This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Gearold James Hulsing,
Filed September 19, 2006
Mille Lacs County District Court
File No. K7-04-1191
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street S.E., Milaca, MN 56353 (for respondent)
Cynthia J. Vermeulen, Vermeulen Law Office, P.A., 26 North 7th Avenue, St. Cloud, MN 56303 (for appellant)
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Parker, Judge.
Appellant Gearold James Hulsing challenges his conviction of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004), and misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(1) (2004), following an altercation he had with his ex-wife, Lizabeth Hulsing, on October 7, 2004. During the altercation, appellant held a knife to his ex-wife’s throat, threatened to “knock her chin into the top of her head,” and told police arriving at the scene that he did “not yet” have any weapons on his person. Appellant claims that (1) the district court erred in admitting evidence of similar conduct of domestic abuse of the victim under Minn. Stat. § 634.20 (2004); (2) the prosecutor committed misconduct in eliciting the “similar conduct” evidence; and (3) he was denied effective assistance of counsel by his attorney’s failure to object to the “similar conduct” evidence or request a mistrial following its admission. Because we find no error in the district court’s evidentiary rulings and no basis for reversal due to prosecutorial misconduct or ineffective assistance of counsel, we affirm.
1. Admission of “Similar Conduct” Evidence
Evidence of similar acts of domestic abuse by the accused
against the same victim is admissible in a criminal trial “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.”
The prosecution moved pretrial for admission of “similar conduct” evidence by appellant toward the victim. In May 2004, five months prior to the current offense, police responded to a call at the Hulsing home because appellant had assaulted his ex-wife, repeatedly slamming her head into a wall and grabbing her by the face. Part of the incident was witnessed by H.H., the parties’ daughter. The state specifically requested to admit this evidence at trial.
In its separate notice of intent to use out-of-court statements, the state also included Lizabeth Hulsing’s October 7, 2004 statement to police that set forth other references to “similar conduct” evidence. Lizabeth Hulsing stated that several weeks after the May incident, while she was canning tomatoes at her former in-laws’ house, appellant rampaged through the house screaming obscenities and looking for her, and she hid in the basement to evade him. Her statement also referred to appellant’s propensity for assaultive and stalking behavior and drunkenness. In addressing these pretrial motions, the district court granted the state’s request to use the May and June incidents but ruled that any other “similar conduct” evidence must be evaluated outside the presence of the jury before its admission to allow the court to determine “whether the probative value of such evidence outweighs the danger of unfair prejudice, confusion of the issue or misleading of the jury.”
At trial, the state introduced evidence of the May and June incidents. Without objection by the defense, Lizabeth Hulsing and H.H. also testified about appellant’s propensity for violence, his stalking behavior, and his alcohol abuse. The court immediately instructed the jury that the “similar conduct” evidence did not bear on appellant’s guilt and was only offered to assist with their understanding of the “domestic situation.” The court also cautioned the jury about the use of the May and June incidents in the jury instructions.
Appellant contends that the district court erred in admitting the “similar conduct” evidence without a preliminary evaluation as required by Minn. Stat. § 634.20. It is clear, however, that the court was aware that the evidence was “similar conduct” evidence and considered the statutory criteria in determining whether to admit this evidence. Under these circumstances, we conclude that the court properly considered and weighed the evidence before admitting it at trial.
also suggests that the district court plainly erred by failing to act sua sponte
to prevent Lizabeth Hulsing and H.H. from testifying regarding appellant’s
general propensity for violence, stalking behavior, and alcohol abuse. Usually, defense counsel’s failure to object at
trial to the admission of testimony waives the right to raise the issue on
appeal. State v. Vick, 632 N.W.2d 676, 684-85 (
Here, appellant cannot show admission of this evidence to have improperly affected the outcome of the trial. The testimony of Lizabeth Hulsing was consistent and corroborated in part by the testimony given by H.H. Appellant’s testimony was somewhat unbelievable—he portrayed himself as a victim in the altercation and claimed that it was fabricated by the victim. Further, as both Lizabeth Hulsing and H.H. testified in narrative form, the court may not have wanted to interrupt their testimony to highlight incidental but improper references to appellant’s propensities. See State v. Provost, 386 N.W.2d 341, 343-44 (Minn. App. 1986) (holding that district court did not commit reversible error by failing to act sua sponte to give limiting instruction on admission of impeachment evidence when evidence was not direct evidence of crime and “court may have been reluctant to highlight the ruling” by taking action “defense counsel had not requested”). We conclude that the district court did not err in admitting the “similar conduct” evidence.
2. Prosecutorial Misconduct
Appellant further argues that the prosecutor committed misconduct by failing to disclose some of the evidence of similar conduct until the day of trial and by eliciting some of that evidence at trial despite the court’s pretrial ruling that the evidence was inadmissible unless it was first weighed for probative value outside the presence of the jury.
Appellant’s claim to having been surprised by the prosecutor’s intent to use the “similar conduct” evidence is not fully supported in the record. In June, four months before trial, the state submitted its notice of intent to use out-of-court statements, which referred to both the June 2004 incident and the other incidents of appellant’s prior abusive conduct, stalking behavior, and alcohol abuse. Thus, appellant was provided some notice of this evidence prior to trial.
appellant’s claim that the prosecutor elicited evidence that the district court
had ruled inadmissible, both Lizabeth Hulsing and H.H. testified in narrative
fashion regarding the events leading up to the altercation. The prosecutor did not specifically pose
improper questions to these witnesses; the improper evidence was embedded in
their otherwise admissible testimony.
Under these circumstances, while the witnesses’ testimony may show that
the prosecutor did not properly advise them before trial about the limits of
their testimony, this omission does not rise to the level of misconduct that
would merit action by this court. See Opsahl v. State, 710 N.W.2d 776, 783
(Minn. 2006) (holding that appellate court “will reverse the denial of a
prosecutorial-misconduct claim only when ‘the misconduct, viewed in the light
of the whole record, appears to be inexcusable and so serious and prejudicial
that defendant’s right to a fair trial was denied’” (quoting State v. Wahlberg, 296 N.W.2d 408, 420
(Minn. 1980))). When, as in this case, a
defendant does not object to prosecutorial misconduct, an appellate court
determines whether plain error has occurred in determining whether to grant a
new trial, which includes analysis of whether the misconduct would have
affected the outcome of the trial. State v. Young, 710 N.W.2d 272, 280 (
3. Ineffective Assistance of Counse
finally claims that he was afforded ineffective assistance of counsel because
defense counsel failed to object to the “similar conduct” evidence or to
request a mistrial based on admission of that evidence. “In order to succeed on an ineffective
assistance of counsel claim, a convicted defendant must show both that [his]
counsel’s performance fell below an objective standard of reasonableness and
that, but for counsel’s deficient performance, the outcome of the case would
have been different.” State v. Berkovitz, 705 N.W.2d 399, 408
attorney objected to the testimony that contained the “similar conduct”
evidence because it was in narrative form, and the district court sustained
that objection. The decision not to
otherwise object to the “similar conduct” evidence may have been strategic, and
such decisions, viewed in hindsight, do not demonstrate ineffective assistance
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant claims that “similar conduct” evidence must be proved by clear and
convincing evidence, but the supreme court has held that such evidence need
only be more probative than prejudicial and does not need to meet the clear and
convincing evidence standard. State v. McCoy, 682 N.W.2d 153, 159 (