This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Sylvester McCurry,


Filed December 22, 1998


Amundson, Judge

Hennepin County District Court

File No. 97072886

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

Michael O. Freeman, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.



Appellant challenges the district court's decision to admit the victim's testimony of prior acts of domestic abuse allegedly committed against her by appellant. We affirm.


Beginning in 1988 or 1989, the alleged victim in this matter, Tammy Jo Fulin, and appellant Sylvester McCurry were romantically involved for over two years, during which time Fulin gave birth to the couple's son. Although the relationship eventually ended, the couple kept in contact because of their son.

During the trial of this matter, the court allowed Fulin to testify regarding repeated incidents of psychological and physical abuse that she experienced at the hands of McCurry during their liason. Except for Fulin's testimony regarding these incidents, the only corroboration of the abuse was McCurry's own testimony that the police had been called upon to help the couple settle one dispute. He also admitted having "climbed" into Fulin's house through a window on July 17, 1997.

On the day of the alleged incident, August 16, 1997, McCurry visited Fulin at the bar where she worked. Fulin testified that she told McCurry to leave or she would summon the police. McCurry left the bar. Fulin stated that she returned home from work at about 1:30 a.m. and went to bed. Later, she was awakened by a loud noise, and believed McCurry had again entered the house through a window. Fulin further testified that McCurry ran upstairs, grabbed her, dragged her out of bed, and called her names.

Fulin stated that she then told McCurry to leave, but he refused. He grabbed two knives, tossing one toward her and telling her that she had better kill him because he was going to kill her. Fulin caught the knife by the blade but was not injured. She then ran out of the house to a nearby gas station and called the police. The police officer brought Fulin to her home, where McCurry was awaiting her return. The officer discovered a dislodged window, but no sign of forced entry. Mud was found under the dislodged window.

Although McCurry's version of the night's events differed from Fulin's version, he did confirm that he had visited Fulin at her place of employment and later visited her house, entering the house through a door that was ajar. He admitted that he and Fulin had an argument, during the course of which he grabbed two knives, tossed them to Fulin and told her to kill him.

McCurry was charged with one count of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996) and two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1 (1996). The case was tried before a jury and the jury found McCurry not guilty on both counts of first-degree burglary but guilty of terroristic threats. McCurry challenges the district court's decision to admit Fulin's testimony with respect to McCurry's past abusive behavior towards her.


McCurry failed to object to Fulin's testimony regarding his prior acts of domestic abuse. Generally, where no objection is made to testimony at trial, objection on appeal is barred. State v. Vance, 254 N.W.2d 353, 359 (Minn. 1977). Despite defense counsel's failure to object at trial, this court may review the district court's evidentiary ruling for "plain error affecting substantial rights." State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (citations omitted). In order to constitute "plain error," the appellant must show that the decision to admit or exclude evidence had "an unfair prejudicial impact on the jury's deliberations." State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988).

McCurry contends that Fulin's statements of his repeated abuse of her biased the jury against him and presented him to the jury as a "horrendous" individual. Further, McCurry contends that this testimony prejudiced him by making the accusation that he threatened to kill Fulin more credible. Therefore, McCurry concludes the jury verdict was not necessarily "unattributable" to Fulin's testimony regarding McCurry's past abuse and he is entitled to a new trial. We disagree.

McCurry's failure to object at trial placed the state in a "no win" situation. Without the objection, the state had no notice that McCurry believed the evidence regarding his relationship with Fulin was not clear and convincing. Therefore, the record was not developed as fully as McCurry now argues it should have been. In fact, McCurry's failure to object contributed to the lack of evidence on the record. This is why we carefully scrutinize evidentiary rulings that had no objection at trial.

In any event, McCurry has not shown that "plain error" resulted when the district court admitted Fulin's testimony. Even without this past relationship evidence, there was sufficient evidence for the jury to find Fulin's testimony more credible than McCurry's. McCurry confirmed that he had entered Fulin's house through a window just one month earlier and thus, Fulin understandably had some fear of McCurry and could not be sure what to expect of him. Additionally, Fulin testified that she ran out of the house with the knife McCurry had thrown toward her and that she dropped the knife as she approached the Holiday station, which is where it was found. Based on this evidence, McCurry has failed to show that the district court's allowance of the disputed testimony had an "unfair prejudicial impact" on the jury's deliberations.

Affirming the district court's admission of this testimony as not constituting "plain error," we also address McCurry's argument that there must be clear and convincing evidence of the prior incidents for the testimony to be admissible. Both appellant and respondent agree that Fulin's testimony did not constitute Spreigl evidence, but instead was offered to show evidence of Fulin and McCurry's "strained relationship." Appellant asserts, however, that the "clear and convincing" standard applies to "relationship evidence" just as it applies to the admission of Spriegl evidence.[1]

McCurry argues that Fulin's testimony does not meet the clear and convincing requirement, relied on by this court in State v. Kennedy, 572 N.W.2d 58 (Minn. App. 1997). At the Kennedy trial, the court allowed evidence of a subsequent sexual assault by defendant on the victim at issue. Id. at 60-61. The evidence consisted only of the victim's uncorroborated testimony. Id. at 60. In Kennedy, this court held that uncorroborated testimony of a victim does not meet the Spreigl "clear and convincing" requirement. Id. at 62.

Although we find that "relationship evidence" is most likely not subject to the Spreigl "clear and convincing" requirement, we do not need to reach this issue because the supreme court recently stated, "[W]e see no reason why a victim's Spreigl testimony must be corroborated in order to meet the clear and convincing standard." State of Minnesota v. Kennedy, CX-96-2532) ___ N.W.2d ___, ___ (Minn. 1998). In addition, the supreme court indicated a clear preference for admitting relationship evidence, stating that evidence establishing "the relationship between the victim and the defendant or which places the event in context bolsters its probative value." Id. at ___. Indeed, relationship evidence is important in terroristic threats and domestic abuse cases because it helps the jury put the defendant's conduct in context and assists the jury in assessing the defendant's intent and motivation. State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994).

The record reflects that the incidents of prior domestic abuse were introduced by the state as evidence of the history of the relationship between McCurry and Fulin. The evidence demonstrated McCurry's behavior and attitude towards Fulin. Fulin's testimony also helped the jury understand the source of Fulin's fear of McCurry. Furthermore, the disputed testimony was not devoid of all corroboration. In fact, McCurry confirmed that the Duluth police had been called to resolve a dispute between himself and Fulin. He also admitted to having entered Fulin's house through a window one month prior to the incident in question. The district court did not err in the admission of this testimony.


[1] According to requirements set by State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (Minn. 1965) and its progeny, the trial court must find

(1) that the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) that the Spreigl evidence is relevant and material to the state's case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

State v. DeWald, 464 N.W 2d 500, 503 (Minn. 1991).