State of Minnesota, Respondent, vs. Eric John Perko, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-2590

State of Minnesota,

Respondent,

vs.

Eric John Perko,

Appellant.

Filed October 7, 1997

Affirmed

Parker, Judge

St. Louis County District Court

File No. K495300816

Hubert H. Humphrey III, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Eric John Perko was convicted of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i). He was sentenced to 81 months in prison. Perko appeals, arguing (1) the trial court abused discretion by allowing Spreigl evidence to be presented to the jury; (2) the evidence is insufficient to sustain his conviction; and (3) the trial court abused discretion by refusing to depart downward dispositionally in sentencing. We affirm.

D E C I S I O N

The decision to admit Spreigl evidence lies within the discretion of the trial court and will be allowed to stand absent an abuse of discretion. The accused has the burden of showing that the trial court erred in admitting the evidence.

State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993) (citations omitted).

We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Furthermore, the decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

1. Spreigl Evidence

Perko argues that the trial court abused discretion by admitting evidence of other "bad acts." He contends that had the Spreigl evidence not been admitted, there was a reasonable possibility that the jury would have concluded the incident with J.R. was entirely consensual. Thus, he claims that the probative value of the testimony was substantially outweighed by the prejudicial effect on the jury. Perko also contends that admission of the evidence constituted an abuse of discretion because the incident was never reported to the authorities and never resulted in any charges. Therefore, he argues, admission of the Spreigl evidence did not constitute harmless error and his conviction should be reversed.

Evidence of other crimes may be admitted "to establish motive, intent, absence of mistake or accident, identity or common scheme or plan." State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990) (citing State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965)). When the admissibility of Spreigl evidence is unclear, the accused must be given the benefit of the doubt and the evidence rejected. State v. Titworth, 255 N.W.2d 241, 246 (Minn. 1977) (citing State v. Saucedo, 294 Minn. 289, 293, 200 N.W.2d 37, 40 (1972). When determining the admissibility of Spreigl evidence, the trial court must find that (1) the evidence is clear and convincing that the defendant participated in the Spreigl offense; (2) the Spreigl evidence is relevant and material to the state's case, and (3) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice. State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981)).

Noting the factors that must be considered to admit Spreigl evidence, the trial court stated:

I have reviewed these statements a number of times now, * * * I do think that there has been sufficient discovery provided so that I have a clear understanding of what the expectations of the testimony would be. And under those circumstances I do believe that there is clear and convincing evidence about the matter.

The trial court then noted that the Olivanti incident was close in time to the matter now before the court. The trial court then took judicial notice of the fact that sexual assaults are underreported in comparison to other crimes. In terms of relevance, the trial court indicated that he considered the evidence to be a "modus operandi type of Spreigl." The trial court then found that both incidents: occurred at a party where there was alcohol consumption, involved allegations of moving the victim away from the party area with the enticement of a beer, involved requests for and attempts to force fellatio, involved ignored requests by the victim to stop, and both incidents were interrupted only by a third party. The trial court then determined there were significant similarities "which the court views as appropriate under the modus operandi exception under the Spreigl cases." The trial court then concluded the testimony was relevant and that the relevance outweighed the prejudicial impact in the case.

We observe that the prior "bad acts" evidence assisted the state in showing that Perko had acted in a similar manner on another occasion. Because the prosecution's case was not strong, the Spreigl evidence was necessary to support the state's burden of proof, and it is relevant and material. See Slowinski, 450 N.W.2d at 114 (Spreigl evidence may be admitted where it is "necessary to support the state's burden of proof"). Furthermore, the Spreigl evidence had probative value by establishing common plan or scheme. The trial court gave the jury appropriate instructions limiting the use of this evidence, and we must assume that, absent evidence to the contrary, the cautionary instruction lessened the likelihood that the jury would give undue weight to the evidence. See id at 114-15. On this record, therefore, we conclude that the trial court's ruling allowing admission of the Spreigl evidence was not an abuse of discretion.

