This opinion will be unpublished and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
C5-99-427

State of Minnesota,
Respondent,

vs.

Mark David Spear,
Appellant.

Filed December 14, 1999
Affirmed
Toussaint, Chief Judge

Ramsey County District Court
File No. K1982385

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414; and

Kevin C. Braley, Dorsey & Whitney, LLP, Pillsbury Center South, Suite 1300, Minneapolis, MN 55402-1498 (for appellant)

Considered and decided by Toussaint, Chief Judge, Shumaker, Judge and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Mark David Spear seeks reversal of his conviction of second-degree sale of methamphetamine. Spear contends the district court erred in denying his motion to suppress, as the fruit of an illegal search evidence of methamphetamine found in the trunk of a vehicle possessed by Spear. Spear also argues that the district court committed reversible error in admitting evidence of Spearís prior drug conviction. Because an improperly registered vehicle parked on a public street is subject to impoundment, we affirm the district courtís conclusion that an inventory search was authorized. Because the police did not exceed the scope of an authorized inventory search, we affirm the district courtís denial of Spearís suppression motion. Finally, because the district court did not abuse its discretion, we affirm the admission of evidence of Spearís prior drug conviction.

D E C I S I O N

I.

Spear contends that the district court improperly denied his motion to suppress evidence. Because nobody at the searched residence was the registered owner of the license plates or vehicle, the district court concluded that the registration and ownership were in question. Additionally, because the vehicle was parked on a public street, the district court held that the officers had a right to search and seize the vehicle and thus, the contraband seized did not require suppression. An appeal from a district courtís denial of a motion to suppress evidence on stipulated facts presents a question of law and is reviewed de novo. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996).

A. Standing

A warrantless search and seizure is per se unreasonable. U.S. Const. amend. IV; Minn. Const. art. I; State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). Warrantless searches are only allowed in a "few specifically established and well delineated exceptions." State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quoting Katz, 389 U.S. at 357, 88 S. Ct. at 514). A defendant must show the police conduct infringed upon the defendantís own legitimate expectation of privacy in order to have standing to challenge a search and seizure. State v. Reynolds, 578 N.W.2d 762, 764 (Minn. App. 1998) (citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978)). Therefore, the threshold inquiry is whether Spear had and maintained a legitimate expectation of privacy in the Ford Tempo and its contents.

In 1990, this court held that a defendant had no expectation of privacy in a car where the defendant drove it on one occasion for the ownerís sole benefit and had no possessory interest in the car or any items therein. State v. Robinson, 458 N.W.2d 421, 424 (Minn. App. 1990). The United States Supreme Court has held that an individual, unable to claim either a property or possessory interest in an automobile, lacked standing to challenge the search of the vehicleís interior. Rakas v. Illinois, 439 U.S. at 148, 99 S. Ct. at 433. However, other jurisdictions have recognized that the possessor of a vehicle has an expectation of privacy in that vehicle. See State v. Dixon, 501 N.W.2d 442, 446-47 (Wis. 1993) (citing supporting decisions from 15 jurisdictions for its holding that the possessor of a borrowed vehicle has a reasonable expectation of privacy in that vehicle).

The present case is distinguishable from Rakas and Robinson, which both denied an individual standing to challenge a search of a vehicleís interior where the individual could not claim a property or possessory interest in the vehicle. In this case, Spear had a possessory interest in the vehicle and a property interest in his personal effects located inside it. Additionally, unlike the individual in Robinson, Spear repeatedly used the vehicle for his own benefit. Therefore, Rakas and Robinson are distinguishable and do not foreclose Spearís standing to challenge the search of the vehicle.

Because there is no Minnesota case law explicitly dealing with this situation we look to, Dixon and the cases cited in Dixon as instructive. Spear had permission to use the vehicle, possessed the vehicleís keys, repeatedly used the vehicle on previous occasions, locked the vehicle to exclude others from entering or using the vehicle, and kept numerous personal effects in the vehicle. Spear contends that these actions establish a possessory interest sufficient to support a reasonable expectation of privacy in the vehicle. Moreover, the facts suggest that the deputies had a strong suspicion that Spear was in possession of the vehicle and reasonably believed he had and maintained an expectation of privacy in the vehicle and its contents.

