This opinion will be unpublished and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,
Demario James Drummond,
Filed August 20, 2002
Concurring specially, Randall, Judge
Ramsey County District Court
File No. K9-01-1724
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Harten, Judge.
Appellant challenges his convictions of attempted first-degree murder, second-degree assault, and drive-by shooting, arguing that the district court abused its discretion in admitting Spreigl evidence that appellant had shot the victim five years earlier under different circumstances. Appellant also argues that the district court erred in admitting hearsay statements of his four-year-old daughter. Because we find no abuse of discretion, we affirm.
F A C T S
On the evening of 15 May 2001, Zachary Kloeppel was walking south on Minnesota Street between Sixth Street and Fifth Street in downtown St. Paul. As he neared the corner of Fifth Street and Minnesota Street, he saw a maroon car and heard approximately five gunshots. He saw flame coming from a gun in the driver’s side window of the maroon car, but did not see who fired the shots. Kloeppel was hit in the left hip.
At about 11 p.m., St. Paul police officers Bailey and Pavlak were driving eastbound at the corner of Fourth Street and Minnesota Street when they heard gunshots to the north. They saw smoke in the air and observed a maroon car driving north on Minnesota Street at a high rate of speed. The officers pursued the car, briefly losing sight of it as it turned east on Seventh Street, but regaining sight of the car, which turned south on Robert Street and stopped. Bailey and Pavlak found appellant Demario Drummond and his four-year-old daughter, A.D., in the car.
Pavlak removed A.D. from the car and engaged her in the following dialogue:
[Q:] Did you see a gun?
[A.D.:] Yes, Daddy had a gun.
[Q:] Where did the gun go?
[A.D.:] Daddy threw the gun out the window.
The police arrested appellant. The next day, appellant told an interviewing officer that he knew Kloeppel and believed that Kloeppel had beaten and killed his uncle. Appellant was charged with attempted first-degree murder in violation of Minn. Stat. §§ 609.17, 609.185 (3) (2000), second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2000), and drive-by discharge of a firearm in violation of Minn. Stat. § 609.66, subd. 1e(b) (2000). Appellant claimed that another person in the car had fired the gun. He pleaded not guilty, and a jury trial was held.
At trial, the state sought to admit Spreigl evidence of appellant’s December 1996 second-degree assault conviction in which Kloeppel was the victim. The district court allowed the evidence, noting that it strengthened the state’s case on the identity of the gunman. The state also sought to admit A.D.’s statements to Bailey and Pavlak because the district court had found A.D. incompetent to testify. The district court allowed the hearsay statements as excited utterances.
The jury found appellant guilty on all three counts. This appeal followed.
Appellate courts largely defer to the trial 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).
1. Spreigl Evidence
Evidence of other crimes or bad acts, known as Spreigl evidence, is not admissible to “prove the character of a person in order to show action in conformity therewith,” but it may be admissible for other reasons such as proving motive, intent, preparation, plan, or identity. Minn. R. Evid. 404 (b). To admit Spreigl evidence, the trial court must find (1) clear and convincing evidence that the defendant participated in the designated event; (2) that the Spreigl evidence is relevant and material to the state’s case; and (3) that its probative value outweighs the potential for unfair prejudice. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).
The district court relied on Kloeppel’s testimony and that of the district court clerk responsible for the criminal division records in Ramsey County to determine whether there was clear and convincing evidence that appellant participated in the earlier shooting. Kloeppel testified that he had been shot by appellant in 1996. The clerk reviewed the pertinent records and testified that appellant had been convicted of second-degree assault on Kloeppel. “Clear and convincing evidence may be established by the testimony of a single witness.” State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000) (citation omitted), review denied (Minn. 22 Aug. 2000). We conclude that there was clear and convincing evidence that appellant participated in the 1996 shooting.
In determining whether Spreigl evidence is material and relevant,
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.
Lynch, 590 N.W.2d at 80 (quotation and citation omitted).
The district court found that the Spreigl evidence was material to show appellant’s motive and identity. The two incidents have important similarities. Both were public shootings in downtown St. Paul. More importantly, both shootings involved the same individuals. The supreme court has recognized on “numerous occasions” the “inherent value of evidence of past acts of violence committed by the same defendant against the same victim.” State v. Williams, 593 N.W.2d 227, 236 (Minn. 1999) (citation omitted). This value is not diminished because of differences in the two shootings. See Lynch, 590 N.W.2d at 80-81 (we have not required exact similarity in time, place, and modus operandi if “the relevance of the evidence [is] otherwise clear”). Likewise, the five-year separation between the shootings does not make the Spreigl evidence inadmissible. See State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (holding that the ultimate issue is not temporal proximity but relevance). Because both shootings involved the same victim, the evidence was material and relevant to the case.
