This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Godfrey Tamale Achaw,




Filed December 26, 2001

Affirmed in part,

 reversed in part, and remanded for resentencing

Toussaint, Chief Judge

Dissenting, Hanson, Judge


Hennepin County District Court

File No. 99091290


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


Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant Hennepin County Attorney, C-2100 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


Andrew S. Birrell, Birrell & Dunlap, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN 55403 (for appellant)



            Considered and decided by Hanson, Presiding Judge, Toussaint, Chief Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Appellant Godfrey Achaw was employed in different capacities caring for mentally ill and developmentally disabled adults.  While employed as a job coach at Kaposia Inc. and as a staff member of Re Entry, Achaw was charged with three counts of criminal sexual conduct perpetrated against three developmentally disabled adult females under his supervision. D.D., D.B., and J.P.

He was tried and convicted of sexual assault in the fourth degree against D.D. and of sexual conduct in the third degree against D.B.  The third count, against J.P., was dismissed.  He was sentenced to 48 months in prison and a 27-month stayed sentence, to run consecutively.

The trial court denied Achaw’s post-conviction petition for relief in which he argued that he had ineffective assistance of counsel and that the trial court erroneously submitted Count II to the jury.  This appeal followed.  We affirm in part, reverse in part, and remand for resentencing.



Defendants in a state criminal proceeding have a federal constitutional right to represent themselves under the Sixth and Fourteenth Amendments.  State v. Richards, 456 N.W. 2d 260, 263 (Minn. 1990).  “The right is so fundamental that it is not subject to a harmless error analysis.”  State v. VanZee, 547 N.W.2d 387 (Minn. App. 1996). A defendant whose right to self-representation has been violated need not show prejudice.  State v. Richards, 456 N.W. 2d 260, 263 (Minn. 1990).

Achaw contends that he was denied his constitutional right to self-representation when the trial court denied his request to fire his attorney on the day of trial.  The state contends that Achaw made no express request to represent himself; he asserted only that he wanted to fire his attorney. 

Achaw wanted to fire his attorney the morning of trial and told the trial court that he felt his attorney was not prepared. The trial court noted that there were no requests for continuances, Achaw had not hired another attorney, his attorney at the time was unaware of his client’s wishes, and it was too late for continuances because the jury was impaneled.  The trial court: (1) determined the proceedings would be unduly delayed if Achaw were allowed to hire another attorney; and (2) told Achaw he could not fire his attorney “unless you choose to self-represent.”  Despite the court’s statement, Achaw neither requested self-representation nor indicated that he was interested in the option.  After his conversation with the trial court, Achaw stated that the trial could go forward with his current counsel.    

It is within the discretion of the trial court to determine whether a continuance should be granted, and a “defendant may not obtain a continuance by discharging his counsel for purposes of delay or by arbitrarily choosing to substitute counsel at the time of trial.”  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  The trial court determined that Achaw was delaying the proceeding by requesting a new attorney and on that basis denied his request. 

A trial court will allow self-representation if  (1) the request is clear, unequivocal, and timely; and (2) the defendant knowingly and intelligently waives his right to counsel. Richards, 456 N.W.2d at 263.  Achaw’s assertion that his right to represent himself was denied fails because there was no express or clear request for self-representation. The trial court said to Achaw:

To request another attorney now when we’re in the middle of trial would unduly delay the proceedings.  So your request to go with another attorney is denied unless you choose to represent yourself.  I would not advise you to do that, and the only other way that I would allow you to get another attorney is if you tell me you have hired another attorney who is ready to go to trial today right now. 


Although the option to represent himself was presented to Achaw directly by the trial court, there is no evidence that Achaw made the requisite clear and unequivocal request or knowing and intelligent waiver of his right to counsel.  Achaw never stated that he wished to invoke his right of self-representation, only that he wished to obtain a new attorney.  Therefore, the trial court did not err in denying Achaw’s request for a continuance.


The interpretation of the rules of criminal procedure is a question of law subject to de novo review.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998). 

