State of Minnesota, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0417

State of Minnesota,
Respondent,

vs.

Jonathan Edward Buhl,
Appellant.

Filed May 8, 2017
Affirmed
Johnson, Judge

Dakota County District Court
File No. 19HA-CR-15-1491

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

James C. Backstrom, Dakota County Attorney, Jeffrey R. Nelson, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Schellhas , Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Dakota County jury found Jonathan Edward Buhl guilty of domestic assault based
on evidence that he slapped his wife across her face. Buhl argues that the district court
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erred by not permitting him to impeach his wife’s testimony and by not permitting his
attorney to challenge his wife’s credibility in closing argument. We conclude that the
district court did not err in its evidentiary rulings or in its limitation on closing argument.
Therefore, we affirm.
FACTS
In May 2015, Buhl and his wife, J.M., lived in a single-family home with J.M.’s
mother, who owned the home. In the early morning hours of May 9, Buhl and J.M. had an
argument after Buhl returned home from a bar. J.M. called 911. At approximately 3:30
a.m., a police officer visited the home. J.M. told the officer that Buhl slapped her across
her face. The officer noticed a red mark on J.M.’s face and took photographs. Buhl denied
slapping J.M. and told the officer that J.M. had hit him. The officer took photo graphs of
Buhl.
Three days later, the state charged Buhl with one count of domestic assault by
inflicting fear, in violation of Minn. Stat. § 609.2242, subd. 1(1) (201 4), and one count of
domestic assault by inflicting harm, in violation of Minn. Stat. § 609.2242, subd. 1(2)
(2014).
On the eve of trial in December 2015, Buhl orally moved in limine for a ruling that
would allow him to impeach J.M. with a prior felony conviction and with the fact that she
was on probation at the time of the May 9 incident. The district court denied the motion,
ruling that the proffered evidence could not be used to impeach J.M.
During the evidentiary phase of trial, the state called three witnesses: J.M. and two
law-enforcement officers. J.M. had difficulty remembering the events of May 9 but, after
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having her recollection refreshed, testified that Buhl slapped her. On cross-examination,
Buhl’s attorney asked J.M. about an incident in 2013 in which she called the police to
report that Buhl broke down a door in order to enter the home where J.M. then was living.
The prosecutor objected on relevance grounds. During a lengthy discussion outside the
presence of the jury, Buhl’s attorney stated that she wished to introduce evidence that J.M.
made a false report against Buhl in 2013 as a way of challenging the credibility of her
accusation in this case. The district court ruled that Buhl could ask J.M. about the 2013
report but could not introduce extrinsic evidence to contradict J.M.’s answers to the
questions on that topic . Buhl’s attorney continued the cross -examination by asking J.M.
about her 2013 report against Buhl, using a contemporaneous police report to refresh her
recollection. J.M. persisted in testif ying that she could not remember the 2013 report.
Buhl’s attorney then used an excerpt from the transcript of a subsequent criminal trial
concerning the 2013 incident in an attempt to refresh J.M.’s recollection that she testified
that Buhl did not break into the home because she let him in by unlocking the door. Buhl’s
attorney read aloud from the transcript, but J.M. testified that she could not recall her prior
testimony.
During the defense case, Buhl testified that he did not hit J.M. on May 9 and that
J.M. hit him. Buhl then called a retired police officer, who had responded to J.M.’s 2013
report that Buhl had broken down the door to her home. Before the retired officer took the
witness stand, the district court and counsel had another lengthy discussion outside the
presence of the jury , which followed an off -the-record conversation. The district court
noted the prosecutor’s objection to the retired officer’s proffered testimony on the ground
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that the testimony would be improper impeachment evidence. The district court noted
Buhl’s attorney’s response that the proffered testimony is admissible as relationship
evidence. See Minn. Stat. § 634.20 (2014); State v. Fraga, 864 N.W.2d 615, 627 (Minn.
2015); State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). The district court overruled
the state’s objection on the ground that the evidence is admissible as relationship evidence,
and the district court instructed counsel that the evidence must be limited in scope to the
report that J.M. made to the officer in 2013. The state did not request a limiting instruction
to the jury. See Minn. R. Evid. 105.
In the course of its ruling on admissibility, the district court also cautioned Buhl’s
attorney that, “because the defense is relying on this as relationship evidence and not
extrinsic evidence as to the character for truthfulness, you must frame your argument in
that way, characteristic of the relationship and not she lied under oath.” The district court
elaborated by saying to Buhl’s attorney, “you can argue that this is a pattern in the
relationship, but you must be very careful to not run afoul of rule 608” because the retired
officer’s testimony was being admitted “as relationship evidence but not as extrinsic
evidence to prove character or dishonesty.” In her closing argument, Buhl’s attorney
referred to the 2013 incident by stating,
On September 8, 2013, [J.M.] called police and told Officer
Abrahamson, who you just heard from this morning, that her
husband Jonathan Buhl gained entry to her home by breaking
down the door. Later, on [December 17, 2013], she came into
court, testified under oath that that didn't happen; she let him
in.

