This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


State of Minnesota,


Kerry William Spencer,

Filed July 28, 1998
Schumacher, Judge

Pine County District Court
File No. K09741

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

John K. Carlson, Pine County Attorney, Christopher K. Wachtler, Assistant County Attorney, Courthouse, 315 Sixth Street, Suite 8, Pine City, MN 55063 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Kerry William Spencer was convicted of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996), and sentenced to a stay of imposition and five years probation, with 180 days in jail. We reverse.


On January 14, 1997, Jane Preston, an assistant director of a crisis center in Hinckley, received nine threatening calls on an office phone in a 40-minute period. Preston recognized the voice as that of Spencer because the crisis center had helped his daughter obtain an order for protection against him. The male caller swore at Preston and repeatedly threatened to kill her. As a result of this incident, Preston and the crisis center obtained a harassment restraining order against Spencer; Spencer was also charged with threatening to kill Preston.

Before trial, the prosecution moved for an order allowing Spreigl evidence and evidence of the harassment restraining order that Preston and the crisis center had obtained against Spencer. The court ruled that the restraining order was probative evidence of Preston's reaction to the alleged threat and would be admissible subject to a limiting instruction.

The state introduced through Preston a copy of the harassment restraining order. The trial court gave a Spreigl-type cautionary instruction, telling the jury that the state had introduced evidence of an "occurrence" on January 27, 1997, the date of the harassment restraining order, that Spencer was not being tried for any other offense, and that they were not "to convict the defendant on the basis of any occurrence having to do with the [issuance] of this harassment restraining order." On cross-examination, Preston testified that she believed Spencer had been present at the hearing and had opposed the restraining order.

The defense presented alibi testimony attempting to show that Spencer was occupied at the time of the threatening calls and therefore could not have made them. The jury, however, found Spencer guilty of making terroristic threats against Preston. Spencer appeals.


Spencer contends the trial court abused its discretion by allowing the state to present evidence that Preston obtained a harassment restraining order against Spencer for the same conduct for which he was on trial. Rulings on evidentiary matters rest within the sound discretion of the trial court and will be sustained absent a clear abuse of discretion. State v. Flores, 418 N.W.2d 150, 158-59 (Minn. 1988).

The trial court admitted the harassment restraining order as probative evidence of Preston's reaction to the threatening calls. Evidence of a victim's fear caused by a terroristic threat is relevant, even though the victim's reaction is not an element of the offense. State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). Here, however, evidence of the restraining order was cumulative to other evidence, both from Preston and the crisis center director, as to the security precautions they took following the calls. Preston herself testified to the fear she felt because of the threats. Moreover, as the defense pointed out at trial, it would have been sufficient to show Preston's reaction to the calls to present evidence that she had applied for a restraining order, without presenting evidence that the court had issued the order.

Admission of the harassment restraining order tended to show that, on the very issue the jury was to determine, there was either a judicial finding of guilt or a legally-binding admission of guilt. But there is a wide disparity between finding "reasonable grounds" to issue a restraining order under Minn. Stat. § 609.748, subd. 5(a)(3) (1996), and the proof beyond a reasonable doubt necessary to find a defendant guilty of a crime. In this case, the restraining order was based on a stipulation of the parties, which may partially alleviate the danger of confusing it with a judicial finding of guilt, but raises the separate problem of the jury viewing it as an admission of guilt.

Thus, we conclude that admitting a document that gave a seal of judicial approval to the criminal charge was not within the trial court's discretion. See generally Regents of the Univ. of Minnesota v. Medical, Inc., 382 N.W.2d 201, 209 (Minn. App. 1986) (noting that jury may give undue weight to findings issued by a judge and admitted as evidence), review denied (Minn. Apr. 18, 1986); 2 John W. Strong, McCormick on Evidence 297 (4th ed. 1992) (noting juries may tend to give prior judgment offered as evidence binding effect even if it has no such effect).

Further, the trial court's cautionary instruction did nothing to alleviate the prejudice to Spencer. Instead of instructing the jury that they should consider the restraining order only as evidence of the victim's reaction, the court treated it as evidence of an entirely separate occurrence. It would have been evident to the jury, however, that the order referred to the same occurrence. Thus, the court's instruction did not limit in any manner the use the jury could make of the restraining order. We note also that the restraining order's listing of Spencer's address as the "Pine County Jail" may have caused additional prejudice.

An error in admitting evidence is harmless only if there is no reasonable possibility that the wrongfully-admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). We conclude that a reasonable possibility exists that the admission of the harassment restraining order significantly affected the jury's verdict. Therefore, we must reverse the conviction. We need not address the other issues Spencer raised.