                         This opinion will be unpublished and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                        UNPUBLISHED OPINION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.


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§ 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.




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                                     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


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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.




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