                        This opinion will be unpublished and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
                                   A15-1096

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                Laco Knockola West,
                                     Appellant.

                              Filed September 12, 2016
                                      Affirmed
                                  Halbrooks, Judge


                          Washington County District Court
                             File No. 82-CR-14-3624

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Stillwater,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Hooten, Judge.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges his conviction of felony violation of an order for protection

(OFP), arguing that the cumulative effect of several alleged errors deprived him of his

due-process right to a fair trial. We affirm.

                                          FACTS

       On March 28, 2014, the district court issued an emergency ex parte OFP against

appellant Laco Knockola West. The OFP prohibited West from having contact with his

ex-girlfriend, A.L., “whether in person, with or through other persons, by telephone, mail,

e-mail, through electronic devices, social media, or by any other means.” The district

court granted the OFP for a minimum of two years.

       From August 6, 2014, to August 23, 2014, West sent approximately 48 text

messages to A.L. The text messages mainly consisted of incoherent ramblings in which

West discussed his opinions regarding A.L. and the OFP, his children, and sexually

explicit song lyrics that he wrote. In some of the text messages, West referred to himself

as L.C., which is his nickname. West also left two voicemail messages for A.L. during

this time period.

       A.L. initially delayed going to the police because she “was hoping [West] would

go away.” But after thinking about it and speaking with her family, A.L. went to the

police department to report West’s contact with her.

       The state subsequently charged West with one count of felony violation of an

OFP.    The jury heard the foregoing evidence at trial.      Deputy Timothy Schmidtke


                                                2
testified that he personally served the OFP on West while West was incarcerated at the

Minnesota Correctional Facility in Faribault.        The district court also allowed the

prosecutor to introduce relationship evidence under Minn. Stat. § 634.20 (2014) over

West’s objection.    West chose not to testify after the district court ruled that the

prosecutor would be allowed to impeach him with three prior convictions if he testified.

The jury found West guilty. This appeal follows.

                                      DECISION

                                              I.

       West argues that the district court committed reversible plain error by not

providing a specific unanimity instruction to the jury because the jury heard evidence of

multiple acts that violated the OFP. West’s counsel neither objected nor proposed that

the district court should instruct the jury that it had to agree unanimously on which

specific incident violated the OFP. A defendant’s failure to propose a specific jury

instruction generally constitutes a forfeiture of that issue on appeal. State v. Vance, 734

N.W.2d 650, 654 (Minn. 2007). But appellate courts have discretion to consider a claim

of unobjected-to error “if there was plain error affecting substantial rights or an error of

fundamental law in the jury instructions.” State v. Crowsbreast, 629 N.W.2d 433, 437

(Minn. 2001) (quotation omitted). Under the plain-error doctrine, West must show that

there was (1) an error, (2) that the error was plain, and (3) that it affected his substantial

rights. State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015). Even if West satisfies these

three prongs, we may reverse his conviction only if the error “seriously affect[s] the




                                              3
fairness, integrity, or public reputation of judicial proceedings.”    Id. (alteration in

original) (quotation omitted).

       A jury must unanimously find that the prosecutor proved each element of the

charged offense in order to find the defendant guilty. State v. Dalbec, 789 N.W.2d 508,

511 (Minn. App. 2010), review denied (Minn. Dec. 22, 2010). And “the jury must

unanimously agree on which acts the defendant committed if each act itself constitutes an

element of the crime.” State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001). “But

the jury need not always decide unanimously which of several possible sets of underlying

brute facts make up a particular element, [such as] which of several possible means the

defendant used to commit an element of the crime.”         Dalbec, 789 N.W.2d at 511

(alteration in original) (quotation omitted).

       West relies on Stempf to support his argument. In Stempf, the state charged the

defendant with one count of drug possession but alleged two distinct acts to support the

conviction: that he possessed methamphetamine at his workplace and that he possessed

methamphetamine in a truck. 627 N.W.2d at 357. This court concluded that Stempf was

deprived of his right to a unanimous verdict because the state did not elect which act of

possession it relied on for the conviction. Id. at 358. As a result, the jurors may have

disagreed on which act of possession constituted that element of the crime. Id. This

court further concluded that “[t]he two acts alleged in this case lack unity of time and

place; they are separate and distinct culpable acts, either one of which could support a

conviction.” Id. at 358-59. This court therefore reversed and remanded for further




                                                4
proceedings because it was “possible that the jury’s verdict of guilty was not unanimous.”

Id. at 359.

       In addition to being completely different factually, West’s case is distinguishable

from Stempf in two critical ways. First, the district court in Stempf refused to give a

specific unanimity instruction after Stempf requested the instruction. Id. at 357-58.

