This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0233
State of Minnesota, Respondent,
vs.
Taeng Yang, Appellant.
Filed February 6, 2017 Affirmed Johnson, Judge
Ramsey County District Court File No. 62-CR-15-4629
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Tracy M.
Smith, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
A Ramsey County jury found Taeng Yang guilty of felony domestic assault and
terroristic threats based on evidence that he beat his wife and threatened to kill her. On appeal, he argues through counsel that the district court erred by denying his pre-trial
request for a different public defender, by allowing the state to introduce relationship
evidence, by ruling that the state could impeach him with a 2013 burglary conviction, and
by submitting the issue of guilt and the issue of aggravated sentencing factors to the jury
at the same time. Yang makes additional arguments for reversal in a pro se supplemental
brief. We affirm.
FACTS
Yang and B.H. were united by a Hmong cultural marriage, which was arranged by
their families. They have one child together, who was born in March 2013. In 2015, Yang,
B.H., and their child lived in a three-bedroom home that they shared with Yang’s parents
and Yang’s siblings and their children. B.H. was employed and relied on family members
for transportation to and from work because she did not have a driver’s license.
The events giving rise to this appeal occurred during the evening of June 7, 2015.
B.H. finished work at 8:00 p.m. Yang picked her up one to two hours later. He later picked
up his brother-in-law, V.V., and a friend, T.L. The group arrived at Yang and B.H.’s home
between 11:00 p.m. and midnight and went to the bedroom that Yang, B.H., and their child
shared.
Yang and B.H.’s child had been in the care of Yang’s parents while B.H. was at
work and was still awake when B.H. arrived home. The child was “cranky” and needed a
bottle in order to sleep. Yang told B.H. that the bottle was missing. B.H. asked Yang to
take her to the store to buy a new bottle and milk. Yang and B.H. began to argue, and the
argument escalated. V.V. and T.L., who were still in the bedroom, supported Yang. When
2 B.H. attempted to leave the bedroom with the child, T.L. and V.V. blocked the doorway.
Yang told B.H. to sit on the bed, but she resisted because she feared for her safety. Yang
slapped B.H. on her knee with a shoe and pulled her hair. Either Yang or V.V. pushed
B.H. to the ground while she held the child. Yang got on top of B.H. and punched her face
and arms with his closed fist. Yang threatened to “take [B.H.] to the forest and kill [her].”
When Yang’s sister opened the bedroom door, B.H. fled with the child. She ran to
a nearby corner store, which was closed. She hid with the child between parked cars in the
parking lot, called the police, and stayed there until two officers arrived.
The state charged Yang with one count of felony domestic assault, in violation of
Minn. Stat. § 609.2242, subd. 4 (2014). The state later amended the complaint by adding
one count of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2014).
Before trial, the state served notice of its intent to seek an aggravated sentence based on
aggravating factors, including the following allegations: the offense was committed in the
actual presence of a child; the child heard, saw, or otherwise witnessed the offense; and
B.H. was particularly vulnerable due to the child’s presence.
The case went to trial in September 2015. The state called six witnesses: B.H., the
emergency-room nurse who treated B.H., B.H.’s treating physician, the 911 operator, and
the two police officers who responded to B.H.’s call. The defense called three witnesses:
Yang’s sister, father, and mother. Yang attempted to call V.V. and T.L., but both men
asserted their Fifth Amendment rights against self-incrimination. Yang did not testify.
The district court submitted the issue of guilt to the jury along with the issue of
aggravating sentencing factors. The jury found Yang guilty of both charges. The jury also
3 found that the state proved three aggravating sentencing factors. The district court
sentenced Yang to 60 months of imprisonment, a double-upward departure from the
presumptive guidelines range. Yang appeals.
DECISION
I. Request for Substitution of Appointed Counsel
Yang first argues that the district court erred by denying his pre-trial request for the
appointment of a different public defender.
A criminal defendant has a constitutional right to the assistance of counsel. U.S.
