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This opinion will be unpublished and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
A16-1676

State of Minnesota,
Respondent,

vs.

Christopher Thomas Russell,
Appellant.

Filed August 14, 2017
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-13-28046

Lori M. 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, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges his second-degree assault conviction, arguing that the district
court committed reversible error by admitting evidence of two types: (1) relationship
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evidence of domestic conduct that occurred after the assault; and (2) statements of a non -
testifying police officer about what appellant said shortly after the assault . Because the
district court did not abuse its discretion when it admitted the evidence, and because any
error in the limiting jury instruction did not affect appellant’s substantial rights, we affirm.
FACTS
Appellant Christopher Thomas Russell and E.G. met and began dating in 2012;
Russell moved into E.G.’s apartment in May 2013. The relationship had “a lot of ups and
downs,” including verbal and physical abuse. On several occasions, Russell screamed at
E.G. and called her names. During one instance, Russell screamed at E.G. and punched the
dashboard and window of her car, breaking his hand. During another instance, Russell
pushed E.G., broke her bed frame and closet door, then broke the bathroom door after she
locked herself inside.
On May 17, 2013, Russell went out with friends and did not come home. Suspicious,
E.G. read Russell’s emails and discovered that he had posted ads on the Internet “for casual
hookups.” E.G. deci ded to break up with Russell and, during the morning of May 18,
packed his things. E.G. called her friend, H.B., and told her she was breaking up with
Russell. H.B. responded that she would come over.
When Russell returned home at 10:00 a.m., E.G. told him that they “were done.”
E.G. texted Russell’s friend, T.F., and asked him to come to the apartment and pick up
Russell. Russell screamed at E.G. and pushed her; he shoved E.G. down on to the couch
and put his hands around her throat. Russell then went to th e kitchen and returned with a
knife. He pinned E.G. down on the couch again, placed his left hand around E.G.’s throat
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and squeezed so tightly that E.G. could not breathe. Russell pointed the knife toward E.G.
and yelled that he was going to “stick” her.
Russell got off of E.G., who stood up, but Russell then threw her to the floor. At
some point, Russell dropped the knife and E.G. “shove [d] it under the couch.” As the
struggle continued, Russell hit E.G.’s left side and hip and “slammed [E.G.] up against the
wall,” causing her to hit the back of her head on the wall.
T.F. arrived at about 10:30 a.m. Russell and E.G. continued to argue, but Russell
stopped being physically violent. H.B. arrived a short time later. Russell and T.F. left,
saying they would re turn later for Russell’s things. E.G. told H.B. about the knife and
assault and H.B. encouraged E.G. to call the police. H.B. called 911 at 1:15 pm.
Officers Flaherty and Gannon responded to E.G.’s apartment. E.G. described the
assault to both officers, including that Russell threatened to “stick” her with the knife. The
police photographed the knife underneath the couch and E.G.’s injuries. After the police
left, E.G. texted T.F. and told him Russell should not return to the apartment.
Russell spoke with Officer Flaherty and, according to his report, admitted to
grabbing a knife while he was with E.G. Russell also spoke with E.G., apologized, and said
he would have to go to California because the police were looking for him. On May 20,
E.G. spoke to police, “downplay[ed]” the incident, saying that Russell only wanted to scare
her; she attributed his behavior to post -traumatic stress disorder, and said he needed
counseling. Shortly after, Russell moved to California.
Russell and E.G. remained in contact thr ough telephone cal ls, text messages, and
Skype, a video-messaging platform. Over the weekend of July 4, 2013, Russell called E.G.
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and sent her several text messages telling her he had “made out” with her friends and calling
her names. E.G. told Russell to stop contacting her, blocked his telephone number, and
removed him from her social media accounts. E.G. also obtained an order for protection
(OFP) against Russell.
Russell continued to contact E.G. by changing his telephone number and email
accounts. Russell emailed E.G. over 60 times. In several of the emails, Russell told E.G.
that he had a gun and bullet and threatened to kill himself. In an email account that Russell
set up under his mother’s name , he emailed E.G., pretending to be his mother, and stated
that Russell had “passed away.”
In December 2015, Russell returned to Minnesota and was arrest ed on second -
degree assault charges. His jury trial occurred over three days in June 2016. Relevant to
this appeal, the state offered relationship evidence of Russell’s conduct with E.G. before
and after the assault, and his counsel objected. The district court admitted the evidence and
said it would give a cautionary instruction.
Also relevant to this appe al, the district court allowed O fficer Gannon on re -direct
to summarize Officer Flaherty’s report about Russell ’s admission that he had grabbed the
knife. In his defense, Russell testified he told Flaherty that he had handled all of the knives
in the house because he cooked every night. Russell also testified that he did not touch the
knife during the incident or bring the knife into the living room. More generally, Russell
testified that he and E.G. argued on May 18, 2013, but denied any physical violence. He
also denied the incidents that E.G. said had occurred before May 2013, explaining that E.G.
was lying because he had cheated on her.
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The jury convicted Russell of one count of second-degree assault and two counts of
fifth-degree assault. Russell moved the district court for a judgment of acquittal and a
verdict of not guilty or, in the alternative, a new trial or a downward departure from the
sentencing guidelines. The district court denied both motions relating to the verdict, but
granted a downward durational departure, and sentenced Russell on the second -degree
assault to 16 months in prison. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion when it admitted relationship
evidence regarding events after the 2013 assault.

