This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-110

State of Minnesota,
Respondent,

vs.

John Wesley Jones,
Appellant.

Filed November 16, 1999
Affirmed
Amundson, Judge

Hennepin County District Court
File No. 97-104759

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Judith Johnston, Assistant County Attorney, and Beverly Benson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

J. Anthony Torres, 1407 West 76th Street, Suite 400, Richfield, MN 55423 (for appellant)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges his conviction of first-degree manslaughter arguing that the district court erred by admitting evidence of a prior conviction and prior bad acts. Appellant also contends that the evidence was insufficient as a matter of law to support his conviction and that the district courtís imposition of a sentence that upwardly departs from the presumptive guideline sentence constituted an abuse of discretion. We affirm.

FACTS

During the afternoon and early evening of November 15, 1997, appellant John Wesley Jones and his wife had an argument. Jones ordered her to leave the house and prevented her from taking any of the children with her. Jones stayed at home with the three children; C.H., four years old, H.J., two years old, and P.J., five months old.

Jones testified that at 8:00 a.m., the morning of November 16, 1997, he checked on P.J., who was in her crib. He testified that P.J. was alive, but that he did not check on her again until 3:00 p.m., although he did send C.H. to check on her one or two times throughout the day. Jones testified that when he checked on P.J. at 3:00 p.m., she was not breathing and he called 911. When the paramedics arrived at 3:30 p.m., P.J. was dead.

At trial, the state presented seven instances of prior wrongful conduct by Jones. Testimony was presented that Jones: (1) tried to force-feed C.H. and when C.H. resisted, Jones repeatedly beat C.H. on his buttocks with a spoon, causing multiple bruises; 2) placed pillows over the faces of C.H. and H.J. when they would not stop crying, leaving their faces red and gasping for air; (3) forcibly grabbed H.J. around the neck and squeezed her so that she could not move her head while he roughly wiped her nose, leaving bruise marks on her neck; and (4) pleaded guilty to excessive punishment of C.H. Additionally, the state presented evidence that C.H. and H.J. placed pillows over each otherís faces while pretending to be daddy.

An autopsy was performed at the Hennepin County Medical Center. Three deputy medical examiners testified that P.J.ís death was due to asphyxia and that the manner of her death was a homicide. They also testified that she had been dead at least 2 1/2 hours and maybe as long as 4 hours before the paramedics arrived at 3:30 p.m.

D E C I S I O N

I.

Under Minn. R. Evid. 404(b), evidence of other crimes is inadmissible to prove the accusedís character in order to show that he acted in conformity therewith in the present case. However, such evidence 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) (citing State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965)). A district courtís admission of evidence of other crimes or bad acts will not be reversed by a reviewing court absent a clear abuse of discretion. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). Furthermore, "[w]hether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court." State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).

To admit such evidence, the district 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 stateís case, and (3) that the 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 clear and convincing standard is met when it is "highly probable" that the facts sought to be admitted occurred. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

Here, the childrenís aunt testified that she witnessed Jonesís abusive behavior inflicted on C.H. and H.J. Eyewitness testimony of previous bad acts may satisfy the clear and convincing standard. See State v. Shannon, 583 N.W.2d 579, 584-85 n.4 (Minn. 1998) (observing that admission of Spreigl evidence on the strength of a conviction or clear identification of defendant as assailant satisfies the clear and convincing standard). Additionally, the state presented evidence of Jonesís previous conviction for excessive punishment of a child, specifically C.H. Therefore, we conclude that the Spreigl evidence admitted by the district court meets the clear and convincing standard.

