This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1060

 

 

State of Minnesota,

Respondent,

 

vs.

 

George Gross,

Appellant.

 

 

Filed August 23, 2005

Affirmed

Toussaint, Chief Judge

 

Benton County District Court

File No. K3-02-539

 

 

Mike Hatch, Attorney General, James B. Early, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Robert J. Raupp, Benton County Attorney, Benton County Courts Facility, 615 Highway 23, Post Office Box 189, Foley, MN 56329 (for respondent)

 

John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant Public Defender, 332 Minnesota Street, Suite 1610, West St. Paul, MN 55101 (for appellant) 

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

In this appeal from convictions of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2000), and indecent exposure in violation of Minn. Stat. § 617.23, subd. 1(1) (2000), appellant George Gross challenges the trial court’s (1) jury instructions; (2) its admission of Spreigl evidence; (3) and its determination not to sever the charges against Gross for trial.  Because we conclude that the court did not abuse its discretion in (1) instructing the jury; (2) admitting the Spreigl evidence; or (3) denying Gross’s motion to sever the charges, we affirm.

FACTS

Gross was charged with one count of second-degree criminal sexual conduct and one count of indecent exposure based on incidents that occurred between Gross and an 11-year-old girl, K.W.  At trial, K.W. testified that, in the summer of 2001, she was playing in Gross’s yard with his children when she asked Gross for a piece of gum.  K.W. then got into the front passenger seat of Gross’s van, which was parked by a tree in the front of his residence, and Gross got into the driver’s seat.  K.W. explained that in the past Gross had offered her gum and they “always got the gum at the van.”  While they were in the van, Gross, with his hands, touched her breast and genital areas over her clothing.  K.W. further testified that Gross tried to get under her clothing but was unsuccessful because she curled up and crossed her arms and hands around her body.

K.W. also testified to an incident in the fall of 2001 when she again asked Gross for a piece of gum and got into the passenger side of his van, which was similarly parked in the front yard of Gross’s residence.  According to K.W., Gross touched her in the same manner as before, to keep him from touching under her clothing, she curled up and bit his thumb.

Finally, K.W. testified that one week after the incident in the fall of 2001 she saw Gross touching his penis.  She explained that Gross was sitting in the passenger seat of his van with the van door “wide open.”  The van was again parked under a tree in front of Gross’s residence.  K.W. explained that Gross was facing her, his zipper was open, and he was looking at her.  On cross-examination, K.W. testified to another incident of Gross exposing himself to her.

The jury found Gross guilty of both charges and the trial court sentenced him to the presumptive sentence of a stayed, 21-month term in prison.  This appeal follows.

D E C I S I O N

I.

Gross contends that the trial court erred in denying his motion to sever for trial the charge of second-degree criminal sexual conduct from the charge of indecent exposure.  We review the denial of a motion to sever under an abuse-of-discretion standard.  See State v. Dukes, 544 N.W.2d 13, 20 (Min. 1996).

If charged offenses are not related, severance is required to promote a fair trial.  Minn. R. Crim. P. 17.03 subd. 3(1).  To be joined, offenses must be “part of a single behavioral incident or course of conduct.”  State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999).  To determine whether offenses constitute a single behavioral incident, a court must look at how the offenses are related in time and geographic proximity and whether the actor was motivated by a single criminal objective.  Id. at 460.  Offenses are not properly joined for trial when they were perpetrated against separate victims, at separate times, with months in between.  See id. at 459.

Here, the record demonstrates that the charged offenses were perpetrated against the same victim and occurred in the same geographic location—a van parked in front of Gross’s residence.  The time span separating the offense of criminal sexual conduct and the offense of indecent exposure was no more than one week.  And, as found by the trial court, Gross’s course of conduct was motivated by the singular criminal objective of “condition[ing] K.W. to accept his advances by repeated exposure to sexual acts.”  K.W.’s testimony demonstrates that Gross began by offering K.W. gum if she sat in his van.  After establishing the routine of sitting in his van, Gross’s conduct escalated to sexual touching when K.W. asked for a piece of gum.  Gross’s conduct further escalated to his exposing himself to K.W.  Because the offenses were related in time and geographic proximity, and were motivated by a single criminal objective, the court did not abuse its discretion in denying Gross’s motion to sever the charges for trial.

II.

Evidence of the commission of other crimes (Spreigl evidence) may be admitted to establish motive, intent, absence of mistake or accident, identity, or common scheme or plan, but is inadmissible to prove that the accused acted in conformity with his or her character.  State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000); Minn. R. Evid. 404(b).  To admit Spreigl evidence, the trial court must determine that (1) there is clear and convincing evidence that defendant participated in the Spreigl 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.  Robinson, 604 N.W.2d at 363.  The admission of Spreigl evidence lies within the sound discretion of the trial court.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).

