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This opinion will be unpublished and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
A19-1496

State of Minnesota,
Respondent,

vs.

Richard Lee Peterson,
Appellant.

Filed August 3, 2020
Affirmed
Jesson, Judge

Douglas County District Court
File No. 21-CR-19-523

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

Thomas Jacobson, Alexandria City Attorney, Katelyn K. Steffel Spangrud, Assistant City
Attorney, Swenson Lervick Syverson Trosvig Jacobson Cass, P.A., Alexandria, Minnesota
(for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Ab igail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Wo rke, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After an argument with his girlfriend beca me physical, a jury convicted appellant
Richard Lee Peterson of misdemeanor domes tic assault. Peterson challenges that

2
conviction, contending that the prosecutor committed misconduct and that the district court
erroneously admitted an order for protection. Because neith er of the alleged errors
impacted Peterson’s substantial rights, we affirm.
FACTS
In March 2019, S.P. and her boyfriend, appellant Richard Lee Peterson, began
arguing about him messaging another woman. S. P. told Peterson that he was no longer
welcome in her home, and Peterson was upset . The argument turned physical, involving
some pushing and shoving from both parties. According to S.P.’s petition for an order for
protection (OFP), she attempted to move Peterson’s belongings closer to the door. Peterson
then “put his hands on [her collarbone] and pushed [her] all the way to [the] other side of
[the] living room.”
Later that afternoon, Peterson returned to S.P.’s house, and the two began arguing
about who owned a tire jack. As Peterson attempted to take the tire jack from the garage,
S.P. entered the garage and closed the door behind her. Inside the garage, the argument
continued. When Peterson tr ied to leave and S.P. resist ed, the argument again turned
physical. Both Peterson and S.P. were holding the tire jack and pushing each other. While
holding the tire jack, Peterson shoved his body weight into S.P. But, according to S.P., she
also used her shoulder to push Peterson. Peterson managed to open the door, and the two
struggled over the tire jack outside. S.P. ended up on the ground. Eventually, S.P. called
the police to have Peterson removed from her property.
Peterson was gone when police arrived. Acco rding to the officer, S.P. told him that
she and Peterson were mutually struggling over the tire jack. But she also reported that

3
Peterson used his shoulder to push her off the tire jack, and “sh ouldered” her outside,
causing her to fall into the mud. A man who w itnessed the struggle to ld the officer that
Peterson punched S.P. in the stomach. When the officer as ked S.P. if Peterson punched
her in the stomach, S.P. started crying. A lthough her demeanor indicated that Peterson
may have punched her, she did not explicitly state this to the officer.
The next day, S.P. went to the doctor fo r bruises, body pains, and concern about her
finger. She also filed a petition for an OFP. In the petition, S.P. alleged that Peterson
pushed her across the living room. She also described the altercation over the tire jack,
explaining that Peterson physica lly shoved his body weight into her, forced her to the
ground, and “sw[ung at her] but missed.” But the handle of the tire jack made contact with
her, S.P. stated, and she had some bruising and scratches. The district court granted S.P.’s
request for an ex parte OFP. And police asked Peterson to come to the police station, where
they arrested him.
The state charged Peterson with misdemeanor domestic assault. Before trial, the
state filed a motion seeking to admit three of Peterson’s prior acts as domestic abuse
evidence, including evidence that Peterson allege dly violated an OFP in 2018. 1 But the
district court denied the state’s motion. W ith respect to the alle ged OFP violation, the

1 The other two prior acts included evidence th at Peterson assaulted a family member in
2002 and evidence that Peterson engaged in cr iminal sexual conduct against a family or
household member in 2017. Th e district court determined that the 2002 incident was too
remote and that the potential for prejudice outweighed the probative value of the evidence.
And it excluded the ongoing criminal-sexual-conduct case for the same reason it excluded
the alleged OFP violation.