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The jury found Buhl guilty of domestic assault by inflicting harm but not guilty of
domestic assault by inflicting fear. The district court sentenced Buhl to 21 months of
imprisonment. Buhl appeals.
D E C I S I O N
I. Impeachment of J.M. with Criminal Record
Buhl argues that the district court erred in its in limine ruling by not allowing him
to impeach J.M. with her prior felony drug conviction or the fact that she was on probation
at the time of the May 9, 2015 incident.
A. Prior Drug Conviction
Buhl’s argument concerning J.M.’s prior drug conviction is based on the Minnesota
Rules of Evidence, though he also cites caselaw concerning the Sixth Amendment right of
confrontation. In general, “Evidence of another crime, wrong, or act is not admissible to
prove the character of a person in order to show action in conformity therewith.” Minn. R.
Evid. 404(b). But evidence of a prior conviction is admissible for impeachment purposes
if the crime is punishable by more than one year in prison and the probative value of the
evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a). “[W]hen evaluating
whether to admit a prior conviction of a prosecution witness, the major concerns are to
protect the witness from being harassed and unduly embarrassed, the jury from being
confused and misled, and everyone involved (court, jury, parties) from having to endure
an unnecessarily prolonged trial.” State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).
This court applies an abuse-of -discretion standard of review to a district court’s ruling on
this issue. Id. at 641.
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In the district court, Buhl’s trial attorney did not identify a clear rationale for
impeaching J.M. with her prior conviction. Buhl’s attorney initially argued that the prior
conviction might suggest “an issue of bias or a reason why someone might fabricate a
story.” When the district court asked for an explanation, Buhl’s attorney responded by
referring only to the fact that J.M. was on probation, which is a separate issue that is
discussed below. See infra part I.B. The district court excluded evidence of J.M.’s prior
drug conviction for the following reasons:
I find that the convicti on for the felony controlled-substance
crime—first of all, this is not a crime involving dishonesty or
moral turpitude. I find that the conviction for controlled-
substance crime has minimal impeachment value, that it does
not assist the jury in determining the issues in this case, and
that the prejudicial effect of allowing in that conviction
exceeds the probative value. Essentially, I find that a
conviction for a fifth- degree controlled substance crime has
virtually no probative value in terms of assessing the issues in
this case.

