This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1944

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              Fredrick Dewayne Hines,
                                     Appellant.

                             Filed September 28, 2015
                 Affirmed in part, reversed in part, and remanded
                                   Reyes, Judge

                           Hennepin County District Court
                              File No. 27CR1320179

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Harten,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

REYES, Judge

       Appellant Fredrick Dewayne Hines challenges his convictions of first-degree

criminal sexual conduct and terroristic threats, arguing that (1) the district court abused

its discretion by admitting relationship evidence that was irrelevant and highly

prejudicial; (2) the district court plainly erred by allowing non-qualified witnesses to

testify as experts; (3) the district court erred by not sentencing the offenses in the order in

which they occurred; (4) his conviction was obtained through perjured testimony; (5) the

state did not comply with discovery requests and offered fabricated evidence; and (6) his

Sixth Amendment right to effective assistance of counsel was violated. We affirm in

part, but because we conclude that the district court erred in sentencing the criminal-

sexual-conduct offense before terroristic threats, we reverse in part and remand to the

district court for resentencing.

                                           FACTS

       Appellant and M.T. began dating after they met in 2012. Appellant moved into

M.T.’s townhome shortly thereafter, where she lived with her 26-year-old son, A.T.

According to M.T., appellant quickly became aggressive, jealous, and controlling. At

times, appellant asked M.T. to send pictures of herself while she was at work so that he

could verify where she was. Appellant also demanded M.T.’s bank statements so that he

could monitor her spending. M.T. was not allowed to make eye contact with or speak to

other men. M.T. claimed that their arguments turned physical in November 2012 and

that appellant would hit M.T. with his hand and other household objects and intimidate


                                               2
and threaten her. After an argument in December 2012, M.T. received visible bruises on

her chest where appellant had pushed her.

       M.T. first told A.T. about her problems with appellant in May 2013 after she

decided she wanted to get an order for protection (OFP) against appellant. However,

M.T. changed her mind and decided to give appellant another chance.

       On June 18, 2013, M.T. and appellant drove to Minneapolis. M.T. stayed in the

vehicle while appellant went into a building. When appellant returned, he was “sweaty

and agitated” and questioned whether someone had been to the car to talk to M.T. M.T.

told him no, but appellant insisted that someone had and demanded that M.T. tell him the

truth. Appellant hit her numerous times in the head, and he began asking M.T. whether

the person had raped her. M.T. stated that she eventually agreed with appellant’s

accusations so that he would stop hitting her. Appellant took M.T. to the hospital, drove

past a police squad car, and stopped his vehicle to get the officer’s attention. Appellant

told Officer Wilks that M.T. had been raped by a person named Norris, whom appellant

knew. Officer Wilks accompanied M.T. and appellant to the hospital.

       At the hospital, M.T. underwent a sexual-assault examination. The examining

nurse noted injuries on M.T.’s face and thigh, but did not find any internal injuries. M.T.

provided Officer Wilks with the same account of events that appellant provided earlier.

       On June 22, 2013, appellant demanded money from M.T. so that he could

purchase drugs and a gun. While driving to several ATMs to withdraw cash, appellant

took a sexual enhancement pill. During the early morning hours of June 23, 2013,

appellant kept waking M.T. to have sex with him. Appellant was taking drugs and


                                             3
became increasingly paranoid. M.T. refused appellant’s sexual advances, but he forced

oral sex and intercourse. M.T. stated that appellant was forceful and that the intercourse

hurt her because appellant had taken the sexual enhancement pill. M.T. tried to push

appellant off, told him that she did not want to have sex, and demanded that he stop.

M.T. was fearful of appellant because he had hit her before initiating intercourse and

threatened to get a gun. At some point, appellant stopped, and M.T. fell asleep.

