State of Minnesota, Respondent, vs. Peter Richard Stephenson, Appellant.

State of Minnesota, Respondent, vs. Peter Richard Stephenson, Appellant. A05-417, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and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

A05-417

 

State of Minnesota,

Respondent,

 

vs.

 

Peter Richard Stephenson,

Appellant.

 

Filed May 16, 2006

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 04028023

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Peter Richard Stephenson challenges his conviction of two counts of fourth-degree criminal sexual conduct, arguing that (1) the district court plainly erred by not instructing the jury that it had to agree on which acts appellant committed against each victim; (2) the district court plainly erred by not instructing the jury that it must separately consider the charges involving the two victims; and (3) the district court abused its discretion in admitting Spreigl evidence.  In his pro se brief, appellant contends that his right to a fair trial was violated.  We affirm.

D E C I S I O N

 

I.

 

            Appellant argues that the district court violated his right to a unanimous verdict because the court did not instruct the jury that it had to agree on which acts appellant committed against each victim.  Appellant contends that because the state introduced evidence of multiple acts regarding each victim, some of the jurors might have convicted appellant for one act, while others might have convicted him for another.  We disagree.

            District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

            Generally, a party waives the right to appeal jury instructions by failing to object to the instructions at trial.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998); see also Minn. R. Crim. P. 26.03, subd. 18(3).  But a party's failure to object will not cause the appeal to fail when the instructions contain plain error.  Cross, 577 N.W.2d at 726.   Under a plain error analysis, appellant must show:  (1) error; (2) that is plain; and (3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Once appellant meets these three prongs, the appellate court may correct error only if doing so would "ensure fairness and the integrity of the judicial proceedings."  Id. Here, appellant did not object to the jury instructions at trial.  Therefore, we must determine whether the instructions constituted plain error.

            Criminal defendants have a constitutional right to a unanimous jury verdict.  Burns v. State, 621 N.W.2d 55, 61 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).  As part of this right, the jury must unanimously agree on whether the defendant committed the act or acts that constitute the charged crime.  State v. Stempf, 627 N.W.2d 352, 359 (Minn. App. 2001).  Thus, when the state alleges more than one distinct act to support a single conviction, the district court must instruct the jurors that they must unanimously agree that the state has proven the same underlying criminal act beyond reasonable doubt.  Id.  But in cases involving ongoing criminal sexual conduct, specific dates need not be charged or proved.  See State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984); State v. Poole, 489 N.W.2d 537, 544 (Minn. App. 1992), aff'd, 499 N.W.2d 31 (Minn. 1993).

            Here, the state charged appellant with four counts of fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345 (2002).  Under that statute, a person is guilty of fourth-degree criminal sexual conduct if (1) that person engages in sexual contact with another person and "the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant"; or (2) that person engages in sexual contact with another person and "uses force or coercion to accomplish the sexual contact."  Minn. Stat. § 609.345, subd. 1(b), (c).  The state alleged that appellant committed fourth-degree criminal sexual conduct against M.M. and M.X. under both theories of the crime.

            At trial, M.M. testified regarding five to six instances when appellant spanked or touched her buttocks at work, and M.X. testified that appellant spanked her buttocks at work on four to six occasions.  Both women testified that the conduct occurred during a one- to two-month period.  At the conclusion of trial, the district court instructed the jury that the state had charged appellant with four counts of fourth-degree criminal sexual conduct and that counts one and three relate to alleged crimes committed against M.M. on or between March 2004 and April 2004, and counts two and four relate to alleged crimes committed against M.X. on or between March 2004 and April 2004.  The court then instructed the jury on the elements of each alleged offense. 

            After closing arguments, the court instructed the jury that the verdict must be unanimous:

            In order for you to return a verdict, whether guilty or not guilty, each juror must agree with the verdict.  Your verdict must be unanimous.

           

            . . . .

           

            The foreperson will sign only one verdict form for each separate count.  You're either signing the guilty or the not guilty form, whichever you have reached a conclusion on.

 

            There are 12 of you upon this jury.  And in order to reach a verdict, all of you must agree.  The jury verdict must be unanimous.

 

(Emphasis added.)

