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This opinion will be unpublished and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
A17-1148

State of Minnesota,
Respondent,

vs.

Luis Alberto Muniz,
Appellant.

Filed August 6, 2018
Affirmed
Florey, Judge

Ramsey County District Court
File No. 62-CR-16-8428

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

John Choi, Ramsey County At torney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his domestic-assault conv iction. He argues that the district
court failed to properly instruct the jury on the elements of the crime. He also argues that

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the district court committed reversible error by permitting evidence of prior domestic-abuse
conduct. We affirm.
FACTS
In November 2016, appellant Luis Albert o Muniz got into an argument with his
wife, D.M., after she asked him for a ride to get milk for her two children. Appellant threw
a key at D.M. and told her to find her own ri de. He then called D.M. a b-tch and threw a
ceramic figurine at her, hitting her in the shoulder. D.M. called 911 and told the dispatcher
that appellant threw something at her shoulder. She told a responding officer that appellant
threw a ceramic figurine at her.
Appellant was arrested and ch arged with felony domestic assault, a violation of
Minn. Stat. § 609.2242, subd. 4 (2016). 1 The state gave notice of its intent to introduce,
pursuant to Minn. Stat. § 634.20 (2016), ev idence of prior domestic-abuse conduct by
appellant against D.M. Appellant moved to prohibit the evidence. In a pretrial ruling, the
district court concluded that the bulk of the evidence was admissible, but that cautionary
instructions would be given to mitigate potential prejudice.
In March 2017, a jury trial was held. During opening statements, counsel for
appellant argued that appellant threw the fi gurine at a wall and di d not intend to cause
injury or fear. Testimony was received from D.M. and three officers. D.M. testified that
appellant did not apologize after throwing the figurine. She thought “it was an accident.”
However, she acknowledged that she told police appellant threw something at her, and she

1 At trial, appellant stipulat ed to four prior convictions, with at least two qualifying as
domestic-violence-related convictions under Minn. Stat. § 609.2242, subd. 4.

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was afraid. She admitted that appellant harmed her in the past and that she sought orders
for protection in the past, but she testified that these past incidents were accidents.
Appellant was convicted of felony domes tic assault and sentenced to 24 months’
imprisonment. This appeal followed.
D E C I S I O N
I. The district court did not plainly err in its domestic-assault jury instructions.

Appellant first argues that the jury instruc tions on the elements of the charge were
plainly erroneous because they failed to properly differentiate between assault by infliction
of fear and assault by infliction of harm. Appellant asserts that these are two distinct
crimes, with distinct mens rea requirements. He argues that the jury was permitted to reach
a verdict that was not unanimous, with some reaching a guilty verdict on assault-fear, and
others assault-harm. Appellant did not object at trial to the jury instructions.
The failure to object to jury instructions “generally constitutes a waiver of the right
to appeal” any error in the instructions. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).
Nonetheless, “a failure to object will not cause an appeal to fail if the instructions contain
plain error affecting substantial rights or an error of fundamental law.” Id.; see also State
v. Gunderson , 812 N.W.2d 156, 159 (Minn. App. 2012) (reviewing unobjected-to jury
instructions for plain error). “Under the plain-error standard, [an appellate court] review[s]
the jury instructions to determine whether there was error, that was plain, and that affected
[appellant’s] substantial rights.” Gunderson, 812 N.W.2d at 159. If the three prongs of
the plain-error test are met, an appellate co urt must then decide whether to “address the

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error to ensure fairness and the integrity of the judicial proceedings.” State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998).
Appellant was convicted of domestic assault under Minn. Stat. § 609.2242, subd. 4,
which imposes felony liability when a person has certain prior convictions and commits an
assault. The underlying assault may be either “an act with intent to cause fear in another
of immediate bodily harm or death” or the inte ntional infliction of, or attempt to inflict,
bodily harm upon another. See Minn. Stat. §§ 609.224, subd. 1, .2242, subds. 1, 4 (2016).
The district court gave the following instruction:
Under Minnesota law whoever commits an act with
intent to cause fear in anothe r of immediate bodily harm or
death or intentionally inflicts or attempts to inflict bodily harm
upon another is guilty of a crim e if the person assaulted is a
member of the defendant’s family or household.2

The elements of domestic assault are:

First, the defendant assaulted [D.M.]. The term assault
as used in this charge is the intentional infliction of bodily harm
upon another or the attempt to inflict bodily harm upon
another. It also means an act done with intent to cause [D.M.]
to fear immediate bodily harm or death. Bodily harm means
physical pain or injury, illness or impairment, any impairment
of a person’s physical condition.

