George Cooper challenges his conviction of three counts of felony violation of an order for protection, arguing the district court (1) erred in giving the no-adverse-inference jury instruction without first obtaining appellant’s consent, (2) abused its discretion in admitting evidence of appellant’s similar prior conduct, and (3) erred in imposing multiple sentences for acts that were part of a single behavioral incident.  Cooper also argues that the trial errors were cumulatively prejudicial.  We affirm in part, reverse in part, and remand for resentencing.



            Appellant Edward George Cooper and Mary DeGidio have known each other for eleven years and have a ten-year old child together, K.C.  Nearly three years ago, in May 1999, Cooper assaulted DeGidio.  On June 1, 1999, DeGidio was granted an order for protection that prohibited Cooper from having any contact with her.  In November 1999, Cooper violated the order for protection and subsequently pleaded guilty to the May 1999 domestic assault and the November 1999 violation of the order for protection.  Shortly thereafter, Cooper and DeGidio reconciled for approximately two months, during which time the court granted DeGidio’s motion to modify the order for protection to allow Cooper to contact DeGidio for the purpose of arranging visitation or transportation of K.C.

            Early in the morning on May 28, 2000, Cooper phoned DeGidio’s residence and demanded of DeGidio’s older daughter, who answered the phone, that she wake DeGidio. DeGidio’s older daughter refused and hung up on Cooper.  Caller identification (ID) verified that the call originated from Cooper’s father’s residence.  DeGidio later returned Cooper’s call, but did not leave a message.  Thereafter Cooper returned DeGidio’s call, having observed via his father’s caller ID that DeGidio had called.  The substance of their conversation concerned a few items Cooper had at DeGidio’s home that she wanted Cooper to retrieve.  The two had spoken earlier in the week about Cooper retrieving his items that weekend.  Cooper offered to bring a police officer with him when he retrieved his items.  DeGidio testified that visitation with K.C. was not mentioned in the phone call.

             Shortly after this conversation, Cooper telephoned DeGidio again to tell her that no police officer was available to accompany him, so DeGidio told Cooper he would have to pick up his items another day.  Approximately 45 minutes later, DeGidio heard a knock on the interior garage service door.  The door opened and she saw Cooper and her neighbor, Shawn Lukawiscz, standing there.  Cooper asked DiGidio if he and Lukawiscz could go into the basement to retrieve his air compressor because Lukawiscz wanted to borrow it.  DeGidio told Cooper to bring a police officer with him and testified that she was frightened by the way Cooper looked at her.  Cooper closed the door and returned to his van.  DeGidio admitted that Cooper did not yell or verbally threaten her in any way.

            Several minutes later, DeGidio opened the service door and told Cooper, who was in the garage retrieving his items, to get a police officer.  DeGidio then closed and locked the service door, and called 911.  Cooper left before the police arrived five minutes later.

            Officer Eric Minks responded to the call and after speaking to DeGidio, left to find Cooper.  Shortly thereafter, Cooper called DeGidio from a convenience store, verified by caller ID.  Cooper asked DeGidio if she called the police and she told him she had.  Cooper became angry, calling her “a f¾g b¾h.”  Minks eventually spotted Cooper’s van and followed him to a gas station.  Minks parked his cruiser behind the van and walked toward some nearby bushes, thinking Cooper was hiding there.  Minks commanded Cooper to come out and when Cooper did not emerge, Minks sent in his canine partner who tracked Cooper to the car-wash service room.  Minks took Cooper into custody where he was charged with three felony counts of violating an order for protection.

            At trial, Cooper did not testify, but presented his version of the events through the testimony of his father, his brother, and Lukawiscz.  Cooper’s father testified that he listened to the first telephone conversation between Cooper and DeGidio via a speakerphone in a different room in his residence.  He testified that he recognized DeGidio’s voice and heard them talking about their daughter.  He also testified that DeGidio wanted Cooper to retrieve his belongings.

            Cooper’s brother, Anthony, testified that he rode with Cooper to DeGidio’s residence to pick up K.C.  He testified that when they arrived, Cooper’s clothes were strewn all over the driveway.  After picking up the clothes, Anthony remained in Cooper’s van while Cooper went to retrieve K.C.  When Cooper returned to the van without K.C., they left and Anthony went home.

            Lukawiscz testified that he was outside fixing his car when he saw Cooper drive up in his van.  He observed Cooper taking items out of DeGidio’s garage and placing them in the van.  Lukawiscz asked Cooper if he could borrow his air compressor.  Lukawiscz testified that after knocking on DeGidio’s service door, he pushed the door open and DeGidio became upset and instructed Cooper to bring police officers with him.  Lukawiscz recalled visitation with K.C. being discussed briefly between the two and then observed Cooper leave.

