State v. Zinski

State of Minnesota, Respondent, v. Danny Lee Zinski, Appellant.

A17-0136

STATE OF MINNESOTA IN COURT OF APPEALS

January 22, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Reversed and remanded

Reyes, Judge

Washington County District Court

File No. 82-KX-95-004671

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)

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

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and Reyes, Judge.

UNPUBLISHED OPINION

REYES, Judge

Appellant challenges his convictions of first-degree burglary and fourth-degree criminal sexual conduct, arguing that the district court's widespread admission of relationship-evidence testimony without a limiting instruction as to its proper, limited purpose, both when the evidence was introduced and in the final jury instructions, was plain error affecting his substantial rights. We reverse and remand.

FACTS

On September 28, 1995, after D.S. ended her relationship with appellant Danny Lee Zinski, he telephoned her many times telling her that he wanted to "make love" to her one last time. D.S. told appellant that he was not welcome in her home.

D.S. awoke the next morning to find appellant sitting next to her wearing only his underwear. He told her he wanted to "make love" one more time. She refused. D.S. testified that appellant got on top of her, ejaculated on her leg, and wiped his semen off with an article of clothing. Later that day, D.S. called 911 and filed a police report.

On October 3, 1995, appellant was charged in Washington County District Court with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c), and fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(c). The prosecution amended the burglary charge to gross-misdemeanor harassment in violation of Minn. Stat. § 609.748, subd. 2. Appellant pleaded guilty to the gross-misdemeanor-harassment charge in exchange for the dismissal of the criminal-sexual-conduct charge. The district court sentenced appellant to one year in jail, with 305 days stayed for a two-year probationary period.

On October 31, 2013, appellant filed a postconviction petition seeking withdrawal of his guilty plea, which the postconviction court denied. Appellant filed a notice of appeal with this court. We reversed the postconviction order and remanded the case forwithdrawal of the guilty plea. Zinski v. State, No. A14-0984, 2015 WL 4171341 (Minn. App. 2015).

At a hearing following remand, the district court appointed counsel for appellant, ordered the plea withdrawn, and reinstated the original charges of first-degree burglary and fourth-degree criminal sexual conduct. At jury trial, the district court allowed the state to present relationship evidence testimony pursuant to Minn. Stat. § 634.20 (2016) from four witnesses. No limiting instruction was requested or provided relating to any of the relationship-evidence testimony. The jury found appellant guilty of both charges. The district court sentenced appellant to 78 months imprisonment for first-degree burglary and 21 months imprisonment for fourth-degree criminal sexual conduct, to be served consecutively. This appeal follows.

DECISION

Appellant argues that the district court committed plain error affecting his substantial rights when it failed to provide a limiting instruction both when the relationship-evidence testimony was provided and when the district court provided the jury instructions. We agree.

Relationship evidence is admissible under Minn. Stat. § 634.20 if: (1) it is domestic conduct by an accused against the victim of domestic conduct or against other family or household members and (2) its probative value is not substantially outweighed by the danger of unfair prejudice. Minn. Stat. § 634.20 (2016) (emphasis added). Domestic conduct includes but is not limited to evidence of domestic abuse, a violation of an order for protection, violation of a harassment restraining order, stalking, or obscene or harassingtelephone calls. Relationship evidence may be used as direct evidence "offered to prove an element of the [charged] offense" and is "offered to illuminate the history of the relationship, that is, to put the crime charged in the context of the relationship between the two." State v. McCoy, 682 N.W.2d 153, 159-60 (Minn. 2004) (citing State v. Cross, 577 N.W.2d 721, 725 (Minn. 1998)).

