This opinion will be unpublished and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
State of Minnesota,
Tou Xiong Vang,
Hennepin County District Court
File No. 04-085102
Eric L. Newmark, Birrell &
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Peter MacMillan, Michele R.
Wallace, MacMillan, Wallace & Athanases,
Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.*
In this appeal from a conviction of fifth-degree assault, appellant argues that (1) the district court abused its discretion by admitting evidence of appellant’s prior bad acts as “relationship” evidence without receiving the required Spreigl notice and performing the proper analysis; (2) the admission of evidence without receiving prior notice of the state’s intent to introduce it rendered appellant’s waiver of his right to a jury trial invalid; and (3) the evidence is insufficient to support the conviction. We affirm.
Appellant Tou Xiong Vang was charged by complaint with misdemeanor fifth-degree assault, a violation of Minn. Stat. § 609.224, subd. 1(2) (2002). Vang waived his right to a jury trial, and a bench trial was held in September 2005. Several witnesses testified about the events that occurred on the evening of June 3, 2004.
Thao testified that she was working as an assistant manager and server at Wild
Mint Restaurant in
On the night of the incident, Margaret Duffy was dining with her then 13-year-old son, Gavin Duffy. Margaret Duffy testified that she knew Vang from his work as a sushi chef at another restaurant and recognized him when she saw him that night at the Wild Mint. Margaret Duffy observed Vang speaking with Tou Thao. Based on the way he was speaking, Vang appeared to have been drinking alcohol. After hearing Vang speaking in an angry tone of voice, some food landed on the Duffys. Tou Thao came out from behind the sushi bar, and a crowd of people attempted to remove Vang from the restaurant. Margaret Duffy called 911. While she was on the phone, she heard a “smack” and then saw Tia Thao “flying backwards across the floor.” Margaret Duffy next heard Tou Thao say, “You hit my sister.” After the crowd succeeded in removing Vang from the restaurant, the door was locked until the police arrived. Margaret Duffy observed that Tou Thao’s lip had been split and Tia Thao’s “face was red from being hit.”
Gavin Duffy also recognized Vang from the other restaurant. Gavin Duffy testified that, after he heard people yelling, some food landed on his head. Vang was yelling as his friend was trying to escort Vang out of the restaurant. Tou Thao then came from behind the sushi bar and told Vang to leave. Gavin Duffy next observed Vang’s “hand go back,” heard the impact of a hit, and saw Tia Thao fall over. Gavin Duffy did not see Tia Thao get hit. But after she was hit, he heard Tou Thao shout in anger, “[Y]ou hit my sister.” Gavin Duffy also saw Tou Thao try to hit Vang.
Walker, who also was at the restaurant, testified that he met Vang when Vang was
a sushi chef at the Wild Mint. Walker observed
Vang drinking beer and trying to talk to the sushi chefs, who were
working. The sushi chefs appeared to be
trying to avoid talking to Vang. Walker described
hearing dishes clattering and Vang shouting.
Ryan Sebesta, the bartender at the Wild Mint, testified that, when Vang came into the restaurant, he seemed to be “a little intoxicated.” Sebesta served Vang a beer and observed Vang arguing with Tou Thao. Sebesta went to the store room and from there he saw Tia Thao approach Vang in an effort to get him to leave. Tia Thao and Vang moved behind a pillar and out of Sebesta’s field of vision. But Sebesta heard a loud slap, saw Tia Thao fall, heard Tou Thao say, “[Y]ou just hit my sister,” and saw Tou Thao run to Vang. Sebesta next saw a crowd of people move Vang out of the restaurant. According to Sebesta, Jeffrey Pao Thao was the only other person behind the pillar.
Tou Thao also testified regarding the incident. On cross-examination, Vang’s counsel asked Tou Thao, “You didn’t want [Vang] in the restaurant from the minute he got there; is that true?” When Tou Thao responded, “I didn’t want him in the restaurant because,” Vang’s counsel interrupted stating, “I didn’t ask you why.” On redirect, the state asked Tou Thao to explain why he did not want Vang in the restaurant. Vang objected on relevance grounds and argued that the answer to the question would constitute Spreigl evidence offered without proper notice. The district court overruled the objection, reasoning that Tou Thao’s answer was “[h]istory of relationship” evidence, which is “always relevant.” Tou Thao then testified regarding prior instances when Vang was belligerent and was involved in altercations with customers and with Vang’s wife.
