This opinion will be unpublished and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

C5-96-400

State of Minnesota,

Respondent,

vs.

Betty Jean Givens a/k/a

Betty Jean Williams,

Appellant.

Filed January 14, 1997

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. 95062679

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55155 (for respondent)

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, Kathleen Ghreichi, Special Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.

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

TOUSSAINT, Chief Judge

On July 19, 1995, appellant Betty Jean Givens and Joyce Finley had an altercation, during which Finley was stabbed with a butcher knife. Givens alleges the stabbing was either self-inflicted or done in self-defense. Givens was found guilty by a district court jury of assault in the first degree.

Givens challenges her conviction, arguing (1) there was insufficient evidence to support her conviction, (2) the trial court abused its discretion in admitting evidence of prior crimes, and (3) the trial court erred in giving the standard Spreigl jury instruction. Because there is sufficient evidence to support the conviction, we affirm.

D E C I S I O N

I.

Our review of the sufficiency of evidence required to support a conviction

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citing State v. Martin, 293 N.W.2d 54,55 (Minn. 1980)). Where the evidence is circumstantial,

the verdict will be sustained on appeal when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citing State v. Threinen, 328 N.W.2d 154, 156 (Minn. 1983)). The "jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference." Webb, 440 N.W.2d at 430 (citing State v. Bendt 392 N.W.2d 876, 880 (Minn. 1986), cert denied, 479 U.S. 1046 (1987).

A. Assault in the First Degree

A person commits first-degree assault if he or she "assaults another and inflicts great bodily harm." Minn. Stat. § 609.221 (1994). Assault is defined in relevant part as "[t]he intentional infliction of or attempt to inflict bodily harm upon another." Minn. Stat. § 609.02, subd. 10(2).

Givens argues the State failed to prove she stabbed Finley. The evidence presented at trial, however, provides a sufficient basis for the jury's verdict. Givens testified that she was briefly in the kitchen (where the knife was stored) just prior to the fight. Evidence was presented that Givens sustained a minor wound, consistent with a knife wound, in her right upper thigh and there was a small tear or cut in the blood-stained area of her underpants, but not in her shorts; from which it could be concluded she concealed a knife under her shorts. A housemate testified that immediately after the stabbing Finley told Givens, "You stuck me." Finley and the arresting officer both testified to Givens saying, "I'm sorry, I shouldn't have done it."

While Givens' and Finley's testimony was contradictory, the jury was able to view the witnesses and assess their credibility. See State v. Garrett, 479 N.W.2d 745, 747-48 (Minn. App. 1992) (even though there may be two different versions of the event, the jury is entitled to believe the victim), review denied (Minn. Mar. 19, 1992). We believe the jury could reasonably infer Givens stabbed Finley.

B. Self-Defense

The elements of self-defense are:

(1) the absence of aggression or provocation on the part of the defendant;

(2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger;

(3) the existence of reasonable grounds for that belief; and

(4) the absence of a reasonable possibility of retreat to avoid the danger.

State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987). Once the defense of self-defense is raised, "the state has the burden of proving the nonexistence of one of those elements beyond a reasonable doubt," to defeat the defense. Id.

Givens claims the State failed to rebut her claim of self-defense. This argument has no merit as Givens at no time testified she stabbed Finley in self-defense. Rather, her testimony was she did not stab Finley.

Q: Did you stab her?

A: No, I didn't stab her.

Q: Do you know how she was stabbed?

A: No, I don't know how she was stabbed from the scuffle.

Also, sufficient evidence was presented by the State to prove the nonexistence of self-defense elements (2) through (4). Finley testified she had stopped "tussling" with Givens and had started to get up off the floor when she was stabbed. The jury reasonably could have concluded that as Finley got up there no longer was a need to take action to avert "death or great bodily harm" and there was "a reasonable possibility of retreat to avoid the danger." We conclude the evidence was sufficient to permit the jury to reject the claim of self-defense.

II.

"Whether to admit evidence of other crimes, acts, or wrongs lies within the trial court's sound discretion." State v. Thompson, 520 N.W.2d 468, 471 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994) (citing State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990)).

Minn. R. Evid. 404(b) states in part:

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.

Minn. R. Evid. 404(b) (1995).

"[E]vidence of prior bad acts and previously committed crimes is commonly known as Spreigl evidence." State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). In order to admit Spreigl evidence, the trial court must find:

(1) the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) the Spreigl evidence is relevant and material to the state's case, and (3) 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) (citing State v. Norris, 428 N.W.2d 61,69 (Minn. 1988).

Givens argues the Spreigl evidence was irrelevant to the State's case. In deciding relevance, the trial court should focus on how similar the prior and charged crimes are in terms of time, place, and modus operandi. State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992) (citing State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983)). The closer the relationship, the greater the relevance of the evidence and the less likely the evidence will be used for an improper purpose. Id.

Givens testified to a second-degree assault conviction in 1987. The state brought in the assault victim and the arresting officer. The victim testified that Givens stabbed her three times (in the back, buttocks, and arm) with a butcher knife. The officer corroborated the assault and that the weapon was a butcher knife. The trial court allowed the evidence on the grounds it tended to show motive, intent, opportunity, modus operandi, and absence of accident.

The testimony showed location and modus operandi were similar. Both past and present incidents occurred at private residences in Minneapolis; both involved women victims; both involved stabbing with a knife (specifically a butcher knife); and both involved heated arguments followed by a stabbing. Differences between the two incidents were slight. In the 1987 incident, Givens was high on crack. In this instance, she was inebriated. Absolute similarity between the charged crime and the Spreigl crime, however, is not required. DeWald, 464 N.W.2d at 503.

Although almost nine years have elapsed between the past and present offenses, Minnesota courts "have never held that there must be a close temporal relationship between the charged offense and the other crime." State v. Wermerskirchen, 497 N.W.2d 235, 242 n.3 (Minn. 1993). Also, during those years, Givens spent considerable time in prison.

[T]he passage of a number of years may be without real significance if it turns out that the defendant was in prison in the interval between the prior offense and the current offense and was incapacitated from committing crime.

Id.

Givens also argues that admitting evidence of the 1987 second-degree assault was highly prejudicial. The issue, however, is not whether the evidence was prejudicial but rather whether it was "substantially" more prejudicial than probative. See Minn. R. Evid. 403 (relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice"). "Whether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court." State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985) (citing State v. Amos, 347 N.W.2d 498, 502 d(Minn. 1984)). "The trial court's decision will not be overturned absent a clear abuse of discretion." Id. at 209.

There was no evidence to show admission of the Spreigl evidence resulted in unfair prejudice toward Givens. The evidence of Givens' past crimes was balanced with evidence that Finley was arrested in 1988 for carrying a knife and she routinely carried a knife outside the home. During closing arguments, the prosecutor did not suggest the jury use the Spreigl evidence for improper purposes, and the trial court provided a cautionary final instruction on the jury's use of the evidence.

After a careful review of the record, we conclude the trial court did not abuse its discretion in admitting the evidence of other crimes.

III.

Givens argues the trial court erred by issuing the CRIMJIG Spreigl instruction rather than giving the federal charge. At trial, however, both parties agreed the court would read CRIMJIG 3.16. Unless an objection is made during the trial, it is waived. State v. Belssner, 463 N.W.2d 903, 911 (Minn. App. 1990), review denied (Minn. Feb. 20, 1991). Givens has waived any right to appeal the Spreigl instruction.

Affirmed.