                         This opinion will be unpublished and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
                                    A14-1194

                                  State of Minnesota,
                                      Respondent,

                                           vs.

                                Michael Nelson Preston,
                                      Appellant.

                                 Filed March 23, 2015
                                       Affirmed
                                   Bjorkman, Judge


                            Hennepin County District Court
                              File No. 27-CR-13-41912

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges his conviction of domestic assault by strangulation, arguing

that the district court committed plain error in admitting certain character evidence and
abused its discretion by excluding testimony he sought to elicit as rebuttal character

evidence. Appellant also asserts various arguments in a pro se supplemental brief. We

affirm.

                                            FACTS

          In the early morning hours of December 18, 2013, L.J. got into an argument with

her boyfriend, appellant Michael Preston. A friend called L.J. while she and Preston

were talking, and she answered the phone. Preston demanded that she hang up, which

she did. When the friend called again, Preston told L.J. to give him the phone. They

fought over the phone, and Preston broke it. L.J. then grabbed another phone. Preston

pushed her onto the bed and told her to let go of the phone; she would not. Preston put

L.J. in a headlock, with the crook of his arm in the middle of her throat. He applied

pressure to her throat for long enough that she was unable to breathe and briefly lost

consciousness. Preston apologized but did not let L.J. leave the apartment.

          Later that day, while Preston was talking with a friend, L.J. fled the apartment and

called 911. She reported that Preston had choked her. Police responded to the apartment

and arrested Preston.

          The following day, L.J.’s throat was swollen and painful and her voice was hoarse.

She went to the hospital, where her neck and eyes were examined. L.J. had pinkish

mucous areas on the sclera of both eyes, darkened areas, and a reddened, irritated area on

the upper part of her left eye. The treating nurse noted that lack of sleep and some drugs

can cause redness and irritation, but that the darkened areas indicate pressure in the small

blood vessels of the eyes, which is consistent with strangulation.


                                               2
      Preston was subsequently released from jail. L.J. returned to the apartment so he

did not “disappear” before he could be charged and taken into custody again. On

December 24, respondent State of Minnesota charged Preston with domestic assault by

strangulation, and he was returned to jail; the state later added a charge of false

imprisonment.

      On December 30, Preston called L.J. from jail five times.          They repeatedly

discussed the fact that the phone calls were being recorded. At one point, L.J. told

Preston that a “lady” told her that he “shot a gun and . . . was locked up.” When Preston

told L.J. he loved her and asked if she was “gonna do the right thing,” she responded,

“No, you shouldn’t of choked me.” He did not deny it but said, “I know I shouldn’t of

did that sh-t man, but c’mon woman.” He went on to say that he thought they were

reconciled because he had apologized and promised never to do it again, and because L.J.

returned after he was released from jail. L.J. explained that she did so only to make sure

that he would “pay for” what he did. She said that she would not reconcile with him

because he is “abusive,” “psychotic,” “jealous,” “possessive,” and “controlling,” and

because he needs to get psychological help to deal with those issues.

      At Preston’s jury trial, the state presented L.J.’s testimony, medical testimony

about L.J.’s injuries, and Preston’s jail phone calls. Preston elicited evidence that L.J.

uses crack cocaine and argued that she fabricated the December 18 incident because

Preston had smoked crack cocaine with another woman and did not save any for her. The

jury acquitted Preston of false imprisonment and found him guilty of domestic assault by




                                            3
strangulation. Preston filed a pro se motion for a new trial, which the district court

denied. The district court sentenced him to 36 months’ imprisonment. Preston appeals.

                                      DECISION

I.     The district court did not commit prejudicial plain error by admitting the
       unredacted jail phone calls between Preston and L.J.

       When, as here, an appellant fails to object to the admission of unredacted audio

evidence at trial, we review for plain error. Minn. R. Crim. P. 31.02; Minn. R. Evid.

