State of Minnesota, Respondent, vs. Alex William McSorley, Appellant.

State of Minnesota, Respondent, vs. Alex William McSorley, Appellant. C6-00-993, Court of Appeals Unpublished, December 26, 2000.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-993

 

 

State of Minnesota,

Respondent,

 

vs.

 

Alex William McSorley,

Appellant.

 

 

Filed December 26, 2000

Affirmed

Schumacher, Judge

 

Ramsey County District Court

File No. KX992511

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

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

 

Eric L. Newmark, Jennifer E. Speas, Robert Travis Snider, Birrell, Dunlap & Ritts, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN 55403 (for appellant)

 

 

            Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Alex William McSorley appeals his convictions of two counts of kidnapping and one count of terroristic threats, alleging that the trial court erred in admitting Spreigl evidence and that the evidence is insufficient to support the conviction.  We affirm.

FACTS

On May 20, 1999, K.B. was out for a run on the State Trail.  She had slowed to a walk when she heard noises behind her, turned around, and saw a man on the trail who seemed to have come from nowhere.  She began to run from him, but stopped when he said he was a police officer.  She returned to speak with him, and he put his arm around her and repeated that she did not need to be afraid because he was a police officer.  K.B. became suspicious and repeatedly asked to see a badge. 

The man grabbed K.B. in a "bear hug"; she started screaming for help.  As she struggled, the man repeatedly threatened to "cut" her unless she stopped screaming.  The man dragged her between 10 and 15 yards toward the bridge underneath the Highway 61 overpass, where he tried to throw her to the ground.  As K.B. fought him, he lost his grip and fell down.  K.B. was able to run to a nearby house, where the residents called the police.  K.B. later identified McSorley as her assailant from both a photo lineup and a videotape of a live lineup. 

At trial, the judge ruled that the jury could hear Spreigl evidence concerning two additional incidents involving McSorley.  In the first incident, Sophy Nguon testified that on July 4, 1999, she was walking on the same portion of the State Trail on which K.B. was attacked when she saw McSorley walking toward her.  When she looked away for a moment, he was gone; she could not figure out where he had gone.  In a few minutes, McSorley reappeared from the adjacent wooded area, shirt off, pants down, masturbating.  Nguon screamed and ran, but looked back over her shoulder to make sure she could give a good description.  Nguon later identified McSorley from a photo lineup. 

In the second incident on February 8, 1997, Ramsey County Sheriff's Deputy Julie McNeely was helping two other officers execute a felony arrest warrant at McSorley's home for the arrest of his brother, Adam McSorley.  Adam McSorley resisted arrest and was struggling with a male officer when Alex McSorley came out of a hallway or nearby doorway and attacked the male officer trying to subdue Adam McSorley.  Deputy McNeely came to the male officer's aid, and the whole group tumbled onto the floor.  Alex McSorley used his ankles and calves to grab Deputy McNeely's neck in a scissors hold.  Deputy McNeely was eventually able to break McSorley's grip, and the officers subdued and arrested both McSorley brothers.

At trial, McSorley presented an alibi defense.  His mother and stepfather testified that he was at home on the night of the attack on K.B., and several family members testified that he was 60 or 70 miles away in Pine City attending a family gathering on July 4, the date of the Spreigl incident involving Sophy Nguon.  McSorley also challenged the reliability of K.B.'s identification of him as the attacker.  The trial court granted a directed verdict of acquittal on the count of first degree attempted criminal sexual conduct, and the jury convicted McSorley of two counts of kidnapping and one count of terroristic threats. 

D E C I S I O N

Spreigl evidence should not be admitted in a criminal prosecution unless the trial court determines (1) the evidence is clear and convincing that the defendant participated in the conduct alleged; (2) the evidence is relevant and material to the state's case; and (3) the probative value of the evidence outweighs any potential prejudicial effect.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).  The admission of Spreigl evidence lies within the sound discretion of the trial court, and a trial court's ruling will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). 

