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This opinion will be unpublished and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
A18-0640

State of Minnesota,
Respondent,

vs.

Clarence Alvin Cooper,
Appellant.

Filed March 11, 2019
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-17-23281

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

Michael O. Freeman, Hennepin County Attorney, Patrick Lofton, 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 Bjorkman, Presiding Judge; Connolly, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his conviction of first-degree criminal sexual conduct, arguing
that the district court abused its discretion by admitting evidence that he committed another

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sexual assault. He advances additional arguments in a pro se supplemental brief. We
affirm.
FACTS
Fifty-four-year-old C.D. was walking from her car to an evening church service on
June 24, 2017, when an unknown young man approached her. The two spoke briefly, and
when C.D. indicated she needed to go inside to help set up chairs, the man offered to help.
As they worked, the man told C.D. she was beautiful and that he wanted to marry her. He
stayed for the service. Afterward, h e told C.D. his name was “Cooper” and asked to
exchange phone numbers; C.D. refused, but he gave her his number. He then joined C.D.
and two other women to go out for food nearby. When they discovered that the restaurant
was closed, the other women left.
C.D. told the man she was going home because she needed to use the bathroom. He
invited her to use the bathroom at his house, assuring her that his family was there and “it
would be a safe place to go.” C.D. followed him in her car and noticed that his house was
farther away than she had expected. C.D. left her purse and phone in the car when she
went in because she “didn’t plan on staying.”
After C.D. used the bathroom, she walked out to find the man standing across the
hall from her. He grabbed her b y the shoulders and maneuvered her into another room.
She felt her heels hit something and fell backward onto a mattress on the floor, landing
heavily on her right hip. The man grabbed her left foot and quickly removed her leggings
and underwear. C.D. objected, but the man, still holding her left leg up, penetrated her
vagina with his penis. It was painful, and the man’s movements caused C.D.’s head to

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pound against the wall . The man ejaculated, then performed oral sex on her, and then
rolled her onto her stomach. Thinking that he intended anal sex, C.D. told him “that if he
did anything anally [she] would kill him.” He vaginally penetrated her again. Afterward,
he offered her water and food; she accepted some water, then left with her shoes, leggings,
and underwear in her hand. As she walked to her car, the man asked if he could call her
the next day and requested money to repair his vehicle. She refused and drove away.
At home, C.D. removed and washed her clothes but did not bathe before going to
bed. In the morning, she left for an early church commitment, not planning to tell anyone
about the incident. But a church friend noticed that C.D. was upset, elicited the story from
her, and convinced her to report the incident to police. C.D. retrace d her path from the
previous night to locate the man’s house, then went to the police station.
C.D. gave a statement describing the incident. She also relayed the name “Cooper”
and the phone number that he had given to her, and provided a photograph of hi m taken
during the church service. A sexual-assault examination revealed multiple bruises on
C.D.’s limbs and buttocks, abrasions on her abdomen and left thigh, redness and tenderness
in her vaginal area, multiple tears and bleeding in and around the vagi na, and bruising on
her cervix, as well as the presence of saliva and semen in her vaginal area.
The police used the phone number to identify “Cooper” as appellant Calvin Cooper,
a 22-year-old Liberian who had immigrated to the United States the previous year. Cooper
gave a statement to police, initially denying any memory of C.D., then acknowledging that
he had sex with her and claiming the encounter was consensual.

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The state charged Cooper with first-degree criminal sexual conduct. Over Cooper’s
objection, the district court permitted the state to counter Cooper’s consent defense with
evidence that on July 16, 2017, Cooper entered the apartment of 63 -year-old M.G.,
overpowered her, and penetrated her vagina with his penis. Cooper testified that he had
consensual sex with both C.D. and M.G. The jury found Cooper guilty. Cooper appeals.
D E C I S I O N
I. The district court did not abuse its discretion by admitting evidence that
Cooper sexually assaulted M.G.

Evidence of a defendant’ s prior crimes or bad acts is not admissible to prove the
defendant’s character to show he acted in conformity with it on a particular occasion .
Minn. R. Evid. 404(b)(1); State v. Spreigl, 139 N.W.2d 167, 169 ( Minn. 1965). But this
Spreigl evidence may be admissible for other limited purposes. Minn. R. Evid. 404(b)(2);
State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007). We review the admission of Spreigl
evidence for an abuse of discretion. State v. Welle, 870 N.W.2d 360, 365 (Minn. 2015).
To garner reversal, the appellant must show both an abuse of discretion and resulting
prejudice. State v. Rossberg, 851 N.W.2d 609, 615 (Minn. 2014).
A five-part test governs the admissibility of other-acts 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.

