This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Randall Scott Wunderlich,


Filed February 24, 1998


Randall, Judge

Dakota County District Court

File No. K8-96-1825

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant Dakota County Attorney, Dakota County Attorney's Office, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Mark D. Nyvold, Special Assistant State Public Defender, Suite 1030, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.[*]



Appellant challenges evidentiary rulings in a trial where he was convicted of first and second-degree criminal sexual conduct. Appellant also asserts his sentence was disproportionate. We affirm.


A 12-year-old female, V.W., informed police that Appellant Randall Wunderlich touched her breasts and groin area and that she performed oral sex on him while she visited him in his home. According to V.W., she went to Wunderlich's home with a friend. After her friend left, she and Wunderlich began cuddling and he began kissing and fondling her. He then asked her to perform oral sex on him, and she complied.

Wunderlich denied engaging in any sexual contact with V.W. At trial, he attempted to show that the young people in his trailer park believed he was an undercover police officer sent there to report on their activities and that V.W. had fabricated her story in an attempt to expose him.

Wunderlich was charged with first and second-degree criminal sexual conduct under Minn. Stat. §§ 609.342, .343 (1996) and convicted on both counts. The district court sentenced Wunderlich as a patterned sex offender to 30 years imprisonment and 10 years on conditional release for the first-degree criminal sexual conduct conviction and 20 years imprisonment for the second-degree criminal sexual conduct conviction, to run concurrently. The sentence for second-degree criminal sexual conduct was vacated by the district court on January 16, 1997.



A district court's decision to admit Spreigl evidence will be overturned only if it abused its discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). The district court here admitted evidence that Wunderlich was convicted of first-degree criminal sexual conduct in 1989 for the rape of his girlfriend's mother. Wunderlich broke into the victim's home and raped and injured her.

Wunderlich explains that the prosecution offered the Spreigl evidence to show a pattern of opportunistic and sexually assaultive behavior, i.e., intent. He argues that because he denied committing the charged offense, he did not place his state of mind at issue, and, therefore, evidence of intent is inadmissible under Minn. R. Evid. 404(b).

To follow Wunderlich's logic, in all cases where the defendant claims he "didn't do it," the prosecution would be prevented from introducing evidence under 404(b) because the defendant did not place his state of mind at issue. Wunderlich cites as support United States v. Thomas, 58 F.3d 1318, 1321 (8th Cir. 1995), which states that when a defendant denies only the criminal act, his state of mind is not at issue. He fails to note, however, that Thomas specifically states:

When a defendant raises the issue of mental state * * * by means of a general denial that forces the government to prove every element of its case, prior bad acts evidence is admissible because mental state is a material issue.

Id. at 1322.

Wunderlich argues that the state did not show a need for the Spreigl evidence and that the state did not have a weak case.

When weighing the probative value against the prejudicial effect, the district court must determine whether the admission of Spreigl evidence is crucial to the prosecution's case. State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991). The supreme court has pointed out that the district court is usually "in a better position than an appellate court to evaluate the reasonableness of and need for other-crime evidence in a particular case." State v. Bolte, 530 N.W.2d 191, 200 n.2 (Minn. 1995).

Here, in deciding that Spreigl evidence should be admitted, the district court relied partially on the fact that a similar charge against Wunderlich involving a different victim resulted in a hung jury. There, as here, Wunderlich raised the same fabrication defense. See State v. Kennedy, 572 N.W.2d 58, , 1997 WL 784169, at *4 (Minn. App. Dec. 23, 1997) (holding Spreigl evidence only admissible if state's case is weak on specific element and the Spreigl evidence is offered to support that element). This case presents a close question, but we conclude the district court did not commit error in finding that the prosecution's case needed the support of Spreigl evidence.

Wunderlich also argues that the Spreigl offense was not sufficiently similar to the charged offense. He explains that the prior offense was committed forcibly on a mature woman after he illegally entered her home. He insists that the only purpose for introducing evidence of this past crime was to prove his character. He argues the dissimilarity between the charged crime and his prior offense made the probative value minimal and resulted in it being unfairly prejudicial.

We recognize the strength of appellant's argument that introducing evidence of past crimes is at times a subterfuge to simply impugn a defendant's character, and even when it is not, and when it is offered legitimately, often ends up in the minds of the jury as substantive character assassination. And the law is clear: evidence of past crimes is not admissible to prove criminal propensity or character or to show that a defendant is more likely to have committed an offense. State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992).

When deciding the relevance of other-crime evidence pursuant to Rule 404(b) "the preferred approach is for the trial court to focus on the closeness of the relationship between the other crimes and the charged crimes in terms of time, place and modus operandi."

Bolte, 530 N.W.2d at 198 (quoting Frisinger, 484 N.W.2d at 31) (other citations omitted).

