State of Minnesota, Respondent, vs. Edward R. Bergren, Appellant.

State of Minnesota, Respondent, vs. Edward R. Bergren, Appellant. A06-743, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-743

 

State of Minnesota,

Respondent,

 

vs.

 

Edward R. Bergren,

Appellant.

 

Filed September 4, 2007

Affirmed

Halbrooks, Judge

 

St. Louis County District Court

File No. CR-05-1997

 

Lori Swanson, Attorney General, Kelly O'Neill Moller, Bridget Kearns Sabo, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Melanie Sue Ford, St. Louis County Attorney, 100 North 5th Avenue West, #501, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from his convictions of first-degree assault and fourth-degree criminal damage to property, appellant argues that (1) the district court's failure to recuse, despite disclosing that appellant's brother had been convicted of assaulting the judge's nephew, violated appellant's right to a fair trial; (2) the evidence is insufficient to support his assault conviction; (3) the district court abused its discretion in several evidentiary rulings, including (a) ruling that appellant's prior convictions were admissible for impeachment purposes, (b) admitting relationship evidence, and (c) prohibiting evidence of the victim's methamphetamine use; (4) the district court abused its discretion by denying his motion for a new trial based on new evidence in the form of a statement from the victim obtained posttrial and by taking judicial notice of battered-person syndrome; and (5) he received ineffective assistance of counsel.  Appellant also submitted a pro se supplemental brief.  We affirm.

FACTS

            Appellant was charged with first-degree assault under Minn. Stat. § 609.221 (2004); third-degree assault under Minn. Stat. § 609.223, subd. 1 (2004); and fourth-degree criminal damage to property under Minn. Stat. § 609.595, subd. 3 (2004); following an incident in which he allegedly pushed his intoxicated girlfriend out of his pickup while he was driving the vehicle at 33 miles per hour.  At a bail-reduction hearing, the district court judge informed appellant that he would be the trial judge if appellant requested a speedy trial and advised appellant that he was aware that appellant's brother had been convicted of assaulting his nephew. 

            After discussing the potential conflict, appellant stated that he was willing to proceed with the matter before the same district court judge.  A jury subsequently found appellant guilty of all charges.  Appellant moved for judgment of acquittal pursuant to Minn. R. Crim. P. 26.03, subd. 17(3), on the ground that the evidence was insufficient to sustain the conviction.  In the alternative, appellant sought a new trial under Minn. R. Crim. P. 26.04, subd. 1(1), (5), and (7), based on newly discovered evidence.  The district court denied appellant's motions.  This appeal follows.

D E C I S I O N

I.

 

            Appellant argues that he is entitled to a new trial because (1) the district court judge had an affirmative obligation to recuse under Canon 3D of the Minnesota Code of Judicial Conduct based on bias or an appearance of impropriety created by the fact that appellant's brother had earlier been convicted of assaulting the judge's nephew and (2) the district court's bias against him was a structural error that deprived him of his due-process right to a fair trial.  The state contends that there was no violation of the Code of Judicial Conduct because the district court judge stated that he could set aside any personal relationship, and appellant agreed to go forward.  In addition, the state argues that there was no structural error.

The Sixth Amendment right to a fair trial under the United States Constitution includes the right to a trial before an impartial judge.  State v. Dorsey, 701 N.W.2d 238, 249 (Minn. 2005).  Judicial ethics are governed by the Code of Judicial Conduct.  Minn. Code Jud. Conduct pmbl.  A violation of the Code of Judicial Conduct and the resulting potential for a constitutional violation are questions of law, which this court reviews de novo.  Dorsey, 701 N.W.2d at 246, 249.   

            Canon 3D(1)(a) of the code states:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]

 

 "No judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct."  Minn. R. Crim. P. 26.03, subd. 13(3). 

            We begin our analysis by focusing on the following exchange that occurred between the district court and appellant at the bail-reduction hearing:

THE COURT:  This matter is on this morning for purposes of a motion seeking to reduce bail.  The Court has indicated to counsel, and, [appellant], I'm going to indicate to you that I wish to make a disclosure on the record before we go any further in this matter.  This case has not, as I understand it, been assigned specifically to myself.  But you have filed a speedy-trial demand, correct?

 

[APPELLANT]:  Yes, Judge.

