This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Ramsey County District Court
File No. K1011376
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Sydnee Nicole Woods, Assistant County Attorney, Suite 315, Ramsey County Government Center West, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
On appeal from his convictions of second-degree assault and third-degree criminal sexual conduct, appellant Ge Yang argues that the district court abused its discretion in various evidentiary rulings and that the evidence was insufficient to support the convictions. We affirm.
I. Evidentiary rulings
Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). A defendant claiming that the district court abused its discretion by admitting evidence bears the burden of proving both that the admission was erroneous and that it was prejudicial. State v. Rhodes, 627 N.W.2d 74, 84 (Minn. 2001). To determine whether an abuse of discretion warrants reversal, the test is whether it is likely that the ruling substantially influenced the jury to convict. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990).
Yang, who was accused of biting his wife during the assaults charged, argues that the district court abused its discretion by admitting evidence of two prior incidents in which he allegedly bit his wife, without first determining that there was clear and convincing evidence that he committed these acts.
Both incidents were reported to the police who photographed the injuries. Prior to trial, the state gave notice to Yang’s counsel of intent to introduce evidence of the incidents as well as an order for protection obtained by Yang’s wife after the second incident. The state provided copies of the police reports, photographs from both incidents, and a copy of the order for protection. Admissibility of the incidents and order was argued in a pre-trial hearing, and parties were given the opportunity to submit written arguments. The district court concluded that the probative value of the evidence was not substantially outweighed by danger of unfair prejudice. The district court held that the evidence was admissible under Minn. Stat. § 634.20, which provides that evidence of similar prior conduct by a defendant against the victim of domestic abuse
is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice * * * . “Similar prior conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection * * * .
Minn. Stat. § 634.20 (2000).
Yang does not challenge the district court’s finding that the relevance of the evidence outweighs any prejudice, but he argues that the district court was required to determine whether the state established by clear and convincing evidence that he committed the acts. Yang and the state agree that relationship evidence admitted under Minn. Stat. § 634.20 is not subject to the notice requirements forSpreigl evidence, but they dispute whether the clear and convincing standard required for the admission of Spreigl evidence and for the introduction of evidence of other wrongs or acts for a limited purpose under Minn. R. Evid. 404(b) applies to relationship evidence admitted under Minn. Stat. § 634.20.
The state relies on dictum in a footnote in a supreme court opinion to assert that the clear-and-convincing standard does not apply to evidence of prior conduct admitted under Minn. Stat. § 634.20. State v. Cross, 577 N.W.2d 721, 726 n. 2 (Minn. 1998) (noting that legislature has expressed intent to remove evidence of “similar prior conduct” in domestic abuse (non homicide) prosecutions from “clear and convincing standard of Rule 404(b)). We noted this dictum from Cross in an opinion holding that a district court did not abuse its discretion by admitting evidence of past acts of violence committed by a defendant against the same victim. State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000).
Yang asserts that under the separation of powers doctrine, the supreme court, not the legislature, is responsible for regulating evidentiary matters. State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992) (stating that supreme court has primary responsibility under separation of powers doctrine for regulation of evidentiary matters). And Yang correctly notes that, despite the footnote in Cross,the supreme court has not definitively stated that the legislature’s intent controls the admission of evidence admitted under Minn. Stat. § 634.20. We do not need to resolve that issue in this case, however, because even if the state was required to prove Yang’s involvement in the incidents by clear and convincing evidence, that standard has been met. Clear and convincing evidence may be established by the testimony of a single witness. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). In this case, the testimony of the victim was supported by police reports of the prior assaults with photographs of the injuries. See Williams, 593 N.W.2d 22, 236 (Minn. 1999) (stating evidence that defendant committed prior bad acts was clear and convincing because his involvement was confirmed by police reports and eyewitness testimony). The district court’s failure to make a specific finding that clear and convincing evidence supports Yang’s involvement in the prior incidents does not change the outcome. Admission of the evidence was not an abuse of discretion.
2. Exclusion of quotations from opening statement
Yang also argues that the district court abused its discretion by prohibiting his attorney, during opening statements, from quoting statements that Yang made during a portion of the alleged assault that Yang tape-recorded. The statements were made in Hmong. Yang’s attorney told the jury that a Hmong police officer and a court certified interpreter “will give us an idea of what was on the tape.” Counsel stated:
I believe the facts will show that Mr. Yang is saying things like “I only want to be good. If you don’t want it, that’s fine. If you don’t want me.”
The prosecutor, at that point, objected on the ground of “improper opening statement.” A discussion among counsel and the court was held off the record, after which the district court sustained the objection. Yang’s counsel then continued to describe what the tape recording would prove, without reference to any direct quotations from the tape. The tape was marked as an exhibit and was identified at trial by Yang’s wife, but neither the tape nor a transcript of the tape was offered or introduced into evidence. On this limited record we cannot say that the district court abused its discretion by excluding the statements.