Const. amend. VI; Minn. Const. art. I, § 6. A criminal defendant is entitled to appointed
counsel if the defendant cannot afford to retain counsel. Gideon v. Wainwright, 372 U.S.
335, 339-45, 83 S. Ct. 792, 794-97 (1963); State v. Munt, 831 N.W.2d 569, 586 (Minn.
2013). An indigent defendant’s right to appointed counsel “is not an ‘unbridled right to be
represented by counsel of [the defendant’s] choosing.’” Munt, 831 N.W.2d at 586
(alteration in original) (quoting State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261,
264 (1970)). If an indigent defendant requests a substitution of appointed counsel, a district
court should grant the request only if it is “timely and reasonably made” and if exceptional
circumstances exist. Id. (quotation omitted). “Exceptional circumstances” warranting
substitution of counsel “are those that affect a court-appointed attorney’s ability or
competence to represent the client.” State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).
If a defendant voices “serious allegations” regarding counsel’s ability or competence, “the
district court should conduct a ‘searching inquiry’ before determining whether the
defendant’s complaints warrant the appointment of substitute counsel.” Munt, 831 N.W.2d
4 at 586 (quoting State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006)). This court applies an
abuse-of-discretion standard of review to a district court’s denial of a request for
substitution of appointed counsel. Id.
In this case, Yang asked the district court to appoint substitute counsel at the first
omnibus hearing, which was the day that he met his appointed public defender. His
appointed counsel raised the issue with the district court by stating that Yang wished to
speak to the court concerning his representation. Yang quickly described a conversation
with his appointed counsel in which they had a disagreement concerning whether he was a
member of a gang. The district court interrupted Yang and encouraged him to refrain from
disclosing his confidential conversations with counsel. When Yang persisted, the district
court stated that the request was denied. Thereafter, Yang appeared at two subsequent pre-
trial hearings and at trial without ever renewing his request for substitution of counsel.
The thrust of Yang’s argument is that the district court erred by not making a full
inquiry into his reasons for making the request for a different public defender. He does not
argue that he demonstrated exceptional circumstances. Rather, he asserts that, after a
proper inquiry, which might have elicited more information, the district court “might have
determined” that exceptional circumstances exist. He requests relief in the form of a
remand to the district court for a hearing at which he could “make a full record about his
concerns with trial counsel.”
We do not agree with Yang that the district court did not conduct a proper inquiry.
Under the circumstances, the inquiry was not lacking. The district court obviously was
aware that Yang was appearing for an omnibus hearing and likely was aware that the public
5 defender had only recently been appointed. Furthermore, Yang had divulged a fair amount
of information to the district court, which was sufficient for the district court to determine
that his concerns were not based on exceptional circumstances but, rather, the types of
concerns that are deemed to be mere dissatisfaction with counsel. See Gillam, 629 N.W.2d
at 449. Yang is correct in asserting that the district court made its ruling quickly. But in
light of the circumstances, Yang has not demonstrated that the district court abused its
discretion by not gathering more information about Yang’s request for a different public
defender. Furthermore, Yang did not raise the issue again thereafter, which indicates that
he acquiesced to appointed counsel’s ongoing representation. See Munt, 831 N.W.2d at
587.
Thus, the district court did not err by denying Yang’s request for substitution of
appointed counsel.
II. Relationship Evidence
Yang argues that the district court erred by allowing the state to introduce evidence
about the relationship between B.H. and him.
In general, “Evidence of another crime, wrong, or act is not admissible to prove the
character of a person in order to show action in conformity therewith.” Minn. R. Evid.
404(b). But such evidence may be admissible for another purpose, such as evidence of
past abuse or threats against the victim in order to show a strained relationship. State v.
Bauer, 598 N.W.2d 352, 364 (Minn. 1999). “Character evidence which tends to show the
‘strained relationship’ between the accused and the victim is relevant to establishing motive
and intent and is therefore admissible.” State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997).
