This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-828

 

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Edward Vickers,

Appellant.

 

 

Filed May 8, 2001

Affirmed

Poritsky, Judge*

 

Hennepin County District Court

File No. 99064448

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.


U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant Charles Edward Vickers appeals from convictions of second-degree felony murder and second-degree assault.  He argues that the district court erred in admitting evidence of two prior crimes.  We affirm.

FACTS

On June 30, 1999, Annie Vickers and Frank Stinson were watching television in the living room on the first floor of the Vickerses’ house while appellant Vickers washed clothes and cleaned pans in the basement.  Stinson was staying with the Vickerses in order to assist Mrs. Vickers, who had throat cancer and a feeding tube in her side.

            Vickers came up to the living room and began arguing with Mrs. Vickers.  Vickers noticed Stinson was tired and told him to go upstairs to sleep.  Stinson was reluctant because he would not be able to hear Mrs. Vickers (who slept on the first floor) if she needed his assistance.  Vickers said his wife did not need assistance. Stinson went upstairs, and the argument continued.  Up to this point, the witnesses gave fairly consistent accounts of what occurred.  Thereafter, their accounts conflict.      

1.         Appellant’s Testimony

            Vickers testified that when Mrs. Vickers got up from her chair during the argument, he believed she was going to call the police.  He grabbed a knife and attempted to cut the telephone cord, but he actually cut the cord of another appliance.   He threw the knife away.  Then, Mrs. Vickers tried to leave the house but fell in the garage, and he brought her back inside.  She said that he was pulling her feeding tube out, but the tube was coming out accidentally because of the way he was holding her. 

            Vickers and Mrs. Vickers continued to argue when Stinson came downstairs and asked them to stop fighting.  Mrs. Vickers said Vickers was assaulting her, which angered Stinson.  Stinson went to the kitchen, grabbed a knife, and repeatedly swung at Vickers.  He cut Vickers but put the knife down when Vickers told him to calm down.

Then, Stinson threw a vase at Vickers and went to the kitchen to get another knife.  Vickers armed himself with a knife and continued to try to “calm” Stinson.  Stinson tipped a table over and “lunged” at Vickers, saying he would kill Vickers.  Vickers reactively raised his knife, and Stinson landed on the blade.  When the police entered the residence, Vickers told police he did not intend to harm Stinson.

            2.         Mrs. Vickers’s Testimony

            Mrs. Vickers testified that while Vickers was yelling at her, she ran out to the garage in an attempt to escape.  She fell down, and Vickers brought her back into the house.[1]  Then, Vickers got on top of her and choked her and tried to pull out her feeding tube.[2]  Vickers said she was not sick, but she tried to tell him she was sick and very weak.[3]  Stinson then came downstairs and pulled Vickers away from Mrs. Vickers.  Vickers still attempted to get her, but Stinson stood in his way.

Vickers was visibly angry and told Stinson to stay out of his affairs.  Vickers then went to the kitchen, returned with two knives and threw Stinson down.  Stinson got away, threw a vase at Vickers and ran into the kitchen to get a knife.  Mrs. Vickers then heard Vickers say Stinson had cut him.  She saw Stinson turn the blade toward his own body and hand the knife to Vickers who threw it down.[4]  At that point, she heard people at the door, and escaped the scene through the back door.  On her way out, she heard the glass from the coffee table breaking. 

3.         Police Testimony and 911 Call

The officers who arrived at the scene were responding to a 911 call placed by Stinson at some point during the confrontation.  At the beginning of the call, Stinson is heard saying, “I think we need the police, please, right here.”  Then, the telephone was dropped.  The line was still open and the operator could hear the voices of Stinson, Vickers, and Mrs. Vickers.  A transcript of the call verifies that Vickers was telling Stinson to stay out of his affairs.

            An officer at the scene testified he heard Vickers and Stinson arguing.  He heard Stinson say, “Go ahead and cut me” and Vickers say, “Just stay down.”  When the officer entered, he saw Vickers standing over Stinson with a knife in his hand.  Vickers was taken into custody.  Soon thereafter, Stinson died from a stab wound to his left chest area.

            Vickers was charged with second-degree assault on his wife and second-degree felony murder of Stinson (while committing second-degree assault).  At trial, the prosecutor offered evidence of five prior crimes, of which the court admitted two.  First, the court admitted evidence of events that led to Vickers’s March 1999 conviction of terroristic threats but instructed the jury that the evidence was only to be considered in connection with the charge of second-degree felony murder of Stinson.  Second, the court admitted evidence of a 1996 assault by Vickers against his wife, instructing the jury that this prior offense was only to be considered in connection with the charge of assaulting his wife.  The jury convicted Vickers on both charges.

