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This opinion will be unpublished and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
A18-1669

State of Minnesota,
Respondent,

vs.

Christopher O'Brien Bogan,
Appellant.

Filed September 30, 2019
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-17-23191

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Ba rts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Re yes, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from a conviction for attempted third-deg ree criminal sexual
conduct, appellant Christopher Bogan argues that the district court abused its discretion by

2
permitting the state to introduce evidence of another crime that he had committed. Because
the district court did not abuse its discretion by admitting the evidence, we affirm.
FACTS
As found by the district court, sometime after 10:00 p.m. on A ugust 15, 2017, C.V.
left her boyfriend’s apartment in Minneapolis after an argument a nd wa s l o o ki n g f or a
cigarette. She was “very drunk.” While walking to a convenience store, C.V. saw Bogan
waiting at a bus stop and asked him for a cigarette. Bogan responded that he did not have
any cigarettes. C.V. then began walking back toward her boyfriend’s apartment, and Bogan
followed her. They talked to each other while walking, but C.V. could not recall the details
of the conversation.
C.V. and Bogan wound up in a ne arby alley, where Bogan shoved C.V. up against
a brick wall. C.V. was facing the wall, and Bogan held C.V.’s wrists so that her palms were
pushed up against the wall. After Bogan pressed himself against the rear side of C.V.’s
body for a few moments, he removed his hands from C.V.’s wrists and pulled down her
shorts.1 As her arms were then freed, C.V. managed to escape, and she fled the alley. C.V.
came upon a squad car conducting a traffic stop and cried out f or help. Peace officers
detained Bogan.
The state charge d Bogan wit h a ttempted first-degree criminal s exual conduct, in
violation of Minn. Stat. § 609. 342, subd. 1(e)(i) (2016), and w ith second-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1( e)(i) (2016). Immediately

1 The evidence was inconclusive as to how low Bogan pulled down the shorts and the exact
manner in which he did so.

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before trial, the state added a lesser-included charge of fourt h-degree criminal sexual
conduct under Minn. Stat. § 609.345, subd. 1(c) (2016).
At the subsequent bench trial, the state introduced evidence o f a separate, later
incident in which Bogan beat and sexually assaulted B.S., a hea ring-impaired individual
who was of a similar age as C.V. Bogan sexually penetrated B.S ., causing injuries to her
vaginal area and rectum. The o ffense involving B.S. occurred in a park not far from the
scene of the offense in this case, less than a month after the instant offense.2
At the end of trial, the distric t court acquitted Bogan of the charged offenses but
found him guilty of attempted third-degree criminal sexual conduct, in violation of Minn.
Stat. § 609.344, subd. 1(c) (2 016), as a lesser-included offens e of attempted first-degree
criminal sexual conduct. Bogan was sentenced to 24 months’ impr isonment, to be served
consecutively with his sentence for the crime against B.S.
This appeal follows.
D E C I S I O N
Evidence of other crimes or acts is commonly referred to as “ Spreigl evidence” after
the supreme court’s decision in State v. Spreigl , 139 N.W.2d 167 (Minn. 1965). State v.
Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). “A district court’s decision to admit Spreigl
evidence is reviewed for an abuse of discretion. A defendant wh o claims the trial court
erred in admitting evidence bears the burden of showing an error occurred and any resulting
prejudice.” State v. Griffin , 887 N.W.2d 257, 261-62 (Mi nn. 2016) (citation omitted).

2 Bogan pleaded guilty to first-degree criminal sexual conduct in this other incident.

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“Evidentiary errors warrant reversal if there is any reasonable doubt the result would have
been different had the evidence not been admitted.” State v. Grayson , 546 N.W.2d 731,
736 (Minn. 1996) (quotation omitted).
Spreigl evidence may be admitted only und er certain circumstances. Min n. R.
Evid. 404(b); State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). First, it “is not admissible
to prove the character of a person in order to show action in conformity therewith.” Minn.
R. Evid. 404(b)(1). Rath er, to be admissible, Spreigl evidence must be relevant to issues
such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. Second, the following conditions also have to be met:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indi cate 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.

Ness, 707 N.W.2d at 686.
Here, the district court admitted the Spreigl evidence for two purposes—as proof of
a common scheme or plan and as proof of intent. Bogan makes three arguments against the
district court’s decision. His first two arguments are that the evidence was not relevant to
either of the purposes for which the district court admitted it . His third argument is that,
even if the evidence was releva nt, it was inadmissible because its probative value was
outweighed by its potential prejudice.

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Common scheme or plan
Bogan argues that the other incident was not relevant to show a common scheme or
plan. Evidence of other acts tending to show a common scheme or plan is relevant to show
that the act in the alleged offense actually occurred. Ness, 707 N.W.2d at 687-88 (“The
[common-scheme-or-plan] exception . . . embrace[s] evidence of offenses which, because
of their marked similarity in modus operandi to the charged off ense, tend to corroborate
evidence of the latter.” (quotation omitted)). Whether another act tends to show a common
scheme or plan is evaluated based on similarities of time, plac e, and modus operandi. Id.
While the charged offense and the other incident must be markedly similar, id., “[a]bsolute
similarity between the charged offense and the Spreigl incident is not required to establish
relevancy,” State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992).
Bogan argues that the other incident was not relevant because i t was not markedly
similar to the instant offense. Bogan’s argument focuses on the factual differences between
the instant offense and the other incident, particularly the di fference in the seriousness of
the two acts: the instant offens e involved pushing the victim a gainst a wall and pulling
down her pants whereas the other incident involved injuries and sexual penetration using
force.
But all three relevant aspects of the other act—time, place, an d modus operandi—
tend to show a common scheme or plan. In both the Spreigl act and the charged offense,
Bogan physically subdued a vulnerable woman and pulled down her lower garment in an
attempt to sexually penetrate he r. Both incidents occurred in p ublic areas that were
geographically close to each other. The two acts occurred less than a month apart, and both