6 Evidence of a defendant’s prior acts also may be relevant “for the purpose of illuminating
the relationship of defendant and complainant and placing the incident with which
defendant was charged in proper context.” Bauer, 598 N.W.2d. at 364 (quotation omitted).
In addition, in a prosecution for domestic assault:
Evidence of domestic conduct by the accused against the victim of domestic conduct, or against other family or household members, 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.
Minn. Stat. § 634.20 (2014); see also State v. Fraga, 864 N.W.2d 615, 627 (Minn. 2015);
State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). Evidence admitted pursuant to section
634.20 is commonly known as “relationship evidence.” State v. Matthews, 779 N.W.2d
543, 549 (Minn. 2010). The supreme court has determined that the “interests of justice are
best served” when relationship evidence is admitted if it would provide context for the
crime charged. Id. at 553 (quotation omitted). This is so because domestic conduct often
occurs in private, “frequently involves a pattern of activity that may escalate over time,”
and its victims often do not report its occurrence. Id. (quoting McCoy, 682 N.W.2d at 161).
Section 634.20 applies only in domestic-violence cases, see State v. Barnslater, 786
N.W.2d 646, 650 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010), and “allows
much more latitude” than the exception to rule 404(b), State v. Word, 755 N.W.2d 776,
784 (Minn. App. 2008). This court applies an abuse-of-discretion standard of review to a
district court’s admission of relationship evidence. Matthews, 779 N.W.2d at 553.
7 In this case, the district court ruled on the relationship evidence before trial, finding
that the evidence would “explain and highlight for the jury a history of the relationship of
abuse or threatening behavior” and that its probative value substantially outweighed the
potential for unfair prejudice. The state presented its relationship evidence through B.H.
She testified that Yang was “always angry” and “controlling” and that he never allowed
her to leave the house. She testified that Yang had threatened her life several times and
had hit her in the presence of other persons. As an example, B.H. testified that when she
was pregnant, Yang used a hammer to hit her on her head, ankle, and knee and covered her
mouth so that she could not breathe or cry for help. After that event, she sneaked out of
the house and stayed with her family for several weeks, until her father asked her to return
to Yang because he “didn’t want to look bad.” B.H. also testified that, on one occasion
when Yang was driving and V.V. was in the vehicle, Yang threatened her and punched her
several times on her back, shoulder, and arms. B.H. testified further that, since the events
underlying this case, she obtained an order for protection against Yang and does not
communicate with her family out of fear that they will make her return to Yang.
Yang contends that the district court erred because the probative value of the state’s
relationship evidence was far outweighed by its prejudicial effect. He notes that B.H.
willingly testified for the state and that the two eyewitnesses, V.V. and T.L., did not testify
because the state did not offer them immunity. In response, the state contends that the
relationship evidence indicates that Yang has a propensity to assault B.H. in the presence
of others and also shows that B.H. was pressured to remain with Yang despite a
troublesome relationship.
8 We agree with the state that the admission of the relationship evidence in this case
is justified. We also note that the relationship evidence was probative in that it helped the
jury evaluate the testimony of B.H. and the defense witnesses. See Matthews, 779 N.W.2d
at 549 (stating that relationship evidence may be probative by helping jury assess witness
credibility); State v. Lindsey, 755 N.W.2d 752, 756-57 (Minn. App. 2008) (same), review
denied (Minn. Oct. 29, 2008). We further note that the district court gave the jury a limiting
instruction before the evidence was presented and again before deliberations. See
Barnslater, 786 N.W.2d at 653 (stating that district court “should instruct the jury regarding
the proper use of relationship evidence”).
Thus, the district court did not err by allowing the state to introduce relationship
evidence.
III. Impeachment Evidence
Yang argues that the district court erred by allowing the state to impeach him by
introducing evidence that he was convicted of burglary in 2013.
In general, “Evidence of another crime, wrong, or act is not admissible to prove the
character of a person in order to show action in conformity therewith.” Minn. R. Evid.
