                          This opinion will be unpublished and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
                                     A15-0821

                                    State of Minnesota,
                                        Respondent

                                            vs.

                                   James Lamar Davis,
                                       Appellant.

                                   Filed May 31, 2016
                                        Affirmed
                                       Ross, Judge
                                 Reyes, Judge, dissenting

                              Hennepin County District Court
                                File No. 27-CR-14-11916

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,

Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       A jury heard evidence that James Davis is a member of a Minneapolis street gang

and that he, accompanied by two of his gang allies, confronted and shot two men affiliated

with a rival gang. The jury found Davis guilty of two counts of attempted intentional

second-degree murder for the benefit of a gang. Davis argues on appeal that we should

overturn his conviction on four grounds: (1) the district court should not have admitted

evidence of his prior bad acts; (2) the properly admitted evidence is insufficient to establish

beyond a reasonable doubt that he shot the two victims, that he intended to cause their

deaths, or that his conduct toward one of them was intended to benefit a gang; (3) the

district court failed to instruct the jury on accomplice testimony; and (4) the prosecutor

made statements that constitute misconduct. We hold that the district court did not abuse

its discretion either by admitting the bad-acts evidence or in its jury instructions, that the

evidence supports each element of Davis’s conviction, and to the extent the prosecutor’s

statements crossed the line, they did not affect Davis’s substantial rights because they did

not influence the verdict.

                                           FACTS

       K.W. and C.B. left their jobs at Target Field at about 3:00 on an April 2014 morning,

and they encountered three men outside. The three men had been waiting. They wore

hooded sweatshirts with the hoods partially obscuring their faces. One of the men drew a

handgun and fired multiple shots, striking K.W. in the abdomen and C.B. in the spine,

paralyzing him.


                                              2
       K.W., a former member of the “Taliban” street gang, later told police that the

shooter was James Davis, a member of the “1-9s” street gang. The 1-9s gang rivaled the

Taliban gang in “wild, wild west” fashion. As K.W. described it, “We’re killing each

other.” K.W. also identified Davis from a photo array, and he named another man, J.M.,

as having been another of the three hooded attackers.

       The state charged Davis and J.M. with two counts of second-degree attempted

murder for the benefit of a gang. The district court severed the cases to try the two men

separately. This appeal concerns only Davis’s case.

       The shooter’s identity was the primary question at Davis’s trial. The state announced

its intent to offer prior-bad-acts (Spreigl) evidence that Davis was the shooter in a previous

gang-related retaliatory shooting that occurred in 2010 beside Lake Calhoun, where Davis

allegedly shot and killed a different Taliban gang member while K.W. stood beside the

victim. At the time of Davis’s trial, Davis had not been charged in that shooting.

       The district court conducted a hearing after which it decided that clear and

convincing evidence established that Davis participated in the Lake Calhoun shooting.

Sergeant Gerry Wallerich testified that Davis is a known member of the 1-9s gang and that

K.W. was a member of the rival Taliban gang. The sergeant detailed the 2010 Lake

Calhoun shooting and testified that, two years after that shooting, N.P. (who was an

eyewitness to the shooting) identified Davis “as a party that looked similar, especially with

the nose and other characteristics” to the shooter. He said additionally that K.J. overheard

Davis confess to the shooting. And he testified that Davis told him that he had his cellular

telephone with him the night of the shooting, and cell-tower data established that Davis’s


                                              3
phone was “right next to the murder scene.” Sergeant Wallerich said that M.M., a 1-9 gang

member and known gang associate, told him that Davis had admitted to the Lake Calhoun

shooting, and another 1-9 gang member, D.H., said the shooting was to retaliate for a prior

shooting that D.M., the Lake Calhoun victim, was involved in.

       K.W. testified at trial, retreating from his post-shooting identification of Davis as

the Target Field shooter. He said that although he had initially told police that Davis was

the shooter, he believes he was unable to see faces. He claimed that his identification of

Davis as the shooter had resulted from being told that J.M. was one of the attackers and

that Davis was the shooter. A police officer testified that Davis is known by police as

having a documented history associating with 1-9 gang members.

       The jury heard the testimony of various other witnesses, and it found Davis guilty

as charged. The district court sentenced Davis to serve consecutive prison terms of 186

months and 153 months. Davis appeals his conviction.

