This opinion will be unpublished and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
State of Minnesota,
Scott A. Black,
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 05030613
John M. Stuart, State Public
Defender, Jodie L. Carlson, Assistant State Public Defender,
Lori Swanson, Attorney General,
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Chief Judge Toussaint, Presiding Judge; Wright, Judge; and Crippen, Judge.*
Appellant challenges his conviction of fifth-degree assault, arguing that (1) the district court abused its discretion by admitting cumulative evidence of appellant’s prior abuse against the victim and evidence of appellant’s prior bad acts, and by ruling evidence of appellant’s prior convictions admissible for impeachment; (2) the prosecutor committed misconduct during closing argument; (3) appellant received ineffective assistance of trial counsel; (4) the evidence does not support the jury’s verdict; and (5) appellant was denied the right of compulsory process. Appellant also argues that the district court misapplied the law when it ordered him to register as a predatory offender. We affirm in part, reverse in part, and remand.
Respondent State of Minnesota charged appellant Scott Black with fifth-degree assault, a violation of Minn. Stat. § 609.224, subds. 1, 4(b) (2004). The complaint alleged that Black assaulted his estranged wife. Prior to trial, the district court granted the state’s motion to introduce evidence of Black’s prior domestic abuse against the victim under Minn. Stat. § 634.20 (2004) (allowing admission of evidence of similar domestic abuse by accused against victim unless it fails Minn. R. Evid. 403 analysis). Before the victim testified about the prior abuse, the district court instructed the jury as follows:
This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed the act with which the defendant is charged in the case now before you. The defendant is not being tried for and may not be convicted of any offense other than the offense charged in the complaint. You are instructed specifically that you are not to convict the defendant on the basis of any prior occurrence. To do so, might result in unjust, double punishment.
In addition to the victim, the state called as witnesses two police officers and a resident of the victim’s apartment complex to testify about the prior incidents of abuse. Black objected to this testimony on the ground that it was cumulative, but these objections were overruled.
At the close of its case, the state moved to impeach Black, if he testified, with evidence of his prior felony convictions of receiving stolen property, theft, and possession of cocaine. The district court granted the motion. But because Black chose not to testify, this evidence was not introduced.
After the jury found Black guilty of the charged offense, the district court sentenced Black to 25 months’ imprisonment and ordered him to register as a predatory offender. This appeal followed.
D E C I S I O N
Black argues that the district court abused its
discretion by (1) admitting cumulative evidence of Black’s prior incidents of
abuse against the victim, (2) admitting evidence of his prior bad acts, and (3)
ruling Black’s prior felony convictions admissible for impeachment
purposes. Evidentiary rulings rest
within the district court’s sound discretion.
State v. Amos, 658 N.W.2d 201,
Minnesota law provides that
[e]vidence 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 . . . evidence of domestic abuse . . . .
Minn. Stat. § 634.20 (2004); see also State v. McCoy, 682 N.W.2d 153,
Black argues that the
district court abused its discretion when it admitted cumulative section 634.20
evidence. We considered a similar argument
in State v. Stillday, 646 N.W.2d 557
(Minn. App. 2002), review denied
(Aug. 20, 2002). There, the defendant
was charged with engaging in a pattern of harassing conduct and fifth-degree
assault. Stillday, 646 N.W.2d at 560.
The state introduced evidence of the defendant’s prior conviction of terroristic
threats against the victim’s son through photographs from the scene and testimony
from the victim, the victim’s son, and two officers. Id. Because the victim had already testified
about this incident, which included an assault of the victim, the defendant objected,
arguing that all evidence except the victim’s testimony was cumulative, and,
Here, as in Stillday, the victim’s credibility was at issue. Black impeached the victim’s credibility during cross-examination of the victim. The testimony by others regarding Black’s prior abuse against the victim merely corroborated the victim’s testimony. The district court, therefore, did not abuse its discretion by admitting the evidence.
