State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1190

State of Minnesota,
Respondent,

vs.

Tory Larae Moore,
Appellant.

Filed July 8, 2019
Affirmed
Bratvold, Judge

Douglas County District Court
File No. 21-CR-17-1926

Keith Ellison, Attorney General, St. Paul, Minnesota, and

Thomas Jacobson , Alexandria City Attorney, Gregory F. Donahue, Assistant City
Attorney, Alexandria, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from final judgment of conviction of misdemeanor domestic
assault, appellant argues that his conviction must be reversed because it is based on
circumstantial evidence for which there is a rational alternative hypothesis that he intended
to discipline and correct his child. Alternatively, appellant argues that the district court
committed reversible error when it admitted evidence of his “strangle” neck tattoo and his
discipline methods. We conclude that sufficient evidence supports appellant’s conviction
of domestic assault and that the district court’s evidentiary decisions did not affect
appellant’s substantial rights. Accordingly, we affirm.
FACTS
Evidence received during trial established the following facts: Appellant Tory Larae
Moore lived in Alexandria with his two daughters, T.M. (age 14) and M.L. (age 12) .
When she was ten years old, T.M. moved to Alexandria to live with Moore; she had
previously lived with her mother in Starbuck. T.M. testified that she did not have a “strong
relationship” with her father. M.L. began living with Moore when she was about three,
and, at the time of the trial, had lived with Moore for approximately nine years. M.L.
testified that she and Moore were “close” until T.M. moved in, when Moore “expected
[her] to start acting like an adult.” M.L. has a history of mental-health issues including
depression, anxiety, suicidal thoughts, and self-harm including cutting.
On September 19, 2017, Moore and T.M. went shopping. While driving to the store,
T.M. told Moore that, in 2016, she had confronted M.L. when M.L. took a knife from the
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kitchen to the bathroom (the “knife incident”). T.M. told M.L. to stop and that she knew
that M.L. was “going to go into that bathroom [to] cut.” M.L. held the knife up to T.M.
and responded that if T.M. did not “move out of my way, then I’ll stab you.” T.M.
eventually “wrestled the knife away from” M.L. and put it back in the kitchen.
After T.M. told Moore about the knife incident, he was “furious” and went home to
speak with M.L. When they arrived home, Moore yelled at M.L. to come out of her
bedroom and asked her if she had threatened T.M. with a knife. M.L. stood in her bedroom
and “kept saying, no, and that [she] didn’t know what he was talking about.” T.M. testified
that M.L. was “confused” and “terrified,” and that Moore was “[a]ngry, aggressive, [and]
threatening.” Moore then grabbed M.L., using his right hand on the “front of her neck,”
pulled her out of her bedroom, and pushed her into the dining room. M.L. testified that
Moore touched the skin of her neck, with a “rough” grip, and she felt “[s]cared.” Moore
told M.L. to “[g]o stand on the wall,” which is the “time out position.”
Moore then called his mother, V.M., so that one of the girls c ould stay with her,
because he did not feel comfortable leaving them at home together while he went to work.
M.L. stayed with V.M., and after a few days, she returned to Moore’s home.
On October 2, 2017, T.M. and M.L. decided to run away . M.L. feared she would
get in trouble for running away, so she returned to Moore’s home; T.M. packed a bag and
went to a friend’s house after school. Moore called the police and reported that T.M. had
not come home from school. Responding police officers, including Officer Draz, f ound
T.M. at her friend’s house; T.M. said t hat she was afraid to go home because her “sister
had gotten choked by her dad.”
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Draz investigated the September 19 incident and took statements from M.L. and
Moore. Moore stated that after T.M. told him about the knife incident, he was angry with
M.L, and “went to go yell at her.” Moore stated that he grabbed M.L. “by the sweatshirt
collar to be able to yell at her face-to-face.” When asked if he “had choked her at any
point,” Moore replied that he had not, but “it might have looked like it.” M.L. admitted
