                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1122

                                  State of Minnesota,
                                      Respondent,

                                           vs.

                                  Tyrone Bill Harper,
                                      Appellant.

                                  Filed July 20, 2015
                                       Affirmed
                                  Halbrooks, Judge


                            Hennepin County District Court
                               File No. 27-CR-13-3634

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Reilly, Judge.

                        UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges his conviction of aiding and abetting first-degree aggravated

robbery, arguing that the district court abused its discretion by admitting evidence of
other crimes at trial and that the prosecutor’s misconduct deprived him of a fair trial. We

affirm.

                                          FACTS

          On February 1, 2013, Minneapolis police officers responded to a report of a

robbery. A store clerk told the officers that two people wearing masks entered the store.

One of them pointed a handgun at the clerk and demanded that he put the cash-register

drawer on the counter. One of the masked individuals continued to point the gun at the

clerk while the other emptied the cash out of the drawer. They also stole four packs of

Newport cigarettes, Metro Transit bus passes, the clerk’s personal money out of his

wallet, and the clerk’s cell phone. The clerk estimated that they stole between $200 and

$300 from the cash register and $330 from the clerk’s wallet, including three two-dollar

bills.    The incident was captured by surveillance video, which the police officers

reviewed with the store clerk. One of the officers testified that the video showed that the

person with the gun wore a “dark Carhartt-type jacket” and that both people wore black

masks. The clerk described the two suspects as African-American men of medium build

and said that the gunman had bright hazel eyes.

          Using the clerk’s cell-phone number, the police tracked the phone to a specific

location in Minneapolis. Police officers proceeded to that location, observed two males

who fit the suspects’ descriptions, and identified them as appellant Tyrone Bill Harper

and J.H. Harper was wearing a black Carhartt jacket. The officers conducted a pat

search and a later search incident to arrest of Harper and discovered five packs of

Newport cigarettes, Metro Transit bus passes, and $245 in cash, including two two-dollar


                                             2
bills. The officers also conducted a pat search and a later search incident to arrest of J.H.

and discovered the store clerk’s cell phone, two black masks, Metro Transit bus passes,

and $248 in cash, including one two-dollar bill. The state charged Harper with aiding

and abetting first-degree aggravated robbery, in violation of Minn. Stat. §§ 609.05, subd.

1, .245, subd. 1 (2012).

       The state provided notice that it intended to offer evidence of two Spreigl

incidents that Harper had previously committed with J.H. The state indicated that it

would offer the evidence to show identity, common scheme or plan, and to provide

context for the charged offense. One of the Spreigl incidents occurred while Harper was

a juvenile. The other occurred in 2010, when Harper was an adult, and involved a

burglary. Harper moved the district court to preclude the state from introducing the

evidence, arguing that it was not admissible because both of the Spreigl incidents were

irrelevant and unduly prejudicial.

       The district court excluded the juvenile incident but admitted evidence of the 2010

burglary. The district court stated that it would limit the evidence to the fact that Harper

and J.H. had committed a previous offense together “and not necessarily that it was a

burglary or any particular details of the offense.” With that limitation, the district court

found that the evidence was relevant and material and that the probative value was not

outweighed by the potential for unfair prejudice. The parties stipulated that in 2010,

Harper and J.H., “acting together, entered a business without permission . . . and stole

property.” After the state rested its case-in-chief, the district court provided a standard




                                             3
cautionary instruction to the jury and then read the stipulation to the jury. The district

court read the cautionary instruction to the jury again before deliberations began.

       Harper testified at trial that he did not commit the robbery but that he met J.H. the

evening of the robbery because J.H. owed him money. Harper stated that J.H. paid him

by giving him five packs of Newport cigarettes, Metro Transit bus cards, and $45,

including two two-dollar bills. Harper then testified that he and J.H. were walking to the

bus stop when the police stopped them, searched them, and discovered the evidence

linking Harper and J.H. to the robbery.

       During the closing and rebuttal arguments, the prosecutor referred to Harper’s

history with J.H. multiple times. Harper’s counsel moved for surrebuttal, arguing that the

prosecutor committed misconduct by discussing how Harper had acted in conformity

with his criminal character. The district court denied the motion for surrebuttal. The jury

found Harper guilty of aiding and abetting aggravated robbery in the first degree. The

district court subsequently sentenced Harper to 68 months in prison. Harper now appeals

his conviction.

