                          This opinion will be unpublished and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
                                     A15-0107

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                               Thomas Yunmie Quiwonkpa,
                                       Appellant.

                                 Filed December 7, 2015
                                        Affirmed
                                      Hooten, Judge

                              Ramsey County District Court
                                File No. 62-CR-14-4237

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, Eagan, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         On appeal from his convictions of violation of a domestic abuse no contact order

(DANCO) and felony domestic assault, appellant argues that the district court committed
reversible error by (1) admitting highly prejudicial evidence of his prior acts of domestic

abuse, and (2) not allowing him to present the video recording of his statements to police

when he was arrested. We affirm.

                                          FACTS

       Appellant Thomas Yunmie Quiwonkpa was charged with a DANCO violation,

felony domestic assault, and domestic assault by strangulation arising out of an incident

on June 10, 2014. A jury trial was held in September 2014. Viewed in the light most

favorable to the convictions, the following facts were established at trial.

       Appellant and D.S. had been romantically involved since 2008 and are the parents

of two children. Their relationship had a history of domestic abuse. In 2010, appellant

strangled D.S., slammed her against a wall, and called her a “bitch.” In 2011 and 2012,

appellant was not allowed to have any contact with D.S. because a DANCO was in effect

against appellant, but appellant violated the DANCO in 2012. In July 2013, appellant

punched and strangled D.S.       In June 2014, another DANCO was in effect against

appellant, which prohibited appellant from having any contact with D.S.

       On June 9, 2014, D.S. and appellant went to the home of appellant’s mother. D.S.

stayed overnight there with appellant in appellant’s bedroom. On the morning of June

10, while still in appellant’s bedroom, appellant and D.S. got into an argument about gas

money for D.S.’s car. The argument became physical, and appellant assaulted D.S. by

punching her and grabbing her neck. The boyfriend of appellant’s mother broke up the

fight, and D.S. left the house and reported the incident to police.




                                              2
       The jury found appellant guilty of a DANCO violation and felony domestic

assault, but found him not guilty of domestic assault by strangulation. The district court

sentenced appellant to a prison term of one year and one day. This appeal followed.

                                     DECISION

                                             I.

       Appellant argues that the district court abused its discretion by admitting evidence

of appellant’s prior acts of domestic abuse against D.S. “Evidentiary rulings rest within

the discretion of the trial court and will not be reversed absent a clear abuse of

discretion.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006).

       In cases involving domestic abuse, Minn. Stat. § 634.20 (Supp. 2013) governs the

admissibility of evidence of the defendant’s prior domestic abuse. State v. McCoy, 682

N.W.2d 153, 161 (Minn. 2004). “Evidence of domestic conduct by the accused against

the victim of domestic conduct, or against other family or household members, is

admissible unless the probative value is substantially outweighed by the danger of unfair

prejudice . . . .”   Minn. Stat. § 634.20.   Such evidence is commonly referred to as

“relationship evidence.”     State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).

“‘Domestic conduct’ includes, but is not limited to, evidence of domestic abuse, violation

of an order for protection,” and “violation of a harassment restraining order . . . .” Minn.

Stat. § 634.20. “Domestic abuse” includes “physical harm, bodily injury, or assault”

committed against “a family or household member by a family or household member.”

Minn. Stat. § 518B.01, subd. 2(a)(1) (2012).      “Family or household members” include

“persons who have a child in common.” Id., subd. 2(b)(5) (2012).


                                             3
      Over defense counsel’s objection, the district court allowed the state to admit

evidence of appellant’s prior acts of domestic abuse against D.S. and appellant’s 2012

DANCO violation.      The district court warned the prosecutor that this relationship

evidence had to be “limited to what the conviction[s] [were] for” and added, “We’re not

retrying those cases.” D.S. testified that she and appellant were caught in a “cycle” of

domestic abuse. She acknowledged a 2010 incident where appellant punched and choked

her, slammed her against a wall, and called her a “bitch.” She testified that a DANCO

was in place against appellant in 2011 and 2012, and that appellant violated the DANCO

in 2012. D.S. also testified that appellant punched and strangled her in July 2013 at her

residence. When the prosecutor asked, “[I]s it difficult to keep track of the times you’ve

called police for them to come and assist you?” D.S. replied, “Yeah.”

