This opinion will be unpublished and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,
Ricky Lee Hagedorn,
Filed December 28, 2004
Crow Wing County District Court
File No. K5-03-952
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Minge, Judge, and Crippen, Judge.
This appeal questions whether the district court erred in joining, for a single trial, separate accusations of criminal conduct by appellant against his wife and his son. Appellant also disputes the admission of expert testimony, the sufficiency of the district court’s unanimous verdict jury instruction, and the sufficiency of the evidence supporting appellant’s convictions. Because we determine that the erroneous joinder of the charges was not prejudicial to appellant, and because the district court properly applied the law and exercised discretion in relation to appellant’s other claims, we affirm.
In a single trial, appellant Ricky Hagedorn faced four sexual and domestic assault counts relating to conduct against his wife, L.H., as well as three assault counts and one terroristic threat count for acts against his son, R.H. Appellant was convicted on a count of third-degree criminal sexual conduct, Minn. Stat. § 609.344 (2002), against his wife, and a count of second-degree assault, Minn. Stat. § 609.222 (2002), against his son. On the morning of trial, following the prosecution’s disclosure of the various charges, the district court denied appellant’s motion to bifurcate the charges.
The prosecution offered expert testimony regarding battered-woman syndrome. Appellant objected prior to trial to this evidence, but the district court delayed its ruling until after hearing further evidence from appellant’s wife. The objection was not renewed, and the testimony was admitted at trial.
Appellant asserts that the charges relating to separate victims did not arise from the same incident, were not related, and could not be joined. Respondent does not disagree. Instead, respondent claims that the decision to join was not prejudicial such as to require reversal.
To determine if reversible prejudice occurred, this court must assess whether the evidence of the charges related to appellant’s son would have been admissible in the trial for the charges related to his wife. State v. Jackson, 615 N.W.2d 391, 394-95 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000). Although the joinder in this case was improper under the rule, the error is not prejudicial if the evidence of each offense would have been admissible as evidence, similar to Spreigl evidence, in the trial of the other offenses. State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982). This question ties to the ultimate question of prejudice, that is, whether the probative value of the evidence is substantially outweighed by the prejudice to the defendant. State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999); State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996).
In Spreigl cases, the district court must give limiting instructions “to ensure that the jury does not convict the defendant of the uncharged Spreigl offense rather than for the crime with which the defendant was charged.” Profit, 591 N.W.2d at 460. But when a defendant “is charged with and may permissibly be convicted of both crimes, there is less danger that the jury will try to punish the defendant for one crime by convicting him of the other.” Id. Still, district courts are cautioned against “paying only marginal attention to the traditional factors limiting joinder,” relying on a Spreigl analysis “to circumvent” the appropriate joinder analysis. Id. at 461. On appeal, the supreme court added, “we are certainly more likely to find prejudice when the joined offenses are unrelated in time, location, or objective.” Id.
Evidence of another crime is not admissible “to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). But the evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. To be admissible, the evidence must be relevant and material to the state’s case, its probative value must not be outweighed by its potential for unfair prejudice, and the defendant’s participation in the incident must be shown by clear and convincing evidence. Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002).
Appellant’s argument focuses on the premise that the R.H. charges constituted character evidence in relation to the L.H. charges and are, because of this, not relevant to the L.H. charges. There was no probative value of the evidence on acts against L.H. in prosecuting the charge of acts against R.H., which were largely undisputed, but we conclude that the R.H. charges are relevant and material to respondent’s case on sexual misconduct against L.H.
First, as respondent maintains, the R.H. charges would be admissible in trial of the L.H. charges under Minn. Stat. § 634.20 (2002) (providing for evidence of similar acts against family members). See State v. Cogshell, 538 N.W.2d 120, 124 (Minn. 1995) (holding it does not necessarily matter that the other crime is not “a unique or ‘signature’ crime . . . as long as the [other] crime is sufficiently or substantially similar”).
Second, there is merit in respondent’s assertion that evidence of the R.H. conduct would serve 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)). It is within the district court’s discretion to admit such relationship evidence under rule 404(b). Id. Although relationship evidence is not considered Spreigl evidence, State v. Kanniainen, 367 N.W.2d 104, 106 (Minn. App. 1985), courts typically apply a Spreigl-type analysis to this evidence, see Bauer, 598 N.W.2d at 364 (“Prior to admitting such evidence, the trial court must determine that there is clear and convincing evidence that the defendant committed the prior bad act and that the probative value of the evidence outweighs any potential for unfair prejudice” (quotation omitted)).
Appellant also contends the potential for unfair prejudice far outweighs the probative value of the R.H. evidence. “In weighing the probative value against the prejudicial effect, the [district] 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); see also State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) (dwelling on weakness or inadequacy of identity evidence). But because appellant was acquitted of the majority of the charges, including various charges in relation to both victims, it is difficult for appellant to show he was unfairly prejudiced. See 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.”); State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (“If the verdict actually rendered [is] surely unattributable to the error, the error is harmless beyond a reasonable doubt.” (quotation omitted)). Moreover, the record demonstrates that clear and convincing evidence supports appellant’s involvement in each of the incidents, as well as the sufficiently or substantially similar nature of the R.H. and L.H. charges. We are satisfied on this record that appellant has not shown that the actual prejudice outweighs the probative value of the R.H. evidence.
