This opinion will be unpublished and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
State of Minnesota,
Donald William Warren,
Filed May 20, 2003
Mille Lacs County District Court
File No. K3-00-1387
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Bradford S. Delapena, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
Appellant Donald Warren appeals his conviction of criminal sexual conduct. He argues that the district court accepted a biased juror and improperly admitted out-of-court statements and prior bad-acts evidence; he also argues that his sentence exceeds the statutory maximum. Because we see no abuse of discretion in the admission of the jury or in the evidentiary decisions and no error of law in the sentencing, we affirm.
On 2 December 2002, four-year-old HKW and her sister were dropped off at appellant Donald Warren's house so that appellant and his wife could baby-sit them. The children spent the night at appellant’s house. The next morning, when the girls’ mother arrived to pick them up, HKW told her, “[Appellant] * * * touched my pee-pee.”
After leaving appellant’s house, HKW’s mother contacted the police. That afternoon, a child protection worker interviewed HKW. HKW said that she could not sleep and went out to the living room where appellant and his wife were watching HKW’s cousin play video games. Appellant’s wife got her a pillow and a blanket so that she could sleep on the living room couch. HKW told the child protection worker that appellant had touched her “pee-pee” while she lay under the blanket on the couch, explaining that he reached under her clothes and touched the skin of her vagina. HKW’s cousin later testified that HKW was lying under a blanket with her feet toward appellant on one side of the couch while appellant was seated at the other end of the couch within reaching distance of HKW’s waist.
Appellant was charged with two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. Prior to trial, the district court issued an order pursuant to Minn. Stat. § 595.02, subd. 3 (2002), admitting the videotaped interview into evidence. The district court also admitted statements HKW made to her mother, to the investigator, and to the child protection worker.
During jury selection, appellant challenged one juror for cause because he was a retired police officer with whom appellant had contact in the past. The district court denied the challenge for cause, and appellant used a peremptory challenge to remove that juror. Appellant later challenged another juror for cause because that juror said she might be squeamish about this case because of her concerns for children and because she lived on a farm and it was harvest season. The state challenged the same juror for cause, but the district court denied both challenges. After further examination including inquiry by the district court, the juror said that she would follow the court’s instructions and listen to the evidence, the court seated the juror.
At trial, the district court ruled that appellant's three prior convictions for sexual offenses could be presented to the jury as Spriegl evidence because they indicated a “pattern of behavior on people who are vulnerable.”
The jury found appellant guilty of all four counts. Appellant was sentenced to 288 months’ imprisonment and a ten-year conditional release.
D E C I S I O N
1. Jury Selection
Appellant argues that he was denied his constitutional right to a fair and impartial jury when the district court refused to remove for cause the juror who said she might be inattentive during trial.
On review, this court will not lightly substitute its own judgment for that of the trial judge because the trial judge is in the best position to evaluate the testimony and demeanor of potential jurors. State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). A juror may be challenged for cause by either party upon the following grounds:
The existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.
Minn. R. Crim. P. 26.02, subd. 5. In determining whether to dismiss a potential juror for cause, the trial court must decide whether the juror “can set aside his or her impression or opinion and render an impartial verdict.” Drieman, 457 N.W.2d at 708 (citation omitted). The party seeking to reverse the district court’s refusal to dismiss a juror for cause bears the burden of showing that the prospective juror was subject to challenge for cause and that actual prejudice resulted from the district court’s refusal to dismiss. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983).
We conclude that the juror in question was not subject to challenge for cause. When asked if she would be so preoccupied with her own affairs that she “couldn’t listen to what the witnesses were saying,” she answered, “Probably not, because * * * I can be pretty intensely involved in what’s happening right in front of my eyes.” When asked whether she could follow the district court’s instructions, she answered, “I want to obey the authority [of the court].” The district court did not abuse its discretion in determining that this juror would be fair and impartial; seating her as a juror did not deprive appellant of his right to a fair and impartial jury.
2. Out of Court Statements
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). If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial. Id. In completing a harmless error impact analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].” State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).
Appellant contends that the district court committed prejudicial error when it admitted HKW’s out-of-court statements to her mother, to the investigator, and to the child protection worker. Minn. R. Evid. 801 (d) provides that a statement is not hearsay if: (1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is helpful to the trier of fact in evaluating the declarant’s credibility as a witness.
The first prong is partially satisfied: HKW did testify and was available for cross-examination, although she did not testify regarding appellant’s behavior or regarding what she told her mother, the investigator, or the social worker. The second and third prongs are sequentially problematic because the statements were admitted before HKW testified and before her credibility was challenged. But the district court found that the statements were consistent with HKW’s videotaped interview, which was to be admitted pursuant to Minn. Stat. § 595.02 subd. 3 (2002) (providing criteria for admitting out of court statements concerning sexual abuse from children under ten).
Generally, a witness’s credibility must be challenged before statements are admitted to bolster it. State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997). Attacks on the credibility of four-year-old HKW, however, were inevitable. When she testified, she was asked whether she played pretend, and both HKW and her mother were asked about HKW’s relationship to her sister, who had also been sexually abused.
Admittedly, HKW should have testified before the other witnesses testified about her out-of-court statements to them. But although the district court erred in allowing departure from the rule as to the sequence of the witnesses’ testimony, we conclude that the error is harmless and did not affect the jury’s verdict. There is no indication that the jury would have decided differently if HKW had testified before jurors heard testimony of her out-of-court statements.
