Randy Scott Bendzula, petitioner, Appellant, vs. State of Minnesota, Respondent.

Randy Scott Bendzula, petitioner, Appellant, vs. State of Minnesota, Respondent. A05-137, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A05-137

 

Randy Scott Bendzula, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 13, 2005

Affirmed

Dietzen, Judge

 

Scott County District Court

File No. 2000-19597

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Following a jury trial, appellant was convicted of two counts of first-degree sale of a controlled substance.  The district court denied appellant's petition for postconviction relief, in which appellant argued that the admission at trial of Spreigl evidence of his arrest was error.  Because the district court did not abuse its discretion in admitting the Spreigl evidence, we affirm.

FACTS

 

            In 1999, one of appellant Randy Bendzula's friends was arrested for selling cocaine.  Appellant's friend was an immigrant, and police told him that he could avoid deportation by cooperating with them and implicating those who had supplied him with drugs, i.e., becoming a confidential informant (CI).  Appellant's friend agreed to become a CI.

Working as a CI, appellant's friend arranged to buy cocaine from appellant four times in 2000.  The first sale of cocaine from appellant to the CI occurred on April 27, 2000.  Before the meeting, the CI was searched to ensure that he was not carrying anything, and he was given cash for the purchase.  With police observing the scene, the CI entered appellant's car in the parking lot of an auto-sales business in Scott County, where appellant worked.  Appellant drove the CI to a gas station and then back to the lot.  After appellant left, the CI turned over to police 13.6 grams of cocaine that he had purchased from appellant.

On May 4, 2000, the CI set up another sale of cocaine with appellant under police surveillance.  The same procedures were followed; police searched the CI and gave him money to purchase the cocaine.  The CI met appellant this time in the office of the business where appellant worked.  After appellant drove away, the CI met with police and turned over cocaine that he had bought from appellant.

A third sale was arranged for May 18, 2000.  Officers again searched the CI before the sale, provided him with money to buy the drugs, and watched as the CI got into a car with appellant.  After appellant drove away, the CI told police that he had given appellant the money and planned to meet him later at a restaurant to receive the drugs.  That night, officers observed appellant and the CI go into the bathroom of a restaurant together.  When the CI returned, he had a packet of cocaine that he gave to police.

On June 22, 2000, the CI arranged a fourth sale with appellant.  They agreed to meet at a restaurant in Richfield.  When appellant arrived at the restaurant, police arrested him and found him in possession of 28 grams of cocaine.  Appellant was charged with the cocaine sales that occurred on April 27, May 4, and May 18, 2000; he was not charged with possession of cocaine arising out of the June 22, 2000 arrest because it occurred outside of Scott County's jurisdiction.

Prior to trial, the prosecutor served notice that it intended to introduce a prior conviction of appellant from June 29, 1993, and the June 22, 2000 arrest as Spreigl evidence.  At the beginning of trial, the state also attempted to admit a January 2000 incident as Spreigl evidence.  The district court ruled that the January 2000 event was not admissible because of lack of notice and deferred ruling on the other two incidents until the close of the state's case in chief.  On cross-examination of the CI, the defense was able to establish that the CI's memory of the drug transactions was somewhat limited due to the remoteness in time and the effects of his cocaine addiction.  After the state presented its case in chief, it again asked the district court's permission to introduce the June 22, 2000 arrest.  The district court noted the following regarding the strength of the state's case:

       Well, I think that . . . [the state's] case is weak at this point and it's weak on the fact that [appellant] ever had any drugs.  And the only evidence that he was in possession[,] would have an opportunity to do this, showing a common plan, scheme and so forth is when they arrested him.  And I mean from my perspective the case is not only weak[,] I think it's less than a fifty-fifty chance at this point that they could win this case.

 

The district court stated that it intended to allow introduction of the Spreigl evidence, but only after a hearing to determine whether the evidence was clear and convincing that appellant had participated in the incident.  Following the hearing, the district court determined that the state had clearly and convincingly demonstrated that appellant was a participant and admitted the Spreigl evidence.  The district court gave the following cautionary instruction before the introduction of the Spreigl evidence:

The evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which he is charged in the complaint.  The defendant is not being tried for and may not be convicted of any offense other than the charged offenses.  You are not to convict the defendant on the basis of any occurrence on June 22nd at [a restaurant] in Bloomington, Minnesota.  To do so might result in unjust double punishment.

 

            A jury found appellant guilty of two counts of first-degree sale of cocaine and not guilty of one count of first-degree conspiracy to sell a controlled substance.  Appellant was sentenced to 84 months in prison.  The state appealed the district court's downward durational departure from the presumptive sentence, and this court affirmed.  State v. Bendzula, 675 N.W.2d 920 (Minn. App. 2004).  Appellant petitioned the district court for postconviction relief, arguing that the decision to admit the Spreigl evidence of his arrest was error.  The postconviction court denied the petition.  Appellant now challenges the denial.

D E C I S I O N

 

            Appellant asserts that the district court abused its discretion by admitting the Spreigl evidence of his June 22 arrest.  Evidence of other crimes, wrongs, or acts is called Spreigl evidence.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  This court will not reverse the district court's admission of Spreigl evidence absent an abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  Evidence of other crimes is not admissible to show actions in conformity with those offenses but is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."  Minn. R. Evid. 404(b); State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).

A district court may admit Spreigl evidence if it finds that (1) the evidence is clear and convincing that the defendant participated in the Spreigl incident, (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.  Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002).  The challenging party bears the burden of demonstrating prejudicial error.  See id.  But if the issue of the admissibility of the Spreigl evidence is unclear, the court should give the defendant the benefit of the doubt and exclude the evidence.  State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995).

