                          This opinion will be unpublished and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
                                     A13-1845

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Nathan John Valinski,
                                       Appellant.

                                   Filed July 14, 2014
                                        Affirmed
                                     Larkin, Judge

                               Scott County District Court
                                File No. 70-CR-13-4381


Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

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


         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

LARKIN, Judge

         Appellant challenges his conviction of felony domestic assault against his

daughter, arguing that the district court erred by allowing evidence of his prior
convictions against the child’s mother at his jury trial and by denying his motion for a

mistrial. We affirm.

                                         FACTS

       Respondent State of Minnesota charged appellant Nathan John Valinski with

felony-level domestic assault, alleging that he hit his 12-year-old daughter, B.J.V. The

criminal complaint alleges that B.J.V.’s mother, K.R., sent a text message to her

estranged husband, J.R., stating that Valinski had hit K.R. J.R. called the police. During

the ensuing investigation, J.R. told officers that approximately one week earlier, B.J.V.

had bruises all over her body. B.J.V. told J.R. that Valinski had caused the bruising by

hitting her.

       A police officer interviewed K.R. K.R. told the officer that Valinski did not hit

B.J.V. The officer also interviewed B.J.V. B.J.V. told the officer that Valinski was

angry at K.R. and that Valinski had hit K.R. and her. The officer observed bruises on

B.J.V.’s right thigh and arms, and she photographed the bruises.

       The police arrested Valinski, and he provided a statement denying that he hit

B.J.V. Valinski said that while he and K.R. were arguing, B.J.V. started to hit him with a

dog leash. Valinski said that he merely grabbed and twisted B.J.V.’s wrist to stop her

from hitting him. Valinski stated that he did not know what caused the bruising on

B.J.V.’s arms or leg.

       Before trial, the state moved the district court to allow “evidence of the history of

the relationship, including past acts and occurrences of domestic abuse, between

[Valinski] and B.J.V.” under Minn. Stat. § 634.20 (2012). The state also provided notice


                                             2
that it intended to offer evidence of additional offenses under Minn. R. Evid. 404(b).

Lastly, the state moved the district court to allow the state to impeach Valinski with his

prior felony convictions under Minn. R. Evid. 609.

       Valinski moved for an order “prohibiting any prior criminal convictions . . . to be

used against [him] for impeachment purposes”; “prohibiting the use of any Spreigl

evidence against [him]”; “prohibiting any testimony regarding prior and/or subsequent

alleged physical and/or verbal altercations and/or assaults committed or allegedly

committed by [him] against victim and/or other persons”; and “prohibiting the admission

of any testimony that purports to establish that [he] has an assaultive propensity or is

otherwise apt to act in an assaultive manner.”

       The district court ordered that, if Valinski testified, the state could impeach him

with “‘sanitized felony’ convictions.” The district court denied the state’s motion to

admit Spreigl evidence and its motion to admit relationship evidence under Minn. Stat.

§ 634.20. But the district court ruled that “should the victim’s mother [K.R.] testify, who

apparently was an eye witness to the events that occurred, and should she testify

favorably for [Valinski] . . . the [c]ourt then will permit the [s]tate to cross-examine her in

an attempt to impeach her testimony by using the convictions of [Valinski] where she

was the victim.” The district court reasoned that “the probative value of that prior

conviction would increase” if K.R. testified favorably for Valinski, “as it would then be

relevant to the truthfulness of the testimony and the credibility of that witness.”

       At trial, the state called K.R. as a witness. K.R. testified that B.J.V. repeatedly hit

Valinski with a dog leash and that Valinski merely grabbed her arm to restrain her. After


                                              3
this testimony K.R. acknowledged, through leading questions by the prosecutor, that she

was the victim of domestic assault on June 23, 2000, terroristic threats on September 14,

2000, and felony fifth-degree assault on November 22, 2000. K.R. further acknowledged

that she was pregnant with B.J.V. when each offense occurred and that Valinski was

convicted of committing all three offenses. K.R. also acknowledged that she was the

victim of felony fifth-degree assault on December 10, 2006, and that Valinski was

convicted of that offense as well.

