                        This opinion will be unpublished and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
                                   A14-0512


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Leslie Lindsey Treadwell,
                                      Appellant.


                                 Filed June 8, 2015
                                     Affirmed
                                 Halbrooks, Judge


                            Olmsted County District Court
                              File No. 55-CR-13-1162

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, George H. Norris,
Special Assistant Public Defender, Minneapolis, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

HALBROOKS, Judge

       On appeal from his conviction of first-degree aggravated robbery after a court

trial, appellant argues that the district court abused its discretion by (1) admitting

evidence of his second-degree murder conviction to rebut his self-defense and fabrication

claims; (2) withholding some of the records reviewed by the district court under the

procedure established in State v. Paradee; and (3) denying his motion for a new trial

based on the posttrial identification of a known eyewitness. We affirm.

                                         FACTS

       On February 18, 2013, while appellant Leslie Treadwell was driving his

acquaintance, E.W., to an appointment, the two got into a physical altercation. The

parties dispute what prompted the altercation, whether E.W. attacked Treadwell before he

grabbed her around the neck, whether he pointed a knife at her, and what happened after

Treadwell parked the car in his driveway.

       Treadwell testified that “out of the sky blue,” E.W. grabbed the steering wheel,

causing the car to swerve and “tilt[] on two wheels,” reached across the stick-shift

column, stepped on the accelerator, and tried to bite his face. Treadwell acknowledges

that he grabbed E.W. by the neck but contends that he did so in self-defense. When

Treadwell parked the car in his driveway, E.W. ran toward a nearby vehicle in which

Treadwell’s neighbor, “Snoop,” and others were seated. Treadwell testified that because

he feared for his safety, he retrieved a knife from the trunk, and E.W. became hysterical.




                                             2
      In contrast, E.W. testified that while they were driving, she casually mentioned the

word “police,” and Treadwell grabbed her phone, choked her, and pulled out a knife,

pointing it at her throat and stomach. When Treadwell parked the car, E.W. demanded

that Treadwell return her phone, and he chased her with the knife, which “looked like a

steak knife” but was “[a] lot bigger.” E.W. ran to a parked car in which Treadwell’s

neighbor and others were seated, and then flagged down a passing motorist and called

911. Treadwell ran into his home.

      Responding police officers spoke with E.W. and Treadwell, photographed E.W.’s

neck injuries, and took multiple recorded statements from her. Treadwell gave varying

accounts of the whereabouts of E.W.’s phone, including that he did not have it. But after

officers dialed E.W.’s cell number and heard the phone ringing, Treadwell retrieved it

from the zipped bag of his vacuum cleaner. Treadwell also initially denied that he had a

knife but then acknowledged that he kept a butter knife in the trunk of his car for

protection. Officers later executed a search warrant and discovered a filet-style knife in

the zipped bag of Treadwell’s vacuum cleaner, where E.W.’s phone had been found.

      The state charged Treadwell with first-degree aggravated robbery in violation of

Minn. Stat. § 609.245, subd. 1 (2012), second-degree assault in violation of Minn. Stat.

§ 609.222, subd. 1 (2012), and terroristic threats in violation of Minn. Stat. § 609.713,

subd. 1 (2012). Treadwell filed a Paradee motion, asking the district court for an

in camera review of E.W.’s mental-health records, arguing that if the records showed that

E.W. had experienced short-term memory loss or sudden fits of unprovoked violence,

this information would be material and favorable to his defense.


                                            3
       The district court granted Treadwell’s motion and, after finding no indication of

“unprovoked rage or aggression and/or short term memory loss or brief periods of

blackout,” declined to release any records. Treadwell later requested an in camera review

of records related to a 2012 emergency room visit, which the district court also granted.

Finding that a subset of these records was “arguably relevant,” the district court released

excerpts of the emergency-room notes.

       Before trial, the district court ruled that the state could introduce Spreigl evidence

that Treadwell had stabbed a friend to death in 2001. The case proceeded to a two-day

court trial, and at the close of the state’s case, the prosecutor introduced the parties’

stipulation to the facts underlying the 2001 murder. Treadwell exercised his right to

testify and called three other witnesses.

