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This opinion will be unpublished and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
A17-1488

State of Minnesota,
Respondent,

vs.

Keith Lamar Robinson,
Appellant.

Filed July 23, 2018
Affirmed
Kirk, Judge

Dakota County District Court
File No. 19HA-CR-16-3664

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

James C. Backstrom, Dakota County Attorney, Deanna N. Natoli, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his convictions of first-degree criminal sexual conduct, false
imprisonment, and threats of violence, arguing that the district court deprived him of his

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right to a speedy trial by granting the state’s motion for a continuance and that the district
court abused its discretion by admitting Spreigl evidence. We affirm.
FACTS
Appellant Keith Lamar Robinson met D.D., a young African American woman, in
September 2016 at D.D.’s workplace while she was working . They exchanged phone
numbers and began texting each other. Less than one week later, D.D. met appellant
outside of his house where they sat in her car and talked. The evening of September 20,
2016, they met in person for the second time at appellant’s house. Appellant suggested
that they go rent a movie, and appellant drove.
After renting the movie, D.D. expected to watch it at appellant’s house, but instead
appellant drove them to a lake, and they went for a walk. After the walk , it was late and
D.D. asked appellant to take her back to her car, which was still parked at appellant’s house.
Instead, appellant drove in the opposite direction and parked near a park, in West St. Paul.
Appellant played the movie in the car, but D.D. did not watch it. D.D . started to feel
uncomfortable, and appellant asked her why she was being quiet. At some point, appellant
asked D.D. to move to the backseat. D.D. was still feeling uncomfortable and did not want
to move but went to the backseat with appellant.
In the backseat, appellant became aggressive, pulled D.D.’s hair and then grabbed
her by the nec k and strangl ed her to the point that her v ision became blurry and she felt
lightheaded. Appellant told D .D. to stop playing with him and threatened to throw her
body in the river. Appellant also threatened D.D. not to call the police, and D.D. feared
for her life. Appellant then removed D.D.’s pants and underwear and sexually penetrated

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her with his penis. D.D. testified that she did not consent but felt she had to do “[w]hatever
he wanted.”
Appellant and D.D. later returned to the front seat and appellant sexually penetrated
D.D. a second time. They stayed in the car overnight. D.D. did not want to stay in the car
but felt that she had no choice. The next morning , appellant drove D.D. back to her car ,
and later that day, he texted, called, and left voicemails on D.D.’s phone. The following
day, D.D. sought medical attention and reported the incident to the police.
The state filed a complaint on September 28, 2016. Appellant made a speedy-trial
demand on October 26 . In December, the district court granted the state’s request for a
continuance of the trial beyond the 60-day speedy-demand timeline because the Bureau of
Criminal Apprehension (BCA) could not complete its DNA analysis until at least January
17, 2017 , and appellant did not stipulate as to what the DNA analysis would show.
Appellant’s trial began on January 23, 89 days after appellant’s speedy-trial demand.
On the second day of trial, the state received initial reports of another alleged act of
sexual assault by appellant of another young African American woman named A.W., in St.
Paul, in August 2016. The state provided the information to defense counsel but did not
seek to admit the alleged incident as Spreigl evidence during the first trial. The first trial
ended in a mistrial , at appellant’s request, after inadvertent prejudicial comments were
made by one of the state’s witness es. However, t he court ordered that a new trial
commence because the prosecutor did not intentionally elicit the testimony.
A second trial began on March 14, 2017. At the second trial, t he state sought to
admit, and the court allowed, the Spreigl evidence of the alleged incident involving A.W.

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and appellant. The jury found appellant guilty of first-degree criminal sexual conduct, false
imprisonment, and threats of violence. This appeal follows.
D E C I S I O N
I. Appellant was not denied his right to a speedy trial.
“The right to a speedy trial is guaranteed by the Sixth Amendment to the United
States Constitution and Article I, Section 6 of the Minnesota Constitution.” State v.
DeRosier, 695 N.W.2d 97, 108 (Minn. 2005). In Minnesota, “trial is to commence within
60 days from the date of the demand unless good cause is shown . . . why the defendant
should not be brought to trial within that period.” State v. Hahn , 799 N.W.2d 25, 29 -30
(Minn. App. 2011) (alteration in original) (quoting DeRosier, 695 N.W.2d at 108-09); see
also Minn. R. Crim. P. 11.09(b).
Here, appellant asserts that the district court violated his right to a speedy trial by
granting a continuance in the first trial beyond the 60 -day speedy-demand limit over his
objection and that his convictions mu st be reversed. “A speedy-trial challenge presents a
constitutional question subject to de novo review.” State v. Griffin, 760 N.W.2d 336, 339
(Minn. App. 2009).
To determine whether a delay deprives a defendant of his right to a speedy trial, a
court must balance four factors: (1) the length of the delay ; (2) the reason for the delay ;
(3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the
delay prejudiced the defendant. State v. Widell , 258 N.W.2d 795, 796 (Minn. 19 77)
(adopting the four -part test for speedy -trial demands articulated in Barker v. Wingo , 407
U.S. 514, 530 -33, 92 S. Ct. 2182, 2192 -93 (1972) ). “None of the factors is either a