Buhl contends that evidence of J.M.’s prior drug conviction would not have been
prejudicial and would not have confused the jury. But the supreme court stated in Lanz-
Terry that prior convictions could cause a jury to conclude that a victim who testifies as a
prosecution witness “was a bad person who deserved to be the victim of a crime, which
would amount to a decision being made on an improper basis.” 535 N.W.2d at 639. In
light of the caselaw, and given the lack of any other justification for the evidence, the
district court reasonably determined that the evidence lacked probative value.
Buhl also contends that evidence of J.M.’s prior drug conviction would have
allowed the jury to see J.M.’s “whole person” and thereby shed light on her credibility. In
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support of this contention, Buhl cites State v. Hill, 801 N.W.2d 646 (Minn. 2011), which
states that “any felony conviction is probative of a witness’s credibility, and the mere fact
that a witness is a convicted felon holds impeachment value.” Id. at 652. But the Hill
opinion concerns impeachment of a defendant with prior convictions, not impeachment of
a prosecution witness. See id. at 650-51. The supreme court recognized in Lanz-Terry that
different considerations apply to the impeachment of a defendant with a prior conviction.
535 N.W.2d at 639. We are unaware of any Minnesota caselaw applying the “whole
person” rationale to a prosecution witness who is the victim of an alleged crime. The
district court considered the relevant factors under rule 609(a) and did not fail to consider
any justifications offered by Buhl. The district court’s reasons are consist ent with the
relevant caselaw.
Thus, the district court did not err by denying Buhl’s motion in limine with respect
to J.M.’s prior drug conviction.
B. Probationary Status
Buhl’s argument concerning J.M.’s probationary status also is based on the
Minnesota Rules of Evidence, though he again cites caselaw concerning the Sixth
Amendment right of confrontation. The Confrontation Clause gives a defendant a “right
of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315 , 94 S. Ct. 1105, 1110 (1974).
“Cross-examination is the principal means by which the believability of a witness and the
truth of his testimony are tested.” Id. at 316, 94 S. Ct. at 1110. A defendant may challenge
a witness’s credibility in various ways, including the introduction of evidence that raises
“an inference of undue pressure because of [the witness’s] vulnerable status as a
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probationer.” Id. at 318, 94 S. Ct. at 1111. But the right to cross- examine a prosecution
witness on the basis of his probationary status is “[s]ubject always to the broad discretion
of a trial judge to preclude repetitive and unduly harassing interrogation.” Id. at 316, 94 S.
Ct. at 1110. This court applies an abuse-of -discretion standard of review to a district
court’s ruling on this issue. State v. Whittle, 685 N.W.2d 461, 464 (Minn. App. 2004),
review denied (Minn. Oct. 19, 2004).
When Buhl sought to impeach J.M. based on her probationary status, the district
court questioned the purpose of the evidence. Buhl’s attorney argued that, if Buhl had been
inclined to call J.M.’s probation officer to report a probation violation on May 9, J.M. might
have had “a motive to fabricate a story about him to put him in jail so that he can’t do that
or that he will appear less credible.” The district court denied Buhl’s motion without
elaborating on its reasons. On appeal, Buhl notes that he told the responding police officer
that J.M. had hit him, and he contends that he should have been permitted to impeach J.M.
by showing that she had an “incentive to deflect blame or hide the full story.”
Buhl’s argument is flawed because J.M. brought the attention of law enforcement
on herself and Buhl by calling 911. As this court explained in Whittle, if a victim’s report
would reveal a probation violation that otherwise would not have been known, there is less
of a reason why the victim would fabricate the report. 685 N.W.2d at 465. The caselaw
permitting impeachment by probationary status is concerned with the situation in which a
person first is under suspicion of a crime and then fabricates an accusation against the
defendant for the purpose of “minimizing or diverting attention from” the suspected
offense. See id. In Davis, the defendant in a burglary case sought to impeach the testimony
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of a witness who was on probation because of a prior burglary and lived near the place
where stolen items were found at the time that he identified the defendant as a suspect. 415
U.S. at 310-11, 94 S. Ct. at 1107- 08. The defendant’s theory was that the witness “acted
out of fear or concern of possible jeopardy to his probation” and “might have been subject
to undue pressure from the police and made his identifications under fear of possible
probation revocation.” Id. at 311, 94 S. Ct. at 1108. The circumstances of the present case
do not resemble Davis. There is no evidence that J.M. was suspected of any crime before
she called 911, and law-enforcement officers would not have known of any suspected
crime if she had not called 911. Buhl did not introduce or proffer any evidence that he had
reported probation violations by J.M. in the past or that he intended to do so in this instance
or that J.M. was conce rned about his doing so. In fact, when the district court inquired,
Buhl’s attorney admitted that she did not have any evidence that Buhl had threatened to
report a probation violation by J.M. Furthermore, we are mindful that a district court has
broad discretion to admit or exclude impeachment evidence of this type. See id. at 316, 94
S. Ct. at 1110; Whittle, 685 N.W.2d at 464.
Thus, the district court did not err by not allowing Buhl to impeach J.M. with the
fact that she was on probation on May 9.
II. Prior Police Report
Buhl argues that the district court erred during trial by preventing him from
impeaching J.M. with evidence that she made a false accusation against Buhl in 2013.
Buhl’s argument has two parts. He begins by arguing that the district court erred by ruling
that the evidence he introduced is not admissible as impeachment evidence. He argues
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further that the district court’s erroneous ruling on admissibility led the district court to err
by limiting his closing argument. He argues in the alternative that, even if the district court
properly admitted the evidence as relationship evidence but not as impeachment evidence,
the district court nonetheless erred by limiting his closing argument.
A. Basis of Admissibility
Buhl contends that the testimony of the retired officer concerning J.M.’s 2013 report
