A04-1677

State of Minnesota,

Respondent,

vs.

Matthew Alan Rishovd,

Appellant.

Filed December 6, 2005

Affirmed

Willis, Judge

Becker County District Court

File No. K2-03-1688

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Building, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Joseph A. Evans, Becker County Attorney, 910 Lincoln Avenue, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

A jury convicted appellant of criminal sexual conduct in which his wife was the victim. Appellant argues that the district court abused its discretion by admitting evidence of two prior acts of domestic abuse by appellant against his wife and that he is, therefore, entitled to a new trial. Because we find no abuse of discretion, we affirm.

FACTS

Appellant Matthew Alan Rishovd was charged with third-degree criminal sexual conduct for an incident involving his wife that occurred on December 27, 2003. Rishovd’s wife testified that (1) Rishovd asked her for sexual intercourse, and when she refused his repeated requests, Rishovd said that she could either “give it or he’d take it”; (2) Rishovd convinced his wife to begin having vaginal intercourse, telling her that he would not hurt her if she did what he wanted; and (3) Rishovd then forced anal intercourse.

The district court admitted at trial evidence of two prior incidents involving Rishovd and his wife. Rishovd’s wife testified that in March 2002 (1) Rishovd threatened to stab her and their child with a knife if she did not have intercourse with him; (2) Rishovd undressed her, bound her hands, and forced her to perform oral sex; and (3) Rishovd then forced her to have vaginal and anal intercourse. Rishovd pleaded guilty to second-degree assault as a result of this incident.

Rishovd’s wife also testified about an incident that occurred on December 18, 2003, nine days before the incident at issue here: (1) Rishovd wanted to have intercourse, but she said no; (2) Rishovd persisted and she consented to vaginal intercourse; and (3) Rishovd held her down and forced anal intercourse. No charges were filed against Rishovd as a result of this incident.

A jury convicted Rishovd of third-degree criminal sexual conduct for the December 27, 2003 incident, and the district court sentenced him to 48 months in prison. The district court also lifted the stay of execution of the sentence for the March 2002 offense and sentenced Rishovd to 42 months to be served consecutively. This appeal follows.

D E C I S I O N

Evidentiary rulings are reversed only when the district court clearly abuses its discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). An appellant bears the burden of showing an abuse of discretion and resulting prejudice. Id.

The district court ruled that the prior-abuse evidence was admissible under rule 404(b) of the Minnesota Rules of Evidence. Rishovd argues that this was an abuse of the district court’s discretion because evidence of the March 2002 incident was not relevant or material; his wife’s testimony regarding the December 18 incident was not clear and convincing; and the potential for unfair prejudice of the prior-acts evidence outweighed its probative value.

“Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). But such evidence “may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. In a criminal prosecution, evidence of prior acts must be proven by clear and convincing evidence. Id. Under rule 404(b), evidence of prior acts must also be relevant and material, and its probative value must substantially outweigh its potential for unfair prejudice. State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981).

The district court also ruled that evidence of prior abuse by Rishovd was admissible under Minn. Stat. § 634.20, which provides that “[e]vidence of similar conduct by the accused against the victim of domestic abuse . . . is admissible unless [its] 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 (2002). “Similar conduct” includes evidence of domestic abuse. Id. “Domestic abuse,” in turn, includes actual physical harm, bodily injury, or assault; the infliction of the fear of physical harm, bodily injury, or assault; and criminal sexual conduct. Minn. Stat. § 518B.01, subd. 2(a) (2002).

Rishovd does not address the admissibility of the evidence of either prior act under Minn. Stat. § 634.20. If evidence is properly admitted under Minn. Stat. § 634.20, it is not necessary for this court to address its admissibility under rule 404(b). See State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003). Evidence of similar conduct in domestic-abuse cases is “relevant and admissible unless it should be excluded for the reasons listed [in Minn. Stat. § 634.20].” State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). Additionally, “Minn. Stat. § 634.20 provides for the admission of similar conduct in domestic abuse cases without requiring the heightened standard that the evidence be clear and convincing.” Id. Rishovd does not challenge the district court’s finding that the March 2002 offense and the incident charged here were similar, but instead argues that the March 2002 offense is irrelevant and immaterial. Because evidence of prior domestic abuse is evidence of “similar conduct” under Minn. Stat. § 634.20, it is not necessary to determine whether the testimony of Rishovd’s wife about the March 2002 offense provided clear and convincing evidence.

The test under Minn. Stat. § 634.20 for whether the prejudicial effect of prior-acts evidence substantially outweighs its probative value is similar to the test applied to rule 404(b) evidence. See McCoy, 682 N.W.2d at 159 (stating that the statute’s “balancing test mirrors the language of Minn. R. Evid. 403”); Minn. R. Evid. 404 cmt. (stating that evidence admitted under rule 404(b) is subject to the provisions of rule 403); Minn. R. Evid. 403 (stating that relevant evidence may be excluded if its prejudicial effect substantially outweighs its probative value). But the supreme court has also stated that the test is simply “that the probative value . . . is not outweighed by its potential for unfair prejudice.” State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). And that is essentially the finding that the district court made here by determining that the “probative nature of the evidence of the two incidents outweighs its potential for unfair prejudice” and admitting the evidence to place the charged offense in context and to show motive, intent, preparation, or common scheme. The district court ruled that because third-degree criminal sexual conduct requires a showing of “‘force’ or ‘coercion,’ the prior incidents [were] necessary for an understanding of what was possibly meant” by Rishovd’s statement that his wife could “give it to him willingly or he would take it.”

