A05-2284

State of Minnesota,

Respondent,

vs.

Janet Marie Lynn,

Appellant.

Filed December 5, 2006

Affirmed

Hudson, Judge

Anoka County District Court

File No. K2-05-4554

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, Minnesota 55303 (for respondent)

Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, Minnesota 55404 (for appellant)

Considered and decided by Shumaker, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

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

HUDSON, Judge

On appeal from a conviction of first-degree assault, appellant argues that the trial court abused its discretion by admitting evidence of prior domestic abuse under Minn. Stat. § 634.20 (2004). Appellant argues that the prior incidents were dissimilar, that clear and convincing evidence of prior incidents should be required, and that the evidence was more prejudicial than probative. Appellant also argues that the court’s limiting instruction was insufficient and constituted plain error, because it failed to explain the limited purpose for which the evidence of prior domestic abuse was being admitted. Appellant also makes various claims of prosecutorial misconduct and challenges the sufficiency of the evidence. We affirm.

FACTS

On January 18, 2005, appellant summoned emergency personnel to her home because her 21-month-old pre-adoptive child had been injured. When the emergency personnel arrived, she explained that when she reached for something on a nearby table the child had fallen off her lap and onto the carpeted floor. A police officer testified that when he arrived the child was not moving, very pale, and his eyes were fixed and unresponsive to light. Shortly thereafter, the child was taken by helicopter to Hennepin County Medical Center (HCMC). Concerned about the cause of the child’s injuries, one of the HCMC physicians referred the child’s case to the HCMC Child Maltreatment Team for investigation.

Appellant was ultimately charged with first-degree assault, and the case was tried by a jury.

Several physicians who examined the child when he arrived at HCMC testified at appellant’s trial. The chief of radiology at HCMC explained that the child had suffered a skull fracture that crossed the suture line and that such an injury would require “a fairly substantive amount of force.” He also testified that it would have been “exceptional” for the injuries suffered by the child to have occurred in the way appellant described. The medical director of the pediatric emergency department at HCMC described the child’s injuries as “life threatening” and testified that the injuries he observed “did not fit the story of having rolled off the couch onto a carpeted floor.”

On the morning of January 18, 2005, the child had been taken to see a pediatrician because of an arm injury suffered the previous Friday. The pediatrician who examined the child that morning described the child as “alert and responsive” and noted that the child did not seem to be suffering any type of distress. He testified that he did not observe anything that made him believe that the child had any type of head injury, brain injury, or skull fracture.

Appellant’s husband also testified that on the morning of January 18, 2005, the child did not seem to be suffering from any type of head or brain injury. He testified that the child ate lunch as usual and that when he left for work that day the child seemed fine.

A woman who worked at a plasma-donation center where appellant regularly donated plasma also testified. She stated that when leaving work one day in September 2004, she observed appellant striking the child on the head. She testified that she heard the child crying uncontrollably and saw appellant “striking the little boy” several times and described the action as “a brisk slapping.” She testified that when she confronted appellant, appellant did not deny that she struck the child and admitted that she had hit the child three times before that incident. The jury returned a verdict of guilty; this appeal follows.

D E C I S I O N

The plasma-donation-center worker testified that she had previously observed appellant hitting the child. The district court admitted this testimony under Minn. Stat. § 634.20 (2004) as evidence of prior domestic abuse. Appellant argues that the district court abused its discretion by allowing this testimony because it was dissimilar and unsubstantiated, and because its prejudicial effect outweighed its probative value. Minn. Stat. § 634.20 provides that:

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, 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. “Similar conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection under section 518B.01; violation of a harassment restraining order under section 609.748; or violation of section 609.749 or 609.79, subdivision 1. “Domestic abuse” and “family or household members” have the meanings given under section 518B.01, subdivision 2.

Id. (Emphasis added.)

Evidentiary rulings are within the discretion of the district court and will not be reversed absent a clear abuse of that discretion. State v. Johnson, 568 N.W.2d 426, 432 (Minn. 1997). When reviewing the district court’s evidentiary rulings, “our duty is to look to the record as a whole to determine whether, in light of the evidence therein, the district court acted arbitrarily, capriciously, or contrary to legal usage.” State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999) (quotation omitted).

Appellant first argues that the conduct described by the witness in the plasma-center incident is dissimilar to the crime alleged in the complaint, primarily because the child was not severely injured in September 2004, whereas he suffered life-threatening injuries in January 2005. We disagree. As defined by section 518B.01, subdivision 2, “domestic abuse” 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) (2004). The definition of “family or household member” includes parents and children and persons who are presently residing together or who have resided together in the past. Minn. Stat. § 518B.01, subd. 2(b)(2), (4) (2004). Here, both acts attributed to appellant fall within the definition of domestic abuse. First, the evidence of prior domestic abuse describes an incident in which appellant hit her child; this is true of the January 2005 incident, as well. Second, both incidents involve appellant striking or injuring the child’s head in some manner. Appellant cites no authority for the proposition that the “similar conduct” determination is a function of the severity of the respective injuries. Accordingly, we conclude that the evidence of prior domestic abuse here clearly falls within the statutory definition of “similar conduct” under Minn. Stat. § 634.20.

