                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2405

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Joseph Gassoway,
                                      Appellant.

                              Filed November 10, 2014
                                      Affirmed
                                 Cleary, Chief Judge

                           Hennepin County District Court
                             File No. 27-CR-12-32132


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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



      Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and

Chutich, Judge.
                          UNPUBLISHED OPINION

CLEARY, Chief Judge

       Appellant Joseph Gassoway was charged in Hennepin County District Court with

one count of second degree criminal sexual conduct based on an alleged assault on July 5,

2012. A jury found appellant guilty in July 2013, and the district court sentenced him to

36 months to be served consecutively with another sentence. On December 30, 2013,

appellant timely filed an appeal to this court challenging the admission of Spreigl

evidence, the jury instructions, and the district court’s in camera review. Because the

district court did not abuse its discretion or commit plain error with the jury instructions,

we affirm.

                                          FACTS

       Appellant and his girlfriend, F.H., were in a relationship for approximately four

years beginning around 2008. In June 2012, appellant and F.H. moved into an apartment

in Richfield, Minnesota. F.H. has four children and numerous grandchildren—she would

frequently babysit the grandchildren. On July 5, 2012, F.H. went grocery shopping with

her daughter and four grandchildren.         F.H. returned to her apartment with her

grandchildren. At the apartment, appellant began putting away the groceries while F.H.

sat in the living room with her grandchildren. One of F.H.’s grandchildren, E.D., went

into the kitchen to get something to eat. The events that then took place in the kitchen

were disputed at trial.




                                             2
       E.D. testified that appellant came up from behind her when she was bending over

to get some food from the refrigerator and “started bumping [her] butt.” E.D. said that

she turned around and told appellant to stop, at which point he grabbed her hand and put

it on his genitals. E.D. left the kitchen and told F.H. what had allegedly happened and

text messaged her mother. The text message said that “[Appellant] made me touch his

wiener.”

       Appellant testified that he was putting away groceries and cutting up chicken

when E.D. came into the kitchen. Appellant said he accidently kicked E.D. in the

buttocks when E.D. snuck in between him and the refrigerator to get a snack. He said

this upset E.D., and she turned around and punched him in the genitals. Appellant

testified that he grabbed her arm and told her not to hit him.

       Two days after the alleged incident in the kitchen, E.D.’s mom received a phone

call from her sister. She said that E.D.’s cousins had told her about other alleged

instances of sexual assault by appellant. When questioned, E.D. told her mom that

appellant had “humped” her.

       On July 27, 2012, E.D. was interviewed at CornerHouse, which is a child abuse

evaluation center. During this interview, E.D. described two previous occasions when

appellant allegedly touched her inappropriately. E.D. stated that appellant had previously

“humped” her, which she described as appellant lying on top of her with his clothing on

and moving his body up and down so that their genitals rubbed against each other. E.D.

also said that appellant had tried to kiss her when she was helping him move things into




                                              3
the Richfield apartment. E.D. stated that “everything happened” after her ninth birthday,

on June 25, 2012, which means all three incidents allegedly occurred between June 25

and July 5, 2012. Appellant testified that the two other incidents never occurred.

       The district court held a pretrial hearing on two issues: (1) whether to admit

Spreigl evidence of a similar sexual assault for which appellant had been convicted; and

(2) whether to provide appellant with the mental health records of the Spreigl witness.

       Appellant argued that Spreigl evidence should not be admitted because it was not

relevant to a common scheme or plan, modus operandi or intent under 404(b). Appellant

argued that the incidents were not similar because the alleged touching was different, one

involved penetration and one did not, there were different victims, and the assaults

occurred in different apartments and rooms. Appellant also argued that the probative

value was outweighed by the potential prejudicial effects. The respondent argued the

incidents were relevant to establish a common scheme because the victims were the same

sex and similar age, the alleged assault in both cases happened in another room while

appellant’s girlfriend was present, and appellant obtained access to the victims through

his girlfriend.

       The district court initially took the matter under advisement to research cases cited

during the pretrial hearing. The district court said that it could not rule on the Spreigl

evidence until it heard the strength of the respondent’s case and the complainant’s

testimony. After the complainant and two other witnesses testified, the district court

decided to admit the Spreigl evidence to establish a common scheme or plan, and to




                                             4
refute appellant’s contention that the victim’s testimony was a fabrication or a mistaken

perception. The district court held that there was “sufficient similarity in circumstances

to make the Spreigl [evidence] probative,” including the fact that in both cases a young

girl of the same age was involved and appellant had access to the girls through his

association with F.H.

       Appellant also argued that the district court should do an in camera review of

records concerning the Spreigl witness’s mental health because of a letter the parties

received from the witness’s social worker.         The district court allowed appellant to

subpoena records relating to the witness’s mental health and did an in camera review of

the records. After review, the district court released some records, sealed some, and

issued a protective order.

