This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




State of Minnesota,





Tobias Smith,


Filed on September 11, 2007

Dietzen, Judge


Olmsted County District Court

File No. K1-05-4734


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

Mark A. Ostrem, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Dietzen, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant challenges his convictions of third-degree criminal sexual conduct, first-degree burglary, and false imprisonment, arguing that the district court erred in allowing the introduction of testimony regarding prior acts of domestic abuse and testimony of appellant’s character, which deprived him of a fair trial.  Appellant also raises several pro se arguments.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


Appellant Tobias Smith and the victim, S.A., had an on-again, off-again relationship.  They lived together, broke up, and then got back together again on many different occasions.  They also had three children together. 

Late one night in November 2005, appellant showed up at his sister’s apartment “fairly intoxicated” and physically restrained the victim, who was visiting, from leaving the apartment.  Eventually, the victim broke free and went to her own apartment.  The next evening, a friend of appellant’s arrived at the victim’s apartment to gather some of appellant’s belongings.  Appellant arrived shortly thereafter to gather some belongings.  After they left, the victim went to bed but was later awakened by noises in the kitchen and discovered that appellant and his friend were in her apartment.  Appellant directed his friend to leave the apartment, locked the door, and forced the victim to have sex with him.

After the incident, the victim asked appellant if she could leave the apartment to get some cigarettes.  Appellant agreed but accompanied her outside the apartment.  When the victim observed an occupied squad car in the apartment building’s parking lot, she broke free from appellant’s grasp and ran to the squad car.  The victim described the incident to the police officer, and law enforcement later apprehended appellant.  The victim was transported to the hospital, where a sexual-assault examination was conducted.  Appellant was charged with first-degree criminal sexual conduct, kidnapping, third-degree criminal sexual conduct, and first-degree burglary. 

At trial, the victim testified to the events of the evening.  In describing the incident, the victim stated that appellant punched her in the nose, pulled her hair, and then forced her to have sex with him.  The officer who was approached by the victim in the parking lot testified that the victim appeared frightened, was visibly shaking, and had red marks in the area of her nose and chin. 

The victim also testified, over appellant’s objection, to five prior incidents of domestic abuse by appellant.  During cross-examination, the victim admitted that appellant was at her apartment three to four days a week and often stayed overnight, and that she previously lied to law enforcement regarding her relationship with appellant.

The nurse who examined the victim testified that she observed a bruise on one of the victim’s arms, some redness and swelling on the tip of her nose, but no tears or other injuries on the vaginal wall.  Based on her experience, she testified that the lack of tears or vaginal abrasions did not indicate whether the sexual intercourse was consensual or not.  Appellant presented the testimony of several witnesses, including two sisters and a niece, who testified that the relationship was on-again, off-again, and that appellant was at the victim’s apartment all the time.  The niece said she “heard” appellant and the victim engage in consensual sex several days before the incident in question.

Following the trial, appellant was acquitted of the kidnapping charges but convicted of the lesser-included offense of false imprisonment and was convicted of third-degree criminal sexual conduct involving force or coercion and first-degree burglary.  Appellant received concurrent executed sentences of 57 months for the criminal sexual conduct and burglary convictions, and a stayed sentence of one year and one day for the false imprisonment conviction, which was executed at appellant’s request.  The appeal follows.




Appellant argues that the prior acts of domestic abuse were improperly admitted over his objection.  “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 (Minn. 2003) (citations omitted).  We also review the admission of similar incidents of domestic abuse under Minn. Stat. § 634.20 (2004) for an abuse of discretion.  State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).

“Domestic abuse” includes any of the following “if committed against a family or household member by a family or household member: (1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) . . . [third-degree] criminal sexual conduct, within the meaning of section . . . 609.344 . . . .”  Minn. Stat. § 518B.01, subd. 2(a) (2004).[1] 

Evidence under section 634.20 need not meet the heightened standard of clear and convincing evidence required for the admission of character or Spreigl evidence, but need only be more probative than prejudicial.  McCoy, 682 N.W.2d at 159.  Thus, “the 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.”  Id. at 158-59.  “When balancing the probative value against the potential prejudice, 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. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted). 

