This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



James Edward White,


Filed March 3, 1998


Toussaint, Chief Judge

Hennepin County District Court

File No. 95067644

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

Michael O. Freeman, Hennepin County Attorney, Gayle Hendley-Zappia, Assistant County Attorney, C2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.**

Retire judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


TOUSSAINT, Chief Judge

Appellant James Edward White appeals his convictions of first-degree criminal sexual conduct, third-degree criminal sexual conduct, and kidnapping, arguing that the district court erred in admitting the Spreigl evidence of his prior convictions for criminal sexual conduct. In his pro se supplemental brief, White challenges (1) the admissibility of the DNA test results and the evidence seized during a search; and (2) the trial court's denial of his motion to dismiss the amended kidnapping charge for lack of a judge's signature on the complaint. Because the trial court did not err in admitting the DNA and Spreigl evidence, and because there was sufficient evidence to support the conviction, we affirm.



Evidence of other crimes or acts is inadmissible to prove a defendant's propensity to commit the charged offense, but such evidence may be admitted, "'to establish motive, intent, absence of mistake or accident, identity or common scheme or plan.'"

State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991) (citations omitted). The decisions to admit evidence of other crimes rests within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Where the admissibility of Spreigl evidence is unclear, the defendant is to be given the benefit of the doubt and the evidence rejected. Id.

To admit Spreigl evidence, the trial court must find that the: (1) evidence is clear and convincing that the defendant participated in the Spreigl incident; (2) Spreigl evidence is relevant and material to the state's case; and (3) probative value of the Spreigl evidence outweighs its potential for unfair prejudice. Id. In weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial. State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991).

Here, White argues that because of the DNA evidence, the state's case against him was strong, and therefore there was no need for the Spreigl evidence. We disagree. As the supreme court stated:

"Need" for other-crime evidence is not necessarily the absence of sufficient other evidence to convict, nor does exclusion necessarily follow from the conclusion that the case is sufficient to go to the jury. A case may be sufficient to go to the jury and yet the evidence of other offense may be needed because, as a practical matter, it is not clear that the jury will believe the state's other evidence bearing on the disputed issue. The trial court generally is 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, 197, n.2 (Minn. 1995) (citations omitted).

White denied having sexually assaulted the victim. The victim testified that when she arrived at his apartment, White told her that they "had an understanding" for consensual sex. Therefore, intent was an issue and the state argued it needed the Spreigl evidence to prove that what happened in the apartment was not consensual sex. Also, the prior convicted offenses were relevant to prove modus operandi because they are similar to the present charges in that all the offenses were committed in an apartment and the victims were threatened with physical force. The Spreigl evidence would assist the jury in evaluating White's denial of the charged offenses, and to corroborate the victim's testimony. See State v. Wiskow, 501 N.W.2d 657, 660 (Minn. App. 1993) (holding that evidence of the subsequent sexual offense was admissible because it assisted the jury in placing White's conduct in its proper and relevant context, enabled evaluation of his denial of the forced-touching incident, and corroborated the victim's testimony about the incident). We conclude that under the circumstances the trial court did not err in admitting the Spreigl evidence.


"Rulings on evidentiary matters rest within the sound discretion of the district court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). In his pro se supplemental brief, White argues that the trial court erred in admitting DNA evidence. He argues that the DNA evidence was not admissible because (1) the defense was not given the opportunity to perform an independent testing on the DNA samples; and (2) the trial court did not conduct a Frye hearing on the DNA evidence.

White's argument is contrary to the record. The record shows the trial court allowed the defense to test blood samples taken from the victim. Further, White never

raised the issues of testing his and the other defendants' DNA samples at a Frye hearing. Issues not presented to the trial court will not be reviewed for the first time on appeal. Ness v. Ylvisaker, 412 N.W.3d 769, 770 (Minn. App. 1987). Thus, these issues are not properly before us.

White next challenges the admissibility of the evidence seized in the search of the apartment without a warrant. The trial court found that the search was lawful because the entry was with the apartment owner's consent and the items seized were discovered in plain view. Under the circumstances the trial court did not err in admitting the seized evidence. The record shows the officers entered the apartment with the owner's express consent. See State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996) (consent justifies a warrantless entry of a person's home in order to make an arrest). Further, the used condoms, condom wrappers, and the wooden stick were discovered in plain view and their incriminating nature was immediately apparent based on the victim's report that she was sexually assaulted and White threatened her with a stick. See State v. Lembke, 509 N.W.2d 182, 184 (Minn. App. 1993) (the plain view doctrine allows police, once lawfully in a position to see incriminating evidence, to seize that evidence if its incriminating nature is "immediately apparent").

Finally, White challenges the trial court's decision in not dismissing the amended kidnapping charge on the ground that a judge did not sign the amended complaint. This argument lacks merit because under Minn. R. Crim. P. 2.02, a judge's signature on the amended complaint is not necessary.