       The Spreigl witness testified in-person at trial. She was ten-years-old at the time.

The witness said that she lived with her grandmother from June 2010 to 2011, and she

would frequently stay overnight with F.H. when her grandmother worked. The witness

testified that appellant came into the bedroom when she was alone and had sexual

relations with her while they were naked. She also testified that appellant put his mouth

on her breasts and put his penis inside her mouth. The Spreigl witness was eight and

nine-years-old at the time of abuse.         The district court gave the jury cautionary

instructions before the Spreigl witness testified and at the end of trial.

       Appellant also testified at trial, which led to arguments over proper impeachment.

The parties discussed whether the respondent could use appellant’s felony conviction for




                                               5
criminal sexual conduct in the first degree in its case-in-chief or as rebuttal evidence.

The district court did not allow the conviction to come in during the respondent’s case-in-

chief. The district court held that the conviction could be admitted in three scenarios:

(1) if there was impeachment of the Spreigl witness; (2) if appellant testified that he

would never assault a child; or (3) if he insinuated that he would not let children in his

room. The district court said that if appellant testified that he had not assaulted the

Spreigl witness, then the felony conviction could be used as rebuttal evidence.

       During his testimony, appellant testified that he did not “like kids in my

bedroom,” and that he does not “put [his] hands on anybody else.”                 On cross-

examination, appellant also denied ever being alone in a bedroom with the Spreigl

witness or ever being alone with other children in his bedroom with one exception. As a

result of this testimony, the district court permitted rebuttal through the specific mention

of the felony criminal sexual conduct in the first degree.        The district court gave

cautionary instructions about the rebuttal evidence.

                                     DECISION

I.     The district court did not abuse its discretion by admitting Spreigl evidence

       Appellant argues that evidence of other bad acts was inadmissible because it was

irrelevant to intent, and even if it were relevant, it was not markedly similar to the

charged offense. Respondent argues that it was admissible to refute a claim of victim

fabrication or mistaken perception, and that the other bad act was markedly similar to the

charged offense.




                                             6
       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

404(b) has an exclusionary rule whereby such evidence is admissible 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).

       District courts follow a five-prong test in determining the admissibility of other

bad act 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




                                             7
              state’s case; and (5) the probative value of the evidence must
              not be outweighed by its potential prejudice to the defendant.

Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005). 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 prongs are uncontested.

       A.     The evidence is relevant and material to the respondent’s case because
              the two crimes are markedly similar

       The first issue is whether the district court abused its discretion by finding that the

Spreigl evidence is relevant and material to refute appellant’s assertions of fabrication or

mistaken perception. 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.” State v. Ness, 707 N.W.2d 676, 688 (Minn. 2006). The

court should focus on the closeness of the relationship between the other crime and the

charged crime in terms of time, place, and modus operandi.            Wermerskirchen, 497

N.W.2d at 240.

       The district court in this case held that the two acts were substantially similar

because appellant targeted young girls of similar ages (eight or nine-years-old at the time

of alleged assault), and he had access to those girls through his association with F.H. The

assaults also allegedly took place within one to two years of each other. The nature and

location of the alleged assaults were different, but the two assaults do not need to be

identical. See State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998) (stating that the

“Spreigl evidence need not be identical in every way to the charged crime”). Based on




                                              8
the closeness in time of the two assaults, the age of the victims, and appellant’s access to

the victims through F.H., the district court did not abuse its discretion by finding the acts

were “markedly similar.” See State v. Cichon, 458 N.W.2d 730, 734 (Minn. App. 1990)

(finding that Spreigl evidence was substantially similar in part because accused “used a

position of authority and as a caretaker to commit both offenses”); Wermerskirchen, 497

N.W.2d at 242 (holding that acts were highly relevant because they showed “an ongoing

pattern of opportunistic fondling of young girls within the family context”).

       Appellant relies on Ness to argue that the two alleged assaults were not markedly

similar. In Ness, a teacher at a community education painting class allegedly touched an

11-year-old boy inappropriately.     Ness, 707 N.W.2d at 679-80.         The district court

admitted Spreigl evidence from an incident that allegedly occurred 35 years earlier when

the defendant was a school principal. Id. at 683, 688. The supreme court held that the

district court erred by admitting the Spreigl evidence, based partly on the time difference

between the alleged assaults (35 years) and partly on the diminished probative value of

the Spreigl evidence because of the strength of the state’s case, including rare eye-witness

testimony. Id. at 688-91. Given the strength of the case, the supreme court held that the

probative value was outweighed by the “potential for the evidence to persuade by

improper means.” Id. at 691.

