State of Minnesota, Respondent, vs. Belford William Reitz, 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This opinion will be unpublished and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

C2-02-2230

 

State of Minnesota,

Respondent,

 

vs.

 

Belford William Reitz,

Appellant.

 

 

Filed October 28, 2003

Affirmed

Randall, Judge

 

Anoka County District Court

File No. KX-01-9086

 

 

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

 

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Dawn R. Nyhus, Certified Student Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN  55303 (for respondent)

 

Eric L. Newmark, Birrell & Newmark, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN, 55403; and

 

Carolyn Agin Schmidt, 5500 Wayzata Boulevard, Suite 1025, Minneapolis, MN, 55416 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

RANDALL, Judge

            Appellant challenges the district court's denial of his motion for mistrial claiming the jury was exposed to inadmissible, potentially prejudicial evidence.  Appellant also challenges the district court's admission of Spreigl evidence of a prior incident.  We affirm.

FACTS

            Appellant Belford Reitz's sister-in-law has two teenage daughters, A.H. and A.A.  Over the course of his marriage, appellant spent considerable time with the girls, as they were frequent visitors to the home he shared with his wife.

            In June 2001, the girls' mother found a page of A.H.'s diary on the floor of the girl's bedroom.  On this page was language suggesting that appellant had inappropriately touched A.H.  The mother asked A.H. and A.A. if appellant had done anything to them.  Both girls told their mother that appellant had sexually touched them on one occasion each in the past.  The mother contacted police, and a complaint was filed charging appellant with two counts of criminal sexual conduct in the second degree.

             Appellant agreed that the counts should be joined for trial.  A jury trial began September 17, 2002.  A.H. testified that she had spent a lot of time at appellant's home.  She testified that her grandmother's trailer was adjacent to appellant's, so she often spent the night at her grandmother's after spending time at the Reitzs' home.  A.H. testified that once when she was in 8th grade (in 1999), she had been at appellant's home to watch a movie.  Her aunt had gone to bed, and she, her sister, and appellant remained in the living room.  Appellant approached A.H. and sat down next to her.  Appellant began massaging her shoulders, although she had not asked him to.  Appellant put his hand inside the top of her shirt, and moved his hand down until he touched her left breast.  Appellant massaged her shoulders again, then moved his hand down her side, over her leg, and rubbed her inner thigh.  Uncomfortable, A.H. got up and left, going to her grandmother's house.  Her sister, who had been watching the movie, had apparently not noticed anything.  A.H. did not immediately tell anyone about the incident, and continued to see her aunt and appellant.  A couple months later, A.H. told her friends, a teenage boy and his sister, about the incident.  A.H. also testified that she had kept a diary for a long time, and that she had written about the incident with appellant some time after it happened.  That page of the diary was introduced as evidence. 

A.H. also testified that she had talked to some of her cousins about appellant.  During a visit to her female cousins, she told the two girls about the incident.  Asked how the subject arose, she said, "[w]e were just talking.  And I don't remember how it came up.  But my sister asked [N.D.] a question.  And she said about [appellant].  And she said, yes.  And I asked…"  The prosecutor then interrupted and asked her if she brought up what appellant had done to her, and she said, "[w]hen [N.D.] said yes, I said…."  At this point, the defense objected and a recess was taken.  After the jury had been removed, the defense moved for a mistrial, arguing that the preceding exchange had improperly exposed the jury to the allegation that appellant had also sexually touched N.D., another of his teenage nieces by marriage.  The defense correctly pointed out that the court had not ruled that evidence that appellant had touched N.D. would be admitted, and no Spreigl analysis had been performed.  The court heard arguments and then ruled there would be no mistrial.  It stated the questions had been "less than artfully put," but the responses "really had no meaning in the context of the testimony."  The court, recognizing the problem and appellant's point, admonished the state to be careful not to venture into evidence that the court had not ruled admissible. 