D E C I S I O N

 

Vickers argues that the district court committed prejudicial error by admitting evidence of his two prior crimes.  Rulings on evidentiary matters rest within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion.  State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999). On appeal, the defendant bears the burden of proving the district court erred in admitting evidence and any resulting prejudice.  State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).

Evidence of the 1999 terroristic-threats offense was admitted pursuant to State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).  To admit such evidence, the district court must find

(1) that the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) that the Spreigl evidence is relevant and material to the state’s case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice. 

 

State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991) (citation & quotation omitted).

            First, the clear and convincing standard is met by the fact that Vickers pleaded guilty to terroristic threats in March 1999.

            Second, evidence of other crimes is admissible to establish, among other things, “motive, intent, [or] absence of mistake or accident.”  State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990) (citing Spreigl, 272 Minn.at 491, 139 N.W.2d at 169).  Vickers contends the March 1999 terroristic-threats incident had “limited relevance” to the case.  We disagree.  As to the felony murder charge, Vickers claimed both self-defense and accident, i.e., lack of intent. Therefore, in order to convict Vickers of second-degree felony murder, the state was required to prove that Vickers intended to assault Stinson with a knife. Vickers testified that Stinson lunged at him and landed on the knife he was holding.  Upon his arrest, Vickers told police that he did not mean to harm Stinson. In the March 1999 terroristic-threats charge, Vickers, armed with a knife and in the presence of his wife, intentionally chased another person and threatened to kill her.  This offense was clearly admissible in the current case to show intent and absence of accident.  The state needed to show intent and absence of accident to prove the assault, which in turn was needed to convict Vickers of second-degree felony murder.

            Finally, the district court “must consider the extent to which the Spreigl evidence is crucial to the state’s case” in balancing potential unfair prejudice against the probative value of the evidence.  DeWald, 464 N.W.2d at 504.  At trial, Vickers argued that Mrs. Vickers wanted revenge and thus fabricated her testimony.  In cross-examination, Vickers highlighted inconsistencies in Mrs. Vickers’s testimony and successfully impeached her.  Mrs. Vickers was the state’s key witness.

            After Mrs. Vickers was impeached, the state’s case was weakened.  The district court initially denied the state’s repeated requests to present Spreigl evidence of five prior crimes.  Only after the state had presented its case, and Mrs. Vickers was impeached, did the district court allow the state to introduce the Spreigl evidence.  Even then, the district court denied the state’s request for admission of three of the five prior crimes.  Based on these facts, we conclude the evidence of the March 1999 incident was more probative than unfairly prejudicial.

            In regard to Vickers’s 1996 assault on his wife, prior incidents involving a defendant and a victim are admissible to show the nature of the relationship.  Bauer, 598 N.W.2d at 364 (Minn. 1999); State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998).  This type of evidence is not subject to a Spreigl analysis.  State v. Enger, 539 N.W.2d 259, 263 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995).  It may be admitted if the district court determines there is clear and convincing evidence that the prior offense occurred and if the probative value of the evidence outweighs the potential for unfair prejudice.  Bauer, 598 N.W.2d at 364.  The admission of the evidence lies within the discretion of the district court.  Buggs, 581 N.W.2d at 336. The state need not show that its case is weak.  Id.  The clear and convincing standard has been met if it is “highly probable” that the facts sought to be admitted occurred.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (quotation omitted).

            First, Vickers did not challenge the police report of the 1996 assault on his wife, and we conclude the clear and convincing standard has been met for that incident. 

            As to the probative value of the evidence, Vickers was charged with the intentional offense of assault.  Mrs. Vickers testified that Vickers picked up two knives, jumped, and tried to get to her.  In order to convict Vickers of assault, the state had to prove that, armed with a knife, he intentionally tried to inflict bodily harm on Mrs. Vickers or that he acted with intent to cause fear in her of immediate bodily harm or death.  The district court found that the 1996 assault, in which Vickers hit Mrs. Vickers’s body with a closed fist and her mouth with a telephone, was relevant to prove that he acted intentionally in the current offense when, as she testified, he jumped and tried to get to her.

            Because the admission of evidence of other crimes is within the district court’s discretion, we conclude that it was within the court’s discretion to admit evidence of the 1999 terroristic-threats offense as proof of the (Stinson) felony murder charge and to admit evidence of the 1996 assault charge as proof of the (Mrs. Vickers) assault charge.  The district court instructed the jury that it was to consider the other-crimes evidence only for the appropriate charge.

