In the Matter of:

This opinion is nonprecedential except as provided by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
A20-0992

In the Matter of:

Marna Susan Sutphen, petitioner,
Appellant,

vs.

Jeffrey Carlyle Sutphen,
Respondent.

Filed April 12, 2021
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-DA-FA-20-2265

Elisha C. Biel, Bruce Jones, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota
(for appellant)

Jeffrey C. Sutphen, Deephaven, Minnesota (pro se respondent)

Considered and decided by Worke, Presiding Judge; Reyes, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After leaving Colorado to return home to Minnesota, appellant-daughter Marna
Sutphen temporarily m oved in with respondent-father Jeffrey Sutphen. One night after
having dinner at daughter’s sister’s house—wh ere daughter consumed several alcoholic

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drinks—father and daught er got into an argument. Daug hter had received a phone call
from her ex-boyfriend in Colorado, but because father did not have long-distance calling
available on his phone, fath er hung up before daughter c ould answer. A physical
altercation ensued and both parties suffered minor injuries.
Daughter then petitioned for an order for protection (OFP) against her father, which
the district court denied. Daughter now argues that the district court abused its discretion
in denying her petition for an OF P and erred in its application of the relevant law. She
further alleges that the district court erred in its evidentiary rulings. We affirm.
FACTS
Appellant-daughter Marna Sutphen needed a place to stay after returning to
Minnesota from Colorado. 1 She moved in with responde nt-father Jeffrey Sutphen, who
offered to let her live with hi m until she could find her own accommodations. As part of
their arrangement, daughter agreed to abid e by father’s rules, which included refraining
from using father’s landline.
A few months after daughter moved in, fa ther and daughter went over to daughter’s
sister’s house for dinner. Before dinner, daughter had consumed a beer with a friend and
left sister a voice message in which she slurred her words and was difficult to understand.
While at sister’s home, daughter had four more alcoholic drinks. When sister asked
daughter to stop drinking, daughter became angry and threat ened sister. Both sister and
father believed daughter was drunk during dinner.

1 The following is a summary of the district court’s findings of fact which are not disputed
on appeal.

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Upon returning home from dinner, father received a call on his landline. Father
believed it was daughter’s ex-boyfriend calling from Colorado. Because father did not
have long-distance service, father hung up the phone befo re daughter could answer.
Daughter became upset, but fa ther reminded her that she was not allowed to use his
landline. Father and daughter began to struggle over the phone, though th e record is
unclear as to who the predominant aggressor wa s. At some point, the police were called.
When officers arrived, they separated th e two for questioning and noted that both had
visible, but minor injuries. While talking with officers, father admitted to striking daughter,
but only in self-defense because she was atte mpting to kick him in the groin. As for
daughter, both officers confirmed that she was “highly intoxicated” during their inquiry.
A few weeks later, daughter petitioned fo r an OFP against father, alleging that
during their altercation he struck her in the face, shoved her against a wall, and prevented
her from calling the police. The district cour t granted an ex parte OFP and at father’s
request held an evidentiary hearing on the matter.
During the hearing, father sought to introduce testimony from sister regarding
daughter’s level of intoxication at dinner. Da ughter objected, arguing that because sister
was not present during the altercation, her testimony was not relevant to whether domestic
abuse had occurred. But the district court determined that sister’s testimony was relevant
for purposes of impeaching daughter’s credibility and allowed sister to testify. Later, when
daughter attempted to elicit testimony from the officers about statements she made to police
that night regarding what happened, father objected on hearsay grounds. The district court
sustained the objection and limited the scope of the officers’ testimony accordingly.

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Based on the testimony presented at the hearing, the district court found that
although “It is clear there was an altercatio n between the parties a nd that both parties
caused injury to the other,” it was not clear “which party [was] the predominant aggressor.”
And the district court determined that ther e was “insufficient ev idence to show that
[daughter] is in reasonable fear of harm from [fa ther], that the injuri es she suffered were
inflicted for reasons other than in self-defense, and that she is in need of a protective order.”
The district court dismissed daughter’s petition.
Daughter appeals.
DECISION
Daughter challenges the district court’s di smissal of her petition for an OFP on three
grounds. First, she argues that the district court abused its discretion by denying her
petition because father’s actions qualify as domestic abuse which, she asserts, should have
prompted the district court to grant her petition. Second, daughter claims that the district
court erred by applying the inco rrect legal standard to her petition. Finally, daughter
alleges that the district court erroneously allowed sister to testify and excluded daughter’s
statements to police.
I. The district court did not abuse its dis cretion by dismissing daughter’s petition
for an order for protection.
Daughter first challenges the district c ourt’s dismissal of her petition for an OFP by
arguing that she should have been granted some form of relief because father’s actions met
the definition of domestic abuse under the Minnesota Domestic Abuse Act. Minn.
Stat. § 518B.01 (2020). While daughter concedes that the district court is not required to

