                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0037

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                Kevin Lee Savoie, Sr.,
                                     Appellant.

                              Filed November 24, 2014
                                      Affirmed
                                  Bjorkman, Judge


                              Rice County District Court
                               File No. 66-CR-12-2407

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Paul Beaumaster, Rice County Attorney, Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges his conviction of making terroristic threats, arguing that the

prosecutor committed misconduct by eliciting inadmissible testimony.        In a pro se
supplemental brief, appellant also challenges the sufficiency of the evidence supporting

his conviction. We affirm.

                                         FACTS

       Appellant Kevin Savoie and M.P. dated for 27 years and have two adult children.

On August 26, 2012, Savoie, M.P., and M.P.’s current boyfriend, R.O., were doing yard

work at the home of Savoie and M.P.’s son. M.P. was raking and Savoie was using a tree

saw to help R.O. remove a tree from the fence. As they worked, M.P. asked Savoie about

a missing camera, and Savoie became angry. He yelled, “I’m not a thief,” and started

walking toward her with the tree saw in his hand. R.O. told Savoie to “back off,” and

Savoie said, “Shut the f—k up, O[.], or I’ll stick this in your throat,” indicating the tree

saw. Savoie continued to approach M.P., and she said, “Kevin, back off, back off.”

Savoie slapped her on the left side of the face. M.P. went back to raking, and Savoie

followed her and continued yelling. As she approached the end of the driveway, M.P.

stopped raking, and as she stood there, Savoie waved the saw toward her, telling her to

“shut [her] mouth or he was gonna bust [her] in [her] mouth,” then, “I’ll kill you, bi—h,

and I’ll bury you.”

       The neighbors across the street, D.R.P. and M.L.P., observed the altercation and

called 911. D.R.P. continued to observe and describe events to the operator, including

that Savoie was waving the saw around and that Savoie was “getting into her face pretty

hardcore.” The police arrived shortly after Savoie told M.P. he would kill and bury her.

When Officer Bryan Johnson arrived at the scene, Savoie approached him, carrying the

saw and yelling. Officer Johnson ordered Savoie to drop the saw, and he complied.


                                             2
Additional officers arrived shortly thereafter, took a statement from M.P., and arrested

Savoie.

       Savoie was charged with second-degree assault and making terroristic threats. At

his jury trial, Savoie testified that he argued with and insulted M.P. and that she

threatened him with the rake, but that he did not threaten her. At Savoie’s request, the

district court instructed the jury on self-defense. The jury found Savoie guilty of making

terroristic threats but acquitted him of the assault charge. The district court sentenced

Savoie to 30 months’ imprisonment. Savoie appeals.

                                      DECISION

I.     The prosecutor did not commit misconduct by eliciting inadmissible
       testimony.

       When, as here, an appellant claims prosecutorial misconduct based on unobjected-

to conduct, we review under a modified plain-error standard. See State v. Ramey, 721

N.W.2d 294, 299-300, 302 (Minn. 2006); see also Minn. R. Crim. P. 31.02. Under this

standard, an appellant must demonstrate that the prosecutor’s conduct was erroneous and

the error was plain. Ramey, 721 N.W.2d at 302. The burden then shifts to the state to

prove that the error did not affect the appellant’s substantial rights. Id.

       Savoie argues that the prosecutor committed misconduct by eliciting testimony

from Officer Johnson and M.P. that suggests Savoie has a criminal record.            It is

misconduct for a prosecutor to ask questions calculated to elicit “clearly inadmissible

evidence.” State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). The prosecutor also has

a duty to prepare the state’s witnesses “to avoid inadmissible or prejudicial statements.”



                                               3
State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). Testimony suggesting that a

defendant has a criminal record or frequent contacts with police generally is inadmissible.

See State v. Strommen, 648 N.W.2d 681, 687-88 (Minn. 2002); State v. Richmond, 298

Minn. 561, 562-63, 214 N.W.2d 694, 695 (1974). But references to prior crimes or

police contacts are proper if they elucidate the history of the relationship between the

defendant and alleged victim or bear on an element of the offense. See Minn. Stat.

§ 634.20 (2012) (permitting evidence of defendant’s prior domestic abuse or other

“domestic conduct”); State v. Halverson, 381 N.W.2d 40, 43 (Minn. App. 1986) (noting

that references to defendant’s incarceration were relevant to caller’s identity in terroristic-

threats case because calls stopped during his incarceration), review denied (Minn. Mar.

21, 1986); cf. State v. Valentine, 787 N.W.2d 630, 641 (Minn. App. 2010) (explaining

that testimony that officer knows defendant from prior contacts “is error if the

defendant’s identity is not an issue in the case”), review denied (Minn. Nov. 16, 2010).

Even improper references to a defendant’s criminal history or police contacts require

reversal only when it is likely that the testimony substantially affected the jury’s decision.

McNeil, 658 N.W.2d at 232; see also Valentine, 787 N.W.2d at 641 (holding that

improper prior-police-contacts testimony was not prejudicial because it was “incidental”

and the evidence of guilt was overwhelming).

       Officer Johnson’s testimony

       Savoie first argues that the prosecutor improperly elicited testimony from Officer

Johnson that he knew Savoie in his capacity as a police officer.            We consider the

challenged testimony in context.


