State of Minnesota, Respondent, vs. Orvis O. Oelke, Appellant.

State of Minnesota, Respondent, vs. Orvis O. Oelke, Appellant. A04-685, Court of Appeals Unpublished, April 5, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-685

 

State of Minnesota,
Respondent,
 
vs.
 
Orvis O. Oelke,
Appellant.

 

Filed April 5, 2005 Affirmed

Peterson, Judge

 

Wadena County District Court

File No. K502210

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Jon A. Edin, Wadena County Attorney, Wadena County Courthouse, 415 Jefferson Street South, Wadena, MN  56482 (for respondent)

 

John M. Stuart, State Public Defender, Marie L. Wolf, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from convictions of second-degree burglary and terroristic threats, appellant argues that the district court abused its discretion by admitting Spreigl evidence.  We affirm.

FACTS

            Laura Beach, appellant Orvis O. Oelkle's former girlfriend, went to her cabin and discovered that the door had been kicked in.  Upon entering, she saw a beer can and a letter on the kitchen table.  The letter stated:

            Remember you had nothing in your name property [illegible] in your life, you used my D-8 caterpiller to get this house[.] I did a lot of prison time so you could enjoy my possessions[.] I'm still a human and do live around here, also remember my bedroom set?  I don't hate you at all. I only wish someday you could look me in the eye and tell me you are sorry! I have thought of a thousand times to just burn down this house and barn, and go and shoot Diane and Richard Beach[1] and be done with it.  Thank you. Orvis Oelke.

 

Beach took the letter to the Wadena County Sheriff, and after an investigation, appellant was charged by complaint with second-degree burglary and terroristic threats.[2]

            Approximately two weeks before trial, the prosecutor sent a letter to appellant's attorney that summarized Laura Beach's anticipated testimony.  The letter referred to prior bad acts of appellant and to Beach's efforts to obtain and serve appellant with harassment restraining orders.  The prosecutor also served a list of witnesses and exhibits that stated that the state intended to call Deputy Sheriff Mike Carr, Jr. as a witness, and to offer as exhibits (1) the letter that Beach allegedly found in her cabin; (2) a June 2001 harassment restraining order; and (3) two notes allegedly written by appellant to Beach.[3]

On the day that appellant's trial was scheduled to begin, appellant moved to preclude the state from introducing (1) Carr's testimony regarding other acts of vandalism to Beach's cabin that Carr had been called to investigate; and (2) Beach's testimony (a) that she had obtained a harassment restraining order against appellant, (b) that appellant had previously threatened Beach with a tire iron, and (c) about other aspects of her relationship with appellant.  Appellant argued that this evidence should not be admitted because the state failed to (1) provide notice; (2) indicate how it intended to use the evidence; (3) establish that the evidence was relevant to a material aspect of the state's case in chief; and (4) establish by clear and convincing evidence that appellant committed the prior acts.  Appellant also argued that the evidence was more prejudicial than probative. 

At the motion hearing, the state conceded that most, if not all, of the evidence was Spreigl evidence for which it had not provided formal notice, but argued that the nature and purpose of the evidence was made substantially clear from the state's disclosures during discovery.  The state argued in the alternative that because the purpose of the evidence was to show the relationship between appellant and Beach, no Spreigl notice was required.

The district court determined that because the evidence went either to the relationship between the parties or to proof of the offenses charged, notice was not required.  The district court permitted Beach to testify about her relationship with appellant and permitted Carr to testify about three occasions when he was called to investigate writing on Beach's cabin.  Although the court considered the evidence to be relationship evidence and not Spreigl evidence, the court gave a cautionary Spreigl instruction.

            Carr testified that he had investigated other incidents of vandalism at Beach's cabin, including one in June 2001, when he found writing on the outside of the cabin, which said:

            I live close by.  I don't hate you at all.  And if you could only once just say, ‘I'm sorry for the past,' I probably would forgive you.  Laura, I'm not a man to be used.  I'm doing good.  And why did you tell Joanna Burndell you were going to lock me up again, get everything I owned?  I helped you out many times since I have known you and your last report to the law, and you are still looking for a companion. And you don't know how to get Dee and Richard out of all the money they've stolen.

