This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Bee Vang,


Filed August 25, 1998


Kalitowski, Judge

Ramsey County District Court

File No. T09634806

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

Peg Birk, St. Paul City Attorney, Maria DeWolf, Assistant City Attorney, 500 City Hall, 15 W. Kellogg Blvd., St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

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



Appellant Bee Vang challenges his conviction for domestic assault, claiming the district court erred in allowing the state to impeach the alleged victim with her prior testimony that included evidence of appellant's prior bad acts. We affirm.


On May 31, 1996, Zoua Yang, the complainant in this case, visited a doctor and complained that she had been beaten by her husband appellant Bee Vang the previous night when she refused to have sex with him. The doctor observed bruises and called the police. The officers also testified that Ms. Yang told them her husband had beaten her. The officers described Ms. Yang as being very frightened and wanting her husband out of her house.

When Ms. Yang testified at appellant's trial, she offered a different explanation for her injuries; she said she lied to the doctor and the police about appellant assaulting her. She told the jury that she also lied when she obtained an order for protection against appellant. Her revised explanation for the bruises was that another man had raped her on several different occasions, the final time occurring two or three days before her husband returned from Thailand.

After testifying that she loved her husband very much and that he was a loving, kind, and gentle man, the state impeached Ms. Yang with statements she made in June 1996 when obtaining an order for protection against appellant. The questioning referenced Yang's statements that appellant: (1) put a rope around her neck as she slept; (2) demanded that Yang "go to the AFDC office and put him on the grant"; and (3) left Yang a tape that she stated means "he'll kill me." At trial appellant did not object to this impeachment evidence or the court's curative jury instruction.


We review the denial of a motion for mistrial for an abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). "The trial court is best situated to decide whether, for compelling reasons, `the ends of substantial justice cannot be attained without discontinuing the trial.'" State v. Long, 562 N.W.2d 292, 296 (Minn. 1997) (quoting Gori v. United States, 367 U.S. 364, 368, 81 S. Ct. 1523, 1526 (1961)).

Failure to make a timely objection to the admission of evidence is a bar to appeal. If the admission, however, is plain error affecting substantial rights or constituting a fundamental error of law, it may be reviewed on appeal notwithstanding the failure to object. Our test for whether an evidentiary admission rises to the level of plain error is "whether there was or was not a reasonable likelihood that any error substantially affected the verdict."

State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998) (citations omitted).

Respondent argues that because appellant did not object to the admission of the impeachment evidence at trial, he did not properly preserve the issue of whether the district court erred in admitting the evidence. When specifically asked by the district court if there was an objection to the limiting instruction, appellant said no, and further, appellant made no specific objection to the evidence on the record when it was introduced. We conclude that absent timely objections, the district court did not abuse its discretion in denying the motion for mistrial. We further conclude, as discussed below, that even if this additional evidence was in part irrelevant, prejudicial, and cumulative, there was no "reasonable likelihood that any error substantially affected the verdict" such that there was a fundamental error of law requiring that we reverse appellant's conviction.


We give the district court deference in its exercise of discretion in evidentiary matters. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). We "will not lightly overturn" the district court's evidentiary ruling absent a clear abuse of discretion. Id.

Appellant argues that under State v. Dexter, 269 N.W.2d 721, 722 (Minn. 1978), the state cannot use impeachment evidence as a guise for presenting otherwise inadmissible evidence. Because we conclude the evidence at issue here would have been admissible, Dexter does not exclude its use for impeachment purposes. See State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985) (concluding if the prior statement is admissible as substantive evidence, the "defendant has no cause to complain that its admission for impeachment purposes violated Dexter").

"Evidence of previous domestic violence is admissible to illuminate the relationship between defendant and victim." State v. Elvin, 481 N.W.2d 571, 575 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Evidence of similar prior conduct by the accused against the victim of domestic abuse * * * is admissible 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). Appellant conceded that the impeachment evidence would qualify under Minn. Stat. § 634.20 as evidence of similar conduct against a victim of domestic abuse. Appellant, however, argues that the evidence is nevertheless inadmissible because it fails to meet the requirement that the probative value of the evidence not be "substantially outweighed by the danger of unfair prejudice." Appellant contends that because the officers' and doctor's testimony served to impeach Ms. Yang, her testimony from the order for protection hearing was unnecessary and prejudicial. We disagree.

Minn. R. Evid. 403, which has the same restriction against unfairly prejudicial evidence, states that

"`prejudice' does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means."

State v. Cermak, 365 N.W.2d 243, 247, n.2 (Minn. 1985) (quoting 22 Charles Alan Wright & Kenneth A. Graham, Jr. Federal Practice and Procedure § 5215 (1978)).

Here, Ms. Yang was the only eyewitness to the alleged crime, and when she changed her story, her prior statements given at a court hearing became probative of the truth. Further, the district court gave the jury a limiting instruction that was agreed to by appellant. See State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992) (noting that "the likelihood of prejudice was lessened by the two curative instructions given by the judge"). We conclude that although the impeachment questioning included irrelevant and prejudicial evidence, the admission of Ms. Yang's prior statement for impeachment purposes did not constitute reversible error.


Appellant also argues that respondent failed to give proper notice that the state would be using the impeachment evidence. We disagree. Both parties were aware that there had been a motion for an order for protection, and further, any lack of notice did not appear to prejudice appellant. Appellant also acknowledges "[t]he record is ambiguous about who had notice of what, and when they got it." Further, incidents that bear "directly on the history of the [abusive] relationship existing between the two parties" are not Spreigl incidents that require notice. State v. Kanniainen, 367 N.W.2d 104, 106 (Minn. App. 1985).