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This opinion will be unpublished and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
A17-0265

State of Minnesota,
Respondent,

vs.

Travis Clay Andersen,
Appellant.

Filed November 27, 2017
Affirmed
Florey, Judge

Carver County District Court
File No. 10-CR-15-1332

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

Mark Metz, Carver County Attorney, Angella Erickson, Assistant County Attorney,
Chaska, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his convictions of th ird- and fourth-degree assault, arguing
that the district court erred when it admitted an irrelevant and prejudicial recording of a
911 call. We affirm.
FACTS
On the evening of December 22, 2015, a ppellant Travis Clay Anderson pushed his
girlfriend, M.R., against rocks and punched her in the shoulders, neck, and head, causing
M.R. to suffer a concussion. M.R. was able to get away and call 911. Officers responded
to the scene and contacted appellant’s father, but were unable to locate appellant.
The next morning, appellant’s mother, C. K., called 911 and reported that appellant
was at her home. She told the dispatcher th at appellant was “back, and I want him outta
here.” She told the dispatcher that appellant was “having a fight with his father” and that
appellant had been “pestering us all night since he got back.” When asked by the dispatcher
if appellant was intoxicated, C.K. indicated that appellant was intoxicated, and stated, “He
got a little bit upset with . . . what happened yesterday and he did somethin’ he wasn’t
supposed to.”
Officers were dispatched to the scene and pursued a person matching appellant’s
description. The officers were aware that there was probable cause to arrest appellant for
a reported assault. The officers apprehended appellant, who struggled when the officers
attempted to place him in a squad car. Once in the squad car, appellant spit on an officer’s
face.
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For his acts on December 22 and 23, appellant was charged with domestic assault,
third- and fourth-degree assault, obstructing legal process, and fleeing a peace officer. The
case proceeded to trial, at which appellant waived his right to counsel and voluntarily
absented himself from the tria l. Both 911 calls were ad mitted into evidence without
objection. The state dismissed the charge of fleeing a peace officer after it rested its case.
The jury returned guilty verdicts on the remaining charges.
This appeal followed.
D E C I S I O N
Appellant argues that the recording of C. K.’s 911 call should have been excluded
by the district court because it was not relevant to proving an assault on M.R., an assault
on the officer, or obstruction.
In the absence of an objection at trial, we review the admission of evidence for plain
error. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). Under the plain-error test,
the defendant must show (1) er ror (2) that is plain and (3) that affected the defendant’s
substantial rights. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). “An error is plain if it is clear or obv ious, and usually this is shown if the error
contravenes case law, a rule, or a standard of conduct.” State v. Davis, 735 N.W.2d 674,
681 (Minn. 2007) (quotation omi tted). If the defendant estab lishes all three elements of
the plain-error test, we assess whether revers al is necessary “to ensure fairness and the
integrity of the judicial proceedings.” State v. Prtine, 784 N.W.2d 303, 314 (Minn. 2010).
Relevant evidence is generally admissibl e, and includes “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
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the action more probable or le ss probable than it would be w ithout the evidence.” Minn.
R. Evid. 401. Evidence that is not relevant is not admissible. Minn. R. Evid. 402.
“Evidence is relevant and has probative valu e when it, in some degree, advances the
inquiry.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). “A fact is relevant if, when
taken alone or in connection with other fact s, it warrants a jury in drawing a logical
inference assisting, even thou gh remotely, the determination of the issue in question.”
State v. Holmes, 758 N.W.2d 326, 329 (Minn. App. 2008) (citing State v. Upson, 162 Minn.
9, 12-13, 201 N.W. 913, 914 (1925)), aff’d, 778 N.W.2d 336 (Minn. 2010).
At the time that th e recording of the 911 call was admitted, a ppellant was on trial
for fleeing a peace officer and obstructing legal process. To prove the fleeing charge, the
state was required to show that appellant attemp ted to “evade or elude a peace officer . . .
by means of running, hiding, or by any other means except fleeing in a motor vehicle” and
that appellant did so “for the purpose of avoiding arrest, detention, or investigation.” Minn.
Stat. § 609.487, subd. 6 (2014). During the 911 call, C.K. informed the dispatcher that
appellant was presently in her house. While C.K. was communicating appellant’s
whereabouts to the dispatcher, appellant left the house on foot. Th e fleeing charge was
dismissed by the state prior to being submitted to the jury, but at the time the evidence was
admitted it was relevant to the issue of whet her appellant attempted to avoid arrest by
running, hiding, or fleeing the police officers who had been dispatch ed to the scene in
response to the call, and who were aware that there was probable cause to arrest appellant.
It is also relevant to whether appellant attempted to obstruct the officers who were
dispatched to apprehend him.
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Appellant argues that the recording should have been excluded under Minn. R. Evid.
403 because any probative value of the cont ents of the recording was substantially
