This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1678
State of Minnesota,
Respondent,
vs.
Eric Jerome Johnson,
Appellant.
Filed January 20, 2015
Affirmed in part, reversed in part, and remanded
Reilly, Judge
Scott County District Court
File No. 70-CR-12-10427
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and
Stoneburner, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REILLY, Judge
This matter is before us on remand from the supreme court (1) to reconsider the
Spreigl evidence in light of the “markedly similar” test outlined in State v. Ness, 707
N.W.2d 676 (Minn. 2006), and (2) to reconsider whether this court should vacate one of
appellant’s two convictions for first-degree criminal sexual conduct under Spann v. State,
740 N.W.2d 570, 573 (Minn. 2007). We conclude that the evidence shows a marked
similarity between the Spreigl offense and the charged offense, and we affirm the
conviction. However, because the order and warrant of commitment do not accurately
reflect the district court’s oral pronouncement during sentencing, we reverse and remand
with instructions to correct the warrant of commitment to reflect judgment of conviction
for one count of first-degree criminal sexual conduct.
FACTS
On March 8, 2012, 15-year-old T.R. traveled to Minnesota with her family and
stayed in appellant’s house with appellant, his wife, and his daughter. Appellant is T.R.’s
uncle. On March 10, T.R. fell asleep in appellant’s daughter’s bedroom. She awoke
during the night with the sense that someone had been touching her breasts. T.R. thought
she saw someone in the room, although she could not identify who it was. T.R. believed
she saw a shadow by the closet. T.R. could not distinguish whether someone was
standing in the room with her or not, and she fell back to sleep. T.R. next remembered
feeling as though someone was lying on top of her. T.R. was partially undressed with
both her right pant leg and her right underpants leg off. She felt a “shove” and felt
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someone put his penis into her vagina. T.R. woke up completely and flinched from the
pain. T.R. felt someone jump off of her and run out of the room, and she recognized the
individual as appellant.
The following day, T.R. and her mother reported the crime to the police. T.R.
submitted to a sexual assault examination and a forensic physical examination, provided
a urine sample, and underwent a speculum exam, which included swabs from her cervix,
perineum, and vagina. The Minnesota BCA analyzed the samples collected from T.R.’s
examination and identified semen on the vaginal, cervical, and perineal swabs. The DNA
tests determined that appellant could not be excluded from the analysis and 99.9999998%
of the general population could be excluded. The state charged appellant with one count
of first-degree criminal sexual conduct.
As part of their investigation, detectives discovered appellant had a 2002 second-
degree criminal sexual conduct conviction arising out of sexual contact with his then-
girlfriend’s 12-year-old daughter. In that case, appellant habitually entered the girl’s
bedroom at night to touch her buttocks and vaginal area. Appellant pleaded guilty to that
offense and served a 39-month executed sentence. The state sought to introduce Spreigl
evidence of this conviction to show intent, knowledge, lack of mistake, and modus
operandi.1 The district court granted the state’s request based on its determination that
the 2002 conviction involved a victim living in the same household as the appellant at the
time of the offense, and that the sexual conduct took place at night when the victim was
asleep in her bed. The district court concluded that:
1
State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965).
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These facts meet the materiality and relevance requirements
of Spreigl. The location of the offenses, the status of the
victim, and the circumstances of the abuse are remarkably
similar. Moreover, in both cases, the victim was a child that
was known to [appellant] and was someone the child knew as
a household member.
A jury trial was held in April 2013. The state amended the complaint to add a
second count of first-degree criminal sexual conduct. Appellant testified that he entered
the bedroom in the middle of the night and saw T.R. lying on the bed masturbating, so he
began to masturbate himself. Appellant stated that he ejaculated and then returned to his
bedroom. Appellant admitted during cross-examination that he is attracted to developed
young girls between the ages of 12 and 15. Appellant acknowledged that he has a
problem and testified that he and his wife took precautions to ensure that young girls
were safe in their home. These precautions include: not bathing or changing his
daughters or allowing them to have friends sleep over at the house. Appellant’s wife was
also permitted to testify that appellant was attracted to physically developed young girls
and that he underwent sex-offender treatment. Although appellant initially objected to
his wife testifying based on spousal privilege, he did not object to her specific testimony
regarding his attraction to young girls.
Before the state presented Spreigl testimony and by agreement of the parties, the
district court gave the standard cautionary instruction to the jury regarding testimony of
other crimes. The Spreigl witness testified that appellant dated her mother from 1999 to
2001. Between 2000 and 2001, appellant lived with the witness and her mother. The
witness reported that, starting when she was 11 years old, there were over 20 sexual
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incidents involving appellant and the witness. During one incident, appellant walked into
the witness’s bedroom while everybody was asleep and began groping her. When she
opened her eyes, appellant was hiding against the closet door, “camouflag[ing] himself
into the night.” The witness described this activity as “ongoing behavior,” during which
appellant visited her bedroom and sexually assaulted her while she was asleep.
