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This opinion is nonprecedential except as provided by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
A21-0565

State of Minnesota,
Respondent,

vs.

Denni Allen Apfelbacher,
Appellant.

Filed April 11, 2022
Affirmed
Segal, Chief Judge

Chippewa County District Court
File No. 12-CR-21-67

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

Janice Nelson, Milan City Attorney, Matthew Haugen, Assistant City Attorney,
Montevideo, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Segal, Chief Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges his conviction for fifth -degree domestic assault, arguing that
the district court abused its discretion by admitting verbal relationship evidence and
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evidence of two prior instances of domestic abuse under Minn. Stat. § 634.20 (2020). We
affirm.
FACTS
Appellant Denni Allen Apfelbacher was charged with one count of fifth -degree
domestic assault and one count of disorderly conduct. The domestic assault charge was
based on the allegation that Apfelbacher assaulted his long -time girlfriend, J.B., by
strangulation. Before trial, respondent S tate of Minnesota moved to admit evidence of
domestic conduct under Minn. Stat. § 634.20. The proposed evidence included two prior
instances of domestic abuse against J.B. from 2002 and 2005, as well as evidence of a
pattern of derogatory comments made by Apfelbacher to J.B. “to show the strained
relationship” between them (the verbal evidence) . Th e district court granted the state’s
motion, but also noted that the court would provide a cautionary instruction to the jury
regarding the proper use of the evidence.
J.B. and Apfelbacher had been in a romantic relationship for more than 20 years and
had lived together for most of that time. As J.B. was driving home from work in the early
afternoon of February 5, 2021, Apfelbacher and J.B. spoke by phone , and Apfelbacher
asked J.B. to stop at a liquor store and pick up a bottle of alcohol for him on her way home.
J.B. testified at trial, “The minute he asked for that bottle . . . my stomach starts hurting, I
wonder how the day’s gonna go, how the night’s gonna go. I put up my defenses ri ght
away.” She explained that she becomes scared whenever Apfelbacher drinks because he
“changes as a person” and calls her derogatory names. J.B. testified that Apfelbacher
would insult her by saying things like, “I’m a c-nt. I’m a dumb b-tch. I’m stupid. My kids
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are worthless. I’m worthless. I’m in debt. That I cheat. I’m a liar. And I’m just
worthless.”
J.B. did not buy any alcohol on her way home from work, but testified that she later
went out and purchased a bottle of rum for Apfelbacher and gave it to him . Apfelbacher
began consuming the alcohol at home around 7:30 p.m. As he became intoxicated, he
criticized J.B.’s finances and children and accused her of being unfaithful. J.B. told him
to leave her alone if he was going to drink. She explained, “I do that every day. Every day
he drinks I tell him, I ask him, are you going to leave me alone?” J.B. could tell that
Apfelbacher was becoming intoxicated because he “start[ed] rambling on about stuff,” said
that she and her children were worthless, and used abusive language, such as calling her a
“b-tch.”
J.B. described how she typically responds to Apfelbacher’s behavior when he is
drinking:
Sometimes I just don’t respond at all. Sometimes I tell
him no I’m not. I try to keep things just level. I don’t try to
make it go up or make it go down. I just want to stay level
‘cause in my mind then I’m safe. But it just escalates on, he
just keeps on. And after a while, you just can’t listen to it
anymore.
She further explained that she “used to just sit there and go into la-la-land and you can hear
him. I could hear everything he’s saying, but I went into a place by myself.” More recently,
however, J.B. would leave the house whenever she could not listen any longer to
Apfelbacher’s verbal abuse.
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On the night at issue, J.B. left home around 9:30 p.m. to get away from Apfelbacher.
She first went to her daughter’s house and later went to her work. While she was gone,
Apfelbacher sent her “endless” text messages calling her and her chil dren derogatory
names. At 3:30 a.m., Apfelbacher texted J.B. saying that he was going to bed. J.B. returned
home shortly afterward, believing that it was safe to do so.
When J.B. arrived home, she tried to be quiet so that she would not wake
Apfelbacher. But, after she sat down in a recliner in the living room, Apfelbacher ran
upstairs from the basement and began to insult J.B. again. He started playing music loudly
for about two hours. Eventually, after the music stopped, Apfelbacher approached J.B .,
grabbed her by her shirt, and “twisted” the shirt against her skin. He then put his hands
around her neck and applied pressure. J.B. was holding a bottle of water at the time, and
she splashed Apfelbacher with water so that he would release her.
J.B. was initially scared to report the assault to the police because Apfelbacher often
told her she would not have a car or a place to live if she ever left. She nevertheless reported
the assault to the police late in the afternoon the same day as the incident. The police took
photographs of red marks from the assault that were still visible on her neck and arms.
At trial, after describing the alleged assault, J.B. provided testimony about the 2002
and 2005 domestic -abuse instances. During the 2002 instance, Apfelbacher “tore up the
house” after he had been drinking and physically assaulted J.B . In 2005, after the police
brought Apfelbacher home from the liquor store, he became angry at J.B. and her daughter
and pushed over a coffee table. J.B. testified that Apfelbacher had engaged in verbal abuse
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when drinking on other occasions after 2005, but she noted that the alleged assault in this
case was the first time that he had become physical in years.
The jury found Apfelbacher guilty of both fifth-degree domestic assault and
disorderly conduct . The district court entered judgment of conviction for fifth -degree
domestic assault and sentenced Apfelbacher to 90 days in jail. Apfelbacher appeals.
DECISION
Apfelbacher contends that the district co urt abused its discretion by granting the
state’s motion under Minn. Stat. § 634.20 for the admission of a type of relationship
evidence, including the verbal evidence and the two prior instances of domestic abuse from
2002 and 2005.1 The statute provides:
Evidence 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,
confusion of the issue, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Minn. Stat. § 634.20. While statutory in origin, the Minnesota Supreme Court has adopted
the provision as a rule of evidence. State v. Fraga, 864 N.W.2d 615, 627 (Minn. 2015).
“[T]he rationale for admitting relationship evidence under section 634.20 is to illuminate
the relationship between the defendant and the alleged victim and to put the alleged crime