 

THE COURT:  And I'm assigned to the next speedy trial calendar, so that if this matter were to come up for trial at that time, it would come up before myself.  Now, as I understand it, your brotheryou have a brother, Joel Bergren, right?

 

[APPELLANT]:  Yes, true.

 

THE COURT:  And Mr. Joel Bergren at one time, sometime agoand I wasn't involved in that.  I believe Judge Sweetland was.  But at one time yourone of your brothers, Joel Bergren, was convicted of assault involving an assault against a gentleman named Blake Ramsay.

 

[APPELLANT]:  Yes.

 

THE COURT:  Blake Ramsay is my nephew.

 

[APPELLANT]:  I know.

 

THE COURT:  And so I'm making that disclosure and asking you whether you have any problem at all with my being involved in the trial process here, or in this case against you; or if you think that, you know, for some reason that, you know, that there might be some prejudice to you because your brother was convicted of assaulting my nephew, I'll arrange to get a different judge on the matter.  And it's your call.

 

[APPELLANT]:  I'mdo you hold any of that against me?

 

THE COURT:  I'm not saying I do or I don't.

 

[APPELLANT]:  (Laughing.)

 

. . . .

 

[APPELLANT]:  I didn't have nothin' to do with that stuff.

 

THE COURT:  I don't know if you did or you didn't.

 

[APPELLANT]:  Well, I didn't.  I couldn't have or . . .

 

THE COURT:  Understand, I wasn't involved in [appellant's brother's] trial.

 

[APPELLANT]:  All right.

 

THE COURT:  I didn't have anything to do with it.  But the fact is his victim was a nephew of mine.  And all I'm saying is if you think that that might somehow affect my attitude towards you, then now is the time to say so, and we'll get a different judge.

 

. . . .

 

[APPELLANT]:  . . . .  Well, I think that you'reI think you're mature enough to just, you know,

 

. . . .

 

[APPELLANT]:  be a judge.

 

. . . .

 

THE COURT:  The fact is that I don't have a whole lot of contact with the nephew that was the victim there . . . .  But, you know, I can understand if you felt that somehow because he was a family member and he was assaulted by one of your family members, that that might come into play here.  I obviously would try to set that aside and ignore it and give you a fair trial or assure you of a fair trial.  But that's your choice, not mine.

 

[APPELLANT]:  Well, I appreciate your grace in as much, so then I'mI'd just like to proceed.  If that's all right?

 

[APPELLANT'S COUNSEL]:  (Nods head).

 

THE COURT:  [Appellant's counsel], I gather that you're satisfied that [appellant] has been properly advised and wishes to proceed in this matter.

 

[APPELLANT'S COUNSEL]:  I have no objections.   And it sounds to me as if he has no objection to this Judge hearing the trial.

 

            Appellant's argument is premised on his contention that the district court judge had no choice but to disqualify himself based solely on his knowledge of appellant's brother's conviction of assaulting the judge's nephew.  We disagree.  The supreme court has stated that

[t]he code does not set forth any exceptions to the rule in Canon 3D(1) that a judge must disqualify herself if her impartiality may reasonably be questioned, nor does it "provide a precise formula that can automatically be applied" in making a disqualification determination.  Further, the "grounds for disqualification in Canon 3D(1) are stated broadly, leaving considerable room for interpretation in their application to any given set of circumstances."

 

Dorsey, 701 N.W.2d at 248 (citations omitted).  As a result, "[w]hen reviewing a judge's decision not to disqualify herself, we must make an objective examination of whether the judge's impartiality could reasonably be questioned."  Id. It is presumed that judges will set aside collateral knowledge and make decisions based on the merits of the specific case.  Id. at 248-49.

            Despite the fact that appellant agreed to the district court's presiding at trial, appellant now urges us to interpret the district court's pretrial statements as an indication that the judge could not be fair.  We note that the argument now being asserted is totally inconsistent with appellant's failure to timely object to the judge's continued handling of the trial.  Both this court and the supreme court have held that when a defendant submits to trial before a judge without objecting to the judge on the basis of bias, we will reverse the defendant's conviction only if the defendant can show actual bias in the proceedings.  State v. Moss, 269 N.W.2d 732, 735 (Minn. 1978); State v. Plantin, 682 N.W.2d 653, 663 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).

