This opinion will be unpublished and

may not be cited except as provided by

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




Timothy Donald Anderson,




State of Minnesota,


Filed May 5, 1998


Foley, Judge**

Isanti County District Court

File No. K6-95-681

Harlan Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)

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

Jeffrey Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Foley, Judge.

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


FOLEY, Judge

Appellant challenges the postconviction court's summary denial of postconviction relief, arguing that he was entitled to an evidentiary hearing, and also contends the district court abused its discretion in admitting prior bad act evidence at trial. We affirm.


Appellant Timothy Donald Anderson was charged with third-degree controlled substance possession after he signed for a package in the mail that contained cocaine. One week before trial, the prosecution learned of witness Cheryl Russell, and notified defense counsel of her proposed testimony. Russell was to testify that in May 1995, one month before the offense, Anderson told her he received his drugs through the mail. Over defense counsel's objection, the trial court allowed her testimony, finding it helpful because there had not yet been evidence on the element of intent or knowingly receiving the controlled substance. The court gave a Spreigl curative instruction to the jury, stating that it was not to convict the defendant based on any events that may have happened in May 1995, and the evidence was to be considered only in the context of the charged crime. A jury convicted Anderson as charged.

Anderson's initial appeal was dismissed at his request so that he could pursue postconviction relief. Anderson filed a postconviction petition alleging ineffective assistance of trial counsel. The postconviction court denied Anderson's petition without an evidentiary hearing. This appeal followed.


I. Denial of Hearing

This court reviews a postconviction proceeding to determine only whether there is sufficient evidence to sustain the postconviction court's findings. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). This court will not reverse a postconviction court's findings absent abuse of discretion. Id.

Anderson argues that he was entitled to an evidentiary hearing on his petition for postconviction relief, claiming the existence of factual disputes regarding Russell's alleged deal with the prosecution and the prosecution's withholding of notice of Russell's testimony.

An evidentiary hearing upon a petition for postconviction relief is not required unless the petitioner alleges such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief. The allegations raised in the petition must be "more than argumentative assertions without factual support."

Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) (citations omitted) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).

Anderson argues that he is entitled to a hearing as a matter of right because he alleged facts that, if true, would warrant a hearing. He provided no factual support for his allegations. This is precisely the type of argumentative assertion that does not entitle a petitioner to an evidentiary hearing. See Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (concluding that allegations unsupported by facts did not warrant hearing), review denied (Minn. May 18, 1987). There is no evidence that the prosecution made a deal with Russell or withheld notice of her testimony. In fact, there is evidence that the prosecutor gave defense counsel notice of Russell's testimony the same day that the prosecution received it. In addition, Anderson does not explain how his allegations would support his claim of ineffective assistance of counsel.

The postconviction court did not abuse its discretion in dismissing Anderson's petition without a hearing. Anderson's petition contained unsupported allegations and no evidence of a factual dispute that would require a hearing.

II. Prior Bad Acts

"This court will not reverse a trial court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown." State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). Spreigl evidence is admissible to show "motive, intent, absence of mistake or accident, identity or common scheme or plan." State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990); see also Minn. R. Evid. 404(b) (admissibility of evidence of other crimes).

Anderson argues that the trial court abused its discretion by allowing Russell's testimony regarding Anderson's statements to her that "he receives his controlled substances through the mail from Florida." He argues that the state's evidence on intent was not weak, and, therefore, Russell's testimony should not have been permitted under Spreigl. To admit Spreigl evidence, the state must show that the evidence on the issue in question is weak or inadequate. State v. Stagg, 342 N.W.2d 124, 127 (Minn. 1984). Anderson claims that the state's evidence on intent was strong because he had been "watched by the police as he committed the crime." But the fact that the police saw Anderson sign for the package does not show that Anderson intended to receive a controlled substance. The district court found that there had been no evidence on intent before Russell testified. Russell's testimony put the conduct in context and supported the state's case that Anderson intended to receive controlled substances.

The district court did not abuse its discretion by permitting Russell's testimony.