This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Robert Earl Clayborne, Jr.,


Filed March 25, 2003


Peterson, Judge


Carlton County District Court

File No. K8011341


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


Marvin E. Ketola, Carlton County Attorney, Carlton County Courthouse, 202 Courthouse, Box 300, Carlton, MN  55718-0300 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from convictions and sentences for second-degree assault, terroristic threats, false imprisonment, and criminal damage to property.  Appellant Robert Earl Clayborne, Jr., argues that (1) the district court abused its discretion in admitting as relationship evidence the victim’s testimony that appellant had assaulted her on five-to-ten prior occasions; (2) the prosecutor committed prejudicial misconduct in impeaching the only defense witness with an undisclosed tape recording of a phone conversation with appellant; (3) the district court committed plain error in instructing the jury, in response to a jury question, that hands could be a “dangerous weapon” depending on the circumstances and manner in which they were used; (4) the district court erred in submitting a written response to the jury’s question without Clayborne being present and without reading the response on the record; (5) the cumulative effect of trial errors deprived him of his right to a fair trial; and (6) the district court erred in sentencing him on each conviction because they all arose from the same behavioral incident.  We affirm.


            Clayborne and the victim had an on-again, off-again romantic relationship from February through October 2001.  At about 1:45 a.m. on October 19, 2001, Clayborne, who was intoxicated, went to the victim’s apartment, accused her of seeing another man, and got into an argument with her.  During the next two to three hours, Clayborne physically and verbally assaulted the victim in her apartment.

The victim testified as follows about the assault:  After using redial to find out who the victim had talked to on the phone, Clayborne ripped the phone out of the wall and threw it at her, striking her with it.  He then threw her down a flight of stairs, which left an indentation in the wall, and pushed her onto a bed, where he began choking her.  Clayborne repeatedly ordered the victim to stand up.  Each time she did, Clayborne pushed her onto the bed and choked her.  Clayborne choked the victim to the point where she could not breathe.  The victim kicked at Clayborne and struggled against him.  Eventually, they ended up at the bedroom doorway to the downstairs hall.  Clayborne found two plates on the hall floor.  He stepped on one of the plates and broke the other with his knee.  Clayborne picked up one of the plates and swung it towards the victim’s face.  The victim put up her hand, and the plate cut her hand.  Clayborne brought the victim to her bed and then into the bathroom, where he tended to her cut.  During the next five minutes, Clayborne calmed down, but then he became angry again.  Clayborne held a pair of scissors, with the blades separated, to the victim’s neck and cut her skin.  With the scissors pointed at the victim’s throat, Clayborne threatened to kill her and himself and said that neither of them would be leaving the apartment.  Clayborne called the victim a whore and tore off the bra and underwear she was wearing under her robe.  Clayborne calmed down for a short time again when the victim said she wanted a cigarette, and the two of them went into the kitchen to smoke.  The argument resumed in the kitchen, where Clayborne took a knife from the sink and put it against the victim’s stomach.

After the assault in the kitchen, Clayborne calmed down again and said he wanted to go to the casino.  The victim agreed to go to the casino with Clayborne.  At the casino, the victim got away from Clayborne and spoke to a casino supervisor, who called the sheriff’s department.

            Clayborne was arrested and charged with one count each of second-degree assault, terroristic threats, false imprisonment, and fourth-degree criminal damage to property.  A jury found Clayborne guilty as charged.  The district court denied Clayborne’s motion for a judgment of acquittal or new trial and sentenced him to concurrent, executed terms of 33 months for second-degree assault, 24 months for terroristic threats, 21 months for false imprisonment, and 90 days in jail for criminal damage to property.  On appeal, Clayborne challenges his convictions and sentence.


1.         “Evidentiary rulings generally rest within the [district] court’s discretion and will not be reversed absent a clear abuse of discretion.”  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998) (quotation and citation omitted).  “This court will not reverse a [district] 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) (citation omitted).

            The district court allowed the victim to testify that Clayborne had committed similar assaults against her between five and ten times previously.  In a statement to police, brought up on cross-examination of the victim, the victim referred to three incidents, one that occurred in a hotel bathtub, a second incident involving hair pulling, and a third incident when neighbors called police.  No specific details about the prior assaults were disclosed.  The victim also testified that she went to the hospital for treatment following one of the previous incidents but told hospital personnel that two strangers had beaten her up.  The victim testified that she did not report any of the prior assaults to police because she feared for the safety of herself and her son.

