This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Juan Alberto Anduaga,



Filed April 27, 2004

Reversed and remanded

Randall, Judge


Kandiyohi County, Stearns County District Court

File Nos. KX-98-2250, K5-98-3001



Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN  56201 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D  O P I N I O N


This case is a consolidated appeal from a felony conviction for violating an order for protection and separate orders revoking probation in two other files based on the conviction.  Appellant Juan Alberto Anduaga argues that the district court abused its discretion by (1) precluding the defense from calling an eyewitness who had not been disclosed to the state; and (2) admitting the entire order for protection, which included findings that the safety of the victim and child required that the victim have custody and that appellant have only supervised visitation.  Appellant also argues that because his conviction must be reversed the probation revocations must also be reversed.  We agree. We reverse and remand for a new trial.



On March 4, 2002, T.L. obtained an order for protection, which prohibited appellant from having contact with T.L. or the parties’ son.  T.L. received custody of their son, but appellant was allowed to see him with supervised visitation at the Harmony Visitation Center (HVC) in Willmar.  Jessica Rohloff, a visitation coordinator at HVC, testified that the supervised visitations are scheduled, and the parents are told when they need to arrive.  The custodial parent is instructed to arrive 15 minutes before the scheduled visit and to enter the building through the west entrance.  The visiting parent is instructed to arrive as close to the scheduled visitation time as possible and to enter the building through the north entrance.  The visiting parent is also informed that if he or she is ten or more minutes late, the visitation will be canceled.  Once the visiting parent arrives at HVC, a staff member informs the custodial parent that he or she can leave.  When the custodial parent arrives to pick up the child, the visiting parent is told to wait 10 to 15 minutes after the custodial parent and child leave before exiting HVC. 

            On March 30, 2003, appellant was scheduled to have supervised visitation with his son.  T.L. arrived with their son 15 minutes early as required by HVC policy.  T.L.’s mother and T.L.’s eight-year-old brother were also present.  They parked on the west side of the building as instructed.  On his way to the scheduled visitation, appellant stopped to buy Easter presents for his son.  As a result, he arrived more than 10 minutes late and was told by Rohloff that the visitation had been canceled.  When appellant asked if he could give the presents to his son, Rohloff informed appellant that his son had left.  

            Rohloff told T.L. to leave while appellant was at HVC.  Rohloff testified that appellant left the HVC and drove out of the north parking lot toward the west lot.  She observed appellant get into his car and drive very fast in the direction that T.L. had left.  She testified that appellant drove towards the west side of the parking lot although he could have driven east. 

            T.L. testified that as she was approaching the stop sign leading to the highway, she saw appellant’s car.  She stated that she recognized his car because appellant had driven it when they were a couple.  T.L. testified that she was driving, her mother was in the passenger seat, and her son and younger brother were in the back seat.  She testified that another person was in the car with appellant.  T.L. assumed it was appellant’s girlfriend.  The person was later identified as appellant’s girlfriend Charlotte Navarro.  Although T.L. would normally go north on the highway to return home, she turned south on the highway toward Willmar because “[she] had things to do and [she] wasn’t going straight home.”  At the time of the incident, appellant lived in Redwood Falls, which is a town located south of the highway.

            T.L. testified that she drove in the left lane of the highway, and noticed appellant drive up quickly behind her.  Appellant followed three or four feet behind her for one to two miles, switched lanes, and then drove in the right lane beside her.   T.L. testified that she observed appellant throwing his hands back and forth, and making gestures toward her as if he was angry.  T.L. was frightened so she turned off the highway and went back to HVC to report what happened.  Rohloff had left for the day, so T.L. reported the incident to the Willmar Police Department.  When T.L. reported the incident she told police officers that she did not know the name of the other person in the car with appellant but assumed it was appellant’s girlfriend. 

T.L.’s mother testified that as they were approaching the highway, T.L. saw appellant, became frightened, and was shaking.  She also stated that T.L. said, “Oh my gosh, mom, here he comes.”  T.L.’s mother testified that she turned around and saw appellant drive quickly out of the HVC parking lot.  She described appellant as “tearing out of the parking area” and “flying out of there.”  T.L.’s mother testified that appellant drove about a foot behind them and that appellant’s car was “right on the bumper.” 

