This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Robert A. Jones,


Filed June 5, 2007

Reversed and remanded

Minge, Judge

Dissenting, Wright, Judge


Ramsey County District Court

File No. K4-04-3900



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


Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondents)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.




U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges his conviction of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2004).  Appellant argues that the district court erred by allowing respondent to present evidence that: (1) he recently was in possession of firearms; (2) his driver’s license was canceled as inimical to public safety; and (3) the discovered gun had been altered.  Although the district court did not err in allowing the evidence of driver’s license revocation and gun alteration, we conclude that admission of evidence of his prior possession was reversible error, and we reverse and remand.    



St. Paul Police Officer Mark Nelson stopped a car being driven by appellant Robert Jones on the morning of June 24, 2004.  Upon running a check, Officer Nelson learned that appellant did not have a valid driver’s license.  Prior to having the car towed, Officer Nelson inventoried its contents.  During the inventory, Officer Nelson discovered a semi-automatic handgun in the car’s closed center console.  The gun’s serial number was filed down, and there was no other identifying information left on the gun. 

Officer Nelson was aware that appellant had a criminal record and arrested him for unlawful possession of the gun.  Another officer interviewed appellant at the Ramsey County jail.  Appellant told that officer that the car he was driving belonged to his brother and that he had borrowed the car to drop off his sister at the hospital.  Trial testimony from appellant’s sister and brother confirmed appellant’s account.  Appellant insisted that the gun did not belong to him, that he did not know the gun was in the car, and that his DNA would not be on the gun.  The gun was tested for fingerprints, but none were found.  After comparing DNA samples found on the gun with samples obtained from appellant and appellant’s brother, the Bureau of Criminal Apprehension (BCA) reported that there was a DNA mixture on the gun and although appellant’s brother could not be excluded, the predominant DNA profile belonged to appellant.  Appellant was charged with possession of a firearm by an ineligible person. 

At trial, the state sought to introduce evidence that appellant had been in the presence of three firearms approximately four months before Officer Nelson’s stop and that DNA evidence linked those firearms to appellant.  Appellant objected, arguing that the evidence of that incident was inadmissible character evidence.  But the district court overruled appellant’s objection, and four witnesses testified about the prior incident.  During closing arguments, the prosecution asserted that the earlier incident showed that appellant had previously been around guns and that this indicated that he likely knew there was a gun in the car he was driving on June 24.

            The jury convicted appellant of the gun-possession charge.  Appellant was sentenced to 60 months in prison, the mandatory-minimum sentence under Minn. Stat.    § 609.11, subd. 5(b) (2004).  This appeal follows. 







The first issue is whether admission of evidence of appellant’s prior association with firearms was reversible error.  We review the district court’s “admission of evidence of other crimes, wrongs, or acts for an abuse of discretion.”  State v. Montgomery, 707 N.W.2d 392, 397 (Minn. App. 2005).  To prevail, an appellant must not only show error in admitting the evidence but also prejudice.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). 

            Minnesota Rule of Evidence 404(b) precludes admission of “[e]vidence of another crime, wrong, or act . . . to prove the character of a person in order to show action in conformity therewith.”  But evidence of another crime, wrong, or act may be “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Minn. R. Evid. 404(b).  Minnesota has developed a five-step process to determine the admissibility of other-acts evidence under rule 404(b): (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 for unfair prejudice to the defendant.  Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005) (quotation omitted). 

Although appellant basically addresses elements (4) and (5), his objection to the purpose for which the prior-possession evidence was admitted, and to the prejudicial nature of the evidence, also implicates step (2).  As we stated in Montgomery, “[i]mplicit in the requirement that the proponent of Spreigl evidence disclose its purpose is that there also be some showing or determination that the evidence reasonably and genuinely fits the purpose.”  707 N.W.2d at 398.

Purpose/Relevance to Knowledge – Steps 2 & 4

            Here, the district court admitted the challenged evidence “primarily for knowledge and intent.”  Appellant argues that the district court abused its discretion by admitting the challenged evidence because it is not probative of his knowledge of the gun or intent to possess the gun at the time of the traffic stop.  Appellant further argues that the presence of his DNA only shows that he came in contact with other persons or objects that in turn came in contact with the firearms.

            The state argues that evidence of appellant’s prior possession was properly admitted because the prior incident “was markedly similar to the instant offense in time, place, and modus operandi.”  The state cites the four-month separation between the events, the close geographic proximity between the residence and the vehicle, appellant’s denial of possession in both cases, and the DNA analysis in each case indicating appellant handled the firearms. 