that she had threatened T.M. with a knife “because [she] was mad, not because [she] was
actually going to do it.” M.L. also said that, on September 19, Moore “put his hands around
her neck briefly, and then in turn grabbed her by the sweatshirt.” M.L. added that Moore
had recently “twisted her arm,” that Moore was “really strict . . . [like] a drill instructor,”
and that she did not want to live with him. Draz referred the case to social services and the
investigative unit. T.M. and M.L. remained in Moore’s home on October 2.
The next day, Detective Halverson and a social worker from Douglas County Social
Services were assigned to investigate. Halverson and the social worker interviewed M.L.
at school; M.L. described her history of “cutting herself ” and the September 19
incident. M.L. demonstrated how Moore choked her by “using her hand,” and showed
“squeezing with the hand and fingers in front of the neck.” The next day, Halverson and
the social worker interviewed T.M. at school and she provided similar information. T.M.
also stated that “things were terrible at home” and she “was afraid of her father.” T.M.
described Moore’s “disciplinary measures,” which included “standing against a wall for
hours,” “cleaning the house to the point of exhaustion,” and “not receiving meals on a
regular basis.” T.M. and M.L. were placed on an emergency hold, removed from the home,
and placed in foster care.
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The state charged Moore with two counts stemming from the September 19
incident: (1) misdemeanor domestic assault (fear) under Minn. Stat. § 609.2242, subd. 1(1)
(2016), and (2) misdemeanor domestic assault (harm) under Minn. Stat. § 609.2242, subd.
1(2) (2016).
The state filed motions in limine, arguing that the district court should allow the
admission of “domestic conduct evidence” under Minn. Stat. § 634.20 (2018). Moore
objected. After hearing the parties’ arguments, the district court granted the state’s motions
to admit: (1) testimony that in December 1995, Moore assaulted J.T., his ex-girlfriend (the
1995 incident), (2) testimony that in January 1996, Moore attempted to strangle J.T. (the
1996 incident), and (3) testimony that Moore had recently twisted M.L.’s arm, causing her
pain (the arm incident) . The district court also granted the state’s request, over Moore’s
objection, to receive evidence of his neck tattoo, which said “strangle.” Finally, the district
court denied the state’s request to admit “other alleged incidents” of domestic abuse that
“become known to the [s]tate” before trial.
During the jury trial, T.M., M.L., Halverson, and Draz testified to the facts described
above. After the state rested, Moore moved for judgment of acquittal, arguing that the state
had failed to meet its burden of proof beyond a reasonable doubt. The district court denied
Moore’s motion, citing M.L.’s testimony “that she was fearful of her father” and that
Moore had inflicted “bodily harm” on M.L., and therefore, there was a “sufficient record
for the jury to make a decision” on the charges.
In his defense, Moore called V.M. to testify that when she picked up M.L. from
Moore’s home on September 19, Moore was “upset, but he was real ly holding it together
6
well.” V.M. testified that M.L. never told her that Moore harmed her in any way on
September 19. Moore also testified and denied that he grabbed M.L. “by the throat.”
Moore testified that, when he tried to talk to M.L. about the knife incident, M.L. would not
leave her bedroom, so he “tried to grab her by her shirt with two fingers, and lead her out
into the dining room.” Moore testified that his voice was raised when he spoke with
M.L. Moore admitted that he would make his ex-girlfriend J.T. “stand in the corner” when
they fought, similar to the timeout position he used with T.M. and M.L. Moore also
testified that he understood that J.T. felt afraid when he made her stand in the corner.
The jury found Moore guilty of count I, domestic assault (fear), and not guilty of
count II, domestic assault (harm). At sentencing, the district court placed Moore on one
year of supervised probation, and imposed a 90-day jail sentence, “suspending seventy-five
days on the conditions” provided. Moore appeals.
D E C I S I O N
I. Sufficient evidence supports Moore’s conviction of domestic assault (fear).