 

Peachy, why did you steal?  I helped you get this, and look at how many people involved.

 

Carr testified that Beach told him that appellant was the only person who called her "Peachy."

In August 2001, Carr investigated writing on the cabin, which stated, "Laura loves to steal and f*ck," and was signed "Orvis."  In April 2002, several weeks after the charged incident, Carr investigated writing on the cabin, which said, "Laura, I will fight dirty.  Orvis."   

Beach testified in general terms about restraining orders that she had obtained against appellant and spoke specifically about an incident in which appellant grabbed her by the collar and shoved her up against a cupboard when she declined to help him herd cattle.  After she agreed to help him, he took a tire iron and smashed the lights on the front of the pickup truck in which she was sitting.  Beach testified that she thought that appellant was going to hit her with the tire iron when he came to her side of the pickup. She also testified that appellant wrote on her cabin "a lot of times."

Beach's daughter, Diana Lehner, testified that she was afraid of appellant and was concerned for her mother when her mother would stay at the cabin.  She also testified that she encouraged her mother to report to the police "every time she got a letter" or had any contact with appellant and that if she was aware appellant was in the area, she would regularly survey the property and stay up at night.  

The jury found appellant guilty of second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2(a) (2002), and making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2002).  Appellant was sentenced to the presumptive term of 43 months for the burglary conviction and to a concurrent term of 27 months for the terroristic-threats conviction.  He appeals from his convictions.

D E C I S I O N

            Appellant argues that the district court abused its discretion when it permitted the state to present unnecessary, cumulative, and prejudicial evidence of appellant's prior bad acts.  Appellant asserts that as a result of this evidence, he was denied a fair trial.

            Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.  It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

 

Minn. R. Evid. 404(b).  Such evidence is known as "Spreigl evidence" in Minnesota.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  To prevail, an appellant must show error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). 

Spreigl evidence should not be admitted in a criminal prosecution unless (1) the state gives notice that it intends to use the evidence, (2) the state clearly indicates what the evidence is being offered to prove, (3) the evidence is clear and convincing that the defendant participated in the other offense, (4) the evidence is relevant and material to the state's case, and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice. 

 

State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002). 

Notice Requirement

            Appellant concedes that he had notice that the prior incidents were alleged, but argues that he did not receive adequate notice of how the state planned to use the evidence.

The purpose of the notice is to give the defendant sufficient opportunity to prepare for trial and to avoid defending against unexpected testimony concerning prior offenses or bad acts.  State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995).  However, "Spreigl notice is not required as a condition for the admissibility of evidence bearing directly on the history of the relationship existing between the defendant and the victim."  State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004) (quotation and citation omitted).  This is because a defendant is undoubtedly "aware that his prior relationship with the victim . . . may be presented against him" and therefore cannot claim surprise by the introduction of evidence of collateral bad acts.  Id. at 159-60 (quotation and citation omitted).  Evidence that bears directly on the history of the relationship between the defendant and the victim is not considered Spreigl evidence.  State v. Kanniainen, 367 N.W.2d 104, 106 (Minn. App. 1985).  Therefore,

            [c]onsistent with [evidentiary] Rule 404(b), it is within the [district] court's discretion to admit evidence of a defendant's prior acts for the purpose of illuminating the relationship of defendant and complainant and placing the incident with which defendant was charged in proper context. Character evidence [that] tends to show the strained relationship between the accused and the victim is relevant to establishing motive and intent and is therefore admissible. Prior to admitting such evidence, the [district] court must determine that there is clear and convincing evidence that the defendant committed the prior bad act and that the probative value of the evidence outweighs any potential for unfair prejudice.

 

State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999) (quotations and citations omitted).

Appellant's argument regarding notice assumes that the evidence is Spreigl evidence and not relationship evidence.  Because the evidence to which appellant objects served to illuminate the relationship between Beach and appellant, we conclude that the evidence was relationship evidence and that the state, therefore, did not need to meet the formal notice requirements for Spreigl evidence.  See State v. Black, 291 N.W.2d 208, 215 (Minn. 1980) (finding evidence of robbery charges admissible without written notice). 

