State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0450

State of Minnesota,
Respondent,

vs.

Daniel Martinez Damian,
Appellant.

Filed March 1, 2021
Affirmed
Ross, Judge

Meeker County District Court
File No. 47-CR-18-11

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorne y General, St. Paul,
Minnesota, and

Brandi Schiefelbein, Meeker County Attorney, Litchfield Minnesota (for respondent)

Christian I. Duruji, Anderson Larson Saunders Klaassen Dahlager & Leitch, P.L.L.P.,
Willmar, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Florey, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A jury found Daniel Damian guilty of inflicting great bodily harm on his
five-month-old son after the evidence established that the injuries occurred while Damian
was home alone with his two infant children and medical evidence showed that the injuries
resulted from nonaccidental, abusive physical trauma. Damian appeals from his conviction,
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arguing that the district court improperly admitted irrelevant evidence of his alcohol
consumption and prior domestic abuse and that the evidence is insufficient to convict him.
Because the district court acted within its discretion by admitting the challenged evidence
and a reasonable jury could interpret the evidence to find Damian guilty beyond a
reasonable doubt, we affirm.
FACTS
Daniel Damian took his five-month-old son to the emergency room in Novembe r
2017. We will call the child “ Boy” to maintain his privacy in this opinion. Doctors
discovered that Boy’s brain was bleeding and performed emergency neurosurgery,
temporarily removing his skull to stem his bleeding and relieve pressure on his brain. Boy
had a su bdural hematoma (a brain bleed), a cerebral edema (brain swelling), and a
right-side retinal hemorrhage (bleeding in his right eye). The child remained hospitalized
seven weeks after surgery and is significantly developmentally delayed.
Boy lived with Damian, Boy’s mother, and Boy’s two older siblings. The morning
Damian took Boy to the hospital, Boy’s mother left for work with her five -year-old son
while Damian stayed home with Boy and his nearly two-year-old sibling. According to
Damian’s statement to police, Boy became fussy, prompting Damian to place him on the
living-room floor so he could roll around . Boy started to cry and became “hysterical ,”
Damian said, so Damian went to the kitchen to prepare food for him. Damian said that he
returned and saw Boy arch his back, roll his eyes up, clutch his fists to his chest, and stop
breathing. Damian said that he thought Boy was having a seizure, so he shook him gently
and performed CPR. This, he says, caused Boy to begin breathing again.
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Doctors reported the incident to police. The state charged Damian with assault
causing great bodily harm on Boy. See Minn. Stat. § 609.221, subd. 1 (2016).
Before trial, the prosecutor indicated that the state intended to offer evidence of a
2013 domestic -abuse incident in which Damian beat his former girlfriend. Damian
objected, arguing that the former assault was too dissimilar from the alleged assault on
Boy. The district court allowed the evidence of the incident, reasoning that it “illuminate[s]
the history of the relationship between the parties in this case to establish how [Damian]
treats his family members.” The district court explained that the incident “has strength to
establish relevancy on who harmed the injured child in this ca se in this home.” But th e
district court prohibited the prosecutor from introducing evidence of the resulting criminal
charge, arrest, or domestic-abuse conviction.
The prosecutor also intended to offer evidence of Damian’s alcohol use. Damian
had told a police investigator that he manages his stress by drinking alcohol, sometimes to
the point of intoxication. He said that he had consumed two or three beers between the time
he left work the day before the incident and the time of the incident. D amian moved the
court to prevent the prosecutor from offering any evidence about his alcohol use, including
photographs showing liquor bottles in his home. The district court denied his motion,
determining that the evidence had sufficient probative value.
The trial focused heavily on medical evidence , almost all of which pointed to
Damian’s guilt. Dr. Kyle Halvorson, the pediatric neurosurgeon who removed Boy’s skull
