This opinion will be unpublished and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
State of Minnesota,
Kevin Scott Linge,
Filed January 2, 2007
St. Louis County District Court
File No. K8-04-601159
Alan Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of second-degree criminal sexual conduct, appellant argues that the district court abused its discretion by admitting other-acts evidence and that the evidence was insufficient to support the conviction. We affirm.
Appellant Kevin Linge was charged by complaint with second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2004). According to the complaint, on August 16, 2004, Linge put his hand down his cousin’s seven-year-old daughter’s underpants and touched her and also rubbed her breast area under her shirt. The complaint states that investigators spoke with two other relatives of Linge, C.B. and F.B., now teenagers, who both reported that Linge put his hand down their pants when they were approximately eight years old. In February and March 2005, the state gave notice of its intent to introduce evidence at trial regarding Linge’s prior acts involving C.B. and F.B. The first notice stated that the evidence was being offered to show intent, absence of mistake, or modus operandi. The second notice stated that the evidence was being offered to show intent, motive, common scheme or plan, or absence of mistake.
Linge waived his right to a jury trial, and a court trial was held. At trial, the victim, K.A.L., testified that Linge touched her inside her underpants on her “private parts.” According to K.A.L.’s mother and a videotaped interview of K.A.L., K.A.L. had earlier described the touching as being just above her genitals. Mother testified that K.A.L. had pointed to the area “[w]here your pubic hair would be.” The district court admitted the testimony of C.B. and F.B., who both testified that Linge had put his hand down their pants when they were younger. The district court found Linge guilty of second-degree criminal sexual conduct and imposed a 21-month, stayed sentence. This appeal followed.
D E C I S I O N
Linge argues that (1) the district court erred in admitting the other-acts evidence; and (2) the evidence was insufficient to support the conviction.
trial, “[e]vidence of another crime, wrong, or act is not admissible to prove
the character of a person in order to show action in conformity
admitting Spreigl evidence, the
district court must determine that (1) the state gave notice of its intent
to admit the evidence; (2) the state clearly indicated what it would offer the
evidence to prove; (3) there is clear and convincing evidence that the
defendant participated in the prior act; (4) the evidence is relevant and
material to the state’s case;and (5)
the probative value of the evidence is not outweighed by its potential
prejudice to the defendant. State v. Ness, 707 N.W.2d 676, 685-86 (
Linge argues that the district court committed reversible error in admitting the Spreigl evidence because (1) the evidence that he participated in the prior acts was not clear and convincing; (2) the evidence of the prior acts was neither relevant nor material to the case; and (3) any probative value was outweighed by the potential prejudice. Linge also argues that the Spreigl evidence affected the verdict.
1. Linge contends that the district court “failed to make the required finding that Linge’s involvement in the other acts was established by clear and convincing evidence.” But immediately before announcing its decision to admit the other-acts evidence, the district court explained:
The Court, in deciding whether Spreigl evidence should be admitted or not, must consider the strength of the State’s case and whether the other charges -- or allegations in the report are -- are shown by clear and convincing evidence and whether they’d be relevant.
For purposes of showing intent or motive in this matter, the Court is going to allow the Spreigl evidence to come in.
. . . .
I’m going to allow this in, but only as proof of motive or intent, preparation or plan, and we’ll go from there.
Although the district court did not explicitly state that Linge’s involvement in the other acts was established by clear and convincing evidence, we conclude that by explicitly stating the applicable standard of proof in the sentence before it announced that it was admitting the evidence, the district court demonstrated that it found that the evidence of Linge’s involvement in the other acts was clear and convincing.
Linge concedes that prior offenses need not be charged for evidence of the offenses to be admissible, but he argues that the evidence of the prior acts was not clear and convincing because the other acts were not charged, or even reported, until after K.A.L. made her allegations, and C.B.’s and F.B.’s testimony was rebutted by their delays in reporting, their earlier statements that they had not been abused, their normal interactions with Linge after he allegedly abused them, and by their father’s testimony, which contradicted their testimony that Linge was living with them when the abuse occurred. But the rebuttal evidence that Linge refers to was not presented until after the district court ruled that the Spreigl evidence would be admitted. The district court did not abuse its discretion by not considering evidence that had not been presented.
of “a defendant’s participation in a Spreigl
incident may be considered clear and convincing when it is highly probable that
the facts sought to be admitted are truthful.”
argues that (a) the district court did not state how the Spreigl evidence was relevant to any disputed fact; (b) motive is
not a proper basis for admitting the evidence; and (c) the evidence lacked the
required “marked similarity” to the charged offense to be admissible to show
common scheme or plan. See Ness,
707 N.W.2d at 688 (stating that to be admissible under common scheme or plan
exception, bad act must have marked similarity in modus operandi to charged
offense). Relevant evidence, which is evidence
that tends to make the existence of any consequential fact more or less
probable, is admissible.