       B.J.V. also testified, but she was a reluctant witness. The district court allowed

the state to use leading questions, and B.J.V. ultimately testified that Valinski had hit her

and that the blows left marks on her arm and leg.

       The jury found Valinski guilty, and the district court sentenced him to serve 39

months in prison. This appeal follows.

                                     DECISION

                                             I.

       Valinski argues that “[t]he district court abused its discretion when it admitted

[K.R.’s] testimony that she was the victim of four of [his] prior assault and terroristic

threat convictions and that she was pregnant with his child during three of them.” The

district court allowed testimony regarding Valinski’s prior convictions for the purpose of

impeaching K.R.’s testimony, which favored Valinski. We review the district court’s

evidentiary ruling for an abuse of discretion. See State v. Matthews, 779 N.W.2d 543,

553 (Minn. 2010).




                                             4
       We begin our analysis with Minn. Stat. § 634.20, which provides that

                     [e]vidence of similar conduct by the accused against
              the victim of domestic abuse, 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. “Similar conduct”
              includes, but is not limited to, evidence of domestic
              abuse . . . . “Domestic abuse” and “family or household
              members” have the meanings given under section 518B.01,
              subdivision 2.

This so-called “[r]elationship evidence is relevant because it illuminates the history of the

relationship between the victim and defendant and may also help prove motive or assist

the jury in assessing witness credibility.” Matthews, 779 N.W.2d at 549 (quotation

omitted).

       Relationship evidence is treated differently than other “collateral” evidence, partly

because “[d]omestic abuse is unique in that it typically occurs in the privacy of the home,

it frequently involves a pattern of activity that may escalate over time, and it is often

underreported.” State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004). Thus, the stringent

procedural requirements of Minn. R. Evid. 404(b) do not apply to relationship evidence

admitted under section 634.20. State v. Meyer, 749 N.W.2d 844, 849 (Minn. App. 2008).

Section 634.20 “specifically provides for the admission of evidence of ‘similar conduct’

by the accused unless it fails to meet a balancing test that considers whether the probative

value of the evidence is substantially outweighed by the danger of unfair prejudice.”

McCoy, 682 N.W.2d at 159. For purposes of section 634.20, unfair prejudice “is not

merely damaging evidence, [or] even severely damaging evidence; rather, unfair

                                             5
prejudice is evidence that persuades by illegitimate means, giving one party an unfair

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

       In this case, K.R. testified that Valinski did not assault B.J.V. The district court

allowed testimony regarding Valinski’s prior assault and terroristic-threats convictions

against K.R. to help the jury assess K.R.’s credibility. Essentially, the impeachment

evidence illuminated the nature of the relationship between Valinski and K.R. McCoy

establishes that the district court’s ruling reflects a permissible use of relationship

evidence under Minn. Stat. § 634.20. In McCoy,

                  [t]he victim, respondent’s wife, testified that she could not
                  remember what she told the police regarding respondent’s
                  alleged assault. No one else was able to provide eyewitness
                  testimony regarding the events that transpired. The district
                  court’s ruling allowing the admission of evidence of
                  respondent’s alleged prior assault of his wife allowed the state
                  to present evidence that, if believed by the jury, could have
                  assisted the jury by providing a context with which it could
                  better judge the credibility of the principals in the
                  relationship.

McCoy, 682 N.W.2d at 161; see also Matthews, 779 N.W.2d at 549 (“Relationship

evidence is relevant because it . . . may also help . . . assist the jury in assessing witness

credibility.”).

       Like the circumstances in McCoy, K.R. was an eyewitness to Valinski’s alleged

assault of B.J.V. K.R.’s testimony contradicted B.J.V.’s testimony. The district court’s

ruling allowing evidence of Valinski’s prior assault and terroristic-threats convictions

against K.R. allowed the state to present evidence that provided a context in which to

better judge K.R.’s credibility.



