                         This opinion will be unpublished and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
                                    A13-1719

                                  State of Minnesota,
                                      Respondent,

                                           vs.

                               John Christopher Winford,
                                      Appellant.

                               Filed September 2, 2014
                                      Affirmed
                                  Halbrooks, Judge


                            Hennepin County District Court
                              File No. 27-CR-12-13348

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, Charles F. Clippert, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Hudson, Judge.

                        UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges his convictions of first-degree burglary, felony stalking,

domestic assault, and fifth-degree assault. Appellant argues that his convictions must be
reversed because the district court abused its discretion by admitting evidence of his prior

similar conduct against a domestic-abuse victim. Appellant also argues that his first-

degree burglary conviction must be reversed because the district court erroneously

instructed the jury in a manner that allowed it to return a verdict that was not unanimous.

We affirm.

                                          FACTS

       Appellant John Winford has a long history of domestic violence against P.J., who

is his ex-girlfriend and the mother of his children. In 2012, the parties were not living

together, nor were they in a romantic relationship. On April 23, 2012, P.J. was at home

cooking with her children and two friends, W.O. and A.B. Appellant entered P.J.’s home

without consent and used the restroom. P.J. told appellant to leave the home, and the two

started arguing. The argument escalated, and appellant became physically aggressive.

P.J. testified that appellant punched her, hit her in the head, threw her down, and kicked

her when she tried to get up. When W.O. attempted to stop appellant, he attacked her,

hitting her with his fist. J.P., who is P.J.’s daughter and 11 years old at the time, also

tried to stop appellant by jumping on him and hitting him. J.P. testified that appellant

threw her off of him and slapped her, causing her to fall.

       By the time that police arrived, appellant was no longer at the home. Following

investigation, appellant was charged with (1) first-degree burglary, (2) felony pattern of

stalking of P.J., (3) domestic assault against P.J., (4) fifth-degree assault against W.O.,

and (5) fifth-degree assault against J.P. The case was tried to a jury.




                                              2
       P.J. testified at trial about her relationship with appellant. She stated that appellant

first became physically abusive—punching, grabbing, and fighting her—when she was

pregnant with their first child. P.J. testified that there had “been times where pictures had

been taken from police calls with bust[ed] mouths, nose bleeding, stuff like that.” She

also testified about appellant’s 2007 and 2009 convictions of domestic assault against

her. She described the 2009 incident, stating that appellant “jumped on” her, “grabbed

[her] by [her] neck and threw [her] down on the ground and . . . dragged [her].”

       Sergeant Franklin Ellering, who was responsible for investigating the incident that

occurred on April 23, also testified at trial. He testified that through his investigation he

learned that appellant had been convicted of domestic assault in 2007 and again in 2009.

As a condition of his 2009 sentence, appellant was to have no contact with P.J. But in

2010, appellant was convicted of violating a domestic no-contact order.

       After the witness testimony concluded, the district court instructed the jury on the

law relating to appellant’s charges. In regard to first-degree burglary, the district court

instructed that

              [t]he statutes of Minnesota provide that whoever enters a
              building without the consent of the person in lawful
              possession and assaults another within the building or on the
              building’s appurtenant property is guilty of a crime.
              The elements of burglary in the first-degree are:
              First, the defendant entered a building without the consent of
              [P.J.] or refused to leave when asked.
              Second, the defendant assaulted [P.J.], [W.O.] or [J.P.] within
              the building or on the building’s appurtenant property.
              Third, the defendant’s act took place on April 23rd in
              Hennepin County.
              If you find that each of these elements has been proven
              beyond a reasonable doubt, the defendant is guilty. If you


                                              3
              find that any element has not been proven beyond a
              reasonable doubt, the defendant is not guilty.

       The jury found appellant guilty of first-degree burglary, felony pattern of stalking,

domestic assault of P.J., and fifth-degree assault of W.O. Appellant was found not guilty

of fifth-degree assault of J.P. This appeal follows.

