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This opinion will be unpublished and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
A17-1544

State of Minnesota,
Respondent,

vs.

Larry Donnell Griffin,
Appellant.

Filed August 27, 2018
Affirmed in part and remanded
Schellhas, Judge

Ramsey County District Court
File No. 62-CR-16-7992

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

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

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

Considered and decided by Ross, Presid ing Judge; Schellhas, Judge; and Kirk,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his convictions of first-degree criminal sexual conduct,
arguing that the district court improperly admitted hearsay and Spreigl evidence. We affirm
appellants conviction on count on e and remand to the district court to vacate appellant’s
conviction on count two.
FACTS
On August 30, 2016, St. Paul police offi cers received a report of a rape. Upon
investigation, the officers learned that earli er that night, after victim A.M. left her
boyfriend’s St. Paul house on foot, appellant Larry Griffin pulled alongside her, introduced
himself as Larry, and offered her a ride to, and later from, her friend’s home. After picking
up A.M. from her friend’s home, Griffin told A.M. that he had to check on something. He
then drove into an alley, pulled out a gun, told A.M. to rem ove her clothes, and vaginally
penetrated her with his penis. Griffin then allowed A.M. to dress and drove her to her
friend’s home, where she obtained a ride to her home in Lino Lakes. Once home, A.M.
called an aunt, described what had happened, and went to the hospital.
At the hospital, A.M. spoke with Officer Sean Maloney, and a sexual-assault nurse
examiner examined her. During the exam, the nurse obtained DNA that matched Griffin’s
DNA profile and also matched DNA recovered in two other rape cases. St. Paul police
arrested Griffin in November 2016, and found an air-gun in his van. Griffin admitted that
he had given A.M. a ride on A ugust 30, and claimed that he had hung out with her at her
friend’s home but denied that he and A.M. had sexual intercourse.

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Respondent State of Minnesota charged Gr iffin with one count of first-degree
criminal sexual conduct (CSC) (fear of grea t bodily harm) and one count of first-degree
CSC (armed with a dangerous weapon). The state moved to admit Spreigl evidence of
Griffin’s rape of another victim, J.D., to show a common scheme or plan. The district court
found that Griffin’s rape of J.D. was suppo rted by clear and convincing evidence. Noting
that DNA obtained from both A.M. and J.D. matched Griffin’s DNA, the court found that
Griffin’s rape of J.D. was “strikingly similar” to his alleged rape of A.M. and evidenced a
common scheme or plan between the two alle ged rapes. The court also found that the
probative value of J.D.’s testimony was not outw eighed by the risk of unfair prejudice to
Griffin, and the court allowed admission of the Spreigl evidence.
The state presented testimony at trial from A.M., A.M.’s aunt, Officer Maloney, the
sexual-assault nurse examiner, a DNA expert from the Minnesota Bureau of Criminal
Apprehension, J.D., and Sergeant Cory Tell, who investigated the incident. The state also
introduced numerous exhibits, including photographs of Gri ffin’s van, photographs of
A.M. taken at the hospital, results of A.M.’s sexual-assault exam, and a note describing the
alleged rape that J.D. had written to an investigating officer.
Griffin testified that he had met A.M. at a gas station prior to August 30, and that
they had used drugs together. He claimed that A.M. invited him over to her friend’s home
to do drugs, and he described the friend’s ho me. Griffin claimed that he and A.M. had
consensual sex, and that he told the arresti ng officer that he did not have sex with A.M.
because he did not remember it at the time due to his drug use around the time of his arrest.
Griffin also claimed that he knew J.D. but denied having sex with her.

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The jury found Griffin guilty on both counts of first-degree CSC. The district court
adjudicated Griffin guilty on count one and sentenced him to 216 months’ imprisonment.1
This appeal follows.
D E C I S I O N
I.
Griffin argues that the district cour t erred by admitting A.M.’s out-of-court
statements to her aunt and to Sergeant Tell. Griffin argues that the statements likely played
a significant role in the jury’s verdict and that he therefore is entitled to a new trial. We
disagree. “‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn.
R. Evid. 801(c). An out-of-court statement is not admissible as substantive evidence unless
it is non-hearsay or falls within an exception to the hearsay rule. Minn. R. Evid. 802.
Appellate courts will not reverse based on an evidentiary error unless “a reasonable
possibility” exists that the error “substantially affected the verdict.” State v. Williams, 908
N.W.2d 362, 365 (Minn. 2018) (quotation omitted). Reversal requires that an appellant
show both that the district court abused its discretion in admitting the evidence and that the
appellant was thereby prejudiced. Id. “When an alleged evidentia ry error is harmless an
appellate court need not address th e merits of the claimed error.” State v. Guzman , 892
N.W.2d 801, 812–13 (Minn. 2017) (quotation omitted).