3. Spreigl Evidence
The admission of Spreigl evidence lies within the discretion of the district court, and its ruling will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).
Appellant challenges the district court’s admission of three Spreigl incidents. Spreigl evidence is inadmissible unless (1) there is clear and convincing evidence that the defendant participated in the prior crime; (2) the evidence is relevant and material to the state’s case; and (3) its probative value is not outweighed by its potential for unfair prejudice. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000). Appellant argues that his prior convictions were not relevant to the state’s case. In determining the relevance of Spreigl evidence, the district court considers “whether here is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi.” State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (citations omitted). The prior convictions, like the charges here, all involved sexual contact with vulnerable victims; the district court did not abuse its discretion in finding the convictions relevant.
Appellant also argues that the Spreigl evidence is not relevant because the prior incidents were stale, having occurred in 1969, 1973, and 1986. But when an older offense is part of a pattern of similar misconduct that took place over a number of years, the passage of time does not diminish its relevance. State v. Wermerskirchen, 497 N.W.2d 235,242 n.3. (Minn. 1993). Here, the passage of many years between incidents could indicate that time did not deter appellant from committing sexual assaults on vulnerable victims.
Finally, appellant argues that the Spreigl evidence unfairly prejudiced him. “[W]hen balancing the probative value * * * against the potential for unfair prejudice,” the district court “must consider how necessary the Spreigl evidence is to the state’s case.” State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citation omitted). The Spreigl evidence had significant probative value: it showed a pattern of sexual offenses against vulnerable victims. The district court did not abuse its discretion in admitting the Spreigl evidence.
Appellant was convicted under Minn. Stat. § 609.342, which provides for a maximum sentence of 30 years and a presumptive minimum sentence of 144 months. Minn. Stat. § 609.342, subd. 2 (2002). He was sentenced to the presumptive minimum, which was doubled to 288 months as mandated for patterned sex offenders by Minn. Stat. § 609.108, subd. 1(a) (2002), and to ten years of conditional release under Minn. Stat. § 609.108, subd. 6 (2002). He argues that, because the combination of his 288-month (24-year) sentence and the mandatory 10-year conditional release term exceeds the 30-year statutory maximum sentence provided by Minn. Stat. § 609.342, his conditional release term should be reduced to fit within the 30-year maximum.
The Minnesota Supreme Court recently rejected this argument in State v. Jones, 659 N.W.2d 748, 2003 WL 1889823 (Minn. 17 April 2003). Jones, who had no prior sex convictions, was convicted and sentenced to 15 years’ imprisonment under Minn. Stat. § 609.344, which provides for a sentence of not more than 15 years. Id. at ___, 2003 WL 1889823, *3. Like appellant, Jones was also sentenced to ten years’ conditional release pursuant to Minn. Stat. § 609.108, subd. 6. Id. at *4. But the supreme court held that
Minn. Stat. § 609.109, subd. 7, is relevant in determining the maximum conditional release term allowed under these circumstances, even though Jones was “otherwise” sentenced under Minn. Stat. § 609.108, subd. 6.
Id. at *3. Minn. Stat. § 609.109, subd. 7 (2002), provides that a person who, like Jones, has no prior sex offense convictions and is sentenced under Minn. Stat. § 609.344, “shall be placed on conditional release for five years, minus the time the person served on supervised release.” The supreme court remanded “to the district court to impose a 5-year conditional release term under Minn. Stat. § 609.109, subd. 7,” id. at *5, after holding that
as part of the legislatively mandated sentencing parameters, an offender sentenced under Minn. Stat. § 609.344 is also subject to a mandatory 5-year conditional release term, minus the time the offender serves on supervised release. Thus, we conclude that the jury verdict [of guilty under Minn. Stat. § 609.344] exposed Jones to a maximum executed sentence of 15 years plus an additional 5-year conditional release period.
Id. at *4.
With reference to appellant, Minn. Stat. § 609.109, subd. 7, provides:
If the person was convicted for a violation of [Minn. Stat. § 609.342] after a previous sex offense conviction * * * the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.
Accordingly, pursuant to Jones, “the jury verdict [that found appellant guilty under Minn. Stat. § 609.342] exposed [him] to a maximum executed sentence of  years plus an additional [ten]-year conditional release period.” We conclude that the district court appropriately imposed a ten-year conditional release period.
 Appellant also argues that, because the district court forced him to use a peremptory challenge on another juror, he was deprived of a fair and impartial jury. But a defendant is not necessarily deprived of a fair and impartial jury even if a district court errs in denying the defendant’s challenge for cause, thereby compelling the defendant to challenge that juror peremptorily. State v. Barlow, 541 N.W.2d 309, 312 (Minn. 1995).
 Appellant’s convictions involved fondling a seven-year-old girl in 1969, fondling a 12-year-old 1973, and forcibly raping his 81-year-old mother-in-law in 1986.
 Jones had not been released at the time of sentencing, and the district court based its ten-year conditional release sentence on Minn. Stat. § 609.108 rather than under Minn. Stat. § 609.109, subd. 7. We see no reason to reverse a correct decision. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (appellate court will not reverse a correct decision simply because it is based on incorrect reasons).