Heard, considered, and decided by the court en banc.
The questions and arguments of attorneys are not evidence. The court of appeals erred in holding that evidence of similar prior conduct was received when questions regarding the conduct led to denials by the witnesses.
Minnesota Statutes § 634.20 (2002) is unambiguous-it does not require that evidence of similar conduct of domestic abuse be established by clear and convincing evidence to be admitted.
Evidence of similar conduct by the accused against an alleged victim of domestic abuse may be admitted under Minn. Stat. § 634.20 without first being established by clear and convincing evidence.
The opinion of the court was delivered by: Gilbert, Justice.
Took no part: Blatz, C.J. and Hanson, J.
In this case, we are asked to resolve whether evidence of similar conduct by the accused against an alleged victim of domestic abuse may be admitted against the accused under Minn. Stat. § 634.20 (2002) without first being established by clear and convincing evidence. Respondent Tyrone S. McCoy was convicted of misdemeanor domestic assault of his wife. Prior to trial, the district court ruled that the state could admit evidence under Minn. Stat. § 634.20 that respondent had previously assaulted his wife. The court of appeals reversed respondent's conviction, holding that evidence of prior similar conduct must first be established by clear and convincing evidence to be admitted at trial. State v. McCoy, 668 N.W.2d. 425, 430 (Minn. App. 2003). Based on the record before us, we conclude that no evidence of the alleged prior domestic assault was ever admitted. We also conclude that evidence of similar conduct by the accused against an alleged victim of domestic abuse may be admitted under Minn. Stat. § 634.20 without being established by clear and convincing evidence. For these reasons, we reverse.
The facts of the case are as follows. On December 31, 2001, at approximately 8:00 p.m., St. Paul police responded to a 911 call from the home of respondent and his wife. Respondent's wife, who was crying, stammering, and visibly upset, told an officer that respondent had beaten her with a belt when he came home to gather some clothes while he was staying with a friend for a few days because the two of them were fighting. She told respondent that some of the sweaters he was grabbing were hers. Respondent knocked a telephone out of her hand, saying, "Bitch, you don't own anything here." His wife picked up the telephone and attempted to call the police, but respondent grabbed it and hung it up. Respondent picked up a belt and struck her, screaming at her, "I told you not to call the police. This is for calling the police." Respondent and his wife's four children and at least one other child were present at the time.
A female officer took a photograph of a welt on respondent's wife's upper thigh. A photograph of the belt was also taken, and both photographs were ultimately received as evidence at trial. On January 2, 2002, 2 days after the incident, respondent's wife talked via telephone to a member of the St. Paul Police Department's Family Violence Unit and confirmed the details of her earlier report to the police. Specifically, she stated that her husband had "whooped her with a belt" and that as a result she had suffered welts and bruises.
On June 20, 2002, respondent was charged with misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1 (2002), and interference with an emergency call in violation of Minn. Stat. § 609.78, subd. 2 (2002). Shortly thereafter, on July 1, 2002, respondent's wife submitted a letter to officials at the Ramsey County courthouse, which stated that the information she had given in the police report was false and that she had made up the allegations "out of anger and spite" because she had found out that her husband was cheating on her.
Prior to trial, the state moved for the ability to admit evidence that respondent had also assaulted his wife, then-girlfriend, on March 15, 1997, as evidence of prior similar conduct under Minn. Stat. § 634.20.*fn1 The state provided the district court with copies of police report and medical records from treatment that respondent's wife received at United Hospital on that date. Respondent objected, arguing that this was a prior bad act that had to be proven by clear and convincing evidence under Minn. R. Evid. 404(b).*fn2 The court ruled that evidence of the alleged 1997 assault was admissible because its probative value was not outweighed by the danger of unfair prejudice, concluding that it could apply Minn. Stat. § 634.20 "without getting into" the requirements of Rule 404(b).
During trial, respondent's wife testified that she remembered calling the police and speaking to two officers who came to her house on December 31, 2001, but claimed that respondent had not interfered with her call. She also admitted having a picture taken of a bruise, but claimed not to remember what she told the officers when they arrived and did not remember what she told the Family Violence Unit officer she talked to 2 days after the alleged assault. She later testified, however, that what she had told the police about her ...