This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Frederick Ace Anthony,
State of Minnesota,
Filed February 11, 2003
Reversed and remanded
Ramsey County District Court
File No. K5-01-179
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Toni Lee, Certified Student Attorney, 50 West Kellogg Boulevard, Suite 315, Saint Paul, MN, 55102 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.
Appellant challenges his conviction and sentence for first-degree criminal sexual conduct, arguing that the district court erred in joining for trial a separate second-degree criminal sexual conduct charge. Because we agree that the charges did not arise out of the same behavioral incident, and the erroneous joinder was unfairly prejudicial to appellant’s trial, we reverse and remand.
Appellant Frederick Ace Anthony married Wanda Anthony after a long period of cohabitation. With them lived Wanda’s daughter, B.T., who was two years old when appellant first came into her life and who thought of him as her father. B.T. had a very close relationship with her cousin, A.T., who lived in foster care and spent a considerable amount of time at the Anthony home.
On October 26, 2000, B.T. reported to Brian Geisen, a social worker at Harding High School, that appellant had been sexually abusing her for several years. B.T. told Geisen the abuse began when she was seven years old and continued through the spring of 2000. B.T. described to Geisen that appellant had made her disrobe and watch pornographic videos with him, had touched her sexually, and had made her masturbate him. B.T. also told Geisen that the only other person she had told about this abuse was her cousin, A.T. Geisen contacted Ramsey County Child Protection and the St. Paul Police liaison assigned to the high school. Later that day, B.T. was taken to a juvenile shelter, where she was interviewed by Patti Vitek, a social worker with Ramsey County Child Protection.
B.T. repeated to Vitek what she had told Geisen, adding that the abuse stopped because she refused to cooperate any longer. B.T. also told Vitek that A.T. had been present during two of the sexual-abuse incidents. B.T. explained that she had revealed the abuse to A.T. two or three years earlier (when the girls were approximately ten and eleven years old). B.T. told Vitek that A.T. had responded by telling B.T. that appellant had once tried to lure her downstairs in the house so she “would do that with him.” Finally, B.T. described an incident where appellant had stumbled, naked and drunk, into B.T.’s room, climbed into her bed, and attempted to put his hand between her legs. A.T., who was sleeping on the floor, was startled and went for Wanda Anthony’s help.
B.T. estimated that, at its peak, appellant’s abuse had occurred weekly, and generally involved touching and masturbation, but never intercourse. B.T. said she did not know what might have happened to A.T. and that Vitek would have to ask A.T. herself if any abuse had occurred.
The next day, Sergeant Dunnom of the St. Paul Police interviewed Wanda Anthony. Appellant volunteered to be interviewed as well. Appellant’s interview lasted about an hour and a half, and all but the last ten to twenty minutes were recorded on audiotape. Appellant denied having sexually abused B.T., but acknowledged that he drank heavily and often suffered blackouts, of which he had no memory. He said that he had not raised B.T. to be dishonest and that it was possible she had “not lied” about the abuse. The interviewing officers asked appellant if he would answer truthfully if they said the words for him, and appellant agreed that he would do so. At about this point, the audio recording of the interview ceased because the tape ran out. According to the officers’ testimony, they asked appellant a series of questions, including whether he touched B.T. with his penis; whether he touched B.T.’s vagina with his fingers; and whether he put his fingers inside B.T.’s vagina. Appellant apparently answered “yes” to each question. Although this portion of the interview was not recorded on audiocassette, the officers testified at trial and presented their post-interview report.
On October 30, 2000, Sergeant Dunnom also interviewed B.T., who added to her allegations that appellant had at times placed his penis in her mouth or put his mouth on her vagina, sometimes ejaculating when he did these things.
The officers testified at trial that, given appellant’s apparent admissions, they did not feel an interview with A.T. would be necessary to corroborate B.T.’s allegations. Appellant was charged with criminal sexual conduct in the first degree for his acts against B.T. Not until five months later, on April 10, 2001, did prosecutors interview A.T. A.T. told prosecutors that not only had she witnessed appellant abusing B.T., but also that on some occasions he had abused her. A.T. later told a nurse at Midwest Children’s Resource Center that appellant had abused her over a four-year period, beginning when she was seven or eight years old. A.T. said that B.T. was often present during these incidents, but that she had never told anyone else about the abuse. A.T. described incidents in which appellant touched her or asked her to disrobe, but stated that he had never touched her vaginal area or inserted his fingers or penis into her vagina. A.T. said that the abuse ceased after the incident in which appellant came drunk into the girls’ bedroom.
