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This opinion will be unpublished and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
A16-1337

State of Minnesota,
Respondent,

vs.

David Alexander Schill, Jr.,
Appellant.

Filed June 26, 2017
Affirmed
Jesson, Judge

Polk County District Court
File No. 60-CR-15-989

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appell ate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and Smith,
John, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant David Schill argues that (1) the evidence is insufficient to convict him of
felony domestic assault because he was not a family or household member of the victim ;
and (2) the district court abused its discretion by admitting three prior domestic -violence-
related incidents and resulting convictions as relationship evidence. Because Schill and
the victim meet the definition of family or household members as required by statute, and
because the district court did not commit reversible error by admitting relationship
evidence of the prior underlying incidents or the resulting convictions, we affirm.
FACTS
On June 12, 2015, two police officers responded to a call regarding a domestic
disturbance in a Crookston apartment building. Through an open window, they could hear
a man and a woman arguing loudly inside one of the apartments. The officers heard the
woman, who was later identified as E.K., scream, “Get your hands off my ne ck; call the
cops.” They then entered the apartment.
The officers observed that E.K. appeared “out of it,” was c rying, and had distinct
red finger marks on the side of her neck, consistent with having been grabbed. Schill
appeared belligerent, uncooperative, and intoxicated . He denied that they had been
fighting, told the officers that the markings on E.K.’s neck were from an earlier fight, and
said that they had just been searching the apartment for a phone . According to one of the
officers, Schill stated that he lived at that apartment and that E.K. was “his girlfriend.”
Both officers recorded the encounter on pocket recorders.
3
The state charged Schill with felony domestic assault, see Minn. Stat. § 609.2242,
subd. 4 (2014), and gross-misdemeanor obstructing legal process, see Minn. Stat. § 609.50
(2014). At his jury trial, E.K. testified that she had known Schill for quite a while, that
they had “sort of, not really” been involved in a romantic relationship, and that he was not
her boyfriend, but that they had had sex. E.K. testified tha t she lived at the apartment but
denied that she resided with Schill. She testified that she and Schill had been hanging out
drinking and got into an argument over Schill’s lost phone that “turned worse,” with Schill
placing his hands on her neck. But she testified that she did not want to press charges or
see him go to prison. The officers’ recordings of the incident were admitted as evidence.
In the recordings, Schill identified E.K. to police as his “girlfriend.”
Over a defense objection, the district court admitted as re lationship evidence three
prior domestic-violence-related convictions and their underlying conduct. See Minn. Stat.
§ 634.20 (2014). The district court then asked Schill if he was willing to stipulate to the
facts concerning the prior incidents. He agre ed on the record to waive his rights to have
the state prove the incidents, to call or cross -examine witnesses regarding them, or to
contest their facts. The parties agreed to a stipulation, and the district court therefore
instructed the jury that the pa rties had stipulated: (1) that in June 2007, Schill willfully
caused bodily injury to a former girlfriend by striking her on the side of the head and, “[a]s
a result,” was convicted in North Dakota of simple assault, domestic violence; (2) that in
January, 2010, Schill grabbed, struck, or hit that girlfriend and caused her to suffer pain or
bodily injury, and “[a]s a result,” was convicted in Minnesota of fifth -degree assault; and
4
(3) that in July 2012, Schill assaulted a former girlfriend and “[a]s a result,” was convicted
in Minnesota of fifth-degree assault.
Schill did not testify, and the de fense presented no witnesses. The jury found him
guilty of both offenses, and the district court sentenced him to 27 months in prison on the
felony domestic assault conviction.
D E C I S I O N
I. The evidence is sufficient to convict Schill of felony domestic assault.

