Opinion
No. CX-01-800
Filed December 11, 2001.
Appeal from the District Court, Washington County, File No. K3004818.
Mike Hatch, Attorney General, and Doug Johnson, Washington County Attorney, Richard D. Hodsdon, Assistant County Attorney, (for respondent)
Harlan M. Goulett, (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Gregory Sawka challenges his conviction of three counts of criminal sexual conduct arguing that the district court erred by admitting Spreigl evidence and the prosecutor engaged in prosecutorial misconduct. We affirm.
DECISION I.
Appellant contends the district court erred in admitting evidence of other crimes without following procedural safeguards laid out in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (Minn. 1965). Specifically, appellant argues the district court was required to conduct a Spreigl hearing and the prosecutor was required to provide Spreigl notice. We disagree.
A reviewing court will not reverse the district court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). The district court has broad discretion in determining whether or not to require a hearing. State v. Robinson, 604 N.W.2d 355, 364 (Minn. 2000). Further, "[w]hether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court." State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985) (citation omitted).
Other-crimes evidence shall not be admitted in a criminal prosecution unless the prosecution complies with notice requirements. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). But an exception to the notice requirement exists for previously prosecuted offenses. Minn.R.Crim.P. 7.02 (2000). Here, appellant was previously prosecuted and convicted of four drug offenses.
In determining admissibility, the district court should balance the relevance of the evidence with the likelihood that the evidence will create unfair prejudice pursuant to Minn.R.Evid. 403. See State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995); see also State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992) (finding appellant's argument regarding prejudice more compelling than the argument regarding Spreigl notice where the evidence was offered to show state of mind).
Here, prior to the victim's testimony regarding appellant's criminal history, the judge instructed the jury to consider the evidence solely for the purpose of determining the witness's state of mind, and not as an indication of appellant's guilt of the charged offense before them. Then the court told the jurors, at appellant's request, the conviction was not a sex crime but was a drug-related offense, further lessening the prejudicial impact of the disclosure. See Berry, 484 N.W.2d at 18 (finding the likelihood of prejudice was lessened by the curative instructions given by the judge). We conclude the district court did not abuse its discretion in admitting the evidence.
II.
Appellant argues the prosecutor engaged in prosecutorial misconduct by failing to disclose testimony the victim would give at trial about her failed attempt to call for help from appellant's bedroom and by failing to inform appellant of a tear in the victim's underwear. We disagree.
The determination whether a prosecutor engaged in prejudicial misconduct is largely within the discretion of the district court, and we will reverse only where the misconduct, viewed in light of the entire record, is of such serious and prejudicial nature that appellant's constitutional right to a fair trial was impaired. State v. Guevara, 270 Minn. 356, 360, 133 N.W.2d 492, 495 (1965).
Here, appellant asserts the prosecutor has a continuing duty to disclose the witness's statements and changes in stories by key witnesses. Appellant cites State v. Moore, 493 N.W.2d 606, 609 (Minn.App. 1992), review denied (Minn. Feb. 12, 1993), as support for this proposition. But in that case the prosecutor knew the information. Id. The Moore court held the prosecutor must disclose information he knows about and only once the witness told the prosecutor the new information, did the prosecutor have a duty to disclose it to the defense. Id.
Here, unlike Moore, the prosecutor claimed that neither he nor the police had heard the victim's complained-of statement before, and appellant offers no evidence indicating otherwise. Nor does appellant offer evidence showing the prosecutor had information concerning the tear in the underwear. In addition, because appellant had access to the evidence prior to its use in court, he could have discovered the tear. Finally, appellant raised no objection to the testimony at the district court. This raises an inference that the comments were not prejudicial. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984); Sanderson v. State, 601 N.W.2d 219, 224 (Minn.App. 1999), review granted (Minn. Jan. 18, 2000) and appeal dismissed (Minn. Mar. 28, 2000). "Failure to object or to seek a curative instruction weighs heavily against granting the remedy of a new trial." State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997). Because appellant failed to provide any evidence showing the prosecutor knew the information and failed to disclose it, we conclude the prosecutor did not commit misconduct.