State of Minnesota v. Fue Moua

• Court: Court of Appeals of Minnesota
• Decided: August 17, 2015
• Docket: A14-1859
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-1859

State of Minnesota, Respondent,

vs.

Fue Moua, Appellant

Filed August 24, 2015 Affirmed Klaphake, Judge*

Hennepin County District Court File No. 27-CR-14-1672

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant Hennepin County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Chutich, Judge; and

Klaphake, Judge.

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 UNPUBLISHED OPINION

KLAPHAKE, Judge

A jury convicted appellant Fue Moua of second-degree assault and making

terroristic threats after it heard testimony from his victim that Moua had previously

assaulted her and then later held a gun to her head and stated that he was not afraid to kill

her family. Moua asks us to reverse his conviction because the district court failed to

instruct the jury that it could not use the evidence of his prior domestic assault to show

his propensity to commit the charged offenses. We affirm.

DECISION

A district court commits plain error if it admits evidence of the defendant’s prior

domestic abuse without providing a cautionary instruction regarding the permissible use

of that evidence. State v. Barnslater, 786 N.W.2d 646, 654 (Minn. App. 2010), review

denied (Minn. Oct. 27, 2010). Moua did not object to the jury instructions during trial,

but because the district court permitted the victim to testify about Moua’s past domestic

abuse without providing a cautionary instruction, we hold that the district court plainly

erred.

But we do not reverse Moua’s conviction because there is no “reasonable

likelihood” that the error had a “significant effect” on the verdict. See State v. Little, 851

N.W.2d 878, 884 (Minn. 2014). The victim’s testimony about the prior domestic abuse

was brief. See Barnslater, 786 N.W.2d at 654 (finding no significant effect on verdict

when testimony of past domestic abuse was “limited”). The prosecutor never suggested

that the past abuse demonstrated that Moua committed the charged crimes. See State v.

2 Meldrum, 724 N.W.2d 15, 22 (Minn. App. 2006) (finding no significant effect on verdict

when prosecutor did not encourage use of evidence for propensity purposes), review

denied (Minn. Jan. 24, 2007). The victim’s testimony about the past abuse helped frame

the long-standing dispute over financial matters between Moua and the victim. See State

v. Word, 755 N.W.2d 776, 784 (Minn. App. 2008) (finding no significant effect on

verdict when testimony of past domestic abuse provided context of the parties’ “troubled,

long-term relationship”). And the arresting officer and photographs of the victim’s

bruises corroborated her testimony. See Meldrum, 724 N.W.2d at 22 (finding no

significant effect on verdict when victim’s testimony was corroborated). On this record,

we see no reasonable likelihood that the omitted instruction significantly affected the

verdict.

Affirmed.