Achaw was charged with three counts of criminal sexual conduct against three separate victims:  Count I against D.D., Count II against D.B., and Count III against J.P.  Achaw contends that the court dismissed Count II, but then submitted it to the jury.  The state argues that the court made a correctable clerical error when it dismissed Count II.  Achaw contends that: (1) submitting Count II to the jury after the trial court on the record stated that Count II was dismissed violated Achaw’s constitutional right against double jeopardy; and (2) the “[t]rial court ‘unequivocally’ entered a judgment of acquittal on Count II of the Complaint.”  Such a clear statement of acquittal is not found in the record.  When the trial court stated that “the count relating to J.P. is not viable,” the court was clearly referring to Count III, the only count relating to victim J.P.  The state and the post-conviction court in its order point out that the court referred to the count by both number and the victim’s name and therefore the reference to the incorrect count number was a correctable clerical error. 

Because each numbered count referred to one specific victim, there was no error.  When the court dismissed Count II, the court expressly stated that the count “as to J.P.” was not viable.  It was obvious to all the parties that the count referring to J.P. was dismissed.  The record demonstrates that the: (1) court meant to dismiss Count III, not Count II, relating to J.P.; (2) parties were aware of the trial court’s dismissal of the charges relating to J.P.; (3) parties did not object when the trial court misstated which count related to J.P.; and (4) error was not raised at any time during the trial.  The parties proceeded as if only Count III was dismissed and Count I and II were still viable.  When jury instructions were given, the trial court did not refer to the count numbers; rather the court defined the charged offenses, absent the J.P. count, and expressly instructed the jury not to consider anything related to J.P.  The law was correctly stated to the jury in relation to the remaining charges.  To rely solely on the count number used by the trial court in the record ignores the substance of the ruling.  The trial court clearly stated the name of the victim accompanying the dismissed count.  The record reflects that there was no ambiguity as to which count was dismissed during the trial because the trial court referenced each count by the victim’s name.  Accordingly, the trial court did not err in submitting Count II to the jury.


Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Even if a single error at trial, standing alone, would not require reversal, the cumulative effect of the errors may compel reversal.  See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).  Compare State v. Erickson, 610 N.W.2d 335, 340-41 (Minn. 2000) (holding that the cumulative effect of errors did not deprive the defendant of his right to a fair trial), with State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (reversing based on cumulative effect of trial errors). 

 Spreigl Evidence Admission

Achaw also asserts that the trial court erred by admitting Spreigl evidence of M.M. and R.C.  They testified concerning an incident with Achaw about one year earlier at a group home. The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W. 2d 187, 193 (Minn. 1996).

The trial court may admit Spreiglevidence if it finds  “(1) that the evidence is clear and convincing that defendant participated in the Spreigl offense; (2) that the Spreiglevidence 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) (citing State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988).

Here the witnesses testified in person.  R.C. corroborated M.M.’s account of her encounter with Achaw.  The court determined that there was clear and convincing evidence that Achaw participated in the offense.  The evidence of Achaw’s assault of M.M. was relevant to the state’s case, and the evidence was allowed under Minn. R. Evid. 404(b) to show absence of mistake or accident, motive, or modus operandi.  The trial court gave cautionary instructions that the Spreigl evidence was not to be used as evidence of guilt.  Accordingly, the trial court did not abuse its discretion in allowing the Spreiglevidence because it was properly admitted under rule 404(b).

Severance Request:

Achaw contends that the trial court erred in its failure to sever the counts because they are not similar in nature or time.  The state admits that the trial court erred in concluding that Achaw’s acts were part of a single behavioral incident.  The trial court found that Achaw acted in a single behavioral incident because of the closeness in time and similarity of victims and circumstances, and ruled against severance.

If the offenses are not related, severance is required to promote a fair trial.  Minn. R. Crim. P. 17.03 subd. 3(1).  In State v. Profit, 591 N.W.2d 451 (Minn. 1999) cert. denied 528 U.S. 862, 120 S. Ct. 153, (U.S. Minn. Oct. 4, 1999),the court stated that offenses must be “part of a single behavioral incident or course of conduct” to be joined. Id. at 458.  In determining whether offenses constitute a single behavioral incident a court must look at how the offenses are “related in time and geographic proximity and at whether the actor was motivated by a single criminal objective.”  Id. at 460.  The “existence of a common plan, alone, is simply insufficient to support joinder.” Id.  Offenses are not properly joined for trial when they were perpetrated against separate victims, at separate times, with months in between.  Id. at 459.  In this case, the offenses involved different victims, at different locations, different levels of severity, and months elapsed between the offenses.  Therefore, the trial court erred in permitting the joinder of the offenses on the basis of concluding that the offenses constituted a single behavioral incident.