                                       DECISION

       Davis challenges his conviction by contending that the district court should not have

admitted evidence of the Lake Calhoun shooting. He maintains that the remaining evidence

is insufficient to support the finding that he shot the two gunshot victims outside Target

Field, that he intended to kill them, or that the shooting was intended to benefit a gang. He

argues also that the conviction is infirm because the district court failed to instruct the jury

about accomplice testimony and that the prosecutor made improper statements that require

reversal. We address each argument.




                                               4
                                              I

       We first consider Davis’s argument that the district court improperly allowed the

state to inform the jury that Davis was involved in the Lake Calhoun shooting. The district

court may allow this type of prior-bad-acts evidence to show motive, intent, knowledge,

identity, absence of mistake or accident, or a common scheme or plan. Minn. R. Evid.

404(b). We review the district court’s decision to admit this evidence, often referred to as

Spreigl evidence, for an abuse of discretion. State v. Ness, 707 N.W.2d 676, 685 (Minn.

2006). The district court may admit Spreigl evidence if five elements are met: (1) the state

has given the defendant notice; (2) the state clearly indicates what the evidence is being

offered to prove; (3) clear and convincing evidence establishes that the defendant

participated in the prior act; (4) the evidence is relevant and material to the state’s case;

and (5) the probative value is not outweighed by its potential unfair prejudice. Angus v.

State, 695 N.W.2d 109, 119 (Minn. 2005). Davis focuses on the third and fifth elements,

arguing that clear and convincing evidence did not show that he was the Lake Calhoun

shooter and that the probative value of the evidence does not outweigh the resulting

improper prejudice.

Clear and Convincing Evidence that Davis Was the Lake Calhoun Shooter

       The district court was satisfied that clear and convincing evidence proves that Davis

was the Lake Calhoun shooter, and we see no fault in the conclusion. The district court is

in the best position to weigh the competing evidence. Cf. State v. Kennedy, 585 N.W.2d

385, 392 (Minn. 1998) (noting the district court’s “discretion [in] first weighing the

evidence” to assess the strength of the state’s case when balancing prejudice and


                                             5
“determining whether the Spreigl evidence should be admitted”), modified by Ness, 707

N.W.2d 676. Some of the evidence that supports the district court’s finding includes the

following: eyewitness N.P. identified Davis “as a party that looked similar, especially with

the nose and other characteristics” to the shooter; M.M. “told [police] who the two shooters

were in the murder,” specifically, “Javon [James] Davis and [D.W.],” after M.M. got a

“[d]irect confession from both of them . . . a few hours after the murder”; cellular phone

records corroborated that Davis was present at the community center where M.M. says that

Davis and D.W. confessed to the murder; Davis revealed that he had been previously shot

by a Taliban gang member; the Taliban gang member who assisted in shooting Davis was

the man shot and killed at Lake Calhoun; Davis acknowledged that he was carrying his cell

phone the day of the Lake Calhoun shooting and technical records place Davis’s phone at

the scene of that shooting; based on the cell-phone data, Davis’s claim that he was in

another part of the city at the time of the shooting was false; contemporaneous with the

Lake Calhoun shooting, imprisoned 1-9 members were calling Davis from prison; Davis

laughingly told a 1-9 gang member that investigating police did not know what was going

on.

       The inculpatory testimony included evidence of Davis’s confession, and it is true

that the evidence arrived second-hand. But Davis does not contend that the Spreigl hearsay

testimony was not admissible for the purposes of the Spreigl decision; he argues only that

it was not persuasive enough to amount to clear and convincing evidence. The argument

overlooks the district court’s broad discretion at the Spreigl hearing to decide whether to

require eyewitnesses to testify about the Lake Calhoun shooting and about Davis’s


                                             6
admission to that shooting. Cf. State v. Kasper, 409 N.W.2d 846, 847 (Minn. 1987)

(faulting court of appeals and holding that trial court at Spreigl hearing had broad discretion

to decide whether or not to require state to call Spreigl witnesses or instead to rely on

prosecutor’s offer of proof). Although the Spreigl testimony about the confession was

hearsay, it was admitted as hearsay because Davis agreed through his counsel that the state

could present the evidence that way, volunteering, “I don’t think that’s unreasonable.” And

we disagree with Davis’s implication that hearsay testimony is, by its nature, insufficient

to prove an asserted fact clearly and convincingly. The unobjected-to hearsay testimony

here, which the district court weighed, established both that Davis contemporaneously

confessed to being one of two Lake Calhoun shooters and that he lied to police by claiming

he had been in a different, distant part of the city during the shooting. As the district court

explained to Davis’s attorney after the trial, “But the bottom line is, for whatever reason,

you chose to let the Spreigl evidence come in the way you let it come in [as hearsay

testimony], and, based on the testimony . . . there was clear and convincing evidence . . .

to link your client to that incident.” A shooter’s confession and his false alibi are clear and

convincing evidence of his participation, and the additional evidence simply girds that

determination.