1 Relationship evidence admitted under Minn. Stat. § 634.20 is one type of the broader
category of relationship evidence that is admissible under caselaw. State v. Bell , 719
N.W.2d 635, 638 n.4 (Minn. 2006).
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in the context of that relationship.” State v. Valentine, 787 N.W.2d 630, 637 (Minn. App.
2010), rev. denied (Minn. Nov. 16, 2010).
We review the district court’s decision to admit evidence under Minn. Stat. § 634.20
for an abuse of discretion. State v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008), rev.
denied (Minn. Oct. 29, 2008). The appellant has the burden to establish that the district
court abused its discretion and that he was prejudiced as a result. Id.
I.
We address first Apfelbacher’s challenge to the admission of the verbal evidence.
Apfelbacher contends that speech -only evidence does not come within the scope of
evidence admissible under Minn. Stat. § 634.20 and that the district court therefore erred
by admitting that evidence.2 He argues that , under the plain meaning of the phrase
“domestic conduct” in Minn. Stat. § 634.20, the evidence must include an act or action and
not just speech alone.
Challenges to the admission of evidence as contrary to the plain meaning of a statute
governing the admissibility of evidence involve a question of statutory interpretation,
which we review de novo. State v. Barnslater, 786 N.W.2d 646, 650 (Minn. App. 2010),
rev. denied (Minn. Oct. 27, 2010). The objective of statutory interpretation is to “effectuate
the intent of the legislature.” State v. Riggs, 865 N.W.2d 679, 682 (Minn. 2015) (quotation
omitted).

