may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brian Lee Wilbur,
Hennepin County District Court
File No. 9748923
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Brian Lee Wilbur, Box 55, Stillwater, MN 55082 (pro se appellant)
Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Willis, Judge.
A jury convicted Brian Lee Wilbur of two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (1996), one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(e)(i) (1996), and one count of fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(c) (1996). On appeal, Wilbur argues the trial court erred in admitting two prior incidents of sexual misconduct as Spreigl evidence. In his pro se brief, Wilbur also argues: (1) the trial court erroneously excluded evidence; (2) the state deliberately used perjured evidence; and (3) he was denied effective assistance of counsel. We affirm.
A trial court exercises discretion in evidentiary rulings, and we will not reverse such a ruling absent an abuse of that discretion. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980); see also State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988) (placing admission of Spreigl evidence within trial court's discretion).
Wilbur argues the trial court violated his right to a fair trial by admitting other crimes evidence that was unnecessary to the state's case, and was factually dissimilar and too remote in time to have any legitimate probative value. But, absolute similarity between the charged crime and the Spreigl crime is not required by caselaw or the rules of evidence. See, e.g., State v. Crocker, 409 N.W.2d 840, 841, 843 (Minn. 1987) (holding Spreigl evidence of attempted sexual assault on fifteen-year-old step-daughter, and sexual assault of seven-year-old admissible in trial where defendant charged with raping woman). The record demonstrates: (1) in 1987, Wilbur pleaded guilty to fourth-degree criminal sexual conduct for assaulting his wife and attempting to rape his fifteen-year-old sister-in-law; (2) in 1988, Wilbur pleaded guilty to second-degree criminal sexual conduct for sexually assaulting a five-year-old neighbor girl; (3) in the 1988 offense, the victim was the sole eyewitness, no physical evidence corroborated the victim's account, and Wilbur, claiming an alibi, challenged the victim's identification of him; and (4) though there was no penetration, there was sexual contact with vulnerable victims in both prior offenses. Under these circumstances, we cannot say the trial court abused its discretion in finding the Spreigl evidence was necessary to the state's case and was more probative than prejudicial. See, e.g., State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (holding introduction of Spreigl evidence of second homicide allegedly committed by defendant proper where identity is issue and defendant presented an alibi); Crocker, 409 N.W.2d at 843 (concluding prior sexual assaults on fifteen-year-old and seven-year-old admissible where defendant charged with rape because they show relevant pattern of sexually assaultive conduct involving vulnerable individuals).
Wilbur also argues the trial court abused its discretion in excluding testimony of a police officer that he knew another "sexual deviant" was in the area at the time of the attack. However, a proper foundation must be laid for the admission of evidence suggesting another person committed the crime. See State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977) (stating proper foundation must exist "to avoid the consideration of matters collateral to the crime"). At trial, Wilbur's counsel suggested the officer would testify only to knowledge of another "sexual deviant" in the area, and would not offer any evidence connecting this third person to the attack on the victim. Moreover, no other evidence connects a third person to the crime. Given these facts, we cannot say the trial court abused its discretion in excluding this testimony.