Next, Jones argues that the evidence concerning Jonesís treatment of C.H. and H.J. was irrelevant because it did not illuminate the relationship between Jones and P.J. because it referred to Jonesís relationships with his other two children, not with P.J. The Spreigl evidence must be "similar in some wayóeither in time, location, or modus operandióto the charged offense." State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983). In this case, the Spreigl evidence was offered to show modus operandi, specifically the evidence showed that Jones forcefully applied pillows over the faces of his children to stop them from crying. Additionally, the evidence showed that Jones treated his children in a rough manner causing injuries to their necks. That these incidents involved conduct by Jones toward the other children does not make the Spreigl evidence irrelevant. Evidence of conduct toward third parties who are related to the victim is generally admissible to place the nature of the relationship to the victim in context. State v. Blanchard, 315 N.W.2d 427, 431 (Minn. 1982). Additionally, other courts have held that Spreigl evidence involving defendantís treatment of people other than the victim is admissible. See State v. Rainer, 411 N.W.2d 490, 497 (Minn. 1987) (violence perpetrated by defendant against other significant women in his life admissible in trial for murder of his girlfriend); State v. Broda, 318 N.W.2d 239, 240 (Minn. 1982) (defendantís beating of former spouse admitted to aid in determination of injuries inflicted by defendant on girlfriend); State v. Ostlund, 416 N.W.2d 755, 763 (Minn. App. 1997), (finding that evidence of the defendantís improper care of children at her daycare was admissible to demonstrate absence of accident in the death of her own daughter), review denied (Minn. Feb. 24, 1998). We hold that the evidence of Jonesís abusive behavior toward C.H. and H.J. was admissible to show both a highly strained relationship between Jones and P.J. and to establish modus operandi, motive, and absence of accident.

Finally, the district court must find that the probative value of the Spreigl evidence is not outweighed by its potential for prejudice. "In weighing the probative value against the prejudicial effect, the district court must consider the extent to which the Spreigl evidence is crucial to the stateís case." DeWald, 464 N.W.2d at 504; see also State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993) ("Spreigl evidence is allowed at trial when the stateís case is weak."). Here, the state had to present its case without any eyewitnesses to the actual event. Thus, the majority of the probative evidence had to come from other sources, those sources being primarily medical testimony, circumstantial evidence, and witnesses who observed Jonesís prior conduct.

In State v. Cermak, the Minnesota Supreme Court defined prejudice to mean "the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means." State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985). Prejudice does not encompass that "damage to the opponentís case that results from the legitimate probative force of the evidence." State v. Bolte, 530 N.W.2d 191, 197 n.3 (Minn. 1995).

Here, the evidence is quite probative. The injuries sustained by the other children were similar to the injuries that caused P.J.ís death and showed Jonesís tendency to treat the young children in his care in a callous and abusive manner. The evidence, as with most, if not all evidence, has a prejudicial effect because it tends to prove appellantís guilt.

We determine that the evidence was not unduly prejudicial. Because all of the requirements for admissibility are satisfied, we conclude that the district court did not abuse its discretion when it admitted the Spreigl evidence.

II.

Reversal of a conviction for insufficiency of the evidence is rare and will only occur where the reviewing court has "grave doubt as to defendantís guilt." State v. Roberts, 350 N.W.2d 448, 451 (Minn. App. 1984) (quoting State v. Housley, 322 N.W.2d 746, 751 (Minn. 1982)). A reviewing court must view the record in a light most favorable to the conviction, State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989), and assume "the jury believed the stateís witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). "We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Furthermore, a juryís verdict is entitled to deference because the jury is generally in the best position to evaluate circumstantial evidence. Webb, 440 N.W.2d at 430.

Jones contends that there were reasonable inferences raised by circumstantial evidence that are consistent with his innocence rather than his guilt and that the autopsy did not establish a manner of death. Additionally, Jones contends that there was circumstantial evidence supporting his claim that P.J.ís death was due to sudden infant death syndrome (SIDS). Thus, Jones argues reasonable doubt exists and the verdict must be set aside on the ground that there was insufficient evidence to support his conviction.

The jury, however, had before it testimony from three doctors who stated that to a reasonable degree of medical certainty, based on their review of the autopsy, final autopsy report, and medical history, P.J.ís death was caused by asphyxia and her manner of death was a homicide. There was no testimony substantiating Jonesís claim that P.J. died as a result of SIDS; instead Jones relies on the testimony of a medical examiner who testified that the bruise on the strap muscle in her neck detracted from a finding that P.J. died from SIDS. Jones claims that because the medical examiner was not able to state with any degree of medical certainty when the bruise occurred or how much force was necessary to cause the bruise that this evidence is insufficient to support a conviction.

However, assuming that the jury believed the medical examiners and disbelieved any evidence to the contrary, the evidence is consistent only with defendantís guilt. See Alton, 432 N.W.2d at 756 ("Where a conviction is based on circumstantial evidence, the verdict will be sustained on appeal when the reasonable inferences from such evidence are consistent only with defendantís guilt * * *."). Thus, we conclude that there was sufficient evidence of Jonesís guilt to support the juryís verdict.

III.

