State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0192

State of Minnesota,
Respondent,

vs.

Donald Deundre Harris, Jr.,
Appellant

Filed January 16, 2018
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-14-33747

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Rodenberg, Judge; and Reilly,
Judge.

U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that he is entitled to a new trial because : (1) the district court
abused its discretion by admitting Spreigl evidence; (2) the district court abused its
discretion by excluding evidence that the victim had pre viously engaged in prostitution;

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and (3) the state failed to disclose evidence , which constituted Brady and discovery
violations. We affirm.
FACTS
In January 2003, T.S. invited two people to her apartment to celebrate her birthday.
Her guests invited another person to join them. That individual introduced himself as “Q.”
At some point, Q went into T.S .’s bedroom and asked T.S . to join him, saying that he
wanted to talk privately. Q either pushed or pulled T.S. onto the bed and start ed kissing
her. T.S. asked Q to leave, at which point he pinned her down and covered her mouth. Q
penetrated T.S.’s vagina with his penis, ejaculated, walked out of her bedroom , and soon
thereafter left her apartment. T.S. called 911. Police transported her to the hospital, where
a sexual-assault nurse collected vaginal and perineal swabs for DNA. T.S.’s case went
dormant after completion of the initial investigation.
In October 2008, K.H. met a man who identified himself as “Don .” K.H. invited
Don to her home that evening along with three of her friends. After K.H.’s friends left her
home around midnight, Don sat next to K.H. on a couch, put his arm around her, and started
kissing her. K.H. told Don that she was not comfortable doing anything other than kissing,
at which point Don grabbed her hair and put his hand around her throat. Don put a hand
down K.H.’s pants, then attempted to force oral sex on her. K.H. resisted, and Don pushed
her down on the couch, removed her pants, and penetrated her vagina with his penis. Don
eventually got up, went to the bathroom, and left. K.H. went to the hospital, where a nurse
took swabs for DNA that were used to develop a DNA profile for K.H.’s attacker.

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In 2010, a forensic analyst tested T.S .’s vaginal swab and found the presence of
semen. A predominant DNA profile was obtained from the swab , but without a known
suspect, the investigation of T.S.’s assault went cold.
In 2014, appellant Donald Deundre Harris, Jr. emerged as a suspect in T.S .’s case.
A DNA sample was collected from Harris, which m atched the sample taken from T.S .
Police interviewed Harris and he admitted using the nickname “Don Q.”
Harris was charged with third-degree criminal sexual conduct. The state moved to
admit Spreigl evidence of the 2008 sexual assault. The district court granted the motion
for the purpose of demonstrating a common scheme or plan. The state called four witnesses
to testify about the 2008 incident, including K.H., the nurse who collected DNA samples,
and two forensic analysts.
The day after T.S. testified, the prosecutor spoke with the v ictim-witness advocate
about T.S.’s testimony. The advocate informed the prosecutor abo ut a prior conversation
with T.S. about “the DNA.” The advocate recounted that T.S . did not want to discuss it,
but T.S. told the advocate that her boyfriend was “making her do things she didn’t want to
do while he was in jail.” The advocate believed that T.S . was referring to forced
prostitution.
Upon learning of the conversation between T.S . and the advocate, the prosecutor
notified defense counsel of T.S.’s statement and the advocate’s impression. Harris moved
for a mistrial or, in the alternative, a continuance to investigate T.S .’s statement. The
district court denied these motions. Harris then moved to admit evidence of T.S .’s prior
sexual conduct pursuant to Minn. R. Evid. 412. The district court denied Harris’s motion.

