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This opinion is nonprecedential except as provided by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
A22-1681

State of Minnesota,
Respondent,

vs.

Malcolm Jamal Allen,
Appellant.

Filed September 11, 2023
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-CR-21-15468

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Slieter, Judge; and Hooten,
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NONPRECEDENTIAL OPINION
FRISCH, Judge
Following his conviction for illegal possession of a firearm, appellant argues that
the district court’s abuse of discretion in admitting relationship evidence and multiple
graphic photographs warrants a new trial. Although we agree that the district court abused
its discretion in its evidentiary rulings, we affirm appellant’s conviction because there is
no reasonable possibility that, but for these errors, the verdict would have been different.
FACTS
Respondent State of Minnesota charged appellant Malcom Jamal Allen with one
count of felony possession of ammunition or a firearm by an ineligible person in violation
of Minn. Stat. § 624.713, sub d. 1(2) (2020). The state alleged that Allen was in illegal
possession of ammunition and a firearm when he accidentally shot his girlfriend , S.H., in
the head. Allen stipulated that he was prohibited from possessing a firearm, and the case
proceeded to trial.
Prior to trial, Allen objected to certain evidence: details of his relationship with S.H.
and graphic photographs depicting the gunshot wound to S.H.’s head and her bloody face.
The state argued that the relationship evidence was admissible under Minn. Stat. § 634.20
(2022), and that it could be used to explain S.H.’s reactions to the incident. It also argued
that the photographs were highly relevant because the weapon was not recovered, and the
photos depicting S.H.’s gunshot wound were circumstantial evidence that Allen had
possessed a gun during the shooting. The district court allowed the relationship evidence
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to be admitted under Minn. Stat. § 634.20 and allowed the photographs to be admitted,
finding that they were relevant and their probative value outweighed any unfair prejudice.
At trial, the following facts were elicited. S.H. met Allen in 2018, and they were in
a relationship until August 12, 2021, the day of the shooting. Allen would stay at S.H.’s
home a few times a week, but he was not named on the lease and did not regularly reside
at S.H.’s home. The relationship “wasn’t always good”—“it could be physical.” Around
five days before the shooting, Allen punched S.H. in the face and broke her nose. S.H. did
not report this incident to police because she was protecting Allen, and she did not seek
medical attention for her injury because Allen told her not to. S.H. knew that Allen would
sometimes bring handguns and ammunition into her home.
On August 12, 2021, S.H. completed errands with her son while Allen remained at
her home. When she returned home, Allen was upstairs in the bedroom. As S.H. was
walking up the stairs to speak with Allen, she saw a red laser light pointing at the wall that
she believed could be attached to a weapon such as a gun. S.H. continued to walk up the
stairs and asked Allen to put the gun away. When she approached her bedroom, she saw
Allen laying on the bed holding a revolver. S.H. knew it was a real revolver and not a B.B.
or pellet gun. Allen then put his finger on the trigger, and S.H. heard a “boom.” S.H.
realized that she had been shot in the head and felt blood coming from the wound. Allen
dialed 911 on S.H.’s phone but asked her to wait to place the call until he had left the
residence.
When S.H. eventually placed the 911 call, she told the dispatcher she did not know
who shot her because she wanted to protect Allen. Officers responded to the shooting, and
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S.H. initially maintained that she did not know the identity of the shooter. She later
identified the shooter as Allen. The officers did not find a gun in the residence, but they
located a hole in the ceiling that they believed was caused by a bullet fired from a real gun
as opposed to a B.B. or pellet gun. They also found an empty box of ammunition. The
officers obtained surveillance footage that captured a man running away from the area of
S.H.’s residence at around the time of the shooting. S.H. identified that person as Allen.
