This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Stephen Warren Johnson,


Filed September 8, 1998


Davies, Judge

Anoka County District Court

File No. K0978541

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

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Sara L. Martin, Certified Student Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for respondent)

Bradford Colbert, Assistant State Public Defender, 875 Summit Ave., Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Davies, Judge.



Appellant challenges his conviction for terroristic threats, arguing that he received ineffective assistance of counsel, and asserting that the trial court improperly admitted Spreigl evidence and prohibited defense counsel from cross-examining the victim about his mental illness. We affirm.


During a visit in late June 1997, appellant Stephen Warren Johnson left several items of personal property at the home of A.W. Appellant later called A.W. about returning the property; A.W., who did not drive, told appellant he would have to retrieve the things himself.

On July 19, 1997, at about 2:20 a.m., appellant again telephoned A.W., telling him he was coming to get his things and threatening to kill A.W., his mother, his sister, and anyone else in the house. A.W. immediately alerted the police. Shortly thereafter, A.W. received another call from appellant, who again threatened to kill A.W. and his family.

When appellant actually arrived at A.W.'s home at about 4:00 a.m., A.W. called the police. Police Officer John Burch, who responded to the call, found appellant hiding under a tree near the house and arrested him. During a pat-down search, Burch discovered a toy gun.

The jury found appellant guilty of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1. The trial court sentenced appellant to 18 months but stayed execution of the sentence. The court also fined appellant $10,000 but stayed all but $500 of the fine. This appeal follows.


I. Ineffective Assistance of Counsel

The Sixth Amendment right to counsel includes "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981); see also Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984) ("Representation of a criminal defendant entails certain basic duties" including "a duty to avoid conflicts of interest.").

Appellant argues that his trial counsel was ineffective because she had previously represented A.W. and therefore had a conflict of interest. Appellant contends that the trial court made no inquiry into the possible conflict and that his conviction must be automatically reversed.

[If] a defendant makes a timely conflict of interest objection and the trial court fails to adequately inquire into the possibility of conflict, a defendant demonstrates ineffective assistance of counsel without a showing of actual conflict of interest. In this instance, prejudice to the defendant is presumed and reversal of the defendant's conviction is automatic.

United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (citations omitted).

In Cooper v. State, this court determined that the trial court had fulfilled its inquiry obligation by learning:

(1) a law partner of Cooper's attorney had represented the victim's mother; (2) the representation involved a dissolution action, which bore no relation to the present criminal case; (3) the dissolution action was complete; and (4) Cooper's attorney did not believe an impermissible conflict existed.

Cooper, 565 N.W.2d 27, 32 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Here, the trial court made its determination that no impermissible conflict occurred after learning: (1) appellant's counsel had previously represented the victim; (2) the prior action was not related to the present case; (3) the representation was finished; and (4) appellant's counsel and her supervisor did not believe a conflict existed.

The trial court made a sufficient inquiry into whether appellant's trial counsel had a conflict of interest. And appellant has not demonstrated a prejudgment conflict, arguing only that a conflict of interest prevented his counsel from rigorously cross-examining A.W. Such vague and unsupported allegations are not sufficient to show that counsel had a conflict of interest that adversely affected the representation. Cooper, 565 N.W.2d at 33. The trial court did not err in determining there was no conflict of interest that denied appellant effective assistance of counsel.

II. Admission of Spreigl Evidence

At trial, a witness testified that she received two threatening telephone calls from appellant in February 1996 and that, during both calls, appellant said he was going to "bring his guns" and "bust into [her] house" and kill her, her husband and children, her mother, and "everybody else in town." The witness described appellant's voice as "very angry, very threatening." Appellant argues that the trial court improperly allowed the state to introduce evidence of these two prior threatening telephone calls.

Evidence of other crimes in not admissible to prove character or to show action in conformity with such character. Minn. R. Evid. 404(b). But evidence of other crimes is admissible "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).

To admit evidence of other crimes, or Spreigl evidence, the trial court must find:

(1) that the evidence is clear and convincing that 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.

State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). The decision to admit Spreigl evidence rests within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991).

Here, the trial court admitted the Spreigl evidence to establish appellant's intent, plan, motive, knowledge, and common scheme. Because appellant was charged and convicted in connection with the Spreigl offense, there was clear and convincing evidence that appellant participated in the previous terroristic threat. Further, the victim herself testified as to the threats.

Absolute similarity between the charged crime and the Spreigl offense is not required. DeWald, 464 N.W.2d at 503. In deciding relevance, the trial court should focus on how similar the prior and charged crimes are in terms of time, place, and modus operandi. State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). The closer the relationship, the greater the relevance, and the less likely that the evidence will be used for an improper purpose. Id. Here, differences between the two crimes were slight. In both instances, the terroristic threats were made by telephone, both victims testified that appellant was very angry, both stated that appellant had threatened to kill not only them but others in the home, and both threats involved breaking into the home and the use of guns. Only one and a half years had passed between the two events.

Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Minn. R. Evid. 403. Here, the only direct evidence of appellant's intent to terrorize A.W. was A.W.'s testimony. But A.W.'s credibility had been challenged by the admission of seven prior felony convictions and one misdemeanor conviction (lying to a police officer). The Spreigl evidence was therefore needed on the issue of intent, where the state's case was not strong.

The trial court limited testimony about the Spreigl offense to "common threads between the two cases." In addition, the court gave a limiting instruction to the jury, both at the time the evidence was offered and at the close of the trial. See Slowinski, 450 N.W.2d at 114-15 (trial court may lessen danger of unfair prejudice by giving cautionary instructions to jury). Under these circumstances, the prejudicial effect of other crime testimony did not outweigh its probative value. The trial court did not abuse its discretion in admitting the Spreigl evidence.[1]

III. Cross-Examination of Witness

"The manner and scope of cross-examination, which generally should be wide-ranging, rests within the discretion of the trial court." State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984). An appellate court will not reverse the trial court's decision absent an abuse of that discretion. Id.

Appellant argues that he should have been allowed to introduce evidence of A.W.'s mental illness as a means of attacking his credibility. But there is nothing in the record to indicate that A.W. was mentally ill at the time of appellant's threats or when testifying at trial. The evidence that A.W. had, at some earlier date, been diagnosed as mentally ill was irrelevant. The trial court did not err in excluding evidence of A.W.'s prior mental illness.


[1] Appellant also argues that the trial court erred by refusing to allow him to introduce evidence that he was mentally ill at the time of the Spreigl offense. Whether appellant was mentally ill at the time of the prior offense is not relevant, however, to whether he made the threatening call. There was no error.