Shortly before trial, the prosecution provided notice that it planned to offer the victim’s testimony regarding prior incidents of domestic abuse.  Following a hearing, the district court ruled that the evidence was admissible under Minn. Stat. § 634.20.  Prior to the victim’s testimony, the district court instructed the jury as follows:

[t]he evidence that you’re about to hear is not to be used to prove the character of the defendant or that the defendant acted in conformity with such character.  The defendant is not being tried for and may not be convicted of any offenses other than the charged offenses from November 20, 2005.


The district court gave a similar jury instruction at the conclusion of trial.

The victim testified that (1) in March 2003, appellant pinned her down on her bed, choked her, bit her face, and threatened to shove a knife into her genitals.  The victim obtained an order for protection against appellant but withdrew it several months later; (2) in August 2004, appellant choked the victim several times and stated that he would “hurt me and my kids and my family”; (3) in July 2005, appellant threw a knife at the victim’s face, cutting her hand, and then hitting her, causing her to fall to the ground; (4) in July 2005, appellant “was out drinking again” and hit the victim in the back of the head two or three times; and (5) in October 2005, appellant threatened to throw a cookie jar and a phone at her, and she called the police to report this incident.

Appellant argues that the prior domestic abuse evidence was so extensive that it unfairly focused the trial on his past conduct and deprived him of a fair trial.  But any “[e]vidence that helps to establish the relationship between the victim and the defendant or which places the event in context bolsters its probative value.”  State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998).  The district court read two cautionary instructions to the jury, which “lessened the probability of undue weight being given by the jury to the evidence.”  Id.  On this record, the district court did not abuse its discretion by admitting evidence of the multiple prior incidents of domestic abuse under Minn. Stat § 634.20. 

Appellant next argues that details of the incidents given by the victim were unnecessary and inflammatory.  Specifically, appellant argues that it was unnecessary for the victim to mention that appellant “was out drinking again” during her description of one of the July 2005 incidents.  But appellant did not object to this testimony, and the victim was subject to extensive cross-examination.  On this record, we cannot say that the reference to drinking prejudiced appellant’s right to a fair trial.   

Appellant further argues that evidence of the other July 2005 incident, particularly the victim’s testimony that “she gave birth six weeks early, probably as a result of this incident,” was both speculative and inflammatory.  But the victim merely testified that her water broke shortly after she fell and that the baby was born a couple of days later.  And appellant cross-examined the victim on this topic.  On this record, we see no abuse of discretion.


Appellant argues that the district court improperly admitted character evidence that deprived him of a fair trial.  Generally, evidence regarding a defendant’s character is inadmissible unless the defendant puts his or her character at issue.  Minn. R. Evid. 404(a)(1).  But appellant’s counsel did not object to this evidence during trial.  Where counsel fails to object to an error at trial, appellate courts apply the plain-error standard of review.  Minn. R. Crim. P. 31.02; see also State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (applying the plain-error standard to unobjected-to admission of testimony regarding other crimes).

 The plain-error standard requires that there be (1) error; (2) that is plain; and (3) the error must affect the defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The third prong is satisfied if the error was prejudicial and affected the outcome of the case.  Id. at 740-41.  If all three prongs are satisfied, the court then assesses whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.  Id.  An error is plain if it is clear or obvious under current law.  Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997).  Usually this is shown if the error “contravenes case law, a rule, or a standard of conduct.”  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

In a domestic abuse case, any “[e]vidence that helps to establish the relationship between the victim and the defendant or which places the event in context bolsters its probative value.”  Kennedy, 585 N.W.2d at 392; see also State v. Thieman, 439 N.W.2d 1, 6 (Minn. 1989) (stating that testimony regarding strained financial affairs between defendant and victim is admissible and relevant to showing a strained relationship between them); State v. Garcia, 374 N.W.2d 477, 480 (Minn. App. 1985) (stating that a defendant’s drinking and abusive behavior are relevant to jury’s understanding of the relationship between the defendant and the victim), review denied (Minn. Nov. 1, 1985).

