In the Welfare of: A.J.B., Date of birth: November 29, 1989.

This opinion will be unpublished and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

C1-02-2171

 

 

In the Welfare of: A.J.B., Date of birth: November 29, 1989.

 

 

Filed September 16, 2003

Reversed and remanded

Anderson, Judge

 

Ramsey County District Court

File No. J100550601

 

John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

Appellant challenges his adjudication as delinquent on one count of gross misdemeanor indecent conduct.  Because we conclude that the district court erred by permitting the victim to testify regarding prior incidents of indecent exposure by appellant without requiring the state to give notice of the testimony or to prove the prior bad acts by clear and convincing evidence, we reverse and remand.

FACTS

 

            Appellant A.J.B. (then twelve years old) and the complainant in this matter, J.L. (then fourteen years old), lived in the same apartment building in St. Paul.  J.L. and appellant knew each other only as acquaintances.

            At appellant's trial, there were significant differences in the testimony of the witnesses as to what occurred on the afternoon of March 16, 2002.  J.L. testified that at about 1:00 p.m., she was standing inside the building by the back door when appellant came up to her, pulled his pants down, and made a lewd remark. 

            That afternoon, a snowball broke J.L.'s apartment window and she testified that appellant was responsible.  When J.L.'s mother returned at about 3:30 or 4:00 p.m., she called the police and only at that time did J.L. tell either the police or her mother about appellant exposing himself.

            On re-direct examination by the state, J.L. testified that she had not told her mother about the incident earlier because her mother "didn't really hear" her when J.L. had told her about previous incidents in which appellant exposed himself.  When pressed about this past behavior, J.L. testified, over defense counsel's relevancy objection, that appellant had exposed himself to her on two previous occasions.  J.L. testified that the first time, about a year prior to this incident, appellant pulled his pants down and made the same lewd remark.  The second time, approximately three weeks prior to the charged incident, appellant did the same thing in front of their apartment building complex.

            Sergeant Paul Iovino interviewed appellant approximately a month and a half after the incident.  Iovino testified at trial that appellant told him that he has never exposed himself to J.L. and that "he hadn't done that for some time."  While appellant acknowledged that he had been in trouble for exposing himself in the past, he told Iovino that he had not exposed himself on this date and that J.L. might be making up the story because she did not like him. 

            The state called J.L.'s mother as a rebuttal witness.  She testified that when she returned home from work on March 16 at around 2:45 or 2:50 p.m., J.L. told her that appellant "had pulled down his pants and said something rude" and that the window had been broken. 

            During final arguments, the state's counsel argued that appellant's prior conduct made it a "strong likelihood" that he exposed himself to J.L. as alleged.  Further, the state contended that because appellant had done this before, it is likely that "this is not something new to him."  Defense counsel's final argument asked the district court to disregard any prior bad acts that had been alleged because they "have not been supported by clear and convincing evidence." 

            The district court found that the state proved the offense beyond a reasonable doubt.  On November 6, 2002, the court, without making any written findings of fact, adjudicated appellant delinquent for indecent conduct in violation of Minn. Stat. § 617.23, subd. 2(1) (2000).  This appeal followed.

 

D E C I S I O N

 

In a juvenile delinquency case, the district court's evidentiary decisions are reviewed with deference to the district court's discretion.  In the Matter of the Welfare of T.J.M., 413 N.W.2d 221, 227 (Minn. App. 1987).  The district court, as the trier of fact, is entitled to determine the credibility of witnesses and the weight given to evidence.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (holding that the jury determines the credibility of, and weight given, to testimony).  On appeal from an adjudication of delinquency, this court's role is "limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make [the] determination" that each of the elements of the delinquency petition has been proved beyond a reasonable doubt.  In the Matter of the Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citation omitted).  We "must assume that the fact-finder believed the state's witnesses and disbelieved any contrary evidence."  In re Welfare of T.N.Y., 632 N.W.2d 765, 768 (Minn. App. 2001) (citation omitted). 