Appellant also argues that evidence of prior domestic abuse by a defendant against the same victim must be proven by clear and convincing evidence and should be treated in the same manner as Spreigl evidence. But the Minnesota Supreme Court rejected this argument in State v. McCoy, 682 N.W.2d 153 (Minn. 2004), stating:

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, that is, to put the crime charged in the context of the relationship between the two.

. . . .

Although this heightened evidentiary standard [of Rule 404(b)] serves the important purpose of helping ensure that a defendant is not unfairly prejudiced, the standard does not implicate a fundamental right. . . . We believe that the interests of justice are best served by allowing the introduction of evidence of similar acts by the accused against the alleged victim of domestic abuse without requiring that they first be established by clear and convincing evidence.

Id. at 159, 161 (emphasis added) (citation omitted).

Finally, appellant argues that the evidence of prior domestic abuse should not have been admitted because its probative value was outweighed by its prejudicial effect. “[E]vidence of similar conduct in domestic abuse trials is relevant and admissible unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006); Minn. Stat. § 634.20. Minnesota “recognize[s] the inherent value of evidence of past acts of violence committed by the same defendant against the same victim.” Bell,719 N.W.2d at 641. Furthermore, when balancing the probative nature of evidence against its potential prejudicial effect, “unfair prejudice is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage.” Id.

The record before us shows that the district court carefully and thoroughly weighed the probative value of the evidence of prior domestic abuse against its prejudicial effect. The district court acknowledged the prejudicial nature of the evidence, but found that it did not outweigh its probative value: “it goes without saying if [the evidence] didn’t have any prejudicial value, it wouldn’t have any probative value. It wouldn’t have any usefulness, wouldn’t have any meaning. The issue is [whether the evidence] is unfair.” Appellant appears to argue that because the evidence tended to paint her in an unflattering light, it was unfairly prejudicial. But appellant has not shown how the evidence “persuades by illegitimate means” or “giv[es] one party an unfair advantage.” Id. We conclude that the district court did not abuse its discretion by allowing testimony of prior domestic abuse under Minn. Stat. § 634.20.

Appellant argues that her conviction should be reversed because the circumstantial evidence was insufficient to support the jury’s verdict. Specifically, appellant argues that the state’s evidence was not inconsistent with appellant’s explanation that the child’s injuries were the result of an accident.

When considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to support the jury’s verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Circumstantial evidence is entitled to as much weight as direct evidence (State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992)), but a stricter standard of appellate review applies when a conviction is based on circumstantial evidence. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). However, “[t]he evidence as whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable.” State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). In cases based on circumstantial evidence, we have consistently recognized that the jury is in the best position to evaluate the evidence and “we will not overturn a conviction based on circumstantial evidence on the basis of mere conjecture.” State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003) (citation and quotation marks omitted).

Here, the bulk of the evidence against appellant was circumstantial. But the jury, as the trier of fact and ultimate judge of the credibility of the witnesses, was free to believe or disbelieve the testimony of any of the witnesses. Moreover, the medical evidence was overwhelming as all of the physicians testified that the child’s injuries were the result of substantial force. Based on the record and upon the assumption that the jury believed the prosecution’s witnesses and disbelieved any contrary evidence, we conclude that the circumstantial evidence in this case was more than sufficient to support the jury’s verdict.

III

Appellant’s remaining arguments are procedurally barred. Although appellant’s counsel was an active participant in the creation of the jury instructions, appellant argues that the district court’s limiting instruction regarding the evidence admitted under Minn. Stat. § 634.20 was insufficient. But by failing to object to the instructions at trial, appellant has waived this argument. State v. Gutierrez, 667 N.W.2d 426, 433 (Minn. 2003).

Appellant also argues that the prosecutor committed misconduct by eliciting testimony regarding the credibility of appellant’s explanation for the victim’s injuries and by questioning appellant’s husband’s motivation to seek immunity before testifying. Because appellant made no objection to the prosecutor’s questions or arguments at trial on the grounds she now claims on appeal, her arguments are procedurally barred. State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006) (stating that a claim of prosecutorial misconduct is waived on appeal if the defendant failed to object at trial). This procedural bar may be overcome if the alleged misconduct was (1) error; (2) that was plain; and (3) that affected appellant’s substantial rights. Id. at 302. Because we conclude that appellant has not satisfied the first two prongs of this test, we need not reach the third prong, and accordingly, we decline to address this issue.

Affirmed.

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