In order for an assault to have been committed, it is not
necessary that there have been any physical contact with the

2 This instruction combines separate pattern instructions for assault-fear and assault-harm.
The relevant pattern instruction for assault-fear is as follows: “First, the defendant assaulted
____ (the victim). The term ‘assault’ as used in this (case) (charge) means an act done
with intent to cause ____ (t he victim) to fear immediate bodily harm or death.” 10
Minnesota Practice, CRIMJIG 13.47 (2015). The relevant pattern instruction for assault-
harm is as follows: “First, the defendant intentionally inflicted or attempted to inflict bodily
harm on ____.” 10 Minnesota Practice, CRIMJIG 13.48 (2015).

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body of the person assaulted. It is not necessary for the [s]tate
to prove that the defendant inte nded to inflict bodily harm or
death, but only that the defendant acted with intent that [D.M.]
would fear that the defendant would so act.

Intentionally means that th e actor either . . . has a
purpose to do the thing or cause the result specified or believes
that the act performed by the actor, if successful, will cause the
result.
In addition, the actor must have knowledge of those
facts that are necessary to make the actor’s conduct criminal
and that are set forth after the word intentional.

To have knowledge requires only that the actor believes
that the specified facts exist.

With intent to or with intent that means that [the] actor
either has a purpose to do the thing or [cause] the result
specified, [or]
3 believes that the [act], if successful, will cause
that result.

We must first determine whether the distri ct court’s instructions constitute plain
error. Generally, an error is plain if it “cont ravenes case law, a rule, or a standard of
conduct.” State v. Ramey , 721 N.W.2d 294, 302 (Minn. 20 06). A district court has
significant latitude to select its own jury instructions, as well as the language it uses. State
v. Huber, 877 N.W.2d 519, 522 (Minn. 2016). Thos e instructions must, however, “fairly
and adequately explain the law of the case and not materially misstate the law.” Id.
“The jury’s verdict must be unanimous in all cases.” Minn. R. Crim. P. 26.01, subd.
1(5). The jury must unanimously conclude that each element of an offense has been

3 Although 10 Minnesota Practice, CRIMJIG 13.47 contains no “or” after “specified,” and
the “or” was not included in the instructions given by the district court, the “or” is included
under the statutory definition. Minn. Stat. § 609.02, subd. 9(4) (2016). The remaining
bracketed alterations in this paragraph address errors and omissions in the transcript.

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proved. State v. Pendleton, 725 N.W.2d 717, 730-31 (Minn. 2007). Appellant points to
State v. Fleck, 810 N.W.2d 303 (Minn. 2012), to support his argument that the instructions
here, which allowed the jury to find assault by fear or harm, likewise allowed the jury to
reach a verdict that was not unanimous. In Fleck, the supreme court concluded that assault-
fear, under Minn. Stat. § 609.02, subd. 10(1) (2010), and assault-harm, under Minn. Stat.
§ 609.02, subd. 10(2) (2010), have different mens rea re quirements, with assault-fear
requiring specific intent, and assault-harm requiring general intent. 810 N.W.2d at 309-
10. The supreme court reach ed this conclusion while de termining whether a voluntary-
intoxication instruction should have been given for a charge of assault-harm.4 Id.
We effectively addressed appellant’s argument in State v. Dalbec , in which we
stated that domestic assault-fear and assault-harm are simply various means of satisfying
the assault element. 789 N.W.2d 508, 513 (Minn. App. 2010), review denied (Minn. Dec.
22, 2010). Though a jury must unanimously agree on elements of a crime, the jury need
not agree on the facts underlying those elements, and unanimity is not required with respect
to alternate means or ways of satisfying an element of an offense. Pendleton, 725 N.W.2d
at 731; State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002).
In Dalbec, “[t]he district court instructed th e jury on the elemen ts of domestic
assault in the alternative, stating that the state must prove” that the defendant “committed

4 The statute at issue in Fleck, section 609.02, subdivision 10 , defines assault as “an act
done with intent to cause fear in another of immediate bodily harm or death,” or “the
intentional infliction of or attempt to inflic t bodily harm upon anot her.” The statutory
language at issue in Fleck closely matches the language at issue in this case. Compare
Minn. Stat. § 609.02, subd. 10, with Minn. Stat. §§ 609.224, subd. 1, .2242, subds. 1, 4.

