A06-317

State of Minnesota,

Respondent,

vs.

Sundae Lynn Nippa,

Appellant.

Filed February 13, 2007

Affirmed in part and remanded

Willis, Judge

Beltrami County District Court

File No. K7-04-815

Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Timothy R. Faver, Beltrami County Attorney, Court Annex, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)

Gregory K. Larson, Larson Law Office, 111 Southeast First Avenue, Little Falls, MN 56345 (for appellant)

Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

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

WILLIS, Judge

Appellant argues that the district court abused its discretion by admitting Spreigl evidence and that the district court erred by not offering appellant the opportunity to allocute at sentencing. Although we conclude that the district court did not abuse its discretion when it admitted the Spreigl evidence, it was error for the district court to deny appellant her right of allocution, and we remand for a new sentencing hearing.

FACTS

On October 28, 2003, L.W. was recuperating following the birth of her son at the North Country Hospital in Bemidji. At about 11:30 p.m., L.W. received a phone call from a woman, whose voice she recognized as that of appellant Sundae Nippa, who told L.W. that she did not “have to worry about going home tonight because [she and her son] will both die.” Phone records admitted at trial showed that a call was placed from Nippa’s cell phone to the hospital at about 11:30 p.m. that night.

This was not the first contact between L.W. and Nippa. Sometime during June 2003, L.W. became aware of a romantic relationship between Nippa and B.W., who had been dating L.W. and was the father of L.W.’s son. Between June and October 2003, L.W. and Nippa had several contacts, which L.W. characterized as “[h]ostile.” And on October 28, B.W. had come to North Country Hospital to see his newborn son, but because of the ongoing dispute between B.W. and L.W., L.W.’s family turned him away.

On May 14, 2004, Nippa was charged with one count of making terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002). At trial, the state sought to introduce evidence of two past incidents of harassment of L.W. allegedly committed by Nippa. On September 4, 2003, B.W. was scheduled to undergo a paternity test to determine whether he was the father of L.W.’s daughter, but L.W. cancelled the appointment because of a dispute over who would pay the fee. After the paternity test was cancelled, L.W.’s ultrasound appointment was cancelled without her knowledge. The clinic’s receptionist testified that it was a female caller who cancelled the appointment and that the call was made at 12:06 p.m. Phone records showed that a call was placed from Nippa’s cell phone to the clinic at 12:01 p.m.

Later that same day, L.W. discovered that her home telephone service had been changed. An employee of the telephone company testified that she received a call at 12:59 p.m. on September 4, 2003, requesting that L.W.’s long-distance service be terminated, that a new unpublished number be assigned, and that a password be added to the account. Although the employee could not recall the caller’s gender, she testified that a male caller requesting changes to a female’s account would have raised suspicions. Phone records showed that a call had been placed from Nippa’s cell phone to the telephone company at 12:56 p.m. on September 4, 2003. L.W. reported both incidents to the police.

Before trial, Nippa moved for an order in limine prohibiting the state from introducing evidence of any “alleged phone calls” made by Nippa other than the call at issue in the case. The district court denied Nippa’s motion, and a jury subsequently convicted Nippa of making terroristic threats. The district court stayed imposition of Nippa’s sentence and placed her on supervised probation for five years, ordered that she serve 90 days in jail, and imposed a $1,000 fine. At sentencing, the district court did not invite Nippa to make a statement. This appeal follows.

D E C I S I O N

Nippa first argues that the district court erred when it admitted evidence that Nippa cancelled L.W.’s ultrasound appointment and terminated L.W.’s long-distance service. The district court has wide discretion in determining the admissibility of Spreigl evidence, or evidence of prior bad acts, and will not be reversed unless it abused that discretion. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). To prevail, an appellant must establish an error in admitting the evidence and prejudice caused by that error. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). To determine whether any error was prejudicial, this court must decide whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). If there is a reasonable possibility that the verdict would have been more favorable to the defendant if the error had not been made, then that error is prejudicial. Id.

