This opinion will be unpublished and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,
Brian John Williams,
Filed July 27, 2004
Beltrami County District Court
File No. K6-03-486
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Timothy R. Faver, Beltrami County Attorney, Judicial Courts Annex, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, Minnesota 56601 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.
Appellant Brian Williams challenges his first-degree burglary conviction, arguing that the district court improperly admitted evidence of his prior burglaries and assaults and allowed the prosecutor to make improper closing arguments. Because the district court gave sufficient limiting instructions to the jury, any error was not unfairly prejudicial; therefore, we affirm.
On March 21, 2003, police responded to a report of a disturbance in a Bemidji mobile home park. Upon their arrival, the officers heard John Conkle, a resident of the park, yelling, “get out Brody . . . you’re in trouble now,” as he ran out the back door of the mobile home. Officers heard a scuffling inside the front door, and it opened to reveal appellant Brian Williams standing in the doorway with a beer in his hand. The officers were aware that appellant was under a no-drink order and told him that he was under arrest. Appellant attempted to flee, but the officers subdued him and took him into custody.
Conkle testified that he and Denise Medicine, appellant’s girlfriend, had been in the mobile home when appellant smashed the window, climbed in, and threatened to hurt somebody. The owner of the mobile home, Steve Bunes, testified that a group of people, including Conkle, Medicine, and appellant, had been drinking in the mobile home earlier in the evening. When appellant and Medicine began to argue, the group ejected appellant. Medicine testified that appellant returned to the mobile home after being kicked out, broke the window, crawled in, threatened to kill Conkle, and punched her in the head with his fist.
Appellant was charged with first-degree burglary. Before trial, the prosecutor moved to admit evidence of appellant’s prior convictions of burglary and assault, both of which involved Conkle, Medicine, and Wade Preston, who had also been present during the March 21 incident. Although the district court indicated that it would not rule on the admissibility of the Spreigl evidence until the close of the state’s case, it allowed Bunes, Conkle, and Medicine to testify about the events surrounding the prior convictions. Specifically, at the jury trial, Conkle testified that he and appellant had previously had fights over Medicine, with whom Conkle had a prior relationship and a child. Conkle said that appellant became jealous if Medicine paid too much attention to Conkle or other men. Conkle said that on the day of the charged incident, appellant and Medicine got into a play fight that became too rough, and the group forced appellant to leave. When appellant returned, he was angry and broke in after being denied entry. Medicine testified that appellant hit her more than once during their relationship. Steve Bunes testified that he had seen appellant slap Medicine on previous occasions.
After Bunes’s testimony, the district court heard arguments on whether to admit Spreigl evidence of appellant’s prior convictions of burglary and assault. The state sought to show lack of mistake and asked to present the testimony of Kali Winkler, a pre-sentencing investigator, to read appellant’s statements of the facts from his prior guilty pleas. The district court allowed the testimony over appellant’s objection.
Winkler recited appellant’s plea of guilty to third-degree burglary on September 16, 2002, in which he admitted that he kicked in two doors and punched Preston, who had also had a relationship with Medicine. Appellant also pleaded guilty to fifth-degree domestic assault on October 23, 2002, for pushing a door in and punching Medicine and Conkle after finding Medicine on Conkle’s lap. After Winkler’s testimony, the district court instructed the jury that the evidence had been admitted only to assist the jury in determining appellant’s guilt in the charged offense and that the jury should not convict appellant solely on the basis of that evidence.
At the close of evidence, the district court instructed the jury on the elements of burglary and again warned that the two prior convictions should not be the basis for a conviction in this matter. The jury found appellant guilty, and he was sentenced to 78 months’ incarceration. This appeal follows.
D E C I S I O N
Appellant argues that the district court erroneously admitted evidence of his prior burglaries and assaults. Evidence of other crimes or bad acts is known as Spreigl evidence. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). To prevail, an appellant must show both error and prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). If admitting the evidence was error, this court must determine 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).
To properly admit Spreigl evidence, the district court must find that: (1) there is clear and convincing evidence that the defendant participated in the other offense; (2) the evidence is relevant and material to the case at hand; and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice. Kennedy, 585 N.W.2d at 389.
Here, evidence of appellant’s prior burglary and assault was introduced in two ways. First, the evidence was admitted through various prosecution witnesses, including Conkle, Bunes, and Medicine, who testified that appellant had acted violently toward Medicine and others in the past, and who testified specifically about the incidents that led to appellant’s prior convictions. Second, the evidence was introduced through the testimony of Kali Winkler, who testified about the two prior certificates of conviction.
The district court determined that it would not rule on the admissibility of the prior convictions until the end of the state’s case in chief. Nonetheless, the district court allowed the testimony of Conkle, Bunes, and Medicine to be introduced before the court officially ruled on Spreigl evidence, and defense counsel did not object specifically to that testimony. Appellant argues that introducing Winkler’s testimony after the testimony of the other witnesses was cumulative and prejudicial.
The convictions provide clear and convincing proof that appellant committed the prior acts, and the evidence is relevant to show that appellant did not enter the mobile home through the window as part of a misunderstanding, as the defense suggested. The first two prongs of the Spreigl admissibility test are met. The state introduced the prior convictions to show lack of mistake and to put the charged incident into context. The supreme court has held that evidence of prior assaults against the same victim may be introduced to show motive and to put the relationship in context. State v. Williams, 593 N.W.2d 227, 236 (Minn. 1999). Although there is a risk of prejudice in such evidence, here, evidence of appellant’s prior convictions was admitted for an appropriate purpose and did not unfairly prejudice appellant.
We note that the admission of evidence of the acts that led to the convictions through both Winkler and other witnesses heightened the risk of unfair prejudice to appellant by increasing the cumulative nature of the evidence as a whole. But the district court twice gave the jury an appropriate limiting instruction, making clear that the evidence of appellant’s prior bad acts was to be used only to assist the jury in determining whether appellant was guilty of the charged crime and that the jury must not convict appellant on the basis of that evidence. While it would have been preferable for the district court to give the instruction earlier, rather than waiting until the close of the state’s case, the instruction was nevertheless sufficient and reduced the risk that the jury would misunderstand the purpose of the evidence.
Appellant also argues that the prosecutor made improper closing arguments that suggested that appellant’s prior bad acts tended to prove that he acted in conformity with those acts the night of the charged incident. Appellant failed to preserve this issue for appeal by making an appropriate objection during the allegedly improper argument. See State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984) (noting that generally a defendant is deemed to have waived his right to raise an issue concerning the prosecutor’s closing remarks if the defendant fails to object or seek cautionary instructions). Absent a trial objection, this court will only reverse if the prosecutor’s misconduct is unfairly prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
The prosecuting attorney made references to appellant’s prior bad acts and argued that Medicine did not leave the mobile home with appellant on March 21, 2003, because she was afraid of the “inevitable” violence appellant would commit against her in anger. These comments, while perhaps inappropriate, do not rise to the level of serious misconduct necessary to reverse a conviction. In any event, the district court properly instructed the jury that the arguments of counsel are not evidence and should not be considered as such. Any prosecutorial misconduct was addressed by that instruction and cannot reasonably be said to have affected the jury’s verdict.
In his pro se brief, appellant argues that he received ineffective assistance from his trial counsel. Having reviewed the record, we determine that the complained-of “errors” were matters of trial strategy, such as when to make objections and which witnesses to call. This court will not review matters of trial strategy for attorney competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Appellant has failed to make a valid argument that his counsel’s performance fell below an objective standard of reasonableness, and we need not address the issue further. Id.