This opinion will be unpublished and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


Jennifer Joy Burt, petitioner,


State of Minnesota,

Filed February 10, 1998
Holtan, Judge*

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

Otter Tail County District Court
File No. K8941194

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)

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

Waldemar Senyk, Otter Tail County Attorney, Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Holtan, Judge.



Appellant challenges postconviction court's order denying her petition for a new trial. We affirm.


On February 3, 1994, the Otter Tail County Department of Social Services received a report that appellant had abused her three-year-old daughter, L.P. L.P. lived with her foster parents, Ardis and Merlin Olson, at that time.

On February 2, 1994, appellant picked L.P. up from the Olsons' home and took L.P. to her home. Mardell Havnes, a family base service provider for Wadena County, visited appellant at her home and found L.P. in the bedroom "crying very hard." Havnes testified that she associated that type of crying with a child being hurt and, therefore, reported the incident to her case manager.

When L.P. returned to the Olsons' home that evening, Ardis Olson noticed that L.P.'s buttocks were red and swollen with large welts. Olson testified that the skin was "raised considerably" from the swelling. When Olson asked L.P. what happened, L.P. told Olson, "My mama spanked me really hard * * * Mama hit me with a book." Olson took photographs of the marks on L.P.'s buttocks and notified her social worker, Nancy Fisher.

The next day, most of the redness was gone on L.P.'s buttocks, but she continued to complain that her bottom hurt. Fisher testified that L.P. told her that appellant had spanked her because she and her sister had been playing with appellant's books. A few days later, Olson overheard L.P. talking on her play telephone and saying, "Yeah, Jennifer? This is [L.P.]. Please don't hit me anymore."

Dr. Lawrence Eisinger, a pediatrician who specializes in child abuse, testified that the marks on L.P.'s bottom were probably a result of an impact injury and could have been caused by a strap, ruler, paint stick, or some other object with a straight edge. He also testified that the amount of force necessary to cause such an injury was excessive. Dr. John Plunkett, coronor for Dakota, Scott, and Carver counties, also reviewed the photographs of L.P.'s bottom and concluded that the marks were likely a result of a spanking, but that the amount of force used was not "real significant."

Appellant was charged with malicious punishment of a child in violation of Minn. Stat. § 609.377 on July 18, 1994. The trial court found L.P. incompetent to testify. Over defense objection, the court allowed the state to offer evidence of appellant's social services history including evidence showing that (1) appellant had been involved with social services since 1988; (2) she initially refused family and parenting services; (3) her younger child had been removed from her home and placed in foster care at a time when appellant was homeless; (4) both of her children were adjudicated children in need of protective services (CHIPS); (5) her social workers were concerned for L.P.'s safety and welfare because appellant could not control her anger, failed to properly feed and clothe her children, and was a poor housekeeper; (6) she was placed on a social services plan that did not allow her to use corporal punishment; (7) she attended counseling sessions where she learned parenting and disciplinary skills, nutrition, money management, and housekeeping; and (8) when she failed to cooperate with the social services plan, L.P. was placed into foster care and appellant was allowed only supervised visitation. The court also allowed the state to introduce evidence of prior bad acts of domestic abuse committed by appellant against L.P.

The jury found appellant guilty. The court sentenced her to 180 days in jail, stayed 150 days, and fined her $900. Appellant petitioned the court for postconviction relief, arguing that the trial court erred in admitting evidence of her social services history and prior violence against L.P. on November 19, 1996. The court denied the motion, finding that appellant failed to prove that the trial court erroneously admitted the evidence or that the evidence prevented her from receiving a fair trial. Appellant appeals this order.


Appellant argues that the postconviction court abused its discretion in denying her petition for a new trial on the ground that the trial court erroneously admitted evidence that prevented her from receiving a fair and impartial trial. The Minnesota Supreme Court has stated that the scope of review for a postconviction proceeding is

limited to determining whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.

Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). Determining whether the probative value of evidence outweighs its prejudicial effect is also within the discretion of the district court. See State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985) (addressing introduction of evidence of prior convictions). A defendant who claims that the district court erred in receiving evidence has the burden of showing "both the error and the prejudice resulting from the error." State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). An appellate court only will reverse a district court's decision if the error "substantially influence[d] the jury to convict." Id.

1. Evidence of Prior Relationship with Social Services

Appellant argues that her relationship with social services was irrelevant to proving the charged crime. Only relevant evidence is admissible at trial. Minn. R. Evid. 402. Minnesota law provides that

[a] parent, legal guardian, or caretaker who, by an intentional act or a series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment of a child and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Minn. Stat. § 609.377 (1996). Generally, "[e]vidence of a person's character * * * is not admissible for the purpose of proving action in conformity therewith." Minn. R. Evid. 404(a). But evidence of other crimes, wrongs, or acts may be admitted to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Minn. R. Evid. 404(b). A court may exclude evidence if its probative value is substantially outweighed by its prejudicial effect. See Minn. R. Evid. 403.

