This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Joel Delano Powell, Jr.,




Filed June 20, 2000

Affirmed in part, reversed in part, and remanded

Schumacher, Judge


Hennepin County District Court

File No. 98044044



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


Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Joel Delano Powell, Jr., challenges his conviction for promoting prostitution, arguing that the trial court abused its discretion in admitting Spreigl evidence and in departing upwards at sentencing.  We affirm the conviction, concluding that there was no error in the trial court's evidentiary ruling, but reverse and remand for resentencing.


            The state charged Powell with a felony count of promoting prostitution of an individual at least 16 but less than 18 years of age, alleging that Powell arranged for then 17-year-old K.S. to have sex for money in November 1997.  In a pretrial filing, the state indicated that it would seek to introduce other crimes evidence, consisting of testimony about recent similar conduct involving a different juvenile female victim.  The court reserved its ruling on whether to allow the Spreigl evidence until after the state presented its case-in-chief. 

At trial K.S. testified that the first time she met Powell they went out to dinner at a Red Lobster in Bloomington.  Powell told her she could make a lot of money by having sex or performing oral sex.  He took her to Blue Light Entertainment, an escort service in Minneapolis.  Powell told her he was one of the owners and introduced her to his business partner and several other girls.  Powell put her up in a motel room for two nights, starting the night they went to Red Lobster.  She had told her grandmother with whom she lived in Hastings that she was staying with a friend.  While staying in the motel with Powell, he talked about having a relationship but otherwise "it was just nothing but sex."

On the second day, Powell took K.S. back to Blue Light and he showed his partner nude pictures of her that he had taken in the motel room.  On the third day, K.S. went out on one call to a house in St. Paul where she performed oral sex for money.  The money was given to Powell's partner who took K.S. back to Blue Light.  From Blue Light, K.S. called her home and told a girlfriend that everything was fine.  The girlfriend told K.S. to leave Blue Light or she would call the cops.  About an hour and a half later, the Minneapolis police showed up.  The police took her home, and she never saw or spoke to Powell again.

            After the state had presented its case-in-chief, the court outside the presence of the jury heard extensive testimony from the Spreigl witness.  V.R. testified about committing numerous acts of prostitution at Powell's behest from July until December 1998.  The trial court then ruled that the Spreigl testimony was admissible to prove intent and common plan or scheme.  The court found that the Spreigl testimony was credible and clear and convincing as to Powell's participation in the Spreigl offense.  The court found a sufficiently close relationship between the two offenses in time, place and modus operandi:

            Twelve months separate the two offenses.  Both offenses took place in various hotels and motels, and other locations in the Twin Cities metropolitan area.


            In both cases, the defendant solicited the involvement of 17-year-old, insecure women from small towns in Minnesota through promises of a personal relationship with the defendant, based upon mutual love and affection and promises of money.


            In both cases, the young women were brought by the defendant to a large metropolitan area that they did not know, and were housed by the defendant in various motels and hotels.


            In both cases, the defendant engaged in sexual intercourse with the young women, to further the idea of an affectionate relationship.


            In both cases, the defendant used various out-call services to place the young women with customers who purchase sexual favors from the young women.


            In both cases, the defendant took all the money from the young women paid by the customers, thereby ensuring their financial dependence upon him.


In balancing the probative value of the evidence against its potential for unfair prejudice, the trial court concluded the evidence was necessary to the state's case because the other evidence was weak on the element of intent.  The court ruled it would allow the Spreigl evidence with the exception of testimony about physical abuse by Powell and activities outside the state of Minnesota.

V.R. then testified in the presence of the jury.  V.R. first met Powell in 1996 and was reintroduced to Powell in Hibbing in the summer of 1998.  He told her life would be better in the big city and took her to the Twin Cities.  She felt that she was his girlfriend.  He arranged for her to stay at hotels in Richfield, Roseville, Minneapolis, and Bloomington.  Beginning in August, Powell got her involved in prostitution.  She had sexual intercourse for money, which Powell kept for himself.  She sometimes stayed with Powell's friends or family members.  She finally left him in December 1998.

Powell testified in his defense.  The jury returned a guilty verdict.  Given Powell's criminal history, the presumptive sentence was 51 months.  The trial court sentenced Powell to 102 months, an upward double durational departure, explaining that K.S. was particularly vulnerable "due to her immaturity and dependent nature" and that Powell treated her "with particular cruelty by keeping her in motels with no financial means of escaping or returning home."


Evidence of other crimes or bad acts may be admitted for the limited purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Minn. R. Evid. 404(b).  Such evidence is known 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 trial court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).

Spreigl evidence shall not be admitted in a criminal prosecution unless the trial court determines (1) the evidence is clear and convincing that the defendant participated in the conduct alleged; (2) the evidence is relevant and material to the state’s case; and (3) the probative value of the evidence is not outweighed by any potential prejudicial effect.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).  A trial court should defer ruling on the admissibility of Spreigl evidence until after the state has presented its case at trial.  State v. DeWald, 464 N.W.2d 500, 504-05 (Minn. 1991).

