This opinion will be unpublished and

may not be cited except as provided by

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





State of Minnesota,



Sonja Patrice McKinney,

Appellant (C7-98-2072),

Mark Todd McKinney,

Appellant (C2-98-2349).

Filed June 22, 1999


Toussaint, Chief Judge

Hennepin County District Court

File No. 97-091686

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

Brian H. Gaviglio, Associate City Attorney, Bloomington City Attorney's Office, 2215 West Old Shakopee Road, Bloomington, MN 55431 (for respondent)

Clinton Collins, Jr., Clinton Collins & Associates, P.A., 375N Grain Exchange Bldg., 301 Fourth Ave. S., Minneapolis, MN 55415 (for appellants)

Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Norton, Judge.[*]


TOUSSAINT, Chief Judge

Appellants Mark and Sonja McKinney, brother and sister, were arrested on October 11, 1997, at the Mall of America General Cinema theater complex after an altercation with police over their conduct. As a result of the incident, Mark McKinney was convicted of gross misdemeanor obstruction of justice and Sonja McKinney was convicted of misdemeanor obstruction of justice, both under Minn. Stat. § 609.50 (1996). Appellants raise evidentiary issues concerning the trial court's admission of Spreigl evidence, exclusion of alleged impeachment evidence concerning an arresting officer, and failure to give the jury an instruction on self-defense. Because we conclude the trial court did not abuse its discretion in its evidentiary rulings or err in declining to give a self-defense instruction, we affirm.


1. Spreigl Evidence

Other crimes or Spreigl evidence is inadmissible to prove the defendant's character or that the defendant acted in conformity with that character. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). In addition to notice requirements the state must meet before seeking admission of Spreigl evidence, the trial court must determine

(1) that the evidence is clear and convincing that the defendant participated in the other 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. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). A trial court's evidentiary rulings are subject to an abuse of discretion standard of review. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998); Shannon, 583 N.W.2d at 583.

Evidence of Mark McKinney's 1993 credit card fraud conviction itself was not the source of the Spreigl evidence. Rather, the evidence was of uncharged conduct related to that offense, including resisting police authority and fleeing arrest. The trial court admitted the evidence, of conduct similar to Mark McKinney's conduct in this case, to show "motive, opportunity, and modus operandi."

At trial, Mark McKinney did not object to admission of the Spreigl evidence. "Failure to object to Spreigl evidence at trial constitutes a waiver of the right to claim this as error on appeal." State v. Larson, 520 N.W.2d 456, 461 (Minn. App. 1994) (quotation omitted), review denied (Minn. Oct. 14, 1994); see State v. Scott, 304 N.W.2d 296, 298 (Minn. 1981) (court declines to decide propriety of admitting other-crimes evidence where no objection made at trial). Thus, we conclude that Mark McKinney waived this issue by failing to object at trial.

2. Impeachment Evidence

On defense cross-examination counsel asked of one of the arresting officers, Sergeant Shaun LaDue, about whether he had participated in any other arrests or investigations involving unruly patrons at the theater complex. When LaDue replied that he had not participated in any other arrests but had acted as a detective and investigated arrests, defense counsel asked, "Isn't it true that in [a] particular case you had been accused of racial bias by a Minneapolis police officer?" The state then objected on relevance grounds; the court sustained the objection; and defense counsel made no offer of proof. Appellants now claim the trial court abused its discretion by refusing to allow defense counsel to impeach LaDue by offering evidence of LaDue's actions as an investigator of a prior arrest at the theater.

A defendant must make an offer of proof in order to appeal an erroneous ruling excluding evidence. Minn. R. Evid. 103(a)(2). "An appellate court * * * can only base a determination that error occurred on the record." State v. Lee, 494 N.W.2d 475, 479 (Minn. 1992). Where a defendant fails to preserve an issue involving erroneous exclusion of evidence "by making an offer of proof showing the nature of the evidence excluded," the appellate court will not consider the issue on review. Id.

Absent an offer of proof at trial, appellants' allegations on appeal are not part of the record before us. See Minn. R. Civ. App. P. 110.01 (record on appeal consists of papers, exhibits, and transcript filed in trial court). As the appellate record does not include any evidence to support appellants' challenge to LaDue's credibility, we have no basis for deciding this issue. We thus conclude that the trial court did not abuse its discretion in sustaining the state's objection to proffered evidence of LaDue's alleged prior conduct.

3. Self-defense Instruction

Appellants claim that the trial court erred in failing to give a self-defense instruction to the jury. But appellants admittedly failed to notify the prosecutor in writing of "any" defense on which they "intended to rely at the trial, including but not limited to the defense of self-defense." Minn. R. Crim. P. 9.02, subd. 1(3)(a). Further, the record does not show that appellants either requested a self-defense instruction or objected to the trial court's failure to give one.

[F]ailure to challenge a jury instruction at trial waives the right to appeal that issue unless the error is one of fundamental law and results in substantial and material prejudice to defendant's rights.

State v. Gisege, 561 N.W.2d 152, 160 (Minn. 1997) (citations omitted); Minn. R. Crim. P. 26.03, subd. 18(3); see State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) ("plain error" test for appellate review of erroneous jury instruction that was not objected to at trial requires plain error that affects substantial rights of defendant). Because appellants failed to disclose their defense of self-defense as required by Minn. R. Crim. P. 9.02 and failed to request a self-defense instruction or object to the lack of one, we conclude that the trial court did not err in failing to give a self-defense instruction.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.