The victim and other witnesses provided testimony that appellant (1) crashed the victim’s car and did not replace it; (2) has a history of unemployment; (3) used drugs and alcohol; and (4) the responding deputy had “prior contact” with appellant.  On this record, testimony that appellant crashed the victim’s car and did not replace it, his unemployment, and his drug and alcohol use all relate to various aspects of appellant’s relationship with the victim.  But the deputy’s “prior contact” with appellant and that the deputy was at the apartment building to investigate a car connected to appellant who had an outstanding arrest warrant is of questionable relevance.  But even if it was plain error to admit the evidence, we conclude that it was not prejudicial and did not affect the outcome of the case.  The record provides strong evidence to support the victim’s allegations that appellant sexually assaulted her.  It is unlikely that the “character” evidence affected appellant’s substantial rights or deprived appellant of a fair trial.



Appellant also raises several pro se arguments challenging his convictions.  Pro se litigants are generally held to the same standards as attorneys.  Liptak v. State, 340 N.W.2d 366, 367 (Minn. App. 1983).  If the pro se brief does not contain an argument or citation to legal authority in support of the allegations raised, the allegation is deemed waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).  If a brief fails to make or develop any argument at all, the issue asserted is considered waived.  State v. Butcher, 563 N.W.2d 776, 780-81 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  Finally, if an allegation is outside of the record, it must be disregarded.  See Minn. R. Crim. P. 28.02, subd. 8 (stating that “[t]he record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceeding, if any”).

Appellant argues that he received ineffective assistance of counsel on the ground that his attorney waived the omnibus hearing and the right to challenge the police reports which may have contained inconsistent information.  But appellant agreed with his attorney’s strategic decision to waive the omnibus hearing.  Further, appellant was not prevented from raising inconsistencies in the police report at trial. 

Appellant argues that the state engaged in unreasonable delays in charging him with a crime.  But the record shows that the incident in question happened on November 20, 2005, and appellant was charged by a complaint dated November 22, 2005. 

Appellant argues that the state failed to disclose exculpatory evidence consisting of photographs of the victim’s injuries and other physical evidence.  But the district court file contains cover letters and affidavits of service on appellant’s counsel regarding this evidence.  Further, appellant’s counsel did not allege any discovery violations.

Appellant argues that the state’s late disclosure of one of the prior acts of domestic abuse deprived him of a fair trial.  But when this issue was raised at trial, the district court granted a continuance to allow appellant a chance to respond.  Appellant nonetheless contends that he was prevented from calling witnesses to rebut the information and provides no support for this contention.

Appellant argues that the district court admitted improper expert testimony from the sexual-assault nurse.  The district court permitted the nurse to testify that, in her experience, the lack of tears or injury to the vaginal wall is not conclusive as to whether there was a sexual assault.  The district court relied on Minn. R. Evid. 702 (stating that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise”).  On this record, we see no abuse of discretion.

Appellant also argues entrapment, that some of the jurors knew the victim, and that one of the jurors was sleeping during trial.  But there is nothing in the record to support these contentions, and we find that they lack merit.

Finally, appellant raises a “habeas corpus” issue, arguing that this was a first-degree criminal sexual conduct case, and, therefore, he should have been represented by two attorneys.  But Minn. Stat § 609.342, which governs first-degree criminal sexual conduct, contains no such requirement.  Further, the state dismissed the first-degree criminal sexual conduct charges.


[1] “Family or household members” include any of the following: “persons who are presently residing together or who have resided together in the past; . . . persons who have a child in common regardless of whether they have been married or have lived together at any time . . .; [or] persons involved in a significant romantic or sexual relationship.”  Minn. Stat. § 518B.01, subd. 2(b)(4), (5), and (7) (2004).  Here, because of the nature of the relationship between appellant and the victim, the victim could be included in any one of these family-or-household-member categories.