4
district court concluded it was an ongoing criminal case, and the district court did not want
to violate Peterson’s right to remain silent in that matter.2
The case then proceeded to trial. Before jury selection, the parties reviewed the
evidence with the court, which included S.P.’s petition for an OFP and the ex parte OFP.
The OFP petition contained a st atement from S.P. that Pete rson “ha[d] numerous past
altercations along with a cu rrent OFP with [another woman] in Stearns County [and] a
couple violations.” And it was not redacted. The district court asked defense counsel if
there was any stipulation regarding those two exhibits. Counsel responded, “[y]es.” And
defense counsel did not have any objections to the state offering the exhibits.
At trial, S.P. testified under subpoena as an unwilling witness. S.P. explained that
Peterson was still her boyfriend, and the tw o lived together. Much of her testimony
appeared to minimize what happ ened with Peterson. Indeed, S.P. testified that she only
filled out a petition for an OFP because she “w as told to” and that Peterson “did not do
what everybody is claiming he did.”
Because S.P.’s testimony was often inconsistent with her statements in her petition
for an OFP, the state asked S. P. to read her statements fro m the petition, which she did.
But, according to S.P., Peterson only pushed her during their argument in the living room
to calm her down and de-escalate the situation. And S.P. ch aracterized the struggle over
the tire jack as a mutual struggle, though she testified that Peterson shoved his body weight
against her. S.P. explained that she lost her footing and fell because her driveway was

2 After the district court deni ed the state’s motion, the stat e sought to a dd an additional
charge of domestic assault against Peterson, which the district court allowed.

5
muddy and slick. She denied that Peterson shoved her. When asked if Peterson attempted
to punch her, S.P. testified that “[i]t could contemplate looking like a swing,” but Peterson
was really readjusting his grip on the tire jack. During cross- examination, S.P. reiterated
that Peterson was not trying to hurt her and that she was not afraid of him.
In addition to S.P.’s testimony, the man who saw the altercation testified. The man
was at his uncle’s house nearby, with a clea r view of the struggle. The “yelling and
screaming” caught his attention. He then saw S.P. and Peterson fighting over what looked
like a big pipe. Then , according to the man, Peterson p unched S.P. “in the gut” causing
her to fall to the ground. When asked if he saw Peterson make contact with S.P., the man
testified that Peterson “had to have” because S.P. fell down.
The officer who responded to S.P.’s 911 call also testified. When he arrived, S.P.
was crying, visibly shaking, and “very worked up,” the officer explai ned. S.P. told him
that Peterson put his shoulder into her to get her off the tire jack and “shouldered” her
outside, causing her to fall in the mud. The officer also testified that when he asked S.P. if
Peterson punched her in the stomach, she started crying and sort of nodded. In addition to
the officer’s testimony, the state submitted footage from his body camera.3
At the close of the state’s case, Peterson recalled S.P. to the stand. S.P. testified that
when the officer asked her about the stomach punch, she was on the phone with an
organization that assists victims of domesti c violence. Her emotional expression and

3 The state also presented testimony from the nurse who treated S.P. after the incident. The
nurse explained that S.P. said she was in an altercation with someone and had bruises and
body aches. S.P. reported that she was pu shed around, pushed down, and that something
may have happened to her hand.

6
shaking her head, she explained, was in re sponse to the phone conversation, not the
officer’s question.
The jury found Peterson guilty of domestic assault wh ich caused harm, but not
guilty of domestic assault in which a person a ttempts to inflict harm . The district court
sentenced Peterson to 90 days in jail, with 80 days stayed for two years. Peterson appeals.
D E C I S I O N
Peterson argues that two alleged errors warrant reversal of his conviction and a new
trial. First, he contends that the pros ecutor committed misconduct by introducing S.P.’s
petition for an OFP, which contained a reference to an alleged prior OFP violation that the
district court previously excluded. Second, he maintains that the district court erroneously
admitted the ex parte OFP because it contained a prejudicial determination that S.P. needed
protection from him. We review each argument in turn.
I. Introducing the unredacted petition for an OFP constituted prosecutorial
misconduct, but such misconduct did not affect Peterson’s substantial rights.