5
necessary or sufficient condition to the finding of a deprivation of the righ t to a speedy
trial. Rather, they are related factors and must be considered together with such other
circumstances as may be relevant.” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999)
(quotation omitted).
A. Length of delay
“Under Minnesota law, a delay of more than 60 days from the date of the speedy -
trial demand is presumptively prejudicial, triggering review of the remaining three factors.”
State v. Johnson, 811 N.W.2d 136, 144 (Minn. App. 2012), review denied (Minn. Mar. 28,
2012). Here, appellant’s first trial began more than 60 days after his speedy-trial demand,
thus triggering a review of the remaining factors. Appellant does not challenge the timeline
of the second trial.
B. Reason for the delay
With respect to the second factor, “t he key question is whether the government or
the criminal defendant is more to blame for th[e] delay.” State v. Taylor, 869 N.W.2d 1,
19 (Minn. 2015) (alteration in original) (quotation omitted). “The Supreme Court assigned
the burden of protecting speedy-trial rights to the court system and prosecutors.” Windish,
590 N.W.2d at 317. A “‘deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government. ’” State v. Osorio, 891 N.W.2d 620,
628 (Minn. 2017) (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2192). “But ‘[a] more
neutral reason such as negligence . . . should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must rest

6
with the government rather than with the defendant.’” Id. (alterations in original) (quoting
Barker, 407 U.S. at 531, 92 S. Ct. at 2192).
The cause for the delay here was that the BCA was unable to complete its DNA
analysis before the originally scheduled t rial date . The state did not offer a further
explanation for the BCA’s inability to complete its analysis within 60 days of appellant’s
speedy-trial demand. The state later received the BCA report on January 17, 2017, and the
trial commenced shortly ther eafter on January 23 . Because there is no evidence of a
deliberate intent to delay by the state, this is a neutral reason for the delay and weighs
slightly against the state.
C. Strength of speedy-trial demand
An appellate court must review “the frequency and intensity of a defendant’s
assertion of a speedy-trial demand.” Windish, 590 N.W.2d at 318. Appellant asserted his
speedy-trial right on Octobe r 26, 2016 , and maintained his demand when he opposed
respondent’s motion for a continuance of the first trial. This factor weighs against the state.
D. Prejudice
“The Supreme Court has identified three interests that are protected by the right to
a speedy trial: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety
and concern of the accused; and (3) preventing the possibility that the defense will be
impaired.” Id. Preventing the possibility that the defendant’s case will be impaired is the
most serious interest. Id. “A defendant does not have to affirmatively prov e prejudice;
rather, prejudice may be suggested by likely harm to a defendant’s case.” Id. To establish
that a delay harms the defendant’s case, a defendant must “suggest evidentiary prejudice.”

7
Taylor, 869 N.W.2d at 20 (quotation omitted). Evidentiary prejudice may include damage
to a witness’s ability to recall “essential facts,” the unavailability of a witness, or
impairment to a defendant’s representation. State v. Jones , 392 N.W.2d 224, 235 -36
(Minn. 1986).
The first two protected interests weigh slightly against the state as appellant was
held in custody during the delay. However, appellant could have stipulated to what the
DNA evidence would show as a way to avoid the continuance for the BCA to complete its
report but did not do so. Although the first trial was delayed 29 days beyond the 60 -day
speedy-trial requirement so that the BCA could complete its DNA analysis, once the BCA
report was received the trial commenced less than a week later.
Under the third and most important interest, appellant does not identify any possible
harm to his defense caused by the delay of the first trial . Asserting the fact that a delay
occurred, without more, is insufficient to show evidentiary prejudice. Further, appellant’s
argument of prejudice is weakened b y the fact that he sought a continuance before the
second trial, which the district court denied. On this record, appellant failed to show
prejudice, and this factor favors the state.
Therefore, we conclude that appellant’s right to a speedy trial was not violated by
the 29-day delay beyond the 60-day speedy-demand requirement.
II. The district court did not err by admitting the Spreigl evidence.

