This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Dean Richard Nylund,



Filed April 24, 2007


Shumaker, Judge


Otter Tail County District Court

File No. K5-04-1429




Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


David Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Suite 320, Fergus Falls, MN 56537 (for respondent)


John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of six counts of criminal sexual conduct, arguing that the district court abused its discretion by admitting evidence of his alleged prior sexual misconduct and by not granting his request for a continuance.  Because the district court did not abuse its discretion by admitting the Spreigl evidence or by denying his continuance request, we affirm.


            Appellant Dean Richard Nylund was charged with six counts of criminal sexual conduct relating to the sexual abuse of his two daughters.  He was represented by a public defender, pleaded not guilty, and demanded a speedy trial.

            Less than one month before the January 2005 trial date, Nylund discharged his attorney, decided to proceed pro se, and waived his speedy-trial demand and right to a jury trial.  The court appointed standby counsel, and Nylund requested a continuance.  The state moved for a speedy trial.  The district court continued the trial, but indicated that the delay would not be substantial. 

            A series of pretrial hearings took place during which Nylund refused representation.  At one point, Nylund requested an attorney, but the district court did not find compelling circumstances requiring appointment of a defender other than the one originally assigned to the case.  Nylund refused the reappointment of his original public defender and continued pro se.  He also withdrew his speedy-trial demand and requested a jury trial.

            In April 2005, the state renewed its speedy-trial demand, and the trial was set to begin June 27, 2005.  Approximately one month before trial, Nylund requested an attorney.  The district court allowed the state public defender’s office to appoint an attorney, but refused to delay the trial any further.  A different public defender was appointed to represent Nylund.

            Nylund’s new attorney requested a continuance less than three weeks before trial.  The attorney stated that it would be impossible for him to adequately prepare for the case in time for the scheduled trial date.  The state objected to any continuance, and the district court refused to postpone the trial.  The district court explained that the trial was already scheduled 70 days beyond the state’s second speedy-trial demand, that Nylund was aware of his right to representation throughout the extensive pretrial phase, and that Nylund “demonstrated . . . that he was diligently preparing for trial” and would be “well able to provide assistance to his attorney.”

            Before trial, the state gave proper notice of its intent to introduce Nylund’s other acts of sexual misconduct involving B.C.S., the victims’ half-sister who also lived in Nylund’s home.  The state intended to use the evidence to show that Nylund engaged in a common plan or scheme in sexually abusing the girls.

            At the Spreigl hearing, B.C.S. described several incidents in which Nylund allegedly exposed himself and made inappropriate sexual comments towards her and her friends.  The district court found that there was clear-and-convincing evidence that Nylund made a sexually inappropriate comment to B.C.S. and that he exposed himself to her on two occasions.  The district court concluded that the incidents could be admissible at trial.

            Various witnesses testified at trial, including the victims and B.C.S.  On cross-examination of B.C.S., the defense attorney asked if Nylund ever touched or acted inappropriately towards her and whether she had reported Nylund’s behavior.  The state argued that this line of questioning opened the door for the Spreigl evidence, and the district court allowed testimony about Nylund’s prior acts.  B.C.S. then testified about two occasions when Nylund exposed himself to her.

            The jury found Nylund guilty of all charges, and he was sentenced to 206 months.  This appeal followed.


1.         Spreigl Evidence

            Nylund challenges the admission of Spreigl evidence of his prior sexual misconduct, arguing that the state failed to prove by clear-and-convincing evidence that he engaged in the prior acts.  He also contends that the evidence was irrelevant and that its prejudicial effect substantially outweighed its probative value.

The admission of Spreigl evidence lies within the sound discretion of the district court, and we will not reverse absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  To prevail, an appellant must show error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  But if the admission of bad-acts evidence is a close call, it should be excluded.  State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995).  

            Spreigl evidence is admissible to show the defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Minn. R. Evid. 404(b).  Our supreme court set forth a five-step process for admitting Spreigl evidence:

(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state's case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.


State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006).

            First, Nylund questions B.C.S.’s credibility and argues that because she provided inconsistent accounts of his alleged prior misconduct and other witnesses contradicted her testimony, the state failed to prove that he engaged in the prior acts by clear-and-convincing evidence.  The clear-and-convincing standard of proof “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.”  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  The standard is met when the truth of the facts sought to be admitted is “highly probable.”  Id.

            The district court heard testimony from various witnesses regarding the proposed Spreigl evidence and weighed the credibility of those witnesses in assessing their reliability.  “Where, as here, credibility determinations are crucial, a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court.”  State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (June 11, 1997); see Engebretson v. Comm’r of Pub. Safety, 395 N.W.2d 98, 100 (Minn. App. 1986) (affirming district court finding even though contrary to testimony of three witnesses).

