                           This opinion will be unpublished and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
                                      A14-2080

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                    Tristan Leroy Trice,
                                         Appellant.

                                   Filed January 4, 2016
                                         Affirmed
                                        Ross, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-26666

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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


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

Judge.

                          UNPUBLISHED OPINION

ROSS, Judge

         A jury found Tristan Leroy Trice guilty of felony domestic assault. Trice appeals

from his conviction on three theories: the state failed to prove a fact that the district court
told the jury in its preliminary instructions was required for conviction; the district court

wrongly instructed the jury about the meaning of “family or household members”; and the

district court improperly allowed Trice’s former girlfriend to testify that she suffered

mental illness because of his abuse. Trice was not entitled to judgment of acquittal based

on the state’s failure to prove an element as the element was incompletely defined in the

preliminary instructions. And he has not shown that the district court’s jury instructions or

evidentiary rulings prejudiced him. We therefore affirm.

                                          FACTS

       Police arrived at the Asteria Inn and Suites in Maple Grove on the morning of

August 13, 2013, to a report of possible domestic assault. Hotel employees had been

working at the front desk when they heard a woman’s cries for help from an upstairs room.

They went toward the room to investigate, and outside the door they heard a woman

exclaim, “[H]e’s going to kill me!” They went back to the desk and dialed 9-1-1. Before

the police arrived, the employees saw J.P. running down the hallway yelling, “He’s got my

purse, he’s got my purse!” A man then shoved one of the employees into the wall and ran

out the back door.

       The employees did not get a good look at the man; one told police she thought he

was white and the other thought he was black. J.P. identified the man to police as Tristan

Trice, her former fiancé.

       Police interviewed J.P. They saw scratches on her neck. She told police that Trice

attacked her. She said that he put his hands around her neck, inhibiting her breathing. At

first she told police she did not want to give a recorded statement or have her injuries


                                             2
photographed. But she changed her mind. Police arrested Trice and the state charged him

with felony domestic assault under Minnesota Statutes section 609.2242, subdivision 4

(2012), and domestic assault by strangulation under section 609.2247, subdivision 2

(2012).

       The district court gave the jury preliminary instructions about the applicable law. It

instructed the jury that, for purposes of domestic abuse, “family or household member”

includes persons who are either presently residing together or who have resided together

previously. This instruction failed to say that it also includes people who are involved in a

significant romantic or sexual relationship. (This omission is the core of Trice’s arguments

on appeal.)

       The prosecutor summoned J.P. to testify, but she changed her story. She recanted

her statements to police about Trice’s assaultive behavior, also testifying that she did not

recall having her injuries photographed. She claimed that she most likely had been

influenced by drugs and that she made everything up because she was angry that Trice

threatened to leave her. The prosecution called B.R., Trice’s former girlfriend, to tell the

jury about her relationship with Trice. B.R. testified that Trice slapped and choked her

during a dispute in December 2008. She also testified that, as a result of that abuse, she

became agoraphobic and developed depression and borderline personality disorder.

       Trice moved for acquittal after the state rested its case. The district court denied the

motion and submitted the case to the jury. During deliberation, the jury asked the court

whether a fiancé constitutes a family or household member. Over the defense attorney’s

objection, the court provided an additional instruction that family or household members


                                              3
include persons involved in a significant romantic or sexual relationship. The jury acquitted

Trice of domestic assault by strangulation but found him guilty of felony domestic assault.

       Trice appeals.

                                      DECISION

                                              I

       Trice argues that the district court erred by not granting his motion for judgment of

acquittal. We review the denial of a judgment of acquittal de novo, as a question of law.

State v. McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013), review denied (Minn.

Oct. 15, 2013). A defendant is entitled to acquittal if the state’s evidence is insufficient to

sustain a conviction. Minn. R. Crim. P. 26.03, subd. 18(1)(a).

       Trice maintains that the district court was bound to acquit him as a matter of law

because the state failed to present evidence that he ever resided with J.P., a fact that he

asserts is necessary for him to qualify as a “family or household member” under the

domestic-assault statute as defined by the court at the close of evidence. Both felony

domestic assault and domestic assault by strangulation require the state to prove that the

defendant committed the acts against a “family or household member.” Minn. Stat.