       The dissent begins and ends its disagreement with our holding as to the clear and

convincing quality of the state’s Spreigl-hearing evidence by relying on State v. Kasper,

409 N.W.2d at 847, for the proposition that “[t]he state overstated the strength of its

evidence connecting Davis to the Lake Calhoun shooting at the Spreigl hearing.” The

dissent accurately quotes the Kasper court as stating that “the trial court and the appellate


                                              7
courts are always free to grant relief, when appropriate, if the evidence adduced was not

what the prosecutor led the trial court to expect.” (Emphasis added.) But it overlooks the

phrase “when appropriate” and therefore misses the critical procedural hook here. It is not

“appropriate” to grant relief to an appellant on an issue and argument that the appellant

never raised. “A reviewing court must generally consider only those issues that the record

shows were presented [to] and considered by the trial court.” Thiele v. Stich, 425 N.W.2d

580, 582 (Minn. 1988) (quotation omitted). It is therefore not “appropriate” to consider the

relief here, if Davis never made the offer-of-proof argument to the district court. There

Davis argued only that “[t]he evidence presented by the State to the Court in support of its

motion for admission of Spreigl evidence . . . was . . . flawed and . . . not accurate.” He

argued that the hearsay evidence implicating Davis as the Lake Calhoun shooter was

flawed and inaccurate not because the state failed to make good on the offer of proof, but

because other evidence—like statements made by the hearsay declarants—purportedly

indicated that someone other than Davis was the second shooter. Davis argued the point

through counsel: “My . . . ultimate point about that is that it was clear the crime had been

solved, the shooting at Lake Calhoun, because [a different person] was arrested in Chicago

with the murder weapon. . . . I think it was equally clear based on the MPD’s investigation

that they had concluded that [T.W.] was a second shooter.” Davis was arguing only that

the evidence was not clear and convincing.

       We observe that the district court did interchangeably refer to the sergeant’s

testimony as “evidence” and as an “offer of proof.” But we see that Davis never made the

Kasper argument that the dissent makes, and, despite the district court’s use of the offer-


                                             8
of-proof phrase, it never analyzed Davis’s argument as if he had made the Kasper

argument.

       Independently dispositive, even if Davis made the Kasper offer-of-proof argument

in the district court, he has not made it in this court. “In general, issues not raised in the

parties’ briefs are waived.” State v. Hurd, 763 N.W.2d 17, 32 (Minn. 2009); see also Brocks

v. State, 753 N.W.2d 672, 675 n.3 (Minn. 2008) (“Failure to brief or argue an issue on

appeal results in waiver of that issue on appeal.”). It is not enough to merely “allude” to

issues or arguments; an appellant’s failure to “address them in the argument portion of his

brief” constitutes waiver. McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998). The

Kasper case appears first (and only) in the dissenting opinion, and Davis’s brief never

mentions the term “offer of proof.” We therefore do not address the argument’s merits.1

Balancing Probative Value Against Prejudice

       Both the probative value of the evidence that Davis was one of two or more Lake

Calhoun shooters, and the prejudicial weight of the same evidence, are readily apparent.

As to its probative value, the evidence tends to show motive and a common scheme or plan.

Specifically, it reveals the eye-for-eye, life-for-life, retaliatory exchanges between the rival

gangs and specifically involving Davis. But as to its prejudicial nature, the evidence risks

inviting a conviction based on Davis’s bad character or prior conduct rather than on the

evidence of the present charges.


1
  Similarly, neither party has raised Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004), in relation to the hearsay statements, and our decision therefore assumes without
discussion that Crawford does not apply here.


                                               9
       The supreme court has held that “the 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.” Ness, 707 N.W.2d at 688. We see an

obviously close relationship between the Lake Calhoun shooting and the Target Field

shooting. Both crimes involve the rival Minneapolis gang members shooting it out. Both

involve a group of assailants lying in wait to attack the enemy unexpectedly. And both

include a tit-for-tat rationale.

       The district court attempted to prevent unfair prejudice by ordering that the state

describe the Spreigl incident only as a “shooting,” not a “murder.” It also reminded the jury

that Davis was on trial only in the Target Field shooting, not the Lake Calhoun shooting.