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The jury found Harris g uilty and the district court sentenced him to 68 months in prison.
This appeal followed.
D E C I S I O N
Spreigl evidence
Harris argues that the district court abused its discretion by admitting evidence of
the 2008 sexual assault. Evidentiary rulings rest within the discretion of the district court
and will not be reversed absent a clear abuse of discretion. State v. Amos, 658 N.W.2d 201,
203 (Minn. 2003). On appeal, Harris bears the burden of establishing that the district court
abused its discretion and that he was prejudiced. See id. Prejudice exists when “there is a
reasonable possibility that the wrongfully admitted evidence sig nificantly affected the
verdict.” State v. Clark, 738 N.W.2d 316, 347 (Minn. 2007) (quotation omitted).
Generally, evidence of other crimes or misconduct is inadmissible to prove a
defendant’s character to show that he acted in conformity with that character. State v.
Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). But this evidence may be admissible for
the “limited purpose of showing motive, intent, absence of mistake or accident, identity, or
a common scheme or plan. ” Id. (citing Minn. R. Evid. 404(b)). The supreme court has
developed a five-step process for determining whether to admit this evidence:
(1) [T]he 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 convi ncing evidence that the
defendant participated in the prior act;
(4) the evidence must be relevant and material to the state’s
case; and

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(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006). If the admission of this evidence is
a close call, it should be excluded. Id. at 685.
Harris concedes that the state provided notice of its intent to admit Spreigl evidence,
but argues that the state failed to meet the other requirements. First, Harris argues that the
state failed to clearly indicate what the Spreigl evidence was offered to prove. “Implicit in
the requirement that the proponent of Spreigl evidence disclose its purpose is that there
also be some showing or determination that the evidence reasonably and genuinely fits that
purpose.” State v. Montgomery, 707 N.W.2d 392, 398 (Minn. App. 2005). It is insufficient
to merely recite a purpose listed in rule 404(b) “without also demonstrating at least an
arguable legitimacy of that purpose.” Id.
The state sought the admission of that evidence “to prove intent, motive, identity,
absence of mistake or accident, and/or common scheme or plan.” The state filed a 13-page
memorandum detailing how the Spreigl evidence was offered for each purpose. The state
satisfied the second element of the Spreigl analysis.
Second, Harris argues that the state failed to prove his participation in the incident
by clear and convincing evidence. “[A] defendant’s participation in a Spreigl incident may
be considered clear and convincing when it is highly probable that the facts sought to be
admitted are truthful.” Ness, 707 N.W.2d at 686. The testimony of the victim of a Spreigl
offense may, by itself, be sufficient to prove the offense by clear and convincing evidence.
Kennedy, 585 N.W.2d at 389.

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Harris argues that the district court abu sed its discretion by relying on the state’s
written offer of proof to satisfy this step of the Spreigl analysis. However, the supreme
court has rejected this argument and permitted district courts to rely on an offer of proof in
the form of a memorandum. See id. at 390 ( stating that there was “no merit” to the
argument that the state failed to satisfy the clear -and-convincing standard because the
district court permitted the state to submit its offer of proof in a memorandum).
Here, the state asserted that Harris introduced himself to the 2008 victim as “Don
Q[,]” waited until she was alone, placed his hands around her neck, pulled off her clothes,
attempted to force oral sex, and pe netrated her vagina with his penis. At trial, the 2008
victim’s testimony was consistent with this version of events. Furthermore, she positively
identified Harris in a photographic lineup and Harris’s DNA matched the DNA profile of
her assailant. The state proved Harris’s participation by clear-and-convincing evidence.
Harris also argues that the district court mistakenly ruled that the Spreigl offense
was material and relevant, first, because the Spreigl offense was not markedly similar in
time, and second, because the Spreigl offense and the charged offense were not sufficiently
similar to justify admission to demonstrate a common scheme or plan. “ Spreigl evidence
need not be identical in every way to the charged crime, but must instead be sufficiently or
substantially similar to the charged offense —determined by time, place and modus
operandi.” Id. at 391. The common-scheme-or-plan exception covers only conduct with
a marked similarity in modus operandi to the charged offense. Ness, 707 N.W.2d at 689.
The supreme court has declined to adopt a bright-line rule to determine whether a prior bad

