This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Charles Edward Swanson,


Filed August 5, 1997

Affirmed in part and vacated in part

Amundson, Judge

Anoka County District Court

File No. K7-95-10329

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Robert M. A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for Respondent)

John M. Stuart, Minnesota State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.



Appellant Charles Edward Swanson challenges his third- and fourth-degree criminal sexual conduct convictions, arguing that the admission of other crime evidence was improper and that the district court erred in adjudicating him guilty of fourth-degree criminal sexual conduct. We affirm in part and vacate in part.


Appellant Charles Edward Swanson was convicted of third- and fourth-degree criminal sexual conduct for his actions against B.S. Swanson met B.S. while she was trying to make a telephone call to her mother in England from a pay phone at a Super America store. Because the pay phones were out of order, Swanson offered B.S. the use of his calling card. B.S. accepted and the two of them went to Swanson's apartment to get his calling card.

After getting his calling card, Swanson allegedly tried several times to use his card at a K-Mart pay phone and later at a bar pay phone. While at the bar, Swanson stated that the phone lines were busy; B.S. told Swanson that she was going to walk home. As B.S. was trying to leave, Swanson grabbed her by the arm and told her that she was going with him. Swanson brought B.S. back to his apartment and sexually assaulted her. During the assault, B.S. was able to kick Swanson in the groin and while he was incapacitated, she left his apartment.

At trial, B.S. was impeached. Her testimony was not entirely consistent with her previous statements. There were several inconsistencies with the statements B.S. offered to the police, investigators, and the hospital staff that conducted the sexual assault examination. The state moved that it be allowed to introduce other crime evidence to bolster its case. The district court ruled Swanson's prior criminal sexual conduct conviction was admissible as Spreigl evidence. After giving the jury a cautionary instruction about Spreigl evidence, the victim of Swanson's previous sex offense, K.W., testified. On June 6, 1991, K.W. met Swanson at a bar, when Swanson introduced himself as "Chip Swanson." After the two talked for about fifteen or twenty minutes, and after Swanson bought her a drink, K.W. invited him to her apartment for dinner.

At K.W.'s apartment, Swanson began making sexual advances toward her. K.W. told him that she was not interested in a sexual relationship. At first he responded kindly, but then he became a "totally different person." Swanson got on top of K.W., put his hands down her tube top, and then put his hands down toward her vaginal area. When K.W. protested and told him she didn't want to do that, Swanson said, "Yes, we are." When K.W. again refused, he pulled out a utility knife and put it up to her neck, and forced K.W. to perform oral sex. As Swanson left, he told K.W. that he did not tell her his real name, he told her that his real name was Bob Ramsey.

In the present case, Swanson elected not to testify due to the fact that he had been convicted of criminal sexual conduct as the result of the 1991 incident. The jury found Swanson guilty of both third- and fourth-degree criminal sexual conduct. Swanson was sentenced to 62 months in prison and ordered to pay a fine and restitution for his third-degree criminal sexual conduct conviction. No sentenced was imposed as to the fourth-degree criminal sexual conduct. The district court, however, entered an adjudication of guilt for fourth-degree criminal sexual conduct. This appeal followed.


I. Other Crime Evidence

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 the 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, n.1 (Minn. 1990). Even if the district court did err in the evidentiary ruling, reversal is only appropriate if "the error substantially influences the jury to convict." State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990) (citation omitted), review denied (Minn. July 6, 1990).

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. State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965); see also Minn. R. Evid. 404(b).

Swanson argues that the other crime evidence presented at trial was not relevant, and therefore was unduly prejudicial. Swanson asserts that the other crime evidence that was presented was so unlike and unrelated to the charged offense that it should not have been admitted.

Because Spreigl evidence has a potentially prejudicial effect on the defendant, the Minnesota Supreme Court has outlined certain guidelines:

In determining admissibility, the trial court should engage in a balancing of factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the evidence will be used by the jury for an improper purpose, or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.

State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995) (footnotes omitted). Deciding 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). A district court's decision to admit Spreigl evidence will not be overturned for lack of time proximity if the relevance of the evidence is otherwise clear. State v. Drieman, 457 N.W.2d 703, 710 (Minn. 1990). "The ultimate issue is not the temporal relationship but relevance." State v. Wermerskirchen, 497 N.W.2d 235, 243 (Minn. 1993). Additionally, for the second factor, a lack of proximity in place, as with time, is not grounds for overturning the district court's decision to admit relevant Spreigl evidence. Drieman, 457 N.W.2d at 710.