Additionally, Spear argues that the state should not be permitted to present diametrically opposed positions in order to convict him. On Spearís suppression motion, the state argued that since Spear was not the registered owner of the vehicle, he had no reasonable expectation of privacy initially and his subsequent denials of ownership or possession effectively waived his privacy interest anyway. Conversely, at trial, the state relied on the facts that Spear owned, possessed, and controlled the vehicle as circumstantial evidence to prove Spear constructively possessed the drugs. Presenting such inconsistent positions, in addition to being patently unfair, has been rejected by numerous courts. See, e.g., United States v. Morales, 737 F.2d 761, 764 (8th Cir. 1984) ("we believe that the government should not be permitted to use at the suppression hearing appellantís alleged disclaimer * * *, then argue at trial that appellantís possession * * * supported constructive possession * * *").

Furthermore, although Spear denied possession or ownership of the vehicle when the police questioned him during the search of the Schmidt residence, Spear contends that numerous courts and a Fourth Amendment commentator have explained that a defendant does not forfeit a reasonable expectation of privacy in a vehicle or its contents by statements made in the context of custodial interrogation without Miranda warnings. See State v. Isom, 641 P.2d 417, 422 (Mont. 1982) (holding that a defendant does not lose Fourth Amendment rights by disclaiming ownership in a vehicle during custodial interrogation); State v. Huether, 453 N.W.2d 778, 781-82 (N.D. 1990); (explaining that ownership alone is insufficient to confer [a reasonable expectation of privacy,] and disavowal of ownership alone is insufficient to deprive a defendant of the "threshold standing" to challenge a search and seizure); Commonwealth v. Holloway, 384 S.E.2d 99, 103-04 (Va. Ct. App. 1989) (suggesting that disclaiming ownership alone does not extinguish a defendantís reasonable expectation of privacy); 5 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment, ß 11.3(e), at 187 (1996). A defendant is not required to incriminate himself to preserve Fourth Amendment interests. Simmons v. United States, 390 U.S. 377, 389-94, 88 S. Ct. 967, 973-76 (1968) (discussing the "Hobsonís choice" faced by defendants in possession crimes where admission of possession for standing requires admission of an element of the charged offense); State v. Olson, 436 N.W.2d 92, 96 (Minn. 1989), cert. granted, 493 U.S. 806, 110 S. Ct. 46 (1989), affíd, 495 U.S. 91, 110 S. Ct. 1684 (1990).

In this case, Spear was confronted during a drug raid by nine officersí who handcuffed him and questioned him about the vehicle. Spear argues that this situation unconstitutionally forced him to choose between making a criminal admission without his Miranda warnings and unknowingly and unintentionally relinquishing his Fourth Amendment rights. While the state contends that Spear knowingly and voluntarily abandoned the vehicle by denying ownership or possession of it, Spear correctly argues that important Fourth Amendment interests should not be unintentionally forfeited in an attempt to preserve privacy. Because Spear has a possessory interest in the vehicle that should not be unknowingly forfeited by comments made during custodial interrogation absent Miranda warnings, he has a legitimate expectation of privacy in the vehicle and should be granted standing to challenge its search and the subsequent seizure of methamphetamine.

B. Propriety of the Inventory Search

An inventory search of an impounded vehicle has long been recognized as an exception to the warrant requirement of the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987); South Dakota v. Opperman, 428 U.S. 364, 376, 96 S. Ct. 3092, 3099 (1976); City of St. Paul v. Myles, 218 N.W.2d 697, 701 (Minn. 1974). A properly conducted inventory search is deemed reasonable because the objectives of the search are to safeguard the ownerís property and protect the police from claims that the property was lost or stolen while under police control. State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997) (citing Opperman, 428 U.S. at 369, 96 S. Ct. at 3097 (1976)). The validity of an inventory search depends on whether it was conducted pursuant to standard police procedures and primarily to inventory, rather than investigate, the contents of the vehicle. Holmes, 569 N.W.2d at 188. Because an impounded vehicle is subject to a lawfully executed inventory search, Spearís challenge to the warrantless search and seizure turns on the propriety of the impoundment of the vehicle. See State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977) (suggesting that the reasonableness of the impoundment turns on its necessity).