Here, West did not request a specific unanimity instruction. Second, in Stempf, the act of

possession was an element of the crime, not merely a means of proving the element of

possession, so the jury had to agree unanimously on one act of possession that had been

proved beyond a reasonable doubt.        Id. at 357; see Dalbec, 789 N.W.2d at 512

(discussing Stempf). Here, one of the elements that the state needed to prove was that

West violated the OFP. See Minn. Stat. § 518B.01, subd. 14(b) (2014). The OFP

prohibited West from contacting A.L. by phone or “any other means.” “[T]he two acts in

Stempf were elements of the crime, whereas [appellant’s] actions in this case were mere

means for accomplishing an element.” State v. Infante, 796 N.W.2d 349, 357 (Minn.

App. 2011). Any one of West’s text messages or voicemails constituted a means by

which he committed the element of violating the OFP. And the jurors did not have to

agree unanimously on the means that West used to commit this element. We therefore

conclude that no error exists here. West was not denied his right to a unanimous verdict.

                                            II.

       West contends that the district court abused its discretion by allowing the state to

introduce relationship evidence under Minn. Stat. § 634.20. The district court allowed

A.L. to testify that West violated multiple past OFPs by contacting her and coming to her


                                            5
home or place of employment. A.L. also testified about a specific incident in which West

violated an OFP by breaking into A.L.’s home, threatening to kill her, and punching her

multiple times in the face. The district court allowed the state to introduce photographs

of A.L.’s face that were taken after this incident. The photographs depict A.L.’s bruised,

bloody, and swollen face.

       We review the admission of relationship evidence under Minn. Stat. § 634.20 for

an abuse of discretion. State v. Matthews, 779 N.W.2d 543, 553 (Minn. 2010). The

statute provides:

                     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,
              confusion of the issue, or misleading the jury, or by
              considerations of undue delay, waste of time, or needless
              presentation of cumulative evidence.

Minn. Stat. § 634.20.    Domestic conduct includes evidence of domestic abuse and

violation of an OFP. Id. The statutory definition of domestic abuse includes physical

harm, bodily injury, or assault committed by a family or household member against

another family or household member. Minn. Stat. § 518B.01, subd. 2(a)(1) (2014).

       West argues that the OFP violation here was not similar to the prior assault of A.L.

that the state offered as relationship evidence. A previous version of section 634.20 used

the term “similar conduct” in place of “domestic conduct.” State v. Fraga, 864 N.W.2d

615, 627 n.12 (Minn. 2015). Although the statute was amended in 2013 to replace

“similar conduct” with “domestic conduct,” the supreme court has noted that “the 2013

amendment did not change the underlying definition.” Id. Indeed, the definition of


                                            6
“domestic conduct” in the current statute is identical to the definition of “similar

conduct” in the previous version of the statute. Compare Minn. Stat. § 634.20 (2014),

with Minn. Stat. § 634.20 (2012). The evidence of West’s prior OFP violations and

physical harm to A.L. therefore meets the definition of domestic conduct under the

statute. In any event, the evidence of West’s prior domestic conduct was similar to the

charged crime because the relationship evidence involved West’s violations of OFPs.

       West also argues that the probative value of the relationship evidence was

substantially outweighed by its potential for unfair prejudice.           The district court

determined that the relationship evidence was probative and admissible. The district

court was more hesitant to admit the photographs into evidence and acknowledged that

they were “a little closer to the line.” The prosecutor stated that he intended to introduce

the photographs to show the context of the relationship between West and A.L. and

because West’s theory of the case was that A.L. contacted him first. The district court

ultimately allowed the photographs into evidence, concluding that the photographs were

more probative than prejudicial for the purposes of showing the context of the

relationship.

       The Minnesota Supreme Court has stated that evidence of prior domestic abuse “is

evidence of prior conduct between the accused and the alleged victim and it may be

offered to illuminate the history of the relationship, that is, to put the crime charged in the

context of the relationship between the two.” State v. McCoy, 682 N.W.2d 153, 159

(Minn. 2004).     “[T]he interests of justice are best served by admitting relationship

evidence when it provides context for the crime charged.” Matthews, 779 N.W.2d at 553


                                              7
(quotation omitted). Allowing the relationship evidence here was probative because, as

the district court determined, it provided the jury with context of the relationship between

West and A.L. It provided a context for the charged crime by illustrating the history of

domestic abuse and OFP violations that existed in their relationship.            Although the

district court acknowledged a potential for unfair prejudice when it admitted the

relationship evidence, the district court was careful to take the necessary step to ensure

that the jury would not use the evidence for an impermissible purpose by giving a

cautionary instruction, specifically warning the jury that it could not convict West of the

charged crime on the basis of his prior assault of A.L. See State v. Riddley, 776 N.W.2d

419, 428 (Minn. 2009) (“We presume a jury follows a court’s cautionary instruction.”).

