This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Frank Leonard Penny,




Filed April 6, 2004


Toussaint, Chief Judge


Ramsey County District Court

File No. 62-K0-1671



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134: and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)


Kenneth M. Bottema, Morgan Greenwood Smith, Law Office of Kenneth M. Bottema, 210 North Second Street, Suite 50, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Huspeni, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

Frank Leonard Penny appeals from his conviction of theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subd. 2(17) (2002).  Penny argues that the trial court erred in admitting as Spreigl evidence his prior possession of a stolen vehicle and abused its discretion in not issuing a limiting jury instruction as to the use of the Spreigl evidence.  Penny further argues the evidence was insufficient to support the conviction.  We affirm.



On April 17, 2002, at approximately 3:30 in the morning, St. Paul police responded to a call that a stolen Dodge Caravan was traveling east on Dale Street.  Officers stopped the vehicle and took its driver, Frank Leonard Penny, into custody.  Penny was charged with theft of a motor vehicle, pursuant to Minn. Stat. § 609.52, subd. 2(17) (2002). 

            During a post-arrest interview, Penny told Sergeant James Gray that he and some friends were “hanging out” on a street corner at approximately 1:00 a.m. when a man he called “Randy” approached the group and asked if anyone needed to rent his vehicle.    Penny told Sergeant Gray that because he needed a ride to a female’s house he paid “Randy” $40 in cash to rent the vehicle for two hours. 

At trial, the state introduced the testimony of the vehicle’s actual owner, who verified that his car was stolen and that he never loaned the vehicle to Penny or “Randy.”  The state also introduced the testimony of Sergeant Gray, who authenticated a tape and transcript of his interview with Penny, which was then played for the jury.  Sergeant Grey also testified about conversations that occurred while the tape was not running. 

            The state then sought to introduce evidence of an arrest that occurred on May 26, 2001, under similar circumstances, for the purpose of showing knowledge under Minn. R. Evid. 404(b).  Over defense objection, the trial court admitted the evidence.  The court also denied Penny’s request that the jury be instructed that the prior arrest evidence could only be used to prove knowledge. 

            A jury found Penny guilty of theft of a motor vehicle, pursuant to Minn. Stat. § 609.52, subd. 2(17) (2002).  The trial court sentenced appellant to 21 months in prison.  This appeal follows.



Spreigl Evidence

            Admission of other crimes, wrongs, or acts evidence—also known as Spreigl evidence—will be reversed on appeal only if the party challenging the evidence can demonstrate a clear abuse of discretion.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998); see State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

            Generally, evidence that an accused committed other crimes in addition to those charged is not admissible to show the accused’s character or to show that the accused acted in conformity therewith.  Minn. R. Evid. 404(b).  But such evidence may be admitted to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Id.  In those cases, Spreigl evidence will be admissible if (1) the state gives notice that it intends to use such evidence; (2) the state indicates the purpose for offering the evidence; (3) the other crime, wrong, or act and the defendant’s participation in it is proven by clear and convincing evidence; (4) the evidence is relevant and material; and (5) the probative value of the evidence outweighs its prejudicial effect.  State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002). 

            Penny does not claim that the state failed to give him proper notice of its intent to use Spreigl evidence or that the evidence was not proven by clear and convincing evidence.  Rather, Penny challenges the state’s purpose for introducing the evidence, the propriety of introducing such evidence when the case as a whole is weak, and the evidence’s  probative value. 

A.         Purpose

Before Spreigl evidence can be admitted, the state must indicate the purpose for introducing the evidence.  Stewart, 643 N.W.2d at 296.  Here, Penny does not dispute the state indicated its purpose for the evidence was to show knowledge.  He claims, however, that this stated purpose shields the state’s true intent: to show his propensity to steal cars.

The record reflects that the 2001 incident introduced as evidence at Penny’s trial involved circumstances very similar to the charged offense.  In the 2001 incident, Penny claimed he rented a truck for $50 on a street corner in St. Paul from a man named “Tony.” As in the present case, Penny had never met “Tony” before “renting” his vehicle.  And, Penny “rented” the vehicle in the same area as in the present case.  In light of these similarities, this evidence could clearly be used under Minn. R. Evid. 404(b) to show that Penny knew of or had reason to know that the vehicle he allegedly rented in April 2002 was also stolen. 

Because there is no evidence in the record to show that this evidence was used for any other purpose than to show knowledge under Rule 404(b), we find Penny’s assertions here without merit.

B.         Propriety of Admission of Spreigl evidence

            Penny next argues that the trial court erred as a matter of law in determining that the admission of evidence of his 2001 arrest was necessary to support the state’s case.  Citing State v. Kennedy, 585 N.W.2d 385 (Minn. 1998), Penny contends Spreigl evidence is admissible only where the state’s case is weak as to a particular issue.

We are convinced that Penny’s reliance on Kennedy for this proposition is misplaced.  In Kennedy, the Minnesota Supreme Court held that in cases where some matter other than identity is at issue, the weak-case rule, rather than the weak-issue rule, should be applied when determining the probative value of admitting Spreigl evidence.  Kennedy, 585 N.W.2d at 392.

Here, knowledge—rather than identity—was the primary issue because the charged crime required that the state prove that Penny knew or had reason to know the vehicle was stolen.  Cf. Minn. Stat. § 609.52, subd. 2(17)(2002).  After the state introduced all its non-Spreigl evidence, the record merely reflected police testimony that Penny was found driving a stolen vehicle, that he had the keys, that the vehicle had no visible sign of damage, and that Penny told police he rented the vehicle from “Randy” for $40.  In light of this evidence, the trial court properly concluded the state’s case as a whole was weak and the 2001 incident was necessary for the state to meet its burden of proof. 

