This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Howard Maxwell Hardy, Jr.,



Filed February 20, 2007


Ross, Judge


Beltrami County District Court

File No. K5-05-242



Lori Swanson, Attorney General, Rita Coyle Demeules, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Timothy R. Faver, Beltrami County Attorney, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis , MN 55414 (for appellant)



Considered and decided by Ross, Presiding Judge; Klaphake, Judge; and Worke, Judge.


U N P U B L I S H E D   O P I N I O N


ROSS, Judge


Howard Hardy appeals convictions of first- and third-degree criminal sexual conduct regarding his assault of his girlfriend.  Hardy challenges several of the district court’s evidentiary decisions, arguing that the court erred by allowing testimony by his girlfriend and her nephew that Hardy had hit them in the past, allowing evidence of Hardy’s prior theft conviction without giving a proper limiting instruction to the jury, and allowing the prosecutor to mention that Hardy was being held in jail.  Because the district court did not abuse its discretion by admitting relationship testimony and Hardy has not demonstrated that the admission of the other evidence was plain error, we affirm.


The state charged Howard Hardy with first- and third-degree criminal sexual conduct based on an alleged assault in February 2005 by Hardy against his girlfriend, D.M.  At trial, D.M. and Hardy gave conflicting versions of the events preceding D.M.’s injury, which consisted of a six-centimeter-long and one-centimeter-wide labial tear.  D.M. testified that she and Hardy were in bed watching television.  They began arguing after Hardy implied that D.M. was cheating on him.  She told police officers that she tried to go to sleep, but Hardy continued the argument and then “grabbed [her] between [her] legs.”   She felt a sharp pain and went into the bathroom.  She called her niece, C.M., and urged her to come get her because Hardy “had tor[n] her privates” and she was bleeding.  C.M. testified that D.M. was upset and crying when she called.  C.M. and her brother, A.M., went to Hardy’s home.  They took D.M. to the hospital.

Police also arrived, and they arrested Hardy.  Officers testified that they found bloody tissues in the waste baskets in Hardy and D.M.’s bedroom and in a bathroom.  When they questioned Hardy, he denied having any sexual contact with D.M. that evening.  He told the officer that if D.M. needed medical attention, she “did it to herself.”

An examining physician testified that D.M. had a “friction type” tissue injury that was inconsistent with normal sexual activity and would not result from ordinary hygienic care.  He stated that the injury could occur from a violent motion such as forceful digital penetration and removal.

Hardy presented a very different account, testifying that he and D.M. were in their bedroom engaged in sexual “foreplay,” during which he likely penetrated her digitally.  He testified that their foreplay became “a little more aggressive.”  He acknowledged that they argued at some point, but denied injuring her.  He testified that as they were later about to sleep, D.M. said she thought she was bleeding and went into the bathroom.

In addition to her account of the charged offense, D.M. testified about two prior incidents of violence by Hardy against her.  The jury also heard A.M.’s testimony that Hardy had previously struck D.M. and A.M.  Hardy acknowledged that he has a prior theft conviction, and one of the prosecutor’s questions disclosed to the jury that Hardy remained incarcerated on the current charges.

The jury convicted Hardy of both counts of criminal sexual conduct and the court sentenced him to 146 months’ imprisonment on the first-degree conviction.  Hardy appeals, challenging the admission of D.M.’s testimony about prior violence, A.M.’s testimony that Hardy had struck D.M. and A.M., and evidence of a prior conviction.  He also asserts that he was unfairly prejudiced by the prosecutor’s mention that he was in jail on the current charges.


Evidentiary decisions rest within the discretion of the district court, and they will not be reversed absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The appellant bears the burden of establishing that the district court abused its discretion and that its decision resulted in prejudice.  Id.  When a defendant fails to object to evidence admitted at trial and challenges it on appeal, we review the admission for plain error.  Minn. R. Crim. P. 31.02.  The appellant must show that an error occurred, the error was plain, and the error affected the defendant’s substantial rights.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  Even if this burden is met, however, we may correct the error “only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. (quotation omitted).


Hardy’s first two evidentiary objections relate to testimony on Hardy’s prior violence against D.M.  A defendant’s prior bad acts are generally inadmissible except in limited circumstances.  Minn. R. Evid. 404(b).  But evidence of similar conduct by a defendant against a victim of domestic violence “is 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.”  Minn. Stat. § 634.20 (2004).  “Similar conduct” includes, but is not limited to, evidence of domestic violence.  Id.  The supreme court has recognized the inherent value of evidence of past violence by a defendant against the same victim; evidence of prior conduct illuminates the history of the relationship and places the charged crime in the context of the relationship.  State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006); State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004).