Black also asserts that the district court abused its discretion when it admitted evidence of Black’s prior bad acts in violation of Minn. R. Evid. 404(b) (prohibiting admission of “[e]vidence of another crime, wrong, or act[] . . . to prove the character of a person in order to show action in conformity therewith”). Specifically, Black challenges (1) the victim’s testimony that, while the assault was occurring, Black took rubbing alcohol into the bathroom, which the victim assumed he drank because she had “seen [him] drink rubbing alcohol before and he goes crazy off of it,” and (2) an officer’s testimony that Black acted violently during an arrest for a prior incident of abuse.
Black did not object to the
admission of this testimony at trial.
an appellant who fails to object waives the right to object to the evidence on
appeal. State v. Bauer, 598 N.W.2d 352, 363
(Minn. 1999). To overcome such a waiver, Black must
demonstrate that the district court committed plain error. Minn. R. Crim. P. 31.02
(stating that appellate court may consider plain error affecting substantial
rights even if such error was not raised before district court); State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998) (holding that appellate court has discretion to consider an error
not objected to if such error is plain and affects substantial rights). Plain error exists when the district
court commits an obvious error that affects the defendant’s substantial
rights. State v. Ihle, 640 N.W.2d 910, 917 (
The victim’s testimony that
she had seen Black drink rubbing alcohol on a prior occasion was offered to
explain why the victim found it necessary to call the police as soon as Black
took the rubbing alcohol into the bathroom. Because this testimony explained the victim’s
fear of Black’s actions that occurred during the immediate episode of the
assault, it was not inadmissible under rule 404(b). See,
e.g., State v. Taylor, 650 N.W.2d
190, 200 (
In contrast, the officer’s testimony about Black’s
violent conduct during a prior arrest appears to have been offered in violation
of rule 404(b) to demonstrate Black’s violent character and to suggest that he
acted in conformity with it when he assaulted the victim. But given Black’s failure to object, “the
question before us is not whether the
[district] court erred in admitting the testimony, because the [district] court
was not given the opportunity to make that decision.” State
v. Vick, 632 N.W.2d 676, 685 (
Assuming, without deciding, that the district court erred by failing to strike this testimony sua sponte or to provide a curative instruction sua sponte, Black cannot satisfy the plain-error standard because his substantial rights were not affected by the admission of this testimony. See Ihle, 640 N.W.2d at 917 (articulating plain-error standard). The jury had before it “ample independent evidence” that established Black’s guilt. Martinez, 725 N.W.2d at 738 (holding that supreme court need not determine whether admission of cumulative evidence was error or whether that error was plain because any possible error did not affect defendant’s substantial rights because there was “ample independent evidence” establishing essential element of the crime and cumulative evidence “merely confirmed” that independent evidence). Specifically, the victim testified about the instant assault. Her testimony was corroborated by evidence including the recording of her 911 call, photographs of a bite mark on her neck, and the responding officer’s testimony about her observations after arriving at the victim’s apartment. In light of this strong, independent evidence of Black’s guilt, he fails to prove prejudice. Black has not established that there is a reasonable probability that the verdict might have been more favorable to him without the testimony regarding his violent conduct during a prior arrest. See Post, 512 N.W.2d at 102 n.2 (holding that, to establish prejudice, appellant must show reasonable probability that verdict might have been more favorable to appellant without challenged evidence). Therefore, he is not entitled to relief on this basis.
Black also challenges the
district court’s ruling that evidence of Black’s prior convictions would be
admissible for impeachment under Minn. R. Evid. 609. Black argues that the ruling deprived him of the
constitutional right to testify in his own defense because it caused him to
decline the opportunity to testify. The
Minnesota Supreme Court considered and rejected the same argument in State v. Gassler, 505 N.W.2d 62 (Minn.
1993). The Gassler court reasoned that appellant was not prevented from
testifying. 505 N.W.2d at 67-68. Rather, he made a strategic decision not to
testify based on the potential damage his prior convictions would inflict on
his credibility. Id. “The mere fact that a
[district] court would allow impeachment evidence if a defendant chooses to
testify does not necessarily implicate his constitutional right to testify in
his own defense.” Id. at 68. To prevail, an
appellant must show that the district court abused its discretion when it ruled
that the probative value of the impeachment evidence outweighed its prejudicial
Rule 609, subdivision (a), permits evidence that a witness has been convicted of a crime punishable by imprisonment of more than one year to be used for impeachment purposes if the district court determines that the probative value of admitting this evidence outweighs its prejudicial effect. When determining whether the probative value outweighs the prejudicial effect, a district court considers:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.