1. Statutory Authorization

Minnesota statutory law makes it unlawful to drive or park an improperly registered vehicle on a public street. See Minn. Stat. ßß 169.79 ("No person shall * * * park a motor vehicle on any highway unless the vehicle is registered in accordance with the laws of this state * * *."); 169.01, subd. 29 (defining "street or highway"); 169.89, subd. 1 (1998) (explaining that "it is a petty misdemeanor for any person to do any act forbidden * * * by this chapter * * *."). In this case, the vehicle was registered to Celene Reynolds, but the license plates were registered to Jennifer Smith. Because the vehicle was not properly registered, impoundment of the vehicle was authorized.

Nevertheless, Spear argues that Minnesota law only authorizes towing of improperly registered vehicles or potentially stolen vehicles after the police prepare a towing order and wait four hours. Minn. Stat. ß 169.041, subd. 2 (requiring written towing order), subd. 3 (requiring four-hour wait) (1998). Spear contends that although the police may have had statutory authorization to tow the vehicle, its immediate impoundment and towing was not authorized because the police failed to prepare the requisite towing report or wait four hours. Adopting Spearís contention would require this court to invalidate an authorized and inevitable impoundment because the record does not contain a towing report. While this court does not dispute the importance of such statutory requirements, they are not dispositive in the analysis of Fourth Amendment search-and-seizure issues. See State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978) (concluding that violation of statute governing nighttime warrants did not require suppression of evidence seized). Statutory towing procedures are not intended to prevent inevitable, statutorily authorized police work.

2. Scope

Spear also contends that the search was invalid because the primary purpose in searching the vehicle was to discover drugs rather than inventory the contents of the vehicle. A warrantless inventory search is valid and reasonable if conducted pursuant to standardized procedures and its purpose is, at least in part, to obtain an inventory. Holmes, 569 N.W.2d at 187-88 (explaining that an inventory search conducted solely for investigation purposes is invalid, citing Bertine, 479 U.S. at 372, 107 S. Ct. at 741). An ulterior motive to investigate a vehicle will not, by itself, invalidate an inventory search so long as it is performed in accordance with standard police procedures. Holmes, 569 N.W.2d at 188-89; State v. Rodewald, 376 N.W.2d 416, 421 (Minn. 1985); but see Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 16342, 1635 (1990) (explaining that police may not simply rummage around to discover incriminating evidence during an inventory search); Bertine, 479 U.S. at 372, 107 S. Ct. at 741 (suggesting that an inventory search must be made in good faith and not solely to investigate). A search is solely for investigative purposes when an inventory search that would not have otherwise occurred is brought about. Holmes, 569 N.W.2d at 188.[1]

In determining whether an alleged inventory purpose is merely a pretext for an investigative search, the Minnesota Supreme Court has suggested that the following factors are indicia of pretext:

[T]he fact that the search was conducted at the scene of the crime, that the search was conducted by an officer responsible for criminal investigations and not the officer responsible for the safekeeping of impounded property, that no formal inventory sheets were completed, that the officer did not make note of the defendantís personal effects, but instead focused only on contraband, and the fact that the car was not actually impounded.

Holmes, 569 N.W.2d at 188 (borrowing the pretext factors from Fair v. State, 627 N.E.2d 427 (Ind. 1993), which invalidated an inventory search of a car as unreasonable). The court explained that although none of the factors alone is sufficient to render a search unconstitutional, collectively, similar facts might suggest the search was an invalid investigative rather than a lawful inventory search. Id. at 188. Relying on the factors discussed in Holmes, Spear claims that the inventory purpose was pretext for the true investigative purpose of the search.

