This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Sundae Lynn Nippa,
Filed February 13, 2007
Beltrami County District Court
File No. K7-04-815
Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Timothy R. Faver, Beltrami County
Attorney, Court Annex,
Gregory K. Larson, Larson Law
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant argues that the district court abused its discretion by admitting Spreigl evidence and that the district court erred by not offering appellant the opportunity to allocute at sentencing. Although we conclude that the district court did not abuse its discretion when it admitted the Spreigl evidence, it was error for the district court to deny appellant her right of allocution, and we remand for a new sentencing hearing.
October 28, 2003, L.W. was recuperating following the birth of her son at the
was not the first contact between L.W. and Nippa. Sometime during June 2003,
L.W. became aware of a romantic relationship between Nippa and B.W., who had
been dating L.W. and was the father of L.W.’s son. Between June and October 2003, L.W. and Nippa
had several contacts, which L.W. characterized as “[h]ostile.” And on October 28, B.W. had come to
On May 14, 2004, Nippa was charged with one count of making terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002). At trial, the state sought to introduce evidence of two past incidents of harassment of L.W. allegedly committed by Nippa. On September 4, 2003, B.W. was scheduled to undergo a paternity test to determine whether he was the father of L.W.’s daughter, but L.W. cancelled the appointment because of a dispute over who would pay the fee. After the paternity test was cancelled, L.W.’s ultrasound appointment was cancelled without her knowledge. The clinic’s receptionist testified that it was a female caller who cancelled the appointment and that the call was made at 12:06 p.m. Phone records showed that a call was placed from Nippa’s cell phone to the clinic at 12:01 p.m.
Later that same day, L.W. discovered that her home telephone service had been changed. An employee of the telephone company testified that she received a call at 12:59 p.m. on September 4, 2003, requesting that L.W.’s long-distance service be terminated, that a new unpublished number be assigned, and that a password be added to the account. Although the employee could not recall the caller’s gender, she testified that a male caller requesting changes to a female’s account would have raised suspicions. Phone records showed that a call had been placed from Nippa’s cell phone to the telephone company at 12:56 p.m. on September 4, 2003. L.W. reported both incidents to the police.
Before trial, Nippa moved for an order in limine prohibiting the state from introducing evidence of any “alleged phone calls” made by Nippa other than the call at issue in the case. The district court denied Nippa’s motion, and a jury subsequently convicted Nippa of making terroristic threats. The district court stayed imposition of Nippa’s sentence and placed her on supervised probation for five years, ordered that she serve 90 days in jail, and imposed a $1,000 fine. At sentencing, the district court did not invite Nippa to make a statement. This appeal follows.
D E C I S I O N
Nippa first argues that the district
court erred when it admitted evidence that Nippa cancelled L.W.’s ultrasound
appointment and terminated L.W.’s long-distance service. The district court has wide discretion in
determining the admissibility of Spreigl
evidence, or evidence of prior bad acts, and will not be reversed unless it
abused that discretion. State v. Scruggs, 421 N.W.2d 707, 715 (
Nippa argues that the district court
failed to follow required procedures when it admitted evidence of the two prior
incidents. The supreme court has
mandated that, to admit Spreigl
evidence, certain procedural safeguards be observed: (1) the state must give notice of its intent
to introduce Spreigl evidence that
clearly identifies the evidence to be introduced; (2) the state must establish
the defendant’s participation in the prior bad act by clear and convincing
evidence; (3) the proffered evidence must be relevant and material to the
state’s case; and (4) the probative value of the evidence must outweigh the
potential for unfair prejudice.
arguments are unpersuasive. First, Nippa
acknowledges that the two incidents were described in the complaint, and notice
by complaint is effective notice. State v. Gould, 399 N.W.2d 668, 670 (
fourth, although the supreme court has stated that the district court should
wait until the close of the state’s case-in-chief before ruling on the
admissibility of Spreigl evidence and
that, in close cases, an evidentiary hearing may be necessary, the court has
also held that such decisions are confided to the district court’s sound
discretion. Compare State v. Bolte, 530 N.W.2d 191,
197 n.2 (
Nippa argues that neither incident fits within one of the exceptions to the
general rule excluding evidence of prior bad acts. See
We conclude that the district court did not abuse its discretion by admitting evidence of the two calls. The state introduced evidence that both calls were made from Nippa’s cell phone; that the caller in both cases was female; and that the two calls were made a little more than a month and a half before the October 28 call. The modus operandi of the two calls was also very similar to that of the charged offense: harassing phone calls made from Nippa’s cell phone after a dispute between B.W. and L.W.—first the cancelled paternity test and then L.W.’s family’s refusal to permit B.W. to see his newborn son. Finally, without this evidence, the state’s case rested largely on L.W.’s identification of Nippa’s voice and left L.W. open to a charge that she was lying. See id. at 391 (noting that common-scheme evidence is useful to refute a contention that the complainant is lying). Thus, we conclude that the district court had ample grounds on which to admit evidence of the two calls, and its decision to do so was not an abuse of discretion.
Nippa argues that the district court
erred by not offering her the opportunity to allocute at the sentencing
hearing. The state concedes that Nippa
is entitled to a new sentencing hearing. See
Affirmed in part and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.