State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). Here, the district court analyzed each factor, finding that (1) the convictions have significant impeachment value to assist the jury in seeing Black as a whole person, (2) the convictions are very recent, (3) the convictions have no similarity to the charged offense, (4) Black’s testimony is very important to the case, and (5) his credibility, if he testified, is an important issue. The district court then concluded that the probative value of Black’s prior convictions outweighed their prejudicial effect.
The district court erred in finding that the convictions have significant impeachment value by assisting the jury to see the whole person, Black argues, because this had been accomplished with the evidence of his prior domestic abuse against the victim. But aside from Black’s other bad conduct, his prior convictions can assist a jury to evaluate his truthfulness as a witness. See State v. Swanson, 707 N.W.2d 645, 650, 653, 655 (Minn. 2006) (holding that defendant’s prior convictions of motor-vehicle theft, assault, criminal vehicular operation, and possession of stolen property were admissible in trial on charges of first- and second-degree murder, felony murder, kidnapping, and false imprisonment because they were relevant to “whole person” analysis). There were only two people present during the altercation that resulted in the victim’s injuries—Black and the victim. Black’s testimony would have pitted his credibility against that of the victim. As such, the jury’s ability to assess Black’s credibility was critical to fulfilling its fact-finding obligation. Contrary to Black’s argument, our review of the record establishes that the district court did not abuse its discretion when it ruled that Black’s prior convictions had significant impeachment value because they assisted the jury in seeing Black as a whole person.
The district court correctly determined that the probative value of the prior convictions outweighed their prejudicial effect. Therefore, Black has failed to demonstrate that the district court’s evidentiary ruling deprived him of the constitutional right to testify.
Arguing that the prosecutor committed misconduct during closing
argument, Black seeks reversal of his conviction. If prosecutorial misconduct has occurred, we
apply one of two standards to assess whether that misconduct warrants
reversal. State v. Powers, 654 N.W.2d 667, 678 (
Black asserts that the prosecutor’s statements referring to Black’s history of biting the victim improperly encouraged the jury to convict based on his prior conduct. But Black did not object to the statements at trial. When a defendant fails to object to alleged prosecutorial misconduct, we review the claim using a plain-error analysis. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). If the defendant proves that the alleged unobjected-to misconduct was an error that was plain, the burden then shifts to the prosecution to prove that the plain error did not affect the defendant’s substantial rights. Id. at 299-300.
During closing argument, a prosecutor may refer to relationship
evidence admitted under Minn. Stat. § 634.20. See
State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000) (holding that
prosecutor may properly refer to rule 404(b) evidence in closing argument), review denied (
Here, the prosecutor’s statements regarding Black’s history
of biting the victim referred to evidence admitted under section 634.20. Even if we assume that the prosecutor
referred to Black’s history of biting the victim to attack Black’s character or
to establish his criminal propensity, these statements do not warrant reversal of
Black’s conviction because it is not reasonably likely that these statements affected
the outcome of the case. The district
court twice instructed the jury that Black should not be convicted based on his
past abuse against the victim, once during the victim’s testimony and once
during final jury instructions. We assume that the jury followed the district
court’s instructions. See State v. Ferguson, 581 N.W.2d 824,
Black also argues that the prosecutor committed misconduct by stating his opinion about the evidence. The prosecutor opined about why the victim failed to tell the police that Black held up and dropped a knife, stating: “What a sad situation that she did not digest that as an assault.” The prosecutor also commented about Black’s flight from the police, stating: “That is an act of a guilty man. It shows his consciousness of guilt that he knew he had done something wrong and that he didn’t want to be caught.” Once again, Black did not object to these statements. We, therefore, examine the record to determine whether the district court committed plain error when it declined to strike these statements sua sponte or give a curative instruction sua sponte. Ramey, 721 N.W.2d at 299; Vick, 632 N.W.2d at 685.
assessments of the evidence may constitute prosecutorial misconduct.