404(b). But evidence of a defendant’s prior conviction is admissible for impeachment
purposes if the crime is punishable by more than one year in prison and the probative value
of the evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a); State v. Williams,
771 N.W.2d 514, 518 (Minn. 2009). A district court must consider the five Jones factors
when determining whether the probative value of impeachment evidence outweighs its
prejudicial effect: “‘(1) the impeachment value of the prior crime, (2) the date of the
9 conviction and the defendant’s subsequent history, (3) the similarity of the past crime with
the charged crime . . . , (4) the importance of the defendant’s testimony, and (5) the
centrality of the credibility issue.’” State v. Hill, 801 N.W.2d 646, 653 (Minn. 2011)
(alteration in original) (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). This
court applies an abuse-of-discretion standard of review to a district court’s decision to
admit evidence of a defendant’s prior conviction for impeachment purposes. Hill, 801
N.W.2d at 651.
In this case, the state gave notice before trial that it intended to impeach Yang with
prior felony convictions, including a 2013 burglary conviction. The district court reasoned
that “the impeachment value is great because it’s within two years of this offense, . . . is a
felony, . . . shows disregard for the law,” and “is not similar to” the charged offense. The
district court also reasoned that the prejudicial effect outweighs the probative value and
that “[c]redibility will be an issue since it will be a he said, she said if it gets to that point
or if other witnesses take the stand and get into credibility.” Defense counsel objected on
the grounds that “disregard for the law” is not an appropriate ground for impeachment.
The district court clarified that “a felony conviction is probative of a witness’s credibility.”
Yang contends that the district court erred in its assessment of two of the Jones
factors, the first factor and the fourth factor. With respect to the first factor, Yang renews
his argument that “disregard for the law” has no impeachment value. But the supreme
court has said that “any felony conviction is probative of a witness’s credibility because it
allows the fact-finder to see the whole person and his general lack of respect for the law.”
State v. Zornes, 831 N.W.2d 609, 627 (Minn. 2013) (internal quotations omitted). Yang
10 suggests that this court should not apply Zornes because its application always renders the
first Jones factor favorable to the admission of impeachment evidence and invites the jury
to make inferences based on a person’s propensity to commit crimes. In light of the pre-
existing caselaw, the district court did not err in its consideration of the first Jones factor.
With respect to the fourth factor, Yang contends that his testimony was critically
important because V.V. and T.L., the only eyewitnesses, did not testify in his defense. The
district court made its ruling on this issue before V.V. and T.L. asserted their Fifth
Amendment rights and elected to not testify. But the jury heard testimony from Yang’s
other witnesses, all of whom were present in the home during the alleged assault and
contradicted B.H.’s version of events. In any event, the supreme court has stated, “If
credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of
admission of the prior convictions.” State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).
It is undisputed that credibility was a central issue at trial. The district court, in considering
the fourth and fifth factors, characterized the case as a “he said, she said” case, and Yang
admits in his principal brief that “[t]his case boiled down to whether the jury believed
[B.H.] or Yang.” Again, in light of the pre-existing caselaw, the district court did not err
in its consideration of the fourth Jones factor.
Thus, the district court did not err by allowing the state to use Yang’s 2013 burglary
conviction as impeachment evidence.
IV. Request for a Bifurcated Trial
Yang argues that the district court erred by submitting the issue of guilt and the issue
of aggravated sentencing factors to the jury in a unitary trial rather than a bifurcated trial.
11 This procedural issue is governed by both statute and rule. By statute, the state has
an unqualified right to present the issues separately in a bifurcated trial: “Upon the request
of the prosecutor, the court shall allow bifurcated argument and jury deliberations.” See
Minn. Stat. § 244.10, subd. 5(b) (2014). If, however, the state requests a unitary trial, the
district court must grant the state’s request for a unitary trial if the state’s evidence
supporting the aggravating factors “(1) would be admissible as part of the trial on the
elements of the offense; or (2) would not result in unfair prejudice to the defendant.” Id.