The remaining prong of the Spreigl test considers how necessary the Spreigl evidence is to the state’s case. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000). Spreigl evidence to prove identity is admissible only if the trial court finds that the state’s direct or circumstantial evidence is weak and cannot support the state’s burden of proof. Id. The district court admitted evidence of the 1996 shooting because the state’s case on identity was weak, noting that even Kloeppel could not identify the shooter. Identity was crucial, given appellant’s claim that a third party had fired the gun. The district court also gave proper jury instructions limiting the use of the evidence to the identity of the gunman and ensuring that appellant suffered no improper prejudice. See Williams, 593 N.W.2d at 237; Lynch, 590 N.W.2d at 81 (jury instructions lessen prejudicial effect of Spreigl evidence). The probative value of the evidence outweighed the danger of unfair prejudice.
The district court did not abuse its discretion in admitting the Spreigl evidence.
2. Hearsay Evidence
An out-of-court statement by a declarant used to prove the truth of the matter asserted is inadmissible hearsay evidence, subject to certain exceptions. The district court admitted A.D.’s statements as excited utterances. For a statement to qualify as an excited utterance: (1) there must be a startling event or condition; (2) the statement must relate to the startling event or condition; and (3) the declarant must be under stress caused by the event or condition. State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000); see also Minn. R. Evid. 803 (2).
Four-year-old A.D. was a passenger in a car that was involved in a drive-by shooting and then immediately chased by a police car with its emergency lights and siren activated. Following the chase, the police officers approached the car shouting and with guns drawn. The police found A.D. in the car and questioned her at the scene. A.D.’s statements concerned what happened during the chase; she told the police that her father had a gun that he had thrown out the car window. The police reports are silent about A.D.’s behavior or state of mind when she spoke with the police. The district court inferred that A.D. was under stress and frightened because of the nature of the incident and admitted her statements into evidence as excited utterances.
In State v. Hogetvedt, 623 N.W.2d 909, 913 (Minn. App. 2001), review denied (Minn. 29 May 2001), we upheld the admission of excited utterances even when there was no direct evidence that the declarant was traumatized when making the out-of-court statements. In that case, given the declarant’s injuries, the trial court reasonably assumed the declarant was still under stress from the incident even though the statement came three hours after an assault. Relevant factors to determine whether a declarant is under stress from a startling event include “the length of time elapsed, the nature of the event, the physical condition of the declarant, and any possible motive to falsify.” Id. (quoting State v. Daniels, 380 N.W.2d 777, 782-83 (Minn. 1986)). A.D. spoke to the police at the scene immediately after the stop. Appellant did not show any possible motive for A.D. to lie. We agree with the district court that a reasonable inference arises that a shooting-chase-stop incident that occurred here, would be very traumatic for a four-year-old passenger riding in the fleeing car.
Appellant contends that A.D.’s statements were not excited utterances because they were given in response to questions. But “an excited utterance is not necessarily rendered inadmissible by the fact that the declaration was made in response to a question.” Daniels, 380 N.W.2d at 783 (quotation and citation omitted).
We conclude that the district court did not abuse its discretion in admitting A.D.’s out-of-court statements as excited utterances. Having affirmed the admission of evidence under the excited utterance exception to the hearsay rule, we need not address the application of the residual exception to the rule.
RANDALL, Judge (concurring specially).
I concur in the result
 The state must also provide notice to the defendant and clearly indicate why the evidence is being offered. Lynch, 590 N.W.2d at 80. Appellant does not argue that the state failed to meet these requirements.
 The state argued that appellant shot Kloeppel on both occasions because he believed Kloeppel had robbed his uncle. Although appellant now argues in his brief that the beating took place only recently, this evidence was not before the district court and is not part of the record. Minn. R. Crim. P. 28.02, subd. 8 (record on appeal consists of all papers filed in trial court, exhibits, and transcripts of proceedings). We do not consider evidence that is not part of the record. State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999), review denied (Minn. 14 Sept. 1999).
 We note that “[i]ncompetency to testify in itself is not a bar to admission of [excited utterance] statements.” State v. Daniels, 380 N.W.2d 777, 783 (Minn. 1986) (citation omitted).