When offenses are improperly joined, the question becomes “one of prejudice” to determine whether remand and severance are required. Id. at 460 (citing State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996)).  “[R]emand is not required if the district court’s denial of the motion to sever was not prejudicially erroneous.”  Id.  The framework for evaluating prejudicial effect is contained in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (Minn. 1965), and Spreigl is “governed by Minn. R. Evid. 404(b) and subject to Minn. R. Evid. 403.”  Profit, 591 N.W.2dat 461.  The joined offenses “may not be used to show the defendant acted in conformity with bad character, it may be admissible to show motive, intent, identity or common plan,” as long as “its probative value * * * substantially outweigh[s] * * * the danger of unfair prejudice, confusion of the issues, or misleading the jury.”  Id.  The closer the relationship between the offenses in terms of time, place, and modus operandi, the more relevant the joined crimes are, and the less concern there is that the evidence will be used improperly. Id. 

Here, the crimes are similar; they were all sexual in nature and perpetrated against vulnerable females whom Achaw supervised.  Under the Spreigl analysis, the offenses were relevant to the state's case, and the evidence was clear and convincing that Achaw participated in each offense, as indicated by the prompt reporting by the victims of the offenses and the clarity of the victims’ testimony.  The evidence tends to prove common plan and identity.  Because the improperly joined offenses could have been used as Spreigl evidence in separate trials on the separate offenses, under Profit, the joinder was not prejudicially erroneous and therefore does not require reversal.

False Allegations 

Achaw also asserts that the trial court erred by prohibiting Achaw from questioning D.B. about any prior false allegations of sexual conduct and thus violated Achaw’s right to a fair trial.  “Before evidence of prior accusations is admissible, however, the trial court must first make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.”  State v. Goldstein, 505 N.W.2d 332 (Minn. App. 1993) review denied (Minn. Oct. 19, 1993).

The trial court determined that Achaw did not establish that D.B. had made a prior accusation of sexual misconduct, or that if one was made, that it was false.  Achaw subpoenaed three of his co-workers and none knew or had ever heard of any prior allegations of sexual misconduct by D.B.  The record supports the trial court’s determination that Achaw failed to establish a reasonable probability that any prior false allegation was made. 

Achaw’s immigration status

Achaw also argues that questions regarding Achaw’s immigration status were prejudicial.  The scope of cross-examination is left largely to the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).  The state asserts that the questioning was used to challenge Achaw’s credibility and to examine his motive to lie.  Achaw himself raised the issue of his immigration to the United States during direct examination.  The trial court allowed the state to inquire into possible bias and motive, but prohibited the state from asking about deportation.  There is no evidence in the record that the trial court abused its discretion. 


To establish ineffective assistance of counsel, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). 

Achaw contends that he received ineffective assistance of counsel because of the combination of alleged errors due to his attorney’s failure to investigate, to limit damaging testimony, to inform defendant of sentencing guidelines, and to object to the trial court’s dismissal of Count II.  We disagree. 

            First, Achaw asserts that his defense counsel should have elicited testimony regarding D.B.’s prior false allegations.  During his opening statement, defense counsel alluded to D.B.’s prior false allegations of sexual assault, but did not establish the fact at trial.  The record reflects that Achaw’s counsel had difficulty interviewing staff at the victim’s residence due to data-privacy concerns.  He obtained a subpoena to interview three witnesses and to review records from the facilities frequented by the victim, but no evidence or recollection of false allegations surfaced.  Such efforts, albeit unsuccessful, do not constitute ineffective assistance of counsel.

Second, Achaw argues that his counsel did not effectively cross-examine victims about their medical history.  The witnesses’ medical histories were made available to the jury during opening and during direct examination.  Achaw’s counsel cross-examined D.B. regarding inconsistencies in her testimony.  The record reflects that the victims were credible witnesses and testified clearly. 