                                     DECISION

                                             I.

       Evidence of other crimes, wrongs, or acts, also known as Spreigl evidence, “is not

admissible to prove the character of a person in order to show action in conformity

therewith,” but it may “be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Minn. R. Evid. 404(b); State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015);


                                             4
State v. Spreigl, 272 Minn. 488, 490-91, 139 N.W.2d 167, 169 (1965). We review a

district court’s decision to admit Spreigl evidence for an abuse of discretion. State v.

Ness, 707 N.W.2d 676, 685 (Minn. 2006).

       District courts follow a five-step process when determining the admissibility of

Spreigl evidence:

              (1) the state must give notice of its intent to admit the
              evidence; (2) the state must clearly indicate what the evidence
              will be offered to prove; (3) there must be clear and
              convincing evidence that the defendant participated in the
              prior act; (4) the evidence must be relevant and material to the
              state’s case; and (5) the probative value of the evidence must
              not be outweighed by its potential prejudice to the defendant.

Id. at 686.

       Here, it is undisputed that the state satisfied the first three factors, but Harper

argues that the state failed to meet the fourth and fifth factors because the evidence is

irrelevant and any probative value is outweighed by the danger of unfair prejudice. The

district court admitted the Spreigl evidence of Harper’s 2010 burglary, stating:

              It is relevant and material to . . . the identification of joint
              actors. The probative value is not outweighed by the
              potential of unfair prejudice because of the fact that I would
              give a cautionary instruction at the time right before the
              evidence was admitted and as well in the final instruction. . . .
              I think the fact that they committed an offense together is the
              important relevant information. And so I’m going to limit the
              evidence to the fact that offenses were committed together
              and not necessarily that it was a burglary or any particular
              details of the offense.




                                             5
Relevance and Materiality

      In determining the relevance of Spreigl evidence, the district court should “focus

on the closeness of the relationship between the other crimes and the charged crimes in

terms of time, place and modus operandi.” State v. Wermerskirchen, 497 N.W.2d 235,

240 (Minn. 1993) (citation omitted). “[T]he closer the relationship, the greater is the

relevance or probative value of the evidence and the lesser is the likelihood that the

evidence will be used for an improper purpose.” Id.

      Here, the district court found that the 2010 burglary, which Harper and J.H. had

committed together, was relevant to prove “the identification of joint actors.” The jury

heard the Spreigl evidence through a stipulation that was agreed upon by the parties. The

stipulation stated: “On August 17th, 2010, in the City of Minneapolis, Hennepin County,

Tyrone Bill Harper and [J.H.] acted together, entered a business without permission, and

while inside stole property that did not belong to them. You must not speculate as to the

other circumstances of the offense.”

      Other crimes committed by a defendant with an accomplice may be relevant to

prove involvement with the accomplice in the charged offense. See State v. Clark, 755

N.W.2d 241, 261 (Minn. 2008) (concluding that Spreigl evidence of a prior bank robbery

was admissible in the appellant’s aiding and abetting first-degree-murder trial “for the

limited purposes of showing absence of mistake or identity as joint actors”); State v.

Nelson, 632 N.W.2d 193, 204 (Minn. 2001) (concluding that Spreigl evidence of two

prior armed robberies was relevant in the appellant’s aiding and abetting first-degree-

murder trial to show that the appellant and his accomplice “worked together closely to


                                           6
coordinate their criminal activity”). Here, Harper argues that the evidence is not relevant

because the 2010 burglary is dissimilar to the charged offense as to time and manner.

       Harper argues that the burglary is too remote to be relevant because it occurred

two and one-half years before the charged offense. But the Minnesota Supreme Court

has declined “to adopt a bright-line rule for determining when a prior bad act [becomes]

too remote” and has affirmed the admission of 19-year-old prior bad acts. State v.

Washington, 693 N.W.2d 195, 201-03 (Minn. 2005). And this court has affirmed the

admission of Spreigl evidence of an “aggravated robbery in which a handgun and an

accomplice were involved” because “the crimes were separated by only two and one-half

years and the modus operandi was similar.” State v. Rodriguez Torres, 400 N.W.2d 802,

804 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Therefore, the fact that

the Spreigl incident occurred two and one-half years prior to the charged offense does not

necessitate a finding that it is too remote to be relevant.

