State of Minnesota, Respondent, vs. Kevin Scott Linge, Appellant. A05-2125, Court of Appeals Unpublished, January 2, 2007.

This opinion will be unpublished and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

A05-2125

State of Minnesota,
Respondent,

vs.

Kevin Scott Linge,
Appellant.

Filed January 2, 2007

Affirmed

Peterson, Judge

St. Louis County District Court

File No. K8-04-601159

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

Alan Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this appeal from a conviction of second-degree criminal sexual conduct, appellant argues that the district court abused its discretion by admitting other-acts evidence and that the evidence was insufficient to support the conviction. We affirm.

FACTS

Appellant Kevin Linge was charged by complaint with second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2004). According to the complaint, on August 16, 2004, Linge put his hand down his cousin’s seven-year-old daughter’s underpants and touched her and also rubbed her breast area under her shirt. The complaint states that investigators spoke with two other relatives of Linge, C.B. and F.B.,[1] now teenagers, who both reported that Linge put his hand down their pants when they were approximately eight years old. In February and March 2005, the state gave notice of its intent to introduce evidence at trial regarding Linge’s prior acts involving C.B. and F.B. The first notice stated that the evidence was being offered to show intent, absence of mistake, or modus operandi. The second notice stated that the evidence was being offered to show intent, motive, common scheme or plan, or absence of mistake.

Linge waived his right to a jury trial, and a court trial was held. At trial, the victim, K.A.L., testified that Linge touched her inside her underpants on her “private parts.” According to K.A.L.’s mother and a videotaped interview of K.A.L., K.A.L. had earlier described the touching as being just above her genitals. Mother testified that K.A.L. had pointed to the area “[w]here your pubic hair would be.” The district court admitted the testimony of C.B. and F.B., who both testified that Linge had put his hand down their pants when they were younger. The district court found Linge guilty of second-degree criminal sexual conduct and imposed a 21-month, stayed sentence. This appeal followed.

D E C I S I O N

Linge argues that (1) the district court erred in admitting the other-acts evidence; and (2) the evidence was insufficient to support the conviction.

At trial, “[e]vidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). Other-acts evidence may, however, be admissible in a criminal prosecution to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.; State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965). Such evidence is commonly referred to in Minnesota as Spreigl evidence. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). The appellant bears the burden of establishing that the district court’s evidentiary rulings were in error and that the defendant was thereby prejudiced. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).

Before admitting Spreigl evidence, the district court must determine that (1) the state gave notice of its intent to admit the evidence; (2) the state clearly indicated what it would offer the evidence to prove; (3) there is clear and convincing evidence that the defendant participated in the prior act; (4) the evidence is relevant and material to the state’s case;and (5) the probative value of the evidence is not outweighed by its potential prejudice to the defendant. State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006); (citing Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005)). “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.” Kennedy, 585 N.W.2d at 389.

Linge argues that the district court committed reversible error in admitting the Spreigl evidence because (1) the evidence that he participated in the prior acts was not clear and convincing; (2) the evidence of the prior acts was neither relevant nor material to the case; and (3) any probative value was outweighed by the potential prejudice. Linge also argues that the Spreigl evidence affected the verdict.

1. Linge contends that the district court “failed to make the required finding that Linge’s involvement in the other acts was established by clear and convincing evidence.” But immediately before announcing its decision to admit the other-acts evidence, the district court explained:

The Court, in deciding whether Spreigl evidence should be admitted or not, must consider the strength of the State’s case and whether the other charges -- or allegations in the report are -- are shown by clear and convincing evidence and whether they’d be relevant.

For purposes of showing intent or motive in this matter, the Court is going to allow the Spreigl evidence to come in.

. . . .

I’m going to allow this in, but only as proof of motive or intent, preparation or plan, and we’ll go from there.

Although the district court did not explicitly state that Linge’s involvement in the other acts was established by clear and convincing evidence, we conclude that by explicitly stating the applicable standard of proof in the sentence before it announced that it was admitting the evidence, the district court demonstrated that it found that the evidence of Linge’s involvement in the other acts was clear and convincing.

