This opinion will be unpublished and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
State of Minnesota,
Randal Charles Meyer,
Benton County District Court
File No. K0-02-1390
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, Blaine Markuson, Assistant Attorneys General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Robert Raupp, Benton County Attorney, 615 Highway 23, P. O. Box 189, Foley, MN 56329 (for respondent)
Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.
On appeal from his convictions of first-degree burglary, interfering with an emergency call, violating a harassment restraining order, obstructing legal process, and criminal damage to property, appellant argues that (1) the district court abused its discretion in admitting evidence of appellant’s prior acts of domestic abuse against the victim; and (2) the state committed prejudicial misconduct by impeaching appellant with his prior conviction for first-degree burglary. We affirm.
Appellant Randal Meyer and Joann Michael had been involved in a romantic relationship. In July 2002, when the relationship began to deteriorate, Michael sought and received a temporary restraining order that required Meyer to leave their apartment and have no contact with Michael.
Although Meyer knew that he had been ordered to refrain from any contact with Michael, he came to her apartment on September 30, 2002. Michael refused to admit him, and she called 911 to report that Meyer was violating the restraining order. Meyer went to a window, removed the screen, and entered the apartment. As Michael grabbed the phone to call 911 again, Meyer took the phone away from Michael and hung it up. The police dispatcher called back to determine the reason Michael had hung up the phone. This time when Michael picked up the phone, Meyer put her into a chokehold. Shortly thereafter, Officer Rich Hogan of the Foley Police Department arrived and pounded on the door to gain entry. From his position outside the apartment, Hogan could hear a woman yelling and screaming. As they continued to struggle inside the apartment, Michael pushed Meyer down and unlatched the door. Meyer, however, braced himself against the door to prevent Hogan from entering the apartment. Using his flashlight, Hogan propped the door open. As he entered the apartment, Hogan was struck in the eye. Hogan looked down and saw Meyer lying on the floor braced against the door. A struggle ensued, and Hogan sprayed Meyer with pepper spray. When Meyer grabbed Hogan’s pant leg and refused to release it, Hogan struck Meyer’s hand with the flashlight to release Meyer’s grip. Hogan then placed Meyer under arrest.
Meyer was charged with first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(c) (2002); two counts of gross-misdemeanor domestic assault, in violation of Minn. Stat. § 609.2242, subd. 2 (2002); fourth-degree assault of a police officer, in violation of Minn. Stat. § 609.2231, subd. 1 (2002); interfering with an emergency call, in violation of Minn. Stat. § 609.78, subd. 2 (2002); violating a harassment restraining order, in violation of Minn. Stat. § 609.748, subd. 6(a), (c) (2002); obstructing legal process, in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2) (2002); and criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 3 (2002).
Before trial, the state moved to admit evidence of prior acts of domestic violence that Meyer had committed against Michael, including a domestic assault, an interference with an emergency call, and four other violations of the July 2002 restraining order. The district court ruled that all of these prior acts were admissible under Minn. Stat. § 634.20 (2002) to highlight the nature of Meyer’s relationship with Michael. The district court denied the state’s motions in limine to admit Meyer’s 1993 burglary conviction under Minn. R. Evid. 404(b) or 609, finding that the burglary conviction was more prejudicial than probative. Meyer was acquitted of fourth-degree assault and convicted of the remaining offenses. This appeal followed.
Meyer argues that the district court abused its discretion in admitting evidence of prior domestic abuse toward Michael. Generally, evidentiary rulings rest within the district court’s discretion. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). An appellate court will not reverse a district court’s admission of “other crimes or bad acts evidence unless an abuse of discretion is clearly shown.” State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).
Evidence of prior bad acts cannot be used to establish an actor’s character for committing those acts, but “evidence which tends to show the ‘strained relationship’ between the accused and the victim” may be admissible to demonstrate the actor’s motive and intent. State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997). The district court admitted the evidence of prior domestic abuse under Minn. Stat. § 634.20 (2002), which provides:
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, 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 . . . .
Meyer argues that, for prior acts of domestic abuse to be admissible under Minn. Stat. § 634.20, the district court was required to determine that the prior acts have been proven by clear and convincing evidence. The state counters that section 634.20 only requires that (1) the evidence relates to similar prior conduct; and (2) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
We recently clarified the standard for admission of prior acts of domestic abuse under Minn. Stat. § 634.20 in State v. McCoy, 668 N.W.2d 425 (Minn. App. 2003), review granted (Minn. Nov. 18, 2003). In McCoy, the defendant argued that, because Minn. Stat. § 634.20 regulates an evidentiary matter within the province of the judiciary, the legislature violated the separation-of-powers doctrine. Id. at 427. To determine whether this violation occurred, we compared Minn. Stat. § 634.20 to Rule 404(b). Id. at 427-28. Unlike Rule 404(b), section 634.20 is silent as to the standard of proof for showing prior acts. Id. at 428. To inform the legislature’s silence on the standard of proof, we reviewed the legislative history of section 634.20, which evinced an intent to employ the same standard of proof governing Rule 404(b). Id. at 428-29. Accordingly, we held that the district court erred in admitting evidence of prior domestic abuse “without first determining whether the state could prove the incident by clear and convincing evidence.” Id. at 430. Because the only evidence of prior domestic abuse was uncorroborated hearsay, further assessment of the alleged victim’s credibility was required. Id. We, therefore, reversed appellant’s conviction and remanded for a new trial. Id.