There is no evidence that Achaw’s counsel failed to investigate, and even if he had, that the result of the trial would have been different absent his attorney’s performance.  

Third, Achaw claims that his counsel failed to limit damaging testimony.  An attorney’s trial tactics lie within the discretion of trial counsel. State v. Jones 392 N.W.2d 224, 236 (Minn. 1986).  Counsel tactically decided how to handle direct and cross-examination.  The record does not establish that defense counsel’s failure to object to any particular information prejudiced Achaw.

Fourth, Achaw claims that his counsel failed to inform him of the applicable sentencing guidelines.  The trial court explained to Achaw on the record the consequences of not taking the plea bargain offered to him and that if he were convicted he would spend time in prison.  The trial court corrected any omission in his counsel’s discussion of the sentencing guidelines with Achaw. 

Fifth, Achaw claims that his counsel failed to object to a jury instruction regarding the dismissal of Count II.  As discussed above, counsel had no reason to object because the counts presented to the jury were the ones that the trial court had referred to by name during the entire trial, the testimony taken related to only the two counts, and there was never a dispute as to which counts would go to the jury.

 Individually or cumulatively, the alleged errors do not constitute ineffective assistance of counsel.   


“[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).

Achaw contends that the court improperly imposed a consecutive sentence.  The state agrees that the trial court improperly sentenced Achaw consecutively.

The trial court sentenced Achaw on Count II to 48 months plus an additional five years on conditional release, minus any time served on supervised release and a fine of $200.  On Count I, the court sentenced Achaw to a 27-month stayed sentence to run consecutively and a fine of $100.

           The offense that is first in time is to be sentenced first. Minn. Sent. Guidelines II.B.101.  Here, Count II occurred first in time, and it should have been sentenced before Count I. Id.  The trial court stated that it was not departing from the guidelines when it imposed the consecutive sentence, but the consecutive sentence is itself a departure. Minn. Sent. Guidelines II.F.02. 

Consecutive sentences are permissive under the guidelines’ criteria only when the presumptive disposition for the current offense is commitment to the Commissioner of Corrections.  Id.  The presumptive sentence for Achaw on Count I was a stay of execution, a sentence that was not subject to the consecutive-sentencing criteria.  Minn. Sent. Guidelines IV.  Accordingly, the trial court abused its discretion in imposing consecutive sentences on Achaw. We therefore reverse and remand for the limited purpose of resentencing.

            Affirmed in part, reversed in part, and remanded for resentencing. 


HANSON, Judge (dissenting)

            I respectfully dissent.  I would reverse and remand for separate trials on the grounds that the refusal to sever the three charges was prejudicial error, that this error was compounded by the inappropriate admission of Spreigl evidence concerning yet a fourth incident, and that the cumulative impact of the admission of other irrelevant and prejudicial evidence denied Achaw a fair trial.

            Severance Request

            The three charges alleged three separate offenses against three separate victims, two of them being alleged to have occurred at unspecified times spanning several months.  While each involved a mentally impaired woman, the similarity ends there.  The degree of impairment differs for each woman, and the underlying events are quite dissimilar.

            Under count I, D.D. claimed that Achaw inappropriately touched her as she passed him in the doorway of a supply room of a care facility where she was a resident and he an employee.  Achaw testified that he stumbled and fell against D.D. by accident and that she misinterpreted his actions.  The date of this event was alleged to be April 17, 1999.

            Under count II, D.B. claimed that Achaw took her to his home and had intercourse with her on two occasions.  Achaw denied this claim, testified that others were always present on any occasion when D.B. was briefly at his home and that no sexual conduct occurred.  The charge alleged that these events occurred between spring and summer 1999.

            Under count III, J.P. claimed that Achaw committed sexual touching at unspecified times and places.  Achaw denied any touching.  The charge alleged that the events occurred between the spring and summer of 1999.

            At the Rasmussen hearing, the district court first announced that it would grant the defense motion for severance.  The court recognized this court’s decision in State v. Kates, 598 N.W.2d 693, 697 (Minn. App. 1999) (“Kates I”) (holding that it was error to join several alleged sex offenses that were not part of a single behavioral incident and that the error was not harmless because the cautionary instruction required for the admission of Spreigl evidence had not been given). 