103(d); Bernhardt v. State, 684 N.W.2d 465, 475 (Minn. 2004). In applying the plain-

error test, we will reverse only if the district court (1) committed an error; (2) that was

plain; (3) that affected the defendant’s substantial rights; and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Montanaro v. State, 802

N.W.2d 726, 732 (Minn. 2011). An error is prejudicial if the appellant proves that it is

reasonably likely that the error “had a significant effect” on the jury’s verdict. Id.

(quotation omitted).

       Preston asserts plain error in the failure to redact from the jail phone calls

(1) L.J.’s comments describing his general character and (2) her statement that he was in

jail because he “shot a gun.”       He contends the statements are improper character

evidence. Evidence regarding a defendant’s character generally is inadmissible unless

the defendant puts his character at issue. Minn. R. Evid. 404(a)(1). Accordingly, upon a

proper objection, a district court generally should redact such references from otherwise

admissible evidence. See State v. Tovar, 605 N.W.2d 717, 725 (Minn. 2000) (citing State

v. Hjerstrom, 287 N.W.2d 625, 627 (Minn. 1979); cf. State v. Pearson, 775 N.W.2d 155,



                                              4
161-62 (Minn. 2009) (holding that failure to redact defendant’s statements about getting a

lawyer from police interview was error). But a district court does not necessarily err by

failing to redact such references sua sponte, particularly when the evidence in question

provides important context or the record indicates that the defendant strategically

declined to request redaction. See Tovar, 605 N.W.2d at 726 (upholding admission of

police statements that defendant was lying as context for defendant’s statements and

record indicated strategic reasons for not objecting); State v. Czech, 343 N.W.2d 854,

856-57 (Minn. 1984) (holding that it was not error to fail to redact the defendant’s

references to prior crimes because they provided context as to why the undercover

officers were speaking with the defendant).

       Our thorough review of the phone calls reveals good reasons for not redacting the

statements that Preston now challenges. First, these statements are interspersed with

discussion of the strangulation offense and establish a context for that undisputedly

admissible evidence. See Tovar, 605 N.W.2d at 726 (upholding admission of police

statements that defendant was lying as context for defendant’s statements). Second,

Preston’s failure to request redaction appears to have been strategic. Defense counsel

used the phone calls as evidence in support of his arguments that L.J. fabricated the

strangulation to get back at Preston for smoking all of her crack cocaine with another

woman and that she manipulated Preston during the calls to further this fabrication.

“Trial counsel cannot have it both ways: failing to raise a specific objection at trial for its

own reasons of trial strategy, then claiming the admission of such evidence as error on




                                              5
appeal.” Id. On this record, the district court did not plainly err by not sua sponte

redacting the statements from the otherwise admissible recordings.

       Moreover, Preston has not demonstrated that the challenged statements impaired

his substantial rights. Even considered collectively, the statements are a relatively small

part of the five phone calls presented to the jury.      They also are similar to many

statements Preston himself made during the calls, acknowledging his threatening conduct

and volatile and aggressive tendencies, to which he does not object. And the evidence

against Preston is extensive. Most of the substance of the phone calls is undisputedly

admissible, including Preston’s numerous statements acknowledging that he choked or

strangled L.J. These statements are consistent with L.J.’s testimony about the incident

and her attempts to report it, as well as medical evidence of her injuries. On this record,

we are not persuaded that the limited character evidence convinced the jury to find

Preston guilty of the strangulation charge. Accordingly, we conclude Preston’s plain-

error challenge to the unredacted phone calls fails.

II.    The district court did not abuse its discretion by excluding testimony Preston
       sought to elicit about his character.

       We review a district court’s evidentiary rulings for an abuse of discretion and

harmless error. State v. Quick, 659 N.W.2d 701, 713 (Minn. 2003). If a district court

excludes evidence but a reasonable jury presented with that evidence “would have

reached the same verdict,” then the erroneous exclusion of the evidence is harmless

beyond a reasonable doubt. State v. Blom, 682 N.W.2d 578, 622-23 (Minn. 2004). This




                                             6
standard of review applies even when a defendant claims that an evidentiary ruling

impaired his constitutional rights. Quick, 659 N.W.2d at 713.