       Immediately following closing arguments, the district court found Treadwell

guilty as charged. At sentencing, Treadwell’s counsel notified the district court that he

intended to file a motion for a new trial based on newly discovered evidence, and the

district court continued the hearing. At the next hearing, the district court denied the

new-trial motion, convicted Treadwell of first-degree aggravated robbery, and sentenced

him to 93 months in prison. Treadwell now appeals his conviction.

                                      DECISION

                                             I.

       Treadwell argues that the district court abused its discretion by admitting Spreigl

evidence of his second-degree murder conviction. The state contends that the evidence




                                             4
was properly admitted to prove identity and modus operandi for purposes of rebutting

Treadwell’s claims of self-defense and victim fabrication.

      Evidence of other crimes or bad acts is characterized as “Spreigl evidence” after

the supreme court’s decision in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

The admissibility of “Spreigl evidence lies within the sound discretion of the [district]

court” and “will not be reversed absent a clear abuse of discretion.” State v. Spaeth, 552

N.W.2d 187, 193 (Minn. 1996). If the district court erred in admitting evidence, the

reviewing court determines “whether there is a reasonable possibility that the wrongfully

admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102

n.2 (Minn. 1994).

      “Evidence of another crime, wrong, or act is not admissible to prove the character

of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). But

rule 404(b) permits the introduction of such evidence to prove “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

Spreigl evidence may also be admitted to show the conduct on which the charge was

based actually occurred or to refute arguments that it was “a fabrication or a mistake in

perception by the victim.” State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993).

      Minnesota courts apply a five-factor test in determining the admissibility of

Spreigl evidence:

             (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


                                            5
               state’s case; and (5) the probative value of the evidence must
               not be outweighed by its potential prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006). If the admission of evidence of

other crimes or misconduct is a close call, it should be excluded. State v. Bolte, 530

N.W.2d 191, 197 (Minn. 1995). Here, the first three factors are uncontested. We

therefore turn to whether the district court abused its discretion by finding that the Spreigl

evidence is relevant and material to rebut Treadwell’s assertions of self-defense or

fabrication.

       Markedly Similar

       If used to demonstrate that there is a common scheme or plan, the conduct of the

prior act and the charged act “must have a marked similarity in modus operandi to the

charged offense.” Ness, 707 N.W.2d at 688. The closer the relationship between the past

offense and the charged offense, “in terms of time, place, or modus operandi, the greater

the relevance and probative value of the [Spreigl ] evidence.” Id.

       The district court found that the Spreigl crime and the charged offense were

similar because “both of these events sprang out of what would otherwise be considered

uneventful social settings that escalated to the point where Mr. Treadwell . . . brandished

a knife under a circumstance that he believed was threatening.” The district court found

that “the similarities between the offenses are classic ‘modus operandi’ evidence.”

       In State v. Smith, our supreme court held that the district court did not abuse its

discretion by admitting Spreigl evidence of a robbery two weeks earlier to show that the

defendant intentionally participated in the charged robbery, rather than firing his weapon



                                              6
in self-defense as he claimed. 541 N.W.2d 584, 589 (Minn. 1996). The same reasoning

might apply here. But we need not decide, because the state’s second basis for admitting

the Spreigl evidence, to rebut Treadwell’s claim of victim fabrication, is stronger. See

State v. Washington, 693 N.W.2d 195, 203 (Minn. 2005) (stating that “evidence of modus

operandi was relevant because [the defendant] claimed that [the alleged victim] had

fabricated her claims to retaliate” against the defendant).

       Minnesota courts have repeatedly upheld the admission of Spreigl evidence on the

issue of whether the disputed act occurred. Wermerskirchen, 497 N.W.2d at 241. Here,

one of the primary disputed factual issues was whether, after an offhand comment by

E.W., Treadwell threatened and then chased her with a knife. By offering a prior incident

in which Treadwell unexpectedly pulled a knife on a friend in an ordinary social setting,

the state sought “to complete the picture of defendant, to put his current conduct in its

proper and relevant context, not to paint another picture.” Id. at 242-43.

       Treadwell emphasizes the dissimilarities between the 2001 offense and the

charged offense. While the place and modus operandi of the alleged offenses here are not

identical, the standard is not “identical” but “markedly similar.” Ness, 707 N.W.2d at

689. Crimes that are of the “same generic type” are not markedly similar. State v. Clark,

738 N.W.2d 316, 346-47 (Minn. 2007) (quotation omitted) (finding that the prior crime

was not markedly similar to the charged offense where the crimes were “relatively

remote in time” and the two incidents did not show a “distinctive modus operandi”). But

“[a]bsolute similarity between the charged offense and the Spreigl [crime] is not

required.” State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992).


