This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jerry Duane Kaiser,



Filed June 26, 2001

Foley, Judge


St. Louis County District Court

File No. K199600032



Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and


Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            In this appeal from a conviction for first- and second-degree criminal sexual conduct, appellant claims there was insufficient evidence to support his conviction.  Appellant also argues the district court erred in admitting Spreigl evidence of his prior convictions for sexual abuse of three young girls.  We affirm.


            Appellant Jerry Duane Kaiser was charged with criminal sexual conduct in the first and second degree under Minn. Stat. §§ 609.342, subd. 1(a), 609.343, subd. 1(a) (1998), respectively, arising from allegations that he sexually molested B.F.  The facts are discussed in relation to the legal issues raised and need not be separately stated. 


            1.         Spreigl Evidence

            Appellant argues that the district court erred in admitting evidence of his three prior convictions for criminal sexual conduct because it was more prejudicial than probative, thereby depriving him of a fair trial.  Appellant admits that each of the incidents had some probative value but argues that the cumulative effect of all three convictions and the prosecutor’s reference to them during closing arguments “was to impugn [his] character,” and, therefore, the district court abused its discretion.

            A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts, known as Spreigl evidence, absent an abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  The defendant has the burden of proving that the district court committed prejudicial error by admitting the evidence. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).

            Spreigl evidence may be admitted for limited purposes, such as showing motive, intent, absence of mistake or accident, identity, or a common scheme or plan.   Minn. R. Evid. 404(b).  Other crimes evidence shall not be admitted in a criminal prosecution unless (1) the prosecution complies with notice requirements; (2) the prosecution clearly shows what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the 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 defendant should have the benefit of the doubt, and the evidence should be excluded.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).  The prior crimes do not have to be identical to the charged crime in order to be admissible.  State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991); see also State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987) (concluding conviction for lewd conduct with seven year old was sufficient, when presented with evidence of other sexual misconduct, to establish pattern of sexual misconduct with vulnerable young women).

            In State v. Landin, the supreme court held that the district court properly admitted Spreigl evidence, despite its great potential for prejudice, where the state’s evidence was weak due to a lack of eyewitness testimony and physical evidence.  472 N.W.2d 854, 860 (Minn. 1991).  Often, evidence that is very probative is also prejudicial, but the question under Minn. R. Evid. 403 is whether the evidence is unfairly prejudicial.  State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992).

When identity is at issue, evidence of other crimes is admissible only if the [district] court finds the direct or circumstantial evidence of defendant’s identity is otherwise weak or inadequate, and that it is necessary to support the state’s burden of proof.  It should be excluded where it is merely cumulative and a subterfuge for impugning defendant’s character or for indicating to the jury that he is a proper candidate for punishment. 


State v. Lynch, 590 N.W.2d 75, 81 (Minn. 1999) (quotations omitted).

            Appellant’s only challenge is to the district court’s determination that the probative value of the Spreigl evidence outweighed its prejudicial effect.  Here, there was no physical evidence or corroborating eyewitness testimony that appellant engaged in sexual misconduct with B.F., therefore, the district court determined that the state needed the Spreigl evidence to support its case.  Further, appellant denied sexually abusing B.F.  The Spreigl evidence assisted in establishing the offender’s identity.  The Spreigl evidence also showed a common scheme of engaging in sexual contact with minor girls. 

            Appellant argues that the cumulative impact of the three convictions is unfairly prejudicial.  There are, however, other cases of sexual misconduct in which Spreigl evidence of three or more prior acts was allowed.  See State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993) (upholding admission of four Spreigl incidents); State v. Wermerskirchen, 497 N.W.2d 235, 243 (Minn. 1993) (allowing three Spreigl witnesses to testify); Crocker, 409 N.W.2d at 843-44 (upholding admission of three Spreigl incidents); State v. Duncan, 608 N.W.2d 551, 557 (Minn. App. 2000) (upholding admission of five Spreigl incidents), review denied (Minn. May 16, 2000).