2 To clarify, Apfelbacher is not challenging th e admission of evidence concerning the
comments he made to J.B. the evening before and morning of the alleged strangulation; he
is only challenging the admission of evidence that he used abusive language toward her in
the past.
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Minn. Stat. § 634.20 provides a list of the types of evidence included as domestic -
conduct evidence:
“Domestic conduct” includes, but is not limited to, evidence of
domestic abuse, violation of an order for protection under
section 518B.01; violation of a harassment restraining order
under section 609.748; violation of a domestic abuse no
contact order under section 629.75; or violation of section
609.749 [harassment and stalking] or 609.79, subdivision 1
[obscene or harassing telephone calls].
The statute identifies a variety of violations of criminal laws, but also specifies that it
“includes, but is not limited to” such violations. Thus, even though the verbal evidence in
this case did not involve a violation of a criminal law, it may nevertheless be admissible as
evidence of domestic conduct. See State v. McCurry, 770 N.W.2d 553, 560 (Minn. App.
2009) (stating that “the ‘not limited to’ language is more likely meant to encompass general
testimony about the relationship, including conduct that does not rise to the level of the
crimes listed in the definition of ‘similar conduct’”), rev. denied (Minn. Oct. 28, 2009); see
also State v. Andersen , 900 N.W.2d 438, 441 -42 (Minn. App. 2017) (affirming the
admission of not only past physic al abuse, but also verbal abuse, because it “tend[ed] to
illuminate the volatility of the relationship and put the [relevant] incident in the context of
the couple’s interaction with each other”).
It is also significant that among the listed examples of domestic conduct in the
statute are several types of violations of provisions that may involve only speech, including
the statutes that provide for harassment restraining orders (Minn. Stat. § 609.748 (2020))
and prohibit obscene and harassing calls or texts (Minn. Stat. §§ 609.79, .749, subd. 2(c)(4),
(5) (2020)). Apfelbacher argues that, to the extent the listed examples in the statute relate
8
to speech-only offenses, they involve transactional speech —speech that “crosses the line
into conduct, such a s when used to violate a protective order, threaten violence, or make
an obscene phone call.” This argument, however, is relevant only insofar as needed for
proof of a violation of the applicable criminal statute. As stated above, Minn. Stat. § 634.20
is a rule of evidence, not a criminal statute, and the “includes, but is not limited to” language
has been interpreted as allowing evidence of domestic conduct that does not constitute a
crime in and of itself. We therefore are not persuaded that , to be admissible as domestic-
conduct evidence , the speech must be such that it would on its own violate a criminal
statute.
We also reject Apfelbacher’s arguments related to the dictionary definition of the
word “conduct.” First, the dictionary definitions of “conduct” do not necessarily limit
conduct to acts or action. One dictionary defines conduct as “[p]ersonal behavior, whether
by action or inaction, verbal or nonverbal.” Black’s Law Dictionary 369 (11th ed. 2019)
(emphasis added). Second, the word “conduct” does not appear in isolation in Minn. Stat.
§ 634.20. Rather, the statute refers to the phrase “domestic conduct.” And, as noted above,
the statute’s definition of domestic conduct includes evidence of behavior that may consist
of speech alone.
Consequently, we discern no abuse of discretion by the district court in admitting
the verbal evidence in this case.