I

            Evidence of another crime, wrong, or act is not admissible at trial to prove the character of a person in order to show that he acted in conformity therewith.  Minn. R. Evid. 404(b).  Evidence of other crimes (often referred to in Minnesota as Spreigl evidence, as recognized by State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)) may be admissible for other purposes, however, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."  Minn. R. Evid. 404(b).  This evidence should not be admitted "unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence."  Id.  Finally, all issues of admissibility are subject to the provisions of Minn. R. Evid. 401 (relevancy) and 403 (exclusion of relevant evidence on the grounds of prejudice, confusion, or waste of time).  Minn. R. Evid. 404 comm. cmt. (1989). 

            Appellant alleges that the juvenile court erred by allowing testimony about the two previous times appellant allegedly exposed himself because the court did not comply with the procedural prerequisites for the admission of Spreigl evidence.  The evidence of past actions to prove appellant committed this particular crime was, appellant claims, prejudicial to his case because he introduced an alibi for his actions on March 16.  Finally, appellant's conviction must be reversed, he argues, because the court did not make any findings of fact and therefore it is impossible to determine if the Spreigl evidence influenced the court's decision to adjudicated appellant delinquent.

            Generally, evidentiary rulings rest with the discretion of the district court and will not be reversed absent abuse of discretion.  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).  Defendants claiming that the district court erred by admitting certain evidence bear "the burden of showing both the error and the resulting prejudice."  Id.  But this court should reverse based on evidentiary errors "if there is any reasonable doubt the result would have been different had the evidence not been admitted."  Id. (quoting State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996)). 

            Determining whether the district court erred in admitting the Spreigl evidence at issue here requires a consideration of whether the evidence was relevant, whether it was clear and convincing, and whether the potential of the evidence for unfair prejudice outweighed its relevance.  But before reaching these three issues, we must first examine whether the state complied with the procedural notice requirements for the use of Spreigl evidence. 

(a)   Notice

            Appellant first argues that the admission of the Spreigl evidence was erroneous because the state did not comply with the mandatory notice provisions found in State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967).  These procedural requirements, inter alia, include:

            Evidence of other crimes may not be received unless there has been notice as required by State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 173 . . .;[1]

 

            At the time the evidence is offered, the prosecutor shall specify the exception to the general exclusionary rule under which it is admissible.

 

Billstrom, 276 Minn. at 178, 149 N.W.2d at 284 (citation omitted).  

            The state claims the Billstrom standardwas met because appellant had actual notice of the prior incidents because they were described both in the police reports and J.L.'s supplemental interview with police.

            But actual knowledge by appellant of these lewd incidents is not the same as notice that Spreigl evidence will be used.  The supreme court recently reiterated that "Spreigl evidence should not be admitted in a criminal prosecution unless [] the state gives notice that it intends to use the evidence."  State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002); see also State v. Nelson, 632 N.W.2d 193, 204 n.7 (Minn. 2001) (holding that the state gave ample notice of its intention to offer Spreigl evidence when it brought its motion in limine prior to jury selection).[2]  It is undisputed here that no notice of intention to use Spreigl evidence was given. 

            Finally, the state argues even if the disputed testimony was Spreigl evidence and notice was deficient, appellant waived the error by failing to object at trial.

            It is true that appellant's counsel objected to the evidence of prior bad acts only on relevancy grounds.  "Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis."  Vick, 632 N.W.2d at 684.  But we may consider a waived issue if there is (1) error, (2) that is plain, and (3) the error affects the defendant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  It is obvious that the state's failure to give the required Spreigl notice constitutes plain error.   But to satisfy the third prong, a defendant bears a "heavy burden" of persuasion to show that "the error was prejudicial and affected the outcome of the case."  Id. at 741.  If these three prongs are met, the court must then decide whether it should address the issue in order to "ensure fairness and the integrity of the judicial proceedings."  Id. at 740.  

            It is impossible to determine with any certainty if the error here "affected the outcome of the case" because the district court did not make written findings.  But it appears that if notice had been given, appellant could have either made a more detailed objection to the Spreigl testimonye.g. that the reported events had not been proven by clear and convincing evidenceor sought to have the district court specify why it overruled appellant's relevancy objection.  Because the purpose of the Spreigl notice is to prevent a defendant from being taken by surprise and forcing the defendant to defend
against uncharged criminal acts, State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969), we conclude that the state's failure to give notice to appellant of the intention to use Spreigl evidence prejudiced appellant and substantially affected appellant's rights. 