                                              7
       Here, the Spreigl crime and the charged offense occurred in the same general area,

involved vehicles, and involved Treadwell threatening a friend with a knife under

circumstances that escalated quickly from an otherwise uneventful social interaction. In

the Spreigl crime, after departing from a visit at a friend’s home, Treadwell had difficulty

starting his truck and getting it to run well. After Treadwell worked on the truck in the

friend’s driveway for some time, the friend asked Treadwell to leave because his children

were trying to sleep. The two got into a physical altercation, and Treadwell stabbed his

friend to death on the front steps. Treadwell contended at his murder trial that he had

acted in self-defense, but the state introduced evidence that Treadwell had admitted that

he had stabbed his friend because, “unlike others, [he] would not ‘bow down’ and eat

‘humble pie.’”

       Treadwell also emphasizes the temporal distance between the 2001 murder and the

alleged 2013 offense. Minnesota law recognizes that bad acts that are remote in time

may still be relevant if, as here, the defendant was convicted of the prior bad act and he

spent a significant part of the interim period incarcerated. Ness, 707 N.W.2d at 689.

When a defendant has been incarcerated, 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.

Because Treadwell was incarcerated for ten years in connection with the 2001 murder,

the October 2001 murder is not remote in time from the February 2013 offense. See id.

       The district court provided a well-reasoned basis for admitting the 2001 offense as

Spreigl evidence to rebut a claim of fabrication. But to decide whether it was properly




                                             8
admitted, we must address its probative value in light of the potential for unfair prejudice.

Ness, 707 N.W.2d at 685.

       Probative Value Versus Unfair Prejudice

       In balancing the probative value of the Spreigl evidence against its potential for

unfair prejudice, we must address the state’s need for the evidence. Id. at 690. The

district court ultimately found that E.W.’s trial testimony was “totally credible,” that her

statements were consistent, and that the evidence generally lined up with her version, in

contrast with Treadwell’s version, which was inherently not credible. On the disputed

issue of whether E.W. fabricated the story, the state’s case was therefore strong.

       In assessing the potential for unfair prejudice, the fact that Treadwell’s trial was to

the court and not to a jury is important. See State v. Burrell, 772 N.W.2d 459, 467

(Minn. 2009) (“The distinction between a jury trial and a bench trial is important. The

risk of unfair prejudice to [the defendant] is reduced because there is comparatively less

risk that the district court judge, as compared to a jury of laypersons, would use the

evidence for an improper purpose or have his sense of reason overcome by emotion.”).

       Aside from the lower risk of the district court using the evidence for an improper

purpose, we are able to review the written findings made by the district court in support

of its guilty verdict. See Minn. R. Crim. P. 26.01, subd. 2 (requiring the district court to

make written findings in cases tried without a jury). Here, the written findings include no

reference to the 2001 offense.       Treadwell does not argue that the evidence was

insufficient to convict him or that the written findings were deficient. We therefore

conclude that the potential for unfair prejudice was low.


                                              9
       We are asked to decide whether the district court abused its discretion by

admitting Spreigl evidence when the state’s need was low, but because of procedural

reasons the risk of unfair prejudice was also low. In the context of this particular case,

we need not determine whether the other-acts evidence was erroneously admitted,

because even if it was, there is no reasonable possibility that the evidence significantly

affected the verdict. See Ness, 707 N.W.2d at 690. Because the potential for unfair

prejudice is lower in a court trial, and having reviewed the findings in support of the

guilty verdict, we conclude that any error here did not significantly affect the verdict.

                                             II.

       Treadwell argues that the district court abused its discretion by withholding some

of E.W.’s mental-health records after an in camera review conducted under the procedure

established in State v. Paradee, 403 N.W.2d 640 (Minn. 1987). Appellate courts review

the limits placed by the district court on the release and use of protected records for an

abuse of discretion. State v. Evans, 756 N.W.2d 854, 872-73 (Minn. 2008).