The court went on to discuss the proposed Spreigl evidence of appellant's prior conviction, which was for pinching his then-teenage sister's breasts and nipples seven times, inflicting sexual contact on her with aggressive intent.  The state wished to introduce that evidence to bolster its case and show lack of mistake.  The defense argued that the prejudicial effect of the conviction outweighed its probative value. 

            On cross-examination, A.H. admitted that she had not told the police that her sister was in the room during the incident, and that she could not remember exactly when she had written about the incident in her diary. 

            Next to testify was A.A., who was 14 at the time of trial.  A.A. confirmed that she and her sister had spent a lot of time with appellant and their aunt, and that while she often stayed at the Reitzs' home, her sister usually stayed with their grandmother.  A.A. testified that on one occasion (approximately 3 to 4 years previous), when her aunt had gone to sleep and her sister was at home, appellant came and sat next to her in the living room, and then put his hand inside her pants and moved it toward her vaginal area.  She stopped him by getting up and moving to a different chair.  She did not tell anyone because she was scared.  Some time later, she told A.H., and the same friends A.H. told, but no one else knew until her mother found A.H.'s diary and confronted the girls.  A.A. also admitted that she had continued to spend time at appellant's house after the incident, because she wanted to see her aunt and cousins. 

The court addressed the Spreigl issue again during trial.  The court indicated that it would be likely to admit evidence of appellant's acts against his sister.  The defense objected to the admission, but agreed that if the evidence would be admitted, it should be limited to evidence of appellant's conduct, not his conviction.  The parties were instructed by the district court to prepare a stipulation to minimize any damage.  Appellant's attorney followed the court's instructions and the issue was properly preserved for appeal.  The jury was read a stipulated statement regarding the prior acts.  Then the district court instructed the jury that it was not to convict appellant on the basis of those acts.  Immediately after this statement, the state and the defense rested.  On September 19, 2002, the jury returned verdicts of guilty on both counts.  On October 22, appellant was sentenced to concurrent sentences of 36 and 41 months, with a ten-year period of conditional release.  This appeal follows. Appellant challenges the district court's denial of his motion for mistrial and the admission of the Spreigl evidence.

D E C I S I O N

I.

            "The standard of review for a denial of a motion for a mistrial is abuse of discretion."  State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998).  A mistrial need not be granted unless there is a reasonable probability that the outcome of the trial would have been different.  Id. at 53. 

            Appellant argues that his motion for mistrial should have been granted because the jury was exposed to the potentially damaging, inadmissible inference that he had also sexually touched another of his nieces.  The state does have a responsibility to ensure that its witnesses know the limits of permissible testimony.  State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979).  Generally, the district court is in the best position to evaluate any potential prejudice to a defendant.  State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985).  But, if the jury may have been exposed to potentially prejudicial evidence, this court should conduct an independent evaluation of whether the exposure deprives a defendant of his right to an impartial jury.  State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982). 

            Here, appellant argues that A.H. made a reference to the allegation that appellant had sexually touched N.D., which had not been ruled admissible evidence.  When asked how she told her cousins that appellant had touched her, she said, "[w]e were just talking.  And I don't remember how it came up.  But my sister asked [N.D.] a question.  And she said about Bill.  And she said, yes.  And I asked…"  The prosecutor interrupted A.H. and asked if she told her cousins how appellant had touched her.  A.H. said, "[w]hen [N.D.] said yes, I said…."  Defense counsel interrupted her, and no more reference to N.D. occurred. 

The district court denied appellant's motion for mistrial, finding the reference to N.D. was so ambiguous and confused as to be "gobble de goop" and meaningless.   We do not disagree with the district court.  The exchange bumped up against improper testimony, but does not contain any clear allegation that appellant committed sexual contact against N.D.  The prosecutor took steps to minimize the effect of the statement and to redirect A.H. to talk only about her own experience, which she (properly) was permitted to do.  The district court handled the situation correctly and admonished the prosecutor to keep its witness within the bounds of permissible testimony.  We cannot find error in the denial of appellant's motion for a mistrial.

