Hubert H. Humphrey, III, State Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.

Appellant challenges his conviction of third-degree criminal sexual conduct with a 15-year-old girl on several grounds, principally asserting that the trial court erred in admitting Spreigl evidence relating to an earlier conviction for first-degree criminal sexual conduct with his then seven-year-old stepdaughter. We affirm.

After returning home on January 15, the victim told family members about her sexual relationship with appellant. Upon visiting a doctor on February 5, she tested positive for two venereal diseases. The police then obtained a search warrant to test appellant for venereal diseases. On February 27, the police forcibly obtained a sample from appellant at a hospital. Appellant tested negative.

Appellant was arrested and tried before a jury. At the close of the prosecution's case and over appellant's objection, the trial court admitted Spreigl evidence concerning a 1993 conviction for first-degree criminal sexual conduct. By agreement, a prosecution staff person read the transcript of appellant's guilty plea for the previous offense, containing appellant's admissions that he had assaulted his then seven-year-old stepdaughter. The jury convicted appellant of third-degree criminal sexual conduct.

a. Relevance

Appellant contends that the Spreigl evidence was irrelevant because the nonconsensual sexual penetration of a seven-year-old child is not sufficiently similar to consensual sexual intercourse with a mature, 15-year-old young woman. Finding a common plan, the trial court admitted the prior conviction because both offenses involved multiple acts of penetration, presented "some significant similarities in the way" appellant "used his position of trust" to take "advantage of a child who was in a vulnerable situation," and occurred within three years of each other. In determining relevancy, courts generally have required some similarity between the other crime and the charged offense, such as in time, location, or modus operandi, although this requirement "is not an absolute necessity." Filippi, 335 N.W.2d at 743.

Recounting the reasons cited by the trial court, we determine that sufficient similarities exist between the Spreigl offense and the charged offense to permit the trial court's decision on relevance. See State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987) (finding no abuse of discretion where the trial court admitted, among other evidence, a nine-year-old lewd and lascivious conduct conviction involving seven-year-old girl in rape prosecution involving a college student because both incidents involved "the opportunistic sexual assault of a vulnerable" victim); Jackson v. State, 447 N.W.2d 430, 433 (Minn. App. 1989) (holding that, in prosecution for sexual misconduct involving a 14-year-old runaway, testimony that accused had sexually abused his daughter when she was 10-12 years old showed "a common scheme under which appellant would develop trust with young, vulnerable girls in order to perform sexual acts on them"). Moreover, except for the one night in the motel room, all sexual activity occurred at appellant's home when either his wife or girlfriend were away.

Although the two offenses are not identical, the existence of some dissimilarities does not defeat admissibility because courts have not required "absolute similarity between the charged crime and the Spreigl crime." DeWald, 464 N.W.2d at 503. The age disparity between the 15-year-old girl in this case and the 7-year-old child in the prior conviction does not render the offenses dissimilar because the fact that Spreigl evidence involved "the sexual assault of a 7-year-old girl rather than a woman or a sexually mature young woman should not necessarily make a difference" when the accused takes advantage of a vulnerable victim. Crocker, 409 N.W.2d at 843. The 15-year-old victim's apparent consent to the sexual activity also does not make the offenses dissimilar because neither the first-degree criminal sexual conduct statute underlying appellant's prior conviction nor the third-degree criminal sexual conduct statute underlying the charged offense distinguishes between nonconsensual and consensual sexual penetration. Minn. Stat. §§ 609.342, subd. 1(g), 609.344, subd. 1(b) (1996) (rejecting "consent" as a "defense"). Furthermore, a prior offense is not inadmissible merely because it is either less or more severe than the charged offense "when they are otherwise of such character as to come within the class." State v. Sweeney, 180 Minn. 450, 456, 231 N.W. 225, 228 (1930).

Finally, the cases on which appellant relies involve greater dissimilarities and are thus distinguishable. State v. Buhl, 520 N.W.2d 177, 182 (Minn. App. 1994) (reversing admission of prior burglary conviction in prosecution for aggravated robbery, criminal sexual conduct, assault, kidnapping, and motor vehicle theft), review denied (Minn. Oct. 27, 1994); State v. Nutt, 381 N.W.2d 480, 485 (Minn. App. 1986) (upholding trial court's suppression of prior criminal sexual conduct conviction in solicitation for prostitution prosecution), review denied (Minn. Mar. 27, 1986).

b. Prejudice

Appellant also asserts that the Spreigl evidence was substantially more prejudicial than probative. Whether a conviction's probative value outweighs its potential for unfair prejudice lies within the trial court's discretion. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).

Appellant first asserts that the prosecution lacked a sufficient "need" for the Spreigl evidence because the victim's testimony and the motel room receipt did not make the prosecution's case weak or inadequate. Regardless of the purpose for which Spreigl evidence is admitted, the direct or circumstantial evidence on the issue in question must be weak or inadequate. State v. Stagg, 342 N.W.2d 124, 127 (Minn. 1984); see State v. Moorman, 505 N.W.2d 593, 602 n.5 (Minn. 1993) (upholding trial court's admission of Spreigl evidence where "the state's case rested on weak, circumstantial evidence."). The trial court determined that the prosecution needed the Spreigl offense because without eyewitness testimony or physical evidence, "it comes down to an issue of credibility."