Nippa argues that the district court failed to follow required procedures when it admitted evidence of the two prior incidents. The supreme court has mandated that, to admit Spreigl evidence, certain procedural safeguards be observed: (1) the state must give notice of its intent to introduce Spreigl evidence that clearly identifies the evidence to be introduced; (2) the state must establish the defendant’s participation in the prior bad act by clear and convincing evidence; (3) the proffered evidence must be relevant and material to the state’s case; and (4) the probative value of the evidence must outweigh the potential for unfair prejudice. Ness, 707 N.W.2d at 686. Nippa argues that (1) she received inadequate notice; (2) the district court failed to make written findings; (3) the district court erred when it did not make an express finding that the evidence was necessary because the state’s case was weak; and (4) the district court abused its discretion by making its ruling before trial and by not permitting an evidentiary hearing.

Nippa’s arguments are unpersuasive. First, Nippa acknowledges that the two incidents were described in the complaint, and notice by complaint is effective notice. State v. Gould, 399 N.W.2d 668, 670 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Second, Nippa has cited no cases—and we have found none—that conclude that a district court is required to make written findings before it admits Spreigl evidence. Third, contrary to Nippa’s argument, the supreme court has recently stated that the “necessity” analysis is not independent, but rather is the analysis that the district court makes under rule 403 of the Minnesota Rules of Evidence to determine whether the probative value of any evidence outweighs any risk of unfair prejudice that the evidence may cause. Ness, 707 N.W.2d at 689. Thus, no “necessity” analysis—or express finding—is required.

And, fourth, although the supreme court has stated that the district court should wait until the close of the state’s case-in-chief before ruling on the admissibility of Spreigl evidence and that, in close cases, an evidentiary hearing may be necessary, the court has also held that such decisions are confided to the district court’s sound discretion. Compare State v. Bolte, 530 N.W.2d 191, 197 n.2 (Minn. 1995) (noting that “[i]t is usually better practice” for the district court to postpone its final decision until after the state’s case-in-chief), with State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (noting that the district court properly exercised its discretion by making its ruling before trial). Here, the record reflects that the district court held a hearing on appellant’s motion in limine in which detailed arguments by both counsel were considered. Given the fact that the requirement of an independent necessity analysis has been eliminated and in light of the fact that there was a hearing, the district court’s pre-trial ruling was not an abuse of discretion.

Second, Nippa argues that neither incident fits within one of the exceptions to the general rule excluding evidence of prior bad acts. See Minn. R. Evid. 404(a) (prohibiting the introduction of character evidence to establish “action in conformity therewith on a particular occasion”). But Spreigl evidence may be introduced to show a common scheme when evidence of past offenses tends to corroborate evidence of the charged offense because of a marked similarity between the offenses. Ness, 707 N.W.2d at 687-88. Indeed, such evidence can be especially helpful to refute any contention that the complainant is lying. State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998). The prior incident need not be identical with the charged conduct, although the closer the relationship between the offenses—in terms of time, place, and modus operandi—the more relevant the evidence is and the smaller the likelihood that the evidence will be improperly used. Id. at 390-91.

We conclude that the district court did not abuse its discretion by admitting evidence of the two calls. The state introduced evidence that both calls were made from Nippa’s cell phone; that the caller in both cases was female; and that the two calls were made a little more than a month and a half before the October 28 call. The modus operandi of the two calls was also very similar to that of the charged offense: harassing phone calls made from Nippa’s cell phone after a dispute between B.W. and L.W.—first the cancelled paternity test and then L.W.’s family’s refusal to permit B.W. to see his newborn son. Finally, without this evidence, the state’s case rested largely on L.W.’s identification of Nippa’s voice and left L.W. open to a charge that she was lying. See id. at 391 (noting that common-scheme evidence is useful to refute a contention that the complainant is lying). Thus, we conclude that the district court had ample grounds on which to admit evidence of the two calls, and its decision to do so was not an abuse of discretion.

II.

Nippa argues that the district court erred by not offering her the opportunity to allocute at the sentencing hearing. The state concedes that Nippa is entitled to a new sentencing hearing. See Minn. R. Crim. P. 27.03, subd. 3 (requiring the district court to address the defendant personally and inquire whether the defendant wishes to make a statement); see also State v. Young, 610 N.W.2d 361, 363 (Minn. App. 2000) (noting that the district court erred by not extending the right of allocution to the defendant), review denied (Minn. July 25, 2000). We agree and remand for a new sentencing hearing to allow Nippa to make a statement if she so chooses.

Affirmed in part and remanded.

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