This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-97-2286

State of Minnesota,
Respondent,

vs.

Shane Victor Edstrom,
Appellant.

Filed October 20, 1998

Affirmed
Toussaint, Chief Judge

Ramsey County District Court
File No. K9-97-17

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Thoreen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Shane Victor Edstrom challenges his assault and criminal damage to property convictions. Because (1) the trial court did not abuse its discretion by admitting relationship evidence; (2) the prosecutor did not commit misconduct during the closing statement; (3) there is sufficient evidence to support the conviction; and (4) the convictions did not subject Edstrom to double jeopardy, we affirm.

D E C I S I O N

I.

The trial court's admission of evidence will not be reversed on appeal absent an abuse of discretion. State v. Naylor, 474 N.W.2d 314, 317 (Minn. 1991). Evidence of past domestic abuse by the accused against the victim may be admitted

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.

Minn. Stat. 634.20 (1996).

"Domestic abuse" means 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) terroristic threats * * * or criminal sexual conduct

Minn. Stat. 518B.01, subd. 2(a) (1996). "Family or household members" includes "persons who have a child in common regardless of whether they have been married or have lived together at any time." Minn. Stat. 518B.01, subd. 2(b) (5) (1996).

Evidence demonstrating a "strained relationship" between the accused and the victim is also relevant to establish the accuser's motive and intent. State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997); see also State v. Flores, 418 N.W.2d 150, 159 (Minn. 1988) (determining evidence of strained relationship between appellant and victim established motive, intent, and absence of mistake or accident). To admit such evidence, the trial court must determine whether there is clear and convincing evidence that the defendant committed the bad acts and whether the evidence's probative value outweighs any potential for prejudice. Mills, 562 N.W.2d at 285.

Despite Edstrom's arguments to the contrary, the trial court did not abuse its discretion by admitting evidence about how the victim previously lost her eye as a result of Edstrom's actions or by permitting the introduction of messages Edstrom left on the victim's answering machine. This evidence was relevant to show past domestic abuse pursuant to Minn. Stat. 634.20 and to demonstrate a strained relationship. In light of Edstrom's self-defense claim and his introduction of evidence of incidents in which he asserted the victim was the aggressor, admission of the challenged evidence was not prejudicial. Further, Edstrom does not dispute that he left the messages on the victim's recorder. There is clear and convincing evidence that Edstrom acted with the intent to scare or injure the victim when he threw a bottle at her resulting in the loss of her eye. See State v. Shamp, 422 N.W.2d 520, 525 (Minn. App. 1988), review denied (Minn. June 10, 1988) ("Clear and convincing evidence is demonstrated when the truth of the facts sought to be admitted is 'highly probable')." Although Edstrom testified that he was only trying to throw the bottle away, the victim testified that they had been fighting before Edstrom threw the bottle and that she believed Edstrom intended to scare her by throwing the bottle in her direction. The trial court is in the best position to judge credibility. Id. (noting district court in best position to weigh credibility of testimony and evidence).

II.

Edstrom argues in his pro se brief, that the prosecutor committed misconduct in the closing arguments by referring to an uncharged assault as evidence of Edstrom's viciousness in committing the charged offense and by misstating the law. Edstrom failed to object to the prosecutor's statements during closing arguments, however. Generally, where there is no objection to a prosecutor's final argument, the issue is waived on appeal. See State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (stating if defense does not object to prosecution's statements in closing argument, reviewing court generally will not consider issue on appeal). The record reveals that the trial court instructed the jury that an attorney's statements are not evidence.

Edstrom next argues that there is insufficient evidence to support a conviction for first-degree assault. Edstrom contends that the (1) victim did not suffer a "serious permanent disfigurement;" and (2) there is no evidence that he actually made physical contact with the victim. Two doctors testified about the nature of the victim's injuries.

The jurors heard the testimony, evaluated the victim, and were in the best position to determine whether or not she suffered a "serious permanent disfigurement." Further, Minnesota law does not require that an assault perpetrator make physical contact with the victim. See Minn. Stat. 609.02, subd. 10 (1996) (defining assault as "[a]n act done with intent to cause fear in another of immediate bodily harm or death" or "[t]he intentional infliction of or attempt to inflict bodily harm upon another").

Edstrom's final argument is that his convictions for first- and third-degree assault and first-degree damage to property subjected him to double jeopardy.(1) This argument is without merit.

Subject to minimal, nonrelevant exceptions:

[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution, which shall be stated in separate counts.

Minn. Stat. 609.035, subd. 1 (Supp. 1997). Here, all of the offenses were prosecuted together, and the charges were stated as separate counts. Although the jury found Edstrom guilty of first- and third-degree assault and first-degree criminal damage to property, the district court sentenced Edstrom for only the first-degree assault conviction. Thus, there was no double jeopardy violation.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

1. Edstrom also asserts that his third-degree assault conviction must be vacated because it is a lesser-included offense of first-degree assault. The record does not contain a formal adjudication of guilt for any of the charged counts. Therefore, we do not address this issue. See State v. Martinson, 312 N.W.2d 249, 251 (Minn. 1981) (holding question of whether lesser-included offense convictions should be vacated is hypothetical where record does not "establish that defendant was formally adjudicated guilty of any offense other than that for which he was sentenced").