When an accused denies that the sexual conduct underlying the charged offense occurred, Spreigl evidence of prior sexual misconduct is admissible to show a common scheme or plan because it tends to disprove the defense that the victim fabricated the sexual contact. State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993); see State v. Sebasky, 547 N.W.2d 93, 98 (Minn. App. 1996) (affirming the admission of Spreigl evidence on the issue of whether the conduct occurred where defendant vigorously denied any misconduct), review denied (Minn. June 19, 1996). Here, the prosecution's case rested primarily on the victim's testimony, and appellant claimed that the victim had fabricated their sexual relationship. Because the admission of appellant's prior conviction to show a common scheme tended to bolster the victim's credibility, the trial court did not abuse its discretion.

Appellant next argues that the Spreigl evidence was substantially more prejudicial than probative because when the admissibility of Spreigl evidence is "unclear," the trial court must give the accused "the benefit of the doubt" and reject the evidence. DeWald, 464 N.W.2d at 503. But the trial court did not find admissibility unclear, and even in close cases, the trial court retains discretion in considering admissibility of evidence. State v. Cogshell, 538 N.W.2d 120, 124 (Minn. 1995); Filippi, 335 N.W.2d at 744.

Finally, appellant argues that the Spreigl evidence substantially prejudiced him because the reading of the transcript indicated that appellant initially received a light sentence for his prior conviction, thereby inflaming the jury's passion. But appellant waived this argument when his trial counsel agreed to this method of introducing the conviction. In addition, the trial court complied with the policy that it give a cautionary instruction on the proper use of prior offenses both upon receipt of the other crime evidence and as part of the final instructions. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). The court instructed the jury that it may only convict appellant for his presently alleged conduct, not his prior actions. The court gave this instruction just after the reading of the plea transcript and during its final jury charge. These cautionary instructions reduced any prejudice caused by the mentioning of appellant's earlier sentence. See Jackson, 447 N.W.2d at 433 ("Any prejudice was minimized by the trial court's cautionary instruction at the time the evidence was introduced and again at the close of the case.").

Appellant asserts that the prosecutor committed misconduct during closing arguments by stating that appellant could have received venereal disease treatments sometime during the six-week period between the last time he and the victim had sexual contact and appellant's test, thereby explaining how he may have tested negative after the victim had tested positive. But the parties introduced the following evidence regarding venereal diseases: (a) the victim testified that she and appellant last had sexual relations on or about January 15; (b) the victim took a venereal disease test on February 5, and the results returned several days later indicated that she had tested positive for two diseases; (c) the victim's treating physician testified that it is very likely that a person who has sex with an infected person would contract those diseases; (d) the physician testified that a person who contracted these diseases would test negative soon after treatment; (e) appellant tested negative for the diseases on February 27; and (f) appellant denied that he had contracted either condition within the last year. Because appellant was not tested until six weeks after the last alleged sexual activity and the only evidence indicating that appellant had not received treatment was his own denial, the prosecutor committed no misconduct in making a reasonable inference that appellant may have received treatment.

In his pro se brief, appellant essentially contends that a reasonable jury could not have concluded that he had sexual intercourse with the victim because he did not test positive for venereal diseases, which are highly infectious. Considering that appellant did not take a venereal disease test until six weeks after the last alleged sexual activity with the victim, the jury reasonably may have disbelieved appellant's testimony that he never contracted either disease suffered by the victim.

To establish a prima facie case showing that the jury pool lacked a "fair cross-section of the community" under the federal and state constitutions, appellant must show (1) that the allegedly excluded group is a "distinctive" group in the community, (2) that the allegedly excluded group was not fairly represented in the jury pool, and (3) that a "systematic" exclusion of the group from the jury selection process caused the underrepresentation. State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994). To show a lack of representation, appellant must demonstrate that the excluded group of eligible jurors has been significantly underrepresented "over a significant period of time--panel after panel, month after month." Id. at 543.

Appellant has not demonstrated that he could have established a prima facie case because the record does not provide the racial composition of his jury panel and appellant has not indicated that jury panels have been significantly underrepresented by Hispanics "over a significant period of time." Id.; accord State v. McKenzie, 532 N.W.2d 210, 221-22 (Minn.), cert. denied, 116 S. Ct. 327 (1995). Although appellant identifies the selection of jury panels from voting registrations lists as the "systematic" procedure excluding minorities, the record does not show that the county only used voter registration lists to select jury panels. Cf. Williams, 525 N.W.2d at 541 (noting that Ramsey County, the same county in which appellant was prosecuted, compiles its master source list of eligible jurors from voter registration lists, driver's licenses lists, and state identification cards lists). By failing to present a prima facie case, appellant has not shown a reasonable probability that, but for his counsel's failure to challenge the selection of the jury pool, he would not have been convicted.

Affirmed.