T.L.’s mother testified that appellant drove alongside T.L. at the same speed that T.L. was driving.  She testified that appellant shook his fists, threw his hands around, appeared to be angry, and was looking “over at [her and T.L.].”  T.L.’s mother testified that she observed appellant “flipping them off.”  T.L.’s mother stated that T.L. turned off the highway because T.L. was afraid.  She testified that approximately ten minutes passed between the time appellant approached T.L.’s car and the time she arrived at the police station.  

Appellant testified that the HVC staff never informed him that the visitation would be canceled if he arrived late.  He testified that after he was told that his son was no longer at the HVC, he left through the west parking lot driving at normal speed.  Appellant stated that he left through the west parking lot because that was the only way to get to the highway.  He also stated that he was not told that T.L. had just left or that he needed to wait.  Appellant testified that he was driving south on the highway towards his home when he saw T.L.’s car.   He stated that he noticed T.L. as she was slowing down to turn, and that “it was almost impossible for me not to look at her.”  Appellant also stated that he was surprised to see T.L. because she lived in the opposite direction of the highway.  Appellant testified that he looked at T.L. as he passed her on the right.  

Appellant denied making any obscene gestures toward T.L.  He also denied that he tried to contact her or frighten her.  Appellant denied getting close to T.L.’s car.  Appellant testified that he was not upset but sad that he could not see his son.  He also testified that he was not mad at T.L.  Appellant stated that he did not have any reason to be angry because it was his fault for being late.  He testified that when he received the citation he assumed that it was because T.L. became upset when she saw his girlfriend in the car. 

At the omnibus hearing three months before trial, defense counsel stated that he reserved the right to call “Charlene Navarro.”[1]   When the prosecutor asked him to repeat her name, defense counsel did and identified her as “the lady in the fourth row of pews back there.”  The district court stated that it would “like [the parties] to just also file in writing your list of witnesses.”  The prosecutor was instructed to file them within one week, and defense counsel was instructed to file within two weeks. 

At the beginning of trial, defense counsel told the district court that Charlotte Navarro was a potential witness, but indicated that he did not intend to call her unless the state made an issue of it.  The prosecutor responded by stating that he did not know who the witness was.   During voir dire that day, the district court asked every potential juror if they knew Charlotte Navarro. 

After the state’s case in chief, defense counsel wanted to call Charlotte Navarro.  Defense counsel informed the district court that although he had not planned to call Navarro, he now wished to call her because of inconsistencies in the testimony of T.L. and her mother.  The state opposed the request, arguing that the police did not have her name, and that defense counsel did not provide her name at the omnibus hearing.   The prosecutor argued that the state would be prejudiced because Navarro was an eyewitness whom he had not interviewed.  Defense counsel responded by arguing that although Navarro was not formally disclosed as a witness, the state had known about her since T.L. reported the incident.   

After defense counsel’s request to call Navarro, the district court gave the prosecutor a chance to speak with Navarro.  Afterward, the state renewed its objection to Navarro testifying, and argued that her eyewitness testimony “would be damaging” and the state did not have the opportunity to pursue other possible witnesses.  The prosecutor also noted that defense counsel had been aware of Navarro five months before the trial yet failed to formally disclose her name and address.  Defense counsel told the district court that he failed to disclose Navarro as a witness because he felt it would anger T.L. and negatively affect T.L.’s testimony.  He stated that he had reason to believe that T.L. would not give damaging testimony unless she was angry.

As a discovery sanction, the district court precluded Navarro from testifying.  The court reasoned that defense counsel’s decision not to disclose her name was inappropriate and possibly done for the element of surprise.  The district court concluded that there was some prejudice to the state although this was not articulated.  The court noted that it gave the prosecutor a brief continuance so the prosecutor could interview Navarro but stated that “the extent of this failure of disclosure” and the length of time defense counsel knew about Navarro precluded her from testifying. 

