                          This opinion will be unpublished and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
                                     A15-0121

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Stevie Birdie Daniels,
                                         Appellant.

                                 Filed January 25, 2016
                                        Affirmed
                                       Ross, Judge

                              Ramsey County District Court
                                File No. 62-CR-14-4437

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Appellant Stevie Daniels challenges his conviction of financial transaction card

fraud arising from his attempts to use a woman’s credit card without permission to buy
multiple $100 gift cards at a St. Paul Target store. Daniels argues that the district court

improperly admitted Spreigl evidence of an incident that was not proved by clear and

convincing evidence. He also argues that the trial evidence is insufficient to prove his

identity beyond a reasonable doubt. Because we agree with the district court that the Spreigl

incident was adequately proved and because sufficient evidence demonstrates Daniels’s

identity, we affirm.

                                          FACTS

       In November 2013 C.K. was having dinner at the Fujiya restaurant in St. Paul when

someone stole the wallet from her purse. That same evening a man used one of her stolen

credit cards attempting to purchase five $100 gift cards at the University Avenue Target

store, but he was able to purchase only four cards in two separate transactions. Video

surveillance footage shows that the card purchaser was a middle-aged, African-American

man who wore a trench coat, tie, and a hat, and who arrived at the store by taxi. St. Paul

police officer Shawn Shanley investigated but was unable to identify the man.

       More than six months passed when, on a June 2014 evening, an African-American

man wearing a light brown suit walked into the Wild Onion Bar and Restaurant in St. Paul.

The man walked past the hostess and stood by high top tables near the bar. He did not

purchase anything or speak to anyone, and he left after about 15 minutes. One half hour

later, the same man arrived by taxi at the University Avenue Target store. He attempted to

purchase five $100 gift cards with a credit card. The transaction was denied, and a store

supervisor confronted the man. The supervisor noticed that the credit card the man had

used for the purchase was inscribed with a woman’s name. The supervisor asked the man


                                             2
to identify himself, and the man abruptly left. Coincidentally, it was Officer Shanley who

was off duty from his regular shift at the police department and working security at the

Target store. Officer Shanley followed the man from the store and saw him throw

something into a trash can. When the officer tried to talk to the man and told him he

intended to conduct a pat search, the man ran away. Police caught him and identified him

as Stevie Daniels. An officer found a woman’s credit card in the trash can.

         The state charged Daniels with financial transaction card fraud in violation of

Minnesota Statutes section 609.821, subdivision 2(1) (2012), for the November 2013 gift-

card purchases. Before trial, the district court ruled that the later, June 2014 incident was

admissible Spreigl evidence to show the 2013 thief’s identity and modus operandi. The

district court found Daniels guilty following a bench trial.

         Daniels appeals his conviction.

                                       DECISION

                                               I

         Daniels argues that the district court improperly admitted evidence of the June 2014

incident. Evidence of other crimes, wrongs, or acts—commonly known as Spreigl

evidence—is inadmissible to prove the defendant’s character. Minn. R. Evid. 404(b); State

v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). But the evidence can be used

to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Minn. R. Evid. 404(b). We review the admission of

Spreigl evidence for abuse of discretion. State v. Campbell, 861 N.W.2d 95, 102 (Minn.

2015).


                                              3
       The district court may admit Spreigl evidence under limited conditions:

              (1) the prosecutor gives notice of its intent to admit the
              evidence consistent with the Rules of Criminal Procedure;
              (2) the prosecutor clearly indicates what the evidence will be
              offered to prove; (3) the other crime, wrong, or act and the
              participation in it by a relevant person are proven by clear and
              convincing evidence; (4) the evidence is relevant to the
              prosecutor’s case; and (5) the probative value of the evidence
              is not outweighed by its potential for unfair prejudice to the
              defendant.

Minn. R. Evid. 404(b).

       Daniels argues that the state failed to prove the June 2014 incident by clear and

convincing evidence because the state did not present evidence showing that the credit card

used in that transaction was stolen from the Wild Onion or that the credit card found in the

trash can was associated with the attempted transaction. The argument is unconvincing and

we hold that clear and convincing evidence establishes that the June 2014 incident was an

apparent financial transaction card fraud. A person commits financial transaction card

fraud when he “without the consent of the cardholder, and knowing that the cardholder has

not given consent, uses or attempts to use a card to obtain the property of another, or a

public assistance benefit issued for the use of another.” Minn. Stat. § 609.821, subd. 2(1)

(2012). Daniels therefore incorrectly asserts that the state had to prove that the card had

been stolen. The relevant fact question was whether he lacked consent when he used the

card, and the evidence sufficiently answers that question: Daniels attempted to use a

woman’s credit card to buy Target property; he abruptly left the store after a supervisor

confronted him about the attempt; he tossed a woman’s credit card in the trash can as he

left the store; and he ran from a police officer who was attempting to investigate his


                                             4
conduct. This evidence is enough to show beyond a reasonable doubt both that Daniels

lacked consent to use the credit card and that he knew he lacked consent. The district court

did not abuse its discretion by admitting the 2014 incident as Spreigl evidence in the trial

for the 2013 crime.

