This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Chad Harold Krueger,
Filed November 21, 2006
Clay County District Court
File No. K0-03-1942
Mike Hatch, Attorney General, Thomas Ragatz, Assistant Attorney General, Amy V. Kvålseth, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Kenneth J. Kohler, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorehead, MN 56561 (for respondent)
John Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
After a jury trial, Chad Krueger was convicted of three counts of criminal sexual conduct and two counts of furnishing alcohol to minors. On appeal, Krueger challenges the admissibility of Spreigl evidence to show a common scheme or plan between the Spreigl conduct and the charged offenses. Because the Spreigl evidence was admitted for a proper purpose, had a marked similarity to the charged offenses, and was directed at countering Krueger’s alibi defense, we affirm.
At trial, the state presented evidence of an incident that was alleged to have occurred between July 4 and August 11, 2003. Fourteen-year-old SF and thirteen-year-old TA entered Krueger’s RV in order to obtain navel rings. Inside the RV, the thirty-four-year-old Krueger showed the girls various navel rings and temporary tattoos he had for sale. Krueger offered to sell the navel rings at a discount rate and to give free tattoos if the girls would “flash” him by exposing their breasts. The girls complied with Krueger’s request. Krueger pulled down their clothing and applied the tattoos to their hips, backs, breasts, and groin areas. Krueger then inserted a vibrating object into TA’s vagina.
Later that day, Krueger drove the girls around in his black SUV and gave them Mike’s Hard Lemonade, an alcoholic beverage. Krueger played a game that involved squeezing the girls’ breasts whenever the vehicle stopped at a stop sign. While driving, Krueger inserted his fingers into TA’s vagina.
The state also introduced Spreigl evidence about a subsequent encounter SF had with Krueger. On August 13, 2005, SF and two other girls entered Krueger’s RV. After the girls exposed their breasts and genital areas, Krueger gave them free navel rings and temporary tattoos. Krueger showed them photographs of nude people that he had stored on his digital camera.
Later that day, Krueger drove two of the girls around in his blue car and gave them an alcoholic beverage, which was either Mike’s Hard Lemonade or Mike’s Hard Iced Tea. Krueger played the same game in which he squeezed the girls’ breasts whenever the vehicle stopped at a stop sign. There was testimony that, after the vehicle stopped, Krueger sexually assaulted seventeen-year-old GC, a girl who accompanied SF.
In addition to testimony about the August 13 incident, the state introduced Spreigl evidence consisting of videotaped interviews of the victims, four photographs from Krueger’s camera, and a picture of Krueger’s camera. Krueger presented an alibi defense. The jury found him guilty, and he now appeals.
D E C I S I O N
In general, evidence of the defendant’s other crimes or misconduct is inadmissible. State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). This type of evidence may be allowed, however, if offered for the limited purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). We review a district court’s decision to admit Spreigl evidence for abuse of discretion. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). The appellant bears the burden of showing the error and any resulting prejudice. Id.
Spreigl evidence is admissible if the state (1) gives notice of its intent to introduce the evidence, (2) identifies the purpose of the evidence, (3) proves by clear and convincing evidence that the defendant participated in the Spreigl conduct, (4) establishes that the evidence is relevant and material, and (5) demonstrates that the probative value of the evidence substantially outweighs its potential for unfair prejudice. Id. at 685-86; see also Minn. R. Evid. 403 (requiring probative value to substantially outweigh potential for prejudice).
Krueger does not dispute that the state gave notice of its intent to introduce Spreigl evidence or that the state proved his participation by clear and convincing evidence. Instead, he argues that the other three Spreigl requirements were not satisfied. We disagree.
First, the state properly identified the purpose of the Spreigl evidence. Krueger notes that the state’s notice “recited nearly every exception” that Minn. R. Evid. 404(b) allows. But the state is not required to specify the purpose at the time it files a notice of intent to use Spreigl evidence; rather the state must specify the exception at the time it offers the evidence. State v. Hannuksela, 452 N.W.2d 668, 678 (Minn. 1990). When the Spreigl evidence was introduced, the district court had already indicated that the evidence shows a common scheme or plan between the Spreigl conduct and the charged offenses. The purpose of the Spreigl evidence was thus properly identified.
Second, the Spreigl testimony and videotapes were relevant and material. To be relevant under the common-scheme-or-plan exception, the Spreigl conduct must have a marked similarity in modus operandi to the charged offense. Ness, 707 N.W.2d at 688. A connection in time and place is also considered in determining relevancy. State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998).
The Spreigl testimony and videotapes described events that occurred within a few weeks of the charged offenses in Krueger’s RV and in Krueger’s vehicles. In both sequences, Krueger showed the girls navel rings and temporary tattoos and offered to give the girls items in exchange for exposing their breasts. In both sequences, Krueger reached underneath the girls’ clothing. Both sequences involved the purchase of Mike’s Hard Lemonade or Mike’s Hard Iced Tea for the underage girls and their consumption of the alcoholic beverage while riding in Krueger’s vehicle. Both sequences involved the game in which Krueger squeezed the girls’ breasts when the vehicle stopped. The Spreigl conduct is thus markedly similar to the charged conduct in time, place, and modus operandi.
We have some doubt about the relevance of the photographs admitted as Spreigl evidence. Although the photographs corroborate the Spreigl testimony, corroboration is not generally a proper purpose of additional Spreigl evidence. We can, however, find no reasonable possibility that the photographs significantly affected the verdict. There was, therefore, no prejudicial error that would require a new trial. See State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (defining standard for prejudicial error in Spreigl cases).
Third, the probative value of the Spreigl testimony and videotapes substantially outweighed the potential for unfair prejudice. Unfair prejudice is “not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).
Krueger presented five alibi witnesses to support his argument that the charged offenses never happened. Alibi testimony tends to weaken a state’s case. The Spreigl evidence of substantially similar incidents was therefore highly probative of whether the events actually occurred. In addition, Krueger challenged the credibility of the witnesses against him and pointed out inconsistencies in their testimony. In light of Krueger’s alibi and credibility defenses, the Spreigl evidence was not excessive or cumulative. Similarly, the state’s case was not so strong that Spreigl evidence was unnecessary. See State v. Billstrom, 276 Minn. 174, 177-78, 149 N.W.2d 281, 284 (1967) (noting that when defendant relies on alibi, state can fortify its position).
Although the Spreigl evidence involved a similar sequence of events, it was not redundant. Any potential for confusion is attributable to the marked similarity of the conduct. The risk of confusion was reduced by jury instructions given before and after the evidence was admitted. State v. Slowinski, 450 N.W.2d 107, 114-15 (Minn. 1990). We, therefore, cannot conclude that the probative value was substantially outweighed by the potential for unfair prejudice.
All the requirements to admit the testimony and videotapes as Spreigl evidence were thus satisfied. Therefore, the district court did not abuse its discretion.