                          This opinion will be unpublished and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
                                     A15-1650

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Alfredo Concepcion,
                                       Appellant.

                                 Filed October 31, 2016
                                        Affirmed
                                    Connolly, Judge

                              Ramsey County District Court
                                File No. 62-CR-14-9635


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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Renée Bergeron, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Ross,

Judge.
                           UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges his conviction of criminal sexual conduct, arguing that the

district court abused its discretion by not removing two jurors, by admitting Spreigl

evidence of a 2006 crime, and by excluding evidence that men who shared a house with

appellant and the victim were convicted sex offenders. Because we see no abuse of

discretion in the decisions of the district court under applicable law, we affirm.

                                          FACTS

       In 2006, appellant Alfredo Concepcion sexually abused C.C., a woman with whom

he was in a relationship. He was convicted of a felony and completed sex-offender

treatment.

       In 2014, appellant married and sexually abused L.H. in a manner similar to that in

which he had abused C.C. He was charged with third-degree criminal sexual conduct and

felony domestic assault.

       At appellant’s jury trial, C.C. testified about appellant’s 2006 sexual abuse of her.

The jury found appellant guilty as charged and also found five aggravating sentencing

factors. Appellant was sentenced to 180 months in prison.

       He challenges his conviction, arguing that two of the jurors were biased and should

not have been seated, the Spreigl evidence of his 2006 crime should not have been

admitted, and evidence that the men with whom appellant and L.H. shared a house were

sex offenders should not have been excluded.




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                                      DECISION

1.     The Jurors

       As a threshold matter, appellant did not use his peremptory challenges to oppose the

seating of jurors P. and V.S., whom he now claims were biased. He did request to strike

13 jurors, including P. and V.S., “for cause”; the district court struck the other 11, but not

P. and V.S.

                      We review the district court’s denial of a challenge for
              cause for an abuse of discretion. Our review of the district
              court’s determination of juror impartiality is especially
              deferential. That determination depends largely on the
              prospective juror’s demeanor, and demeanor plays a
              fundamental role not only in determining juror credibility, but
              also in simply understanding what a potential juror is saying.
              In contrast to appellate review of a cold transcript, the district
              court stands in the best position to hear the juror’s testimony,
              observe her demeanor, and evaluate her ability to be impartial.
                      ....
                      . . . [A] party may seek to have a prospective juror
              removed if the juror’s state of mind—in reference to the case
              or to either party—satisfies the court that the juror cannot try
              the case impartially and without prejudice to the substantial
              rights of the challenging party. Put differently, the challenging
              party has the burden of proving that the juror expressed a state
              of mind demonstrating actual bias towards the case or either
              party.
                      To establish that the prospective juror expressed actual
              bias, the challenging party must identify more than the mere
              existence of any preconceived notion as to the guilt or
              innocence of an accused. Rather, the challenging party must
              show that the juror exhibited strong and deep impressions that
              would prevent [the juror] from laying aside [his or] her
              impression or opinion and rendering a verdict based on the
              evidence presented in court.
                      ....
                      . . . In determining whether a prospective juror
              expressed actual bias, other courts have examined the juror’s
              challenged answer within the context of the entire voir dire


                                              3
              testimony to understand what the juror meant by the answer.
              We agree that a juror’s answer must be viewed in context to
              determine whether it demonstrated actual bias.

State v. Munt, 831 N.W.2d 569, 576-78 (Minn. 2013) (concluding that a juror had not

expressed actual bias) (emphasis added) (quotations and citations omitted).

       But a prospective juror who has expressed actual bias may be rehabilitated and then

seated on the jury. “We consider a juror to be rehabilitated if he or she states unequivocally

that he or she will follow the district court’s instructions and will set aside any preconceived

notions and fairly evaluate the evidence.” State v. Fraga, 864 N.W.2d 615, 623 (Minn.

2015) (citations and quotation omitted).