       Appellant later woke M.T. and demanded that she give him money to purchase a

gun. She withdrew $300 from an ATM, gave it to appellant, and they went home. When

M.T. woke up again, appellant was not at the home. M.T. became fearful, so she told

A.T. to take her to the school where she teaches. There, M.T. locked herself in a

classroom and called Officer Wilks. M.T. admitted to Officer Wilks that the alleged rape

from June 18, 2013, had never occurred. Officer Wilks stayed on the line with M.T. and

advised her to call 911 on the classroom phone.

       M.T. told the 911 dispatcher that she had locked herself in a classroom because

she was afraid of getting hurt. M.T. also told the dispatcher that appellant was going to

purchase a gun and that he wanted “to kill [M.T.] and other people.” A deputy arrived at

the school and transferred M.T. to Officer Eric Scovil from the Minnetonka Police

Department. Officer Scovil observed that M.T. appeared “extremely upset,” had a “stoic,

expressionless look on her face,” was not displaying any outward emotions and appeared

to be in a state of “extreme fear and paranoia.”

       At the police station, Officer Scovil took a statement from M.T. M.T. had

difficulty providing Officer Scovil with a chronological order of events. M.T. told


                                             4
Officer Scovil about numerous events, including appellant’s jealous behavior, drug use,

and abusive behavior. M.T. received a voicemail from appellant while she was giving

her statement. The message was played to Officer Scovil, and he recorded it. At the

conclusion of the interview, when Officer Scovil was going over the facts of her

statement one more time, M.T. informed him about the sexual assault that occurred

earlier that day. M.T. was transported to Methodist Hospital for a sexual-assault and

physical examination.

       At the hospital, investigator Terri Swanson took M.T.’s statement about the

alleged sexual assault. M.T. told Investigator Swanson about the events that occurred on

June 22 and June 23. Investigator Swanson observed that M.T. was “very withdrawn,”

had difficulty making eye contact, appeared vulnerable, and had difficulty answering

questions. The sexual-assault examination revealed that M.T. had (1) “purplish” bruising

on the labia minora; (2) an abrasion on the posterior fourchette area; and (3) a bruise in

the cervical area. The nurse conducting the examination opined that her findings were

“consistent with forceful recent penetration.” Samples of appellant’s sperm were

recovered from M.T.’s perineal area, rectum, and vagina.

       Appellant was charged by a second-amended complaint with felony stalking, first-

degree criminal sexual conduct, third-degree criminal sexual conduct, terroristic threats,

domestic assault, and second-degree assault. Prior to trial, the district court granted

appellant’s motion to dismiss the stalking count for lack of probable cause and to sever

the second-degree-assault count. The matter proceeded to a four-day bench trial where

appellant briefly represented himself after he discharged his public defender.


                                              5
       On the second day of trial, appellant requested to have his public defender take

over the case. The request was granted. The state presented testimony from eighteen

witnesses. Appellant did not present any witnesses. Appellant was found guilty of the

charged offenses, and the district court sentenced appellant to 360 months in prison with

lifetime conditional release for the conviction of first-degree criminal sexual conduct and

to a consecutive term of one year and one day for the terroristic-threats conviction. This

appeal followed.

                                      DECISION

I.     Relationship evidence

       Appellant challenges the district court’s admission of evidence relating to his “bad

character and poor behavior during [the parties’] relationship,” arguing that it was

irrelevant and unfairly prejudicial evidence of his bad character. Specifically, appellant

contests eight findings of fact that the district court made in its order. Because appellant

did not object to this evidence at trial, we review for plain error.1 See Minn. R. Crim. P.

31.02; State v. Strommen, 

 (Minn. 2002). Under the plain-error test,

appellant must show (1) error; (2) that was plain; and (3) that affected appellant’s

“substantial rights.” See Strommen, 

. If all three prongs are satisfied,

a reviewing court decides whether to address the error to ensure the “fairness and the



1
  Before trial, the state moved to offer the challenged relationship evidence. The district
court partially granted the motion and determined that the state could introduce
relationship evidence, with the exception of a few specifically enumerated instances. The
findings of fact that appellant challenges on appeal were included in the state’s motion
and were ones that appellant did not challenge previously at the outset of trial.

