State v. Vick

*692PAUL H. ANDERSON, J.

(dissenting).

I respectfully dissent from the majority’s approval of the admission of C.G.’s testimony about under-the-clothes touching. C.G.’s testimony, which falls into the category of Spreigl evidence, was admittedly a misstatement,.1 For this reason and others, the statement falls short of the standards that we have set for the admission of Spreigl evidence. Therefore, I conclude that the admission of this testimony was plain error affecting appellant Edwin Olaf Vick’s substantial rights.

I agree with the majority’s conclusion that we must look at this case by conducting a plain error analysis. Vick did not object to the testimony or seek a limiting instruction. Therefore, we may consider the issue only if there is plain error. For there to be plain error, there must be “(1) error; (2) that it is plain; and (3) the error must have affected substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). When these three prongs are present, we then assess whether we “should address the error to ensure fairness and the integrity of the judicial proceedings.” Id.; see Minn. R.Crim. P. 31.02. We have given direction as to how we proceed with such analysis in State v. Pilot, where we said:

[T]he trial error must have been so clear under applicable law at the time of conviction and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object — and thereby present the trial court with an opportunity to avoid prejudice — should not forfeit his right to a remedy.

State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999) (quoting Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996)).

A district court has the discretion to admit evidence of other crimes evidence— also known as Spreigl evidence — but the court must ensure that certain safeguards are met before admitting such evidence so that the Spreigl evidence does not wrongly remove reasonable doubt in the jury’s mind as to the defendant’s guilt. State v. Spreigl, 272 Minn. 488, 495-97, 139 N.W.2d 167, 172-73 (1965) (citing to State v. Doty for the proposition that “The danger of it [evidence of other offenses] is that a jury may convict because, though guilt of the crime charged is not proved, it is satisfied to convict because of other crimes.” 167 Minn. 164, 166, 208 N.W. 760, 761 (1926)). Spreigl evidence is admissible for the legitimate purpose of establishing motive, intent, absence of mistake, identity, or common scheme or plan. State v. DeWald, 464 N.W.2d 500, 502-03 (Minn.1991).

To admit the other crimes or bad acts evidence referred to as Spreigl evidence, a court must find that (1) the state gave notice that it intended to use the evidence; (2) the state clearly indicated what the evidence was intended to prove; (3) the evidence that the defendant participated in the other offense or bad act is clear and convincing; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the evidence is outweighed by its potential for unfair prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998). We have held that this type of evidence may be admitted if it is similar to the charged offense in either time, place, or modus operandi. State v. Filippi, 335 N.W.2d 739, 743 (Minn.1983). It is not sufficient that the prior crime is simply of the same generic type as the instant offense. Generic relevance is usually insufficient to allow its admission as *693Spreigl evidence. State v. Cogshell, 538 N.W.2d 120, 123-24 (Minn.1995). When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should.be given to the defendant and the evidence should be excluded. Id.

The admission of Spreigl evidence requires at the outset that the state give notice of its intent to use the evidence. Minn. R.Crim. P. 7.02. The purpose of the notice is to give the defendant sufficient opportunity to prepare for trial and to avoid defending against unexpected testimony concerning prior offenses or bad acts. State v. Bolte, 530 N.W.2d 191, 197 (Minn.1995). The Minnesota Rules of Criminal Procedure require that notice of “additional offenses shall be described with sufficient particularity to enable the defendant to prepare for trial.” Minn. R.Crim. P. 7.02. As the court of appeals said in its opinion here, the “notice serves the purpose of allowing a defendant to candidly assess the likelihood of success before trial and to accept a plea-bargain if it is in the defendant’s best interests.” State v. Vick, No. C7-99-1949, 2000 WL 890468 at *2 (Minn.App. July 3, 2000). Vick was never given the opportunity to weigh the impact of C.G.’s under-the-clothes touching testimony because no notice was provided. The reason for the lack of notice — because the statement was a misstatement — is irrelevant to the determination of whether the notice was proper.

The majority attempts to buttress its position for the admission of this testimony by stating that a Spreigl notice was given with respect to a Lake County over-the-clothes touching. The majority further attempts to buttress inclusion of the statement on the grounds that Deputy Falk testified that the Lake County touching was over the clothes and that the judge gave Spreigl instructions on the over-the-clothes testimony. I find these reasons to be insufficient to eliminate any prejudice from this testimony that affected the outcome of the case and certainly they are not an adequate básis for admission of this damaging, highly prejudicial evidence.

