This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Joseph Leonard Cote,




Filed June 8, 2004


Halbrooks, Judge



Pennington County District Court

File No. K7-02-478



Mike Hatch, Attorney General, Thomas Ragatz, Erik A. Lindseth, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


David Olin, Pennington County Attorney, 101 North Main Avenue, P.O. Box 396, Thief River Falls, MN 56701 (for respondent)


Ralph F. Carter, John Moosbrugger, Moosbrugger, Carter & McDonagh, P.L.L.P., 311 South 4th Street, Suite 101, Grand Forks, ND 58201 (for appellant)




            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of third-degree criminal sexual conduct, arguing that the district court abused its discretion by (1) admitting Spreigl evidence of a prior conviction for criminal sexual conduct involving the same victim and (2) admitting into evidence a police officer’s testimony concerning the content of an electronically monitored conversation between appellant and his victim.  We affirm.


            By complaint filed July 31, 2002, the state charged appellant Joseph Leonard Cote with one count of third-degree criminal sexual conduct involving his stepdaughter, B.G., in violation of Minn. Stat. § 609.344, subds. 1(g)(iii), 2 (2002).  The complaint alleged that between approximately April 2000 and April 2002, appellant – born in 1933 – engaged in sexual intercourse with B.G. approximately 20 times; all of the alleged acts took place when B.G. was between 16 and 18 years of age.  The complaint also stated that in July 2002, while investigating B.G.’s initial report of appellant’s criminal sexual conduct, the police monitored and recorded a conversation between appellant and B.G. in which appellant made various admissions concerning the conduct. 

            The state provided appellant with written notice of its intent to offer Spreigl evidence at trial of his 1994 conviction for second-degree criminal sexual conduct – which also involved B.G. – to show his “possible motive, opportunity, intent, knowledge, plan or absence of mistake or accident.”  Before trial, the state moved the district court to allow the police officer who monitored and recorded the July 2002 conversation between appellant and B.G. to testify about the content of the conversation.  On the first day of trial, the district court announced that it would rule on the Spreigl evidence after the state presented its case-in-chief and that it would rule on the monitoring officer’s testimony when the officer testified. 

            B.G. testified that her mother had been married to appellant for more than ten years and that she and her mother had lived with appellant from the time she was approximately ten until her eighteenth birthday, when she moved out.  B.G. testified that in the two years prior to her eighteenth birthday, appellant forced her to have sexual intercourse with him between one and three times each month, that she did not inform her mother of appellant’s abuse, and that she did not report the abuse to the police department until she moved out of the house.

Craig Mattson, the officer who investigated B.G.’s report, testified that in order to determine the veracity of B.G.’s allegations, he had placed a transmitting microphone in B.G.’s purse and instructed her to engage appellant in a conversation about the abuse.  Mattson testified that while B.G. spoke with appellant in his garage, he monitored the conversation from an automobile parked one block away and recorded it by means of a cassette recorder held up to the transmitter speaker in the car.  Mattson testified that although he could clearly hear the transmitted conversation, the quality of the recording was so poor that the tape would be “almost inaudible” if played loudly enough for the jury to hear it.  During Mattson’s cross-examination, defense counsel had Mattson play the tape for the jury to establish that it was indiscernible.  Mattson testified to his recollection of the conversation as he heard it from the car, stating that three times in the course of the conversation, appellant admitted to B.G. that the two had had intercourse during the previous two years. 

            Mattson also testified, as Spreigl evidence, that appellant pleaded guilty in February 1994 to second-degree criminal sexual conduct with B.G., who was less than 13 years old at the time.  Just before Mattson gave the Spreigl testimony, the district court gave the jury a cautionary instruction.  Testifying in his own defense, appellant denied the charges against him.  B.G.’s mother, testifying in appellant’s defense, stated that B.G. is “not a truthful person” and that the current charges were “lies.” 

The district court gave the jury another cautionary instruction on the Spreigl evidence prior to deliberations.  The jury found appellant guilty as charged and the district court sentenced him to 88 months in prison followed by 10 years of conditional release.  The district court denied appellant’s motion for a new trial, and this appeal follows. 



            Appellant argues that the district court abused its discretion by admitting Spreigl evidence of his 1994 sexual-offense conviction involving B.G.  We review a district court’s decision on whether to admit Spreigl evidence for abuse of discretion.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  The appellant 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, we examine 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).

Although so-called “Spreigl” evidence of other crimes or bad acts 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 motive or intent to commit the charged offense, to show a common plan or scheme between the prior and current charges, or to refute allegations of fabrication.  Minn. R. Evid. 404(b); Kennedy, 585 N.W.2d at 389.  Before such evidence may be admitted, the state must establish (1) by clear and convincing evidence that the defendant participated in the other crime; (2) that the evidence of the other crime is relevant and material to the state’s case; and (3) that the probative value of the evidence of the other crime outweighs its potential for unfair prejudice.  Id.  Even where those criteria are met, Spreigl evidence is “admissible only if the trial court finds the direct or circumstantial evidence of defendant’s identity is otherwise weak or inadequate, and that it is necessary to support the state’s burden of proof.”  State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967).

Appellant does not dispute that the prior guilty plea constitutes clear and convincing evidence of the prior crime, but contends that evidence of the plea was not relevant or material to the state’s case and that its probative value is outweighed by its potential for unfair prejudice. 

When determining whether Spreigl evidence is relevant, the district court should consider “whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.”  Kennedy, 585 N.W.2d at 390 (quoting State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984)).  Absolute similarity is not required, but the greater the similarity, the more likely the Spreigl evidence is relevant.  State v. Greenleaf, 591 N.W.2d 488, 505 (Minn. 1999).

