                          This opinion will be unpublished and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
                                     A15-1899

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                Nathaniel Donald Beulah,
                                       Appellant.

                                  Filed August 1, 2016
                                        Affirmed
                                     Johnson, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-39779

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

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

Daniel Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Johnson,

Judge.
                          UNPUBLISHED OPINION

JOHNSON, Judge

          A Hennepin County jury found Nathaniel Donnie Beulah1 guilty of first-degree

criminal sexual conduct based on evidence that he sexually abused a stepgranddaughter.

Beulah argues that the district court erred by admitting Spreigl evidence at trial and by

denying his motion for a downward dispositional departure at sentencing. We affirm.

                                          FACTS

          Between 1999 and 2003, Beulah and C.T. lived together in a home in Minneapolis.

Several of Beulah’s children, C.T.’s children, and their joint children lived in the home

during that period of time. Other relatives and friends were frequent visitors and overnight

guests.

          In 2013, Beulah was accused of sexually abusing two girls who lived in his home

years earlier. One of those girls is J.T., who was a stepdaughter of a son of C.T. J.T.

moved into Beulah’s home with her mother, stepfather, and younger brother in 1999, when

she was five years old. J.T. and her three family members moved out in 2000 into a home

that was a short distance away. Beulah and C.T. continued to care for J.T. before and after

school, on some weekends, and during the summertime, until J.T. was nine or ten years

old. J.T. viewed Beulah as a grandfather and often stayed overnight in Beulah’s home.




        The record indicates that appellant’s middle name actually is Donnie, even though
          1

the caption of the complaint says Donald. Before trial, the state moved to amend the
complaint to identify Beulah as Nathaniel Donnie Beulah, and the district court granted the
motion. But the district court continued to use the original caption in its subsequent orders,
and this court’s caption follows the district court caption.

                                              2
       J.T. testified at trial that Beulah began sexually abusing her in 2000 when she was

approximately five years old. The first incident of sexual abuse that she remembers

occurred when she stayed at Beulah’s home for an overnight visit while her mother was

away. She was lying on a mattress on the main level of the home when Beulah entered the

room, sat next to her, and touched her vagina with his hand. The last incident of sexual

abuse that J.T. remembers occurred in approximately 2003, when she was eight or nine

years old. Beulah brought J.T. downstairs to his basement bathroom, which was connected

to his bedroom. Beulah removed her clothes and rubbed his penis on her vagina. J.T.

believes that Beulah tried to insert his penis into her vagina but was interrupted by a knock

on the bedroom door. Beulah sexually abused J.T. frequently in between the first and last

incidents by touching her chest and vagina, both over and under her clothes. Although

Beulah’s basement bedroom generally was off limits to all others, Beulah often lured J.T.

to the basement by offering her money, candy, or a treat. The abuse often occurred when

Beulah was the only adult at home. If other persons were present in the home, they were

upstairs on the main level or the upper level. J.T. did not tell anyone about the abuse

because she was afraid that Beulah would hurt her or her family.

       Beulah also was accused of sexually abusing J.B., who is C.T.’s daughter. J.B.

moved into Beulah’s home as an infant and lived there throughout her childhood. During

the period when she was sexually abused, J.B. lived with her mother, Beulah, four siblings,

and several other persons. J.B. moved out in 2003 or 2004, when she was 18 or 19 years

old, after she told Beulah that she would move out of the home if he did not move out.




                                             3
       J.B. testified at trial that, at the time Beulah sexually abused her, she believed that

he was her biological father. When J.B. was 13, Beulah told her that he wanted to teach

her about sex. Beulah typically sexually abused her in the afternoon, when her mother was

at work. The abuse often occurred while she and Beulah were watching television in

Beulah’s bedroom. Beulah often would remove her clothing and touch her vagina with his

hands. The abuse intensified until Beulah touched her vagina with his penis. The sexual

abuse ended when J.B. refused to go into Beulah’s bedroom with him. J.B. told no one

about the abuse because Beulah “asked [her] not to.” J.B. also testified that she once

entered Beulah’s bedroom and saw Beulah on top of J.T.

       In April 2013, an event triggered J.T.’s memory of her sexual abuse. After

discussing the issue with her mother, J.T. reported the abuse to the police. Shortly

thereafter, J.T.’s mother spoke with J.B. about J.T.’s report.          As a result of that

conversation, J.B. reported to the police that Beulah also had sexually abused her on

multiple occasions in 1998 and 1999, when she was approximately 13 and 14 years old.

