may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed June 1, 1998
Toussaint, Chief Judge
Hennepin County District Court
File No. 97107097
Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and
Amy Klobuchar, Hennepin County Attorney, Beverly Jean Benson, Assistant County Attorney C-2100 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Richard A. Sand, 168 Nina Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Huspeni, Judge.[*]
TOUSSAINT, Chief Judge
Reginald Sweet appeals from a judgment of conviction for criminal sexual conduct in the first and third degrees, in violation Minn. Stat. §§ 609.342, .344 (1998). Sweet challenges the trial court's admission, under Minn. R. Evid. 404(b), of a ten-year-old allegation of criminal sexual conduct for which he was never charged. He also challenges the trial court's refusal to allow him to call additional witnesses to impeach the victim. Because (a) the evidence of Sweet's participation in the previous crime is clear and convincing, material, and more probative than prejudicial and (b) Sweet failed to provide an adequate record for review of the trial court's decision not to allow him to call additional witnesses, we affirm.
As a general rule, evidence of other crimes or misconduct, often referred to in Minnesota as Spreigl evidence, is not admissible to prove a person's character to show that the person acted in conformity therewith. Minn. R. Evid. 404 (b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Other-crimes evidence may be admitted, however, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b). Other-crimes evidence is admissible if it is (1) clear and convincing; (2) relevant and material; and (3) more probative than potentially prejudicial. Shannon, 583 N.W.2d at 583.
A. Clear and Convincing
Sweet first claims that the evidence of his participation in the Spreigl offense is not clear and convincing because he was never charged in connection with the offense. We disagree. The detailed and unrebutted allegations of the Spreigl victim clearly and convincingly show that Sweet participated in the previous offense. The fact that Sweet was not charged with the Spreigl crime does not require exclusion. The supreme court has repeatedly declined to bar evidence of prior offenses that were either not charged or charged but dismissed. See, e.g., State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993) (holding Spreigl incident was proven by clear and convincing evidence and properly admitted even though not charged); State v. Lande, 350 N.W.2d 355, 358 (Minn. 1984) (affirming admission of Spreigl evidence where charge dismissed). Thus, the trial court did not abuse its discretion in concluding that the Spreigl evidence was clear and convincing.
B. Relevance and Materiality
Sweet next claims that the Spreigl evidence is not relevant and material because it is ten-years-old and not sufficiently similar to the charged offense to show a common scheme or plan. Sweet's argument is not supported by the record or Minnesota law. A close temporal relationship between the Spreigl crime and the charged offense is not absolutely necessary if the Spreigl evidence is otherwise relevant. State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983) ("In determining relevancy, we have generally required that the other crime be similar in some way -either in time, location, or modus operandi--to the charged offense, although this of course is not an absolute necessity.").
The Spreigl evidence in this case is relevant to modus operandi. Both offenses involved criminal sexual conduct in the first degree with a person Sweet had known for a period of years. In both cases, the assault occurred after Sweet had consumed drugs. On each occasion, Sweet became hostile and demanding, slapped the victim on the face, threatened her with additional violence, and engaged in talk about prostitution. Given these similarities, the trial court did not abuse its discretion in concluding that the Spreigl evidence was relevant and material despite the lack of a close temporal relation. See State v. Rainer, 411 N.W.2d 490, 497-98 (Minn. 1987) (upholding admission of 16 to 19-year-old incidents showing a repeating pattern of very similar conduct); State v. Cichon, 458 N.W.2d 730, 734-35 (Minn. App. 1990) (upholding admission of 14-year-old similar incident in prosecution for sexual assault to prove intent), review denied (Minn. Aug. 14, 1990).
C. Probative Value Versus Prejudicial Effect
Sweet contends that even if the evidence is relevant, its prejudicial effect substantially outweighs its probative value because the court did not instruct the jury that he had not been charged with the Spreigl offense. Again, we disagree. To protect defendants against unfair prejudice, the supreme court has established procedural safeguards governing the admission, presentation, and consideration of Spreigl evidence. State v. Bolte, 530 N.W. 2d 191, 196-97 (Minn. 1995); State v. Billstrom, 276 Minn. 174, 177-79, 149 N.W.2d 281, 284-85 (Minn. 1967). These procedural safeguards do not require the trial court to instruct the jury that defendant was not charged with the Spreigl offense. We therefore conclude that the trial court did not abuse its discretion in admitting the Spreigl evidence without intructing the jury that Sweet was not charged with the Spreigl crime.
An appellant has the burden of providing an adequate record for appeal. Custom Farm Services, Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976). The reviewing court will not presume error, Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 532 (1968), or grant relief on the basis of argumentative assertions unsupported by evidence in the record, State v. Gilles, 279 Minn. 363, 383, 157 N.W.2d 64, 67 (1968). The record in this case contains no evidence that Sweet ever moved to call additional witnesses or objected to rulings the trial court made regarding witnesses he intended to call. Indeed, it is barren of any information necessary to determine whether the trial court abused its discretion in refusing to allow Sweet to call additional witnesses. All the record contains is an allegation of error unsupported by evidence in the record. We must therefore affirm. State v. Ratner, 168 Minn. 26, 27, 209 N.W. 489, 490 (1926) (stating in the absence of an adequate record to provide meaningful review, appellate court must affirm); State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986) (same).
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 All the required procedural safeguards were followed in this case. The state gave defense counsel ample notice that it would seek admission of evidence of a previous incident of sexual assault in which Sweet was involved. It established to the trial court's satisfaction that the other-crime evidence was clear and convincing, material, and more probative than prejudicial. The trial court appropriately delayed admission of the evidence until after the state had presented all of its non-Spreigl evidence and did not abuse its discretion in determining that the Spreigl evidence was necessary to support the state's burden of proof. It gave the jury a cautionary instruction at the time the evidence was received and again during its final charge. Both the prosecutor and defense counsel stressed the limited purpose of Spreigl evidence during closing argument.