The jury found appellant guilty of both counts of first-degree criminal sexual
conduct. The district court ordered a presentence investigation, which revealed that the
presumptive guidelines sentence with appellant’s criminal history score was the statutory
maximum. The district court committed appellant to the commissioner of corrections for
360 months. According to the sentencing hearing transcript, the district court formally
adjudicated and sentenced appellant on count one only, of criminal sexual conduct in the
first degree, significant relationship, with the second count merging for sentencing
purposes.
On appeal, appellant challenged admission of the Spreigl evidence and argued that
he was improperly convicted of two counts of first-degree criminal sexual conduct based
on the same criminal act against the same complainant. This court affirmed. State v.
Johnson, A13-1678 (Minn. App. Aug. 11, 2014). The supreme court granted appellant’s
petition for review and affirmed in part, vacated in part, and remanded with directions to
consider (1) whether this court erred in applying the “substantially similar” standard in its
analysis of the Spreigl evidence, and (2) whether it erred in refusing to vacate one of
appellant’s convictions for first-degree criminal sexual conduct. We did not order the
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parties to file supplemental briefs or memoranda, and the case was submitted without
additional oral argument.
DECISION
I.
Appellant challenges the admission of Spreigl evidence at trial. Evidence of past
crimes or bad acts, or Spreigl evidence, is generally not admissible to prove the character
of a person or that the person acted in conformity with that character in committing an
offense. Minn. R. Evid. 404(b). But Spreigl evidence may be admissible to demonstrate
factors such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. Admission of Spreigl evidence rests within the
sound discretion of the district court and is reviewed under an abuse-of-discretion
standard. Ness, 707 N.W.2d at 685. Appellant bears the burden of showing that an error
occurred and that he was prejudiced. State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007).
District courts perform a five-prong analysis in determining whether Spreigl
evidence is admissible:
(1) the state must give notice of its intent to admit the
evidence; (2) the state must clearly indicate what the evidence
will be offered to prove; (3) there must be clear and
convincing evidence that the defendant participated in the
prior act; (4) the evidence must be relevant and material to the
state’s case; and (5) the probative value of the evidence must
not be outweighed by its potential prejudice to the defendant.
Ness, 707 N.W.2d at 685-86. Here, the first three elements are uncontested.
First, appellant contends that the Spreigl evidence was not relevant and material to
the state’s case. Appellant argues that the district court did not identify the real purpose
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for which the Spreigl evidence was offered. In determining whether a bad act is
admissible under the common scheme or plan exception, it must have a “marked
similarity in modus operandi to the charged offense.” Id. at 688. In determining the
relevance of Spreigl evidence, the district court should “focus on the closeness of the
relationship between the other crimes and the charged crimes in terms of time, place and
modus operandi.” State v. Wermerskirchen, 497 N.W.2d 235, 240 (Minn. 1993) (citation
omitted).
The prosecutor’s reasons for seeking to admit the 2002 incident were to prove lack
of mistake, knowledge, identity, and modus operandi. Although the district court did not
specifically identify the “real purpose” for admitting the evidence, the court’s reasons for
admitting the 2002 incident plainly demonstrate that it was to show a common scheme or
plan or modus operandi because the prior incident was “remarkably similar” to the
current offense. The district court determined that the facts giving rise to the 2002
conviction “[met] the materiality and relevance requirements of Spreigl.” The district
court found that the incident was “remarkably similar” to the current offense due to the
location, the age of the victims, and the circumstances. Specifically, the district court
found that in both instances the victims were children known to appellant as a household
member, and that the sexual assaults occurred in the child’s bedroom while the child was
sleeping alone in her bed. The supreme court has recognized that other-acts evidence is
admissible under the common scheme or plan exception to show “that the conduct on
which the charged offense was based actually occurred or to refute the defendant’s
contention that the victim’s testimony was a fabrication or a mistake in perception.”
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Ness, 707 N.W.2d at 688 (quoting Wermerskirchen, 497 N.W.2d at 241-42). The district
court had a legitimate purpose for admitting the evidence to show that the conduct
actually occurred.
The district court acknowledged that the offenses are separated by approximately
ten years. Minnesota recognizes that bad acts that are remote in time may still be
relevant if the defendant was incarcerated during that time. Id. at 689. For incarceration,
a court may subtract the length of incarceration from the time that has passed since the
charged offense. Clark, 738 N.W.2d at 346. Following appellant’s conviction in 2002 he
served an executed sentence and a supervised release period of approximately eight
years. Given appellant’s incarceration, the bad acts are, therefore, not remote.
Next, appellant argues that the district court’s ruling was erroneous because the
2002 incident and the current offense were not “markedly similar.” In our prior opinion,
we determined that the current offense and the prior offense were substantially similar.
On remand, the supreme court directed us to consider this issue under the “markedly
similar” standard. In Ness the supreme court clarified that under the common scheme or
plan exception, a prior bad act “must have a marked similarity in modus operandi to the
charged offense.” 707 N.W.2d at 688. The supreme court did not specifically identify
what “markedly similar” means, but referenced a prior case in which the court
characterized prior bad acts as “markedly similar.” We have considered this decision
along with other relevant cases and conclude that the 2002 incident is “markedly similar”
to the current offense.
