State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0548

State of Minnesota,
Respondent,

vs.

Shawn Clarke Spottswood,
Appellant.

Filed January 21, 2020
Affirmed
Reyes, Judge

Washington County District Court
File No. 82-CR-17-2353

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Stillwater, Minnesota
(for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Ju lie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his convictions of possession of burglary or theft tools, receiving
stolen property, aiding and abetting receiving stolen property, and fifth-degree controlled-

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substance possession, appellant argues that the district court committed reversible error by
(1) admitting irrelevant and prejudicial Spreigl evidence and (2) admitting expert
testimony on a mixed question of law and fact . Appellant also asserts that the
postconviction court abused its discretion by denying his petition for postconviction relief
without an evidentiary hearing. We affirm.
FACTS
According to officer testimony at trial, in the early morning hours of June 6, 2017,
an Oakdale police officer saw a Jeep hook up to a trailer and drive away with it. He began
to pursue the vehicle and sought to make contact with its driver because it was speeding
and the trailer had no brake lights. Officers later determined that the vehicle, a 1995 Jeep
Grand Cherokee, had been stolen from a dealership.
As the officer turned behind the vehicle, it pulled over and stopped, and its four
occupants got out and wa lked toward a home. The officer pulled over behind it and
instructed the occupants to get back into the vehicle. Everyone complied except appellant
Shawn Clarke Spottswood , who argued that he did no t have to comply.1 While talking
with appellant, the officer saw an electric drill in his front sweatshirt pocket and that he
wore a black and red backpack. Appellant eventually got back into the vehicle. As he did
so, the officer saw him hand something to the other back seat passenger, wh o quickly
concealed the item.

1 Appellant does not challenge the officer’s stop or search of the vehicle or his person.

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Upon searching the vehicle, the officer found a white crystal substance on the
floorboard at appellant’s feet that tested positive for methamphetamine. When the officer
searched appellant, he found a key fob and a broke n key for a Saturn vehic le in his pants
pocket. Appellant stated that the drill in his sweatshirt pocket belonged to him. The officer
determined that the drill matched ot her tools found in the vehicle , all of which had been
stolen from a construction site a couple of weeks earlier. Appellant’s backpack contained
a bolt cu tter, “jiggler” or “bump” keys ,2 tin snips, and a flathead screwdriver. Officers
found that the vehicle’s ignition had been tampered with and damaged and had a piece of
a different key broken off in it. In that condition, one could turn the ignition without the
Jeep’s key.
Respondent State of Minnesota charged appellant with (1) possession of burglary
or theft tools, in violation of Minn. Stat. § 609.59 (2016); (2) aiding and abetting the theft
of a motor vehicle , in violation of Minn. Stat. § 609.52, subd. 2(a)(17) ( 2016); (3) aiding
and abetting receiving stolen property, for the vehicle, in violation of Minn. Stat. § 609.53,
subd. 1 (2016); (4) receiving stolen property, for the power tools, in violation of Minn. Stat.
§ 609.53, subd. 1 ; and (5) fifth-degree possession of a controlled substance,
methamphetamine, in violation of Minn. Stat. § 152.025, subd. 1 (2016).
At trial, the district court granted the state’s motion to introduce as Spreigl evidence3
appellant’s 2005 conviction of motor-vehicle theft. As part of its case -in-chief, the state

2 “Jiggler” or “bump” keys can make a lock work without its regular key.
3 Spreigl evidence is evidence of other crimes or acts under Minn. R. Evid. 404(b). See
State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

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questioned a detective about whether some of the tools found on appellant were burglary
or theft tools. Appellant objected to this questi oning, but the district court overru led the
objection. The jury found appellant guilty of all charges except aiding and abett ing the
theft of a motor vehicle. Appellant filed a petition for postconviction relief , which the
postconviction court summarily denied without an evidentiary hearing . This appeal
follows.
D E C I S I O N
I. The district court properly exercised its discretion by admitting Spreigl
evidence.