The prosecutor added to the caution by telling jurors not to use the Spreigl evidence to

convict Davis of any other crime. These precautions satisfy us that the evidence was not

unduly prejudicial in relationship to its more weighty probative value.

                                             II

       We turn to Davis’s contention that the evidence was insufficient to support the guilty

verdict. We review a challenge to the sufficiency of the evidence by looking to the record

to determine whether the evidence, viewed in the light most favorable to the conviction,

supports the jury’s verdict of guilty beyond a reasonable doubt. State v. Webb, 440 N.W.2d

426, 430 (Minn. 1989). A defendant is guilty of second-degree murder when he “causes

the death of a human being with intent to effect the death of that person or another, but

without premeditation.” Minn. Stat. § 609.19, subd. 1(1) (2012). The crime is more serious


                                             10
if the defendant committed the murder “for the benefit of, at the direction of, in association

with, or motivated by involvement with a criminal gang, with the intent to promote, further,

or assist in criminal conduct by gang members.” Minn. Stat. § 609.229, subds. 2–3 (2012).

Davis maintains that the evidence fails to establish that he shot K.W. and C.B., that he

intended to cause their deaths, and that his action toward C.B. was intended to benefit a

gang. Each argument fails.

Evidence of Davis’s Identity as the Target Field Shooter

       We reject Davis’s argument that the evidence fails to allow the jury to find that he

was the Target Field shooter. K.W. identified him as the shooter. He did so when police

interviewed him and again when he picked Davis out of a photographic array within days

after the shooting. We understand that K.W. recanted at trial, asserting that when he

identified Davis he had been merely parroting what others had told him. But the jury

weighed the credibility of K.W.’s police statement against his retraction, and it is not our

prerogative to dismiss their assessment. As to his retraction, the jury was advised of the

“wild, wild west” warfare between the 1-9s and the Taliban, so we doubt the jury had any

trouble reasoning why K.W. would identify Davis and then why he might later back away

from that identification. The jury also heard from J.M., who testified that Davis admitted

to the Target Field shooting. Although Davis offered some exculpatory evidence, we

assume from the jury’s verdict that the jurors did not believe it. The evidence that favors

the conviction was sufficient to prove that Davis shot K.W. and C.B.




                                             11
Evidence that Davis Intended to Kill K.W. and C.B.

       We likewise reject Davis’s argument that the evidence failed to prove that he

intended to kill K.W. and C.B. Intent may be, and usually is, inferred from the

circumstances. See, e.g., State v. Thompson, 544 N.W.2d 8, 11–12 (Minn. 1996) (holding

that jury could infer intent to kill from the way the defendant shot the victim); State v.

Harris, 405 N.W.2d 224, 229 (Minn. 1987) (holding that jury’s finding of intent to kill was

supported when defendant shot the victim in head at close range). Jurors learned that K.W.

and C.B. left their jobs at Target Field and were walking together when Davis approached

them and, at close range, fired his handgun several times in their direction. He rendered no

aid to either man and did not summon emergency medical assistance to tend to their

gunshot wounds. This is enough for the jury to find that Davis intended to kill the two men.

Evidence that Davis Committed the Attempted Murder to Benefit a Gang

       Davis argues that the state did not prove that his shooting of C.B. was for the benefit

of a gang. He maintains that no evidence establishes that C.B. was even a gang member or

that shooting him promotes gang business. We can assume that Davis was targeting only

K.W. and that he struck C.B. recklessly. This does not help his cause. The supreme court

recently observed without further comment that shooting untargeted bystanders during

gang violence may establish a crime committed for the benefit of a gang. State v. Thao,

875 N.W.2d 834 (Minn. 2016); see also State v. Caldwell, 803 N.W.2d 373, 379, 384 (Minn.

2011) (raising no concern with benefit-of-a-gang conviction when victim was bystander).

The evidence of the hostility and retaliatory violence between the rival gangs generally,




                                             12
and as perpetrated by Davis specifically, is adequate to establish the gang-benefit element

of Davis’s murder conviction.

                                              III

       Davis argues that because “[J.M.] was an accomplice” the district court committed

reversible error by failing to instruct the jury on accomplice testimony. Davis did not object

to the instructions given, and so we review only for plain error. State v. Vance, 734 N.W.2d

650, 655 (Minn. 2007), overruled on other grounds by State v. Fleck, 810 N.W.2d 303

(Minn. 2012). We will reverse based on a plain error only if the error is plain, the error

affected the defendant’s substantial rights, and only “if the fairness, integrity, or public

reputation of the judicial proceeding is seriously affected” by the error. State v. Jones, 678

N.W.2d 1, 17–18 (Minn. 2004).