The similarity in the modus operandi (the third factor) is the crucial factor in assessing whether the evidence is relevant. The crimes are similar enough in modus operandi to be relevant. In both cases: (1) Swanson befriended adult women who were complete strangers, and attacked them later the same day; (2) he acted friendly toward them at first, and then attacked them when they were alone in an apartment; (3) he drank alcohol before the attacks; (4) he tried to engage in forcible oral penetration; and (5) he lied immediately after committing the offenses in an effort to avoid the consequences of his actions.

This court has upheld the use of prior crime evidence in sexual assault cases where there were fewer similarities between two sexual assaults than in this case. See, e.g., State v. Maurer, 488 N.W.2d 834 (Minn. App. 1992), reversed on other grounds, 491 N.W.2d 661 (Minn. 1992) (Spreigl evidence properly admitted where both acts involved sexual attacks to women who were dependent on defendant giving them a ride home); Powe v. State, 389 N.W.2d 215 (Minn. App. 1986), review denied, ( Minn. July 31, 1986) (Spreigl evidence properly admitted where in both assaults, the defendant was initially not threatening, but later, overpowered and sexually assaulted the victims).

Swanson also argues that the probative value of the other crime evidence was outweighed by its prejudicial impact. One of the first considerations in this analysis is the strength of the state's case. If there is a need for the Spreigl evidence to support the state's burden of proof, then it is more likely that it will be admitted. DeWald, 464 N.W.2d at 504. As a typical acquaintance-rape case, there was no physical evidence or eyewitness. There was no confession. The defense was that the victim fabricated the offense. Thus, there was a strong need for the Spreigl evidence.

Spreigl evidence serves "to complete the picture of defendant, to put his current conduct in its proper and relevant context, not to paint another picture or lead the jury to convict on the basis of an irrelevancy." Wermerskirchen, 497 N.W.2d at 242-323. In the present case, to ensure that the jury used the other crime evidence for its proper purpose, the district court gave the jury cautionary instructions both before the Spreigl evidence was admitted and again, in its final instructions.

The state also warned the jury that "it should not, * * * must not, * * * can not convict the defendant just because of what he did to [K.W.] * * * in 1991." The defense attorney told the jury that if it did not use the other crime evidence properly, it would be "committing the worst crime imaginable in our society, [because the jury would be] destroying our right to liberty."

Therefore, the district court did not abuse its discretion by admitting the other crime evidence. Any danger that the jury may have used this evidence for an improper purpose was negated by the numerous warnings and precautions from the district court, the state, and defense counsel.

II. Fourth-Degree Criminal Sexual Conduct Adjudication

Swanson was convicted of one count of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct as the result of an incident that occurred in his apartment on September 4, 1995. At sentencing, although the district court only imposed a sentence as to the third-degree criminal sexual conduct conviction, it also entered an adjudication of guilt as to the fourth-degree criminal sexual conduct conviction. Swanson asserts, and the state agrees, that this was violative of Minn. Stat. § 609.04, subd. 1 (1996):

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:

(1) A lesser degree of the same crime; or

(2) An attempt to commit the crime charged; or

(3) An attempt to commit a lesser degree of the same crime; or

(4) A crime necessarily proved if the crime charged were proved; or

(5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.

One of the purposes of this statute is to prevent a defendant from being convicted twice of the same included offense based on the same act or course of conduct. State v. Hodges, 386 N.W.2d 709, 710 (Minn. 1986). Another purpose of this statute is to bar exaggeration of the criminality of a defendant's conduct by charging and obtaining multiple convictions based on a single act simply because the single act violates more than one statutory provision. See id. In cases where the defendant is convicted of multiple crimes in violation of different sections of the same statute, only one conviction may be adjudicated. See State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (concluding that where the acts committed by defendant were part of a singular behavioral incident, one of the two formal adjudications of convictions for violating Minn. Stat. § 609.625, must be vacated).

Because Swanson was found guilty of third-degree criminal sexual conduct, he should not be adjudicated guilty of fourth-degree criminal sexual conduct. The district court's adjudication of guilt for the fourth-degree criminal sexual conduct conviction, therefore, is vacated.

Affirmed in part and vacated in part.



Judge Roland C. Amundson