This opinion will be unpublished and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

C4-96-1134

State of Minnesota,

Respondent,

vs.

Tobias Antonio Taylor,

Appellant.

Filed April 1, 1997

Affirmed

Amundson, Judge

Concurring specially, Harten, Judge

Hennepin County District Court

File No. 95066667

Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155, Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.

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

AMUNDSON, Judge

Appellant Tobias Antonio Taylor challenges his conviction, arguing that the admission of other-crime evidence was improper. He also argues that statements made by the prosecution in closing arguments constituted reversible error. We affirm.

FACTS

Victim Clamont Neal was involved in a 1994 shooting that unintentionally killed Jamal Walker's sister. Jamal Walker and appellant Tobias Antonio Taylor belong to the same gang, the Riverside Players. On July 24, 1995, Taylor (who had just left the spot minutes earlier after talking with Neal), pulled up in front of an apartment building in a blue car, apparently closely following brothers Jamal and Otha Walker, who were in a maroon car. Otha Walker got out of his car and began to beat Neal with his fists, yelling "You the one who shot my sister." Meanwhile, Jamal Walker got out of the car holding a gun and began firing at Neal. Taylor yelled encouragement to Jamal Walker based on Neal's responsibility for the death of the Walkers' sister, and Jamal Walker followed Neal down an alley, shooting. It appears that the Walkers did not know who Neal was until Taylor described him to them just before the shooting.

In a joint trial, both Jamal Walker and Taylor were found guilty of second degree murder. Evidence was presented at trial in the form of a stipulation of another crime in which Taylor had pleaded guilty to assault and Jamal Walker had pleaded guilty to aiding and abetting.

D E C I S I O N

Admission of evidence is within the sound discretion of the district court. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). The reviewing court will not overturn the district court absent a clear abuse of that discretion. State v. Dewald, 464 N.W.2d 500, 503 (Minn. 1991). It is appellant's burden to show that the district court erred in admitting evidence and that the admitted evidence was prejudicial. State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990). Even if the district court did err in the evidentiary ruling, reversal is only appropriate if the error substantially influenced the jury to convict. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).

I. Other-crime Evidence

While evidence of other crimes is generally inadmissible to prove a defendant committed an offense, it may be admitted to establish motive, intent, absence of mistake or accident, identity, or common scheme or plan. Slowinski, 450 N.W.2d at 113. Taylor argues that the other-crime evidence presented at trial was not relevant and was prejudicial. Taylor asserts that the other crime about which evidence was presented was so unlike and so unrelated to the charged offense that it should not have been admitted. The crime that was presented as evidence was a 1994 assault in which Taylor, Jamal Walker, and two companions beat Terrence Rogers after seeing Rogers and three of his friends playing basketball. The incident was apparently gang-related. Taylor pleaded guilty to third degree assault and Jamal Walker pleaded guilty to aiding and abetting third degree assault.

The supreme court has stated that a decision regarding the relevance of other-crime evidence should be based on "the closeness of the relationship between the other crimes and the charged crimes in terms of time, place, and modus operandi." State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).

Time

Taylor argues that the Rogers assault occurred more than 15 months before the charged offense and therefore is too distant in time to be relevant. The supreme court has held that a prior offense committed 15 months before the charged offense "was not closely related to the charged crime in temporal terms." State v. Cogshell, 538 N.W.2d 120, 124 (Minn. 1995) (prior drug offense). However, a district court's decision to admit other-crime evidence will not be overturned for lack of time proximity if relevance is otherwise clear. State v. Drieman, 457 N.W.2d 703, 710 (Minn. 1990). As the supreme court has stated, "[t]he ultimate issue is not the temporal relationship but relevance." State v. Wermerskirchen, 497 N.W.2d 235, 242 n.3 (Minn. 1993).

Place

Taylor asserts that the Rogers assault, which took place 25 blocks away from the Neal murder, is too distant to be relevant. Twenty-five blocks is a short enough distance to satisfy the proximity requirement of the Frisinger criteria. In any event, a lack of propinquity alone is not grounds for overturning the district court's decision to admit otherwise relevant other-crime evidence.

Modus Operandi

The similarity in the modus operandi of the two crimes is the crucial factor in assessing this evidence's relevance. Taylor argues that the modus operandi of the Rogers assault was significantly different from the Neal murder, rendering it irrelevant. He points out that Rogers was beaten with a crutch, whereas Clamont Neal was shot with a semi-automatic handgun. Taylor asserts that he was directly responsible for the Rogers assault, while in the Neal murder, he was only charged as an accomplice. Finally, he contends that the Rogers assault had been gang-related, in contrast to the Neal murder, which was motivated by the Walkers' desire for revenge for the death of their sister.

The state argues that the crimes are similar enough in modus operandi to be relevant. We agree. Both crimes were impulsive acts to avenge a perceived wrong. In both crimes, the assailants fled in a get-away car. In both crimes, Taylor and Jamal Walker, who are members of the same gang, assisted each other as comrades in violence. While the Rogers assault may not be so similar as to indicate a crime signature, it is not required that the other crime be a "signature" crime in order to admit other-crime evidence. See Slowinski, 450 N.W.2d at 114.

