This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-98-155

State of Minnesota,

Respondent,

vs.

Brian Lee Wilbur,

Appellant.

Filed July 7, 1998

Affirmed

Short, Judge

Hennepin County District Court

File No. 9748923

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131, and

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.

U N P U B L I S H E D O P I N I O N

SHORT, 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.

D E C I S I O N

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).

I.

Evidence that a defendant committed a prior crime is inadmissible to show character as a basis to infer that a defendant acted in conformity with that trait on a particular occasion. Minn. R. Evid. 404(b); State v. Doughman, 384 N.W.2d 450, 453 (Minn. 1986); see State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 172 (1965) (warning against "natural and inevitable tendency of the tribunal" to allow other crimes evidence to bear too strongly on present charge) (citation omitted). Such evidence is admissible, however, to establish motive, intent, or the existence of a common plan or scheme. Minn. R. Evid. 404(b); State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977). Even when offered for a proper purpose, evidence of a prior crime is admissible only if "relevant and material to the state's case." Doughman, 384 N.W.2d at 454 (quoting State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981)); see Minn. R. Evid. 402 (holding irrelevant evidence inadmissible). In determining the relevance of prior crimes evidence, courts determine the closeness of time, place, and modus operandi between the other crimes and the charged crime. State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). "[T]he closer the relationship, the greater is the relevance or probative value of the evidence and the lesser is the likelihood that the evidence will be used for an improper purpose." Id.

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.

II.

Wilbur argues the state violated his due process rights by knowingly and deliberately offering the perjured testimony of the victim and her friend. See United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397 (1976) (holding perjured testimony must be set aside if there is a reasonable likelihood that it affected jury verdict). To support this claim, Wilbur points out inconsistencies found in the statements of the victim and her friend to police, and suggests the friend had a special interest in the outcome of the trial. However, inconsistencies alone "do not necessarily constitute false testimony or a basis for reversal." State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985); see, e.g., State v. Gustafson, 379 N.W.2d 81, 85 (Minn. 1985) (concluding defendant failed to show testimony was perjured, even though there were inconsistencies in testimony). Moreover, it is the jury's role to assess inconsistencies in testimony. State v. Steinke, 292 N.W.2d 243, 244 (Minn. 1980). After a careful review of the record, we conclude there is no evidence suggesting these witnesses gave false testimony or that the state knew or should have known the witnesses intended to testify falsely at trial. See, e.g., State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (noting court has recognized conflicting testimony does not constitute false testimony or provide grounds for reversal).

III.

Wilbur finally argues he was denied his right to effective assistance of counsel by his attorney's failure to investigate relevant facts and to present available mitigating evidence. We disagree. The record shows Wilbur's counsel presented a defense, fought to exclude unfavorable evidence, and sought to introduce favorable evidence. Furthermore, Wilbur failed to demonstrate any claimed errors affected the outcome at trial. See Gates v. State, 398 N.W.2d 558, 562 (Minn. 1987) (stating defendant must show that, but for counsel's errors, result of proceeding would likely have been different). Under these circumstances, Wilbur failed to prove his counsel's performance was unreasonable and constitutionally prejudiced his defense. See Dunn v. State, 499 N.W.2d 37, 39 (Minn. 1993) (holding appellant failed to show trial counsel acted unreasonably and that she was constitutionally prejudiced).

Affirmed.