       In December 2013, the state charged Beulah in a single complaint with criminal

conduct toward both J.T. and J.B. The complaint alleged three offenses: (1) first-degree

criminal sexual conduct toward J.B., in violation of Minn. Stat. § 609.342, subd. 1(a)

(1998); (2) first-degree criminal sexual conduct toward J.T., in violation of Minn. Stat.

§ 609.342, subd. 1(a) (2002); and (3) second-degree criminal sexual conduct toward J.B.,

in violation of Minn. Stat. § 609.343, subd. 1(b) (1998).




                                              4
       In July 2014, Beulah moved to sever counts 1 and 3 from count 2. The district court

granted the motion. This appeal is concerned solely with subsequent proceedings on count

2, which alleged criminal sexual conduct toward J.T.

       Before trial, the state moved to admit Spreigl evidence of Beulah’s alleged sexual

abuse of J.B. to show Beulah’s intent, absence of mistake, and common scheme or plan

with respect to J.T. Beulah opposed the state’s motion. At the outset of trial, the district

court granted the state’s motion, thereby allowing J.B. to testify that Beulah had sexually

abused her.

       The case was tried to a jury on seven days in July 2015. The state called five

witnesses: J.T., J.B., J.T.’s mother, C.T., and a police sergeant. Beulah testified at trial and

denied sexually abusing either J.T. or J.B. Beulah also called six other witnesses: four of

his children, a former girlfriend of one of his children, and a crime-scene investigator. The

jury found Beulah guilty of first-degree criminal sexual conduct toward J.T.

       Before sentencing, Beulah moved for a downward dispositional departure from the

presumptive guidelines sentencing range. The district court denied the motion and imposed

a presumptive sentence of 48 months of imprisonment. Beulah appeals.

                                       DECISION

                                     I. Spreigl Evidence

       Beulah argues that the district court erred by admitting J.B.’s testimony that Beulah

sexually abused her when she was a child.

       Beulah’s argument is governed by a rule of evidence that states, in relevant part:




                                               5
                     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. It may, however, be admissible
              for other purposes, such as proof of motive, opportunity, intent,
              preparation, plan, knowledge, identity, or absence of mistake
              or accident. In a criminal prosecution, such evidence shall not
              be admitted unless . . . the other crime, wrong, or act and the
              participation in it by a relevant person are proven by clear and
              convincing evidence . . . .

Minn. R. Evid. 404(b). Evidence of other crimes or bad acts may be admissible to prove a

common scheme or plan. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). Evidence

of other crimes or bad acts is known in Minnesota as “Spreigl evidence.” Id. (citing State

v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)). A district court must apply a five-

part test to determine whether Spreigl evidence is admissible. Minn. R. Evid. 404(b). Such

evidence is admissible if:

              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); see also State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006). This

court applies an abuse-of-discretion standard of review to a district court’s admission of

Spreigl evidence. State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007).

       In this case, there is no dispute that the state has satisfied the first, second, and third

requirements of the five-part test. Beulah challenges the admission of the state’s Spreigl

evidence under the fourth and fifth requirements.



                                                6
A.        Relevance

          Beulah contends that the district court erred by finding that the state’s Spreigl

evidence is relevant to the state’s case.

          When offering its Spreigl evidence, the state asserted that the evidence is relevant

to prove Beulah’s intent, the absence of mistake, and a common scheme or plan. The

district court found the state’s Spreigl evidence relevant for the asserted purposes. The

district court specifically found the Spreigl evidence relevant due to similarities between

the abuse of J.B. and J.T. in terms of the ages of the victims, the lack of a nearby parent,

the escalation from “non-criminal” touching to genital touching, the time frame of the

abuse, Beulah’s means of coercing compliance, and Beulah’s efforts to keep the conduct

secret.

          We begin by addressing the relevance of the state’s Spreigl evidence to the common

scheme or plan exception. To be relevant under this exception, Spreigl evidence must have

a “marked similarity in modus operandi to the charged offense.” Ness, 707 N.W.2d at 687-

88. “[I]f the prior crime is simply of the same generic type as the charged offense, it

ordinarily should be excluded.”        Clark, 738 N.W.2d at 346 (alteration in original)

(quotation omitted). It is well established that, in prosecutions for sexual abuse, Spreigl

evidence may be admitted under the common scheme or plan exception to establish that a

sexual act occurred. Id.; State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn. 1993).

In particular, if a defendant contends that a charge of criminal sexual conduct is a

fabrication, Spreigl evidence is admissible to rebut that contention so long as the evidence

is “sufficiently relevant to the charged crime.” Clark, 738 N.W.2d at 346.


                                               7
       Our comparison of the testimony of J.T. and the testimony of J.B. reveals that the

two witnesses described sexual abuse that was very similar. Each girl was a family member

or relative of Beulah. Each girl was abused in Beulah’s home when he typically was the

only adult present or when other persons were in other areas of the home. Each girl was

abused in Beulah’s basement bedroom, a room where others were specifically excluded.

