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This opinion is nonprecedential except as provided by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
A22-1646

State of Minnesota,
Respondent,

vs.

David Eugene Richardson Jr.,
Appellant.

Filed November 6, 2023
Reversed and remanded
Connolly, Judge

Redwood County District Court
File No. 64-CR-21-551

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

Jenna M. Peterson, Redwood County Attorney, Travis J. Smith, William C. Lundy, Special
Assistant County Attorneys, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presi ding Judge; Bjorkman, Judge; and
Cleary, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant argues that the cumulative effect of plain errors in the admission of
evidence was to prejudice the jury against him, depriving him of a fair trial. Because we
agree that the cumulative effect of the errors was unduly prejudicial and affected
appellant’s substantial rights, we reverse and remand for a new trial.
FACTS
A jury found appellant David Richardson guilty of felony violation of a domestic
abuse no-contact order (DANCO) and of third-degree witness tampering, and he was
sentenced to 2 8 months in prison. Three items admitted into evidence at his trial are at
issue here.
The first item is the affidavits of service of the DANCO that appellant was charged
with violating, which prohibited his contact with the complainant , and of a subpoena
indicating that the complainant was a witness in a nother criminal case in which appellant
was the defendant. Neither the person who served the DANCO nor the person who served
the subpoena testified. The parties agree that this violated the confrontation clause and was
plain error, although they disagree as to whether it violated appellant’s substantial rights
and whether this court should address the error to ensure the fairness and integrity of our
judicial proceedings.
The second item was an unredacted complaint and a warrant of commitment. The
2020 unredacted complaint charged appellant with two counts of felony domestic assault
and stat ed that the charges were felonies and the maximum sentence was five years ’
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imprisonment and a $10,000 fine ; the warrant of co mmitment showed that appellant was
convicted of one count , the other count was dismissed , and appellant was placed on
probation for five years.
The third item was the 158-page exhibit of a ppellant’s text messages to and from
the complainant while he was incarcerated . The messages stated that appellant: (1) was
having other people interfere with the complainant; (2) abused the complai nant and was
inclined to dominate women; (3) stole from the complainant and t ook advantage of her
financially; (4) had racist beliefs and was associated with white supremacist activity; (5)
was involved sexually with a teenage girl and was a pedophile; and (6) was an evil person,
a bad father, and generally undesirable.
Appellant argues that the cumulative effect of the three items was to unduly
prejudice the jury and deprive him of a fair trial.
DECISION
None of the three items was objected to.
When a defendant fails to object at trial, the forfeiture
doctrine generally precludes appellate relief. . . . [But
Minnesota appellate courts have] a limited power to correct
errors that were forfeited. This limited power is known as the
plain-error doctrine.
Under the plain -error doctrine, a defendant must
establish (1) an error, (2) that is plain, and (3) that affects the
defendant’s substantial rights. When the defendant satisfies
these requirements, an appellate court may correct the error
only when it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.