Defense counsel made the following offer of proof regarding Navarro’s expected testimony:

If Ms. Navarro were permitted to testify, she would testify that for all times relevant that day, she was with the defendant, she had driven down with the defendant, she was present at the Harmony Visitation Center with the defendant.  She was aware why the defendant was late and that it was due to no fault of his own, that he came there requesting to see his child, that he was denied the opportunity to see his child, that he was very upset about that, but that he was not upset with [T.L.].  Rather he was upset with the people at Harmony Visitation Center for not letting him see his child because [T.L.] had no objection to it.  . . . [After] [appellant] was told that he could not visit the child, [appellant] became upset, went to the car, and she and [appellant] proceeded to go toward Redwood.  That they came up behind or came in sight of the vehicle of [T.L.].  They hadn’t been expecting to see that vehicle because it was the people at Harmony who let them go immediately and didn’t require any kind of 15-minute break.  That when they came up behind it, it’s possible that the – that [appellant] was agitated and upset but he was not directing them either by gesture or what he said toward the vehicle or toward its occupant, [T.L.].  That they followed them or were in the same road with them, not to make contact with them, but to drive to Redwood.  That they were in fact parallel with them for perhaps several seconds and continued to Redwood, which was their object all along.


Because appellant had two prior domestic related offenses, he was charged with a felony violation of an order for protection pursuant to Minn. Stat. § 518B.01, subd. 14(d)(1).  The parties stipulated that appellant had a prior conviction for violating an order for protection, and another for fifth-degree assault.  A jury convicted appellant of violating the order for protection.  Appellant was sentenced to a presumptive 23-month sentence.  As a result of this conviction, appellant’s probation was revoked in two separate files.  In Stearns County, the district court revoked appellant’s probation, concluding that the conviction violated the terms of his probation.  The court executed his stayed 28-month sentence on a third-degree criminal sexual conduct conviction, and his stayed 17-month sentence on a false imprisonment conviction.  The sentences were to run concurrently with the 23-month sentence.  In Kandiyohi County, appellant’s probation was revoked for a third-degree criminal sexual conduct conviction, and he received an 18-month sentence to be served concurrently with all other sentences.  This appeal follows.


Appellate courts review a district court’s evidentiary rulings under an abuse of discretion standard.  In re M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001).  If an evidentiary ruling led to the violation of a defendant’s constitutional right and if the error was not harmless beyond a reasonable doubt, then the conviction should be reversed.  Id.; see also State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (finding erroneous exclusion of evidence as grounds for reversal unless appellate court finds beyond a reasonable doubt that had the evidence been admitted and its damaging potential fully realized, a reasonable jury would still have reached the same verdict). 

            The Fourteenth Amendment to the United States Constitution guarantees that no person shall be deprived of “life, liberty, or property, without due process of law.”  U.S. Const. Amend. VI; see also Minn. Const. art 1, § 7.  Embodied in the Due Process Clause of the Fourteenth Amendment are the right to a fair trial and the right to present witnesses in one’s defense.  State v. Reardon, 245 Minn. 509, 513-14, 73 N.W.2d 192, 195 (1955) (noting that right to fair trial is based in Fourteenth Amendment Due Process Clause); State v. Carroll, 639 N.W.2d 623, 627 (Minn. App. 2002) (noting that Due Process and Confrontation Clauses of the Federal and Minnesota Constitutions encompass the right to present one’s defense), review denied (Minn. May 15, 2002); Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S. Ct. 646, 652-53 (1988) (stating that the Sixth Amendment provides defendant the fundamental right to present witnesses in her or her own defense). 
            1.  Navarro’s Testimony

Appellant argues that the district court abused its discretion by precluding Navarro’s eyewitness testimony as a discovery sanction.  We agree.  It is understood that all defense witnesses in a criminal case must be disclosed pursuant to Minn. R. Crim. P. 9.02, subd. 1(3)(a) (2002).  Minn. R. Crim. P. 9.02, subd. 1(3)(a) states that defense counsel “shall supply the prosecuting attorney with the names and addresses of persons whom the defendant intends to call as witnesses at the trial together with their record of convictions, if any, within the defendant's actual knowledge.”  “The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court.”  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  But “preclusion of evidence is a severe sanction which should not be lightly invoked.”  Id. at 374 (emphasis added).

