Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.

A jury convicted Jamal Kenyetta Walker and his accomplice, Tobias Taylor, of second-degree intentional murder after Walker shot and killed a man to avenge his sister's death. On appeal, Walker argues the trial court erred in admitting Spreigl evidence of a prior third-degree assault committed by the two co-defendants, in which Taylor participated as a principal and Walker as driver of the getaway car. Although we conclude the trial court abused its discretion in admitting the evidence, we affirm because the error was not prejudicial.

D E C I S I O N

Rulings on the admissibility of "prior crimes" evidence rest in the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988). Evidence of a prior crime committed by a defendant is inadmissible to show the defendant's character in order to prove the defendant acted in conformity therewith. Minn. R. Evid. 404(b); State v. Doughman, 384 N.W.2d 450, 453 (Minn. 1986); see State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 172 (1965) (warning against "natural and inevitable tendency of the tribunal" to allow other crimes evidence to bear too strongly on present charge) (citation omitted). Such evidence may be admitted for other purposes, however, such as establishing motive, intent, identity, or the existence of a common plan or scheme. Minn. R. Evid. 404(b); State v. Forsman, 260 N.W.2d 160, 167 (Minn. 1977).

Even when offered for a proper purpose, evidence of a prior crime is admissible in trial only if relevant and material to the state's case. Doughman, 382 N.W.2d at 454; see Minn. R. Evid. 402 (providing irrelevant evidence is inadmissible). In determining the relevance of prior crimes evidence, the proper focus is on the closeness of the relationship between the other crimes and the charged crime in terms of time, place, and modus operandi. State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). The closer the relationship, the greater the relevance of the evidence, and the lesser the likelihood the evidence will be used for an improper purpose. Id. Evidence admissible to establish a common plan or scheme is limited to prior acts "so related to each other that proof of one or more of such tends to establish the [current] accusation." Doughman, 384 N.W.2d at 453-54 (quoting State v. Sweeney, 180 Minn. 450, 455, 231 N.W. 225, 227 (1930)).

Over defense objection, the state introduced evidence against Walker and his co-defendant, establishing that the two had pleaded guilty to third-degree assault in 1994. The evidence on the prior crime showed that Walker's co-defendant had beaten a man about the head with a crutch, and that Walker's only role was as the driver of the vehicle in which the assailants left the scene. Walker was charged with aiding and abetting in connection with that incident.

By contrast, Walker was the main perpetrator and was charged as a principal in the present second-degree intentional murder. Cf. State v. Perez, 397 N.W.2d 916, 920 (Minn. App. 1986) (holding evidence of prior robbery in which defendant personally participated was inadmissible in defendant's current trial for driving robbers' getaway car). In the current offense, Walker intentionally shot and killed the victim with a handgun, while there was no evidence that Walker carried any weapon in the prior assault. Cf. State v. Buhl, 520 N.W.2d 177, 182 (Minn. App. 1994) (rejecting other crimes evidence for insufficient similarity to present charge, noting defendant did not brandish or carry weapon in prior crime, but carried and fired gun in current offense), review denied (Minn. Oct. 27, 1994). That both crimes began with a beating committed by a person other than Walker is irrelevant to our analysis. See Perez, 397 N.W.2d at 919 (refusing to extend similarity in accomplice's modus operandi to defendant personally). Because the connection between the two incidents was so weak, the probative value of the Spreigl evidence was very slight, and the chance of the jury using the evidence for an improper purpose was great. We conclude that proof of the prior assault did not tend to establish the current offense, and was therefore inadmissible for that purpose.

In receiving the Spreigl evidence against Walker and his co-defendant, the trial court did not rely on the similarity of the crimes, but rather noted that the prior assault demonstrated an historical relationship between the two defendants as close friends who aided and abetted each other in committing crimes. This is not an independent basis, however, for the admission of other crimes evidence against an accused.

The state argues that the trial court's error in admitting the evidence, if any, was harmless. We agree. A trial court's erroneous admission of evidence does not require reversal if the error was harmless beyond a reasonable doubt. State v. Townsend, 546 N.W.2d 292, 297 (Minn. 1996); see State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (holding error is prejudicial if there is reasonable possibility that wrongfully admitted evidence of other crimes significantly affected verdict). As defense counsel conceded, the evidence against Walker was extremely strong. One day after the shooting, police seized the murder weapon in a vehicle in which Walker was a passenger. Furthermore, three eyewitnesses testified in open court that they observed Walker shoot and kill the victim. One of these witnesses was Walker's own brother, who admitted to assaulting the victim before Walker retrieved his gun. Given the overwhelming evidence of guilt, there is no reasonable possibility that the Spreigl evidence wrongfully admitted against Walker significantly affected the jury's verdict of guilty. Because the error was harmless beyond a reasonable doubt, we must affirm.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.