Pulczinski v. State , 972 N.W.2d 347, 355 -56 (Minn. 2022) (quotations , citations, and
footnote omitted).
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We begin by observing that the cumulation of erroneously admitted eviden tiary
items makes this case not merely unusual, but rare.
The supreme court has held that, in rare cases, “the cumulative
effect of trial errors can deprive a defendant of his
constitutional right to a fair trial when the error s 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. Chauvin, 989 N.W.2d 1, 35 (Minn. App. 2023) (quoting State v. Davis, 820 N.W.2d
525, 539 (Minn. 2012)) (emphasis added), rev. denied (Minn. July 18, 2023).
“[W]e may be inclined to grant a defendant a new trial based on the cumulative
effect of errors that do not individually require a new trial. ” Davis, 820 N.W.2d at 539;
see also State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989 ) (stating that “[c]umulative
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” (quotation omitted)); In re Welfare of D.D.R., 713 N.W.2d 891, 907 (Minn.
App. 2006 ) (“Although we find no one individual error that requires a new trial, the
cumulative effect of trial error requires a new trial.”) . “If there is a reasonable possibility
that the verdict might have been more favorable to the defendant if the evidence had not
been admitted, then the error in admitting the evidence was prejudicial error.” D.D.R., 717
N.W.2d at 904 (quotation omitted).
1. Affidavits of Service of the DANCO and the Subpoena
There is no dispute that the failure to have the servers of the DANCO and the
subpoena testify violated appellant’s right to confrontation. Although appellant said in a
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text message that “they put a DANCO on me ,” the affidavit of service of the DANCO on
him was not irrelevant because the text message did not indicate which DANCO it referred
to, was never mentioned during the trial , and was not particularly noticeable in the midst
of 158 pages of text messages. The affidavit of service of the DANCO made the jury aware
that appellant knew of the DANCO when he violated it, a critical element of the state’s
case.
The affidavit of service of the subpoena was mentioned in the state’s closing
argument, and the jury was instructed to look at it: “[The complainant] was subpoenaed to
testify and there [is an] affidavit[] of service of a subpoena, Exhibit 12 ” with the case
number, “which you will find at the bottom of the subpoena.” The declarant of the affidavit
did not testify, and the affidavit was offered for the truth of the matter it asserted: it made
indisputable the fact that the complainant had been subpoenaed to testify at another trial of
appellant. The fact that the complainant had been contacted by appellant within 15 minutes
of service corroborated appellant’s tampering with a witness.
Thus, there is a real possibility that the verdicts on both charges might have been
more favorable to appellant if the affidavits of service of the DANCO and of the subpoena
had not been admitted as evidence, and the error in admitting them was therefore
prejudicial to appellant. See D.D.R., 713 N.W.2d at 904.
2. The Unredacted Complaint and Warrant of Commitment
Evidence of domestic conduct by the accused against
the victim of domestic conduct . . . 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
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presentation of cumulative evidence. “Domestic conduct”
includes, but is not limited to, evidence of domestic abuse ,
[and] . . . violation of a [DANCO] under section 629.75 . . . .