A person may be convicted of domestic assault if that person commits an assault
against a “family or household member.” Minn . Stat. § 609.2242, subd. 1. “ Family or
household members” includes persons who are “involved in a significant romantic or
sexual relationship.” Minn. Stat. § 518B.01, subd. 2(b)(7) (2014). That definition also
includes persons “who are presently residing together or who have resided together in the
past.” Id., subd. 2(b)(4).
Schill argues that the evidence is insufficient to sustain his convict ion of felony
domestic assault because, on this record, the state failed to prove beyond a reasonable doubt
that E.K. was his “family or household member,” as required for a conviction of domestic
assault. See Minn. Stat. § 609.2242, subd. 1. In a challenge to the sufficiency of the
evidence, we review the record and determine whether the evidence and any legitimate
inferences are sufficient to have permitted the jury to find the defendant guilty beyond a
reasonable doubt. Bernhardt v. State , 684 N.W.2d 465, 476 (Minn. 2004). In so d oing,
we assume that the jury credited the state’s witnesses , and we draw all reasonable
inferences in favor of the conviction. State v. Jackson, 726 N.W.2d 454, 460 (Minn. 2007).
5
Schill first argues that the record does not a permit a reasonable inference that he
and E.K. were involved in a “significant romantic or sexual relationship.” See Minn. Stat.
§ 518B.01, subd. 2(b)(7). To review that issue, we may look to several factors, including
the type of relationship, the length of the relationship, an d the frequency of interaction
between the parties. Id., subd. 2(b).
Schill points out that the fact that he and E.K. had had sex does not necessarily mean
that they were involved in a significant sexual or romantic relationship. See Sperle v. Orth,
763 N.W.2d 670, 674 (Minn. App. 2009) (stating that a “mere assertion” that the parties at
one time had a romantic or sexual relationship does not by itself establish that they are
family or household members for purposes of the Domestic Abuse Act). Schill references
E.K.’s testimony that they were not “boyfriend girlfriend,” and that they were only “sort
of, not really” involved in a relationship. But in the police recordings, Schill referred to
E.K. as his “girlfriend.” And when the prosecutor asked E.K. whether she had known
Schill “for a while,” sh e testified, “[q]uite a bit.” This is evidence of a significant sexual
relationship. The two had known each other for a significant period of time, had sex, and
Schill considered E.K. his girlfriend. On this record, the jury could have reasonably
determined that Schill and E.K. had a “significant romantic or sexual relationship.” See
Minn. Stat. § 518B.01, subd. 2(b)(7).
Alternatively, family or household members includes persons who “are presently
residing together or . . . have resided together in the past.” Minn. Stat. § 518B.01,
subd. 2(b)(4). Schill points out that the police recordings show that he told E.K. that he
wanted her to go with him “to [his] house” to “take over some keys.” On the recordings,
6
E.K. also stated that “[y]ou don’t act like that to me in my f --king house.” But one of the
officers testified that Schill stated that he lived at the address of E.K.’s apartment.
Although there is conflicting evidence, taken in the light most favorable to the verdict, the
jury could reasonably have determined that E.K. and Schill resided together, satisfying the
requirement for “family or household members.” See id., subds. 2(a), 2(b)(4) ; see also
State v. Pieschke , 295 N.W. 2d 580, 584 ( Minn. 1980) (stating that weighing witness
credibility is the exclusive province of the jury). Based on this record, which includes
direct evidence that Schill and E.K. were family or household members, the evidence is
sufficient to sustain Schill’s conviction of domestic assault. See Minn. Stat. § 609.2242,
subd. 1.
II. The district court did not commit reversible error by admitting Schill’s past
domestic-abuse-related conduct and resulting convictions as relationship
evidence.

Schill challenges the district court’s admission of evidence of three prior incidents
of domestic -related conduct: a 2007 incident, which resulted in a conviction of simple
assault; a 2010 incident, which resulted in a conviction of fifth-degree assault; and a 2012
incident, which resulted in another fifth-degree assault conviction.
If certain conditions are met, a district court may admit “[e]vidence of domestic
conduct by the accused against the victim of domestic conduct, or against othe r family or
household members.” Minn. Stat. § 634.20. This evidence, called relationship evidence,
is a particular category of “other-acts” evidence, which is offered to demonstrate the history
of the relationship between the defendant and the victim of domestic abuse. State v. Word,
755 N.W.2d 776, 784 (Minn. App. 2008). Evidence that shows how the defendant treats
7
other family or household members, including other girlfriends, “sheds light on how the
defendant interacts with those close to him, which in turn suggests how the defendant may
interact with the victim.” State v. Valentine , 787 N.W.2d 630, 637 (Minn. App. 2010),
review denied (Minn. Nov. 16, 2010).
Relationship evidence is generally admissible if it shows similar conduct by the
accused and if its probative value is not substantially outweighed by the danger of unfair
prejudice. State v. Barnslater , 786 N.W.2d 646, 651 (Minn. App. 2010), review denied
(Minn. Oct. 27, 2010). We review the district court’s admission of relationship evidence
for an abuse of discretion. Id.
Effect of stipulation
At the outset, the state argues that Schill stipulated to the admission of the
relationship evidence and thus has waived his right to contest its admission on appeal.1
The state is incorrect. When the state initially moved to admit the prior incid ents as
relationship evidence , the defense argued that their probative value was outweighed by
their prejudicial effect. The district court stated,
I’ll make my ruling on the admissibility of the proposed
incidents as relationship evidence. And then in light of my
ruling, I’ll let the attorneys try to agree on a stipulation. And
if they can’t agree on a stipulation, then, you know, I’ll allow

1 We note that Schill agreed , before trial , to stipulate that he had two prior domestic -
violence-related convictions, as required for a conviction of felony domestic assault. See
Minn. Stat. § 609.2242, subd. 4. This stipulation is not at issue on appeal. Cf. State v.
Berkelman, 355 N.W.2d 394, 396 (Minn. 1984) (stating that defendants should generally
be able to remove a conviction-based element from the jury through stipulation, but leaving
open the possibility that such evidence may be admitted on other grounds when its
probative value outweighs the danger of unfair prejudice).
8
the state to go ahead and, you know, submit evidence to prove
the incident.

