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This opinion will be unpublished and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
A18-1483

State of Minnesota,
Respondent,

vs.

Kathleen Lynn Alvar,
Appellant.

Filed August 26, 2019
Affirmed
Smith, Tracy M., Judge

Morrison County District Court
File No. 49-CR-18-188

Keith Ellison, Attorney General, Mi chael Everson, Assistant Att orney General, St. Paul,
Minnesota; and

Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal, appellant Kathleen Alvar argues that he r convictions for third-
degree assault and domestic assault must be reversed and a new trial granted because
(1) the prosecutor committed misconduct by arguing the wrong le gal standard for self-
defense during closing argument and (2) the district court abus ed its discretion by not
permitting Alvar to introduce evidence of past abuse by S.A. to support her claim of self-
defense. We affirm.
FACTS
According to trial testimony, o n February 2, 2018, Alvar’s husband, S.A., returned
home from work around midnight. Alvar was there, vacuuming. S.A . went into his room
and noticed that the room had been disrupted. Alvar then starte d to yell at S.A., accusing
him of cheating on her. S.A. yelled back and complained to Alvar about leaving their dog’s
hard-plastic shock-collar case in the kitchen. In the middle of the argument, Alvar threw a
water glass at S.A. The glass broke, causing a laceration close t o S . A . ’ s l e f t e y e a n d
extensive bleeding. At that moment, S.A. had a toiletry bag and the shock-collar case in
his hands. S.A. went into the bathroom and looked at his injury. He then drove himself to
an emergency room, where he received 14 stitches to his face an d 2 stitches to his ear,
leaving him with a facial scar.
Alvar called 911. She reported that S.A. had assaulted her and mentioned that she
had a fat lip from S.A. hitting her with the shock-collar case. The responding officers
arrived at the house. They found a broken water glass on the ki tchen floor and saw blood

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in the hallway, kitchen, and ba throom. Alvar initially told the officers that S.A. had been
bleeding from the eye but later said that she did not know wher e the blood came from.
Alvar told the officers that S.A. had yelled at her and hit her with the shock-collar case.
The state charged Alvar with third-degree assault causing subs tantial bodily harm,
in violation of Minn. Stat. § 609.223, subd. 1 (2016), and domestic assault by intentionally
inflicting or attempting to inflict bodily harm on another, in violation of Minn. Stat.
§ 609.2242, subd. 1(2) (2016). Alvar asserted self-defense. The jury found Alvar guilty of
both crimes, and the district court entered convictions on both. The district court sentenced
Alvar to a stay of imposition and five years’ probation on the third-degree-assault offense.
This appeal follows.
D E C I S I O N
I. The prosecutor did not commi t misconduct during closing argument.
Alvar argues that the prosecutor committed reversible miscondu ct by arguing the
wrong legal standard for self-def ense during closing argument. Alvar objected at trial.
Objected-to prosecutorial miscon duct is reviewed for harmless e rror. State v. Hunt , 615
N.W.2d 294, 301-02 (Minn. 2000). Under State v. Caron , the standard for determining
whether an error was harmless varies based upon the severity of the misconduct:
[I]n cases involving unusual l y s e r i o u s p r o s e c u t o r i a l
misconduct this court has required certainty beyond a
reasonable doubt that the misc o n d u c t w a s h a r m l e s s b e f o r e
affirming. . . . On the other hand, in cases involving less
serious prosecutorial misconduct this court has applied the test
of whether the misconduct likely played a substantial part in
influencing the jury to convict.