1 The warrant of commitment reflects that Gri ffin was convicted of both counts of first-
degree CSC.

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A.M.’s statements to her aunt
Under Minn. R. Evid. 803(3), a hearsay statement is admissible if it is a “statement
of the declarant’s then existing state of mind.” State v. Jones , 753 N.W.2d 677, 696–97
(Minn. 2008) (quotation omitte d). “The statement must be contemporaneous with the
mental state sought to be proven. There must be no suspicious circumstances suggesting a
motive for the declarant to fabr icate or misrepresent his or her thoughts. The declarant’s
state of mind must be relevant to an issue of the case.” State v. DeRosier, 695 N.W.2d 97,
104–05 (Minn. 2005) (quotat ion omitted). Statemen ts “unrelated to the declarant’s
statement of mind” are “not admissible” under this hearsay exception. Id. at 105.
Here, A.M.’s aunt, T.V., testified about how A.M. told her about what happened,
including that she was scared because she had been raped. The court concluded that T.V.’s
testimony was admissible becaus e it described A.M.’s then-e xisting state of mind under
Minn. R. Evid. 803(3). Griffin argues that A.M .’s statements to T.V. were not admissible
because they went “well beyond any description of her then-existing state of mind.”
T.V.’s testimony about what A.M. told her about being rape d closely matched
A.M.’s testimony at trial. We conclude that the district court did not commit reversible
error by admitting T.V.’s testimony about A.M .’s prior statements because A.M.’s prior
statements to T.V., on the morning after she was assaulted, were materially consistent with
her trial testimony. A.M.’s statements to T.V. therefore did not constitute hearsay. See
Minn. R. Evid. 801(d)(1)(B) (“A statement is not hearsay if . . . [t]he declarant testifies at
the trial or hearing and is subject to cross- examination concerning the statement, and the
statement is . . . consistent with the declarant’s testimony and helpful to the trier of fact in

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evaluating the declarant’s credibility as a witness.”). To the extent that any of A.M.’s prior
statements to T.V. were inconsistent with her trial testimony, they were not so inconsistent
as to fall outside the bounds of admissibility under rule 801(d)(1)(B). See State v. Bakken,
604 N.W.2d 106, 109–10 (Minn. App. 2000 ) (stating that “trial testimony and the
[declarant’s] prior statement need not be verbatim,” and that an inconsistent statement falls
outside the bounds of rule 801(d)(1)(B) wh en the inconsistency “directly affects the
elements of the criminal charge”), review denied (Minn. Feb. 24, 2000).
A.M.’s statements to Sergeant Tell
Griffin also argues that the district c ourt committed reversible error by admitting,
as a prior consistent statement, A.M.’s statem ents to Sergeant Tell because they included
“additional factual assertions” about how she had described the layout of her friend’s home,
thereby providing jurors with an otherwise absent basi s for discounting Griffin’s version
of events. A statement is not hearsay if the declarant testifies and is subject to cross-
examination, and the statement is “consistent with the declarant’s testimony and helpful to
the trier of fact in evaluating the declaran t’s credibility as a witn ess.” Minn. R. Evid.
801(d)(1)(B). “A statement properly admitted under rule 801(d)(1)(B) operates as
substantive evidence.” State v. Plevell, 889 N.W.2d 584, 589 (Minn. App. 2017).
Prior to admitting a statement under rule 80 1(d)(1)(B), a district court must make a
threshold determination that the declarant’s credibility has been challenged and it would
help the jury in evaluati ng the declarant’s credibility. Id. The prior statement and trial
testimony must be consistent and “should not be the means to prove new points not covered