Peterson first contends that by introduc ing S.P.’s petition for an OFP, which
referenced prior altercations with anothe r woman who had an OFP against him and “a
couple violations” of that OFP, the prosecutor committed misconduct. This action,
according to Peterson, violated the district court’s earlier eviden tiary ruling excluding
evidence of the pending charge against Peterson for violating an OFP.
Peterson did not object to the admission of the petition at trial. We review
unobjected-to claims of prosecutorial miscon duct under a modified plain-error standard.
State v. Ramey, 721 N.W.2d 294, 302 (Mi nn. 2006). Under this standard, Peterson must

7
establish error that is plain. Id. Upon such a showing, the bu rden shifts to the state to
demonstrate “that there is no reasonable likelih ood that the absence of the misconduct in
question would have had a si gnificant effect on the verdict of the jury.” Id. (quotations
omitted). If the state fails to establish th at the misconduct did not affect Peterson’s
substantial rights, we then consider whether to address the error “to ensure fairness and the
integrity of judicial proceedings.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).
Plain Error
We first consider whether the prosecut or committed misconduct amounting to plain
error by introducing S.P.’s petition for an OFP. Before trial, the district court ruled that
the state could not introduce evidence related to Peterson’s alleged 2018 violation of an
OFP obtained by a different woman. But S.P.’s petition for an OFP contained a statement
describing Peterson’s history of abuse. Her petition read that Peterson “has numerous past
altercations along with a cu rrent OFP with [another woman] in Stearns County [and] a
couple violations.” And the petition was not redacted. Ra ther, it was admitted—without
objection—into evidence containing the statem ent referencing “past altercations” and a
potential prior violation of an OFP.
If an error “contravenes case law, a rule, or a standard of conduct,” then it is plain.
State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). In general, it is
“misconduct for a prosecutor to knowingly offer inadmissible evidence for the purpose of
bringing it to the ju ry’s attention.” State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014)
(quotation omitted). Further, prosecutors must follow a district court’s evidentiary rulings.
See State v. Jahnke, 353 N.W.2d 606, 611 (Minn. App. 1984). And the Minnesota Rules

8
of Evidence outline strict guidelines for admitting evidence of a defendant’s prior bad acts.
See Minn. R. Evid. 404(b).
Here, S.P.’s petition clearly suggests that Peterson may have previously violated an
OFP, a topic that the district court rule d inadmissible. Submitting the petition without
redacting the previously excluded, potentially prejudicial information violated the district
court’s earlier evidentiary ruling. Despite th e state’s claim that the introduction of the
excluded evidence was inadvertent, the state intentionally introduced the petition. As such,
introducing the unredacted petition referenc ing excluded evidence was misconduct
amounting to plain error.4 See generally State v. Flowers, 261 N.W.2d 88, 89 (Minn. 1977)
(granting a new trial where the state referred to an incident excluded by a pretrial order
during the trial, and the district court overruled objections to the statements and denied the
defendant’s motion for a mistrial).
Substantial Rights
Because Peterson established prosecutor ial misconduct amounting to plain error,
the burden shifts to the stat e to demonstrate that such error did not affect Peterson’s
substantial rights. See Ramey , 721 N.W.2d at 302. When evaluating the effect of

4 In support of its argument to the contrary, the state asserts that the admission of a single
reference to Peterson’s past conduct was inadve rtent. But if the state did not know the
petition contained such a statement, it at least should have known. Indeed, this is not a
case where a witness gave unexp ected, inadmissible testimony. See State v. Henriksen ,
522 N.W.2d 928, 929-30 (Minn. 1994) (concluding that a defendant was not entitled to a
new trial where the prosecutor unintentionally elicited suppressed evidence). Rather, the
statement at issue here was written down in an exhibit offere d by the state. See
State v. Huffstutler, 130 N.W.2d 347, 348 (Minn. 1964) (s tating that “the prosecution is
entirely responsible for [the inadmissible evidence’s] presence in the record”).