Based on A.T.’s allegations, appellant was charged with an additional second-degree criminal sexual conduct count. Before trial, and over appellant’s objection, the district court granted the state’s request to join the two charges for trial. The court reasoned that because A.T. stated that B.T. was often present during the abusive incidents directed at her, and because the accusations were fairly similar, the two charges arose from the same behavioral incident or course of conduct and could properly be joined for trial. The court also considered the difficulty and stress that separate trials might cause the young victims.
At trial, A.T. gave testimony completely inconsistent with her pre-trial statements. A.T. testified she could not remember a single incident in which appellant touched her inappropriately and that she could not remember what she had told the nurse before trial. A.T. also testified she could not be sure she ever saw appellant touch B.T. in a sexual manner and that if B.T. testified that she had seen appellant touch A.T., B.T. would be lying.
On the other hand, B.T.’s testimony expanded on her previous allegations. B.T. testified that appellant had touched both her and A.T. on the vagina and, for the first time, B.T. said that appellant had sodomized her. On cross-examination, however, she stated that she could not be sure or remember if A.T. was present during the abusive incidents. She acknowledged that her relationship with appellant had become confrontational in the spring of 2000, in part because appellant disapproved of her relationship with a 19-year old boy.
Appellant testified in his own defense. He denied having confessed to police that he sexually abused B.T. Appellant claimed that he misunderstood the officers and thought that they were asking him to acknowledge B.T.’s allegations, not admit to them. Appellant testified that he had a severe drinking problem and often blacked out. Appellant stated that he did not feel B.T. was being truthful, although he maintained his earlier statement that she was a good kid who would not lie.
The jury found appellant guilty of the charge concerning B.T., but acquitted him of the charge concerning A.T. Appellant now asks this court for a new trial on the charge concerning B.T., claiming that the joinder was improper and joining the charges unfairly prejudiced his trial.
Trial courts are required to sever improperly joined offenses if “the offenses or charges are not related.” Minn. R. Crim. P. 17.03, subd. 3(1)(a). Offenses are related when they are “part of a single behavioral incident or course of conduct.” State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999) (citation omitted). In determining whether offenses constitute a “single behavioral incident or course of conduct,” courts must consider the “time and place [of the offenses] and * * * whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.” Id. (quotation omitted) (alteration in original). Appellate courts review decisions regarding the joinder of charges for trial for prejudicial error. State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000) (citing State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999)). A defendant may be charged in the same complaint with several offenses if a defendant’s conduct “constitutes more than one offense.” Minn. R. Crim. P. 17.03, subd. 1.
Appellant argues that the offenses concerning B.T. and A.T. should not have been joined for trial because they were committed against two different victims, over different periods of time, and involved dissimilar multiple acts over an extended period of time. See State v. Blue, 600 N.W.2d 148, 150 (Minn. App. 1999) (holding that “offenses were separate crimes committed against different young girls * * * [and] [t]he incidents happened over a month apart and cannot be said to have been motivated by a single criminal objective” making joinder improper). We agree.
B.T. claimed incidents over a period of about seven years, ranging from touching to sodomy, and as frequently as once a week. Thus, B.T. claimed dozens of incidents, perhaps more than a hundred, but stated that A.T. was present for only a few. Even if A.T. had not recanted her allegations of abuse, she claimed far fewer and less-severe incidents over a shorter period of time, and she claimed incidents with appellant when B.T. was not present. Viewing the record in the light most favorable to respondent, there are still two separate victims, two separate courses of conduct, two separate timeframes, and numerous incidents involving B.T. alone. That there may be a few instances of overlap (both A.T. and/or B.T. claiming to have been in the same room) does not make these two sets of allegations a “single behavioral incident or course of conduct.” The state would absolutely not be prohibited, if they had convictions against appellant for offenses against both victims, from asking the court for separate sentences as to the two different victims and would not have been prevented from even requesting consecutive sentences. If the state had gotten convictions for charges involving both victims, B.T. and A.T., the state would act outraged if appellant and his attorney argued that pursuant to Minn. Stat. § 609.035 (2002) and/or Minn. Stat. § 609.04 (2002), appellant could only be sentenced once and/or convicted once. It is a hypothetical issue, as it is not before us, but on these facts, appellant would not have the defense at sentencing, if there were two victims, of “single behavioral incident” or “lesser included.” Thus, the state would win that argument at sentencing, which is why they have no chance to win the argument that these two cases were properly joined because proper joinder is premised on related offenses being “part of a single behavioral incident or course of conduct.” Id. These offenses were not.