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act has lost its relevance on the basis of remoteness. Id. at 688 (citing State v. Washington,
693 N.W.2d 195, 201 (Minn. 2005)).
Here, t he Spreigl offense occurred five years after the charged offense. Harris
argues that “five years is too distant to satisfy the substantial similarity standard.” But the
supreme court has upheld the admission of Spreigl evidence significantly more remote than
five years. See Washington, 693 N.W.2d at 202 -03 (affirming admission of 16-year-old
Spreigl evidence); see also State v. Wermerskir chen, 497 N.W.2d 235, 237, 243 (Minn.
1993) (affirming admission of 19-year-old Spreigl evidence).
Furthermore, the district court found that the charged offense and the Spreigl offense
bore numerous similarities. In particular: (1) Harris met each victim the day of the incident;
(2) Harris initiated physical contact with each victim and his advances were rejected; (3)
Harris isolated each victim; (4) once alone with each victim, Harris made sexual advances;
(5) Harris used force to incapacitate each victim, applying that force to the face or neck;
(6) Harris forcibly removed each victim’s pants; (7 ) Harris vaginally penetra ted e ach
victim with his penis; and (8 ) Harris left each victim’s residence shortly following the
sexual assault. These similarities equal or exceed the similarities in other cases in which
the supreme court has affirmed the admission of Spreigl evidence to demonstrate a
common scheme or plan. See State v. Welle , 870 N.W.2d 360, 366 (Minn. 2015)
(concluding that the charged offense and Spreigl offense were markedly similar because
both involved the defendant punch ing an individual’s head, a verbal disagre ement
preceding other acts, a disagreement of minor significance, the defendant claiming self -
defense, and the defendant showing no visible signs of injury from the altercations). The

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record supports the district court’s conclusion that the charged offense and Spreigl offense
were markedly similar.
Finally, Harris argues that the probative value of the Spreigl evidence was
outweighed by its risk of unfair prejudice. Even if Spreigl evidence is relevant, it “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” Minn. R. Evid. 403. The closer the relationship in time, place, and modus
operandi between the Spreigl offense and the current charge, the less likely the jury will
use the evidence improperly. State v. Blom, 682 N.W.2d 578, 612 (Minn. 2004). When
balancing the probative value of Spreigl evidence against its potential for unfair prejudice,
a district court considers the state’s need for the evidence. Ness, 707 N.W.2d at 690. The
supreme court has explained necessity as follows:
“Need” for other-crime evidence is not necessarily the absence
of sufficient other evidence to convict, nor does exclusion
necessarily follow from the conclusion that the case is
sufficient to go to the jury. A case may be sufficient to go to
the jury and yet the evidence of other offenses may be needed
because, as a practical matter, it is not clear that the jury will
believe the state’s other evidence bearing on the disputed issue.

State v. Bolte, 530 N.W.2d 191, 197 n.2 (Minn. 1995).
Here, the Spreigl evidence had high probative v alue because it corroborated T.S .’s
account of the sexual assault. Furthermore, as the district court noted, Harris indica ted an
intent to raise a consent defense, and the Spreigl evidence supported the state’s position
that Harris had a common scheme or plan to commit a sexual assault.
Harris asserts that the Spreigl evidence was unfairly prejudicial because
presentation of that evidence consumed an undue amount of time, and confused and misled

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the jury. Unfair prejudice in the Spreigl context refers to “the unfair advantage that results
from the capacity of the evidence to persuade by illegitimate means.” Montgomery, 707
N.W.2d at 399 (quotation omitted). The reading of cautionary instructions lessens the
probability of undue weight being given by the jury to the Spreigl evidence. See State v.
Slowinski, 450 N.W.2d 107, 114-15 (Minn. 1990).
Here, the state presented four witnesses to testify about the Spreigl incident, but this
testimony was not redundant, and “the state had the right to present evidence of the details
of the [Spreigl incident].” Ture v. State, 681 N.W.2d 9, 16 (Minn. 2004). The district court
also gave the jury cautionary instructions before the state introduced the Spreigl evidence
and during its final instructions, and then referred the jury to its cautionary instruction in
response to a jury question concerning the relevance of the Spreigl evidence. The probative
value of the Spreigl evidence was not outweighed by its risk of unfair prejudice and the
district court correctly admitted evidence of the 2008 incident.
Rule 412 evidence
Harris argues that the district court abused its discretion by denying his motions to
admit evidence of T.S .’s involvement in prostitution and to grant a hearing to assess the
evidence before ruling on its admissibility.
Generally, in a prosecution for cr iminal sexual conduct, “evidence of the victim’s
previous sexual conduct shall not be admitted nor shall any reference to such conduct be
made in the presence of the jury.” Minn. R. Evid. 412(1). When the victim’s consent is a
defense, evidence of the vi ctim’s prior sexual conduct “tending to establish a common
scheme or plan of similar sexual conduct under circumstances similar to the case at issue”