Specifically, because an officer responsible for the criminal investigation conducted the search at the scene without completing formal inventory sheets, Spear contends that the inventory purpose for the search was pretextual. Although no formal inventory sheets were taken at the scene of the search, the police did complete a "Receipt, Inventory and Return," which inventoried Spearís personal effects. However, Spear argues that the "inventory" of his personal effects was not to safeguard the property or protect the police from any resulting claims. Instead, Spear contends that this evidence was used extensively at trial as circumstantial evidence linking him to the drugs on a constructive-possession theory. Finally, while the record is unclear on the issue, Spear argues that the Tempo was never actually towed.

Despite Spearís argument that these facts collectively suggest that the impoundment and "inventory" were a pretext for an investigative nature of the search of the vehicle, an ulterior investigative motive does not invalidate an otherwise valid inventory search. See Holmes, 569 N.W.2d at 188. A search with dual motives is permissible so long as it is conducted pursuant to standardized procedures and, at least partially, for the purpose of taking the vehicleís inventory. Id. In addition, as the Holmes court explained, none of the pretext factors renders a search constitutionally defective individually. Id. at 188. Thus, so long as the Ramsey County Sheriff Departmentís search was conducted pursuant to standard police procedures and, at least in part, for the purpose of obtaining an inventory, it was a lawful inventory search.

The parties stipulated that the Ramsey County Sheriffís Department has a policy of towing improperly registered vehicles and intended to tow the vehicle in this case. Although the record is not entirely clear whether the Tempo was actually towed, there is no evidence in the record that the police failed to follow standard police procedures in conducting the inventory search of its contents. While the police officersí attention may have been originally drawn to the vehicle after failing to find drugs in the home, in light of the improper registration and Spearís denial of possession or ownership, it cannot be said that the search of the vehicle was solely motivated by a desire to find drugs. In addition, because Holmes explains that no single pretext factor is dispositive of the constitutionality of a search, the fact that the search was conducted at the scene by an officer involved in the criminal investigation will not invalidate the otherwise statutorily authorized and properly conducted inventory search in this case.

Furthermore, Holmes involved facts distinguishable from those presented here. In Holmes, a parking monitor had already completed an inventory search when the police officer conducted the challenged search. In addition, the parking monitor was solely authorized to conduct the inventory search. Because Holmes involved an unauthorized, secondary search of a vehicle, it involved a vastly different situation from the search of the Tempo in this case. Here, unlike the officer in Holmes, the police were statutorily authorized to impound the Tempo and conducted the search pursuant to standard police policy and procedure. Because the sheriffís department did not deviate from its procedures, Holmes does not support Spearís pretext argument and the inventory search was reasonable.

II.

Spear also argues that the district court abused its discretion when it admitted evidence of Spearís prior conviction for possession of marijuana with the intent to distribute. The district court has broad discretion in evidentiary matters and its rulings will not be disturbed absent a clear abuse of discretion. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998); State v. Johnson, 568 N.W.2d 426, 432 (Minn. 1997). A defendant claiming error in the district courtís admission of evidence bears the burden of showing that the district court erred and that prejudice resulted. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

Evidence of other crimes or misconduct, often referred to in Minnesota as Spreigl evidence, is not admissible to prove a personís 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). However, evidence of other crimes may be admitted to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995) (citing Minn. R. Evid. 404(b)). Other-crime evidence is admissible if:

(1) notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the Spreigl evidence is relevant and material to the stateís case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential unfair prejudice.

Kennedy, 585 N.W.2d at 389; see State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995) (detailing the procedural safeguards for admissibility of Spreigl evidence). If it is unclear whether Spreigl evidence is admissible, the defendant should receive the benefit of the doubt and the evidence should be excluded. Kennedy, 585 N.W.2d at 389; Johnson, 568 N.W.2d at 433.

Because Spear does not challenge the adequacy of notice or intended use of Spearís prior drug conviction, this court need not address the first two procedural safeguards recited by the Minnesota Supreme Court in Kennedy. Therefore, the propriety of the district courtís admission of Spearís prior drug conviction depends on whether (1) the evidence is clear and convincing of Spearís participation; (2) the evidence is relevant and material to the stateís case; and (3) the probative value of the evidence outweighs its potential for unfair prejudice.