The district court then ruled that it would admit three of the four submitted incidents. And
as proposed by the district court, the parties stipulated to the form in which the incidents
would be presented to the jury.
The state argues that Schill expressly waived his right on the record to have the state
prove the incidents, to cross-examine witnesses about the incidents, and to contest the facts
giving rise to them. But this waiver occurred only after the district court ruled that it would
admit the evidence over a defense objection. “It is inconsistent with our precedent and
with our notion of fairness to conclude that once a defendant chooses to stipulate to
evidence he was unsuccessful in getting excluded he has waived the opportunity to argu e
on appeal that the court erred in admitting the evidence.” State v. Swanson, 707 N.W.2d
645, 654 (Minn. 2006) (quotation omitted). Thus, Schill’s waiver does not preclude him
on appeal from challenging the district court’s admission of the evidence, to which he
initially objected at trial.
Probative value vs. prejudicial effect
Schill argues that the district court abused its discretion by admitting the three prior
incidents as relationship evidence because their probative value was outweighed by their
prejudicial effec t. In this context, unfairly prejudicial evidence means more than
damaging, or even severely damaging, evidence; rather, it refers to 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).
9
Schill maintains that the state did not have a need for the evidence because E.K. did
not recant her allegations and was not a reluctant witness. The state’s need for the evidence
is considered “as part of the assessment of [its] probative value versus [its] prejudicial
effect.” State v. Meyer , 749 N.W.2d 844, 849 (Minn. App. 2008) (quotation omitted).
Here, the relationship evidence had probative value to assist the state’s case. The charged
conduct occurred when E.K. and Schill were engaged in a dispute that led to a physical
altercation, when no other parties were present. And E.K. testified that she did not want to
press charges or see Schill go to prison. Further, the defense contended at closing argument
that, based on evidence of a mutual altercation, the state had not proved beyond a
reasonable doubt that Schill assaulted E.K.
Schill argues that , because the conduct in each prior incident was similar, the
cumulative effect of the evidence was unfairly prejudicial. But any prejudice was lessened
because the prior incidents were not more serious than the current offense. See State v.
Jones, 392 N.W.2d 224, 234 (Minn. 1986) (noting that the probative value of evidence was
not outweighed by its prejudicial effect when the prior crimes would not likely inflame the
jury, as they were not more serious crimes than the current offense).
In addition, the district court instructed the jury on the proper use of the relationship
evidence. See State v . Lindsey, 755 N.W.2d 752, 7 57 (Minn. App. 2008) (stating that
cautionary instructions lessened the probability that the jury would give undue weight to
the relationship evidence), review denied (Minn. Oct. 29, 2008). When the stipulation was
introduced, the district court informed the jury of its limited purpose and that the jury was
not to convict Schill of this offense based on his past conduct. The district court repeated
10
this admonition in its final jury instructions. We may presume that the jury follows the
district court’s instructions. Zornes v. State , 880 N.W.2d 363, 3 73 (Minn. 2016). The
district court did not abuse its discretion by determining that the probative value of the
evidence was not outweighed by its prejudicial effect.
Evidence of convictions
Schill finally argues that the district court abused its discretion by admitting
evidence of his prior convictions, not just the conduct underlying those convictions. Schill
did not object to the admission of the relationship evi dence on this ground before the
district court. Indeed, once the evidence was admitted, Schill approved the language of the
stipulation, which specifically included references to his prior convictions.2 Therefore, we
address his argument on this issue under the plain-error standard for unobjected -to error.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under that standard, a defendant must
prove that an error occurred, that the error was plain, and that the error affected his
substantial rights. Id.
An error is plain if it is clear or obvious, such as when it contravenes caselaw, a rule,
or a standard of conduct. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Here, Schill
has identified no caselaw or statute that precludes adm ission of his prior convictions, as
opposed to the underlying conduct. He argues that the convictions were unfairly

2 Because Schill stipulated to the wording of the evidence to be placed before the jury, the
doctrine of invited error may be instructive. “As a general rule a party cannot assert on
appeal an error that he invited or that could have been prevented at the district court.” State
v. Benton , 858 N.W.2d 535, 540 (Minn. 2015) (quotation omitted). Invited error is
reviewed under a plain-error standard. Id.
11
prejudicial because they show his criminal history, and they are irrelevant because they
establish his relationship with the court system, not his relati onships with the victims of
domestic abuse. Evidence of the convictions w as submitted to the jury as “result[ing]”
from incidents of domestic violence that Schill committed against former girlfriends. See,
e.g., Minn. Stat. § 609.224, subd. 1(1) -(2) (2014) (requiring that to be convicted of fifth -
degree assault, the actor must either commit an action with intent to cause fear of immediate
bodily harm, or intentionally inflict, or attempt to inflict, bodily harm on another person).
In this context, the convictions tended to show Schill’s treatment of those girlfriends, which
in turn cast light on how he would treat E.K. in this case. See Valentine, 787 N.W.2d at
637. We note that the admission of the prior convictions may have helped to defeat the
purpose of stipulating to those convictions in order to keep that information from the jury.
But the alleged error was not plain because it is not precluded by caselaw or statute. We
discern no reversible error in the admission of Schill’s prior domestic -violence-related
convictions as relationship evidence.
Affirmed.