This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Vu Chi Truong,



Filed December 19, 2006

Klaphake, Judge


Clay County District Court

File No. K0-06-157


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


Kenneth J. Kohler, Clay County Attorney, Pamela Harris, Assistant County Attorney, 807 N. 11th Street, P.O. Box 280, Moorhead, MN  56561-0280 (for appellant)


Steven M. Light, Larivee & Light, 520 Main Avenue, Suite 1200, Fargo, ND  58103 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant State of Minnesota challenges the district court’s pretrial order refusing to admit evidence of prior incidents in which police were called to respondent Vu Chi Truong’s residence for claimed domestic assaults against his wife or violations of orders for protection involving his wife.  On January 18, 2006, respondent allegedly physically assaulted his wife.  Police filed a criminal complaint against him alleging felony domestic assault by strangulation, Minn. Stat. § 609.2247, subd. 2 (Supp. 2005), and felony domestic assault, Minn. Stat. § 609.2242, subd. 4 (2004).  Because the district court did not clearly err in declining to admit the prior similar conduct evidence where the evidence was not essential to the state’s case because the state had other evidence to establish the history of the relationship between appellant and the victim, and because admission of the prior similar conduct evidence would be unduly prejudicial to appellant, we affirm.


            “In a pretrial appeal, the state must demonstrate (1) the trial court clearly and unequivocally erred in its judgment, and (2) the error will have a critical impact on the outcome of the trial unless reversed.”  State v. Aubid, 591 N.W.2d 472, 477 (Minn. 1999) (quotations omitted); Minn. R. Crim. P. 28.04, subds. 1(1), 2(1).  In considering a pretrial appeal, the appellate court first evaluates the critical impact of the pretrial ruling and then determines whether the ruling was erroneous.  Id.  In evaluating whether the state has shown critical impact, the appellate court examines the admissible evidence to determine the impact that the excluded evidence will have on the state’s case as a whole.  In re L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).  The state must show that suppression of the evidence will significantly reduce the likelihood of a successful prosecution.  State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987). “[R]ules governing pretrial prosecution appeals are strictly construed.”  State v. Barrett, 694 N.W.2d 783, 786 (Minn. 2005). 

            1.         Critical Impact 

            The state argues that the suppressed evidence will have a critical impact on the outcome of the trial because the victim has been ruled unavailable to testify and without evidence establishing the history of the relationship, the state’s domestic abuse expert would have no basis for providing evidence about the nature of domestic abuse relationships.  The state also claims that the suppressed evidence provides further details showing the history of the relationship.

            While, historically, Minnesota critical impact decisions have involved direct evidence of the charged crime, the supreme court has recently “allowed some flexibility” in determining whether other evidence can meet the critical impact test.  State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005).  Where indirect evidence “forms a link in the chain of the prosecution’s case [that is] . . . critical to the outcome of the trial because the loss of one link may prevent the state from meeting its evidentiary burden[,]” it may meet the test.  Id. at 784-85(quotation omitted).  In McLeod, the supreme court held that Spreigl evidence involving a doctor’s sexual abuse of a second child met the critical impact test where the credibility of the first child, the victim, was at issue.  Id. at 785. 

            The conduct evidence at issue here is not essential to the state’s case within the meaning of McLeod.  The district court ruled admissible other evidence that could establish the history of the relationship.  This evidence includes the testimony of two officers who observed appellant’s violation of an order for protection at his home, and the copy of an order for protection dated August 26, 2004.  Because this admissible evidence is probative of appellant’s relationship with the victim, we find no critical impact from the district court’s ruling excluding the suppressed evidence.

            2.         Minn. Stat. § 634.20 Balancing Test 

            Appellant also claims that the district court improperly applied the balancing test set forth in Minn. Stat. § 634.20 (2004) in deciding whether the probative value of the suppressed evidence outweighs its prejudicial effect.  Minn. Stat. § 634.20 changes the focus of Minn. R. Evid. 404(b) by making evidence of similar conduct of the accused against the victim in domestic abuse cases “admissible 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.”  This treatment of other crimes evidence is justified by “the context of the accused and the alleged victim of domestic abuse,” where the crime often occurs in the home, without eyewitnesses, and the abusers “often exert control over their victims, which undermines the ability of the criminal justice system to prosecute cases effectively.”  State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004). 

            Here, the evidence that the district court ruled admissible was sufficient to establish the history of the relationship, and the suppressed evidence was cumulative, a specific reason under Minn. Stat. § 634.20 for suppression.  Other evidence ruled admissible included the testimony of the neighbor and a police officer, both of whom observed and spoke with the victim immediately after the alleged assault occurred, and other evidence of appellant’s prior similar conduct.  Further, because the victim is unavailable to testify in this case, admitting too much evidence of prior similar conduct could confuse or mislead the jury by putting improper emphasis on past conduct.  Because the state has other evidence that would establish respondent’s relationship with the victim, we find no error in the district court’s ruling the evidence prejudicial and therefore inadmissible.