This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Helen Mae Malenke,




Filed August 8, 2006

Forsberg, Judge


Hennepin County District Court

File No. 05010241


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Steven M. Tallen, Tallen and Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent)


Glenn P. Bruder, Mitchell, Bruder & Johnson, 4005 West 65th Street, Suite 110, Edina, MN  55435 (for appellant)


            Considered and decided by Minge, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a conviction of violating a harassment restraining order, appellant argues that the evidence was insufficient to support the conviction, that the district court erred in ruling inadmissible reverse-Spreigl evidence, and that she was denied the effective assistance of counsel.  We affirm. 


            Appellant Helen Mae Malenke and her husband Myron Malenke have been neighbors to Susan and Matthew Aspelund for approximately 13 years.  On February 28, 2003, the district court issued a restraining order against the Malenkes restraining them from any repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of Susan Aspelund.  The restraining order also prohibited the Malenkes from contacting Susan Aspelund in person, by telephone, or by other means or persons, and remained in effect until February 25, 2005. 

            On November 23, 2004, Matthew Aspelund reported to police that at approximately 6:45 a.m. he heard a banging noise, looked outside and saw appellant banging on a plastic bucket with an object she was holding in her hand.  Appellant was charged by complaint with misdemeanor violation of a harassment restraining order in violation of Minn. Stat. § 609.748, subd. 6 (2004).

            At appellant’s court trial, Susan Aspelund testified that the noise she heard on November 23 was the sound of banging on a bucket, a sound she had heard on numerous occasions.  She also heard appellant’s patio door open and close, but she did not see appellant.  Matthew Aspelund testified that when he heard the banging at approximately 6:15 or 6:30 a.m., he went outside and saw appellant on the deck beating a five gallon bucket six times. 

            The district court found appellant guilty of violating the restraining order.  This appeal followed.


            Insufficient Evidence

            This court applies the same standard of review when reviewing a case tried to the court as when reviewing a jury verdict.  State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

            This court must assume that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).  In reviewing a claim of insufficient evidence in a criminal case, this court determines “whether, under the facts in the record and any legitimate inferences that can be drawn from them, a [fact finder] could reasonably conclude that the defendant was guilty of the offense charged.”  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (quotation omitted).  We review the evidence in the light most favorable to the conviction and “assume that the [fact-finder] believed the state’s witnesses and disbelieved any contrary evidence.”  Id. (quotation omitted).

            Appellant was charged with violating a restraining order by banging on a bucket in the early morning hours.  The only issue is whether or not the incident of banging on a plastic bucket occurred.  Appellant argues that the district court erred in discounting the video from the four surveillance cameras installed on the property.  The camera facing the front of the house was the main camera, and the others were activated by a motion detector.  The videotape from the morning of November 23, 2004, was submitted into evidence and the district court reviewed it on the record.  Although appellant contends that the video from the surveillance camera indicates that no one was on the deck, the district court properly rejected this argument because Myron Malenke admitted that, based on the videotape, there was no way to know if the camera facing the deck was working properly.  It is undisputed that the camera on the deck was not activated at any point during the videotape.  Therefore, the lack of evidence of someone on the deck in the video is not conclusive because it is uncertain that had someone been on the deck, the video camera would have activated and recorded the event.

Appellant presented testimony from a neighbor who lives on the opposite side of the Aspelunds.  The neighbor testified that he has never heard any pounding noises coming from the Malenkes’ home.  Appellant maintains that she was sleeping at the time the Aspelunds allegedly heard the banging noise.  The Aspelunds testified that they heard the banging, and Matthew Aspelund testified that he saw appellant on the deck that morning banging on the bucket.  The district court believed the Aspelund’s testimony and disbelieved appellant.  This court defers to the fact-finder’s determinations regarding the weight and credibility of individual witnesses.  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).  Given the deference due to the district court’s credibility determinations, we do not find that the district court decision was in error.

            Appellant argues that Matthew Aspelund’s testimony was inconsistent with his report to the police.  The complaint notes that Matthew Aspelund heard the banging at 6:45 a.m., but he testified that he heard the noise at 6:15 or 6:30 a.m.  Inconsistencies in the testimony of the state’s witnesses do not require reversal.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  This inconsistency is relatively insignificant and does not negate the district court’s credibility determination.     


            Appellate courts review evidentiary rulings on appeal, such as the exclusion of reverse-Spreigl evidence, for an abuse of discretion.  State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).  A criminal defendant has a right to present a complete defense, although that right is not unlimited.  State v. Valentine, 630 N.W.2d 429, 432 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  Under Minn. R. Evid. 404(b), a defendant may seek to introduce evidence tending to show that a person other than the defendant committed the crime of which the defendant is accused.  Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000).

            First, appellant argues that the district court erred in requiring notice of reverse-Spreigl evidence.  “Spreigl” is Minnesota’s label for evidence of other crimes, wrongs, or acts offered for a relevant, noncharacter purpose, under Minn. R. Evid. 404(b).  See State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (1965) (holding evidence of other crimes or misconduct is admissible upon proper notice and foundation).  Reverse-Spreigl evidence is evidence of a crime, wrong, or act committed by someone other than the defendant and offered to show that the other person committed the crime with which the defendant is charged.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).  Traditionally, reverse-Spreigl has been limited to cases in which the defendant can present clear and convincing evidence that a particular person committed the reverse-Spreigl offense.  Valentine, 630 N.W.2d at 433.

            Appellant sought to introduce evidence of the Aspelunds’ allegations against another neighbor to show their willingness to make false allegations to the police, and evidence of charges the Aspelunds brought against her husband.  However, appellant failed to provide notice as required.  Appellant relies on Minn. R. Crim. P. 7.02 to argue that the prosecutor is required to provide notice to bring in Spreigl evidence, but the rule does not mention reverse-Spreigl evidence or any defense obligation.  Appellant does not cite to any cases to support this argument.  In Profit, the supreme court noted that “the defense’s burden in introducing reverse-Spreigl evidence should be no less than the state’s burden in introducing Spreigl evidence.”  591 N.W.2d at 464 n.3.  Thus, reverse-Spreigl evidence requires the same level of procedural protections as Spreigl evidence.  Moreover, appellant’s reasons for admitting evidence that the Aspelunds also complained to the police about others do not appear to meet the standards of reverse-Spreigl

            Ineffective Assistance of Counsel

            To show ineffective assistance of counsel, appellant “must affirmatively prove that [her] counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). 

Appellant argues that trial counsel erred in failing to question the veracity of the Aspelunds and failed to rebut critical testimony given by Matthew Aspelund that he saw appellant on her deck at 6:15 or 6:30 a.m.  Appellant contends that trial counsel erred in failing to show that the shrubs around the deck made it improbable that if appellant had been on the deck she would have been visible.  Appellant also argues that trial counsel failed to show that, according to astronomical data, sunrise in Minneapolis on November 23, 2004 occurred at 7:22 a.m.; thus, appellant could not have been seen on the deck.     Generally, appellate courts give particular deference to counsel’s decisions regarding trial strategy.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (appellate court, having benefit of hindsight, should not review trial tactics; trial counsel must be given flexibility to represent client to the fullest extent possible).  All the issues appellant raises as error on behalf of trial counsel are related to trial strategy.  Appellant fails to establish that counsel’s representation fell below an objective standard or affected the outcome of the case.  Therefore, appellant has not met her burden to show ineffective assistance of counsel.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.