       “Criminal defendants have a broad right to discovery in order to prepare and

present a defense.” State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012) (citing

Paradee, 403 N.W.2d at 642). But when a defendant requests private records that are

protected by legislation such as the Minnesota Government data Practices Act, the district

court should conduct an in camera review to determine “what if any of the information in

the records might help the defense.” Paradee, 403 N.W.2d at 642. The district court

should balance the privacy rights of the victims or witnesses against the defendant’s right

to prepare a defense. Id.


                                             10
       The mental-health records sought here are protected by the Minnesota

Government Data Practices Act and other legislation. See Minn. Stat. §§ 13.384, subds.

1(b), 3 (medical data are private), .46, subds. 1(d), 7 (mental-health data are private data

on individuals) (2012); see also Minn. Stat. § 595.02, subd. 1(d), (g), (i) (2012)

(providing    for   physician/patient,    therapist/patient,   and   chemical-dependency

counselor/patient privileges).

       To be entitled to an in camera review, the defendant must establish a “‘plausible

showing’ that the information sought would be ‘both material and favorable to his

defense.’” State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quoting Pennsylvania v.

Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989, 1002 n.15 (1987)). The district court found

that Treadwell had made a “‘plausible showing’ that information in the alleged victim’s

psychological records ‘would be both material and favorable to his defense’” because

Treadwell had “described specific conduct on the victim’s part that might be mental

illness symptoms.” Given the narrow scope of the district court’s in camera review and

its conformity to the defense’s self-defense theory of the case, we conclude that the

district court did not abuse its discretion by granting Treadwell’s motion.

       After reviewing the records, the district court determined that a subset of these

records were “arguably relevant” and released that subset. Treadwell now argues that the

district court abused its discretion by failing to disclose the entirety of E.W.’s mental-

health records.

       When an appellant asserts that the district court abused its discretion by failing to

disclose records screened under the procedure established in Paradee, we conduct our


                                            11
own review of the confidential records. See Hokanson, 821 N.W.2d at 350. Having

reviewed the confidential records at issue here, we conclude that the district court

performed a thorough examination, looking for anything indicating that E.W. exhibited

blackouts, short-term memory loss, or unprovoked aggression. The withheld records

contain no reference to any behaviors that would support Treadwell’s argument that E.W.

was the initial aggressor. If anything, the district court released more records than

required. We therefore conclude that the district court did not abuse its discretion by

declining to release additional records.

                                               III.

       Treadwell argues that the district court abused its discretion by denying his motion

for a new trial based on newly discovered evidence, namely the posttrial identification

and interview of an eyewitness previously known to Treadwell only as “Snoop, my

neighbor downstairs.”

       On motion, a district court may grant a new trial “on the issue of guilt . . . [based

on n]ewly discovered material evidence, which with reasonable diligence could not have

been found and produced at the trial.” Minn. R. Crim. P. 26.04, subd. 1(1). A defendant

must establish:

              (1) that the evidence was not known to him or to his counsel
              at the time of trial, (2) that his failure to learn of it before trial
              was not due to the lack of diligence, (3) that the evidence is
              material . . . , and (4) that the evidence will probably produce
              either an acquittal at a retrial or results more favorable to the
              petitioner.




                                               12
State v. Hawes, 801 N.W.2d 659, 675 (Minn. 2011) (quotation omitted). This test applies

to newly available evidence as well. State v. Warren, 592 N.W.2d 440, 450 (Minn.

1999). Appellate courts review the denial of a motion for a new trial for an abuse of

discretion. State v. Green, 747 N.W.2d 912, 917 (Minn. 2008).

       The district court denied Treadwell’s new-trial motion from the bench, observing

that the defense could have taken steps to determine Snoop’s identity earlier. The district

court also found that even if the purported testimony had been presented at trial, this

additional evidence would not have created reasonable doubt or resulted in a different

verdict. As the district court noted, its findings focused on what happened within the

confines of Treadwell’s car, the new evidence shed little light on those events, and the

substance of the new evidence was inconsistent in key respects with Treadwell’s own

testimony.

       We conclude that the district court did not abuse its discretion by finding that

Treadwell could have identified his “neighbor downstairs” earlier. We further conclude

that the district court did not abuse its discretion by finding that the “newly discovered

evidence” would not have resulted in a different verdict. The district court acted well

within its discretion by denying Treadwell’s motion for a new trial based on newly

discovered evidence.

       Affirmed.




                                            13
