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This opinion will be unpublished and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
A18-2055

State of Minnesota,
Respondent,

vs.

Victor Issac Wion,
Appellant.

Filed October 28, 2019
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-CR-18-2137

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Kirk,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his conviction for first-degree aggravated robbery, arguing
that he is entitled to a new trial because the prosecutor elicited inadmissible Spreigl
evidence. We affirm.
FACTS
On March 22, 2018, Officer Sherwood responded to a 911 call about a robbery.
Officer Sherwood spoke to the victim, J.D., and learned that he had been robbed by an
individual known as “Libking.” The two had used Facebook Messenger to arrange for J.D.
to buy a cell phone. When t hey met in J.D.’s vehicle, Libking asked to see the money.
J.D. complied. Libking then covered his face with a handkerchief, announced that it was
a stickup, and pulled a small object wrapped in cloth out of his pocket. J.D. believed the
object was a small handgun and handed Libking the money. Libking exited the vehicle
and J.D. called 911 to report the robbery.
Officer Sherwood photographed two of Libking’s Facebook Messenger profile
pictures. Using the pictures, an investigator identified Libking as appellant Victor Issac
Wion. Officer Sherwood then issued an order to arrest Wion for the robbery.
Two days later, Officer Sherwood returned to the area where J.D. had been robbed.
He noticed two individuals in a vehicle and thought he recognized the passenger as Wion.
After approaching the vehicle, Officer Sherwood confirmed that the passenger was Wion.
When Officer Sherwood questioned the driver, B.F., he learned that B.F. and Wion met to
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trade cell phones. Officer Sherwood asked Wion to identify himself. Wion provided him
with a false name and date of birth.
Wion was arrested and charged with first-degree aggravated robbery. Officers
searched Wion incident to arrest and found two cell phones, marijuana, and a .177 caliber
BB gun.
At trial, both the prosecutor and Wion’s attorney discussed Wion’s arrest in their
opening statements and closing arguments. The prosecutor told the jury about the BB gun
found on Wion. The prosecutor argued that regardless of whether the BB gun found on
Wion at the time of his arrest was the one used in the robbery, Wion displayed somet hing
to frighten J.D. into handing over the money for the phone. Wion’s attorney argued that
the individual who committed the robbery was not the same individual who was arrested
in the car with B.F. because the two events were different in nature, namely, that Wion and
B.F. met to smoke marijuana.
The state called B.F. and Officer Sherwood to testify about the circumstances of
Wion’s arrest. B.F. testified that an officer showed him the BB gun found on Wion.
Officer Sherwood testified about his investigation into the robbery and the circumstances
of Wion’s arrest. The state introduced several photographs of the objects found on Wion,
the BB gun, and a video of the arrest.
The jury found Wion guilty of first-degree aggravated robbery. The district court
sentenced Wion to 99 months in prison. This appeal follows.

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D E C I S I O N
Wion argues that he is entitled to a new trial because the prosecutor committed
misconduct by exposing the jury to inadmissible evidence of his prior bad acts.
Specifically, he contends that the prosecutor improperly elicited evidence that he possessed
and attempted to sell marijuana, lied about his identity, possessed a BB gun in a public
place, and was attempting a different robbery when he was arrested.
Because Wion did not object to the alleged prosecutorial misconduct, this court
applies a modified plain-error standard. State v. Carridine, 812 N.W.2d 130, 146 (Minn.
2012). Under this standard, Wion must demonstrate that the misconduct constituted error
and that the error was plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). An error
is plain if it “contravenes case law, a rule, or a standard of conduct.” Id. If Wion establishes
these first two elements, “[t]he burden then shifts to the [s]tate to demonstrate that the error
did not affect the defendant’s substantial rights.” Carridine, 812 N.W.2d at 146. To satisfy
that burden, “the state would need to show that there is no reasonable likelihood that the
absence of the misconduct in question would have had a significant effect on the verdict of
the jury.” Ramey, 721 N.W.2d at 302 (quotation omitted). If all prongs of the modified
plain-error test are met, an appellate court “then assesses whether the error should be
addressed to ensure fairness and the integrity of the judicial proceedings.” Id.
Wion argues that it was plain error for the prosecutor to present inadmissible
evidence of his other bad acts, commonly referred to as Spreigl evidence.1 Spreigl

1 State v. Spreigl, 139 N.W.2d 167, 169 (Minn. 1965).
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evidence is generally inadmissible because “ the jury may convict because of those other
crimes or misconduct, not because the defendant’s guilt of the charged crime is proved.”
State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). It is improper for a prosecutor to elicit
inadmissible testimony. See State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994).
Based on a review of the record, the prosecutor was not attempting to elicit Spreigl
evidence. Instead, Wion raised the issue of the circumstances of his arrest from the outset
of his trial. The supreme court has indicated that district courts, generally, should not
interfere with a defendant’s trial strategy. See State v. Washington, 693 N.W.2d 195, 205
(Minn. 2005). We address each piece of evidence in turn.
First, Wion argues that the prosecutor improperly elicited evidence that he
possessed and attempted to sell marijuana. While the state concedes that the marijuana
evidence was not particularly relevant, Wion himself referred to this evidence in his
opening statement as part of his trial strategy. Therefore, the prosecutor’s elicitation of
evidence about the marijuana was not plain error.
Second, Wion argues that the prosecutor improperly elicited evidence that he
provided Officer Sherwood with false information about his identity. As with evidence of
the marijuana, Wion placed the circumstances of his arrest at issue in his opening statement
as part of his trial strategy. Therefore, evidence relating to Wion’s attempt to conceal his
identity was not inadmissible as it was not offered as Spreigl evidence and thus was not
plain error.
Next, Wion argues that the prosecutor improperly elicited evidence that he
possessed a BB gun in a public place. This court has held that a physical object is
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admissible into evidence if it tends to connect the defendant to the crime. State v. Olson,
436 N. W.2d 817, 820 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989). In
addition, the prosecutor did not plainly err by eliciting evidence of the BB gun as it tended
to connect Wion to the robbery and, as with the marijuana and false-identification evidence,
related to the circumstances of his arrest.
Finally, Wion argues that the prosecutor committed misconduct by eliciting
evidence that his interaction with B.F. was an attempted robbery . Given that Wion’s
overall trial strategy was to compare the circumstances of his arrest to the robbery , the
prosecutor’s elicitation of this evidence was not plain error.
Because none of the above evidence was objected to at trial, Wion is essentially
arguing that the district court, sua sponte, should have intervened. See State v. Vick, 632
N.W.2d 676, 687 (Minn. 2001) (“[T]he real question before us is not whether the [district]
court erred in admitting the evidence, but instead is whether the [district] court’s failure to
sua sponte strike the testimony or provide a cautionary instruction was plain error.”). In
this case, it would have been inappropriate for the district court to sua sponte strike the
testimony or provide a limiting instruction, because Wion raised the circumstances of his
arrest as part of his trial strategy. See Washington, 693 N.W.2d at 205.
Because Wion has failed to establish plain error, we decline to consider the
remaining steps of the modified plain-error test.
Affirmed.