This opinion will be unpublished and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

A06-1385

 

State of Minnesota,
Respondent,

vs.

George Jerry Matlock,
Appellant.

 

Filed October 2, 2007

Reversed and remanded

Minge, Judge

Dissenting, Willis, Judge

 

Ramsey County District Court

File No. K1-05-003735

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and

 

Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            In this appeal from his conviction and sentence for felony theft, appellant contends that the district court: (1) abused its discretion by admitting Spreigl evidence;
(2) committed plain error by giving a no-adverse-inference instruction without obtaining appellant’s consent; and (3) abused its discretion by imposing a sentence of nearly quadruple the presumptive sentence.  Because we conclude that the district court abused its discretion by admitting Spreigl evidence, we reverse and remand. 

FACTS

 

            On September 26, 2005, a hospital employee discovered that two laptop computers and a laptop bag were missing from her office at St. Joseph’s Hospital in St. Paul.  The employee had left her office at 1:15 p.m. that afternoon to attend a meeting, and when she returned about 30 minutes later, the items were gone.  The missing property was worth more than $2,500.  

            The employee reported the missing laptops to a St. Joseph’s security officer.  The security officer reviewed the hospital’s digital security cameras, looking for a suspect.  He tracked the movements of a person of interest throughout the hospital and compiled a compact disk of the relevant surveillance video.  The clips showed a man walking near the physical therapy department, walking toward various offices, and walking near the hospital’s main entrance.  The man appeared to be carrying only a piece of paper until the final clip showed him leaving the main entrance at 1:31 p.m. with a bag over his shoulder.  That same day, a physical therapist at the hospital noticed a male “wandering around” her work area.  At trial, she identified appellant George Jerry Matlock as the man she had seen. 

            St. Paul police responded to the theft report.  Still photographs of the suspect from the hospital’s surveillance video were sent to two police stations to see if any officers could identify the suspect.  Two officers recognized the man in the photographs as appellant based on their previous encounters with him.  One officer interviewed appellant regarding the incident.  Appellant told the officer that he was at the hospital on the day of the theft for physical therapy, but denied stealing the computers.  Appellant also told the officer that he had not been carrying anything when he entered the hospital, that a bag that he was carrying when he left contained tee shirts and underwear, and that a friend had given it to him to take to the nearby Dorothy Day Center.  Hospital records reflect that appellant has not received physical therapy treatment at St. Joseph’s since 1995 and last visited the hospital’s emergency room in 1998. 

            Appellant was charged with felony theft, in violation of Minn. Stat. § 609.52, subd. 2(1) (2004).  The complaint also alleged that the theft “was committed as part of [a] pattern of criminal conduct.”  The district court conducted a bifurcated trial.  During the trial’s first phase, the hospital employees and officers testified and the state introduced evidence that appellant had been convicted of felony theft in 2003 for stealing a laptop computer from Metropolitan State University in St. Paul.  Appellant did not present any evidence and the jury convicted him as charged. 

            The jury then reconvened to determine if appellant met the conditions of sentencing under Minn. Stat. § 609.1095, subd. 4 (Supp. 2005), the career-offender statute.  The parties stipulated that appellant had five prior felony convictions, and the state argued that the theft from the hospital “was committed as part of a pattern of criminal conduct.”  The jury found “that the offense has been proven beyond a reasonable doubt” and was “committed as part of a pattern of criminal conduct.” 

            The district court sentenced appellant as a career offender to an executed prison term of 90 months, an upward departure from the presumptive 23-month sentence.  This appeal follows. 

D E C I S I O N

 

I.

 

            The first issue is whether the district court erred by admitting evidence of appellant’s other crimes.  Appellant contends that the admission was unnecessary and prejudicial.  

            “[A] defendant must be tried for what he did, not for who he is.”  United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980) (quotation omitted).  In accordance with this basic premise, Minnesota Rule of Evidence 404(b)[1] precludes admission of “[e]vidence of another crime, wrong, or act . . . to prove the character of a person in order to show action in conformity therewith.”  But such evidence, commonly known as Spreigl evidence, may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965) (identifying exceptions to exclusionary rule). 

