This opinion will be unpublished and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
C5-97-1895

State of Minnesota,
Respondent,

vs.

Jeffrey Lynn Porter,
Appellant.

Filed September 1, 1998
Affirmed
Lansing, Judge

Faribault County District Court
File No. K697638

Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Joel Welder, Faribault County Attorney, 125 North Main Street, Blue Earth, MN 56013 (for respondent)

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

Considered and decided by Lansing, Presiding Judge, Norton, Judge,* and Schultz, Judge.**

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In an appeal from conviction for two counts of first degree criminal sexual conduct, Jeffrey Porter challenges the sufficiency of the evidence to establish the significant-relationship element of the charge, the admissibility of his statements to police, the admissibility of Spreigl evidence, and the propriety of the prosecutor's closing argument. The record supports the district court's rulings and contains ample evidence to support Porter's convictions. We affirm.

FACTS

A jury convicted Jeffrey Porter of two counts of first degree criminal sexual conduct: one count of sexual penetration with A.M.H., a child under the age of 16 with whom defendant had a significant relationship at the time of the sexual penetration, Minn. Stat.  609.342, subd. 1(g) (1996), and one count of multiple acts of sexual penetration over an extended period of time with A.M.H., a child under the age of 16 with whom defendant had a significant relationship. Minn. Stat.   609.342, subd. 1(h)(iii) (1996).

Porter met A.M.H. through another juvenile, A.J.H. A.J.H. and his father lived at Porter's house during the summer of 1996. Porter befriended A.M.H. and permitted him to work with him in his job as a handyman and to stay at his house "almost every night" during the summer of 1996. A.M.H.'s mother approved of the arrangement because A.M.H. did not have a relationship with his own father and she thought Porter would be a positive role model. A.M.H. was experiencing problems with alcohol and marijuana use, as well as intrafamily problems. During the time he lived at Porter's house, Porter supplied A.M.H. with marijuana and alcohol.

In December 1996 A.M.H. entered a treatment program for his alcohol and marijuana use. While in treatment, he disclosed that he had been sexually assaulted and penetrated by Porter repeatedly from June 1996 to November 1996.

In January, police interviewed A.M.H. at the treatment center and then interviewed Porter at Porter's home. Porter consented to a taped interview. At the conclusion of the interview, Porter was arrested. He was formally charged two days later.

At the omnibus hearing, Porter moved to suppress his statements to the police. Immediately prior to the hearing, A.M.H.'s friend, A.J.H., who was also under 16, reported that he had been sexually abused by Porter. The state moved to amend the complaint to charge Porter with additional counts of first degree criminal sexual conduct for his sexual abuse of A.J.H. The district court denied Porter's suppression motion and also denied the state's motion to amend the complaint. But the court ruled that the state could introduce the additional acts against A.J.H. as Spreigl evidence.

After the jury returned a guilty verdict on both counts, the district court ruled that the counts involved the same behavioral conduct and sentenced Porter only on the first count. Porter moved for a new trial or, in the alternative, to vacate the judgment. The district court denied the motion, and Porter appeals.

D E C I S I O N

Four separate issues are raised on appeal. We address serially (1) whether the evidence is sufficient to establish that Porter had a significant relationship with A.M.H.; (2) whether the district court erred in denying Porter's motion to suppress his statement to police; (3) whether the district court erred in allowing Spreigl evidence on Porter's abuse of A.J.H.; and (4) whether the prosecutor committed misconduct in his closing argument.

I

To convict a defendant of criminal sexual conduct in the first degree under Minn. Stat. 609.342, subds. 1(g) and 1(h)(iii), the state must prove the defendant had a "significant relationship" with the victim. The term "significant relationship" is defined in part as a situation in which the actor is "an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant's spouse." Minn. Stat. 609.341, subd. 15(3) (1996).

Porter alleges the legislature intended Minn. Stat. 609.341, subd. 15(3), to apply only when the actor and the complainant are members of the same family unit but not related by blood or marriage. Porter's argument was previously rejected by this court in State v. Sebasky, 547 N.W.2d 93 (Minn. App. 1996), review denied (Minn. June 19, 1996). Although Porter argues that we should overrule Sebasky, the Sebasky analysis follows the language of the statute stating that a significant relationship exists when the actor resides intermittently or regularly in the same dwelling as the complainant. Compare id. at 100 with Minn. Stat. 609.341, subd. 15(3) (defining "significant relationship"). When a statute is free from ambiguity "the letter of the law shall not be disregarded under the pretext of pursuing the spirit." Minn. Stat.  645.16 (1996).

II

When the police interviewed Porter at his home, they did not advise Porter of a right to have an attorney present. See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630 (1966) (Miranda warning required before custodial interrogation). Porter challenges the district court's ruling that because the interview was noncustodial, a Miranda warning was not required.

An interrogation is custodial when there has been a significant deprivation of the person's freedom of action. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977). The test is an objective test that asks whether a reasonable person in the same position as the suspect would have understood that he or she was in custody. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984). A police officer's "unarticulated decision not to let the suspect leave at the end of the interrogation has no bearing on the question of whether a suspect was in custody." State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995).

Porter was interviewed in his home. He invited the officers in and agreed to let them interview him on tape. The transcript of the interview discloses no forceful or intimidating questioning, and Porter's responses are consistent with a belief that the interview was not custodial. For instance, at one point Porter asked if the officers had a formal complaint and, when they told him that they did not, Porter told them that if they wanted to bring one back or asked him to come to court he would do so. Nothing in the transcript indicates that Porter was in custody or believed he was in custody. The district court did not err in finding that the statement was noncustodial.

