This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed May 17, 2005
Cottonwood County District Court
File No. K0-03-168
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
L. Douglas Storey, Cottonwood County Attorney,
John M. Stuart, State Public Defender, Roy G. Spurbeck,
Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Howard Lachowitzer, who was convicted of first-degree criminal sexual conduct and second-degree criminal sexual conduct, argues that (1) the district court erred in admitting into evidence a three-ring binder containing pornographic pictures because it was overly prejudicial; and (2) the district court erred in omitting a cautionary jury instruction on several items admitted to show the relationship of appellant and his accusers. We affirm.
D E C I S I O N
rulings rest within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the trial
court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
challenges the admission of a three-ring binder with over 100 pornographic
pictures arguing that the district court erred because, even if admissible
under Minn. R. Evid. 402 and 404, the evidence was more prejudicial than
probative under Minn. R. Evid. 403. But this
court has allowed the submission of a pornographic magazine for corroboration
purposes, to assist the jury in placing the defendant’s conduct in its proper
and relevant context, and to enable evaluation of the defendant’s denial. State v. Wiskow, 501 N.W.2d 657, 660 (
Here, L.G. testified that appellant sexually abused her and that appellant showed her a big white notebook five times; L.G. accurately described the general contents of the three-ring binder. Appellant denied that he was ever alone with the children and that he ever abused L.G. and A.G. Appellant admitted there was a three-ring binder of pornography under his bathroom sink that belonged to a friend but denied showing the pictures to L.G.
We conclude that the evidence here is similar in nature to the magazine admitted in Wiskow, and that the evidence was offered to corroborate L.G.’s testimony that appellant showed her the binder on several occasions and her description of the contents of the binder. Thus, as in Wiskow, we conclude that the district court did not err in admitting the binder because it was relevant and probative both to corroborate L.G.’s testimony and to evaluate appellant’s denial of any abuse.
District courts are allowed
“considerable latitude” in the selection of language for the jury
instructions. State v. Baird, 654
N.W.2d 105, 113 (
Here, appellant concedes that he did not request a limiting instruction on the proper purpose of admission of relationship evidence during trial. But he argues that the district court should have given the limiting instruction sua sponte and that this error requires reversal. We disagree.
In State v. Williams, 593
N.W.2d 227, 237 (Minn. 1999), the supreme court noted that “the failure to
provide limiting instructions absent a request is not reversible error,”
although a district court should generally do so to ensure that 404(b) evidence
is not used for an improper purpose. And
in State v. Forsman, 260 N.W.2d 160, 169 (
Finally, appellant raises several challenges to the factual record in his pro se brief. Because these allegations are outside the record, we must disregard them. See Minn. R. Crim. P. 28.02, subd. 8 (stating that “[t]he record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceeding, if any”). In addition, appellant makes a bare allegation that his trial counsel was ineffective. But because that claim is not supported by the record, we conclude it is without merit.