But the district court must deny the state’s request for a unitary trial and conduct a
bifurcated trial if the state’s evidence supporting the aggravating factors “(1) includes
evidence that is otherwise inadmissible at a trial on the elements of the offense; and
(2) would result in unfair prejudice to the defendant.” Id. § 244.10, subd. 5(c). In light of
these two provisions, if the state’s evidence supporting the aggravating factors also is
admissible for purposes of determining whether the defendant is guilty, the district court’s
decision whether to conduct a unitary or bifurcated trial depends on whether a unitary trial
would “result in unfair prejudice to the defendant.” See id. § 244.10, subd. 5(b), (c); see
also Minn. R. Crim. P. 11.04, subd. 2(b). This court applies an abuse-of-discretion
standard of review to a district court’s decision to conduct a unitary trial. State v. Laine,
715 N.W.2d 425, 433 (Minn. 2006).
In this case, the state requested a unitary trial at the instructions conference, after all
the evidence had been introduced. Specifically, the state asked the district court to give
the jury a special verdict form that included both a question as to whether the state proved
that Yang is guilty and also questions as to whether the state proved each of three alleged
12 aggravating factors. Defense counsel objected, arguing that allowing the jury to consider
the aggravating factors contemporaneously with the issue of Yang’s guilt would be unfairly
prejudicial. The district court granted the state’s request for a unitary trial, stating, “I do
not find that what is listed on the verdict forms at this time would establish unfair prejudice
to the defendant since [the jury has] already heard evidence that the child was present . . .
during the commission of the crime.”
Yang contends that the unitary trial was prejudicial because “asking the jurors to
consider whether the state proved aggravating factors at the same time as it is deciding
whether the state proved guilt beyond a reasonable doubt encourages the jury to focus its
attention on the most prejudicial evidence against the defendant.” Yang elaborates by
contending that, in closing argument, “A defendant is forced to choose between ignoring
the aggravating factors, and pursuing solely a not guilty theory, or presenting an
inconsistent closing argument of ‘the defendant is not guilty, but if he is, the state failed to
prove aggravating factors.’”
We recognize the potential for undue prejudice in this general situation, but we
believe that the potential for undue prejudice was not realized in this case. The evidence
supporting the aggravating factors (that Yang and B.H.’s child was present) was naturally
part of the essential facts of the case. Every witness who was present in the home during
the alleged assault testified to the presence of the child. But no witness testified that Yang
took any action directly against the child. In cross-examining B.H., Yang’s counsel
challenged her testimony based on her underlying frustration with the marriage and her
lack of physical injuries. During the evidentiary phase of trial, the jury was not told that it
13 would be asked to make any findings concerning the presence of the child. Accordingly,
the jury had no particular reason to focus on the presence of the child during witness
testimony. The instructions and the special verdict form asked the jury to consider three
questions related to the presence of the child only if it were to find Yang guilty. The
language used in those three questions was not especially prejudicial: (1) “Was the offense
committed in the actual presence of a child?” (2) “Did the child see, hear or otherwise
witness the offense?” (3) “Was [B.H.] particularly vulnerable due to the child’s presence
during the commission of the crime because of the victim’s responsibility to the child?” In
light of the circumstances of this case, the district court did not abuse its discretion by
determining that a unitary trial would not result in unfair prejudice to Yang.
Thus, the district court did not err by submitting the issue of guilt and the issue of
aggravated sentencing factors to the jury in a unitary trial rather than a bifurcated trial.
V. Pro Se Arguments
Yang raises four additional issues in his pro se supplemental brief. First, he argues
that the district court erred by preventing him from calling V.V. and T.L. as witnesses at
trial. He contends that the district court violated his Sixth Amendment right to have
compulsory process for obtaining witnesses in his favor and his right to present a complete
defense, which is guaranteed by the Due Process Clause of the Fourteenth Amendment.