       Whether or not failing to give the instruction was a plain error, we are confident that

the error did not affect Davis’s substantial rights or implicate fairness, integrity, or the

reputation of the proceeding. Davis maintained at trial not only that he was innocent, but

that J.M. was innocent. Davis’s counsel urged the jury, “[J.M.] is just as innocent of this

crime as Mr. Davis,” and “[J.M.] has nothing to do with this crime.” Counsel insisted, “The

fact [J.M.] was dismissed certainly makes sense.” Davis’s appellate counsel takes the

contrary position, insisting, “It is clear that [J.M.] was an accomplice to the offense.” An

accomplice instruction would have contradicted Davis’s defense theory, implying a fact

that Davis denied. It is true that, “[a]s a rule, trial courts have a duty to instruct juries on

accomplice testimony in any criminal case in which it is reasonable to consider any witness

against the defendant to be an accomplice.” State v. Strommen, 648 N.W.2d 681, 689


                                              13
(Minn. 2002). But unlike in Strommen, where “there was no question that Townsend was

an accomplice,” id., here there was substantial question, urged by Davis, whether J.M. was

an accomplice. We will not reverse based on the alleged instructional error here.

                                            IV

       Davis maintains that the prosecutor engaged in reversible misconduct based on

conduct to which Davis did not object. Again, the standard on review is plain error. State

v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). If Davis points to a plain error, the burden

shifts to the state to show that “there is no reasonable likelihood that the absence of the

misconduct . . . would have had a significant effect on the verdict of the jury.” State v.

Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotation omitted). For the following reasons,

we conclude that to the extent the prosecutor engaged in misconduct, the misconduct did

not cause the verdict.

Facts Not in Evidence

       Davis maintains that the prosecutor’s comments regarding C.B. being shot in the

spine during opening and closing arguments was misconduct because it referenced facts

not in evidence. Parties are allowed to “argue reasonable inferences from the facts

presented at trial.” State v. Young, 710 N.W.2d 272, 280 (Minn. 2006). The video recording

of K.W.’s testimony, which was presented to the jury, discusses C.B.’s physical injury and

offers that “he might not walk again.” K.W. testified that C.B. is not walking and is

confined to a wheelchair. The difference between the evidence presented and the

prosecutor’s statement describing the shot as having entered C.B.’s spine is negligible. In




                                            14
any event, a reasonable jury would have inferred that detail from the evidence. We see no

misconduct here.

Closing Argument

       Davis argues that the prosecutor committed misconduct in his closing argument. He

has a point. It is true that “the prosecutor and the defense have considerable latitude in

closing argument, for neither is required to make a colorless argument.” State v. Smith, 541

N.W.2d 584, 589 (Minn. 1996). But we agree with Davis that the prosecutor went beyond

a properly colorful argument by stating, “This case isn’t worth that much to me. Whatever

you do, I’m sure I’ll see Mr. Davis again.” Davis also complains that the prosecutor said

that the 2010 shooting is a crime “that the [d]efendant hasn’t been charged with yet.”

       Davis fails to put the primary statement in its context. The prosecutor made those

remarks specifically responding to Davis’s trial counsel’s allegation that the prosecutor had

offered J.M. an underhanded deal to testify against Davis. The prosecutor more fully stated

as follows:

              If I pulled some stunt like that, if I cut an under-the-table deal
              with some defendant to suborn perjury, I would have
              effectively ended my career. This case isn’t worth that much to
              me. Whatever you do, I’m sure I’ll see Mr. Davis again. That
              didn’t happen.
                      And the other thing, you’ll recall, you’re supposed to
              render a verdict based on evidence. What evidence do you have
              that there’s some shady underhanded deal? The Judge had to
              order him to testify.

The prosecutor here was responding to Davis’s counsel’s accusation that he had acted

unfairly, implying that he had taken excessive measures to secure a conviction against

Davis. In context, the first part of the challenged statement, “This case isn’t worth that


                                             15
much to me,” would likely be taken to mean that Davis’s case is not so essential to the

prosecutor that he would use unfair means to obtain a conviction. The problem, however,

is with the second part, “Whatever you do, I’m sure I’ll see Mr. Davis again.” In the best

light, the statement again indicates that the prosecutor is not preoccupied with obtaining a

conviction. But even in that favorable light, the unstated premise abandons the prosecutor’s

duty not to invite a conviction on anything other than a fair review of the evidence. The

implied premise is the prosecutor’s reason for not being preoccupied with a conviction in

this case: that is, even without a conviction, Davis is such a habitual offender that he will

likely offend again. Intentionally or not, this implied premise tends to suggest to the jurors

that, unless they convict, Davis will commit more crime. While the prosecutor has latitude

to respond to the defendant’s arguments, State v. Jackson, 773 N.W.2d 111, 123 (Minn.