            The district court admitted the Spreigl evidence of appellant's arrest on June 22, 2000, when he was found in possession of 28 grams of cocaine.  Appellant does not challenge the first prong of the Spreigl test regarding clear and convincing evidence of his participation, but instead alleges that the evidence was not material and necessary to sustain the state's burden of proof and that the prejudice to appellant outweighed the evidence's probative value.  Appellant also argues that admission of the Spreigl evidence likely affected the jury's verdict.

            A.               Relevance and Materiality

            Appellant contends that the Spreigl evidence that he was in possession of 28 grams of cocaine on the date of his arrest was unnecessary to support the state's burden of proof.  The state counters that the Spreigl evidence was relevant and material to its case because it was similar to the charged crime in terms of modus operandi.  "To be ‘relevant and material,' the other crime must be sufficiently similar to the charged crime in terms of time, place or modus operandi."  State v. Greenleaf, 591 N.W.2d 488, 505 (Minn. 1999).  The level of similarity need not be absolute, but the greater the similarity between the Spreigl incident and the crime charged, the greater the likelihood that the incident will be sufficiently relevant.  Id.; State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

            After a review of the facts of the charged incidents and the June 22, 2000 arrest, we conclude that the Spreigl evidence was sufficiently similar.  In all three of the charged incidents, the CI arranged to meet with appellant at a designated time and place to buy cocaine, met with appellant in private, and returned with the cocaine. We note that, arguably, these similarities between the characteristics of the transactions may establish the CI's modus operandi rather than appellant's.  While it is true, however, that the CI called appellant to arrange the sales, there is evidence that appellant designated the meeting location for the first two sales to exchange the cocaine for cash because they arranged to meet at appellant's workplace, an auto-sales business.  Although the final two cocaine transactions were arranged to take place at restaurants, the remaining portions of the transactions are sufficiently similar because the level of similarity for Spreigl evidence need not be absolute.  See Greenleaf, 591 N.W.2d at 505.

            The Spreigl evidence was particularly relevant and material to his participation in the charged crimes because it demonstrated that appellant had access to the drugs.  The part of the charged crimes that police did not observe were the private meetings between appellant and the CI when the cocaine and cash were exchanged.  Thus, the Spreigl evidence of appellant's arrest constitutes relevant and material evidence to the crimes charged.

            Appellant's argument under the relevant-and-material prong of the Spreigl evidence test that the evidence was "unnecessary" is without merit.  Appellant primarily bases his argument that the Spreigl evidence was unnecessary on the court's statement in State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967), that Spreigl evidence is admissible only if evidence of the defendant's identity is inadequate and it is necessary to bolster the state's burden of proof.  But Billstrom made this statement in the context of Spreigl evidence used to establish the identity of the defendant.  The instant case is distinguishable because the Spreigl evidence here was offered to establish appellant's access to drugs and not appellant's identity, which he acknowledges was never in dispute.  In fact, appellant argues that his identity was so well-established by the remainder of the evidence that the Spreigl evidence of his arrest was merely cumulative.  But the evidence is not cumulative on access, and it is also relevant to modus operandi.  In that regard, the Spreigl evidence was sufficiently similar to the charged incidents and supports the district court's decision to admit it.

            B.               Probative Value Versus Prejudice                 

            Appellant next argues that the prejudicial effect of the Spreigl evidence outweighed its probative value.  Appellant relies heavily on his contention that the Spreigl evidence was redundant and cumulative to prove that it was not sufficiently probative.  "In weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state's case."  DeWald, 464 N.W.2d at 504; accord State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992).  The state contends that the probative value of the evidence was significant because it compensated for the weakness of its case exposed by the defense's cross-examination of the CI.  During cross-examination, the CI revealed that he did not recall the specifics of the transactions because they occurred three years earlier and he was a cocaine addict at the time.  The district court concurred that the state's case was weak in its postconviction order, stating that "[i]n light of the defendant's cross examination of the [CI], it was important for the state to demonstrate that the defendant had access to the drugs."  We agree.

The defense's cross-examination of the CI showed weaknesses in the reliability of his recollection of events that were remote in time and occurred during a period when he was addicted to cocaine.  Further, because the evidence did not affirmatively show that appellant possessed the cocaine during any of the three incidents for which he was charged, evidence of the June 22 arrest in which he was found with 28 grams of cocaine was critical because it demonstrated that he had access to cocaine.  Moreover, any potential prejudice to appellant was mitigated by the district court's cautionary instruction to the jury before introduction of the Spreigl evidence.  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).  On this record, we find that the district court's conclusion that the Spreigl evidence was more probative than prejudicial because it was crucial to the state's case was not an abuse of its discretion.  See DeWald, 464 N.W.2d at 504. 

            C.        Effect on Jury Verdict

            Appellant next claims that the erroneously admitted Spreigl evidence likely affected the jury's verdict.  If an appellate court determines that the district court erred in admitting Spreigl evidence, the court must determine "whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict."  Bolte, 530 N.W.2d at 198 (quotation omitted).  Because we conclude that the district court did not err by admitting the Spreigl evidence, we need not address whether there is a reasonable probability that the evidence significantly affected the verdict.

            Because the Spreigl evidence of appellant's arrest was sufficiently similar to the charged crimes in terms of modus operandi and was critical to the state's case, the district court did not abuse its discretion by admitting the evidence. [1]  We affirm.

            Affirmed.

[1] The state also argues that whether or not the evidence of appellant's arrest was properly admitted as Spreigl evidence, it was nonetheless admissible as "res gestae."  Res gestae has been defined as "[t]he events at issue, or other events contemporaneous with them."  Black's Law Dictionary 1335 (8th ed. 2004).  Because the district court did not determine this issue, this court is not required to address it.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered in the court below).  Moreover, because the admission of the arrest as Spreigl evidence was not an abuse of discretion, we need not determine its admissibility as res gestae.