            (b) Relevant Evidence

            Relevant evidenceevidence that tends to make the existence of any consequential fact more or less probableis admissible.  Minn. R. Evid. 401, 402.  When dealing with Spreigl evidence, the more similar the prior crime is to "the crime charged in time, place, or modus operandi, the greater the chance that the other crime is relevant."  State v. Matteson, 287 N.W.2d 408, 411 (Minn. 1979). 

            Appellant is correct that the court did not require the state to make any showing of relevance before admitting this evidence.  But it is clear that the evidence here is relevant.  The charged conduct and the prior conduct are fairly closely related as to time, place, and type of conduct, and thus the prior bad acts were not excludable on relevancy grounds.

            (c) Clear and Convincing Evidence

            Appellant next argues that the court admitted the testimony about appellant's alleged prior conduct without making the state prove the incidents by clear and convincing evidence. 

            The evidence tending to show that appellant committed the prior bad acts consists mainly of the testimony of J.L.  While J.L. claimed to have previously notified her mother, her mother could not confirm this and admitted that she was unaware of the previous incidents.  The state also relies on appellant's quasi-admission that "he hadn't done that for some time" when asked whether he exposed himself to J.L. 

            Clear and convincing evidence is "more than a preponderance of the evidence but less than proof beyond a reasonable doubt."  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  This test is met when the truth of the facts sought to be admitted is "highly probable."  Id.  Certainly, uncorroborated testimony by 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).  But here, not only was the testimony by the complainant uncorroborated, it was directly undercut and contradicted by the mother's testimony that she did not recall any prior reports by complainant of bad acts by appellant. 

            These difficulties are further compounded because of the lack of findings from the district court detailing why the district court found the testimony clear and convincing.  We cannot say, on the record before us, that it is "highly probable" that the prior bad acts occurred and "[w]hen it is unclear whether Spreigl evidence is admissible, the defendant should be given the benefit of the doubt and the evidence should be excluded." State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997) (citation omitted).  Because the prior bad acts have not been established by clear and convincing evidence, the district court erred in admitting the evidence.

            (d) Harmless-Error Analysis

            Under the harmless-error analysis, the district court's admission of evidence, even if erroneous, does not warrant a reversal of a conviction unless the evidentiary error was prejudicial.  Shannon, 583 N.W.2d at 585.  "A conviction will not be reversed so long as the error was harmless beyond a reasonable doubt."  Id.  "If the verdict  rendered is "surely unattributable" to the error, then the error is harmless beyond a reasonable doubt."  State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997). 

            The state argues that because this was a bench trial, there is less worry that other-acts evidence would unfairly prejudice the decision maker.  But it is clear that the state used its final argument to attempt to persuade the court to adjudicate appellant delinquent on the basis that he had previously been accused of similar conduct on two prior occasions.  Such an argument is clearly contrary to Minn. R. Evid. 404(b), because it presupposes that appellant's past conduct makes him more likely to have committed the charged crime.  Because the court did not make findings regarding its decision that the state had proved all the elements of indecent conduct beyond a reasonable doubt, it is impossible to say that the verdict was "surely unattributable to the error," i.e., that the error was harmless. 

            The state argues that the entire Spreigl analysis is irrelevant because the disputed evidence was admitted to establish the history of the relationship of the parties, and not as Spreigl evidence.  Spreigl notice is not required for "relationship" evidence.  Oates, 611 N.W.2d at 585.  Relationship evidence is introduced to illuminate the connection between the defendant and the complainant and to place the incident with which the defendant is charged in context.  State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999).  But the supreme court has required the district court to first find the relationship evidence to be shown by a clear-and-convincing standard and the relationship evidence's probative value must outweigh the potential for unfair prejudice.  Id. 

            The state's position has considerable merit.  But we need not address whether this evidence is actually Spreigl evidence or evidence illuminating the parties' relationship.  Our analysis of whether the Spreigl evidence had been proven by clear and convincing evidence is equally applicable here.  Even if the alleged prior bad acts constituted relationship evidence, there is nothing in the record that indicates the district court either required the state to meet the clear-and-convincing standard to establish that the prior bad acts did occur, or that the district court concluded the required standard had been met. 