Here, after determining the evidence was more probative than prejudicial, the district court admitted several incidents of prior domestic abuse. Because its ruling predates our decision in McCoy, the district court did not apply the clear-and-convincing standard of proof. Appellate courts, however, have “independently assessed the weight of prior-conduct evidence, when the strength of the evidence allowed the [district] court to rule as a matter of law that the prior conduct was clearly and convincingly proved.” Id. at 430 (citing State v. Volstad, 287 N.W.2d 660 (Minn. 1980)).
Unlike the alleged victim in McCoy, Michael provided detailed trial testimony recounting the incidents of prior abuse. In particular, she described four incidents when Meyer violated the no-contact provision of the July 2002 restraining order. On July 9, Meyer confronted Michael and prevented her from making a 911 call. On July 12, while Michael was gone, Meyer entered Michaels’ residence and placed letters on her bed. On October 16, Meyer tried to contact Michael through his sister. And on November 2, Meyer sent Michael mail.
We conclude as a matter of law that the evidence of prior domestic abuse is clear and convincing. Michael’s testimony is detailed and unequivocal, and she was subjected to cross-examination. See State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (noting that a single witness’s testimony may be sufficient to satisfy the clear-and-convincing standard). Accordingly, we conclude that, under Minn. Stat. § 634.20, the admission ofthis evidence does not warrant reversal. See State v. Volstad, 287 N.W.2d 660, 662 (Minn. 1980) (noting that, under the circumstances, the accused was not prejudiced even if the district court failed to address whether prior conduct was proven by clear and convincing evidence).
Meyer argues for the first time on appeal that the prosecutor committed prejudicial misconduct by impeaching Meyer with his 1993 burglary conviction. A claim of prosecutorial misconduct is properly preserved for appeal by an objection at trial accompanied by a request for a curative instruction. Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999). Ordinarily, a failure to object constitutes waiver of the issue on appeal. Id. But we may consider an appellant’s claim of prosecutorial misconduct despite a failure to object at trial if the error is sufficient to do so. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).
The state moved to admit Meyer’s 1993 burglary conviction as Spreigl evidence under Minn. R. Evid. 404(b) or as impeachment evidence under Minn. R. Evid. 609. In addressing the admissibility of Meyer’s prior conviction, the district court said that it “ought not to be admitted, [and] that it would be more prejudicial than probative under the circumstances.” The district court’s ruling, however, did not specify whether Meyer’s prior conviction was inadmissible under Rule 404(b), Rule 609, or both.
Under Rule 404(b), evidence of other crimes or bad acts is inadmissible to prove an actor’s character “in order to show action in conformity therewith.” Minn. R. Evid. 404(b). But this evidence may be admissible to prove motive, opportunity, intent, and absence of mistake. Id. Other crimes evidence is not admissible in a criminal prosecution unless the district court determines that its probative value outweighs its potential prejudicial effect. State v. Richardson, 670 N.W.2d 267, 279 (Minn. 2003). Rule 609 governs the use of prior convictions to impeach the credibility of a witness, including that of a criminal defendant testifying on his own behalf. Minn. R. Evid. 609. Aprior conviction may be used for impeachment only if (1) the crime is punishable by more than one year in prison and “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect” or (2) the crime involved dishonesty. Minn. R. Evid. 609(a).
The state contends that, according to the prosecutor’s understanding, the district court’s ruling allowed Meyer’s prior conviction to be used for impeachment. This argument is unpersuasive in light of Rule 609, which requires a determination that the probative value of a prior felony conviction outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1). Here, the district court expressly reached a contrary conclusion. Thus, the prosecutor committed prosecutorial misconduct by referring to evidence that the district court had ruled inadmissible. See State v. Jahnke, 353 N.W.2d 606, 610 (Minn. App. 1984).
We next consider whether the misconduct denied Meyer a fair trial. Not every instance of misconduct warrants a new trial. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). A defendant is entitled to a new trial only if the prosecutorial misconduct was prejudicial and deprived the defendant of a fair trial. SeeState v. Smith, 541 N.W.2d 584, 588 (Minn. 1996). We apply one of two tests to determine whether prosecutorial misconduct deprived a defendant of a fair trial. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). When the misconduct is “unusually serious,” the conviction will not be disturbed if the error was harmless beyond a reasonable doubt. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). When the misconduct is less serious, we determine whether the misconduct “played a substantial part in influencing the jury to convict.” Id. at 128; 218 N.W.2d at 200. Under either standard, we consider the error and its impact within the context of the record as a whole. State v. VanWagner,504 N.W.2d 746, 749 (Minn. 1993).
Meyer fails to establish that the impeachment evidence played a substantial part in influencing the jury to convict. See State v. Quick, 659 N.W.2d 701, 718 (Minn. 2003). The evidence against Meyer is strong; Michael’s testimony is corroborated by Officer Hogan’s testimony and by Meyer’s own admissions. Moreover, the district court instructed the jury to consider Meyer’s “previous conviction only as it may affect [his] credibility.” A curative instruction generally mitigates the effect of the misconduct. State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999). And “[w]e presume that the jury followed the [district] court’s instruction.” State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).
In light of the strength of the state’s case and the curative measures of the district court, we conclude that the misconduct did not substantially affect the verdict. See VanWagner, 504 N.W.2d at 749. Any error, therefore, was harmless.
 Meyer raises numerous issues in his pro se supplemental brief. After careful review of the record, we find his arguments are without merit. Meyer’s brief also refers to matters outside the record. “An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).