            We read the district court's remarks as reflecting the judge's effort to assure appellant of his neutrality in appellant's case.  Further, this matter was tried to a jury; the district court judge was not the fact-finder.  And appellant does not direct us to any rulings that he claims reflect the district court's alleged bias toward him. 

            Canon 3E mandates that the district court allow parties and their attorneys to consider waiver of disqualification out of the presence of the judge and that the judge not participate in reaching agreement to waive disqualification.  But appellant has not asserted a violation of Canon 3E, and on this record we conclude that any violation of that canon is not reversible error because the discussion, which was on the record, demonstrates that appellant was not pressured or influenced by the judge to waive disqualification.

            Appellant also asserts that the district court's alleged impartiality was a structural defect under Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 1265 (1991), requiring automatic reversal.  We disagree.  The Supreme Court has stated that structural errors are "defects in the constitution of the trial mechanism," two examples of which are the deprivation of the right to counsel at trial and the presence of a partial judge.  Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265.

            The Minnesota Supreme Court concluded that structural error occurred in Dorsey based on the district court's conduct when, sitting as the fact-finder, the judge openly questioned the veracity of a factual assertion made by a key defense witness and then independently investigated that fact.  Dorsey, 701 N.W.2d at 253.  Here, appellant has not shown that the judge was biased.  There was no conduct on the part of the district court that created a structural error in appellant's trial.

II.

            Appellant argues that the evidence was insufficient to prove that he assaulted D.L.  The state must prove "beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged."  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In considering a claim of insufficient evidence, this court's review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            The fact-finder has the exclusive function of judging witness credibility, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court will defer to the fact-finder's credibility determinations.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  Overturning a jury verdict is a heavy burden for a defendant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

            A conviction "based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence."  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  "While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference.  Webb, 440 N.W.2d at 430.

            An assault is "[t]he intentional infliction of or attempt to inflict bodily harm upon another."  Minn. Stat. § 609.02, subd. 10(2) (2004).  First-degree assault is defined as "assault[ing] another and inflict[ing] great bodily harm."  Minn. Stat. § 609.221, subd. 1 (2004).  "Great bodily harm" is "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm."  Minn. Stat. § 609.02, subd. 8 (2004). 

Appellant does not contest the fact that D.L. suffered "great bodily harm."  D.L. sustained fractures in her left-eye area and multiple brain hemorrhages that initially rendered her unconscious and resulted in memory loss and limited ability to move on her left side.  But appellant maintains that D.L. fell out of the pickup because of her intoxication. 

            Although D.L. testified, she had no memory of getting into appellant's truck on the night of the incident or anything that subsequently occurred.  But the state did call several witnesses who were present at St. Mary's Hospital when appellant brought D.L. to the emergency room (ER) as well as multiple law-enforcement officers.  There was testimony that appellant parked his pickup in a dark alley, rather than pulling up to the ER entrance.  Bystanders heard appellant use profanity and saw him flail his arms as if he were punching something or someone inside the vehicle.  After appellant pulled D.L. from the pickup, he dropped her on the road.  When asked by a passerby if he needed any help, appellant said, "No, I don't, mind your own f-ckin[g] business.  I am just bringing my f€‘cking girlfriend to the hospital."  In the ER, appellant was disruptive to the point that medical personnel asked the officers to remove him.  When police asked appellant if he wanted to give a statement, appellant told them, "F-ck you."

            Further, the explanations that appellant provided about D.L.'s injuries were inconsistent.  He told a hospital security guard that D.L. fell when she got out of his vehicle before he had put it in park.  He subsequently told the police that the incident happened near the bar where he and D.L. had been drinking.  But police found no sign of an accident there.  Instead, scuff marks from a rolling body and blood were on Superior Street at the Mesabi Avenue intersection, where D.L.'s sweatshirt was located.  In addition, the jury heard D.L.'s testimony that approximately one month earlier, appellant, when he was angry at her, had opened the passenger door while driving with D.L. in the pickup and had shoved her toward the open door.

            The jury here heard two dramatically different accounts of the events leading up to D.L.'s arrival at the ER and had ample opportunity to judge the witnesses' credibility.  Based on our review of the record, we conclude that there was sufficient evidence at trial to sustain appellant's conviction of assault.

III.

