State of Minnesota, Respondent, vs. Edward Thomas Langston, Appellant.

State of Minnesota, Respondent, vs. Edward Thomas Langston, Appellant. A05-1892, Court of Appeals Unpublished, November 28, 2006.

This opinion will be unpublished and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

A05-1892

 

State of Minnesota,
Respondent,
 
vs.
 
Edward Thomas Langston,
Appellant.

 

Filed November 28, 2006

Affirmed

Peterson, Judge

 

Olmsted County District Court

File No. K8-04-1657

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN  55904 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, 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 a conviction of fifth-degree gross-misdemeanor assault, appellant argues that the district court erred in (1) admitting out-of-court statements made by the child victim and her sister; (2) admitting as Spreigl evidence testimony that appellant had previously hit the victim and evidence that appellant had been convicted of assaulting the victim's mother; and (3) failing to give a cautionary instruction limiting the jury's use of the Spreigl evidence to the purpose for which it was admitted.  Appellant also challenges the sufficiency of the evidence to support his conviction.  We affirm.

FACTS

            On March 11, 2004, upon receiving a report that C.W., a ten-year-old girl, said that she had been hit, C.W.'s teacher asked C.W. who hit her.  C.W. said that it was her mother's boyfriend, who was later identified as appellant Edward Thomas Langston.  When asked why he hit her, C.W. said that she thought it was because she did not have a room cleaned up as well as he wanted or because she did not listen to what he was saying.  The teacher reported what she had learned to the school's social worker.  The teacher later was contacted by C.W.'s mother, J.W., who was upset that her boyfriend had been reported for hitting C.W.

            The same day, the social worker talked to C.W., and C.W. said that appellant hit her, giving her a bloody nose.  When the social worker asked C.W. why appellant hit her, C.W. said that she was unsure but that he sometimes got very mad when the house was messy.  The social worker described C.W.'s demeanor as upset and observed a crust of what looked like dried blood in one of C.W.'s nostrils.  C.W. never indicated to the social worker that appellant struck her by accident.  C.W. told the social worker that she was unsure whether her mother was concerned about her being hit, although her mother did ask appellant "Why did you have to give her a bloody nose?"  J.W. contacted the social worker and said that the incident was C.W.'s fault because she had been misbehaving.

            On March 12, 2004, Julie Claymon, an investigator for the Rochester Police Department, interviewed C.W.  C.W. told Claymon that appellant had struck her, causing her nose to bleed.  Initially, C.W. did not remember why appellant hit her.  But after talking to Claymon for a while, C.W. said that she had gone into the bedroom to talk to her mom and interrupted an argument between her mom and appellant.  C.W. described the blow to her face as being "medium hard" and said that it "hurt very bad" and took at least four tissues to stop the nosebleed.  C.W. did not indicate to Claymon that the blow was accidental.  C.W. said that her sister A.W., age seven, was in the room when appellant hit C.W.

            Claymon interviewed A.W. on March 16, 2004.  Claymon asked if appellant had ever disciplined A.W., and she said that he had not but that he had hit C.W.  Claymon testified that after A.W. said that appellant had hit C.W., they began talking about the incident when appellant hit C.W. in the face, causing her nose to bleed, and A.W. brought up the incident herself.  A.W. said that C.W. came into her mom's room and asked to watch a movie, but her mom said "No."  C.W. left the room but then returned and mentioned the movie again, getting louder and sassing their mom and using swear words.  A.W. said that appellant woke up and slapped C.W. in the face, causing her nose to bleed.  A.W. described the blow as being very hard and C.W.'s nose as "bleeding a lot."  A.W. said that appellant hit C.W. in the mouth and accidentally hit her nose.

            C.W.'s trial testimony differed from her pretrial statements.  At trial, C.W. initially claimed that she did not remember what had happened, what she told the teacher about the incident, or even talking to the social worker or Claymon.  C.W. admitted that she was afraid to tell what had happened.  C.W. denied that appellant had hit her, describing his action as tapping her lightly on the face, and testified that she did not remember why he did it.

            A.W.'s trial testimony also differed from her statement to Claymon.  A.W. testified that appellant was trying to cover C.W.'s mouth because C.W. "was being sassy" and "accidentally did it too hard and made her nose bleed."  A.W. testified that she did not recall what she said in her statement to Claymon but that the statement was truthful.

            J.W. testified that she and C.W. were arguing and that appellant intervened, possibly intending to grab C.W. to bring her to her own room or cover her mouth to stop her sassing.  J.W. believed that what happened was an accident and testified that appellant apologized immediately to J.W.  J.W. admitted that she had previously told Claymon that appellant used an open hand to swat C.W. in the mouth.

