This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1236
State of Minnesota, Respondent,
vs.
Walter Wayne Urban, Appellant.
Filed May 2, 2016 Affirmed in part and remanded Rodenberg, Judge
Redwood County District Court File No. 64-CR-14-818
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Steven S. Collins, Redwood County Attorney, Redwood Falls, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Walter Wayne Urban challenges his conviction for domestic assault,
arguing that the district court erred by admitting evidence of a past incident of domestic abuse in which he assaulted his ex-girlfriend. Appellant also argues that the district court
improperly entered two convictions for domestic assault arising from the same behavioral
incident. Because the other-abuse evidence has not been shown to have been erroneously
admitted, we affirm in part. But we remand for the district court to clarify that the second
count of domestic assault has not been formally adjudicated as a conviction.
FACTS
Appellant lived in Redwood Falls with his mother, his father, and his younger
brother. On November 24, 2014, appellant returned to his family home belligerently
drunk. He approached his mother in an intimidating way, threw a can of glass cleaner at
her, and threatened to hit her. Appellant’s father intervened, wrestling appellant down,
first onto a love seat and later onto a couch, in order to prevent appellant from attacking
his mother. Appellant’s mother called 911 and frantically asked the police to come to the
residence to help. She stated, “You need to come now. I’m . . . his mom. He attacked
me and then he’s . . . going after his dad.” Although appellant did not physically hurt his
mother that night, both of his parents told police that they believed he would have had his
father not intervened.
The state charged appellant by complaint with two counts of domestic assault
pursuant to Minn. Stat. § 609.2242, subd. 4 (2014). Count 1 alleged an act done with
intent to cause fear in a family or household member, and Count 2 alleged an attempt to
inflict bodily harm, both in relation to appellant’s actions toward his mother. Both counts
were charged as felonies because of appellant’s prior domestic-abuse convictions.
Additionally, appellant was charged with obstruction of legal process under Minn. Stat.
2 § 609.50, subd. 1(2) (2014), based on his combative conduct when police arrived at the
residence to arrest him.
The case was tried to a jury. Appellant stipulated to his past domestic-abuse
convictions at trial (but outside the hearing of the jury). The state offered testimony from
two police officers who responded to the call on November 24, 2014, played the audio
recording of appellant’s mother’s 911 call, played an audio recording from a microphone
attached to the body of one of the responding police officers during the arrest, and played
a recorded phone interview with each of appellant’s parents conducted the night of the
arrest. The state also called both of appellant’s parents as witnesses at trial, but both were
uncooperative, minimized the severity of the attack, and expressed concern that appellant
not go to jail.
The state also offered the testimony of another police officer at trial, who testified
about a past incident of domestic abuse involving appellant to which he had responded.
This witness testified that, on December 14, 2013, he was called to a different residence
to respond to allegations that appellant had assaulted his then girlfriend. Two
photographs were admitted showing the victim’s injuries from that assault.
The jury returned guilty verdicts on all three counts. Appellant was sentenced to
32 months, which was the “top of the box” under the Minnesota Sentencing Guidelines
for a severity level 4 offense, with a criminal history score of 5. This appeal followed.
3 DECISION
I. Evidence of other domestic abuse
Appellant argues that the district court abused its discretion by admitting evidence
that he assaulted his ex-girlfriend one year before the charged offenses, because the
probative value of that evidence was substantially outweighed by the danger of unfair
prejudice. On this basis, he requests a new trial.
In a criminal case involving domestic violence, Minnesota law allows for the
admission of evidence of other “domestic conduct” by the defendant against the same
victim or “against other family or household members,” “unless the probative value is
substantially outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20 (2014);
see State v. Fraga, 864 N.W.2d 615, 627 (Minn. 2015) (“[W]e make clear today that
evidence of domestic conduct by the accused against family or household members other
than the victim may be admitted pursuant to Minn. Stat. § 634.20.”). The same statute
defines “domestic conduct” to include “evidence of domestic abuse.” Minn. Stat.
§ 634.20.
We review for an abuse of discretion a district court’s decision to admit evidence
under Minn. Stat. § 634.20. State v. Word, 755 N.W.2d 776, 781 (Minn. App. 2008).
We will not reverse unless the appellant “establish[es] that the district court abused its
discretion and that the defendant was thereby prejudiced.” Id.
Appellant argues that the other-abuse evidence had low probative value and that it
had a high likelihood of being persuasive for an improper purpose. But the district court
twice gave a cautionary instruction to the jury regarding the limited purpose of the
4 evidence of appellant’s assault on his ex-girlfriend. Before presentation of the other-
abuse evidence, the district court stated to the jury:
The state is about to introduce evidence of conduct by the defendant on December 14th, 2013. . . . The evidence is being offered for the limited purpose of demonstrating the nature and extent of the relationship between the defendant and other family and household members in order to assist you in determining whether the defendant committed the acts with which the defendant is charged in this complaint. . . . The defendant is not being tried for and may not be convicted for any behavior other than the charged offenses. . . . You are not to convict the defendant on the basis of his conduct on December 14th, 2013.