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may be admissible. Id. (1)(A)(i). Rule 412 lays out the procedure to introduce e vidence
of prior sexual conduct. Id. (2). T he accused must make a motion setting out with
particularity an offer of proof of the evidence the accused seeks to admit. Id. (2)(A). If
the district court deems that offer of proof sufficient, the court shall conduct a hearing
outside the presence of the jury allowing the accused to make a full presentation of the
offer of proof. Id. (2)(B).
“To qualify as a pattern of clearly similar sexual behavior, the sexual conduct must
occur regularly and be similar in all material respects.” State v. Davis, 546 N.W.2d 30, 34
(Minn. App. 1996), review denied (Minn. May 21, 1996). Conduct involving an agreement
to trade sex for money bears no clear similarity to conduct involving the exchange of sex
for drugs. Id. at 35.
The district court’s conclusion that evidence of T.S .’s involvement in prostitution
was “remote and uninstructive” is supported by the record . In his offer of proof, Harris
stated that T.S. told a victim-witness advocate that, at the time of the offense, her boyfriend
required her to do things that she would not have otherwise done. Harris also off ered that
the state spoke to T.S. again and disclosed to the defense that her boyfriend “did prostitute
her but 8 months after he got out of jail. Not before and not during [the] s exual assault.
For money not drugs and not for her—he got [the] money. Only happened a few times and
she stopped it.” Harris offered no specific evidence indicating that the prostitution actually
occurred prior to or contemporaneously with the charged o ffense. Fur thermore, even
assuming that T.S .’s statements about the timing of the prostitution were not truthful,
Harris’s offer of proof contained no evidence suggesting that the sexual conduct involved

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trading sex for drugs. Instead, Harris’s offer of proof suggested that T.S. traded sex for
money, not drugs. Minnesota caselaw holds that trading sex for drugs is not sufficiently
similar to trading sex for money such that this evidence would demonstrate a pattern of
clearly similar behavior. See id., 546 N.W.2d at 35 (stating that an agreement to trade sex
for money bears no clear similarity to exchanging sex for drugs). We hold that the district
court correctly excluded evidence of T.S.’s involvement in prostitution.
Harris also argues that he was entitled to a hearing pursuant to rule 412(2)(D). If
new information is di scovered after the date of the r ule 412(2)(B) hearing or during trial
that makes evidence of prior sexual conduct admissible, the accused may make an offer of
proof and the district court shall hold an in camera hearing to determine whether the
proposed evidence is admissible. Minn. R. Evid. 412(2)(D).
The district court concluded that Harris was not entitled to an in camera hearing
because it had just held a hearing pursuant to rule 412(2)(B) and there was no additional
information the district court could gain from holding another hearing. This conclusion is
consistent with rule 412. Harris offered no evidence after the rule 412(2)(B) hearing that
would make T.S.’s involvement in prostitution admissible. We hold that the district court
correctly determined that Harris was not entitled to an additional hearing.
Brady/Discovery violations
Harris argues that he is entitled to a new trial because the st ate’s late disclosure of
T.S.’s statement and the victim -witness advocate’s impression that she was referring to
forced prostitution constituted both a Brady violation and a discovery violation.