Linge concedes that prior offenses need not be charged for evidence of the offenses to be admissible, but he argues that the evidence of the prior acts was not clear and convincing because the other acts were not charged, or even reported, until after K.A.L. made her allegations, and C.B.’s and F.B.’s testimony was rebutted by their delays in reporting, their earlier statements that they had not been abused, their normal interactions with Linge after he allegedly abused them, and by their father’s testimony, which contradicted their testimony that Linge was living with them when the abuse occurred. But the rebuttal evidence that Linge refers to was not presented until after the district court ruled that the Spreigl evidence would be admitted. The district court did not abuse its discretion by not considering evidence that had not been presented.

Evidence of “a defendant’s participation in a Spreigl incident may be considered clear and convincing when it is highly probable that the facts sought to be admitted are truthful.” Ness, 707 N.W.2d at 686. The district court stated that it had “scanned the [police] reports having to do with the possible Spreigl evidence” before deciding whether to admit the evidence. The police reports establish that it is highly probable that Linge participated in the Spreigl incidents. The reports indicate that C.B. reported that Linge put his hand down her pants a number of times and his conduct eventually escalated to digital penetration and continued until she was approximately 12 years old. F.B. reported only one incident when Linge put his hand down her pants. The reports also include a statement by the girls’ father that one night when Linge was staying at their house, he heard a noise, and when he went to see if everything was all right, he found Linge coming out of C.B.’s room. C.B.’s father became suspicious when Linge overreacted to questions about why he was in C.B.’s room. In addition, C.B.’s mother reported to the police that when C.B. was approximately 12 years old, she no longer wanted anything to do with Linge. Linge has not established that the district court abused its discretion in determining that the evidence of his participation in the Spreigl incidents was clear and convincing.

2. Linge argues that (a) the district court did not state how the Spreigl evidence was relevant to any disputed fact; (b) motive is not a proper basis for admitting the evidence; and (c) the evidence lacked the required “marked similarity” to the charged offense to be admissible to show common scheme or plan. See Ness, 707 N.W.2d at 688 (stating that to be admissible under common scheme or plan exception, bad act must have marked similarity in modus operandi to charged offense). Relevant evidence, which is evidence that tends to make the existence of any consequential fact more or less probable, is admissible. Minn. R. Evid. 401, 402. When evaluating Spreigl evidence, the more similar the prior crime is “to the crime charged in time, place or modus operandi, the greater the chance that the other crime is relevant.” State v. Matteson, 287 N.W.2d 408, 411 (Minn. 1979).

The district court stated that the evidence was being admitted “as proof of motive or intent, preparation or plan.” Even if the district court erred in admitting the Spreigl evidence as proof of motive, the district court did not err by admitting the evidence as proof of intent. See Ness, 707 N.W.2d at 686-87 (discussing need for district court to identify precise disputed fact that Spreigl evidence relates to and discussing distinction between motive and intent). To prove a violation of Minn. Stat. § 609.343, subd. 1(a) (2004), it was necessary to prove that Linge engaged in sexual contact with K.A.L. And to prove that there was sexual contact, it was necessary to prove that Linge acted with sexual or aggressive intent. See Minn. Stat. § 609.341, subd. 11 (2004) (defining “sexual contact”).

In Ness, which involved a teacher who touched a student’s intimate parts, the supreme court determined that intent was not the real issue because sexual or aggressive intent could readily be inferred from the contacts themselves because there could be no other reason for the teacher to touch the student’s intimate parts. 707 N.W.2d at 687. But here, Linge told police that he has memory problems from a major concussion he suffered in 1995 and he has been diagnosed with posttraumatic stress disorder due to an experience he had as a first responder. Linge also told police that if K.A.L. said that he touched her private parts under her clothing, he would have to say that she is not lying. Linge said that he may have acted out in a sexual manner because he was upset and crying, but he did not recall doing so. Given this explanation of events, whether Linge acted involuntarily or with sexual or aggressive intent was an issue at trial, and the Spreigl evidence was relevant to this issue. Because the evidence was admissible as proof of intent, we will not address whether it was admissible for other purposes.