§§ 609.2247, subd. 2, .2242, subds. 1, 4 (2012). The legislature defines family or household

members to include “persons who are presently residing together or who have resided

together in the past,” as the district court first instructed, Minn. Stat. § 518B.01, subd.

2(b)(4) (2012), and also to include persons involved in a significant romantic or sexual

relationship, id., subd. 2(b)(7) (2012). Trice wants us to hold that the district court had to

base its decision only on its preliminary instructions (which included the residential ground


                                              4
but failed to include the romantic-relationship option), and not to allow the conviction to

rest on his admitted romantic or sexual relationship with J.P. He argues that because the

state presented no evidence that he and J.P. resided together, he was entitled to judgment

of acquittal.

       Trice builds his argument on his theory that the district court’s preliminary

instruction became the “law of the case,” binding the district court to evaluate the motion

for acquittal on that instruction rather than on the full breadth of the statute. But Trice fails

to identify any authority that supports the theory. And our review of the caselaw informs

us that preliminary instructions are instead discretionary and that their use does not obviate

either the possibility of or necessity for amendment or augmentation even after the

evidence is in. See State v. Kirch, 322 N.W.2d 770, 774 (Minn. 1982); cf. Minn. R. Crim.

P. 17.05 (generally allowing the district court to amend the criminal complaint any time

before verdict).

       Trice directs us to the civil case of Schunk v. Wieland, 286 Minn. 368, 176 N.W.2d

119 (1970). Schunk does not make Trice’s point. The plaintiff in Schunk received an

unfavorable jury verdict and on appeal challenged the jury instructions. But he had not

objected to the district court’s instructions at the close of testimony or even in his posttrial

motions. Id. at 369, 176 N.W.2d at 120–21. The supreme court determined that the plaintiff

was stuck with the verdict. Id. at 370–71, 176 N.W.2d at 121. The court explained that

because he failed to object to the instructions, they became “law of the case, and whether

the evidence is sufficient to sustain the verdict must be determined by testing the evidence

against the law as set forth in the trial court’s instructions.” Id. at 370, 176 N.W.2d at 121


                                               5
(citation omitted). The principle in Schunk is that a civil plaintiff is bound by a verdict that

rests on a final instruction that never became the subject of any objection. This principle

does not precipitate a holding that a jury in a criminal case is bound by an incomplete

preliminary instruction that was always subject to augmentation by final instructions and

also subject to the district court’s authority to amend the instructions consistent with the

law and the evidence. We hold that the district court did not err by denying Trice’s motion

for judgment of acquittal.

                                              II

       Trice argues that the district court erred by adding to the definitional instruction

while the jury was deliberating, defining family or household members to include persons

involved in a significant romantic or sexual relationship. It is true that the district court

must, on request, tell the parties before their closing arguments what instructions will be

given. Minn. R. Crim. P. 26.03, subd. 19(2). But if the jury asks for additional instructions

on the law during its deliberation, the district court may give additional instructions. Minn.

R. Crim. P. 26.03, subd. 20(3)(a). We review the decision to provide additional jury

instructions for abuse of discretion. State v. Laine, 715 N.W.2d 425, 434 (Minn. 2006) (“It

is well established that the trial judge may, in his discretion, give additional instructions in

response to a jury’s question on any point of law.”).

       Trice argues that the district court’s additional instruction improperly introduced a

new concept of criminal liability, prejudicing Trice because the timing prevented him from

introducing evidence, examining witnesses, or arguing to the jury about the alternative

means to establish a family or household relationship. Trice’s argument is generally


                                               6
persuasive, but not prevailing here. Adding a possible means of proving the charged

crime’s element after the close of all evidence and arguments could, and in many cases

would, put the defendant at an unfair and unjust disadvantage. Trice relies appropriately

on United States v. Gaskins, 849 F.2d 454 (9th Cir. 1988), to make the point. The Gaskins

court considered the federal analogue to Minnesota Rule of Criminal Procedure 26.03. The

Ninth Circuit reversed the appellant’s drug convictions because the district court

introduced a new theory of liability into the case by giving the deliberating jury an

additional instruction on aiding and abetting liability. Gaskins, 849 F.2d at 460. The court

determined that this instruction prejudicially affected the defendant because he was not

given an opportunity to address it in his closing argument. Id.