The district court repeated a similar cautionary instruction just before the jury began
deliberations. We presume the jury followed these instructions. State v. Bauer, 776
N.W.2d 462, 472 (Minn. App. 2009), aff’d, 792 N.W.2d 825 (Minn. 2011). The district
court also restricted the amount of evidence that was presented to the jury on the topic of
appellant’s assault on his ex-girlfriend, admitting only two of the five photographs offered
by the state—despite determining that each of them would have been separately
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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 A15-1236
State of Minnesota, Respondent,
vs.
Walter Wayne Urban, Appellant.
Filed May 2, 2016 Affirmed in part and remanded Rodenberg, Judge
Redwood County District Court File No. 64-CR-14-818
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Steven S. Collins, Redwood County Attorney, Redwood Falls, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Walter Wayne Urban challenges his conviction for domestic assault,
arguing that the district court erred by admitting evidence of a past incident of domestic abuse in which he assaulted his ex-girlfriend. Appellant also argues that the district court
improperly entered two convictions for domestic assault arising from the same behavioral
incident. Because the other-abuse evidence has not been shown to have been erroneously
admitted, we affirm in part. But we remand for the district court to clarify that the second
count of domestic assault has not been formally adjudicated as a conviction.
FACTS
Appellant lived in Redwood Falls with his mother, his father, and his younger
brother. On November 24, 2014, appellant returned to his family home belligerently
drunk. He approached his mother in an intimidating way, threw a can of glass cleaner at
her, and threatened to hit her. Appellant’s father intervened, wrestling appellant down,
first onto a love seat and later onto a couch, in order to prevent appellant from attacking
his mother. Appellant’s mother called 911 and frantically asked the police to come to the
residence to help. She stated, “You need to come now. I’m . . . his mom. He attacked
me and then he’s . . . going after his dad.” Although appellant did not physically hurt his
mother that night, both of his parents told police that they believed he would have had his
father not intervened.
The state charged appellant by complaint with two counts of domestic assault
pursuant to Minn. Stat. § 609.2242, subd. 4 (2014). Count 1 alleged an act done with
intent to cause fear in a family or household member, and Count 2 alleged an attempt to
inflict bodily harm, both in relation to appellant’s actions toward his mother. Both counts
were charged as felonies because of appellant’s prior domestic-abuse convictions.
Additionally, appellant was charged with obstruction of legal process under Minn. Stat.
2 § 609.50, subd. 1(2) (2014), based on his combative conduct when police arrived at the
residence to arrest him.
The case was tried to a jury. Appellant stipulated to his past domestic-abuse
convictions at trial (but outside the hearing of the jury). The state offered testimony from
two police officers who responded to the call on November 24, 2014, played the audio
recording of appellant’s mother’s 911 call, played an audio recording from a microphone
attached to the body of one of the responding police officers during the arrest, and played
a recorded phone interview with each of appellant’s parents conducted the night of the
arrest. The state also called both of appellant’s parents as witnesses at trial, but both were
uncooperative, minimized the severity of the attack, and expressed concern that appellant
not go to jail.
The state also offered the testimony of another police officer at trial, who testified
about a past incident of domestic abuse involving appellant to which he had responded.
This witness testified that, on December 14, 2013, he was called to a different residence
to respond to allegations that appellant had assaulted his then girlfriend. Two
photographs were admitted showing the victim’s injuries from that assault.
The jury returned guilty verdicts on all three counts. Appellant was sentenced to
32 months, which was the “top of the box” under the Minnesota Sentencing Guidelines
for a severity level 4 offense, with a criminal history score of 5. This appeal followed.
3 DECISION
I. Evidence of other domestic abuse
Appellant argues that the district court abused its discretion by admitting evidence
that he assaulted his ex-girlfriend one year before the charged offenses, because the
probative value of that evidence was substantially outweighed by the danger of unfair
prejudice. On this basis, he requests a new trial.
In a criminal case involving domestic violence, Minnesota law allows for the
admission of evidence of other “domestic conduct” by the defendant against the same
victim or “against other family or household members,” “unless the probative value is
substantially outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20 (2014);
see State v. Fraga, 864 N.W.2d 615, 627 (Minn. 2015) (“[W]e make clear today that
evidence of domestic conduct by the accused against family or household members other
than the victim may be admitted pursuant to Minn. Stat. § 634.20.”). The same statute
defines “domestic conduct” to include “evidence of domestic abuse.” Minn. Stat.
§ 634.20.
