This opinion will be unpublished and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
Benjamin Michael Senske,
Filed April 3, 2007
Dakota County District Court
File No. K3-05-963
Lori Swanson, Attorney General, 1800
James C. Backstrom, Dakota County Attorney, Cheri A. Townsend, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from convictions for first-degree burglary and terroristic threats, appellant argues that the district court abused its discretion by (1) admitting evidence of appellant’s prior convictions and failing to give a limiting instruction, and (2) denying his motion for a mistrial after a state witness, the complainant, mentioned appellant’s incarceration and the court’s curative instruction was inadequate. Alternatively, appellant argues that he was denied the effective assistance of counsel because his attorney elicited evidence of his prior convictions. We affirm.
D E C I S I O N
Evidence of Prior Convictions
Appellant Benjamin Michael Senske argues
that the district court abused its discretion by admitting evidence of his
prior convictions. “Evidentiary rulings
rest within the sound discretion of the [district] court and will not be
reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the
[district] court abused its discretion and that appellant was thereby
prejudiced.” State v. Amos, 658
N.W.2d 201, 203 (
Appellant argues that evidence of his prior convictions was not admissible under Minn. R. Evid. 609, which provides:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.
Here, officers were dispatched to an apartment for a reported assault. The victim, P.D., told the officers that appellant, her ex-boyfriend, broke down her apartment door, held a knife to her throat and threatened to kill her. Officers apprehended appellant, who admitted that he broke down P.D.’s door and threatened to kill her. Before his trial began, appellant moved the district court to exclude evidence of his prior convictions. But the state did not seek to introduce evidence of appellant’s prior convictions; rather, appellant’s attorney, on direct examination of appellant, elicited evidence of appellant’s prior non-felony harassment convictions involving P.D.
The state argues that this evidence
is admissible under Minn. Stat. § 634.20 (2004); but appellant
argues that the state cannot raise this argument for the first time on appeal. “A respondent can raise alternative arguments
on appeal in defense of the underlying decision when there are sufficient facts
in the record for the appellate court to consider the alternative theories,
there is legal support for the arguments, and the alternative grounds would not
expand the relief previously granted.” State v. Grunig, 660 N.W.2d 134, 137 (
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, 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. “Similar conduct” includes, but is not limited to, evidence of domestic abuse . . . or violation of section 609.749 . . . . “Domestic abuse” and “family or household members” have the meanings given under section 518B.01, subdivision 2.
Minn. Stat. § 609.749 (2004) addresses harassment and stalking. A family or household member includes “persons involved in a significant romantic or sexual relationship.” Minn. Stat. § 518B.01, subd. 2(7) (2004). Because appellant was previously convicted of harassing P.D., his girlfriend, evidence of his prior convictions is evidence of similar conduct under Minn. Stat. § 634.20.
“[T]he admissibility of evidence under Minn.
Stat. § 634.20 depends only on (1) whether the offered evidence is
evidence of similar conduct; and (2) whether the probative value of the
evidence is substantially outweighed by the danger of
unfair prejudice.” State v. McCoy, 682 N.W.2d 153, 158 (
Appellant argues that he was prejudiced because the evidence was similar to the charged offense, it gave the jury the impression that he was a “fit candidate for punishment,” and the district court did not give the jury a limiting instruction. First, the similarity of the offenses is not a factor for the district court to consider. Second, appellant’s attorney elicited the testimony regarding appellant’s prior convictions in order to show a pattern of behavior in appellant and P.D.’s relationship. Appellant cannot now argue that the evidence gave the jury the impression that he was a “fit candidate for punishment.” Further, the district court instructed the jury that it could not convict appellant on the basis of the evidence, that appellant was not being tried for any offense other than the offenses charged, and that the evidence could not be used as proof of appellant’s character or that he acted in conformity with such character.
Because the evidence presented was brief, constituting two pages of a trial transcript that was over 200 pages long, and because the district court gave a limiting instruction, appellant has not shown that he was prejudiced. Moreover, appellant was not prejudiced because the evidence supporting his conviction was strong. P.D. testified that appellant forced his way into her apartment, held her down on the bed, and threatened her with a knife. Appellant testified that he “pushed the door open” with his shoulder, using enough force to pull the door’s security chain and dead bolt away from the wood frame. Appellant also testified that he held P.D. down and threatened to kill her. The district court did not abuse its discretion by admitting evidence of appellant’s prior convictions for harassing P.D.
appellant argues that he received ineffective assistance of counsel because his
attorney elicited the testimony regarding his prior convictions. An appellant alleging ineffective
assistance of counsel must show that counsel’s
performance “‘fell below an objective standard of reasonableness’ and ‘that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Gates v.
State, 398 N.W.2d 558, 561 (
ineffective-assistance-of-counsel claim ordinarily should
be raised in a postconviction petition rather than on direct appeal from a
judgment of conviction in order to permit appellate review of the evidence
presented during a postconviction hearing.
State v. Gustafson,
610 N.W.2d 314, 321 (
Appellant must prove that his trial
counsel’s representation fell below an objective standard of reasonableness and
that he was actually prejudiced by his counsel’s performance. Gates,398 N.W.2d at 561. First, this court will not intervene in
matters related to trial tactics or strategy, such as
“[w]hich witnesses to call at trial and what information to present to the
jury.” State v. Lahue, 585 N.W.2d 785, 789 (
next argues that the district court abused its discretion when it denied his
motion for a mistrial. Appellant
contends that he was entitled to a mistrial after P.D. testified that appellant
was incarcerated. Appellant
suggests that because the jury heard that he was incarcerated, his right to a
fair trial and the presumption of innocence was undermined. This
court reviews a district court’s denial of a motion for a mistrial
for abuse of discretion. State v.
47, 52 (
Appellant relies on State v. Manthey, 711 N.W.2d 498 (
Here, on cross-examination, appellant’s attorney asked P.D. if she wanted to be in a
relationship with appellant. P.D.
testified that her relationship with appellant could work if he stopped
drinking. When appellant’s attorney
asked P.D. if appellant had stopped drinking, she replied: “Yes, he’s
incarcerated.” This situation is very
similar to Manthey, in which the
supreme court determined that the comment did not prejudice the appellant. See id. P.D. made the comment during
cross-examination after appellant’s attorney had asked her at least two times previously
about appellant’s intoxication and how it affected their relationship. Additionally, in State v. Hudson, a similar situation
occurred when a state witness revealed, in response to questions by defense
counsel, that the defendant had been in jail part of the previous year. 311 N.W.2d 505, 506 (
Finally, appellant argues that the district court’s instruction was inadequate. The district court instructed the jury that they could not consider as evidence the fact that appellant may have been incarcerated as a result of the offense. Additionally, the district court instructed the jury on the presumption of innocence at the beginning and at the conclusion of the trial. The district court’s instruction was adequate and its lack of specificity did not draw attention to P.D.’s comment. See Manthey, 711 N.W.2d at 506. Appellant has not shown that there is a reasonable probability that the outcome would have been different without P.D.’s comment. This is especially true given the strength of the evidence supporting appellant’s guilt. The district court did not abuse its discretion in denying the motion for a mistrial.