Jeffrey Pao Thao, Vang, and Vang’s wife testified for the defense.
On September 23, 2005, the district court issued its findings of fact, conclusions of law, and order. The district court found Vang guilty of the charged offense. This appeal followed.
D E C I S I O N
argues that the district court committed reversible error by admitting evidence
of Vang’s prior bad acts without proper Spreigl
notice and analysis. “Evidence of
another crime, wrong, or act is not admissible to prove the character of a
person in order to show action in conformity therewith.”
if the evidence was offered to provide the fact-finder with a history of the
parties’ relationship, the prosecutor was not required to provide advance
notice. Boyce, 284
of the proffered reason for introducing the other-bad-acts evidence, unless the
evidence is offered under Minn. Stat. § 634.20, the district court is
required to determine that the act is proved by clear and convincing evidence and
that its probative value outweighs the potential for unfair prejudice to the
defendant before admitting it. State v. Bauer, 598 N.W.2d 352, 364 (
(1) the prosecutor gives notice of its intent to admit the evidence consistent with the rules of criminal procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor’s case;[] and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.
the revised rule 404(b) was not in effect at the time of Vang’s trial, Vang argues
that the district court committed reversible error in admitting Tou Thao’s
testimony because the state did not give notice of its intent to offer evidence
of Vang’s prior bad acts and the district court failed to perform the required
admissibility analysis. The admission of
other-bad-acts evidence is within the discretion of the district court and will
not be reversed absent a clear abuse of discretion. State
v. Spaeth, 552 N.W.2d 187, 193 (
Before admitting Tou Thao’s testimony about Vang’s prior bad acts, the district court did not determine on the record whether the proffered testimony was clear and convincing proof of the acts or whether the probative value of the evidence outweighed the potential for unfair prejudice to Vang. Rather, the district court admitted the evidence based on the conclusion that Tou Thao’s testimony was history-of-the-relationship evidence, which is “always relevant.” Tou Thao then testified that he did not want Vang in the restaurant because Vang had been involved in one violent incident at the Wild Mint that involved a knife and had caused a disturbance at another restaurant. Tou Thao called Vang “a drama queen” who “has no regard[ ] for the law or just normal human behavior.” When Tou Thao made allegations regarding Vang’s relationship with his wife, the district court sustained Vang’s objection.
district court erred in admitting the evidence without deciding that proof of
the acts was clear and convincing and the probative value of the evidence outweighed
the potential for unfair prejudice. Because
this evidence was based on the uncorroborated testimony of a witness, a
credibility determination is required to determine whether proof of the act was
clear and convincing. Such a credibility
determination is the exclusive province of the fact-finder and cannot be
performed on appeal. State v. Miranda, 622 N.W.2d 353, 358 (
In finding Vang guilty, the district court specifically credited the testimony of the Duffys, Walker, and Sebesta, those witnesses who were not involved in the fight and were not related to either Vang or the victim. The district court did not specifically credit or make any findings based on Tou Thao’s testimony. Our review of the record establishes that the testimony of the four credible witnesses, as detailed in the district court’s thorough findings, provides substantial evidence of Vang’s guilt. See State v. Bolte, 530 N.W.2d 191, 198-99 (Minn. 1995) (stating that when determining whether there is reasonable possibility that erroneously admitted evidence significantly affected verdict, court is influenced by a number of factors including whether evidence of guilt is overwhelming, whether defendant’s evidence was credible, whether prosecutor relied on evidence in question in closing argument, and whether cautionary instruction was given). On this record, it is clear that the admission of the other-bad-acts evidence did not affect the district court’s objectivity as fact-finder. See Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987) (affirming postconviction court’s analysis that effect of other-bad-acts evidence was less prejudicial because it was admitted at bench trial), review denied (Minn. Mar. 25, 1987); State v. Sirek, 374 N.W.2d 481, 484 (Minn. App. 1985) (rejecting claim that district court’s consideration of Spreigl issue tainted it as objective fact-finder), review denied (Minn. Nov. 26, 1985). In light of the ample evidence of Vang’s guilt and the district court’s decision to neither specifically credit nor specifically rely on Tou Thao’s testimony, the verdict was not affected by the erroneously admitted evidence. Vang, therefore, is not entitled to relief on this ground.