Minn. Stat. § 634.20 (2022).
The purpose of admitting domestic-conduct evidence is putting a defendant’s crime
in the context of the relationship between the defendant and the victim. State v. Zinski, 927
N.W.2d 272, 278 (Minn. 2019). The complaint informed the jury that both counts of
appellant’s 2020 offense were felony -level domestic assault with maximum sentences of
five years imprisonment and a $10,000 fine; that appellant was identified by the victim as
her boyfriend; that she told police officer C.S. that appellant punched her in the face and
had punched her and choked her previously ; that she was afraid of appellant w hen he hit
her; that appellant denied ever hitting her; and that appellant was arrested. The complaint
went on to state that appellant had prior convictions for two DANCO violations. Police
officer C.A. was the complainant. Neither police officer testified, was subjected to cross-
examination, or was declared to be unavailable.
Minnesota Statutes section 634.20 says nothing about prior convictions and
provides no basis for admitting the warrant of commitment. The warrant of commitment
informed the jur y that appellant had been convicted of one count of domestic assault,
committed to a correctional facility for 18 months, stayed for five years, sentenced to 60
days in the county jail, placed on supervised probation for five years, and subject to 15
conditions. None of this information was evidence of domestic conduct admissible under
the statute, nor did it provide information about the relationship between appellant and the
complainant, notwithstanding the jury instruction that the warrant of commitment was
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admitted only for the limited purpose of demonstrating the nature and extent of the
relationship between appellant and the complainant.
The jury’s attention was called to the warrant of commitment in the state’s final
argument, when the jury was told that one document was a complaint in a case in which
appellant “was convicted of domestic assault and when you read that complaint you will
read that he was convicted of hitting . . . [the complainant] in a car and leaving a mark on
her face and I want you to pay attention to the details of that complaint.”
Evidence of the facts and circumstances surrounding the 2020 incident did not
include evidence that appellant was convicted as a result of the incident. In State v.
Melanson, the state was allowed “to introduce evidence of the underlying facts of the 2014
terroristic threats conviction as relationship evidence at trial,” but “was not allowed to
inform the jury that appellant was convicted of a felony as a result.” 906 N.W.2d 561, 566
(Minn. App. 2018), rev. granted (Minn. Mar. 28, 2018) and appeal dismissed (Minn. June
5, 2019). Here, the warrant of commitment was also irrelevant to the relationship of
appellant and the complainant and informed the jury that appellant had been convict ed of
a felony. The warrant of commitment was erroneously admitted.
3. The Text Messages
The jury was not instructed on how or for what purpose jurors were to use the
evidence in the 158 pages of text messages, and the declarant of many of the messages did
not testify. The text messages included the complainant’s statements to appellant that: (1)
“having whoever follow and stalk me is about the absolute last straw”; (2) “my life’s been
left in shambles by you”; (3) “[Your] thing is absolutely having power and control, eg [you]
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like to choke and tie women up”; (4) “I just wanna kill myself when I think of how callous
and heinous [you] are ”; (5) “Being with [you] has cleaned m e and my parents out .” “My
net worth when I met [you] was $240,000 and now it’s less than zero”; (6) “I know [you]
stole a sh-t ton of money from me”; (7) “[You were] using the fact that I was mourning the
loss of my fiancé against me so [you] could clean me out and burn me down”; (8) “[Y]ou
have every white supremacist [in] the metropolitan area and beyond f****** trying to kill
me trying to [get] me trying to run me into the ground you need to stop”; (9) “[B] was 16
when [you] began f -cking her”; (10) [C]hances are that b -tch is only about 16 or 1 7 so
[appellant is] a predator dirtbag in the worst way . Pedophile”; and (11) “[Y]ou lie cheat
steal and are a woman beater [you] didn’t raise [your] kids.”
Some of these statements were evidence of appellant’s prior bad acts, while others
were characte r evidence. Prior bad act evidence is not admissible to show action in
conformity with it, and is admissible for other purposes only if, among other things, the
state gives notice of its intent to admit the evidence and indicates what the evidence is
offered to prove , and the evidence is relevant and material to the state’s case —here,
DANCO violation and witness tampering. See State v. Ness, 707 N.W.2d 676, 686 (Minn.
2006). The state did not indicate what the evidence was intended to prove, other than that
appellant was in contact with the complainant.
But a complainant’s general testimony that is “only marginally relevant to
establish” the charged crime and that is “devoid of detail as to time, place, circumstance or
context—presents the risk of lea ding the jury to improperly conclude that [an] appellant
has a propensity to behave criminally and should now be convicted, and punished, for the
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charged offenses. ” State v. Hormann , 805 N.W.2d 883, 891 (Minn. App. 2011) , rev.
denied (Minn. Jun. 17, 2012); see also Old Chief v. United States, 519 U.S. 172, 180 –81
(1997) (noting that (1) evidence of prior bad acts often “rais[es] the odds” that the
defendant committed the charged act “or, worse,” promotes “preventive conviction”
regardless of guilt, and (2) creates “the risk that a jury will convict for crimes other than
those charged—or that, uncertain of guilt, it will convict anyway because a bad person
deserves punishment” and “creates a prejudicial effect that outweighs ordinary relevance”
(quotation omitted)); State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996) (holding that
prolonged description of prior -crimes evidence was prejudicial because it improperly
“inflame[d] the jury”); State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (noting that
preventing a “conviction based on prejudice created by evidence of other crimes is th e
underlying purpose” for excluding such evidence).
The highly inflammatory material about appellant that appeared in the 158 pages of
text messages, when added to the erroneously admitted affidavits of service of the DANCO
and the subpoena and to the unredacted complaint and warrant of commitment in anothe r
matter, could have prejudiced the jury against appellant and thus provided a reasonable
possibility that the verdict would have been more favorable to appellant if it had been
excluded. See D.D.R., 713 N.W.2d at 904.
Based on the cumulation of the se p lain evidentiary errors, we believe that
appellant’s substantial rights were violated and that we must address these errors to ensure
the fairness and integrity of our judicial proceedings. Appellant is entitled to a new trial.
Reversed and remanded.