Michael A. Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jeffrey D. Thompson, Rice County Attorney, Noah A. Cashman, Assistant County Attorney, Rice County Courthouse, 218 NW 3rd Street, Faribault, MN 55021 (for respondent)

James R. Martin, 607 North Central Avenue, Faribault, MN 55021 (for appellant)

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

A jury found appellant guilty of malicious punishment of a child, but not guilty of domestic assault. Appellant asserts: (1) the guilty verdict was against the weight of the evidence; (2) the district court improperly admitted evidence of a past domestic assault conviction; and (3) the inconsistency of the verdicts mandates reversal. We affirm.

acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Here, appellant was found guilty of violating Minn. Stat. § 609.377 when he kicked his daughter, A.T. Minn. Stat. § 609.377 (1998) reads, in relevant part:

"A parent * * * 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 * * *."

Appellant contends that evidence that A.T. was an unruly child and did not respond well to ordinary disciplinary measures precludes a finding that appellant used unreasonable force. We disagree. Under the statute, a determination that discipline is unreasonable or excessive depends on all the circumstances and thus is not precluded by evidence as to the child's behavior.

Appellant contends the evidence is insufficient to support his conviction because A.T. bruises easily, and thus, there is little evidence that appellant harmed A.T. We disagree. The malicious punishment statute does not specifically require a finding of harm. Further, if additional evidence of harm were necessary, A.T. testified that the kick hurt and that she suffered pain in her leg in the days following the kick.

Appellant contends the jury could not find unreasonable force based on a single incident. We disagree. Because the statute criminalizes, "an intentional act or a series of intentional acts," the state need not show more than one incident for a jury to find malicious punishment.

Appellant contends the evidence in the record was insufficient to find he intentionally kicked A.T. in order to cause her physical harm. We disagree. First, it does not appear that the malicious punishment statute states a specific intent crime. See State v. Orsello, 554 N.W.2d 70, 72-73 (1996). Second, if specific intent is required, evidence in the record was sufficient for the jury to conclude appellant intended to harm A.T.

[T]he jury may infer that a person intends the natural and probable consequences of his actions and a defendant's statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.

State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).

Here, there is evidence indicating appellant kicked A.T. A.T. told her mother that appellant kicked her and appellant testified as follows: Q Did you actually kick the child or was it something other than a kick? A I call it more of a swing kick, I don't know. Some people would call it a kick, I don't know. I mean I didn't kick her with the point of my foot.

Although A.T.'s sister stated she thought the kick was accidental, and appellant testified that he was only trying to push appellant out of the room with his foot, the court must view the evidence in the light most favorable to the conviction, and must assume that the jury believed the state's witnesses and disbelieved the defense witnesses. We conclude the evidence in the record was sufficient to support the conviction.

The district court has discretion to admit evidence of prior convictions, and the appellate court should not reverse such decisions absent an abuse of discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). The general rule in criminal cases is that evidence that shows or tends to show the accused has committed crimes other than those for which the accused is on trial is not admissible. Minn. R. Evid. 404(b); see also State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990). There are, however, exceptions to this rule in cases where the prior crime or bad act is admitted to show motive, intent, absence of mistake or accident, identity, or common scheme or plan. State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965). Such Spreigl evidence may be admitted if the district court finds

(1) the evidence is clear and convincing that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state's case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.

State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991).

Appellant does not dispute that the evidence establishing the past conviction is clear and convincing, but argues that it was not relevant and material to the present offense, and was more prejudicial than probative. We disagree.

To be relevant, the past and present crimes must be similar in some way. State v. Buhl, 520 N.W.2d 177, 181 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Here, both the past conviction and the present case involve violence by appellant against a member of his family. Moreover, there is evidence in the record indicating appellant blamed the victim for instigating the violence in the prior domestic assault, and that here he testified at trial that A.T. is an unruly child who does not respond well to normal discipline. We conclude the domestic assault conviction was similar enough to the present crime to permit its admission.

Appellant contends the past domestic assault conviction is not material because it does not fit any of the exceptions to the general rule that past crimes are not admissible. We disagree. Because appellant alleged that he did not intend to kick A.T., but was merely trying to push her into the next room, we conclude the district court did not abuse its discretion by admitting the past conviction to show intent and lack of mistake or accident.

Appellant contends the past conviction evidence was more prejudicial than probative under rule 404(b), and therefore, should have been excluded. We disagree. First, cautionary instructions were given by the district court both before the evidence was admitted and as part of jury instructions. Second, details of the past incident were not elicited on the record; the jury was exposed only to the fact that appellant had a prior domestic assault conviction on his record. Given appellant's theory of the case, the evidence is probative to the issue of intent and lack of mistake or accident. We conclude the district court did not clearly abuse its discretion by admitting this evidence.

Where the findings of a jury are merely logically inconsistent the defendant is not entitled to a new trial. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). However, where the jury's findings are legally inconsistent a new trial may be required. See id.; State v. Moore, 458 N.W.2d 90, 94-95 (Minn. 1990). Legally inconsistent means that a necessary element of each offense was subject to conflicting findings. Moore, 438 N.W.2d at 108.

The domestic assault statute reads:

Whoever does any of the following against a family or household member * * * commits an assault and is guilty of a misdemeanor:

* * * *

(2) intentionally inflicts or attempts to inflict bodily harm upon another.

Minn. Stat. § 609.2242, subd. 1(2) (1998). Thus, in order to find domestic assault, the jury would have to find that a defendant intentionally inflicted or attempted to inflict bodily harm. This is a necessary element of the domestic assault offense.

A similar finding is not necessary to render a guilty verdict under the malicious punishment statute. Malicious punishment requires only that the defendant act in a way that "evidences unreasonable force or cruel discipline that is excessive under the circumstances * * *." Minn. Stat. § 609.377.

Thus, a finding that appellant neither intended nor attempted to inflict bodily harm does not necessarily conflict with a finding that appellant's actions "evidenced unreasonable force or cruel discipline that is excessive under the circumstances." We conclude the jury's findings do not mandate reversal.

Affirmed.

SHUMAKER, Judge (concurring specially)

I agree with the majority that the evidence is sufficient to support appellant's conviction.

I respectfully disagree, however, that appellant's prior domestic assault conviction was admissible. Ostensibly, the trial court admitted the prior conviction on the issue of appellant's intent. Intent, the central issue in the case, was a matter of credibility. Minn. R. Evid. 609 governs the admissibility of prior convictions for purposes of impeaching a party or a witness. Because appellant's prior conviction was for a non-felony, it could be admitted "only if the crime * * * involved dishonesty or false statements * * *." Minn. R. Evid. 609(a). Domestic assault is not a crime involving dishonesty or false statement. The trial court erred in admitting evidence of the prior conviction.