This opinion will be unpublished and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


     State of Minnesota,


Erwin Jerome Walker,

Filed October 15, 1996
Willis, Judge

Hennepin County District Court

File No. 95010209

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

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant
County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for

John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public
Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414
(for Appellant)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and
Willis, Judge.
                        Unpublished Opinion

WILLIS, Judge (Hon. Lajune Lange, District Court Trial Judge)

Erwin Jerome Walker appeals the district court's decision to admit
Spreigl evidence and the imposition of consecutive sentences for his
convictions of assault and attempted aggravated robbery. In addition,
Walker challenges pro se the court's decision to admit statements made
during a custodial interrogation. We affirm.

On December 22, 1995, five men wearing ski masks burst into the apartment
of Louis and Patricia McGilberry on Stevens Avenue in Minneapolis where
seven people were present. The intruders ordered the occupants to get on
the floor and demanded money and drugs. In the course of the robbery, one
intruder pointed a gun at Louis McGilberry's head, another frisked the
McGilberrys' nephew, and two occupants were shot.

When the police arrived, the McGilberrys' daughter, Shetira Reed, told them
that she believed the robbery was a ``setup.'' Earlier that day, some of
the intruders had been at the apartment, where Faheem Calvin and Julius
Calvin, the two shooting victims, were selling drugs. Shortly before the
robbery, approximately five men, including Walker and Ivan Diaz, the
alleged shooter, went into the back bedroom for a brief period and then
left the apartment. Reed and the Calvins identified Diaz and Walker as
participants in the robbery.

Walker was charged with one count of attempted first-degree murder, one
count of first-degree assault, three counts of second-degree assault, and
two counts of attempted aggravated robbery. At trial, the district court
allowed the state to admit evidence of three prior robbery convictions on

the grounds that (1) the offenses were similar to the one for which Walker
was being tried and (2) there were weaknesses in the state's case resulting
from witnesses' inconsistent recollections during testimony. The jury found
Walker guilty of all charges except attempted murder. The district court
sentenced Walker to prison terms of 146 months for the first-degree assault
offense, 36 months for each of the three second-degree assault offenses
(one consecutive, two concurrent), and 24 months for the two attempted
aggravated robbery offenses (one consecutive, one merged as part of the
same course of conduct).
I. Spreigl evidence.

Minnesota law limits the use of evidence of prior ``bad acts'' because of
the fact- finder's tendency to give excessive weight to the record of
defendant's prior crimes. State v. Spreigl, 272 Minn. 488, 490, 139
N.W.2d 167, 169 (1965).
        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 motive, opportunity, intent,
        preparation, plan, knowledge, identity, or absence
        of mistake or accident. In a criminal prosecution,
        such evidence shall not be admitted unless the other
        crime, wrong, or act and the participation in it by
        a relevant person are proven by clear and convincing

Minn. R. Evid. 404(b). In addition, the state must meet procedural
requirements governing the admission of other-crimes evidence, including
consideration of the probative value of the evidence, the need for the
evidence, and the danger that the evidence will create unfair prejudice.
State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995). The decision to
admit evidence of prior crimes lies in the sound discretion of the trial
court, and the reviewing court will not reverse absent a clear abuse of
discretion. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993).

Walker contends the district court improperly admitted evidence of his
prior crimes because they were not sufficiently similar to the charged
offenses. We disagree. Spreigl offenses should be similar to the
charged offense either in location, time, or modus operandi. State v.
DeWald, 464 N.W.2d 500, 503 (Minn. 1991). ``[T]he mere fact that the
prior crime was of the same generic type as the charged offense (e.g.,
robbery and robbery) usually isn't sufficient.'' State v. Cogshell,
538 N.W.2d 120, 123 (Minn. 1995). But ``the similarity between the prior
crime and the present one need not be great.'' State v. Buhl, 520
N.W.2d 177, 181 (Minn. App. 1994), review denied (Minn. Oct. 27,

The Spreigl stipulation here stated that in February 1990, Walker
approached two strangers on Penn Avenue in Minneapolis. He grabbed one of
the men, said that he had a gun, and demanded their money. A second
incident occurred during the same month, also on Penn Avenue. Walker
approached two strangers, told them that he had a gun, and demanded their
money. In May 1992, Walker entered a restaurant on Lake Street in
Minneapolis, told an employee that he had a gun in his pocket, and ordered
an employee to open the cash drawer. An employee reported hearing Walker
state, ``I've got a crack habit and I'm going to kill somebody.'' In each
case, Walker did not show a gun and made no effort to disguise himself.

