This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Paul Kermit Ness,




Filed June 29, 2004


Toussaint, Chief Judge


Becker County District Court

File No. K3-02-1933


Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)


Paul C. Engh, 220 South Sixth Street, Suite 215, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


On appeal from a bench-trial conviction for second-degree criminal sexual conduct, appellant argues that the trial court abused its discretion in admitting 35-year-old Spreigl evidence of alleged inappropriate touching of a former student, and that the prosecutor committed prejudicial misconduct in eliciting vouching testimony from the state’s witnesses.  Because we conclude that (1) the Spreigl evidence was properly admitted to show intent, absence of mistake or accident, or modus operandi, and (2) the state committed no prejudicial misconduct, we affirm.



Admission of Spreigl evidence

Appellant Paul Kermit Ness, a community-education teacher and retired principal, was convicted after a two-day bench trial of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subds. 1(a), 2 (2002).  The trial court found Ness guilty of inappropriately touching E.M., an eleven-year-old student, during a community-education painting class.  Ness now challenges the conviction, alleging that the trial court abused its discretion in admitting Spreigl testimony from Jeffrey Caron, a former student who asserts that Ness touched him in a similar fashion on two occasions 35 years ago.

The admission of evidence of other crimes or bad acts – commonly known as Spreigl evidence – lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  In order to admit Spreigl evidence the, (1) trial court must determine whether proper notice was given; (2) state must clearly indicate what the evidence will prove; (3) evidence must be clear and convincing that the defendant participated in the Spreigl evidence; (4) evidence must be relevant and material to the state’s case; and (5) probative value cannot be outweighed by the potential for unfair prejudice.  State v. Asfeld, 662 N.W.2d 534, 542 (Minn. 2003). 

Ness does not dispute that the first two of the five required criteria for admission of Spreigl evidence were satisfied.  He asserts, however, that the 35 year gap, the dissimilarity of the incidents, the credibility of the witness, the trial court’s failure to determine whether the state’s case was sufficiently weak to warrant the evidence, and the prejudicial impact of the evidence cast doubt upon the final three criteria. 

A.                 Clear and convincing


Ness asserts that the Spreigl evidence is not clear and convincing because Caron could not remember specific details leading up to the alleged encounter with Ness.  He contends that Caron’s recollections of the inappropriate contact should not be found credible because of his inability to provide these pre-encounter details.  Reviewing the record, we cannot agree that Caron’s testimony is so devoid of detail as to render its admission an abuse of discretion.

With regard to his first encounter, Caron recalled how a snowball fight in fifth grade led to him being escorted to Ness’s office.  He also provided specific details about where he was seated when the alleged contact took place, the dialogue between the two, and Ness’s inappropriate conduct.  Accounts of the second encounter were equally detailed; Caron described where Ness was seated, which hand Ness used to grab his thigh, and that the grip Ness had on him was “extremely uncomfortable.”  Thus, since Caron’s recollections of the contact appear clear, they could clearly be deemed credible by the trial court.  See State v. Cichon, 458 N.W.2d 730, 734 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).[1]

Ness further contends that, as a matter of law, his testimony should be given greater weight than that of Caron, because Caron pleaded guilty to felony theft 14 years ago.  He claims that Minn. R. Evid. 609 “suggests the non-felon’s credibility should be given greater credence than the felon.”

Weighing the credibility of witnesses is the exclusive function of the fact-finder.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  And, contrary to Ness’s assertions, impeachment does not render a witness’s testimony unworthy of belief as a matter of law.  State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998).  As such, we find Ness’s argument on this issue without merit.

B.                 Relevant and material

Ness concedes that “no bright line has been established holding a ‘Spreigl’ is too old.”  He argues, however, that there should be a “slope” by which Spreigl evidence decreases in relevance as time passes.  Such an argument runs contrary to established precedent for sex crimes in this jurisdiction.

In State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993), a case in which 19-year-old Spreigl evidence was admitted to establish a pattern of improper sexual contact, the Minnesota Supreme Court wrote a lengthy footnote dispelling the argument that time necessarily diminishes the value of evidence in sexual misconduct cases:

We have never held that there must be a close temporal relationship between the charged offense and the other crime. In State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983), we said, “In determining relevancy, we have generally required that the other crime be similar in some way – either in time, location, or modus operandi – to the charged offense, although ‘this’ of course, is not an absolute necessity.” (Emphasis added) . . . . The ultimate issue is not the temporal relationship but relevance. “Older” offenses sometimes are relevant, sometimes not. Relevance generally must be determined by the trial court, with review limited to whether the trial court abused its discretion.


Wermerskirchen, 497 N.W.2d at 242 n.3.

            Here, the trial court determined that Caron’s testimony was relevant because of Ness’s assertion that there was a mistake in perception.  It found that the testimony Caron gave evinced a similar modus operandi to the incident for which Ness was being tried, and might indicate that his contact with E.M. was not accidental.  Since our caselaw does not require the court to consider a relevance “slope” based on the age of the evidence in sex crimes, Ness’s argument must be rejected.

We also find no support for Ness’s contention that the trial court’s finding of a similar modus operandi was erroneous.  He asserts that the circumstances – Caron was alone with Ness while E.M. was in a classroom with other students, and Caron testified that Ness manipulated himself while E.M. did not – were so dissimilar that Caron’s testimony should have been excluded. 

            The record reflects that Caron was in fifth grade when the alleged encounters with Ness took place.  In the first encounter, Ness sat down next to Caron, put one arm around him, and placed his other on the inside of Caron’s thigh.  Caron claimed that Ness then touched his penis outside his clothing. 