            Appellant testified that C.W. was angry with J.W. and physically "thrashing about," so he decided to intervene and "get her shuffled off to bed."  Appellant testified that as he attempted to "scoop her up," C.W. continued thrashing and knocked her head into his fingers.  Appellant denied attempting to slap or injure C.W.

            Over appellant's objection, the district court allowed evidence of appellant's prior conviction for committing domestic assault against J.W.  A redacted version of the complaint and a certified copy of the court minutes from the plea and sentencing were admitted into evidence.  J.W. testified that the conviction resulted from an incident in which appellant slapped her face so hard that it caused a bruise and her nose to bleed.

            The district court also allowed evidence of a previous incident in which appellant slapped C.W. in the face.  A.W. testified that C.W. kept playing after J.W. told her to fold laundry and that appellant yelled at C.W. and hit her on the face.  J.W. recalled the laundry-folding incident but denied that appellant struck C.W.

D E C I S I O N

I.

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). 

            A statement is inadmissible as hearsay when it is an out-of-court statement offered for the truth of the matter asserted, unless it qualifies under a hearsay exception.  Minn. R. Evid. 801-804.  The district court ruled that the out-of-court statements by C.W. and A.W. to the teacher, the social worker, and the police investigator were admissible under the residual exception to the hearsay rule, which allows admission of

[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it . . . .

 

Minn. R. Evid. 803(24).

            Notice

            Appellant argues that the out-of-court statements were inadmissible because the state did not provide sufficient notice.  The state concedes that it did not provide advance notice that it intended to offer the statements under rule 803(24).  But on July 13, 2004, the state provided appellant with transcribed statements obtained by Claymon from the teacher, the social worker, C.W., and A.W.  The district court ruled that this disclosure of the statements provided implicit notice that the state intended to use the statements.

            The need for the out-of-court statements arose because C.W.'s and A.W.'s trial testimony was inconsistent with their earlier statements.  Although the state had expected C.W. and A.W. to minimize what had happened by characterizing appellant's action as reasonable punishment, their trial testimony that appellant did not intentionally hit C.W. was a surprise to the state.  Because the state provided appellant with notice of the statements in July 2004, and the need for the statements arose during trial, the district court acted within its discretion in declining to find the statements inadmissible based on insufficient notice.  See State v. Edwards, 485 N.W.2d 911, 913, 916 (Minn. 1992) (rejecting argument that state failed to give sufficient advance notice of intent to offer the victim's out-of-court statements under rule 803(24) when the state mailed the notice of its intent four days before trial, but the defendant had actual notice of the statements from the police reports, which were attached to the complaint); Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993) (in concluding that statement was admissible under rule 803(24), supreme court noted that although there was not formal compliance with the notice provision of rule 803(24), defense counsel had notice because he referred to the witness and his testimony in his opening statement).

            Probative value and trustworthiness

            Rule 803(24) allows "hearsay to be admitted in cases in which the declarant testifies if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by Rule 803."  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  Factors favoring admissibility in Ortlepp included that (1) the declarant was present, so no confrontation issue arose; (2) the declarant admitted making the statement; and (3) the statement was consistent with all other evidence presented by the state.  Id.; see also State v. Soukup, 376 N.W.2d 498 (Minn. App. 1985) (following Ortlepp), review denied (Minn. Dec. 30, 1985).  Additional factors that may be considered include whether the declarant had a motive for lying and the consistency among multiple out-of-court statements by a declarant.  State v. Robinson, 718 N.W.2d 400, 410 (Minn. 2006).

            Guarantees of trustworthiness in this case include the following:  C.W. and A.W. testified at trial.  A.W. admitted making the statement to Claymon and verified at trial that it was true.  C.W. admitted making a statement to her teacher.  Although she did not recall making the statements to the social worker and Claymon, C.W. consistently described how the injury to her face occurred.  C.W. had no motive for falsely accusing appellant.  J.W. contacted the teacher and social worker because she was upset about the accusation against appellant, indicating that A.W. and C.W. had a motive for falsely recanting their statements.  Without prompting by Claymon, A.W. brought up on her own the incident when appellant hit C.W.  When questioning C.W., the interviewers did refer to C.W. being hit, but C.W. described on her own how and why it happened.  Compare State v. Keeton, 589 N.W.2d 85, 90 (Minn. 1998) (statement untrustworthy when declarant merely answered "yes" to a series of leading questions, even when a response contradicted a previous response)).  C.W.'s description of how the injury occurred was consistent with A.W.'s description.

            Citing State v. Smith, 563 N.W.2d 771, 775 (Minn. App. 1997), appellant argues that the out-of-court statements were not more probative than other evidence because the complainant and an eyewitness, A.W., testified, and the state could have called another eyewitness, J.W.   But in Smith, there were 20 to 30 neutral witnesses present during the assault whom the state could have called to testify.  Id.  Here, in contrast to Smith, none of the eyewitnesses was a neutral witness.  Appellant has not satisfied his burden of showing that the district court abused its discretion by admitting into evidence C.W.'s and A.W.'s out-of-court statements.

