Jerrod M. Smith, Smith & Udoibok, P.A., 310 Fourth Avenue S., Suite 400, Minneapolis, MN 55415 (for appellant)

Mike Hatch, State Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Clayton M. Robinson, St. Paul City Attorney, Maria A. DeWolf, Assistant City Attorney, 500 City Hall, 15 W. Kellogg Blvd, St. Paul, MN 55102 (for respondent)

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Harten, Judge.

HARTEN, Judge

Appellant challenges his convictions of domestic assault and disorderly conduct on the grounds that the district court erred in admitting evidence of prior domestic violence and that there was insufficient evidence to support his convictions; he also contends that the district court abused its discretion in imposing two concurrent sentences. Because we see no abuse of discretion in the admission of evidence or in sentencing, and because there is sufficient evidence to support the jury verdicts, we affirm.

At trial, the police who came to the scene testified as to what they had seen and heard, but Collins recanted what she earlier had told the police. Over appellant's objection, the court admitted evidence of the June 1998 assault. The jury found appellant guilty of domestic assault (intent to cause fear), and of disorderly conduct. Appellant was sentenced on both counts, with the sentences to run concurrently.

Appellant challenges the admission of evidence of the prior assault, the sufficiency of the evidence, and the two sentences.

1. Admission of Evidence: Prior Bad Acts

"This court will not reverse a trial court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown." State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).

Whether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court. The trial court's decision will not be overturned absent a clear abuse of discretion.

State v. Graham, 371 N.W.2d 204, 208-09 (Minn. 1985) (citation omitted).

The district court admitted evidence of appellant's previous assault of Collins pursuant to Minn. Stat. § 634.20 (1998), which provides that:

[e]vidence of similar prior conduct by the accused against the victim of domestic abuse * * * including evidence of a violation against a family or household member of:

(1) an order for protection under section 518B.01;
(2) section 609.713, subdivision 1;
(3) a harassment restraining order under section 609.748; or
(4) section 609.79, subdivision 1;

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.

Appellant contends first that the evidence is inadmissible because it does not fall into any of the enumerated categories. But the categories are not exclusive; there is no basis for confining the statute to apply only to them.

Appellant then contends that the district court failed to analyze whether the probative value of the evidence was outweighed by unfair prejudice. But the transcript shows that the district court specifically addressed this issue.

[T]he question becomes * * * whether or not the probative value is substantially outweighed by the danger of unfair prejudice.

The Court believes that since there is a recanting of the alleged offense here, essentially, by her saying that there was no physical abuse * * * for the purposes of this case I believe that the evidence regarding any prior conduct between the parties is relevant providing it's within a relatively short period of time.

After being informed that the prior conduct occurred only two months before the incident here, the district court admitted the evidence. Because this matter is "left to the discretion of the trial court," Graham, 371 N.W.2d at 208, and appellant shows no abuse of discretion, there is no basis for reversal.[1]

2. Sufficiency of the Evidence

The jury found appellant guilty of domestic assault (intent to cause fear) with regard to Collins and of disorderly conduct with regard to her children.

We will not disturb a verdict if the jury, 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). There is sufficient evidence to support the jury's verdict on both counts.

The jury was instructed that, to find appellant guilty of domestic assault (intent to cause fear), it had to find that appellant committed an act with the intent of causing Collins to fear bodily harm. Appellant contends that the evidence does not support this finding. However, a police officer who responded to the 911 call placed by Collins' son testified that Collins was very upset and crying and that she said appellant had "hit her in the mouth, knocking her to the ground, and continued to punch her in the back until the police [arrived]." A reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). If the jury believed the police officer, it could have found that appellant intended to cause Collins to fear bodily harm.

The jury was instructed that, to find appellant guilty of disorderly conduct, it had to find that appellant engaged in brawling or fighting, or in offensive, obscene, abusive, boisterous, or noisy conduct, or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in another, and that appellant knew or had reason to know that his conduct would or could tend to alarm, anger, disturb, or provoke an assault by others. Collins' son told the 911 operator that his mother was "getting beat up;" he testified that at the time he called 911 he was afraid for her. The 911 operator testified that Collins' son "seemed quite hysterical when he called" and that "[Collins] was in immediate danger." One police officer testified that two small boys met him at the door; "both were very upset, crying, tears on their face;" another officer testified that he talked to a very little child who was "kind of holding his head and crying very loudly." Appellant knew Collins' children were within earshot; he knew or should have known that his assault of their mother would alarm them. The evidence supports the jury finding.

3. Sentencing

This court generally will not review the district court's exercise of its discretion when the sentences imposed are within the guideline's range. State v. Whittaker, 568 N.W.2d 440, 453 (Minn. 1997). Appellant cites Minn. Stat. § 609.035, subd. 1 (1998) (if a person's conduct constitutes more than one offense, the person may be punished for only one offense), to argue that because both his offenses arose out of the same incident, he can be punished for only one. But if more than one victim is involved, a perpetrator may be punished for multiple offenses if the multiple sentences do not unfairly exaggerate the criminality of the conduct. Whittaker, 568 N.W.2d at 453. Here, appellant was convicted of domestic assault of Collins and disorderly conduct in regard to her children. Each offense is punishable by up to 90 days' imprisonment and a fine of $700. Minn. Stat. § 609.02, subd. 3 (1998). Appellant's concurrent sentences resulted in 20 days' imprisonment; they did not unfairly exaggerate the criminality of his conduct.

Neither the sentencing nor the admission of evidence of the prior assault was an abuse of discretion, and the evidence supports the jury's verdict.

Affirmed.

[1] Appellant also contends that he was prejudiced by the admission into evidence of photographs of Collins after the June incident. But his attorney's objection to the admission of the photographs was sustained, and the transcript reflects that after the objection no further questions were asked about the photographs.