       In this case, however, Trice had already effectively conceded the challenged

element of a qualifying relationship even before the state began offering evidence.

Knowing (or having reason to know) of the cursory and alterable nature of the preliminary

instructions and that the district court could amend those incomplete preliminary

instructions at any time, Trice began his case by admitting that he had a domestic-abuse-

qualifying relationship with J.P. In opening statements, Trice’s counsel revealed that

Trice’s defense indeed depended on there having been such a relationship: “He’s here today

because [J.P.] was mad. She was mad at him, their relationship was ending, and she wanted

to get back at Mr. Trice.” Trice repeated the same argument in closing, claiming that J.P.

merely concocted the story to retaliate because “[Trice] said their relationship was ending.”

Trice cannot now persuasively argue that he was prejudiced by being denied the

opportunity to refute the existence of a relationship whose existence he made the


                                             7
foundation of his defense. The district court did not abuse its discretion by instructing the

jury that family or household members include persons in a romantic or sexual relationship.

                                             III

       Trice argues that the district court erroneously admitted B.R.’s testimony that she

suffered mental illness as a result of Trice’s prior abuse. In a domestic-abuse prosecution,

the district court may admit

              [e]vidence of domestic conduct by the accused . . . against
              other family or household members, . . . 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 (Supp. 2013). We review the admission of prior-relationship evidence

under section 634.20 for abuse of discretion. State v. Lindsey, 755 N.W.2d 752, 755 (Minn.

App. 2008), review denied (Minn. Oct. 29, 2008). The appellant must establish both that

the district court abused its discretion and that the appellant was prejudiced. Id.

       We will focus on the question of prejudice, which we conclude is dispositive here.

Even if the district court erred by admitting the testimony, we deem the error harmless.

B.R. testified that Trice’s choking her caused her to incur mental illness, but the jury was

not apparently unduly influenced by this testimony as it considered the state’s contention

that Trice choked J.P. and acquitted him of assault by strangulation. See State v. Glaze, 452

N.W.2d 655, 662 (Minn. 1990) (noting that a prosecutor’s improper remarks likely did not

affect the verdict because the jury ultimately acquitted the defendant of three counts of

premeditated murder). The district court also twice gave the jury a cautionary instruction



                                              8
(once immediately when the evidence was offered and again just before deliberation)

explaining how the jury must properly use the prior-relationship testimony. These

cautionary instructions lessened the probability of the jury giving undue weight to the

evidence. See Lindsey, 755 N.W.2d at 757.

       Trice contends that the prior-relationship testimony was not harmless because the

state’s case was weak, focusing on J.P.’s recantation of her report to police and on the hotel

employees’ confusion about the assailant’s race. The contention is not compelling. We

presume that modern jurors are commonly aware that domestic-abuse reporters may (and

frequently do) recant their reports for reasons that may have nothing to do with the accused

abuser’s innocence. And J.P.’s recantation was suspicious on its face and particularly

unconvincing, as she not only denied having been assaulted and injured but also claimed

not even to recall being photographed to document her injuries. The jury heard all of the

witnesses consistent and corroborating contemporary accounts, which establish that a loud,

apparently violent episode occurred and that J.P. suffered visible injury as a result. And the

employee witnesses’ confusion about the fleeing assailant’s ethnicity is immaterial since

all of the evidence and one of Trice’s own defense theories establish that Trice is the person

with whom J.P. had the altercation.

       Given the jury’s decision to find Trice not guilty of the kind of abuse that B.R. said

she suffered, the district court’s cautionary instructions, and the overwhelming evidence of

guilt, it is unlikely that B.R.’s testimony significantly affected the verdict.

       Affirmed.




                                               9