9
misconduct on a defendant’s substantial rights, we evaluate “various factors, including the
pervasiveness of improper suggestions and the strength of evidence against the defendant.”
Parker, 901 N.W.2d at 926 (quota tions omitted). We also consider a defendant’s
opportunity to rebut the improper evidence. Mosley, 853 N.W.2d at 803.
The state argues that any misconduct was no t pervasive and that the evidence of
Peterson’s guilt was strong. We agree. Be ginning with the perv asiveness of improper
suggestions, the state did not reference Peterson’s alleged prior violation of an OFP during
the trial. Additionally, the state did not question S.P. about that particular statement in her
petition. Although the prosecutor asked S.P. one question about the portion of the petition
including the allegations of Peterson’s prior OFP violations, the pros ecutor stopped S.P.
before she read the prior-bad-acts statement aloud for the jury.
Nor did the state refer to the statement a bout the alleged OFP violations during its
opening or closing argument. Peterson argues that the state emphasized the believability
of the petition and referenced it generally during opening and closing arguments. But the
prosecutor was not prohibited from referring to statements in the petition describing what
happened that did not allude to any prior bad acts committed by Peterson. In short, the
misconduct was not pervasive.
Next, we turn to the strength of the evidence against Peterson. Parker, 901 N.W.2d
at 926. The state presented sufficient—if not significant—evidence of Peterson’s guilt.
Although S.P.’s testimony dow nplayed Peterson’s actions, an eyewitness testified that
Peterson and S.P. were struggl ing and that Peterson punc hed S.P. in the stomach.
Additionally, the police officer who responded to S.P.’s call testified that she told him that

10
Peterson used his shoulder to push against her, causing her to fall. And the state presented
S.P.’s 911 call and portions of the officer’s body camera foot age for the jury to review.
Finally, the petition for the OFP contained several other admissible statements from S.P.
describing the incident the day after it happe ned. Peterson’s argument that the evidence
against him was not strong—and his descrip tion of the case as a “he-said/she-said
situation”—ignores this evidence. Given the strength of the evidence of Peterson’s guilt,
the single statement in the petition for the OFP did not affect Peterson’s substantial rights.5
In sum, because the misconduct was not pervasive and the state’s evidence against
Peterson was significant, the introduction of the OFP petition referencing Peterson’s
alleged prior OFP violations di d not affect Peterson’s substa ntial rights. As a result,
reversal of his conviction on this ground is not warranted.6

5 Peterson also maintains that he did not have a meaningf ul opportunity to rebut the
statement contained in the petiti on. This argument is not pe rsuasive. As the state notes,
the admission of the OFP petition was not a surprise. The pa rties discussed all of the
exhibits with the court before jury selection. And Peterson appeared to stipulate to at least
the foundation of the petition. Nothing in the record indicates that Peterson ever sought to
correct the document or have it redacted, wh ich he could have done outside the presence
of the jury. Peterson also called S.P. as a witness and could have questioned her about the
statement in the petition. Tho ugh the need for Peterson to rebut the statement appears
low—given that the state never referenced it—Peterson had an adequate opportunity to do
so.
6 In his reply brief, Peterson asserts that the district court did not instruct the jury on
prior-bad-acts evidence. But Peterson never as ked for such a jury instruction. And the
absence of a prior-bad-acts jury instruction does not indicate that the misconduct affected
Peterson’s substantial rights.

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II. Any error in admitting the ex parte OFP against Peterson did not affect
Peterson’s substantial rights.