Because the relationship evidence here falls within the statutory definition of domestic

conduct and because the probative value outweighed its danger for unfair prejudice, the

district court did not abuse its discretion by allowing the state to introduce it.

                                              III.

       West argues that the district court abused its discretion by allowing evidence that

A.L. had a confidential address and was in the Safe at Home program. A.L. testified that

she lived in Washington County and that she had a confidential address through the Safe

at Home program because of West.            The Safe at Home program provides address

confidentiality for victims of domestic violence and enables them “to use an address

designated by the secretary of state as a substitute mailing address for all purposes.”

Minn. Stat. § 5B.01 (2014).

       Minnesota law provides alternative venues for prosecuting OFP violations:


                                               8
                      A person may be prosecuted [for violating an OFP] at
               the place where any call is made or received or, in the case of
               wireless or electronic communication or any communication
               made through any available technologies, where the actor or
               victim resides, or in the jurisdiction of the victim’s designated
               address if the victim participates in the address confidentiality
               program established under chapter 5B.

Minn. Stat. § 518B.01, subd. 14a (2014). Although West argues that A.L.’s testimony

that she had a confidential address was irrelevant, it was relevant as a possible way to

establish venue under the statute. West could have stipulated to venue. But he instead

exercised his right to have the state prove venue beyond a reasonable doubt. See State v.

Ehmke, 752 N.W.2d 117, 120 (Minn. App. 2008) (“Venue is an element of an offense

that must be proved beyond a reasonable doubt.”). The state was therefore entitled to

elicit this testimony as a possible way to establish venue under the statute.

                                              IV.

       West argues that the district court committed reversible plain error by allowing the

state to introduce evidence that West was incarcerated when Deputy Schmidtke served

him with the OFP. Because West did not object to Deputy Schmidtke’s testimony, we

review for plain error. Taylor, 869 N.W.2d at 15. West again must show that there was

(1) an error, (2) that the error was plain, and (3) that it affected his substantial rights. Id.

       West asserts that “[t]here was no legitimate reason for the jury to learn West was

incarcerated.” But the state was required to prove that West knew of the OFP in order to

prove that he was guilty of the crime. See Minn. Stat. § 518B.01, subd. 14(b). The state

therefore needed to elicit testimony from Deputy Schmidtke that he served West with the

OFP. Although West argues that the state could have established this element of the


                                                9
crime simply by having Deputy Schmidtke testify that he served West with the OFP, this

apparently was not possible under the circumstances. Deputy Schmidtke testified that he

is a civil-process deputy. His sole duty is serving documents that are required to be

served by the sheriff’s office. When asked about the day he served West with the OFP,

Deputy Schmidtke testified that he remembered serving one or more inmates at the

correctional facility that day, implying that he would not be able to recall serving a

specific individual. Deputy Schmidtke then agreed that if the court record indicates that

he personally served West on that date, it would be accurate because the record would

rely on his affidavit of service. Allowing this testimony was not an error that was plain

because the state needed to elicit this information from Deputy Schmidtke in order to

prove that West knew of the existence of the OFP.

         Even if West could show that a plain error occurred, he cannot show that it

affected his substantial rights. To satisfy this prong of the plain-error test, West bears the

“heavy burden” of showing that the error was prejudicial and affected the outcome of his

trial.   State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).           Deputy Schmidtke’s

testimony that West was incarcerated could not have affected the outcome of the trial

because several text messages that West sent to A.L. referenced his being in prison. In

one text message, West wrote, “God knows that I didn’t come out of prison for this.” In

another, West wrote, “Put myself back in prison to show that that’s a lie by you . . . .”

From the text messages admitted into evidence, the jury already knew that West had been

in prison. West therefore was not prejudiced by Deputy Schmidtke’s brief testimony that

he served West at a correctional facility.


                                             10
                                             V.

       West argues that the district court abused its discretion by ruling that the

prosecutor could impeach him with prior convictions if he chose to testify. The district

court ruled that the prosecutor could impeach West with his convictions of check forgery,

felony violation of a no-contact order, and first-degree burglary if he testified, although

the prosecutor would be allowed to refer to the conviction of violating the no-contact

order only as an unspecified felony. West concedes that the check-forgery conviction

was admissible to impeach him but challenges the district court’s decision with respect to

the other two convictions.

