                           This opinion will be unpublished and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
                                      A15-0736

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                 Dante Christopher Horton,
                                        Appellant.

                                    Filed May 16, 2016
                                         Affirmed
                                      Stauber, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-21926

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Stauber,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         Appellant challenges his convictions of attempted first-degree murder and

prohibited person in possession of a firearm, arguing that the district court abused its

discretion by admitting testimony about (1) a prior incident between appellant and the
victim, despite lack of notice and clear and convincing evidence and (2) threatening

conduct by one of appellant’s witnesses toward the victim, without evidence that

appellant was implicated in the conduct. We affirm.

                                         FACTS

       Appellant Dante Christopher Horton was charged with attempted first-degree and

second-degree murder and prohibited person in possession of a firearm arising out of an

incident that occurred on July 5, 2013. Sometime before July 5, 2013, Horton and the

victim, D.T., had an interaction that left D.T. angry with Horton. On July 5, 2013, D.T.

went to a convenience store and saw Horton inside the store. D.T. confronted Horton

outside the store, and D.T. and Horton, assisted by M.H., began fighting. D.T. heard

Horton tell M.H. to “get the gun out of the car.” D.T. ran to Horton’s car to prevent M.H.

from getting a gun, but Horton leaned into the driver’s side and appeared to search for

something, so D.T. backed away and disappeared. Horton and M.H. drove away in a

gray SUV-type car. D.T. reappeared shortly afterward and rode his bike away from the

store. A security camera recorded the incident, and the recording was introduced at trial.

       D.T. rode his bike directly to his apartment about three minutes away from the

store. He entered his apartment building through the rear security door, which was not

locked because the door was broken. As he put his key in the door to his apartment,

someone said his name. He turned around and recognized Horton; Horton was holding a

handgun and began shooting at him. Horton fired several times, hitting D.T. in the

buttocks.




                                            2
       D.T. consistently identified the shooter as Horton in statements to his family and

to responding police officers. D.T.’s sister, De.T., had been sitting in the parking lot

outside the apartment building. She did not see her brother arrive home, but she saw a

car pull into the parking lot and a man, whom she later identified as Horton, get out of the

car and run into the rear door of the apartment building, followed by the sound of several

gunshots. She described the car as a gray or silver small SUV. De.T. was slightly

acquainted with Horton and identified him from a photographic lineup.

       At trial, the state sought to introduce evidence of the earlier incident between D.T.

and Horton, alleging that Horton had robbed D.T. The state wanted to offer the evidence

to show a motive for the shooting and to confirm identification of Horton as the shooter.

Horton objected to introduction of the evidence. The district court found that the state

failed to give a timely notice and that the incident was not supported by clear and

convincing evidence, both requirements of Minn. R. Evid. 404(b), which governs

admission of evidence of other crimes, wrongs, or bad acts. The district court also found

that it was “character evidence” that was unfairly prejudicial. But because the district

court concluded that the state should be able to provide “some kind of a context,” it

permitted D.T. to describe the incident as an altercation in which D.T. felt he was

wrongly treated. Finally, the district court concluded that it was “relationship evidence”

and “[t]he fact that there was a strained relationship between [Horton] and [D.T.] is

relevant and admissible.” Ultimately, D.T. testified that he had “an altercation with

[Horton], as far as there was a misunderstanding between us,” he “had some personal




                                              3
thoughts about him . . . as far as a situation that [they] hadn’t dealt with,” and he was

“mad” at him.

       At trial, D.T. testified that he saw M.H., whom he did not know before the fight at

the convenience store, shortly after the shooting. He said that he felt “threatened” by

M.H. and reported it to the police. The district court admitted the testimony over

Horton’s objection.

       Horton was convicted by a jury of all three offenses and sentenced to concurrent

sentences of 230 months and 60 months on the attempted first-degree murder and

prohibited-person convictions. This appeal followed.

                                      DECISION

                                              I.

       Horton argues that the district court abused its discretion by admitting prejudicial

Rule 404(b)-type evidence for which the state had not given the required notice. Under

Minn. R. Evid. 404(b), evidence of other crimes, wrongs, or bad acts “is not admissible to

prove the character of a person in order to show action in conformity therewith,”

although it is admissible for certain other purposes. Rule 404(b) sets out a procedure that

must be followed before such evidence can be admitted, including notice to the

defendant.

       We review the district court’s evidentiary decisions for an abuse of discretion.