Second, Peterson argues that the district court erred by admitting the ex parte OFP
S.P. obtained against Peters on. Peterson now maintains th at the OFP was prejudicial
because the jury could have interpreted it as a judicial finding that domestic abuse occurred
and S.P. needed protection from him. Peterson did not object to the admission of the OFP.
Accordingly, we review the admission of the OFP for plain error. 7 See State v. Vasquez,
912 N.W.2d 642, 650 (M inn. 2018). Under the plain-error standard of review, Peterson
must demonstrate plain error that affects his substantial rights. State v. Griller ,
583 N.W.2d 736, 740 (Minn. 1998). And if ea ch of those prongs are met, this court
must assess whether to “address the error to ensure fairness and the integrity of the judicial
proceedings.” Id.
Here, we need not decide whether the dist rict court plainly erred by admitting the
OFP because Peterson has not demonstrated that its admissi on affected his substantial
rights. See Vasquez, 912 N.W.2d at 650 (declining to decide whether the district court
plainly erred by admitting the challenged evid ence where the appellant failed to establish
that the alleged error impacted his substantial rights). Peterson bears the burden of showing
“that there is a reasonable likelihood that the absence of the error would have had a
significant effect on the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016)

7 Peterson asks us to apply an abuse-of-discretion standard of review. But his lack of
objection to the admission of the OFP indicates that the appropriate standard of review is
the plain-error standard. See State v. Vasquez , 912 N.W.2d 642, 649-50 (Minn. 2018)
(explaining that plain-error review applies when a defendant forfeits an issue, as is the case
when a defendant does not object to admission of evidence by the state).

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(quotation omitted). And our anal ysis under this prong “is the equivalent of [a] harmless
error analysis.” State v. Matthews , 800 N.W.2d 629, 634 (M inn. 2011). “Erroneously
introduced evidence affects the defendant’s substantial rights if it significantly influences
the verdict by going to a critical issue at the trial or is centra l to the prosecution’s case.”
Vasquez, 912 N.W.2d at 650.
The ex parte OFP was of limited persuasive value. It did not contain any findings
that domestic abuse had occurred. In pres enting the OFP to the jury, the state did not
suggest that domestic abuse had occurred simply because S.P. had an OFP. Rather, the
state referenced the OFP in passing during its opening and closing arguments. And it
primarily used the ex parte OFP to counter S.P.’s testim ony that the OFP was dismissed
right away and she did not think a judge ev en signed it. Additionally, S.P.’s testimony—
including that she did not think an OFP made sense—further diminished the persuasive
value of the OFP.
Peterson argues that the judge’s findings in the OFP could easily be misinterpreted
by the jury as a judicial finding that domestic abuse occurred. But the state did not argue
the case in such a way. An d the OFP does not contain such findings. Peterson also
contends that the state repeatedly referred to the petition during its case. But the petition
for an OFP is a different piece of evidence than the OFP itself. As such, the state’s
references to the petition are not relevant to the question of whethe r the admission of the
OFP prejudiced Peterson. Finally, Peterson points to the fact that the district court did not
give a limiting instruction regardin g the OFP, as the court did in State v. Goelz ,
743 N.W.2d 249, 257 (Minn. 2007). But Pete rson did not pr opose or request such an

13
instruction. Accordingly, we conclude th at any error in admitti ng the OFP was harmless
and did not have a significant impact on the jury’s verdict.8
Because neither of Peterson’s alleged errors affected his substantial rights, reversal
of his conviction is not required, and a new trial is not warranted.
Affirmed.

8 Peterson contends that if neither alleged erro r alone is sufficient to warrant reversal, the
cumulative effect of the two alleged errors re quires a new trial. “Cumulative error exists
when the cumulative effect of the errors and indiscretions, none of which alone might have
been enough to tip the scales , operate to the defendant’s prejudice by producing a biased
jury.” State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989) (quotation omitted). Although
we do not decide that multiple errors occurred, we are sati sfied that even if both of
Peterson’s alleged errors were, in fact, errors, they did not produce a biased jury.