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in the testimony of the speaker.” State v. Farrah , 735 N.W.2d 336, 344 (Minn. 2007)
(quotation omitted).
Sergeant Tell recounted what A.M. told him during his investigation, as follows:
[A.M.] had invited [Griffin] into [her friend]’s house.
[Griffin] said he was uncomfortable. As they talked in the car,
some of her friends . . . were making him uncomfortable. In
order to try to make him feel more comfortable, she had
described the layout of [her friend’s] house to him in hopes that
maybe he would be a little more comfortable in . . . how the
situation was laid out.
Having determined that Griffi n had challenged A.M.’s credib ility on cross-examination,
the district court admitted Sergeant Tell’s testimony, concluding that it was helpful to the
jury in judging A.M.’s credib ility because it provided “greater context and more details”
about A.M.’s testimony about the rape.
This case largely depended on the jury’s credibility dete rminations of A.M. and
Griffin. See State v. Harris , 895 N.W.2d 592, 600 (Minn. 2017) (“As the fact finder, the
jury is in a unique position to determine the credibility of the witnesses and weigh the
evidence before it.”). Here, the state presented other evidence intended to cast doubt on
Griffin’s testimony, including that his stor y changed over time rega rding whether he had
sex with A.M., whether the sex was consensual, and the effect of Griffin’s drug use on his
ability to recall the facts. Even if the district court abus ed its discretion by admitting
Sergeant Tell’s testimony, we conclude that any error does not warra nt reversal because
his testimony did not prejudice Griffin. See DeRosier, 695 N.W.2d at 106 (“Inasmuch as
the victim’s hearsay statements were cumula tive, merely corroborating other witnesses’

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testimony and were not othe rwise prejudicial, the verdict rendered was surely
unattributable to any error in admitting the hearsay statements.”).
II.
Griffin argues that the district court erred by admitting Spreigl evidence regarding
his rape of J.D. because it “w as not markedly similar in mo dus operandi and because the
probative value of the evid ence was outweighed by its potential for unfair prejudice.”
Griffin argues that he is entitled to a new trial because this evidence significantly affected
the verdict. We disagree.
“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.” Minn. R. Evid. 404(b). The
“general exclusionary rule is grounded in the defendant’s constitutional right to a fair trial.”
State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (citing State v. Spreigl, 272 Minn. 488,
495, 139 N.W.2d 167, 171 ( 1965)). “The overarching c oncern behind ex cluding such
evidence is that it might be us ed for an improper purpose, such as suggesting that the
defendant has a propensity to commit the crime or that the defendant is a proper candidate
for punishment for his or her past acts.” State v. Fardan , 773 N.W.2d 303, 315 (Minn.
2009) (quotations omitted). But Spreigl evidence may be admitted for limited, specific
purposes to show “motive, intent, knowledge, identity, absence of mistake or accident, or
a common scheme or plan.” Ness, 707 N.W.2d at 685 . Spreigl evidence also may be
admitted to show whether the conduct on wh ich the charge was based actually occurred.
State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993).

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Prior to admitting Spreigl evidence, a district court mu st ensure in part that the
evidence is relevant and its potential for prej udice does not outweigh its probative value.
Ness, 707 N.W.2d at 685–86. If the admission or exclusion of Spreigl evidence is closely
balanced, the district court should exclude it. Fardan, 773 N.W.2d at 316.
“A district court’s decision to admit Spreigl evidence is reviewed for an abuse of
discretion.” State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). “A defendant who claims
the [district] court erred in admitting evid ence bears the burden of showing an error
occurred and any resulting prejudice.” Id. “If an appellate court determines that the district
court erroneously admitted Spreigl evidence, the court must then determine whether there
is a reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” Id. at 262.
Here, J.D. testified that on the night of September 22, 2016, she was walking in St.
Paul when a tan van approached her and the ma le driver offered to give her a ride. The
driver asked J.D. if she had a methamphetamine pipe, and she stated that she knew where
to find one. J.D. asked for a phone charger, and when the driver stated that he had one, she
got in his car. The driver identified himself as “Larry” and shared various personal details
with J.D. “Larry” then drove to an alley on the pretense that he had to check on something,
threatened J.D. with a knife, and forced her to have sexual intercourse with him. After
“Larry” “was finished,” he allowed J.D. to le ave. The district court determined that clear
and convincing evidence supported a finding that “Larry” was Griffin.

