This opinion will be unpublished and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
Edwin Olaf Vick,
Filed July 3, 2000
Cook County District Court
File No. K59875
Mike Hatch, Attorney General, Margaret H. Chutich, Thomas R. Ragatz, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
William J. Hennessy, Cook County Attorney, Cook County Courthouse, Grand Marais, MN 55604-1150 (for respondent)
Douglas A. Kelley, John M. Lee, Steven E. Wolter, Douglas A. Kelley, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 55415 (for appellant)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this direct appeal, appellant challenges his conviction for second-degree criminal sexual conduct, claiming: (1) abuse of discretion in admitting Spreigl evidence; (2) ineffective assistance of counsel; and (3) insufficient evidence to support the conviction. We reverse on admission of the Spreigl evidence and remand.
On May 27, 1999, a Cook County jury found appellant guilty of second-degree criminal sexual conduct for touching the buttocks and/or vaginal area of seven-year-old A.B.
Although appellant and A.B. are not related by blood or marriage, they had a grandparent-grandchild-type relationship that arose from a relationship between A.B.’s mother and appellant’s son, Dan Vick. On December 27, 1997, A.B.’s mother and Dan Vick left on a five-day trip, leaving A.B. with appellant. About four days after the trip ended, A.B. told her day-care provider that appellant touched her “privates.” A.B. then told her mother that appellant had touched her.
About two weeks later, police took a videotaped statement from A.B. In the statement, she stated that appellant twice touched her on the buttocks, once at appellant’s Cook County cabin and once at his Lake County shop. A.B. said she was lying in bed at the Cook County cabin when appellant put his hands under her pajamas and touched her bare buttocks for a few minutes. And, she said, when she was painting a picture at the Lake County shop, appellant put his hands on her buttocks over her clothes.
Two months later, police took a follow-up tape-recorded interview in which A.B. added that appellant had at the Cook County cabin also touched her around her vaginal area under the clothes. A.B. also now stated that, in the Lake County shop incident, appellant touched her on the vagina, but she reiterated that this touching was “over my clothes.”
The state charged appellant in Cook County with second-degree criminal sexual conduct for the cabin touching. At trial, A.B. testified that she now had no independent recollection of either touching, but the state played the videotaped statement for the jury. An officer also testified about the content of the subsequent tape-recorded statement.
The state had given notice that testimony recounting the over-the-clothes touching at the Lake County shop would be introduced as Spreigl evidence. In both her statements, A.B. consistently stated that the Lake County shop touching occurred over her clothes. But at trial A.B.’s mother testified that A.B. had told her that appellant put his hands “down her panties” in the Lake County shop. Appellant’s attorney did not object to this unexpected down-her-panties testimony and did not request a curative or limiting instruction.
D E C I S I O N
Appellant claims the trial court erred in allowing this down-her-panties testimony given by A.B.’s mother. Appellant did not object or seek a limiting instruction after the testimony. We may, therefore, consider the issue only if there is plain error. For there to be plain error, there must be: “(1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). When these three prongs are all present, we then assess whether we “should address the error to ensure fairness and the integrity of the judicial proceedings.” Id.; see Minn. R. Crim. P. 31.02. In State v. Pilot, 595 N.W.2d 511, 517-18 (Minn. 1999), the supreme court stated:
[T]he trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object -- and thereby present the trial court with an opportunity to avoid prejudice -- should not forfeit his right to a remedy.
Id. at 518 (quoting Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996)).
Here, the claimed error involves admission of evidence of another crime. To admit other-crimes evidence, referred to as Spreigl evidence, the court must find that: (1) the state gave notice that it intended to use the evidence; (2) the state clearly indicated what the evidence was intended to prove; (3) the evidence that the defendant participated in the other offense is clear and convincing; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). 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.
As outlined above, there must be “clear and convincing” evidence that the defendant participated in the Spreigl offense. Whether the evidence is clear and convincing “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.” Id. This standard is met when the truth of the facts sought to be admitted is “highly probable.” Id.
Here, appellant challenges the Spreigl evidence offered through A.B.’s mother that appellant had put his hands “down her panties” in the Lake County shop. The record shows no proof to support that the Lake County touching occurred “down her panties.” In her two statements, A.B. consistently maintained that the touching at the Lake County shop occurred over her clothes. In addition, the Spreigl notice also stated that the Lake County touching occurred “over her clothes.” There is, thus, no clear and convincing evidence that appellant put his hands “down her panties” during the Lake County touching.
The admission of Spreigl evidence also requires that the state give notice of its intent to use the evidence. Id. The purpose of notice is to give the defendant sufficient opportunity to prepare for trial and avoid situations of defending against unexpected testimony concerning prior offenses. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). The Minnesota Rules of Criminal Procedure require that notice of “additional offenses be described with sufficient particularity.” Minn. R. Crim. P. 7.02. We also submit that notice serves the purpose of allowing a defendant to candidly assess the likelihood of success before trial and to accept a plea-bargain if it is in the defendant’s best interests. Here, the state gave notice only that it intended to use as Spreigl evidence testimony about over-the-clothes touching in Lake County. This notice is not adequate to alert defendant to A.B.’s mother’s down-her-panties testimony.
Thus, the evidence offered through A.B.’s mother was improperly admitted as Spreigl evidence. Its admission constitutes plain error under the Minnesota Rules of Criminal Procedure.
We rule that this error also affected substantial rights; the prejudicial effect of the testimony is patently obvious. Plain error affects substantial rights if the error was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. This trial, involving alleged abuse of a child, created a highly emotional atmosphere. In this charged atmosphere, there was a wide chasm between Spreigl testimony alleging that appellant touched the child over her clothes while the child sat on his lap versus testimony alleging that appellant was putting his hands down her panties. It is common knowledge that accidental, but misperceived, touches can occur over the clothes. We acknowledge that inappropriate touching can indeed occur over the clothing but, in this case, the down-her-panties Spreigl testimony was so prejudicial that the jury could not thereafter impartially determine whether the charged touching in Cook County occurred. In short, the error in admission of the Spreigl testimony was plain error affecting substantial rights. The conviction must be reversed to ensure the fairness and integrity of the judicial proceeding.
Because we reverse on the admission of the Spreigl testimony, we decline to reach appellant’s other issues.
Reversed and remanded.
 Before sentencing, appellant brought a posttrial petition, claiming (1) lack of unanimous verdict, (2) ineffective assistance of counsel, and (3) insufficient evidence to support the conviction. In that petition, appellant did not challenge admission of Spreigl testimony except to claim that the failure to object to the Spreigl testimony showed ineffective assistance of counsel.
 The record reflects that A.B.’s mother and Dan Vick were having problems at this time. A.B.’s mother moved out with her children at the end of January 1998.