            Appellant contends that the district court abused its discretion in several evidentiary rulings.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

A.        Impeachment of appellant by evidence of prior convictions

 

            The district court has discretion to determine whether impeachment evidence should be admitted.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Evidence of a witness's prior conviction is admissible if the crime was punishable by death or imprisonment of more than one year or involved dishonesty or false statement.  Minn. R. Evid. 609(a).  But the conviction or release, whichever is later, must have occurred within the past ten years, unless two threshold requirements are met.  Minn. R. Evid. 609(b).  The district court must determine "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."  Id.  Secondly, the proponent of introducing the conviction must give sufficient notice to the adverse party so as to give that party a fair opportunity to contest its use.  Id.

            The supreme court has stated that the factors in State v. Jones should be used to determine whether the probative value of the conviction outweighs the prejudicial effect.  Those factors are:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

 

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).  The district court in making its ruling "should demonstrate on the record that it has considered and weighed the Jones factors."  State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006); see also Minn. R. Evid. 609(a) 1989 comm. cmt. ("The [district court] judge should make explicit findings on the record as to the factors considered and the reasons for admitting or excluding the evidence.").  The district court's failure to make a proper record of the Jones factors is reviewed for harmless error.  Swanson, 707 N.W.2d at 655.  The failure to make a Jones-factors analysis on the record is harmless "if the conviction could have been admitted after a proper application of the Jones-factor analysis."  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  "This approach is particularly appropriate where . . . the Jones factors were thoroughly briefed and orally argued before the district court," as occurred here.  Id. 

            Appellant moved in limine to prohibit admission of his five prior felony convictions: theft of a motor vehicle in 1994, fifth-degree possession of marijuana in 1998, receiving stolen property in 1998, possession of a firearm by a felon in 1998, and a possession of ammunition (under federal law) in 2000.  In its memorandum accompanying the order denying appellant's motion, the district court stated that it

[was] satisfied that [appellant's] prior convictions are sufficiently recent and of such a nature and character to have significant impeachment value, are of a nature as to properly reflect upon [appellant's] credibility, will assist the jury in placing [appellant's] testimony in proper perspective to the other evidence, and will assist the jury in its overall evaluation of the evidence herein.

 

            Because the district court did not make explicit findings regarding the Jones-factors analysis, we review this issue from a harmless-error perspective.

            1.         Impeachment value of the prior crime

            Prior convictions, even for crimes that do not involve dishonesty, have probative value in allowing the jury to assess witness credibility through the ability to "see the whole person and thus to judge better the truth of his testimony."  Vanhouse, 634 N.W.2d at 719 (quotation omitted). 

            Appellant argues, citing cases from other jurisdictions, that we should abandon the "whole person" doctrine because it has fallen out of favor.  There is no support for his contention in Minnesota caselaw.  And as we stated in State v. Flemino, although the convictions there were not for crimes of violence, the convictions indicated bad choices and antisocial behavior.  State v. Flemino, 721 N.W.2d 326, 329-30 (Minn. App. 2006) (justifying impeachment by felony convictions because they raise the issue of "whether a person who violates the law in a serious way can be trusted to tell the truth in the matter at issue").  Such evidence is precisely what the "whole person" doctrine finds relevant.  See id. at 328-29.  The contextual value of appellant's convictions weighs in favor of admittance.

            2.         Date of the conviction and defendant's subsequent history

            All but appellant's 1994 conviction of motor-vehicle theft occurred within the preceding ten years.  A subsequent history of convictions can serve to make prior convictions more relevant to demonstrate a "history of lawlessness."  Swanson, 707 N.W.2d at 655 (quotation omitted).  And the effect of prohibiting admission of the 1994 conviction would have been minor.  Given appellant's four felony convictions from 1998 to 2000, the district court could have reasonably concluded "that this continuing misconduct somewhat prolongs the probative value of an otherwise stale conviction."  Vanhouse, 634 N.W.2d at 720.  Therefore, the second factor supports admission of the impeachment evidence.

            3.         Similarity of the past crime with the charged crime

            "The more similar the alleged offense and the crime underlying a past conviction, the more likely it is that the conviction is more prejudicial than probative."  Swanson, 707 N.W.2d at 655 (citing Jones, 271 N.W.2d at 538).  More similar conduct increases the danger that the jury may convict based on the prior conviction, but this problem can be reduced through the proper cautionary instruction.  Vanhouse, 634 N.W.2d at 720.  Although appellant had five prior convictions, none involved significant violence.  Because the conduct underlying appellant's assault charges was different from the conduct underlying his prior convictions, appellant concedes that this factor supports admissibility.