As the state points out, the supreme court has noted that for Spreigl purposes, there is not necessarily a difference between sexually assaulting a young girl and sexually assaulting an adult woman. State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987). The state also notes that here, as in Crocker, appellant was released from incarceration for the prior offense only a short time before the charged crime was allegedly committed. Although there are some differences between the past crime and the charged crime in this case, we cannot say that the Spreigl evidence was totally irrelevant. See DeWald, 464 N.W.2d at 503 ("[T]his court has never required absolute similarity between the charged crime and the Spreigl crime.")

Wunderlich next asserts that the district court erred by not making a specific finding that the prejudicial effect of admitting this evidence did not exceed the probative value.

The district court must balance the probative value of the evidence against the prejudicial effect before admitting Spreigl evidence. Bolte, 530 N.W.2d at 197. It is clear from the record that the district court tried to balance the prejudicial effect against the probative value. Failure to state those exact words does not require a reversal.

Wunderlich points out that the district court erred by giving an incorrect instruction on Spreigl evidence. The appropriate limiting instruction was read prior to the introduction of Spreigl evidence and again at the close of all evidence. When Wunderlich requested another instruction after the introduction of the Spreigl evidence, however, the district court stated:

You have received evidence of that offense and the prior statement admitting guilt under oath. It is admitted only for your consideration in deciding whether or not the Defendant is telling the truth. You must not consider his conviction as evidence of Defendant's character or conduct except as you may think it reflects on believability.

Wunderlich argues that Spreigl evidence is not admissible to determine credibility and asserts that the instruction effectively commented adversely on his Fifth Amendment privilege against self-incrimination and shifted the burden of proof to him. Wunderlich explains that while the state's case is not weak, neither is it overwhelming and there is a "reasonable likelihood" that the error affected the jury's verdict.

Wunderlich did not object to this instruction at trial. If a party fails to object to a jury instruction at trial, the right to challenge that instruction on appeal results in a waiver "unless the error is one of fundamental law and results in substantial and material prejudice to a defendant's rights." State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994). "The test for determining plain error is 'whether there was or was not a reasonable likelihood that any error substantially affected the verdict.'" Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996) (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).

As the state notes, the correct instruction was given prior to the introduction of the Spreigl evidence and again at the close of evidence. The jury also received a written copy of the correct instruction. Additionally, the district court properly instructed the jury that the state had the burden to prove Wunderlich's guilt beyond a reasonable doubt. See State v. Perkins, 353 N.W.2d 557, 562 (Minn. 1984) (holding no prejudicial error where district court failed to specifically instruct jury burden of proof was on state to disprove theory of self-defense but instructions did state burden of proof was on state). The error by the district court in instructing the jury, on just this one occasion, on Spreigl evidence, does not appear to have substantially affected Wunderlich's right to a fair trial.


Wunderlich argues that he was denied a fair trial because V.W. testified that he had told her about his prior drug use. V.W. testified during her direct examination that she did not believe Wunderlich was an undercover police officer because she had asked him and he denied it. On redirect, V.W. testified that she believed Wunderlich's denial because he said he had been in prison and had bodybuilding certificates from the prison. After the prosecutor asked if Wunderlich had discussed his prison time, V.W. replied, "He told me that he like used prison for drug use and --." Wunderlich's counsel objected, and the court struck the statement and informed the jury to disregard it.

Wunderlich argues the court erred by permitting the prosecution to go into details about why V.W. believed Wunderlich's denial about being an undercover officer. Wunderlich asserts that any relevance there was in permitting V.W. to detail her reasons for believing Wunderlich was outweighed by its prejudicial effect. He argues the state committed misconduct by injecting prejudicial testimony that did not legitimately advance its case and by going beyond the offer of proof made prior to this testimony. Prior to V.W.'s testimony, Wunderlich's counsel objected to any reference by V.W. to prison or guns. The district court overruled this objection, and Wunderlich does not argue on appeal that the district court erred in this ruling.

Evidentiary rulings are reviewed under an abuse of discretion standard. State v. Davis, 546 N.W.2d 30, 33 (Minn. App. 1996), review denied (Minn. May 21, 1996). Misconduct by the prosecution is considered

harmful if it played a significant or substantial role in persuading the jury to convict. * * * [T]he test is whether the misconduct is harmless beyond a reasonable doubt. The error and its impact are to be examined within the context of the record as a whole, considering the strength of the state's evidence and the weaknesses of any defense evidence.

State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993) (citation omitted).

The crux of Wunderlich's fabrication defense was his theory that the neighborhood children believed he was an undercover police officer. Consequently, it was important for the prosecution to establish that V.W. did not believe this rumor. Although the specific drug reference does not relate to this, the line of questioning by the prosecution prior to the question resulting in V.W.'s response about Wunderlich's drug use was not inappropriate. Further, the district court struck the drug use statement and told the jury to disregard it. In light of the other evidence being introduced through V.W.'s testimony regarding Wunderlich being in prison, the statement regarding drug use in prison was not overly prejudicial.


Wunderlich next argues that he was denied his right to present a defense because the district court excluded portions of an unavailable witness's testimony from a prior trial involving Wunderlich. He argues that some of the excluded testimony was relevant to determining his guilt or innocence.