The central issue at trial was whether appellant knew the firearm was in the center console of the car.  Appellant’s proximity to certain firearms in a friend’s residence in February does not establish that appellant knew in June that a different firearm was in the closed center console of his brother’s car.   The two events are at best superficially similar.  Here, there was no evidence of a common reason for appellant being in close proximity to guns on the two occasions.  And the district court did not admit the evidence for the purpose of establishing a common scheme or plan.  Arguably, evidence of appellant’s prior firearm possession may make it more likely that appellant possessed a firearm at a later date.  But this is a character-based inference, which minimizes the state’s burden to prove appellant’s actual knowledge of the firearm at the time in question.  This type of inference is the very danger that the exclusionary provision of rule 404(b) attempts to prevent. 

            We conclude that the district court abused its discretion by admitting the February firearm-possession evidence to establish that in June appellant knew the gun was in his brother’s car or that he intended to possess the gun. 

            Probative Value vs. Prejudice – Step 5

            Next we consider whether the district court abused its discretion by concluding that the probative value of the prior-possession evidence outweighed any unfair prejudice.  Minnesota caselaw commonly cites Minnesota Rule of Evidence 403 as the legal authority on which step five of the five-part Spreigl test is grounded.  See, e.g., State v. Gomez, 721 N.W.2d 871, 879 (Minn. 2006); State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995); Montgomery, 707 N.W.2d at 397-98.  Rule 403 permits the exclusion of relevant evidence if the district court determines that the probative value of the evidence is substantially outweighed by the danger of prejudice.  Minn. R. Evid. 403 (emphasis added).  But in contrast to the text of rule 403, Minnesota courts applying the five-part test consistently omit the word “substantially,” requiring only a showing that the potential for unfair prejudice outweighs probative value to exclude otherwise-permitted evidence under rule 404(b).  See State v. Ness, 707 N.W.2d 676, 685-89 (Minn. 2006); Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005). 

            Minnesota Rule of Evidence 404(b) was recently amended in recognition of this inconsistency.  See Minn. R. Evid. 404(b) 2006 comm. cmt. (discussing the intent of the revision).  Unlike its predecessor, the revised version expressly sets forth a probative-value-versus-prejudice balancing test, omits the word “substantially,” and codifies the five-part test commonly applied, departing from the language of rule 403.  Compare Minn. R. Evid. 404(b) (2006), with Minn. R. Evid. 404(b) (2004).  Under the amended version, effective September 1, 2006, other-acts evidence will not be admitted if “the probative value of the evidence is . . . outweighed by its potential for unfair prejudice       . . . .”  Minn. R. Evid. 404(b) (2006).  While the revised version was not in effect at the time the district court made its evidentiary ruling, this standard was the standard regularly applied by Minnesota courts at the time of the district court’s ruling.  Accordingly, we apply that standard here.

            Unfair prejudice is the “unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.”  Bolte, 530 N.W.2d at 197 n.3 (quotation omitted).  To assess the probative value and need for the evidence, the district court “must identify the precise disputed fact to which the Spreigl evidence would be relevant.”  Angus, 695 N.W.2d at 120. 

            Here, the district court stated: 

I do find that the probative value is not outweighed by its potential prejudice.  And in looking at the weakness of the case, again, I think it’s pretty much based on the fact that it’s a constructive possession case where he states he didn’t know anything about the gun. . . .  [T]hat would be the weakness in the case. 


As previously concluded, the prior-possession evidence has little probative value.  However, the evidence of the earlier possession became a significant part of the trial in this case.  The presentation included testimony by four witnesses that appellant resisted police officers.  This testimony associated him with preparation for a drive-by shooting and placed him in the presence of three firearms, which contained traces of appellant’s DNA.  Given the minimal relevance of the evidence to show knowledge in the present case, we conclude that the district court abused its discretion by concluding that the challenged evidence’s probative value was not outweighed by its potential for prejudice.

            Effect on Verdict

            Finally, we consider whether the district court’s abuse of discretion requires reversal.  Even though we have concluded that the court abused its discretion and the evidence could be prejudicial, we must still determine “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is “a reasonable possibility that the verdict might have been more favorable to the defendant” in the absence of the error, then that error is prejudicial.  Id. This analysis is based on a review of the entire record.  Bolte, 530 N.W.2d at 198.

We begin by noting the inherently speculative nature of determining the degree to which improperly-admitted evidence influenced the jury’s verdict.  To complete this task, we must weigh the strength and relevance of the evidence.  Here, the state’s evidence of possession consisted of the DNA results and a comment appellant made to Officer Nelson about needing to protect himself.  Although DNA evidence is often conclusive proof of a connection to the instrumentality of a crime, here a gun; the record includes a statement by the BCA witness that appellant’s DNA could have been on the gun as a result of cross-contamination.  The extent to which this statement weakened the persuasiveness of the DNA evidence with the jury is not known.  Furthermore, appellant’s comment about needing to protect himself is ambiguous.  Indeed, the district court recognized that the state’s case was weak on the issue of appellant’s knowledge of the presence of the gun in the car. 

