This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the Welfare of: J.K.W., Child.

Stearns County District Court

File No. J69650159

Filed July 1, 1997


Crippen, Judge

Charlann Elizabeth Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Dennis A. Plahn, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.



Appellant J.K.W. claims that the trial court erred when it improperly admitted Spreigl evidence and that the other evidence in the case was insufficient to permit the trial court's adjudication that appellant committed a delinquent act of second-degree criminal sexual conduct. We affirm.


The trial court found that appellant, a 17-year-old girl, sexually assaulted B.R. twice between the summer of 1993 and the summer of 1994. B.R., a ten-year-old girl, testified during the trial that she had been fondled by appellant during two overnight stays at the home of her grandmother.

There were a number of inconsistencies in B.R.'s testimony. B.R. once stated that the assault occurred at appellant's home. She gave conflicting testimony on the parts of her body that were touched and on the question of whether the girls mutually engaged in touching.

Due to the inconsistencies throughout B.R.'s testimony, the petitioner offered Spreigl evidence of similar conduct exhibited by appellant directed towards A.W., appellant's two-and-a-half-year-old cousin. Because A.W. was found incompetent to testify, the petitioner offered the testimony of A.W.'s mother, father, and grandmother. The court admitted this testimony over appellant's objections. The Spreigl witnesses testified that they overheard A.W. make mention of instances where appellant had harmed her. A.W.'s mother testified that A.W. said appellant had used a toy in her bottom. There was also testimony by A.W.'s father that A.W. asked him, "Why does cousin hurt my bottom?," and by A.W.'s grandmother

that she overheard A.W. say, "Cousin hurts my bottom and makes me cry." These statements by A.W. were said to be unsolicited. Testimony was also admitted establishing that A.W.'s vagina was red and that she exhibited a general dislike towards appellant after the occurrence.


The admission of Spreigl evidence will not be considered error absent a clear abuse of the trial court's discretion. State v. DeWald, 464 N.W. 2d 500, 503 (Minn. 1991).

In determining the admissibility of Spreigl evidence, the trial court must find (1) that the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) that the evidence is relevant and material to the state's case, and (3) that the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice. State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988). When the admissibility of Spreigl evidence is unclear, the accused must be given the benefit of the doubt, and the evidence must be rejected. State v. Titworth, 255 N.W.2d 241, 246 (Minn. 1977). To determine relevance and materiality 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. Matteson, 287 N.W.2d 408, 411 (Minn. 1979). Generally, the greater the similarity of the other crime to the crime charged in time, place, or modus operandi, the greater the chance that evidence of the other crime is admissible. Id.

Appellant argues that the petitioner's Spreigl evidence should have been barred because the truth of the prior act was not established by clear and convincing evidence. Appellant's argument is not persuasive. The record shows that A.W.'s mother, father, and grandmother heard A.W. make unsolicited statements that appellant touched her in a harmful and offensive manner. Moreover, the physical and emotional manifestations exhibited by A.W. tend to support the truth of her statements. A.W.'s vagina was red and irritated after the incident, and her emotional disposition toward appellant changed markedly. The petitioner's Spreigl testimony is supported by clear and convincing evidence that the prior acts occurred.

Appellant contends that testimony on A.R.'s statements was improperly admitted. Because fabrication of these statements by a two-and-a-half-year-old child would be unlikely, they were sufficiently reliable for admission under Minn. Stat. § 595.02, subd. 3 (1996). See State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990) (holding that a child's unsolicited statements regarding an incident of sexual abuse where the child described the abuser as well as the nature of the abuse was reliable because such statements are not the sort of thing a child would fabricate), cert. denied, 498 U.S. 1033 (1991).

The number of similarities between the immediate case and the incident involving A.W. supports the court's finding that the evidence was material and relevant. Both situations involved the same sort of touching, both victims were young children, they took place when appellant had private access to the children, and both children were female. See Matteson, 287 N.W.2d at 411 (holding that the greater the similarity between the cases in time, place, or modus operandi, the greater the chance the prior crime is admissible). This evidence is probative because it is crucial to the petitioner's case. See State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) (holding that Spreigl evidence is admissible only if the trial court finds that the evidence is necessary to support the state's burden of proof). We conclude the evidence was material, relevant, and probative and the trial court did not err when it admitted the Spreigl evidence.

Because we hold that the evidence was properly admitted, we need not consider appellant's claim that absent the Spreigl evidence there was too little evidence to permit a finding that she committed the delinquent act.