This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Affirmed in part, and remanded
Olmsted County District Court
File No. K0024015
Mike Hatch, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for respondent)
John M. Stuart, Minnesota Public Defender, Rochelle Winn, Bridget Kearns, Assistant Public Defenders, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
Michael Andrew Ingalls appeals from conviction of and sentence for first- and second-degree criminal sexual conduct, arguing that the district court abused its discretion by admitting evidence of appellant’s prior bad acts; admitting evidence of acts that occurred after the older victim turned 16; and imposing an upward sentencing departure for appellant’s acts against H.C.S. We affirm appellant’s convictions, but, in light of a recent United States Supreme Court opinion that appears to affect upward departures under the Minnesota Sentencing Guidelines, we reverse the upward departure based on aggravating factors found by the district court and remand for resentencing after consideration by the district court of the effect of Blakely v. Washington, 72 U.S.L.W. 4546 (U.S. June 24, 2004) on appellant’s sentence.
Appellant was charged with three counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct for abusing H.C.S. and A.N.S., the daughters of his girlfriend, Ramona Sue Staffon, on numerous occasions from 1995 – 2000, when the girls were less than 16 years of age and he was older than 28. He pleaded not guilty. At trial, the district court permitted, as relationship evidence, testimony about appellant’s numerous uncharged prior bad acts against the girls and Staffon that were not specifically related to the sexual abuse.
H.C.S. testified that appellant sexually abused her numerous times, beginning when she was 11 years old and ending when she was 17 years old. A.N.S. testified that appellant sexually abused her three times beginning when she was about 12 years old. A.N.S. testified that appellant told her, after he molested her for the first time, that he would kill her if she told anyone.
According to H.C.S., when she was 17 years old, she told appellant that their relationship was over. Appellant responded by throwing something on the floor and calling H.C.S. and A.N.S. vulgar names. Shortly thereafter appellant attempted to ingest a handful of aspirin, took a knife from the kitchen counter, held the knife to his throat and chest, and stated that he wanted to die. He also pulled the phone cords out of the wall and smashed H.C.S.’s cell phone. Staffon, A.N.S., and H.C.S. fled, taking the family dog. When Staffon, A.N.S., and H.C.S. returned to their home, their pet chinchilla was dead, their pet ferret had been strangled, and their pet parrot had been decapitated. A day or so later appellant called H.C.S.’s workplace and said that he was going to kill everyone there. Appellant was arrested near the workplace and was convicted of terroristic threats based on this incident.
In 2002, A.N.S. told her doctor about appellant’s conduct. H.C.S. then reported appellant’s abuse against her. H.C.S. testified that she did not report the sexual abuse earlier because she was frightened for her life, as well as the lives of her mother and sister.
Staffon, H.C.S., and A.N.S. all testified that at various times appellant had threatened each of them with physical violence. H.C.S. testified that when she was ten years old appellant pointed a shotgun at her and her sister and told them that he would give them a ten-second “head start.” On another occasion, he pointed a handgun at H.C.S. and told her that she was a “bitch” who did not deserve to live. H.C.S. also testified on cross-examination that she saw appellant hit Staffon in the mouth with a gun. A.N.S. testified that on one occasion appellant chased her and H.C.S. with a car.
Staffon, who testified that she was aware of appellant’s abuse of her children, also testified that she was afraid of appellant. She testified that he had previously threatened her life by holding a hunting knife to her throat. On another occasion, he kicked the windshield out of her car. He also told Staffon that “if he couldn’t have [H.C.S] that he was going to make sure nobody else wanted her” by throwing acid on her face. He also told Staffon that “it would be funny” if someone would cut H.C.S. “from crotch to throat and . . . watch her die.” Appellant also threatened to shoot H.C.S. and A.N.S., stating that “[h]e could stand so far away and shoot them just to paralyze them so they wouldn’t be dead but they wouldn’t be able to move from the neck down.”
Appellant did not testify or present any other evidence. The jury returned guilty verdicts on all counts. The district court sentenced appellant to 220 months for the conduct involving H.C.S., a double-upward-durational-departure from the presumptive sentence, citing particular cruelty and multiple penetrations. The district court sentenced appellant to a consecutive 48-month prison term for the conduct relating to A.N.S. This appeal followed.
I. Evidence of prior bad acts
A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts unless the district court abused its discretion. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). It is the defendant’s burden on appeal to demonstrate the error and the prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
If the district court erred in admitting the 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 would have been favorable to the defendant without the evidence, then the error is prejudicial. Id.
a. Relationship evidence
Before trial, the state filed a notice informing the court and appellant that it intended to submit evidence of appellant’s prior bad acts. The evidence that the state intended to present included appellant’s terroristic-threats conviction, his threatening H.C.S., A.N.S., and Staffon with guns and knives; his threat to throw acid on H.C.S.’s face; and his killing of the family’s pets. The notice stated that the evidence was admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” At a pretrial conference, the state claimed that the evidence was not actually Spreigl evidence but should be admitted to “illustrate the relationship of the parties and to illuminate the relationship of the parties.” The state asserted that the evidence explained why H.C.S. and A.N.S. did not report the abuse sooner and why Staffon did not take more aggressive steps to protect her daughters.
