This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-1147

State of Minnesota,
Respondent,

vs.

Jesse Hughes Curry,
Appellant.

Filed February 1, 2000
Affirmed
Amundson, Judge

Ramsey County District Court
File No. K932247

Mike Hatch, Attorney General, 525 Park Street, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Glenn P. Binder, Philip G. Villaume & Associates, 5200 Wilson Road, Suite 150, Edina, MN 55424 (for appellant)

Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant appeals from order denying postconviction petition, challenging conviction and sentence for first-degree criminal sexual conduct, claiming that (1) the district court erred in admitting Spreigl evidence, (2) the court erred in failing to dismiss two jurors for bias, (3) defense counsel provided ineffective assistance, and (4) sentence under repeat sex offender statute was improper. We affirm.

FACTS

Appellant Jesse Curry was convicted by a jury of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(f)(i) (1994) (forced sexual penetration). While hosting a party on August 28, 1993, Curry entered a room where a female guest who had been drinking was sleeping. He groped her, verbally abused her, and then, with an accomplice, confined her to the room, restrained her, hit her in the face giving her a bloody nose, and had forced vaginal intercourse with her. During the assault, Curry’s accomplice covered the victim’s mouth to muffle her screams.

After the assault, the police arrested Curry at home. Curry told the police that "[w]e didn’t rape her," but that they simply "kicked [her] out." Little physical evidence could be gathered because the crime scene was contaminated by the presence of other people and the results of scientific tests were inconclusive. Neither Curry nor his accomplice testified at trial and although other witnesses corroborated the victim’s testimony about having a bloody nose, no one else witnessed the assault.

During trial, the court admitted Spreigl evidence of facts underlying a prior 1988 sexual assault to allow the state an opportunity to show (1) that the victim’s testimony was not fabricated and (2) that the modus operandi was similar. The parties stipulated that in 1988, Curry had forced sexual intercourse with a woman he met at a party after she had been drinking and smoking marijuana. After offering her a ride home, Curry took her to an isolated location, slapped and punched her in the face causing her to bleed, dragged her by the hair from the car, and vaginally penetrated her.

In a second motion for postconviction relief, Curry argued that the Spreigl evidence was wrongly admitted, that two jurors should have been dismissed, that he received ineffective assistance of counsel, and that the court improperly imposed an upward durational departure in sentencing him. Curry now asks that we overturn his conviction and grant a new trial or, in the alternative, reduce his sentence.

D E C I S I O N

In reviewing a postconviction proceeding, the task of the appellate court is "only to determine whether there is sufficient evidence to sustain the postconviction court’s findings," Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, the decision of the postconviction court will not be disturbed. Id.

I.

Evidence of other crimes or bad acts is characterized as "Spreigl evidence." State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent an abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). While Spreigl "evidence may not be used to show the defendant acted in conformity with bad character," it may be admissible to show identity, a common plan or scheme and to refute allegations of fabrication if its probative value substantially outweighs the danger of unfair prejudice. Minn. R. Evid. 404(b), 403; State v. Profit, 591 N.W.2d 451, 461 (Minn. 1999). Probative value is determined by considering the need for the evidence and the closeness in time, place and modus operandi of the prior crime to the charged crime. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999). Absolute similarity is not necessary, but the greater the similarity, the greater the relevance. State v. Johnson, 568 N.W.2d 426, 434 (Minn. 1997).

Curry claims that highly prejudicial evidence of a 1988 sexual assault was improperly admitted because the circumstances of the prior offense were "significantly dissimilar" to the charged offense. The dissimilarities he highlights are that in the present case Curry was in his own home and the victim was never transported to another location. Both scenarios, however, involved alcohol consumption and Curry met both victims at parties. Furthermore, both of the victims were isolated from other partygoers, both were verbally threatened and abused, both were hit in the face, and both were forced to have vaginal intercourse. Because we conclude that the similarities in the modus operandi are substantial, we reject Curry’s claim. Therefore, the Spreigl evidence was sufficiently similar to the charged offense that its probative value was heightened. See State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998) (not necessary for evidence to be identical, but only sufficiently or substantially similar).

Additionally, the probative value of the evidence was also heightened because of the lack of physical evidence, because the scientific tests were inconclusive, and because the only witness that testified to the assault was the victim. Curry based his defense upon these weaknesses in the state’s case. Correspondingly, the need for other evidence tending to show a similar modus operandi increased the probative value of the 1988 offense even more. See State v. Sebasky, 547 N.W.2d 93, 98 (Minn. App. 1996) (evidence of prior sexual offenses given greater probative value in subsequent sex offense trial because subsequent case rested solely on testimony of two teenage complainants), review denied (Minn. Jun. 19, 1996). While evidence of a prior sexual assault undoubtedly has some prejudicial effect, the prejudice here was not unfair and was outweighed by the probative value of the evidence in this particular case. The postconviction court properly dismissed Curry’s claim that the evidence was erroneously admitted.

II.