Section 634.20 provides that “[e]vidence of domestic conduct by the accused
against the victim of domestic conduct . . . 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 und ue delay, waste of time, or needless
presentation of cumulative evidence.” Minn. Stat. § 634.20 (2014). Domestic conduct
includes evidence of domestic abuse or violation of an OFP. Id. This court reviews a district
court’s decision to admit relationship ev idence under section 634.20 for abuse of
discretion. State v. McCoy , 682 N.W.2d 153, 161 (Minn. 2004). In addition to showing
abuse of discretion, an appellant challenging an evidentiary ruling must establish prejudice.
State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
Russell makes four arguments about the admission of relationship evidence that
occurred after the 2013 assault : (1) the district court used the “wrong version ” of Minn.
Stat. § 634.20 based on the date of the assault; (2) the evidence was not relevant because it
6
included events that occurred after the relationship ended; (3) the probative value of the
evidence was outweighed by the danger of unfair prejudice; and (4) the district court
incorrectly instructed the jury on relationship evidence. We will address each argument in
turn.
A. The district court did not err when it evaluated the admissibility of the
relationship evidence under the 2014 version of the statute.

The Minnesota Supreme Court has adopted sectio n 634.20 as a rule of evidence.
McCoy, 682 N.W.2d at 161 (holding section 634.20 is a rule of evidence); see also State v.
Fraga, 864 N.W.2d 615, 627 (Minn. 2015) (clarifying adoption of section 634.20 as a rule
of evidence). Rules of evidence are “applicable to any trial held after the effective date of
the amendment.” State v. Friend, 385 N.W.2d 313, 319 (Minn. App. 1986), review denied
(Minn. May 22, 1986). Because section 634.20 is a rule of evidence, the district court did
not err when it analyzed the evidence under the 2014 version of the statute, which was the
version applicable to Russell’s trial in 2016.
Even so, any alleged error was harmless. The 2012 version of the statute allows
evidence of “similar conduct,” which was defined as “evidence of domestic abuse,
violation of an [OFP] . . . ; violation of a harassment restraining order [(HRO)] . . . ; or
violation of section 60 9.749 or 609.79, subdivision 1.” Minn. Stat. § 634.20 (2012). The
2014 version allows “[e]vidence of domestic conduct” to be used at tr ial. Minn. Stat.
§ 634.20. The definition of “domestic conduct” in the 2014 version of the statute is identical
to the d efinition of “similar conduct” in the 2012 version of the statute. Compare Minn.
Stat. § 634.20 (2012) with Minn. Stat. § 634.20 (2014).
7
B. The district court did not err when it admitted relationship evidence that
occurred after the charged assault.

