This opinion will be unpublished and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
State of Minnesota,
Dale Francis DeRosier,
Filed January 8, 2002
Kandiyohi County District Court
File No. K5-00-304
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John E. Mack, Mack & Daby, 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from convictions of interfering with an emergency call, making terroristic threats, and second-degree assault with a dangerous weapon, appellant challenges the district court’s admission of Spreigl evidence to help show that appellant displayed a gun when committing the charged offenses. Appellant argues that the evidence that he had pulled a gun on two men two years earlier was irrelevant, because the circumstances were not substantially similar, and was not clear and convincing, because the state had dismissed the weapons charge arising out of that event. We affirm.
In February 2000, appellant Dale Francis DeRosier went to the home of Gail Aretz and James Guptill to collect the balance of a loan he had made to Guptill. When Guptill told DeRosier that he would not repay DeRosier until DeRosier brought back the automobile parts he had given him as collateral, DeRosier became upset.
Aretz and Guptill told the police that DeRosier threatened them with a handgun and hung up the phone when Aretz tried calling 911. They also claimed that DeRosier told Guptill that if Guptill did not repay the loan in 24 hours, DeRosier was going to “blow him and [Aretz] away.” Police conducted an investigation, and obtained DeRosier’s consent to search his home, but they were unable to find any handgun.
DeRosier was charged with interfering with an emergency call, two counts of making terroristic threats, and two counts of second-degree assault with a dangerous weapon. At trial, DeRosier admitted that he had threatened Guptill, but said he did not have or use a gun. DeRosier also denied taking the phone from Aretz.
To support the claim that DeRosier had used a gun when he threatened Guptill and Aretz, the state offered testimony regarding the events of March 25, 1998, which had led to DeRosier’s 1999 disorderly conduct conviction. That conviction was based on DeRosier’s confrontation with two men, Joshua Evenson and Morgan Philippi, who had driven on DeRosier’s property. Evenson testified that DeRosier approached the car and held a gun to Philippi’s head, saying he would “blow off [his] f---ing head.” Philippi likewise testified that DeRosier had held a gun to Philippi’s head and said he would “blow [their] m-----f---ing heads off.”
The state also called Gerald Kramber, who testified that when DeRosier described the 1998 events to him, DeRosier said that he had threatened a couple kids with a gun; that he had hidden the gun before the police arrived; that he told the police he had not used a gun but had only used a hammer; and that, as a result, he was successful in avoiding prosecution for assault with a deadly weapon.
DeRosier was found guilty of all the charged crimes and was sentenced to imprisonment for 36 months. DeRosier appeals from the convictions.
While evidence of other crimes or bad acts, known as “Spreigl evidence,” may not be used to show a defendant acted in conformity with his bad character, it may be admissible for other purposes, such as to show a common plan or scheme, to establish modus operandi or to refute allegations of fabrication. Minn. R. Evid. 404(b); State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998). Spreigl evidence may not be admitted unless (1) the evidence of the other act is relevant and material to the state’s case; (2) the evidence clearly and convincingly shows that the defendant participated in the other act; and (3) the probative value of the other act evidence is not outweighed by its potential for unfair prejudice. Minn. R. Evid. 403, 404(b); State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).
A reviewing court will not reverse the district court's admission of 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). In determining whether any error was prejudicial, this court examines the error and its impact within the context of the record as a whole. State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).
DeRosier argues that the Spreigl evidence was not relevant because it was remote in time and not sufficiently similar in nature. He characterizes the 1998 event as being a reaction to the intrusion on DeRosier’s property by two strangers, and the 2000 event as being an initiation by DeRosier of a collection effort with two acquaintances. To determine the Spreigl evidence’s relevance and materiality, the district 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.
Kennedy, 585 N.W.2d at 390 (quotations and citations omitted).
The district court found a similar modus operandi in both the 1998 and 2000 events: an angry assailant who used similar language while threatening people with a gun. The court reasoned that the sufficiently close relationship between the charged crime and the Spreigl act shows DeRosier’s common plan to use a gun to resolve a property dispute and then to hide the gun to avoid a more serious criminal charge. Further, the district court determined that the Spreigl evidence was admissible to rebut any potential argument by DeRosier that the claims by Aretz and Guptill, that DeRosier had displayed a gun, were fabricated.