Paradoxically, the weakness that favors admissibility of Spreigl evidence increases the likelihood the improperly-admitted evidence influenced the jury’s verdict.  As already observed, the challenged evidence was not an incidental portion of the trial.  Four witnesses associated appellant with a drive-by shooting, a gun shot in a residence, and three firearms, which contained traces of appellant’s DNA.  This largely irrelevant testimony increased the likelihood that the jury based its decision on appellant’s character and the implications arising from the prior incident, rather than evidence indicating that appellant knew the gun was in the car when he was stopped by the police.  And while we recognize that the state introduced DNA evidence taken from the gun that is consistent with appellant’s DNA profile, the expert witness at trial testified that secondary-transfer was a possibility and also that appellant’s brother’s DNA profile is consistent with DNA evidence taken from the gun.  Under these circumstances, we conclude that there is a reasonable possibility that the improperly admitted evidence affected the jury’s verdict.  Accordingly, we reverse and remand.


            The next issue is whether the district court erred by allowing the introduction of evidence that appellant’s driver’s license was canceled as inimical to public safety and that the discovered gun had been altered.  Appellant did not object to this evidence at trial.  Although we would ordinarily evaluate appellant’s claims on appeal pursuant to the plain error standard (see Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)), because we are otherwise reversing and remanding, we limit our discussion of the question to guidance to the district court on remand. 

            At trial, Officer Nelson testified that he discovered appellant’s driver’s license was canceled as “inimical to public safety.”  Officer Nelson also testified that the gun he found in the car was filed down so it was impossible to read the gun’s serial number.  Appellant asserts that “inimical to public safety” is an “ominous term” that implies that appellant had a criminal history.  Appellant also maintains that “the fact that the gun was filed down to the point that it was completely unidentifiable . . . insinuated that appellant was a thief, and possibly, a more serious crook.” 

In examining the record, we note that Officer Nelson’s statement that appellant’s license was canceled as inimical to public safety was isolated and not emphasized by the prosecutor.  The statement explained why Officer Nelson initiated the traffic stop.  It was not offered to impugn appellant’s character.  And it was not the subject of comment in closing argument.  Under these circumstances, we conclude the admission of the information to explain the context for the stop was not error. 

            The state asserts that the testimony regarding the filing of the gun’s serial number was necessary to explain the rusted condition of the gun at the time of trial and to establish the integrity of the St. Paul Police Department’s handling of the weapon after it collected the gun from appellant’s brother’s car.  Again, this was an incidental matter; it was descriptive of a gun that appellant claimed he knew nothing about; and it was not commented on in closing argument.  We conclude that the admission of the testimony was not error. 

Reversed and remanded.



WRIGHT, Judge (dissenting)


            I concur in the majority’s conclusion that the admission of evidence that appellant’s driver’s license was cancelled as inimical to public safety and evidence that the firearm’s serial number had been obliterated was not plain error.  And I concur in the majority’s analysis and conclusion that the Spreigl evidence was erroneously admitted.  But because the presence of other inculpatory evidence precludes this error from being so prejudicial as to require reversal, I respectfully dissent. 

            The probative evidence on which I base my conclusion includes the testimony of BCA forensic expert Jacqueline Kuriger who performed DNA testing on the firearm.  The predominant DNA profile found on the firearm belonged to appellant, not his brother or the person identified as “Trinidude,” who supposedly owned the gun.  According to Kuriger, based on the amount of appellant’s skin cells present on the firearm, it is unlikely that his DNA was transferred to the gun by any means other than his direct contact with the firearm.  In addition, on the scene shortly after the firearm was recovered, appellant told Officer Nelson that “he needed to protect himself” from a person who was trying to hurt or kill him, thereby explaining his reason for possessing the gun.  And during police interrogation, appellant’s responses were evasive when asked to provide information that would enable law enforcement to immediately corroborate his story.  

            I agree with the majority that the Spreigl evidence likely was not disregarded by the jury, but that is not the test for prejudicial error.  When properly applied, the test asks us to determine whether there is a reasonable possibility that a trial in which this inculpatory evidence relating to the instant offense were admitted, without the Spreigl evidence, would have resulted in appellant’s acquittal.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).   Viewing the strong inculpatory forensic and testimonial evidence in conjunction with the record as a whole, I reach one conclusion—there is not a reasonable possibility that, absent the erroneously admitted Spreigl evidence, the jury would have returned a not-guilty verdict.