It was plain error to admit the Spreigl evidence which the state concedes was a misstatement because there is no clear and convincing evidence that an under-the-clothes or under-the-panties touching occurred in Lake County as is required for prong three of the Spreigl admission test. We have previously stated that evidence that a defendant participated in a prior offense or bad act must be clearly convincing. Kennedy, 585 N.W.2d at 389. Here there can be no showing by a preponderance of the evidence that any such incident happened or that the truth of the facts submitted is highly probable.

.1 also conclude that C.G.’s under-the-clothes touching testimony was not necessary in order to provide the proper context for A.B. having a second interview with the police. Cf. State v. Czech, 343 N.W.2d 854, 856-57 (Minn.1984). All that was necessary was for C.G. to testify that A.B. stated some information that was not included in the first interview and for this reason, the second interview was conducted. Admission of this evidence cannot be explained away as a justification for seeking the second interview. When we are dealing with evidence as potentially prejudicial as the evidence here, we must be careful not to overreach to characterize this testimony as anything other than Spreigl evidence. Furthermore, it confounds me that the majority could conclude that this misstatement did not affect the jury’s decision to convict.

' For all of these reasons, I conclude that error occurred in this case and that it was plain error. By failing to sua sponte strike the unnoticed Spreigl evidence or to provide a specific cautionary instruction as to *694this improper evidence, the district court plainly erred. The majority dismisses my concern about the propriety of the admission of C.G.’s statement because “the question before us is not whether the trial court erred in admitting the testimony, because the court was not given the opportunity to make that decision.” Rather, the question before us is “the trial court’s failure to sua sponte strike the testimony or provide a cautionary instruction * ⅜ *.” I find it ironic that under the majority’s approach, C.G.’s statements, which are at best misstatements and at worst could be deliberate attempts to mislead the jury, are not put to the full Spreigl admissibility test. The majority’s position has the potential of placing in the hands of an interested witness the ability to circumvent the strict Spreigl admission requirements by making damaging “misstatements” about prior bad acts in front of a jury. The majority’s emphasis on the distinction between not admitting the statements versus sua sponte striking the statements once they were made is misplaced. For purposes of the analysis here, I see no distinction because the effect of both is the same — the court could and should have prevented the jury from considering the improper information.

The fact that I have concluded that the admission of this evidence is plain error does not end my analysis. There must be a showing on the third prong of the plain error analysis that the error affected substantial rights, that it was so prejudicial that it affected the outcome of the case. Vick bears the burden of persuasion on this prong. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The majority again asserts that there was no prejudicial effect because the state gave notice that the Lake County over-the-clothes touching testimony would be introduced, the judge provided cautionary Spreigl instructions twice with respect to the over-the-clothes touching, and Officer Falk testified that the Lake County touching was over the clothet. The majority asserts that this activity with respect to over-the-clothes testimony “minimized” the potential for prejudice and that the over-the-clothes evidence theme gave sufficient notice to Vick so that the under-the-clothes testimony would come as no surprise. Equally problematic is the majority’s statement that C.G.’s misstatement “was not more inflammatory than the charged incident.”

It is difficult for me to understand the majority’s rationale in this regard. As the court of appeals pointed out, there is a wide chasm between Spreigl testimony alleging that Vick touched A.B. over her clothes while she was sitting on his lap at his Lake County shop versus testimony alleging Vick was putting his hands down A.B.’s panties. The court of appeals got it right when it said:

It is common knowledge that accidental, but misperceived, touches can occur over the clothes. We acknowledge that inappropriate touching can indeed occur over the clothing but, in this case, the down-her-panties Spreigl testimony was so prejudicial that the jury could not thereafter impartially determine whether the charged touching in Cook County occurred.

Vick, 2000 WL 890468 at *3.

I agree with the court of appeals’ conclusion that there is a difference between under-the-panties touching and over-the-clothes touching while sitting on a person’s lap. I concede that the issue is close, but we have said that when it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should not be included. This position reflects our recognition that “threaded through our *695precedents dealing with exceptions to the exclusionary rule is a note of concern, admonishing courts against depriving innocent persons of their constitutional right to a fair trial.” Spreigl, 272 Minn. at 495, 139 N.W.2d at 171. Here, the benefit of the doubt must be given to Vick. The district court should have excluded this misstatement because it so obviously did not meet the standards for Spreigl evidence. It was plain error to admit the evidence, and the admission of this evidence so clearly prejudiced the defendant that it needs to be addressed by our court on appeal in order to ensure the fairness and integrity of judicial proceedings.

I would affirm the court of appeals and remand to the district court for a new trial.

. The district court incorrectly categorized the testimony as evidence of a "common scheme or plan” and the first time the state acknowledged that this testimony was a misstatement was at oral argument before the court of appeals.