This opinion will be unpublished and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
CX-97-2122

State of Minnesota,
Respondent,

vs.

Dale DeWayne Greer,
Appellant.

Filed August 18, 1998
Affirmed as modified
Schumacher, Judge

Ramsey County District Court
File No. K5971374

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Norton, Judge.*

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Dale DeWayne Greer challenges his convictions, arguing the trial court abused its discretion in allowing the state to introduce Spreigl evidence and erred in failing to vacate his fifth-degree assault conviction. In a pro se brief, Greer argues that he was denied effective assistance of counsel, the evidence did not support his conviction, and spousal privilege prevented his wife from testifying against him at trial. We affirm the admission of the Spreigl evidence, however, we modify Greer's fifth-degree assault conviction.

FACTS

On April 26, 1997, C.G., Greer's wife, made plans to take her daughter to the Mall of America. As the two were getting ready to go, Greer told C.G. that she could not leave the house. As a result, C.G. made arrangements to have her brother take her daughter to the mall. C.G. then went to the store to buy some groceries. When Greer noticed that she had left the house, he became angry. After C.G. returned, Greer approached her in the kitchen, started yelling at her and began threatening her and "talking crazy."

Greer was in the house yelling at C.G. when her brother drove up; he saw C.G. run out the front door and sit on the steps. When C.G.'s brother confronted Greer in the house, they got into a verbal exchange. Greer started talking about stabbing C.G. or her brother and then walked into the kitchen. He returned with a knife and started swinging it at C.G.'s brother, cutting him on the wrist.

Greer then ran out the door. C.G.'s brother ran after him because he thought that Greer was going to get a gun. On his way out, C.G.'s brother grabbed a metal broom handle and confronted Greer in the front yard. Greer was swinging the knife at C.G.'s brother, threatening to kill him. As C.G.'s brother was swinging the broom handle at Greer, Greer stabbed him in the shoulder and arm.

As a result of this altercation, Greer was charged with second-degree assault. The state filed a motion to amend the complaint to include charges of terroristic threats and fifth-degree assault. Five days before trial, the state filed a Spreigl notice informing defense counsel of its intent to use photographs, medical records, and police reports documenting a prior history of abuse by Greer. All the tangible evidence was copied and attached to the notice.

At trial, C.G. testified concerning several past incidents of abuse by Greer. To corroborate her testimony, the prosecuting attorney introduced photographs of injuries, medical records, and police reports. Defense counsel objected to the testimony, as well as the photographs, arguing relevancy and prejudicial effect. The trial court overruled the objection, admitted the evidence based on "history of the relationship," and gave a cautionary jury instruction regarding the evidence.

The jury found Greer guilty of terroristic threats, second-degree assault, and fifth-degree assault. The trial court sentenced Greer to 41 months on the terroristic threats conviction and 65 months on the second-degree assault conviction. Greer was not sentenced on the fifth-degree assault charge. The trial court acknowledged that the fifth-degree assault charge was a lesser-included offense of the terroristic threats charge, but it did not vacate the conviction. Greer appeals.

D E C I S I O N

1. Greer seeks a new trial, arguing that the Spreigl evidence is inadmissible because the state failed to comply with the procedural safeguards established to protect him from unfair prejudice. The decision to admit prior bad acts evidence rests within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997).

As a general rule, evidence of past crimes, wrongs, or acts, is inadmissible to prove an individual's character or that the individual fits a typical criminal profile. Minn. R. Evid. 404 (a), (b). This type of evidence may be admitted, however, if

(1) the evidence is clear and convincing that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state's case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.

State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991). Furthermore, Minn. R. Crim. P. 7.02 requires the prosecuting attorney to serve the defendant with written notice of any prior offenses the prosecuting attorney plans to use as evidence.

In this case, the trial court did not abuse its discretion in admitting the Spreigl evidence. The notice requirement is satisfied. The purpose of the notice requirement is to give the defendant an opportunity to prepare for trial and to avoid situations where a defendant must refute unexpected testimony regarding prior offenses. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). In this case, Greer knew that C.G. was going to be called as a witness and was forewarned that the evidence of past instances of abuse would be admitted at trial. Prior to trial, the prosecuting attorney filed a Spreigl notice and attached copies of the photographs of C.G.'s injuries, medical records, and police reports. Greer had sufficient time to prepare his defense and gather information to refute the evidence against him.

In addition, the evidence meets the clear and convincing standard. Evidence is considered clear and convincing "when the truth of the facts sought to be admitted is 'highly probable.'" State v. Shamp, 422 N.W.2d 520, 525 (Minn. App. 1988) (quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978), review denied (Minn. June 10, 1988). Corroborated testimony establishes proof of an offense by clear and convincing evidence. See State v. Kennedy, 572 N.W.2d 58, 61 (Minn. App. 1997) (holding Spreigl evidence inadmissible because evidence consisting solely of victim's uncorroborated testimony fails to meet clear and convincing standard), review granted (Minn. Feb. 19, 1998). In this case, it was not simply C.G.'s testimony that supported the past allegations of abuse by Greer. There were photographs to support her claim, medical records, and police reports. In addition to her own testimony, C.G's brother and children testified that Greer abused her. Even Greer's mother testified that the relationship between her son and C.G. was violent.