The supreme court has “recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim.” State v. Williams, 593 N.W.2d 227, 236 (Minn. 1999). The rationale for admitting evidence of prior acts of domestic abuse is to show the history of the relationship between the parties. McCoy, 682 N.W.2d at 159. Evidence of past abuse also places the “alleged criminal conduct of the defendant in context [and] may help the jury in assessing the defendant’s intent and motivation.” State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994). We conclude that the district court did not abuse its discretion by determining that the probative value of the prior-acts evidence here outweighed the danger of unfair prejudice.

Rishovd also claims that the district court abused its discretion by admitting evidence of prior acts without determining that the state’s case was weak. Rishovd relies on State v. Lynch, 590 N.W.2d 75 (Minn. 1999), and State v. Kennedy, 585 N.W.2d 385 (Minn. 1998), which involve Spreigl evidence admitted under rule 404(b), not prior-domestic-abuse evidence admitted under the statute. When determining whether to admit Spreigl evidence, the district court must consider how necessary the evidence is to the state’s case and should admit the evidence only when the state’s case is weak. Kennedy, 585 N.W.2d at 391-92. But evidence of prior similar conduct under Minn. Stat. § 634.20 is distinct from Spreigl evidence, and “we have treated evidence that illuminates the history of the relationship between a victim and the accused differently from other, Spreigl evidence.” McCoy, 682 N.W.2d at 159.

Spreigl evidence is oftentimes evidence of an unrelated crime against another person, which is offered for the purposes listed in Rule 404(b), such as to show identity, opportunity, intent, or modus operandi. Evidence of prior domestic abuse against the alleged victim may be different from this type of Spreigl evidence for at least two reasons: it is evidence of prior conduct between the accused and the alleged victim and it may be offered to illuminate the history of the relationship . . . .

McCoy, 682 N.W.2d at 159 (citation omitted). Because evidence of prior domestic abuse is inherently probative, a finding that the state’s case is weak is not required to admit such evidence under Minn. Stat. § 634.20.

Rishovd also argues that he was unfairly prejudiced because the evidence of prior abuse portrayed him as a mentally ill or manipulative person with a propensity for sexually assaulting his wife. But “‘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) (citation omitted). Here, the district court did not admit evidence of a third prior act of domestic abuse, and before the testimony of Rishovd’s wife regarding prior abuse and again before deliberations, the district court instructed the jury that it could not use the evidence of prior abuse to convict Rishovd. Further, this court has rejected the argument that because admitting evidence of past domestic abuse and forced sexual intercourse with his wife might portray him as having an “assaultive propensity,” a husband is unfairly prejudiced. See State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985) (finding that the district court did not abuse its discretion by admitting under rule 404(b) evidence of a husband’s prior assaults of and forced sexual intercourse with his wife), review denied (Minn. Nov. 1, 1985).

Rishovd further contends that he was unfairly prejudiced by his wife’s “inconsistent” testimony. The state’s pretrial offer of proof regarding the March 2002 offense described only forced vaginal intercourse, but Rishovd’s wife testified at trial that he forced both vaginal and anal intercourse. Other than calling this testimony “unexpected,” Rishovd fails to show how it unfairly prejudiced him.

Rishovd also asks this court to determine whether he was denied a fair trial by the district court’s determination of the admissibility of the prior-abuse evidence at a pretrial hearing rather than at trial. The admissibility of evidence of prior acts of abuse generally should be determined after the presentation of all other evidence at trial. DeWald, 464 N.W.2d at 504. But the district court does not automatically abuse its discretion by determining the admissibility of such evidence before trial. See id. at 504-05 (affirming conviction despite pretrial determination of admissibility of prior-acts evidence). Here, Rishovd requested a pretrial hearing to determine the admissibility of the prior-abuse evidence; we conclude that the district court did not deny Rishovd a fair trial by conducting the pretrial hearing that Rishovd requested.

Rishovd next contends that he was unfairly prejudiced by “extensive testimony” of the prior abuse. Although it is unclear from his brief, Rishovd appears to refer to the allegedly cumulative and prejudicial nature of the testimony of a sheriff’s deputy. Over Rishovd’s objection at trial, the district court ruled that the deputy could testify and that it would “deal with [the testimony] on a piece by piece basis in terms of what [the deputy is] going to testify to.” Without further objection by Rishovd, the deputy briefly testified to his observation of the physical appearance of Rishovd’s wife on the day of the March 2002 incident and about evidence he seized related to that incident. He did not testify about the specific abuse that Rishovd was charged with committing. Most of the deputy’s testimony related to three statements he took from Rishovd following the March 2002 incident regarding Rishovd’s claim that he had a multiple-personality disorder. The record does not show that the deputy’s testimony was cumulative, and the district court did not clearly abuse its discretion by allowing the testimony.

Finally, Rishovd argues that he was unfairly prejudiced because the deputy, before testifying, “accidentally” violated a sequestration order by witnessing an undetermined portion of the testimony of Rishovd’s wife. Prior to trial, the district court granted the state’s motion to sequester all but one witness, who was not the deputy at issue here. “Witnesses may be sequestered or excluded from the courtroom, prior to their appearance, in the discretion of the court.” Minn. R. Crim. P. 26.03, subd. 7. A party seeking relief based on a violation of a sequestration order must show prejudice resulting from the violation. State v. Erdman, 383 N.W.2d 331, 334 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986). Rishovd has shown no such prejudice. The deputy testified about his own observations of and conversations with Rishovd and Rishovd’s wife. The record does not suggest that his testimony was influenced by testimony of Rishovd’s wife. Because Rishovd shows no prejudice resulting from the deputy’s accidental violation of the sequestration order, he is not entitled to a new trial because of that violation.

Finally, Rishovd suggests that the cumulative effect of the district court’s errors denied him a fair trial. Because we find no error by the district court, Rishovd’s argument fails.

Affirmed.