When an investigator interviewed S.H. at the hospital, she again identified Allen as the
shooter. She reported that the weapon he used was a revolver with a handle-grip-activated
laser. In July 2021, a Prior Lake police officer had searched S.H.’s home and recovered
packaging for a revolver grip with a “built-in laser sight attachment,” specifically with a
red laser.
A nurse interviewed and examined S.H. The nurse observed that S.H. had a black
eye, which S.H. said she received in an argument with Allen. S.H. also told the nurse that
Allen had shot her in the head and that he had been physically violent with her in the past.
S.H. reported that Allen had previously used a weapon against her, had been violent and
jealous during their relationship, and that she believed Allen was capable of killing her.
The jury found Allen guilty of possessing a firearm while ineligible, and the district
court sentenced him to 60 months’ imprisonment. Allen appeals.
DECISION
Allen challenges two of the district court’s evidentiary rulings: the admission of
evidence of his relationship with S.H. and multiple graphic photographs depicting the
bullet wound to S.H.’s head. We review the district court’s evidentiary decisions for “a
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clear abuse of discretion.” State v. Bustos, 861 N.W.2d 655, 666 (Minn. 2015). The district
court abuses its discretion when its “ruling is based on an erroneous view of the law or is
against logic and the facts in the record.” Id. (quotation omitted). Allen bears the burden
of showing that the district court abused its discretion and that the admission of the
evidence prejudiced his defense. See State v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016).
“A defendant is prejudiced by an evidentiary ruling when there is a reasonable possibility
that without the error the verdict might have been more favorable to the defendant.” State
v. Miller, 754 N.W.2d 686, 700 (Minn. 2008) (quotation omitted); see also Peltier, 874
N.W.2d at 802 (“[A]n appellant who alleges an error in the admission of evidence that does
not implicate a constitutional right must prove that there is a reasonable possibility that the
wrongfully admitted evidence significantly affected the verdict.” (quotation omitted)).
Generally, “[a]ll relevant evidence is admissible” unless otherwise provided by law.
Minn. R. Evid. 402. Evidence is relevant if it tends to “make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Minn. R. Evid. 401. But relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” Minn. R. Evid. 403. We afford
the district court “discretion in balancing the probative value of evidence against its
prejudicial effect.” State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993). We agree with
Allen that the district court abused its discretion by admitting the challenged evidence but
conclude that Allen was not prejudiced by these errors.
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The district court first abused its discretion by allowing the state to present evidence
of Allen’s relationship with S.H., including evidence that Allen had physically assaulted
and threatened S.H. over the course of their relationship , because the state did not charge
Allen with a domestic -conduct-related offense. Evidence of prior bad acts committed by
the person who is on trial is generally inadmissible to show that the person (defendant)
committed the charged offense. Minn. R. Evid. 404(b)(1); State v. Spreigl, 139 N.W.2d
167, 169 (Minn. 1965) . An exception exists for “[e]vidence of domestic conduct by the
accused against the victim of domestic conduct, or against other family or household
members . . . , unless the probative value is substantially outweighed by the danger of
unfair prejudice.”1 Minn. Stat. § 634.20; see also State v. McCoy, 682 N.W.2d 153, 161
(Minn. 2004) (adopting Minn. Stat. § 634.20 as a rule of evidence). But, for relationship
evidence to be admissible under Minn. Stat. § 634.20, the defendant must be charged with
a domestic-conduct-related offense. State v. McCurry, 770 N.W.2d 553, 561 (Minn. App.
2009) (“When the state cannot charge a crime constituting domestic abuse, it may not use
§ 634.20 to circumvent rules of admissibility for prior bad acts.”), rev. denied (Minn. Oct.
28, 2009). The district court therefore abused its discretion by admitting evidence of
Allen’s relationship with S.H. under section 634.20 because the state did not charge Allen
with a domestic-conduct-related offense.