                                     DECISION

I.     Jury Instructions

       Appellant challenges the district court’s jury instructions related to first-degree

burglary. “Generally speaking, an appellate court will not consider an alleged error in

jury instructions unless the instructions have been objected to at trial.” State v. Baird,

654 N.W.2d 105, 113 (Minn. 2002). When there is no objection made at trial, as is the

case here, we apply the plain-error test set forth in State v. Griller, 583 N.W.2d 736, 740

(Minn. 1998). State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). Under this test,

the challenging party must show: (1) error, (2) that is plain, (3) that affects the party’s

substantial rights. Griller, 583 N.W.2d at 740. If all three prongs are satisfied, we then

determine whether the error must be addressed to ensure the fairness and integrity of the

judicial proceedings. Id.

       We review the district court’s jury instructions to determine whether they “fairly

and adequately explain the law.” State v. Vance, 734 N.W.2d 650, 656 (Minn. 2007),

overruled on other grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012). “[J]ury

instructions must define the crime charged and explain the elements of the offense to the




                                             4
jury.” Vance, 734 N.W.2d at 656. An instruction that materially misstates the law

constitutes error. State v. Caine, 746 N.W.2d 339, 353 (Minn. 2008).

       In order to analyze the accuracy of the district court’s instructions, it is necessary

to examine the elements of the first-degree burglary statute at issue.           See State v.

Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). Minnesota’s first-degree burglary statute

states that whoever “enters a building without consent and commits a crime while in the

building, either directly or as an accomplice, commits burglary in the first degree . . . if:

. . . (c) the burglar assaults a person within the building or on the building’s appurtenant

property.” Minn. Stat. § 609.582, subd. 1(c) (2012) (emphasis added).

       Appellant argues that the district court erred by instructing the jury that he was

guilty of first-degree burglary if the jury found that “[he] assaulted [P.J.], [W.O.] or [J.P.]

within the building or on the building’s appurtenant property.” Appellant argues that this

instruction allowed the jury to return a verdict that was not unanimous because the jury

was not required to agree on who the victim of the assault was.

       Under the plain language of Minn. Stat. § 609.582, subd. 1(c), the district court’s

jury instruction was not misleading, confusing, or a misstatement of the law. The statute

requires the state to prove that a burglar assaulted “a person within the building.” Id.

Therefore, if appellant assaulted any person while in P.J.’s home, he would have

assaulted “a person within the building.” Moreover, “unanimity is not required with

respect to the alternative means or ways in which the crime can be committed.” State v.

Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987) (quotation omitted) (affirming




                                              5
defendant’s terroristic threats conviction even though the jury may not have agreed on

which victim the defendant intended to terrorize), review denied (Minn. Jan. 20, 1988).

       The verdict indicates that the jury agreed on the ultimate conclusion that appellant

had assaulted “a person” in the home after he had entered it without consent. Because the

statute merely requires the state to prove that appellant assaulted “a person” within the

home, the district court did not err in its jury instruction. As a result, we need not address

whether appellant’s substantial rights were unfairly affected by this instruction. See State

v. Goelz, 743 N.W.2d 249, 258 (Minn. 2007) (noting that where a defendant fails to

establish one factor of the plain-error test “we need not consider the other factors”).

II.    Similar-Conduct Evidence Under Minn. Stat. § 634.20 (2012)

       Appellant argues that the district court erred by allowing the jury to hear improper

propensity evidence of his past domestic-assault-related convictions involving P.J. In

general, evidence of prior crimes or bad acts, known as Spreigl evidence, is not

admissible as character evidence to show that the person acted in conformity with that

character. Minn. R. Evid. 404(b); see generally State v. Spreigl, 272 Minn. 488, 139

N.W.2d 167 (1965). But under Minn. Stat. § 634.20,

              [e]vidence of similar conduct by the accused against the
              victim of domestic abuse . . . 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 evidence is admissible to “demonstrate the history of the relationship

between the accused and the victim of domestic abuse” and to place the offense in the



                                              6
appropriate context. State v. Word, 755 N.W.2d 776, 784 (Minn. App. 2008); see also

State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004).