Absent an objection, we review the admission of relationship evidence for plain error. State v. Barnslater, 786 N.W.2d 646, 653 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010) (citing Minn. R. Crim. P. 31.02). An unobjected-to alleged error will be corrected upon a finding of: (1) error; (2) that was plain; and (3) that affects the appellant's substantial rights. State v. Meldrum, 724 N.W.2d 15, 20 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007). An "error" is defined as a "[d]eviation from a legal rule [ ] unless the rule has been waived." State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014) (quoting United States v. Olano, 507 U.S. 725, 732-33, 113 S. Ct. 1770 (1993)). See also State v. Peltier, 874 N.W.2d 792 (Minn. 2016); State v. Moore, 863 N.W.2d 111, 119-122 (Minn. 2015); State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002) (concluding jury instruction materially misstating the law satisfied the "error" prong of the plain-error analysis).

Once error is established, we must next determine whether the error is plain, based on "the law in existence at the time of appellate review." Kelley, 855 N.W.2d at 277. "An error is plain if it is clear and obvious; usually this means an error that violates or contradicts case law, a rule, or an applicable standard of conduct." State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).

Next, we must determine whether the plain error affected appellant's substantial rights. This occurs if the plain error was "prejudicial and affected the outcome of the case." Ihle, 640 N.W.2d at 917. We look "at the entire record to determine if there is a significant likelihood that the jury misused the evidence." Meldrum, 724 N.W.2d at 21-22. If this three-prong test is satisfied, the error should be corrected if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012) (quotation omitted).

I. The district court's failure to provide a limiting instruction was plain error that affected appellant's substantial rights.

Here, appellant argues, and the state concedes, that the district court's failure to provide a limiting instruction both when four different witnesses provided relationship evidence testimony and in its final jury instructions constitutes an error that was plain. We agree.

Even absent a request from the defendant, the district court should give proper limiting instructions when relationship evidence is admitted, both at the time the evidence is presented and in the final jury instructions, Meldrum, 724 N.W.2d at 21, because of the potentially prejudicial nature of relationship evidence. See id. In Meldrum, we noted that the danger of the jury misusing relationship evidence is so significant that a limiting instruction should be given before the admission of the evidence and failure to do so was error. See id. In State v. Word, we subsequently held that "[i]n light of our decision in Meldrum, the district court should have issued cautionary instructions related to the proper use of relationship evidence, and the failure to do so represented error that was plain[,]"but such plain error did not require reversal because it did not affect appellant's substantial rights. 755 N.W.2d 776, 785 (Minn. App. 2008). In State v. Barnslater, we held that "[i]n light of our decisions in Word and Meldrum, the district court's error in failing to instruct the jury regarding the proper use of the relationship evidence was plain," but, like in Word, this plain error did not affect appellant's substantial rights. 786 N.W.2d 646, 654 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010). Based on our relationship-evidence precedent, the district court's failure to provide a limiting instruction prior to the introduction of relationship evidence and in its final jury instruction was plain error.

We acknowledge this court's recent opinion in State v. Melanson, ___ N.W.2d ___ (Minn. App. 2018). The Melanson court held that the district court's failure to give a limiting instruction sua sponte regarding the admission of relationship evidence was not plainly erroneous based on its interpretation of State v. Taylor, 869 N.W.2d 1 (Minn. 2015). Melanson, ___ N.W.2d at ___. Melanson is distinguishable.¹

The Melanson opinion is limited to its particular facts. Melanson, ___ N.W.2d at ___ ("the district court's failure to give a limiting instruction sua sponte regarding the admission of relationship evidence was not plainly erroneous" (emphasis added)). The Melanson court's opinion did not overrule Meldrum, Barnslater, or Word. Indeed, Melanson noted that, "Given the facts presented in Barnslater and Word, we held that, in those cases, the district court's failure to provide a limiting instruction sua sponte was plain error." Melanson, ___ N.W.2d at ___ (citing Barnslater, 786 N.W.2d at 654; Word, 755 N.W.2d at 785-86).

Given our facts, the district court's failure to provide a limiting instruction constituted plain error because it violated the legal rule established in McCoy, which created an evidentiary standard for relationship evidence pursuant to Minn. Stat. § 634.20. 682 N.W.2d at 160. Section 634.20 states that relationship evidence is admissible "unless the probative value is...