III

Evidence of other crimes, wrongs, or "bad acts" is not admissible to prove the defendant's character or to show he acted in conformity therewith in the present case. Minn. R. Evid. 404(b). But such evidence "may be admitted to establish motive, intent, absence of mistake or accident, identity or common scheme or plan." State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990) (citing Stae v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965)).

This evidence of prior bad acts and previous crimes is commonly known as Spreigl evidence. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). The decision to admit Spreigl evidence rests within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Drieman, 457 N.W.2d 703, 709 (Minn. 1990). When the admissibility of Spreigl evidence is not clear, the accused must receive the benefit of the doubt and the evidence must be rejected. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

To admit Spreigl evidence, the district court must find:

(1) that the evidence is clear and convincing that the defendant participated in the Spreigl offense (2) that the Spreigl evidence is relevant and material to the state's case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

Id. (citations omitted).

At the time the evidence is offered, the state must specify the exception to the general exclusionary rule under which the evidence is admissible. See State v. Billstrom, 276 Minn. 174, 178, 149 N.W.2d 281, 284 (1967). Moreover, the state must identify the precise issue on which the Spreigl issue is relevant and then demonstrate that its proof on that issue is weak. See id. at 178-79; 149 N.W.2d at 284-85.

At trial, A.J.H. testified that Porter had abused him both before and after Porter's alleged abuse of A.M.H. He testified that Porter would consume drugs and alcohol with him. He and Porter would then engage in oral and anal sex on a mattress in the living room. The state offered this evidence to show a number of similarities between those acts of abuse and the charged offenses with A.M.H., including: (1) the acts were closely related in time and occurred in exactly the same place--a mattress in Porter's living room; (2) both victims were of the same sex and of similar age; (3) each victim was entrusted to Porter's care by a parent; (4) the type of sexual contact was identical; and (5) the sexual encounters with each victim involved the victim's use of marijuana and, in some cases, alcohol.

We find the district court properly admitted the Spreigl evidence. First, the testimony of the victim, in this case A.J.H., is legally sufficient to satisfy the clear and convincing standard. See Moorman, 505 N.W.2d at 602 (when defendant's identity not in question, victim's testimony on defendant's prior bad act provided clear and convincing evidence of Spreigl incident offered to show common scheme). Second, the relevance or materiality of the evidence is undisputed. Third, the probative value of the evidence is not outweighed by its prejudicial effect. The critical inquiry is whether the state's case is weak on the precise issue for which the evidence is offered. See State v. Kennedy, 572 N.W.2d 58, 63 (Minn. App. 1997) review granted (Minn. Feb. 19, 1998). Here, the state did not have any direct witnesses or physical evidence to support A.M.H.'s claim that Porter had sexually penetrated him. A.J.H.'s testimony of similar abuse was relevant to this critical issue, as well as to Porter's preparation, planning and modus operandi, which involved befriending juvenile males, providing them with drugs and alcohol, and then sexually assaulting them. The evidence was particularly crucial because A.M.H. made several inconsistent statements, first denying the abuse, then disclosing the abuse but changing his allegations as to its nature and frequency. See State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (admission of prior bad act evidence "should be proper at least where the corpus delicti truly is in issue and where the trial court is satisfied that the other crime is sufficiently relevant to the charged crime").

IV

A district court's decision to deny a motion for a new trial based on prosecutorial misconduct will not be reversed unless "the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied." State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). Even when misconduct has been established, the defendant is not entitled to a new trial if it is certain that the misconduct is "harmless beyond a reasonable doubt." State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).

Porter argues, and the state concedes, that the prosecutor committed misconduct during his closing argument by stating that no evidence was offered to contradict the testimony of A.J.H. and A.M.H. See State v. Bettin, 309 Minn. 578, 579, 244 N.W.2d 652, 654 (1976) ("prosecutors should avoid using the word 'uncontradicted' when referring to the state's evidence"). But the improper statement constituted only one sentence from a lengthy closing argument, and the statement, although improper, was not serious misconduct. Defense counsel objected to the comment, the court gave the jury a cautionary instruction, and the prosecutor apologized and stated that the state had the burden of proof. On these facts, the prosecutor's misconduct was harmless.

Porter also filed a pro se brief and a pro se reply brief. Porter first argues the evidence is not sufficient to prove his guilt beyond a reasonable doubt. We disagree. The state's case included testimony from Porter's alleged victim, A.M.H. Viewing this testimony in the light most favorable to the prosecution, and assuming the jury believed A.M.H. and disbelieved any contradictory evidence, we find the evidence sufficient to prove Porter's guilty beyond a reasonable doubt. See State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994) (standard of review for challenge to sufficiency of evidence); State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (same); see also State v. Bias, 419 N.W. 2d 480, 484 (Minn. 1988) (credibility of witnesses is for the jury to determine) (citations omitted); Minn. Stat. 609.347, subd. 1 (1996) (victim's testimony need not be corroborated in prosecution for criminal sexual conduct under Minn. Stat.  609.342).

Porter's second charge--that he was denied a fair trial because certain confidential information about the victim's prior statements during treatment was not disclosed by the court until shortly before trial--also lacks merit. After Porter moved for disclosure of the victim's confidential treatment records, the court conducted an in camera review and disclosed certain "exculpatory" material to Porter. Because Porter did not move for a continuance, his complaint about the timing of the disclosure is deemed waived for the purposes of this appeal. Moreover, the record indicates that Porter was able to make full use of this material during his cross-examination of the victim at trial.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 2.

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