       We review a district court’s decision to admit similar-conduct evidence under

Minn. Stat. § 634.20 for an abuse of discretion. State v. Lindsey, 755 N.W.2d 752, 755

(Minn. App. 2008), review denied (Minn. Oct. 29, 2008). A district court may admit this

evidence if the conduct underlying the current charge qualifies as “domestic abuse” as

defined in Minn. Stat. § 518B.01, subd. 2 (2012). See State v. Barnslater, 786 N.W.2d

646, 651 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010). “Domestic abuse”

means, among other things, physically harming, assaulting, or inflicting fear of imminent

physical harm, injury or assault against a family or household member. Minn. Stat.

§ 518B.01, subd. 2(a)(1), (2). A “family or household member” includes persons who

have a child in common. Minn. Stat. § 518B.01, subd. 2(b)(5). Appellant and P.J. have

children in common. Because the state alleged that appellant inflicted physical harm on

P.J., P.J.’s testimony qualifies for admission under section 634.20.

       We must next address whether the district court abused its discretion by

determining that the probative value of this evidence substantially outweighed its danger

of unfair prejudice. McCoy, 682 N.W.2d at 159. Appellant argues that testimony from

P.J. and Sergeant Ellering had minimal probative value and was unfairly prejudicial.

Specifically, appellant asserts that details relating to his prior assaults were not fully

discussed, and “without more detail, [the testimony did] not illuminate the relationship

between [P.J.] and [appellant].”




                                             7
       “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.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).

On this record, we cannot conclude that the admission of similar-conduct evidence gave

the state an “unfair advantage.”

       This evidence was highly probative. Appellant faced multiple charges at trial. He

was charged with burglary, assault, and felony pattern of stalking P.J. For the state to

prove that appellant was guilty of a pattern of stalking conduct, it needed to show that he

engaged in two or more acts within a five-year period of conduct that he knew or had

reason to know would cause P.J. “to feel terrorized or to fear bodily harm” and that she in

fact felt this way.    Minn. Stat. § 609.749, subd. 5(a)(b) (2012).         Evidence about

appellant’s past assaults against P.J. supported a conclusion that P.J. was either terrorized

or feared bodily harm by appellant’s conduct on April 23, in addition to establishing a

“pattern.” Moreover, “[e]vidence that helps to establish the relationship between the

victim and the defendant or which places the event in context bolsters its probative

value.” Lindsey, 755 N.W.2d at 756 (quotation omitted). Similar-conduct evidence also

has significant probative value in assisting the jury to judge witness credibility. Id. at

757.

       Because the probative value of this evidence substantially outweighed the danger

of any unfair prejudice, the district court properly exercised its discretion by allowing

evidence of appellant’s prior domestic assaults to be heard by the jury.


                                             8
       Appellant also argues that the district court’s error in admitting similar-conduct

evidence “was compounded by a lack of cautionary instruction.” During the prosecutor’s

cross-examination of appellant, the district court instructed the jury that it could use

appellant’s “other convictions . . . for any purpose.” The district court included a similar

instruction in its final instructions to the jury. The state did not respond to this argument

in its brief but based on our review of the record, defense counsel objected to the timing

but not the substance of the instruction.

       Typically, “an appellate court will not consider matters not argued to and

considered by the district court.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

And here, appellant has failed to provide any legal authority in support of his assertion

that this instruction was in error. Appellant has also failed to address how this jury

instruction affected his substantial rights. We will refuse to consider propositions that are

unsupported by legal argument or authority “unless prejudicial error is obvious on mere

inspection.” State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997)

(quotation omitted). Because our review of the record reveals no discernible prejudice to

appellant, we conclude that this alleged error does not warrant reversal of appellant’s

convictions.

III.   Appellant’s Pro Se Arguments

       In his pro se supplemental brief, appellant argues that the district court erred by

not admitting his electricity bill and phone records into evidence. As a corollary, he also

asserts that he received ineffective assistance of counsel because his attorney did not

offer these exhibits. The relevance of the records is unclear, and, in addition, appellant


                                             9
does not cite any legal authority. This court “will not consider pro se claims on appeal

that are unsupported by either arguments or citations to legal authority.”      State v.

Bartylla, 755 N.W.2d 8, 22 (Minn. 2008).

      Affirmed.




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