Appellant argues that the d istrict court abused its discretion by admitting his 200 5
felony conviction for theft of a motor vehicle as Spreigl evidence under Minn. R. Evid.
404(b). We disagree.
We review the district court’s evidentiary rulin gs for an abuse of discretion. State
v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998 ). “Evidence of another c rime, 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). But other-crimes evidence, or Spreigl evidence, may
be admissible to prove “motive, intent, knowledge, identity, absence of mistake or accident,
or a common scheme or plan.” State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006); see also
id. Before a district court can 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

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

Ness, 707 N.W.2d at 686. If it is not clear that the evidence should be admitted, it should
be excluded. State v. Campbell , 861 N.W.2d 95, 102 (Minn. 2015). An appellant must
prove that the district court abused its discretion by admitting the Spreigl evidence,
resulting in prejudice. State v. Blom, 682 N.W.2d 578, 611 (Minn. 2004).
Here, the district court reviewed the Spreigl factors and found that appellant’s 2005
conviction could be admitted under the “common scheme or plan” and intent exceptions.4
Appellant challenges the district court’s conclusion s on factors two, four, and five . We
address each claim in turn.
A. The Spreigl evidence had a proper purpose.

Appellant first argues that the state did not clearly identify what the 2005 conviction
would prove and that it did not fit within either purpose the district court articulated. In
seeking to admit Spreigl evidence, the state must identify a permissible purpose of the
evidence and make “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 not sufficient simply to recite a [rule] 404(b) purpose without also
demonstrating at least an arguable legitimacy of that purpose.” Id. For Spreigl evidence

4 The district court stated “common intent or plan” in its order. The list of proper purposes
in rule 404(b) for other-acts evidence is not exclusive. Minn. R. Evid. 404(b) 1989 comm.
cmt. We interpret the district court’s order as admitting the conviction under the “common
scheme or plan” and intent exceptions, based on the context of the state’s argument before
it. Appellant states in his brief that the district court appeared to admit the evidence either
for these purposes or just as a common scheme or plan, but disputes its admissibility.

6
to be admissible under the common scheme or plan exception, it must have “marked
similarity” to the characteristic way , the modus operandi, in which the present offense
occurred. Ness, 707 N.W.2d at 688. But, it “need not be identical in every way to the
charged crime.” State v. Lynch, 590 N.W.2d 75, 81 (Minn. 1999).
While the state listed a ll of the rule 404(b) purposes, it focused on the common
scheme or plan purpose by noting that the damaged or “punched” ignition in the stolen car
in the 2005 conviction shows a similar modus operandi to the present offense , which
involved a damaged ignition in the stolen car and a broken key on appellant’s person. The
district court did not abuse its discretion in finding that the 2005 conviction sh ows a
common scheme or plan.
B. The Spreigl evidence was relevant.

Appellant argues that the facts of the 2005 conviction a re dissimilar to and too
remote in time from the current charges, making them irrelevant. “[A] district court, when
confronted with an arguably stale Spreigl incident, should employ a balancing process as
to time, place, and modus operandi: the more distant the Spreigl act is in terms of time, the
greater the similarities as to place and modus operandi must be to retain relevance.” State
v. Washington, 693 N.W.2d 195, 202 (Minn. 2005). But, “concerns about acts that are
remote in time are le ssened where the defendant spent a significant part of that time
incarcerated.” Id.
The Minnesota Supreme Court in Washington concluded that the prior acts were
relevant despite the 16 years between the Spreigl incident and the charged offense because
(1) the appellant had been convicted of the prior acts; (2) he had spent more than half of

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the intervening 1 6 years incarcerated; and (3) the prior acts we re “strikingly similar in
modus operandi to the charged acts. ” Id. at 203. Similarly, here, appellant had been
convicted, spent all but seven years since the conviction incarcerated, and the vehicle
ignition in his prior offense was in a similar condition to that in the present offense. These
facts outweigh the length of time from the prior conduct to the present offense, making the
prior conduct relevant.
C. The potential prejudice from the Spreigl evidence did not outweigh its
probative value.