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Brady violations present mixed questions of law and fact, whi ch this court reviews
de novo. Pederson v. State, 692 N.W.2d 452, 460 (Minn. 2005). Determining whether a
discovery violation took place is an issue of law , which this court reviews de novo. State
v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). However, this court reviews the district
court’s decision whether to impose sanctions for discovery violations for an abuse of
discretion. Id. This court also reviews the denial of a motion for a mistrial for an abuse of
discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).
Brady violation
In Brady v. Maryland, the United States Supreme Court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196 -97 (1963).
“Thus, in criminal cases, the state has an affirmative duty to disclose evidence that is
favorable and material to t he defense.” State v. Williams , 593 N.W.2d 227, 234 (Minn.
1999). Whether the individual prosecutor knows of evidence favorable to the defense is
not dispositive for Brady purposes. Id. at 235. Rather, the prosecutor must disclose
exculpatory information in the possession or control of the prosecution staff and anyone
else who has participated in the investigation and who regularly reports to the prosecutor’s
office. Id.
A Brady violation is composed of three elements. Pederson, 692 N.W.2d at 459.
First, the evidence must be favorable to the accused, either because it is exculpatory or
because it is impeaching. Id. Second, the evidence must have been willfully or

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inadvertently suppressed by the state. Id. Finally, the accused must have been prejudiced
as a result. Id. All three elements must be met to constitute a Brady violation. Id. A
defendant is not entitled to a new trial unless the evidence is “material,” meaning that “there
is a reasonable probability that, had the evidence been disclo sed to the defense, the result
of the proceeding would have been different.” Id. at 460 (quotation omitted). A
“reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id.
(quotation omitted).
As stated previously, evidence relating to T.S.’s engagement in prostitution was not
admissible. Because Harris could not have introduced this evidence even if it had been
disclosed earlier, this evidence was not material. Consequently, Harris was not prejudiced
by the late disclosure of this evidence, and this late disclosure does not constitute a Brady
violation. The district court did not err when it denied Harris’s motion for a mistrial on
that basis.
Discovery violation
At the defense’s request and before the rule 11 omnibus hearing, the prosecutor must
allow access to “all matters within the prosecutor’s possession or control that relate to the
case, except as provided in Rule 9.01, subd. 3. ” Minn. R. Crim. P. 9.01, subd. 1. The
prosecutor must also make certain disclosures, including “the substance of oral statements”
that are known to the prosecutor and relate to the case. Id., subd. 1(2)(c). Prosecutors also
have a continuing duty to disclose information learned in interviews with potential
witnesses. State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn.
Feb. 12, 1993).

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In determining whether to impose sanctions for a discovery violation , the district
court considers “(1) the reason why disclosure was not made; (2) the extent of prejudice to
the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4)
any other relevant factors.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Failure
to consider these factors constitutes an abuse of discretion. State v. Sailee, 792 N.W.2d 90,
95 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Nonetheless, a conviction
will stand if the error was harmless beyond a reasonable doubt. Id. “An error is harmless
if the jury’s verdict is surely unattributable to the error.” Id. (quotation omitted).
Because the prosecutor has a duty to disclose “the substance of oral statements” that
relate to the case, the prosecutor should have disclosed, at an earlier time, T.S.’s statement
to the victim -witness advocate. See Minn. R. Crim. P. 9.01, subd. 1(2)(c). The district
court denied Harris’s request for a continuance after the state’s disclosure but failed to
make specific findings concerning the Lindsey factors, which constitutes an abuse of
discretion. See Sailee, 792 N.W.2d at 95.
Nonetheless, this error was harmless and does not warrant a new trial. First, as the
district court stated, the discovery violation was likely inadvertent. Second, and most
importantly, Harris was not prejudiced because any discussion of T.S.’s engagement in
prostitution was inadmissible. Therefore, the state’s failure to timely disclose these
statements did not affect the jury’s verdict. Because the district court’s failure to discuss
the Lindsey factors was harmless, Harris is not entitled to a new trial.
Affirmed.