                                              6
integrity of the judicial proceedings.” State v. Griller, 

 (Minn.

1998).

         Error

         “Evidence of another crime, wrong, or act is not admissible to prove the character

of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). But

such evidence may be admissible for another purpose, such as evidence of past abuse or

threats against the victim in order to show a strained relationship. State v. Bauer, 

 (Minn. 1999).

         In a prosecution for domestic abuse:

                 Evidence 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.

 (2012); see also State v. McCoy, 

 (Minn.

2004). Evidence admitted pursuant to section 634.20 is commonly known as

“relationship evidence.” State v. Matthews, 

 (Minn. 2010). Section

634.20 applies only in domestic-abuse cases, see State v. Barnslater, 

 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010), and “allows much more

latitude” than the exception to rule 404(b), State v. Word, 

 (Minn.

App. 2008).

         The admissibility of prior incidents of domestic abuse pursuant to section 634.20

depends on (1) whether the offered evidence is evidence of similar conduct and


                                                7
(2) whether the probative value of the evidence is substantially outweighed by the danger

of unfair prejudice. McCoy, 

; State v. Waino, 

(Minn. App. 2000). “‘Similar conduct’ includes, but is not limited to” domestic abuse,

violation of an order for protection, violation of a harassment restraining order, violation

of the harassment/stalking statute, or violation of the harassing/obscene-phone-call

statute. 

. Domestic abuse, as included in the “similar conduct”

definition, includes acts against a family or household member encompassing “physical

harm, bodily injury, or assault”; terroristic threats; or criminal sexual conduct. Id.; see

also Minn. Stat. § 510B.01, subd. 2 (2014).

       Appellant argues that the challenged evidence is not permissible as evidence under

section 634.20 because it does not include “similar conduct.” We are not persuaded.2 In

State v. McCurry, this court explained that the “similar conduct” language is not so

limiting and is “more likely meant to encompass general testimony about the relationship,

including conduct that does not rise to the level of crimes listed in the definition of

‘similar conduct.’” 

 (Minn. App. 2009), review denied (Minn. Oct.

28, 2009). In that case, the relationship evidence that was introduced included evidence

of “ongoing tension, arguments, or minor spats.” 

 see also, State v. Bauer, 

 (Minn. 1999) (allowing admission of history of strained relationship to

put the relationship into context).



2
 Appellant also argues that the evidence was inadmissible as Spreigl evidence. Because
we conclude that the evidence was admissible as relationship evidence pursuant to 

, we need not address appellant’s remaining argument.

                                              8
       The challenged evidence here constitutes “similar conduct.” Each incident

detailed the same type of control, forcefulness, and power that appellant exerted over

M.T., causing her to fear him. While appellant is correct in arguing that “asking one’s

girlfriend for a ride home because the car is out of gas . . . is not similar to sexually

assaulting or threatening to kill someone,” this argument mischaracterizes the testimony

because the challenged testimony was not limited to that conduct. M.T. testified that the

reason why she would come to assist appellant when his car ran out of gas was because

she was afraid of what would happen if she did not respond. Appellant would threaten to

destroy her car. Evidence relating to appellant’s jealousy, accusations that she was

cheating on him, and demands for money similarly mirror the behavior underlying the

charged offenses. Thus, the testimony offered with respect to the parties’ relationship

was admissible under 

.

       Appellant argues that even if the evidence was relevant, it should have been

excluded because its probative value was outweighed by its prejudicial effect. “Evidence

that helps to establish the relationship between the victim and the defendant or which

places the event in context bolsters its probative value.” State v. Kennedy, 

 (Minn. 1998). Moreover, we have held that a district court does not abuse its

discretion by allowing relationship evidence that, if believed, can assist the factfinder in

assessing the parties’ credibility. McCoy, 

. Here, the evidence clearly

helps to establish the relationship between appellant and M.T. and places the alleged




                                               9
events into context. For these reasons, we conclude that the district court did not abuse

its discretion in admitting the relationship evidence.3

II.    Expert testimony

       Appellant next argues that the district court erred when it allowed Officer Scoval

and Investigator Swanson to testify as experts on sexual assault and domestic abuse. The

admission or exclusion of expert testimony is within the broad discretion of the district

court, and rulings regarding such testimony are reversed only when the district court

clearly abused its discretion. State v. Ritt, 

 (Minn. 1999).