            Minnesota has developed a five-step process to determine the admissibility of other-acts evidence: “(1) the state must give notice of its intent to admit the evidence;   (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act;
(4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.”  State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006).[2]  The last factor is probably the most important.  Id. at 690.  In Ness, the supreme court ruled that the strength or weakness of the state’s case and the state’s need for the Spreigl evidence to shore up a weak case is not an independent consideration that determines the admission of that evidence.  Id. at 689-90.  Rather, “[t]he prosecution’s need for other-acts evidence should be addressed in balancing probative value against potential prejudice.”  Id. at 690.  And “[w]hen 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. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). 

The district court has broad discretion in determining the admissibility of Spreigl evidence.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must establish an error in the district court’s admission of the evidence and show prejudice caused by that error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). 

            The various reasons for permitting Spreigl evidence have been explained and applied in numerous court decisions.  Here, there is no dispute regarding steps 1, 2, and 3 (notice, purpose, or proof of the other offense).  The record indicates that the state sought to introduce the evidence to prove identity and intent.  The importance and relevance of the Spreigl evidence to these questions and the risk of unfair prejudice are the disputed matters in this appeal.

            A.  Identity

            “If evidence of other crimes is received for purposes of identity . . . there must . . . be some relationship in time, location, or modus operandi between the crime charged and the other offenses.”  State v. Billstrom, 276 Minn. 174, 178, 149 N.W.2d 281, 284 (1967); see also State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995).  “[I]f the prior crime is simply of the same generic type as the charged offense, it ordinarily should be excluded.”  State v. Shannon, 583 N.W.2d 579, 585 (Minn. 1998).    

            In this case, the Spreigl evidence was an earlier theft of a laptop computer from an office at Metropolitan State University in St. Paul.  Appellant pleaded guilty to this crime two years earlier.  The two crimes are similar.  In both cases, a male entered an office and took a portable computer.  Both offenses occurred in St. Paul.  However, there was no evidence that there was any unique modus operandi in how the two thefts were performed or that laptop thefts are a specialized crime, and the district court made no findings in this regard.  Given the value, widespread use, and portability of laptops; we decline to assume this type of crime is unusual or that the very nature of the crime constitutes a unique modus operandi.  “Generic type” offenses are insufficient for use as prior-crimes evidence.  Cogshell, 538 N.W.2d at 123.  This appears to be a generic crime. 

The identity question in this case is whether appellant is the man in the security video and whether that man stole the laptops and the bag.  The Spreigl evidence only shows that appellant had previously stolen the same type of property – a computer.  Nothing about the university theft established appellant’s identity in the case before us.  The other crime indicates that appellant is a thief and implies that any obscured view of his face in the videotape should be resolved against him.  Telling the jury of the other crime presents the risk of conviction for the charged theft because of the other conviction.   

Although strength of the state’s case on identity is no longer an independent consideration in evaluating the admissibility of Spreigl evidence, it is still relevant when examining the probative value versus the potential prejudice of the prosecution’s proffered evidence.  See Ness, 707 N.W.2d at 689-90.  Here, the video clip shows a person at locations in the hospital and then leaving with a bag.  Based on the video pictures, two law enforcement officers identified appellant as the person shown.  Also, a physical therapist identified appellant as being in the hospital, and an investigating officer testified that appellant admitted to being at the hospital at the time in question and leaving with a bag. 

Defense counsel argued that because the security video showed a person wearing a hat and dark glasses, the face is obscured, the identification is weak, and the prosecution had failed to establish, beyond a reasonable doubt, that appellant is the person in the video.  The officers conceded that appellant told them he had clothes, not computers, in his bag.   The district court thought the state’s identification of appellant was weak.  Although questions were raised, appellant neither testified nor introduced any evidence, and his explanation to the police of why he was at the hospital and what was in the bag are, at best, dubious.  Based on this record, we conclude that the state’s need for evidence to identify appellant as the thief is not determinative of the Spreigl issue and that our decision on the admissibility of Spreigl evidence should be based on the persuasiveness of the nexus between that other crime and the theft from St. Joseph’s Hospital.