A. Clear and Convincing

Although Spear does not appear to contest this factor, Spearís prior conviction nevertheless meets the "clear and convincing" threshold of proof that the defendant participated in the Spreigl offense. See Bolte, 530 N.W.2d at 197 (explaining that ignore state must establish, by clear and convincing evidence, that the defendant participated in prior bad act). Because a conviction is conclusive proof of participation in a crime, the trial court did not abuse its discretion in concluding that Spear participated in the prior crime.

B. Relevance and Materiality

The touchstone of 404(b) relevancy and materiality is whether the charged crime and prior bad act are sufficiently close in terms of time, place, and modus operandi. The Minnesota Supreme Court has stated:

In determining the relevancy and materiality of Spreigl evidence, the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi.

State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984). The closer the relationship between the events, the less likely it is that the evidence will be used for an improper purpose. Bolte, 530 N.W.2d at 198. Relevancy and materiality determinations are flexible because a close temporal relationship between the Spreigl crime and the charged offense is not absolutely necessary if the Spreigl evidence is otherwise relevant. Bolte, 530 N.W.2d at 198; see State v. Wermeskirshen, 497 N.W.2d 235, 242 n.3 (Minn. 1993) ("The ultimate issue is not the temporal relationship but relevance."). However, Minnesota courts do require similarity between the crimes. See Shannon, 583 N.W.2d at 585 (stating that courts should exclude evidence of prior crimes that are merely the same generic offense as the charged crime).

The district court found that Spearís prior drug conviction was relevant and material "and * * * will go to the common scheme and plan or the modus operandi." Although courts cannot ignore the requisite similarity between the two offenses in determining the relevancy and materiality of Spreigl evidence, courts should consider the issues of the case and the reason and need for its use. Kennedy, 585 N.W.2d at 390. Spearís denial of possession or ownership necessitated the use of the Spreigl evidence because the stateís constructive possession case was based on circumstantial evidence linking Spear to the drugs found in the vehicle. Therefore, the admissibility of Spreigl evidence in the present case turns on the level of similarity between Spearís prior crime and the charged crime.

Both crimes involved the transportation of distributable amounts of a controlled substance in a motor vehicle. See United States v. Wint, 974 F.2d 961, 967 (8th Cir. 1992) (stating that the fact that each crime involved distributable amounts was important in establishing the requisite similarity); State v. Foreman, 260 N.W.2d 160, 167 (Minn. 1977) (suggesting that similar nature of crimes establishes common scheme or modus operandi corroborating evidence of charged crime). While Spear argues that the crimes are not sufficiently similar because they are separated by nearly 3 years in time and 3 miles in geographic location, Minnesota caselaw suggests that such temporal and geographic differences do not preclude the admission of Spreigl evidence. See e.g., State v. Slowinski, 450 N.W.2d 107, 114 (Minn. 1990) (explaining that identical "signature" crimes are not required to admit Spreigl evidence); State v. Starnes, 396 N.W.2d 676, 680 (Minn. App. 1986) (upholding admission of Spreigl evidence where prior crime occurred three and one-half years earlier and involved the same principal crime); State v. Kumpula, 355 N.W.2d 697, 703 (Minn. 1984) (suggesting that city is sufficiently narrow geographic area to establish "similar" location). Moreover, although similar time, location, or modus operandi are helpful in finding the requisite similarity, Minnesota courts do not require absolute similarity, especially when the Spreigl evidence is otherwise highly relevant. DeWald, 464 N.W.2d at 503.

Spear nevertheless contends that because each crime involves a distinct type of drug, drug packaging, and storage area, the two crimes do nothing more than establish the generic crime of drug possession. Despite the purported frequency of drug possession crimes occurring in St. Paul annually, the district court determined that the Spreigl crime was relevant, material, and went to establishing a common plan or modus operandi. This court need not determine whether all drug possession offenses in motor vehicles constitute a "generic" category of crime. Instead, Spear must illustrate that the district courtís conclusions were a clear abuse of discretion. Considering the similarities between the crimes and the district courtís considerable discretion in its evidentiary rulings, it cannot be said that the district court clearly abused its discretion in concluding that the Spreigl evidence was relevant and material.