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State v. Ness , 707 N.W.2d 676, 685 -86 (Minn. 2006); see Minn. R. Evid. 404(b)(2).
Cooper argues that the district court abused its discretion by admitting evidence that he
sexually assaulted M.G. because the state failed to satisfy the last four Ness factors. We
address each in turn.
Purpose
When considering the admission of other-acts evidence, a “district court should not
simply take the prosecution’s stated purposes . . . at face value.” Ness, 707 N.W.2d at 686.
Rather, the court should “ look to the real purpose for which the evidence is offered, and
ensure that that purpose is one of the p ermitted exceptions to the rule’s general exclusion
of other-acts evidence.” Id. (quotation omitted).
Cooper contends the district court erred by failing to make findings regarding the
purpose of the evidence. The record, while slim, indicates otherwise. The prosecutor
indicated that the evidence would show a common scheme or plan and “lack of mistake or
accident,” and would refute allegations of “fabrication.” While the district court did not
address these stated purposes at length , it expressly found that the evidence could be
admitted to show “lack of consent” and a “common scheme or plan” —two recognized,
proper purposes for Spreigl evidence. See Clark, 738 N.W.2d at 316 (stating that, in
sexual-assault prosecutions, Spreigl evidence may be introduced to establish, “by showing
a common scheme or plan ,” that the sexual act occurred); State v. DeBaere, 356 N.W.2d
301, 305 (Minn. 1984) (recognizing that Spreigl evidence may be “relevant to the issue of
consent”). Accordingly, this factor is satisfied.

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Clear and Convincing Evidence
The clear and convincing standard “requires more than a preponderance of the
evidence but less than proof beyond a reasonable doubt” that the prior act occurred. State
v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (quotation omitted). The truth of the facts
sought to be admitted must be “ highly probable.” State v. Stewart, 643 N.W.2d 281, 297
(Minn. 2002) (quotation omitted). The uncorroborated testimony of the Spreigl victim is
sufficient. Kennedy, 585 N.W.2d at 389 -90. We defer to a district court’s determination
that a Spreigl incident is proved by clear and convincing evidence. State v. McLeod, 705
N.W.2d 776, 788 (Minn. 2005).
Cooper assigns error because “M.G.’s testimony was internally inconsistent and
demonstrably false.” This argumen t is unavailing. The district court conducted an
evidentiary hearing to determine whether the state could prove the Spreigl incident by clear
and convincing evidence. M.G. testified that a man entered her apartment, overpowered
her as she physically resisted, removed her underwear, held her leg up, “tried to penetrate
[her]” and then did “part of the way” and ran out, after which she called the police. When
confronted on cross-examination with inconsistencies between her police statement and
her testimony regarding what led up to the assault, M.G. insisted that “he raped me. And
that’s all that matters to me. That he raped me. ” Other evidence confirmed that Cooper
had parked near M.G.’s apartment building shortly before the assault, followed her into the
building, and fled down 11 flights of stairs immediately afterward. And Cooper, after
initially denying any connection to M.G., acknowledged a sexual encounter and claimed it
was consensual. This record amply supports the district court’s determination that, despite

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inconsistencies and other flaws in M.G.’s testimony, the state met its burden to prove the
incident by clear and convincing evidence.
Relevance and Materiality
The probative value of Spreigl evidence depends on its similarity to the charged
offense “in terms of time, place, and modus operandi. ” Ness, 707 N.W.2d at 688-89
(quotation omitted). The closer the Spreigl incident is to the charged offense in these three
respects, the greater its relevance and probative value. Id. at 688.
Cooper argues the Spreigl evidence is not relevant to a disputed fact issue and
insufficiently similar to the charged offense to be admissible. We disagree . First, the
disputed fact issue here is whether C.D. consented to sex with Cooper —the same issue
M.G. disputed . Second, the two incidents are substantially similar in time , place, and
modus operandi; they occurred only 22 days apart, within a few miles of each other in
Brooklyn Center and Brooklyn Park , and both involved Cooper targeting a widowed
woman decades older than himself, physically overpowering her and removing her
undergarments, manipulating her legs to penetrate her, subsequently denying any memory
of her, and later claiming the encounter was consensual. The Spreigl evidence is highly
probative on the disputed issue of consent.
Probative Value versus Potential Unfair Prejudice
The probative value of Spreigl evidence must outweigh “its pote ntial to unfairly
prejudice.” Clark, 738 N.W.2d at 347. There is always a risk that evidence of another bad
act will be viewed as indicative of a propensity, particularly when the other act is of a
sexual nature. State v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009). But when the evidence