Appellant argues that the district court erred by admi tting irrelevant and unfairly
prejudicial Spreigl evidence of an alleged incident of sexual assault of A.W. by appellant
in August 2016 . A.W. testified that she met appellant when he pulled over in his car to

8
talk to her while she was walking. He asked for her name and number, and she gave both
to him. Appellant and A.W. exchanged text messages and arranged to meet in person later
in the week. On August 1, appellant picked A.W. up at her house in the evening, they met
up with others, and then they returned to A.W.’s house. Because it was late A.W., allowed
appellant to stay over and sleep on her couch. At some point during the night into the early
morning, they sat on A.W.’s bed, and appellant tried to kiss A.W.’s neck. She told him
that she did not want to do that, and he stopped. A short while later, appellant kissed her
neck again, and this time he did not stop when she said no. Appellant then laid her down
on the bed, laid on top of her, and held her down with a hand on her neck. Appellant took
off A.W.’s underwear and sexually penetrated her with his penis . Afterward, appellant
went out to his car, and A.W. locked the door behind him. Appellant then came back, first
knocked on the door, then called her phone, then kicked the door, and finally went around
to A.W.’s bedroom window and broke it. Later that morning, appellant sent A.W. two text
messages. A.W. went to the hospital and reported the alleged incident to police later that
day.
Evidentiary rulings are generally within the district c ourt’s discretion and will not
be reversed absent an abuse of that discretion. State v. Kennedy , 585 N.W.2d 385, 389
(Minn. 1998). Appellant bears the burden of showing that the district court erred in
admitting the evidence and that he suffered prejudice as a result. Id.
Evidence of prior acts, commonly known as Spreigl evidence, “is not admissible to
prove the character of a person in order to show action in conformity therewith.” Minn. R.
Evid. 404(b); see State v. Spreigl , 272 Minn. 488, 139 N.W.2d 167 (1965). But Spreigl

9
evidence may be admitted for limited, specific purposes including: motive, opportunity,
intent, knowledge, identity, absence of mistake or accident, or a common scheme or plan.
Minn. R. Evid. 404(b); Kennedy, 585 N.W.2d at 3 89. Minnesota courts undertake a five -
step process in deciding whether to admit 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.

State v. Ness , 707 N.W.2d 676, 685 -86 (Minn. 2006). “If the admission of evidence of
other crimes or misconduct is a close call, it should be excluded.” Id. at 685. The district
court found, and appellant does not dispute, that the first two requirements were met here.
Appellant asserts that the Spreigl evidence failed the third, f ourth, and fifth requirements.
Appellant further asserts that because the state did not provide timely disclosure of the
Spreigl evidence to introduce it during the first trial, the state should not benefit from the
mistrial by being allowed to introduce it during the second trial. Appellate courts review
a district court’s admission of Spreigl evidence for an abuse of discretion. Ture v. State,
681 N.W.2d 9, 15 (Minn. 2004).
A. Clear and convincing evidence

Appellant argues that there was not clear and convincing evidence that the alleged
Spreigl incident occurred because appellant had not yet been charged with sexual assault
of A.W., there were several inconsistencies in A.W.’s statements, and A.W.’s testimony
was unreliable. “[A] Spreigl incident may be considered clear and convincing when it is

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highly probable that the facts sought to be admitted are truthful.” Ness, 707 N.W.2d at
686.
Prior to trial, a hearing was held on the admissibility of the Spreigl evidence. The
district court heard testimony from A.W. and an officer who investigated the incident. The
court also considered BCA reports, a report of a sexual assault nurse examiner, a statement
from appellant t o the police, and alleged text messages between A.W. and appellant
following the incident. In his statement to police, appellant initially denied knowing A.W.,
but after being confronted with DNA evidence, appellant admitted that he had sexual
intercourse with A.W. in August 2016, that she locked him out of her house, and that he
broke her window. The district court found that these facts were undisputed. The only
disputed factual issue was whether A.W. consented to sexual penetration with appellant.
The district court weighed the inconsistencies in A.W.’s version of events and found
that her testimony and explanations were credible, and that the undisputed evidence far
outweighed any inconsistencies in A.W.’s story. We defer to the district court’s credibility
determinations. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, Minnesota
v. Dickerson , 508 U.S. 366, 113 S. Ct. 2130 (1993). The district court’s findings are
supported by the record, particularly by appellant’s admissions. On this record, the district
court properly exercised its discretion by finding that there was clear and convincing
evidence to support appellant’s participation in the Spreigl incident.
B. Relevance

