This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Richard Ernest Backley, Jr.,


Filed January 13, 1998


Foley, Judge**

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

Hennepin County District Court

File No. 96087739

David T. Redburn, Suite 204, 7714 Brooklyn Boulevard, Brooklyn Park, MN 55443 (for appellant)

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

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

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.


FOLEY, Judge

This appeal is from a conviction for second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(g) (1994). Appellant Richard Backley, Jr., argues that the trial court abused its discretion in limiting defense evidence and in admitting Spreigl evidence, and that the prosecutor committed prejudicial misconduct. We affirm.


Backley was charged with having sexual contact with his cousin, 13-year-old M.C., in late June of 1996. Backley, M.C., and several other family members and friends fell asleep watching television. M.C. testified that Backley woke her up sometime after midnight, and asked for a backrub, which she reluctantly gave him. He then reached under her shirt and touched her breasts, and then reached in her shorts and touched her vagina.

M.C. did not report the sexual contact, but her older sister, A.C., noticed that she was acting strangely. When she asked M.C. if anything was wrong, M.C. told her what Backley had done. M.C. eventually told her mother, who did not at first report the incident to police, but instead confronted her sister, Backley's mother, and told her that Backley needed help.

The defense theory at trial was that M.C.'s mother was a very controlling parent and had manipulated both M.C. and A.C. into making the allegations. The defense theorized that the mother had done so because she had been turned down by family members when she asked for money, and because she wanted attention and felt isolated from the other family members. The defense filed a pretrial motion for adverse psychological examinations of both M.C. and her mother, but this motion was denied.

The trial court allowed the state to present Spreigl evidence that Backley had sexual contact with A.C. when she was about the same age as M.C. The court, however, ruled inadmissible Spreigl evidence of a similar offense against another sister.

The trial court ruled that the defense could not present expert testimony concerning the likelihood that M.C.'s mother manipulated her into making the sexual misconduct charges. The court also limited the evidence the defense could present concerning the mother's financial situation and excluded any evidence of her claim that she herself had been raped 23 years earlier. The court allowed M.C.'s grandmother and aunt to testify about M.C.'s mother's requests for loans and about a $7,000 certificate of deposit (CD) she had improperly cashed.



Backley argues that the trial court abused its discretion in limiting the evidence he was allowed to present to support his theory that M.C.'s mother manipulated her and A.C. into alleging sexual contact.

Evidentiary rulings lie in the discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Jones, 500 N.W.2d 492, 494 (Minn. App. 1993), review denied (Minn. June 9, 1993). Backley argues that he was denied his due process right to present a defense and his right of confrontation when the trial court limited the scope of the defense evidence and cross-examination on the subject of the mother's alleged manipulation of her children.

A defendant's cross-examination exploring "a prototypical form of [alleged] bias on the part of the witness" may not constitutionally be limited. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436 (1986). Backley's theory of the mother's manipulation, however, was not a simple, "prototypical" claim of witness bias, such as the alleged "deal" with police improperly excluded in Van Arsdall. Rather, it was an elaborate theory of manipulation relying on collateral events that he sought to prove by extrinsic evidence. Moreover, the trial court did not completely limit even this expansive theory, but only prevented the defense from introducing the most prejudicial and potentially confusing evidence offered in support of it.

A defendant's constitutional right to present evidence is limited by the rules of evidence. State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). The suggestion that M.C.'s mother claimed to have been raped 23 years earlier was of doubtful relevance and extremely remote. The excluded financial evidence was cumulative given the questioning about the $7,000 CD and the loan requests that the trial court did allow. The trial court did not clearly abuse its discretion in limiting defense evidence.


Backley argues that the trial court abused its discretion in admitting Spreigl evidence concerning Backley's sexual contact with A.C. when she was 13 or 14, approximately five or six years before the charged offense. Admission of Spreigl evidence lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

The Spreigl evidence was, as the trial court found, highly probative because it involved very similar conduct occurring in the same house, and under similar circumstances as the charged offense and against the sister of the victim of the charged offense, when she was the victim's age or nearly the same age. Only the time, an interval of about four years, was different. Absolute similarity, however, between the Spreigl and the charged offense has never been required. Id. The trial court did not clearly abuse its discretion in admitting the Spreigl evidence.


Backley argues that the prosecutor committed prejudicial misconduct in closing argument when she argued that the jury could infer sexual intent from the facts of the incident. Backley contends that this argument violated the supreme court's holding in State v. Tibbetts, 281 N.W.2d 499, 500-01 (Minn. 1979) that an instruction that a jury can convict if a touching "could reasonably be construed" as having a sexual intent was improper. We disagree.

In discussing the element of sexual intent, the prosecutor stated in her closing argument:

I think kind of by virtue of incident body parts there are some inferences that you can draw about what people are doing --

* * * *

* * * I don't believe that you can look at this case * * * and say, oh, but we don't know what his intent was, because that is something you as reasonable people can infer from the entire contents[sic].

Defense counsel objected twice to this argument but the trial court overruled his objections.

The prosecutor's argument was not an instruction on the law. Nor did it purport to describe the state's burden of proof, as did the instruction in Tibbetts. Intent must generally be inferred from the circumstances of the defendant's act. See State v. Obasi, 427 N.W.2d 736, 738 (Minn. App. 1988) (intent is subjective state of mind established by reasonable inferences from surrounding circumstances). The prosecutor was doing no more than arguing that the circumstances of Backley's act excluded any reasonable inference of a nonsexual intent. The prosecutor gave some hypothetical alternative explanations for the act (medical care, searching for keys) that, although farcical, were at least intended to draw the jury's attention to the facts and the logical inferences to be drawn from them, and not to the legal issue of the appropriate standard of proof. The prosecutor did not commit prejudicial error.