Each girl’s abuse escalated to Beulah’s placing or rubbing his penis on the girl’s vagina.

Beulah used his familial authority over each girl to influence or threaten her into keeping

the abuse a secret. In these ways, the sexual abuse of J.T. and J.B. share marked similarities

in modus operandi. The facts of this case are comparable to Kennedy, in which the supreme

court affirmed the admission of Spreigl evidence in a sexual-assault case to show common

scheme or plan because the conduct in each situation was “nearly identical” and occurred

in the same bedroom. 585 N.W.2d at 391.

       Thus, the district court did not abuse its discretion when it determined that J.B.’s

testimony is relevant to show that Beulah committed criminal sexual conduct against J.T.

and J.B. according to a common scheme or plan. Because we conclude that the Spreigl

evidence is relevant for that purpose, we need not consider whether the evidence is relevant

for the other reasons asserted by the state.

B.     Probative Value and Unfair Prejudice

       Beulah also contends that the district court erred by finding that the probative value

of the state’s Spreigl evidence substantially outweighs the potential for unfair prejudice.

Specifically, he contends that the probative value of the Spreigl evidence was low and that




                                               8
the state’s Spreigl evidence was unfairly prejudicial because it “invit[ed] the jury to punish

[him] for acts other than the offense charged.”

       In determining whether the probative value of Spreigl evidence outweighs its

prejudicial impact, we balance the relevance of the evidence and “the State’s need to

strengthen weak or inadequate proof” against the risk that the evidence will be used as

propensity evidence. State v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009). In this case,

the probative value was relatively high. As discussed above, the state’s Spreigl evidence

tended to show that Beulah committed criminal sexual conduct against both J.T. and J.B.

according to a common scheme or plan. See supra part I.A. Beulah suggests that the state

did not need to corroborate J.T.’s testimony with J.B.’s testimony because J.T.’s testimony

alone was sufficient to prove the state’s case. But Beulah acknowledges that there was no

physical evidence of the alleged sexual abuse and that J.T. reported it years afterward. In

addition, Beulah denied having any sexual contact with J.T., thereby implying that J.T.

fabricated the accusation. For these reasons, the state’s Spreigl evidence had significant

probative value in light of the state’s need to prove its case. See Clark, 738 N.W.2d at 346;

Kennedy, 585 N.W.2d at 391-92; Wermerskirchen, 497 N.W.2d at 242; State v. Rucker,

752 N.W.2d 538, 550-51 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008).

       Beulah relies on Ness, in which the supreme court concluded that the state’s Spreigl

evidence that the defendant had sexually abused a child in the past was unfairly prejudicial.

Ness, 707 N.W.2d at 689-91. But in Ness, the state’s case was particularly strong, in part

because the state had a credible eyewitness to the alleged abuse. Id. at 690-91. This case

is distinguishable from Ness because the state had no such evidence.             Rather, the


                                              9
circumstances indicate that the state’s need for J.B.’s testimony was not insubstantial.

Furthermore, the possibility of unfair prejudice was lessened because the district court gave

the jury two cautionary instructions about the permissible uses of the Spreigl evidence,

immediately before the state presented the Spreigl evidence and again before the jury began

deliberating. See State v. Riddley, 776 N.W.2d 419, 428 (Minn. 2009) (stating that courts

“presume a jury follows a court’s cautionary instruction”); Kennedy, 585 N.W.2d at 392

(reasoning that cautionary instructions concerning Spreigl evidence lessened probability of

undue prejudice).

       Thus, the district court did not abuse its discretion when it determined that the

probative value of J.B.’s testimony evidence substantially outweighs the potential for

unfair prejudice. Therefore, the district court did not err by granting the state’s motion to

admit its Spreigl evidence.

                         II. Downward Dispositional Departure

       Beulah also argues that the district court erred by denying his motion for a

downward dispositional departure.

       The Minnesota Sentencing Guidelines provide for a presumptive sentence for a

felony offense.     Minn. Sent. Guidelines II.C (2003).      The presumptive sentence is

“presumed to be appropriate for all typical cases sharing criminal history and offense

severity characteristics.” Minn. Sent. Guidelines app. (2003). Accordingly, a district court

“shall utilize the presumptive sentence . . . unless the individual case involves substantial

and compelling circumstances.” Minn. Sent. Guidelines II.D. (2003); see also State v.