II.

            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 . . . (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) (citation omitted).

            Laundry-folding incident

            Appellant argues that there was not clear-and-convincing evidence that he hit C.W. during the laundry-folding incident.  "[C]lear and convincing evidence is more than a preponderance of the evidence but less than proof beyond a reasonable doubt [and] [i]t is met when the truth of the facts sought to be admitted is highly probable."  State v. Shannon, 583 N.W.2d 579, 584 (Minn. 1998) (quotation omitted).  It is the district court's role "to weigh the credibility of a witness when determining at the Spreigl hearing whether allegations of misconduct are supported by clear and convincing evidence."  State v. Heath, 685 N.W.2d 48, 59 (Minn. App. 2004) (quoting State v. Doughman, 384 N.W.2d 450, 455 (Minn. 1986)), review denied (Minn. Nov. 16, 2004).  "A finding of clear and convincing evidence can be based on the uncorroborated testimony of a single witness."  Id. (citing Kennedy, 585 N.W.2d at 389-90).

            A.W. testified in camera, "One night when we had our laundry out and mom said fold them, but [C.W.] wanted to play so she was playing, and then [appellant] slapped her and then she went up to her room and was crying and then she went back down and folded them."  Although J.W. denied that appellant hit C.W. during the laundry-folding incident, she partially corroborated A.W.'s testimony by confirming that appellant became angry with C.W. when she refused to fold laundry.  We defer to the district court's assessment of the credibility of A.W.'s testimony.  See Heath, 685 N.W.2d at 59.  The district court did not abuse its discretion in finding that A.W.'s testimony provided clear-and-convincing evidence that appellant hit C.W. on that occasion.

            Prior assault conviction

            1.         Relevance and materiality

            When determining the relevancy and materiality of Spreigl evidence, the district court "should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi."  State v. Courtney, 696 N.W.2d 73, 83 (Minn. 2005).  The Spreigl incident need not be identical with the charged offense if other factors indicate clear relevancy.  State v. Washington, 693 N.W.2d 195, 203 (Minn. 2005).

[T]he district court must identify the precise disputed fact to which the Spreigl evidence would be relevant.  This entails isolating the consequential fact for which the evidence is offered, and then determining the relationship of the offered evidence to that fact and the relationship of the consequential fact to the disputed issues in the case.

 

State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006) (quotation and citation omitted).

            The assault against J.W. occurred during an argument between appellant and J.W.  J.W. felt threatened when appellant "got in [her] face" and swore at her, so she pushed him away.  Appellant came after J.W. again, and she slapped him with an open hand.  Appellant then slapped J.W. back and began hitting her.  Appellant slapped J.W.'s face so hard that it caused a bruise and her nose to bleed.

            Appellant does not deny that he caused C.W.'s nose to bleed but rather claims that what happened was an accident.  Appellant, thus, has made the accident issue a central issue in this case, and the evidence of the assault against J.W. is relevant to appellant's accident claim.  The district court did not abuse its discretion in finding sufficient similarity in the assaults against J.W. and C.W. in that both were committed against household members and both involved a similar kind of impact to the head or in finding that the Spreigl evidence was relevant to whether the injury to C.W. occurred by accident.  See State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (stating that evidence of ongoing opportunistic fondling by defendant was "highly relevant" and "tended to disprove the defense that [victim] was fabricating or imagining" the crime); State v. Shuffler, 254 N.W.2d 75, 76 (Minn. 1977) (stating that Spreigl evidence of similar act committed one month earlier "was directly relevant to the jury's resolution of the key factual issue, which was whether defendant had taken indecent liberties with the victim, as she testified, or whether he had merely tapped her on the shoulder and said hello, as defendant testified").

            2.         Probative value versus danger of unfair prejudice

            When balancing the probative value against the prejudicial effect of Spreigl testimony, the district court "must consider how necessary the Spreigl evidence is to the state's case.  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 [district] court admit the Spreigl evidence."  State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992) (citations omitted).

"Need" for other-crime evidence is not necessarily the absence of sufficient other evidence to convict, nor does exclusion necessarily follow from the conclusion that the case is sufficient to go to the jury.  A case may be sufficient to go to the jury and yet the 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 v. State, 695 N.W.2d 109, 120 (Minn. 2005) (quotation omitted).