When exercising its discretion to impose or not to impose discovery sanctions, a district court must consider (1) the reason why the disclosure was not made; (2) the extent of prejudice to the other party; (3) the feasibility of remedying the prejudice by granting a continuance; and (4) any other relevant factors.  Lindsey, 284 N.W.2d at 373.  The Minnesota Supreme Court has stressed the importance of a district court record demonstrating the consideration of these factors.  M.P.Y., 630 N.W.2d at 418. 

With regard to the first factor, appellant asserts that he failed to formally disclose Navarro’s name and address in writing because he felt it would anger T.L. and negatively affect T.L.’s testimony.  He argues that this decision was a defense strategy and not willful misconduct that supports witness preclusion.  We reject the district court’s conclusion that defense counsel failed to disclose for the “element of surprise.”  Although defense counsel misstated Navarro’s first name at the omnibus hearing, he identified Navarro to the district court and the prosecutor by indicating that she was sitting in the courtroom.  We can find no inference of intentional “hiding” of Navarro.  At the beginning of the trial, defense counsel again told the district court that Navarro was a potential witness, but indicated that he did not intend to call her unless the state made an issue of it.  During voir dire that same day, the district court questioned potential jurors about whether they knew Navarro.  Defense counsel made different efforts to informally disclose Navarro’s identity to the state.  Further, the state knew that another witness was in the car with appellant at the time of the alleged offense.  Given these facts, we cannot conclude that defense counsel deliberately disregarded the disclosure rule. 

Appellant next argues that the state was not prejudiced by the nondisclosure.   The prosecutor was present when defense counsel identified Navarro at the omnibus hearing, at the beginning of trial, and when the district court questioned potential jurors about Navarro.  Given the totality of defense counsel’s disclosures, and what the state knew about the facts of the case, the state certainly knew that Navarro was at least a possible eyewitness available to be subpoenaed by either side.  The state argues that they did not have the opportunity to interview Navarro, prepare for cross-examination, or interview T.L.’s eight-year old brother as a possible rebuttal witness.  But the district court gave the prosecutor the opportunity to interview Navarro; the court could have granted another continuance to give the state the opportunity to prepare T.L.’s brother’s rebuttal testimony.  The district court concluded that there was some prejudice to the state but failed to articulate how the state was prejudiced by the nondisclosure.  See M.P.Y., 630 N.W.2d at 418 (stating that without “a record identifying compliance with the Lindsey factors, we cannot be confident that the sanction was not disproportionate to the purpose it was meant to serve.”).  The sanction imposed here, preclusion of Navarro’s testimony, was totally disparate to the problem.

Appellant argues that any prejudice to the state could have been cured by a short continuance.  The Minnesota Supreme Court has held that the decision whether to grant a continuance is within the district court’s discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  “A conviction will not be reversed for denial of a motion for a continuance, except when such denial is a clear abuse of discretion” and the defendant demonstrates prejudice.  Id.   The state argues on appeal that it was too late in the trial for a continuance.  This is not supported by the record.  Immediately after receiving the “last minute” disclosure the district court granted a continuance so that the prosecutor could interview Navarro.  After the continuance, the court stated that “the extent of this failure of disclosure” and the length of time defense counsel knew about Navarro precluded her from testifying.  But the district court failed to indicate why the continuance was not adequate to rectify any prejudice to the state.  See M.P.Y., 630 N.W.2d at 418.  Further, it is not clear from the record why it was not feasible to rectify any prejudice by ordering a short continuance.  Even a continuance of one day could have allowed the state to prepare for Navarro’s testimony.  Navarro was an important witness to the defense and the possibility of Navarro testifying was apparent at least by the beginning of trial.  The total preclusion of her testimony would have only been appropriate for egregious conduct on the part of appellant.  We find none.