            Appellant argues that the court's general unanimity instruction was insufficient to protect his right to a unanimous verdict.  Appellant contends that under Stempf, 627 N.W.2d 352, the district court must specifically instruct the jurors that they must unanimously agree on which acts appellant committed.  But this case is distinguishable from Stempf.

            In Stempf, the state charged the defendant with a single act of possession of methamphetamine but introduced evidence of two distinct acts of possession that occurred at different times and in different places.  627 N.W.2d at 354.  The defendant asserted different defenses to the two alleged acts of possession and requested an instruction that required the jury to evaluate the two acts separately.  Id.  But the court denied the defendant's request and the state told the jurors that they could convict even if they did not agree on which criminal act the defendant committed.  Id.  Because the act of possession was an essential element of the charged crime, this court reversed the district court and held that the jury had to unanimously agree which of the distinct acts constituted the crime.  Id. at 357-59.

            But here, unlike the defendant in Stempf, appellant did not engage in separate, distinct acts.  Instead, appellant engaged in a single course of conduct by repeatedly spanking the victims at work during a one- to two-month period.  And because the spanking incidents were part of one course of conduct, appellant did not present separate defenses for each incident.  Rather, appellant's counsel suggested that appellant continually spanked the women to punish them, not for his own sexual gratification.  Thus, we conclude that the general unanimity instruction sufficiently protected appellant's right to a unanimous verdict.

            Furthermore, even if the district court erred in giving the instructions, the instructions did not violate appellant's substantial rights.  See Griller, 583 N.W.2d at 740-41 (stating that under plain error analysis, plain error must affect defendant's substantial rights by altering the outcome of the case).  At trial, appellant did not dispute that he spanked M.M. and M.X. over the one- to two-month period.  Rather, he argued that he did not have the intent of receiving sexual gratification from the contact.  Appellant now contends that some of the jurors might have convicted him for one spanking incident while others may have convicted him for another spanking incident.  But appellant does not attempt to explain why the jurors might have believed that appellant spanked the victims with the intent to punish on some occasions but believed that appellant spanked the victims with intent to receive sexual gratification on other occasions.  See State v. Shamp, 427 N.W.2d 228, 231 (Minn. 1988) (holding that the district court's failure to instruct the jury that it could not base conviction on acts occurring outside the statute of limitations period was not prejudicial because there was no reasonable likelihood that the jury discredited the victim's testimony relating to acts within the limitations period but credited testimony about acts outside the period).  Because there is no reasonable likelihood that the jury would have found that appellant's intent changed with each incident, we conclude that the district court did not plainly err by giving only a general unanimity instruction.

II.

 

            Appellant argues that the district court erred when it failed to instruct the jury to separately consider the four charges involving the two alleged victims.  Again, appellant did not make this objection at trial, and therefore, we must review for plain error.  Cross, 577 N.W.2d at 726.

            "[F]or trial of all offenses joined under Minn. R. Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately."  State v. Kates, 610 N.W.2d 629, 631 (Minn. 2000); State v. Dick, 638 N.W.2d 486, 491 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).  But this court will not reverse the district court when the error is harmless.  See Dick, 638 N.W.2d at 491.

            Here, the district court did not explicitly instruct the jury that it must consider each charge separately.  But the court clearly explained to the jurors that the four charges were separate and that they must give a separate verdict for each charge by giving the following instruction:

            As I explained to you earlier, there are four counts against the defendant in this case.  There will be two possible forms of verdict with respect to each count.  There will be a guilty form and a not guilty form for each separate count. . . .

 

            If you find that the state has proved beyond a reasonable doubt the defendant is guilty of the crime of count one . . . you will use this form:  We, the jury, find the defendant guilty of the charge of, count one, criminal sexual conduct in the fourth degree.

 

            If you find that the state has not proved beyond a reasonable doubt that the defendant is guilty of the crime contained in count one . . . you will use this form:  We, the jury, find the defendant not guilty of the crime of the charge of, count one, criminal sexual conduct in the fourth degree.

 

            You will follow the same procedure for the remaining three counts of sexual conduct in the fourth degree.

 

            The foreperson will sign only one verdict form for each separate count.  You're either signing the guilty or the not guilty form, whichever you have reached a conclusion on.