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218 N.W.2d 197, 200 (Minn. 1974). The supreme court has questio ned whether Caron’s
two-tiered approach is still goo d law, while declining to decid e the question. See State v.
McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). The answer does not matter here, however,
because the prosecutor did not commit misconduct at all.
It is misconduct for a prosecutor to misstate the law during c losing argument. Id. at
750-51. Alvar argues that the prosecutor misstated the self-def ense standard by arguing
that Alvar had to fear that her life was in danger to justify self-defense.
“In Minnesota, a person may act in self-defense if he or she r easonably believes that
force is necessary and uses only the level of force reasonably necessary to prevent the
bodily harm feared.” State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014). The state has
the burden of persuasion for the self-defense issue. Id. Here, the state had to disprove that
Alvar had a reasonable belief of imminent bodily injury.
When evaluating claims of prosecutorial misconduct arising out of closing
argument, appellate courts “consider the closing argument as a whole rather than focus on
particular phrases or remarks that may be taken out of context or given undue prominence.”
State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quotation omitted). The prosecutor
began her closing argument by arguing why S.A.’s testimony was credible and Alvar’s was
not. S.A. testified that he did not strike Alvar with the dog-collar case, and Alvar testified
that he did. The prosecutor reviewed the inconsistencies in Alv ar’s version of events and
argued why her testimony was inconsistent with the physical evidence.
Then, after describing the elements of the two charged offense s , t h e p r o s e c u t o r
discussed the self-defense claim, correctly stating:

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The judge also read the instru ction to you that self-defense
means that the person used reasonable force against [the
victim] to resist an assault ag ainst the person and such an
offense was being committed or the person reasonably
believed it was.

The prosecutor continued:

The question is, do you believe reasonably that [Alvar’s] belief
that [S.A.] was going to assault her is that reasonable?

The prosecutor then argued that the evidence—including the phys ical evidence, Alvar’s
behavior, and the inconsistencies in her story—did not support a finding that S.A. was
assaulting or going to assault Alvar when she threw the glass at him.
The prosecutor then argued that , even if Alvar feared harm, her response had to be
reasonable under the circumstances because the amount of force that may lawfully be used
in self-defense is limited by what a reasonable person in the same situation would believe
necessary. The statements in controversy followed. Contrasting a photograph of S.A.’s
injuries with a photo of Alvar’s face in which part of Alvar’s upper lip appears to be slightly
swollen and red, the prosecutor said, “I don’t understand how t his (indicating) warrants
this (indicating) even if you believe her. This idea that somehow her life was in danger has
been disproved if you believe this picture.” Alvar objected, and the district court overruled
the objection. The prosecutor then added, “You will get to determine if this picture shows
that [S.A.] injured [Alvar] in such a way that she had reasonab le grounds to believe that
her life was in danger.”
If read in isolation, these state ments could imply, wrongly, th at Alvar had to
reasonably believe her life was in danger in order to act in self-defense. But, in context, the

6
prosecutor did not so mislead the jury. The prosecutor was discussing the reasonableness-
of-force requirement of self-defense. Alvar had testified that, when she threw the glass,
“[her] life [was] in danger, getting hurt and hit.” Alvar’s fea r of death was relevant to the
question of reasonableness. If the jury credited Alvar’s testimony and concluded that Alvar
had reasonably believed her life was in danger, the state would not have been able to meet
its burden. The prosecutor, in c omparing the photographs and ma king the challenged
statements, was again challengi ng the credibility of Alvar’s te stimony that S.A. had
assaulted her. In context, the prosecutor’s statements were consistent with the law of self-
defense. Alvar thus fails to show that the prosecutor committed misconduct by misstating
the law.
II. The district court did not abuse its discretion by not allo w i n g A l v a r t o
introduce evidence of past abuse by S.A.

Alvar argues that the district court violated her constitution al right to present a
complete defense by not allowing h er to introduce evidence of p ast abuse by S.A. A
criminal defendant is guarant eed a constitutional right to pres ent a meaningful defense.
U.S. Const. amend. IV; Minn. Const. art. I, § 6. “That right, h owever, is not unlimited.
Evidence that is repetitive . . . , only marginally relevant or poses an undue risk of
harassment, prejudice [or] confusion of the issues may be exclu ded.” State v. Greer, 635
N.W.2d 82, 91 (Minn. 2001) (alterations in original) (citation and quotation omitted).
“Evidentiary rulings rest with in the sound discretion of the [district] court and will
not be reversed absent a clear abuse of discretion. The appella nt has the burden of
establishing that the [district] court abused its discretion an d that appellant was thereby