to relieve brain pressure, examined computed tomography (CT) and magnetic resonance
imaging (MRI) scans, and opined that Boy’s injuries resulted from nonaccidental trauma.
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Dr. Halvorson also told the jury that Boy’s subdural hematoma could not have been caused
by a birth-related cephalohematoma (a brain bleed occupying a layer above the brain
separate from a subdural hematoma), a vascular malformation (tangled and bleeding-prone
blood vessels), receiving CPR, or a prior fall. He did acknowledge that birth trauma could
cause subdural hematomas generally. He said that Boy’s retinal hemorrhaging supports the
conclusions that Boy suffered abusive trauma and that he h ad no vascular malformation.
Dr. Halvorson also testified that a toddler could not have inflicted the necessary force to
cause Boy’s injuries. And when asked why he did n ot perform a magnetic res onance
angiograph scan or a magnetic resonance venography (MRA/MRV), Dr. Halvorson stated
that neither were necessary to properly treat or diagnose Boy because the MRI and CT
scans were “fairly conclusive.”
Dr. Sachin Patel, the pediatric neuroradiologist involved in imaging and interpreting
Boy’s postoperative CT and MRI scans, opined that Boy’s injuries were consistent with
abusive head trauma that could have been caused by an adult shaking the child, but not by
a birth-induced cephalohematoma, a vascular malformation, a seizure, or a fall. Dr. Patel
testified that a toddler could not have shaken Boy with enough force to cause Boy’s injuries
and that Boy had no vascular malformation. Dr. Patel agreed that an MRA/MRV test would
have facilitated his diagnosis, but he maintained that those tests were unnecessary.
Dr. Janell Haiwick, Boy ’s family physician who delivered and monitored him,
opined that Boy’s birth-induced cephalohematoma was not concerning, “would not be a
reason . . . to affect [him] neurologically,” and would not hav e caused his subdural
hematoma.
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Dr. Mark Hudson, a child-abuse pediatrician, opined that abusive head trauma, like
shaking or slamm ing, caused Boy ’s injuries. Dr. Hudson addressed other hypothetical
causes of Boy’s injuries and ruled out a birth -induced cephalohematoma, a fall, and
vascular malformation. Also Dr. Hudson said that a toddler could not have shaken Boy
with enough force to cause his injuries.
Dr. Mark Shuman is a forensic pathologist whose testimony countered the other
medical evidence. Dr. Shuman told the jury that Boy’s symptoms did not reliably indicate
the cause of his head trauma and that his symptoms were more consistent with a vascular
malformation. Dr. Shuman opined that the other experts c ould not have determine d the
presence of a vascular malformation without the results of an MRA/MRV test.
Damian testified also. He denied causing Boy’s injuries and denied consuming any
alcohol the morning of the incident. He admitted that he drank alcohol the previous night.
The jury found Damian guilty. The district court, considering the aggravating
factors of Boy’s vulnerable age and Damian’s position of authority, among others, departed
upward from the sentenc ing guidelines and sentenced Dami an to 206 months’
imprisonment.
Damian appeals.
DECISION
Damian advances two arguments challenging his conviction for first-degree assault.
He argues first that we must order a new trial because the district court improperly admitted
evidence about his alcohol consumption and the 2013 domestic-abuse incident. He argues
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second that the state submitted insufficient evidence to support the conviction. Neither
argument prevails.
I
We first address Damian’s argument that the district court should not have admitted
the alcohol and prior- abuse evidence . We will not reverse a conviction based on an
evidentiary challenge unless the decision to admit evidence constitutes an abuse of
discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45–46 (Minn. 1997). To
succeed under this standard, Damian must show that the district court acted outside its
discretion and that the evidence substantially influenced the jury’s decision. State v.
Sanders, 775 N.W.2d 883, 887 (Minn. 2009). Damian does not meet this sta ndard as to
either the alcohol or the abuse evidence.
Evidence of Alcohol Consumption