Appellant contends that the district court erred in admitting the Spreigl evidence
because the alleged Spreigl incident with A.W. was not sufficiently similar to the charged

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offenses with D.D. Appellant argues that the alleged Spreigl incident with A.W. occurred
at A .W.’s house, rather than in a car, and it involved allegations of property damage ,
whereas the incident with D.D. did not.
Here, the district court found that the Spreigl evidence was relevant to show a
common scheme or p lan, motive, knowledge, opportunity, intent , and preparation by
appellant, and to refute allegations of fabrication or consent. In determining whether an
act is admissible under the common scheme or plan exception, it must have a “marked
similarity in modus operandi to the charged offense.” Ness, 707 N.W.2d at 688 (quotation
omitted). “[I]f the prior crime is simply of the same generic type as the charged offense, it
ordinarily should be excluded.” State v. Shannon , 583 N.W.2d 579, 585 (Minn. 1998) .
“[T]he closer the relationship between the other acts and the charged offense, in terms of
time, place, or modus operandi, the greater the relevance and probative value of the other-
acts evidence and the lesser the likelihood that the evidence will be used f or an improper
purpose.” Ness, 707 N.W.2d at 688.
Appellant argues that although both alleged incidents were generally the same type
of offense —criminal-sexual conduct —that does not necessarily mean that the Spreigl
evidence is admissible as the allegations involved were different. Appellant relies on State
v. Clark , in which the Minnesota Supreme Court found that a district court abused its
discretion in admitting Spreigl evidence, but concluded that a new trial was not warranted
because the defendant did not establish that he was prejudiced by the error . 738 N.W.2d
316, 347-48 (Minn. 2007). In Clark, the defendant’s acts took place 12 years apart; the
only similarities between the Spreigl incident and the charged offense were that both acts

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involved a gun used to threaten the victims , both acts occurred in the victims ’ bedroom,
and both acts involved vaginal penetration or attempted vaginal penetration by the
defendant. Id. at 346.
Here, the charged incident and the alleged Spreigl incident occurred less than two
months apart in the same metropolitan area. The record shows that there were multiple
similarities between the incidents including: Both alleged victims were young, African
American women; appellant initially approached both in public; the incidents happened
late at night; appellant had only known the alleged victims a short period of time when the
incidents occurred; appellant initially made them feel comfortable around him; appellant
put his hand(s) on their necks during the incidents to gain compliance; the alleged victims
initially said “no” but appellant persisted and then vaginally penetrated them with his penis;
and appellant sent text messages to the alleged victims after the incidents.
Based upon this record, the district court properly exercised its discretion by finding
that the alleged Spreigl incident with A.W. was markedly similar in time, place, and modus
operandi to the charged offenses involving D.D., and that it was relevant to show a common
scheme or plan. Because the Spreigl evidence was relevant to show a common scheme or
plan, we need not reach whether it was also relevant to show motive, knowledge,
opportunity, intent, and preparation by appellant, as the district court found.
C. Probative value versus unfair prejudice
Appellant argues that even if the Spreigl evidence was relevant, the district court
still erred by admitting it because its prejudicial effect outweighed its probative value .
After finding Spreigl evidence is relevant, Minnesota courts must balance the evidence’s