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II.
We turn next to Apfelbacher’s argument that the district court erred by admitting
evidence concerning the 2002 and 2 005 instances of domestic abuse because they were
unfairly prejudicial. Under Minn. Stat. § 634.20, evidence of domestic conduct is not
admissible when the probative value of the evidence “is substantially outweighed by the
danger of unfair prejudice. ” “When balancing the probative value against the potential
prejudice, unfair prejudice is not merely damaging evidence, even severely damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving
one party an unfair advantage.” Bell, 719 N.W.2d at 641 (quotation omitted).
Generally, previous instances of domestic abuse are probative to demonstrate the
nature of the couple’s relationship. “Domestic abuse is unique in that it typically occurs in
the privacy of the home, it frequently involves a pattern of activity that may escalate over
time, and it is often underreported.” State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).
Additionally, “[d]omestic abusers often exert control over their victims, which undermines
the ability of the criminal justice system to prosecute cases effectively.” Id.
At trial, J.B. provided the following description of Apfelbacher’s conduct during
the 2002 and 2005 instances of domestic abuse. In 2002, Apfelbacher “tore up the house”
after he had been drinking. He threw seedlings for the garden all over the house, threw
TVs out the window, destroyed the office, and threw a plate against the wall. He also “had
[J.B.] on the floor several times,” and as a result, J.B. had “bruises everywhere,” including
on her face. During the 2005 instance, the police brought Apfelbacher home from a liquor
store. Once the police left, Apfelbacher “started pointin [g] and getting in [J.B.’ s] face.”
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J.B.’s daughter, who was present at the home, told him to stop. Apfelbacher then pushed
the coffee table, and J.B.’s daughter called the police.
These prior instances of domestic abuse provided some context for the relationship
between Apfelbacher and J.B. but had low probative value because they occurred so long
ago. The two instances took place 16 and 19 years before the alleged domestic assault in
this case, near the beginning of a 20 -year relationship. Unlike J.B.’s testimony regarding
the verbal evidence—which helped explain why she reacted in the manner that she did on
the night of the alleged assault —the testimony regarding the 2002 and 2005 instances
provided little additional context.
Nevertheless, we conclude that the evidence d id not result in unfair prejudice to
Apfelbacher. With regard to the 2005 instance, J.B.’s testimony was brief, and the conduct
she described was not particularly serious, such that the risk of unfair prejudice was low.
The conduct for the 2002 instance was more serious and more likely to create the
impression that Apfelbacher was a violent person. Other factors, however, reduced the risk
of unfair prejudice. First, i mmediately after J.B. testified about the two instances, the
district court read a cautionary instruction that the evidence was “being offered for the
limited purpose of demonstrating the nature and extent of the relationship” between
Apfelbacher and J.B. And the district court reread that instruction during the final jury
instructions. The cautionary instruction reduced the likelihood that the jury would use the
evidence of the past instances of domestic abuse for an improper purpose. See State v.
Benton, 858 N.W.2d 535, 542 (Minn. 2015) (stating that the district co urt’s use of
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cautionary instructions regarding the proper use of relationship evidence under Minn. Stat.
§ 634.20 lessened the probability that the jury would give undue weight to that evidence).
Second, J.B. testified that the alleged assault in this case was the first time in years
in which Apfelbacher had physically assaulted her. That testimony decreased the
possibility that the jury would infer that Apfelbacher had a propensity for violence based
on his previous conduct. In sum, the district court did not abuse its discretion by
determining that the risk of unfair prejudice did not substantially outweigh the probative
value of the evidence.
Moreover, even if the district court abused its discretion by admitting evidence of
Apfelbacher’s domestic abuse from 2002 and 2005, Apfelbacher must also show that he
was prejudiced by that evidence. See Lindsey, 755 N.W.2d at 755. Erroneously admitted
evidence is prejudicial if “the error substantially influenced the jury ’s decision.” State v.
Loving, 775 N.W.2d 872, 879 (Minn. 2009). One consideration in identifying the existence
of prejudice is whether the prosecutor dwelled on the evidence during closing argument.
Benton, 858 N.W.2d at 541. Here, the prosecutor did not mention the domestic abuse from
2002 or 2005 during the closing argument. In addition, J.B. did not testify extensively
about th e 2002 and 2005 instances. She described the instances only once during the
middle of her testimony, and her descriptions were relatively brief. A nd as mentioned
above, the district court twice read a cautionary instruction regarding the proper use of that
evidence, once immediately after the testimony and then again during the final jury
instructions.
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We t herefore conclude that the admission of evidence of the 2002 and 2005
instances did not substantially influence the jury’s decision and we reject Apfelbacher’s
argument that he is entitled to a reversal of his conviction on that basis.
Affirmed.