                       This opinion will be unpublished and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
                                  A14-1125


                                State of Minnesota,
                                    Respondent,

                                        vs.

                              Tyrone Xavier Johnson,
                                    Appellant.


                                Filed April 6, 2015
                                     Affirmed
                                Bjorkman, Judge


                          Sherburne County District Court
                             File No. 71-CR-13-1115

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Samuel Wertheimer II, Chief Deputy
County Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Smith, Judge.
                        UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges his first-degree assault conviction, arguing that (1) the

district court committed prejudicial plain error by admitting as an exhibit the victim’s

recorded statement to police and (2) the district court abused its discretion by admitting

evidence of appellant’s prior violent conduct toward the victim. Appellant presents

additional challenges to his conviction in a pro se supplemental brief. We affirm.

                                         FACTS

      Appellant Tyrone Johnson and D.A. met in 2012 and moved to Williston, North

Dakota the following March. They returned to Minnesota by August 2013, and moved

into an apartment in St. Cloud that has four separate bedrooms and a common living area.

Johnson rented one of the bedrooms, and D.A. slept on the floor of his room.

      During the evening of August 11, Johnson and D.A. had a few beers at home, then

went out drinking. Around 1:30 or 2:00 a.m., R.S., who rented another of the bedrooms,

was on a couch in the common area. R.S. heard Johnson and D.A. enter the apartment

and heard them talking in Johnson’s room. R.S. thought Johnson sounded angry; he did

not hear D.A. say anything. He also “heard a couple thuds like a couple punches,” and

then things quieted down. The tenant from the apartment immediately below Johnson’s

apartment also heard a “loud bang” on her ceiling that night, like “a dresser was hitting

the ground.”

      Around 6:00 a.m. the next morning, D.A. called 911 reporting that he “got the sh-t

beat out of” him. St. Cloud Police Officer Scott Wenshau responded and discovered


                                            2
D.A. sitting outside the apartment building next to a bag of groceries. D.A. had blood

draining from his left ear, and his face appeared swollen and misshapen. He stated that

he thought his ribs were broken and asked to be taken to the hospital.

       About two minutes after arriving, Officer Wenshau turned on his personal tape

recorder and questioned D.A. He told Officer Wenshau that he had been laying on the

floor in Johnson’s room four or five hours earlier when Johnson suddenly “snapped.”

D.A. stated that Johnson started kicking and hitting him and telling him he was going to

kill him, then picked up a 30-pound dumbbell and started “slamming” him. D.A. also

stated that a roommate had been sleeping on a couch in the open area of the apartment

around the time of the assault.

       An ambulance took D.A. to the hospital, where he told the treating physician that

he was “beat up with a bar bell.” D.A. was treated for numerous injuries and was “in

obvious pain.” He had bruises on his face and left knee and shin. He also sustained

multiple front and back rib fractures on his left side, his left lung was collapsed, and his

bleeding spleen was surgically removed.            Breath testing revealed an alcohol

concentration of .105.

       Meanwhile, additional officers responded and awoke Johnson. They noticed that

he smelled of alcohol and had glassy, watery eyes. The officers also observed a hex

dumbbell on the bed, but they did not observe any blood on the dumbbell or any signs of

a struggle in the room.

       Johnson was charged with first-degree and third-degree assault (harm) and second-

degree assault (dangerous weapon). At trial, D.A. was unable to remember fully the


                                             3
events of August 11-12. He remembered drinking with Johnson and being in the hospital

but was unsure what had happened to him and did not recall being assaulted, calling 911,

or talking to police. The state presented the audio recordings of D.A.’s 911 call and his

statement to Officer Wenshau; Johnson did not object to the recordings being received as

exhibits.1

       The jury also heard testimony about both Johnson’s and D.A.’s past conduct.

Over Johnson’s objection, the district court permitted the state to elicit testimony from

D.A. that while he and Johnson were living in Williston, “the two of us were drinking

and I got punched and knocked down by the Defendant Mr. Tyrone Johnson. I think one

of the bartenders in there called up 9-1-1 or something. And I didn’t file or press any

charges, kind of let things go.”     Johnson countered with evidence that D.A. is an

alcoholic who has a history of injuring himself while intoxicated and has twice been

civilly committed because of alcoholism and mental illness.