McSorley argues that his participation in the Nguon incident was not established by clear and convincing evidence because Nguon's eyewitness identification was weak and because several family members testified that he was 60 or 70 miles away attending a July 4 family gathering when the incident occurred.  The trial court, however, heard testimony from both Nguon and the family members.  Eyewitness testimony of the previous bad acts has satisfied the clear and convincing standard in previous cases.  See Shannon, 583 N.W.2d at 584 (observing that admission of Spreigl evidence on the strength of clear identification of defendant as assailant satisfies the clear and convincing standard).  Furthermore, it is well settled that the testimony of one witness can support a conviction, which requires proof beyond a reasonable doubt.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  Nguon's eyewitness testimony was therefore sufficient to meet the clear and convincing evidence standard. 

In determining the relevance and materiality of Spreigl evidence, the trial court considers, among other factors, "whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi." State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (citation and emphasis omitted).  The Nguon incident took place only about six weeks after the K.B. attack, and it took place in the same area of the State Trail.  It also resembles the K.B. attack in important respects: both involved young women, and in both incidents the perpetrator concealed himself along the trail and then sprang out at his victim.  As a result, the two incidents are similar in time, place, and modus operandi.  The evidence also was relevant to the state's case because identity was at issue and McSorley presented an alibi defense.  State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) ("[W]here * * * identity is an issue and the defendant presents an alibi, the state has a right to bolster its position with Spreigl evidence." (emphasis omitted)).  The trial court did not abuse its discretion in admitting Spreigl evidence concerning the Nguon incident.

We cannot conclude, however, that evidence of McSorley's assault on Deputy McNeely was properly admitted.  A Spreigl offense

need not be identical in every way to the charged crime, but must instead be sufficiently or substantially similar to the charged offense---determined by time, place and modus operandi.

 

Kennedy, 585 N.W.2d at 391.

The incidents were more than two years apart.  Although the state argues that this time lapse is made less important by the fact that McSorley was incarcerated for part of this time, the record on appeal does not contain the information necessary to substantiate that claim.  Both offenses were committed in Ramsey County.  But the most important factor is the wide dissimilarity in the incidents.  In investigating the McNeely incident, police officers came into McSorley's home; he did not jump out at them from a wooded trail.  McSorley attacked a male officer; it was fortuity that a female officer, McNeely, joined in.  In the McNeely assault, McSorley choked McNeely in a scissors hold while fighting on the floor; he did not choke her with his hands.  In the McNeely incident, McSorley did not threaten her until he was already in custody in the police station; in the K.B. assault, he threatened her as part of his attempt to effectuate the assault.  Despite the state's attempts to use broad generalities to make the incidents seem similar, they quite obviously are not the product of the same modus operandi.  The trial court abused its discretion in admitting Spreigl evidence concerning the McNeely assault.

But in reviewing the admission of other bad acts evidence, reversal is not required "so long as the error was harmless beyond a reasonable doubt."  Shannon, 583 N.W.2d at 585 (citing State v. Slowinski, 450 N.W.2d 107, 113 n.1 (Minn. 1990)).  Given K.B.'s firm identification of McSorley as her attacker, and adding the Spreigl evidence of a similar incident when he again sprang out of the woods along the State Trail to assault Nguon, we do not believe that the jury relied on the dissimilar McNeely assault to help it determine the identity of the man who assaulted K.B.  We conclude that the trial court's error here was harmless. 

McSorley also argues that the evidence was insufficient to sustain his conviction.  When reviewing a sufficiency-of-evidence appeal, we must determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach a guilty verdict.   State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We "recognize that the jury is in the best position to evaluate the credibility of witnesses and assume that, after due consideration, the jurors believed the state's witnesses."  State v. Profit, 591 N.W.2d 451, 467 (Minn.) (quotation and citation omitted), cert. denied 528 U.S. 862, 120 S. Ct. 153 (1999).

K.B. testified that McSorley was her attacker.  That evidence alone, if believed by the jury, was sufficient to sustain his conviction.  Johnson, 568 N.W.2d at 435 (conviction may rest upon testimony of single credible witness).  That identity evidence was corroborated by the evidence of the Nguon incident.  The evidence was sufficient to sustain McSorley's conviction.

Affirmed.