Appellant argues first that the charged offense and the Spreigl offense are merely of the “same generic type” and share “no unique or distinguishing characteristics” such that they can be considered closely related in modus operandi.  We disagree.  First, although it is true that “the mere fact that the prior crime was of the same generic type as the charged offense . . . usually isn’t sufficient” to establish relevance, State v. Lewis, 547 N.W.2d 360, 363 (Minn. 1996), the two offenses here are not merely of the same type.  As appellant concedes, the offenses involved the same victim and “contain nearly identical alleged fact scenarios.” 

Second, it is not the case, as appellant contends, that the prior crime and the charged crime must be so-called “signature” crimes sharing “unique and distinguishing characteristics” in order to be considered closely related.  See State v. Cogshell, 538 N.W.2d 120, 124 (Minn. 1995) (holding that it “does not necessarily matter” that the prior crime is not “a unique or ‘signature’ crime . . . as long as the prior crime is sufficiently or substantially similar”).  In Cogshell, the supreme court observed that while a prior signature crime may be sufficient to establish relevance, it is not necessary that the prior offense be a signature crime:  “[w]e have made it clear that we readily uphold the admission of so-called signature crimes to prove identity.  We have not required that the other crimes be signature crimes.”  Id. at 123 (citations and quotations omitted). 

We further observe that Cogshell, as well as the other cases cited by appellant in support of the signature-crime argument, only address the admissibility of Spreigl evidence under the identity exception to Minn. R. Evid. 404(b).  But the identity exception was not at issue here.  The state argued the Spreigl evidence was admissible under the motive and common-plan exceptions, and appellant cites no authority supporting the use of signature crimes to establish – or defeat – a relationship based on those exceptions.

Third, as to time, appellant argues that the eight-year interval between the 1994 conviction and the charged offense makes the prior act irrelevant.  But the supreme court has “never held that there must be a close temporal relationship between the charged offense and the other crime.”  State v. Wermerskirchen, 497 N.W.2d 235, 242 n.3 (Minn. 1993); see also State v. Anderson, 275 N.W.2d 554 (Minn. 1978) (holding that the passage of time may have little real significance if the older offense is part of a “pattern” of similar misconduct occurring over a number of years).  The district court did not abuse its discretion in concluding that the Spreigl evidence was relevant to show appellant’s motive and a common plan reflected in the prior and charged offenses.  

We further observe that the Spreigl evidence was separately admissible to rebut appellant’s fabrication defense.  In Wermerskirchen, which also involved charges of intrafamilial criminal sexual conduct, the court stated that Spreigl evidence of prior similar sexual misconduct is properly admitted where “the other crime is sufficiently relevant to the charged crime [and where] corpus delicti [is] in issue because defendant denie[s] that any sexual conduct occurred.”  497 N.W.2d at 242; see alsoKennedy, 585 N.W.2d at 391 (holding Spreigl evidence admissible to “refute defendant’s contention that the victim’s testimony was a fabrication”). 

Appellant next argues that the district court abused its discretion in determining that the probative value of the Spreigl evidence outweighed its potential to cause unfair prejudice.  “In weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state’s case.”  State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991).  “The trial court generally is in a better position than an appellate court to evaluate the reasonableness of and need for other-crime evidence in a particular case.”  State v. Bolte, 530 N.W.2d 191, 197 n.2 (Minn. 1995).  Here, the state’s case was based primarily on B.G.’s testimony.  There were no third-party witnesses to the alleged conduct, there was no physical or medical evidence, B.G. did not report the abuse at the time it occurred, and appellant denied the allegations.  The district court acted within its discretion in concluding that the Spreigl evidence was necessary to the state’s case.  In light of the two cautionary instructions given the jury concerning the evidence, we also conclude that appellant was not unfairly prejudiced by the district court’s decision to admit the evidence. 


            Appellant argues that the district court abused its discretion in admitting officer Mattson’s testimony concerning the content of the July 2002 conversation between appellant and B.G. because (1) the content of the conversation was “irrelevant” and (2) admission of the testimony in lieu of the concededly inaudible tape recording of the conversation violated the best-evidence rule.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Here, Officer Mattson’s testimony was directly relevant in that it went to the central fact of the case – whether appellant committed the charged act.

Appellant argues that Mattson’s testimony was inadmissible pursuant to the best-evidence rule, Minn. R. Evid. 1002, which states that “[t]o prove the content of a . . . recording . . . the original . . . recording . . . is required, except as otherwise provided in these rules or by Legislative Act.”  “Only when a party is attempting to prove the contents of a . . . recording . . . must the original be produced.  If a party is attempting to prove a different consequential fact there is no general requirement that he do so with the best available evidence.”  Minn. R. Evid. 1002 1977 comm. cmt.  A witness with first-hand knowledge of what was said in a conversation may permissibly testify as to what he heard.  See Minn. R. Evid. 602.   

Here, Officer Mattson’s testimony was offered to prove the substance of the conversation he overheard between appellant and B.G. as transmitted to him from appellant’s garage to Mattson’s automobile in July 2002.  Mattson did not testify to prove the content of the tape recording or of the partial transcript that he prepared immediately after overhearing the conversation.  The best-evidence rule is therefore not applicable to Mattson’s testimony, which was admissible by virtue of Mattson’s first-hand knowledge of the conversation.  See State v. Bauer, 598 N.W.2d 352, 368 (Minn. 1999) (holding that the state is not required by operation of the best-evidence rule or Minn. R. Evid. 602 to introduce any part of the recordings of a defendant’s statements heard by police when police testify as to the interviews).

Appellant also challenges the credibility and accuracy of Mattson’s testimony, arguing that Mattson relied on his memory to testify and did not claim to give a complete account of the conversation.  But this was a subject of cross-examination, and it is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  The district court did not abuse its discretion in allowing Mattson to testify about the conversation.