       Johnson also elected to testify. He stated that on the night in question, D.A. drank

five beers, went out with Johnson to drink more, and then went off on his own around

9:30 p.m. with a group of “rough” people. Johnson testified that when he saw D.A. an

hour later, D.A. was limping, bruised, and holding his side. Johnson stated that D.A.

refused to go back to the apartment so he left D.A. and returned home. Johnson testified

that he got home around 1:00 a.m., and that R.S. was not there. D.A. returned later,

looking “pretty bad,” and Johnson brought him into his bedroom. Johnson testified that


1
 Johnson objected to admission of D.A.’s statement to Officer Wenshau on confrontation
grounds but does not raise that issue on appeal.

                                            4
D.A. started “hollering and bamming at the wall,” and he yelled at D.A. to “straighten

up.” According to Johnson, D.A. then went outside to smoke, Johnson went to sleep, and

the next thing he knew the police were questioning him.

       During its deliberations, the jury asked to listen to D.A.’s statement to Officer

Wenshau.     The district court brought the jury into the courtroom and replayed the

recording. The jury found Johnson guilty of first-degree and third-degree assault and

acquitted him of second-degree assault. The district court sentenced Johnson to 122

months’ imprisonment. Johnson appeals.

                                      DECISION

I.     The district court did not commit prejudicial plain error by receiving D.A.’s
       recorded statement to police as an exhibit.

       When, as here, the appellant challenges the admission of unobjected-to evidence,

we review for plain error. Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011). In

applying the plain-error test, we will reverse only if the district court (1) committed an

error; (2) that was plain; (3) that affected the defendant’s substantial rights; and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

       Hearsay is generally inadmissible. Minn. R. Evid. 802. But a “memorandum or

record” concerning a matter about which a witness once had knowledge and made when

the matter was fresh in the witness’s memory may be admissible if the witness has

insufficient recollection to testify fully and accurately. Minn. R. Evid. 803(5). “If

admitted, the memorandum or record may be read into evidence but may not itself be

received as an exhibit unless offered by an adverse party.”             Id.   We review the



                                              5
interpretation of this language de novo. State v. Stone, 784 N.W.2d 367, 370 (Minn.

2010).

         Johnson concedes that D.A.’s statement was a recorded recollection that “could be

played for the jury during the trial.” But he contends that the district court committed

prejudicial plain error by admitting the recording as an exhibit, with the result being that

the jury heard the recording twice. We are not persuaded. First, the plain language of

rule 803(5) precludes admission of a document—a “memorandum or record”—but does

not expressly prevent a district court from permitting more than one auditory presentation

of the evidence. This distinction is consistent with the concern that providing the jury a

“hearsay document” could lead it to place “undue emphasis on the statement.” Minn. R.

Evid. 803(5) 1989 comm. cmt. And neither the rule nor the comment suggest a limit on

the number of times the jury may hear a recorded recollection.

         Second, and more importantly, Johnson has not demonstrated that the district

court’s treatment of D.A.’s recorded recollection impaired his substantial rights. To

satisfy this third prong of the plain-error test, Johnson must demonstrate that the asserted

error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d

736, 741 (Minn. 1998). “Error is prejudicial if there is a reasonable likelihood that the

error had a significant effect on the jury’s verdict.” State v. Barrientos–Quintana, 787

N.W.2d 603, 611 (Minn. 2010) (quotation omitted). Johnson argues that the jury’s

request to rehear the recording of D.A.’s statement demonstrates that it unduly focused

on the recording. We disagree. The recording was substantive evidence properly before

the jury, as Johnson concedes. Its admission as an exhibit merely permitted the jury to


                                             6
hear it twice, rather than once. See State v. Kendell, 723 N.W.2d 597, 613 (Minn. 2006)

(stating that it is not error to permit a jury to rehear a properly admitted taped interview

of a victim). The jury also heard a recording of D.A.’s 911 call, Officer Wenshau’s

testimony about D.A.’s statement and his observations of D.A., medical evidence about

D.A.’s injuries, and R.S.’s testimony about the events of August 12. Nothing in this

record reasonably suggests that receiving the recorded recollection as an exhibit, which

allowed the jurors to hear it twice, significantly affected the verdict. Accordingly, we

conclude that Johnson’s plain-error claim fails.