First, Gross contends that the trial court abused its discretion in admitting a prior occurrence of indecent exposure because the act was not proved by clear and convincing evidence.  “[C]lear and convincing evidence is more than a preponderance of the evidence but less than proof beyond a reasonable doubt [and] is met when the truth of the facts sought to be admitted is highly probable.”  State v. Shannon, 583 N.W.2d 579, 584 (Minn. 1998).

A 14-year-old boy testified to waiting for his mother at a parking lot near Sauk River where he had been fishing.  The boy testified that while he was in the parking lot, he saw Gross masturbating while Gross sat in an automobile.  The boy’s mother also testified to driving past the same automobile and seeing Gross “masturbating.”  This testimony constitutes clear and convincing evidence of the commission of indecent exposure.

Second, Gross contends that the trial court abused its discretion because the prior act of indecent exposure was not relevant and material to the state’s case.  We disagree.  Prior acts of sexual conduct are often relevant in sexual-conduct cases when the defendant disputes that the conduct occurred or asserts that the victim is fabricating the allegations.  See State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn. 1993) (concluding that other crimes evidence, consisting of defendant’s prior opportunistic fondling of young girls, was admissible to show common plan or scheme and to establish that the alleged criminal act of second-degree criminal sexual conduct against another young girl occurred).  Here, as in Wermerskirchen, the evidence of indecent exposure to another child of an age similar to K.W.’s demonstrates that Gross’s conduct was part of a common plan or scheme, as opposed to fabrication or mistake in the perception of K.W.

Because the other act of indecent exposure was proved by clear and convincing evidence and is relevant to the crimes charged, the trial court did not abuse its discretion in admitting the Spriegl evidence.

III.

Finally, Gross contends that the trial court’s jury instructions, to which he did not object at trial, denied him the right to a unanimous jury verdict.  Generally, a defendant’s failure to object to instructions before they are given to the jury constitutes a waiver of the right to raise the issue on appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  An appellate court, however, has discretion to consider the issue on appeal if there is error, the error is plain, and the error affects the defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Appellate review is required only if a trial error existed clearly under applicable law at the time of conviction and the error was so prejudicial to the defendant’s right to a fair trial that the defendant’s failure to object would not forfeit his right to a remedy.  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).

First, Gross contends that he was denied his right to a unanimous verdict when the trial court failed to instruct the jury that it had to agree unanimously on which of the two alleged acts of criminal sexual conduct Gross committed.  In Minnesota, unanimous jury verdicts are required for criminal cases.  Minn. R. Crim. P. 26.01, subd. 1(5).  When “jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict.”  State v. Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001).

The trial court instructed the jury on five elements of the charge of second-degree criminal sexual conduct.  The instruction told the jury that they had to find beyond a reasonable doubt that the unlawful conduct “took place during the summer and fall of 2001 in Benton County.”  (Emphasis added.)  The trial court further instructed the jury that “each juror must agree with the verdict” and that the “verdict must be unanimous.”

Under these instructions, the jury was not permitted to choose between the two alleged acts of misconduct, as Gross contends, but had to unanimously agree that Gross committed criminal sexual conduct in the summer of 2001 and the fall of 2001. The jury returned a verdict of guilty, and, when polled, each juror told the court that they agreed with the verdict.  On this record, we cannot conclude that the trial court’s instructions denied Gross the right to a unanimous jury verdict on the charge of second-degree criminal sexual conduct.

Second, Gross contends that he was denied his right to a unanimous verdict when the trial court failed to instruct the jury that it had to agree unanimously on which of the two alleged acts of indecent exposure Gross committed.  But the prosecution only brought forward evidence of one occurrence of indecent exposure—the incident when K.W. saw Gross masturbating in his van, which took place one week after the incident in the fall of 2001 of sexual conduct.  The second occurrence of indecent exposure was raised by Gross on cross-examination for the purpose of undermining K.W.’s credibility.

We note that the trial court may have caused some confusion by instructing the jury that, to find Gross guilty of the indecent-exposure charge, it had to find that the act of indecent exposure “took place in the summer and fall of 2001 in Benton County.”  (Emphasis added.)  Nevertheless, the prosecution only raised one occurrence of indecent exposure, in the fall of 2001, and argued only that the evidence supported a guilty verdict based on that occurrence.  The jury heard K.W.’s testimony, including her repeated acknowledgment that the incident took place one week after the occurrence of sexual conduct in the fall of 2001.  On this record, we cannot conclude that the error, if any, was so prejudicial that it affected the outcome of the case.  See Griller, 583 N.W.2d at 741 (stating that to demonstrate that error affected substantial rights, defendant bears “heavy burden” of persuasion to show that outcome of case was affected).

Affirmed.