      Appellant does not dispute that the admitted evidence is evidence of “domestic

conduct” under Minn. Stat. § 634.20. His sole argument on appeal is that the probative

value of this evidence was substantially outweighed by the danger of unfair prejudice.

      We conclude that the probative value of the relationship evidence in this case was

high. See State v. Meyer, 749 N.W.2d 844, 850 (Minn. App. 2008) (“Minnesota courts

have recognized the inherent probative value of evidence of past acts of violence

committed, as here, by the same defendant against the same victim.”). Relationship

evidence “illuminates the history of the relationship between a victim and the accused”

and “put[s] the crime charged in the context of the relationship between the two.”

McCoy, 682 N.W.2d at 159. D.S.’s testimony about appellant’s prior acts of domestic

abuse put the current charges into the context of a relationship characterized by cyclical


                                            4
domestic abuse.       Without this testimony, the jurors might have had difficulty

understanding their relationship. D.S. testified that she wanted to stop being a victim

after the 2010 incident but that, despite the ongoing abuse and the DANCOs, she

continued to have contact with appellant because she wanted him to be able to see their

children.    She testified that, at the time of trial, she was reluctant to “go against”

appellant.

       Appellant argues that the state’s case was strong and therefore the state’s need for

the relationship evidence was low.        This argument is unpersuasive.        Relationship

evidence can assist the jury “by providing a context with which it [can] better judge the

credibility of the principals in the relationship.” Id. at 161. D.S.’s credibility was

important to the state’s case for several reasons.       First, D.S. was the state’s sole

eyewitness to the assault, yet she was a hostile witness for the state. She testified for the

state only because she was under subpoena, she refused to review police reports, and at

one point during her testimony she asked whether she could “excuse [herself] from the

courtroom.” Second, D.S. tried to minimize appellant’s abusive conduct on June 10,

2014, by stating that they fought each other. Third, D.S.’s testimony contradicted some

of her statements to the police officer who interviewed her on the day of the assault. For

example, she told police that appellant strangled her during the assault, but at trial she

claimed he did not. Fourth, the boyfriend of appellant’s mother testified on behalf of

appellant, and his testimony contradicted D.S.’s account of the events on June 10, 2014.

These inconsistencies and competing stories tended to weaken the state’s case, and the

relationship evidence provided support for the state’s claim that D.S.’s version of the


                                             5
incident at the time she first reported it to police was more credible than the version she

presented at trial.

       We conclude that the danger of unfair prejudice of the relationship evidence in this

case was low. “When balancing the probative value against the potential prejudice,

unfair prejudice is not merely damaging evidence, even severely damaging evidence;

rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party

an unfair advantage.” Bell, 719 N.W.2d at 641 (quotation omitted). A district court’s

cautionary instruction “lessen[s] the probability of undue weight being given by the jury

to the evidence.” State v. Lindsey, 755 N.W.2d 752, 757 (Minn. App. 2008) (quotation

omitted), review denied (Minn. Oct. 29, 2008). Here, the district court gave the jury a

cautionary instruction both immediately prior to D.S.’s testimony about the relationship

evidence and during final instructions. The district court instructed the jury that the

relationship evidence was being offered only for the “limited purpose” of shedding light

on the relationship between appellant and D.S. and warned the jury that it could convict

appellant only for the charged conduct, not for any past conduct. “[Appellate courts]

presume that jurors follow the [district] court’s instructions.” State v. Budreau, 641

N.W.2d 919, 926 (Minn. 2002). Defense counsel reinforced this cautionary instruction

during his closing argument.     Moreover, as the state points out, the jury acquitted

appellant of domestic assault by strangulation, which strongly suggests that the jury

convicted appellant of the other two charged offenses based only on his conduct on June

10, 2014.