Appellant argues that the district court abused its discretion when it admitted expert testimony on battered-woman syndrome. “The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citation omitted); see also State v. Grecinger, 569 N.W.2d 189, 194 (Minn. 1997) (holding reversal requires “apparent error”).
When considering whether to admit expert testimony, the district court may approach the topic by determining whether the testimony will assist the jury in resolving factual questions presented at trial. Minn. R. Evid. 702. Respondent offered expert testimony on battered-woman syndrome to explain why the victim had yet to report the incidents of abuse and assault, and it was within the scope of the district court’s discretion to admit the evidence to assist the jury.
The battered-woman syndrome evidence may be inappropriate if it includes an opinion as to whether the victim suffers from it, enlarging the risk of prejudice. See Minn. R. Evid. 403; Grecinger, 569 N.W.2d at 197. Respondent carefully avoided prejudice by offering no evidence diagnosing the victim as a battered woman.
3. Right to a Unanimous Verdict
Appellant argues that the district court should have specifically instructed the jury that it had to agree on which of the alleged acts appellant committed. Because appellant neither objected to the unanimity instruction given by the district court nor requested a more specific instruction, we are to review the district court’s instruction for plain error. See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (holding that failure to object results in review only for plain error); State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998) (declaring plain error when a clearly erroneous decision affects substantial rights).
The defendant in a criminal case has the constitutional right to a unanimous verdict. Burns v. State, 621 N.W.2d 55, 61 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001). Juries must unanimously agree on whether a defendant committed the act or acts that constitute an element of the crime charged. State v. Stempf, 627 N.W.2d 352, 358 (Minn. App. 2001). Appellant argues that, because the state’s evidence included multiple allegations of similar acts, Stempf applies and the jury should have been instructed to unanimously decide which act constituted the crime.
Stempf does not govern in the circumstances of this case. In Stempf, the defendant was charged with only one count of possession of a controlled substance, the state introduced evidence of two specific instances where Stempf possessed methamphetamine, and separate defenses were offered as to each of the incidents. Id. at 354. In those circumstances, the state had to assert and prove when possession occurred, and the lack of a specific unanimity instruction denied the right to a unanimous verdict. Id. at 358; see 10A Minnesota Practice, CRIMJIG 20.36 (1999) (“[T]he defendant’s act took place on (or about) [a specific date].”). In contrast, in cases where specific dates are not assigned to sexual misconduct and all instances are similarly denied, it is appropriate to prove multiple alternative occasions of committing a stated charge. See State v. Poole, 489 N.W.2d 537, 543-44 (Minn. App. 1992) (holding that specific dates of sexual abuse need not be charged or proven), aff’d, 499 N.W.2d 31 (Minn. 1993). The district court’s failure to give sua sponte a specific unanimity instruction was not plain error.
4. Sufficiency of the Evidence
On a challenge to the sufficiency of the evidence, we must affirm the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Under Minnesota law, proof of third-degree criminal sexual conduct requires evidence that force or coercion was used to accomplish sexual penetration. Minn. Stat. § 609.344, subd. 1(c) (2002). Based on the testimony of L.H. there is sufficient evidence appellant used force to accomplish penetration on numerous occasions and at least on one occasion justifying the single count. The jury could reasonably conclude the defendant was guilty of the charged offense.
Second-degree assault is defined as assault with a
dangerous weapon. Minn. Stat. §
609.222, subd. 1 (2002). An act of
assault is done by inflicting or attempting to inflict bodily harm or acting
with intent to cause fear of immediate harm or death. Minn. Stat. § 609.02, subd. 10 (2002). A dangerous weapon includes a firearm – a
device designed as a weapon and capable of producing death or great bodily
harm. Id., subd. 6 (2002). Both L.H. and R.H. testified that appellant
aimed a gun at and threatened to shoot R.H.
on multiple occasions. The testimony from both is sufficient for the jury to reasonably conclude that appellant was guilty of the charged offense.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant alleges the district court ignored the supreme court’s “admonition” in State v. Profit, 591 N.W.2d 451 (Minn. 1999), by failing to consider the appropriateness of joinder, and instead proceeded immediately to consider whether evidence of the two offenses would be admissible in the unrelated cases. This does not correctly categorize the district court’s review of the situation. But respondent correctly observes that the district court erroneously determined joinder was proper after the defense failed to cite Minn. R. Crim. P. 17.03 (governing severance of unrelated charges), arguing instead that the district court should “bifurcate” the offenses. The district court determined that charges against the two victims were “intermingled,” but the charges that related to appellant’s son are sufficiently unrelated to qualify for severance under rule 17.03, subd. 3(1)(a).