       Harper also argues that the 2010 burglary is irrelevant because it is factually

distinguishable from the charged offense. Harper argues that the Spreigl incident is

dissimilar to the charged offense because it occurred in the middle of the night when the

business was closed, involved a theft of a television, and did not involve a weapon. The

state argues that the similarities between the prior act and the charged offense outweigh

the dissimilarities. The similarities include that Harper and J.H.: identified a business in

Minneapolis; acted at night; acted together; and stole property. Because “[a]bsolute

similarity between the charged offense and the Spreigl incident is not required to

establish relevancy,” State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992), we conclude that


                                               7
the district court did not abuse its discretion by finding that the Spreigl evidence was

relevant and material to the state’s case.

Probative Value Versus Potential Prejudice

       In determining whether the evidence’s probative value outweighs its potential for

unfair prejudice, we balance the evidence’s relevance and “the [s]tate’s need to

strengthen weak or inadequate proof” against the risk of use as propensity evidence.

State v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009).               “When identity is at issue,

evidence of other crimes is admissible only if the [district] court finds the direct or

circumstantial evidence of defendant’s identity is otherwise weak or inadequate, and that

it is necessary to support the state’s burden of proof.” State v. Lynch, 590 N.W.2d 75, 81

(Minn. 1999). “It should be excluded where it is merely cumulative and a subterfuge for

impugning defendant’s character or for indicating to the jury that he is a proper candidate

for punishment.” Id. (quotation omitted). The district court should make “[t]he final

determination of the strength of the state’s case . . . after the state has presented all of its

non-Spreigl evidence.” State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998).

       Here, the district court did not engage in an analysis of “the state’s need” and

simply determined before trial that the evidence would not be unduly prejudicial because

the jury would receive a cautionary instruction. The better practice would have been for

the district court to reserve its ruling on the probative value of the Spreigl evidence until

the rest of the state’s case-in-chief was presented. See id. But Harper’s defense theory

was that he innocently connected with J.H. after J.H. committed the robbery, which made

identity of joint actors a central issue at trial. To rebut Harper’s defense theory and to


                                               8
prove the elements of the crime beyond a reasonable doubt, the state needed to

demonstrate that Harper and J.H. acted jointly. Therefore, the Spreigl evidence of the

2010 burglary was necessary for the state to prove identity—that is, to prove that Harper

was the masked gunman.

       District courts reduce the risk of prejudice to a defendant by limiting the number

of Spreigl incidents and the kind of facts included in the Spreigl evidence. Washington,

693 N.W.2d at 203 (ruling that the district court “properly guarded against admitting

evidence that was unnecessary” and unfairly prejudicial by “limiting the number of

Spreigl incidents” and by limiting the testimony to only relevant facts). Here, the district

court appropriately considered and then limited the number of Spreigl incidents by not

admitting evidence of Harper’s juvenile Spreigl incident and restricting the facts admitted

regarding the 2010 burglary, stating, “I’m going to limit the evidence to the fact that

offenses were committed together and not necessarily that it was a burglary or any

particular details of the offense.” Appellant argues that the district court abused its

discretion by allowing the parties’ stipulation to include some of the particular details of

the burglary. But the parties agreed on which facts to include in the stipulation, and

nothing in the record indicates that Harper’s counsel could not have sought a more

“sanitized” version of the evidence prior to trial. The fact that the district court did not

reject the parties’ agreed-upon stipulation does not amount to an abuse of discretion

because the district court carefully analyzed the Spreigl-evidence issue and instructed the

parties to limit the facts so as to limit the prejudicial effect.




                                                9
       In addition, cautionary instructions lessen “the probability of undue weight being

given by the jury to the evidence.” Kennedy, 585 N.W.2d at 392. Therefore, the district

court reduced the potential for prejudice by reading cautionary instructions regarding the

proper use of the evidence to the jury once before it read the stipulation and once again

before the jury started deliberating. We conclude that the district court did not abuse its

discretion by admitting the Spreigl evidence.