       Juror P.

       Prior to jury selection, prospective jurors were given a questionnaire that asked,

among other things, if they thought someone previously convicted of a sex offense would

be more likely than other people to commit another sex offense. On this questionnaire, P.

wrote “once a predator, always a predator.” Appellant argues that P. expressed actual bias

and was not properly rehabilitated.

       But P.’s questioning by the district court demonstrates both that P. did not have

actual bias towards appellant as someone with a prior sex-offense conviction and that P.

would follow the district court’s instructions to “set aside any preconceived notions and

fairly evaluate the evidence.” Id.

       In reference to his comment on the questionnaire, the district court asked P., “[A]re

you going to be able to set aside that feeling [of ‘]once a predator, always a predator[’] and

listen to the facts and decide the case just on what you hear or is that going to be always


                                               4
on your mind?” P. answered, “I can follow instructions. It will be okay.” Appellant’s

counsel then questioned P. about the disparity between P.’s questionnaire statement and

his confidence that he could set aside his feelings. P. explained that the questionnaire had

asked for his opinion, which he gave, but the district court’s question asked for his response

to an instruction, and he thought he could follow the instruction.

       Appellant’s counsel also repeatedly questioned P. as to whether the fact that his

girlfriend had been sexually assaulted about a year ago would affect his decision.1

              Counsel:      Can you sit here and say that you hundred
                            percent would be able to set any similar
                            allegations [aside]?
              P.            Like I said . . . before, I really feel as if . . . I could
                            be fair.
              Counsel:      . . . [G]iven the fact that you fairly recently went
                            through this with somebody really close to you
                            can you really say for one hundred percent
                            certain that you could set that experience aside
                            and those feelings and emotions aside?
              P.            I believe I can.
              Counsel:      Hold them at bay and can set them aside?
              P.            I believe I can.




1
  Appellant also says that P. should be deemed to have an implied bias because P. did not
mention his girlfriend’s assault on the questionnaire, which shows that P. would be unable
to set this event aside when acting as a juror, and argues that this is an “extreme” situation
to which the implied-bias doctrine should be applied. See Minn. R. Crim. P. 26.02, subd.
5 (1) (providing 11 grounds for which a juror may be challenged for cause). Appellant
acknowledges that the Minnesota Supreme Court has repeatedly declined to apply the
implied-bias doctrine because it has not found an extreme situation warranting its
application. See, e.g., Fraga, 864 N.W.2d at 622-23 (declining to extend the doctrine to
situation in which the juror knew of the defendant’s prior conviction). P.’s repeated
assertions that he would be able to set the incident aside defeat appellant’s argument and
do not provide a basis for this court to extend the application of the implied-bias doctrine.

                                                5
The state’s counsel also asked P. if he understood that the facts in his girlfriend’s case were

probably entirely different from the facts in this case, to which P. answered, “Absolutely,

I understand that,” and P. answered, “Yes,” when asked if he was “going to be able to judge

the case just on the facts here without being influenced by what happened [with] his

girlfriend.”

       Appellant does not “show that the juror [P.] exhibited strong and deep impressions

that would prevent [him] from laying aside [his] impression or opinion and rendering a

verdict based on the evidence presented in court,” see Munt, 831 N.W.2d at 577, or that P.

did not “state[] unequivocally that he . . . will follow the district court’s instructions and

will set aside any preconceived notions and fairly evaluate the evidence.” See Fraga, 864

N.W.2d at 623.

       Juror V.S.

       Appellant argues that juror V.S. expressed actual bias and was not rehabilitated. See

id.; Munt, 831 N.W.2d at 576-78. But, after V.S. explained that he had been a witness in

a sex-abuse case brought against a teacher in his high school about 24 years ago, the district

court asked him, “[I]s there anything about that case that brings up signals or whistles or

whatever that . . . [y]ou can’t be fair in this case?” V.S. interrupted the question with “Not

really” and replied “No” when the question was finished. The district court then asked him

for his view on whether someone who had been previously convicted of a sex offense was

likely to commit the same offense again. When asked if he could set aside his knowledge

of a first offense and “listen to the facts of this case,” V.S. said he would “find it difficult.”

