This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-95-1868

State of Minnesota,

Respondent,

vs.

Scott Timothy Root,

Appellant.

Filed May 21, 1996

Affirmed

Harten, Judge

Lyon County District Court

File No. K1-95-153

Hubert H. Humphrey, III, Attorney General, David B. Orbuch, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Kathryn M. Keena, Lyon County Attorney, Lyon County Courthouse, 607 W. Main St., Marshall, MN 56258 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Ste. 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant, convicted of motor vehicle theft, challenges admission of Spreigl evidence, failure to instruct the jury on its limited use, and sufficiency of the evidence. We affirm.

FACTS

On March 1, 1995, a 1990 Toyota Camry was stolen from a parking lot in Marshall. The next morning, police found the car overturned in a nearby field with a black ski glove underneath it.

On March 1, appellant Scott Timothy Root had been seen in Marshall wearing two black ski gloves. That evening, Marshall police stopped Root on suspicion of an unrelated motor vehicle tampering incident. He was then wearing one black ski glove; he said that he had lost the other one. The police gave Root a ride to the Happy Chef restaurant. Officers later found a black ski glove abandoned in a wastebasket at the restaurant. The glove was similar to the glove Root had been seen wearing and it matched the glove found under the car.

Root was charged with one count of felony theft; a jury found him guilty of the lesser-included offense of motor vehicle theft. Over objection, the state was allowed to introduce Spreigl evidence of Root's July 1993 conviction for car theft to show identity and modus operandi. In that incident, Root stole a car in Marshall, abandoned it, and left his resume (purportedly a "calling card") in the car. Although the trial court failed to give the proper limiting instructions to the jury, Root did not object.

D E C I S I O N

1. Spreigl Evidence.

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of * * * identity * * *.

Minn. R. Evid. 404(b). When identity is at issue, evidence of modus operandi can be used to prove a particular person to be the perpetrator. See State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993). Evidence of offenses that are markedly similar to the charged offense and tend to corroborate evidence of the latter may be admissible to show modus operandi. State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988).

The decision to admit Spreigl evidence lies within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). The trial court is in a better position than an appellate court to evaluate the need for and reasonableness of Spreigl evidence in a particular case. See State v. DeWald, 464 N.W.2d 500, 504-05 (Minn. 1991). In the instant case, the state offered and the trial court admitted Spreigl evidence that in 1993 Root had been convicted of car theft. In support of admission of this Spreigl evidence, the state argued that Root's modus operandi was to steal cars in Marshall, abandon them, and leave a personal belonging--purportedly a "calling card." In 1993, it was a personal resume; in the instant case, it was a glove.

To admit Spreigl evidence, the trial court must find that

(1) the evidence is clear and convincing that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state's case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.

State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991). The state satisfied the participation requirement by offering a certificate of conviction for the 1993 offense. Relevance and materiality were shown by the similarity of the Spreigl offense to the charged offense in location and modus operandi. Finally, the trial court determined that the probative value outweighed the prejudicial effect. We conclude that the trial court did not abuse its discretion by finding that each of the Landin requirements was satisfied and by admitting the Spreigl evidence.

2. Jury Instructions

Notwithstanding the lawful admission of Spreigl evidence, the trial court failed to instruct the jury properly on its use. The trial court has a duty to instruct the jury on the use of Spreigl evidence at the time the evidence is admitted and again in its closing jury instructions. State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 285 (1967). Failure to object to jury instructions, however, waives the right to raise the issue on appeal. State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986). But even when there is no objection we may consider "plain errors affecting substantial rights." Minn. R. Evid. 103(d). Thus, Root argues that admission of the Spreigl evidence constituted plain error. We disagree.

The supreme court has held that a trial court should instruct the jury on use of other-crime evidence even if not asked, but failure to do so in the absence of a request is not necessarily reversible error. State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).

While the trial court clearly should have given the instructions sua sponte and while it is conceivable that a case may arise where the facts are such that a failure to give these instructions sua sponte may constitute plain error of a prejudicial nature requiring the award of a new trial, we find that a new trial is not required in this case.

Id. (emphasis added). The defendant in Frisinger was charged with operating a daycare center without a license. Id. at 29. Evidence of a previous conviction was admitted, but no Spreigl instructions were given. Id. at 30. In concluding that there was no plain error, the supreme court noted the weight of the other evidence and the absence of prosecutorial abuse in using the Spreigl evidence. Id. at 31.

Here, we likewise conclude that the failure to give Spreigl instructions was not plain error. [1] Our review of the record indicates that there was substantial evidence linking Root to the crime. In closing argument, the prosecutor urged that the use of Spreigl evidence should be limited to identification of the perpetrator. Furthermore, when the Spreigl evidence of the previous conviction was introduced, the trial court gave the jury a limiting instruction (albeit the instruction for impeachment by prior conviction rather than the instruction for use of Spreigl evidence). Although the trial court did not give the proper limiting instruction, the language of the impeachment and Spreigl instructions are somewhat similar. Compare 10 Minnesota Practice, CRIMJIG 2.02 (1990) with 10 Minnesota Practice CRIMJIG 2.01 (1990). Also, during Root's closing argument, the trial court told the jury:

I will be giving a cautionary instruction with regard to the fact that the jury cannot convict on the past--convict the defendant on this charge as a result of a prior conviction.

Under these circumstances, the admission of the Spreigl evidence did not amount to plain error.

3. Sufficiency of the Evidence

Root argues that the evidence was insufficient to support a conviction.

In reviewing a claim of insufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. We cannot retry the facts, but must take the view of the evidence most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence. If the jury, giving due regard to the presumption of innocence and to the state's burden of proving the defendant's guilt beyond a reasonable doubt, could reasonably have found the defendant guilty, that verdict will not be reversed.

State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (citations omitted).

A witness testified that Root had been wearing two gloves on the evening the car was stolen. Later that same day, Root was wearing only one glove when picked up by the police. An officer dropped Root off at the Happy Chef; the one glove Root was wearing was thereafter found in a wastebasket at the restaurant. The other glove was found underneath the stolen car. Spreigl evidence of a previous car theft committed by Root was received. When viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to convict Root of theft of a motor vehicle.

We have reviewed Root's other pro se arguments and find them to be without merit.

Affirmed.


Footnotes

[1]The trial court neglected to give Spreigl instructions after reading the correct instruction to Root prior to trial and assuring that the instruction would be given. We note that even though Root handled his case pro se, standby counsel was always immediately available to him.