This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Howard Wayne Miller,




Filed October 3, 2000


Peterson, Judge


Crow Wing County District Court

File No. K8982131



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


Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN  56401 (for respondent)


John Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from convictions of first- and second-degree criminal sexual conduct, appellant Howard Wayne Miller argues that the trial court erred by admitting Spreigl evidence regarding three prior criminal-sexual-conduct offenses.  Miller also argues that because both convictions were based on parts of a single behavioral incident, the trial court erred by sentencing him for both convictions.  We affirm.


            A jury found Miller guilty of one count each of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1998) (sexual penetration with a victim under age 13 and the offender is more than 36 months older than the victim) and second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1998) (sexual contact with a victim under age 13 and the offender is more than 36 months older than the victim).

            The victim was T.M., the eight-year-old daughter of Miller’s girlfriend, J.G.  The sexual abuse occurred when Miller was living with J.G., T.M., and J.G. and Miller’s son. 

            The sexual abuse became known to school authorities, who contacted police.  T.M. gave a statement to Troy Schreifels, a Brainerd police officer, and Michelle Meyer, a Crow Wing County Social Services employee.  Because T.M. seemed uncomfortable with Schreifels present, he left after some preliminary questions, and Meyer continued with the statement.  Because Meyer was not available to testify at trial, T.M.’s statement was not admitted into evidence.

            In a statement Miller made to Schreifels, he admitted touching T.M. sexually.  Miller stated that about four months earlier, he touched the outside of T.M.’s shirt to feel one of her breasts.  Miller said he did not know why he did that.  When Schreifels asked whether Miller had sexually touched T.M. in other ways, Miller declined to speak any further.

            T.M. testified that Miller had touched her in a way that she did not like.  She had difficulty verbally answering questions but pointed to “her private places” to indicate where Miller had touched her.  The parties agree that T.M. pointed to her chest and her lap.  T.M. testified that Miller had put his finger inside one of her private places and that it felt bad.  Although the record does not state which private place T.M. was testifying about, Miller does not dispute that the reference was to the genital area.  T.M. testified that she had told J.G., Meyer, and her brother (J.G. and Miller’s son) about the sexual abuse and that her brother had witnessed some of it.

            J.G. testified that she recalled an incident when T.M. was wearing a nightgown, and Miller had her sit beside him on a recliner and touched her “in the legs and where her private parts were.”  J.G. also testified about an incident that occurred six or seven months before trial.  J.G. saw Miller in the bathroom standing next to T.M. with his hands down her pants.  When J.G. asked Miller about the incident, he claimed he had just been straightening up T.M.’s pants, but J.G. knew that T.M. was old enough to do that by herself.  J.G. testified that T.M. had told her about Miller touching her, but she did not report the sexual abuse to anyone because she was afraid of what Miller might do.

            When initially questioned by Meyer, J.G. denied that Miller had engaged in any inappropriate behavior with T.M.  That same day, J.G.’s children were removed from her home and placed in protective custody.  The following day, concerned about losing her children and wanting to get them back, J.G. contacted Meyer and reported the recliner and bathroom incidents to social services personnel.

            Michael Seversen, a pediatrician who performed a sexual-abuse exam on T.M., testified that T.M. said that Miller had touched her genital area about 50 times, that it hurt, and that it happened in J.G.’s bedroom.  Seversen found no physical evidence of sexual abuse but testified that was not uncommon because superficial injuries will heal within 12 to 24 hours.  Seversen testified that digital penetration commonly causes only superficial injuries.

            The trial court admitted Spreigl evidence regarding Miller’s three prior criminal-sexual-conduct convictions.  On May 10, 1977, when Miller was babysitting 11-year-old M.A.F., he became sexually aroused and had M.A.F. take off her clothes.  He then put his penis in her vagina.  Miller pleaded guilty to first-degree criminal sexual conduct.

            In July 1983, while babysitting five-year-old J.F. and her brother, Miller made the brother stay in another room while he pulled down J.F.’s pants and felt between her legs.  Miller pleaded guilty to second-degree criminal sexual conduct.

