State of Minnesota, Respondent, vs. Dean Allen Thordor, Appellant.

This opinion will be unpublished and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

C3-03-111

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dean Allen Thordor,

Appellant.

 

 

Filed November 4, 2003

Affirmed as modified
Klaphake, Judge

 

Mower County District Court

File No. K6-11212

 

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Pat Flanagan, Mower County Attorney, Courthouse, 201 First Street NE, Austin, MN 55912 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Dean Allen Thordor appeals from his conviction and sentence for second- and third-degree controlled substance crime, arguing that the police officer who stopped the car in which he was a passenger unreasonably extended the stop without an articulable suspicion of other criminal activity.  Appellant also argues that the district court abused its discretion by admitting Spreigl evidence and erred by imposing a sentence for two convictions that were part of the same behavioral incident.

            Because the police officer had a reasonable, articulable suspicion of criminal activity based on the purpose of the stop and because the district court did not abuse its discretion in admitting relevant and material evidence of other crimes, despite deficiencies in the notice, we affirm appellant's conviction.  Because the district court erred by sentencing appellant for two convictions arising out of the same behavioral incident, we modify appellant's sentence by vacating his sentence for third-degree controlled substance crime.

D E C I S I O N I.  Suppression Order

            This court reviews suppression orders de novo, but will not reverse the district court's factual findings unless they are clearly erroneous or contrary to law.  State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002). 

            A police officer may make a warrantless limited investigatory stop based on a reasonable and articulable suspicion that the person stopped is engaging in criminal activity.  State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003).  An investigatory stop is limited in scope and duration "to the justification for the stop."  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003).  Thus, even where the stop is initially justified, the stop may not continue unless the officer has a reasonable and articulable suspicion of further criminal activity.  Id. at 418-19.     

            A reasonable relationship must be shown between the purpose for the stop and the scope of the officer's investigation during the stop.  Syhavong, 661 N.W.2d at 281.  In both Fort and Syhavong, the initial stop was made because of equipment violations, but the officers expanded the scope of the stop to an impermissible degree based on less than an articulable suspicion of other criminal activity.  Fort, 660 N.W.2d at 419 (holding search unreasonable when based merely on officer's description of scene as high-crime area); Syhavong, 661 N.W.2d at 282 (stating "[n]ervousness alone is not an objective fact, but a subjective assessment derived from the officer's perceptions").

            Here, the purpose for the stop and the scope of the officer's investigation differs from those in Fort and Syhavong.  The officer here saw an occupied car illegally parked after hours in a park that had been the scene of after-hours sex and drug activity.  Thus, the initial stop was based not solely on an equipment violation, but on a suspicion of criminal activity.  In addition, (1) the officer observed a motorcycle quickly pull away from the scene, as though to avoid contact with the officer; (2) he saw the two occupants of the car "[go] fast to conceal their hands, putting them around the seat and that of the vehicle, making movement;" (3) the driver and appellant refused to make eye contact with the officer; (4) both driver and appellant appeared nervous; (5) the driver consented to a search of the car and appellant does not contest the voluntariness of the consent; (6) appellant refused to obey the officer's order to remain in the car; (7) appellant stood with his back to the officer, making furtive gestures; (8) when appellant was pat searched for weapons after refusing to cooperate, police discovered more than $5,000 in cash; and (9) officers discovered two plastic bags under the car in the spot where appellant had stood making furtive gestures.  Taken together, these facts justify the continuing expansion of the stop by providing a reasonable and articulable basis for suspicion of other criminal activity. 

            The district court did not err by refusing to suppress the drug evidence.

II.  Spreigl Evidence

            Evidentiary rulings will not be reversed absent an abuse of discretion.  State v. Greenleaf, 591 N.W.2d 488, 504 (Minn. 1999).  A defendant has the burden of showing that the district court erred and that the error resulted in prejudice.  Id. 

