This opinion will be unpublished and

may not be cited except as provided by

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




William Ward Swanson, petitioner,



State of Minnesota,


Filed July 1,1997

Affirmed as modified

Holtan, Judge


Washington County District Court

File No. K8924038

Mark D. Nyvold, Special Assistant State Public Defender, Suite 654, 386 North Wabasha Street, St. Paul, MN 55102 (for appellant)

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

Richard M. Arney, Washington County Attorney, Richard D. Hodsdon, Assistant County Attorney, 14900 61st Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)

Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.



Appellant William Swanson was convicted of second-degree murder, first-degree assault, and malicious punishment of a child, 17-month-old K.Q. He challenges the postconviction court's denial of relief, alleging erroneous evidentiary rulings, prosecutorial misconduct, and error in sentencing. We affirm as modified.


We review a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and we will not disturb a postconviction court's decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

In this case, as in Scruggs, the postconviction court was the same as the trial court. The postconviction court made no explicit findings when denying postconviction relief, stating only that it had reviewed the file and found no facts, errors of law, or misconduct to justify granting postconviction relief. We have searched the record and agree.


"Rulings on evidentiary matters rest within the sole discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). Swanson contends that the trial judge allowed inadmissible Spreigl evidence at trial. See State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 172-73 (1965) (where similarity of crime charged to defendant's previous sexual molestation of small children was sufficient to admit evidence of prior conduct at trial).

Swanson's daughter, K., testified that he had beaten her on two occasions. During both incidents, Swanson kicked, punched, and pulled K.'s hair. Swanson alleges that the prosecutor used this Spreigl evidence to prove conformity with the alleged beatings of K.Q. and is therefore inadmissible. See Minn. R. Evid. 404(b) (evidence of other crimes, wrongs inadmissible to show action in conformity); State v. Rainer, 411 N.W.2d 490, 497 (Minn. 1987) (prior bad act evidence to prove actions in conformity inadmissible), cert. denied sub nom. Rainer v. Department of Corrections, 498 U.S. 1099, 111 S. Ct. 993 (1991). There are widely recognized exceptions to the general exclusionary rule. Spreigl, 272 Minn. at 491, 139 N.W.2d at 169. Evidence of prior crimes is admissible to show

motive, to negative mistake, to establish identity, or "where the previous offense is a part of a scheme or conspiracy incidental to or embraced in proof of the charge on trial."

Id., 139 N.W.2d at 169 (quoting State v. Fitchette, 88 Minn. 145, 148, 92 N.W. 527, 528 (1902)). Spreigl allows evidence of prior abuse if it is sufficiently similar to the crime charged. Id., 139 N.W.2d at 170.

In this case, K.Q. and K. were both children subject to Swanson's control. There is medical testimony that K.Q. had been shaken immediately prior to admission to the hospital and had been beaten, punched, and bruised over a period of time. Additionally, K.Q. had a bald patch on his bruised head. These three incidents are sufficiently similar to allow the admission of K.'s testimony at trial.

Swanson also contends that evidence regarding his alleged request for sexual intercourse was erroneously admitted. At trial, K.Q.'s mother testified that the evening K.Q. was admitted to the hospital, Swanson asked her to have sex with him. Swanson denied this. The trial court allowed this testimony.

The trial court has the discretion to balance the probative value and prejudicial effect of all evidence presented. See Minn. R. Evid. 403. In this case, the court determined that the probative value of the testimony outweighed the prejudicial effect to Swanson. This evidence was probative in that it evidenced the callous disregard Swanson had for K.Q. and his insensitivity for the consequences of his acts. As such, we conclude there was no abuse of discretion in allowing this evidence.

Swanson contends that Detective Simon's testimony regarding K.'s statements was inadmissible hearsay. The statements were admitted pursuant to Minn. R. Evid. 801(d)(1)(B) as nonhearsay prior consistent statements. Swanson alleges that K.'s prior statement was inconsistent and thus inadmissible. However, K. testified at trial and the comments to which Swanson refers were not inconsistent with her earlier statement. The trial court did not abuse its discretion in admitting this evidence.