            The district court admitted the testimony under Minn. Stat. § 634.20 (2000), which states:

Evidence of similar prior conduct by the accused against the victim of domestic abuse * * * 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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  “Similar prior conduct” includes * * * evidence of domestic abuse * * *. “Domestic abuse” * * * [has the meaning] given under section 518B.01, subdivision 2.


Minn. Stat. § 518.01, subd. 2 (Supp. 2001), defines “domestic abuse” as:

(1) physical harm, bodily injury, or assault;

            (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or

            (3) terroristic threats * * *.


            Clayborne argues that the district court erred in admitting the relationship evidence without subjecting it to Spreigl analysis.  Evidence of other crimes or bad acts, known as “Spreigl evidence,” may not be admitted unless (1) the evidence of the other act is relevant and material to the state’s case; (2) the evidence clearly and convincingly shows that the defendant participated in the other act; and (3) the probative value of the other act evidence is not outweighed by its potential for unfair prejudice.  Minn. R. Evid. 403, 404(b); State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).

The supreme court has concluded that by enacting Minn. Stat. § 634.20, “the legislature has expressed an intent to remove evidence of similar prior conduct in domestic abuse prosecutions from the clear and convincing standard of rule 404(b).”  State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (citing State v. Cross, 577 N.W.2d 721, 726 n.2 (Minn. 1998)).  Citing State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000), in which this court required relationship evidence to meet the clear and convincing standard of proof, Clayborne argues that the exception stated in Cross should be limited to relationship evidence in prosecutions for domestic-abuse homicide where a past history of domestic abuse is an element of the crime.  Clayborne’s argument misconstrues the exception stated in Cross.  Neither Cross nor Oates involved evidence admitted under Minn. Stat. § 634.20, and Minn. Stat. § 634.20 is not limited to homicide cases.  Rather, as the Cross court noted,

the legislature has expressed an intent to remove evidence of “similar prior conduct” in domestic abuse (non-homicide) prosecutions from the “clear and convincing” standard of Rule 404(b).  See Minn. Stat. § 634.20 (1996).  If this section is relevant to the admissibility of evidence in domestic abuse crimes not resulting in death of the victim, it would follow that a heightened standard would not apply to domestic abuse homicide cases.


Cross, 577 N.W.2d at 726 n.2.

Under Minn. Stat. § 634.20, evidence of similar prior conduct by the defendant against the victim of domestic abuse is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice.


Waino, 611 N.W.2d at 579.

            Clayborne does not dispute that the relationship evidence admitted in this case was “evidence of similar prior conduct.”  Whether the probative value of prior bad acts outweighs their prejudicial effect is a matter left to the district court’s discretion.  Id.  In this case, the district court did not balance probative value against prejudicial effect.  But 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); see also State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994) (“Evidence bearing on the defendant’s relationship with the victim, including other-crime evidence, is often admitted in terroristic threats and domestic abuse cases.  Such evidence puts the alleged criminal conduct of the defendant in context, may help the jury in assessing the defendant’s intent and motivation, and may serve other valid purposes.”) (citations omitted).  Also, any prejudicial effect was mitigated by the district court’s cautionary instruction to the jury that Clayborne was not being tried for any offense other than the charged offenses and could not be convicted based on any occurrences in the past.  See Waino, 611 N.W.2d at 579 (limiting cautionary mitigated prejudicial effect of relationship evidence).

            Even if the district court erred in admitting the relationship evidence without balancing probative value against prejudicial effect, Clayborne is not entitled to a new trial unless “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).  This court must determine whether there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence.  Id.

            It is not reasonably possible that the relationship evidence significantly affected the verdict.  The victim’s testimony about the previous assaults was brief and not detailed.  In contrast, the victim’s testimony about the current assault was very detailed and corroborated by other evidence.

