This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
C3-99-989
State of Minnesota,
Respondent,
vs.
Tony Dejuan Jackson,
Appellant.
Affirmed
Dakota County District Court
File No. K1-97-2857
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.
RANDALL, Judge
On appeal from convictions for first-degree criminal sexual conduct and first-degree burglary, appellant Tony Dejuan Jackson argues that the district court erred in admitting evidence of prior criminal sexual conduct offenses to establish identity. Jackson also challenges his sentence, arguing that the district court erred by imposing a consecutive sentence for burglary in conjunction with an upward durational departure for first-degree criminal sexual conduct. We affirm.
FACTS
R.F. lived in an apartment in Inver Grove Heights with two roommates. On May 16, 1997, R.F. left the apartment door unlocked because one of her roommates had gone out for the evening and had not taken a key with her. At about 1:30 a.m. on May 17, 1997, a black male knocked on the door to the apartment next door to R.F.’s. When M.M. opened the door, the man, whom M.M. later identified as Jackson, asked for N., indicated that N. lived next door, and said that he had knocked but no one answered next door. M.M. telephoned next door for the man, but no one answered. When M.M. informed the man that no one had answered, he thanked M.M. for her time and apologized for bothering her.
At about 1:45 a.m. on May 17, 1997, R.F. woke up and heard someone in her apartment knocking on doors, including her bedroom door. R.F.’s bedroom door was locked, and she did not answer the knock on it. Thinking it was her roommate, R.F. was not concerned and fell back to sleep. When she got up at 7:00 a.m., she saw a man lying on the couch, whom she assumed was a friend of her roommate’s.
When R.F. came out of the bathroom, a man wearing a dark facemask pointed a gun at her, grabbed her, swore at her, repeatedly told her to shut up, and dragged her into her bedroom. R.F. described the man as a tall, black male with a medium build. The man pushed her down on the bed, handcuffed her, and put a towel in her mouth and duct tape all over her face, including her eyes. The man sexually penetrated her vaginally and twice anally. R.F. described the anal penetration as extremely painful. When the man finished assaulting R.F., he wiped her off with a towel and left the apartment, leaving R.F. blindfolded and handcuffed. The police officer who responded to R.F.’s call to 911 found R.F. half-kneeling and half-lying on the floor, handcuffed, with gray duct tape wrapped all around her head and also found a bloodstained towel in R.F.’s bedroom. When R.F. later heard Jackson’s voice at a court hearing, she recognized it as belonging to the man who sexually assaulted her.
R.F.’s former roommate, N., testified that, twice in 1997 before moving out of the apartment she shared with R.F., she had lunch with Jackson and that he had been to her apartment.
On May 19, 1997, two St. Paul police officers stopped Jackson’s car. The officers asked Jackson, who was nervous and fidgeting, to get out of the car. When he did, the officers saw a steak knife in the area where Jackson had been fidgeting. Jackson said he had nothing illegal in his car and told the officers to go ahead and search it. In the car, officers found a box of 9-mm bullets, a blue fanny pack labeled “The St. Paul” containing a loaded 9-mm handgun and a set of handcuff keys, a blue handkerchief, a roll of gray duct tape, a long rope, a cell phone, and several towels. It was later determined that the end of the roll of gray duct tape exactly matched the end of the duct tape wrapped around R.F.’s face and that the handcuff keys unlocked the handcuffs used on R.F. On Jackson’s person, the officers found three four-foot pieces of rope and a blue nylon skullcap with eyeholes cut out.
On May 4, 1997, at about 3:00 p.m., E.R. was alone at home when a black man knocked on the door and asked if he could use the telephone. E.R. let him come in. She noticed that he had a blue fanny pack with the words “St. Paul” on it. After using the telephone, the man grabbed E.R., put a gun to her head, swore at her, told her to shut up or he would kill her, and forced her into a bedroom. When she said her parents would return soon, the man responded that he would kill them too. The man put a sheet in E.R.’s mouth, a blanket over her head, and handcuffed her hands behind her back. The man penetrated E.R. vaginally and then attempted to penetrate her anally, but stopped when she protested, and began penetrating her vaginally again. Before leaving, the man removed the handcuffs and tied E.R.’s hands with yarn. E.R. identified Jackson as her assailant, and a jury convicted him of first-degree criminal sexual conduct.