was admissible not only as relationship evidence but also as impeachment evidence. He
relies alternatively on two different rules of evidence: rule 608(b) and rule 613.
At trial, the state objected on the ground that Buhl’s proffered evidence is
inadmissible impeachment evidence under rule 608(b) of the rules of evidence, which
forbids a party from introducing extrinsic evidence to prove a witness’s character for
untruthfulness. Buhl did not challenge the state’s position that the evidence is inadmissible
under rule 608(b). Rather, Buhl’s attorney responded by suggesting another basis for its
admissibility: the relationship-evidence statute. See Minn. Stat. § 634.20. The district
court admitted the evidence as relationship evidence. On appeal, Buhl again does not
challenge the state’s position that the evidence is inadmissible under rule 608(b). He
appears to assume that rule 608(b), by itself, makes the evidence inadmissible, but he
contends that this court “created an exception to 608(b)” in State v. Goldenstein, 505
N.W.2d 332 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In that case, we
concluded that the district court violated the defendants’ right to present a complete
defense, in violation of their right to due process, by excluding evidence that the alleged
victim had made false accusations against another person on a prior occasion. Id. at 340.
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We note that Buhl did not cite Goldenstein to the district court and does not argue
on appeal that the district court violated his constitutional right to present a complete
defense. As a consequence, it appears that Buhl did not preserve the argument that he
makes on appeal, which means that this court should review for plain error. See Minn. R.
Crim. P. 31.02. In any event, Goldenstein may not be applied in the manner urged by Buhl
because of a subsequent opinion of the supreme court concerning the constitutional right
to present a complete defense. In State v. Pass, 832 N.W.2d 836 (Minn. 2013), the supreme
court stated that “a defendan t’s due process right to present a complete defense yields to
the application of an evidentiary rule unless the rule ‘infringe[s] upon a weighty interest of
the accused and [is] arbitrary or disproportionate to the purposes [the rule is] designed to
serve,’” or unless the rules of evidence “‘serve no legitimate purpose or . . . are
disproportionate to the ends that they are asserted to promote.’” Id. at 841-42 (quoting
Holmes v. South Carolina, 547 U.S. 319, 324-25, 126 S. Ct. 1727, 1731-32 (2006))
(alterations in original). The Pass opinion is consistent with a prior opinion of the United
States Supreme Court, which stated that the constitutional right to present a complete
defense does not alter a state trial court’s “ordinary evidentiary rulings,” including rulings
concerning “evidence that is repetitive . . . , only marginally relevant or poses an undue
risk of harassment, prejudice, or confusion of the issues,” so long as “the application of
evidentiary rules . . . serve[s] the interests of fairness and reliability.” Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 2146 (1986) (quotation omitted; first alteration in
original). Buhl does not contend that rule 608(b) of the Minnesota Rules of Evidence is
“arbitrary or disproportionate to the purposes [the rule is] designed to serve” or that it
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“serve[s] no legitimate purpose” or that its effect is “disproportionate to the ends that [it is]
asserted to promote.” Pass, 832 N.W.2d at 841-42 (quotations omitted). Thus,
Goldenstein does not allow the conclusion that Buhl’s proffered evidence should have been
deemed admissible despite being inadmissible under rule 608(b).
Buhl also contends that the retired officer’s testimony is admissible impeachment
evidence pursuant to rule 613(b). That rule allows, in certain situations and on certain
conditions, “[e]xtrinsic evidence of a prior inconsistent statement by a witness.” Minn. R.
Evid. 613(b). As stated above, the district court and counsel had extensive discussions
concerning Buhl’s proffered impeachment evidence, both during Buhl’s cross-examination
of J.M. and before Buhl’s direct examination of the retired officer. During neither
discussion did Buhl identify rule 613(b) as a basis for admitting his proffered impeachment
evidence. In any event, rule 613(b) cannot justify the admission of the retired officer’s
testimony. J.M.’s statement to the officer in 2013 cannot be deemed a “prior inconsistent
statement” because it concerns a different subject than the subject to which she testified at
trial. See Black’s Law Dictionary 1539 (9th ed. 2009) (defining “prior inconsistent
statement” to mean “[a] witness’s earlier statement that conflicts with the witness’s
testimony at trial”). Because J.M.’s prior statement concerned the 2013 incident and her
testimony at trial concerned the 2015 incident, the two statements are not irreconcilable,
which means that rule 613(b) simply does not apply. See United States v. Bolzer, 367 F.3d
1032, 1038-39 (8th Cir. 2004).
Thus, th e district court did not err by ruling that the retired officer’s testimony
concerning J.M.’s 2013 police report is inadmissible as impeachment evidence.
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B. Limitation on Closing Argument
Buhl also argues that, even if the district court properly admitted the evidence as
relationship evidence but not as impeachment evidence, the district court nonetheless erred
by limiting his closing argument. Buhl did not make a formal object ion to the district
court’s limitation on his closing argument. Accordingly, we review for plain error. See
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
In closing argument, a criminal defendant has a right “to make all legitimate
arguments on the evidence, to explain the evidence, and to present all proper inferences to
be drawn therefrom.” State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009) (quotation
omitted). Whether an argument on certain evidence is “legitimate,” and whether an
inference from certain evidence is “proper” or “misleading,” depends in part on the purpose
for which the evidence was admitted. The supreme court recognized long ago that an
attorney’s argument concerning evidence must be limited to the purpose for which the
evidence was admitted:
While it is true that counsel, in arguing a case to the jury,
is to be given much latitude, and that ordinarily comments of
counsel in the closing arguments on properly received
evidence [are] never error, it does not follow that where
evidence is received for a specific purpose that it can then be
used in argument for some other purpose wholly foreign to the
limited purpose for which it was received to the prejudice of a
litigant.