            On October 28, 1988, while babysitting six-year-old L.K.C., Miller touched her on her chest and between her legs.  Miller pleaded guilty to second-degree criminal sexual conduct.

            In denying Miller’s motion in limine to exclude the Spreigl evidence, the trial court found that the current offense was similar in terms of the sex and age of the victims and in terms of Miller’s modus operandi, which showed “a pattern of behavior involving opportunistic sexual exploitation of young girls while being in a position of authority.”  The trial court found that the state needed the evidence because most of the incidents of sexual abuse occurred while T.M. was alone with Miller, there was no physical evidence of sexual abuse, and the case depended primarily on T.M.’s testimony.


            1.         The decision to admit other-crimes evidence, commonly referred to as Spreigl evidence, is within the trial court’s discretion and will not be reversed absent an abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  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).

            Spreigl evidence may be admitted for the limited purpose of showing motive, intent, absence of mistake or accident, identity, or a common scheme or plan.  Minn. R. Evid. 404(b); State v. DeWald, 464 N.W.2d 500, 502-03 (Minn. 1991).  Spreigl evidence, however, shall not be admitted in a criminal prosecution unless the district court determines that (1) the evidence is clear and convincing that the defendant participated in the other offense; (2) the evidence is relevant and material to the state’s case; and (3) 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.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).

            Miller does not dispute that there was clear and convincing evidence that he committed the Spreigl offenses.

            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.”  The closer the relationship between the events, “the greater the relevance or probative value of the evidence and the lesser the likelihood the evidence will be used for an improper purpose.”  [The supreme court] has “been flexible in applying this ‘test’ on appeal, upholding admission notwithstanding lack of closeness in time or place if the relevance of the evidence was otherwise clear.”


Kennedy, 585 N.W.2d at 390 (citations omitted).  A Spreigl offense

need not be identical in every way to the charged crime, but must instead be sufficiently or substantially similar to the charged offense--determined by time, place and modus operandi.


Id. at 391.

            In State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993), the defendant was convicted of sexually abusing his daughter by touching her buttocks and vaginal area when she was about nine years old.  The abuse occurred on two occasions when the victim had overnight visitation with the defendant following the defendant’s divorce from the victim’s mother.  The supreme court upheld the admission of Spreigl evidence regarding the defendant touching his stepdaughter’s breast and buttocks and making sexual comments to her about nine years before trial when the stepdaughter was 12 years old.  Two of the defendant’s adult nieces testified about similar behavior by the defendant toward them when they were teenagers.

            The Wermerskirchen court explained its decision as follows:

            In a case of child molesting, * * * the identification of the culprit and the intent with which he acted are usually less troublesome than proving that the act was committed.  Given the secrecy in which such acts take place, the vulnerability of the victims, the absence of physical proof of the crime, the degree of public opprobrium associated with the accusation, the unwillingness of some victims to testify, and a general lack of confidence in the ability of the jury to assess the credibility of child witnesses, courts are understandably desperate for some evidence beyond the victim’s accusation that will prove that the accused did the acts of which he stands charged.


            * * * *


            * * * [T]he other-crime evidence was not offered for the improper purpose of showing the defendant was a bad person in order to raise an inference that he acted in conformity with his bad character or to persuade the jury to convict on some improper basis but rather because it was highly relevant to the specific issue of whether the conduct on which the charge was based actually occurred or was, as the defendants contended, a fabrication or a mistake in perception by the victim.


            Admission for this purpose in a case such as this should be proper at least where the corpus delicti truly is in issue and where the trial court is satisfied that the other crime is sufficiently relevant to the charged crime.  Here corpus delicti was in issue because defendant denied that any sexual conduct occurred.  The evidence was highly relevant in that it showed an ongoing pattern of opportunistic fondling of young girls within the family context and, therefore, tended to disprove the defense that M.W. was fabricating or imagining the occurrence of sexual contact.  In short, * * * the evidence “convey[ed] to the mind, according to the ordinary logical instincts, a clear indication of * * * a design” or a pattern of behavior involving the opportunistic sexual exploitation of young girls within the family context.  Or, to paraphrase this court’s recent opinion in State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992), the evidence served to complete the picture of defendant, to put his current conduct in its proper and relevant context, not to paint another picture or lead the jury to convict on the basis of an irrelevancy.


