                        This opinion will be unpublished and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
                                   A14-0179

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Michael Antwon Common,
                                      Appellant

                              Filed December 15, 2014
                                     Affirmed
                                   Worke, Judge

                            Olmsted County District Court
                              File No. 55-CR-13-4436

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

      Considered and decided by Worke, Presiding Judge; Reyes, Judge; and Crippen,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges the district court’s admission of evidence assisting the jury in

evaluating the credibility of parties in a relationship. We affirm.

                                          FACTS

       On July 8, 2013, appellant Michael Antwon Common went to the residence of

A.S. Common and A.S. had previously been in a relationship, and have a daughter

together. A.S. was living with a roommate.

       Shortly after Common’s arrival, A.S.’s roommate heard screams of “Get off me”

coming from A.S.’s bedroom, sounds of her choking and gasping for air, and impacts that

she described as the sound of “flesh on flesh.” A.S.’s roommate called 911. Common

was charged with domestic assault by strangulation and felony domestic assault.

       At trial, A.S. testified that she could not remember what occurred in her residence

that night. However, A.S. had given a recorded statement to the police when she was in

the hospital following the incident. In the recording, played for the jury, A.S. described

that Common punched her, kicked her, knocked her down, pulled her hair, and choked

her.

       A.S. also testified, over defense objection, to three prior incidents involving

Common: (1) in August 2010, while A.S. was pregnant, Common struck her in the

stomach; (2) in September 2010, Common had violated a domestic-abuse no-contact

order (DANCO) and was found in her apartment; and (3) in June 2011, Common had hit




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and stabbed A.S. with car keys. Prior to A.S.’s testimony and at close of trial, the district

court cautioned the jury on how to treat this evidence.

       Common was found guilty as charged. This appeal follows.

                                     DECISION

       Common first argues that violation of a DANCO is not “similar conduct” as

defined by Minn. Stat. § 634.20 (2012).1          “Because this issue turns on statutory

interpretation, it is reviewed de novo.” State v. Valentine, 787 N.W.2d 630, 636 (Minn.

App. 2010).

       Our supreme court has concluded that section 634.20 is unambiguous, and thus the

plain meaning of the statute governs. State v. McCoy, 682 N.W.2d 153, 158-59 (Minn.

2004). Section 634.20 prescribes that similar conduct “includes, but is not limited to,

evidence of domestic abuse, violation of an order for protection [OFP] under section

518B.01; violation of a harassment restraining order [HRO] under section 609.748; or

violation of section 609.749 or 609.79, subdivision 1.” Minn. Stat. § 634.20.

       We conclude that violation of a DANCO fits within the plain language of the

statute. While a DANCO under Minn. Stat. § 629.75 (2012) is not specifically listed,

similar conduct “is not limited to” the specifically listed statutes. Id. DANCOs are very

similar to OFPs and HROs in that all seek to protect victims from those who would harm

or harass them. Compare Minn. Stat. § 518B.01, subd. 4 (2012), and Minn. Stat. §

609.748, subd. 5 (2012), with Minn. Stat. § 629.75. The distinction between a DANCO


1
 The statute now refers to evidence of “domestic conduct” rather than “similar conduct.”
Minn. Stat. § 634.20 (Supp. 2013).

                                             3
and the other orders is that a DANCO need not be requested by the victim; it may be

issued upon the motion of a prosecutor or the court. See id.

       Common argues that violation of a DANCO is not violent conduct, but both OFPs

and HROs can be violated by non-violent means. See, e.g., Minn. Stat. § 518B.01, subd.

6(10) (2012) (order abusing party to have no contact with petitioner in person, by mail, or

via a third party); Minn. Stat. § 609.748, subds. 4(2), 5(2) (2012) (order harassing party

to have no contact with the petitioner). Common further argues that a DANCO violation

does not constitute evidence of “domestic abuse” as defined by Minn. Stat. § 518B.01,

subd. 2(a) (2012). But similar conduct is not admissible because it is evidence of

domestic abuse; it is admissible to “illuminate the history of the relationship,” “put the

crime charged in the context of the relationship,” and to “assist[]the jury by providing a

context with which [to] better judge the credibility of the principals in the relationship.”

McCoy, 682 N.W.2d at 159, 161.

       Common’s arguments are unpersuasive, and we conclude that violation of a

DANCO is “similar conduct” as defined in Minn. Stat. § 634.20.

Probative vs. prejudicial

       Common next argues that the district court erred in admitting the prior acts

because their probative value was substantially outweighed by the danger of unfair

prejudice. A district court’s ruling on the admission of relationship evidence is reviewed

for an abuse of discretion. State v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008),

review denied (Minn. Oct. 29, 2008).




                                             4
       Relationship evidence is admissible “unless the probative value is substantially

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

Lindsey, 755 N.W.2d at 757 (quotation omitted).            Additionally, cautionary jury

instructions “lessen[] the probability of undue weight being given by the jury to the

evidence.” Id. (quotation omitted).

       The record indicates that the district court found significant probative value in the

prior incidents because they illuminated the nature of A.S. and Common’s relationship

and provided the jury useful context. This is the purpose of relationship evidence. See

McCoy, 682 N.W.2d at 159. The district court concluded that the prior acts showed that

Common’s attitude toward A.S. was one of control and that he was entitled to be

physically present around her. The district court also highlighted the concern from

McCoy that “[d]omestic abusers often exert control over their victims, which undermines

the ability of the criminal justice system to prosecute cases effectively.” Id. at 161. The

state expressed concern that A.S. would be reluctant to testify, and indeed this was the

case: A.S. testified that she did not remember what occurred when Common entered her

dwelling that night, despite the account that she gave in the hospital following the

incident.   Relationship evidence is probative because it helps the jury evaluate the

“credibility of the principals in the relationship.” Id.




                                               5
      The potential for unfair prejudice was low. The state did not mention the prior

acts during closing argument. The district court twice read a cautionary instruction

directly from the standard jury instructions which appropriately limited use of the

evidence. 10 Minnesota Practice, CRIMJIGs 2.01, 3.16 (2006). “We presume that juries

follow instructions given by the court.” State v. Matthews, 779 N.W.2d 543, 550 (Minn.

2010). Common offers nothing to rebut this presumption.

      The district court did not abuse its discretion in admitting the relationship

evidence.

      Affirmed.




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