            E.M., a sixth grader, testified that Ness sat down next to him, put his arm around him, and touched his penis outside his clothing.  Testimony by both E.M. and Valerie Voigt, an eyewitness to the incident, indicates that Ness had his hand on E.M.’s inner thigh several times during the day.

Absolute similarity between the prior bad act evidence and the crime being tried is not necessary.  State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983).  It need only “be similar in some way.”  Id. (emphasis added).  Here, Ness touched boys of a similar age in a similar manner while acting in a supervisory role.  The evidence in the record thus provides an adequate basis for the court to deem it relevant and admissible. 

Particularly in sexual-abuse cases, similarity in the abuse is “highly relevant” to the issue of whether the charged conduct occurred or there was a fabrication or mistake in perception.  See Wermerskirchen, 497 N.W.2d at 240-42.  As such, Ness’s relevance argument fails.

C.                Prejudicial impact

Ness contends that both the trial court and the state “misused” the Spreigl evidence by using it to show and determine Ness’s guilt.  Such misuse, Ness urges, created a prejudicial impact even if the evidence was relevant.  A review of the record, however, reveals that this assertion is also without merit.

Ness concedes that the trial court, in admitting Caron’s testimony, stated that it would not “consider anything that Mr. Caron says as convicting Mr. Ness of the present allegations.”  The court determined, however, that Caron’s testimony was relevant because of Ness’s mistaken perception defense,  and weighed that testimony – in addition to the testimony of E.M. and Voigt – against Ness’s claims that the touchings were accidental.  The record thus reflects that the Spreigl evidence was properly used to consider Ness’s intent, as well as absence of mistake or accident, and modus operandi.  See Minn. R. Evid. 404(b).

Further, the record contradicts Ness’s assertions that the trial court failed to consider the strength of the state’s case before admitting the Spreigl evidence.  Before Ness’s trial began, the court heard arguments for and against admission of Caron’s testimony.  It withheld its ruling until it heard the state’s case.  When it did ultimately admit Caron’s testimony, it noted the strength of Ness’s arguments, and that it could be “tying the hands of the State” if it did not admit the testimony.  It is therefore clear that the court did indeed consider the state’s case, and made its determinations accordingly.

The admission of Spreigl evidence is less prejudicial if the trial is to the court rather than a jury.  Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).  Here, because (1) this was a bench trial; (2) the record reveals that the evidence was used to refute Ness’s argument that the contact was mistaken or accidental; and (3) the court adequately considered the strength of the state’s case before admitting the evidence, we will not disturb the trial court’s determinations.


State’s questioning of witnesses

Ness next challenges the manner in which the state questioned its witnesses.  Specifically, he contends that (1) the state’s questioning of E.M.’s mother regarding the truthfulness of her son; (2) Voigt’s testimony that she had “no doubt as to where [Ness’s] hand was;” and (3) Caron’s statement that he had “absolutely no doubt whatsoever” about his own testimony, all essentially amounted to “vouching.”  This, he contends, is expressly forbidden in Minnesota courts. 

Ness raises this objection for the first time on appeal.  In general, an appellate court will not consider matters not argued and considered in the district court, but if there is plain error that effects a defendant’s substantial rights, this court has the discretion to consider the matter.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Minnesota courts have recognized a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  Id.

The admission of the challenged testimony was neither plain error nor violative of Ness’s substantial rights.  With regard to the testimony of E.M.’s mother, the state was merely rehabilitating E.M.’s credibility, which was attacked on cross-examination.  This is expressly allowed under Minn. R. Evid. 608(a).  With respect to the testimony of Caron and Voigt, each testified as to what they observed or experienced.  They were not “vouching” for the testimony of another, as forbidden by our precedent.  See State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995) (recognizing that the credibility of witnesses is for the jury to determine, and one lay witness cannot vouch for or against the credibility of another).  There was, therefore, no plain error in allowing such testimony.   

Furthermore, none of these allegedly improper statements appear to have affected Ness’s substantial rights.  The trial court made its determination primarily based on E.M.’s and Voigt’s testimony.  The court found that E.M. “answered questions concerning a difficult subject for someone his age to discuss, directly, with consistency, and without hesitation.”  Voigt corroborated E.M.’s account of the encounter, and the court found that her testimony was also highly credible.  Thus, unlike Van Buren v. State, 556 N.W.2d 548 (Minn. 1998), and Maurer v. Dep’t of Corrections, 32 F.3d 1286 (8th Cir. 1994), two cases Ness cites in asserting that this testimony affected his rights, the court here was not faced with weighing the credibility of the defendant solely against the credibility of the victim; there was ample corroborative evidence supporting the trial court’s conviction.  We hold, therefore, that Ness has failed to overcome the burden of proving plain error affecting his substantial rights, and will not disturb the trial court’s determinations.

            Because (1) the record supports the trial court’s determination that Caron’s testimony was sufficiently reliable and admissible; and (2) the state did not commit misconduct leading to prejudice against Ness, the trial court’s conviction will not be reversed.


[1] Ness also cites Frye v. United States, 293 F. 1013 (D.C. Cir., 1923), and State v. Mack, 292 N.W.2d 764 (Minn. 1980), apparently contending that Caron’s memories are “recovered memories” that are inadmissible due to the debate about the technique’s effectiveness within the psychiatric community.  There is nothing in the record, however, indicating that Caron’s testimony was enhanced at any point by psychiatric means.  Rather, Caron simply did not tell anyone of the assaults until the 1980s, nearly 20 years after the alleged conduct took place.  Since the record does not support a Frye/Mack analysis, we shall not address this issue further.