Curry argues that two jurors should have been dismissed for bias. To succeed on appeal, Curry’s allegation of juror bias must satisfy a three-part test: (1) the challenged juror must be subject to challenge for cause; (2) actual prejudice must result from a failure to dismiss; and (3) the defendant must make an appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Curry charges that one juror was unable to be impartial because he was sympathetic toward victims of sexual abuse. The second juror he alleges was biased encountered the victim and her mother in a public restroom in the courthouse where the juror and the victim conversed briefly. Neither the victim nor the juror knew that they were involved in the same trial but the victim recognized the juror as a teacher from a different school than the one the victim attended.

We reject Curry’s claims as to both jurors. First, there is no record of the voir dire proceedings and it is unclear from the record whether Curry had used all of his peremptory strikes. See State v. Logan, 535 N.W.2d 320, 324 (Minn. 1995) (indicating that exhaustion of peremptory challenges factors into determination of whether charge of bias on appeal will succeed). Therefore, we conclude that Curry has not provided an adequate record for a proper determination. See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (review may be denied if record insufficient); Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (appellant bears burden of producing adequate record). As for the second juror, Curry failed to make a proper objection to the juror as required under Stufflebean. Stufflebean, 329 N.W.2d at 317. Therefore, we conclude that the evidence was sufficient for the postconviction court to determine that Curry’s claim of juror bias should fail and we affirm the district court’s decision.

III.

Curry claims that he was denied the effective assistance of counsel because counsel failed to call certain witnesses and to "effectively advocate" for Curry. To establish that Curry received ineffective assistance of counsel, he must affirmatively show that his counsel’s representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Curry contends that counsel should have called other witnesses to corroborate Curry’s version of the events, should have subpoenaed an expert to discuss the significance of the inconclusive scientific tests, and should have called character witnesses on Curry’s behalf. Because "[w]hich witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel," defense counsel’s performance did not fall below an objective standard of reasonableness. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). These strategy decisions by defense counsel were reasonable under his theory of the case; i.e., the evidence was insufficient to corroborate the victim’s claim of forced sexual assault. The two witnesses that the defense counsel called were the investigating police officers who were called to establish the lack of physical evidence of the assault. The significance of inconclusive test results is self-evident; no expert need have been called. Furthermore, no one except the victim and the perpetrators could testify about what happened in the bedroom; therefore, any additional evidence would have either been cumulative or merely unhelpful. Finally, counsel’s failure to call any character witnesses was not unreasonable given that the defendant had two prior robbery convictions, two previous convictions for forced sexual assault, and was wearing a home detention bracelet at the time of the offense. Therefore, we conclude that the postconviction court did not abuse its discretion in denying relief and we affirm the district court’s decision that Curry received effective assistance of counsel.

IV.

Curry argues that his 30-year sentence constituted a departure from the 158-month sentence that was not supported by substantial and compelling circumstances. "[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted). Curry, however, was sentenced under the subsequent offender statute now codified at Minn. Stat. § 609.109, subd. 4 (1998) (previously Minn. Stat. § 609.346, subd. 2b (1996)). The statute states:

(a) The court shall commit a person to the commissioner of corrections for not less than 30 years * * * if:
(1) the person is convicted under section [606.342, subd. 1(f)]; and
(2) the court determines on the record at the time of sentencing that:

(i) the crime involved an aggravating factor that would provide grounds for an upward departure under the sentencing guidelines other than the aggravating factor applicable to repeat criminal sexual conduct convictions; and
(ii) the person has a previous [first-, second-, or third-degree] sex offense conviction.

Minn. Stat. § 609.109, subd. 4 (emphasis added.) When a person has been convicted of a crime that carries a mandatory sentence of one year and one day ore more, the presumptive sentence "should be the mandatory minimum sentence according to statute or the duration of prison sentence provided in the [guidelines], whichever is longer." Minn. Sent. Guidelines II.E. Therefore, because a mandatory minimum statute applied, which called for a longer sentence than the guidelines grid (360 months under the statute, 158 months under the grid), the mandatory statute became the presumptive sentence. Thus, the sentence was not a departure and there is no need to show substantial and compelling aggravating circumstances underlying his offense. The statute applies when there has been any aggravating factor warranting any departure and when the other conditions have been met. Minn. Stat. § 609.109, subd. 4. It is undisputed that the other conditions are met and Curry concedes that at least one of the aggravating factors (the age and vulnerability of the victim) for departure the court relied upon is a valid ground. Although a 30-year prison sentence is greater than twice the presumptive sentence under the guidelines and although greater-than-double departures are allowed only under the most extreme circumstances, the legislature has mandated that under certain circumstances, sentencing courts may invoke statutory provisions that vary from the guidelines. The repeat sex offender statute, Minn. Stat. § 609.109, subd. 4, sets forth one of those circumstances. Here, the conditions under the statute were satisfied and the statute is clear that the court "shall" impose a 30-year sentence. Therefore, we conclude that the evidence was sufficient for the postconviction court to uphold the sentence and we affirm the denial of relief.

Affirmed.