  1. Probative Value Versus Prejudicial Effect

Spear also contends that the probative value of Spearís prior conviction is outweighed by the potential for unfair prejudice. The Minnesota Supreme Court has stated that

when balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the stateís case.

State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citation omitted); see also Dewald, 464 N.W.2d at 504 (explaining that although Spreigl evidence is always potentially prejudicial, courts should consider whether the Spreigl evidence is crucial to the stateís case). The similarities between the two crimes and Spearís denial of possession or control of the car make the Spreigl evidence highly probative. The stateís case was based primarily on circumstantial evidence linking Spear to the Tempo. Following Spearís denial of possession or control of the vehicle, evidence of Spearís prior drug conviction became increasingly necessary. See Kennedy, 585 N.W.2d at 392 (admitting "necessary" Spreigl evidence where stateís evidence was clouded by other circumstances); State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993) (admitting Spreigl evidence where prosecutionís case was primarily circumstantial). Therefore, Spearís prior drug conviction was a necessary component of the prosecutionís case and was highly probative.

In addressing the issue of unfair prejudice, the Minnesota Supreme Court explained that prejudice refers to the unfair advantage obtained by allowing persuasion by improper means. State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985).[2] To protect defendants against unfair prejudice, the supreme court has established procedural safeguards governing the admission, presentation, and consideration of Spreigl evidence. Bolte, 530 N.W.2d at 196-97 (Minn. 1995); State v. Billstrom, 276 Minn. 174, 177-79, 149 N.W.2d 281, 284-85 (Minn. 1967) (stating that trial courts should give appropriate cautionary instructions upon receipt of the evidence and again during final instructions). Although Spear contends that introduction of the Spreigl evidence was extremely prejudicial, the district court properly instructed the jury regarding the limited use of the evidence. Additionally, the prosecutor explained to the jury that the prior conviction was not proof of guilt. These precautionary measures appropriately and adequately protected Spear from illegitimate and improper use of the Spreigl evidence as proof of guilt for the charged offense.

Nevertheless, Spear, relying on State v. Cogshell, argues that admission of his prior conviction created the substantial possibility that the jury improperly considered it in determining guilt for the charged crime. 538 N.W.2d at 122-24. Spear contends that this problem was exacerbated because the prosecution had difficulty linking him to the drugs found in the vehicle. However, in Cogshell, the supreme court upheld the admission of Spreigl evidence where the only similarities between the Spreigl and charged offenses were the type and amount of drug and the packaging used by defendant. Cogshell, 538 N.W.2d at 123-24. Spear also argues that the two crimes in this case are merely the same "generic" crime of drug possession, which occurs frequently in St. Paul. Even though numerous "similar" crimes may occur daily in the same general geographic area, the supreme court explained that only the record on appeal is reviewed to determine the propriety of the district courtís admissibility determination. Id. at 124. Although the supreme court cautioned that it was a close case and that other trial courts could appropriately exercise discretion to exclude such evidence, the court upheld the district courtís admission of the Spreigl evidence. Because Cogshell involved two crimes of limited similarity, it cannot be said that the district court in this case, addressing similar crimes, issues, and evidence, abused its discretion in its conclusions and admission of Spearís prior drug conviction.

In summary, the district court properly concluded that Spearís prior drug conviction was clear and convincing proof of Spearís participation in the prior crime, relevant and material to the stateís case, and more probative than prejudicial. Therefore, the district court did not abuse its discretion in admitting the Spreigl evidence.

Affirmed.

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

[1] "[A]t least one commentator has suggested that faith is 'bad' and investigative purpose 'sole' only when an inventory search that otherwise would not have occurred is brought about." Id. at 188 (citing 3 Wayne R. LaFave, Search and Seizure ß 7.5(d), at 589-90 (3d ed. 1996)).

[2] As stated in 22 C. Wright & K. Graham, Federal Practice and ProcedureóEvidence ß 5215 at pages 274-75 (1978), "In Rule 403, 'prejudice' does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means."