Evidence offered under section 634.20 is distinct from Spreigl evidence and is not subject to the same procedural requirements as evidence offered under rule 404(b) of the Minnesota Rules of Evidence.  See Bell, 719 N.W.2d at 638-39 (expressly rejecting suggestion that rule 404(b) requirements apply to evidence offered under section 634.20).  The district court is not required to engage in an independent analysis of the state’s need for section 634.20 evidence before it is admitted, and the state need not provide prior notice of the evidence or produce clear and convincing evidence of the alleged past similar conduct.  See id. at 639 (holding that district court need not engage in independent analysis of state’s need for section 634.20 evidence); McCoy, 682 N.W.2d at 159-60 (holding that heightened clear-and-convincing-evidence and prior-notice standards do not apply to section 634.20 evidence).  The different treatment for prior similar conduct in domestic-violence cases is supported by the uniqueness of domestic violence: the violence “typically occurs in the privacy of the home, it frequently involves a pattern of activity that may escalate over time, and it is often underreported.”  McCoy, 682 N.W.2d at 161.

Hardy first challenges the admission of D.M.’s testimony that, in 2001, Hardy struck her jaw with a beer mug.  Before the trial began, the district court determined that the conduct fell within the parameters of section 634.20 and that the potential prejudicial effect of the evidence did not outweigh its probative value.  Hardy asserts that the district court abused its discretion because it failed to consider the state’s need for the evidence.  He also contends that the evidence was prejudicial because D.M. also testified that Hardy had punched her in the nose and stolen her car several years earlier.  We reject Hardy’s arguments.

The supreme court has recently clarified that the district court is not required to conduct an independent analysis of the state’s need for section 634.20 evidence because the need is “naturally considered as part of the assessment of the probative value versus prejudicial effect of the evidence.”  Bell, 719 N.W.2d at 639.  The record also does not suggest that D.M.’s testimony was unfairly prejudicial.  D.M. testified that Hardy had punched her, but she also testified that, although she initially cooperated with the police and state regarding charges against Hardy for that incident, she later wrote a letter to the state recanting her account of the violence.  She testified in the trial of the present matter that her recantation was untrue.  D.M.’s testimony about her previous recantation put her credibility directly in question, and section 634.20 recognizes that domestic violence often includes a pattern of violent activity.  It is not inherently prejudicial, as Hardy implies, to admit evidence of a second prior occurrence of domestic violence, particularly when D.M. openly admitted that she had previously denied the other occurrence.  See State v. Williams, 593 N.W.2d 227, 237 (Minn. 1999) (holding that defendant was not unfairly prejudiced by allowing multiple witnesses to testify to defendant’s past violence against victim when linchpin of defendant’s case was to undermine victim’s credibility).

We have also noticed in the record that the district court appropriately mitigated the risk of unfair prejudice by reminding the jury both at the time of the testimony and at the close of the trial that the jury could not convict Hardy based on his past acts.  Hardy presents no argument that the testimony was unfairly prejudicial, only that it was damaging to his case.  But unfair prejudice “is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage.”  State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).  The district court did not abuse its discretion by allowing D.M. to testify to the challenged incidents of domestic violence.

Hardy next challenges A.M.’s testimony that Hardy had been violent with D.M. previously.  D.M.’s nephew testified that he had seen Hardy assault D.M. “[p]lenty of times when [A.M.] was younger.”  When his sister called and told him that they needed to pick up D.M., he got dressed, armed himself with a baseball bat, and waited for his sister.  When asked why he took the bat, he replied, “Because I was told my auntie had gotten beat up again.”  As C.M. and A.M. were leaving the Hardy residence with D.M., A.M. used his bat to hit a tail light on Hardy’s mother’s car.  Asked to explain why he did it, A.M. responded that he broke the light “[o]ut of anger of being tired of my auntie getting beat up by this guy, over and over.”  Hardy did not object to any of these statements.

We find no plain error in admitting A.M.’s testimony.  Hardy first argues that the state did not corroborate A.M.’s statements with clear and convincing evidence.  But the clear-and-convincing evidence standard does not apply to section 634.20 evidence, and the section does not limit who may testify to similar acts by the defendant against the victim.  McCoy, 682 N.W.2d at 60 & n.6 (holding that prior acts offered under section 634.20 need not be established by clear and convincing evidence); State v. Lee, 645 N.W.2d 459, 467 (Minn. 2002) (finding no plain error when witness testified to abuse she observed by defendant against victim and defendant did not object).  Hardy next argues that allowing the testimony was plain error because it was cumulative and the court did not give a limiting instruction.  Although the court did not give a limiting instruction during A.M.’s testimony, the failure to provide a limiting instruction absent a request is not reversible error.  Williams, 593 N.W.2d at 237; State v. Meldrum, 724 N.W.2d 15, 21-22 (Minn. App. 2006) (holding that district court did not commit plain error by failing to give cautionary instruction on use of relationship evidence when not requested by defendant), review denied (Minn. Jan. 24, 2007).  Further, A.M.’s testimony was minimal and not excessively explicit, and the court’s admonition to the jury at the end of the trial that it could not convict Hardy based on his past behavior mitigated any risk of undue prejudice.  See Lee, 645 N.W.2d at 467 (finding no abuse of discretion in admitting minimal amount of testimony regarding observed violence by defendant against victim when court instructed jury that events should not be used to convict defendant).