Moore argues that the district court erred when it denied his motion for judgment of
acquittal made at the close of the state’s case-in-chief. Specifically, Moore contends that
“a reasonable alternative hypothesis exists that Moore intended to discipline and correct
his child, and therefore the circumstantial evidence on the intent element was insufficient
to convict.”
This court’s review of a sufficiency -of-the-evidence challenge is limited to “a
painstaking review of the record to determine whether the evidence and reasonable
inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient
7
to allow the jury to reach its verdict.” Lapenotiere v. State, 916 N.W.2d 351, 360-61 (Minn.
2018) (quotation omitted). The appellate court must assume that the trier of fact “believed
the state’s witnesses and disbelieved any con tradictory evidence.” State v. Webster, 894
N.W.2d 782, 785 (Minn. 2017).
Moore argues that the state failed to prove that he had the intent necessary to convict
him of domestic assault (fear), which is that the defendant acted “with intent to cause fear
in another of immediate bodily harm.” Minn. S tat. § 609.2242, subd. 1(1) (emphasis
added). “With intent to . . . means that the actor either has a purpose to do the thing or cause
the result specified or believes that the act, if successful, will cause that result.” Minn. Stat.
§ 609.02, subd. 9(4) (2016) (quotations omitted); see also 10 Minnesota Practice ,
CRIMJIG 13.44-.46 (2015). The state must prove intent beyond a reasonable doubt. See
State v. Merrill, 428 N.W.2d 361, 366 (Minn. 1998) (due process clauses of the United
States and Minnesota Constitutions require the state to prove “each element of the crime
charged beyond a reasonable doubt”).
We agree with Moore that the two-step circumstantial-evidence test applies in this
case because the state did not present direct evidence of Moore’s intent. See State v.
Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (stating that intent is generally established by
circumstantial evidence). Under the circumstantial-evidence test, this court first identifies
the circumstances proved by deferring to the fact-finder’s “acceptance of the proof of the
circumstances and rejection of evidence in the record that conflicted with the circumstances
proved by the State.” State v. Washington- Davis, 881 N.W.2d 531, 543 (Minn. 2016)
(quotations omitted). After identifying the circumstances proved, this court “independently
8
examine[s] the reasonableness of all inferences that might be drawn from the circumstances
proved” to determine “whether the circ umstances proved are consistent with guilt and
inconsistent with any rational hypothesis except that of guilt.” Id.
First, we identify the circumstances proved by the state in its case against Moore.
As a preliminary matter, Moore suggests that this court should only consider the evidence
offered during the state’s case in chief because the district court denied his motion for
judgment of acquittal. We disagree. The supreme court has held “that where a defendant
chooses to introduce evidence after his motio n for judgment of acquittal has been denied,
[this court] consider[s] the ‘whole record’ and not just the evidence produced by the State.”
State v. Tscheu, 758 N.W.2d 849, 857 n.7 (Minn. 2008). In examining whether the evidence
was sufficient to support Moore’s conviction, this court will consider the entire record. See
id.
The following circumstances were proved at trial: On September 19, T.M. told
Moore that, in 2016, she had confronted M.L. when M.L. took a knife from the kitchen to
cut herself, and that M.L. had threatened T.M. with a knife and said that if T.M. did not
“move out of my way, then I’ll stab you.” Moore was “furious” and yelled at M.L. to come
out of her bedroom and explain what had happened. Moore’s demeanor toward M.L. was
“[a]ngry, aggressive, [and] threatening.” M.L. stood in her bedroom, was “confused” and
“terrified,” and attempted to answer Moore’s questions. Moore grabbed M.L., using his
right hand on the “front of her neck,” pulled her out of her bed room, and pushed her into
the dining room. Moore touched the skin of M.L.’s neck, with a “rough” grip, and this
9
made M.L. feel “[s]cared.” Moore then told M.L. to “[g]o stand on the wall,” in the “time
out position.”
Under the second step, we consider “whether the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt. ”
Washington-Davis, 881 N.W.2d at 543. Moore does not dispute that the circumstances
proved are consistent with guilt. Rather, Moore argues that a rational hypothe sis
inconsistent with guilt exists, which is that, after “learning M.L. threatened her sister’s life
with a knife, Moore grabbed M.L. with the intent of moving her to the dining room to speak
with her about the knife incident, and to discipline her and correct her behavior.” Moore
contends that the law allows a parent to use “physical force to discipline a child,” and cites
statutes providing that a parent may use “reasonable force” with their own child when such
force is used “to restrain or correct such child,” see Minn. Stat. § 609.06, subd. 1(6) (2016),
and that a parent has “a reasonable-force defense for malicious-punishment-of -a-child
charge,” see Minn. Stat. § 609.379, subd. 1 (2016).
The state contends that the affirmative defense of “reasonable force to restrain or
correct a child is not available” for domestic assault, therefore, Moore’s “proposed rational
hypothesis other than guilt” is “not available to him as a matter of law.” It is true that
section 609.379, subdivision 2, provides a reasonable-force defense for certain enumerated
offenses, and does not mention section 609.2242, domestic assault (fear). See Minn. Stat.
§ 609.379, subd. 2. But the state has the burden to prove Moore’s intent beyond a
reasonable doubt; therefore, we consider Moore’s argument. See Minn. Stat. § 609.2242,
subd. 1(1); Merrill, 428 N.W.2d at 366.
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We reject Moore’s alternative hypothesis for two reasons. First, no evidence
establishes that Moore intended to correct M.L. Moore did not testify that he intended to
discipline M.L. when he grabbed her neck. Instead, at trial, Moore denied that he grabbed
M.L.’s neck, and testified that he only touched her clothing with two fingers to force her
to go into the living room. No evidence establishes that Moore had to grab M.L.’s neck to
“restrain or correct” her.
Second, Moore’s alternative hypothesis is inconsistent with the circumstances
proved. Grabbing M.L. by the neck is inconsistent with Moore’s previous discipline
methods, as established during trial. Moore disciplined the children by requiring that they
“stand[] against a wall,” “clean[] the house t o the point of exhaustion,” and that Moore
made them miss meals. Because Moore’s alternative hypothesis is without support in the
record and inconsistent with the circumstances proved, we reject it.
Viewing the evidence in the light most favorable to the jury’s verdict , we conclude
that there is sufficient circumstantial evidence to prove Moore’s intent to commit domestic
assault (fear).
II. The district court erred by admitting evidence of Moore’s neck tattoo, but the
error was harmless.