State v. Porter, 526 N.W.2d
359, 364 (
The last two statements during closing argument that Black challenges are (1) “the definition of bodily harm is merely that[—]pain or injury[—]because the law abhors violence as it should,” and (2) “the State asks you to find the defendant guilty of Assault in the Fifth Degree and tell him keep his hands and his mouth to himself.” Because Black also failed to object to these statements, we apply the plain-error standard of review.
The jurors undoubtedly were aware that the law “abhors” violent conduct, particularly in light of their jury service in a case alleging a criminal offense based on a particular form of violence. Therefore, we reject Black’s argument that this statement constitutes prejudicial prosecutorial misconduct that affected his substantial rights.
The latter statement,
however, arguably constitutes misconduct because it urges the jury to send a
message with its verdict. Duncan, 608 N.W.2d at 556. To determine whether this prosecutorial misconduct
affected Black’s substantial rights, thereby satisfying the plain-error
standard, we consider the statement in the context of the entire closing
argument. State v.
The statement was made at the end of a closing argument that comprises 12 pages of transcript. Before making the statement, the prosecutor warned the jury that it may convict Black only if it determines that Black committed the assault for which he was charged. Moreover, the strength of the evidence supporting the jury’s verdict of guilt conclusively establishes that this argument did not affect Black’s substantial rights. Thus, the prosecutor’s statement does not warrant reversal of Black’s conviction.
conclusion that this statement is not reversible error, we consider whether, when
combined with the improper evidence of Black’s violent conduct during a prior
arrest, the cumulative effect requires reversal of Black’s conviction. “Cumulative
error exists when the cumulative effect of the . . . errors and indiscretions,
none of which alone might have been enough to tip the scales, operate[s] to the
defendant’s prejudice.” State v.
Johnson, 441 N.W.2d 460,
When, as here, the evidence
against the defendant is very strong and the errors did not affect the jurors’
deliberations, the cumulativeeffect of the errors does not prejudice the defendant. State v.
Erickson, 610 N.W.2d 335,
Accordingly, to the extent the district court may have erred in failing sua sponte to strike this testimony and argument or to provide curative instructions, there is nothing about the cumulativeeffect of those errors that warrants a new trial.
Black maintains that he received ineffective assistance of trial counsel because his counsel (1) conspired with the state to secure a conviction, and (2) erred by allowing the victim to testify notwithstanding his counsel’s knowledge of the victim’s prior inconsistent statements. Black has not identified, and the record does not provide, an evidentiary basis to support his conspiracy theory. Black also has not cited, and we are unaware of, any legal authority to support his assertion that his trial counsel could prevent the victim from testifying. Accordingly, these arguments are waived on appeal. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).
Black also argues that the
evidence was insufficient to support the guilty verdict. 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 the light most favorable to the
conviction, is sufficient to allow the jurors to reach a guilty verdict. State
v. Webb, 440 N.W.2d 426, 430 (
As discussed in Sections I.B. and II., when the evidence is viewed in the light most favorable to the verdict, Moore, 438 N.W.2d at 108, there is ample evidence from which the jury reasonably could conclude that Black was guilty of the charged offense. Black’s challenge to the sufficiency of the evidence, therefore, fails.
Black next contends that his conviction must be reversed because he was denied the right of compulsory process to obtain evidence or witnesses in his defense under Minn. Stat. § 611.06 (2004). Section 611.06 requires the court administrator to issue blank subpoenas as approved by the court “upon application of a defendant not represented by counsel.” Minn. Stat. § 611.06 (emphasis added). Because Black was represented by counsel, this provision is inapplicable to him.