 

In addition, the court explained the elements of each offense, noting the different elements for each charge.  Thus, although the court failed to give an explicit instruction on considering the charges separately, we conclude that the court ensured that the jurors understood that they should consider the charges separately.  Thus, the district court's failure to give an explicit instruction on considering the charges separately is harmless.  Therefore, the district court did not plainly err.

III.

            Appellant argues that the district court abused its discretion in admitting evidence that appellant sexually touched an eight-year-old boy in 1990.  We disagree.

            Evidence of other crimes or bad acts is characterized as "Spreigl evidence."  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).  On appeal, appellant has the burden to show the error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).

            Generally, Spreigl evidence is not admissible to prove that a criminal defendant acted in conformity with his character.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490, 495-96, 139 N.W.2d 167, 169, 171-72 (1965).  But the evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Minn. R. Evid. 404(b); Spreigl, 272 Minn. at 491, 139 N.W.2d at 169. 

            Before admitting Spreigl evidence, the district court must first determine that (1) the state gave notice of its intent to admit the evidence; (2) the state clearly indicated what it would offer the evidence to prove; (3) there is clear and convincing evidence that the defendant participated in the prior act; (4) the evidence is relevant and material to the state's case; and (5) the evidence's potential to prejudice the defendant must not outweigh the probative value of the evidence.  Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005).  "When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded."  Kennedy, 585 N.W.2d at 389.

            Here, appellant only challenges the probative value of the Spreigl evidence.  When balancing the probative value of the evidence against the potential for unfair prejudice, the district court must consider how necessary the Spreigl evidence is to the state's case.  Id. at 391.  "Only if the other evidence is weak or inadequate, and the Spreigl evidence is needed as support for the state's burden of proof, should the trial court admit the Spreigl evidence."  Id. at 391-92 (quotation omitted).  "‘Need' for other-crime evidence is not necessarily the absence of sufficient other evidence to convict[.] . . . [T]he evidence of other offenses may be needed because, as a practical matter, it is not clear that the jury will believe the state's other evidence bearing on the disputed issue."  Angus, 695 N.W.2d at 120 (quotation omitted).

            Here, the district court allowed the state to offer evidence of a 1990 incident for the limited purpose of showing appellant's intent of receiving sexual gratification from the contact with M.M. or M.X.  The district court gave a limiting instruction before admitting the Spreigl evidence and again in its final instructions to the jury.  First, J.C. testified that when he was eight years old, appellant inappropriately touched him.  Then the state read a statement that appellant made in 1991 where he admitted that he touched the boy on his buttocks to satisfy his sexual impulses rather than for disciplinary reasons. 

            Appellant argues that the Spreigl evidence was more prejudicial than probative.  But the most contested element in this case was appellant's intent.  Appellant's counsel attempted to persuade the jury that appellant's spanking was not sexual.  Appellant's counsel elicited testimony from M.M. and M.X. that some of the spankings occurred when appellant was upset with the women for staying out too late or for making mistakes at work.  Then, during closing arguments, appellant's counsel argued that appellant spanked the girls because he was angry, not because he intended to receive sexual gratification from the contact.  Because the jury could have believed appellant's theory of the case, the district court did not abuse its discretion in ruling that the Spreigl evidence was needed to support the state's burden of proof for the intent element.  Thus, we conclude that the district court did not abuse its discretion in admitting the evidence.

IV.

 

            Finally, in his pro se supplemental brief, appellant makes several arguments regarding why his right to a fair trial was violated.  Appellant argues that his attorney, the state's attorney, and the district court erred when appellant's attorney called appellant a sex offender at trial.  But appellant provides minimal argument and no legal authority.  We may decline to reach issues that have been inadequately briefed and choose to do so here.  See State, Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997)(holding that in absence of adequate briefing, reviewing court may decline to reach issue); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignment of error in appellate brief, which is based on "mere assertion" and unsupported by argument or authority, is waived unless prejudice is obvious on mere inspection).  In addition, appellant is taking his attorney's statement out of the context in which his attorney made it and is misinterpreting its meaning.  Viewing the statement in the proper context, the statement did not prejudice appellant.  Therefore, we conclude that appellant's arguments are without merit. 

            Affirmed.