This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Andrue T. Grabow,
Filed March 20, 2007
Reversed and remanded
Lyon County District Court
File No. K6-04-884
Lori Swanson, Attorney General, Kimberly Ross Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Richard R. Maes, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN 56258 (for respondent)
John Stuart, State Public Defender, Benjamin
J. Butler, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge, Worke, Judge, and Crippen, Judge.
Appellant Andrue Grabow challenges his conviction for felony domestic assault, arguing that the district court improperly excluded evidence of witness bias. Because the exclusion of this evidence was error, and because the error was not harmless, we reverse appellant’s conviction and remand for a new trial.
In October 2004, appellant got into a heated argument with his girlfriend, Shannon Fischer, while at appellant’s apartment. Appellant demanded that Fischer leave and, as appellant closed the door behind her, Fischer fell down a steep stairway immediately before the doorway and sustained a deep bruise on her left thigh. Alleging that she fell because appellant pushed her in the upper back with his hand, Fischer went home and called the police. Appellant denied pushing Fischer and claimed that she must have tripped.
Based on Fischer’s complaint,
Prior to trial, appellant moved to admit evidence that Fischer vandalized his belongings sometime after October 2004. He also moved to admit evidence of a November 2003 assault, asserting that Fischer had recruited some of her friends to beat him up following another domestic dispute. Appellant argued that these incidents provided evidence of bias, but the district court denied his motions. On the morning of the trial, appellant stipulated to the two prior domestic assault convictions but Fischer was permitted to testify to the underlying conduct.
The trial consisted of testimony by appellant, Fischer, and the two police officers who investigated the charged offenses. The jury returned a guilty verdict on the charge of felony domestic assault, intent to cause fear, and a not-guilty verdict on the count of felony domestic assault, intent to inflict bodily harm. Appellant argues that the district court erred in excluding evidence of the November 2003 assault and that his stipulation to the prior convictions did not constitute an effective waiver of his right to a jury trial on each element of the offenses charged.
review evidentiary rulings by the district court for clear abuse of
discretion. State v. Pendleton, 706 N.W.2d 500, 510 (
evidence is admissible to impeach the credibility of testifying witnesses.
Confusion of the jury is a
permissible basis for excluding otherwise admissible evidence.
Appellant must also show that the district court’s error
was not harmless beyond a reasonable doubt. State v. Post, 512 N.W.2d 99, 102 (
In State v. Lanz-Terry, the supremecourt held that “[w]hether the [district] court abused its discretion in restricting a defendant’s attempted cross-examination that [was] aimed at showing bias turns on whether the jury has sufficient other information to make a ‘discriminating appraisal’ of the witness’s bias or motive to fabricate.” Lanz-Terry, 535 N.W.2d at 641. Although the court in Lanz-Terry was using an abuse-of-discretion standard of review rather than a harmless-error standard, its analysis is nonetheless instructive because it illustrates the curative effect of having other evidence demonstrating bias in the record.
In this case, the jury heard testimony about two previous occasions on which appellant assaulted Fischer; thus it was aware of the couple’s volatile relationship, but only with appellant as the responsible party. But evidence that Fischer recruited friends to assault appellant tends to show the indirect means she was willing to use to retaliate. Presented with this evidence the jury could have reasonably inferred that Fischer fabricated testimony that appellant pushed her down the stairs in order to fulfill her desire to punish him.
the state’s only evidence of the crimes charged consisted of Fischer’s
testimony, that testimony served as the basis for the jury’s verdict. The harmless-error test requires that we
examine the basis for a verdict in determining whether it was surely not
attributable to the error. Townsend v. State, 646 N.W.2d 218, 223 (
Appellant next asserts that it was error for the district court to accept his oral stipulation to his prior convictions as a waiver of a jury trial on those elements because it was not demonstrably knowing, voluntary, and intelligent. See State v. Wright, 679 N.W.2d 186, 191-92 (Minn. App. 2004) (stating that defendant’s stipulation to element of offense must be supported by personal oral or written waiver of defendant’s right to jury trial on that element), review denied (Minn. June 29, 2004). As we have already determined that appellant’s evidentiary claim demands a new trial, this is not the appropriate occasion to examine the merits of his waiver claim.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.