Hardy next objects to A.M.’s testimony that Hardy had previously struck A.M.  When asked whether he had had problems with Hardy in the past, A.M. testified that “[t]here were occasionally times when I was younger where he had struck me.”  Hardy did not object to this testimony, and we see no plain error by its admission.  A.M.’s testimony was in the context of explaining why he took a bat with him to Hardy’s home.  The record does not establish that A.M.’s testimony affected Hardy’s substantial rights or the fairness of his trial.  The testimony was limited to this single response and tended to indicate that any abuse against him was not recent.  Even without A.M.’s testimony, sufficient evidence supports the jury’s verdict.  Hardy is not entitled to a new trial based on A.M.’s testimony.


Hardy challenges the district court’s admission of Hardy’s prior conviction based on what Hardy contends were improper jury instructions.  District courts have considerable latitude when selecting jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must, viewed as a whole, accurately state the law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  When a party fails to object to a jury instruction, this court reviews the instructions on appeal for plain error.  Baird, 654 N.W.2d at 113.

During direct examination, Hardy acknowledged that he had been convicted of theft.  Before the trial began, the district court determined that the conviction was admissible to impeach Hardy after analyzing it under the factors set forth in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).  Immediately after testifying to the conviction, Hardy asked the district court for a cautionary instruction.  The court told the jury that evidence of Hardy’s prior conviction

came in for the limited purpose of assisting you in determining whether the [d]efendant committed the acts with which he is charged in this current [c]omplaint. . . . You are not to convict him on the basis of any prior conviction.  In other words, you are not to convict him in this case on the basis of a prior conviction.


Hardy voiced no objection to this instruction.  When the parties later discussed the proposed jury instructions after all witnesses had testified, the court stated that whether the conviction would be used for impeachment or Spreigl purposes was unclear, and that “the greater danger lies in the possibility that [the jury] could convict him of the current [charge], based upon that prior bad act.  And therefore, [the court] think[s] the Spreigl warning would be appropriate.” Hardy’s counsel agreed to the instruction and acknowledged, “I think that this is appropriate.”

The district court gave both impeachment and Spreigl instructions to the jury.  The court stated that, when considering a witness’s credibility or the weight to give a witness’s testimony, the jury “may also consider evidence that a witness has been convicted of a crime.  You may consider whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth.”  The court added that “[i]n the case of the [d]efendant, you must be especially careful to consider any previous conviction, only as it may affect the weight of the [d]efendant’s testimony.  You must not consider any previous conviction as evidence of guilt of the offense for which the [d]efendant is on trial in this case.”  Finally, the court reminded the jury of its instructions regarding use of the prior occurrences of violence between Hardy and D.M. and the theft conviction, stating, “As I told you at the time this evidence came in, [the court] allowed this evidence to be admitted for the limited purpose of assisting you in determining whether the [d]efendant committed the acts with which he is charged in this [c]omplaint.”  The court stressed that the jury could not convict Hardy based on these past acts.

The court’s instructions demonstrate careful consideration and do not constitute plain error.  Hardy agreed to the instruction beforehand and did not object when the court gave the instructions to the jury.  The court clearly stated that the prior conviction was to be used for evaluating credibility as it relates to the present crime, and that the jury could not convict Hardy based on his past behavior.  The district court’s repeated cautions were exemplary.


Finally, Hardy faults a question by the prosecutor that referred to Hardy’s custodial status.  Hardy had given details of the events leading to D.M.’s injury, including the assertion that they had been watching a certain pornographic videotape.  When he responded to questions about the alleged videotape, Hardy stated that the tape was at his mother’s home.  The prosecutor then asked whether Hardy had talked to his mother about his case, to which Hardy responded, “No.  As in how?  No, I haven’t.”  To clarify the question for Hardy, the prosecutor then asked, “So when she’s come to visit you at the jail, you haven’t talked to her about the case or her testimony?”  Hardy did not object to the question.

Although the supreme court has recognized that references to a defendant’s prior incarceration may be unfairly prejudicial, it has not set forth a bright-line rule that a defendant is per se prejudiced if the jury learns that he is in jail for the crime for which he on trial.  State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (holding that any prejudice resulting from two references to defendant’s custodial status was not so fundamental or egregious to require mistrial).  We appreciate that references to a defendant’s custodial status have been strongly discouraged and an undue emphasis on his status may have a negative impact on the presumption of innocence.  We find that the prosecutor’s question in this case, however, did not affect Hardy’s right to a fair trial.  The prosecutor’s single clarifying comment focused the question on whether Hardy had spoken to his mother about his case, not where any conversations occurred.  Reference to his current incarceration should have been avoided, but the court twice reminded the jury that the state bears the burden of proving all elements of the charged offense beyond a reasonable doubt and that Hardy is presumed innocent.  See id. at 506-07 (holding that district court’s reminder of presumption of innocence blunted potential of prejudice and noting no evidence suggested jury verdict was influenced by knowledge of defendant’s custodial status).  Hardy has not pointed to anything in the record that would suggest that the jury was tainted by this stray remark so as to seriously affect the fairness or integrity of the trial.  The prosecutor’s unnecessarily specific question therefore does not entitle Hardy to a new trial.