This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-713

 

State of Minnesota,

Respondent,

 

vs.

 

Idris Muhammad Abdul-Malik,

Appellant.

 

Filed August 7, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 05028733

 

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

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Paul J. Maravigli, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Idris Muhammad Abdul-Malik challenges his conviction of aiding and abetting first-degree burglary, arguing that the district court erred by improperly admitting Spreigl and hearsay evidence, the prosecutor committed misconduct during closing argument, and the accumulation of alleged errors requires a new trial.  We affirm.

D E C I S I O N

            Appellant Idris Muhammad Abdul-Malik and two of his brothers forced their way into appellant’s estranged wife’s apartment and beat her boyfriend severely in the presence of several adults and children.

I.

            Appellant argues that the district court abused its discretion by admitting evidence that, prior to the burglary, appellant had threatened his wife that he would “hurt her if he saw her with anyone.”  Appellant alleges that this is improper Spreigl evidence and that the state did not satisfy the requirements for admission of Spreigl evidence.  We disagree.

            Evidence of other crimes or bad acts is characterized as Spreigl evidence.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Generally, Spreigl evidence is not admissible to prove that a criminal defendant acted in conformity with his character.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).  But the evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Minn. R. Evid. 404(b); Spreigl, 272 Minn. at 491, 139 N.W.2d at 169. 

            We will not reverse the district court’s admission of evidence of other crimes or prior bad acts unless the district court abused its discretion.  State v. Waino, 611 N.W.2d 575, 578 (Minn. App. 2000).  “A defendant who claims that the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.”  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).  We must find actual prejudice in order to reverse the district court.  State v. Schulz, 691 N.W.2d 474, 477 (Minn. 2005). 

            Before admitting Spreigl evidence, the district court must first 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 evidence’s potential to prejudice the defendant does not outweigh the probative value of the evidence.  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.

            But not all unfavorable evidence is Spreigl evidence.  Evidence of a necessary part of the substantive proof of the crime is not Spreigl evidence.  State v. Roy, 408 N.W.2d 168, 171 (Minn. App. 1987), review denied (Minn. July 22, 1987).  Here, appellant’s entering of the dwelling without consent is an element of the burglary charge.  Minn. Stat. § 609.582, subd. 1 (2004).  And the state indicated it was offering evidence of the prior threat against appellant’s wife’s boyfriend to show that appellant’s wife was afraid of appellant and was unlikely to grant consent to appellant to enter the home she shared with her boyfriend.  The district court concluded that the threat “is wrapped up with why she is afraid and so I will permit her to testify to the prior threat.  I think that is an element of the offense more than Spriegel [sic], but any other prior bad acts, if they should exist, those are barred.”

            We agree with the district court that the evidence is relevant to the issue of whether appellant entered his wife’s apartment with consent.  We thus conclude that the district court did not abuse its discretion by determining that the evidence is not Spreigl evidence and did not require the Spreigl analysis or disclosures.

II.

            Appellant argues that the district court abused its discretion by admitting inadmissible hearsay evidence.  The district court has broad discretion in the admission of evidence.  State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998).  Here, appellant objects to the admission of a statement by his wife that one of his brothers threatened to hurt other people in the apartment, a statement by a police officer that appellant’s wife had reported hearing such a statement, and a statement by appellant’s wife’s sister that appellant’s wife’s other sister said that the three brothers should leave because they were scaring the children. 

            Hearsay evidence, defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” Minn. R. Evid. 801(c), is inadmissible unless it falls within an exemption or exception to the general rule.  Minn. R. Evid. 802-07. 

            Appellant first challenges admission of his wife’s testimony that she heard one of appellant’s brothers threaten to “hurt” the apartment’s occupants.  But the prosecutor offered the statement not to prove the truth of the matter asserted, but to show appellant’s wife’s state of mind; specifically that she was afraid of the brothers and not likely to give consent for them to enter the apartment and that the brothers intended to commit assault.  The district court did not abuse its discretion by admitting this evidence.

