This opinion will be unpublished and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

C3-96-623

State of Minnesota,

Respondent,

vs.

Oscar Lee Adams,

Appellant.

Filed January 21, 1997

Affirmed

Short, Judge

Hennepin County District Court

File No. 95038578

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

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Short, Judge.

UNPUBLISHED OPINION

SHORT, Judge

On appeal from a conviction for first-degree criminal sexual conduct, Oscar Lee Adams argues the trial court erred in admitting evidence of a threatening telephone call Adams allegedly made to his victim. We affirm.

DECISION

Evidentiary rulings rest within the sound discretion of the trial court. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981). We will not reverse a trial court's decision to admit evidence absent a clear abuse of that discretion. See id. at 102 (upholding admission of evidence upon determination trial court did not abuse its discretion).

Adams argues the trial court improperly admitted testimony regarding an alleged telephone call as evidence of an integral part of the crime charged, rather than Spreigl evidence. See generally State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (1965) (establishing rules for admission of character evidence). We disagree. As a general rule, evidence of a person's character, including evidence of bad acts committed by the person, is inadmissible to prove the person acted in conformity with that character trait. Minn. R. Evid. 404(a), (b); State v. DeWald, 464 N.W.2d 500, 502 (Minn. 1991). However, this rule

does not necessarily deprive the state of the right to make out its whole case against the accused on any evidence which is otherwise relevant upon the issue of the defendant's guilt of the crime with which he was charged.

State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271 (1962). Evidence offered as substantive proof of the charged offense is not Spreigl evidence, even though it relates to another crime or bad act by the defendant. State v. Martin, 293 Minn. 116, 128-29, 197 N.W.2d 219, 227 (1972); State v. Roy, 408 N.W.2d 168, 171 (Minn. App. 1987), review denied (Minn. July 22, 1987). Character evidence may be properly admitted to show consciousness of guilt. State v. Witucki, 420 N.W.2d 217, 221 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988); see, e.g., State v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (holding evidence of threats to witnesses was relevant to show consciousness of guilt); State v. Dillon, 529 N.W.2d 387, 392 (Minn. App.) (affirming trial court's admission of testimony of phone call in which defendant threatened undercover policeman that "some of the boys would be around to see [him] real soon"), remanded in part on other grounds, 532 N.W.2d 558 (Minn. 1995).

The record demonstrates the state offered evidence of the telephone call as part of its case-in-chief to show Adams was conscious of his guilt in committing the rape and to prove Adams's victim did not consent to sexual intercourse. See, e.g, Roy, 408 N.W.2d at 172 (determining evidence related to defendant's attempts to destroy crime scene was "probative as circumstantial evidence of * * * [his] consciousness of guilt, and was intimately connected with the crime"). Furthermore, the telephone call has no bearing on Adams's propensity to commit rape or to commit a rape on this victim in particular. See generally Minn. R. Evid. 404(a), (b) (barring admission of character and bad act evidence to show defendant had tendency to commit charged offense).

Adams also argues the state failed to prove Adams's participation in the telephone call by clear and convincing evidence. See Minn. R. Evid. 404(b) (requiring, for purposes of admissibility, clear and convincing evidence of bad act and participation in act by accused). However, the record shows: (1) the victim testified about the threatening telephone call; (2) the investigating officer identified Adams's voice on the taped phone message and confirmed that the victim reported the call; (3) the tape recording of the call itself was played to the jury; and (4) the caller identification evidence traced the telephone call to the Harris County jail, where Adams was detained at the time. Given these facts, the trial court properly concluded that the state proved Adams's participation in the telephone call by clear and convincing evidence.

Adams further argues the telephone call was unduly prejudicial and the trial court should have excluded the call from evidence pursuant to Minn. R. Evid. 403. However, unfair prejudice does not include damage to a defendant's case resulting from the legitimate probative force of the evidence. Witucki, 420 N.W.2d at 222. Rather, unfair prejudice refers to evidence that suggests a decision on an improper basis. Id.; see Bertrand Poritsky, Minnesota Evidence Trialbook 47 (1996) (concluding evidence so tenuously connected to issue in case that it will not aid factfinder in rationally resolving issue may be excluded under Rule 403). The record shows: (1) to limit the prejudicial effect the caller identification evidence may present regarding Adams's custody status, the trial court instructed the prosecution not to question any witnesses regarding that subject; (2) Adams's own legal counsel proceeded to question the victim regarding the caller identification issue, thereby disclosing Adams's custody status; and (3) the trial court issued a limiting instruction to the jury stating Adams's custodial status was not relevant to any issue in the case except whether Adams placed the telephone call. Under these circumstances, the trial court correctly weighed the probative value of the telephone call against the prejudice it may have caused. See Minn. R. Evid. 403 (mandating exclusion of relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice). The trial court did not abuse its discretion by admitting evidence of the threatening telephone call.

Affirmed.