This opinion will be unpublished and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


State of Minnesota,


Thomas Wayne Evenstad,

Filed June 6, 2000
Affirmed; motion to dismiss granted
Klaphake, Judge

Hennepin County District Court
File No. 98023039

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)

Daniel M. Mohs, Daniel Mohs & Associates, Ltd., The Colonnade, Suite 1025, 5500 Wayzata Boulevard, Minneapolis, MN  55416 (for appellant)

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


Thomas Evenstad appeals from his convictions for first- and third-degree criminal sexual conduct, alleging insufficiency of the evidence and abuse of the trial court’s discretion in admitting certain Spreigl evidence and barring impeachment evidence.  Because the evidence is sufficient to sustain the jury’s verdict and because the trial court did not abuse its discretion in its evidentiary rulings, we affirm.


I.  Sufficiency of the Evidence

Where a claim of insufficiency of the evidence is made, the reviewing court’s function is limited to

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

State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).  The evidence must be viewed in a light most favorable to the conviction and the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence.  Id.

Evenstad was convicted of first-degree criminal sexual conduct (engaging in penetration of another, while the victim has a reasonable fear of great bodily harm, or where the actor causes personal injury), and third-degree criminal sexual conduct (engaging in penetration of another, where the actor uses force or coercion to accomplish the penetration).  Minn. Stat. §§ 609.342, subd. 1(c), (e); 609.344, subd. 1(c) (1996).

            The victim, H.S., testified that (1) sexual penetration was not consensual; (2) it was accomplished against her will; (3) she was bruised during the assault; and (4) the actual act of penetration was painful.  Evenstad also prevented her from leaving, overpowered her, and threatened her afterwards.  Evidence of personal injury is sufficient where the victim experiences pain at the time of assault, abrasions, bruises, and leg stiffness and soreness.  See State v. DeBaere, 356 N.W.2d 301, 304 (Minn. 1984); State v. Reinke, 343 N.W.2d 660, 662 (Minn. 1984).  Were the jury to believe H.S. and disbelieve Evenstad, her testimony is sufficient to sustain the conviction.

            “Deciding the credibility of witnesses is generally the exclusive province of the jury.”  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (citations omitted).  Here, the jury likely believed the testimony of H.S. and disbelieved that of Evenstad; in fact, the reviewing court must make this assumption.  Johnson, 568 N.W.2d at 435.  Likewise, there is no requirement in a sexual assault case that the testimony of the victim be corroborated.  DeBaere, 356 N.W.2d at 304.  But see State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977) (while corroborating testimony not required in sexual assault case, lack thereof in an individual case could require finding of insufficient evidence).

            H.S.’s testimony was corroborated to a degree by her friend, S.W., whom H.S. called on the night of the assault, and who observed H.S.’s demeanor shortly after the assault.  An immediate complaint to another, although the assault itself is unreported, is sufficient evidence of corroboration.  State v. Anderson, 272 Minn. 384, 386, 137 N.W.2d 781, 782 (1965).

            Given the standard of review, there is sufficient evidence for the jury to reach a verdict of guilty.

II.  Spreigl Evidence

            A decision to admit Spreigl evidence is within a trial court’s discretion and will not be reversed absent an abuse of discretion.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Generally, evidence of other crimes or misconduct is not admissible as character evidence, but may be admitted for the limited purpose of showing motive, intent, absence of mistake, identity or a common scheme or plan.  Minn. R. Evid. 404(b).  In order to use such evidence, the following must be shown: (1) the evidence must be clear and convincing; (2) the evidence must be relevant and material to the state’s case; and (3) the probative value must outweigh the prejudicial effect.  Kennedy, 585 N.W.2d at 389.  “When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded.” Id. (citation omitted).  Evenstad argues that the Spreigl evidence offered does not meet the standards required by Kennedy.