                                              4
      When asked about his arrival at the scene, Officer Johnson stated that he pulled up

to the house and “they were standing in the yard.” The prosecutor asked the officer to

explain:

             PROSECUTOR: And when you say they, who was they?
             Who was there?

             OFFICER: I saw two people standing there who I recognized
             as Kevin Savoie and [M.P.].

             PROSECUTOR: And do you see the person you’re referring
             to as Kevin Savoie in the courtroom today?

             OFFICER: Yes, I do.

             PROSECUTOR: Can you point him out, please, and tell us
             what he’s wearing?

             [Officer Johnson identifies Savoie.]

             PROSECUTOR: And you knew both Mr. Savoie and [M.P.]
             on sight?

             OFFICER: Yes. I’ve had contact with them in my capacity as
             a police officer in the past.

      We discern no impropriety in this line of questioning. The prosecutor initially

sought to clarify vague testimony and then established that Officer Johnson could reliably

identify Savoie—both proper purposes. Officer Johnson’s statement that he knew Savoie

in his capacity as a police officer was part of his identification and focused as much on

M.P. as on Savoie.

      Moreover, it is highly unlikely that the challenged testimony influenced the jury to

find Savoie guilty of making terroristic threats. The testimony was brief, while the

evidence against Savoie was strong. M.P.’s testimony was substantially consistent with


                                            5
her initial statement to police, the 911 call, and both neighbors’ testimony. The jury did

not simply find Savoie guilty based on an inferred propensity toward criminal behavior,

as evidenced by its not-guilty verdict on the assault charge.

       On this record, we conclude that Savoie’s plain-error challenge to the prosecutor’s

examination of Officer Johnson fails.

       M.P.’s testimony

       Savoie also argues that the prosecutor improperly elicited testimony from M.P.

that Savoie has a history of violent conduct toward her because he did not “place his

character at issue.” We again consider the challenged testimony in context.

       M.P. testified that Savoie threatened to kill and bury her, and the prosecutor asked

whether there was anything about “the way [he] said these things” or about their

relationship that would have led her to believe “that he was joking or not serious.” M.P.

responded, “No, because we had a 27-year, volatile relationship . . . . He made threats, he

usually went through with them.”        The prosecutor also asked M.P. how Savoie’s

statements made her feel. She responded that she was scared of Savoie and afraid that he

would “beat the hell out of me or he’d stab me with the saw that he had. Kevin’s a very

violent person.”

       This evidence had multiple proper purposes. First, the evidence is relevant to

whether Savoie intended to cause M.P. fear, an element of both charged offenses. See

Minn. Stat. §§ 609.02, subd. 10 (defining assault), .713, subd. 1 (defining terroristic-

threats) (2012); State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975)

(stating that the effect of a terroristic threat on the victim is not an essential element of


                                             6
the crime but is circumstantial evidence relevant to the element of the defendant’s intent).

Second, M.P.’s testimony about Savoie’s past violence toward her is admissible

relationship evidence under Minn. Stat. § 634.20. Such evidence is generally admissible

to illuminate the relationship between the accused and the alleged victim and provide a

context with which the jury can “better judge the credibility of the principals in the

relationship.” See State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004); see also State v.

Harmann, 805 N.W.2d 883, 890 (Minn. App. 2011) (stating that relationship evidence

includes evidence of a “strained relationship” that puts the incident between the accused

and the victim in context), review denied (Minn. Jan. 17, 2012). Savoie argued to the

jury that M.P. was not credible because she overstated his conduct toward her and

minimized her conduct toward him. M.P.’s testimony about Savoie’s past threats and

violent conduct toward her provided a context for the jury to evaluate that defense.

       But even if M.P.’s testimony exceeded the permissible limits of such evidence, it

did not impair Savoie’s substantial rights. As we discussed above, the evidence against

Savoie was strong and the jury’s verdicts reflect reasoned examination of the evidence; it

is unlikely that M.P.’s testimony unfairly influenced the jury’s verdict. Because the

record indicates neither error nor prejudice, we conclude Savoie’s plain-error challenge to

the prosecutor’s examination of M.P. fails.

II.    Sufficient evidence supports Savoie’s conviction.

       When reviewing the sufficiency of the evidence supporting a jury verdict, we are

“limited to ascertaining whether, given the facts in the record and the legitimate

inferences that can be drawn from those facts, a jury could reasonably conclude that the


                                              7
defendant was guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465, 476

(Minn. 2004) (quotation omitted). We “will not disturb the verdict if the jury, acting with

due regard for the presumption of innocence and for the necessity of overcoming it by

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

proven guilty of the offense charged.” Id. at 476–77.

       Savoie argues that insufficient evidence supports his conviction because the

testimony of M.P., D.R.P., and M.L.P. was inconsistent with other evidence and therefore

not credible. We disagree. The jury heard all three witnesses’ testimony, including the

inconsistencies Savoie claims, and accepted their version of events. We will not second-

guess the jury’s credibility determinations. Because Savoie does not dispute that their

testimony, if believed, amply establishes the elements of making terroristic threats, his

sufficiency-of-the-evidence challenge fails.

       Affirmed.




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