Damian bases his evidentiary argument on appeal entirely on his challenge to a
factual finding that he failed to raise in the district court. When the district court denied
Damian’s pretrial motion in limine to exclude the alcohol -consumption evidence, the
district court did so expressly anticipat ing that the police investigator would testify that
Damian had informed him that he had consumed two to three beers the morning of the
incident. Damian did not contest the district court’s understanding, and he did not renew
his objection to the evidence during trial even after the trial testimony indicated that
Damian had told a police investigator that he had consumed two to three beers only in the
period following his getting off work the day before, not the morning before, the incident.
Damian argues on appeal that the police investigator had previously mischaracterized his
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admission to drinking. But the error he has challenged on appeal is the district court’s
overruling of his pretrial motion in limine . We will not look for error on an issue not
presented to or decided by the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996). And we are in no position to review the district court’s decision when the alleged
error rests on evidence developed only after the decision . Having not contested the basis
for the district court’s decision contemporaneously or renewed his objection after the trial
evidence eventually lent support for the previously overruled objection, Damian forfeited
the opportunity to raise the challenge, except potentially to contend that the district court’s
failure to sua sponte revive the objection constitutes plain error. He makes no plain -error
argument. We therefore address only whether the district cou rt acted within its discretion
at the time it decided the motion. We conclude that it did.
When the district court decided Damian’s motion in limine, it was operating under
the tacitly conceded fact that Damian had been drinking the morning of the incident. Based
on that fact, Damian’s relevancy-based challenge fails. Evidence is generally relevant if it
has “any tende ncy to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable.” Minn. R. Evid. 401. Evidence
of alcohol consumption is relevant if it may have impacted a witness’s ability to perceive
or recall circumstances. State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977). Evidence
that Damian had been drinking before Boy was injured is the sort of evidence from which
a jury might reasonably draw inferences about Damian’s judgment, his conduct, or his
credibility about the details of the incident. The d istrict court did not abuse its discretion
by overruling the motion in limine under the circumstances presented to the district court.
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Evidence of Prior Domestic Abuse
Damian rests his relevancy challenge to the domestic-abuse evidence primarily on
the notion that the prior assault is dissimilar in nature to the assault alleged here. The notion
is not persuasive. The admission of prior domestic -abuse evidence does not require
similarity. Instead, “[e]vidence of domestic conduct by the 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.” Minn. Stat.
§ 634.20 (2018). The previous version of the statute included the word “similar,” but t he
legislature removed the word in 2013, broadening the admissibility of prior domestic-abuse
evidence. See 2013 Minn. Laws ch. 47, § 7, at 5 (amending Minn. Stat. § 634.20 (2012)).
“Domestic conduct includes . . . evidence of domestic abuse,” Minnesota Statutes section
634.20, and “[f]amily or household members” include “persons involved in a significant
romantic or sexual relationship,” Minnesota Statutes section 518B.01, subdivision 2(b)(7)
(2016). Evidence that Damian physically assaulted his ex-girlfriend is therefore admissible
unless the danger of unfair prejudice substantially outweighs its probative value.
The district court concluded that the danger of unfair prejudice from the prior-abuse
evidence did not substantially outweigh its probative value. The conclusion is sound. The
probative value of the ev idence that Damian beat his former girlfriend is apparent on its
face. Damian admitted that his out -of-control violence sent his girlfriend to the hospital,
saying, “I lost control, like, I didn’t know what happened, and I just lost control.” This is
consistent with the state’s trial theory, which was that Damian lost control and responded
violently while he was caring for Boy , who, according to Damian, had been crying
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“hysterical[ly]” for the last couple of days. We suppose that the evidence prejudiced
Damian, but when we balance the probative value against any potential prejudice, we will
consider only unfair prejudice. See State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006). This
is the sort of prejudice that “ is not merely damaging evidence, even severely damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving
one party an unfair adva ntage.” Id. (quotation omitted). And we have held that a dmitting
evidence of prior domestic abuse against a different household m ember does not unfairly
prejudice a defendant if the district court limits the testimony and instructs the jury on the
proper use and consideration of relationship evidence. State v. Patzold, 917 N.W.2d 798,
806 (Minn. App. 2018), review denied (Minn. Nov. 27, 2018). The district court here did
both. We see no abuse of discretion in the district court’s admitting the 2013
domestic-abuse evidence.
II
Damian’s insufficient-evidence argument fails. We review de novo whether the
state presented sufficient evidence, which is evidence that would allow the jury to find the
defendant guilty beyond a reasonable doubt. See State v. Griffin , 887 N.W.2d 257, 263
(Minn. 2016). Where, as here, a conviction rests entirely on circumstantial evidence, we
apply a heightened, two -step standard of review. Loving v. State , 891 N.W.2d 638, 643
(Minn. 2017). We first determine the circumstances proved, construing the evidence in the
light most favorable to the verdict and assuming that the fact -finder rejected conflicting
evidence. Griffin, 887 N.W.2d at 263 –64. And then, “ giving no deference to the
fact-finder’s choice between reasonable inferences,” we independently determine whether
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these circumstances proved are consistent with guilt and inconsistent with any reasonable
alternative hypothesis. Griffin, 887 N.W.2d at 264. We conclude that the circumstances
proved here allow for the sole reasonable conclu sion that Damian inflicted great bodily
harm on Boy.
To convict Damian of assault causing great bodily harm, the state had to prove that
he intentionally caused “a high probability of death . . . serious permanent disfigurement,
or . . . a permanent or protracted loss or impairment of the function of any bodily member
or organ.” Minn. Stat. §§ 609.02, subds. 8, 10(2), .221, subd. 1 (2016). Damian contends
only that there is a rational hypothesis inconsistent with guilt as to the element of cause.
He maintains that the circumstances proved would allow a reasonable jury to find that
Boy’s injuries resulted from a vascular malformation or other undiagnosed issues instead
of nonaccidental physical trauma. The argument fails.
Damian’s argument misapplies the standard of review because it would require us
to ignore the actual circumstances proved at trial. The trial evidence and verdict inform us
that the jury rejected the very circumstance Damian proffers, which is that trauma did not
cause Boy’s injuries. “[W]hen a jury is presented with conflicting medical testimony about
the nature of injuries and their possible causes, we assume the jury believed the expert
testimony that is most consistent with its verdict.” State v. Stewart, 923 N.W.2d 668, 674
(Minn. App. 2019), review denied (Minn. Apr. 16, 2019); see also State v. Rhodes ,
657 N.W.2d 823, 841 (Minn. 2003) (acknowledging contrasting medical-expert testimony
and noting that the jury “apparently disregarded” medical testimony inconsistent with the
verdict). The expert witnesses all opined as to causation, with only one dissenting from the
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others. The jury necessarily rejected the possibility that vascular malformation or any
undiagnosed medical condition caused the injuries. The other circumstances proved
include in relevant part, the following. Boy was at home with his two-year-old sibling and
Damian, who was the only person present capable of causing Boy’s injuries. Damian shook
Boy. Damian took Boy to the emergency room. Boy had a subdural hematoma, a cerebral
edema, and retinal hemorrhaging, all symptoms indicating abusive trauma. Boy’s injuries
were not caused by accidental trauma. They did not result from a fall or from receiving
CPR. Boy had no medical history of conditions capable of causing his injuries.
These circumstances proved support the reasonable inference that Dami an
intentionally inflicted great bodily harm upon Boy. And they do not allow for the innocent
hypothesis that Damian proposes. We hold that the evidence sufficiently supports the
verdict.
Affirmed.