This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Leon John Budke,


Filed June 9, 1998


Short, Judge

Otter Tail County District Court

File No. K0961131, K1962109

Hubert H. Humphrey III, Attorney General, Jon C. Audette, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

David J. Hauser, Otter Tail County Attorney, Barbara R. Hanson, Assistant County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)

Douglas W. Thomson, Suite W-1260 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Toussaint, Chief Judge, Short, Judge, and Norton, Judge.[*]


SHORT, Judge

A jury convicted Leon John Budke of two counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subds. 1(a), (g) (1996). On appeal, Budke argues the trial court abused its discretion in admitting certain evidence. We affirm.


Rulings on evidentiary matters rest within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. State v. Naylor, 474 N.W.2d 314, 317 (Minn. 1991); see also State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988) (placing admission of Spreigl evidence within trial court's discretion). On appeal, the defendant must prove the trial court abused its discretion in admitting prejudicial evidence. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993).

Budke argues the trial court abused its discretion in allowing the state to cross-examine witnesses about Budke's alleged adultery because the state failed to notify defense counsel of its intent to ask questions on that issue, the prosecutor had no good-faith factual basis to support those questions, and the prejudicial nature of the testimony denied him a fair trial. See Minn. R. Evid. 608(b) (permitting impeachment by showing commission of act demonstrating dishonest character, even if that act is not crime); State v. Fallin, 540 N.W.2d 518, 522 (Minn. 1995) (stating prosecutor in criminal case generally may only cross-examine defendant or defense witnesses on prior misconduct if prosecutor gives defense notice of intent to cross-examine, provides trial court with sufficient evidentiary support to justify the cross-examination, and prosecutor establishes probative value outweighs unfair prejudice). However, it is undisputed: (1) the defense called several character witnesses who testified to Budke's honesty, truthfulness, and good character; (2) on cross-examination, the state asked three of those witnesses a narrow question about whether their opinions of Budke would change if they knew Budke's eldest child was conceived when his current wife was married to another man and Budke was living in that couple's home; (3) the child conceived during Mrs. Budke's former marriage bears Budke's name; (4) all three witnesses stated the adultery would not affect their opinion of Budke; (5) the prosecutor established sufficient foundation to support these limited cross-examination questions, and did not offer the jury further evidence of the adultery; and (6) in his closing statement, defense counsel used the testimony about Budke's adultery to cast doubt on the motivation of one of the victims, E.A., who is the child of Budke's wife and her former husband. Given these facts, the defense counsel opened the door to the introduction of character testimony and the prosecutor's questions did not involve baseless insinuations or surprise. See State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997) (stating if defense counsel specifically inquires whether a criminal act is out of the accused's character, the door is opened to the introduction of character testimony); cf. Fallin, 540 N.W.2d at 521 (cautioning that the prosecutor should not use surprise and should not make insinuations on cross-examination that are not supported by admissible evidence). Under these circumstances, the trial court did not abuse its discretion in permitting the state's impeachment questions. See State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973) (stating state may not attempt to establish defendant's bad character until defendant has put the topic in issue by offering evidence of good character).

Budke also argues the trial court improperly admitted Spreigl evidence because the state failed to satisfy the requirements for the introduction of such evidence. See State v. Spreigl, 272 Minn. 488, 496-97, 139 N.W.2d 167, 173 (1965) (holding evidence of prior crimes or bad acts not admissible unless state gives notice to defendant within reasonable time before trial of its intention to use evidence). Evidence of other bad acts is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident if those acts are proven by clear and convincing evidence. Minn. R. Evid. 404(b). Such evidence is admissible when direct and circumstantial evidence on the issue in question is weak or inadequate. State v. Stagg, 342 N.W.2d 124, 127 (Minn. 1984). The record demonstrates: (1) prior to trial, the state properly notified Budke of its intent to offer the Spreigl evidence on the issue of common scheme or plan; (2) the only "witnesses" to the crimes were the child victims; (3) in response to police questioning, Budke acknowledged putting K.F. to bed, but denied touching her in a sexual manner; (4) E.A. identified Budke as the perpetrator, despite being reluctant to testify because she was afraid of hurting her family and she had forgiven Budke; and (5) Budke denied both abuse allegations. Under these circumstances, the trial court did not abuse its discretion in admitting the Spreigl evidence. See, e.g., Moorman, 505 N.W.2d at 602 (concluding Spreigl evidence established by clear and convincing evidence where victim identified defendant); State v. Wermerskirchen, 497 N.W.2d 235, 240-43 (Minn. 1993) (reviewing particular evidentiary concerns in child sexual abuse cases and concluding prosecutor's use of other-crime evidence was relevant to show defendant's intent and commission of crime); State v. Landin, 472 N.W.2d 854, 860 (Minn. 1991) (concluding lack of eyewitnesses and lack of physical evidence incriminating defendant constituted weak evidence for Spreigl purposes).


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