Susanne Doerr, a neighborhood watch block captain and resident of the trailer park where Wunderlich lived, testified in Wunderlich's trial for third-degree criminal sexual conduct involving a different victim. Doerr requested that she not be required to testify in this case involving V.W. because after her first testimony, her property was vandalized and her family was threatened. The court granted her request and allowed the defense to present an edited version at the trial. This edited version did not include her testimony that a police officer informed the watch group in July 1996 that an undercover police officer was working there. It also did not include her testimony that she had seen two or three young neighborhood girls attempt to sit on Wunderlich's lap and put their arms around him and he pushed them away, telling them to leave.

Wunderlich insists that it was important for the jury to know there was a factual basis to support his contention that youths in the neighborhood, including V.W., had joined together to remove him from the neighborhood. He argues that Doerr's testimony regarding the police officer telling the neighborhood watch group about an undercover officer in the trailer park would have supported his theory that V.W. had a motive to fabricate her story. He also argues that testimony that he fended off young girls' advances would have indicated that he does not take advantage of young girls and would have corroborated his fabrication defense. He asserts that he had a due process right under the Minnesota and United States Constitutions to present a complete defense and excluding portions of Doerr's testimony deprived him of that right. He insists this was not harmless error because the state's evidence of guilt was not overwhelming or strong.

The testimony about Wunderlich's interaction with other young girls in public had little bearing on whether or not he was guilty of the crime charged. Doerr's testimony about a police officer stating that an undercover officer was placed in the trailer park does support Wunderlich's fabrication defense. But other witnesses did testify that there was a rumor that an undercover officer lived in the trailer park. Thus, Doerr's testimony on this issue could be construed as cumulative. Given the discretion accorded trial courts on evidentiary rulings, the court did not abuse its discretion by excluding this portion of Doerr's testimony.


The district court has discretion to depart from the sentencing guidelines only if there are aggravating or mitigating circumstances present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).

A person convicted of first or second-degree criminal sexual conduct under Minn. Stat. §§ 609.342, .343 shall be sentenced to "not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum" if the court determines: (1) he was motivated by sexual impulses or the crime "was part of a predatory pattern of behavior that had criminal sexual conduct as its goal"; (2) he endangers public safety; and (3) he "needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release." Minn. Stat. § 609.1352, subd. 1 (1996).

Wunderlich was sentenced as a patterned sex offender to a 30-year prison sentence and 10 years of conditional release. He argues the sentence was not appropriate given the lack of a clear pattern of forced, violent sexual encounters. He urges this court to modify his sentence to the presumptive sentence of 12 years and 2 months. He points to State v. Stirens where appellant's presumptive sentence was 1 year and 9 months, but the district court ordered a 15-year sentence. 506 N.W.2d 302, 306 (Minn. 1993). The supreme court reduced appellant's sentence in Stirens to 10 years. Id. The court held that the judiciary may impose limitations on the extent to which sentencing departure is available where the statute is silent on a limit. Id. at 304. The court noted there that even when an enhancement statute applies, on appeal,

"the court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court."

Id. at 305 (quoting Minn. Stat. § 244.11 (1996)).

Despite Wunderlich's contentions, Sirens does not mandate a reduction in his sentence. In that case, appellant was originally sentenced to over eight times the presumptive sentence. Id. at 305. The supreme court reduced his sentence to just under six times the presumptive sentence. Id. at 306

Although Wunderlich's sentence is long, the district court acted within the statutory guidelines. The court took into consideration Wunderlich's past rape conviction, prior second-degree assault conviction, misdemeanor and gross misdemeanor theft and misdemeanor receiving stolen property offenses, and fifth-degree assault conviction for sexually assaulting his sister when she was between the ages of 11 and 15. A psychologist evaluated Wunderlich and determined that he was amenable for treatment for his prior convictions, but not for his present conviction because he denies that he committed this offense. The court concluded Wunderlich was a danger to public safety and needed long-term treatment beyond the presumptive sentence and supervised release period.

Wunderlich's counsel conceded at oral argument that Wunderlich is not challenging the fact that he was designated a patterned sex offender, only that the sentence was excessive. The statute states that if a defendant is found to be a patterned sex offender, he must be sentenced to "not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum." Minn. Stat. § 609.1352, subd. 1. Double the presumptive sentence here is 24 years and 4 months. Thus, the district court did not abuse its discretion by sentencing Wunderlich under the patterned sex offender statute to 30 years. The reality is an upward departure of just 5 years and 8 months.


Finally, Wunderlich argues that his conviction for second-degree criminal sexual conduct arose out of the same incident, with the same victim, as his conviction for first- degree criminal sexual conduct. Therefore, he argues his sentence for second-degree criminal sexual conduct should be vacated. We agree. We simply note that on January 16, 1997, the district court filed an order vacating Wunderlich's sentence for second-degree criminal sexual conduct. Thus, this issue was resolved by the district court's order; there is no issue to address on appeal.


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