       Appellant misinterprets the holding of Ness:

              Despite the fact that the victims were both male and of the
              same general age, and that the touching occurred
              opportunistically in the discharge of Ness’s role as an
              educator, the Minnesota Supreme Court nevertheless held that



                                             9
              these incidents were not so markedly similar that they
              justified the admission of the prior-acts evidence.

As the above discussion indicates, the holding in Ness was based more on the 35 year

difference between the alleged assaults with no other accusations in the intervening years,

and the limited probative value of the evidence given the strength of the state’s case. Id.

at 688-91. In contrast to Ness, the two alleged assaults here occurred within one or two

years of each other. Additionally, there is no corroborating testimony like there was in

Ness, which makes the need for the evidence greater, and thereby increases the probative

value of the Spreigl evidence.

       B.     The probative value of the evidence is not outweighed by the potential
              for unfair prejudice to appellant

       This court must next consider if the district court abused its discretion by finding

that the probative value of the Spreigl evidence to the disputed issue is not outweighed by

the potential for unfair prejudice to appellant. Although unfair prejudice is essentially

inherent with the use of Spreigl evidence in sexual abuse cases, the district court can give

cautionary instructions concerning the proper and limited role of the evidence to mitigate

the prejudice. State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008). The respondent’s need

for other-acts evidence should be addressed in balancing the probative value of the

evidence against its potential for unfair prejudice. Ness, 707 N.W.2d at 690.

       The district court gave cautionary instructions before the Spreigl witness testified

and during the jury instructions. The district court’s instructions mitigated the potential

for prejudice. Bartylla, 755 N.W.2d at 22. Additionally, the respondent’s case was based




                                            10
principally on uncorroborated child testimony.         The lack of corroboration or other

physical evidence suggests that Spreigl evidence establishing a modus operandi and

refuting appellant’s allegation of mistaken perception is probative. See State v. Fardan,

773 N.W.2d 303, 319 (Minn. 2009) (holding Spreigl evidence admissible in part because

of state’s weak case). Appellant argues that the weakness of the respondent’s case means

that the Spreigl evidence should not be admitted; however, that statement is contrary to

Minnesota law. See Ness, 707 N.W.2d at 690 (stating that the need for the Spreigl

evidence is a major factor for the court to consider in determining the probative value of

the evidence).

       The district court did not abuse its discretion by admitting the Spreigl evidence

because it gave cautionary instructions and determined that there was a need for the

evidence based on the respondent’s weak case, which increased its probative value.

II.    The district court did not commit plain error affecting a substantial right

       Appellant argues the jury did not know which “act” to convict appellant of to

satisfy the sexual contact requirement of criminal sexual conduct in the second degree.

Appellant concedes that it did not object to the jury instructions, but argues this court can

review for plain error in the absence of an objection. Respondent argues that appellant

was only charged for one act, and the jury convicted him for that act.

       In the absence of objection to jury instructions, this court has discretion to review

the issue if it is plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736,

740 (Minn. 1998). Before an appellate court reviews an unobjected-to error, there must

be (1) error, (2) that is plain, and (3) the error must affect substantial rights. Id. If those


                                              11
three prongs are met, the court will consider whether it should address the error to ensure

the integrity of the judicial proceedings. Id.

       “[T]he jury must unanimously agree on which acts the defendant committed if

each act itself constitutes an element of the crime.” State v. Stempf, 627 N.W.2d 352, 355

(Minn. App. 2001). Under Minn. Stat. § 609.343, subd. 1(a) (2012), a person has

committed second degree criminal sexual conduct if they engaged in “sexual contact”

with someone under the age of 13. Sexual contact is the intentional touching by the actor

of the complainant’s intimate parts or the touching of the clothing covering the

immediate area of the intimate parts. Minn. Stat. § 609.341, subd. 11(a) (2012). Intimate

parts include the “primary genital area, groin, inner thigh, buttocks, or breast of a human

being.” Id., subd. 5 (2012). Appellant argues that the jury could have convicted him for

one of two acts constituting sexual contact: the events that took place in the kitchen on

July 5, or the alleged humping incident that occurred before July 5.

       Appellant’s arguments are undermined by the facts in the record.             The jury

instructions specifically said that appellant’s act “took place on or about July 5, 2012, in

Hennepin County.” The verdict form signed by the foreperson states that appellant was

found guilty of criminal sexual conduct in the second degree for acts that “occurred on or

about July 5, 2012, in Hennepin County, Minnesota.” The only act in question from July

5, 2012, was the alleged sexual assault in the kitchen.

       In addition to the instructions from the court, the parties clearly referenced the July

5 act in their closing statements. Appellant’s attorneys said that “as of July 5 it’s he




                                             12
said/she said versus a six year old then and [appellant] about whether he bumped into

her.” The respondent argued in its rebuttal that it was criminal sexual conduct in the

second degree “[w]hen the defendant went up behind [E.D.] in that kitchen on July 5,

2012, when she was bent over and [he] bumped and grinded his genitals against her

buttock,” and when appellant allegedly put her hand “on his genitals.”

