This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-391

State of Minnesota,

Respondent,

vs.

Raymond Berg,

Appellant.

Filed January 14, 1997

Affirmed

Willis, Judge

Hennepin County District Court

File No. 95043513

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Parker, Presiding Judge, Peterson, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant Raymond Berg was convicted of first-degree criminal sexual conduct, second-degree assault, and kidnapping for his conduct on October 15, 1994, and of first-degree criminal sexual conduct, second-degree assault, and kidnapping for his conduct on May 20, 1995. Berg challenges his convictions, arguing (1) the complaints were improperly joined for trial, (2) the trial court abused its discretion by admitting hearsay evidence at trial, and (3) the prosecutor committed prejudicial misconduct in her closing argument. We affirm.

FACTS

1. The October 15, 1994 incident

B.B. testified that she agreed to have sexual intercourse with Berg for money. She testified that when Berg parked at the Calhoun Beach Club, he grabbed her by the hair and pulled her head back. She testified that he was holding a knife and that he cut her finger with it when he pulled her head back. She testified that he pulled up her shirt and cut her bra with his knife. She testified that Berg pulled down her right pant leg and had intercourse with her twice.

Berg testified that B.B. agreed to have sexual intercourse with him in exchange for crack cocaine. Berg testified that after they had intercourse, B.B. grabbed his knife and demanded that he give her the rest of his cocaine. He testified that B.B. cut her finger when he wrestled the knife away from her.

After Berg drove away, B.B. went into the Calhoun Beach Club to seek assistance and was taken to the hospital, where she was treated for her injuries and evaluated by a sexual assault resource center nurse clinician. The nurse clinician testified that B.B. had a laceration on her labia, which appeared to have occurred recently and was consistent with forced intercourse.

2. The May 20, 1995 incident

Berg picked up D.S. in Minneapolis, she agreed to have sexual intercourse with him for money, and they drove to Lakewood Cemetery.

D.S. testified that when she asked Berg for money upon arriving at the cemetery, he grabbed her hair, cut her hand with a razor, and ordered her to remove her clothes. She testified that when her pants were partially removed, Berg put a condom on, opened her bra, and had intercourse with her. D.S. testified that she yelled for help when she saw a car driving by and that Berg then told her to get out of his truck.

Berg, however, testified that D.S. pulled out a razor when he was putting on the condom, and she told him to give her all of his money. He testified that D.S.'s finger was cut when he grabbed the razor from her.

Berg was charged with first-degree criminal sexual conduct, second-degree assault, and kidnapping for each of the incidents. The complaints against Berg were joined for trial, over his objection. After a jury trial, Berg was found guilty of all charges.

D E C I S I O N

1. Joinder of the Charges

Berg argues the joinder of the charges from the two separate incidents constitutes reversible error because it (1) violated the rules of criminal procedure and (2) substantially prejudiced his right to a fair trial.

Separate complaints may be may be joined for trial if they could have been joined in a single complaint. Minn. R. Crim. P. 17.03, subd. 4. The test for whether joinder is proper under rule 17.03 is whether the offenses arise from a single course of conduct. State v. Knight, 260 N.W.2d 186, 187 (Minn. 1977). In making this determination, courts focus on the time and place of the alleged offenses, as well as whether the incidents were focused on attaining a single criminal objective. Id.

Here, both incidents involved picking up prostitutes, bringing them to the same neighborhood, using similar weapons to cut them, and having sexual intercourse with the prostitutes in a truck after their pants were partially removed. The trial court found that the two offenses shared a

common theme and thread that is consistent with a pattern of conduct that would support the charge in what could have been charged as the same indictment, complaint, or tab charge.

It is not clear that joinder was proper in this case because, although the offenses were committed in the same neighborhood, they were not close in time nor were they focused on a single criminal objective. Even if joinder is improper, however, it is not prejudicial if "evidence of each offense would have been admissible Spreigl evidence in the trial of the other." State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982) (citing State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)). In order to admit 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.

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

Here, the record contains strong evidence that Berg participated in both offenses. Further, the evidence of each offense was relevant to the state's case in the other because of the similarities in modus operandi noted by the trial court. Finally, the danger of prejudice was not so severe that it outweighed the probative value of the evidence. See State v. Andersen, 370 N.W.2d 653, 660-61 (Minn. App. 1985) (concluding that trial court did not commit prejudicial error in joining indictments where all incidents involved illegal use of mayoral power or mayor's disorderly conduct and occurred in same city during a short period of time).

Even if the trial court erred by allowing the complaints against Berg to be joined, the joinder was not prejudicial because each offense would have been admissible Spreigl evidence in the trial of the other. Moreover, joinder served the public policy interests of sparing the victims from testifying twice and promoting judicial economy. Cf. ABA Standards for Criminal Justice § 13-2.1 commentary at 12 (1986) (explaining that benefits of joinder include convenience to victims and conservation of judicial resources).

2. Admission of Out-of-court Statements

Berg argues the trial court abused its discretion by admitting B.B.'s out-of-court statements to the sexual assault resource center nurse clinician because the statements did not fall within the medical diagnosis hearsay exception.

A trial court's evidentiary ruling will not be overturned unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Even if error is found, the complaining party must demonstrate that the error was prejudicial in order to be granted a new trial. Id.

The medical diagnosis exception provides that

[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment

are not excluded by the hearsay rule. Minn. R. Evid. 803(4). This court has found statements of a sexual assault victim to a medical practitioner regarding the details of the assault to be admissible as medical history pertinent to treatment. State v. Bellotti, 383 N.W.2d 308, 312 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986). Here, the nurse clinician examined, counseled, and treated B.B. The evaluation included questions about how the assault occurred. The trial court ruled the statements B.B. made to the nurse clinician to be "a continuing part of medical diagnosis treatment or description of medical history which fits squarely in [rule 803(4)]." The admission of the nurse clinician's testimony did not constitute abuse of discretion.

3. Prosecutorial Misconduct

Berg argues the prosecutor committed prejudicial misconduct by misstating the testimony of an expert witness in her closing statement. The expert witness did DNA testing on Berg and B.B. and found that Berg could have been a source of the semen on the vaginal swab taken from B.B. on the night of October 15, 1994. During her closing argument, the prosecutor stated that "there was only one donor of semen found in the testing done of [B.B.'s] vaginal vault, and that's consistent with [Berg]." The prosecutor's statements imply that the tests proved that no other person's semen was present, but the record does not show that tests were done to determine whether any other person's semen was present. The prosecutor's reading of the expert testimony discredited Berg's argument that the laceration on B.B.'s labia was the result of her having had intercourse with other customers that day.

A defendant is entitled to a new trial if prosecutorial misconduct rose to the level of denying the defendant a fair trial. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995). In cases involving "unusually serious prosecutorial misconduct," this court will affirm a conviction only if the misconduct was harmless beyond a reasonable doubt. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Where the misconduct is less serious, this court will affirm if the misconduct did not substantially influence the jury to convict. Id. at 128, 218 N.W.2d at 200.

Although the prosecutor's statement may be considered misconduct, it cannot be characterized as serious. Berg argues the statement played a key role in his conviction, but considering the strength of the state's evidence against him and the fact that the court properly instructed the jury that attorneys' statements are not evidence, the prosecutor's statement, even if it was misconduct, did not deny Berg a fair trial.

Affirmed.