All of the robberies occurred in Minneapolis. There was no significant gap
in time between Walker's prior robberies and the instant offenses because
from September 1992 until the commission of these offenses, Walker was
either in jail or serving home probation. See State v. Crocker, 409

N.W.2d, 840, 843 (Minn. 1987) (holding that the mere passage of time is not
significant if the defendant was incapacitated from committing crimes in
the interval between the prior offense and the current offense). Walker cut
off his home-monitoring bracelet on the morning of the day the offenses
here were committed.

Further, the state established sufficient similarity between the prior
robberies and this offense because they were all part of a common scheme or
plan to sustain Walker's crack addiction, they were all opportunistic, and
in each case Walker claimed that he had a gun. Seeid. (finding
sufficient similarity between prior rapes of a seven-year-old girl and a
15-year-old stepdaughter and the current offense of raping a college
student because they were all opportunistic assaults on young women who
were temporarily in a vulnerable position).

Walker argues that the state merely described his prior offenses without
proving that the admission of the Spreigl evidence was necessary to
support its case. Spreigl evidence is ``admissible only if the trial
court finds the direct or circumstantial evidence of defendant's identity
is otherwise weak or inadequate, and that it is necessary to support the
state's burden of proof.'' State v. Billstrom, 276 Minn. 174, 178-
79, 149 N.W.2d 281, 284 (1967). Three trial witnesses here recanted prior
photo identifications of Walker as one of the robbers. The record therefore
supports the district court's finding that
        there have been weaknesses in the State's case in
        terms of the testimony of the witnesses and the
        recollection of the witnesses that have been called
        that meet the threshold of the Spreigl

Walker also contends the admission of evidence of his prior offenses was
unduly prejudicial in both content and form. In weighing the probative
value against the prejudicial effect, a district court must consider the
extent to which the Spreigl evidence is crucial to the state's case.
DeWald, 464 N.W.2d at 504. Any district court error in admitting
other-crime evidence is harmless unless ``there is a reasonable probability
that the verdict might have been more favorable to the defendant if the
evidence had not been admitted.'' State v. Post, 512 N.W.2d 99, 102
n.2 (Minn. 1994).

Walker cannot challenge the content or form of the Spreigl evidence.
At trial, his counsel stated that ``defense is not going to object to the
introduction of the Spreigl'' and he ``agree[d] to a stipulation'' read
by the state. See Crocker, 409 N.W.2d at 844 (``particularly given
the defendant's lack of objection, it was entirely proper for the trial
court to allow the state to use certified court records to prove the
[prior] offense''). Moreover, the court properly ruled on admission of the
Spreigl evidence after the state presented all of its other evidence
because ``[a]t that juncture, the trial court can fully assess whether or
not the Spreigl evidence is crucial to the state's burden of
proof.'' DeWald, 464 N.W.2d at 504.
                          II. Sentencing.

Walker contends the district court abused its discretion by imposing a 206-
month sentence because it unfairly exaggerates the culpability of his
conduct. In general, when an offender is convicted of multiple current
offenses, the court must impose concurrent sentences. Minn. Sent. Guid.
II.F. The court, however, may impose consecutive sentences where the
offender is convicted of multiple current felonies for crimes against
different persons. Minn. Sent. Guid. II.F.2. The district court maintains
broad discretion in deciding whether to depart from the presumptive
sentence under the Minnesota Sentencing Guidelines. State v. Kindem,
313 N.W.2d 6, 7 (Minn. 1981). In general, the reviewing court ``will not
interfere with a sentence that falls within the presumptive sentence range
even if there are grounds that would justify departure.'' State v.

Back, 341 N.W.2d 273, 275 (Minn. 1983).

Walker argues that consecutive sentencing unfairly exaggerates the
criminality of his conduct. As mitigating factors, Walker alleges that (1)
he was less involved in the crime than Diaz, who received a lighter
sentence pursuant to a plea bargain, and (2) most of the robbery victims
were never in real danger because they were acquaintances of one or more of
the perpetrators.