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probative value against the risk that the evidence will be used as propensity evidence. State
v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009). As part of this balancing, the district court
should consider “how necessary the Spreigl evidence is to the state’s case.” Kennedy, 585
N.W.2d at 391 (quotation omitted). If the state’s other evidence is weak or inadequate, and
the Spreigl evidence is needed for the state to meet its burden of proof, then the evid ence
may be admitted. Id. at 391-92. However, Ness clarified that this is not an independent
basis for admission, but rather is part of the court’s balancing test in weighing the
evidence’s probative value against its prejudicial effect. 707 N.W.2d at 690.
The Spreigl evidence was highly probative on the issue of D.D.’s lack of consent.
Much of the state’s case relied on D .D.’s testimony. Appellant challenged D.D.’s
credibility, and claimed that the sexual penetration was consensual. A.W.’s testimony
alleging that appellant committed a very similar non-consensual sexual penetration of A.W.
suggested a common scheme or plan and bolstered D.D.’s testimony that appellant sexually
penetrated her without consent . Id. (“[T]he evidence of other offenses ma y 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.” (quotation omitted) ). The district court gave a
cautionary instruction both before admitting the Spreigl evidence, and during its final jury
instructions, reduc ing the chance that the jury would use the evidence for an improper
purpose or that they would convict appellant based on a propensity to commit sexual
offenses rather than on the evidence as a whole. See State v. Welle, 870 N.W.2d 360, 366
(Minn. 2015 ) (explaining that “[w]e presume that the jury followed these cautionary
instructions”). These cautionary instructions limited the potential prejudice of admitting

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the Spreigl evidence. On this record, the probative value of A .W.’s testimony about the
alleged incident outweighed its prejudicial effect, and we conclude that the district court
did not abuse its discretion by admitting this evidence.
D. Second trial
Because the state did not disclose the Spreigl evidence prior to the first trial and was
unable to admit it at the first trial, appellant asserts that the district court erred by allowing
the state to introduce it at the second trial. Appellant also argues that because testimony
from a state’s witness led to the mistrial, the state should not benefit from the mistrial by
being allowed to introduce the Spreigl evidence at the second trial. Appellant cites to no
legal authority to support this position.
Issues not briefed on appeal are not properly before this court. State v. Butcher, 563
N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). “An assignment
of error in a brief based on ‘mere assertion’ and not supported by argument or authority is
waived unless pr ejudicial error is obvious on mere inspection.” State v. Wembley , 712
N.W.2d 783, 795 (Minn. App. 2006), aff’d, 728 N.W.2d 243 (Minn. 2007). Appellant
merely asserts that admitting the Spreigl evidence at the second trial was fundamentally
unfair and erro neous, without citing to any legal authority or support for his assertion .
Because appellant failed to adequately brief this argument on appeal and because no
prejudicial error is obvious on mere inspection, we decline to reach this issue.
E. Effect on the verdicts
Even if we were to conclude that the district court erred by admitting the Spreigl
evidence, appellant would not be entitled to a new trial. “To warrant a new trial, the

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erroneous admission of Spreigl evidence must create a reasonable possibility that the
wrongfully admitted evidence significantly affected the verdict.” Fardan, 773 N.W.2d at
320 (quotation omitted). This court considers several factors in determining if erroneously
admitted Spreigl evidence significantly impacted the verdict, including: (1) the strength of
the state’s other evidence; (2) the presence of a cautionary instruction; and (3) the extent
of the state’s reliance on the evidence during closing argument. State v. Thao, 875 N.W.2d
834, 839 (Minn. 2016). It is appellant’s burden to show that he was prejudiced by the
evidence’s admission. Fardan, 773 N.W.2d at 320.
Here, the jury necessarily found D.D. credible by finding appellant guilty. Demars
v. State, 352 N.W.2d 13, 16 (Minn. 1984) (“The credibility of the witnesses and the weight
to be given their testimony are determinations to be made by the factfinder.”). The record
shows that the state presented strong evidence to bolster D.D.’s testimony and to undermine
appellant’s credibility . The state offered a police inter view of appellant following the
incident with D.D. that demonstrated his shifting story and lack of candor. The jury saw
text messages from appellant to D.D., including an apology to her, stating “I promise it
will never happen again .” Photographs of scratches on D .D.’s neck were also admitted
into evidence. In addition to this strong evidence of appellant’s guilt, the district court gave
the jury two cautionary instructions regarding the Spreigl evidence involving the alleged
incident with A.W. , reducing the risk that the evidence was misused by the jury as
propensity evidence.
Although the state briefly referenced A.W.’s testimony about the alleged incident
during closing argument, the state did not dwell on it. Indeed, in referencing A.W.’s

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testimony, the state again cau tioned the jury to use the evidence only to determine
appellant’s guilt in this case. T he state’s closing argument focused on D .D.’s testimony
and appellant’s shifting story during his police interview , not on the Spreigl evidence.
Based on this record, appellant has failed to show that evidence of the alleged incident with
A.W. significantly affected the jury’s verdicts.
Affirmed.