This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Tou Xiong Vang,


Filed January 2, 2007


Wright, Judge


Hennepin County District Court

File No. 04-085102



Eric L. Newmark, Birrell & Newmark, 333 South Seventh Street, Suite 2270, Minneapolis, MN  55402 (for appellant)


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


Peter MacMillan, Michele R. Wallace, MacMillan, Wallace & Athanases, 9955 59th Avenue North, Suite 125, Minneapolis, MN 55442 (for respondent)


            Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, 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 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. 

Tia Thao testified that she was working as an assistant manager and server at Wild Mint Restaurant in Crystal.  When Vang, a former employee, and his friend, Jeffrey Pao Thao, came into the restaurant, Tia Thao seated them.  While Tia Thao was in the kitchen, she heard dishes clattering and people yelling.  When she came out of the kitchen, it appeared that Vang was trying to fight her brother, Tou Thao, a Wild Mint sushi chef.  Tia Thao stepped in front of her brother and then found herself “on the floor seeing stars.”  According to Tia Thao, Vang “apparently” hit her. 

            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. 

Timothy 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.  Walker then saw Tou Thao come from behind the sushi bar and Tia Thao get between Vang and Tou Thao.  Next, Walker heard a “slap,” Tia Thao cry out, and Tou Thao shout, “He hit my sister.”  Walker observed Tou Thao lunge at Vang followed by Vang being forced by the crowd to leave the restaurant. 

            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.    



Vang 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.”  Minn. R. Evid. 404(b).  Such evidence may, however, be admitted for other purposes.  Id.  Evidence of other crimes or other bad acts may be offered to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.  Id.; State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965).  In Minnesota, such evidence is commonly referred to as Spreigl evidence.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Evidence of other bad acts may be admissible for other stated purposes, such as to explain the history of the relationship between the defendant and the victim, State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969), to provide background information, State v. Garcia, 374 N.W.2d 477, 480 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985), or to place the charged offense in the proper context, State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985).  Such evidence is admissible because it explains the strained relationship between the defendant and the victim, which is relevant to establish motive, opportunity, and intent.  See, e.g., Waukazo, 374 N.W.2d at 564-65 (history-of-relationship and context evidence); cf. State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001) (holding that evidence of defendant’s affair with another woman was admissible in prosecution for murder of his wife because affair affected marital relationship).  Thus, even if other-bad-acts evidence is offered as relationship, context, or background evidence, it generally is not admissible unless it is relevant to a purpose articulated under rule 404(b).  Different standards of proof for admissibility may be applied, however, based on the purpose for which such evidence is offered.  For example, although proof of rule 404(b) evidence must be clear and convincing, evidence offered under Minn. Stat. § 634.20 (2004) to show similar conduct by a defendant against the victim in a domestic-abuse prosecution need not meet this burden of proof to be admissible.  State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004). 

Historically, 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 Minn. at 260, 170 N.W.2d at 115.  The rationale for eliminating the notice requirement for this type of evidence is that it is not likely to be a surprise to the defendant.  Id. at 260, 170 N.W.2d at 115-16.  But this rationale adopts the questionable presumption that the defendant committed the other bad acts.  8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 32.19 (2001 & Supp. 2006-07).  If the defendant disputes committing the other bad acts, that the evidence is offered to show the history of the relationship does not eliminate the element of surprise. 

Regardless 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 (Minn. 1999); State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998).  After recent revisions to rule 404(b), such evidence is admissible in a criminal prosecution only if

(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;[[1]] and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.


Minn. R. Evid. 404(b) (effective Sept. 1, 2006); see State v. Ness, 707 N.W.2d 676, 656 (Minn. 2006) (applying same five-step analysis to other-bad-acts evidence); see also Minn. R. Crim. P. 7.02 (setting forth circumstances when prosecutor must provide defendant timely written notice when evidence of other offenses may be offered at trial).  This five-factor admissibility test, including notice, presumably now applies to any other-bad-acts evidence offered by the prosecutor, other than section 634.20 evidence, regardless of what the evidence is offered to prove.

Although 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 (Minn. 1996).  The appellant bears the burden of establishing that the district court’s evidentiary rulings were in error and that the defendant was thereby prejudiced.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  If the reviewing court determines that the district court erred in admitting other-bad-acts evidence, the defendant is entitled to a new trial if “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  Ness, 707 N.W.2d at 691.

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.

The 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 (Minn. App. 2001).  In light of the district court’s subsequent decision not to credit the testimony of Tou Thao, we can reasonably infer that the standard of proof was not met.  Thus, we next consider whether “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  Ness, 707 N.W.2d at 691. 

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.[2]


Vang 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 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970) (holding that waiver of constitutional rights must be voluntary, knowing, and intelligent); State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (stating that waiver of Minnesota constitutional right to jury trial must be voluntary, knowing, and intelligent).  Vang argues that this is a structural error requiring reversal.

Because 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 (Minn. 1996) (stating that appellate court will not decide constitutional questions of criminal procedure not raised before district court unless justice requires and doing so will not unfairly surprise other party).  We nevertheless address it briefly.  In support of his claim, Vang unpersuasively relies on State v. Sirek, a case in which the appellant argued that the district court’s consideration midtrial of a Spreigl issue tainted its objectivity as fact-finder.  374 N.W.2d at 484.  In rejecting the claim, the Sirek court reasoned that “appellant’s waiver of a jury trial was done with the full knowledge that the court as factfinder could be exposed to evidence which may be ruled inadmissible.”  Id.  Vang argues that in Sirek the waiver was valid only because the defendant “presumably” was notified prior to trial of the state’s intent to offer the evidence.  But the decision does not make any reference to a pretrial Spreigl notice.  To the contrary, Sirek stands for the proposition that any defendant who waives the right to a jury trial does so with full knowledge that the fact-finder will also rule on evidentiary issues and necessarily may be exposed to evidence that is inadmissible. 

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. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume that the fact-finder believed the evidence supporting the verdict and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably find the defendant guilty.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

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.

[1] This factor is not unique to a rule 404(b) analysis, since irrelevant evidence is inadmissible under Minn. R. Evid. 402.  

[2] 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 (Minn. 1983) (concluding that prosecutor was justified in eliciting prior-bad-acts evidence from witness, who was victim’s sister, in response to defense counsel’s questions regarding prior incident between witness and defendant).  Because it is not clear from the record that the district court admitted the evidence also on this basis, we decline to address the merits of this alternate theory of admissibility.