In State v. Lindsey, this court held the plain language of section 634.20 imposes “no
temporal restriction” on relationship evidence and permits the admission of evidence of
subsequent, as well as prior, similar conduct by a defendant against a domestic abuse
victim. 755 N.W.2d 752, 756 (Minn. App. 2008), review denied (Minn. Oct. 29, 2008).
This court also noted that the legislature amended section 634.20 in 2002, removing the
reference to “similar prior conduct.” Id. (emphasis added). Thus, Lindsey held that the
district court properly admitted relationship evidence of conduct that occurred after the
charged offense. Id.
Russell claims that Lindsey is inapposite because “the relationship had ended”
between Russell and E.G. at the time of the post -assault conduct. We are not persuaded.
Section 634.20 specifically allows the admission of evidence of OFP and HRO violations,
thus indicating that a victi m’s efforts to sever a relationship with the accused does not
preclude admission of the accused’s conduct. See Minn. Stat. § 634.20.
Russell relies on State v. McCurry, which involves a defendant who was convicted
of burglary because he broke into his ex -wife’s home and stole her wallet. 770 N.W.2d
553, 556 (Minn. App. 2009), review denied (Minn. Oct. 28, 2009). The district court
admitted evidence of three domestic incidents that happened before the burglary. Id. at 557.
This court affirmed the conviction after concluding that it was error to admit this evidence
as relationship evidence under section 634.20 because the underlying charge was not
domestic abuse. Id. at 561.
8
McCurry’s analysis is inapplicable, first because the underlying offense , burglary,
was not a domestic violence offense. Indeed, McCurry ultimately based its analysis on
Spreigl and concluded the prior incidents were inadmissible without advance notice to the
defense. Id. Second, section 634.20 explicitly allows the admission of evidence of OFP
violations, whether charged or not. Minn. Stat. § 634.20. Because section 634.20 imposes
no temporal restriction on relationship evidence, the district court did not err in admitting
evidence of Russell’s conduct with E.G. for events that occurred after the 2013 assault.
C. The probative value of the evidence was not substantially outweighed by
the danger of unfair prejudice.

Relationship evidence under section 634.20 is admissible unless its probative value
is substantially outweighed by the danger of unfair prejudice. Minn. Stat. § 634.20.
“Evidence that helps to establish the relationship between the victim and the defendant or
which places the event in context bolsters its probative value.” State v. Kennedy , 585
N.W.2d 385, 392 (Minn. 1998). “[U]nfair prejudice is not merely damaging evidence, nor
is it severely damaging evidence.” State v. Meyer, 749 N.W.2d 844, 849 (Minn. App. 2008)
(quotation omitted). Unfair prejudice means that the evidence “persuades by illegitimate
means and gives one party an unfair advantage.” Id.
Here, the district court admitted the evidence after determining that its probative
value outweighed an y unfair prejudice because E.G.’s credibility was at issue and the
evidence would provide context for the jury. In reviewing the district court’s decision, State
v. Meyer guides our analysis because the state tried Meyer for gross-misdemeanor domestic
assault and offered evidence of three other incidents of domestic conduct under section
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634.20. 749 N.W.2d at 847. On appeal, the defendant argued that the evidence of his past
conduct was “highly inflammatory” and “painted him to be a serial abuser,” which “led the
jury to find him guilty based on his past conduct rather than the evidence relating to the
charged offense.” Id. at 849. This court affirmed because the victim’s credibility was at
issue and the contested evidence explained why she may have given co ntradictory
statements. Id. at 850.
Russell repeats arguments that we rejected in Meyer. The record establishes that
Russell challenged E.G.’s credibility and implied that E.G. lied. The relationship evidence
established context for Russell and E.G.’s relationship, including that Russell attempted to
control E.G. through guilt and threats. Because the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, the district court did not abuse
its discretion in admitting this evidence.
D. The jury instruction was erroneous but does not require reversal.

Russell is correct that the district court did not provide the preferable limiting
instruction before the relationship evidence was admitted. During final instructions, the
district court did not give the pattern instruction,1 but instructed the jury as follows:

1 The correct instruction, CRIMJIG 2.07, provides:
The State is about to introduce evidence of conduct by the
defendant on [] at []. This evidence is being offered for the
limited purpose of demonstrating the nature and extent of the
relationship between the defendant and [] [(and) (or) other
(family) (household) members] in order to assist you in
determining whether the defendant committed those acts with
which the defendant is charged in the complaint.

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The State has introduced evidence of incidents occurring on
dates other than May 18, 2013. This evidence was admitted for
the purpose of assisting you in determining whether the
defendant committed the acts with which the defendant is
charged in this case. The defendant is not being tried for and
may not be convicted of any offense other than those that I
instruct you on. You are not to convict the defendan t on the
basis of any occurrence at any other time. To do so might result
in unjust double punishment.