            Because the evidence sought to be introduced tends to show that appellant is guilty of a crime other than the crime charged, there is also a substantial chance that it will create unfair prejudice.  See State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999) (holding that where evidence sought to be introduced under Spreigl does not tend to show the defendant's guilt of another crime, "the chance of it creating unfair prejudice [is] less than is ordinarily the case . . .." (quotation omitted)). 

Because we conclude that it was error to admit the evidence of alleged prior bad acts without proof of those acts by clear and convincing evidence and because this error was prejudicial to appellant, we reverse and remand for a new trial. 

II

            Appellant also argues that the statutory enhancement of his crime to a gross misdemeanor was inappropriate because, although J.L. was fourteen at the time of the incident, appellant was only twelve.  Appellant claims that applying the statute to him would produce an "absurd and unreasonable result."

            Appellant was adjudicated delinquent for committing "willful and lewd" behavior.  Minn. Stat. § 617.23, subd. 2(1) (2000) enhances the charge to a gross misdemeanor if it was committed "in the presence of a minor under the age of 16."  Id.  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  Our duty in interpreting statutes is to ascertain and effectuate the intention of the legislature.  Minn. Stat. § 645.16 (2000).  If the statute is free from ambiguity, we look only at its plain language.  Id.

Minn. Stat. § 617.23, subd. 2, does not contain any provision that would exempt perpetrators based on age and it does not exclude a perpetrator younger than the victim.  The statute unambiguously identifies as a gross misdemeanant any person who "violates subdivision 1 in the presence of a minor under the age of 16."  Minn. Stat. § 617.23, subd. 2(1).

But if a statute's literal interpretation would produce an absurd result, we are allowed to look beyond the statutory language to examine other indicia of legislative intent.   Wegener v. Comm'r of Revenue, 505 N.W.2d 612, 617 (Minn. 1993); Kay v. Fairview Riverside Hosp., 531 N.W.2d 517, 521 (Minn. App. 1995), review denied (Minn. July 20, 1995).  If, by contrast, the statute's unambiguous language merely produces a troubling result, we must apply it without reference to its drafting history.  See R.B. Thompson, Jr. Lumber Co. v. Windsor Dev. Corp., 383 N.W.2d 362, 366-67 (Minn. App. 1986) (deciding the court must follow a statute's unambiguous language despite its propensity to create troubling results), review denied (Minn. May 21, 1995).

Appellant maintains that an absurd result exists here because appellant is within the age class that the statute was intended to protect.  But appellant cites no case law indicating that minors who violate Minn. Stat. § 617.23, subd. 2(1) should be treated any differently from adults who do so.  Notably, the statute's purpose is to protect a class of victimsthose under sixteenand not to draw distinctions among the members of the class of perpetrators.  Because the statute is unambiguous, we must give meaning to its language and uphold the statute's application to appellant's alleged conduct.

            Reversed and remanded.

 

[1]           Spreigl, 272 Minn. at 496-97, 139 N.W.2d at 173 (1965) holds:

 

[W]here the state seeks to prove that an accused has been guilty of additional crimes and misconduct on other occasions, although such evidence is otherwise admissible under some exception to the general exclusionary rule, it shall not hereafter be received unless within a reasonable time before trial the state furnishes defendant in writing a statement of the offenses it intends to show he has committed, described with the particularity required of an indictment or information, subject, however, to the following exceptions: (a) Offenses which are part of the immediate episode for which defendant is being tried; (b) offenses for which defendant has previously been prosecuted; and (c) offenses which are introduced to rebut defendant's evidence of good character.

[2]  See also State v. Vick, 632 N.W.2d 676, 682 n.4 (Minn. 2001), where a Spreigl notice provided:

 

PLEASE TAKE NOTICE that the [state] * * * will introduce evidence of other offenses within the meaning of Rule 7.02 of the Rules of Criminal Procedure at the Trial of this matter.  That the other offenses occurred in Lake County at the Defendant's work shop in or near Two Harbors, MN and that such other offense constitutes evidence of prior conduct within the meaning of M.S. § 634.20.  It is the position of the prosecution that this evidence of prior conduct is not within the meaning of the Spreigl Rule referred to as Rule 7.02 * * * however this Notice is given in order to obviate any potential argument that it is within said Rule.  That evidence is set forth in detail in the statements and reports provided to the Defendant and is referred to in the Complaint as "touching over her clothes" that occurred in Lake County.