Fieve v. Emmeck, 248 Minn. 122, 132, 78 N.W.2d 343, 350 (1956) (alteration in original;
emphasis added; quotation omitted). Although this principle has not been reiterated in
Minnesota in recent years, it appears that courts in other jurisdictions and commentators
14
continue to recognize the principle. See, e.g., People v. Smalley, 369 P.3d 737, 745 (Colo.
App. 2015) (stating that if “the court admits evidence for a limited purpose, the prosecutor
must restrict the use of that evidence to the purpose for which it was admitted”); see also
Jacob A. Stein, Closing Arguments § 1.18, at 1-55–1-58 (2d ed. 2005); William E. Wegner
et al., California Practice Guide—Civil Trials and Evidence § 13.63 (2016).
In general, a district court “may limit the scope of a defendant’s arguments to ensure
that the defendant does not confuse the jury with misleading inferences.” State v. Caldwell,
815 N.W.2d 512, 516 (Minn. App. 2012), review denied (Minn. June 27, 2012) (quotation
omitted). In this case, the district court appropriately limited the scope of Buhl’s closing
argument to ensure that it was consistent with the purpose for which the retired officer’s
testimony was admitted. The district court appropriately defined the scope of permissible
argument in advance, in conjunction with its ruling on admissibility and to complete the
extensive discussion with counsel about Buhl’s effort to impeach J.M. Thus, the district
court did not err by limiting Buhl’s closing argument.
In any event, Buhl’s attorney’s closing argument was not dramatically different
from what it would have been if the district court had not expressly imposed a limitation.
Buhl’s attorney juxtaposed the evidence she elicited on cross-examination of J.M. and the
evidence she elicited f rom the retired officer. As a practical matter, the jury had an
opportunity to compare and contrast J.M.’s 2013 statement to the officer with her
subsequent trial testimony concerning the 2013 incident, which would have allowed a juror
to believe that J.M. had made a misrepresentation on one occasion or the other. Thus, even
if we were to conclude that the district court erred by limiting Buhl’s closing argument, we
15
would conclude that the limitation did not affect Buhl’s substantial rights. See Griller, 583
N.W.2d at 740.
Affirmed.