This opinion will be unpublished and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

C9-96-1954

William Newton Everhardt, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed May 6, 1997

Affirmed

Willis, Judge

Kanabec County District Court

File No. K494145

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

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

Norman J. Loren, Kanabec County Attorney, 19 N. Vine Street, Mora, MN 55051 (for Respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, 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 William Everhardt challenges the postconviction court's denial of his petition for relief from his conviction of first-degree criminal sexual conduct. He argues that the district court committed prejudicial error in admitting Spreigl evidence and in permitting the child-victim to testify from another witness's lap. We affirm.

FACTS

In August 1993, six-year-old J.L. described to her aunt oral sexual acts involving her girlfriend, E.D., and Everhardt, a resident of her trailer park. At that time J.L. denied that Everhardt touched her. When Charlene Youngquist, another resident of the trailer park, later referred to Everhardt's sexual abuse of E.D., J.L. told Youngquist that Everhardt had done the same thing to her.

Everhardt was charged with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct against J.L. In pretrial proceedings, Everhardt's counsel agreed to the admission of references to Everhardt's abuse of E.D. as long as the state did not mention that Everhardt was convicted for that conduct. At trial, Youngquist testified that J.L. told her that Everhardt instructed her and E.D. to take off their clothes and go into his bedroom. The girls did so and Everhardt made them perform oral sex on him. Youngquist reported the incident to Deputy Sheriff Robert Jensen and he interviewed J.L. J.L. told Jensen the same story and also stated that Everhardt performed oral sex on the girls. At trial, J.L. was reluctant to testify and said that she was frightened. She sat in Youngquist's lap while she testified regarding Everhardt's conduct.

The jury found Everhardt guilty of both counts of criminal sexual conduct. Everhardt filed a petition for postconviction relief based on the admission of Spreigl evidence at trial, the fact that J.L. testified from Youngquist's lap, and his sentence. The postconviction court denied Everhardt's petition.

D E C I S I O N

An appellate court reviews a postconviction court's denial of relief only to determine whether sufficient evidence exists to support the district court's findings. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). Absent an abuse of discretion, this court will not reverse the postconviction court's decision. Id.

1. Spreigl Evidence.

Everhardt contends the district court erred in allowing the state to present evidence that he sexually abused E.D. Evidence of other crimes is not admissible to prove a person's character or to show the person acted in conformity therewith. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Other-crime evidence may be admitted, however, for a legitimate purpose such as establishing motive, intent, absence of mistake, identity, or common purpose. State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992).

In determining the admissibility of Spreigl evidence, the district court should consider the relevance of the evidence, the need for the evidence, the danger that the jury will use the evidence for an improper purpose, and the danger that the evidence will create unfair prejudice. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). The defendant bears the burden of proving that the district court erred in admitting Spreigl evidence and that he was prejudiced by its admission. State v. Barber, 494 N.W.2d 497, 500 (Minn. App. 1993), review denied (Minn. Feb. 25, 1993).

Everhardt argues that the state "failed to adequately articulate the requisite necessity" of the evidence of Everhardt's abuse of E.D. On the contrary, in pretrial proceedings, the state argued that references to Everhardt's molestation of E.D. were necessary to provide a context for Everhardt's abuse of J.L. because he abused both girls in the same incident and J.L.'s abuse was discovered after she reported Everhardt's abuse of E.D. We agree that references to E.D. were necessary to describe accurately the incident in which Everhardt abused J.L.

Everhardt claims that he was unfairly prejudiced by four witnesses' testimony regarding the details of the Spreigl incident. However, J.L.'s father and E.D.'s mother did not testify to the details of E.D.'s abuse.[1] Although J.L.'s aunt and Deputy Jensen testified about J.L.'s first reports of E.D.'s abuse, that testimony is probative of Everhardt's abuse of J.L. because it shows that J.L. was consistent in describing Everhardt's sexual misconduct. Everhardt does not explain how the state could have described J.L.'s abuse if the district court had not admitted that testimony. In pretrial proceedings, even Everhardt's counsel agreed that if the conviction were not mentioned, "[E.D.] being included in any testimony would not be so highly prejudicial."

Any prejudicial effect was minimized by the district court's cautionary instructions. See Berry, 484 N.W.2d at 18 (concluding that any prejudicial effect of Spreigl evidence was lessened by court's cautionary instructions before each incident was admitted and again when instructions were given to jury). Before testimony regarding Everhardt's abuse of E.D., and again at the close of trial, the court instructed the jury that the evidence regarding E.D. was offered "for the limited purpose of assisting [them] in determining whether [Everhardt] committed" the charged offenses and that the jury cannot convict Everhardt of any other offense.

Even if we were to conclude that the district court erred in admitting Spreigl evidence, Everhardt is not entitled to a new trial because there is no reasonable probability that any error in the admission of references to E.D. contributed to the verdict. See Bolte, 530 N.W.2d at 198 (holding that defendant is not entitled to new trial where there is no reasonable probability that error in admitting Spreigl evidence significantly affected verdict, and "any error was harmless beyond a reasonable doubt").

2. J.L.'s Testimony.

Everhardt argues that he was denied his right to a fair trial because the district court permitted J.L. to testify while she was sitting on Youngquist's lap. Everhardt did not object to this arrangement at trial. Absent objection, this court will only review and reverse plain error of a prejudicial nature. State v. Shannon, 514 N.W.2d at 790, 793 (Minn. 1994).

Everhardt claims that the courtroom arrangement unfairly portrayed J.L. as a "sympathetic" and "truthful" victim. A criminal defendant has a constitutional right to a fair trial by an impartial jury. State v. Bowles, 530 N.W.2d 521, 529 (Minn. 1995). The presumption of innocence is a basic component of the right to a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976). When a defendant contends a courtroom arrangement erodes his presumption of innocence, the court must ask whether the arrangement presents an unacceptable risk of impermissible factors coming into play such that the practice is inherently prejudicial. Bowles, 530 N.W.2d at 529. If not, the court must apply a case-by-case analysis to determine whether the arrangement actually prejudiced the defendant. Id.

We conclude that allowing a child to testify from an adult's lap is not inherently prejudicial. Cf. Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346 (1986) (holding that presence of armed security guards need not be interpreted as a sign that defendant is dangerous and culpable). The question here, therefore, is whether permitting J.L. to sit on Youngquist's lap actually prejudiced Everhardt.

Minnesota permits a minor witness for the prosecution in a case involving child abuse, such as criminal sexual conduct, "to have in attendance or be accompanied by a parent, guardian, or other supportive person * * * during testimony." Minn. Stat. § 631.046 (1996). Section 631.046 is a remedial statute that is to be liberally construed. State v. Ross, 451 N.W.2d 231, 235-36 (Minn. App. 1990) (concluding that district court had discretion to determine number, choice, and placement of support persons), review denied (Minn. Apr. 13, 1990). The district court permitted J.L. to testify from Youngquist's lap because she was frightened, but cautioned Youngquist not to prompt J.L. The district court's decision to allow J.L. to testify from Youngquist's lap was not an abuse of discretion in the circumstances of this case.

Affirmed.

[ ]1 Everhardt also claims that the testimony of J.L.'s father violated notice provisions. Even if J.L.'s father had mentioned Everhardt's abuse of E.D., the state need not provide notice of its intent to offer evidence of any offenses "for which the defendant has been previously prosecuted" or that is offered "as a part of the occurrence or episode out of which the offense charged against defendant arose." Minn. R. Crim. P. 7.02.