Corroborating evidence included the consistency between the victim’s trial testimony and her statements shortly after the assault to police and hospital personnel.  At the casino, the victim told Cloquet Police Patrolman Derrick Randall that Clayborne was intoxicated and angry when he came to her apartment and that from 1:45 a.m. until 3:45 a.m., she and Clayborne argued and fought physically.  The victim reported to Randall that Clayborne used a knife, scissors, and broken plate in assaulting her.  Cynthia Berthiaume, a registered nurse who was present during the victim’s treatment at the hospital, testified that the victim said that Clayborne assaulted her in her home for a two-hour period, from 1:45 a.m. until 3:45 a.m.; during the assault, Clayborne choked her and threw her down a flight of stairs, and she received a cut on her hand from broken glass.  After the victim was treated at the hospital, she gave a statement to Cloquet Police Detective Wally Dupuis.  The victim told Dupuis that Clayborne came to her apartment intoxicated, accused her of seeing someone else, used redial on her phone to learn who she had talked to last, held a knife to her stomach and a scissors to her throat, choked her, ripped off her clothing, threatened to kill her, and strangled her.  See State v. Halvorson, 506 N.W.2d 331, 336 (Minn. App. 1993) (victim’s testimony was corroborated in part by her prior consistent statements to others immediately after the assault).

The victim’s testimony was also corroborated by her injuries and the evidence police found in her apartment.  Berthiaume testified that the victim had abrasions around her neck, a laceration on the palm of her right hand from broken glass, and bruises on her left forearm and left hip.  Berthiaume testified that the victim’s injuries were consistent with an assault, and the emergency-room physician who treated the victim testified that soft-tissue injury to the front of the victim’s neck was consistent with strangulation.  Linda Wheeler, a legal advocate with the Carlton County Sexual and Domestic Assault Program, accompanied police to the victim’s apartment.  Wheeler described the apartment as being in disarray.  She observed a hole in the wall at the base of the stairway, blood on the wall at the bottom of the stairway and in the bedding and the bedroom.  Police found a scissors and a knife in the locations where the victim had said they were.  They also found her bra and underpants in the bathroom and pieces of a broken plate in the apartment.  See State v. Southard, 360 N.W.2d 376, 383 (Minn. App. 1985) (victim’s story was corroborated by the condition of her apartment when police arrived and by her injuries), review denied (Minn. Apr. 12, 1985).

Finally, the victim’s testimony was corroborated by her demeanor following the assault.  The casino supervisor testified that the victim was shaking and crying.  Field Sergeant Kelly Lake, who spoke to the victim at the casino, described the victim as noticeably distraught and crying.  Berthiaume described the victim as very upset, shaky and weeping, and frightened.  Wheeler opined that the victim’s reaction to the assault was consistent with that of victims of domestic assault.  See State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990) (sexual assault victim’s demeanor after assault corroborated her testimony), review denied (Minn. Mar. 16, 1990).

            Clayborne also argues that Minn. Stat. § 634.20 violates the separation of powers doctrine because it is the role of the judiciary, not the legislature, to regulate evidentiary matters.  However, we do not believe that Minn. Stat. § 634.20 conflicts with any court-promulgated evidentiary rules.  As a matter of comity, the court may enforce statutory evidentiary rules that do not conflict with court-promulgated rules.  State v. Lanam, 459 N.W.2d 656, 658 (Minn. 1990). 

2.         Clayborne argues that the prosecutor deprived him of his right to a fair trial by impeaching the only witness for the defense with an undisclosed recording of a telephone conversation between the witness and Clayborne.  The district court is in the best position to determine what harm is caused by discovery violations and whether such harm can be eliminated or diminished.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  Therefore, it is the district court that decides whether to impose sanctions for violations of discovery rules and orders.  Id.; see also Minn. R. Crim. P. 9.03, subd. 8 (permitting the district court to sanction for discovery violations).  The appellate court will overturn such decisions only if the district court abused its discretion.  Lindsey, 284 N.W.2d at 373.  The factors that the district court should consider include “the reason why disclosure was not made” and “the extent of prejudice to the opposing party.”  Id.

            Minn. R. Crim. P. 9.01, subd. 1(2), states:

The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant * * * recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney * * * .


The disclosure obligation is ongoing and continues after trial commences.  Minn. R. Crim. P. 9.03, subd. 2.

            On the second day of trial, the district court allowed the state to impeach the only defense witness with a recording of a conversation that occurred the previous evening between the witness and Clayborne, who was in jail and had been advised that his telephone calls would be recorded.  The prosecutor did not learn about the recording until the morning of the second day of trial, and a transcript was not available until five minutes before the trial reconvened.  Without first disclosing the recording to Clayborne, the prosecutor used it to impeach the witness after he testified that he did not recall speaking to Clayborne the previous evening.  The witness admitted that the phone call was made to one of his home telephone lines and that he and Clayborne had talked about the first day of trial.  No specific details from the conversation were admitted into evidence.