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

       Evidence of a defendant’s prior crimes or bad acts is not admissible to prove the

defendant’s character for purposes of showing that he acted in conformity with that

character. Minn. R. Evid. 404(b). But this Spreigl evidence may be admissible for other

limited purposes. Id.; see also State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007). We

review the admission of Spreigl evidence for an abuse of discretion. State v. Ness, 707

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

       Johnson argues that the district court abused its discretion by admitting evidence

of his prior assault against D.A. because it is irrelevant, any probative value is

outweighed by its potential prejudice, and its admission was unfairly prejudicial. We

address each of these issues in turn.

       Relevance

       Spreigl evidence must be “relevant to the prosecutor’s case.” Minn. R. Evid.

404(b)(4). A district court “should not simply take the prosecution’s stated purposes for


                                             7
the admission of other-acts evidence at face value” but independently determine “the

precise disputed fact to which the Spreigl evidence would be relevant.” Ness, 707

N.W.2d at 686. On appeal, we consider whether the rationale cited by the district court

provides a proper basis upon which to admit the evidence. State v. Rossberg, 851

N.W.2d 609, 615-16 (Minn. 2014).

       Johnson first argues that the district court failed to identify the “precise disputed

fact” to which the evidence is relevant.     We are not persuaded. The district court

explained that the state sought to use the Spreigl evidence “for purposes of showing

intent and a common scheme or plan” and stated that it would “grant the State’s request

to use that.” This discussion adequately, if implicitly, indicates that the district court

admitted the evidence as relevant to intent and common scheme or plan—both

recognized, permissible purposes. See Minn. R. Evid. 404(b); Ness, 707 N.W.2d at 687.

       Johnson next asserts that the evidence is not relevant for either of these purposes.

We disagree. The Spreigl evidence is relevant to show a common scheme or plan.

Spreigl evidence is admissible under the common-scheme-or-plan exception to refute a

claim, like that asserted here, “that the victim’s testimony was a fabrication or a mistake

in perception.” Ness, 707 N.W.2d at 688. Evidence offered for this purpose must have a

“marked similarity in modus operandi to the charged offense.” Id. The closer the other

conduct is to the charged offense in terms of time, place, and modus operandi, the greater

its relevance. State v. Clark, 738 N.W.2d 316, 346 (Minn. 2007). That standard is met

here. The previous incident occurred no more than six months before the charged

offenses; both incidents involved Johnson and D.A. drinking alcohol together, followed


                                             8
by Johnson punching D.A. See State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998)

(affirming use of common-scheme-or-plan evidence when prior incident and charged

offense occurred within six months of each other and involved the same victim).

Evidence of this markedly similar conduct is relevant to show common scheme or plan

and counter Johnson’s claim that D.A. fabricated or was mistaken about the assault.

       Potential for unfair prejudice

       Spreigl evidence is admissible only if its probative value outweighs its potential

for unfair prejudice to the defendant. Minn. R. Evid. 404(b)(5). Johnson argues that the

evidence presented an unwarranted risk of unfair prejudice because it was “irrelevant to

any disputed issue in this case” and not necessary. We disagree. D.A.’s recorded

statement identifying Johnson as his assailant sufficiently establishes the elements of the

charged offenses. But Johnson challenged the reliability of that statement, which D.A.

gave while under the influence of alcohol and could not remember at the time of trial, and

presented his own contradictory testimony. The Spreigl evidence is helpful in weighing

the two men’s credibility. While the evidence, like all Spreigl evidence, presents some

risk of unfair prejudice, we conclude that risk is outweighed by its substantial relevance.

       Prejudice

       Erroneous admission of Spreigl evidence warrants reversal only if the defendant

demonstrates prejudice. Clark, 738 N.W.2d at 347. Prejudice exists when “there is a

reasonable possibility that the wrongfully admitted evidence significantly affected the

verdict.” Id. (quotation omitted). In evaluating prejudice, we consider a number of

factors, including whether the state presented other evidence on the issue; whether the


                                             9
district court gave a jury instruction limiting the use of the evidence; whether the state

dwelled on the evidence in closing argument; and whether the evidence of guilt was

overwhelming. State v. Riddley, 776 N.W.2d 419, 428 (Minn. 2009).

         Johnson contends that reversal is necessary because the Spreigl evidence

suggested that Johnson had a propensity for violence toward D.A. and the district court

failed to instruct the jury not to consider the evidence for this purpose.        Johnson’s

concerns are well taken. But we are not persuaded, upon review of the entire record, that

they warrant reversal.