            Prior to instructing the jury, the following exchange occurred:


I think we kind of went over these jury instructions generally.  * * * If you have questions * * * we can come in and make a record at that point.


Your Honor, I just have one question. I – with regard to the defendant not testifying, I vaguely remember from law school, is an instruction given, or is an instruction not given,


You have the —


—or is it up to us?


—you have — that’s your choice.  There is an instruction that can be given.  Some attorney — and that’s your call.  If you want to have it, it will be given.  If you do not want to have it, then, it will not be given.




But that — that’s defense discretion.  Why don’t you think about it and let us know.


            The record contains no other discussions of jury instructions between defense counsel and the district court prior to the court charging the jury.  The court included the no-adverse-inference instruction found in CRIMJIG 3.17 when it instructed the jury.  Notably, after the trial court instructed the jury, the parties agreed that the instructions as given did not contain any errors.

            After the jury found Cooper guilty on all three felony charges, the court sentenced him to two concurrent sentences for the first two counts, and one consecutive sentence on the third count.  Cooper appeals from the judgment and sentence.





Cooper first argues that the trial court erred when it instructed the jury that it should not draw any adverse inference from Cooper’s decision not to testify without obtaining his permission on the record.  See CRIMJIG 3.17 (providing for no-adverse-inference jury instruction).

Trial courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted). Nonetheless, an instruction on a defendant’s right not to testify should ordinarily not be given unless the defendant personally requests it.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  A record should be made of the defendant’s preference on the issue.  Id.  Here, there is no record that Cooper consented to the jury instruction.  Therefore, the trial court erred by giving the jury instruction without Cooper’s consent on the record. State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000); see also Minn. Stat. § 611.11 (2002) (stating that a defendant’s failure to testify shall not create any presumption against defendant, nor be alluded to by the court).

However, a defendant is not entitled to a new trial simply because the record is silent as to whether the defendant wanted the jury instruction.  Thompson, 430 N.W.2d at 153.  Here, Cooper did not object at the time the instruction was given. Generally, unobjected-to jury instructions may be reviewed only where (1) the instructions contain error, (2) that is plain, and (3) the error is prejudicial—affecting a defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If these three criteria are met, an appellate court may exercise its discretion to notice a forfeited error, but only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings.  Id.  Minn. R. Crim P. 31.02.  An appellant bears the heavy burden of showing that the error was prejudicial and affected the outcome of the case.  Griller, 583 N.W.2d at 741.  Error is prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury’s verdict.  Id.

Here, while there was clear error, it was harmless error.  See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  Cooper argues that the instruction encouraged the jury to speculate on why he did not testify, possibly suggesting to the jury that the reason was because he was guilty.  Cooper asserts that the instruction, together with the prosecutor’s closing argument attacking the credibility of Cooper’s witnesses, likely had a prejudicial impact on the verdict.  But Cooper does not demonstrate beyond his speculation how the instruction induced the jury’s guilty verdict.  Because Cooper has not met his heavy burden of showing that there is a reasonable likelihood that giving the instruction had a significant effect on the jury’s verdict, we need not exercise our discretion to correct the error.




Cooper argues next that the trial court erroneously admitted evidence of his prior act of domestic assault and his prior violation of the order for protection.

A reviewing court will not reverse the trial court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must show error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  If the trial court erred in admitting evidence, the reviewing court determines 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.

Minn. Stat. § 634.20 (2002)provides for the admissibility of


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


Minn. Stat. § 634.20.  The definition of “similar prior conduct” includes “evidence of domestic abuse” and “violation[s] of an order for protection.”  Id.  “Domestic abuse” includes “physical harm, bodily injury, or assault” and “the infliction of fear of imminent physical harm, bodily injury, or assault” against a family or household member.[1]  Minn. Stat. § 518B.01, subd. 2(a) (2002).

Section 634.20 creates an exception to the general prohibition against admitting other-crimes evidence.  State v. Waino, 611 N.W.2d 575, 578 (Minn. App. 2000).  The supreme court interpreted section 634.20 to be an expression by the legislature of its intent to remove evidence of similar prior conduct in domestic abuse proceedings from the clear and convincing standard of rule 404(b).  State v. Cross, 577 N.W.2d 721, 726 n.2 (Minn. 1998).