During T.M.’s testimony, the state introduced exhibit one, a picture of Moore’s face
and neck, including his tattoo, and T.M. described Moore’s “strangle” neck tattoo. Moore
argues that evidence of his neck tattoo should have been excluded because it had no
relevance to the charged offenses and “risked the jury concluding that Moore had a
propensity to assault people” by strangling them. The state argues that the evidence
11
regarding Moore’s tattoo was admissible because it was an identifying mark, and because
it was probative of M.L.’s fear.
We review a district court’s evidentiary rulings for abuse of discretion. State v.
Amos, 658 N.W.2d 201, 203 (Minn. 2003). An appellant has the burden of showing an
abuse of discretion and that the appellant was prejudiced as a result. Id. A district court
abuses its discretion “when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” State v. Guzman , 892 N.W.2d 801, 810 (Minn.
2017).
“The threshold test for the admissibility of evidence is the test of relevancy.” Minn.
R. Evid. 401 1977 comm. cmt. Generally, evidence is relevant if it has “any tendency to
make the existence of any [material] fact . . . more probable or less probable.” Minn. R.
Evid. 401. In addition to arguing that his neck tattoo is not relevant, Moore also argues that
the tattoo should have been excluded because “its probative value is substantially
outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403.
We agree with Moore that the tattoo evidence should have been excluded. The
district court reasoned that the tattoo evidence was admissible to prove the “alleged fear by
the victim.” Relevant caselaw provides, however, that the “intent of the actor, as contrasted
with the effect upon the victim,” is the “focal point for inquiry ” in domestic assault. In re
Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001). “The crime is in the act done
with intent to cause fear, not in whether the intended result is achieved.” Id. Because the
tattoo only tended to prove that M.L. was afraid of Moore, and her fear, independent of
any action by Moore, is not relevant, the tattoo evidence is not relevant.
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Even assuming that M.L.’s fear is relevant, her fear is established by her own
testimony about Moore’s conduct. In fact, M.L. did not testify that she was afraid of Moore
because of his tattoo. M.L. did not mention the tattoo in her testimony about the September
19 incident. In addition, even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. See Minn. R. Evid. 403. Here,
the “strangle” tattoo conveyed the “nearly inescapable message” that Moore “celebrates
assaulting others and has done so in the past.” See State v. Smith, 749 N.W.2d 88, 96 (Minn.
App. 2008) (concluding that the district court abused its discretion in admitting a photo of
a defendant in the presence of firearms).1 Accordingly, the danger of unfair prejudice from
the tattoo evidence outweighed its nominal probative value. Thus, we conclude that the
district court abused its discretion in admitting the tattoo evidence.
Still, we must determine whether the erroneous admission of the tattoo evidence
warrants reversal. An appellant has the burden of showing that he was prejudiced by the
erroneous admission of evidence. Amos, 658 N.W.2d at 203. An error is sufficiently
prejudicial to justify a new trial “when the error substantia lly influences the jury’s
decision.” State v. DeShay, 669 N.W.2d 878, 888 (Minn. 2003). In this case, the tattoo
evidence was only briefly mentioned during T.M.’s testimony, and was not mentioned by
either party in closing arguments. In addition, the state’s case relied primarily on the

