State of Minnesota, Respondent, vs. John F. Wyche, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-803

State of Minnesota,

Respondent,

vs.

John F. Wyche,

Appellant.

Filed May 6, 2003

Affirmed

Lansing, Judge

Hennepin County District Court

File No. 01094088

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

Jay M. Heffern, Minneapolis City Attorney, Karen S. Herland, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402 (for respondent)

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            John Wyche appeals his conviction for indecent exposure, challenging the district court's jury instructions and its admission of evidence of a prior indecent-exposure conviction.  Because Wyche fails to demonstrate a reasonable likelihood that the erroneous no-inference instruction affected the outcome of his trial, and because the district court did not abuse its discretion in admitting the other-crime evidence, we affirm.

F A C T S

            A jury convicted John Wyche of indecent exposure based on testimony that he exposed himself to a woman at a bus stop in the Uptown area of Minneapolis.  The testimony of the woman at the bus stop provided the only direct evidence linking Wyche to the crime.  She identified Wyche in court, but acknowledged on cross examination that she had initially described the suspect as a man with hair one-half inch to one inch in length, and that a police photo of Wyche taken approximately two weeks after the incident showed his hair to be between two and three inches long.

At the close of its case, the state moved to admit evidence that Wyche had been convicted of indecent exposure in 1999.  In that incident, Wyche had exposed himself to two women at a bus stop in Edina.  As in the charged offense, the earlier incident involved a male approaching a female at a bus stop, engaging in unwelcome conversation, and then exposing his penis.  The district court admitted evidence of the conviction.  The court instructed the jury against improper use of the other-crime evidence, both immediately prior to its introduction and again in the court's final instructions.

After the state rested, Wyche called two witnesses who placed him in northeast Minneapolis at the time of the incident.  Wyche did not testify.  In its final instructions, the court advised the jury that Wyche had a right not to testify, and that the jury should draw no adverse inferences from the exercise of that right.  Wyche did not object to that instruction. 

The jury returned a guilty verdict, which Wyche now appeals.

D E C I S I O N

I

Wyche argues that the district court committed reversible error when it instructed the jury on his right not to testify without first obtaining his consent on the record.  A court should obtain the defendant's permission before instructing the jury on the defendant's right not to testify and on the jury's duty not to draw any adverse inference from the exercise of that right.  State v. Thompson,  430 N.W.2d 151, 153 (Minn. 1988).  But when the defendant fails to object to the instruction, this court will review the error only if it affected substantial rights.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002). 

An erroneous no-inference instruction affects substantial rights "when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury's verdict."  Id.  On this issue the defendant bears a "heavy burden" of proof.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

Wyche contends that the instruction affected the jury's verdict because "[t]he jury doubtless wanted to hear [him] testify to corroborate his alibi claim" and because the instruction "singled out [his] failure to give his version of events."  But Wyche did give his version of events.  Through the testimony of two witnesses he presented the alibi that he was in northeast Minneapolis and not at an Uptown bus stop when the incident occurred.  The jury could have reasonably concluded that Wyche had no reason to testify and repeat the alibi claim he had already presented through the witnesses.  Wyche's speculation as to what the jury may or may not have wanted to hear is insufficient to satisfy his burden of showing a reasonable likelihood that the instruction prejudiced the outcome of his trial.  We therefore decline to review the district court's no-inference instruction.

Wyche also argues that the district court erred in admitting evidence of the 1999 indecent-exposure conviction.  A district court should not admit evidence of other crimes to prove the character of the defendant in order to show the defendant acted in conformity with the prior crimes.  Minn. R. Evid. 404(b).  But a trial court may admit evidence of other crimes to show motive, intent, absence of mistake or accident, identity, or a common plan or scheme.  Id.  This court will not reverse a district court's admission of other-crimes evidence absent an abuse of discretion.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

Wyche contends that admission of the 1999 conviction was unfairly prejudicial because of the similarity between the act underlying the conviction and the charged offense.  Although evidence of a prior crime is not admissible to show conforming conduct, the similarity of a prior conviction may make its admission more appropriate, not less.  State v. Lynch, 590 N.W.2d 75, 81 (Minn. 1999).  That is because "the closer the relationship [between the conviction and the charged offense], the greater is the relevance or probative value of the evidence and the lesser is the likelihood that the evidence will be used for an improper purpose."  State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).

Courts determine whether other-crime evidence is unfairly prejudicial by considering the state's need for the evidence.  "When identity is at issue, evidence of other crimes is admissible only if the trial court finds the direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate, and that it is necessary to support the state's burden of proof."  Lynch, 590 N.W.2d at 81 (quotation omitted).

The record indicates that the district court considered the admissibility of the other-crime evidence only after hearing the state's evidence and finding that the state's case "does have some weaknesses."  We believe that the district court correctly assessed the state's need for the other-crime evidence.  Without the evidence, the state's case relied entirely on the testimony of the woman at the bus stop, who initially described the suspect's hair as shorter than Wyche's.  Further, the district court further reduced the risk of unfair prejudice with its instruction against convicting Wyche on the basis of the earlier conviction.  See id. (giving cautionary instructions "assured that the jury did not give improper weight to the evidence").  We therefore conclude that the district court's admission of the other-crime evidence was not an abuse of discretion.

Affirmed.