A two-part inquiry is used to determine the admissibility of evidence of prior acts of domestic abuse.  Waino, 611 N.W.2d at 579.  The first inquiry is whether “the challenged testimony [is] evidence of similar prior conduct.”  Id.  The second inquiry is whether the “probative value [of the testimony is] substantially outweighed by the danger of unfair prejudice.”  Id.  Whether the probative value of prior bad acts outweighs their prejudicial effect “is a matter left to the discretion of the trial court.”  Id. (quoting State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985)).

As to the first inquiry, Cooper argues that the prior assault and violation of the order for protection were not relevant or material to an issue in the case.  Specifically, Cooper asserts that the prior assault is not relevant because it is not evidence of prior similar conduct since he was charged with violating an order for protection, not domestic assault.  Cooper points out that the elements for assault are substantially different from those for a violation of an order for protection.  But Cooper’s assault of DeGidio was the basis for the order for protection, and the statutory definition of “similar prior conduct” includes “evidence of domestic abuse.”  While in the present case there is no evidence that Cooper assaulted DeGidio, the evidence of the prior assault serves to explain the context in which the violation of the order for protection occurred.  Waino, 611 N.W.2d at 579; State v. Currie, 400 N.W.2d 361, 367 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987).

Moreover, the trial court limited the evidence to a finding that a domestic assault occurred and that an order for protection was granted based on the assault.  Cooper’s conviction of that domestic assault and the underlying facts were never admitted into evidence.  Only the valid order for protection and its amendment were admitted into evidence, and DeGidio’s testimony was limited to what was in the order: that a finding of an assault occurred and a brief description of the assault.  DeGidio did not elaborate beyond the words in the order except to say that she suffered a cut on her head and a black eye.  Further, the supreme court has on numerous occasions recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim.”  State v. Williams, 593 N.W.2d 227, 236 (Minn. 1999).

As to the second inquiry, Cooper argues that evidence of his prior domestic assault was prejudicial, serving as propensity evidence to encourage the jury to hold him accountable for his prior misconduct.  See State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 172 (1965) (cautioning trial courts from admitting other-crimes evidence due to inherent danger jury will use evidence to infer defendant has propensity to commit crimes).  Cooper asserts the evidence was more prejudicial than probative because it eliminated any credibility his version might have had with the jury.

Whether the probative value of prior bad acts outweighs their prejudicial effect “is a matter left to the discretion of the [district] court.”  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  While the evidence may have served to reduce Cooper’s credibility, clearly the statute allows for the admissibility of such evidence.  Moreover, the court limited the scope of the evidence and gave a cautioning instruction to the jury, mitigating any prejudicial effect.  Waino, 611 N.W.2d at 579.

Cooper’s argument that his prior violation of the order is not relevant is equally without merit.  Minn. Stat. § 634.20 (2000) permits evidence of similar prior conduct and Cooper’s prior violation is the same offense he faced at trial.  Moreover, the trial court allowed only the fact that Cooper violated the order in November 1999 to be admitted, finding that the prior violation had probative value on the issue of Cooper’s present intent to violate the order—a necessary element of the charges against him.  No underlying facts of Cooper’s prior violation of the order were admitted, thereby mitigating any prejudicial effect.  Id.  We conclude that the trial court did not abuse its discretion in admitting the prior-conduct evidence.





Cooper next argues that even if the evidentiary errors and the trial court’s no-adverse-inference jury instruction were not individually harmless beyond a reasonable doubt, cumulatively they were.  Cooper asserts that the combined effect of the errors deprived him of his fundamental right to a fair trial.

 Even if an error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of the errors may compel reversal.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).  In this instance, Cooper argues that because the case depended solely upon whose version of events the jury believed, the erroneous jury instruction unfairly encouraged the jury to wonder why he did not testify, and the prior conduct evidence portrayed him as a person worthy of punishment.  Cooper argues that together these errors unfairly undermined his credibility and deprived him of a fair trial, citing State v. Duncan, 608 N.W.2d 551 (Minn. App. 2000), review denied (Minn. May 16, 2000).

In Duncan, this court reversed the defendant’s conviction and remanded for a new trial due to the cumulative effect of the trial errors.  Id. at 559.  Cooper argues that the errors in Duncan are similar to the errors here and due to the closeness of his case, the cumulative effect of the errors warrants a new trial.  In Duncan, a no-adverse-inference jury instruction was given without the defendant’s consent, and the district court erroneously admitted certain Spreigl evidence.  Id. at 556-58.  But there were considerably more errors in Duncan then Cooper alleges here, including prosecutorial misconduct.  Id. at 555-56.  Further distinguishing Duncan is the determination that there, the state’s case was weak, depending on “imprecise and equivocal interviews and testimony of the young victims.”  Id. at 557-58.  The same cannot be said of the state’s evidence against Cooper.  Moreover, because Minn. Stat. § 634.20 clearly permits the admission of prior conduct evidence and because the no-adverse-inference instruction is harmless error, Cooper is unable to identify errors that when combined, justify reversal of his conviction.