            In this case, the trial court properly evaluated the admissibility of the Spreigl testimony after the state had presented its case-in-chief.  The trial court addressed each of the three Spreigl factors in ruling that the evidence was admissible to prove intent and common plan or scheme.  The trial court concluded that V.R.'s testimony provided clear and convincing evidence of Powell's participation in promoting prostitution.  The trial court found a sufficiently close relationship between the two offenses in time, place and modus operandi.  Finally, the trial court found that the evidence was more probative than unfairly prejudicial because without it the other evidence was weak on intent.

Powell argues that the trial court's clear and convincing determination is erroneous because it was based on nothing more than the court's opinion that V.R. was credible.  Powell suggests that the testimony was not sufficiently particular as to any one instance of prostitution, other than a single incident in Fridley.  Powell also claims there was no corroborating evidence.  After reviewing the record, however, we conclude that V.R.'s description of how Powell kept her in motels throughout the metropolitan area, induced her to engage in prostitution at his direction, and took all of the money she collected is sufficiently specific to meet a clear and convincing standard.

            In order to be admissible, Spreigl evidence must be relevant to one of many purposes other than to show an accused acted in conformity with his character.

State v. Belssner, 463 N.W.2d 903, 909 (Minn. App. 1990) (citing Minn. R. Evid. 404(b)), review denied (Minn. Feb. 20, 1991).  In determining the relevance and materiality of Spreigl evidence,

the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.

Kennedy, 585 N.W.2d at 390 (quotation and citation omitted).

            Powell argues that there are vast dissimilarities between the events alleged by K.S. and those alleged by V.R.  The state responds that the trial court pointed to many similarities.  In both cases, Powell found 17-year-old women outside the Twin Cities and took them to motels in the Twin Cities promising affection and money.  He engaged in sexual intercourse with them and made them feel as if they were his girlfriends.  He then introduced them to prostitution, and he or his colleagues took all the money they received.  The only apparent difference is that while the activity with V.R. took place over the course of several months and involved "a lot" of prostitution, the conduct with K.S. was limited to three days and one act of prostitution.  This distinction, however, does not diminish the relevancy of the Spreigl testimony in establishing plan or intent.

The trial court further found that any unfair prejudicial effect did not outweigh the probative value. Even if evidence is relevant, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."  Minn. R. Evid. 403.  The district court has broad discretion in determining whether the probative value of Spriegl evidence is substantially outweighed by the danger of unfair prejudice.  State v. Shamp, 422 N.W.2d 520, 526 (Minn. App. 1988), review denied (Minn. June 10, 1988).

[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state's case.  Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state's burden of proof, should the trial court admit the Spreigl evidence.

State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citations omitted).  Here, the trial court found that the other evidence was weak as to intent and thus the Spreigl evidence was needed.  This determination was not an abuse of the trial court's broad discretion.

            2.         The decision to depart from sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But there must be "substantial and compelling circumstances" in the record to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  "[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).  Here, the trial court cited just two aggravating factors: particular vulnerability and particular cruelty.

Particular vulnerability is a valid basis for departure if it was a substantial factor in the accomplishment of the crime.  Minn. Sent. Guidelines II.D.2.b.(1); Rairdon, 557 N.W.2d at 326.  Here, the trial court found that K.S. was particularly vulnerable because of her "immaturity and dependent nature."  This is essentially a proxy for age, which is an element of the statutory crime of promoting the prostitution of an individual at least 16 but not 18 years of age.  See Minn. Stat. § 609.322, subd. 1a (1996).[1]  "A trial court may not depart from the presumptive sentence based on a factor that is also an element of the offense."  State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996) (citation omitted), review denied (Minn. June 19, 1996).  Accordingly, consideration of this particular factor was an abuse of discretion.  It might be a different matter if K.S. were immature for her age so as to distinguish her from any other 17-year-old individual subject to promotion of prostitution.  But this was not the case.

            Particular cruelty can also be a valid basis for departure.  See Minn. Sent. Guidelines II.D.2.b.(2).  Particular cruelty may take the form of severe emotional distress and psychological torment.  See Rairdon, 557 N.W.2d at 327.  Here, the trial court found particularly cruelty by placing K.S. in a motel with no financial means of returning home.  Generally, in determining whether to depart in sentencing, a trial court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  Putting K.S. in an unfamiliar motel and leaving her without financial means is not significantly different from conduct typically involved in promotion of 16 to 18 year olds for prostitution.

As neither of the cited aggravating factors holds up to scrutiny, the trial court abused its discretion in departing.  We reverse the upward departure and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

[1] The current version of the statute does not contain this age limitation but was not in effect at the time of this offense.  See Minn. Stat. § 609.322, subd. 1a (1998).