outweighed by the danger of unfair prejudice to appellant. He argues that the recording
invited the jury to convict him on the basi s of his “bad character and propensity for
violence.” To support this, he points to thre e of C.K.’s statements within the 911 call:
(1) appellant was fighting with his father; (2) he was pestering his parents, which led them
to want appellant removed from the home; and (3) he was intoxicated and had done
“somethin’ he wasn’t supposed to.” He argues that these statements indicate he has a
“predisposition towards antisocial behavior” and that he was involved in other bad acts.
Relevant evidence may be excluded if its “probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Minn. R. Evid. 403. “The rule favors admission of relevant
evidence, as the probative va lue of the evidence must be ‘substantially’ outweighed by
prejudice . . . .” Schulz, 691 N.W.2d at 478 (quoting Minn. R. Evid. 403). Under the rule,
unfair prejudice “is not merely damaging evid ence, even severely damaging evidence;
rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party
an unfair advantage.” Id.
Under Minn. R. Evid. 404(a), generally, “[ e]vidence of a person’s character or a
trait of character is not ad missible for the purpose of proving action in conformity
therewith.” Nor may evidence of another cr ime, wrong, or bad act be admitted to prove
character in order to show action in conf ormity therewith. Mi nn. R. Evid. 404(b).
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Appellant has not established that the statements were admitted to prove that he has a bad
character or that he acted in conformity with his “predisposition towards antisocial
behavior.” Nor were the stat ements inadmissible as propen sity evidence under Minn. R.
Evid. 404(b), as “having a fight” with a parent, pestering parents, and being intoxicated are
not per se bad acts. See, e.g., State v. Kendell, 723 N.W.2d 597, 612 (Minn. 2006) (holding
that a defendant’s statement that he was “going to hell” did not prove a propensity to engage
in certain conduct); Ture v. State , 681 N.W.2d 9, 17 (Min n. 2004) (concluding that
evidence of the defendant’s collection and storage of information on women was not bad-
act evidence where there was nothing per se wrong with the habit).
Appellant, likewise, has not demonstrated that the evidence should have been
excluded under Minn. R. Evid. 4 03. Even if relevant evidence will have a “devastating
impact” on a defendant’s case, it is admissib le “unless the tendency of the evidence to
persuade by illegitimate means overwhelm s its legitimate probative force.” Schulz, 691
N.W.2d at 479. Appellant has not establis hed that the evidence would persuade by
illegitimate means. Nor has he established that it substantially overwhelmed the probative
force of the evidence, which provided the context for appellant’s subsequent behavior and
arrest. See id. at 477, 479 (concluding that incriminating voicemail message indicating that
the defendant’s nickname was “Kill” had a “devastating impact” on the case but it did not
give the state an unfair advantage).
But even if appellant had established that the district court plainly erred in admitting
the recording, he has not estab lished that his substantial rights were prejudiced. An error
affects the defendant’s substantial rights “if th ere is a reasonable likelihood that the error
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substantially affected the verdict.” Strommen, 648 N.W.2d at 688. We consider the
following factors when determining whether the evidence significantly affected the verdict:
(1) the manner in which it was presented by the state; (2) whether it was highly persuasive;
(3) whether the state referenc ed the evidence in closing argument; and (4) whether the
defense effectively countered the evidence. State v. Peltier, 874 N.W.2d 792, 802 (Minn.
2016); see State v. Matthews , 800 N.W.2d 629, 634 (Minn. 2011) (“The court’s analysis
under the third prong of the plain error test is the equivalent of a harmless error analysis.”).
Appellant argues that the 911 recording bolstered M.R.’s credibility concerning her
account of the assault. But the recording is silent concerning M.R. or the substance of her
testimony. It was therefore not highly persuasive on the issue for which appellant claims
prejudice. The state did not reference the recording during closing arguments, nor was it
admitted by the state in a manner that made it reasonably likely that it would substantially
affect the verdict. Although appellant made no attempt to effectively counter whatever
persuasive value the evidence held, on the reco rd as a whole, the evidence held minimal
persuasive value concerning guilt, so his failure to rebut the evidence did not significantly
affect the verdict.
Even if the alleged error was persuasive of guilt, it was overwhelmed by ample other
evidence implicating appellant. Multiple officers testified about appellant’s behavior when
they attempted to stop and arrest him, includi ng that he spit on the face of an officer and
that he refused to follow the officers’ comma nds. M.R. testified that appellant punched
her multiple times and that she suffered from a concussion, severe headaches, and buzzing
in her head as a result of his actions. P hotos admitted into evid ence indicate redness at
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M.R.’s scalp, and there was testimony that the concussion affected M.R.’s physical and
cognitive abilities for months after the assault. There is no support for appellant’s assertion
that there is a reasonable likelihood that the jury would have returned a different verdict if
the recording had not been played to the jury.
Affirmed.