            Given the late discovery of the recording by the state, we cannot conclude that the prosecutor deliberately disregarded the disclosure rule.  We are not persuaded by Clayborne’s argument that the lack of disclosure was prejudicial because he might have foregone calling the defense witness if he had known about the recording.  The jury already knew that Clayborne and the defense witness were friends, the conversation was mentioned only briefly during cross-examination, and no specific details about what was said were provided to the jury.  There was no suggestion that Clayborne attempted to influence the witness’s testimony.  Any prejudice was minimal.  See State v. Spann, 574 N.W.2d 47, 52-53 (Minn. 1998) (upholding denial of mistrial when prosecutor addressed during cross-examination without prior disclosure witness’s discussion with defendant about witness’s grand-jury testimony because failure to disclose was inadvertent and testimony about conversation was not inculpatory or prejudicial).

3.         Clayborne argues that the district court erred in instructing the jury, in response to a question during deliberations, that Clayborne’s hands could be a dangerous weapon.  On the second-degree assault charge, the complaint alleged that Clayborne

[d]id wrongfully, unlawfully, intentionally and feloniously assault another with a dangerous weapon, to wit:  assault [the victim] by holding a knife and a pair of scissors to her throat.


The district court instructed the jury that to find Clayborne guilty of second-degree assault, it must find that (1) Clayborne assaulted the victim; and (2) in committing the assault, Clayborne used a dangerous weapon.  The court instructed the jury that a dangerous weapon is

anything designed as a weapon and capable of producing death or great bodily harm, or anything else that, in the manner in which it is used or intended to be used, is known to be capable of producing death or great bodily harm.


In closing argument, defense counsel argued that the state failed to prove that either the knife or the scissors, if used, was a dangerous weapon.  The prosecutor argued that the knife and the scissors, in the manner used by Clayborne, were dangerous weapons.

            During deliberations, the jury sent a note to the district court asking, “Are hands considered a dangerous weapon?”  After consulting with the prosecutor and defense counsel, the district court responded in writing:

It is a question of fact for the jury to decide depending on the circumstances by which the hands are used and whether they were used in a manner that was likely to produce death, or great bodily harm.


Defense counsel did not object to the response at the time it was made.  But in his motion for a new trial, he argued that the response was prejudicial because he was not on notice that he needed to address the issue of whether hands can constitute a dangerous weapon.  A jury instruction containing an error of “fundamental law or controlling principle” can be first assigned in a new-trial motion.  State v. Glowacki, 630 N.W.2d 392, 398-99 (Minn. 2001).

The cases Clayborne relies on involved situations in which the additional offenses charged required proof of different elements.  See, e.g., State v. Guerra, 562 N.W.2d 10 (Minn. App. 1997) (defendant was charged with possession of stolen shotguns, and the district court allowed the state to reopen its case and present evidence of possession of stolen handguns; proof that Guerra possessed the handguns was different from proof of possession of the shotguns and knowledge that the guns were stolen and the time and place of possession also differed).  In this case, the evidence regarding the assault committed by Clayborne included evidence about the assault committed with Clayborne’s hands.  The district court’s response to the jury’s question was a correct statement of the law.  See State v. Davis, 540 N.W.2d 88, 90 (Minn. App. 1995) (depending on the circumstances of an assault, hands can be a dangerous weapon), review denied (Minn. Jan. 31, 1996).

The instruction was also consistent with the evidence presented at trial and did not add any new elements or offenses to the case.  We, therefore, conclude that the instruction was not an error of fundamental law or controlling principle.  See State v. Ihle,640 N.W.2d 910, 918 (Minn. 2002) (explaining that although “a jury cannot convict unless it unanimously finds that the government has proved each element of the offense,” “the jury need not always decide unanimously which of several possible means the defendant used to commit the offense in order to conclude that an element has been proved beyond a reasonable doubt”).

4.         Clayborne contends that the district court violated his right to be present at all stages of trial by answering the jury’s question outside of his presence and without reading the response on the record.  If a defendant is wrongfully denied the right to be present at a stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was surely unattributable to the error.  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).  When considering whether the erroneous exclusion of a defendant from judge-jury communications was harmless error, a reviewing court considers “the strength of the evidence and substance of the judge’s response.”  Id. (citations omitted).  We also consider “what the defendant would have contributed to his defense if he had been present.”  State v. Breaux, 620 N.W.2d 326, 332-33 (Minn. App. 2001) (citations omitted).