            Vickers, however, challenges the efficacy of the instructions and asks us to assume that the jury did not follow the instructions.  The district court gave the standard other-crimes jury instructions,[5] modified to limit their application to only the appropriate offense.  But Vickers argues that the jury would have found it “a very simple process” to use the assault on Mrs. Vickers “as propensity evidence in the felony-murder case.”  Similarly, he argues the 1999 terroristic-threats offense “had a great deal of potential prejudicial effect, both as to the felony-murder charge and to the assault charge.”  (Emphasis added.)  In making his argument in this respect, Vickers takes aim at the standard other-crimes jury instruction, which he describes as “the meandering, incomprehensible other-crimes instruction given in Minnesota.”

            In response to Vickers’s criticisms of the other-crimes instructions, it should first be noted that the district court provided jurors with written copies of the instructions.  Having written copies would obviously aid the jurors in comprehending the instructions.  Second, we do not accept Vickers’s complaint that the instruction is meandering and incomprehensible.  For example, the instruction given before the testimony about the 1999 terroristic threats takes 19 lines in the transcript.  The relevant language in that instruction reads:

            The incident regarding March 27, 1999 is offered for the limited purpose of addressing Count 1, Murder in the Second Degree. 

            It is not to be used or considered at this time regarding Count 2, assault in the second degree.

 

            The instruction given before the testimony about Vickers’s 1996 assault on his wife takes 21 lines in the transcript.  In it the relevant language is very similar to the language quoted above, except that it tells the jury to consider the evidence only in connection with the assault charge and not to consider it in connection with the felony-murder charge.

            At the conclusion of the trial, the court’s instructions concerning other-crimes evidence take up less than a page of the transcript.  The court instructed the jury in part as follows:

            The State has introduced evidence of an occurrence on June 6, 1996 at 6921 Indiana Avenue in Brooklyn Center, Minnesota.  As I told you at the time this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether the defendant committed assault in the second degree against Annie Vickers as charged in the complaint.

 

            * * * *

 

            The State has also introduced evidence of an occurrence on March 27, 1999 at 6921 Indiana Avenue in Brooklyn Center, Minnesota.  As I told you at the time this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether the defendant committed murder in the second degree against Frank Stinson as charged in the complaint.

 

We conclude that the court’s instructions were neither meandering nor incomprehensible.

            There is, of course, no way to tell if the jury disobeyed the instructions and misused the evidence; Vickers can only ask us to speculate that the jury did so.  There is ample evidence relating directly to the charges in the complaint from which the jury could have found Vickers guilty of both charges: Mrs. Vickers’s testimony, the recording of Stinson’s 911 call, and the police officers’ testimony.  Thus, to accept Vickers’s argument requires us to affirmatively conclude that the jury did not follow the court’s instructions, without Vickers making a particularized showing in this case that the jury did so.  Jurors are presumed to follow the district court’s instructions.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998); State v. Forcier, 420 N.W.2d 884, 885 n.1 (Minn. 1988).

            Furthermore, as we have noted, the district court provided cautionary instructions to the jury before the other-crimes evidence was introduced and again in its instructions to the jury prior to deliberations.  District courts can guard against unfair prejudice by giving cautionary instructions.  State v. Ostlund, 416 N.W.2d 755, 764-65 (Minn. App. 1987), review denied (Feb. 24, 1988); see also Kennedy, 585 N.W.2d at 392 (concluding that cautionary instruction to jury “lessened the probability of undue weight being given by the jury to the evidence” (citation omitted)).

            Thus, we conclude:  (1) evidence of the 1996 assault was properly admitted to be considered by the jury in connection with the charge of second-degree assault, (2) evidence of the 1999 terroristic-threats incident was properly admitted to be considered by the jury in connection with the charge of second-degree felony murder; and (3) the district court’s limiting instructions were proper.

            Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Vickers notes that during cross-examination, she told police appellant had thrown her down.

 

[2] Photographs showed a discoloration on her neck.  Vickers asked her during cross-examination if the discoloration was caused by the chemotherapy for her throat cancer.  She was unable to offer an explanation.

 

[3] Vickers questioned during cross-examination how she could go fishing and yell at Vickers while he was choking her if she was weak.  She could not explain.

 

[4] Vickers notes during cross-examination that Mrs. Vickers told police that Stinson put the knife on a coffee table.

 

[5] 10 Minnesota Practice CRIMJIG 2.01 (2000) (to be given when the evidence is admitted); 10 Minnesota Practice CRIMJIG 3.16 (2000) (to be given at the close of the trial).