3. Exclusion of evidence that victim had a boyfriend who had asked the victim and the children to move out of state.
Yang asserts that the district court abused its discretion by excluding evidence that his wife had a boyfriend. The district court sustained the state’s objection, after an off-the-record discussion with counsel. The district court stated later, on the record, that the evidence was excluded because it was an attempt to show the bad character of the victim. Yang’s counsel then made a record that he had intended to explore whether it was true that there was a boyfriend who had asked Yang’s wife and children to move out of state with him. Yang’s counsel argued that the testimony is relevant to wife’s motive to manufacture charges against Yang. The state made a record of its objection on the ground that whether Yang’s wife had a boyfriend is irrelevant to the charges against Yang. The district court did not address Yang’s argument about motive.
Despite the discretion afforded the district court regarding evidentiary matters, evidence may be constitutionally required to be admitted if its exclusion violates a defendant’s constitutional rights to due process, confrontation, or right to offer evidence in his own defense. Davis v. Alaska, 415 U.S. 308, 319-20, 94 S. Ct. 1105, 1112 (1974). But where counsel was not prevented from exploring a witness’s motivation to lie, we have held that sustaining an objection to a specific question did not violate a defendant’s right of confrontation. State v. White, 300 N.W.2d 176, 178 (Minn. 1980) (affirming district court’s limiting of defendant’s cross examination because “[u]nlike Davis v. Alaska * * * defense counsel here was not prevented from exploring the witness's motivation to lie”). Nothing on the record before us indicates that the district court prevented Yang from questioning the victim about her alleged intention to leave Minnesota. The only question that was prohibited was whether she had a boyfriend. Even if the court abused its discretion by not allowing this question, we conclude that, on this record, Yang has not shown that he was prohibited from exploring a motive to lie based on intent to leave the state. We conclude that Yang’s right of confrontation was not violated by the district court’s exclusion of evidence that Yang’s wife may have had a boyfriend.
4. Cumulative Effect of the Alleged Errors
Yang argues that the cumulative effect of errors at trial deprived him of a fair trial. If there are numerous errors at trial they need not be considered individually. State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998). Rather, the court may evaluate whether the errors, taken cumulatively, were harmless beyond a reasonable doubt. Id. An appellant is entitled to a new trial if combined errors led to a denial of his right to a fair trial. Id. Because the district court’s evidentiary rulings did not constitute an abuse of discretion, Yang’s reliance on the cumulative error doctrine is without merit.
II. Sufficiency of evidence
Yang argues that the evidence is insufficient, as a matter of law, to sustain his convictions of second-degree assault and third-degree criminal sexual conduct. In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must 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). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a verdict so long as the evidence taken as a whole makes such theories seem unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985). The fact finder is free to question a defendant’s credibility and has no obligation to believe a defendant’s story. State v. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994).
1. Second-degree assault
Minnesota law defines assault, in part, as “an act done with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10(1) (2000). To qualify as second-degree assault the act must have been committed with a dangerous weapon. Minn. Stat. § 609.222 (2000). Yang asserts that there was no evidence that he engaged in conduct with a dangerous weapon intended to cause his wife fear of immediate bodily harm or death. The record does not support this assertion. Yang’s wife testified that she believed Yang was going to kill her when he cut her underwear with a knife and sexually assaulted her. Her testimony was consistent with what she told the police and the physician’s assistant who treated her following the incident. Two of Yang’s children corroborated the fact that Yang had knives in his possession during the incident. The pocketknife Yang used to cut his wife’s underwear and the underwear itself were exhibits at trial. There is sufficient evidence in the record to sustain Yang’s conviction of second-degree assault.
2. Third-Degree Criminal Sexual Conduct
Third-degree criminal sexual conduct is defined as the use of force or coercion to accomplish penetration. Minn. Stat. § 609.344, subd. 1(c) (2000). Yang argues that the length of time that he spent with his wife that day, their conversations about living together again, his wife’s failure to tell the 911 operator that Yang had raped her, and inconsistencies in his wife’s reports of the incident undermine the credibility of her testimony that she did not consent to the sexual contact. But inconsistencies in the state’s case do not require reversal, Anderson, 379 N.W.2d at 78, and the jury is free to disbelieve the defendant’s story. Steinbuch, 514 N.W.2d 793, 800 (Minn. 1994). At trial, the state presented photographs and medical evidence of bite wounds that Yang admits he inflicted on his wife. Yang’s wife testified that she was crying and trying to push Yang away during the sexual contact, that Yang used a knife to cut her underwear, and that she believed that Yang was going to kill her. The record contains sufficient evidence to support Yang’s conviction for third-degree sexual assault.
 The district court excluded the affidavit supporting the order for protection but admitted the order. Yang does not make any argument about admission of the order for protection in this appeal. Yang’s contact with his wife on the day of the assault was in violation of that order.
 Yang did not orally argue the issue of clear and convincing evidence and the record does not contain any written arguments on that issue. The state has not argued that Yang waived this argument by failing to assert it in district court, so we choose to address the argument on the merits.