2. Sufficiency of the Evidence

Perko argues the evidence was insufficient to support the conviction. He contends the state's case in chief was based on the testimony of J.R. and Alaspa. However, he claims their testimony was insufficient to establish guilt beyond a reasonable doubt because it is inconsistent with his own testimony and the results of the DNA testing.

In reviewing a claim of sufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. We cannot retry the facts, but must take the view of the evidence most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence.

State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (citations omitted). Based on the evidence presented, the jury found Perko guilty of the first-degree criminal sexual conduct charge.

Perko was represented by counsel. He presented several witnesses and expert testimony in support of his position in the case. Perko points out many portions of the conflicting testimony favorable to his position. Nonetheless, there is ample prosecution evidence in the record to support the conviction: (1) J.R. testified that Perko would not stop when she asked him to; (2) Olivanti testified that she had a similar experience with Perko; (3) Alaspa testified that Perko asked him to "help him out with the police"; (4) others testified that the music at the party was very loud and could have prevented anyone from hearing J.R.'s calls for help; and (5) Perko testified that he was "buzzed" from the alcohol. We conclude, therefore, that the jury must have believed the state's witnesses and discounted contrary evidence. See State v. Pierson, 530 N.W.2d 784, 789 (Minn. 1995). In viewing the evidence, as we must, in a light most favorable to the verdict, we hold there was ample evidence in the record for the jury to find Perko guilty of the charge for which he was convicted.

3. Sentencing Departure

Lastly, Perko argues that the trial court erred in refusing to make a downward departure in sentencing. He contends that because he (1) has no criminal history score, (2) has been polite and cooperative with police, (3) has expressed remorse for his crimes, and (4) has the support of the community, the trial court should have sentenced him to probation and sexual offender treatment only.

The Minnesota Sentencing Guidelines provide a nonexclusive list of factors to be used when determining whether a departure is warranted. Minn. Sent. Guidelines II.D.2; see State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). In deciding whether to depart, the sentencing court must decide whether the defendant's conduct is more or less serious than that typically involved in the commission of the crime in question. State v. Cox, 343 N.W.2d 641-43 (Minn. 1984).

A defendant's particular amenability to probation is a substantial and compelling circumstance justifying dispositional departure. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In determining a defendant's amenability to probation, the court may focus on the defendant as an individual to determine whether the presumptive sentence would be best for the defendant and society. See State v. Wright, 310 N.W.2d 461, 462-63 (Minn. 1981). "Absent compelling circumstances, an appellate court will not modify a presumptive sentence." State v. Elting, 480 N.W.2d 152, 154 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).

The trial court considered several factors in deciding not to depart from the sentencing guidelines: (1) Perko's age; (2) support of friends and family; (3) lack of a prior record; and (4) lack of remorse or a change of attitude toward the victim. The trial court noted that on review of caselaw wherein a downward departure was warranted, instances of remorse and change of attitude were shown by the defendants. However, based on Perko's overall conduct, the trial court found it significant that instances of remorse or a change of attitude were not present in Perko. The trial court made particular note of Perko's testimony at sentencing, wherein Perko implied that J.R. was lying, that she "wanted it," and that she was drunk. The trial court concluded that these statements did not indicate an "attitude of remorse that would be expected of a defendant in granting a stay" or probation.

We believe the sentencing order exhibited consideration of all relevant factors. Although the evidence establishes no exacerbating circumstances, we are not directed to any factors mitigating Perko's culpability that were overlooked by the trial court. Furthermore, the trial court observed that he may have been inclined to grant probation had proper remorse been shown. We agree that a notable lack of meaningful remorse appears to be inconsistent with a showing of a "particular amenability to probation." We conclude, therefore, that the trial court did not abuse discretion in refusing to depart dispositionally from the sentencing guidelines.

Affirmed.