This opinion will be unpublished and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
State of Minnesota,
Jason Michael Spotts,
Filed May 16, 2000
Waseca County District Court
File Nos. K598159 and K298202
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, No. 500, St. Paul, MN 55103-2106, and
Larry M. Collins, Waseca County Attorney, Waseca County Courthouse, Waseca, MN 56093 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Suite 600, 2829 University Avenue S. E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Jason Michael Spotts challenges the trial court’s admission of Spreigl evidence and contends that the trial court erred by failing to take corrective action when the state made an improper reference to his probationary status during the jury trial. We affirm.
Jason Spotts was charged by separate complaints with criminal sexual conduct against two 16-year-old girls, S.B. and E.B., and with furnishing alcohol to minors.
S.B. went to a party at Spotts’ apartment on February 13, 1998. Spotts and others supplied alcohol to the guests. S.B. drank beer and a wine cooler and became tired and “stumbly.” When she went into a bedroom to change a CD on the stereo, Spotts followed her and tried to kiss her. S.B. told him to get away and said she did not want to kiss him. Spotts unbuttoned her pants and pulled them down to her thighs. S.B. protested and struggled and was able to move around Spotts and leave the room.
Later that evening, Spotts asked to speak with S.B. in the bathroom. Thinking Spotts was going to apologize, S.B. followed him into the bathroom. When they were both inside, Spotts locked the door and tried to kiss S.B. She told him that she did not want him to kiss her and that she had a boyfriend. Spotts cajoled her and pulled her pants and underwear down. He put his finger in her vagina and then began kissing her vagina. He stood up and put his penis between her legs. S.B. “kneed” him and left the bathroom.
On February 19, 1998, E.B. went to a party at Spotts’ apartment. E.B. and other guests drank alcohol there. During the evening, a guest told E.B. that Spotts wanted to talk to her. She joined him in the bedroom. When he tried to kiss her, she said she was not interested and that she had a boyfriend. She then left the room.
E.B. continued to drink alcohol. She became drunk and sick and passed out on Spotts’ bed. When she woke up, Spotts was on top of her with his pants down. Her pants and underwear were down and she could feel Spotts’ penis inside her. She left the bedroom, took a shower, and left the apartment.
The case involving S.B. was tried to a jury. Spotts testified that S.B. had consented to the sexual contact, and that she willingly engaged in and enjoyed it. The trial court admitted as Spreigl evidence the February 19 incident with E.B. The trial court also admitted a tape-recording of an interview between Spotts and the police officer investigating both incidents. The jury heard this exchange:
Q. [Officer Anderson]: You hadn’t been drinking that night, not at all? Not a thing, not a drop?
A. [Spotts]: Not a drop. I’m on probation, man * * *.
The officer then turned the tape off. The reference to probation was to have been deleted from the tape. Spotts’ attorney objected to the reference and moved for a mistrial. The court denied the motion and the jury heard the rest of the tape‑recording. The court gave no cautionary instruction, nor did Spotts’ attorney request one.
The jury found Spotts guilty of two counts of criminal sexual conduct and one count of furnishing alcohol to a minor.
In the case involving E.B., Spotts waived a jury trial and agreed to submit the matter on the allegations of the complaint. These included a Spreigl reference to the incident involving S.B. The court found Spotts guilty of two counts of criminal sexual conduct and one count of furnishing alcohol to a minor.
On appeal, Spotts alleges that the trial court erred in admitting Spreigl evidence in both cases. He also contends that the court erred by failing to take appropriate corrective action when the jury heard the reference to probation.
D E C I S I O N
1. Spreigl Evidence
Spotts argues that the trial court abused its discretion when it admitted evidence of other bad acts in each of his trials. The trial court has broad discretion in evidentiary matters and its rulings will not be disturbed absent a clear abuse of discretion. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998); State v. Johnson, 568 N.W.2d 426, 432 (Minn. 1997); State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). A defendant claiming error in the trial court’s admission of evidence bears the burden of showing that the trial court erred and that prejudice resulted. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).
Evidence of other crimes or bad acts is characterized as “Spreigl evidence.” Id. While Spreigl evidence may not be used to show the appellant 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).
Spotts contends only that the Spreigl evidence was more prejudicial than probative. He acknowledges that the admission in the jury trial of evidence of the incident involving E.B. arguably was relevant: “The incident with (E.B.), which was used to show a common scheme or plan, was probative of the issue of (S.B’s) consent.” But he contends that the similarity of the acts and their closeness in time allowed the jury to view Spotts “as an offender preying on young girls in the community.” This, he argues, is improper character evidence.
Minn. R. Evid. 404(b) prohibits the admission of evidence of other crimes to prove that a defendant acted in conformity with some trait of his character. Such evidence is admissible, however, to show a common scheme or plan. Spotts does not dispute this precise non-character use of the evidence here to prove lack of consent, the central issue in the state’s case. To show plan, common scheme, or modus operandi under Rule 404(b), the crimes or acts will necessarily be similar. It is the similarity that insures probative value. See Spaeth, 552 N.W.2d at 195 (evidence of prior burglaries admitted in burglary case to show modus operandi); State v. Sebasky, 547 N.W.2d 93, 98 (Minn. App. 1996) (giving evidence of prior sexual offenses greater probative value in subsequent sex-offense trial because later case rested solely on testimony of two teenaged complainants), review denied (Minn. June 19, 1996)
In assessing the probative value of Spreigl evidence, courts must also consider the “closeness of the relationship between the other crimes and the charged crimes in terms of time, place and modus operandi.” State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (citations omitted). The closer the relationship between the events “the greater the relevance or probative value of the evidence and the lesser the likelihood that the evidence will be used for an improper purpose.” Id. Here, the crimes were nearly identical, happened at the same place, and occurred only six days apart. The trial court did not err in allowing the Spreigl evidence.
2. Reference to Spotts’ probation
Spotts argues that he was denied a fair trial because the court failed to take corrective action when the state revealed his probationary status. The court had previously ruled references to Spotts’ probation inadmissible. Spotts contends that the error was particularly egregious because the court instructed the jury to rely on what they heard on the tape-recording and not on the transcript of the tape‑recording. The reference to probation was only in the audio tape.
Immediately after the reference to probation, the officer who was testifying turned the tape-recorder off. Defense counsel had made no objection, but the court decided to “check the tape” outside the jury’s presence. It was during the conference that followed that defense counsel first raised the issue by moving for a mistrial. The court denied the motion, ruling that the error was harmless. The defense attorney did not request a curative jury instruction.
Subject to some exceptions, references to a defendant’s past criminal conduct are improper at trial. State v. Tahash, 280 Minn. 155, 157, 158 N.W.2d 504, 506 (1968). On appeal, this court will not reverse if the error was harmless beyond a reasonable doubt. Shannon, 583 N.W.2d at 585 (citation omitted). An error is harmless beyond a reasonable doubt when the verdict is “surely unattributable” to the error. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).
The inadmissible reference was brief and isolated: “I’m on probation, man.” It was not repeated. No one referred to it in argument. The context in which it was made concerned drinking alcohol, and not criminal activity. Considering the direct evidence and the Spreigl evidence, we conclude beyond a reasonable doubt that the verdict was unattributable to the error.
Moreover, defense counsel did not request a curative jury instruction.
The law is well-settled in this state * * * that the failure to give such an instruction, absent a request by counsel, is not reversible error.
State v. Amos, 347 N.W.2d 498, 503 (Minn. 1984).