This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-33

 

 

State of Minnesota,

Respondent,

 

vs.

 

Andrue T. Grabow,

Appellant.

 

 

Filed March 20, 2007

Reversed and remanded

Crippen, Judge*

 

Lyon County District Court

File No. K6-04-884

 

 

Lori Swanson, Attorney General, Kimberly Ross Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Richard R. Maes, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN 56258 (for respondent)

 

John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Worke, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Andrue Grabow challenges his conviction for felony domestic assault, arguing that the district court improperly excluded evidence of witness bias.  Because the exclusion of this evidence was error, and because the error was not harmless, we reverse appellant’s conviction and remand for a new trial.

FACTS

            In October 2004, appellant got into a heated argument with his girlfriend, Shannon Fischer, while at appellant’s apartment.  Appellant demanded that Fischer leave and, as appellant closed the door behind her, Fischer fell down a steep stairway immediately before the doorway and sustained a deep bruise on her left thigh.  Alleging that she fell because appellant pushed her in the upper back with his hand, Fischer went home and called the police.  Appellant denied pushing Fischer and claimed that she must have tripped.

            Based on Fischer’s complaint, Lyon County authorities charged appellant with two counts of felony domestic assault.  The charges were brought as felonies because appellant has two prior convictions for domestic assault involving Fischer.  The first arose from a March 2004 argument in which appellant slapped Fischer across the face and smashed a table.  The second was the result of another violent dispute roughly one week later, in which appellant threw a glass of iced tea into Fischer’s face and slammed his forehead into hers. 

            Prior to trial, appellant moved to admit evidence that Fischer vandalized his belongings sometime after October 2004.  He also moved to admit evidence of a November 2003 assault, asserting that Fischer had recruited some of her friends to beat him up following another domestic dispute.  Appellant argued that these incidents provided evidence of bias, but the district court denied his motions.  On the morning of the trial, appellant stipulated to the two prior domestic assault convictions but Fischer was permitted to testify to the underlying conduct. 

            The trial consisted of testimony by appellant, Fischer, and the two police officers who investigated the charged offenses.  The jury returned a guilty verdict on the charge of felony domestic assault, intent to cause fear, and a not-guilty verdict on the count of felony domestic assault, intent to inflict bodily harm.  Appellant argues that the district court erred in excluding evidence of the November 2003 assault and that his stipulation to the prior convictions did not constitute an effective waiver of his right to a jury trial on each element of the offenses charged.

D E C I S I O N

1.

            We review evidentiary rulings by the district court for clear abuse of discretion.  State v. Pendleton, 706 N.W.2d 500, 510 (Minn. 2005).  It is appellant’s burden to prove that the district court abused its discretion and that the resulting error was prejudicial.  Id.  Appellant argues that the district court’s error prejudiced him because the evidence of the November 2003 assault should have been admitted as evidence of bias or as relationship evidence.  Because the proffered evidence was admissible for the purpose of showing bias, we do not address whether it was also admissible for any other purpose.

            Bias evidence is admissible to impeach the credibility of testifying witnesses.  Minn. R. Evid. 616; State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (observing that witness’s bias or partiality is “always relevant” to discredit witness and affect weight of witness’s testimony).  In separate pretrial motions, appellant offered evidence that Fischer vandalized his property following the charged offense and that Fischer asked several of her male friends to assault him on November 13, 2003, approximately one year before the charged offense.  The November 2003 incident was allegedly the subject of a prosecution of Fischer recorded in court file T7-04-148.  The district court held an evidentiary hearing at which Fischer testified about the November 2003 assault but appellant did not.  In its evidentiary order, the district court held that appellant could not present “evidence of the alleged victim committing vandalism against the [appellant] on November 13, 2004 in T7-04-148” because it occurred after the charged offense and would tend to confuse the jury.  Court file T7-04-148 related to the evidence of Fisher’s alleged assault in November 2003.  The record does not clearly explain the court’s mistake in seemingly treating the assault incident as part of the vandalism event over one year later, although it is likely related to appellant’s corresponding misstatement in the memorandum supporting his supplementary pretrial motion.

Confusion of the jury is a permissible basis for excluding otherwise admissible evidence.  Minn. R. Evid. 403.  But in this case, the assault evidence would not have confused the jury for the reason stated in the district court’s order because it occurred in November 2003 rather than November 2004. The state argues that these mistakes are immaterial because there was not sufficient evidence of the November 2003 assault in the record to provide an adequate offer of proof and the charge against Fischer arising out of the assault was eventually dismissed.  But those issues are not before us.  The district court, without cause pertinent to the November 2003 incident, abused its broad discretion when it excluded the evidence.  Lanz-Terry, 535 N.W.2d at 640 (error to exclude evidence discrediting witness and affecting weight of witness’s testimony). 

            Appellant must also show that the district court’s error was not harmless beyond a reasonable doubt.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  In assessing the harmlessness of the error “the reviewing court must be satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury . . . would have reached the same verdict.”  Id. (footnote omitted).  Thus, if there is a reasonable possibility that the admission of the evidence would have affected the verdict, the error is not harmless.  Id.  Appellant correctly argues that the assault evidence could have reasonably affected the verdict because it showed a manifestation of Fischer’s bias against him and, without it, the jury did not have a complete portrayal of Fischer’s bias. 

            In State v. Lanz-Terry, the supremecourt held that “[w]hether the [district] court abused its discretion in restricting a defendant’s attempted cross-examination that [was] aimed at showing bias turns on whether the jury has sufficient other information to make a ‘discriminating appraisal’ of the witness’s bias or motive to fabricate.”  Lanz-Terry, 535 N.W.2d at 641.  Although the court in Lanz-Terry was using an abuse-of-discretion standard of review rather than a harmless-error standard, its analysis is nonetheless instructive because it illustrates the curative effect of having other evidence demonstrating bias in the record.   

            In this case, the jury heard testimony about two previous occasions on which appellant assaulted Fischer; thus it was aware of the couple’s volatile relationship, but only with appellant as the responsible party.   But evidence that Fischer recruited friends to assault appellant tends to show the indirect means she was willing to use to retaliate.  Presented with this evidence the jury could have reasonably inferred that Fischer fabricated testimony that appellant pushed her down the stairs in order to fulfill her desire to punish him.

            Because the state’s only evidence of the crimes charged consisted of Fischer’s testimony, that testimony served as the basis for the jury’s verdict.  The harmless-error test requires that we examine the basis for a verdict in determining whether it was surely not attributable to the error.  Townsend v. State, 646 N.W.2d 218, 223 (Minn. 2002).  Having done so, and considering the trial record, we cannot conclude that the jury’s verdict would have been the same had the assault evidence been admitted.  

2.

Appellant next asserts that it was error for the district court to accept his oral stipulation to his prior convictions as a waiver of a jury trial on those elements because it was not demonstrably knowing, voluntary, and intelligent.  See State v. Wright, 679 N.W.2d 186, 191-92 (Minn. App. 2004) (stating that defendant’s stipulation to element of offense must be supported by personal oral or written waiver of defendant’s right to jury trial on that element), review denied (Minn. June 29, 2004).  As we have already determined that appellant’s evidentiary claim demands a new trial, this is not the appropriate occasion to examine the merits of his waiver claim.

Reversed and remanded.