We review for an abuse of discretion a district court’s decision to admit evidence
under Minn. Stat. § 634.20. State v. Word, 755 N.W.2d 776, 781 (Minn. App. 2008).
We will not reverse unless the appellant “establish[es] that the district court abused its
discretion and that the defendant was thereby prejudiced.” Id.
Appellant argues that the other-abuse evidence had low probative value and that it
had a high likelihood of being persuasive for an improper purpose. But the district court
twice gave a cautionary instruction to the jury regarding the limited purpose of the
4 evidence of appellant’s assault on his ex-girlfriend. Before presentation of the other-
abuse evidence, the district court stated to the jury:
The state is about to introduce evidence of conduct by the defendant on December 14th, 2013. . . . The evidence is being offered for the limited purpose of demonstrating the nature and extent of the relationship between the defendant and other family and household members in order to assist you in determining whether the defendant committed the acts with which the defendant is charged in this complaint. . . . The defendant is not being tried for and may not be convicted for any behavior other than the charged offenses. . . . You are not to convict the defendant on the basis of his conduct on December 14th, 2013.
The district court repeated a similar cautionary instruction just before the jury began
deliberations. We presume the jury followed these instructions. State v. Bauer, 776
N.W.2d 462, 472 (Minn. App. 2009), aff’d, 792 N.W.2d 825 (Minn. 2011). The district
court also restricted the amount of evidence that was presented to the jury on the topic of
appellant’s assault on his ex-girlfriend, admitting only two of the five photographs offered
by the state—despite determining that each of them would have been separately
admissible—in order to reduce any “unfair extrapolation.”
The prosecutor’s closing argument also described the limited purpose of the other-
abuse evidence: “[T]o show how the defendant treats those closest to him, how [he] treats
his family or household members.”
Caselaw identifies that Minn. Stat. § 634.20 is designed to aid in the prosecution of
domestic abuse, which is often particularly challenging because it “typically occurs in the
privacy of the home,” “frequently involves a pattern of activity,” and “is often
underreported.” State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004). Those factors are
5 relevant here, where the victim and witness later recanted or modified their original
version of events to protect a family member, and where appellant committed multiple
acts (“a pattern of activity”) of domestic abuse against women who were members of his
family or household. Domestic-abuse evidence is unique, and for that reason is treated
differently from other evidence. Id., at 161; see also Fraga, 864 N.W.2d at 626-27.
The district court appropriately exercised its discretion in admitting the other-abuse
evidence and took steps to minimize the possibility of unfair prejudice. We see no error.
II. Convictions for the same behavioral incident
Appellant contends that he was improperly convicted of two counts of felony
domestic assault arising from the same behavioral incident and involving the same
victim. Appellant does not contest that two guilty verdicts for felony domestic assault
were returned by the jury, but argues that two “convictions” should not have been
recorded by the district court. He asks that we “vacate the ‘conviction’ for Count 2 and
direct the district court to issue an amended order and warrant of commitment.” The state
concedes that “appellant should not have been ‘convicted’ of both Count 1 and Count 2.”
By statute, a criminal defendant “may be convicted of either the crime charged or
an included offense, but not both.” Minn. Stat. § 609.04 (2014). The Minnesota
Supreme Court has clarified that, when a jury finds a person guilty of multiple offenses
for the same behavioral incident, courts should sentence on only one count, specify for
which conviction a sentence is being imposed, refrain from adjudicating (i.e.,
“accept[ing] and record[ing]”) convictions for additional offenses, and preserve the
additional guilty verdicts for future reference. Spann v. State, 740 N.W.2d 570, 573
6 (Minn. 2007). The supreme court has also held that, where two convictions arising out of
a single behavioral incident are formally adjudicated, section 609.04 should be applied to
vacate one of the formally adjudicated convictions. State v. Jackson, 363 N.W.2d 758,
760 (Minn. 1985).
On the record at the sentencing hearing, the district court stated, “I am not going to
sentence . . . Counts 2 and 3,” but did not specifically address whether one or both of
those counts were being adjudicated. The warrant of commitment appears to reflect two
recorded convictions. We have held that a district court’s pronounced sentence prevails
over an inconsistent record due to clerical error. State v. Staloch, 643 N.W.2d 329, 331
(Minn. App. 2002). Here, it is unclear from the record whether the district court
adjudicated both domestic-assault convictions arising from the single-behavioral-
incident.
It appears that the district court intended the correct result by sentencing appellant
on only one count, but the record is not sufficiently clear. We remand to the district court
with instructions to issue an amended order and warrant of commitment reflecting only
one conviction for felony domestic assault. We also instruct the district court to clearly
record that the second assault count is not formally adjudicated, but that the jury verdict
is preserved pursuant to Spann.
Affirmed in part and remanded.