2009), he may not make comments that inflame the passions of jurors or make “predictions

of the consequences of the jury’s verdict.” State v. Salitros, 499 N.W.2d 815, 817 (Minn.

1993). The prosecutor’s statement was plain error. It therefore puts the burden on the state

to establish that there is no reasonable likelihood that the result would have been different

but for the misconduct.

       The state meets that burden here. The prejudice that results from the statement is

insignificant compared to the substantial evidence of Davis’s guilt. This includes, among

other things, the eyewitness victim identification of Davis as the Target Field shooter, the

account of Davis admitting he was the Target Field shooter, and the similarities between

the charged Target Field attack and Davis’s Lake Calhoun attack. We are convinced that




                                             16
there is no reasonable likelihood that the outcome would have been different but for the

prosecutor’s inflammatory comment.

        We are less troubled by the prosecutor’s statement that the 2010 shooting is a crime

“that the [d]efendant hasn’t been charged with yet,” given the context and evidence. The

jury had heard evidence that Davis was identified as the Lake Calhoun shooter and other

evidence tying Davis to that shooting. By clarifying that Davis had not yet been charged

with that crime, the prosecutor reminded the jury that it should avoid any temptation to

convict Davis for the uncharged offense. We have held that when “a reference to a

defendant’s prior record is of a passing nature, . . . a new trial is not warranted because it

is extremely unlikely that the [challenged reference] played a significant role in persuading

the jury to convict.” State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (quotations

omitted). The prosecutor’s statement regarding the Lake Calhoun shooting was of a passing

nature and did not play a significant role in the trial. We conclude that Davis was not denied

a fair trial.

        Affirmed.




                                             17
REYES, Judge (dissenting)

       I respectfully dissent. The district court abused its discretion in admitting Spreigl

evidence of Davis’s other crimes that were not proven by clear and convincing evidence at

the Spreigl hearing. In addition, the state’s production of one uncertain eyewitness and

hearsay statements at trial to establish that Davis aided and abetted the attempted murder

of K.W. at Lake Calhoun in 2010 did not conform to its offer of proof and was “simply too

incomplete.” State v. Link, 289 N.W.2d 102, 106 (Minn. 1979) (quotation omitted).

Because the erroneous admission of the other-crimes evidence was not harmless, I would

reverse and remand for a new trial.

I.     The state’s Spreigl evidence did not rise to the level of clear and convincing.

       Though sometimes admissible, other-crimes evidence, often referred to as Spreigl

evidence, is disfavored because it is “potentially oppressive,” State v. Spreigl, 272 Minn.

488, 494, 139 N.W.2d 167, 171 (1965), and creates a risk that the jury will “convict[] a

defendant for crimes with which he is not charged.” State v. Billstrom, 276 Minn. 174,

177, 149 N.W.2d 281, 284 (1967). The “overarching concern” is that the evidence will be

used for an improper purpose, “such as suggesting that the defendant has a propensity to

commit a crime.” State v. Washington, 693 N.W.2d 195, 200 (Minn. 2005). Appellate

courts have expressed a strong dislike for Spreigl evidence, Link, 289 N.W.2d at 105, and

have encouraged trial courts to be “vigilant in observing the safeguards” provided in Minn.

R. Evid. 404(b) to protect against “the risk of unfair prejudice.” State v. DeWald, 464

N.W.2d 500, 505 (Minn. 1991). It is the trial court’s obligation to “determine that there is
clear and convincing evidence” of a defendant’s involvement in the crimes or other bad

acts. State v. Doughman, 384 N.W.2d 450, 454 (Minn. 1986) (quotation omitted).

       The Minnesota Supreme Court has stated:

              [T]he trial court has broad discretion in determining whether
              or not to require the state to call the Spreigl witnesses at the
              hearing to determine the admissibility of the Spreigl evidence.
              . . . It is our understanding that most trial judges generally use
              the offer of proof procedure at the Spreigl hearing. We see
              nothing wrong with this or any reason for requiring a mini-trial
              on the issue. The [c]ode of [p]rofessional [r]esponsibility helps
              to insure that prosecutors will not intentionally give an
              inaccurate statement of what the other-crime evidence will be,
              and the trial court and the appellate courts are always free to
              grant relief, when appropriate, if the evidence adduced was not
              what the prosecutor led the trial court to expect.