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Relevance of J.D.’s testimony
To be relevant to show a common scheme or plan, a prior bad act must have a
“marked similarity in modus oper andi to the charged offense.” Ness, 707 N.W.2d at 688
(emphasis omitted). “[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
for an improper purpose.” Id.
Here, the district court found that A.M .’s and J.D.’s rapes occurred within one
month of each other, at a similar place on the east side of St. Paul near Payne Avenue, and
that the modus operandi was “markedly similar” because both incidents “involved friendly
overture[s], [a luring] of a woman into defenda nt’s vehicle, and eventually . . . sexual[ly]
assaulting them.” We agree with the district court that the Spreigl incident was markedly
similar to the crime charged. In each incident, a man, who called himself “Larry,”
approached his victim in a tan van and asked a woman walking alone if she needed a ride
and engaged in seemingly friendly conversation with the woman. Then, in each incident,
the man drove into an alley under false pretenses, threatened the woman with a dangerous
weapon, instructed her to remove her cl othes, engaged in n onconsensual vaginal
penetration with the woman, and then allowed her to dress and leave. We conclude that the
district court did not err by concluding that J.D.’s testimony was relevant.
Probative value of J.D.’s testimony
Minnesota courts must balance the probative value of Spreigl evidence against the
risk that the evidence will be used as propensity evidence. See id . at 689–91. For this

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determination, appellate courts balance the relevance of the Spreigl incident, the risk of the
evidence being used as propens ity evidence, and the state’s need to strengthen weak or
inadequate proof in the case. Id. Here, the state needed J.D .’s testimony because Griffin
challenged A.M.’s credibility, claiming that they had consensual sex. The Spreigl evidence
involving J.D. showed that Griffin engaged in noncon sensual sex with J.D., using a
common scheme or plan, there by bolstering A.M.’s credibility. See id. at 690 (“[T]he
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 eviden ce bearing on the dis puted issue.” (quotation
omitted)).
Unfair Prejudice to Griffin
Unfair prejudice “does not mean the damage to the opponent’s case that results from
the legitimate probative force of the evidence; rather, it refers to the unfair advantage that
results from the capacity of the evidence to persuade by illegitimate means.” State v. Welle,
870 N.W.2d 360, 366 (Minn. 2015) (quotation omitted). “When determining whether the
admission of prior-bad-acts evidence is ha rmful,” the supreme court has “considered
whether the district court inst ructed the jury to limit the use of the other crime evidence
and not to convict the defendant based on that evidence.” State v. Thao, 875 N.W.2d 834,
839 (Minn. 2016) (quotation om itted). The reading of cautiona ry instructions lessens the
probability of undue weight be ing given by the jury to Spreigl evidence. See Griffin, 887
N.W.2d at 262–63 (concluding no abuse of discretion for admitting Spreigl evidence where
court used cautionary instructions).

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Here, the district court gave cautionary instructions before admitting J.D.’s
testimony and prior to closin g arguments. We presume that the jury followed these
cautionary instructions. See Welle, 870 N.W.2d at 366 (explaini ng that appellate courts
“presume that the jury followed these cautionary instructions”). We therefore conclude that
J.D.’s Spreigl testimony did not unfairly pr ejudice Griffin, and that the district court did
not abuse its discretion by admitting the testimony.
III.
The state charged Griffin with two counts of first-degree CSC, and the jury returned
guilty verdicts on both counts. A lthough the record re flects that, orally, the district court
properly adjudicated Griffin’s guilt on only count one and sentenced him on only count
one, the warrant of commitment reflects judgm ent of convictions for both counts. Griffin
argues that his convictions of both counts are improper when he committed only one act,
and he asks this court to direct the district court to vacate the conviction on count two and
issue a corrected judgment. The state agrees, as do we.
Griffin cannot legally be convicted of both counts of first-degree CSC for the same
offense on the basis of the same act involving the same victim. See Spann v. State , 740
N.W.2d 570, 573 (Minn. 2007) (“When the defendant is convicted on more than one charge
for the same act the court is to adjudicate formally and impose sentence on one count only.”
(quotation omitted)). We therefore affirm Gri ffin’s conviction on co unt one and remand
with instructions to vacate his conviction on count two.
Affirmed in part and remanded.