This Rasmussen hearing occurred in the middle of a transition period in the development of the law on the joinder of multiple offenses.  The district court was apparently not aware of State v. Profit, 591 N.W.2d 451 (Minn. 1999), which likewise had held that it was error to deny a motion to sever charged offenses that were not part of a single behavioral incident.  Profit went on to hold that the error was harmless under its facts and that the failure to give the cautionary instructions that normally accompany Spreigl evidence does not mean that the evidence is necessarily prejudicial.  Id. at 460-61.  After the district court’s Rasmussen hearing, the supreme court reviewed Kates and remanded to the court of appeals for reconsideration in light of ProfitState v. Kates, 610 N.W.2d 629, 631 (Minn. 2000) (“Kates II”).  On remand, this court again reversed the denial of the motion to sever, holding that the defendant’s acquittal on one of the joined counts precluded consideration of that offense as Spreigl evidence under a harmless-error analysis.  State v. Kates, 616 N.W.2d 296, 300 (Minn. App. 2000) (“Kates III”).  Although the district court in the present case did not have the benefit of Kates II and III, the law was clear under Profit and Kates I that joinder was erroneous.

After continued argument by the prosecutor, the district court reversed itself and essentially accepted the prosecutor’s argument that joinder would not be prejudicial because evidence of the other offenses would be admissible in any separate trial as Spreigl evidence.  At the time of that decision, the court did not have before it, by an evidentiary hearing or even an offer of proof, any indication of what the specific evidence would be in support of each of the three charged offenses.  Obviously, the court made no finding that there was clear and convincing evidence that Achaw participated in each of these alleged offenses, which it was incapable of making on the record before it and which related to the very fact issues that the jury would be asked to determine if the three counts were joined for trial.  The district court concluded that it would deny the motion to sever based on concerns for the administration of justice (one trial versus three trials) and because it was not “terribly persuaded that there would be strong prejudice to the defendant” by a joint trial.

            Both parties, and the majority opinion, now agree that joinder was error.  But the state and the majority opinion conclude that any error was harmless because evidence of the joined offenses would have been admissible as Spreigl evidence in separate trials.  It is true that Profit and Kates II make it clear that the Spreigl analysis is the proper framework for the evaluation of whether an erroneous failure to sever is so prejudicial that reversal is necessary.  Kates, 610 N.W.2d at 631; Profit, 591 N.W.2d at 460-61.  But, under the facts of this case, that framework has several shortcomings that were not present in Profit.  Further, even an after-the-fact Spreigl analysis does not support the conclusion that the erroneous joinder was harmless here.

            First, while it is appropriate for the appellate courts to use the Spreigl framework to make a harmless-error analysis for the joinder of multiple offenses, it seems inappropriate for the district court to do so when initially considering a motion to sever.  The district court had clear directives from Profit and Kates I that joinder was erroneous where the offenses do not involve a single behavioral incident.  The district court should have ended its analysis there.  At the very least, if the district court were to proceed to consider joinder by using the Spreigl framework, it should comply with the Spreigl procedures before trial, and make the necessary finding that the evidence of each offense is clear and convincing.

            Second, when an appellate court employs the Spreigl framework in a harmless-error analysis, it presumably must conclude that evidence of each of the joined offenses would have been admissible as Spreigl evidence in the trial of each of the other joined offenses.  See Kates III, 616 N.W.2d at 299 (citation omitted) (“If evidence relating to each charged offense would have been admissible as Spreigl evidence in separate trials, joinder of the charges was not prejudicially erroneous.”  (emphasis added)).  While I would conclude that none of the three offenses charged here is sufficiently similar to be relevant to each of the others, we need not go that far.  This is because joinder is prejudicial to the defendant if any one of the joined offenses is not sufficiently similar, and it seems clear that the claim of D.B. (sexual penetration at Achaw’s home) is clearly dissimilar from the claims of D.D. (inappropriate touching as they passed in a doorway at a care facility) and J.P. (unspecified touching at unspecified times and places).  Thus, I believe use of a Spreigl framework to conduct a harmless-error analysis leads to the conclusion that joinder was prejudicial error.