            Spreigl evidence is admissible if (1) the state gives notice that it intends to use such evidence; (2) the state indicates the purpose for offering the evidence; (3) the evidence is clear and convincing; (4) the evidence is relevant and material; and (5) the probative value of the evidence outweighs its prejudicial effect.  State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002).  Appellant argues that the Spreigl evidence offered here is inadmissible because the state failed to give timely notice, the evidence is not relevant and material to the state's case, and the prejudicial effect of the evidence outweighs its probative value.

            A.         Notice

            The purpose of the Spreigl notice is to "guard[ ] against the injustice of using evidence against an accused who is unprepared to demonstrate that such evidence is unsubstantiated."  Wanglie v. State, 398 N.W.2d 54, 57 (Minn. App. 1986).  Here, appellant's trial attorney was also representing him on the Spreigl charges, which were pending and presumably well known to both appellant and his attorney.  Although the state failed to provide appellant with a formal notice under Minn. R. Crim. P. 7.02, it declared at pretrial on August 9, 2002, its intent to call the arresting officer from the Spreigl offense to testify as to the circumstances of that arrest.  Formal notice was given by letter on August 20, 2002.  Although appellant argues that he was prejudiced because he was unable to subpoena the BCA laboratory analyst, he did not ask for a continuance.

            Under these circumstances, we conclude that the district court did not abuse its discretion by finding the notice adequate.  See State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995) (affirming use of Spreigl evidence despite deficiencies in notice, where there was substantial compliance with notice requirements and lack of prejudice to defendant).

            B.         Relevance and Materiality

            Spreigl evidence is relevant and material when the other crime is sufficiently similar to the charged crime in terms of time, place, or modus operandi.  Greenleaf, 591 N.W.2d at 505.  Absolute similarity is not required, but the greater the similarity, the more likely that the Spreigl evidence is relevant.  Id.  The district court must also consider the issues in the case and the reasons and need for the evidence.  State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998).  Appellant argues that the charged crime and prior offense are not similar in place or modus operandi.

            Appellant denied that the recovered drugs were his and opined that either the driver of the car or someone else had abandoned them on that spot.  Intent to possess the drugs was therefore an issue.  The Spreigl incident occurred just two months before and two miles away from the charged offense.  In both cases, the amount of drugs recovered was greater than that usually associated with personal use, appellant abandoned the drugs as he left a vehicle, and appellant was arrested while carrying a large amount of money.  The Spreigl evidence is thus relevant insofar as it shows appellant in possession of a large quantity of a controlled substance and a willingness to abandon it to avoid arrest, a situation similar to the charged offenses.

            C.        Probative Value and Prejudicial Effect

            The district court must balance the probative value and prejudicial effect when admitting Spreigl evidence, which involves determining how necessary the evidence is to the state's case.  Kennedy, 585 N.W. 2dat 391-92.  Because the element of possession in the state's case was based largely on circumstantial evidence, the probative value of the Spreigl evidence was enhanced.  The district court here carefully and properly waited until the end of the state's case and took testimony outside the jury's hearing from the Spreigl witnesses before making its decision.  Recognizing the potential for prejudice, the district court gave a limiting instruction before presentation of the testimony. 

            On this record, the court did not abuse its discretion by admitting Spreigl evidence.

III.  Pro Se Brief

            Appellant has submitted a pro se brief in which he raises several arguments, without citing any legal authority.  See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding where pro se brief contains no legal arguments or citations to legal authority in support of its allegations, arguments are deemed waived).  Although appellant asserts that he was denied his right to a 12-person jury, he waived this right on the record.  Appellant's pro se arguments are without merit.

IV.  Sentencing

            Appellant argues, and the state concedes, that the district court erred by sentencing him to concurrent sentences on two counts, because the charges were part of a single behavioral incident.  Minn. Stat. § 609.035, subd. 1 (2002).  We therefore modify appellant's sentence by vacating the sentence on the third-degree controlled substance crime.

            Affirmed as modified.