 Finally, in regard to other relevant factors, Navarro’s testimony was crucial to appellant’s defense.  Navarro’s eyewitness testimony could have bolstered parts of appellant’s testimony.  Navarro would have testified, among other things, that appellant was not angry at T.L., did not make any gestures at T.L., and did not tailgate T.L.  Assuming there was nondisclosure, the district court’s sanction was too severe because Navarro was an eyewitness to the incident.  See Lindsey, 284 N.W.2d at 374 (stating that “[p]reclusion of evidence is a severe sanction which should not be lightly invoked”).  Consequently, preclusion of such testimony did impede appellant’s ability to present a defense.  Under these circumstances, the district court abused its discretion by refusing to allow appellant to call Navarro as an exculpatory witness. 

Having concluded that the district court erred by excluding Navarro’s testimony, we must determine whether the error was prejudicial.  If the district court has erred in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e. a reasonable jury) would have reached the same verdict.”  Post, 512 N.W.2d at 102 n.2.  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.  In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

We are not satisfied that the error was harmless beyond a reasonable doubt.  The state’s evidence in this case was not that strong.  We are talking only about nonphysical contact, including angry gestures from one occupant of a car to another, and that evidence was in dispute.  At trial, appellant testified that he did not tailgate or threaten T.L.  He also testified that he was not angry with T.L.  Navarro would have provided corroborating testimony.  Three witnesses testified that appellant drove fast out of the parking lot on the day in question, and two witnesses testified to appellant’s following, tailgating and threatening T.L.  With Navarro’s testimony, two witnesses would have testified to the contrary.  Navarro’s testimony could have had an impact on the jury’s verdict of guilty.  We are not satisfied beyond a reasonable doubt that had Navarro’s testimony been admitted, a reasonable jury would have reached the same guilty verdict.  

2.       Order for Protection

Appellant next argues that the district court erroneously admitted specific clauses in the order for protection.  We agree.  The district court received as an exhibit the March 4order for protection.  Defense counsel objected to the district court receiving the findings portion of the exhibit on the ground that it was irrelevant.  The district court admitted the findings, reasoning that there were no specific findings regarding allegations of abuse. 

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401 (2002).  Relevant evidence may be excluded if its prejudicial effect will substantially outweigh its probative value.  Minn. R. Evid. 403 (2002). 

                                    Appellant argues that the district court erred when it declined to redact the following two clauses in the order for protection:

That the safety of the Petitioner [T.L.] and the child requires that custody of the child be granted to the Petitioner.


. . . .


The safety of the Petitioner and the child requires that parenting time (visitation) be limited as follows:


. . . .


(b)    Respondent [appellant] have restricted/supervised parenting time (visitation) with the child.


Appellant argues that the clauses alluded to his dangerousness and indicated a propensity that encouraged the jury to find him guilty of violating the order for protection.  Appellant asserts that the evidence was more prejudicial than probative because it eliminated any credibility he may have had with the jury.  We conclude the evidence may well have served to reduce appellant’s credibility as a witness.  Although appellant’s prior convictions were not admitted into evidence, the clauses in the order for protection refer to appellant’s previous dangerous behavior.  Appellant cites two cases in support of his argument that the district court’s error was prejudicial.  See U.S. v. Heidebur, 122 F.3d 577, 579 (8th Cir. 1997); State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271-72 (1962).  In both cases, evidence of the defendant’s prior acts was excluded because the evidence used was heavily relied on by the state.  Heidebur, 122 F.3d at 581; Wofford, 262 Minn. at 119, 114 N.W.2d at 272.  As in Heidebur and Wofford, parts of the order for protection in this case should have been excluded. 

Although standing alone, this error may not warrant reversal, this error in combination with the district court’s refusal to admit Navarro’s testimony warrants reversal.  Even if an error occurs at trial and that error, standing alone, is insufficient to require reversal, the cumulative effect of all errors may compel reversal.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).  Where an error may have prejudiced a close factual case, this court will order a new trial, even if the evidence was otherwise sufficient to support the verdict.  State v. Blasus, 445 N.W.2d 535, 541 (Minn. 1989); see also Underwood, 281 N.W.2d at 344 (in case with substantial conflicting testimony and difficult factual determinations, cumulative errors may require reversal).  We conclude that the cumulative effect of the errors constitutes reversible error.  Because we reverse and remand for a new trial, we vacate the orders revoking appellant’s probation.

Reversed and remanded.


[1] The witness’s real name is CharlotteNavarro.