                                            II.

       Appellant objected to the prosecutor’s closing arguments on the ground that they

encouraged the jury to conclude that appellant acted in conformity with his 2010 bad act

and moved the district court for surrebuttal. The district court denied the motion. We

review objected-to claims of prosecutorial misconduct under the two-tier harmless-error

test. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). We “first address whether there

was misconduct, and if so, whether it entitles [Harper] to a new trial.” State v. Wren, 738

N.W.2d 378, 390 (Minn. 2007).         A prosecutor commits misconduct “by means of

insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in

the existence of evidence which is otherwise inadmissible.” State ex rel. Black v. Tahash,

280 Minn. 155, 157, 158 N.W.2d 504, 506 (1968). “There is nothing inappropriate, of

course, about referring to properly admitted Spreigl evidence in a closing argument. But

such evidence may not be used as a means to attack the defendant’s character or to

establish a criminal propensity.” State v. Duncan, 608 N.W.2d 551, 555 (Minn. App.

2000), review denied (Minn. May 16, 2000).

       Here, in relevant part, the prosecutor stated in closing argument:


                                            10
              This Defendant and [J.H.] planned on going into that
              convenience store, robbing it, and splitting the proceeds. It is
              as simple as that. These two guys have known each other for
              11 years. Back in 2010 they had no problem with getting
              together, going into a business and stealing something. But
              this time around Mr. Harper wants you to believe that he
              didn’t do it.

And on rebuttal, the prosecutor stated:

              [T]his is about identity. . . .

                     . . . [Harper] cannot escape the fact that he has a
              history with [J.H.] . . . . [I]t’s almost like they knew each
              other for a long time and that they knew how to do this thing
              and they discussed it beforehand like two people who have
              known each other for 11 years and who are already willing,
              able and have engaged in stealing before. . . .

                     . . . You cannot ignore the history. You cannot ignore
              the hazel eyes.

                    The other thing that you can’t ignore is the black
              Carhartt jacket. Another fact that just stacks upon everything
              else.

       Harper’s counsel objected by asking for surrebuttal, arguing that the prosecutor’s

statements in both closing argument and on rebuttal that “they did it then, they did it

now” were misconduct because the prosecutor used the Spreigl evidence “to prove the

character of the Defendant or that the Defendant acted in conformity with such

character.” The district court denied the motion.

       Identity was the central issue at trial, and the district court admitted the Spreigl

evidence to prove the identity of joint actors. Harper argues that the prosecutor did not

confine the use of the Spreigl evidence to show identity or the accomplice relationship

but instead “framed his entire closing argument around the assertion that Harper’s claim


                                                11
of innocence was not believable because he and [J.H.] had stolen from a business

before.” But our review of the prosecutor’s closing arguments as a whole indicates that

the prosecutor walked through each element of aggravated robbery—(1) theft, (2) with

threat of force, (3) with a dangerous weapon, (4) in Hennepin County on February 1,

2013—and then the prosecutor explained, “I am not going to harp on these elements

because you heard all the testimony from the witnesses, and in fact by now you gather

what is going to be the real issue in this case, is how do you know that it is this

Defendant, Mr. Harper.” The prosecutor then explained that because the robbers were

wearing masks, the identity of Harper “is proved by circumstantial evidence.” Therefore,

the prosecutor’s closing argument as a whole focused on the issue of identity and all of

the circumstantial evidence that proved that Harper was the masked gunman.

       Throughout his closing argument, the prosecutor laid out the circumstantial

evidence of identity: the gunman’s hazel eyes; the Carhartt jacket; the two black masks;

the store clerk’s cell phone; the Metro Transit bus passes; the five packs of Newport

cigarettes; Harper and J.H. each had roughly $250 on them, including three two-dollar

bills; Harper and J.H. had a history, including their “willing[ness] to engage in crimes

together”; and Harper and J.H. were together when they were apprehended.             The

prosecutor did not commit misconduct by relying on Harper’s criminal history with J.H.

as one piece of circumstantial evidence to argue that all of the evidence combined proved

that Harper aided and abetted the charged offense. We conclude that the district court

acted within its discretion by denying appellant’s motion for surrebuttal.

       Affirmed.


                                            12