Kindem, 313 N.W.2d 6, 7 (Minn. 1981). If the district court departs from the presumptive


                                             10
guidelines range, the district court is required to state the reason or reasons for the

departure. Minn. Sent. Guidelines II.D. But if the district court does not depart, the district

court is not required to state reasons for imposing a guidelines sentence. State v. Johnson,

831 N.W.2d 917, 925 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013); State v.

Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).

       A district court may grant a downward dispositional departure from the presumptive

guidelines range if a defendant has a “particular amenability to individualized treatment in

a probationary setting.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). In considering

whether a defendant is particularly amenable to probation so as to justify a downward

dispositional departure, a district court may consider, among other things, “the defendant’s

age, his prior record, his remorse, his cooperation, his attitude while in court, and the

support of friends and/or family.” Id. If the defendant requests a downward dispositional

departure, the district court must “deliberately consider[]” the factors that are urged by a

defendant in support of the motion. State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App.

2002), review denied (Minn. Apr. 16, 2002). This court applies a very deferential standard

of review to a district court’s denial of a defendant’s motion for a downward dispositional

departure. See State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). This court will reverse

such a decision only if the district court abused its discretion. State v. Pegel, 795 N.W.2d

251, 253 (Minn. App. 2011).

       In this case, Beulah argued that a downward dispositional departure is appropriate

because he has been law abiding since offending, was cooperative with the district court,

has the support of family and friends, and has no conditional-release violations. Beulah


                                              11
also argued that incarceration would not be suitable for him because he was 65 years old,

in poor health, and suffering from cognitive deficits. The state opposed Beulah’s motion

and urged the district court to impose an executed sentence of 48 months of imprisonment,

which was the presumptive guidelines sentence at the time of the offense. See Minn. Sent.

Guidelines IV & V (2003). The state argued that Beulah is not amenable to probation

because he has not accepted responsibility for the crime or apologized to J.T. and, thus, is

unlikely to be rehabilitated in a probationary program.

       At the beginning of the sentencing hearing, the district court stated that it had

reviewed everything that had been submitted, which included a pre-sentence investigation

report, a psychosexual-evaluation report, Beulah’s memorandum of law, and numerous

letters from relatives. During the sentencing hearing, the district court received victim-

impact statements from J.T., J.T.’s mother, and J.B. The district court received an oral

statement from C.T. in support of Beulah and allowed Beulah to make a personal statement.

       At the conclusion of the sentencing hearing, the district court stated that it was

“deeply impressed by both the testimony of [J.T.] and [J.B.]” and that “[i]t was clear . . .

that the impact of that offense is deep and long-lasting.” Addressing Beulah directly, the

district court stated: “Despite all of the good that you have done in your life, I cannot find

substantial and compelling reasons to depart. To do so would undervalue the criminality

of the offense of which you have been convicted.” These and other aspects of the record

indicate that the district court “deliberately considered” the relevant factors and exercised

its discretion when it denied Beulah’s motion. See Mendoza, 638 N.W.2d at 483. No more




                                             12
was required of the district court. See Johnson, 831 N.W.2d at 925; Van Ruler, 378 N.W.2d

at 80.

         Beulah contends that the district court erred because it ignored the opinions stated

in a psychosexual-evaluation report. In that report, a psychologist recommended that

Beulah participate in outpatient sex offender treatment. Beulah’s contention is inconsistent

with the caselaw, which recognizes that a district court is not obligated to depart merely

because a mitigating factor is present. See Bertsch, 707 N.W.2d at 668; Kindem, 313

N.W.2d at 7-8; Pegel, 795 N.W.2d at 253-54. This court recently reiterated that “the

presence of factors supporting departure does not require departure.” State v. Abrahamson,

758 N.W.2d 332, 337 (Minn. App. 2008), review denied (Minn. Mar. 31, 2009). This case

is similar to Abrahamson, in which the district court denied a motion for a downward

dispositional departure despite a doctor’s opinion that the defendant, who was convicted

of criminal sexual conduct against a child, had a low risk of reoffending. Id. at 335-36.

The district court acknowledged that there was “some hope” for treatment of the defendant

and that his lack of a criminal history supported a dispositional departure. Id. at 336.

Nonetheless, the district court emphasized the serious nature of the defendant’s crime and

the need for punishment by way of incarceration. Id. This court affirmed the denial of the

motion for a downward dispositional departure. Id. at 337. Likewise, in this case, despite

the presence of factors that might support a downward dispositional departure, the district

court deliberately considered Beulah’s arguments and exercised its discretion by

concluding that a downward dispositional departure is inappropriate. The only question




                                              13
for this court is whether the district court abused its discretion, and we conclude that it did

not do so.

       Thus, the district court did not err by denying Beulah’s motion for a downward

dispositional departure.

       Affirmed.




                                              14
