This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








State of Minnesota,





Michael Robert Riccio,




Filed March 7, 2000


Peterson, Judge

Concurring specially, Randall, Judge



 St. Louis County District Court

File No. K498600743



Mike Hatch, Attorney General, Margaret H. Chutich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN  55802 (for respondent)


Michael F. Cromett, Assistant State Public Defender, 2499 Rice Street, Suite 260, Roseville, MN  55113-3724 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Davies, Judge.  

U N P U B L I S H E D   O P I N I O N



            Appellant Michael Robert Riccio was convicted of one count of first-degree burglary and one count of trespassing.  Riccio argues that his conviction and sentence for first-degree burglary must be vacated and the case remanded for sentencing on the trespass conviction.  We affirm.                                                             


            During the jury trial, 13-year-old M.J. testified that on August 17, 1998, at about 3:30 p.m., she and her mother returned home.  She ran into the house before her mother and saw a man, later identified as Riccio, on the stairs leading up to the bedrooms.  She further testified that Riccio came down the stairs and told her that he was in her house because he needed to tell her that “Mark’s daughter says hi and is in town.”  M.J. stated that she did not have “a clue” as to whom Riccio was talking about, but she eventually recognized Riccio as the man who had once given her and her friend B.G. a ride home at the request of B.G.’s father, Mark Geving.

            M.J.’s mother, B.C., testified that when she entered the house, she saw a man standing next to her daughter and asked him what he was doing in her house.  Riccio replied that his name was “Mike” and that he was there to deliver a message from Mark Geving’s daughter.  B.C. testified that after a few minutes, Riccio went out the front door and drove away in a van.

            Mark Geving testified that he had known Riccio for about thirty years and considered him a very close friend.  Geving testified that Riccio knew M.J. because his daughter had brought her over to his house when Riccio was there.  Geving confirmed that he once asked Riccio to give M.J. and his daughter a ride home.  Geving also testified that a few weeks before entering M.J.’s house, Riccio had commented while watching M.J. from a garage window that he would “[l]ike to stick it up into her guts.”  Defense counsel impeached Geving with a 1996 conviction for possession of cocaine.

            Johnson Carter testified that he had been a drinking partner of Riccio’s for a year and that Riccio talked about sex just about every time they got together.  Carter testified that Riccio had offered him $2,000 to find young girls for him to have sex with and that Riccio had told him that he wanted an eight-year-old girl to “bust a gut.”  Defense counsel impeached Carter using a 1993 conviction for felony robbery.  The trial court denied a defense attempt to impeach Carter using convictions for kidnapping and criminal sexual conduct that arose from the same incident as the felony robbery.  The trial court  concluded that because these offenses were not crimes of dishonesty, they had no relevance and could confuse the jury.

            Riccio admitted that he did not have permission to enter the victims’ house.  He testified that he knew M.J. because he had given her a ride home on a previous occasion and had seen her at Geving’s house.  He also testified that he did not go to the house to give M.J. a message from Geving’s daughter, but rather to ask B.C. out on a date because he thought she was attractive.  Riccio denied entering the house for the purpose of committing any crime.  He said that he went into the house when the door opened a few inches and he heard some whirring noise or voices inside.  Riccio stated that he did not ask B.C. out because she was dressed up and he was dressed casually and because he observed that both B.C. and M.J. were “visibly upset” about his presence in their house.  He denied ever making any comments to Geving or Carter about wanting to have sex with M.J. or any other young girls.

            The jury convicted Riccio on one count of first-degree burglary and one count of trespassing.  Riccio was sentenced to an executed prison term of 45 months for the first-degree burglary conviction.


1.         Riccio argues that he was denied a fair trial because the trial court deprived him of his constitutional right to confront witnesses against him and due process by ruling that he could impeach Carter only with a conviction for aggravated robbery and not with convictions for kidnapping and first-degree criminal sexual conduct.

            A trial court’s decision on the admission of evidence is reviewed under an abuse of discretion standard.  State v. Starkey, 516 N.W.2d 918, 925 (Minn. 1994).  But the trial court’s discretion to control the scope of cross-examination is limited by the confrontation clause, which secures the defendant’s opportunity to confront the witnesses against him.”  State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974)).