                                            6
       Because the probative value of the relationship evidence was not substantially

outweighed by the danger of unfair prejudice, the district court did not abuse its

discretion in admitting the relationship evidence.

                                            II.

       In order to bolster his defense that he did not have any contact with D.S. on the

date of the assault, appellant sought to admit evidence of his alleged “surprised

demeanor” when he was arrested by introducing the statements he made to the arresting

officer. The district court allowed defense counsel to introduce these statements while

cross-examining the arresting officer, but did not allow defense counsel to play for the

jury a portion of the squad car video that contained the statements. The district court did

not allow defense counsel to publish the video because it concluded, after viewing the

video, that doing so would be “duplicative and a waste of the jury’s time.”

       The following exchange took place between defense counsel and the arresting

officer on cross-examination:

              Q: [Y]ou expressed your opinion that you didn’t feel
              [appellant] was surprised when he was arrested, correct?
              A: Yes, sir.
              Q: But isn’t it true that after his arrest he expressed his
              surprise to you?
              A: He never directly said I’m surprised from my recollection.
              Q: Did he say man, what is going on?
              A: I believe so.
              Q: Did he say what am I being arrested for?
              A: Yes, he asked that question.
              Q: Did he ask you why am I under arrest?
              A: My best recollection, yes. He asked that question.
              Q: And did he say this doesn’t make sense, sir?
              A: I believe, from my recollection yes he said that.
              Q: And he told you he was home all day, correct?


                                             7
              A: Yes, sir.

On appeal, appellant argues that the district court abused its discretion by not allowing

defense counsel to present the video recording of his statements. He claims that the

exclusion of this evidence infringed upon his right to present a complete defense.

       “Every criminal defendant has a right to fundamental fairness and to be afforded a

meaningful opportunity to present a complete defense.” State v. Crims, 540 N.W.2d 860,

865 (Minn. App. 1995) (quotation omitted), review denied (Minn. Jan. 23, 1996). “The

right to present a defense includes the opportunity to develop the defendant’s version of

the facts, so the jury may decide where the truth lies.” Id. But, this right is not without

limits, and the defendant must comport with the rules of evidence. State v. Richards, 495

N.W.2d 187, 195 (Minn. 1992).

       Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Minn. R. Evid. 401. But, evidence that is otherwise

relevant “may be excluded if its probative value is substantially outweighed by . . .

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Minn. R. Evid. 403.

       Appellant argues that the video was not cumulative because “[h]earing the police

officer admit [that] appellant made the statements simply is not the same as actually

seeing appellant, hearing his confused and questioning tone[,] and observing his body

language and facial expressions.” We disagree. The video was marked as a court exhibit

and is thus part of the record on appeal. Minn. R. Civ. App. P. 110.01. Defense counsel


                                            8
sought to play the first four minutes of the video, during which appellant is escorted to

the squad car and placed in the backseat of the squad. The first two minutes of the video

show appellant being escorted to the squad. Once inside the squad, appellant’s face

comes in and out of the frame, and his facial expressions while speaking can only be seen

when he asks, “Sir, why am I being arrested though?”           With regard to the other

discussion between appellant and the police officer in the first four minutes, appellant’s

face is not in view of the camera because he is leaning forward while speaking to the

officer, which makes it difficult to assess his body language or facial expressions when

he makes the statements questioning his arrest. Although the audio portion of the video

does reveal appellant’s tone of voice, this additional evidence is of limited probative

value where appellant’s statements in the video are not materially different from what

defense counsel elicited through the officer on cross-examination. The district court did

not abuse its discretion by concluding that it would be a waste of time and a needless

presentation of cumulative evidence to show the video and that these considerations

substantially outweighed any probative value of the video. See State v. Buchanan, 431

N.W.2d 542, 551 (Minn. 1988) (holding there was no abuse of discretion where excluded

evidence duplicated other evidence and was thus cumulative and delaying).

