State Of Minn. v. Dalton, A09-1747
| Decision Date | 12 October 2010 |
| Docket Number | A09-1747 |
| Parties | State of Minnesota, Respondent, v. Richard Allen Dalton, Appellant. |
| Court | Court of Appeals of Minnesota |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. §480A.08, subd. 3 (2008).
Olmsted County District Court File No. 55-CR-08-11039
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General,
St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Rochester,
Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Lansing, Presiding Judge; Wright, Judge; and Connolly, Judge.
UNPUBLISHED OPINION
On appeal from his conviction of felony domestic assault, appellant argues that he did not properly waive his right to a jury trial on the felony-enhancement element of the crime and that the district court abused its discretion in admitting evidence of violations of a domestic-abuse no-contact order (no-contact order) with the victim and a prior fifthdegree assault against his former girlfriend. Because we conclude that appellant effectively waived his right to a jury trial when he stipulated to the felony-enhancement element and that the relationship evidence was admissible under Minn. Stat. § 634.20 (2008), we affirm.
On October 11, 2008, P.K. met her friend D.B. at a bar in Rochester. P.K. and D.B. had lunch and approximately four to five drinks each in a period of two or three hours. P.K. then left to pick up her daughter. While P.K. was gone, appellant Richard Dalton arrived with a friend of his, L.W. P.K. and appellant had dated for a short time about a year earlier and had begun seeing each other again. D.B. told appellant that P.K. had left to pick up her daughter and was on her way back.
As P.K. was coming back, she noticed that appellant had left her a voicemail on her cell phone. P.K. described the message as "really rude and derogatory" and stated it made her mad. In the message, appellant swore at her and asked her why she is "such a b—h" and told her that she "d[id]n't need to be a b—h."
When P.K. arrived back at the bar, she observed appellant in the parking lot with his friend and asked if he could come over to her vehicle so she could speak with him. At the time, P.K. had her new puppy in her purse. P.K. told appellant that she did not appreciate the message and that appellant did not need to speak to her that way. Appellant responded by stating that P.K. was a "b---h" and that "he could say whatever he wants." P.K. then told appellant that he was "the only b—h" present.
Appellant then struck P.K. with an open hand on the left side of her face. P.K. was knocked to the ground, landing on her elbow, and her puppy "went flying." The puppy hit her head on the ground and scurried off. After making sure her puppy was okay, P.K. slapped appellant across his face. Appellant then slapped P.K. again.
Appellant started walking back towards L.W.'s truck. "[T]hen [P.K.'s] mouth started going because [she] was furious." P.K. "thr[e]w insults" at appellant to let him know she was mad. Appellant then exited the vehicle from the passenger side, said that he was going to kill P.K., and chased her around the back of the truck. Scared, P.K. ran into the bar and yelled for someone to "call the cops."
During the altercation, D.B. was outside on the bar's "smokers' patio" and she heard P.K. yelling her name. A wooden fence surrounds the patio, and patrons cannot see into the parking lot. D.B. ran outside, where she saw P.K. on the ground "yelling at [D.B.] to grab her dog." D.B. also saw appellant. P.K. told D.B. that appellant hit her. D.B. did not see P.K. subsequently strike appellant because she was trying to get L.W. to assist her. After P.K. ran into the bar, the bartender stopped appellant at the door and told him that the police were on their way and that "you guys should leave." D.B. sawappellant drive off with L.W. A few days later, D.B. saw P.K. and described her face as "[m]ore bruised and purple."
D.V., a bartender, was just pulling into the parking lot around 5:30 p.m. and finishing a cigarette before going in to work. Although he did not see them, D.V. heard a man and a woman arguing. D.V. heard a "smacking noise." D.V. then got out of his car and saw a woman falling to the ground and her "little dog" take off running. D.V. saw the woman get up quickly to grab the dog. The woman went inside the bar and the man got into his vehicle and left.
Law enforcement subsequently arrived on the scene. As an officer was coming into the bar, he observed P.K. coming out of the bathroom. She had been crying and was upset. P.K. was holding the side of her head and complaining about pain in her left eye. The officer could tell that P.K. had been drinking, but she did not appear to be "that intoxicated." The officer noticed slight swelling and redness around P.K.'s eye area and that her face was "flushed from being upset and crying." There was an abrasion on her right forearm. The officer observed that P.K.'s injuries appeared to be fresh. The officer also listened to appellant's voicemail, but was unable to discern much of the message except for "b---h" and "p—y." The officer could tell that the caller was a black male and described the tone of the message as "sly and demeaning."1 P.K. was not truthful to the officer about the nature of her romantic relationship with appellant and told him that they "were friends" because she was "embarrassed over the whole situation."
Another officer also responded and saw a vehicle matching the description of the one that appellant left in. She stopped the vehicle and identified L.W. as the driver and appellant as the passenger. Appellant was cooperative and told the officer that he and P.K. were in a relationship. Appellant also said that P.K. had a boyfriend and that she would probably deny that they were in a relationship.
Appellant was subsequently charged by amended complaint with two counts of felony domestic assault in violation of Minn. Stat § 609.2242, subd. 4 (2008) (). A no-contact order was also issued, directing appellant not to have contact with P.K.
Prior to trial, appellant called P.K. twice from jail. The first call was a conversation between appellant and P.K.2 The next day, appellant called a second time and left a voicemail on P.K.'s cell phone. In the voicemail, appellant told P.K. that he loved her. Appellant also told P.K.:
I start trial on the 8th, so all you have to do is not show up. You don't have to come to court and they gonna drop it, you know, and it's all on you, what you want, you know. You can not come to court and not let the people find you, you know.
Appellant also apologized. Appellant said that both he and P.K. made mistakes "that day"; appellant stated he took responsibility for his mistake and asked P.K. to takeresponsibility for her mistake. P.K. understood appellant's voicemail as apologizing for his conduct on October 11. P.K. reported the voicemail to law enforcement.
Prior to trial, appellant stipulated that he had two prior convictions that would qualify him for the felony enhancement. These convictions were for misdemeanor fifth-degree assault, in which appellant pleaded guilty to assaulting his prior girlfriend, and felony second-degree assault, in which appellant pleaded guilty to threatening another person with a dangerous weapon. See State v. Moen, 752 N.W.2d 532, 534-35 (Minn. App. 2008) (). The following exchange took place between appellant and the district court:
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