In challenging his sentence, Black argues that the district court erroneously ordered him to register as a predatory offender because he was not convicted of an offense enumerated in Minn. Stat. § 243.166, subd. 1(a) (2004). The state counters that registration was proper under Minn. Stat. § 243.167 (2004). Section 243.167, subdivision 2(a), requires a defendant to register as a predatory offender under section 243.166 if the defendant (1) was convicted of a “crime against the person,” which as defined includes the offense of which Black was convicted in this case, see Minn. Stat. § 243.167, subd. 1 (defining “crime against the person” to include a violation of Minn. Stat. § 609.224, subd. (4)); (2) was previously convicted of an offense listed in Minn. Stat. § 243.166, subd. 1(a); and (3) was not required to register for the prior offense because the registration requirements of that section did not apply to the defendant at the time he committed the prior offense. Minn. Stat. § 243.167, subd. 2.
The state relies on Black’s
prior convictions of sexual assault and kidnapping, both of which occurred in
Wisconsin in 1981, to support its assertion that Black was required to register
under section 243.167, subdivision 2.
The state argues that those convictions were of offenses listed in
section 243.166, subdivision 1(a), subparagraphs (ii) (kidnapping under Minn.
Stat. § 609.25) and (iii) (criminal sexual conduct under Minn. Stat.
§§ 609.342, .343, .344, .345, .3451, subd. 3). The state’s interpretation of section
243.167, subdivision 2, is not supported by the statute’s plain language. Black was not convicted of violating the Minnesota
statutory provisions referenced in section 243.167. Rather, he was convicted of violating
We, therefore, affirm Black’s conviction, reverse that part of the district court’s sentencing order requiring Black to register as a predatory offender, and remand for resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
The Minnesota Supreme Court expressly adopted section 634.20 as a rule of
evidence, reasoning that it is appropriate to treat evidence of prior domestic
abuse differently from character evidence that is inadmissible under Minn. R.
Evid. 404(b) because “[d]omestic abuse is unique in that it 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.” State
v. McCoy, 682 N.W.2d 153, 161 (
 When asked why she called the police at that point, the victim testified that she did so because “now [she] was scared.”
 The “whole person” doctrine is based on the principle that
[t]he object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth. . . . When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. . . . Lack of trustworthiness may be evinced by [the defendant’s] abiding and repeated contempt for laws [that] he is legally and morally bound to obey . . . .
State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quotation omitted).
 Black specifically challenges the prosecutor’s statements that Black bit the victim’s neck “as he had before,” that the injury from the assault was “[p]erhaps . . . not as bad as some of the others,” that Black “is a biter,” and that it is “common for [Black to bite] because we have seen through the testimony . . . that this is at least the third time he has [bitten the victim].”
 The prosecutor also warned the jury during his closing argument that it “should not convict Mr. Black for this offense because of the past ones.”
 Minn. Stat. § 243.166, subd. 1(b) (2004), requires a person to register as a predatory offender if (1) the person was convicted of an offense in another state that would be a violation of a law listed in subdivision 1(a) if it had been committed in Minnesota; (2) the person enters Minnesota to reside; and (3) it has been less than ten years since the person was released from confinement for that offense. Thus, unlike subdivision 1(a), subdivision 1(b) permits the use of out-of-state convictions to satisfy the criteria for registering as a predatory offender. But the other requirements of Minn. Stat. § 243.166, subd. 1(b), are not met here. According to the presentence investigation report, Black was sentenced to five years’ imprisonment for his offenses of sexual assault and kidnapping. He was sentenced in November 1982. Therefore, more than ten years have elapsed since Black was released from confinement for those offenses. As such, section 243.166, subdivision 1(b), does not require Black to register as a predatory offender.
We observe that Minn. Stat. § 243.167, subd. 2, was amended in 2005 to require registration if the offender was convicted of any offense listed in section 243.166, not merely those listed in section 243.166, subdivision 1(a). 2005 Minn. Laws ch. 136, art. 3, § 9, at 951. Because this amendment incorporates subdivision 1(b) of section 243.166, a person in Black’s situation who commits the charged offense after August 1, 2005, would be required to register. Id. (stating that amendment applies to those who commit crimes on or after August 1, 2005).