DeRosier argues that the exception allowing Spreigl evidence to prove a common plan or scheme only applies where the prior act is a part of the same crime – “It refers to planning or scheming related to another segment of the same incident.” But there are no Minnesota decisions that limit the common plan or scheme exception to acts that are part of a single crime. To the contrary, in State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn. 1993), the supreme court rejected, at least for sex crimes, the proposal by some academic commentators that the common plan or scheme doctrine be given a narrow application. See also, Kennedy, 585 N.W.2d at 391. Other decisions have applied this broader exception in cases not involving sex crimes, holding that Spreigl evidence is not limited to identical acts, and the acts do not need to be part of a single behavioral incident. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991); State v. Keeton, 573 N.W.2d 378, 384 (Minn. App. 1997) (stating that a factually distinct robbery two years earlier was sufficiently similar to the charged crime to be admissible to show that defendant knew how to plan the crime), rev’d on other grounds, 589 N.W.2d 85 (Minn. 1998).
In any event, we need not address admissibility under the common plan or scheme or modus operandi exceptions because the evidence was admissible to rebut DeRosier’s claim of fabrication. Kennedy, 585 N.W.2d at 391 (holding Spreigl evidence admissible to “refute defendant’s contention that the victim’s testimony was a fabrication”); Wermerskirchen, 497 N.W.2d at 242. DeRosier argues that the evidence could not be used to rebut a fabrication claim because he had not made a claim of fabrication before the close of the state’s case. But DeRosier made a clear claim of fabrication in his opening statement, when he emphasized that he did not have or use a gun. This statement implied that Guptill and Aretz fabricated the existence of a gun, which was a material element of the charge of assault with a deadly weapon.
DeRosier argues that the district court erred by finding that the evidence of the 1998 event was clear and convincing because the testimony about the event was in conflict, the state had dismissed the weapons charge and DeRosier had only pleaded guilty to disorderly conduct, which did not imply the use of a gun.
The requirement that the evidence be clear and convincing is addressed to the discretion of the district court and is satisfied when the district court concludes that it is “highly probable” that the prior bad act actually occurred. Kennedy, 585 N.W.2d at 389. The district court conducted a Spreigl hearing before trial and took the testimony of Evenson and Philippi. The district court found that there was clear and convincing evidence that DeRosier had threatened the men with a gun in 1998, based on the unrebutted and detailed description of the March 1998 events that Philippi and Evenson gave at the Spreigl hearing, corroborated in part by DeRosier’s guilty plea to disorderly conduct.
The testimony of Philippi and Evenson provided a sufficient basis for the district court’s determination that the evidence was clear and convincing. The testimony of a victim may be sufficient to meet the clear and convincing standard, whether or not it is corroborated. Kennedy, 585 N.W.2d at 389. The question of the credibility of Evenson, and Philippi was for the district court to decide. Moreover, the fact that the state dismissed the weapons charges in connection with the 1998 event does not preclude a finding that the evidence was clear and convincing. There is no definitive record of why these charges were dismissed and the dismissal does not operate as a final determination that DeRosier did not use a gun in 1998. Cf. State v. Kates, 616 N.W.2d 296, 299-300 (Minn. App. 2000) (holding that state may not use as Spreigl evidence, acts for which a defendant was acquitted after trial), review denied (Minn. Oct. 26, 2000). Because the district court could have found it highly probable that the 1998 threats occurred, as Evenson and Philippi described them, and the evidence was sufficient to support that finding, the district court did not abuse its discretion by finding that there was clear and convincing evidence that DeRosier had threatened Philippi and Evenson with a gun in 1998.
DeRosier argues that the admission of the Spreigl evidence was unfairly prejudicial. Spreigl evidence cannot be admitted if its probative value is outweighed by its potential for unfair prejudice. Robinson, 604 N.W.2d at 363.
[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the [district] 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 [district] court admit the Spreigl evidence.
Kennedy, 585 N.W.2d at 391-92 (quotation omitted).
The district court found the Spreigl evidence was probative of DeRosier’s intent and motive to persuade with threats and weapons, and to hide the weapon to avoid prosecution. The state’s case turned on the credibility of Aretz and Guptill and, thus, the Spreigl evidence was needed to support the state’s burden of proof. Id.; State v. Landin, 472 N.W.2d 854, 860 (Minn. 1991) (stating that because state’s case was weak, Spreigl evidence was appropriate since the state lacked physical evidence).
By giving the standard limiting instructions, the district court protected DeRosier from being unduly prejudiced. See State v. Ostlund, 416 N.W.2d 755, 764-65 (Minn. App. 1987) (finding that cautionary instructions decreased likelihood of jury giving the evidence undue weight), review denied (Minn. Feb. 24, 1988). The district court did not abuse its discretion by finding that the probative value was not outweighed by the prejudicial effects of the Spreigl evidence.
 At trial, Guptill testified that DeRosier initially said, “I’m gonna blow your sh-t away and your old lady’s too” and when DeRosier left, he said, “I want my money in 24 hours or I’m gonna blow you and her away.”