            Finally, Cooper argues that the trial court erred in imposing multiple sentences because each offense was part of a single behavioral incident.  The court found that each offense was a separate offense and sentenced Cooper to two concurrent sentences for the first two counts of violating an order for protection and imposed a consecutive sentence on the third count. 

Minn. Stat. § 609.035 (2002) prohibits multiple punishments for the same conduct.

[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses[.]


Minn. Stat. § 609.035, subd. 1.  Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, the defendant may be sentenced for only one of those offenses.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995).  Any multiple sentences, including concurrent sentences, are barred if the statute applies.  State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).

Whether offenses are part of a single behavioral incident is a fact determination that will not be reversed on appeal unless clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).  “But where the facts are established, the determination is a question of law subject to de novo review.”  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).

To determine whether two or more intentional offenses arose out of the same behavioral incident, we “consider the factors of time and place and whether a defendant is motivated by a single criminal objective.”  Bookwalter, 541 N.W.2d at 294.  This determination “is not a mechanical test, but involves an examination of all the facts and circumstances.”  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).  “[T]he essential ingredient * * * is whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.”  Bookwalter, 541 N.W.2d at 294 (quotation omitted).  That is to say, were all of the acts performed necessary to, or incidental to, the commission of a single crime and motivated by a single intent to commit that crime.  State v. Krampotich, 282 Minn. 182, 186-87, 163 N.W.2d 772, 776 (Minn. 1968).

The facts of the case reveal that the three violations of the order all occurred within the time span of approximately 90 minutes or less.  As to unity of place, while Cooper was in different locations for each violation, the victim, DeGidio, remained in her home.  However, it is primarily the conduct of the defendant that is significant to the analysis. Bookwalter, 541 N.W.2d at 295.

Cooper argues that each of the contacts was motivated by an effort to obtain a single criminal objective, or alternatively, that the last phone call was made to avoid apprehension for the personal contact.  Where a defendant’s second offense is committed in an attempt to avoid apprehension for the first offense, the question becomes whether the offense committed in avoidance of apprehension was “substantially contemporaneous” with the first offense, thereby constituting a single behavioral incident.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994)(citations omitted).

The state argues that Cooper had a different criminal objective each time he contacted DeGidio: the first call was to discuss retrieving his belongings—a purpose not permitted under the order; the visit was a specific intent to violate the order by simply appearing at her home; and the third call was to frighten her—an entirely distinct intent. The state also argues that Cooper’s disparate locations for each violation weighs against a determination that there was one behavioral incident.  See Krampotich, 282 Minn. at 182, 163 N.W.2d at 772 (holding that several crimes were not part of single behavioral incident where, although all crimes occurred during the same night, the period extended 21/2 hours, and although all crimes occurred in or by victim’s car, the car itself was moved from place to place).  But in Krampotich, the crimes had no common intent: defendants were convicted of simple robbery, unauthorized use of a motor vehicle, and simple assault as to one defendant and aggravated assault as to the other defendant.  282 Minn. at 183, 163 N.W.2d at 774.

Here, the three violations of the order for protection share an identical criminal intent.  See Bookwalter, 541 N.W.2d at 295-96 (stating that although focus is primarily on defendant’s conduct rather than elements of crimes committed, “it is meaningful to recognize that the two crimes involve separate intents”).  There is also a certain unity of time and place.  Nevertheless Cooper’s underlying motivation—retrieval of his personal belongings—is the same only for counts one and two.  As to count three, Cooper could have avoided apprehension without making the telephone call; he could have simply driven away.  We conclude that Cooper was motivated by a single criminal objective in committing the first two offenses.  But, the same cannot be said of count three.  Cooper’s motivation in calling DeGidio from a pay-phone was entirely different.  Because the trial court erred in imposing multiple sentences for counts one and two, we reverse and remand for resentencing consistent with this holding.

Affirmed in part, reversed in part, and remanded.

[1] A family or household member includes “persons * * * who have resided together in the past” and “persons who have a child in common regardless of whether they have been married or have lived together at any time.”  Minn. Stat. § 518B.01, subd. 2(b)(4),(5) (2002).