Mark D. Nyvold, Suite 1030, 46 E. Fourth Street, St. Paul, MN 55101 (for appellant)

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

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7^th Floor, Anoka, MN 55303 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Peterson, Judge.

Appellant challenges the district court's denial of postconviction relief, contending that Spreigl evidence of another robbery was improperly admitted in his trial. We affirm.

An appellate court's review of a postconviction proceeding is limited to determining "whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

"Generally, evidence of a prior crime or other `bad act' is not admissible to demonstrate a criminal disposition or to prove the present charge." State v. Buhl, 520 N.W.2d 177, 180 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Evidence of prior crimes or "bad acts" is known as Spreigl evidence. Id. at 181. "Minnesota law limits the use of Spreigl evidence because of the risk that a jury may give excessive weight to the record of defendant's prior crimes." Id.

One of the well-settled exceptions to this rule is the use of evidence of other crimes to prove the identity of the defendant. State v. Titworth, 255 N.W.2d 241, 244 (Minn. 1977).

It is the rule that where the identity of the accused is not definitely connected with the offense for which he is on trial, evidence of other offenses may be introduced to connect and identify him with that one, and where the sole issue in a case is the identity of defendant, the evidence on that issue may be properly permitted to take a wide range to the extent that, in a measure, the rigid rules of evidence will be relaxed.

State v. Sorenson, 270 Minn. 186, 202, 134 N.W.2d 115, 126 (1965). To rule that Spreigl evidence is admissible the district court must find:

(1) that the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) that the Spreigl evidence is relevant and material to the state's case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

Here, the postconviction court did not abuse its discretion in finding there was clear and convincing evidence that appellant committed the Spreigl offense. The store clerk at the second store positively identified appellant as the robber in the Spreigl offense both in a photo lineup and in court, stating that there was no doubt in her mind that appellant robbed her. After observing the witness, the district court at trial concluded the clerk's testimony was "certainly clear and convincing evidence."

Although the crimes do not need to be identical "signature" crimes, or absolutely similar, they must be similar in some way, either in time, place, or modus operandi. Buhl, 520 N.W.2d at 181. The postconviction court in this case relied on State v. Lewis, 547 N.W.2d 360 (Minn. 1996), and State v. Cogshell, 538 N.W.2d 120 (Minn. 1995), for its determination that there were sufficient similarities between the two crimes in this case for the Spreigl offense to be relevant. As the postconviction court stated:

There are many similarities between the charged crime and the Spreigl robbery. The two robberies occurred only three weeks apart and both crimes occurred in the metropolitan area. The locations of the two robberies are approximately a half-hour drive by car. Consequently, there was a close relationship between the incidents in terms of time and place.

In addition, both robberies involved small businesses and involved the removal of cash from behind the counter. Both robberies also involved the use of a legitimate business transaction in order to gain easier access to the cash and both robberies involved an accomplice. Neither the robber nor the accomplice covered their faces during both robberies. Furthermore, both robberies occurred at night and the Petitioner played a similar role in both robberies.

Consistent with relevant case law, we conclude the court exercised its discretion without abuse in finding the Spreigl offense relevant.

"Where evidence of identity is inconclusive and crucial, the state may fortify its case with Spreigl evidence to show identity." State v. Jackson, 469 N.W.2d 457, 461 (Minn. App. 1991), aff'd, 472 N.W.2d 861 (Minn. 1991). Here, at trial the district court found the state's case was weak because the two eyewitnesses appeared "sleepy and out of it" and uninterested in their testimony. The postconviction court did not abuse its discretion in sustaining the district court's determination that the state's case was weak enough to necessitate the admission of the Spreigl evidence.

Additionally we note that the district court minimized improper prejudice by giving the jury the standard Spreigl cautionary instructions before the receipt of the evidence and during final closing instructions. Further, the evidence was presented in a nonprejudicial manner. Because all three required factors for the admission of Spreigl evidence have been met, the postconviction court's denial of a new trial is affirmed.

Affirmed.