In its order denying Clayborne’s new-trial motion, the district court did not indicate that it would have responded differently to the jury’s question based on Clayborne’s argument that the instruction introduced a new theory into the case.  And as we have already discussed, the evidence against Clayborne was strong.  The victim’s testimony about the assault was very detailed and corroborated by her prior consistent statements, her injuries, her demeanor, and the evidence found in her apartment.

We conclude that the verdict was surely unattributable to Clayborne’s exclusion from judge-jury communications and, therefore, that excluding Calyborne was harmless beyond a reasonable doubt.

5.         Even when no single error standing alone or arising under different factual circumstances would be sufficient to require reversal, the supreme court has found that the cumulative effect of the errors may deprive a defendant of a fair trial.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979); see State v. Erickson, 597 N.W.2d 897, 904 (Minn. 1999) (discussing when cumulative effect of errors deprives defendant of a fair trial).  In determining whether the cumulative effect of errors denied a defendant a fair trial, the court considers the strength of the evidence against the defendant.  State v. Erickson, 610 N.W.2d 335, 340-41 (Minn. 2000).

Any evidentiary errors were minor, the district court’s response to the jury instruction correctly stated the law and did not introduce any additional elements or offenses into this case, and Clayborne has failed to demonstrate any prejudice as a result of the district court responding to the jury’s question outside of his presence.  The evidence against Clayborne was strong.  Accordingly, Clayborne was not denied his right to a fair trial.

6.         A district court has broad discretion in sentencing, and this court will not reverse absent a clear abuse of discretion.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  A sentencing court, with certain exceptions, may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident.  Minn. Stat. § 609.035, subd. 1 (2000).  “In determining whether two convictions arose from a single behavioral incident, this court must examine the offenses to see whether they were motivated by a desire to obtain a single criminal objective.”  State v. Richardson, 633 N.W.2d 879, 888 (Minn. App. 2001) (citation omitted).  Other factors to consider are “the unity of time and of place of the behavior.”  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (quotation omitted).  The state has the burden of showing that multiple offenses were not part of a single behavioral incident.  State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).

When multiple offenses occur as a series of distinct or random events, rather than as part of a prearranged plan, they are not motivated by a single criminal objective.  See Bookwalter, 541 N.W.2d at 295-96 (criminal sexual conduct and attempted murder offenses not motivated by a single criminal objective when defendant entered victim’s van looking for something to steal, decided to sexually assault victim after she entered van, promised to release victim after sexual assault, and then, as an apparent afterthought, attempted to murder victim); State v. Krampotich, 282 Minn. 182, 187, 163 N.W.2d 772, 776 (1968) (offenses of unauthorized use of a motor vehicle, simple robbery, simple assault, and aggravated assault were not motivated by a single criminal objective when they were not part of a “prearranged program of events,” but rather “each of the events * * * simply took place as an idea came into defendants’ heads”).

Although Clayborne’s offenses occurred close in time and in close proximity, the record does not show that they were motivated by a single criminal objective.  The record shows that Clayborne went to the victim’s apartment, intending to confront her about seeing another man, and then committed the offenses as a series of distinct events without a prearranged plan or course of action.

7.         In a pro se supplemental brief, Clayborne argues that (1) his counsel was ineffective in failing to obtain fingerprint evidence from the knife and scissors found in the victim’s apartment; (2) the weapons should not have been admitted into evidence without forensic proof that Clayborne actually handled the weapons; and (3) without forensic evidence connecting Clayborne to the knife and scissors, the district court should have dismissed the charges against him for lack of probable cause.

            Clayborne’s arguments are without merit.  The victim positively identified Clayborne, her former boyfriend, as the person who committed the offenses against her.  A forensic scientist employed by the Minnesota Bureau of Criminal Apprehension analyzed blood found on the shirt Clayborne was wearing when arrested and concluded that it belonged to the victim.  That evidence was sufficient to identify Clayborne as the person who committed the offenses of which he was convicted.  Forensic evidence connecting a defendant to a weapon used in an assault is not required to support an assault conviction.  See State v. Swain, 269 N.W.2d 707 (Minn. 1978) (affirming murder conviction where no murder weapon was found and no fingerprint evidence was found at murder scene).