            B.  Intent

            The state argues that Spreigl evidence was also offered in this case to establish intent.  For a conviction, the state was required to prove that appellant “intentionally and without claim of right” took the computers “with intent to deprive the owner permanently of possession.”  Minn. Stat. § 609.52, subd. 2(1) (2004) (emphasis added).  With respect to intent, the suspect was seen on video surveillance leaving the hospital with a bag over his shoulder.  There is no indication that the individual did not intend to permanently deprive the hospital of its property.  In fact, the computers were never recovered.  The district court did not make any findings relevant to the issue of intent. 

            C.  Prejudice

            Next, we consider the question of prejudicial effect.  Loebach, 310 N.W.2d at 64.  Appellant contends that the district court should have excluded the Spreigl evidence because its probative value was substantially outweighed by its prejudicial effect.  Specifically, appellant contends that the state had ample “legitimate evidence,” and that it did not need to use other-crimes evidence to prove identity and intent.  To determine whether the error was prejudicial, this court considers “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). 

            The district court instructed the jury that the other-crimes evidence was not offered as proof of the defendant’s character, but rather “as proof of intent or identity.”  Although we presume that jurors follow the district court’s instructions, the unavoidable temptation is to conclude a person is guilty because he committed another crime.  Certainly that risk existed here.  Rather than placing the focus on the circumstantial evidence of his movements within the hospital, the credibility of appellant’s story to the police, and the totality of the circumstantial evidence, the Spreigl evidence allowed the jury an easy avenue to find appellant guilty.  He had stolen a computer once before.  In effect, this Spreigl evidence shows appellant’s character.  He is a likely candidate for conviction.  Despite the cautionary instruction, there is a reasonable possibility that Spreigl evidence influenced the jury.  Based on the lack of a persuasive nexus that aids in establishing identity, the irrelevance of the intent factor, and the opportunity for prejudice, we conclude that the district court abused its discretion in admitting the Spreigl evidence.    

II.

            Although our reversal on the first issue disposes of this appeal, because we remand, we will address the other issues to provide guidance incident to any retrial.  The second issue is whether the district court committed reversible error when it instructed the jury on a defendant’s right not to testify on his own behalf without obtaining appellant’s consent on the record.  Appellant claims that his consent was required.

            A defendant who elects not to testify at trial has a right to not have his silence used against him.  McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002); see also Minn. Stat. § 611.11 (2004).  The district court should not give a jury instruction regarding the defendant’s choice not to testify unless it has obtained the defendant’s permission on the record.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  The defendant’s personal consent to this instruction should be obtained in any retrial. 

III.

            The final issue is whether appellant’s 90-month sentence is disproportionate to the severity of the offense and unfairly exaggerates the criminality of his conduct.  Citing appellant’s 12 prior felony convictions as evidence of appellant’s “persistent disrespect for the law,” the state contends that the district court properly sentenced appellant. 

            Again, we note that because of our decision on the Spreigl issue, the sentence is vacated.  But we also note that because of the likelihood of a retrial and the possibility of a conviction, the sentencing question is no doubt important to the parties.  Accordingly, we will discuss it.  We will not reverse a district court’s decision to depart from the sentencing guidelines absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996), superseded by statute on other grounds as indicated in State v. Shattuck, 704 N.W.2d 131, 139 n.5 (Minn. 2005).  “A [district court] judge sits with a unique perspective on all stages of a case, including sentencing, and . . . is in the best position to evaluate the offender’s conduct and weigh sentencing options.”  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998). 

            Minnesota’s career-offender statute provides that when a judge is imposing an executed sentence, and execution is the presumptive disposition, the factfinder may impose an aggravated dispositional departure up to the statutory maximum “if the factfinder determines that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Minn. Stat. § 609.1095, subd. 4 (Supp. 2005).  “[A] ‘pattern of criminal conduct’ may be demonstrated by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims[,] or other shared characteristics.”  State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). 

            During the trial’s second phase, the state introduced evidence of five of appellant’s prior felony convictions.  The state argued that the theft from the hospital was “committed as part of a pattern of criminal conduct.”  The jury returned a special verdict, finding that “the offense has been proven beyond a reasonable doubt to have been committed as part of a pattern of criminal conduct.” 