Appellant argues that the potential prejudice from the 2005 conviction outweighed
its probative value. Spreigl evidence may not be admitted if the potential for unfair
prejudice outweighs its probative value. See Minn. R. Evid. 404(b)(2). “Unfair prejudice”
means “‘the capacity of the evidence to persuade by illegitimate means.’” Montgomery,
707 N.W.2d at 399 (quoting State v. Bolte , 530 N.W.2d 191, 197 n.3 (Minn. 1995) ).
Illegitimate means include “giving one party an unfair advantage.” State v. Bell , 719
N.W.2d 635, 641 (Minn. 2006) (quotations omitted).
The state presented primarily circumstantial evidence for the charges against
appellant, making the condition of the ignition in the prior case highly probative. See Ness,
707 N.W.2d at 689-90. And the district court significantly limited the information the state
could present about the 2005 conviction. The state introduced the evidence by asking a
witness only if appellant had a 2005 conviction for motor-vehicle theft and if that vehicle
had a punched or damaged ignition. The witness answ ered “yes” to both questions. In
addition, the district court provided an instruction to the jury about the permissible use of

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the evidence. These limitations prevented the state from using the prior conviction to gain
an unfair advantage. While the evidence had the potential for unfair prejudice, any
potential prejudice did not outweigh the evidence’s probative value. Because we conclude
that the district court did not abuse its discretion by admitting the Spreigl evidence, we
need not address appellant’s harmless-error argument.
II. The district court properly admitted the detective’s testimony on the tools
found in appellant’s possession.

Appellant argues that the district court abused its discretion by allowing the
detective’s expert testimony about whether appellant possessed “burglary” or “theft” tools.
We are not persuaded.
The district court has the discretion to admit expert testimony, and we review its
decisions for clear error using a harmless-error analysis. State v. Blanche , 696 N.W.2d
351, 372 (Minn. 2005). We will reverse “only when the error substantially influences the
jury’s decision.” State v. DeShay , 669 N.W.2d 878, 888 (Minn. 2003) (quoting State v.
Nunn, 561 N.W.2d 902, 907 (Minn. 1997)). A district court may admit expert testimony
under Minn. R. Evid. 702 if it will assist the jury in resolving factual questions. State v.
Grecinger, 569 N.W.2d 189, 195 (Minn. 1997). But, testimony about a defendant’s intent
is inappropriate. State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993).
Appellant argues that the detective “effectively” testified about appellant’s intent
because the crime of possession of burglary tools requires possession “with intent to use
or permit the use of [the tool] to commit burglary or theft.” See Minn. Stat. § 609.59. He
argues that this testimony prejudiced him because the state presented no other evidence of

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his intent, leaving the jury to conclude that appellant possessed the tools for improper
purposes.
We have differentiated in other cases between testimony about the legality of an
action and testimony about a defendant’s intent. For example, in State v. Gruber, we held
that testimony that it is “obviously wrong” for anyone to take and duplicate a key to a
locked depository box for unused pharmaceuticals was not testimony about the defendant
officer’s mental state. 864 N.W.2d 628, 632-33, 637-38 (Minn. App. 2015).
Here, the detective responded “yes” to the state’s questions of “in your training and
experience would you classify these bump keys as a theft tool or a burglary tool?” and
“Would you call it a theft tool?” The detective testified that the tin snips and screwdriver
could be used in a burglary or theft . And he provided the conditional responses that the
bolt cutter “can be” and “could be” a burglary or theft tool . (Emphases added .) This
testimony did not improperly implicate appellant’s intent or conclude that the tools were
burglary or theft tools in this particular case. Rather, it helped the jury understand how
such tools may be used. Further, opinion or inference testimony may involve an ultimate
issue for the jury to decide. Minn. R. Evid. 704. The district court properly admitted the
testimony.
III. The postconviction court did not abuse its discretion by denying appellant’s
petition without an evidentiary hearing.