       Evidence that a witness has been convicted of a felony is admissible for attacking

the witness’s credibility if “the court determines that the probative value of admitting this

evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(1). “When evaluating

whether prior convictions are admissible for impeachment, a court considers five factors

set out in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).” State v. Swanson, 707

N.W.2d 645, 653 (Minn. 2006). Those factors are:

              (1) the impeachment value of the prior crime, (2) the date of
              the conviction and the defendant’s subsequent history, (3) the
              similarity of the past crime with the charged crime (the
              greater the similarity, the greater the reason for not permitting
              use of the prior crime to impeach), (4) the importance of
              defendant’s testimony, and (5) the centrality of the credibility
              issue.

Jones, 271 N.W.2d at 538. We review a district court’s ruling on the admissibility of

prior convictions for impeachment of a defendant for a clear abuse of discretion.

Swanson, 707 N.W.2d at 654.


                                             11
       A.     Impeachment Value of Prior Crime

       The district court found that West’s prior convictions had impeachment value.

“[A] prior conviction can have impeachment value by helping the jury see the whole

person of the defendant and better evaluate his or her truthfulness.”          Id. (quotation

omitted). When impeaching with convictions that do not involve dishonesty or false

statements, “it is the general lack of respect for the law, rather than the specific nature of

the conviction, that informs the fact-finder about a witness’s credibility.” State v. Hill,

801 N.W.2d 646, 652 (Minn. 2011). “In other words, any felony conviction is probative

of a witness’s credibility, and the mere fact that a witness is a convicted felon holds

impeachment value.” Id. Because the felonies were probative of West’s credibility, this

factor favored admission.

       B.     Date of Conviction and Appellant’s Subsequent History

       A conviction is generally not admissible to impeach the credibility of a witness if

more than ten years have elapsed since the date of the conviction. See Minn. R. Evid.

609(b). West’s no-contact-order violation and burglary conviction are both from 2011.

The district court found that “[t]he date and subsequent history regarding each of those

convictions falls well within the appropriate limits to allow admission of that

impeachment.” Because the impeachment convictions occurred within ten years, this

factor weighed in favor of admission.

       C.     Similarity of Past Crime with Charged Crime

       “The more similar the alleged offense and the crime underlying a past conviction,

the more likely it is that the conviction is more prejudicial than probative.” Swanson, 707


                                             12
N.W.2d at 655. The Minnesota Supreme Court has held that Minn. R. Evid. 609(a)

allows a party to impeach a witness with unspecified felony convictions. Hill, 801

N.W.2d at 652.      The decision regarding whether to disclose the nature of the

impeachment conviction “remains within the sound discretion of the district court.” Id.

The burglary conviction was not similar to the charged crime of violating an OFP. The

district court ruled that the state would only be allowed to refer to West’s conviction of

violating the no-contact order as an unspecified felony. The district court acted well

within its discretion to make this decision because violating a no-contact order and

violating an OFP are similar in that they both prohibit contact with a protected person.

This factor favored admission.

       D.     Importance of West’s Testimony and Centrality of Credibility

       The fourth and fifth Jones factors are often analyzed together. See Swanson, 707

N.W.2d at 655 (grouping the fourth and fifth Jones factors together); State v. Gassler,

505 N.W.2d 62, 67 (Minn. 1993) (same). “If credibility is a central issue in the case, the

fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”

Swanson, 707 N.W.2d at 655. The district court determined that credibility was “very

much an issue” in the case. Credibility was central to the case because West likely would

have denied being guilty of violating the OFP if he had testified, thereby forcing the jury

to make a credibility determination.      These factors therefore weighed in favor of

admission.




                                            13
         On balance, the Jones factors weighed in favor of admitting the prior convictions

for impeachment purposes. Therefore, the district court did not abuse its discretion by

allowing the prosecutor to use them to impeach West had he chosen to testify.

                                            VI.

         West contends that the cumulative effect of these alleged errors deprived him of

his due-process right to a fair trial. The Minnesota Supreme Court has held that, “in rare

cases, that the cumulative effect of trial errors can deprive a defendant of his

constitutional right to a fair trial when the errors and indiscretions, none of which alone

might have been enough to tip the scales, operate to the defendant’s prejudice by

producing a biased jury.” State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012) (quotation

omitted). But because West has not established even one error, plain or otherwise, there

can be no cumulative error. We conclude that West was not deprived of his right to a fair

trial.

         Affirmed.




                                            14