The probative value of the prior bad acts evidence is not outweighed by its prejudicial effect. A trial court lessens the danger of unfair prejudice by giving a cautionary jury instruction regarding the other crime evidence. State v. Nelson, 562 N.W.2d 324, 327 (Minn. App. 1997). In this case the court specifically instructed the jury at the time the evidence was offered, as well as in the jury instructions at the close of the trial, that the prior bad acts evidence was

admitted for the limited purpose of assisting you [jury] in determining whether the defendant [Greer] committed the crimes with which the defendant is charged in the complaint.

The defendant is not being tried for and may not be convicted of any crime other than the crimes charged in the complaint. And you are specifically instructed that you are not to convict the defendant solely on the basis of any occurrence prior to April 26, 1997.

These instructions made it clear to the jury that they were not to convict Greer on the basis of his prior bad acts. Jurors are presumed to follow those instructions. State v. James, 520 N.W.2d 399, 405 (Minn. 1994).

The evidence is also relevant to prove history of the relationship. See State v. Thompson, 520 N.W.2d 468, 471 (Minn. App. 1994) (evidence that is considered conduct occurring in course of relationship is admissible Spreigl evidence), review denied (Minn. Oct. 27, 1994). "Evidence of a defendant's assaultive conduct toward a third party related to or a close friend of the victim is generally admissible" to demonstrate a highly strained relationship. State v. Flores, 418 N.W.2d 150, 159 (Minn. 1988). The evidence was introduced to prove a strained relationship not only between Greer and C.G., but also between Greer and C.G.'s brother.

2. Greer also argues that the trial court erred in convicting him of both fifth-degree assault and terroristic threats. We agree. A defendant "may be convicted of either the crime charged or an included offense, but not both." Minn. Stat. 609.04, subd. 1(1) (1996). A lesser degree of the same crime is considered an included offense. Id., subd. 1(1). In this case, the trial court failed to vacate Greer's fifth-degree assault conviction, even though it acknowledged that fifth-degree assault is a lesser-included offense of terroristic threats. As a result, the fifth-degree assault conviction must be vacated.

3. In his pro se brief, Greer argues that his spousal privilege was violated because C.G. was allowed to testify against him in court. Spousal privilege, however, does not apply in a criminal proceeding for a crime committed by one spouse against another. Minn. Stat. 595.02, subd. 1(a) (1996). In this case, Greer is charged with terroristic threats and fifth-degree assault against his wife, C.G. As a result, the spousal privilege does not prevent her from testifying.

4. Greer's next pro se argument is that the evidence was insufficient to sustain his conviction. On review of a challenge to the sufficiency of the evidence, this court must view the evidence in the light most favorable to the verdict and determine whether the evidence was sufficient to permit the trier of fact to reach the verdict it did. State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996).

Greer supports his argument solely on the basis of inconsistent statements made by the witnesses. Still, "inconsistencies in the state's case do not require reversal if the testimony taken as a whole is consistent and credible." State v. Folkers, 562 N.W.2d 5, 9 (Minn. App. 1997), aff'd as modified, ____ N.W.2d ____ (Minn. July 9, 1998). C.G., C.G.'s brother, and C.G's two children all testified that C.G. and Greer got into a fight, C.G.'s brother intervened, Greer had a knife, he threatened C.G.'s brother and C.G. with the knife, and he stabbed C.G.'s brother. Viewing the evidence in the light most favorable to the verdict, and assuming the jury believed the state's witnesses and disbelieved any contrary evidence, the record supports the guilty verdicts.

5. Greer's final pro se argument is that he is entitled to a new trial based on ineffective assistance of counsel. In order to establish ineffective assistance of counsel Greer must first demonstrate that his representation "fell below an objective standard of reasonableness." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). Second, Greer must show that counsel's errors actually had an adverse effect and that "but for" the errors the result of the proceeding would have been different. Id.

Greer claims that defense counsel failed to raise the issue of spousal privilege to prevent his wife from testifying. As previously stated, however, the protection of spousal privilege does not apply in domestic abuse cases where the crime is committed against one of the spouses. Minn. Stat. 595.02 subd. 1(a).

Greer claims defense counsel failed to subpoena certain witnesses for the defense. "Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel." State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986)). Greer fails to provide this court with any insight as to what these particular witnesses would have testified. This court will not pass judgment on counsel's trial tactics when it is not clear that these witnesses' statements would have affected the outcome of the trial.

Finally, Greer takes issue with the fact that defense counsel failed to recall C.G. to the stand in light of a witness's statement, "which implied that [C.G.] admitted that she in fact was the one who cut [C.G.'s brother]." This statement, however, is a mischaracterization of the witness's testimony. Furthermore, defense counsel effectively cross-examined C.G. in an attempt to discredit her testimony. There was no need to recall C.G. to the stand.

Affirmed as modified.

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