1 In State v. Swinger, this court concluded that it was not an abuse of discretion to admit
testimony about appellant’s swastika tattoo. 800 N.W.2d 833, 838-40 (Minn. App. 2011),
review denied (Minn. Sept. 28, 2011). But Swinger determined that the testimony about
the swastika tattoo was “relevant because it helped explain the initial confrontation
between appellant and [the victim] and provided context for the whole event.” Id. at 839.
Here, the strangle tattoo was not linked to the September 19 incident.
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testimony of T.M. and M.L. about the September 19 incident, and not on the tattoo
evidence. But Moore complains that the photographs depicting his tattoo were booking
photos that may have led jurors to infer he had a prior criminal record. The photographs,
however, were altered before they were presented to the jury , and the jury was “not
informed of the arrest connection”; therefore, Moore was not prejudiced. See State v.
Sutherlin, 393 N.W.2d 394, 397 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).
Because the tattoo evidence did not substantially influence the jury’s decision, we
conclude that the alleged error does not warrant reversal.
III. The district court did not err in admitting evidence of Moore’s discipl ine
methods.

T.M. and M.L. testified about how Moore disciplined them, stating that Moore made
them “get on the wall,” which meant “[ s]tand facing the wall . . . no talking, no sitting,”
clean the house to “the point of exhaustion,” and that Moore made them miss meals. M.L.
also testified about the arm incident, where another child told Moore that M.L. had twisted
the other child’s arm. Moore then “twisted [M.L.’s] arm” and asked her if she liked it when
someone did this to her. Moore denied that he had twisted M.L.’s arm, and testified that
the trial was “the first time [he had] heard” of this allegation.
Moore argues that evidence of his “parenting style” should not have been admitted
because this evidence “had little probative value and the state used the evidence to
impermissibly persuade the jury that Moore should be convicted because he was a bad
person, a bad parent, and a person worthy of punishment.” The state asserts that the district
court’s evidentiary rulings were not an abuse of its discretion.
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Moore concedes that he did not object to the admission of “[m]ost of this evidence,”
at trial, and therefore, acknowledges that this court will apply the plain-error standard of
review. The state argues that Moore waived appellate review of these issues, because he
failed to object as a matter of “defensive strategy.” But our precedent provides that, “even
in the absence of objection by counsel,” appellate courts may take note of “plain errors
affecting substantial rights.” State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994);
Minn. R. Crim. P. 31.02 (providing that plain error “can be considered” for the first time
on appeal if the error affects the appellant’s substantial rights). Thus, we consider this issue
under the plain-error standard of review.
“Under this test, the challenging party must show: 1) error, 2) that is plain, and
3) that affects substantial rights.” State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). A
district court error is plain “when it contravenes a rule, case law, or a standard of conduct,
or when it disregards well-established and l ongstanding legal principles.” State v. Brown,
792 N.W.2d 815, 823 (Minn. 2011) (quotations omitted). A defendant’s substantial rights
are affected when “there is a reasonable likelihood that the error subst antially affected the
verdict.” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002). If the first three prongs
are met, this court “may correct the error only if it seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d 433, 437
(Minn. 2001) (quotation omitted).