      Even if the district court erred in excluding this evidence, any error was harmless

because it did not “substantially influence[] the jury’s decision.” State v. DeShay, 669

N.W.2d 878, 888 (Minn. 2003) (quotation omitted). As discussed in the next section,

there was substantial evidence supporting the convictions. Moreover, the exclusion of

the video did not affect appellant’s right to present a complete defense for several


                                            9
reasons. First, appellant’s statements at the time of his arrest were received into evidence

through defense counsel’s cross-examination of the officer. Second, defense counsel

cross-examined the officer regarding his failure to check D.S.’s phone records from the

date of the assault, even though D.S. told the officer on that date that appellant had called

repeatedly after the assault. Third, defense counsel cross-examined D.S. and impeached

her credibility with a prior recantation of a domestic-assault allegation. Fourth, defense

counsel presented testimony from the boyfriend of appellant’s mother, who claimed that

appellant did not assault D.S. and who contradicted D.S.’s claims that she spent the night

with appellant on June 9 and had contact with him on June 10. Based upon this record,

appellant was not inhibited in his defense or prejudiced by the exclusion of the four-

minute video.

                                            III.

       In his pro se supplemental brief, appellant argues that (1) the evidence was

insufficient for the jury to convict him of a DANCO violation and felony domestic

assault, and (2) the district court erred by allowing the state to impeach appellant under

Minn. R. Evid. 609. These arguments lack merit.

       When reviewing the sufficiency of the evidence, we undertake “a painstaking

analysis of the record to determine whether the evidence, when viewed in the light most

favorable to the conviction, was sufficient” to support the conviction. State v. Ortega,

813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). “[W]e will not disturb the verdict

if the jury, acting with due regard for the presumption of innocence and the requirement

of proof beyond a reasonable doubt, could reasonably conclude that the [appellant] was


                                             10
guilty of the charged offense.” Id. The facts as presented in the facts section are viewed

in the light most favorable to the guilty verdicts.

       The DANCO statute provides that whoever violates a DANCO “within ten years

of the first of two or more previous qualified domestic violence-related offense

convictions” is guilty of a felony. Minn. Stat. § 629.75, subd. 2(d) (Supp. 2013). Prior to

trial, appellant stipulated that he had at least two prior qualified domestic violence-related

convictions within the statutory time period. At trial, the officer testified that there was a

DANCO in effect against appellant in June 2014, which had been served upon appellant.

And, D.S. testified that she had contact with appellant on June 9 and June 10. When

viewed in the light most favorable to the guilty verdict, the evidence at trial established

that appellant violated the DANCO by having contact with D.S.

       The domestic assault statute provides that whoever intentionally inflicts bodily

harm upon a family or household member “within ten years of the first of any

combination of two or more previous qualified domestic violence-related offense

convictions” is guilty of a felony. Minn. Stat. § 609.2242, subds. 1, 4 (2012). As noted

above, appellant stipulated to the prior convictions. D.S. is a “family or household

member” within the meaning of the statute because she and appellant have children in

common. Minn. Stat. § 518B.01, subd. 2(b)(5). At trial, D.S. testified that appellant

punched her and grabbed her neck on June 10, 2014. The jury also heard the audio of

D.S.’s 911 call, in which she stated that appellant punched her head, pulled her hair, and

scratched her neck. Moreover, the jury viewed photographs of D.S. taken on the date of

the assault, which showed fresh scratch marks on D.S.’s neck, consistent with her


                                              11
reported injuries. Viewed in the light most favorable to the guilty verdict, the evidence at

trial established that appellant intentionally inflicted bodily harm upon D.S. on June 10,

2014.

        Finally, appellant asserts that the district court erroneously admitted evidence of

appellant’s prior acts of domestic abuse under Minn. R. Evid. 609, but appellant is

mistaken. As analyzed above in Part I, the district court properly admitted relationship

evidence under Minn. Stat. § 634.20.

        Affirmed.




                                            12