next argues that the admission of the evidence of prior bad acts without notice
renders his waiver of a jury trial invalid because it was not knowingly and
intelligently made. See Brady v. United States, 397
Vang failed to raise this argument before the district court, it was not
properly preserved for appellate review.
See Roby v. State, 547 N.W.2d 354, 357 (
Thus, the state’s failure to provide notice of its intent to rely on other-bad-acts evidence does not render Vang’s waiver invalid, because implicit in Vang’s jury-trial waiver is an understanding that such waiver would require the district court to fulfill dual responsibilities of ruling on the facts as well as the law. Thus, it was not unexpected that the district court would be exposed to both admissible and inadmissible evidence. Were we to accept Vang’s argument, the validity of every jury-trial waiver would be contingent on the defendant’s agreement with every evidentiary ruling or would require the fact-finding and evidentiary aspects of a single trial proceeding to be performed by different judges.
Vang also argues that the
evidence was insufficient to support the conviction because the evidence was
“contradictory and confusing” and no one saw Vang strike Tia Thao. When considering a claim of insufficient
evidence, our review “is limited to a painstaking analysis of the record to
determine whether the evidence, when viewed in a light most favorable to the
conviction,” was sufficient to allow the fact-finder to reach the verdict that
it did. State v.
It is true that the district court stated in its findings that it “heard confusing testimony about what happened.” But contrary to Vang’s assertion, the evidence was more than sufficient to support his conviction of fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (2002) (prohibiting intentional infliction of bodily harm on another). Crediting the testimony of the Duffys, Walker, and Sebesta, the district court found that Vang intentionally hit Tia Thao on her face, causing her pain and injury. Although none of the witnesses credited by the district court saw Vang’s hand strike Tia Thao’s face, the district court could reasonably conclude beyond a reasonable doubt that the assault occurred based on their testimony and photographic evidence of Tia Thao’s injury. For example, Gavin Duffy saw Vang raise his hand to shoulder level immediately before he heard the slap. The witnesses heard the sound of a slap, saw Tia Thao fall, heard Tou Thao say, “[Y]ou hit my sister,” and saw him go after Vang. The district court did not specifically credit Tou Thao’s testimony. And without real and discernible prejudice, we cannot conclude that the district court’s resolution of the conflicting testimony was affected by the other-bad-acts evidence. See Ness, 707 N.W.2d at 691 (holding that without real and discernible prejudice, court could not conclude that admission of Spreigl testimony significantly affected verdict). Based on the evidence that the district court relied on, there is ample evidentiary support for the guilty verdict.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 This factor is not unique to a rule 404(b) analysis, since irrelevant evidence is inadmissible under Minn. R. Evid. 402.
The state also argues that, because Tou Thao’s testimony regarding Vang’s past
behavior was offered in response to defense counsel’s question on
cross-examination about whether Tou Thao wanted Vang in the restaurant, the
evidence was admissible as rebuttal evidence.
A prosecutor may be justified in eliciting other-bad-acts evidence that
might otherwise be inadmissible if the questioning is in direct response to
issues raised by the defense during the cross-examination of that witness. See State
v. Gutierrez, 667 N.W.2d 426, 435-36 (Minn. 2003) (discussing admissibility
of otherwise inadmissible evidence when offered to rebut evidence elicited by
defense through evidence, argument, question, or remark, and concluding that it
was not abuse of discretion for district court to allow prosecutor to inquire
about defendant’s sexual preferences in response to defense questioning on the
subject); State v. Gardner, 328
N.W.2d 159, 161 (