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is highly relevant and necessary “to strengthen weak or inadequate proof in the case ,” the
risk that the evidence will be “used as propensity evidence” is diminished. Id.
As noted above, C.D.’s credibility was central to the state’s case. 1 While some
evidence tended to corroborate her account of nonconsensual sex, some of C.D.’s conduct
may have undermined her credibility—e.g., accompanying a strange man to his home, not
consistently resisting, and not immediately reporting the assault. Defense counsel argued
that these and other factors are inconsistent with a nonconsensual encounter. See State v.
Rucker, 752 N.W.2d 538, 550 (Minn. App. 2008) (stating that evidence of prior criminal -
sexual-conduct conviction was probat ive to the criminal -sexual-conduct victims’
credibility when their conduct “may have called into question their credibility, weakening
the state’s case”), review denied (Minn. Sept. 23, 2008). The Spreigl evidence was critical
to the state’s ability to demonstrate C.D.’s credibility and rebut Cooper’s consent defense.
This strong probative value outweighed the risk of unfair prejudice. The Spreigl
evidence was presented by two witnesses. And while their testimony, including vigorous
cross-examination, spanned approximately 100 transcribed pages, it was not excessive
relative to evidence of the charged offense . Six witnesses testified about the assault of
C.D., and numerous visual and audio exhibits were presented over three days. Cf. State v.
DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (recognizing concern for unfair prejudice

1 Cooper contends that the district court should have reserved its Spreigl ruling until after
the close of the state’s case. See Kennedy, 585 N.W.2d at 392 (“The final determination
of the strength of the state’ s case should be made by the trial court afte r the state has
presented all of its non-Spreigl evidence.”). Because it was apparent even before trial that
consent was the central issue, a delayed ruling was unnecessary.

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when the jury “heard far more testimony” about the Spreigl evidence than about the
charged offense). The district court repeatedly instructed the jury about the limited use of
the Spreigl evidence, and the prosecutor underscored this instruction during closing
argument. Such instructions lessen the probability of the jury giving undue weight to the
evidence. Kennedy, 585 N.W.2d at 392. On balance, the risk of unfair prejudice did not
outweigh the strong probative value of the Spreigl evidence.
In sum, we discern no abuse of discretion by the district court in admitting the
Spreigl evidence.
II. Cooper’s pro se arguments lack merit.
In a pro se supplemental brief, Cooper reiterates concerns about the admission of
the Spreigl evidence and advances several additional arguments. Because he does not cite
legal authority or record evidence to support his arguments, they could be deemed waived.
See State v. Munt, 831 N.W.2d 569, 588 (Minn. 2013) (declining to address claims asserted
without citation to the record or legal authority). But we choose to address two of his
arguments in the interests of justice. Minn. R. Civ. App. P. 103.04.
Cooper argues that racial bias infected his trial, from the jury-selection process to
the conduct of the judge, the prosecutor, and even his own counsel. We do not treat such
concerns lightly. And we are satisfied, upon close review of the record, that n one of the
participants in Cooper’s trial did so. Cooper ’s jury was selected from a random list and
each juror was vetted for racial bias by both the prosecutor and defense counsel. See State
v. Williams, 525 N.W.2d 538, 542 (Minn. 1994) (stating that a criminal defendant is not
guaranteed “a jury of a particular composition”). The trial judge carefully considered and

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ruled on evidentiary issues, including admitting the Spreigl evidence and excluding
inadmissible vouching testimony that Cooper sought to present. See State v. Reese , 692
N.W.2d 736, 741 (Minn. 2005) (stating that testimony about another’s credibility is
inadmissible). And the judge conscientiously addressed Cooper’s concern that a black man
accused of sexually assaulting a white woman would not receive a fair trial, confronting
the issue in jury instructions and urging the jurors to set aside any “ personal likes or
dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases.”
Likewise, the prosecutor fairly summarized the evidence of the charged offense and
appropriately limited her discussion of the Spreigl evidence, urging the jury to do the same.
Overall, we discern no taint of racial bias in Cooper’s trial.
Cooper also asserts that his counsel was ineffective because he (1) failed to obtain
possible surveillance video from near the restaurant where he and C.D. went, (2) exhibited
racial prejudice by acknowledging that C.D. “is a sympathetic character ,” (3) failed to
object to the Spreigl evidence, and (4) failed to object to the only black person in the jury
pool being “taken out.” These arguments are unavailing. The first two relate to counsel’s
strategic decisions, such as which evidence or arguments to present, which we do not
review for competence. State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001). And the last
two misrepresent the record, which reveals that counsel consistently opposed admission of
the Spreigl evidence, and that the only black person in the jury pool was never even
questioned as a prospective juror because of her placement on the randomized list.

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Based on our careful review of the record, we conclude that Cooper’s pro se
supplemental brief does not establish a basis for relief.
Affirmed.