8
By way of example, in State v. Norris, the supreme court held that there was a
marked similarity between the prior crime and the charged offense where both offenses
involved the perpetrator wearing a disguise, carrying a loaded revolver, and threatening
the victims. 428 N.W.2d 61, 70 (Minn. 1988). Here, the district court plainly articulated
why the Spreigl conduct was “remarkably similar” to the charged offense; in both
instances appellant opportunistically preyed on physically mature young girls as they
slept in their bedrooms at night. We find that the two offenses share a marked similarity.
Both the Spreigl crime and the charged crime were perpetrated against physically
developed young girls sleeping in their bedrooms at night. In both instances, appellant
entered the girls’ bedrooms while the rest of the household was asleep and attempted to
conceal or “camouflage” himself in the shadows to avoid detection. The district court did
not abuse its discretion in finding that the Spreigl evidence was relevant and material to
the charged offenses because both offenses are markedly similar.
Appellant concedes that the facts underlying the 2002 offense share some
similarities with the present case but argues that the 2002 offense is not similar enough
because it did not involve sexual penetration. We acknowledge that crimes that are of the
“same generic type” are not markedly similar. Clark, 738 N.W.2d at 346-47 (finding
prior crime was not markedly similar to charged offense where the crimes were
“relatively remote in time” and the two incidents did not show a “distinctive modus
operandi”). However, “absolute similarity” between the charged offense and the Spreigl
crime is not required. State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992); see also State v.
Kennedy, 585 N.W.2d 385, 391 (Minn. 1998) (holding that Spreigl evidence “need not be
9
identical”); Ness, 707 N.W.2d at 688 (citing Kennedy, 585 N.W.2d at 391). We are
satisfied that the district court did not abuse its broad discretion in concluding that the
incidents were “remarkably similar,” and that under Ness these incidents satisfy the
“markedly similar” standard.
We previously determined that the probative value of the Spreigl evidence
outweighed its prejudicial effect because the district court gave the jurors cautionary
instructions regarding the proper use of the evidence before the evidence was presented
and again before the case was submitted to the jury. See Kennedy, 585 N.W.2d at 392
(determining that cautionary instructions “lessened the probability of undue weight being
given by the jury to the evidence.”). Appellant did not challenge this conclusion in the
petition for review, and we do not reconsider it.
But even if the district court abused its discretion by admitting the Spreigl
evidence, appellant is not entitled to a new trial because he has not been prejudiced. See
Clark, 738 N.W.2d at 347-48 (finding new trial is not warranted where appellant failed to
establish that he was prejudiced by admission of Spreigl evidence). The victim’s
consistent report of the assault and the DNA evidence corroborating her account of
penetration are compelling evidence supporting the guilty verdict.
II.
Appellant argues that he was improperly convicted of two counts of first-degree
criminal sexual conduct based on the same criminal act against the same complainant.
See Minn. Stat. § 609.04 (2010) (“Upon prosecution for a crime, the actor may be
convicted of either the crime charged or an included offense, but not both.”); Spann, 740
10
N.W.2d at 573 (prohibiting conviction of multiple offenses arising from the “same
behavioral incident”). We affirmed the district court, concluding that appellant was
formally adjudicated on only one of the jury’s convictions based on the district court’s
oral pronouncement during sentencing. The supreme court remanded for this court to
determine whether it erred in failing to vacate one of appellant’s two convictions for first-
degree criminal sexual conduct.
When a defendant is convicted on more than one charge for the same act, the
“proper procedure” for the sentencing court is to “adjudicate formally and impose
sentence on one count only.” State v. French, 400 N.W.2d 111, 114 (Minn. App. 1987)
(quotation omitted), review denied (Minn. Mar. 25, 1987); see also Spann, 740 N.W.2d at
573. The Spann court instructs that “[a] conviction is defined as either a plea of guilty or
a verdict or finding of guilty that is accepted and recorded by the court.” 740 N.W.2d at
573 (citing Minn. Stat. § 609.02, subd. 5 (2006)). “A guilty verdict alone is not a
conviction.” Id.
In this case, the jury found appellant guilty on both counts. An appellate court
looks to the “official judgment of conviction in the district court file as conclusive
evidence of whether an offense has been formally adjudicated.” Id. During sentencing,
the district court formally adjudicated appellant on count one, criminal sexual conduct in
the first degree, and sentenced him on that count alone. The district court merged the
second count for sentencing purposes and an additional sentence was not imposed.
However, the order and warrant of commitment incorrectly stated that appellant was
sentenced on the first count but “convicted” on both counts one and two. The state
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concedes that this is incorrect. Assuming that the order and warrant of commitment
serves as the judgment of conviction, then it is incorrect in that it fails to accurately
reflect the district court’s adjudication on one count only. Appellant’s conviction for
count two is vacated and the matter is remanded to the district court for the limited
purpose of correcting the order and warrant of commitment. See, e.g., State v. Grampre,
766 N.W.2d 347, 354 (Minn. App. 2009) (vacating one of two convictions based on same
criminal act), review denied (Minn. Aug. 26, 2009).
Affirmed in part, reversed in part, and remanded.
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