Opinion
No. A04-118.
Filed December 28, 2004.
Appeal from the District Court, St. Louis County, File No. K3-02-301234.
Mike Hatch, Attorney General, and Alan L. Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, (for appellant)
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Robert Dupuis challenges his conviction of gross misdemeanor indecent exposure, arguing that (1) the evidence is not sufficient to support the conviction; (2) the admission of Spreigl evidence constitutes reversible error; and (3) the prosecutor's comments during his closing argument constitute misconduct sufficient to warrant reversal. Because the evidence at trial was sufficient to support appellant's conviction and the trial court did not commit reversible error by admitting the Spreigl evidence, we affirm. We decline to reach the merits of appellant's prosecutorial misconduct argument because this issue was not preserved for appeal.
FACTS
On August 14, 2002, Michelle Olson reported to the police that appellant Robert Dupuis was sitting without pants on in front of his open front door with his legs spread apart and his hand between his legs as she passed by his house. She assumed he was masturbating. Appellant denied Olson's allegation. The state charged appellant with gross misdemeanor indecent exposure.
Appellant was charged with gross misdemeanor indecent exposure under subdivision 2(2) of the indecent exposure statute because he had previously been convicted of violating subdivision 1. See Minn. Stat. § 617.23, subd. 2(2) (2002).
At trial, Olson testified that her job as a temporary mail carrier for the U.S. Postal Service in Chisholm, Minnesota, requires her to pass by appellant's house in order to deliver the mail. In August of 2001, appellant watched Olson walk down the street to deliver mail and then stood naked in his open front door with his hands on his genitals when she drove back past his house.
On August 14, 2002, Olson parked two houses down from appellant's house, got out to deliver mail, and heard appellant's door open. Olson did not see appellant leave his house, and she continued to deliver mail down the rest of the block. Olson testified that appellant is aware that she has to drive past his house in order to get to her next parking spot. Olson passed appellant's house driving five to ten miles per hour, and looked up to make sure he was not exposing himself, as he had in the past. As she passed appellant's house, she saw him "sitting on something with no pants on with his legs spread apart and his hand there between his legs," right inside the open doorway. Olson assumed appellant was masturbating, though she did not see his hand moving. Olson testified that it was not possible that appellant could have been wearing white shorts that day, that he was holding a soda can or something other than his genitals in his hand, or that he was tying his shoes.
Vern Manner, a Chisholm police lieutenant, testified that he went to appellant's house to speak with him the day Olson reported that appellant had exposed himself. Manner testified that appellant's couch was approximately three feet from his front door, and that the screen door was open. Manner testified that appellant acknowledged that he saw Olson, but denied being naked or having masturbated when she passed by his house. Appellant told Manner he learned his lesson from the last time and that he was sitting on the couch putting on his shoes when Olson drove by. Manner testified that appellant was wearing a gray T-shirt and white jean shorts. Manner later asked Olson if it was possible that appellant was wearing white jean shorts, and she said absolutely not.
Kari Buffetta, another temporary mail carrier for the U.S. Postal Service, testified that twice in July and August of 2001 appellant saw her walk by his house to deliver mail, and then opened his door and stood naked as she returned past his house. Buffetta said she saw appellant masturbating on the first occasion.
Appellant testified and admitted to the three prior incidents involving Olson and Buffetta, but denied masturbating in front of Olson on August 14, 2002. Instead, appellant said he was sitting on the edge of his couch putting on his shoes when he saw Olson drive by. Appellant testified that his couch was six feet from the doorway and 65 feet from the middle of the street. Appellant admitted that he has a prior felony conviction for fleeing a peace officer.
The jury found appellant guilty. This appeal follows.
DECISION I
Appellant argues that the evidence is insufficient to support his conviction. We disagree.
When reviewing a sufficiency-of-the-evidence claim, this court's task is limited to "a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The evidence is sufficient if "the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Absent special circumstances, the reviewing court will uphold the jury's verdict if there is evidence from which the jury could reasonably infer the existence of all the elements of the crime. Id. The reviewing court must assume that the jurors believed the state's witnesses and disbelieved the defendant's witnesses. State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000).
The Minnesota indecent exposure statute provides:
A person who commits any of the following acts in any public place, or in any place where others are present, is guilty of a misdemeanor:
(1) willfully and lewdly exposes the person's body, or the private parts thereof;
(2) procures another to expose private parts; or
(3) engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision.
Minn. Stat. § 617.23, subd. 1 (2002).
Here, the record contains sufficient evidence from which the jury could reasonably conclude that appellant willfully and obscenely exposed his body, or that he engaged in open or gross indecent or obscene behavior. According to Ms. Olson's testimony, appellant was nude, in his open doorway, with his legs spread and his hand on his genitals. See State v. Prince, 296 Minn. 490, 491, 206 N.W.2d 660, 660 (1973) (holding that there was sufficient evidence to support a conviction for indecent exposure where the defendant stood completely naked in the doorway of his home and attracted the attention of three passing high school girls by saying, "Hi, girls."). Furthermore, Olson assumed appellant was masturbating. See State v. Stevenson, 656 N.W.2d 235, 241 (Minn. 2003) (holding that evidence supported conviction of indecent exposure where defendant masturbated in his truck parked next to a public sidewalk). Regardless of whether the jury found that appellant was masturbating, the evidence supports the conviction of indecent exposure.
