State of Minnesota, Respondent, vs. Merle Elmer Wellnitz, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-95-2611

State of Minnesota,
Respondent,

vs.

Merle Elmer Wellnitz,
Appellant.

Filed August 27, 1996
Affirmed as modified
Amundson, Judge

Big Stone County District Court
File No. K89524

Hubert H. Humphrey, III, Attorney General, James P. Spencer, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

William J. Watson, Big Stone County Attorney, 37 NW 2nd Street, Ortonville, MN 56278

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge
Merle Elmer Wellnitz challenges his judgment of conviction for second-degree criminal sexual conduct, arguing that the trial court abused its discretion in admitting character evidence and that the court erred in adjudicating convictions on two counts. We affirm as modified, vacating the conviction on Count II.
FACTS

Wellnitz was charged with two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(g), (h)(iii) (1994), for sexual contact with 14-year-old M.M., the daughter of the woman with whom he was living. This abuse allegedly occurred between the winter of 1993, when M.M. was 13, and February 1995. Wellnitz was also charged with two counts of misdemeanor assault and one count of gross misdemeanor malicious punishment of a child for physically abusing or striking M.M.'s sister (whose initials are also M.M.) and Wellnitz's daughter, Heaven Wellnitz.
Immediately before trial, Wellnitz pleaded guilty to the two misdemeanor assault charges and one count of gross misdemeanor malicious punishment of a child. At trial, M.M.'s mother testified that she had done nothing about her daughter's report of sexual abuse because she was afraid of Wellnitz. She testified that Wellnitz had hit her in the past and she was afraid of what he might do to her or to the girls. Wellnitz testified that he had never improperly touched M.M. He admitted, however, that he had physically abused the girls.
Wellnitz was found guilty of both counts of second-degree criminal sexual conduct and sentenced to 48 months. Although the court sentenced Wellnitz only on Count I, it formally adjudicated him guilty on both counts. This appeal followed.
D E C I S I O N
I. Evidence of Prior Assaults

Wellnitz argues that the trial court abused its discretion in admitting evidence of his physical assaults on Heaven Wellnitz and M.M.'s sister, acts that he admitted in pleading guilty to misdemeanor assault and gross misdemeanor malicious punishment of a child. A reviewing court will reverse an evidentiary ruling only if the trial court has abused its discretion. State v. Starkey, 516 N.W.2d 918, 925 (Minn. 1994).
As the state points out, there was no stipulation that the two assaults and the malicious punishment incident would not be disclosed at trial. Although Wellnitz pleaded guilty to those offenses, waiving his right to a jury verdict on them, there was no agreement stated on the record, or even alluded to, excluding them from evidence. The trial court gave counsel several opportunities to state any agreement that accompanied the pleas. Defense counsel said nothing, and Wellnitz on appeal points to no indication that there was such an agreement.
The state presented the evidence of physical assaults to show why M.M.'s mother, and the girls in the house, feared Wellnitz and therefore delayed reporting the sexual abuse. The trial court carefully restricted this evidence to assaults committed within this household, excluding evidence of a domestic assault committed before Wellnitz moved into the house. The evidence was relevant to explain the lengthy delay in reporting the sexual abuse.
At trial, defense counsel objected only on grounds of relevancy. Even if we consider the physical abuse evidence as equivalent to Spreigl evidence, such evidence may be admitted to illuminate the relationship between the defendant and the victim. See State v. Thompson, 520 N.W.2d 468, 471 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). The state did not charge Wellnitz with physically abusing M.M., but she lived in the same general climate of fear in the household caused in part by Wellnitz's assaults on her sister and on Wellnitz's own daughter. This evidence illuminates Wellnitz's relationship with M.M. Moreover, Wellnitz himself testified that he had physically assaulted M.M., testimony that was offered to show why he wrote her a letter of apology. That testimony further connects the physical abuse evidence to the relationship between Wellnitz and M.M. The trial court did not abuse its discretion in admitting the physical abuse evidence.
Even if the trial court had erred in admitting this evidence, the error would be harmless. M.M's testimony was consistent with her out-of-court statements to others, including a statement to her mother shortly after the abuse began. There was testimony that others had heard M.M.'s protests against the acts committed in her bedroom. Wellnitz admitted taking M.M. alone with him in his pickup truck. M.M.'s testimony was strongly corroborated by an incident in which her mother found Wellnitz's pocket screwdriver in M.M.'s bed and by Wellnitz's own letter of apology to her. Given this evidence, there is not a reasonable possibility that a reasonable jury would acquit Wellnitz if the past incidents of physical violence were excluded from evidence. See State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).
II. Adjudication of Multiple Convictions

Wellnitz argues, and the state concedes, that the trial court erred in adjudicating convictions on both counts of second-degree criminal sexual conduct.
A defendant may not be formally adjudicated of multiple convictions for violations of the same statute based on the same conduct. See State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989) (criminal sexual conduct). The trial court sentenced Wellnitz on Count I, the count charging multiple incidents over an extended period of time. See Minn. Stat. § 609.343, subd. 1(h)(iii). The state did not attempt to show that Count II involved different conduct from that charged in Count I. Accordingly, we vacate the conviction on Count II.
Affirmed as modified.