See State v. Jenkins, 782 N.W.2d 211, 225-26 (Minn. 2010). The district court did not
prevent Yang from calling V.V. and T.L. as witnesses at trial. In fact, Yang took advantage
of his right to compulsory process by serving subpoenas on both V.V. and T.L., both of
whom appeared in the courtroom. But each man asserted his Fifth Amendment right
14 against self-incrimination and elected to not testify. A witness’s decision to invoke his
constitutional right to not testify does not violate a defendant’s Sixth Amendment right to
compulsory process. State v. Graham, 764 N.W.2d 340, 349 (Minn. 2009); State v. Moose,
266 N.W.2d 521, 525 (Minn. 1978). Furthermore, a district court violates a defendant’s
constitutional right to present a complete defense only if the district court excludes
evidence based on an evidentiary rule that “infringe[s] upon a weighty interest of the
accused and [is] arbitrary or disproportionate to the purposes [the rule is] designed to
serve.” State v. Pass, 832 N.W.2d 836, 841-42 (Minn. 2013) (alterations in original)
(quoting Holmes v. South Carolina, 547 U.S. 319, 324-25, 126 S. Ct. 1727, 1731 (2006)).
Second, Yang argues that he received ineffective assistance of counsel and that the
district court erred by denying his request for substitute counsel. He contends that his trial
counsel was ineffective by not ensuring that he could call V.V. and T.L. as witnesses at
trial. As stated above, V.V. and T.L. asserted their respective Fifth Amendment rights
against self-incrimination and elected to not testify. Yang does not attempt to explain how
his trial counsel could have required them to testify. Yang’s ineffectiveness argument is
“nothing more than an argumentative assertion without factual support” and, thus, without
merit. Leake v. State, 737 N.W.2d 531, 543 (Minn. 2007). In addition, we already have
considered the district court’s decision to deny Yang’s request for substitution of counsel
and have concluded that there was no error. See supra part I.
Third, Yang argues that the evidence is insufficient with respect to both the
domestic-assault charge and the terroristic-threats charge. He contends that, with respect
to the domestic-assault charge, the state did not prove the existence of a prior qualifying
15 domestic-abuse-related conviction, as required for a felony-level conviction. But such
evidence was unnecessary because Yang stipulated to having two prior qualifying
domestic-abuse-related convictions. Yang contends that, with respect to the terroristic-
threats charge, the state did not prove that B.H. was injured. But the state did not need to
prove an actual injury because that is not an element of the offense. See Minn. Stat.
§ 609.713, subd. 1 (2014).
Fourth, Yang argues that being convicted on both charges violates the Double
Jeopardy Clause of the United States Constitution and state statutes protecting against
multiple convictions and multiple punishments. Yang’s constitutional double-jeopardy
argument fails because the Double Jeopardy Clause protects against successive
prosecutions for the same offense, not against a single prosecution with multiple charges.
See United States v. Ursery, 518 U.S. 267, 273, 116 S. Ct. 2135, 2139-40 (1996);
Hankerson v. State, 723 N.W.2d 232, 236-37 (Minn. 2006). Yang’s statutory argument
also fails. The adjudications of guilt on both charges does not violate the statutory
prohibition on being found guilty of both an offense and a lesser-included offense because
the terroristic-threats offense is not a lesser-included offense with respect to the domestic-
assault offense. See Minn. Stat. § 609.04, subd. 1 (2014) (proscribing convictions of both
charged crime and lesser-included offense); see also State v. Bertsch, 707 N.W.2d 660, 664
(Minn. 2006) (analyzing elements of two offenses to determine whether lesser-included
offense is “necessarily included in greater offense”); compare Minn. Stat. § 609.2242,
subd. 1 (2014), with Minn. Stat. § 609.713, subd. 1. Similarly, the district court did not
violate the statutory prohibition on multiple punishments because the district court imposed
16 a sentence only on the domestic-assault offense and did not impose a sentence on the
terroristic-threats count. See Minn. Stat. § 609.035, subd. 1 (2014); see also Langdon v.
State, 375 N.W.2d 474, 476 (Minn. 1985) (stating that “punishments” in section 609.035
refers to sentences, not to convictions).
Thus, Yang’s pro se supplemental brief does not establish that he is entitled to
appellate relief.
Affirmed.