This opinion will be unpublished and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
Matthew Alan Rishovd,
Filed December 6, 2005
Becker County District Court
File No. K2-03-1688
Mike Hatch, Attorney General,
Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Building, 445 Minnesota
Street, St. Paul,
Joseph A. Evans, Becker County Attorney, 910 Lincoln Avenue, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)
John M. Stuart, State Public
Defender, Lydia Villalva Lijo, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
A jury convicted appellant of criminal sexual conduct in which his wife was the victim. Appellant argues that the district court abused its discretion by admitting evidence of two prior acts of domestic abuse by appellant against his wife and that he is, therefore, entitled to a new trial. Because we find no abuse of discretion, we affirm.
Appellant Matthew Alan Rishovd was charged with third-degree criminal sexual conduct for an incident involving his wife that occurred on December 27, 2003. Rishovd’s wife testified that (1) Rishovd asked her for sexual intercourse, and when she refused his repeated requests, Rishovd said that she could either “give it or he’d take it”; (2) Rishovd convinced his wife to begin having vaginal intercourse, telling her that he would not hurt her if she did what he wanted; and (3) Rishovd then forced anal intercourse.
The district court admitted at trial evidence of two prior incidents involving Rishovd and his wife. Rishovd’s wife testified that in March 2002 (1) Rishovd threatened to stab her and their child with a knife if she did not have intercourse with him; (2) Rishovd undressed her, bound her hands, and forced her to perform oral sex; and (3) Rishovd then forced her to have vaginal and anal intercourse. Rishovd pleaded guilty to second-degree assault as a result of this incident.
Rishovd’s wife also testified about an incident that occurred on December 18, 2003, nine days before the incident at issue here: (1) Rishovd wanted to have intercourse, but she said no; (2) Rishovd persisted and she consented to vaginal intercourse; and (3) Rishovd held her down and forced anal intercourse. No charges were filed against Rishovd as a result of this incident.
A jury convicted Rishovd of third-degree criminal sexual conduct for the December 27, 2003 incident, and the district court sentenced him to 48 months in prison. The district court also lifted the stay of execution of the sentence for the March 2002 offense and sentenced Rishovd to 42 months to be served consecutively. This appeal follows.
D E C I S I O N
rulings are reversed only when the district court clearly abuses its
discretion. State v. Amos, 658
N.W.2d 201, 203 (
The district court ruled that the prior-abuse evidence was admissible under rule 404(b) of the Minnesota Rules of Evidence. Rishovd argues that this was an abuse of the district court’s discretion because evidence of the March 2002 incident was not relevant or material; his wife’s testimony regarding the December 18 incident was not clear and convincing; and the potential for unfair prejudice of the prior-acts evidence outweighed its probative value.
of another crime, wrong, or act is not admissible to prove the character of a
person in order to show action in conformity therewith.”
district court also ruled that evidence of prior abuse by Rishovd was
admissible under Minn. Stat. § 634.20, which provides that “[e]vidence of
similar conduct by the accused against the victim of domestic abuse . . .
is admissible unless [its] 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
does not address the admissibility of the evidence of either prior act under
Minn. Stat. § 634.20. If evidence
is properly admitted under Minn. Stat. § 634.20, it is not necessary for
this court to address its admissibility under rule 404(b).
test under Minn. Stat. § 634.20 for whether the prejudicial effect of
prior-acts evidence substantially outweighs its probative value is similar to
the test applied to rule 404(b) evidence.
See McCoy, 682 N.W.2d at 159
(stating that the statute’s “balancing test mirrors the language of Minn. R.
supreme court has “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 (
also claims that the district court abused its discretion by admitting evidence
of prior acts without determining that the state’s case was weak. Rishovd relies on State v. Lynch, 590 N.W.2d 75 (
Spreigl evidence is oftentimes evidence of an unrelated crime against another person, which is offered for the purposes listed in Rule 404(b), such as to show identity, opportunity, intent, or modus operandi. Evidence of prior domestic abuse against the alleged victim may be different from this type of Spreigl evidence for at least two reasons: it is evidence of prior conduct between the accused and the alleged victim and it may be offered to illuminate the history of the relationship . . . .
McCoy, 682 N.W.2d at 159 (citation omitted). Because evidence of prior domestic abuse is inherently probative, a finding that the state’s case is weak is not required to admit such evidence under Minn. Stat. § 634.20.
also argues that he was unfairly prejudiced because the evidence of prior abuse
portrayed him as a mentally ill or manipulative person with a propensity for
sexually assaulting his wife. But “‘prejudice’
does not mean the damage to the opponent’s case that results from the
legitimate probative force of the evidence; rather, it refers to the unfair
advantage that results from the capacity of the evidence to persuade by
illegitimate means.” State v. Cermak, 365 N.W.2d 243, 247 n.2
Rishovd further contends that he was unfairly prejudiced by his wife’s “inconsistent” testimony. The state’s pretrial offer of proof regarding the March 2002 offense described only forced vaginal intercourse, but Rishovd’s wife testified at trial that he forced both vaginal and anal intercourse. Other than calling this testimony “unexpected,” Rishovd fails to show how it unfairly prejudiced him.
Rishovd also asks this court to determine whether he was denied a fair trial by the district court’s determination of the admissibility of the prior-abuse evidence at a pretrial hearing rather than at trial. The admissibility of evidence of prior acts of abuse generally should be determined after the presentation of all other evidence at trial. DeWald, 464 N.W.2d at 504. But the district court does not automatically abuse its discretion by determining the admissibility of such evidence before trial. See id. at 504-05 (affirming conviction despite pretrial determination of admissibility of prior-acts evidence). Here, Rishovd requested a pretrial hearing to determine the admissibility of the prior-abuse evidence; we conclude that the district court did not deny Rishovd a fair trial by conducting the pretrial hearing that Rishovd requested.
Rishovd next contends that he was unfairly prejudiced by “extensive testimony” of the prior abuse. Although it is unclear from his brief, Rishovd appears to refer to the allegedly cumulative and prejudicial nature of the testimony of a sheriff’s deputy. Over Rishovd’s objection at trial, the district court ruled that the deputy could testify and that it would “deal with [the testimony] on a piece by piece basis in terms of what [the deputy is] going to testify to.” Without further objection by Rishovd, the deputy briefly testified to his observation of the physical appearance of Rishovd’s wife on the day of the March 2002 incident and about evidence he seized related to that incident. He did not testify about the specific abuse that Rishovd was charged with committing. Most of the deputy’s testimony related to three statements he took from Rishovd following the March 2002 incident regarding Rishovd’s claim that he had a multiple-personality disorder. The record does not show that the deputy’s testimony was cumulative, and the district court did not clearly abuse its discretion by allowing the testimony.
argues that he was unfairly prejudiced because the deputy, before testifying, “accidentally”
violated a sequestration order by witnessing an undetermined portion of the testimony
of Rishovd’s wife. Prior to trial, the
district court granted the state’s motion to sequester all but one witness, who
was not the deputy at issue here. “Witnesses
may be sequestered or excluded from the courtroom, prior to their appearance,
in the discretion of the court.” Minn.
R. Crim. P. 26.03, subd. 7. A party
seeking relief based on a violation of a sequestration order must show
prejudice resulting from the violation. State v. Erdman, 383 N.W.2d 331, 334 (
Finally, Rishovd suggests that the cumulative effect of the district court’s errors denied him a fair trial. Because we find no error by the district court, Rishovd’s argument fails.