The district court stated that the evidence
was being admitted “as proof of motive or intent, preparation or plan.” Even if the district court erred in admitting
the Spreigl evidence as proof of motive,
the district court did not err by admitting the evidence as proof of intent. See Ness,
707 N.W.2d at 686-87 (discussing need for district court to identify precise
disputed fact that Spreigl evidence
relates to and discussing distinction between motive and intent). To prove a violation of
3. Linge argues that the probative value of the Spreigl evidence was outweighed by the potential for unfair prejudice.
[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state’s case. Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the trial court admit the Spreigl evidence.
Kennedy, 585 N.W.2d at 391-92 (quotation and citations omitted); see Ness, 707 N.W.2d at 690 (holding that the state’s need for the Spreigl evidence should be addressed only in the context of balancing probative value against potential prejudice, rather than as an independent requirement); see also State v. DeWald, 464 N.W.2d 500, 503-04 (Minn. 1991) (stating that although risk of prejudice is present whenever Spreigl evidence is admitted, in weighing probative value against prejudicial effect, district court must consider extent to which Spreigl evidence is crucial to state’s case). Even when there is sufficient evidence to convict, Spreigl evidence may be needed because, as a practical matter, it is not clear that the fact-finder will believe the state’s other evidence regarding the disputed issue. Angus, 695 N.W.2d at 120.
Contrary to Linge’s contention, the Spreigl evidence was relevant to the state’s case, and the state demonstrated its need for the evidence based on the lack of physical evidence, the issue of credibility, and the relevance to the issue of intent in light of Linge’s claim that he did not recall touching K.A.L.’s intimate parts. Also, the admission of Spreigl evidence is less prejudicial when the trial is to the court rather than to a jury. Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Under these circumstances, the district court did not abuse its discretion in finding that the probative value of the Spreigl evidence outweighed its potential for unfair prejudice. See State v. Duncan, 608 N.W.2d 551, 557 (Minn. App. 2000) (affirming the admission of Spreigl evidence when the state’s evidence consisted of the statements of two alleged child victims and there was no physical evidence of sexual contact), review denied (Minn. May 16, 2000).
Linge argues that a new trial must be ordered because the Spreigl evidence affected the verdict. See Ness, 707 N.W.2d at 691 (stating that if district court erroneously admitted Spreigl evidence, this court must determine whether there is a reasonable possibility wrongfully admitted evidence significantly affected verdict). Because we have concluded that the district court did not erroneously admit the Spreigl evidence, it is not necessary to address this issue.
Linge argues that the evidence is
insufficient to support the conviction because there was no evidence that he
touched K.A.L.’s intimate parts. When considering
a claim of insufficient evidence, this court’s review “is limited to a
painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction, was sufficient to permit
the [fact-finder] to reach the verdict which [it] did.” State
was convicted of second-degree criminal sexual conduct under Minn. Stat.
§ 609.343, subd. 1(a), which proscribes sexual contact when the victim is
under 13 years of age and the actor is more than 36 months older. For purposes of section 609.343,
subdivision 1(a), sexual contact includes intentional touching with sexual or
aggressive intent of the complainant’s intimate parts, or the touching of the
clothing covering the immediate area of the intimate parts.
Linge contends that K.A.L.’s testimony that he touched her “where you’re not supposed to be touched without people’s permission” and that he touched her “private parts” is insufficient to sustain the conviction because it does not fit “groin” or “primary genital area” in the statutory definition. But K.A.L.’s testimony was not the only evidence at trial. During K.A.L.’s testimony, the prosecutor gave K.A.L. a picture of a girl and asked her to circle on the picture the area where Linge touched her. K.A.L. drew a circle around the junction of the inner part of both thighs with the trunk. The area that she circled was part of the groin. Assuming that the district court believed K.A.L., as we must, the evidence is sufficient to support the conviction.
 C.B. and F.B. are Linge’s cousins.