C.        Probative Value Versus Prejudicial Effect

Penny next contends that because he was never charged for the May 26 offense any probative value is outweighed by its prejudicial effect.  Relevant Spreigl evidence may be excluded if its probative value is outweighed by its prejudicial effect.  Kennedy, 585 N.W.2d at 391-92.  The trial court must carefully balance the probative value of the evidence against the potential for unfair prejudice.  Id

We are convinced here that the court properly balanced these competing interests.  The probative value of the 2001 incident is enhanced by the similarity to the offense for which Penny was convicted.  See State v. Robinson, 427 N.W.2d 217, 227 (Minn. 1988) (concluding that probative value is enhanced where the defendant uses the same explanation for the Spreigl offense and the charged offense).  Further, it is well-established law that a prior offense can be used as Spreigl evidence even if never charged.  State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993).  Thus, the trial court did not abuse its discretion in concluding the probative value of admitting the Spreigl evidence outweighed its prejudicial effect. 


Jury Instructions

            Penny next contends that the trial court erred in deviating from the standard jury instructions.  He further argues that the court should have honored his request for limited jury instructions indicating that the Spreigl evidence should only be used for the purpose of determining his knowledge.

Trial courts are allowed “considerable latitude” in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “An instruction is in error if it materially misstates the law.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). 

Penny claims that the following cautionary instructions were inadequate:

As I told you at the time that we started trial, Mr. Penny is on trial only for the offense that as committed on April 17th of 2002.  So any evidence regarding the old offenses, limited to the purpose of assisting you in determining whether or not the defendant committed the acts on April 17, you are not to consider the fact that because the evidence may show there was a similar type of occurrence that that would make him guilty of this particular occurrence. He cannot be tried for what happened back in year 2001.  So you only to consider it along with all of the evidence, but he can’t be convicted of something he is not charged with.  What he is charged with is only April 17, 2002.


He asserts that these instructions deviated substantially from those provided in 10 Minnesota Practice, CRIMJIG 2.01 (1999), noting that while CRIMJIG 2.01 emphasizes that the defendant cannot be convicted for the prior offense, the instruction given by the jury stated that Penny “cannot be tried for what happened back in year 2001.”  Penny also argues that the cautionary instruction failed to specifically instruct the jury that they “are not to convict the defendant on the basis of any occurrence on May 26, 2001 at St. Paul.”              Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  While not a verbatim recitation of CRIMJIG 2.01, the trial court’s cautionary instructions, read in their entirety, fairly and adequately state the law—that Penny cannot be convicted for the 2001 incident. 

Penny next argues the trial court erred in denying his request to instruct the jury that the Spreigl evidence should be used only for the purpose of determining his knowledge.  This court recently held that where the defendant makes a specific request that the trial court explain the limited purpose for the admitted Spreigl evidence, it is error not to honor the request.  State v. DeYoung, 672 N.W.2d 208, 212 (Minn. App. 2003).  Because there is no dispute that Penny requested the limiting instruction; the trial court committed error by not giving the requested instruction.  However, the error was harmless because the Spreigl evidence was introduced to show knowledge, there is no dispute that the Spreigl incident and Penny’s participation in it was proven by clear and convincing evidence, and there was a sufficiently close relationship between the charged offense and the Spreigl evidence.

            Penny further argues that the jury instructions were inadequate because they excluded critical language from CRIMJIG 3.16, namely: “You are not to convict the defendant on the basis of the occurrence on _______ at _______.  To do so might result in unjust, double punishment.”  10 Minnesota Practice, CRIMJIG 3.16 (1999).  But, a review of the record shows that the trial court stated the very language that Penny argues the court omitted.  And while the court’s wording in the rest of the jury instructions varied slightly from CRIMJIG 3.16, the instructions as a whole fairly and adequately explained the law of the case.  It is preferable for judges to read the jury instructions as provided in the CRIMJIGs, rather than paraphrasing, but we understand the facts in each case may warrant adjustment to the jury instructions. 


Sufficiency of the Evidence

Penny’s final argument is that there was insufficient evidence to support his conviction because the state relied solely on circumstantial evidence.

In considering a claim of insufficient evidence, this court’s review is limited to an examination of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).   

A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

In order to convict Penny of theft of a motor vehicle, the jury would have to find, beyond a reasonable doubt, that Penny (1) took or drove a motor vehicle without the consent of the owner or an authorized agent and (2) he knew or had reason to know that the owner or an authorized agent of the owner did not give consent.  Minn. Stat. § 609.52, subd. 2(17) (2002). 

The first element is clearly met.  Penny was caught driving a stolen vehicle, and the vehicle’s owner testified that he never gave Penny permission to drive the vehicle.  The second element is also met.  While Penny denied knowing the vehicle was stolen when he rented it from “Randy,” he testified that he did not trust “Randy,” and that he suspected the vehicle could be stolen.  The Spreigl evidence introduced at trial demonstrated that only seven months earlier Penny had a similar experience with a “rental.”  Finally, there was evidence that casts doubt on Penny’s credibility, such as his initial inability to provide the name of the person from whom he rented the vehicle, and his failure to immediately stop when the officers tried to pull him over.  In light of the evidence in the record, the discretion given to a jury to evaluate circumstantial evidence, and the deference given to the jury’s verdict, we conclude the evidence was sufficient for the jury to reasonably conclude that Penny was guilty of the charged offense. 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.