State of Minnesota v. Michael Antwon Common ( 2014 )


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  •                         This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2012).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A14-0179
    State of Minnesota,
    Respondent,
    vs.
    Michael Antwon Common,
    Appellant
    Filed December 15, 2014
    Affirmed
    Worke, Judge
    Olmsted County District Court
    File No. 55-CR-13-4436
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
    Attorney, Rochester, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
    Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Worke, Presiding Judge; Reyes, Judge; and Crippen,
    Judge.*
    *
    Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
    Minn. Const. art. VI, § 10.
    UNPUBLISHED OPINION
    WORKE, Judge
    Appellant challenges the district court’s admission of evidence assisting the jury in
    evaluating the credibility of parties in a relationship. We affirm.
    FACTS
    On July 8, 2013, appellant Michael Antwon Common went to the residence of
    A.S. Common and A.S. had previously been in a relationship, and have a daughter
    together. A.S. was living with a roommate.
    Shortly after Common’s arrival, A.S.’s roommate heard screams of “Get off me”
    coming from A.S.’s bedroom, sounds of her choking and gasping for air, and impacts that
    she described as the sound of “flesh on flesh.” A.S.’s roommate called 911. Common
    was charged with domestic assault by strangulation and felony domestic assault.
    At trial, A.S. testified that she could not remember what occurred in her residence
    that night. However, A.S. had given a recorded statement to the police when she was in
    the hospital following the incident. In the recording, played for the jury, A.S. described
    that Common punched her, kicked her, knocked her down, pulled her hair, and choked
    her.
    A.S. also testified, over defense objection, to three prior incidents involving
    Common: (1) in August 2010, while A.S. was pregnant, Common struck her in the
    stomach; (2) in September 2010, Common had violated a domestic-abuse no-contact
    order (DANCO) and was found in her apartment; and (3) in June 2011, Common had hit
    2
    and stabbed A.S. with car keys. Prior to A.S.’s testimony and at close of trial, the district
    court cautioned the jury on how to treat this evidence.
    Common was found guilty as charged. This appeal follows.
    DECISION
    Common first argues that violation of a DANCO is not “similar conduct” as
    defined by 
    Minn. Stat. § 634.20
     (2012).1          “Because this issue turns on statutory
    interpretation, it is reviewed de novo.” State v. Valentine, 
    787 N.W.2d 630
    , 636 (Minn.
    App. 2010).
    Our supreme court has concluded that section 634.20 is unambiguous, and thus the
    plain meaning of the statute governs. State v. McCoy, 
    682 N.W.2d 153
    , 158-59 (Minn.
    2004). Section 634.20 prescribes that similar conduct “includes, but is not limited to,
    evidence of domestic abuse, violation of an order for protection [OFP] under section
    518B.01; violation of a harassment restraining order [HRO] under section 609.748; or
    violation of section 609.749 or 609.79, subdivision 1.” 
    Minn. Stat. § 634.20
    .
    We conclude that violation of a DANCO fits within the plain language of the
    statute. While a DANCO under 
    Minn. Stat. § 629.75
     (2012) is not specifically listed,
    similar conduct “is not limited to” the specifically listed statutes. 
    Id.
     DANCOs are very
    similar to OFPs and HROs in that all seek to protect victims from those who would harm
    or harass them. Compare Minn. Stat. § 518B.01, subd. 4 (2012), and 
    Minn. Stat. § 609.748
    , subd. 5 (2012), with 
    Minn. Stat. § 629.75
    . The distinction between a DANCO
    1
    The statute now refers to evidence of “domestic conduct” rather than “similar conduct.”
    
    Minn. Stat. § 634.20
     (Supp. 2013).
    3
    and the other orders is that a DANCO need not be requested by the victim; it may be
    issued upon the motion of a prosecutor or the court. See 
    id.
    Common argues that violation of a DANCO is not violent conduct, but both OFPs
    and HROs can be violated by non-violent means. See, e.g., Minn. Stat. § 518B.01, subd.
    6(10) (2012) (order abusing party to have no contact with petitioner in person, by mail, or
    via a third party); 
    Minn. Stat. § 609.748
    , subds. 4(2), 5(2) (2012) (order harassing party
    to have no contact with the petitioner). Common further argues that a DANCO violation
    does not constitute evidence of “domestic abuse” as defined by Minn. Stat. § 518B.01,
    subd. 2(a) (2012). But similar conduct is not admissible because it is evidence of
    domestic abuse; it is admissible to “illuminate the history of the relationship,” “put the
    crime charged in the context of the relationship,” and to “assist[]the jury by providing a
    context with which [to] better judge the credibility of the principals in the relationship.”
    McCoy, 682 N.W.2d at 159, 161.
    Common’s arguments are unpersuasive, and we conclude that violation of a
    DANCO is “similar conduct” as defined in 
    Minn. Stat. § 634.20
    .
    Probative vs. prejudicial
    Common next argues that the district court erred in admitting the prior acts
    because their probative value was substantially outweighed by the danger of unfair
    prejudice. A district court’s ruling on the admission of relationship evidence is reviewed
    for an abuse of discretion. State v. Lindsey, 
    755 N.W.2d 752
    , 755 (Minn. App. 2008),
    review denied (Minn. Oct. 29, 2008).
    4
    Relationship evidence is admissible “unless the probative value is substantially
    outweighed by the danger of unfair prejudice.” 
    Minn. Stat. § 634.20
    . “When balancing
    the probative value against the potential prejudice, 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.”
    Lindsey, 
    755 N.W.2d at 757
     (quotation omitted).            Additionally, cautionary jury
    instructions “lessen[] the probability of undue weight being given by the jury to the
    evidence.” 
    Id.
     (quotation omitted).
    The record indicates that the district court found significant probative value in the
    prior incidents because they illuminated the nature of A.S. and Common’s relationship
    and provided the jury useful context. This is the purpose of relationship evidence. See
    McCoy, 682 N.W.2d at 159. The district court concluded that the prior acts showed that
    Common’s attitude toward A.S. was one of control and that he was entitled to be
    physically present around her. The district court also highlighted the concern from
    McCoy that “[d]omestic abusers often exert control over their victims, which undermines
    the ability of the criminal justice system to prosecute cases effectively.” Id. at 161. The
    state expressed concern that A.S. would be reluctant to testify, and indeed this was the
    case: A.S. testified that she did not remember what occurred when Common entered her
    dwelling that night, despite the account that she gave in the hospital following the
    incident.   Relationship evidence is probative because it helps the jury evaluate the
    “credibility of the principals in the relationship.” Id.
    5
    The potential for unfair prejudice was low. The state did not mention the prior
    acts during closing argument. The district court twice read a cautionary instruction
    directly from the standard jury instructions which appropriately limited use of the
    evidence. 10 Minnesota Practice, CRIMJIGs 2.01, 3.16 (2006). “We presume that juries
    follow instructions given by the court.” State v. Matthews, 
    779 N.W.2d 543
    , 550 (Minn.
    2010). Common offers nothing to rebut this presumption.
    The district court did not abuse its discretion in admitting the relationship
    evidence.
    Affirmed.
    6
    

Document Info

Docket Number: A14-179

Filed Date: 12/15/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021