            Appellant next challenges the police officer’s testimony that appellant’s wife had made a statement that she had heard one of appellant’s brothers threaten to kill the apartment’s occupants, contending that the district court erred by failing to sustain an objection to testimony in front of the jury.  As soon as the objected-to statement was made, appellant asked for a bench conference and objected to the witness’s use of the word “kill” because the evidence indicated only a threat to “hurt” the apartment’s occupants.  The judge sustained appellant’s objection during the bench conference.  The judge did not sustain the objection, nor was the objection made, within hearing of the jury and appellant did not request that the statement be stricken or request a curative instruction from the judge at that time.  Because appellant’s objection was sustained and he requested no further action from the court at the time, the record does not support appellant’s assertion that the district court abused its discretion. 

            The final statement that appellant challenges is his wife’s sister’s testimony that appellant’s wife’s other sister had stated that the brothers should leave because they were scaring the children.  Appellant objected, but the district court overruled, finding that the prosecution did not offer the evidence to prove the truth of the matter asserted.  We agree and conclude that the district court did not abuse its discretion by admitting this testimony.

III.

            Appellant argues that the prosecutor committed prejudicial misconduct during closing argument.  When reviewing a claim of prosecutorial misconduct, we will only reverse a guilty verdict if the misconduct was so serious and prejudicial in light of the entire trial that it impaired the defendant’s right to a fair trial.  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  Generally, a defendant is deemed to have waived a later challenge to the prosecutor’s improper argument by not objecting.  Id. at 728.  But an unduly prejudicial comment, even unobjected to, may warrant reversal.  Id.

            Appellant argues that the prosecution committed misconduct by implying that appellant changed his testimony to suit his preferred version of events, claiming that appellant’s theory was incredible, vouching for the credibility of the prosecution’s witnesses, and suggesting that appellant’s presence in the courtroom throughout the trial gave him the opportunity to adjust his testimony.  But appellant did not object to any of these statements during closing arguments.  Nor did he address them during his own closing argument.  And the record indicates that when he was asked by the district court whether he wanted any curative instructions stemming from closing arguments, appellant’s counsel said he had no requests.

            We conclude that the prosecutor’s statements were not so prejudicial in light of the entire trial to require reversal.  Furthermore, because appellant failed to object to the comments and chose not to request a curative instruction, appellant has waived his right to challenge this issue.

            Because this court may address the unobjected to alleged prosecutorial misconduct under the plain-error doctrine, State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006), we note that appellant has failed to establish prosecutorial misconduct.  Appellant objects to the following comment from the state’s closing argument:

As you are thinking about the defendant’s testimony in this case, ladies and gentlemen, the one thing I would ask that you keep in mind is the defendant is – is the only person who testified in this trial who had the benefit of seeing the testimony of every witness and hearing the testimony of every witness on this stand.  Every other witness had to stay out in the hall.  And none of the other witnesses got to see what the other witnesses said on the stand.  So when the defendant comes to testify, he knows what he is – what he is facing.  And he is going to try to make his story fit or not fit as he sees appropriate the testimony of other witnesses and try to legalize this.

            Now let’s look at a few other things.  In addition you know of course he’s got huge motive to do that he doesn’t want to be convicted of it.  So he’s got all the witness testimony and a huge motive to try to make his story look innocent.

 

The Minnesota Supreme Court has stated that:

 

            [T]he prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case.  Without specific evidence of tailoring, such questions and comments by the prosecution imply that all defendants are less believable simply as a result of exercising the right of confrontation.  The exercise of this constitutional right, by itself, is not evidence of guilt.

 

Mayhorn, 720 N.W.2d at 790 (quoting State v. Swanson, 707 N.W.2d 645, 657-58 (Minn. 2006)).  But here, the state did identify several discrepancies between appellant’s testimony and his earlier statement to the police.  Because the prosecutor identified discrepancies in appellant’s testimony and appellant did not object to the argument or request a curative instruction, we conclude that the closing argument does not constitute plain error.

IV.

            Appellant argues that the accumulation of errors in this case requires a new trial.  An accumulation of errors can require a new trial even where no single error so requires.  See Larson v. Belzer Clinic, 292 Minn. 301, 307, 195 N.W.2d 416, 419 (1972).  But because appellant has failed to show that the district court erred, we conclude he is not entitled to a new trial.

            Affirmed.