       Evidence must be relevant to be admissible. Minn. R. Evid. 402. To be relevant,

evidence must have a tendency to make the existence of any fact of consequence to

determining the defendant’s guilt more or less probable than it would be without the

evidence. Minn. R. Evid. 401.

       Preston sought to elicit testimony from L.J. that he “had no problem with other

men picking [her] up from his apartment.” The district court excluded this testimony as

irrelevant. Preston contends that the state opened the door to the evidence by presenting

L.J.’s recorded statements that he is “jealous” and “controlling.” We are not persuaded.

“Opening the door occurs when one party by introducing certain material . . . creates in

the opponent a right to respond with material that would otherwise have been

inadmissible.”   State v. Valtierra, 718 N.W.2d 425, 436 (Minn. 2006) (quotation

omitted). But the right to respond is not automatic; it is left to the discretion of the

district court and permitted only when fairness requires. See id. (stating that opening-the-

door doctrine “must be applied cautiously”).        Admitting evidence about other men

picking L.J. up from Preston’s apartment would not have made Preston’s trial more fair.

The district court did not abuse its discretion by excluding this irrelevant evidence.

       Moreover, Preston has not demonstrated any resulting prejudice. Preston had

ample opportunity to cross-examine L.J. about the events of December 18, her 911 call

and other contacts with police, the jail phone calls, and her possible motive for

fabricating the choking incident. And as we noted above, the record contains extensive


                                              7
evidence of Preston’s guilt. Accordingly, we conclude Preston is not entitled to relief on

this basis.

III.   Preston’s pro se arguments lack merit.

       Preston argues that he was deprived of a fair trial because his “admission” to

choking L.J. during the jail phone calls was coerced. This argument is unavailing. There

is no reason why L.J., a private actor, could not pressure Preston to make such an

admission during a phone call that he knew was recorded. But there is no indication that

she did so. Preston had ample opportunity during the calls to refute L.J.’s assertion, but

instead he made numerous statements acknowledging and apologizing for his conduct,

and he repeatedly called L.J. back to continue the conversation.

       Preston next challenges L.J.’s unsolicited testimony that he choked her. Our

review of the record confirms that L.J. repeatedly offered testimony—often about the

choking incident—when there was no question before her, and that the district court

admonished her to wait for a question. But we are not persuaded that L.J.’s statements

deprived Preston of a fair trial. They duplicated L.J.’s unchallenged testimony about

Preston choking her, and defense counsel used L.J.’s recalcitrance to support Preston’s

fabrication defense, arguing that L.J. could not be controlled, even in a courtroom.

       Preston also argues that L.J. made improper statements defaming his character in

the hallway in front of the jury. The district court made a record of the incident:

                     [L.J.] had gone into the hallway after we had recessed
              for the morning and made statements to other witnesses and
              to people generally, in a loud and boisterous manner. And
              there were jurors present who heard in effect an outburst



                                             8
               where she objected to the way she was treated on cross-
               examination, as I understood it.

Defense counsel expressly declined to seek a mistrial based on the incident. And while

Preston did file a pro se motion for a new trial, that motion was based on L.J.’s testimony

about his custody status, not her statements in the hallway.

        Finally, Preston argues that the district court improperly excluded evidence that he

and L.J. were in a significant romantic or sexual relationship, as required to prove

domestic assault by strangulation. Preston points to only one line of questioning that the

district court prevented—a question defense counsel posed to L.J. about how she earns

money to take care of her children. This question bears no apparent relevance to the

nature of Preston and L.J.’s relationship.

        In sum, we conclude that Preston’s pro se arguments do not establish any grounds

for relief.

        Affirmed.




                                             9