The district court then asked, “[I]f I were to give you some jury instructions on how to deal


                                                6
with the previous [offense,] how to handle it in relation to the new case[,] would you be

able to follow my new jury instructions?” V.S. answered, “Yes.”

       When appellant’s counsel questioned V.S., V.S. said he would do his “absolute

best” to be fair and impartial but could not say “one hundred percent I can be fair and

impartial here.” The state’s counsel then told V.S. that some people “[who had been]

revictimized or something” were “just not appropriate to sit on a jury like this” but other

people “are going to do everything they can to put it [i.e., what happened to them] aside

[and] listen to the judge and evaluate the evidence” and asked V.S. which group he was in.

V.S. said, “I think if the judge instructs me that’s what I’m willing to follow” and agreed

that he was “a rule follower kind of guy.” If V.S. did demonstrate actual bias, he, like P.,

indicated that he had been rehabilitated and would follow the district court’s instructions.

We conclude that, under our appropriate standard of review, the district court did not abuse

its discretion in declining to strike P. and V.S. for cause.

2.     Spreigl Evidence

       The admission of Spreigl evidence is reviewed for an abuse of discretion. State v.

Ness, 707 N.W.2d 676, 685 (Minn. 2006). C.C. testified about appellant’s sexual abuse of

her in 2006.

       Both C.C. and L.H. testified that appellant watched pornography, became sexually

aggressive, and then raped them anally. The prosecutor said that C.C.’s evidence “[was]

not being offered for propensity or to say [‘]he did it then so he must have done it now[’]”

but rather to show that appellant “has a thing with watching pornography, being sexually

aggressive, and then raping the women that he’s with especially anally because that’s what


                                               7
he does.” (Emphasis added). Appellant claims that “has a thing” means “has a character

trait” and argues that C.C.’s evidence was offered for the purpose of showing that appellant

has a propensity to commit violent rape, not to establish modus operandi. But the testimony

concerned appellant’s acts, not his character: he committed the same sequence of acts with

each woman, and that sequence was his modus operandi.

       Appellant also argues that C.C.’s evidence “had little or no probative value as it did

not establish a common scheme or plan.” “[E]vidence of other crimes . . . may be admitted

only for limited, specific purposes. Those purposes include showing . . . a common scheme

or plan.” Id. at 685.

                     The use of Spreigl evidence to show a common scheme
              or plan has been endorsed repeatedly, despite the particular risk
              it poses for unfair prejudice. . . . The exception evolved . . . to
              embrace evidence of offenses which, because of their marked
              similarity in modus operandi to the charged offense, tend to
              corroborate evidence of the latter. . . .
                     . . . [T]he closer the relationship between the other acts
              and the charged offense, in terms of time, place, or modus
              operandi, the greater the relevance and probative value of the
              other-acts evidence and the lesser the likelihood that the
              evidence will be used for an improper purpose. . . . [T]he
              common scheme or plan exception includes evidence only of
              offenses that have a marked similarity in modus operandi to the
              charged offense.

Id. at 687-88. Appellant argues that his offense with C.C. was not close in time or place,

having been committed in 2006 in St. Francis, as opposed to in 2014 in St. Paul. But the

offense must have a close relationship “in terms of time, place, or modus operandi” and it

is “marked similarity in modus operandi to the charged offense” that is corroborative. Id.

(emphasis added).