The factors cited do not mitigate Walker's culpability. ``Even if [Walker]
did not inflict the injury on the victim, as a participant in the robbery
he was legally responsible for the injury under Minn. Stat. 𨺹.05.''
State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (providing that a
person is liable for any reasonably foreseeable crime committed by another
person in pursuance of the crime they conspired to commit); See also
Minn. Stat. 𨺹.05, subd. 2 (1994). ``Whether or not the defendant
played a passive role in the offense is the type of factual issue best
decided at the trial court level in most cases.'' State v. Carson,
320 N.W.2d 432, 438 (Minn. 1982). Further, part of the difference between
Walker's and Diaz's sentences reflects Walker's higher criminal history
score. Walker's claim that there was no actual danger is belied by the fact
that two of the robbery victims were shot. Further, there is no evidence
that the remaining victims knew their safety was not at risk.
                        III. Pro se claims.

In Walker's pro se brief, he argues that the district court erred by
admitting statements he made in the course of a recorded interrogation with
Sergeant LaVine. The transcript reads in part:

SGT. LAVINE: * * * Sgt. LaVine from Minneapolis Robbery and,
ah, (inaudible)

SGT. LAVINE: * * * asked to read you your rights. The Constitution requires
I inform you that you have the right to remain silent. Anything you say can
and will be used against you in court. You have the right to talk to a
lawyer now and have him present (inaudible). If you cannot afford a lawyer
one will be appointed to you without cost. Do you understand each of these
rights as explained to you?

WALKER: Hey, what's up man?

SGT. LAVINE: Okay. Your full name is Erwin -


At the Rasmussen hearing, the district court admitted the unedited
statement and informed the parties that they could submit their
interpretations regarding the inaudible portions.

Walker argues that the recorded statement should be suppressed because the
state failed to maintain a record of the tape's chain of custody and the
state does not have the ``best evidence'' original. The tape admitted at
trial was a copy because the original was lost. A duplicate, however,
        is admissible to the same extent as an original
        unless (1) a genuine question is raised as to the
        authenticity of the original or (2) in the
        circumstances it would be unfair to admit the
        duplicate in lieu of the original.

Minn. R. Evid. 1003. Moreover, an original recording is not necessary
unless the proponent lost or destroyed the original in bad faith. Minn. R.
Evid. 1004. LaVine testified that the duplicate tape represented an
accurate recording of his conversation with Walker. Although Walker claims
that LaVine displayed bad faith by failing to advise him that he was

recording the conversation, any deceit in hiding the recorder is irrelevant
to the issue of whether the tape was lost or destroyed in bad faith.

Walker claims that his statement should be suppressed because the state
failed to comply with the recording requirement for custodial
        [A]ll custodial interrogation including any
        information about rights, any waiver of those
        rights, and all questioning shall be electronically
        recorded where feasible and must be recorded when
        questioning occurs at a place of detention. If law
        enforcement officers fail to comply with this
        recording requirement, any statements the suspect
        makes in response to the interrogation may be
        suppressed at trial. The parameters of the
        exclusionary rule applied to evidence of statements
        obtained in violation of these requirements must be
        decided on a case-by-case basis.

State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Suppression is
required only if the district court deems the violation ``substantial''
after considering all relevant circumstances. Id. Moreover, any
error in failing to suppress statements may be found to be harmless.
Id. at 593. There is no evidence that LaVine intentionally made
portions of the tape inaudible, and the parties had the opportunity to
interpret the gaps. Any Scales violation did not prejudice Walker's

Finally, Walker contends the recording should be suppressed because his
statement, ``Hey, what's up man,'' was inadequate to constitute a valid
waiver of his right to counsel. On appeal, this court makes an independent
determination of ``whether the state has shown by a fair preponderance of
the evidence that the waiver was knowing, intelligent, and voluntary.''
State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978).
        In an ordinary case if the prosecutor shows that the
        warning was given and that defendant stated he
        understood his rights and then gave a statement, the
        state will be deemed to have met its burden of proof
        * * *.

Id. A suspect's hostile behavior is ordinarily insufficient to
invoke unambiguously the right to remain silent in the right to counsel
context; the suspect must use language that ``sufficiently articulate[s]
the desire to remain silent.'' State v. Williams, 535 N.W.2d 277,
283 (Minn. 1995). The record shows that Walker failed to articulate the
desire to remain silent in the absence of counsel.