Because Russell did not object, he argues that this instruction was plain error.
We review unobjected-to errors in jury instructions for plain error. Id. “Plain error
exists when the district court commits an obvious error that affects the defendant’s
substantial rights.” State v. Barnslater , 786 N.W.2d 646, 653 (Minn. App. 2010), review
denied (Minn. Oct. 27, 2010). An error affects a party’s substantial rights if it affects the
outcome of the case. Id.
District courts have “considerable latitude in the selection of language for jury
instructions.” State v. Meldrum, 724 N.W.2d 15, 19 (Minn. App. 2006) (quotation omitted),
review denied (Minn. Jan. 24, 20 07). We review jury instructions in their entirety to
determine if they adequately explain the law. Id. Generally, a district court should provide
limiting instructions about relationship evidence before receiving the evidence and again
during the final jury instructions. Barnslater, 786 N.W.2d at 653. However, the failure to
give limiting instructions does not require reversal “when other evidence demonstrates that

The defendant is not being tried for and may not be convicted
of any behavior other than the charged offense(s). You are not
to convict the defendant on the basis of conduct on [] at []. To
do so might result in unjust double punishment.

10 Minnesota Practice, CRIMJIG 2.07 (2016).
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the probative value of the relationship evidence is not outweighed by its potential for unfair
prejudice.” Id.; see also Meldrum, 724 N.W.2d at 22 (concluding other evidence offered at
trial supported the conviction and negated the allegation that the evidence was unfairly
prejudicial).
In Barnslater, this court found plain error when the district court gave no cautionary
instruction either before the relationship evidence was introduced or during the final jury
charge. 786 N.W.2d at 654. Instead, the final instructions “stated that the jury ‘ must not
consider any previous conviction as evidence of guilt of the offense for which [Barnslater]
is on trial’ and that the jury was ‘ not to convict [Barnslater] of any offense of which he is
not here charged.’” Id. at 653–54. This court also determined, however, that the error did
not affect the defendant ’s substantial rights because the district court provided a limiting
instruction in the final jury charge and other strong evidence supported the defendant’s
conviction. Id. at 654.
Consistent with Barnslater, we conclude that the jury instruction was pla in error,
but Russell’s substantial rights were not affected. First, the district court’s instruction was
similar to that considered in Barnslater, where this court determined that the instruction
“alleviated much of the risk that the jury” would use the evidence improperly. 786 N.W.2d
at 654. Second, t he other evidence supporting Russell’s conviction was strong. E .G.
testified about the assault , the state introduced photographs of E.G.’s injuries, and police
found and photographed the knife under the couch where E.G. testified that she hid it. H.B.
and Officer Gannon corroborated E.G.’s statements after the assault and observed E.G.’s
injuries. See Meyer, 749 N.W.2d at 850 (holding lack of jury instructions did not affect
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defendant’s substantial rights because the conviction was supported by persuasive evidence
including video recording of assault, victim’s description of assa ult, and eyewitness
testimony). Thus, reversal is not required.
II. The district court did not err when it admitted statements by a non-testifying
police officer about what appellant told him.