Appellant objected to the introduction of this evidence and argued that his prior misconduct did not fall within a recognized exception to Minn. R. Evid. 404(b) because it did not relate to motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. Appellant further argued that several of the incidents were not proven by clear and convincing evidence and all of the prior acts were more prejudicial than probative. The district court determined that all of the evidence was admissible relationship evidence and was not unfairly prejudicial. See Minn. R. Evid. 404(b) (stating evidence of another crime, wrong, or act may be admissible for purposes other than to prove actions in conformity with character).
“Consistent with Rule 404(b), it is within the trial court’s discretion to admit evidence of a defendant’s prior acts ‘for the purpose of illuminating the relationship of defendant and complainant and placing the incident with which defendant was charged in proper context.’” State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999) (quoting State v. Volstad, 287 N.W.2d 660, 662 (Minn. 1980)). Evidence that bears directly on the history of the relationship between the parties is not Spreigl evidence. State v. Kanniainen, 367 N.W.2d 104, 106 (Minn. App. 1985). Although a Spreigl notice is not required prior to the introduction of relationship evidence, State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969), courts generally apply a Spreigl analysis to relationship evidence. See Bauer, 598 N.W.2d at 364 (applying Spreigl analysis to relationship evidence by requiring the evidence to be shown by clear and convincing evidence that defendant committed the prior act and the probative value of the evidence outweighs any unfair prejudice).
Appellant argues that the district court abused its discretion by admitting the evidence because it does not relate to a recognized exception to Rule 404(b). Appellant argues that only “[c]haracter evidence which tends to show the ‘strained relationship’ between the accused and the victim is relevant to establishing motive and intent” is admissible under Rule 404(b). See id. (quoting State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997)). But the list of purposes for which prior bad acts may be admitted under Minn. R. Evid. 404(b) is illustrative, not exclusive. State v. Harris, 560 N.W.2d 672, 677 (Minn. 1997). And courts have frequently admitted evidence that does not fit as one of the listed exceptions to Rule 404(b). For example, in State v. Spencer, this court allowed evidence of prior physical abuse in a case involving first-degree intra-familial sexual abuse to explain why the victim did not report the sexual abuse sooner and to refute the defendant’s defense of fabrication. 366 N.W.2d 656, 660 (Minn. App. 1985), review denied (Minn. July 11, 1985). “The evidence [of prior physical abuse] was admissible to show the quandary in which the child found herself.” Id. Further, in State v. Thompson, this court affirmed the admission of evidence relating to the defendant’s threats against the victim to explain the victim’s retraction of her allegations. 520 N.W.2d 468, 471 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
Appellant claims that the evidence in Thompson is more properly characterized as Spreigl or rehabilitative evidence than as relationship evidence. Appellant’s claim is not persuasive. The Thompson court clearly considered the evidence of the defendant’s prior threats against the victim and her mother as relationship evidence, citing State v. Thieman, 439 N.W.2d 1, 6 (Minn. 1989) (prior threat admissible to show strained relationship) and State v. Black, 291 N.W.2d 208, 214-15 (Minn. 1980) (prior robberies admissible to show relationship between defendant and victims). Id.
Appellant also cites State v. Strommen for the proposition that “in cases where a defendant’s motive is not in dispute or the state’s evidence does not illuminate that motive in some way, relationship evidence has been found inadmissible.” 648 N.W.2d 681, 687 (Minn. 2002). But appellant’s reliance on Strommen is misplaced. In Strommen, the defendant’s accomplice testified that she participated in an attempted robbery because she was afraid of the defendant. But the accomplice’s motive for participating in the crime was not relevant, and, therefore, the supreme court held that the evidence should not have been admitted. Id. at 686-87. The supreme court noted that Strommen was not charged with an offense based on his conduct toward the accomplice. Id.
In this case, however, appellant is charged with an offense based on his conduct toward H.C.S. and A.N.S. Moreover, their fear of appellant explains their delay in reporting and refutes appellant’s defense that the victims were lying. And Staffon’s fear of appellant explains why she did not act to protect her daughters. The state’s case was based entirely on the credibility of the testimony of H.C.S., A.N.S., and Staffon. We conclude that the evidence was properly admitted to demonstrate appellant’s relationship with H.C.S., A.N.S., and Staffon to explain the delay in reporting and to refute claims of fabrication.
b. Clear and convincing evidence; more probative than prejudicial
Appellant argues that the district court abused its discretion by failing to find, prior to admitting the evidence, that any of the bad acts was proved by clear and convincing evidence. Before admitting relationship evidence, a district court must find that the prior acts are supported by clear and convincing evidence and have probative value outweighing the potential for unfair prejudice. Minn. R. Evid. 404(b); Bauer, 598 N.W.2d at 364. The clear and convincing standard requires more than a preponderance
of the evidence but less than proof beyond a reasonable doubt. State v. Stewart, 643
N.W.2d 281, 297 (Minn. 2002). Appellant does not dispute that the terroristic-threats incident and conviction, and the pet-killing incident were proved by clear and convincing
evidence, because he admitted these incidents to the police. See State v. Profit, 591 N.W.2d 451, 464 (Minn. 1999) (clear and convincing standard may be met by defendant’s confession). But appellant challenges the admission of evidence of nine other threats and acts based on the district court’s failure to make a pre-trial determination that clear and convincing evidence established that appellant committed these acts.