The presumptive sentence for first-degree manslaughter under Minnesota Sentencing Guidelines is 84 months. At sentencing, the state moved for an upward departure to 180 months and the district court sentenced Jones to a term of 120 months. The district court set forth the following reasons for its imposition of an upward departure: (1) the vulnerability of the victim due to her age; (2) Jonesís failure to provide medical aid; (3) the effect of the victimís death on the other children; and (4) Jonesís placement of blame on innocent persons.

A sentencing court may depart from the presumptive sentence under the guidelines only where substantial and compelling circumstances are present. Minn. Sent. Guidelines II.D. "A sentencing court should consider whether the defendantís conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Rairdon, 557 N.W.2d 318, 326 (Minn. 1996) (quoting State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)). If aggravating factors are present, a sentencing court has broad discretion to depart from the sentencing guidelines. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). A district courtís decision to depart from the sentencing guidelines will not be reversed on appeal absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Jones argues that the district court abused its discretion by considering that P.J. was only five months old when she was killed, and thus, particularly vulnerable. Jones claims that because the crime of malicious punishment of children is premised on the particular vulnerability of children, P.J.ís age could not be considered a significant aggravating factor because Jonesís conduct did not differ significantly from that of other persons who commit this crime.

If it was a substantial factor in the accomplishment of the crime, victim vulnerability is a valid basis for departure. Rairdon, 557 N.W2d at 326 (citing Minn. Sent. Guidelines II.D.2.b.(1) (stating that departures may be based on particular vulnerability including age of the victim)). However, a sentencing court may not consider the victimís age as a basis to depart when age is already an element of the offense. State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982). While P.J.ís age alone may have been insufficient to support an upward departure because it is an element of the charged offense,[1] her absolute vulnerability due to her age was a proper basis for departure. See State v. Partlow, 321 N.W.2d 886, 887 n.1 (Minn. 1982) (holding that while charged offense contained victim-age element and age alone was not a proper basis to justify upward departure, victimís age of two years and 10 months did render her absolutely vulnerable, justifying aggravation of sentence).

Jones argues that the district court abused its discretion when it relied on defendantís failure to provide medical aid to P.J., a factor justifying an upward durational departure at sentencing. Failure to seek medical attention for the child victim of an assault constitutes particular cruelty justifying an upward departure. See State v. Pearson, 479 N.W.2d 401, 404 n.5 (Minn. App. 1991) (noting failure to provide medical assistance for child supported upward departure), review denied (Minn. Feb. 10, 1992). Again, the district court properly considered this factor.

Jones argues that no evidence was presented showing that the other children witnessed the crime or witnessed ongoing physical abuse of P.J. The district court recognized that the effect of the crime on P.J.ís siblings is that they have extreme fear of "all adult caretakers" and lack feelings of security. Jones contends that these are merely the tragic results of this type of crime and cannot constitute an aggravating factor.

Both surviving children reported seeing their sister, P.J., with a "blue face." While they may not have witnessed the abuse, they were subjected to its aftermath. Case law only addresses the propriety of a sentencing court considering others witnessing the abuse or murder of a victim. See, e.g., State v. Profit, 323 N.W.2d 34 (Minn. 1982) (stating that "committing the offense in front of the children was a particularly outrageous act and that while the children were not technically victims of the crime, they were victims in another sense"). Because the two children witnessed P.J. dead in her crib, the effect of this event on the surviving children was properly considered as an aggravating factor by the district court.

Jones attempted to blame P.J.ís death on his other child, C.H. A defendantís attempt to try to blame the offense on someone else may be taken into consideration by the sentencing court. State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995). Therefore, this factor was properly considered by the district court.

Together these factors demonstrate that Jonesís conduct was significantly more serious than that typically involved in the commission of the offense in question. Therefore, we conclude that the district court did not abuse its discretion in imposing an upward durational departure from the presumptive sentence for this offense.

Affirmed.

[1] Manslaughter in the first degree pursuant to Minn. Stat. ß 609.20(5) (1998):

Whoever * * * causes the death of another in committing or attempting to commit a violation of section 609.377 (malicious punishment of a child), and murder in the first, second, or third degree is not committed thereby.
Malicious punishment of a child, pursuant to Minn. Stat. ß 609.377 (1998):

A parent * * * who, by an intentional act or series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstance is guilty of malicious punishment of a child * * *.