            Based on the testimony provided, the district court determined that the state proved three out of the four prior acts by clear-and-convincing evidence.  We hold that the record supports the district court’s finding.  The district court excluded only one incident that involved a comment allegedly made by Nylund to M.L.F., a friend of B.C.S.  M.L.F. testified at the Spreigl hearing that Nylund did not make the alleged comment.  But none of the other testimony directly contradicted B.C.S.’s testimony, and the district court found B.C.S. to be credible.  Because we defer to the district court’s credibility determinations, and B.C.S.’s testimony was sufficient to prove by clear-and-convincing evidence that Nylund engaged in the prior acts, the district court did not abuse its discretion in admitting the Spreigl evidence.

            Nylund also argues that the Spreigl evidence was irrelevant to show a common plan or scheme because the conduct described by B.C.S. was not markedly similar to the charged offenses.

            Evidence of a defendant’s other crimes or acts is generally “not admissible to prove the defendant’s character for the purpose of showing that he or she acted in conformity with that character.”  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  But evidence of other misconduct can be admissible when those acts, “because of their marked similarity in modus operandi to the charged offense, tend to corroborate evidence of the latter.”  State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977).  Evidence of a defendant’s other acts offered to show a common plan or scheme with the charged offenses “is admissible . . . to establish that the conduct on which the charged offense was based actually occurred or to refute the defendant’s contention that the victim’s testimony was a fabrication or mistake in perception.”  Ness, 707 N.W.2d at 688.

            Although B.C.S. did not testify that Nylund touched her inappropriately, her testimony that Nylund exposed his erect penis to her, once while masturbating and watching a pornographic movie, is markedly similar to the events for which he was charged.  All of the events took place around the same time and in the family’s home.  And each act involved inappropriate sexual conduct towards juvenile females in Nylund’s household.  Therefore, we conclude that the district court did not abuse its discretion because the Spreigl evidence involving B.C.S. was markedly similar to the charged offenses and tended to corroborate evidence of the latter. 

            Finally, Nylund argues that the Spreigl evidence was unfairly prejudicial and should have been excluded.  Relevant Spreigl evidence may still be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.”  Minn. R. Evid. 403.  In assessing the admissibility of Spreigl evidence, the district court “should address the need for Spreigl evidence in the context of balancing the probative value of the evidence against its potential for unfair prejudice.”  Ness, 707 N.W.2d at 690.  The evidence is unfairly prejudicial if it is “not needed to strengthen otherwise weak or inadequate proof of an element of the charged offense or the state’s case as a whole.”  Id. at 689.

            Nylund contends that the district court improperly applied the “weak case” requirement for admitting Spreigl evidence because the state’s evidence was not “weak on the real issue for which the evidence was offered.”  Id.  We disagree.

            The state offered evidence of Nylund’s prior acts of misconduct as circumstantial proof that Nylund committed the charged offenses.  And the district court properly noted that the state had a weak case regarding the charged abuse.  The victims provided conflicting testimony at times, and their prior statements to authorities also had discrepancies.  Furthermore, there were no independent third-party witnesses to substantiate the victims’ testimony.  See id. at 690-91 (concluding that testimony from third-party witness substantiating victim’s testimony weighed against finding a weak case).  Thus, because the Spreigl evidence was relevant to show a common plan or scheme and the state had a sufficiently weak case, the potential for unfair prejudice did not outweigh the probative value in admitting the evidence. 

Therefore, we conclude that the district court did not abuse its discretion by admitting the evidence.

2.         Continuance Request

            Nylund also challenges the district court’s denial of his request to continue the trial in order to give his newly appointed counsel time to prepare.

            We give deference to the district court’s rulings on a defendant’s request for a continuance and will not reverse unless the district court abused its discretion and the defendant was prejudiced.  State v. Courtney, 696 N.W.2d 73, 81 (Minn. 2005); In re Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn. 1977).  Although a defendant has a right to secure counsel of his own choice, he “may not demand a continuance to delay the proceedings or by arbitrarily attempting to substitute another attorney at the time of trial.”  State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998).  On appeal, this court looks to “the circumstances surrounding the requested continuance and whether the denial was so prejudicial in the preparation of an adequate defense as to ‘materially affect the outcome of the trial.’”  State v. Miller, 488 N.W.2d 235, 239 (Minn. 1992) (quoting State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984)). 

            Although Nylund argues that his attorney could not adequately prepare for trial, the record shows otherwise.  Nylund’s attorney had one month to prepare, and the attorney participated fully in the proceedings by questioning witnesses, engaging in bench conferences, and making arguments to exclude the Spreigl evidence offered against Nylund.  The attorney’s performance before and during trial shows that Nylund received competent representation and that he was not prejudiced by his attorney having one month to prepare.

            Nylund points to alternative theories that he could have raised in an attempt to show that his attorney was not adequately prepared.  But Nylund fails to show that his attorney did not raise certain issues due to lack of preparation or that the outcome would have been different had they been raised.

            Therefore, the district court did not abuse its discretion by denying the continuance request.