II.

This court reviews the decision to admit Spreigl evidence for abuse of discretion.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).   To properly admit Spreigl evidence, the district court must find that: (1) there is clear and convincing evidence that the defendant participated in the other offense; (2) the evidence is relevant and material to the case at hand; and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). 

Here, appellant was convicted in 1991 of criminal sexual conduct in the second degree for pinching his then-teenaged sister's breasts and nipples approximately 7 times.  The evidence was introduced by way of a stipulated statement drafted by counsel for both parties and read by the court.  The statement read:

This evidence is being offered for a limited purpose of assisting you in determining whether [appellant] committed those acts with which [he] is charged in the Complaint in this matter.  In an effort to save time and the calling of unnecessary witnesses, the parties agree that in approximately the fall of 1990, in Anoka County, when [appellant] was 18 and his sister was 14 and 15 years old, [appellant] squeezed and pinched his sister's nipples and/or breasts on approximately 7 occasions. [Appellant] is not being tried for and may not be convicted, of any offense other than the charged offenses. You were not to convict [appellant] on the basis of any occurrence during the fall of 1990.  To do so might result in unjust double punishment.

 

Appellant agrees that his guilty plea and conviction establish clear and convincing evidence that he engaged in the conduct. 

To be relevant and material, the Spreigl evidence should "be similar to the charged offense either in time, location, or modus operandi."  State v. Norris, 428 N.W.2d 61, 69 (Minn. 1988).  The district court questioned whether the prior acts were sufficiently similar to the charged acts to be admissible.  Appellant's point was that the acts against appellant's sister were done with "aggressive" intent, rather than a sexual intent.  Ultimately, the district court determined that the evidence was relevant because of the similar ages of the victims, the family setting present in both cases, and the type of conduct involved in both crimes.  The law has never required "absolute similarity between the charged crime and the Spreigl crime."  State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983).  The Spreigl crime need not be identical to the charged crime.  The second-degree criminal sexual conduct in appellant's past was close enough to the present charge of second-degree criminal sexual conduct that we find no error in its admissibility.

Finally, when deciding whether to admit[1] potentially prejudicial Spreigl evidence, the district court should consider how necessary the evidence is to the state's case.  Kennedy, 585 N.W.2d at 391-2.  And, the "final determination of the strength of the state's case should be made . . . after the state has presented all of its non-Spreigl evidence."  Id. at 392.  Here, at the close of the state's case, the prosecutor expressed the need to introduce the Spreigl evidence because the case was essentially "he-said-she-said," and there was no physical evidence to corroborate the two victims' testimony.  The prosecution argued that evidence that appellant had previously engaged in similar conduct was needed by the state to bolster its case.  This issue is close, but we conclude the district court did not err in finding the Spreigl evidence admissible. 

The stipulated Spreigl statement contained an instruction to the jury that the evidence was "offered for a limited purpose of assisting [the jury] in determining whether [appellant] committed those acts with which [appellant] is charged in the Complaint in this matter."  The statement reminded the jury that it was "not to convict [appellant] on the basis of any occurrence during the fall of 1990," and that to do so might result in unfair double punishment to appellant.  The district court repeated this warning during the jury instructions, stating "[appellant] is not being tried for and may not be convicted of any offense other than the charged offenses.  You are not to convict [appellant] on the basis of any occurrence during the fall of 1990."  Hopefully, these instructions minimized the prejudicial effect of the evidence by informing the jury of the limited purpose of Spreigl evidence.  On these facts, we cannot conclude the district court erred by allowing in Spreigl evidence.

Affirmed.

[1]  District courts are cautioned that they do not have to admit the prosecution's Spreigl evidence "simply because it was offered."  No harm is done when the court scrutinizes the offer of Spreigl.  Spreigl evidence, after all, is not evidence about the case at hand; rather, it is something about a defendant's former life.