                                                 6
       Valinski argues that it is improper for this court to consider the admissibility of the

challenged evidence under section 634.20 because the state did not appeal the district

court’s pretrial order. We disagree. In State v. Grunig, the supreme court stated that “[a]

respondent can raise alternative arguments on appeal in defense of the underlying

decision when there are sufficient facts in the record for the appellate court to consider

the alternative theories, there is legal support for the arguments, and the alternative

grounds would not expand the relief previously granted.” 660 N.W.2d 134, 137 (Minn.

2003) (citing Minn. R. Crim. P. 29.04, subd. 6, and stating that this court erred by failing

to apply the rule). Moreover, our reasoning is the same as the district court’s: the

evidence was admissible to help the jury assess K.R.’s credibility. Our affirmation is

based on an “alternative argument” only because in ruling that the evidence was not

admissible under section 634.20, the district court failed to recognize that section 634.20

evidence assists credibility determinations. See Matthews, 779 N.W.2d at 549; McCoy,

682 N.W.2d at 161.

       Valinski also argues that the “danger of unfair prejudice was high” and that the

relationship evidence “improperly suggest[ed] to the jury that [he] has the propensity to

commit the charged crime or that he is a proper candidate for punishment because of his

prior conduct.” But the probative value of admitting the evidence was not “substantially

outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20. Allowing the jury

to assess K.R.’s credibility in the context of her relationship with Valinski did not

“persuade[] by illegitimate means” or give the state an “unfair advantage.” Bell, 719

N.W.2d at 641.      Moreover, the district court instructed the jury that the evidence


                                              7
concerning Valinski’s prior convictions was admitted only for “consideration in deciding

whether the witness [K.R.] is telling the truth in this case” and not as evidence of

Valinski’s “character or conduct except as you may think it reflects on the believability of

[K.R.].” The district court’s cautionary instruction mitigated any potential for unfair

prejudice, and this court presumes the jury followed the instruction.         See State v.

Courtney, 696 N.W.2d 73, 84 (Minn. 2005) (“The jury is presumed to have followed the

instruction.”).

       In sum, the district court’s admission of Valinski’s prior convictions for the

limited purpose of helping the jury to assess K.R.’s credibility as a witness was not an

abuse of discretion, because admission for that purpose is allowed under Minn. Stat.

§ 634.20. See Matthews, 779 N.W.2d at 549; McCoy, 682 N.W.2d at 161. Because the

evidence was admissible under section 634.20, we do not address the parties’ arguments

regarding admissibility under Minn. R. Evid. 404(b) (prohibiting “[e]vidence of another

crime, wrong, or act . . . to prove the character of a person in order to show action in

conformity therewith”) or Minn. R. Evid. 616 (allowing evidence of bias “[f]or the

purpose of attacking the credibility of a witness”).

                                             II.

       Valinski argues that the district court erred by denying his motion for a mistrial.

During trial, the prosecutor asked J.R. if “most of the time that [he was] married to

[K.R.], was [Valinski] in Iowa?” J.R. responded: “Most of the time, prison in Iowa.”

Valinski objected and moved for a mistrial. The district court instructed the jury to

disregard the statement and denied Valinski’s motion for a mistrial.


                                              8
       “[A] mistrial should not be granted unless there is a reasonable probability that the

outcome of the trial would be different” if the event that prompted the motion had not

occurred. State v. Spann, 574 N.W.2d 47, 53 (Minn. 1998). “[T]he district court is in the

best position to evaluate whether prejudice, if any, warrants a mistrial.”         State v.

Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001). The denial of a motion for a

mistrial is reviewed for an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133

(Minn. 2003).

       “References to a defendant’s prior criminal history can be unfairly prejudicial.”

State v. McCurry, 770 N.W.2d 553, 558 (Minn. App. 2009), review denied (Minn.

Oct. 28, 2009). “The prosecutor has an obligation to caution its witnesses against making

prejudicial statements.” Id. “But a district court’s appropriate curative instructions may

be sufficient to overcome the harm caused by inadvertent references to prior

convictions.” Id.