            4.         Importance of the defendant's testimony

            Both parties agree that appellant's testimony was important to the case.  But, as the state argues, had appellant testified, the district court would presumably have instructed the jury to not consider appellant's prior convictions as evidence of his guilt.  See State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979).  And a jury is presumed to follow the district court's instructions.  State v. James, 520 N.W.2d 399, 405 (Minn. 1994).

            5.         Centrality of the credibility issue

            The importance of credibility in a case increases the justification for admitting the prior convictions.  Such a credibility issue is central "if the issue for the jury narrows to a choice between defendant's credibility and that of one other person."  Vanhouse, 634 N.W.2d at 720 (quotation omitted).  The importance of appellant's testimony in the case thus justified the possibility of impeachment to test appellant's veracity.  Therefore, this element also supports admission.

            Although the district court was not explicit in its Jones-factors analysis, the factors support admissibility.  As a result, we conclude that the district court did not abuse its discretion by denying appellant's motion in limine and ruling that impeachment of appellant through prior convictions would be permitted if he testified.

B.        Relationship evidence

            The state sought to admit evidence that appellant attempted to push D.L. out of a moving vehicle approximately one month before this incident.  Appellant opposed admission of the evidence on the ground that it was too prejudicial because of the similarity of the incidents.  Minnesota law provides that

[e]vidence of similar conduct by the accused against the victim of domestic abuse, 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.  "Similar conduct" includes, but is not limited to, evidence of domestic abuse . . . .

 

Minn. Stat. § 634.20 (2004).[1]  A family or household member includes "persons who have a child in common regardless of whether they have been married or have lived together at any time."  Minn. Stat. § 518B.01, subd. 2(b)(5) (2004).  It is not disputed that appellant and D.L. have a child together.  Determining "[w]hether the probative value of prior bad acts outweighs their prejudicial effect is a matter left to the discretion of the trial court."  State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (quotation omitted).

            Admissibility of such evidence counters the uniquely private nature of domestic abuse that "frequently involves a pattern of activity that may escalate over time, and it is often unreported."  State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).  Thus, the evidence "may be offered to illuminate the history of the relationship, that is, to put the crime charged in the context of the relationship between the two."  Id. at 159.  The supreme court has "on numerous occasions recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim."  Waino, 611 N.W.2d at 579 (alteration in original) (quoting State v. Williams, 593 N.W.2d 227, 236 (Minn. 1999)).  Whenever such testimony is admitted, a cautionary instruction may reduce the potential of unfair prejudice.  See McCoy, 682 N.W.2d at 153, 156-57 (affirming when the district court gave a cautionary instruction before witness provided relationship evidence); Waino, 611 N.W.2d at 575, 578 (affirming district court that gave a cautionary instruction at the close of trial).

            Here, the relationship evidence involved a similar incident that occurred approximately one month earlier.  D.L. testified that appellant, in an angry state of mind, came, in the middle of the night, to retrieve her from a friend's home where she was staying overnight.  While driving home on a highway, appellant opened the pickup passenger-side door and shoved D.L.  She "started to cry and scream back at" appellant, but was able to close the door.  D.L.'s friend also corroborated the event, based on D.L.'s subsequent conversation with her. 

            Under the statute, the evidence of past domestic abuse is relevant to appellant's assault charges.  In this case, when D.L. had no memory of the incident at issue, it was helpful to the jury to establish a context of D.L.'s and appellant's relationship.  The district court gave the jury a cautionary instruction after first admitting the relationship testimony and, again, in its final instructions.  On this record, we conclude that the district court acted within its discretion by admitting the relationship evidence under Minn. Stat. § 634.20.

C.        Relevance of D.L.'s methamphetamine use

 

            Appellant sought to introduce evidence that D.L. had methamphetamine (meth) in her system on the night of this incident as well as evidence that D.L. had used meth while she was pregnant.  Due process under the Fourteenth Amendment and article I, section 7, of the Minnesota Constitution requires that criminal defendants have "‘a meaningful opportunity to present a complete defense.'"  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)).  Nonetheless, the constitutional right to present a defense is circumscribed by rules of evidence that require relevance.  Minn. R. Evid. 402; State v. Frank, 364 N.W.2d 398, 400 (Minn. 1985) (holding that the constitutional right of confrontation does not mean "that a criminal defendant always has a right to have expert testimony admitted on the subject of excessive alcohol consumption").  But "[i]t is a general rule that all evidence which may tend to impeach a witness is relevant."  State v. Underwood, 281 N.W.2d 337, 341 (Minn. 1979).  But even 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."  Minn. R. Evid. 403.

