Gulbertson v. State, Minn.S.Ct., 3/5/2014. A jury convicted Mr. Gulbertson of first degree murder while committing domestic abuse and with a past pattern of abuse. In this post conviction, first appeal, he complained that the evidence was insufficient to establish a past pattern of domestic abuse, that the jury instructions on past pattern had been incorrect, and that the court had impermissibly admitted evidence of past orders for protection. Justice Anderson, for a unanimous court, affirms the denial of the post conviction petition, and thus upholds the conviction and sentence.
On the sufficiency argument, Mr. Gulbertson wanted the court to adopt a zero sum approach to “mutual violence” between he and the victim: bad conduct by one party cancels bad conduct by the other party. The court isn’t buying into that, falling back on the absence in the statute for such an exception. Otherwise, the state sufficiently established the “past pattern”.
The court viewed the instructions “as a whole” and found them to be adequate. He had complained that the trial court should have restate the definition of “domestic abuse” in its instruction on what a “past pattern of domestic abuse” was. The trial court had provided such a definition elsewhere in the instructions.
On the admission of the OFP evidence – including the affidavits – to which he made no objection Mr. Gulbertson complained on appeal that he had not had an adequate opportunity to cross examine the victim and that he had not been represented at the OFP proceedings (indeed, he wasn’t there). Justice Anderson noted that most of the OFP evidence had been admitted through other sources so the OFP evidence was cumulative at worst and did not affect Mr. Gulbertson’s substantial rights.