This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed August 23, 2005
Toussaint, Chief Judge
File No. K3-02-539
Hatch, Attorney General, James B. Early, 1800
Robert J. Raupp, Benton County Attorney, Benton County Courts Facility, 615 Highway 23, Post Office Box 189, Foley, MN 56329 (for respondent)
M. Stuart, State Public Defender, Michael C. Davis, Special Assistant Public
Considered and decided by Wright, Presiding Judge; Toussaint, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this appeal from convictions of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2000), and indecent exposure in violation of Minn. Stat. § 617.23, subd. 1(1) (2000), appellant George Gross challenges the trial court’s (1) jury instructions; (2) its admission of Spreigl evidence; (3) and its determination not to sever the charges against Gross for trial. Because we conclude that the court did not abuse its discretion in (1) instructing the jury; (2) admitting the Spreigl evidence; or (3) denying Gross’s motion to sever the charges, we affirm.
Gross was charged with one count of second-degree criminal sexual conduct and one count of indecent exposure based on incidents that occurred between Gross and an 11-year-old girl, K.W. At trial, K.W. testified that, in the summer of 2001, she was playing in Gross’s yard with his children when she asked Gross for a piece of gum. K.W. then got into the front passenger seat of Gross’s van, which was parked by a tree in the front of his residence, and Gross got into the driver’s seat. K.W. explained that in the past Gross had offered her gum and they “always got the gum at the van.” While they were in the van, Gross, with his hands, touched her breast and genital areas over her clothing. K.W. further testified that Gross tried to get under her clothing but was unsuccessful because she curled up and crossed her arms and hands around her body.
K.W. also testified to an incident in the fall of 2001 when she again asked Gross for a piece of gum and got into the passenger side of his van, which was similarly parked in the front yard of Gross’s residence. According to K.W., Gross touched her in the same manner as before, to keep him from touching under her clothing, she curled up and bit his thumb.
Finally, K.W. testified that one week after the incident in the fall of 2001 she saw Gross touching his penis. She explained that Gross was sitting in the passenger seat of his van with the van door “wide open.” The van was again parked under a tree in front of Gross’s residence. K.W. explained that Gross was facing her, his zipper was open, and he was looking at her. On cross-examination, K.W. testified to another incident of Gross exposing himself to her.
The jury found Gross guilty of both charges and the trial court sentenced him to the presumptive sentence of a stayed, 21-month term in prison. This appeal follows.
Gross contends that the trial
court erred in denying his motion to sever for trial the charge of
second-degree criminal sexual conduct from the charge of indecent
exposure. We review the denial of a
motion to sever under an abuse-of-discretion standard.
If charged offenses are not
related, severance is required to promote a fair trial. Minn. R. Crim. P. 17.03 subd. 3(1). To be joined, offenses must be “part of a
single behavioral incident or course of conduct.” State v. Profit,
591 N.W.2d 451, 458 (
Here, the record demonstrates that the charged offenses were perpetrated against the same victim and occurred in the same geographic location—a van parked in front of Gross’s residence. The time span separating the offense of criminal sexual conduct and the offense of indecent exposure was no more than one week. And, as found by the trial court, Gross’s course of conduct was motivated by the singular criminal objective of “condition[ing] K.W. to accept his advances by repeated exposure to sexual acts.” K.W.’s testimony demonstrates that Gross began by offering K.W. gum if she sat in his van. After establishing the routine of sitting in his van, Gross’s conduct escalated to sexual touching when K.W. asked for a piece of gum. Gross’s conduct further escalated to his exposing himself to K.W. Because the offenses were related in time and geographic proximity, and were motivated by a single criminal objective, the court did not abuse its discretion in denying Gross’s motion to sever the charges for trial.
Evidence of the commission
of other crimes (Spreigl evidence) may be admitted to establish motive,
intent, absence of mistake or accident, identity, or common scheme or plan, but
is inadmissible to prove that the accused acted in conformity with his or her
character. State v. Robinson, 604 N.W.2d 355, 363 (
First, Gross contends that
the trial court abused its discretion in admitting a prior occurrence of
indecent exposure because the act was not proved by clear and convincing
and convincing evidence is more than a preponderance of the evidence
but less than proof beyond a reasonable doubt [and] is met when the truth of
the facts sought to be admitted is highly probable.” State
v. Shannon, 583 N.W.2d 579, 584 (
A 14-year-old boy testified
to waiting for his mother at a parking lot near
Second, Gross contends that the trial court abused its discretion because the prior act of indecent exposure was not relevant and material to the state’s case. We disagree. Prior acts of sexual conduct are often relevant in sexual-conduct cases when the defendant disputes that the conduct occurred or asserts that the victim is fabricating the allegations. See State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn. 1993) (concluding that other crimes evidence, consisting of defendant’s prior opportunistic fondling of young girls, was admissible to show common plan or scheme and to establish that the alleged criminal act of second-degree criminal sexual conduct against another young girl occurred). Here, as in Wermerskirchen, the evidence of indecent exposure to another child of an age similar to K.W.’s demonstrates that Gross’s conduct was part of a common plan or scheme, as opposed to fabrication or mistake in the perception of K.W.
Because the other act of indecent exposure was proved by clear and convincing evidence and is relevant to the crimes charged, the trial court did not abuse its discretion in admitting the Spriegl evidence.
Finally, Gross contends that
the trial court’s jury instructions, to which he did not object at trial,
denied him the right to a unanimous jury verdict. Generally, a defendant’s failure to object to
instructions before they are given to the jury constitutes a waiver of the
right to raise the issue on appeal. State v. Cross, 577 N.W.2d 721, 726 (
First, Gross contends that
he was denied his right to a unanimous verdict when the trial court failed to
instruct the jury that it had to agree unanimously on which of the two alleged
acts of criminal sexual conduct Gross committed. In
The trial court instructed
the jury on five elements of the charge of second-degree criminal sexual
The instruction told the jury that they had to find beyond a
reasonable doubt that the unlawful conduct “took place during the summer and fall of 2001 in
Under these instructions, the jury was not permitted to choose between the two alleged acts of misconduct, as Gross contends, but had to unanimously agree that Gross committed criminal sexual conduct in the summer of 2001 and the fall of 2001. The jury returned a verdict of guilty, and, when polled, each juror told the court that they agreed with the verdict. On this record, we cannot conclude that the trial court’s instructions denied Gross the right to a unanimous jury verdict on the charge of second-degree criminal sexual conduct.
Second, Gross contends that he was denied his right to a unanimous verdict when the trial court failed to instruct the jury that it had to agree unanimously on which of the two alleged acts of indecent exposure Gross committed. But the prosecution only brought forward evidence of one occurrence of indecent exposure—the incident when K.W. saw Gross masturbating in his van, which took place one week after the incident in the fall of 2001 of sexual conduct. The second occurrence of indecent exposure was raised by Gross on cross-examination for the purpose of undermining K.W.’s credibility.
We note that the trial court
may have caused some confusion by instructing the jury that, to find Gross
guilty of the indecent-exposure charge, it had to find that the act of indecent
exposure “took place in the summer and fall of 2001 in
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.