            Third, the shortcomings of an after-the-fact Spreigl framework for the harmless-error analysis of a joinder of offenses are more severe under the unique facts of this case.  Citing Profit, the supreme court in Kates II made it clear that the “absence of Spreigl cautionary instructions does not negate the argument that where evidence of a charge would be admissible under Spreigl, its joinder is not prejudicial.”  Kates, 610 N.W.2d at 631.  But the application of an after-the-fact Spreigl analysis deprived this defendant of several other significant protections that would have been available had the severance motion been granted and the evidence of the other offenses offered as Spreigl evidence. 

            If the offenses had been severed, the district court would have been required to make a preliminary determination, based on clear and convincing evidence, of Achaw’s participation in any one of the other alleged offenses.  The district court did not make such a determination as a part of its decision to conduct a joint trial.  It did not hold an evidentiary hearing to test the evidence concerning the other allegations or make any finding that the evidence was clear and convincing.  It did not even require the prosecutor to make an offer of proof. 

            This shortcoming may be insignificant in a case such as Profit, where the jury ultimately finds the defendant guilty of all charges and, thus, supplies the clear and convincing finding retroactively.  But this shortcoming is very significant in a case such as Achaw’s (and Kates III), where there is no jury finding of guilt on any one of the joined charges.  As it turned out here, one of the joined offenses could not be proved – by clear and convincing evidence or otherwise.  Had the court severed the offenses for separate trials, it would have concluded that evidence of the charge involving J.P. was not admissible as Spreigl evidence because the prosecutor could not meet the clear-and-convincing-evidence threshold.  Unfortunately, the joinder of these offenses for trial, without a preliminary Spreigl analysis, meant that the court informed the jury of the charge involving J.P. at the very outset of the trial and allowed the prosecutor to describe the factual basis for that charge in the opening statement.  This injection of the J.P. charge into the case was prejudicial to Achaw and that prejudice was not removed by the later dismissal of that charge. 

Thus, it should be clear to both the prosecutor and the district court that the risk of joinder is that if the defendant is not found guilty on every one of the joined offenses, a new trial will be required (the egg has been broken and it cannot be put back together).  This conclusion was made clear in Kates III, where the defendant was convicted of some of the joined counts and acquitted of others.  Kates, 616 N.W.2d at 298.  This court concluded that the jury’s acquittal on some of the joined counts precludes the determination that the evidence of those charges was clear and convincing, which likewise precludes the determination that joinder was harmless error.  Id. at 299-300.  Similarly here, the dismissal of the charge involving J.P. made it impossible for the court to determine, in a harmless-error analysis, that the evidence of that offense was clear and convincing.

            Of course, the joinder of these offenses for a single trial meant that the curative instructions normally given with the admission of Spreigl evidence were not given.  And the jury was never told that it could not use the evidence of Achaw’s conduct regarding D.B. to support a conviction of Achaw for the charge involving D.D., or even that they could not use the fact that Achaw had been charged for an offense with J.P. in considering Achaw’s guilt in connection with the offenses involving D.B. and D.D.  Because the case was tried only months before the supreme court issued its opinion in Kates II, the district court likewise did not apply the rule adopted prospectively in Kates II, that the jury must be instructed to consider each of the charges separately.  See Kates, 610 N.W.2d at 631.  Absent any contrary instructions, one must assume that a jury would view the very existence of multiple charges, and the evidence relating to each charge, as character evidence showing a propensity by Achaw to commit each other offense.

            Fourth, the joinder of these offenses for a single trial increases the complexity when additional Spreigl evidence is offered, as it was here.  When the Spreigl evidence involving M.M. was offered, an appropriate Spreigl analysis would have considered whether that evidence was sufficiently similar to each of the offenses being tried, or else its admission would be prejudicial error as to any one of the offenses that was not sufficiently similar.  The district court did not consider that issue, as will be discussed below.