                                              8
       The jury heard from both L.H. and C.C. that: (1) appellant had been living with

them before the abuse occurred; (2) the abuse occurred after appellant had been watching

pornography; (3) appellant forcibly anally penetrated them, then orally penetrated them;

(4) appellant closed off their airways so they could not breathe during the oral penetration;

and (5) they vomited as a result of the oral penetration. Appellant argues that the offenses

were not similar because C.C. said he handcuffed her while L.H. did not allege the use of

handcuffs or restraints and appellant was on drugs when he abused C.C. but not when he

abused L.H. But it is not necessary that the acts, or the circumstances surrounding them,

be identical or entirely similar. State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998).

       Appellant also argues that there were differences between C.C. and L.H.: L.H. was

his wife but C.C. was not, and L.H. had a motive to be identified as a victim of violence

against women—i.e., acquiring legal status for herself and her children—while C.C. did

not. But it is similarity of the defendant’s acts, not similarity of the victims, that is relevant

to the admissibility of the evidence. Evidence of appellant’s sexual abuse of C.C. was

admissible as probative of a common scheme or plan of appellant’s abuse of women with

whom he has a domestic relationship.

       Moreover, as the law requires, the jury was instructed as to the purpose of C.C.’s

evidence both when the evidence was admitted and at the conclusion of the trial.

                      As I told you at the time this evidence was offered it was
               admitted for the limited purpose of assisting you in
               determining whether [appellant] committed those acts with
               which [he] is charged in the complaint. This evidence is not to
               be used as proof of the character of [appellant] or that
               [appellant] acted in conformity with such character.



                                                9
                     [Appellant] is not being tried for and may not be
              convicted of any offense other than charged offenses. You are
              not to convict [appellant] on the basis of any occurrence on
              April 1, 2006, in St. Francis, Minnesota. To do so might result
              in unjust double punishment.
                     The evidence concerning a prior conviction of
              [appellant] is admitted only for your consideration in deciding
              whether [he] is telling the truth in this case. You must not
              consider this conviction as evidence of [appellant’s] character
              or conduct except as you may think it reflects on believability.

(Emphasis added.) Jurors are presumed to follow the district court’s instructions. State v.

Miller, 573 N.W.2d 661, 675 (Minn. 1998). The explicit instructions as to how the jurors

could use C.C.’s testimony defeat appellant’s final argument that the prejudicial effect of

the incident with C.C. outweighed its probative value. See Ness, 707 N.W.2d at 686 (listing

this factor among those the district court must consider prior to admitting Spreigl

evidence). Appellant argues that, because his prior offense was criminal sexual assault, it

should not have been admitted because criminal sexual assault “is ‘hugely’ prejudicial with

a jury—more prejudicial than evidence of other prior criminal offenses.” But he offers no

support for the implication that criminal sexual assault is ipso facto inadmissible as Spreigl

evidence.

       The district court did not abuse its discretion in admitting evidence of appellant’s

prior sexual-assault conviction.

3.     Exclusion of Evidence

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden




                                             10
of establishing that the [district] court abused its discretion and that appellant was thereby

prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

       The district court granted the state’s motion to exclude evidence that the men who

lived in the house with appellant and L.H. and who were witnesses at appellant’s trial were

sex offenders. Appellant argues that this was an abuse of discretion because it deprived

him of his right to present a complete defense: the evidence, if admitted would have

impeached L.H.’s statement that she did not know appellant had a prior sexual conviction,

shown that one of the witnesses against appellant was trying to have his own relationship

with L.H., and demonstrated that appellant locked L.H. in their bedroom to protect her, not

to isolate her, from the other men in the house.      But evidence that the witnesses were

sexual offenders would not have shown that L.H. knew they were sexual offenders, and

the witness appellant claimed sought a sexual relationship with L.H. testified that he did

not have sexual feelings for L.H. Finally, the state agreed the evidence showed that L.H.

was not locked into her bedroom, although others were locked out while she was in it, so

evidence explaining why appellant locked her in was not relevant. The district court did

not abuse its discretion by excluding evidence that the other male residents of the house

where appellant and L.H. lived were sexual offenders.

       Affirmed.




                                             11