The evidence regarding appellant's initial refusal to participate in parenting services recommended by social services and her youngest child's placement into foster care and CHIPS adjudication is not relevant to whether appellant maliciously punished L.P. Appellant later complied with the counseling recommendation. Furthermore, because appellant was not charged with malicious punishment of anyone but L.P., evidence of social service history concerning her other child does not put appellant's relationship or conduct with L.P. into context. But the remaining evidence is relevant to show that appellant knew or should have known that the force she used in disciplining L.P. was unreasonable or cruel discipline that was excessive under the circumstances. See Minn. R. Evid. 404(b) (stating that character evidence is admissible for purposes other than proving action in conformity therewith).

But even if any or all of this evidence was improperly admitted, the trial court's error was harmless because other record evidence was more than sufficient to support the conviction. The record included pictures of L.P.'s injuries, testimony that L.P. was in appellant's care at the time of the injuries, L.P.'s statements that appellant had hit her, and evidence of other prior similar conduct by appellant. We therefore conclude that the postconviction court did not abuse its discretion and appellant was not prejudiced.

2. Prior Bad Acts

Appellant argues that the evidence of appellant's prior violence against L.P. was not relevant to the charged crime. Evidence of prior acts of violence toward a family member may be admitted to show the relationship between the defendant and the victim. State v. Currie, 400 N.W.2d 361, 367 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987). Evidence that illustrates the relationship between a defendant and the victim is often admitted at trial to put the defendant's criminal conduct in context. State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994). Minnesota law also allows courts to admit evidence of an accused's similar prior conduct against the victim of domestic abuse, "unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury * * * ."[1] Minn. Stat. § 634.20 (1996).

The court admitted evidence to show that on separate occasions: (1) appellant spanked, slapped, verbally threatened to bounce L.P.'s head off the cement, and threw L.P. to the floor of a car; (2) appellant yelled at and spanked L.P.; (3) appellant spanked L.P. with a stick or ruler; and (4) appellant slammed L.P.'s sister down, causing her head to hit the floor at a meeting with a social worker. This evidence is relevant to show that when appellant became angry with her children she would often use physical and verbal punishment. See Currie, 400 N.W.2d at 367 (stating that evidence of prior violence against family members was admissible for purpose of "illuminating the relationship between defendant and victim" and placing the incident in proper context).

Appellant argues that because it is the court's responsibility and not the legislature's to regulate evidentiary matters, the court improperly admitted this evidence. But the statute does not conflict with the rules of evidence. See State v. Larson, 453 N.W.2d 42, 46 n.3 (Minn. 1990) (stating that courts have enforced "reasonable statutory rules of evidence as a matter of comity" where rule is not in conflict with Minnesota Rules of Evidence), cert. granted, vacated on other grounds, 498 U.S. 801, 111 S. Ct. 29 (1990), on remand, 472 N.W.2d 120 (Minn. 1991). This court has cited to Minn. Stat. § 634.20 in State v. Nelson, 562 N.W.2d 324, 326-27 (Minn. App. 1997). In Nelson, this court found that evidence of the appellant's prior conviction was inadmissible under Minn. Stat. § 634.20 because the statute only applies to similar prior conduct between the accused and the victim of domestic violence. Id. The court's treatment of this statute implies that it is not in conflict with the rules of evidence.[2] We conclude that the evidence is relevant to whether appellant maliciously punished L.P.

Appellant contends that even if the evidence is relevant, its probative value is outweighed by its prejudicial effect. A court may exclude relevant other crime evidence if its probative value is outweighed by its potential for prejudice. State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996); Minn. Stat. § 634.20. But a court can minimize the prejudicial effect of evidence by narrowly limiting the scope of the evidence. See State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994) (stating that trial court minimized prejudice by giving cautionary instruction at time evidence admitted and again at close of trial).

The trial court provided clear and detailed cautionary instruction to the jury before the admission of each prior bad act and again at the close of the trial. Furthermore, there is other record evidence to support the jury's conviction. For these reasons, the postconviction court did not abuse its discretion in finding that appellant failed to prove that the trial court erred in admitting evidence of her prior bad acts toward L.P. or that the evidence prevented her from receiving a fair and impartial trial.


[1] "Domestic abuse" under Minn. Stat. § 634.20 includes physical harm, bodily injury, or assault committed against a family or household member by a family or household member. Minn. Stat. § 518B.01, subd. 2(a)(1).

[2] The court also cited to the statute, with approval, in State v. Olson, No. C2-97-137, unpub. op. at 3 (Minn. App. Aug. 12, 1997).