The admission of such evidence is appropriate to assist a case that is otherwise weak. See id. at 113-14. The district court did not abuse its discretion by admitting evidence of the Rogers assault.

II. Closing Argument

In his pro se brief, Taylor argues that the statements made by the prosecutor in his closing argument constitute reversible error. The statement in question is:

What happens is, that they all knew they were going to that store, and they meet at that store, and this defendant recognizes Taboo [Clamont Neal] because of that accident that he had with Ed Tindall a couple of days before, and so he tells the Walker brothers that the guy who killed your sister is right down the street, and this is what he's wearing and this is what he's--

Taylor's attorney objected, saying that the prosecutor was arguing evidence not in the case. The objection was sustained. The district court did not err.

Affirmed.

HARTEN, Judge (concurring specially).

Current Minnesota law compels me to concur with the result. I write separately, however, to highlight and discuss the specific rationale for the admission of other crime (Spreigl) evidence in this case. The district court said:

Now, on the other hand, it is obviously significant when it comes to your client,

Mr. Stewart, but I also believe, because of the weakness of the case, that's why

I am allowing it in.

(Emphasis added.)

The "weak case" rule appears to result from gradual mutation of a line of cases going back to the 1950's. The supreme court has required that, as a condition for the admission of Spreigl evidence, the state show that the evidence "'is necessary to support the state's burden of proof.'" State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (quoting State v. Billstrom, 276 Minn. 174, 178, 149 N.W.2d 281, 284 (1967)). This requirement originated in Billstrom, 276 Minn. at 178-79, 149 N.W.2d at 284-85, which also imposed a number of procedural requirements on Spreigl evidence (proper notice, etc.). The pre-Spreigl cases involving admission of "other crimes" evidence did not require a showing of need. See e.g., State v. Elli, 267 Minn. 185, 188, 125 N.W.2d 738, 740-41 (1964) (affirming admission of evidence of other crimes where separate crime has reasonably close relation in scheme and pattern and in time to charged crime); State v. DePauw, 246 Minn. 91, 74 N.W.2d 297, 299 (1955) (affirming admission of other crime evidence when conduct was almost exactly the same in manner of charged crime). These earlier cases focus on the purposes for which the evidence is presented, the degree of similarity, and the closeness in time. DePauw, 246 Minn. at 94-96, 74 N.W.2d at 299-300.

In support of the "need" requirement, Billstrom, cites a Utah case and Wharton's treatise on Criminal Evidence. 276 Minn. at 178-79, 149 N.W.2d at 284. Unfortunately, I do not have access to Wharton's treatise. Wigmore's treatise, usually cited for the general rule against admission of "other crimes" evidence, does not discuss the proponent's "need" for such evidence. 1A John Henry Wigmore, Wigmore on Evidence § 58.2 (Tillers rev. 1983).

Although the "need" requirement drew little comment over the years, the supreme court re-emphasized it in 1991 in using it as the basis for a procedural suggestion that courts wait to rule on Spreigl evidence until the rest of the state's case has been put in, when the "need" can be assessed. DeWald, 464 N.W.2d at 504 (also stating court must "pay particular heed" to state's need for Spreigl evidence). The DeWald court approved the Billstrom standard that the state's evidence (of identity) must be "otherwise weak or inadequate." Id. (quoting Billstrom, 276 Minn. at 178, 149 N.W.2d at 284). The supreme court, however, clarified this by holding that "need" does not require that the other evidence be insufficient to convict. State v. Bolte, 530 N.W.2d 191, 197 n.2 (Minn. 1995).

The "weak case" requirement, however well-intentioned, is ineffective in its application for a number of reasons. First, courts are not accustomed to weighing a proponent's case, such as Billstrom requires. The requirement really demands not only a weighing but an assessment of the credibility of the state's witnesses. Second, the "weak case" standard is a mushy, qualitative assessment in a decision already beset by vague standards ("sufficient similarity" and the probative value vs. prejudicial effect balancing test). Third, the "weak case" requirement avoids refinement by appellate decision because admission of Spreigl evidence when the state's case is not "weak" would almost always be harmless error. Thus, if the state has a weak case, the law deliberately aids the state by allowing admission of Spreigl evidence that otherwise would be inadmissible had the state a stronger case. If the case is weak, the system gratuitously aids the state by admitting Spreigl evidence. And if the case is not weak, but the trial judge nonetheless erroneously allows Spreigl evidence on that basis, such allowance commonly is ameliorated as harmless error given the strength of the state's case. In either instance, the government gets what it needs and the defendant loses. Finally, assessing the "weakness" of the state's case requires the trial court to view the evidence with an adversarial eye.

The "weak case" rationale for admission of Spreigl evidence has expanded beyond any salutary purpose.