Swanson argues, pro se, that the district court erred by admitting evidence of his martial arts skills. The trial court must balance the probative and prejudicial value of all evidence. Minn. R. Evid. 403. When the probative value of relevant evidence is substantially outweighed by its potential to cause unfair prejudice it may be inadmissible. Id.; State v. Harris, 521 N.W.2d 348, 351 (Minn. 1994). In this case, the state introduced pictures of Swanson breaking things in half, his black belt certificate, and a book entitled "Karate Death Blows." Although the probative value of this evidence appears slight, considering that K.Q. was a 17-month-old child and knowledge of Tae Kwon Do was not necessary to inflict the injury he suffered, it may show a pattern of physical response to problems and extraordinary physical strength. Although admission of this evidence may have been error by the trial court, it was harmless error. In cases involving a "trial error," i.e., an "error which occurred during the presentation of the case to the jury," the court must determine whether the error was "harmless beyond a reasonable doubt." Arizona v. Fulminante, 499 U.S. 279, 307, 111 S. Ct. 1246, 1264 (1991).

The state presented extensive medical evidence regarding K.Q.'s injuries. K.'s testimony that Swanson had beaten her on two separate occasions, Swanson's inconsistent statements regarding a burn on K.Q.'s hand, and the events surrounding K.'s injury make it highly likely that the jury would have convicted Swanson without the martial arts evidence. Whatever error occurred was harmless beyond a reasonable doubt.


By failing to object to prosecutorial misconduct at trial, the defendant is deemed to have forfeited his right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). Notwithstanding the defendant's failure to preserve the issue, we will consider it. See Minn. R. Civ. App. P. 103.04 (an appellate court may review any matter as the interests of justice may require); Midway Nat'l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 64 (Minn. App. 1993) (reviewing court may consider issues in the interests of judicial economy and to avoid further delay in the resolution of the case).

Swanson alleges that the prosecutor committed a variety of offenses amounting to misconduct. However, not one of these statements or activities was objected to at trial. At a pretrial hearing, Swanson made a motion in limine and requested that the prosecutor not be allowed to engage in the same type of misconduct for which the same prosecutor was admonished in State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995). The trial court dismissed this motion as a "cheap shot." No specific instances of misconduct regarding Swanson's proceeding were alleged. Swanson made no other objection during the trial. He now alleges that the motion in limine operated to preserve his lack of objection at trial. Appellant failed to delineate "the same type of misconduct in Porter," thus precluding a trial court ruling. No objection was preserved.

Swanson alleges that the prosecutor committed misconduct by (1) asking Swanson during cross-examination if the expert witnesses were lying; (2) stating in closing argument that the only way Swanson could be found not guilty is if the jury found that the expert witnesses were liars; (3) referring to an expert witness as a "superspecialist;" (4) allegedly referring to another case where a defendant was acquitted of murdering a child; and (5) eliciting testimony from a paramedic that she was revolted by the crime. The prosecutor's reference to an extremely well qualified expert as a "superspecialist" is fair comment as to his expertise, and we find no merit in Swanson's other allegations of prosecutorial misconduct.

Swanson also alleges that the prosecutor failed to adhere to discovery rules by not providing him with information that Dr. Miller was going to testify that K.Q. was immediately blinded by the shaking on June 20. Swanson had access to Dr. Miller's medical report and was given the opportunity to interview him. Another state medical expert testified to severe impact to vision by the injury. The consequence of the difference, if any, between severe impact to vision and blindness, in the context of all the evidence, is minimal.

Minn. R. Crim. P. 9.01(2) requires that the prosecution provide the defense with any oral statements of witnesses that relate to the case. It would appear that the prosecutor's failure to provide this information to Swanson did constitute a failure to adhere to the rules of discovery. It was not, however, so serious and prejudicial as to hinder Swanson's right to a fair trial. See State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (new trial due to prosecutorial misconduct is warranted only when actions are inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied). The fact that K.Q. was immediately blinded by the shaking does not affect whether or not Swanson is guilty of his murder. The blindness had little bearing on the outcome of the trial. K.Q. was unconscious when his mother and the paramedics arrived and was never revived. We conclude that the prosecutor's conduct was not inexcusable or so serious and prejudicial as to deny the defendant's right to a fair trial. See id.


The trial court's sentencing order indicates that Swanson was convicted of second-degree murder, malicious punishment of a child, and first-degree assault. The lesser felonies are necessarily included in the second-degree murder charge, and therefore Swanson cannot be convicted of both pursuant to Minn. Stat. § 609.04 (1996).

The convictions for first-degree assault and malicious punishment of a child are vacated. The postconviction order is affirmed as modified.

Affirmed as modified.

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