State v. Kasper, 409 N.W.2d 846, 847 (Minn. 1987) (emphasis added).

       Here, the state’s evidence at trial was “not what the prosecutor led the trial court to

expect” at the Spreigl hearing. Id. Notably, Davis was not arrested, charged, or convicted

of any crime related to the Lake Calhoun shooting. As part of the state’s offer of proof at

the pretrial Spreigl hearing, only Sergeant Wallerich testified. The sergeant testified that

an eyewitness, N.P., identified Davis from a photo lineup “as a party that looked similar”

to one of the Lake Calhoun shooters. The sergeant further testified that Davis confessed

his involvement in the Lake Calhoun shooting to two witnesses and intimated his

involvement to a third. Finally, the sergeant discussed cell-tower evidence placing Davis

in the proximity of Lake Calhoun on the night of the shooting.

       At trial, only N.P. and Sergeant Wallerich testified regarding the Lake Calhoun

incident. N.P. testified that it was 10:00 p.m., the perpetrators came out from the bushes



                                            D-2
behind her, she did not see their faces, and she got only a “glimpse” of them in passing.

Additionally, N.P. acknowledged that, immediately following the Lake Calhoun incident,

she did not believe she could identify the perpetrator. Two years later, she identified Davis

from a photo lineup because she “recognized some facial features.” Cf. State v. Lindahl,

309 N.W.2d 763, 766 (Minn. 1981) (noting eyewitness “positively identified defendant”

after spending five to six hours with him, providing “a good opportunity to observe him”).

Thus, N.P.’s identification of Davis as a Lake Calhoun shooter was not as strong as the

prosecutor led the district court to believe through the sergeant’s testimony at the Spreigl

hearing.

         Of the three witnesses to whom Davis allegedly confessed or intimated his

involvement in the Lake Calhoun shooting, two of them never testified, and the third

recanted. Instead, the state offered hearsay testimony through the sergeant that individuals

affiliated with the 1-9 gang identified Davis as one of the Lake Calhoun shooters and that

one witness provided corroborating, non-public information linking Davis to the Lake

Calhoun crime. Finally, Sergeant Wallerich again testified about the cell-tower evidence.

But the state did not offer the cell-phone records into evidence at the Spreigl hearing or at

trial.

         After he was found guilty, Davis moved for a new trial. Davis highlighted that the

state’s evidence at trial regarding the Lake Calhoun incident did not conform to its offer of

proof at the Spreigl hearing. The district court agreed, “conced[ing] . . . that what was

offered at trial was significantly less than the offer of proof.” Nevertheless, the district

court denied Davis’s motion for a new trial, noting Davis’s failure to object to the hearsay


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statements offered by the state. But see Riley v. State, 819 N.W.2d 162, 169 (Minn. 2012)

(rejecting testimony in affidavits as based on inadmissible hearsay).

       At the very least, this case presents a close call, which requires that the evidence be

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

of other crimes or misconduct is a close call, it should be excluded.”). The evidence

consists only of an eyewitness’s uncertain identification after getting a glimpse of the

shooter at 10:00 p.m.; cell-tower evidence placing Davis in proximity to Lake Calhoun on

the night in question; and out-of-court statements from biased, gang-affiliated witnesses

with no opportunity for either the judge at the Spreigl hearing or the jury at trial to evaluate

their credibility. State v. Brown, 739 N.W.2d 716, 720 (Minn. 2007) (“Inquiry on cross-

examination into common gang membership may be sufficiently probative to show bias . .

. .”). “Unlike other cases in which we have affirmed the trial court’s admission of Spreigl

evidence on the strength of a conviction, a victim’s clear identification of the defendant as

the assailant, or the defendant’s own confession,” State v. Shannon, 583 N.W.2d 579, 584

(Minn. 1998), in this case, it cannot be said that Davis’s participation in the Lake Calhoun

shooting is “highly probable.” State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998)

(quotation omitted), holding modified by Ness, 707 N.W.2d at 686. The state’s evidence

was not “unequivocal, intrinsically probable and credible, and free from frailties.” Gassler

v. State, 787 N.W.2d 575, 583 (Minn. 2010).

       The state overstated the strength of its evidence connecting Davis to the Lake

Calhoun shooting at the Spreigl hearing. Pursuant to Kasper, the district court and

appellate courts have the authority “to grant relief, when appropriate, if the evidence


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adduced was not what the prosecutor led the trial court to expect.” 409 N.W.2d at 847.