The admission of prior convictions for impeachment purposes is governed by Minn. R. Evid. 609(a), which provides:

     For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.


            In balancing the probative value against the prejudicial effect, five factors are considered: (1) the impeachment value of the prior crime; (2) the date of the conviction and the witnesses’s subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of the witnesses’s testimony; and (5) the centrality of the credibility issue.  State v. Perez, 397 N.W.2d 916, 921 (Minn. App. 1986).

            When a trial court evaluates

whether to admit a prior conviction of a prosecution witness, the major concerns are to protect the witness from being harassed and unduly embarrassed, the jury from being confused and misled, and everyone involved (court, jury, parties) from having to endure an unnecessarily prolonged trial.  Based on concerns about such things as harassment, decisionmaking on an improper basis, confusion of the issues, and cross-examination that is repetitive or only marginally relevant, the trial court possesses wide latitude to impose reasonable limits on cross-examination of a prosecution witness.


Lanz-Terry, 535 N.W.2d at 639 (citations omitted).

            In Lanz-Terry, a defendant attempted to impeach the victim’s testimony with evidence of the victim’s convictions for robbery, possession of cocaine, theft, sale of a controlled substance, and possession of a pistol by a felon.  Id. at 638.  The supreme court concluded that excluding this prior-conviction evidence was not an abuse of the trial court’s discretion because (1) the evidence was only “marginally useful in attacking the [victim’s] credibility,” (2) the evidence could have “potentially led the jury to decide the case on an improper basis,” and (3) it may have “confused the jury unnecessarily and prolonged the trial.”  Id. at 640-41.

            Carter’s prior convictions for kidnapping and criminal sexual conduct are not directly related to his honesty and veracity.  See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (noting that “sexual crimes have less bearing on veracity than do many other crimes”); see also State v. Gassler, 505 N.W.2d 62, 66-67 (Minn. 1993) (“convictions for violent crimes lack the impeachment value of crimen falsi”).  As in Lanz-Terry, Carter’s convictions for kidnapping and criminal sexual conduct would have been only marginally useful to the jury and would have had a high risk of prejudice.  The convictions have little impeachment value, other than to portray Carter as a “bad person.” See Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967) (“the legitimate purpose of impeachment * * * is * * * not to show that the accused who takes the stand is a ‘bad’ person”).  Moreover, the trial court allowed Riccio to impeach Carter using a conviction for aggravated robbery.  In light of the kidnapping and criminal sexual conduct convictions’ marginal usefulness for attacking Carter’s credibility, we conclude that the district court did not abuse its discretion by allowing Riccio to use only the aggravated robbery conviction to impeach Carter.

2.         Riccio argues that the trial court abused its discretion by allowing the state to present Spreigl evidence by reading into the record a summary of the facts supporting his two convictions for criminal sexual conduct instead of requiring the state to present authenticated copies of the convictions and witness testimony.

            The decision to admit Spreigl evidence lies within the discretion of the trial court and will be allowed to stand absent an abuse of discretion.  State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).  A defendant has the burden of showing that the trial court erred by admitting this evidence and that the error was prejudicial.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).

            Riccio’s attorney argued that the Spreigl evidence should have been presented using authenticated copies of the convictions and witness testimony, rather than by reading a statement of the crimes into the record.  The trial court overruled the objection, stating:

[T]hese are convictions that we’re talking about.  It’s not a situation where we have to bring in the victims of the other offenses so that I have to hear them and make a factual determination as to whether there’s clear and convincing evidence that the other alleged offenses occurred.  There’s already been a plea of guilty and a conviction in one case and a conviction after trial by jury in the other case.


     And I believe the law allows, once there’s a conviction, that the evidence of the convictions can be introduced.  And, of course, you can’t simply say there was a conviction for criminal sexual conduct.  You have to give the jury some of the relevant, basic facts regarding the convictions, underlying the convictions.  And we worked through the wording carefully that [the prosecutor] just read to the jury in the first case.


     And I concluded in the first case that the wording that was read gave the jury relevant facts, and only the relevant facts, regarding those prior convictions, so that they could, for themselves, determine how much weight to give those prior convictions when considering what Mr. Riccio’s intent may have been in this case.