            Clear and convincing evidence “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.”  Id. (quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978)).   The standard is “met when the truth of the facts sought to be admitted is ‘highly probable.’”  Id.  Here, the trial court heard the pre-trial testimony of Spreigl witnesses, A.M.1 and A.M.2, who were subject to cross-examination by defense counsel, and the court ruled that the evidence was clear and convincing.  Although there are some discrepancies relating to dates and descriptions of the appellant, on the whole the testimony is convincing, particularly given the nearly two-year lapse in time between offense and trial.

            Spreigl evidence is relevant and material when “similar to the charged offense either in time, location, or modus operandi.”  State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991) (citation omitted).  Absolute similarity between the charged crime and the Spreigl offense is not required.  Id.  Here, the charged offense and the two Spreigl acts took place within a six-month period.  In all three, the victims are much younger than Evenstad, and Evenstad misrepresented his age.  All three incidents involved uninvited sexual contact. Most importantly, all three involved contact made through a chat-line, with a pattern of Evenstad misrepresenting his age to attract a younger female. 

            The evidence is especially relevant because Evenstad claims that H.S. agreed to consensual sex.  While Spreigl evidence is most often used to bolster evidence of identity or a common scheme or plan, it is “highly relevant to the issue of consent” in a sexual assault case.  DeBaere, 356 N.W.2d at 305. 

            “In weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state’s case.”  DeWald, 464 N.W.2d at 504.  Given the victim’s late report of the assault and lack of medical corroboration, the Spreigl evidence is highly probative to the issue of consent.  Here, the trial court was careful to admit the Spreigl evidence only after the state’s presentation of its case in chief, allowing the trial court to evaluate the relative strength of the state’s case.

            The trial court acted properly and carefully in taking live testimony, subject to cross-examination, and withholding its ruling on admissibility until after presentation of the state’s case.  See Kennedy, 585 N.W.2d at 392.  We conclude that admitting the testimony was not an abuse of discretion.

III.  Impeachment Evidence

            The trial court’s decision to exclude impeachment testimony is within its discretion and will not be reversed absent an abuse of discretion.  State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985).  Evenstad sought to impeach H.S. on two points.  H.S. denied that she used marijuana at Evenstad’s house and stated, in reply to a question, that she was subject to urinalysis (UA) at work.  Evenstad sought to show that she had not taken a UA at the job she held at the time of the assault.  He further sought to show that she had lied about being fired from this job.

            A review of H.S.’s testimony reveals that she was asked whether she was subject to UA’s at her job, how often these occurred, and whether she had participated in each one required.  She stated that she was required and had participated in all required UA’s and that the frequency depended on the facility where she was employed.  Both the question and answer are vague and not specific as to the job she held at the time of the assault.  The impeachment evidence offered was that no UA’s were done on H.S. while on that job.  The court found that testimony had not established whether or not she had taken or claimed to have taken a UA at that job, so that the impeachment would not have value. 

            Evenstad also sought to impeach H.S. by showing that she had been fired from that job, rather than leaving it because of scheduling conflicts.  A review of the trial transcript shows that S.W. had testified that H.S. left her job because of scheduling conflicts; H.S. had not testified at all about this issue.  The trial court properly ruled that H.S. could not be impeached by extrinsic evidence.

            The trial court may exclude even relevant evidence if the probative value is outweighed by confusion of the issues, or where there are considerations of undue delay, waste of time or needless presentation of cumulative evidence.  Minn. R. Evid. 403.  Because here the impeachment testimony was based on such a vague foundation, the trial court did not abuse its discretion in excluding the testimony.

IV.   Motion to Dismiss

            Appellant moved the court to dismiss that part of his appeal based on ineffective assistance of counsel, because he has filed a petition for postconviction relief.  Where additional facts need to be developed, the question of ineffective assistance of counsel should be raised in a postconviction proceeding, rather than on direct appeal.  State v. Gustafson, ___ N.W.2d ­­___, ___ No. CX-98-1465, slip op. at 12 (Minn. May 18, 2000).  We therefore dismiss that part of this appeal dealing with ineffective assistance of counsel.

            Affirmed; motion to dismiss granted.