Id. at 240-43.

            In terms of relevancy and materiality, this case is similar to Wermerskirchen.  First, Miller denied sexually abusing T.M. in any manner.  Although Miller admitted to police that he touched T.M.’s breast, defense counsel argued at trial that the touching was not done with any sexual intent.  Second, the case depended primarily on T.M.’s testimony, and she had difficulty testifying.  Although J.G. witnessed two incidents when Miller touched T.M. in the genital area, no one witnessed the sexual penetration about which T.M. testified, the numerous sexual contact incidents that she disclosed to Seversen, or the incident when Miller touched her breast.  Moreover, J.G.’s credibility was undercut by Miller’s argument that she fabricated the incidents to regain custody of her children.  Finally, the Spreigl offenses and the current offense all involved Miller opportunistically using a position of authority to sexually exploit young girls.

            [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.


Kennedy, 585 N.W.2d at 391-92.

            Miller argues that the Spreigl evidence was prejudicial because, without it, the evidence was insufficient to prove first-degree criminal sexual conduct.  But T.M. testified that Miller put his finger inside one of her private places and that it felt bad.  Although the record does not state which private place T.M. was testifying about, Miller does not dispute that the reference was to the genital area.  The evidence was sufficient to prove first-degree criminal sexual conduct.  See Minn. Stat. § 609.341, subd. 12 (1) (1998) (“sexual penetration” definition includes “any intrusion however slight into the genital or anal openings”).

            The trial court found no danger of prejudice beyond that inherent when Spreigl evidence is admitted in a child-sexual-abuse case.  The trial court found that the state needed the Spreigl evidence because there was no physical evidence of sexual abuse and the case depended, for the most part, on T.M.’s testimony.  We recognize that allowing evidence of multiple Spreigl offenses increased the potential for unfair prejudice.  See State v. Titworth, 255 N.W.2d 241, 246 (Minn. 1977) (recognizing problem in admitting evidence of four Spreigl offenses).  But we conclude that the trial court did not abuse its discretion by allowing evidence regarding three Spreigl offenses.  See Wermerskirchen, 497 N.W.2d at 241-43 (upholding admission of three Spreigl incidents in child-sexual-abuse case); see also State v. Sebasky, 547 N.W.2d 93, 97-98 (Minn. App. 1996) (allowing Spreigl evidence showing pattern of sexual abuse against young boys who worked for defendant), review denied (Minn. June 19, 1996).

            2.  Generally, a court may only sentence a defendant once for a single behavioral incident even though it results in multiple crimes.  Minn. Stat. § 609.035, subd. 1 (1998).  “Whether offenses were part of a single behavioral incident is a fact determination that will not be reversed on appeal unless clearly erroneous.”  State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

Among the factors to be considered in determining whether two offenses arose out of a single behavioral incident are the singleness of purpose of the defendant and the unity of time and of place of the behavior.


State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (quotation omitted).

            The state presented evidence that at least three separate incidents of sexual abuse occurred, the two incidents about which J.G. testified and Miller’s admission in his statement to police that he touched J.G.’s breast.  In addition, Seversen testified that T.M. stated that Miller had touched her in the genital area about 50 times.  The evidence shows that the abuse occurred over an extended time period.  This evidence supports the trial court’s finding that Miller’s first- and second-degree criminal sexual conduct convictions did not arise from a single behavioral incident.

            Miller also argues that the trial court erred by sentencing him for both convictions because second-degree criminal sexual conduct is a lesser-included offense of first-degree criminal sexual conduct.  The argument lacks merit in light of the evidence that Miller committed at least one act of sexual penetration and committed multiple acts of sexual contact at other times.