1 “‘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 or 609.79, subdivision 1.” Minn. Stat. § 634.20.
7
On appeal, the state now agrees that the evidence was not admissible under section
634.20, but the state nevertheless encourages us to find this error harmless because it now
argues that the evidence was otherwise admissible under Minn. R. Evid. 616. See State v.
Copeland, 656 N.W.2d 599, 60 (Minn. App. 2003) (concluding that district court erred by
allowing relationship evidence to be admitted under Minn. Stat. § 634.20 when the
defendant was not charged with a domestic-conduct-related offense but declaring the error
harmless because the evidence was admissible under Rule 616), rev. denied (Minn. Apr.
29, 2003). Rule 616 provides that, “For the purpose of attacking the credibility of a witness,
evidence of bias, prejudice, or interest of the witness for or against any party to the case is
admissible.” But the state did not seek to admit the evidence under Rule 616 before the
district court, Allen had no opportunity to object to admission of the evidence on this basis,
and the district court did not admit the evidence under this rule. Given these circumstances,
and on this record, we decline to rule on the admissibility of such evidence on this basis
for the first time on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)
(declaring that party’s “failure to raise the issue before the district court at trial precludes
its litigation on appeal”); cf. State v. Vasquez, 912 N.W.2d 642, 649 (Minn. 2018) (stating
that “[a] defendant’s objection to the admission of evidence preserves review only for the
stated basis for the objection or a basis apparent from the context of the objection”).
The district court next abused its discretion by allowing the state to present multiple
graphic photographs depicting S.H.’s bloody face and wound. The district court has
discretion to admit relevant photographs. State v. Lee, 645 N.W.2d 459, 467 (Minn. 2002).
And photographs depicting graphic or gruesome injuries, although they may arouse the
8
passions of the jury, are admissible so long as they relate to some relevant issue at trial.
State v. Hahn, 799 N.W.2d 25, 34 (Minn. App. 2011), rev. denied (Minn. Aug. 24, 2011);
State v. Hummel, 483 N.W.2d 68, 74 (Minn. 1992). But here, the district court admitted
three graphic photographs, all showing the same bullet wound, with two of the photographs
depicting S.H.’s face covered with dried blood. While we acknowledge that one
photograph may hold some marginal probative value for the purpose of corroborating
S.H.’s description of events, the admission of three graphic photographs admitted for the
same purpose was unnecessarily cumulative and unfairly prejudicial to Allen. See
Hummel, 483 N.W.2d at 74 (cautioning prosecutors and district courts to avoid admitting
multiple graphic photographs or videotapes if they are only “subtly different from other
photographic or video evidence”).
Notwithstanding these evidentiary errors by the district court, we conclude that,
based on this record, there is no reasonable probability that the erroneous admission of the
challenged evidence affected the outcome of the proceedings. The state presented strong
evidence that Allen illegally possessed a firearm. S.H. provided unchallenged testimony
that Allen shot her in the head with a revolver, and her description of the shooting was
consistent with the information she told responding officers, an investigator, and a nurse
following the shooting. Police found what they believed to be a bullet hole in the second-
floor ceiling and packaging for ammunition and a revolver accessory in S.H.’s home where
Allen sometimes stayed. And surveillance footage captured a man, identified by S.H. to
be Allen, fleeing from the area near her home in the moments after the shooting occurred.
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See State v. Bias, 419 N.W.2d 480, 485 (Minn. 1988) (stating that “evidence of flight
suggests consciousness of guilt”).
The cumulative strength of this largely unchallenged evidence is enough to
overcome any prejudice caused by the improperly admitted evidence. We also observe
that the state did not explicitly reference or show the photographs in its closing argument,
further diluting any prejudicial effect. Cf. State v. Lewis , 547 N.W.2d 360, 364 (Minn.
1996) (concluding that improper references in closing argument did not require reversal
when such references made up “only a small portion of the closing argument and [did] not
characterize the entire argument”). We note that in a weaker case, these evidentiary errors
could result in a new trial. See State v. Valtierra, 718 N.W.2d 425, 435 (Minn. 2006). But
on this record, we cannot conclude that there is any reasonable probability that the district
court’s evidentiary errors, either independently or cumulatively, “significantly affected the
verdict.” See Peltier, 874 N.W.2d at 802.
Affirmed.