            Spreigl Evidence

            During the pretrial conference on the day before trial was to begin, the state gave notice and made an offer of proof of another bad act by Achaw, which it proposed to offer as Spreigl evidence.  The state’s offer of proof stated that in 1998, M.M. was a resident at a group home and interacted with Achaw.  It appears that M.M. initiated horseplay with Achaw by placing a sticker from a banana on his arm.  M.M. claimed that Achaw then placed the sticker on her breast.  Achaw denied touching her breast and his counsel informed the court that the claim had been independently investigated by the Department of Health and it was unable to reach any conclusion.  The district court did not hold an evidentiary hearing to test the sufficiency of the proffered evidence and, despite the equivocal results of the Department of Health investigation, concluded that the evidence was clear and convincing based solely on the prosecutor’s offer of proof.

            Several problems exist with the district court’s Spreigl analysis.  First, the court made several observations that weighed against the admission of the Spreigl evidence.  The court observed that they were at the conclusion of the state’s case and that the state’s case was strong.  Ordinarily, the court should only admit Spreigl evidence if the state’s other evidence is weak.  State v. Reckinger, 603 N.W.2d 331, 334 (Minn. App. 1999).  Second, the court observed that there had never been a criminal investigation or charge brought with regard to the claims of M.M., “so it’s not one of the kind of clear-cut cases where there’s always a conviction so obviously it’s clear and convincing evidence.”  Third, the court stated: “I don’t find [the claims of M.M.] to be very similar or there are strong dissimilarities between apparently [M.M.’s] case and [D.B.’s] case.”  The court concluded that the evidence involving M.M. was only relevant to the charge involving D.D., stating it was

appropriate for the case in regards to [D.D.] as it was a one-on-one kind of thing as the issue as to whether or not there was an accident and it could go to the issue of the absence of mistake or accident which is one of the factors that the state has to prove.


Achaw’s claim of mistake or accident was only raised in defense to the charge involving D.D., not the charge involving D.B.  But the evidence involving M.M. was also admitted in the trial of the charge relating to D.B. and its admission in connection with that charge was prejudicial error.

            Based on the combination of the erroneous joinder of the three offenses for trial and the erroneous admission of Spreigl evidence concerning yet a fourth event, I would conclude that Achaw was denied a fair trial and would reverse and remand for separate trials.  That conclusion is further buttressed by additional prejudicial evidence placed in the record by the state, as discussed below.

            Evidentiary Issues

            Achaw immigrated to the United States in 1986 from his native country of Ghana, as a victim of torture for his political activities.  He came to Minnesota to receive psychological treatment from the Center for Victims of Torture.  Achaw then applied for asylum with the United States Immigration and Naturalization Service.  Pending the determination of his asylum appeal, he was under a standing deportation order.  The prosecution took unfair advantage of this circumstance in several respects. 

First, over objection by Achaw, the court allowed the prosecutor to cross-examine Achaw concerning his immigration status, including the fact that he entered the United States on a visitor’s visa which had expired years earlier.  This evidence was irrelevant to the charge and was likely to appeal to any jury prejudice against immigrants. 

Second, the prosecution elicited evidence without objection by Achaw that he was married and had a wife and three children living in Ghana.  This was likewise irrelevant to the charge and portrayed Achaw as a deserting husband and father.  The prosecution elicited other irrelevant and prejudicial evidence without objection by Achaw, including testimony that Achaw had requested the opportunity to speak with an attorney during an interview with police and that Achaw was under investigation by the Department of Health and was no longer authorized to work with vulnerable adults.  While the failure of Achaw’s counsel to object to this testimony may not rise to the level of ineffective assistance of counsel, as determined by the majority, the admission of this evidence has other implications.  For example, the state may not introduce evidence that a defendant invoked the right to counsel during interrogation.  State v. Roberts, 296 Minn. 347, 352, 208 N.W.2d 744, 747 (1973).  I would conclude that the admission of this evidence was plain error, affecting Achaw’s substantial and fundamental rights, which can be considered as grounds for a new trial even though objection was not made.  See Minn. R. Crim. P. 31.02 (stating that any error that “does not affect substantial rights shall be disregarded”); State v. Gruber, 264 N.W.2d 812, 817 (Minn. 1978) (stating that, even without objection, an error affecting a defendant’s substantial and fundamental rights warrants a new trial). 

The cumulative impact of this prejudicial evidence, taken together with the erroneous joinder of offenses and admission of Spreigl evidence, confirms the conclusion that Achaw did not receive a fair trial.