This opinion will be unpublished and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
C3-95-1700

State of Minnesota,
Respondent,

vs.

Carl Lavin Ford,
Appellant.

Filed July 23, 1996
Affirmed
Peterson, Judge

Anoka County District Court
File No. K39414030

Hubert H. Humphrey, III, Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for Respondent)

John M. Stuart, Minnesota State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Stone, Judge.*

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

PETERSON, Judge

In this appeal from a conviction for offering a forged check, appellant Carl Lavin Ford challenges the admission at trial of character evidence. We affirm.

FACTS

On August 16, 1994, Leon Bender was robbed by two women who took his billfold, checkbook, and savings account book. Soon after the robbery, Bender called the Blaine State Bank to report that his checks had been stolen and to close his account.

Later that same morning, a man presented a check drawn on Bender's closed account to a teller at Blaine State Bank. Carl Ford was the payee on the check, the check was endorsed by Carl Ford, and the signature purported to be Bender's. Because the man who presented the check was not a customer of the bank, the teller checked the signature on the check against Bender's signature on file. The signatures appeared to match. The teller asked the man for identification and he gave her his Minnesota driver's license. The photograph on the license appeared to be the person who presented the check.

When the teller entered Bender's account number into her computer, the computer indicated that there were not enough funds in the account to cash the check. The man who presented the check asked if there was a problem. The teller told him that there was no problem, but she had to do some further checking. The man told the teller that the check was for some work he did for Bender.

The teller spoke with the bookkeeping supervisor and the bank's vice-president. They told her that the check may have been stolen. While the teller waited for additional information, the man approached her and asked again if there was a problem. She told him they were just verifying the check.

The man asked if he could use a telephone to call Bender and get the whole thing straightened out. The teller directed him to a telephone on the wall. The man walked past the telephone and out of the bank. He did not ask the teller to return the check, and he left without it.

The teller went to the door of the bank and saw the man walking toward a nearby gas station. Thirty seconds after the man disappeared, the teller saw a car speed out of the gas station's driveway.

In a photo lineup and in court, the teller was unable to identify appellant as the man who gave her the check. Appellant's fingerprint was found on the check left at the bank. In addition, the events that occurred at the bank were recorded by surveillance cameras, and still photographs of the man who presented the check were admitted into evidence.

The state also presented Spreigl evidence based on an offense that occurred on August 22, 1994, six days after the present offense. In that offense, to which appellant pleaded guilty, appellant presented a check to Citizen=s Bank in St. Louis Park. The check was written to Carl Ford as payee. The check had been stolen from a man who did not know appellant; he did not sign the check, and he did not give anyone permission to prepare the check. In a statement to police, appellant said that he received the check for some work he had done.

D E C I S I O N

Admission of Spreigl evidence rests within the sound discretion of the trial court and a trial court's ruling will not be disturbed absent a clear abuse of discretion.

State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

In determining the admissibility of Spreigl evidence, the trial court must find (1) that the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) that the Spreigl evidence is relevant and material to the state's case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

Id.

1. Evidence that defendant participated in Spreigl offense

There is clear and convincing evidence that appellant participated in the Spreigl offense; appellant pleaded guilty to the offense.

2. Relevance and materiality of Spreigl offense

In order to be relevant and material, the Spreigl offense should be similar to the charged offense either in time, location, or modus operandi.

Id.

The Spreigl offense occurred six days after the charged offense. In both cases, appellant presented a check made out to him to a teller at the bank upon which the check was drawn. In both cases, appellant endorsed the check and used his Minnesota driver's license to verify his identity. In both cases, appellant said that he received the check as payment for work. The offenses are similar in time and modus operandi.

3. Probative value v. potential for unfair prejudice

In weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state's case.

Id. at 504.

The trial court admitted the Spreigl evidence after determining that the state's case was weak regarding the knowledge of the appellant and the intent of the appellant to defraud. Appellant acknowledges that the state's evidence of knowledge and intent was weak, but argues that the Spreigl evidence was not probative of either of these elements.

Appellant contends that in his statement to police regarding the Spreigl offense, he categorically denied that he knew the check was stolen. If he lacked knowledge that the check was stolen, he could not have intended to defraud by cashing it. Therefore, appellant concludes, the Spreigl offense was not probative in the present case because the Spreigl offense did not demonstrate an increased likelihood that appellant had the knowledge or intent to defraud by attempting to cash the check at Blaine State Bank. Appellant argues that the Spreigl evidence revealed only that he unwittingly offered a forged check on another occasion under almost identical circumstances.

Appellant's argument ignores the fact that an intent to defraud is an element of the Spreigl offense to which he pleaded guilty. See Minn. Stat. ' 609.631, subd. 3 (1994)(person who, with intent to defraud, offers forged check is guilty of offering forged check). The Spreigl evidence does not demonstrate that appellant unwittingly offered a forged check on another occasion; it demonstrates that he, with intent to defraud, offered a forged check on another occasion.

The Spreigl evidence is probative with regard to appellant's intent when presenting the check at Blaine State Bank and with regard to his knowledge that a check that does not appear suspicious on its face is, nevertheless, a forged check. See State v. Blessner, 463 N.W.2d 903, 909-10 (Minn. App. 1990)(where significant similarities exist between Spreigl offense and charged offense, Spreigl evidence probative regarding intent in forging letter), review denied (Minn. Feb. 20, 1991).

Appellant also contends that the trial court's cautionary instructions to the jury regarding the Spreigl evidence failed to clarify for the jurors the purpose for which the evidence was admitted and how they were to use it. The trial court gave the jury instruction set forth in 10 Minnesota Practice CRIMJIG 3.16 (1990). Appellant did not object to this instruction. In fact, counsel for appellant specifically stated that there was no problem with the jury instruction as stated. We conclude that the trial court properly instructed the jury regarding the use of the Spreigl evidence.

The trial court did not abuse its discretion in admitting the Spreigl evidence.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.