       Appellant correctly points out that evidence was presented at trial that he had

committed other sexual acts that might constitute criminal sexual conduct in the second

degree—specifically, the humping incident that occurred before July 5.             However,

appellant was not charged with that act in the complaint or the jury instructions. The

humping incident was Spreigl evidence, and the district court made it clear the only act

for which he was on trial was from July 5, 2012. Thus, there was no error in the jury

instruction because the respondent charged appellant with the July 5 act, and the

respondent asked the jury to convict appellant of that act. See Stempf, 627 N.W.2d at 356

(requiring the “prosecution to elect the act upon which it will rely for conviction”).

       Appellant relies on State v. Stempf to contend that the district court committed

plain error, but that reliance is misplaced. In Stempf, the defendant was convicted of

violating a controlled-substance crime statute. Id. at 357. The state presented evidence

for two different acts of illegal possession and told the jury that it could convict as long

as the jurors found the defendant guilty of at least one of the acts. Id. at 357-58. The trial

court refused to issue an instruction informing the jury to evaluate the acts separately and

to reach a verdict on each act. Id. Since different jurors could have convicted the




                                             13
defendant for different acts, there might not have been a unanimous verdict and the court

reversed. Id. at 358. In contrast to Stempf, the district court here informed the jury that it

must unanimously agree that appellant was guilty of the act that allegedly took place on

July 5, 2012.        The district court therefore did not commit plain error affecting a

substantial right.

III.   The district court’s admission of other crimes evidence as rebuttal to
       appellant’s testimony was not a clear abuse of discretion
       Appellant argues that the district court erred by permitting the respondent to

question him about his felony conviction as rebuttal evidence and that the admission was

improper under Rule 404(b) or 609. Respondent argues that the district court did not

abuse its discretion in admitting proper rebuttal evidence.

       Proper rebuttal evidence may include evidence that might not otherwise be

admissible, and the district court’s determination “of whether or not something is

appropriate rebuttal evidence rests within the discretion of the trial court and will only be

reversed upon a showing of a clear abuse of discretion.” State v. Gutierrez, 667 N.W.2d

426, 435 (Minn. 2003). Rebuttal evidence is that which “explains, contradicts, or refutes

the defendant’s evidence.” State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993). Other

crimes evidence can be admitted as rebuttal evidence, instead of as Spreigl evidence.

State v. Sullivan, 502 N.W.2d 200, 203 (Minn. 1993).

       Prior to appellant’s testimony, the district court heard arguments regarding the

admissibility of appellant’s felony conviction as rebuttal evidence. The district court

ruled the named-felony conviction would be admitted if appellant said that he had not



                                             14
been alone with the Spreigl witness in his bedroom.          Appellant testified on direct

examination that he does not “even like kids in [his] bedroom” and that he does not “put

[his] hands on anybody else.” On cross-examination, appellant testified that he had not

been alone in a bedroom with the Spreigl witness. Based on this testimony, the district

court permitted the respondent to cross-examine appellant about his felony conviction for

criminal sexual conduct in the first degree. The district court did not abuse its discretion

by allowing the named-felony conviction to be used as rebuttal evidence because the

conviction tended to rebut appellant’s claims that he had not abused the Spreigl witness,

did not like kids in his bedroom, and did not put his hands on other people. See Sullivan,

502 N.W.2d at 203 (admitting Spreigl evidence as proper rebuttal evidence).

       Appellant also argues that evidence of the specific felony offense was

inadmissible under Rules 404(b) and 609. However, the district court admitted evidence

of the conviction as rebuttal, and it did not consider 404(b) or 609 arguments when

making that ruling. Because the district court did not base its ruling on 404(b) or 609,

appellant’s arguments on those grounds are outside the scope of review and this court

need not consider them. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating

that an appellate court will not consider matters not argued to and considered by the

district court).

IV.    The district court did not abuse its discretion in its in camera review of the
       Spreigl witness’s mental health records

       Appellant asked the district court to conduct an in camera review of documents

concerning the Spreigl witness’s mental health to determine whether they contained



                                            15
information relevant to the witness’s ability to remember or recall events. Appellant

made a showing for the in camera review based on a letter from the witness’s social

worker. The district court conducted an in camera review, disclosed some information to

counsel, and issued a protective order for the remaining records.

       The district court’s in camera review of confidential records, “like any other

determination by the trial court, is subject ultimately to judicial review.”       State v.

Paradee, 403 N.W.2d 640, 642 (Minn. 1987). This court reviews the limits placed by the

district court on the release and use of protected records for an abuse of discretion. State

v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012). This court reviewed the documents

and concludes that the district court did not abuse its discretion.

       Affirmed.




                                              16