            Minnesota courts do not require calling witnesses to prove a prior offense.  State v. Crocker, 409 N.W.2d 840, 844 (Minn. 1987).  In State v. Alt, 529 N.W.2d 727, 730 (Minn. App. 1995), review denied (Minn. July 20, 1995), this court relied on Crocker to hold that a trial court did not abuse its discretion by allowing the state to prove a Spreigl offense using the complaint and the victims’ statements to police.

            When asked by the trial court during the Spreigl hearing whether the facts in the state’s memorandum regarding the two prior convictions were true and accurate, Riccio’s attorney admitted that the memorandum accurately described the offenses.  Because there is clear and convincing evidence in the record demonstrating that Riccio committed the Spreigl offenses, we cannot say that the trial court clearly abused its discretion by allowing the state to present the Spreigl evidence by reading a summary of the facts supporting the prior convictions.

            Riccio also contends that the trial court erred by giving the jury confusing and misleading instructions regarding the use of Spreigl evidence.  He argues that the trial court should have instructed the jury that the Spreigl evidence was admitted only to prove intent and not to determine his credibility.

            An appellate court reviews a trial court’s jury instructions for abuses of discretion and errors of law.  State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Apr. 15, 1997).  Where jury instruction fairly and adequately state the applicable law, this court will not reverse.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  When reviewing the sufficiency of the instructions, we view them as a whole.  Id.

            The record indicates that on two occasions, the trial court instructed the jury concerning the limited purpose of Spreigl evidence and cautioned jurors about convicting Riccio based on prior convictions.  The trial court’s failure to specifically instruct the jury that the Spreigl crimes could not be used to determine Riccio’s credibility was not an abuse of discretion.  See State v. Elvin, 481 N.W.2d 571, 575 (Minn. App. 1992) (juries are not normally instructed as to the possible inferences that can be drawn from the evidence), review denied (Minn. Apr. 29, 1992).

3.         Riccio argues that the evidence was insufficient as a matter of law to sustain the conviction for first-degree burglary because it failed to establish beyond a reasonable doubt that he had the intent to commit criminal sexual conduct when he entered the victims’ dwelling. 

            The state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged.”  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In reviewing a claim of insufficient evidence in a criminal case, this court determines,

whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged. 


State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (quotation omitted).  We review the evidence in the light most favorable to the conviction and “assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.”  Id. 

            A conviction based on circumstantial evidence must be more carefully scrutinized.   Bias, 419 N.W.2d at 484.  The conviction will be sustained on appeal only if, on considering all of the evidence, the circumstances form a chain that “‘leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.’”  Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)).  The evidence need not exclude all possibility of defendant’s innocence; it need only make that theory seem unreasonable.  State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).  

            Riccio was found guilty of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1 (1998), which provides:

Whoever enters a building without consent and with intent to commit a crime * * * commits burglary in the first degree * * *, if:

(a) the building is a dwelling and another person, not an accomplice, is present in it * * * .


            It is only necessary that the defendant had the intent to commit a crime when the defendant entered the dwelling.  Whether a defendant had the requisite intent

must be determined from all the circumstances, including the manner and the time of entry, the nature of the building and its contents, any things which defendant may have with him and all the other evidence in the case.


State v. Johnson, 417 N.W.2d 143, 146 (Minn. App. 1987) (quotation omitted).       

            Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that there is sufficient evidence in the record to prove that Riccio entered the home without consent and with the intent to commit a sexual offense against M.J.  Riccio admits that he did not have consent to enter the home.  The evidence supports an inference that Riccio chose the home because M.J. lived there.  Riccio knew M.J. and where she lived from giving her a ride home.  He had also seen her at Geving’s house where he had told Geving, as he watched M.J., that he would “[l]ike to stick it up into her guts.”  Riccio also told Carter that he was interested in having sex with young girls.  Finally, Riccio entered the home at 3:30 in the afternoon during summer break, a time when he could have reasonably expected to find 13-year-old M.J. home alone.  And when M.J. discovered Riccio in the home, he was descending the steps leading from the second floor bedrooms.  Although Riccio claims that he went to the house to ask B.C. out, we must assume that the jury did not believe this testimony.