Additionally, appellant had the requisite intent to be indecent. A person commits indecent exposure when the charged conduct was committed with the deliberate intent of being indecent or lewd. Stevenson, 656 N.W.2d at 240. In Stevenson, the Minnesota Supreme Court held that it was reasonable to infer the defendant's intent to be indecent where it was "almost certain" that he would be observed masturbating in his truck given that he was parked in a public park. Id.; cf. State v. Peery, 224 Minn. 346, 353-54, 28 N.W.2d 851, 855 (1947) (holding that the evidence was insufficient to sustain a finding that the defendant's exposure was with the deliberate intent of indecency where the defendant was observed through the windows in his corner, college dormitory room from the public sidewalk unclothed and on one occasion raising his window shade). "Ordinary acts or conduct involving exposure of the person as the result of carelessness or thoughtlessness do not in themselves constitute indecent exposure." Id. at 351, 28 N.W.2d at 854. Here, appellant's exposure was not the result of carelessness. He propped his front door open in the middle of the day, sat on his couch three feet from the front door with his legs spread and without pants, and touched himself when he knew Olson would pass in front of his house.
Additionally, the record contains sufficient evidence from which the jury could reasonably have concluded that appellant was in a public place or in a place where others were present. Appellant was arguably in public, despite being in his house, because he was sitting three feet from his open front door facing the street while he waited for Olson to return. Olson was "present" in the sense that she had to pass by appellant's front door where the conduct was "certain to be observed." See Stevenson, 656 N.W.2d at 240-41. We therefore conclude that there is sufficient evidence in the record to support the jury's verdict.
II
Appellant next argues that the trial court erred by admitting Spreigl evidence. Appellant concedes that Olson's testimony regarding a prior exposure was properly admitted to show motive, intent, absence of mistake, and modus operandi. But appellant argues that, after evidence of one prior bad act was admitted, the state's case was considerably strengthened. Therefore, according to appellant, admitting Buffetta's testimony of two additional exposures was cumulative and the potential for unfair prejudice outweighed the probative value. We disagree.
Evidence of other crimes or bad acts is characterized as " Spreigl evidence." State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). A reviewing court should not reverse the district court's admission of Spreigl evidence unless an abuse of discretion is clearly shown. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). Minn. R. Evid. 404(b) allows a district court to 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. See also Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002).
In determining the relevance and materiality of Spreigl evidence under the second prong of the test, the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi. Pierson, 637 N.W.2d at 580. "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." State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991); see also State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) (stating that evidence of other crimes is "admissible only if the trial court finds the direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate, and that it is necessary to support the state's burden of proof"). The trial court "generally is in a better position than an appellate court to evaluate the reasonableness of and need for other-crime evidence in a particular case." State v. Bolte, 530 N.W.2d 191, 197 n. 2 (Minn. 1995).
Here, all three prongs of the test are met. The first prong is met because appellant admitted to the prior bad acts. The second prong is satisfied because evidence of appellant's two prior acts of exposing himself to Buffetta was not unduly cumulative, and because appellant attacked Olson's credibility at trial by implying that she could not accurately see 65 feet to his front door while driving. Thus, Buffetta's testimony went directly to appellant's intent, absence of mistake, and modus operandi. Furthermore, the two prior exposures are sufficiently similar to make them relevant to the present offense. See State v. Cogshell, 538 N.W.2d 120, 124 (Minn. 1995) (holding it does not necessarily matter that the other crime is not a unique or "signature" crime as long as "the [other] crime is sufficiently or substantially similar").
Finally, the third prong for admission of Spreigl evidence is satisfied because the probative value of the prior exposures was not outweighed by the risk of unfair prejudice to appellant. The district court correctly found that the need for Spreigl evidence was high because the state's case was weak on the issues of intent and absence of mistake. Considering the similarities between the offenses, the probative value of the evidence was substantial. Further, the district court instructed the jury on the limited use of the Spreigl evidence both before the evidence was presented and during the final instructions. See State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992) (stating cautionary instructions reduced any unfair prejudicial effect of Spreigl evidence). Under these circumstances, the trial court did not abuse its discretion by admitting the Spreigl evidence.
III
Finally, appellant argues that the prosecutor committed prejudicial misconduct in his closing argument when he argued that appellant was masturbating when Olson drove by his house. Appellant argues that the evidence does not support the contention that he was masturbating. We decline to reach the merits of appellant's argument because appellant did not object to the prosecutor's comments during the closing argument, and he therefore waived the challenge on appeal. See State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997) ("[A] defendant is deemed to have waived the right to raise an issue concerning the prosecutor's final argument if the defendant fails to object or seek cautionary instructions.").