The law is clear. Courts are required to sever improperly joined offenses. Minn. R. Crim. P. 17.03, subd. 3(1)(a). For the reasons described above, the charges here do not arise from a single behavioral incident. The district court erred in allowing them to be joined for trial.
When offenses are erroneously joined for trial, the next question on appellate review is whether that error unfairly prejudiced a defendant’s trial. Profit, 591 N.W.2d at 460. Generally, error is prejudicial if “there is a ‘reasonable possibility’ that the error complained of might have contributed to the conviction.” State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (citation omitted). In the case of improperly joined offenses, the supreme court determined that the Spreigl analysis is “a useful framework for evaluating the effect of improperly joining offenses.” Profit, 591 N.W.2d at 461; State v. Kates, 610 N.W.2d 629, 631 (Minn. 2000) (reversing this court’s application of a harmless-error analysis to improperly joined offenses and remanding for analysis according to Profit). “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.” State v. Kates, 616 N.W.2d 296, 299 (Minn. App. 2000), review denied (Minn. Oct. 26, 2000) (citation omitted).
Spreigl evidence may be admitted if: (1) clear and convincing evidence shows the defendant participated in the Spreigl offense; (2) the Spreigl evidence is relevant and material to the state’s case; and (3) the probative value of this evidence is not outweighed by its potential for unfair prejudice. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000). Here, as in Kates, appellant was acquitted of one of the improperly joined offenses. As in Kates, this fact makes it impossible to apply the first prong of the Spreigl analysis. To determine that the state presented clear and convincing evidence that appellant committed sexual abuse against A.T. (the offenses for which appellant was acquitted by the jury) would require this court to weigh the evidence presented at trial, which is not this court’s function. Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (observing it is not within the province of [appellate courts] to determine issues of fact on appeal). Absent clear and convincing evidence that appellant “committed all the offenses tried in the erroneously joined trial, the first prong in the Spreigl analysis has not been met.” Kates, 616 N.W.2d at 300.
Although we need not do so, because the first prong of the Spreigl test is not met, we note that the third prong is also lacking. This is a case in which a man is accused of sexually molesting his young stepdaughter. The introduction of evidence that her cousin, a girl of similar age, alleged that appellant had also abused her would have an enormous potential for unfair prejudice. It would create the impermissible risk that appellant would be convicted for reasons other than those relevant to the specific crime charged.
We conclude that appellant’s first- and second-degree criminal sexual conduct charges involving two different victims, B.T. and A.T., were improperly joined for trial. The record does not support any fair conclusion that the dozens of incidents involving two separate victims over two extended timeframes, each timeframe being different in length, were a “single behavioral incident.” The improper joinder cannot be harmless beyond a reasonable doubt because appellant was acquitted of all charges relating to A.T., and thus, none of those incidents would have been admissible as Spreigl evidence in a trial involving B.T. Thus, we reverse and remand for a new trial on the criminal sexual conduct charges involving only B.T.
We note finally that because appellant was acquitted of the second-degree charge concerning A.T., those allegations may not be used as Spreigl evidence at appellant’s new trial involving B.T. State v. Wakefield, 278 N.W.2d 307, 309 (Minn. 1979) (stating “under no circumstances” may evidence of a crime for which defendant has been acquitted be admitted at trial for another offense) (emphasis added). Either side can attempt to call A.T. as a witness to any incidents where she claims to have been an eyewitness to alleged abuse of B.T. (as may any other witness with relevant testimony). That decision is left to the trial court if and when the state retries appellant on the charges concerning B.T.
Reversed and remanded.
 “Prior to 1990, Rule 17.03 contained no express criteria for when improperly joined offenses must be severed. Instead, the rule merely provided that ‘offenses * * * improperly joined shall be severed for trial.’ Minn. R. Crim. P. 17.03, subd. 3 (1989). However, in 1990, subdivision 3(1) was added to Rule 17.03. Subdivision 3(1) sets forth the following express criteria for severance:
On motion of the prosecuting attorney or the defendant, the court shall sever offenses or charges if:
(a) the offenses or charges are not related;
* * *
Under the language added by Rule 17.03, subd. 3(1), a district court must first decide whether the joined offenses are related. If the court concludes that the offenses are not related, the court must then sever them for trial.” Profit, 591 N.W.2d at 458 (emphasis in original).
 We note that while this court must perform a Spreigl analysis to determine whether improper joinder was unfairly prejudicial, the district court must not attempt to circumvent the traditional, “single behavioral incident” joinder analysis. Profit, 591 N.W.2d at 461. Appellate courts do a Spreigl-type analysis to determine prejudice. Trial courts are required to do a “single behavioral incident” analysis. This case was not a single behavioral incident.