            Generally a party may show "that the other party's witness was intoxicated at the time to which his testimony relates."  Frank, 364 N.W.2d at 400.  Such testimony impeaches the witness's ability to accurately perceive and remember the events during intoxication.  State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977).  For example, a history of blackouts during intoxication is relevant to similar degrees of intoxication during the period to which the witness relates.  Id.  But intoxication is relevant only to the time to which the witness testifies; general intemperance is not enough.  Id. 

            Here, no one challenged the admission of evidence of D.L.'s alcohol intoxication on the night of the incident.  Intoxication, as appellant argued at trial, and D.L. later claimed in a posttrial statement, could contribute to or cause an individual to fall out of a pickup while attempting to open the door to vomit.  Therefore, D.L.'s alleged methamphetamine use on the night of the incident would add little to appellant's defense.  Any alleged use during pregnancy would have no relevance to the charge whatsoever.  Further, whether or not D.L.'s toxicology screen contained meth was never established; the results of the screen were the subject of an argument between counsel only.  Therefore, the district court did not abuse its discretion by denying admission of D.L.'s alleged methamphetamine use.

D.        Other evidentiary issues

            In his pro se supplemental brief, appellant raises some additional evidentiary issues for the first time.  We do not generally decide issues that were not raised in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  For that reason and because appellant's issues lack merit, we do not reach them.

IV.

            As part of his posttrial motions, appellant sought a new trial on the ground that it was warranted by newly discovered evidence in the form of a posttrial statement that D.L. gave to appellant's investigator.  In the statement, D.L. said, in part:

D.L.     And, um, ah, when I was, I remember wanting to puke and opening the door, but from there I really, or trying to open the door, but I don't remember anything after that.

 

. . . .

 

[Investigator]  So, if you were, let me ask you this, so if you were today, if you were asked the question on the stand, do you remember anything about, about the vehicle while enroute, or did you open the door, or did you fall out of the truck, or whatever they would ask you, you would today, as I understand it, say yes, you remember needing to puke and opening the door, is that right?

 

D.L.     Yes, that's right.

 

[Investigator]  Okay.  Did [appellant] have any involvement in pushing you out of that truck that you recall?

 

D.L.     No.

 

[Investigator]  Did he have any involvement in, in beating you or assaulting you, if you recall?

 

D.L.     No, I just remember us arguing.  I don't remember him laying his hands on me at all, or anything, I was just really upset.

 

[Investigator]  And, and the last thing you remember is feeling the need to puke and opening the door, or trying to get the door open . . .

 

D.L.     Yes.

 

[Investigator]  And then that's the last you remember?

 

D.L.     Yes.

 

[Investigator]  And you didn't see [appellant] lean over towards you to try to open the door or get out or anything.

 

D.L.     No, he didn't.

 

[Investigator]  Okay.

 

D.L.     I don't think he even knew I had to puke.

 

The district court denied appellant's motion.

            The decision whether to grant a trial based on newly discovered evidence is reviewed under the abuse-of-discretion standard.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  Appellant "bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief."  Id.  A defendant may move for a new trial on several grounds, including "[m]aterial evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial."  Minn. R. Crim. P. 26.04, subd. 1(5).  A new trial based upon newly discovered evidence may be granted when a defendant proves

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

 

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). 

            In cases involving the later recantation of a witness who testified at trial, the supreme court has stated that the three-prong Larrison test is the proper one to apply to a new-trial motion.  Wilson v. State, 726 N.W.2d 103, 106 (Minn. 2007).  Under that analysis, a new trial is granted only if a defendant meets three requirements by a fair preponderance of the evidence:

(1) the court must be reasonably well-satisfied that the testimony in question was false; (2) [the petitioner must show that] without that testimony the jury might have reached a different conclusion; and (3) the petitioner [must show that he or she] was taken by surprise at trial or did not know of the falsity until after the trial.

