This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Eugene Dubois Sandberg,


Filed September 9, 1997


Amundson, Judge

Hennepin County District Court

File No. 96032282

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



This appeal is from a judgment of conviction for first-degree assault, second-degree assault, and aggravated robbery. Appellant Eugene Sandberg challenges the district court's admission of a reference to his prior criminal record and its denial of a request for a Schwartz hearing. We affirm.


Appellant Sandberg was charged, along with co-defendant Tyler Floyd, with beating and robbing Christopher Badejogbin, a resident of the boarding house where Floyd lived. Badejogbin, a computer programmer, had just cashed his paycheck and obtained money orders to pay his rent and send money to his family in Florida. Badejogbin testified that Floyd and Sandberg began creating a disturbance in the living room of the boarding house, that they entered Badejogbin's room where they demanded money, and Floyd stabbed Badejogbin in the leg and hand, and later hit him in the head with a gin bottle. The two then ransacked the room, looking for more money.

Sandberg filed a motion to prevent Badejogbin from testifying about a statement that Sandberg allegedly made to him that he (Sandberg) "just spent six years in prison, [so] I am not going to leave no evidence." At that point, the state's request to be allowed to introduce Spreigl evidence of Sandberg's three aggravated robbery convictions had been deferred until the end of the state's case. The district court ruled that Badejogbin could testify about Sandberg's own reference to his prison term. The court later ruled the other crimes evidence[1] inadmissible. The court, however, ruled that the state could impeach Sandberg with his prior convictions, which dated from 1991, should he choose to testify.

Sandberg did not testify. The jury found him guilty of all three counts: first-degree assault, second-degree assault, and aggravated robbery. At sentencing, defense counsel requested a Schwartz hearing to determine the existence of jury misconduct,[2] based on an affidavit stating that two defense witnesses had overheard the following exchange among three jurors outside the courtroom:

Juror A: Going to Ribfest?

Juror B: Went over there. I hope this trial is over before Ribfest is over.

Juror C: Hope this trial is not like O.J.

The district court denied the defense request, finding that the alleged conversation did not rise to the level of misconduct required for a Schwartz hearing. This appeal followed.


I. Other-crimes Evidence

Sandberg argues that the district court abused its discretion in permitting Badejogbin to testify that during the incident, Sandberg told him that he had just spent six years in prison. The admission of other-crimes evidence will not be reversed absent an abuse of discretion. State v. Rainer, 411 N.W.2d 490, 497 (Minn. 1987).

Evidence of other crimes is generally inadmissible to prove the crime for which the defendant is on trial. State v. Wolford, 262 Minn. 112, 112, 114 N.W.2d 267, 268 (1962). Evidence of another crime, however, may be admitted, among other exceptions, if it is inextricably linked to the charged offense so that the state could not fully present its case without the other-crime evidence. State v. Nunn, 561 N.W.2d 902, 907-08 (Minn. 1997).

Sandberg's reference to his six years in prison was an integral part of his threat to Badejogbin that he and Floyd were not going to leave any evidence behind, a threat uttered in order to facilitate the commission of the offense. It was part of the immediate episode. Cf. id. at 908 (affirming admission of kidnapping and threat of a witness, not the victim, on a separate occasion). It was important to show Sandberg's active participation in the offense. To exclude it would require the state to expurgate its evidence of the crime, even to the extent of excluding admissions of the defendant. The policy behind the general exclusion of other-crimes evidence does not require that result. The district court did not clearly abuse its discretion in admitting the evidence.

II. Schwartz Hearing

Sandberg argues that the district court abused its discretion in denying his request for a Schwartz hearing. The granting of a Schwartz hearing concerning potential jury misconduct lies in the discretion of the trial court. State v. Hicks, 432 N.W.2d 487, 490 (Minn. App. 1988), review denied (Minn. 1989). A Schwartz hearing is not mandated unless a defendant establishes a prima facie case of jury misconduct. State v. Anderson, 379 N.W.2d 70, 80 (Minn. 1985).

Defense counsel's affidavit shows only that several jurors were concerned about the possible length of the trial. They referred to the O.J. Simpson trial only in regard to its length, not as to any substantive issued raised. The affidavit does not show a substantive discussion of this case, in disregard of the court's instructions not to discuss the case until deliberations. Nor does it show the jurors were inattentive, or distracted by other events from giving adequate attention to the trial. The affidavit only reflects idle conversation among jurors during a break in the trial, something that would normally occur among strangers called to serve on the same jury. The district court did not abuse its discretion in denying the defense request for a Schwartz hearing.


[ ]1 Also known as Spreigl evidence. See State v. Spreigl, 272 Minn. 488, 137 N.W.2d 167 (1965).

[ ]2 Pursuant to Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).