Shortly before 7:00 a.m., on May 8, 1997, C.B. awoke in her bedroom to find a man putting a pillow over her head. She observed that her attacker was a black man, wearing a fanny pack with the words “The St. Paul” printed on it in white lettering. The man wrapped duct tape around C.B.’s head and tied her arms behind her back with rope. After sexually penetrating her vaginally and anally, he wiped her off with a cloth towel or wash cloth and then removed the duct tape and penetrated her orally. When the man was done sexually assaulting C.B., he put a sock in her mouth and duct taped over it.
C.B. also testified about an incident that occurred in February 1997 when she came home late and found an unknown black man in her home. The man asked for Cindy. After stating that no one by that name lived there, C.B. forcefully ordered the man out of her home. C.B. identified Jackson in a videotape lineup as the man who had been in her house in February 1997 and identified his voice as the voice of the man who sexually assaulted her.
D E C I S I O N
I.
The decision whether to admit other crimes evidence, commonly referred to as Spreigl evidence, lies within the district court’s discretion and will not be reversed absent an abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). A defendant has the burden of showing that the district court erred in admitting this evidence. State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993).
Spreigl evidence may be admissible when identity is at issue and a defendant presents an alibi defense. State v. Billstrom, 276 Minn. 174, 177-78, 149 N.W.2d 281, 284 (1967); see also Moorman, 505 N.W.2d at 602 (upholding admissibility of Spreigl evidence used to establish identity in sexual assault case). Spreigl evidence, however, shall not be admitted in a criminal prosecution unless the district court determines (1) the evidence is clear and convincing that the defendant participated in the other offense; (2) the evidence is relevant and material to the state’s case; and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded. State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).
The Spreigl evidence in this case meets the threshold requirement for admissibility because identity was at issue. R.F.’s assailant was masked. There was no eyewitness identification. Jackson presented an alibi defense, testifying that he could not have been the person who knocked on M.M.’s door because he was working at 1:30 a.m. on May 17, 1997. Jackson does not dispute that there was clear and convincing evidence that Jackson participated in the Spreigl offenses.
A. Relevance and Materiality
In determining the relevance 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. The closer the relationship between the events, the greater the relevance or probative value of the evidence and the lesser the likelihood the evidence will be used for an improper purpose.
Kennedy, 585 N.W.2d at 390 (quotations and citations omitted).
There were significant similarities between the charged offense and the Spreigl offenses, all of which occurred within a two-week period in May 1997. The following elements were common to all three offenses: Jackson gained entry to each victim’s home when the victim was at home alone; Jackson penetrated or attempted to penetrate the victims vaginally and anally; Jackson secured the victims’ hands behind their backs; Jackson gagged the victims by putting cloth in their mouths and taping over it; and Jackson covered the victims’ heads during the sexual assaults. In addition, in the offenses against C.B. and R.F., Jackson wrapped gray duct tape around the victims’ heads and seemed particularly excited during the anal penetration. The district court did not err in finding that the Spreigl evidence was relevant and material to the issue of identity. See Moorman, 505 N.W.2d at 601 (upholding admission of four Spreigl incidents when Spreigl incidents and current offense occurred during period of just over three years and appellant was incarcerated during two of those years; all victims were assaulted in grassy, remote areas and strangulation was threatened or carried out; in all Spreigl incidents, victims were hit or slapped; and numchucks were found at scene of two of Spreigl incidents).
We recognize the validity of Jackson’s complaint that despite finding that the prosecution “needed” the Spreigl evidence to establish identity, later, when departing upward from the guidelines in sentencing Jackson, the district court commented that “this was one of the strongest criminal cases with regard to physical evidence that I’ve seen.” The district court’s overly enthusiastic comment, however, has to be taken in the context that it followed the jury’s guilty verdict. The fact remains that the set of circumstances here presented one of the more valid instances of the overused and much abused Spreigl/Billstrom rule. When a legitimate issue of identity exists, and the defendant previously, by clear and convincing evidence, is shown to have done similar things with a similar modus operandi, you have the rare case for which Spreigl/Billstrom was written.