            The state's case was weak, with the strongest evidence being the out-of-court statements of C.W. and A.W., which were contrary to their trial testimony.  And appellant's claim of accident increased the probative value of the prior conviction.  Also, the differences between the current offense and the prior conviction, the prior conviction resulting from an incident in which two adults were arguing and the victim slapped appellant first, reduced the danger of unfair prejudice.  Finally, the district court gave a limiting instruction to the jury, further reducing the danger of unfair prejudice.  See Kennedy, 585 N.W.2d at 392 (stating that cautionary instructions read to the jury lessen the probability that the jury will give undue weight to the evidence).

            Appellant's argument that the only way the evidence could be used by the jury "was for them to find that [he] was the kind of man who assaulted women" is not persuasive.  See State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985) (rejecting argument that because admitting evidence of past domestic abuse and forced sexual intercourse with wife might portray husband as having an "assaultive propensity," husband was unfairly prejudiced by Spreigl evidence), review denied (Minn. Nov. 1., 1985).  Appellant has not satisfied his burden of showing that the district court abused its discretion by admitting the Spreigl evidence.

            3.         Prejudicial material left in complaint

            Over appellant's objection, the district court left in the complaint the statement that "TBW[1] was scared and backed down the hallway" upon hearing yelling and then thumping noises coming from his mother's bedroom.  The district court accepted the state's argument that the statement was relevant to showing that appellant assaulted J.W.  The supreme court has allowed proof of a prior conviction by admission of the complaint.  State v. Crocker, 409 N.W.2d 840, 843-44 (Minn. 1987).  But even if the district court erred in declining to redact the statement, T.B.W.'s fear was not relevant to the main issue in the case, whether appellant deliberately or accidentally slapped C.W. in the face.  Thus, no reasonable possibility exists that the statement in the complaint significantly affected the verdict.  See State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994) (stating that an error in admitting evidence is not prejudicial when no reasonable possibility exists that the wrongfully admitted evidence significantly affected the verdict).

III.

            "District courts are allowed considerable discretion in the selection of language for the jury instructions and a conviction will not be reversed absent an abuse of discretion.  An error in the application of law, however, is an abuse of discretion."  State v. Babcock, 685 N.W.2d 36, 41 (Minn. App. 2004) (citations omitted), review denied (Minn. Oct. 20, 2004).

            Appellant argues that the district court abused its discretion by declining to give the instruction he requested on the purpose for which the Spreigl evidence could be used.  The state argues that appellant's request for such an instruction was insufficient.  Appellant requested that the district court use the recommended federal instruction.  Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, 2.08.  That instruction includes the statement, "The defendant is on trial only for the crime[s] charged and you may consider the evidence of prior acts only on the issue of (state proper purpose under 404(b), e.g., intent, knowledge, motive)."

            "[F]ailure to give an instruction on the specific purpose for which [other crimes] evidence may be considered is not error when no request to so instruct is made."  State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).  In Broulik, when "the requested instruction was directed only at the purpose for which the jury could not use the evidence," the supreme court concluded that it was not a request for an instruction that the Spreigl evidence could be used only to prove identity.  606 N.W.2d at 69.  Here, in contrast to Broulik, the requested instruction included a statement on the purpose for which the Spreigl evidence could be used, and in considering appellant's request, the district court specifically acknowledged that the requested instruction included such a statement.  Under Broulik, appellant's request was sufficient.

            When requested by a defendant, failure to modify CRIMJIG 2.01 and 3.16 to explain the limited purpose for which Spreigl evidence was admitted is an abuse of discretion.  State v. Babcock, 685 N.W.2d 36, 41 (Minn. App. 2004), review denied (Minn. Oct. 20, 2004).  Because the district court erred in declining to instruct the jury on the purpose for which the Spreigl evidence could be used, we must determine whether the error was prejudicial.

In addressing whether the error was harmless[,] a reviewing court must examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict. . . . If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial.

 

Id. at 43 (quotation omitted).

            We conclude that the error did not have a significant impact on the verdict.  The issue for the jury to determine was not whether appellant hit C.W., but whether he did so accidentally.  The prosecutor argued that what happened was not an accident and made no attempt to show that appellant must have hit C.W. because that was his character.

IV.

            In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  This standard applies even when a victim recants.  State v. Foreman, 680 N.W.2d 536, 538-39 (Minn. 2004).

            There were inconsistencies in A.W.'s and C.W.'s out-of-court statements regarding the time of day when the assault occurred and whether appellant and J.W. had been arguing or whether C.W. had been misbehaving.  But the out-of-court statements were consistent in describing how the injury to C.W.'s face occurred.  The evidence was sufficient to support appellant's conviction.  See State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (when victim's accounts of sexual abuse changed over time, credibility was for the jury to resolve), review denied (Minn. May 23, 1990); State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (when child victim told officer that she had been sexually abused by defendant on five or more occasions but at trial testified to only three incidents, inconsistency between testimony and the prior statement was for jury to consider in weighing victim's credibility).

            Affirmed.

[1] T.B.W. is J.W.'s son.