Therefore, I would conclude that the district court abused its discretion because the

evidence of Davis’s involvement in the Lake Calhoun shooting did not meet the clear-and-

convincing standard. Minn. R. Evid. 404(b). The evidence connecting Davis to the Lake

Calhoun crime is “simply too incomplete.” Link, 289 N.W.2d at 106 (quotation omitted).

II.    Because the evidence of Davis’s involvement in the Lake Calhoun shooting was
       erroneously admitted and harmful, Davis is entitled to a new trial.

       In order to obtain a new trial, an appellant must show that the district court abused

its discretion by admitting the Spreigl evidence and that its erroneous admission was

harmful. State v. Thao, 875 N.W.2d 834, 839 (Minn. 2016). An error is harmful if there

is a reasonable possibility that the “wrongfully admitted evidence significantly affected the

verdict.” Id. (quotation omitted). Factors to consider include whether a cautionary

instruction was used, whether in closing arguments the state dwelled on the evidence, and

whether there was overwhelming evidence of guilt. Id. As explained above, the admission

of the Spreigl evidence was erroneous, so I next turn to the analysis of whether the

erroneous admission was harmful.

       First, the district court provided a cautionary instruction to the jury regarding the

Lake Calhoun shooting. However, in its instructions, the district court charged the jury

with determining whether Davis’s participation in the Lake Calhoun shooting was clear

and convincing. This was an abuse of discretion because it is the court’s duty, not the

jury’s, to determine whether the Spreigl evidence meets the clear and convincing standard.

See Kasper, 409 N.W.2d at 847.



                                            D-5
       Second, the record reflects that the state dwelled on the wrongfully admitted

evidence in its closing arguments. The state made seven different references to the Lake

Calhoun shooting. Cf. Thao, 875 N.W.2d at 840 (noting that the prosecutor did not dwell

on prior incident by alluding to it only twice). Notably, with respect to N.P.’s testimony

identifying Davis as the alleged shooter, the state acknowledged that “[m]aybe she wasn’t

positive.” The state also highlighted that the 2010 shooting was a crime “that the defendant

[has not] been charged with yet,” implying that charges for the crime were pending.

Moreover, the state went even further by stating to the jury, “Whatever you do, I’m sure

I’ll see Mr. Davis again.” I agree with the majority that this statement was plain error by

the state and the “implied premise is [that] . . . even without a conviction, Davis is such a

habitual offender that he will likely offend again.” This is precisely the danger of admitting

Spreigl evidence, that it will be used “for an improper purpose, such as suggesting that the

defendant has the propensity to commit a crime.” Washington, 693 N.W.2d at 200.

       Third, the state’s evidence against Davis in the Target Field shooting, particularly

with respect to the identification of Davis as the shooter, was weak. The Target Field

victim identified Davis as the shooter in a recorded interview to the police. Yet, prior to

the interview, the victim stated that he would be unable to identify the shooter. Then, at

trial, he recanted his identification of Davis as the shooter. A second biased witness

implicated Davis by testifying that, following the Target Field shooting, Davis insinuated

his participation in the crime. But this second witness was originally charged as a co-

defendant in the Target Field shooting and initially gave two false statements to the police.




                                            D-6
And once he came forward and implicated Davis in the crime, the charges against him were

dropped.

       In view of the district court’s erroneous instruction to the jury, the state’s dwelling

on the wrongfully admitted Spreigl evidence during closing arguments, and the limited

evidence of Davis’s guilt in the Target Field shooting, I cannot conclude that the erroneous

admission of the Spreigl evidence did not substantially influence the jury’s decision. Thao,

875 N.W.2d at 839. I acknowledge the challenge the state faces in prosecuting gang-related

cases. I am also cognizant of the significant negative impact that gang-related violence has

on the community and the desirability of obtaining convictions. But trial courts and

appellate courts have an obligation to ensure that the legal standard of clear and convincing

evidence is met for the proper admission of Spreigl evidence and, as the Minnesota

Supreme Court has noted, the courts “are always free to grant relief, when appropriate”

when the state’s offer of proof is not supported by the evidence adduced at trial and fails

to meet the clear-and-convincing standard. Kasper, 409 N.W.2d at 847. Here, after trial,

the district court “concede[d] . . . that what was offered at trial was significantly less than

the offer of proof” and did not meet this standard. As such, I would reverse and remand

for a new trial.




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