This opinion will be unpublished and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 Robert Noble,


Filed January 27, 1998


Randall, Judge

Hennepin County District Court

File No. 95111544

Hubert H. Humphrey III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

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

William E. McGee, Hennepin County Public Defender, Daniel O'Brien, Assistant Hennepin County Public Defender, Maria Pia Sass, Assistant Hennepin County Public Defender, 317 Second Avenue, Suite 200, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.



Appellant challenges his conviction for first-degree criminal sexual conduct and first-degree burglary, arguing that: (1) the district court erred when it allowed Spreigl evidence to be admitted because the state's case was not weak, or alternatively, if the state's case was weak, the Spreigl evidence was no more probative than the evidence in the charged offense, and (2) the evidence is insufficient to support his conviction for first-degree criminal sexual conduct. We affirm.


At approximately 2:00 a.m. on the morning of June 20, 1995, E.W. was awakened in her Northeast Minneapolis home by a masked intruder dressed in dark clothing, standing in the doorway to her bedroom. When he covered her mouth to keep her from screaming, E.W. noticed that the intruder was wearing latex gloves. The intruder then led E.W. into the living room and ordered her to sit on the floor. He then asked her name. At first, E.W. gave a false name, but then complied when the intruder tightened his grip on the back of her neck.

The intruder removed E.W.'s clothing and had her perform oral sex on him. After ejaculating, the intruder had E.W. spit the semen out into the night shirt she had been wearing. When he relaxed his grip on her, E.W. grabbed a footstool and hit the intruder. When the intruder eventually regained control of E.W., he asked her why she had done that since he was done and was going to leave.

Following the assault, the intruder brought E.W. to the kitchen and had her open the back door. He then took E.W. into the bathroom and instructed her to stay in the bathtub with the water running for 10 minutes. However, when E.W. heard the back screen door slam she got up and called a friend who told her to call the police.

Once the police arrived, E.W. was taken to the Hennepin County Medical Center (HCMC) for a sexual assault examination. Several bruises, a scrape, and scratches and finger mark impressions were observed on E.W.'s skin and tests results from a swabbing of E.W.'s mouth showed some sperm heads and an elevated acid phosphatase level consistent with the presence of semen.

On July 6, 1995, a second sexual assault incident occurred in Northeast Minneapolis. The victim, T.H., was awakened at approximately 2:30 a.m. while she was alone in her home, forced to perform fellatio on a masked intruder, and then placed in the bathtub with the water running while the intruder fled. Noble was developed as a suspect and Bureau of Criminal Apprehension (BCA) DNA testing indicated a match between the DNA taken from semen samples recovered from T.H.'s hair and DNA taken from a known sample of Noble's blood. A complaint and an arrest warrant were filed, charging Noble with the sexual assault of T.H.

Following more extensive testing by the BCA, it was determined that Noble could not be excluded as the source of the DNA found on E.W.'s carpet and that the odds of randomly selecting an individual with that particular DNA pattern were 1 in 703 million.

During trial, E.W. testified regarding the circumstances of the assault. The BCA technicians testified to the procedures they used in conducting the DNA tests and Dr. P. Michael Conneally testified that based on this testing it was his opinion that the DNA taken from the semen on E.W.'s carpet came from Noble. Steven Ayers, Noble's roommate, stated that Noble occasionally left the apartment late at night, stayed out all night, and often wore dark clothing. Barbara Kangas, the mother of Noble's girlfriend, testified that Noble frequented her residence and that her boyfriend kept a supply of latex gloves in the garage.

Additionally, the state was allowed to introduce as Spreigl evidence, testimony regarding the sexual assault of T.H. and the subsequent investigation. T.H. testified as to the circumstances of her sexual assault, the BCA technicians testified to the testing procedures they followed, and Dr. Conneally expressed his opinion that based on the BCA tests, the DNA extracted from the semen found in T.H.'s hair came from Noble.

Noble, on the other hand, introduced testimony from Dr. Donald Riley and Dr. Lawrence Mueller questioning the statistical reliability of the testing done by the BCA.


Noble argues that the district court erred when it allowed evidence of T.H.'s sexual assault to be admitted as Spreigl evidence because the state's evidence of his identity was not weak. Alternatively, Noble argues that the evidence of his complicity in the T.H. assault was also weak, precluding its use in the present case. We disagree.

Evidence of other crimes or bad acts is inadmissible to prove the character of the accused in order to show that the accused acted in conformity therewith in the present case. State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992); Minn. R. Evid. 404(b) (1996). Such evidence, however, is admissible "'to establish motive, intent, absence of mistake or accident, identity or common scheme or plan.'" State v. DeWald, 464 N.W.2d 500, 502-03 (Minn. 1991) (quoting State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990)).

For Spreigl evidence to be admissible, the trial court must find that: (1) there is clear and convincing evidence that defendant participated in the Spreigl offense, (2) the Spreigl evidence is relevant and material to the prosecution's case, and (3) the potential for unfair prejudice outweighs the probative value of the Spreigl evidence. DeWald, 464 N.W.2d at 503.