A district court may admit evidence of “domestic conduct” by a defendant unless
the probative value of the evidence is “substantially outweighed by the danger of unfair
prejudice” to the defendant, “or by considerations of undue delay, waste of time, or
15
needless presentation of cumulative evidence.” Minn. Stat. § 634.20. Such evidence may
be offered to “illuminate” the history of the relationship between a defendant and an alleged
victim and provide context for the alleged incident. State v. McCoy, 682 N.W.2d 153, 161
(Minn. 2004). Relationship evidence may assist the jury “by providing a context with
which it [can] better judge the credibility of the principals in the relationship.” Id.
We conclude that the district court did not plainly err in admitting the challenged
evidence. The evidence of Moore’s disc ipline methods had probative value because it
demonstrated the history of the relationship between Moore and his children. See id. In
particular, the discipline evidence is directly related to Moore’s conduct with M.L., and
whether he intended to cause fear in M.L. on September 19. In fact, Moore’s brief to this
court acknowledges when arguing his sufficiency-of-the-evidence claim that his discipline
techniques are relevant to “his actions on September 19.” Additionally, when Moore was
asked about J.T.’s testimony and whether he did anything “to make her afraid,” he stated,
“Oh, I think I may–used to make her stand in a corner or something.” Thus, the challenged
discipline evidence was relevant to whether Moore intended to cause M.L.’s fear, and the
district court did not plainly err by admitting this evidence.
In addition, we disagree with Moore that the discipline evidence was “cumulative”
of the other relationship evidence admitted during trial. Specifically, J.T., Moore’s
ex-girlfriend, testified about the 1995 and 1996 incidents. J.T. testified that, in 1995,
Moore grabbed her by her neck to stop her from leaving the house. J.T. also testified that
after the 1995 incident she ended the relationship. And J.T. testified that, in 1996, Moore
came to her home in the middle of the night, but she refused to talk to him. Later that night,
16
J.T. woke up “feeling something on [her] neck” and Moore was sitting on the edge of the
couch where she slept. Moore denied the 1995 and 1996 incidents. Notably, Moore does
not argue on appeal that admission of these three prior incidents was reversible error.
We are not persuaded that the discipline evidence is cumulative of the other
relationship evidence. Of the three prior incidents proven at trial, only one involved Moore
and M.L., where M.L. testified that Moore twisted her arm. We also reject Moore’s
argument that the “sea” of relationship evidence “distracted the jury from its fact-finding
mission.” The jury acquitted Moore of domestic assault (harm), which supports the state’s
argument that the jury properly considered the relationship evidence to evaluate witness
credibility and to give context to the relationship between Moore and M.L. 2
In sum, the district court did not plainly err in admitting the relationship evidence,
and we affirm.
Affirmed.

2 Moore briefly states that the district court did not sua sponte caution the jury as to the
proper use of such relationship evidence. Moore did not object to the admission of this
evidence at trial, therefore, the absence of a cautionary instruction is not reversible error.
See State v. Zinski, 927 N.W.2d 272, 278 (Minn. 2019) (“[W]hen a district court admits
relationship evidence under Minn. Stat. § 634.20, over a defendant’s objection that the
evidence does not satisfy section 634.20, the court must sua sponte instruct the jurors on
the proper use of such evidence, unless the defendant objects to the instruction by the
court.”) (emphasis added). Because Moore did not object to the relationship evidence, the
district court was not required to give the cautionary instruction.