B. Probative Value Versus Prejudicial Effect
Jackson argues that the district court erred in determining that the probative value of the Spreigl evidence was not outweighed by its potential for unfair prejudice. 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).
Here, the state crafted a chain of circumstantial evidence connecting Jackson to the offense against R.F.: a roll of duct tape, the end of which exactly matched that wrapped around R.F.’s head; a set of handcuff keys that unlocked the handcuffs used on R.F.; a gun matching the description of the gun R.F. was threatened with; M.M.’s identification of Jackson as the person who knocked on her door; R.F.’s testimony that she recognized Jackson’s voice as that of the person who assaulted her; and evidence matching semen found on R.F.’s robe to Jackson’s DNA, but with a possibility of a random match of one in 1,200 individuals in the African-American population. This evidence did not conclusively establish identity, and its strength was undercut by Jackson’s alibi defense. The similarity in modus operandi among the offense against R.F. and the Spreigl offenses provided reasonable evidence identifying Jackson as the person who sexually assaulted R.F. The district court did not err in finding that the probative value of the Spreigl evidence was not outweighed by its potential for unfair prejudice.
II.
The district court has discretion to depart upward only if substantial and compelling aggravating factors are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). The district court should impose the presumptive sentence absent circumstances indicating that a departure is warranted. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The departure must be proportional to the severity of the offense. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).
Generally, a durational departure should not be greater than double the presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). The doubling limit does not apply when severe aggravating circumstances are present. State v. Stumm, 312 N.W.2d 248, 249 (Minn. 1981); see also Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996) (stating consecutive sentencing may be combined with double durational departure when severe aggravating circumstances exist).
Jackson concedes that the district court acted properly in sentencing him to 360 months for the criminal sexual conduct offense. See Minn. Stat. § 609.109, subd. 4 (1998) (mandating 30-year sentence for conviction under Minn. Stat. § 609.342, subd. 1(c), for repeat offenders when aggravating factor is present). The sentence imposed under Minn. Stat. § 609.109 was a more than double departure from the presumptive guidelines sentence. SeeMinn. Sent. Guidelines IV (stating maximum presumptive sentence for first-degree criminal sexual conduct conviction when defendant’s criminal history score is four is 139 months); State v. Hamacher, 511 N.W.2d 458, 461-62 (Minn. App. 1994) (recognizing statutory sentence enhancements are departures); see also Minn. Stat. § 609.109, subd. 6 (1998) (listing minimum departure for sex offenders). We must, therefore, determine whether severe aggravating circumstances support the additional departure with respect to consecutive service.
Jackson penetrated R.F. vaginally and twice anally. Multiple penetrations may support a double durational departure. State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). Although R.F. was technically a young adult, the court found she was vulnerable due to her young age. See State v. Jackson, 596 N.W.2d 262, 267 (Minn. App. 1999) (aggravating factor when although by chronological age victim was not child, the court had opportunity to assess her emotional maturity, sophistication, and vulnerability), review denied (Minn. Aug. 25, 1999). Here, Jackson threatened R.F. with a gun, handcuffed her hands behind her back, wrapped her head in duct tape, gagged her with a cloth, and caused her physical injury. See Perkins v. State, 559 N.W.2d 678, 691 (Minn. 1997) (discussing particular cruelty as aggravating factor). The state cites Jackson’s invasion of R.F.’s zone of privacy as an aggravating factor. We reject that factor and do not consider it part of the state’s offer. Entering the apartment is an element of burglary, and Jackson was sentenced for burglary. Thus, invasion of the zone of privacy is not an appropriate factor to support a departure. See State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991) (being held hostage could not be used as aggravating factor for criminal sexual conduct where defendant was also sentenced for kidnapping since that factor was element of kidnapping).
We conclude that Jackson’s overall course of conduct in committing the criminal sexual assault and burglary offenses against R.F. warrants the sentence imposed by the district court. See Jackson, 596 N.W.2d at 267 (affirming double departure and consecutive sentencing for offenses Jackson committed against E.R.).
We have examined the additional issues raised by Jackson in his pro se supplemental brief, and they do not change our analysis.
Affirmed.