State v. Riddley, 776 N.W.2d 419, 424 (Minn. 2009). “On appeal, the defendant has the

burden of proving both that the [district] court abused its discretion in admitting the




                                              4
evidence and that the defendant was thereby prejudiced.” State v. Nunn, 561 N.W.2d

902, 907 (Minn. 1997).

       The district court admitted the testimony referring to the earlier incident between

Horton and D.T. as “relationship evidence.” Although “relationship evidence” often

refers to Minn. Stat. § 634.20 (2014), which permits admission of evidence “of similar

conduct by the accused against the victim of domestic abuse,” caselaw also establishes

another, non-domestic type of relationship evidence, which can be offered to show “the

strained relationship between the accused and the victim.” State v. Loving, 775 N.W.2d

872, 880 (Minn. 2009) (quotation omitted); State v. Hormann, 805 N.W.2d 883, 890

(Minn. App. 2011), review denied (Minn. Jan. 17, 2012). This type of evidence does not

require a Rule 404(b) notice. Id. But the district court must find clear and convincing

evidence of the defendant’s prior conduct. Id.

       The district court found that the state had not shown by clear and convincing

evidence that Horton robbed D.T. two months before the charged crime, but concluded

that it was permissible to establish some kind of context for the strained relationship

between the two. The district court cautioned the state that D.T. was not to discuss

robbery or “push too far on what that strained relationship was about.”

       The district court abused its discretion by admitting evidence about a strained

relationship after it found that there was not clear and convincing evidence of the earlier

incident. See id. But Horton has the burden of showing not only that the court abused its

discretion but also that he was prejudiced by the court’s action. “[U]nfair prejudice is

evidence that persuades by illegitimate means, giving one party an unfair advantage.”


                                             5
State v. Swinger, 800 N.W.2d 833, 839 (Minn. App. 2011), review denied (Minn. Sept.

28, 2011). D.T.’s statements, referring to an “altercation,” “a misunderstanding,”

“personal thoughts” about an unresolved “situation,” and a feeling of being “mad,” are

too general to be prejudicial, particularly after the jury viewed the security recording of a

fistfight between D.T. and Horton. Horton has failed to establish that he was prejudiced

by this very limited testimony.

                                             II.

       Horton argues that the district court abused its discretion by permitting D.T. to

testify that he encountered M.H. two days after the shooting and that D.T. felt threatened

by that encounter. D.T. stated that he went home and reported the encounter to the police

and an investigator for the county. D.T. did not testify about the subject matter of the

encounter. Horton argues that this evidence was both irrelevant and prejudicial because

M.H.’s conduct was not tied to Horton but introduction of the evidence may have caused

the jury to feel that he was the source of the threat. The state asserts that the evidence

was introduced to show that M.H., who was Horton’s alibi witness, was biased based on

D.T.’s feeling of being threatened.

       “Bias is a catchall term describing attitudes, feelings, or emotions of a witness that

might affect her testimony, leading her to be more or less favorable to the position of a

party for reasons other than the merits.” State v. Lanz-Terry, 535 N.W.2d 635, 640

(Minn. 1995) (quotation omitted).

              Evidence of bias may properly show hatred or enmity between
              a witness and a party. The partiality or bias of a witness is
              always relevant as discrediting the witness and affecting the


                                              6
              weight of his testimony. . . [E]xtrinsic evidence of
              nonconviction misconduct may be admitted to show that a
              witness is motivated by bias, interest or influence.

Id. (quotations and citations omitted).

       Generally, threats made to a witness are introduced to demonstrate why a witness

is reluctant to testify, changes his story, or lacks credibility. See State v. McArthur, 730

N.W.2d 44, 51-52 (Minn. 2007) (discussing probative value of evidence of threats or

fears). The district court, when deciding whether evidence of threats may be introduced,

must make “case-by-case determinations,” and must “fashion appropriate safeguards in

the event such evidence is admitted.” Id. at 52.

       D.T. was not hesitant about testifying and had not changed his story. But the

evidence was relevant to M.H.’s credibility as an alibi witness because it tended to show

that he was hostile to D.T. and aligned with Horton’s interests. As such, the evidence is

probative. Horton has the burden of demonstrating prejudice; it is unlikely that this

limited testimony “substantially influenced the jury’s decision.” Loving, 775 N.W.2d at

879.

       Affirmed.




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