Opinion
No. C8-99-1507.
Filed October 9, 2001.
Appeal from the District Court, Hennepin County, File No. 99034071.
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, and Peter A. MacMillan, (for respondent)
Deborah K. Ellis, (for appellant)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenged his convictions of domestic assault, fifth-degree assault, and disorderly conduct, arguing that the district court erred in instructing the jury that appellant had a duty to avoid the danger, even in his own home. We reversed and remanded. State v. Glowacki, 615 N.W.2d 843, 845 (Minn.App. 2000). Respondent appealed to the Minnesota Supreme Court, which affirmed our decision that the jury instruction was erroneous and that there is no duty to retreat from one's own home, but reinstated the jury's verdict, concluding that the error was harmless. State v. Glowacki, 630 N.W.2d 392, 403 (Minn. 2001). The supreme court has now remanded the case to this court to determine the issues we did not address in our original opinion because the issue of the erroneous jury instruction was dispositive. Id. We affirm the conviction.
FACTS
The relevant facts are set forth in the supreme court's opinion and our previous opinion. State v. Glowacki, 630 N.W.2d 392 (Minn. 2001); State v. Glowacki, 615 N.W.2d 843 (2000).
DECISION
Three issues remain to be decided. Glowacki contends that (1) the jury's guilty verdict for domestic assault should not stand because Priscilla Andrews did not fit the statutory definition of "family or household member," and the self-defense claim had not been rebutted; (2) Glowacki was improperly restricted in his cross-examination of Andrews; and (3) the district court abused its discretion when it denied Glowacki work release privileges.
First, Glowacki argues that the state failed to prove that the victim was a "family or household member" under Minn. Stat. § 609.2242 (1998). A family or household member includes, inter alia, "persons who are presently residing together or have resided together in the past" and "persons involved in a significant romantic or sexual relationship." Minn. Stat. § 518B.01, subd. 2(4), (7) (1998).
Glowacki contends that the evidence showed that by the date of the assault, he and Andrews were no longer involved in a romantic or sexual relationship and that five days before the offense, Andrews knew that the relationship was over and had begun to obtain boxes to ship her belongings back to Alabama. We previously determined, however, that Glowacki and Andrews were co-residents at the time of the offense. State v. Glowacki, 615 N.W.2d 843, 845 (Minn.App. 2000), rev'd on other grounds 630 N.W.2d 392 (Minn. 2001). As co-residents they clearly fall within the definition of household members contained in Minn. Stat. § 518B.01, subd. 2(4).
Our conclusion that Glowacki and Andrews were co-residents is supported by the definition of "residence" under Minnesota law as an abode, dwelling, habitation, or place where one actually lives. Buckheim v. Buckheim, 231 Minn. 333, 337, 43 N.W.2d 113, 115 (1950). A residence may be acquired in a short period of time. Id. Shortly before the assault, Andrews had quit her job in Alabama, packed up her clothes, and moved into a residence with Glowacki, intending to return only briefly to Alabama. She resided with Glowacki at that point. Andrews did not permanently move out before the date of the assault, and the two continued to sleep at their shared residence. Further, even had she moved out before the assault, Andrews would still be protected under the plain language of the Domestic Assault Act because she had previously resided with Glowacki, albeit for a short time.
Glowacki also asserts that the state did not rebut his claim of self-defense by proving that he was the aggressor, that the evidence showed that he acted in honest fear of Andrews, and that he had reasonable grounds for this belief. Glowacki bore the burden of going forward with enough evidence to support his self-defense claim. State v. Columbus, 258 N.W.2d 122, 123 (Minn. 1977). In this regard, he was required to show (1) an absence of aggression or provocation on his part; (2) an actual and honest belief that he was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger; and (3) reasonable grounds for that belief. State v. McKissic, 415 N.W.2d 341, 344 (Minn.App. 1987).
Here, according to Andrew's testimony, Glowacki became the aggressor when he began shouting at her for almost spilling her glass of wine. He then followed her into the basement family room, where he struck her in the head hard enough to knock her to the floor, grabbed her around the neck, and repeatedly kicked her. Andrews did not attempt to strike Glowacki at any time, but only attempted to escape. We review the record in a light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Further, we 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). Therefore, we conclude that the jury reasonably could have concluded that Glowacki was not engaged in self-defense.
Glowacki next argues that the district court erred when it sustained the state's objection to his question to Andrews about a civil lawsuit she was contemplating against Glowacki. The scope of cross-examination is left largely to the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998). In State v. Whaley, 389 N.W.2d 919, 925 (Minn.App. 1986) we required a party, who sought to question a victim of an assault about the victim's intent to bring a civil action against the assailant, to make an offer of proof when the line of questioning was objected to so that the district court could weigh the probative value of the questioning against its prejudicial impact. Here, no offer of proof was made after the state's objection and thus the district court had no basis to determine whether the evidence was more prejudicial than probative. See id. Under those circumstances, we cannot say that the district court abused its discretion in disallowing this line of questioning.
Finally, Glowacki contends that the district court erred when it denied him work release privileges as part of his sentence. We review a sentence for abuse of discretion. State v. Ford, 539 N.W.2d 214 (Minn. 1995). But when there is no actual controversy before this court for which we can render any effective relief, we dismiss the appeal. State v. Tahash, 268 Minn. 571, 128 N.W.2d 708 (1964). Glowacki has already served the sentence for which he requested work release privileges and it is impossible for us to grant him any relief. The issue is moot.