Russell asserts that the district court erred by admitting Officer Gannon’s testimony
that Officer Flaherty’s police report stated that Russell admitted handling the knife. Russell
contends that admi ssion of the testimony violated the rules of evidence and his Sixth
Amendment right to confrontation. The state responds that Russell forfeited the issue
because he did not object at trial and the evidence was not hearsay because it was not
offered to prov e the truth of the matter asserted. We do not reach the forfeiture or
constitutional issues because we determine the evidence was not hearsay.
Hearsay is inadmissible except as provided by the rules of evidence. Minn. R. Evid.
802. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(b). Evidentiary rulings “are within the discretion of the district court and will
not be re versed absent a clear abuse of discretion.” State v. Caulfield , 722 N.W.2d 304,
308 (Minn. 2006).
“[W]hether the admission of evidence violates a criminal defendant’s rights under
the Confrontation Clause is a question of law” reviewed de novo. Id. The Sixth Amendment
provides that accused persons “shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. A court may admit “[t] estimonial statements of
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witnesses absent from trial” when “the declarant is unavailable ” and the defendant “has
had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59, 124
S. Ct. 1354, 1369 (2004). A statement must be testimonial hearsay before the Confrontation
Clause is implicated. Hennepin County v. Perry, 561 N.W.2d 889, 894 (Minn. 1997) ; see
also State v. Lasnetski, 696 N.W.2d 387, 392 (Minn. App. 2005). If a Confrontation Clause
violation is harmless beyond a reasonable doubt, reversal is not required. Caulfield, 722
N.W.2d at 314. To be harmless error, the v erdict must be “surely unattributable to the
error.” Id.
Officer Flaherty was not available to testify because he had passed away before trial.
During cross -examination, Russell’s attorney asked Officer Gannon whether the knife
recovered from E.G.’s apartment had been tested for fingerprints or DNA. Officer Gannon
stated that police collected the knife into evidence but did not test it for fingerprints or
DNA. On re -direct, the state asked why the knife was not sent out for analysis. Officer
Gannon responded, “Based on the report, and Officer Flaherty had spoken with the
defendant, and he had admit[ted] to grabbing a knife . . .” Russell ’s attorney objected and
asked to approach. After an off -the-record bench discussion, the state asked Officer
Gannon if “one reason that fingerprint and DNA testing wasn’t done is because . . . the
defendant had admitt[ed] touching the knife during the incident so . . . it wouldn’t tell you
anything you didn’t already know?” Officer Gannon responded, “Yes.” Russell’s attorney
failed to state the reason for his objection and did not preserve the bench discussion.
Russell challenges the admission of Gannon’s testimony as double hearsay, i.e.,
Flaherty’s report about Russell’s statements. We conclude that Russell’s argument fails
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because neither statement is hearsay. First, Russel l’s statement to Flaherty was the
statement of a party -opponent, which is not hearsay. Minn. R. Evid. 801(d)(2). Second,
evidence of Flaherty’s report was not offered to prove the truth of the matter asser ted.
Minn. R. Evid. 801(c). In other words, Gannon’s testimony was not to prove that Russell
had touched the knife, but rather to establish why the police did not submit the knife for
forensic analysis. See, e.g., State v. Hull, 788 N.W.2d 91, 101 (Minn. 2010) (concluding
statement that “something was wrong” if victim did not call his friend was not h earsay
because it was offered to explain friend’s efforts to locate the victim); see also State v.
Swaney, 787 N.W.2d 541, 553 (Minn. 2010) (concluding that of ficer’s testimony about
statements by defendant’s wife was not hearsay because it was offered to provide context
and explain why wife confronted defendant on the phone).
Even if the district court erred by admitting the statements, we conclude that any
error was harmless beyond a reasonable doubt because the verdict was “surel y
unattributable” to the error. Caulfield, 722 N.W.2d at 314. We consider several factors:
(1) how the evidence was presented, (2) whether the evidence was “highly persuasive,”
(3) whether the evidence was highlighted in closing arguments, and (4) whether the
defendant effectively countered the evidence. Id. We also evaluate other evidence of guilt.
Id.
First, the evidence of Russell’s statement was presented through a few stateme nts
by a witness. Although Russell argues this was “dramatic” because it was “the last piece”
of Officer Gannon’s testimony, he fails to acknowledge that Russell elicited the officer’s
testimony on cross-examination. While Minnesota has not determined whether an attorney
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can “open the door” to a Confrontation Clause violation, the manner of presentation is
relevant to our analysis of prejudice. Hull, 788 N.W.2d at 101–02.
Second, Russell argues the testimony was “highly persuasive” because it was the
turning point of the trial and no other eviden ce corroborated E.G.’s testimony about the
knife. Russell ignores that the challenged testimony merely repeated Rus sell’s statement
that he grabbed the knife at some time , and did not establish that he brandished the knife
during the assault. Moreover, Russell ignores other strong evidence that he brandished the
knife, which we have already summarized in this opinion . Thus, Officer Gannon’s
testimony was not highly persuasive.
Third, the prosecution did not mention Of ficer Gannon’s testimony about Russell
touching the knife in its closing argument.
Fourth, we consider whether Russell effectively countered the evidence. Russell
testified in his own defense , denied grabbing the knife, and stated that Officer Flaherty
asked him generally if he touched the knives in the apartment. Russell testified that he told
the officer he routinely touched the knives because he did most of the cooking. On appeal,
Russell asserts that Officer Gannon’s testimony compelled him to testify, but w e are not
persuaded. Russell knowingly and voluntarily waived his Fifth Amendment right. Russell
did not limit his testimony to the statements he made to Officer Flaherty and gave detailed
testimony on a host of is sues at trial. Because Russell’s own testimony admitted that he
regularly handled the knife , we conclude that he countered any prejudicial effect of the
challenged evidence.
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Because the challenged evidence is not hearsay and any error was harmless beyond
a reasonable doubt, the district court did not abuse its discretion and Russell’s right to
confrontation was not violated.
Affirmed.