       “If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may testify . . . in the form of an

opinion or otherwise.” Minn. R. Evid. 702. “The qualifications of the expert need not

stem from formal training, and may include any knowledge, skill, or experience that

would provide the background necessary for a meaningful opinion on the subject.”

Minn. R. Evid. 702 1977 comm. cmt. Accordingly, the district court must decide

“whether the expert is qualified to express [an] opinion, and whether the opinion is

helpful because it will assist the trier of fact.” State v. Sontoya, 

(Minn. 2010) (quotation omitted). Minnesota appellate courts permit police officers to

provide expert testimony “concerning subjects that fall within the ambit of their expertise


3
 Because we conclude that there was no error, we need not analyze whether the error
was plain or whether appellant’s substantial rights were affected. See Montanaro v.
State, 

 (Minn. 2011) (“[I]f we find that any one of the requirements
[of the plain-error test] is not satisfied, we need not address any of the others.”).

                                              10
in law enforcement.” State v. Carillo, 

 (Minn. App. 2001), review

denied (Minn. June 19, 2001). Because appellant did not object to either testimony at

trial, we review for plain error. See Sontoya, 

.

       A.     Officer Scoval

       Appellant argues that Officer Scoval was not qualified because he was a patrol

officer and did not have any special training on domestic- or sexual-abuse victims.

Officer Scoval testified that, in his experience, M.T.’s reaction when she was giving her

statement was common for domestic-assault victims. Officer Scoval testified that

“frequently victims of domestic violence and domestic assault will not report every single

incident or every single time that they’re a victim of violence.” The district court found

that Officer Scoval was credible and that he has responded to hundreds of calls of

assaults and domestic assaults. This is supported by the record. The testimony was

helpful to the trier of fact in understanding why M.T. did not report the sexual assault

until the end of the interview and provided a possible explanation as to why M.T. had

difficulty providing a chronological order of events.

       B.     Investigator Swanson

       Similarly, appellant argues that Investigator Swanson was not qualified to testify

because she “had never participated in or reviewed any peer-reviewed research or studies

about documented victims of domestic or sexual assault.” Investigator Swanson testified

that she had interviewed around 100 sexual-assault victims and that, in her experience,

when she interviewed victims “initially after the occurrence it’s very difficult for [them]

to keep on track.” Investigator Swanson also testified that victims are often withdrawn


                                             11
and do not share a lot of details, especially if the assault or abuse is committed by

someone with whom the victim was familiar for a long time. This testimony was helpful

to the factfinder in understanding M.T.’s behavior and inability to stay focused during

questioning.

       A district court is afforded broad discretion in its admission or exclusion of expert

testimony. Because both Officer Scoval and Investigator Swanson were qualified to

testify as experts, the district court did not err in admitting their testimony concerning

sexual assault and domestic abuse victims.

       Even if it was error to admit the expert opinion, appellant did not demonstrate that

the purported error affected his substantial rights. In addition to the testimony of Officer

Scoval and Investigator Swanson, the district court made 90 additional findings to

support the convictions. Moreover, the district court determined that M.T.’s testimony

regarding the assault was credible and it was corroborated by the consistent statements

M.T. provided to the nurse who conducted the sexual-assault examination. For these

reasons, appellant failed to meet his heavy burden of demonstrating that his rights were

substantially affected. See Griller, 

.

III.   Sentencing

       Appellant claims that the district court erred by not sentencing the offenses in the

order in which they occurred. The state agrees with appellant’s claim.

       The Minnesota Sentencing Guidelines require that “[w]hen the [district] court

imposes consecutive sentences, the court must sentence the offenses in the order in which




                                             12
they occurred.” Minn. Sent. Guidelines 2.F (2015); see State v. Williams, 

 (Minn. 2009).

