This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Michael DaWayne Perseke,


Filed May 18, 1999


Klaphake, Judge

Chippewa County District Court

File No. K4-98-2

Mike Hatch, Attorney General, John Docherty, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Dwayne Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 591, Montevideo, MN 56265 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.



Appellant Michael DaWayne Perseke challenges his criminal conviction for first-degree burglary and fourth-degree criminal sexual conduct under Minn. Stat. §§ 609.582, subd. 1(a), (c) (1996) and 609.345, subd. 1(d) (1996). He claims the trial court violated his constitutional right to be free from unreasonable searches and seizures by refusing to suppress a jacket that police confiscated from his mother's home and abused its discretion in admitting Spreigl evidence concerning two prior sexual misconduct incidents. We affirm because we conclude (1) that the search that resulted in discovery of the jacket was within the scope of consent granted by appellant's mother and (2) the trial court properly admitted the Spreigl evidence to prove plan and identity.


Scope of Search

The Fourth Amendment of the United States Constitution and article I of the Minnesota Constitution prohibit the government's unreasonable search and seizure of "persons, houses, papers, and effects." U.S. Const. amend. IV; Minn. Const. art. I, sec. 10. While police generally may not enter and search a suspect's house without a warrant, they may do so if they have consent. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980); Katz v. United States, 389 U.S. 358, n.22, 88 S. Ct. 507, 515, n.22 (1967); State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).

Appellant claims that the trial court erred in declining to suppress his jacket because the seizure exceeded the consent to enter granted by his mother. When Officer John Nuernberg of the Montevideo Police Department came to appellant's mother's house to interview appellant on the day of the offense, Officer Nuernberg told her that he wished to speak with appellant. Appellant's mother implicitly gave her consent to search when she responded to the officer's request by holding the door open for him to enter her home. See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974) (third party who possesses common authority over premises may give consent to search); State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) ("petitioner's act of opening the inner door completely and then stepping back as if to make room for the officers to enter * * * constitut[ed] limited consent to enter").

Appellant claims that Officer Nuernberg exceeded the scope of that consent when, after telling appellant to get dressed, he followed appellant into the basement. Even after a valid consent, "the police contact is limited by the scope of the consent given." State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998). Because "physical entry of the home" is the "principal evil" the Fourth Amendment seeks to prohibit, once Officer Nuernberg had permission to enter the house, his actions thereafter did not go beyond his purpose--to speak with appellant. Id. at 741. Additionally, the record does not show that appellant objected to Officer Nuernberg following him down the steps, and his failure to rebuff Officer Nuernberg could be viewed as tacit consent to continue or enlarge the search. See State v. Powell, 357 N.W.2d 146, 149 (Minn. App. 1984) (continuing voluntary cooperation with police demonstrates consent), review denied (Minn. Jan. 15, 1985). Under the totality of the circumstances, we conclude that the trial court did not err in determining that Officer Nuernberg's search of appellant's home was within the scope of his consent. See Howard, 373 N.W.2d at 599 (consent to be determined by trial court based on all relevant circumstances).

Spreigl Evidence

Evidence of crimes is inadmissible to prove the defendant's character or that the defendant acted in conformity with that character. Minn. R. Evid. 404(b); see State v. Spreigl, 272 Minn. 488, 493, 139 N.W.2d 167, 170-71 (1965). Such evidence is admissible, however, to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Minn. R. Evid. 404(b).

At trial, over defense counsel's objection, the court allowed the jury to hear Spreigl testimony from two female witnesses, S.L. and J.H. S.L. testified that in the summer of 1992, when she had gone to bed drunk during a party which appellant attended at her home, she awoke to find appellant on top of her with his pants pulled down to his knees and her underwear pulled down. J.H. testified that in October 1992, after attending a party which appellant also attended, she returned drunk to a friend's house. She woke up naked and found appellant, also naked, sexually penetrating her. Appellant was convicted of third-degree criminal sexual conduct for the incident involving J.H.

The trial court properly admitted the Spreigl evidence to show plan or identity. As to plan, the Spreigl testimony provided evidence strikingly similar to the charged offense: here, appellant returned to the site of a New Year's Eve party that had ended hours before, entered the home uninvited, and groped the sleeping victim, who had been drinking. The facts surrounding appellant's prior acts establish a plan to commit the present offense. See State v. Spaeth, 552 N.W.2d 187, 195 (Minn. 1996) (evidence of prior burglaries admitted in burglary case to show modus operandi); State v. Sebasky, 547 N.W.2d 93, 97-98 (Minn. App. 1996) (evidence of prior sexual conduct admitted in sexual conduct case to show modus operandi), review denied (Minn. June 19, 1996).

The Spreigl evidence was also admissible to show identity. Appellant contends that identity was established by the victim's eyewitness testimony. Because appellant claimed an alibi defense, however, he placed identity in issue. See Spaeth, 552 N.W.2d at 195 (affirming admission of Spreigl evidence to establish identity where defendant provided innocent explanation for his presence near crime scene); State v. Wermerskirchen, 497 N.W.2d 235, 241-42 (Minn. 1993) (affirming admission of Spreigl evidence in criminal sexual conduct case where defendant denied misconduct). We conclude that the trial court did not abuse its discretion in admitting the Spreigl evidence in this case. See State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998) (such testimony admissible if evidence is (1) clear and convincing; (2) relevant and material to state's case; and (3) probative value outweighs potential for unfair prejudice).