            In addressing Spreigl evidence in its closing argument, the prosecutor stated:

If you convict him just because of his past, that is wrong.  That is wrong.  You know that.  You were allowed to consider his past in determining relevant issues in this case.  What is a relevant issue?  Identity.  Identity. How do you know it was him?  Is he the person?  He’s in that house alone, then within the next 24 hours she’s telling her mom * * * about what he did.  He is a man who back in 1984 committed acts of sexual contact, vaginal touching, with an 11-year-old female.  He’s a man who in 1984 committed those same type of sexual acts with a ten-year-old female, and he is a man who in 1988 committed sexual acts with his 13-year-old stepdaughter.  That is circumstantial evidence that he is the man, * * * he’s the person who did it to little [B.F.].  It shows a pattern of opportunistic fondling, abuse, of young girls.  * * *  It also shows his criminal intent.


Appellant made no objection to these statements at trial.  The state’s argument reinforced the court’s instructions to the jury that it was not to convict based on prior acts; rather, the evidence was to be used to determine identity, intent, and common scheme.  This reference to the Spreigl evidence in closing argument was not improper. 

            The district court properly balanced the probative value against the prejudicial effect in deciding to admit the Spreigl evidence.  Moreover, the cautionary jury instructions given immediately before the Spreigl evidence was offered and before deliberations, in addition to the prosecutor’s comments noted above, ensured that appellant was not unfairly prejudiced by admission of the Spreigl evidence.  The district court did not abuse its discretion in admitting the Spreigl evidence.

            2.         Sufficiency of Evidence

            Appellant contends that there was insufficient evidence for the jury to find him guilty of first- and second-degree criminal sexual conduct.  His assertion is based on several points.  First, appellant points out that B.F. could not identify him in the courtroom.  Second, appellant notes that the testimony from B.F.’s mother and the police officer conflict as to whether she told the officer that there were rumors circulating that she wanted to marry appellant.  Third, appellant emphasizes that he and a friend testified that B.F.’s mother was angry with him for not agreeing to marry her and that she stated she would see him in jail because of it.  Appellant claims that this demonstrates a strong motive for B.F. to encourage her daughter to lie and fabricate the allegations of sexual misconduct for purposes of revenge.  Finally, appellant argues that B.F.’s testimony was simply not strong enough to overcome the weakness in the state’s case, particularly because B.F. had been in counseling for attention deficit disorder (A.D.D.) and suffered negative effects from lead poisoning.     

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow a jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  It is the jury’s exclusive function to determine the credibility of the witnesses and the weight to be given their testimony.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

            First, appellant does not support his claim that B.F. would fabricate the allegations of sexual misconduct because she suffered from A.D.D. and lead poisoning.  There is no other evidence in the record to support an assertion that B.F. lies or fabricates stories.  Her testimony was consistent over a one-and-a-half year period.  Not being able to identify appellant in the courtroom does not mean that B.F. failed to identify him as the offender.  She repeatedly stated that “Jerry” perpetrated the act during the evening he babysat her.  Appellant admitted to babysitting her on the evening of the incident.  When B.F. testified, it had been a year-and-a-half since she last saw appellant.  Moreover, appellant’s appearance had changed in that he had lost weight and shaved his beard, and therefore it is reasonable that B.F. did not recognize him in the courtroom.  Further, B.F.’s mother identified appellant in the courtroom as the person who took care of B.F. on the same evening B.F. said she was molested.  Circumstantial evidence is entitled to as much weight as any other kind of evidence, so long as the circumstances are consistent with the hypothesis that the defendant is guilty and inconsistent with any other rational hypothesis.  State v. Miller, 488 N.W.2d 235, 240 (Minn. 1992).  It seems reasonable that the jury could infer from the record that appellant was the “Jerry” to whom B.F. referred.

            Second, appellant’s claim that inconsistencies in the testimony undermine the sufficiency of evidence is misplaced.  The jury weighs the credibility of the witnesses.  Bias, 419 N.W.2d at 484.  This court is not to second-guess the jury’s credibility determinations.  Inconsistencies among witnesses’ testimony do not constitute false testimony and are not a basis for reversal.  State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).  Any inconsistencies must be resolved in favor of the jury’s verdict.  State v. Voorhees, 596 N.W.2d 241, 252 (Minn. 1999).

            Third, appellant’s assertion that B.F.’s mother had a strong motive to encourage B.F. to fabricate the incident also relates to the credibility of the witnesses, which is for the jury to decide.  The credibility of B.F.’s mother, in light of any motives to fabricate, was a determination for the jury, and this court must assume they believed her testimony over that of appellant and his friend.

            Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to support appellant’s conviction for first and second-degree criminal sexual conduct.



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