Ramsey County District Court File No. 62-CR-11-312
Lori Swanson, Attorney General, St. Paul, Minnesota; and Sara R. Grewing, St. Paul City Attorney, Clifford R. Berg, Assistant City Attorney, St. Paul, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Bjorkman, Judge.
Appellant challenges his gross-misdemeanor convictions for violating a domestic-abuse no-contact order (DANCO) and an order for protection (OFP), arguing that (1) the DANCO statute is unconstitutional; (2) the district court plainly erred by not instructing the jury on the knowingly violated element of the offenses; (3) sufficient evidence does not support his convictions; and (4) the district court abused its discretion by admitting relationship evidence and portions of a police officer's expert testimony. We affirm the district court's conclusion that the DANCO statute is constitutional. But because the district court plainly erred by failing to instruct the jury on the knowingly violated element of the offenses, we reverse and remand.
On September 10, 2010, appellant Lor Yang was convicted of second-degree assault with a dangerous weapon. The district court issued a DANCO and OFP prohibiting Yang from directly or indirectly contacting victim M.H.
On January 10, 2011, M.H. ran out of her house after family members overheard her tell someone on the phone that she was going to get her cell phone from Yang. O.Y., M.H.'s sister-in-law, called police and reported a possible violation of the orders.
Officers Daniel King and Heather Kuchinka went to M.H.'s home to investigate. After the officers arrived, O.Y. received a call and learned that M.H. and Yang were at a nearby residence. The officers drove to the address; as they pulled up to the residence, they saw two women and one man standing outside. Officer King testified that the individuals were standing around and looked like they were talking. Officer Kuchinka stated the individuals appeared to be speaking to each other; she could hear voices but did not know who was speaking.
As the officers approached the residence, the man ran away. Officer Kuchinka spoke with the two women, identifying one of them as M.H. M.H. was uncooperative and refused to answer Officer Kuchinka's questions. Officer King pursued the man, following footprints in the fresh snow, and found Yang hiding in a garage a few houses away.
Yang was charged with gross-misdemeanor violations of the DANCO and OFP and misdemeanor obstructing legal process. A jury trial was held. M.H. did not testify. Sergeant Sylvia McPeak testified that, in her experience with the family-violence unit, victims of domestic violence usually do not cooperate with investigations. Sergeant McPeak also expressed her belief that the state had the evidence to prove Yang violated the two orders without interviewing M.H.
The state offered testimony regarding the conduct underlying Yang's assault conviction as relationship evidence under Minn. Stat. § 634.20 (2010). Specifically, O.Y. testified that when M.H. was 16 or 17 years old and seven-months pregnant with Yang's child, Yang beat her with a metal stick, causing injuries that required emergency medical care.
Yang testified that M.H. is his girlfriend and the mother of his child. He stated that on January 10, he went to visit K.M. at her residence. But when he arrived, both K.M and M.H. came out of the house. K.M. had not told Yang that M.H. would be there. When Yang saw M.H., he immediately left without speaking to her. Yang testified that he did not see the police but ran away because of the DANCO and OFP. On cross- examination, Yang admitted that when M.H. was 17 and pregnant with his child, he beat her with a metal rod and was convicted of second-degree assault.
Yang stipulated that he was subject to the DANCO and the OFP, knew of the orders, and had been convicted of a qualified domestic-violence-related offense within the past ten years. The district court instructed the jury that the elements of a gross-misdemeanor DANCO violation are
first, there was an existing domestic abuse no-contact order. In this case, that has been stipulated to by the parties. Second, the defendant violated a term or condition of the order. Third, the defendant knew of the existence of the order; again, that has been stipulated to by the parties. Fourth, ...