7
prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). Where,
as here, a district court excludes evidence, the abuse of discr etion has to be shown on a
record that is fairly limited in scope: “an offer of proof provides the [district] court with an
opportunity to ascertain the admissibility of the proffered evidence and provides a record
for a reviewing court to determine whether the lower court ruli ng was correct.” Santiago
v. State, 644 N.W.2d 425, 442 (Minn. 2002); see also State v. Munt, 831 N.W.2d 569, 583
(Minn. 2013) (“When the district court excludes evidence, an of fer of proof provides the
evidentiary basis for the court’s decision.”).
Alvar made multiple offers to in troduce evidence of past abuse by S.A. First, in a
motion filed a day before trial, Alvar explained that she wante d to introduce evidence of
past abuse in order to support her claim of self-defense and to give context to the
relationship between her and S.A. On the first day of trial, Al var’s attorney argued the
motion and indicated that he wanted to introduce testimony from Alvar’s father. When
asked what the substance of the testimony would be, the attorne y replied: “The relevant
substance . . . is that he does know that [Alvar and S.A.] foug ht. He saw bruises on my
client’s arms, possibly on her throat at one time, that he did have a conversation with the
alleged victim in this case, telling him never to put his hands on her.”
1 Alvar’s attorney
also sought clarification on whether Alvar could “talk about past abuse against herself.”
The district court ruled that neither Alvar nor her father could testify on past abuse
by S.A. in general. After the trial began, Alvar’s attorney obj ected to the ruling multiple

1 Alvar’s attorney did not say that Alvar’s father could link the observed bruises to acts of
abuse by S.A.

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times and offered to introduce evidence of past abuse by S.A., but the district court did not
change its ruling. The thrust of the district court’s rationale for denying Alvar’s offers of
proof was that Alvar did not particularize the incidents of all eged past abuse. Given that
the proffered evidence was not a rgued to be on any specific act of abuse perpetrated by
S.A., the district court decided that it would be improper to open the door for Alvar or her
father to testify generally on S.A.’s abusive proclivities.
Alvar does not argue that she offered to introduce evidence of specific incidents of
abuse. Instead, she invokes two evidentiary rules to show that the proffered evidence was
in fact admissible. First, she argues that the evidence was adm issible under State v.
Zumberge, 888 N.W.2d 688, 694 (Minn. 2017). Zumberge states:
When self-defense is asserted, evidence of a specific act is
admissible only to show that a defendant reasonably feared
great bodily harm, provided that the defendant proves that he
knew of the specific act at the time of the alleged offense.
Evidence of specific acts of violence is admissible where
commonsense indicates that these acts could legitimately affect
a defendant’s apprehensions.

888 N.W.2d at 694 (citation and quotation omitted).
Second, Alvar argues that the evi dence of past abuse by S.A. wa s admissible as
general relationship evidence. By “general relationship evidenc e,” Alvar seems to be
referring to the basis of intro ducing relationship evidence est ablished under Minnesota
caselaw, “independent of Minn. Stat. § 634.20, the Spreigl/rule 404(b) process, or the
immediate-episode doctrine.” See State v. Hormann , 805 N.W.2d 883, 890 (Minn. App.
2011), review denied (Minn. Jan. 17, 2012). In State v. Loving , the supreme court
articulated the basic standard for this caselaw-based introduction of relationship evidence:

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“[R]elationship evidence is chara cter evidence that may be offe red to show the strained
relationship between the accused and the victim . . . . [S]uch evidence has further probative
value when it serves to place the incident for which appellant was charged into proper
context.” 775 N.W.2d 872, 880 (Minn. 2009) (quotations omitted). Although Spreigl/rule
404(b) notice is not required before introducing relationship evidence under this standard,
“[c]ourts typically apply parts of the Spreigl/rule 404(b) analysis to relationship evidence,”
Hormann, 805 N.W.2d at 890, including that the district court must fin d the prior bad act
by clear and convincing evidence, State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999).
In sum, both of Alvar’s asserted grounds for admission require the proffered
evidence to be on a particular act committed in the past. But, as discussed earlier, Alvar
did not make an offer of proof alleging any specific act of abuse by S.A. The district court
therefore did not abuse its discretion by not allowing Alvar to introduce evidence of past
abuse by S.A.
Affirmed.