       Daniels also contends that the incident was inadequately proved because no

witnesses—such as the store’s cashier or the woman whose card was stolen—testified at

the pretrial hearing. But Minnesota law does not require the state to call witnesses to testify

at a hearing to determine the admissibility of Spreigl evidence. State v. Kennedy, 585

N.W.2d 385, 390 (Minn. 1998) (citing State v. Lindahl, 309 N.W.2d 763, 766 (Minn.

1981)). And the trial evidence matched what the state claimed in the pretrial hearing.

                                              II

       Daniels argues that the state failed to prove his identity to the district court beyond

a reasonable doubt. Appellate courts apply the same standard of review for bench and jury

trials when evaluating the sufficiency of the evidence. State v. Palmer, 803 N.W.2d 727,

733 (Minn. 2011). When considering an insufficient-evidence claim, we review the record

for evidence that, when viewed in a light most favorable to the conviction, would allow a

fact-finder to find the defendant guilty. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012).

We assume that the fact-finder believed the state’s witnesses and disbelieved all contrary

evidence. Id.

       The evidence supporting the identity element of the crime here is both direct and

circumstantial. We apply heightened scrutiny to convictions based on circumstantial

evidence. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). The video surveillance


                                              5
footage is direct, and the Spreigl evidence is circumstantial. See State v. Montgomery, 707

N.W.2d 392, 399 (Minn. App. 2005). When an element of an offense is proved by both

direct and circumstantial evidence, and the state’s direct evidence is insufficient by itself

to prove that element, this court has applied the heightened scrutiny test appropriate for

convictions based on circumstantial evidence. State v. Porte, 832 N.W.2d 303, 309–10

(Minn. App. 2013) (citing State v. Silvernail, 831 N.W.2d 594, 602–06 (Minn. 2013)

(Stras, J., concurring)).

       Officer Shanley could not identify Daniels as the man in the 2013 video footage.

And the state concedes that the footage by itself cannot prove identity. Daniels’s conviction

therefore depends on inferences drawn from the 2014 Spreigl incident, so we apply the

circumstantial-evidence test.

       We follow a two-step approach. Silvernail, 831 N.W.2d at 598. We first identify the

circumstances proved, deferring to the fact-finder’s decision to accept these circumstances.

Id. at 598–99. We next decide whether the circumstances proved are consistent only with

guilt, inconsistent with any rational innocent hypothesis. Id. at 599. The circumstantial

evidence must “form a complete chain that, in view of the evidence as a whole, leads so

directly to the guilt of the defendant as to exclude beyond a reasonable doubt any

reasonable inference other than guilt.” Al-Naseer, 788 N.W.2d at 473 (quotation omitted).

For this step, we do not defer to the fact-finder’s choice between reasonable inferences.

Silvernail, 831 N.W.2d at 599.

       The evidence sufficiently proves Daniels’s identity as the 2013 offender. The

circumstances proved are that in November 2013, an African-American man wearing a


                                             6
trench coat, tie, and a hat, arrived at the University Avenue Target store by taxi and

attempted to purchase five $100 gift cards using a credit card stolen from C.K. Six months

later, in June 2014, Daniels (an African-American man wearing a suit coat and tie) entered

the Wild Onion restaurant in St. Paul, stood by the bar approximately 15 minutes without

purchasing anything or talking to anyone, and then took a taxi to the University Avenue

Target store where he attempted to use a woman’s credit card without permission to

purchase five $100 gift cards.

       The two distinctive incidents share striking similarities: both crimes involved a

woman’s credit card used without authorization at the same Target store by a professionally

dressed African-American man who arrived by taxi and attempted to purchase five gift

cards each valued at $100. The only hypothesis inconsistent with guilt is that in June 2014

Daniels coincidentally or intentionally committed a copycat crime mimicking the one

committed by some unidentified 2013 thief. Although this scenario is not unimaginable, it

is far too unlikely to be reasonable. The only reasonable inference from the circumstantial

evidence is the one drawn by the district court acting as fact-finder: Daniels was caught

taking his second bite at the same apple. He had executed the identical ploy once before,

and he is, beyond any reasonable doubt, the man captured in the November 2013

surveillance footage.

       Affirmed.




                                            7