We conclude that the district court erred by failing to determine whether each act testified to was shown by clear and convincing evidence before admitting the evidence. But a district court’s improper admission of evidence does not warrant a reversal unless the error was prejudicial. State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998). “A conviction will not be reversed so long as the error was harmless beyond a reasonable doubt.” Id. “If the verdict actually rendered [is] ‘surely unattributable’ to the error, the error is harmless beyond a reasonable doubt.” State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996)).
In this case, an eyewitness testified to each of the acts, most of the acts testified to were corroborated by other eyewitnesses, and none of the testimony about the acts was contradicted. The clear-and-convincing standard is met when the truth of the facts sought to be admitted is “highly probable.” Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). And the uncorroborated testimony of a single witness may be sufficient to meet the clear-and-convincing standard. State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000). Although the determination should have been made prior to admission, the record demonstrates that clear and convincing evidence supports appellant’s involvement in each of the incidents admitted. We conclude, therefore, that the district court’s failure to explicitly find the evidence to be clear and convincing prior to admission in this case was harmless error.
Appellant further claims that the evidence of his prior bad acts was more prejudicial than probative. But the district court found otherwise. And the district court reduced any risk of prejudice by providing a cautionary instruction before H.C.S.’s testimony and after the presentation of all of the evidence. And counsel for both parties warned the jury against using the evidence of prior bad acts for illegitimate purposes. See State v. Lynch, 590 N.W.2d 75, 81 (Minn. 1999) (using standard cautionary instructions “assured that the jury did not give improper weight to the evidence”). We conclude that the district court did not err by determining that the probative value of the relationship evidence outweighed the prejudice to appellant.
c. Evidence of acts that occurred after H.C.S. was 16 years old
Appellant also claims that the district court erred by failing to give a cautionary instruction limiting the jury’s use of evidence regarding events that occurred after H.C.S.’s sixteenth birthday. The Minnesota statutes under which appellant was charged apply only to conduct occurring with a minor 16 years of age or younger. Minn. Stat. §§ 609.342, .343 (2002).
District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). In this case, H.C.S.’s age was included as an element of the offenses relating to her with which appellant was charged. For example, the district court instructed the jury that the third element of count one was that H.C.S. “was under 16 years of age at the time of the sexual penetration. Neither mistake as to [H.C.S.’s] age nor consent by [H.C.S.] is a defense to this charge.” For the other counts relating to H.C.S., the court instructed the jury that to find appellant guilty, the jury must conclude that appellant’s “act or acts took place on or between February 25, 1995 and [H.C.S’s sixteenth birthday].” We conclude that the jury was adequately instructed that appellant could only be convicted for acts committed against H.C.S. before her sixteenth birthday.
d. Cumulative errors
Appellant argues that the cumulative effect of the district court’s alleged errors mandates a reversal. This argument is unpersuasive in light of our conclusion that any error in admission of the relationship evidence was harmless and that appellant’s other claims of error are without merit.
Appellant challenges the double-upward departure imposed by the district court for the conviction relating to H.C.S., claiming that the record does not support a departure based on either particular cruelty or multiple penetrations. Counsel for appellant has called this court’s attention to the recent United States Supreme Court decision affecting upward-sentencing departures in the state of Washington that appears to implicate similar departures under the Minnesota sentencing guidelines. See Blakely v. Washington, 124 S.Ct. 2531 (2004) (aggravating factors used to support a sentence greater than the presumptive sentence allowed by Washington state sentencing guidelines must be determined to exist beyond a reasonable doubt by a jury, unless the defendant waives this right). Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court’s determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant’s sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant’s sentence in light of Blakely.
Affirmed in part, and remanded.
 Although appellant claims in his brief that his defense was not based on fabrication, his trial counsel attacked A.N.S.’s credibility by attempting to impeach her with prior inconsistent statements and claiming during closing argument that her credibility was damaged, as evidenced by the inconsistent statements. And appellant’s trial counsel argued that there was reasonable doubt about whether the abuse occurred at all, suggesting that Staffon would not have allowed it to continue. Appellant’s trial counsel also argued that H.C.S. and A.N.S. made up the sexual-abuse allegations as retribution for appellant’s act of killing their pets.
 Appellant now argues that the district court should have given a “curative” rather than a “cautionary” instruction. But appellant agreed to the instruction given, and we have concluded that the evidence was relevant and admissible, so a curative instruction was not warranted. We also reject as without merit appellant’s argument that the cautionary instruction should have been given more frequently.