3. Linge argues that the probative value of the Spreigl evidence was outweighed by the potential for unfair prejudice.

[W]hen balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state’s case. Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state’s burden of proof, should the trial court admit the Spreigl evidence.

Kennedy, 585 N.W.2d at 391-92 (quotation and citations omitted); see Ness, 707 N.W.2d at 690 (holding that the state’s need for the Spreigl evidence should be addressed only in the context of balancing probative value against potential prejudice, rather than as an independent requirement); see also State v. DeWald, 464 N.W.2d 500, 503-04 (Minn. 1991) (stating that although risk of prejudice is present whenever Spreigl evidence is admitted, in weighing probative value against prejudicial effect, district court must consider extent to which Spreigl evidence is crucial to state’s case). Even when there is sufficient evidence to convict, Spreigl evidence may be needed because, as a practical matter, it is not clear that the fact-finder will believe the state’s other evidence regarding the disputed issue. Angus, 695 N.W.2d at 120.

Contrary to Linge’s contention, the Spreigl evidence was relevant to the state’s case, and the state demonstrated its need for the evidence based on the lack of physical evidence, the issue of credibility, and the relevance to the issue of intent in light of Linge’s claim that he did not recall touching K.A.L.’s intimate parts. Also, the admission of Spreigl evidence is less prejudicial when the trial is to the court rather than to a jury. Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Under these circumstances, the district court did not abuse its discretion in finding that the probative value of the Spreigl evidence outweighed its potential for unfair prejudice. See State v. Duncan, 608 N.W.2d 551, 557 (Minn. App. 2000) (affirming the admission of Spreigl evidence when the state’s evidence consisted of the statements of two alleged child victims and there was no physical evidence of sexual contact), review denied (Minn. May 16, 2000).

Linge argues that a new trial must be ordered because the Spreigl evidence affected the verdict. See Ness, 707 N.W.2d at 691 (stating that if district court erroneously admitted Spreigl evidence, this court must determine whether there is a reasonable possibility wrongfully admitted evidence significantly affected verdict). Because we have concluded that the district court did not erroneously admit the Spreigl evidence, it is not necessary to address this issue.

II.

Linge argues that the evidence is insufficient to support the conviction because there was no evidence that he touched K.A.L.’s intimate parts. When considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [fact-finder] to reach the verdict which [it] did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The verdict will not be disturbed if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

Linge was convicted of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a), which proscribes sexual contact when the victim is under 13 years of age and the actor is more than 36 months older. For purposes of section 609.343, subdivision 1(a), sexual contact includes intentional touching with sexual or aggressive intent of the complainant’s intimate parts, or the touching of the clothing covering the immediate area of the intimate parts. Minn. Stat. § 609.341 subd. 11(a)(i), (iv). “‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttocks, or breast of a human being.” Minn. Stat. § 609.341, subd. 5 (2004). “Groin” means, “The crease or hollow at the junction of the inner part of each thigh with the trunk, together with the adjacent region and often including the external genitals.” The American Heritage Dictionary of the English Language 798 (3d ed 1992).

Linge contends that K.A.L.’s testimony that he touched her “where you’re not supposed to be touched without people’s permission” and that he touched her “private parts” is insufficient to sustain the conviction because it does not fit “groin” or “primary genital area” in the statutory definition. But K.A.L.’s testimony was not the only evidence at trial. During K.A.L.’s testimony, the prosecutor gave K.A.L. a picture of a girl and asked her to circle on the picture the area where Linge touched her. K.A.L. drew a circle around the junction of the inner part of both thighs with the trunk. The area that she circled was part of the groin. Assuming that the district court believed K.A.L., as we must, the evidence is sufficient to support the conviction.

Affirmed.