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occurred late at night. While Bogan emphasizes that penetration was accomplished in the
other act, but was not accomplished in the charged offense, tha t distinction is not
meaningful; a plan does not cease to be common merely because an attempt fails. See, e.g.,
State v. Lewis, 385 N.W.2d 352, 355 (Minn. App. 1986) (affirming the admission of other
acts of attempted arson as Spreigl evidence in an arson prosecution), review denied (Minn.
May 29, 1986). The other incident had the requisite similarity to the instant offense, and
the district court did not abuse its discretion by ruling that the evidence was relevant to
show a common scheme or plan.
Intent
Bogan also argues that the other incident was not relevant to prove intent. He relies
on Ness, 707 N.W.2d at 687. In Ness, the defendant was accused of engaging in sexual
contact with an 11-year-old boy, in violation of Minn. Stat. § 609.343, subd. 1(a) (2004).
Id. at 679. Ness’s intent was not a disputed issue because his “se xual or aggressive intent
[could] readily be inferred from the contacts themselves” and h e categorically denied
making the alleged contacts. Id. at 687. Bogan argues that his intent was not a disputed
issue for the same reasons. But Ness is distinguishable. Bogan was charged with attempting
to commit first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342,
subd. 1(e)(i). Because “ [a]ttempt to commit a certain crime req uires proof that the
defendant specifically intended to commit that particular crime,” the state had to prove that
Bogan intended to sexually penetrate C.V. using force or coercion. State v. Landherr, 542
N.W.2d 686, 687 (Minn. App. 1996), review denied (Minn. Mar. 19, 1996); see Minn. Stat.
§ 609.342, subd. 1 (“A person who engages in sexual penetration with another person . . .

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is guilty of criminal sexual conduct in the first degree if . . . the actor causes personal injury
[and] . . . uses force or coercion to accomplish the act . . . .”). Unlike in Ness, proving mere
“sexual or aggressive intent” would not have met the state’s burden. See Ness, 707 N.W.2d
at 687. And Bogan’s attorney argued at trial that Bogan did not intend to commit criminal
sexual conduct, contending that Bogan may have simply “misread” the situation. Whether
Bogan specifically intended to sexually penetrate C.V. using fo rce or coercion was
disputed at trial. The district court did not abuse its discretion by concluding that the Spreigl
evidence was relevant to the issue of intent.
Probative value versus potential prejudicial effect
Bogan’s final argument is that, even if the Spreigl evidence is relevant for a proper
purpose, its prejudicial effect substantially outweighed its probative value. Specifically, he
argues that the state did not need the Spreigl evidence, and that the risk of it being
improperly used as a propensity evidence was too great. 3 See Ness, 707 N.W.2d at 690
(“The prosecution’s need for oth er-acts evidence should be addr essed in balancing
probative value against potential prejudice.”).
The elements of the crime of attempt are: (1) an intent to comm it an underlying
crime and (2) a substantial step taken toward the underlying cr ime’s commission. Minn.
Stat. § 609.17, subd. 1 (2016). Bogan’s brief identifies a numb er of sources of evidence
tending to show the facts of his conduct, including C.V.’s test imony, testimony of police

3 Bogan also argues that the evidence had low probative value because it was not relevant
to show intent or common scheme or plan. But because the evidence was relevant to those
issues, we need not address that aspect of his argument again.

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officers, and body-camera footage of the aftermath of the offen se. Thus, Bogan is correct
that the state had strong evidence for the substantial-step ele ment. However, we need not
determine exactly what additional probative value the Spreigl evidence had in regard to the
substantial-step element, because the probative value of the evidence as to Bogan’s intent
outweighs its potential prejudice. Intent is a state of mind and must generally be proved by
circumstantial evidence, which requires the fact-finder to make an inference based on “the
totality of the circumstances.” State v. Cooper , 561 N.W.2d 175, 179 (Minn. 1997).
Bogan’s admission that he had committed sexual assault with for ce against another
obviously vulnerable woman unde r similar conditions was a circu mstance that
strengthened the inference that B ogan intended to sexually pene trate C.V. The Spreigl
evidence therefore had significant probative value.
At the same time, the risk of prejudice was minimized by the fact that Bogan had a
bench trial. As the supreme court explained in State v. Burrell:
The distinction between a jury trial and a bench trial is
important. The risk of unfair prejudice . . . is reduced becaus e
there is comparatively less risk that the district court judge, as
compared to a jury of laypersons, would use the evidence for
an improper purpose or have his sense of reason overcome by
emotion. Indeed, excluding relevant evidence at a bench trial
on the grounds of unfair prejudice is in a sense ridiculous.

772 N.W.2d 459, 467 (Minn. 2009) (citations and quotation omitted). The risk of prejudice
to Bogan did not substantially outweigh the probative value of the Spreigl evidence.
The district court did not abuse its discretion by admitting the Spreigl evidence.
Affirmed.