Here, the sexual assault of E.W. and T.H. are close and can be considered "signature" crimes. This is an example of one of the few bona fide uses of Spreigl evidence. First, the identity of the defendant in this case is at issue. Second, there is clear and convincing evidence of appellant's involvement in a prior bad act that has several close characteristics. See O'Henry, A Retrieved Reformation, in Roads of Destiny (1915) (alleged safecracker Jimmy Valentine had signature method of drilling safes recognized by law enforcement as Valentine's). Here, both victims were awakened at approximately 2:00 a.m. in the morning in their Northeast Minneapolis homes to see an intruder dressed in a dark ski mask, jacket, and pants. The victims were ordered into the living room where the intruder had their clothing removed and ordered them to perform fellatio on him. In each case, the victims were then placed in the bathtub with the water running and ordered to stay there until the intruder left. Likewise, the evidence introduced at trial established that Noble would often wear dark clothing, leave his apartment late at night, and that he had ready access to latex gloves.

From the record, the evidence of Noble's participation in the assault of T.H. is clear and convincing. It is relevant and material to the state's case on the issue of identity. The district court properly admitted this Spreigl testimony as evidence of a common scheme.

Next, Noble argues that the evidence does not support his conviction for first-degree criminal sexual assault because E.W. did not have a reasonable fear of imminent great bodily harm. Thus, he argues his conviction should be reduced to third-degree criminal sexual conduct.

A reviewing court will not overturn the jury's verdict if, based on the evidence in the record and viewed in the light most favorable to the verdict, a jury could reasonably find the defendant guilty of the offense. Peterson v. State, 282 N.W.2d 878, 880 (Minn. 1979).

Pursuant to Minn. Stat. § 609.342, subd. 1(c) (1996), a person is guilty of first-degree criminal sexual conduct if the person engages in sexual penetration with another and the

circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another.

This is in contrast to third-degree criminal sexual conduct, which requires only that "the actor use[ ] force or coercion to accomplish the penetration." Minn. Stat. § 609.344, subd. 1(c) (1996).

Great bodily harm is defined as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. § 609.02, subd. 8 (1996). Although not defined by statute, the supreme court has defined imminent as, "threatening to occur immediately." Peterson v. Lang, 239 Minn. 319, 325, 58 N.W.2d 609, 613 (1953).

In a trial for first-degree criminal sexual assault pursuant to Minn. Stat. § 609.342, subd. 1(c), the complainant's fear of imminent great bodily harm must be reasonable. See State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981) (affirming defendant's conviction for first-degree criminal sexual conduct where "state's evidence established that [complainant's] fear * * * was both reasonable and justified"); State v. Zernechel, 304 N.W.2d 365, 366 (Minn. 1981) (holding that under all the circumstances, complainant's fear of imminent great bodily harm was reasonable). In determining whether the complainant had a reasonable fear of great bodily harm, the sexual assault does not require some other form of physical assault or verbal threat. State v. Smith, 333 N.W.2d 879, 880 (Minn. 1983). Rather, "we look at all the circumstances to determine if the victim was in reasonable fear of imminent great bodily harm." Id.

A reasonable fear of imminent great bodily harm has been found where, despite the absence of any threats of harm by the assailant, the victim thought she would be killed because she could identify defendant, she feared for her children's safety, she thought her one son had been injured by defendant, and she had been injured during the sexual assault. State v. Hart, 477 N.W.2d 732, 737 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).

E.W. testified that from the moment she realized that she did not know the person standing in her doorway, she thought that she was going to die. She also stated that the intruder was strong and able to overpower her quickly and that during the incident he had a firm grip on her body. E.W. also testified that when she gave the intruder a false name, he "really, really took a grip and just kind of shook."

Although Noble did not make any verbal threat to harm or kill E.W. during the assault, there is evidence in the record sufficient to allow the jury to find that E.W. had a reasonable fear of imminent great bodily harm.

After oral argument, Noble filed a motion to dismiss with this court so that he can pursue postconviction relief under Minn. Stat. ch. 590 (1996). According to the accompanying affidavit of defense counsel, internal BCA documents obtained by the defense state that the BCA believes that the agent who conducted the DNA testing in this case may have, in another unrelated case, possibly mishandled evidence by switching a tube of extracted DNA with another tube of extracted DNA in a third unrelated case. There is no specific allegation by Noble that the BCA mishandled the DNA evidence in his (this) case.

Hence, Noble's claim is only speculative. We note that the modus operandi of the charged offense and the Spreigl incident corroborate the validity of the DNA testing. This suggests that the DNA evidence, as to Noble, was not mishandled. Most importantly, resolution of the issues presented in this appeal do not prejudice Noble's ability to obtain postconviction relief if it is later established that the DNA testing done in his case was unreliable. Given the late date of the motion, the speculative nature of Noble's claim, and because the allegations in the motion to dismiss do not affect the issues presented in this appeal, Noble's motion to dismiss is denied. The trial court is affirmed on all issues.