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grant relief under the domestic abuse act, she a sserts that it is “antithetical” to its purpose
to refuse her any relief in these circumstances. The only discretion the district court has
under the domestic abuse act, daughter argues, is in determining the type of relief granted,
not whether relief should be granted at all.
We review a district court’s decision to grant relief under the domestic abuse act for
an abuse of discretion. McIntosh v. McIntosh , 740 N.W.2d 1, 9 (Minn. App. 2007).
Domestic abuse is defined as ph ysical harm, injury, or assault, or the infliction of fear of
such harm by a family member. Minn. Stat. § 518B.01, subd. 2(a)-(b) (2020). If the district
court finds that domestic abuse has occurred it “ may provide relief” by granting an OFP.
Id., subd. 6(a) (2020) (emphasis added).
Both the language of the domestic abuse act and relevant caselaw support the district
court’s conclusion that the decision to grant an OFP is discretionary, not mandatory. The
domestic abuse act explicitly provides that “Upon notic e and hearing, the court may
provide relief.” Id. (emphasis added). “May” is permissive, not mandatory. Minn.
Stat. § 645.44, subd. 15 (2020). Furthermore, courts have repeated ly recognized that
“Whether to grant relief under the Domestic Abuse Act (Minn. Stat. ch. 518B) is
discretionary with the district court.” McIntosh, 740 N.W.2d at 9 (emphasis added). See
Thompson ex rel. Minor Child v. Schrimsher , 906 N.W.2d 495, 500 (Minn. 2018) (citing
the permissive definition of “may” and stating that “Under the [domestic abuse act], OFPs
are never granted automatically”); see also Mechtel v. Mechtel , 528 N.W.2d 916, 920
(Minn. App. 1995) (“The Domestic Abuse Act provides that the granting of relief is within
the district court’s discretion.”).

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While we are mindful of the consequences of granting no relief in instances of
domestic abuse, there is no indication that the district court’s decision on this matter was
based on an erroneous view of the law, or against logic or the facts in this record.
Thompson, 906 N.W.2d at 500; Mechtel, 528 N.W.2d at 920. In fa ct, despite daughter’s
arguments to the contrary, the district cour t did not find that domestic abuse occurred.
Although there was an altercati on, both parties caused minor injury to the other, father
testified that he struck daughter in self-defense, and the district court found that daughter’s
credibility was “seriously cha llenged” given her level of intoxication that night.
Regardless, our analysis of the district cour t’s discretion in granting an OFP remains the
same. The district court has broad discreti on to deny an OFP and acted within that
discretion in this instance. McIntosh, 740 N.W.2d at 9.
II. The district court did not err in its application of the do mestic abuse act by
considering the lack of a predominan t aggressor, whet her daughter had a
reasonable fear of harm, and father’s claim of self-defense.
Daughter next asserts that the district court erroneously interpreted the domestic
abuse act by requiring daughter to prove that fa ther was the aggressor in the altercation,
daughter was afraid of being harmed by fathe r, and father’s striki ng of daughter was not
done in self-defense. We review a district court’s statutory interpretation de novo.
Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016).
The domestic abuse act requires that the petitioner for an OFP prove by a
preponderance of the evidence that he or she has been phy sically harmed, injured, or
assaulted, or is in fear of such harms bei ng inflicted upon them by a family or household
member. Minn. Stat. § 5 18B.01, subd. 2(a)-(b); Oberg v. Bradley , 868 N.W.2d 62, 64