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an act with the intent of causi ng fear of immediate bodily ha rm or intended to inflict or
attempted to inflict bodily harm on” the victim. 789 N.W.2d at 510. No specific unanimity
instruction was given. Id. On appeal, this court stated that a jury need no t agree that a
domestic assault “was accomplishe d by causing fear or inflicting or attempting to inflict
bodily harm.” Id. at 513. This is because “the act of assault is the element of the crime of
domestic assault, and an assa ult can be committed in any of three ways,” which are “by
intentionally causing fear of immediate bodily harm or death or by intentionally inflicting
or attempting to inflict bodily harm.” Id. at 512-13. Given our holding in Dalbec, the
district court did not plainly err in its jury instructions by allowing the alternative means of
assault-fear or assault-harm to satisfy the assault element.5
Appellant argues that Dalbec was decided before Fleck and is no longer good law.
However, this court is bound by its published opinions. State v. M.L.A., 785 N.W.2d 763,
767 (Minn. App. 2010), review denied (Minn. Sept. 21, 2010). We will overrule our own
precedent only if th ere is a compelling reason to do so. Ariola v. City of Stillwater , 889
N.W.2d 340, 356 (M inn. App. 2017), review denied (Minn. Apr. 18, 2017). We have
previously declined to overrule Dalbec based on Fleck. We decline to do so here.
Appellant also argues that the district court conflated the separate mens rea
components in a confusing manner. Again, th e district court did not plainly err. The
instructions given were similar to those given in Dalbec and required the jury to find that

5 To the degree that the instructions were erroneous, any error was certainly not plain. See
State v. Kelley, 855 N.W.2d 269, 275 (Minn. 2014); State v. Jones, 753 N.W.2d 677, 689
(Minn. 2008) (declining to find plain error where law was undecided).

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appellant either acted with intent to cause fear (specific intent) or intentionally inflicted or
attempted to inflict bodily harm (general intent). The district court gave additional
instructions taken from the pattern inst ructions defining “with intent to” and
“intentionally.” 10 Minnesota Practice, CRIMJIG 13.47, .48. The separate means for
satisfying the element of assault were stated with sufficient clarity.
II. The district court did not clearly ab use its discretion by permitting prior
domestic-abuse evidence.

Appellant next argues that the district court abused its discretion by permitting
evidence concerning his prior domestic-abuse conduct. Th e district court ruled that the
evidence was admissible under Minn. Stat. § 634.20, except for one allegation, which the
district court found “highly inflammatory and prejudicial.”
We review the district court’s evidentiary ruling for a clear abuse of discretion, and
appellant has the burden of show ing both that the district c ourt abused its discretion and
that he was thereby prejudiced. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
Under section 634.20:
Evidence of domes tic conduct by th e accused against
the victim of domestic conduct, or against other family or
household members, 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 un due delay, waste of time, or needless
presentation of cumulative evidence.

“Evidence is admissible under se ction 634.20 if (1) it is simi lar conduct by the accused,
(2) it is perpetuated against the victim of do mestic abuse or against another family or
household member, and (3) the probative valu e of the evidence is not substantially

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outweighed by the danger of unfair prejudice.” State v. Meyer , 749 N.W.2d 844, 849
(Minn. App. 2008) (quotation omitted).
Appellant challenges the admission of testimony from both D.M. and an officer, as
well as a recording of a prior statement from D.M. He assert s that the evidence was not
relevant and was unfairly prejudicial. D.M. testified that appellant hurt her in the past, and
she obtained an order for protection because she was afraid he would hit her or throw
something. One officer testified about a 2015 domestic-assault investigation during which
D.M. alleged that appellant pushed her against a wall and that she was afraid. During the
testimony of a second officer, a recorded stat ement from D.M. was played for the jury.
D.M. stated that appellant was “a really manipulat[ive] person . . . [and] he knows my
feelings and he knows how to control me.” The district court gave cautionary instructions
in connection with the aforementioned evidence.
Appellant concedes that “[r] elationship evidence may be relevant in domestic abuse
cases where the complainant’s story changes and the defendant pressures the complainant
to change her story prior to trial,” but that such is not the case here because “D.M.’s story
remained consistent.” We disagree.
D.M. qualified appellant’s conduct during her trial testimony by referring to his act
of throwing the ceramic figur ine as an accident. The pr ior domestic-abuse evidence was
relevant because it provided context for D.M.’s testimony and her claims that appellant’s
actions were accidental. The supreme court has recognized “the inherent value of evidence
of past acts of violence committed by the same defendant against the same victim.” State
v. Williams, 593 N.W.2d 227, 236 (Minn. 1999). The ev idence here had probative value.

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As for the danger of unfair prejudice, the di strict court repeatedly gave cautionary
instructions. See State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002) (noting that appellate
courts presume a jury follows a district cour t’s instructions). The district court did not
clearly abuse its discretion by admitting the evidence.
Regarding appellant’s burden of showing that he was prejudiced, appellant asserts
that there is a reasonable possibility that th e testimony significantly affected the jury’s
verdict because it painted appellant as a ba d man and a violent drunk. An erroneous
admission of evidence is harmless “if there is no reasonable possibility that the wrongfully
admitted evidence significantly affected the verdict.” State v. Holliday, 745 N.W.2d 556,
568 (Minn. 2008) (quotation omitted). Even if the evidence was wrongly admitted, it was
not sufficiently prejudicial given the limiting instructions and the strong evidence that
appellant assaulted D.M.
Affirmed.