            At the sentencing hearing, the state requested a 120-month sentence, “the maximum sentence allowed by law.”  Appellant opposed the departure, arguing that the 23-month guidelines sentence was appropriate.  The district court sentenced appellant as a career offender, imposing a 90-month sentence.  The district court noted that it accepted the jury’s finding that the current offense was committed as part of a pattern of criminal
conduct.  Under these circumstances, we observe that the district court did not abuse its discretion by sentencing appellant as a career offender to a 90-month executed sentence. 

            Reversed and remanded.

 

Dated:

WILLIS, Judge (dissenting)

 

            I respectfully dissent.  I conclude that this case presents circumstances of precisely the kind under which the supreme court has approved the admission of other-crimes, or Spreigl, evidence to prove a defendant’s identity. 

            As the majority points out, there were no eyewitnesses to the theft of the two laptop computers and the computer bag from St. Joseph’s Hospital.  The hospital’s surveillance video showed, at various locations in the hospital, a male suspect wearing a hat and dark glasses with his face obscured.   Matlock did not testify; his defense was premised on the argument that the man appearing in the surveillance video cannot be identified as him.

Matlock was convicted of felony theft in 2003 for stealing a laptop computer from Metropolitan State University in St. Paul.  The state proposed to offer evidence of that conviction as Spreigl evidence on the issues of identity and intent.  The district court delayed a ruling until the state had presented its case and the district court had “reviewed all of the evidence.”  The district court then assessed the strength of the state’s case on the issue of identity:  “With regard to the issue of identity, I believe that the State’s case is somewhat weak on the issue of identity . . . .  I find that the State has not presented overwhelming evidence of identity.”  The district court emphasized that the images of the man in the surveillance video were not clear:  “[I]t is possible that the jury would not believe that the person in the photograph is [Matlock].  The video surveillance is taken from a distance.  The person seen in the video is wearing a hat and glasses; thus, obscuring his face from the video.”  The district court proceeded to grant the state’s motion to present evidence of Matlock’s 2003 conviction for stealing a laptop computer as Spreigl evidence, and a portion of Matlock’s 2003 guilty plea was read to the jury.

The district court has broad discretion in determining the admissibility of Spreigl evidence, and we will not reverse unless the district court abused that discretion.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  And the district court “generally is in a better position than an appellate court to evaluate the reasonableness of and need for other-crime evidence in a particular case.”  State v. Bolte, 530 N.W.2d 191, 197 n.2 (Minn. 1995).  I find no abuse of discretion here.

Further, in State v. Cogshell, the supreme court stated that “[w]e have made it clear that we readily uphold the admission of so-called signature crimes to prove identity. . . .  [B]ut we have repeatedly said that generally there must be some relation between the other crimes and the charged offense in terms of time, place or modus operandi.”  538 N.W.2d 120, 123 (Minn. 1995) (quotation omitted).  But the supreme court stated that the mere fact that the prior crime was of the same generic type as the charged offense usually is not sufficient—the example given by the supreme court was “robbery and robbery.”  Id.  I disagree with the majority that the daytime theft of laptop computers from buildings open to the public in St. Paul is a “generic” offense, as that term is used in Cogshell.  I conclude that it is more in the nature of a signature crime, and, therefore, evidence of the 2003 conviction was properly admitted.

            Finally, as the majority notes, the district court instructed the jury that the other-crimes evidence was not offered as proof of the defendant’s character, but rather “as proof of intent or identity.”  In fact, the district court gave the jury appropriate limiting instructions before the evidence was offered and again before the jury began its deliberations.  The majority acknowledges that we presume that the jurors followed the district court’s instructions.  See State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).  But it then proceeds to presume, without any support in the record, that the jurors here did not follow the district court’s instructions. 

            In sum, I think that the district court clearly acted within its broad discretion in ruling that evidence of the prior laptop-computer theft was admissible.  See Scruggs, 421 N.W.2d at 715.  And the district court carefully followed all applicable supreme-court directives in handling that evidence.  It appears that the majority simply does not believe that other-crimes evidence should be admissible in a criminal case to prove the defendant’s identity.  That is not the state of the law in Minnesota.  I find nothing unfairly prejudicial about the admission of the Spreigl evidence here, and I would affirm.