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(Minn. App. 2015). To determine whether, using this definition, domestic abuse occurred,
we have held that the district court may c onsider “the totality of the circumstances.”
Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009).
Here, the district court considered the two primary elements of domestic abuse as
identified by the domestic abuse act: whether father and daughter are related by blood, and
whether father harmed, injured, or assaulted daughter or daughter feared that such harm
would occur. But the district court also looked beyond those factors to consider daughter’s
level of intoxication, father’s claim of sel f-defense, and the lack of clarity over who was
the predominant aggressor. Because these factors were part of the totality of the
circumstances, the district court could prop erly consider those facts when making its
decision. Id. We conclude that the district cour t did not erroneously apply the domestic
abuse act when it denied daughter’s petition for an OFP.
III. The district court did not err in ad mitting sister’s testimony and excluding
daughter’s statements to police.
Finally, daughter assigns error to the dist rict court’s evidentiary rulings allowing
sister to testify about daughter’s level of intoxication and excluding daughter’s statements
to police. Daughter argues that sister’s testimony was not relevant to the ultimate issue of
whether domestic abuse occurred and that he r excluded statements to police were not
hearsay. These evidentiary errors, daughter asserts, were prejudicial to her claim.
The admissibility of eviden ce is within the district court’s discretion.
Aljubailah ex rel. A.M.J. v. James , 903 N.W.2d 638, 644 (Minn. 2017). We will not
disturb that decision unless it was based on an erroneous view of the law or was an abuse

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of the district court’s discretion. Id. The complaining part y bears the burden of
demonstrating that prejudice occurred becaus e of the erroneous evidentiary ruling.
Olson ex rel. A.C.O. v. Olson, 892 N.W.2d 837, 841 (Minn. App. 2017).
Relevance of Sister’s Testimony
As a general rule, all relevant evidence is admissible. Minn. R. Evid. 402. Evidence
is relevant if it has any tendency to make a fact of consequence more or less probable than
it would be without that evidence. Minn. R. Evid. 401. The decision to admit or exclude
evidence lies within the district court’s di scretion, which this court will not overturn
without some indication that the decision was based on an erroneous view of the law or an
abuse of the district court’s discretion. Aljubailah, 903 N.W.2d at 644.
At the hearing, father sought to introdu ce sister’s testimony about daughter’s level
of intoxication to im peach daughter’s credibility. B ecause sister’s testimony only
concerned daughter’s level of intoxication while she was at dinner, sister’s testimony is not
relevant to the ultimate issue of whether or not domestic abuse occurred. But because
“witnesses may testify in the form of a ge neralized opinion about common matters they
observed such as . . . intoxication . . . if he lpful,” sister’s testimony is still admissible.
Minn. R. Evid. 701, 20 16 comm. cmt. As the district court noted, sister’s perception of
daughter’s level of intoxication was helpfu l in determining whether daughter could
accurately recall the events of that night. Thus, sister’s testimony was relevant to impeach

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daughter’s credibility and the district court did not abuse its disc retion in admitting the
testimony.2
Hearsay Ruling
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Minn. R. Evid. 801(c). Generally, hearsay is inadmissible. Minn. R. Evid. 802. But where,
as here, the evidence being offe red is a prior statement by a w itness, the statement is not
considered hearsay and may be admitted. Minn. R. Evid. 8 01(d)(1)(B). But even if we
assume—without deciding—–that exclusion of the statement was error, we turn to review
whether the exclusion of daughter’s statements resulted in prejudice. Olson, 892 N.W.2d
at 841. An evidentiary error is prejudicial if it might have influenced the fact-finder and
changed the result of the proceeding. Id. at 842.
Daughter argues that her statements to the police could have changed the outcome
of the proceedings because her statements included her “perception of events immediately
after they occurred.” She claims that the statements would have corroborated her testimony
at the hearing and could have rehabilitated her credibility. We disagree. Ample evidence
supported the district court’s decision, in cluding daughter’s c ontradictory testimony,
statements by father, sister, and the police officers that daughter was “highly intoxicated”
on the night of the altercation, and the voice message daughter left for sister. Furthermore,
we note that daughter’s statemen t to police was made by daughter while she was “highly

2 Because we conclude that the district court did not abuse its discretion, we need not reach
daughter’s argument that the district court’s decision resulted in prejudice.

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intoxicated.” Accordingly, even if the di strict court erred in excluding daughter’s
statements to police, she was not prejudiced.
In summary, we recognize th e challenges this case presents. An altercation between
father and daughter occurred, and both parties suffered injuries as a result. But we conclude
that the district court acted well within its discretion in denying the OFP and discern no
error in its consideration of the totality of the circumstances in reaching its decision, or in
the admission of sister’s testimony for im peachment purposes and the exclusion of
daughter’s statements to police.
Affirmed.