 

Opsahl v. State (Opsahl I), 677 N.W.2d 414, 423 (Minn. 2004).  The supreme court has stated that "[t]he first two prongs of the Larrison test are compulsory, but the third prong is not."  Pippitt v. State, ___ N.W.2d ___, ___ (Minn. Aug. 16, 2007).

            The district court considered the Rainer factors in its ruling.  Specifically, the district court found that some of the factors were satisfied because appellant had no way of knowing about this "new" evidence at the time of trial, could not have discovered it through due diligence, and the new evidence was neither cumulative nor impeaching.  But the district court found that the evidence was doubtful, given D.L.'s inconsistent accounts of what she said to whom and when and that the inconsistency detracted from her credibility.  In addition, the district court noted that D.L.'s statement to the investigator about whether or not she actually opened the pickup door was equivocal.  Finally, the district court found that, even if D.L.'s newly discovered recollection was taken as true, it was unlikely to produce a more favorable result or an acquittal. 

While the district court did not explicitly address the Larrison test in its decision denying appellant's posttrial motions, its analysis provides us with the basis to do so.  The supreme court has stated that a court "‘must be reasonably certain that the recantation is genuine'" before the first prong is met.  Opsahl v. State (Opsahl II), 710 N.W.2d 776, 782 (Minn. 2006) (quoting State v. Walker, 358 N.W.2d 660, 661 (Minn. 1984)).  Here, the district court commented specifically that D.L.'s credibility was diminished by her inconsistent accounts of who was present when she spoke to appellant's investigator and that the new evidence was "doubtful at best."  On this record, it cannot be said that appellant has met the Larrison test.  We therefore conclude that the district court acted within its discretion in denying appellant's motion for new trial on this basis.

            We also note that while appellant now argues that the district court further abused its discretion by taking judicial notice of the battered-person syndrome, the record does not support that assertion.  The district court notes that the state sought to have the district court take judicial notice of the battered-person syndrome, but ultimately no such finding was made.

V.

            In his pro se brief, appellant claims that he had ineffective assistance of counsel because of his attorney's failure to have the judge disqualified and to object to the seating of two jurors.  Claims of ineffective counsel are mixed questions of fact and law, and therefore, we review them de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

            A party alleging ineffective assistance of counsel must show that his counsel's performance "fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors."  Id. (quotation omitted).  "‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 658, 694, 104 S. Ct. 2052, 2068 (1984)).  "The reviewing court considers the totality of the evidence . . . in making this determination . . . [and] need not address both the performance and prejudice prongs if one is determinative."  Rhodes, 657 N.W.2d at 842 (citations omitted).  A strong presumption exists "that a counsel's performance falls within the wide range of ‘reasonable professional assistance.'"  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  It is not our function to review counsel's tactical decisions involving trial strategy in hindsight.  State v. Miller, 666 N.W.2d 703, 717 (Minn. 2003). 

            We have already addressed appellant's claim that the district court should have recused in this matter.  Given our conclusions that there was no reversible error or structural error, appellant's counsel's failure to object on that issue cannot be viewed as ineffective assistance. 

            In addition, appellant argues that his attorney "was indifferent" to his request that R.D. and G.G. be removed from the jury panel.  Appellant now seems to be asserting that his counsel should have struck both jurors.  R.D. worked in Social Services for the court system, and his children knew the prosecutor's children.  G.G. stated during voir dire that years earlier he had ridden motorcycles with Officer Jim Nilsson, one of the several officers who testified at trial.  Both prospective jurors were questioned about their ability to be fair and impartial and to decide the case on the evidence before the jury.  Both clearly stated that they could do so.  This record does not support appellant's assertion of ineffective assistance of counsel.

            Finally, appellant claims that his counsel "coerced me not to testify."  But the record reflects that after lengthy discussion with his attorney, appellant understood that the choice to testify or not was his and that he was accepting his attorney's advice not to testify.  We conclude that appellant knowingly and intelligently waived his right to testify. 

            Affirmed.

[1] Although this rule resembles Minn. R. Evid. 404(b) that allows evidence of another act to establish such purposes as intent or common plan, admissibility under Minn. Stat. § 634.20 does not require clear and convincing evidence that the act occurred.  State v. Waino, 611 N.W.2d 575, 578-79 (Minn. App. 2000).