         First, the omission of a limiting instruction is attributable to Johnson. A district

court “should admonish the jury” both at the time the evidence is received and in the final

charge that the Spreigl evidence is received for only a specific limited purpose and that

the defendant “may not be convicted for any offense except that charged.” State v.

Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 285 (1967). Such a limiting instruction

minimizes the risk of jurors misusing Spreigl evidence, Rossberg, 851 N.W.2d at 616,

and should be given “even in the absence of a request” from the defendant, State v.

Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).             But “the failure to provide limiting

instructions absent a request is not reversible error.”2 State v. Williams, 593 N.W.2d 227,

237 (Minn. 1999), cert. denied, 528 U.S. 874, 120 S. Ct. 180 (1999). Johnson did not

request a limiting instruction.

         Second, the Spreigl evidence played an extremely small role in the trial. After

initially indicating that he would “prefer not to comment,” on the prior incident, D.A.

2
    Johnson does not assert that omission of a limiting instruction was error.

                                               10
testified only that Johnson punched him in a bar in Williston, the police were called, and

he did not press charges. There was no further testimony about the incident from any

witness. And the prosecutor made only one oblique reference to the Spreigl evidence in

closing argument. He emphasized that D.A. “was beaten by somebody he thought was

his friend. In fact, [D.A.] didn’t even really want to talk about what happened in

Williston.”

       Third, the evidence against Johnson is strong. The jury was presented with two

distinct versions of how D.A. sustained his severe injuries, but only D.A.’s statement that

Johnson hit and kicked him and “slamm[ed]” him with a dumbbell finds corroboration in

the record. Specifically, Officer Wenshau explained that D.A. was alert and oriented

when he gave his statement and answered all of Officer Wenshau’s questions and gave

specific details. And police found a dumbbell in Johnson’s bedroom.

       On this record, we conclude that any possible error in admitting the Spreigl

evidence does not require reversal.

III.   Johnson’s pro se arguments lack merit.

       Johnson challenges the sufficiency of the evidence to sustain his conviction.

When considering a sufficiency-of-the-evidence challenge, we view the evidence in the

light most favorable to the conviction to determine whether a jury could reasonably

conclude that the defendant was guilty of the offense. State v. Webb, 440 N.W.2d 426,

430 (Minn. 1989). We assume “the jury believed the state’s witnesses and disbelieved

any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).




                                            11
       To prove first-degree assault, the state was required to prove that Johnson

intentionally inflicted bodily harm on D.A. that created a “high probability of death” or

caused “serious permanent disfigurement” or “a permanent or protracted loss or

impairment of the function of any bodily member or organ.” Minn. Stat. §§ 609.02,

subd. 8, .221, subd. 1 (2012). The evidence, viewed in a light most favorable to the

verdict, amply establishes these elements. D.A. explained that Johnson punched him,

kicked him, and struck him with a dumbbell, all while threatening to kill him. Officer

Wenshau and D.A.’s treating physician testified that these acts resulted in D.A.’s facial

bruising and swelling, numerous broken ribs, a punctured lung, and a spleen so damaged

it had to be surgically removed to prevent him from bleeding to death. We conclude that

this evidence is sufficient to support Johnson’s first-degree assault conviction.

       Johnson also argues that the inadequate and weather-inappropriate courtroom

attire his attorney provided unfairly revealed to the jury that he was in custody. It is

unclear whether this is a challenge to the adequacy of his attorney’s efforts or a due-

process challenge, but it is unavailing either way. A defendant has a right not to appear

in court in “the distinctive attire of a prisoner.” Minn. R. Crim. P. 26.03, subd. 2(b); see

also State v. Lehman, 749 N.W.2d 76, 84 (Minn. App. 2008) (recognizing due-process

concerns in preventing defendant from wearing alternative clothing), review denied

(Minn. Aug. 5, 2008). But the record does not indicate that Johnson presented this

concern to the district court; it does not establish what efforts, if any, his attorney went to

in order to provide alternative clothing; and importantly, it does not indicate that he was

prejudiced by the clothing and footwear he had during trial. See Minn. R. Crim. P. 31.01


                                              12
(“Any error that does not affect substantial rights must be disregarded.”). Accordingly,

we conclude Johnson is not entitled to relief on this basis.

       Affirmed.




                                             13