       Here, the district court first sentenced appellant to 360 months in prison for his

first-degree criminal-sexual-conduct conviction. Next, it imposed a consecutive one-

year-and-one-day sentence for his terroristic-threats conviction, for a total of 372 months.

However, the record shows—and the district court found—that the terroristic threats

occurred before appellant committed the sexual assault. It is clear that the court should

have sentenced the terroristic threats conviction first. Accordingly, we reverse

appellant’s sentence and remand to the district court for resentencing.

IV.    Appellant’s supplemental arguments

       Appellant raises three additional arguments in his supplemental brief, alleging that

(1) his conviction was obtained through perjured testimony and thus he was denied the

right to a fair trial; (2) the state failed to comply with discovery requests when it

suppressed and offered fabricated evidence; and (3) his right to effective assistance of

counsel was denied in violation of the Sixth Amendment.4 We address each in turn.

       A.     Perjured testimony

       Appellant alleges that the state used perjured trial testimony. Specifically,

appellant asserts that M.T.’s testimony that she did not consent to sexual intercourse with

appellant on June 23 was false and that the state knew that this testimony was false.

4
 In his supplemental brief, appellant argues that he received ineffective assistance of
counsel in violation of the Sixth Amendment, and that he was prejudiced by his attorney
because of his status as a registered sex offender in violation of his Fourteenth
Amendment right to equal protection. Because both are essentially a claim of ineffective
assistance of counsel, we address them together below. See infra Part IV.C.

                                              13
Appellant relies on a four-page, typed document entitled “[M.T.’s] interview notes” that

appears to be notes that were taken during an interview on December 3, 2013. This

document is not in the record, and it is unclear where the document came from or who

was the author. While appellant alleges that this was from a meeting that M.T. had with

prosecuting attorneys, there is nothing in the record to support appellant’s claim. Had

appellant sought to introduce this document into evidence at trial, he may have been able

to authenticate the document and use it to impeach M.T.’s testimony. Appellant chose

not to do so at trial.5 Because appellant has not provided any facts to support his

argument, nor can we find any in the record, this argument is forfeited. See State v.

Wilson, 

 (Minn. App. 1999), review denied (Minn. Aug. 18, 1999)

(“An assignment of error based on ‘mere assertion,’ not supported by argument or

authority and not raised in the district court, cannot be considered on appeal.”).

       B.     Suppressed and fabricated evidence

       Appellant also asserts that the state failed to comply with his discovery requests

when he was not provided with a copy of a recording of the voicemail that he left M.T.

while she was giving her statement to Officer Scovil. The record does not support this

assertion.




5
  On the first day of trial, the district court addressed appellant’s outstanding motions and
granted appellant’s motion (1) to attack M.T.’s credibility and to impeach her testimony
and (2) to impeach testimony by extrinsic evidence with the witness’s prior inconsistent
statement.

                                             14
       On June 26, 2013, appellant served and filed with the court a general, “demand for

preservation and disclosure of evidence.” 6 On the first day of trial, the district court

indicated that it would address all of appellant’s “outstanding motions” and, in relevant

part, granted appellant’s motion “to obtain and enter into evidence the recording of the

Minnetonka Police Department that was taken on June 23, 2013.” Thus, it appears that

appellant received a copy of the recording prior to the date of trial and there was no

discovery violation by the state.7

       Appellant also asserts that the transcript of the recording was fabricated.

However, the actual recording was played at trial and a review of the recording shows

that it was consistent with the transcript that was presented at trial and did not contain any

prejudicial information.8 Moreover, while the district court included a finding that M.T.

received a voicemail and calls from appellant while she was providing a statement to

Officer Scoval, there were no findings made with respect to the content of the recording.

Because appellant does not provide any relevant facts to support his allegation, and

because appellant was not prejudiced by the variation in the transcripts of the recording,

this argument is forfeited. Wilson, 

.