Clear and Convincing

Appellant argues that the state failed to present clear and convincing evidence of several of the proffered bad acts and that much of the "bad act" evidence was vague and unsubstantiated.  Appellant identifies as objectionable: Beach's testimony that she broke off her relationship with appellant because he was in trouble with the law all the time; that she obtained as many as four restraining orders over the years; that she sold her cabin because her family did not want her to stay there; that appellant wrote on the cabin numerous times; and that she had post traumatic stress disorder from the events.  Appellant contends that this testimony refers to bad acts without showing by clear and convincing evidence that the acts occurred and that the allegations are so vague that he could not possibly defend himself against them.  Appellant makes similar arguments with respect to Lehner's testimony.

At least some of the testimony about prior bad acts that appellant challenges on appeal, such as the statement that appellant was in trouble with the law all the time, is vague.  But appellant did not object at trial that there was not clear and convincing evidence that the acts that he objects to on appeal occurred.  "[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights."  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  For purposes of plain-error analysis, "‘Plain' is synonymous with ‘clear' or, equivalently, ‘obvious.'"  United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).

The clear-and-convincing standard requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.  Stewart, 643 N.W.2d at 297.  The clear-and-convincing standard is met when the truth of the facts sought to be admitted is "highly probable."  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  The uncorroborated testimony of a single witness may be sufficient to meet the clear-and-convincing standard.  State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000).

Beach and Lehner testified about several different events that occurred during a period of several years.  Their testimony did not need to be corroborated to meet the clear-and-convincing standard.  Even if an exacting analysis of their testimony might reveal that there was not clear and convincing evidence of each of the events that they testified about, the absence of clear and convincing evidence is not obvious, and, therefore, we will not review the alleged errors.

Prejudicial vs. Probative

Appellant argues that the evidence of prior bad acts was not more probative than prejudicial.  The district court must determine "that the probative value of the evidence outweighs any potential for unfair prejudice."  Bauer, 598 N.W.2d at 364.  The supreme court has "on numerous occasions recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim."  State v. Williams, 593 N.W.2d 227, 236 (Minn. 1999).  "[W]here evidence sought to be introduced . . . does not tend to show that the defendant is guilty of a crime other than the crime with which he is charged, the chance of it creating unfair prejudice is less than is ordinarily the case" with other prior bad acts evidence.  Bauer, 598 N.W.2d at 364-65 (quotation and citation omitted). 

Although some of the relationship evidence admitted at trial concerned prior acts that would be crimes of vandalism, case law establishes that where the evidence is relevant to show a strained relationship and to establish motive and intent, its admission is not an abuse of discretion.  See Bauer, 598 N.W.2d at 365 (concluding relationship evidence was admissible to show strained relationship between defendant and victim even where evidence could also show appellant committed past crimes); State v. Henriksen, 522 N.W.2d 928, 929 (Minn. 1994) (stating "[e]vidence bearing on the defendant's relationship with the victim, including other-crime evidence, is often admitted in terroristic threats . . . cases. Such evidence puts the alleged criminal conduct of the defendant in context, may help the jury in assessing the defendant's intent and motivation, and may serve other valid purposes").  Here, the evidence explained the nature of the relationship between appellant and Beach and put the alleged offenses in the context of their relationship.  Accordingly, we conclude that the district court acted within its discretion in determining that the probative value of the relationship evidence outweighed the potential for any unfair prejudice to appellant.

Appellant also argues that the "plethora" and "barrage" of relationship evidence was cumulative, and therefore unfairly prejudicial.  But the number of alleged prior acts alone is not determinative of unfair prejudice.  State v. Belssner, 463 N.W.2d 903, 910 (Minn. App. 1990), review denied (Minn. Feb. 20, 1991).  Appellant has not shown that the district court abused its discretion because it admitted evidence of several prior acts. 

Appellant also argues that the relationship evidence prevented the jury from properly assessing whether the state proved that appellant broke into the cabin and wrote the note on the date alleged in the complaint.  But the date is not an element of the crime, and there is no reasonable possibility that the jury confused the charged offense, which involved very specific conduct, with the Spreigl incidents. 

Affirmed.

[1] Diana Beach is Laura Beach's daughter and Richard Beach is Diana's father.

[2] Appellant was also charged with a third count that was later dismissed.

[3] The notes were not offered at trial.