       In denying Valinski’s mistrial motion, the district court relied on McCurry, in

which this court found no abuse of discretion where a witness testified that the defendant

“went to prison” for an “attempted sexual assault charge.” Id. This court reasoned in

McCurry that the “comment at issue . . . was isolated, a single reference to a prior crime,”

the prosecutor did not intentionally elicit the comment, the district court counseled the

prosecutor to remind its witnesses not to mention the defendant’s record, and the district

court gave a thorough instruction, telling the jury “not [to] consider [the testimony] in

any way.” Id.




                                             9
       In this case, the district court reasoned that it “had given a prior instruction to the

[j]ury that they might hear things that they would have to ignore”; it “reinforced that

instruction by specifically instructing the [j]ury to disregard the answer that included the

comment about prison immediately after it occurred”; “[t]he prosecutor met her

obligation to caution the witness against further statements regarding incarceration or

convictions”; “[t]he reference to prison only occurred once, in the context of a non-

prejudicial   question”; and the “comment was less prejudicial than the comment in

McCurry where the statement included a reference to sexual assault.”

       Valinski does not distinguish McCurry or criticize the district court’s application

of McCurry. Instead, he relies on State ex rel. Black v. Tahash, in which a police officer

testified that the defendant told him “that he had only seen [an accomplice] once since

leaving Stillwater.” 280 Minn. 155, 157, 158 N.W.2d 504, 505 (1968). The supreme

court stated that “evidence of a defendant’s prior criminal activity is inadmissible in a

criminal prosecution” and remarked that “[t]here is no doubt that the officer’s remark

constituted prejudicial error which provided grounds for a mistrial.” Id. at 157, 158

N.W.2d at 506. But this statement is dictum because “the sole issue raised on . . . appeal

[was] whether [the defendant’s] trial attorney competently represented him.” Id. at 157,

158 N.W.2d at 505.

       Valinski also relies on State v. Strommen, in which the supreme court considered

“testimony elicited from the arresting officer that he knew Strommen on a first-name

basis and from ‘prior contacts and incidents.’” 648 N.W.2d 681, 687 (Minn. 2002). The

supreme court concluded that the district court erred by admitting the statement and


                                             10
reversed. Id. at 688-89. But the supreme court considered this testimony in conjunction

with other erroneously admitted testimony that Strommen had previously “kicked in

doors and . . . killed someone.” Id. at 688. And the supreme court concluded that the

testimonies at issue were prejudicial only after first concluding that “the purpose in

asking the offending questions was to illicit a response suggesting that Strommen was a

person of bad character who had frequent contacts with the police.” Id. In this case,

Valinski does not point to any other inadmissible testimony to demonstrate prejudice, and

he does not claim that the prosecutor purposefully elicited the prison reference. See State

v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974) (“In cases involving the

erroneous admission of [evidence permitting the jury to infer that defendant had a prior

record], this court has attached importance to whether the prosecutor intentionally elicited

such testimony.”).

       Moreover, the supreme court has not reversed in other cases involving references

to a defendant’s prior criminal history. See State v. Haglund, 267 N.W.2d 503, 506

(Minn. 1978) (affirming where reference to past incarceration “was of a passing nature”

and the evidence of guilt was overwhelming); Richmond, 298 Minn. at 562-63, 214

N.W.2d at 695-96 (considering testimony that a “2-year-old photograph [was] ‘taken at

the LaCrosse Police Department’” and affirming because the prosecutor did not

intentionally elicit the testimony and “evidence of defendant’s guilt was so strong that it

is very unlikely that the testimony played any substantial part in convincing the jury of

defendant’s guilt”).




                                            11
       We base our determination of whether the district court abused its discretion on

the particular circumstances of the case. On the record before us, we do not discern a

“reasonable probability that the outcome of the trial would [have been] different” if J.R.

had not referred to Valinski’s time in prison. See Spann, 574 N.W.2d at 53. Nor do we

discern any error in the district court’s legal analysis of the issue. See State v. Jedlicka,

747 N.W.2d 580, 582 (Minn. App. 2008) (“The district court abuses its discretion if it

misinterprets or misapplies the law.” (quotation omitted)). We therefore conclude that

the district court did not abuse its discretion by refusing to grant a mistrial.

       Affirmed.




                                              12