6
  Additionally, appellant filed a motion with the court to turn over “all evidence.” That
motion was denied for lack of specificity.
7
  Moreover, at trial, a recording of the voicemail and a transcript of the recording was
offered into evidence and appellant indicated that he had no objections.
8
  In appellant’s addendum, he attached two different versions of the transcript from the
same recording that include slight variations. It is not clear what caused the variations or
why appellant had different versions of the transcript. The transcript that was presented
at trial was the complete version that did not include any omissions.

                                              15
       C.     Ineffective assistance of counsel

       Appellant contends that he received ineffective assistance of counsel because his

court-appointed public defender (1) did not like appellant because he was a registered sex

offender; (2) knowingly allowed M.T. to provide testimony to the district court that was

untruthful; and (3) deliberately did not provide appellant with a copy of the voicemail

recording and transcript. Appellant also argues that he was denied effective assistance of

counsel when the district court did not appoint different counsel to represent appellant.

       “We review the denial of postconviction relief based on a claim of ineffective

assistance of counsel de novo because such a claim involves a mixed question of law and

fact.” Hawes v. State, 

 (Minn. 2013). A criminal defendant has the

constitutional right to effective assistance of counsel. State v. Patterson, 

 (Minn. 2012). However, the defendant bears the burden of proof when bringing

an ineffective-assistance-of-counsel claim. State v. Miller, 

 (Minn.

2003). To meet this burden, the defendant must “demonstrate that counsel’s

representation 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.”

State v. Lahue, 

 (Minn. 1998); Strickland v. Washington, 

, 

 (1984). Ineffective-assistance-of-counsel claims

are typically reviewed under the Strickland standard.

       Appellant has not demonstrated that counsel’s conduct “fell below an objective

standard of reasonableness”—the first prong under Strickland. 

, 

. Appellant’s current allegation—that counsel’s representation was affected


                                            16
because of appellant’s status as a registered sex offender—is the same allegation that

appellant originally asserted to the district court. The district court granted appellant’s

request to discharge counsel as his legal counsel based on that allegation. Appellant then,

halfway through trial, requested that the district court reappoint the same attorney as his

counsel. Appellant indicated that he wanted the same attorney to represent him again,

that he “would rather [counsel] do the job,” and that he was comfortable with counsel’s

representation despite their earlier differences. After hearing from appellant and counsel,

the district court granted appellant’s request and appointed the same attorney to represent

appellant. Appellant cannot now complain of the same allegations, after he previously

indicated that those concerns were no longer present, to demonstrate that counsel’s

conduct “fell below an objective standard of reasonableness.”

       Similarly, as discussed above, appellant’s allegations that counsel knowingly

allowed M.T. to provide false testimony to the court and that he deliberately withheld

production of evidence to appellant is not supported by the record and is insufficient to

meet the first prong in Strickland.

       Finally, appellant’s argument that he was denied effective assistance of counsel

because the district court did not appoint him with different legal counsel is without

merit. Prior to granting appellant’s request to discharge counsel and proceed pro se, the

district court advised appellant that he would not be appointed another public defender

and that he would either have to seek private counsel or represent himself. Appellant

indicated that he understood this. Prior to trial, and in at least two other hearings, the

district court again explained to appellant the consequences of his waiver of counsel.


                                              17
Nonetheless, appellant indicated that he wanted to discharge his attorney. Appellant

knowingly, intelligently, and voluntarily waived his right to counsel. Appellant has not

provided any authority to support his argument that these actions taken by the district

court were erroneous. Moreover, the district court gave appellant an opportunity to

relinquish his right of self-representation and allow the same attorney to take over the

case in the middle of trial. See State v. Richards, 

 (Minn. 1996)

(explaining that a defendant does not have an absolute right to relinquish his self-

representation and thereby allow standby counsel to take over the case). Appellant has

not met his burden of proving that his constitutional right to effective assistance of

counsel has been violated.

       Affirmed in part, reversed in part, and remanded.




                                             18