Appellant argues that the postconviction court abused its discretion by denying his
petition for postconviction relief based on ineffective assistance of his trial counsel without
an evidentiary hearing. We disagree.

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We review a postconviction court’s denial of an evidentiary hearing for an abuse of
discretion. Riley v. State , 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction court
‘abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.’” Id. (quotation omitted). We review factual
findings for clear error and legal conclusions de novo. Id. A petitioner is entitled to a
postconviction evidentiary hearing u nless the facts, viewed in the light most favorable to
the petitioner, “conclusively show that the petitioner is entitled to no relief .” Minn. Stat.
§ 590.04, subd. 1 (2018); see Swaney v. State , 882 N.W.2d 207, 214 (Minn. 2016). A
petition must contain factual support and allege “more than argumentative assertions.”
Nissalke v. State, 861 N.W.2d 88, 91 (Minn. 2015) (quotation omitted).
To receive an evidentiary hearing on an ineffective -assistance-of-counsel claim, a
petitioner must allege facts that (1) overcome the presumption that counsel’s performance
fell within a wide range of reasonable representation and (2) show that the case outcome
would have been different but for counsel’s deficiency. Evans v. State, 788 N.W.2d 38,
44-45 (2010); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). Disputes over trial strategy generally do not qualify as deficiencies. State v. Vang,
847 N.W.2d 248, 267 (Minn. 2014). Trial counsel’s decision to “forgo investigation of
leads not reasonably likely to produce favorable evidence” is part of trial strategy .
Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991). But failure to investigate due to
inattention or neglect may constitute ineffective assistance. Swaney, 882 N.W.2d at 218.
The postconviction court denied appellant’s petition, finding no disputed facts and
that his trial counsel’s decision not to investigate four witnesses went solely to matters of

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trial strategy and tactics and did not constitute deficient performance. The postconviction
court noted that the district court file did not contain the list of “alibi witnesses” appellant
claimed to have filed before trial and that S.V., another passenger in the stolen vehicle, was
the only proposed witness who had provided a statement to appellant’s postconviction
investigator. It found that there were no disputed facts that had to be resolved before it
could decide the issue on the merits.
Appellant first argues that “it is impossible to determine whether trial counsel’s
decision was based on reasoned strategy or simple neglect” and there is “nothing in the
current record supporting the conclusion that there was a valid strategic reason.”
Appellant mistakes the presumpt ion and his burden . There is no presumption of
unreasonable performance absent such evidence presented by appellant. See Swaney, 882
N.W.2d at 218. Further, the trial record and appellant’s petition show that his trial counsel
had a valid strategic reason for not investigating S.V. or the other vehicle occupants. The
state listed S.V. as a potential state witness in its witness list . The vehicle occupants ’
statements to law enforcement directly incriminated appellant. These statements included
S.V. telling the arresting officer that the methamphetamine in the vehicle belonge d to
appellant and the driver stating that appellant stole the vehicle and had been driving it
earlier, until he started to fall asleep while doing so.
Appellant also argues that the postconviction court improperly considered S.V.’s
credibility. But the postconviction court considered arguments the state could have raised
about S.V.’s credibility had she testified for appellant at trial. These considerations relate
to whether appellant’s trial counsel reasonably chose not to pursue S.V. as a witness, not

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to whether her statements as described in appellant’s petition we re credible. The facts
alleged in appellant’s petition indicate that fur ther investigation of S.V. and the other
proposed witnesses was “not reasonably likely to produce favorable evidence,” making
appellant’s trial counsel’s decision to forgo such investigation a reasonable part of trial
strategy. See Gustafson, 477 N.W.2d a t 713. The postconviction court did not abuse its
discretion in denying appellant’s petition without an evidentiary hearing.
Affirmed.