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This opinion will be unpublished and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
A19-1239

State of Minnesota,
Respondent,

vs.

Antonio Cornelius Neal,
Appellant.

Filed August 10, 2020
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-17-30873

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this direct appeal from the judgment of conviction for first-degree criminal sexual
conduct, appellant Antonio Cornelius Neal argues that the district court committed

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reversible error by admitting Spreigl1 evidence of Neal’s prior criminal-sexual-conduct
crime. Because the prior criminal offense shares a markedly similar modus operandi with
the conduct underlying the present offense and evidence of the prior criminal offense was
not overly-prejudicial, we affirm.
FACTS
In 2019, Neal was charged by amended complaint with three counts of fir st-degree
criminal sexual conduct with a person under the age of 13, in violation of Minn. Stat.
§ 609.342, subd. 1(a) (2010). The state alleged that Neal sexually assaulted his biological
daughter on multiple occasions between 2010 and 2012 when she was between 6- and 8-
years-old. The jury found Neal guilty of all three charged counts. The district court
allowed, as Spreigl evidence during the trial, testimony from Neal’s cousin about instances
of prior sexual abuse by Neal against her when she was a minor that resulted in Neal being
convicted of third-degree criminal sexual conduct in 2004. Neal challenges the district
court’s admission of his cousin’s testimony.
D E C I S I O N
Neal argues the admission of his cousin’s testimony was improper because the
testimony did not demonstrate that he acted according to a common plan, was irrelevant,
and the prejudicial value of the testimony outweighed its probative value. Neal also
contends that the district court erred in failing to caut ion the jury as to the proper use of
Spreigl evidence prior to its receipt.

1 State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

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Minn. R. Evid. 404(b) governs the admissibility of evidence of a defendant’s other
crimes or prior acts , which is also referred to as Spreigl evidence. This evidence is not
admissible to prove that a defendant acted in conformity with his or her prior bad acts, but
it may be admissible for other purposes such as establishing “proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or acci dent.” Minn.
R. Evid. 404(b)(1).
“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). The defendant 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 appellate court
must then determine whether there is a reasonable possibility that the wrongfully admitted
evidence significantly affected the verdict. Id. at 262.
The state argued in district court, and maintains on appeal, that the testimony of
Neal’s cousin was admissible Spreigl evidence to show that Neal acted according to a
common plan in assaulting his minor daughter . Neal argues that the facts of the 2004
incident reflect a different modus operandi from the current conduct and the Spreigl
evidence is therefore inadmissible . He also raises a number of alternative arguments
against admission of the testimony.
In a written order, the district court considered the five factors required pursuant to
Minnesota law in determining the admissibility of Spreigl evidence: (1) whether the state

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gave notice of its intent to admit the Spreigl evidence;2 (2) whether the state clarified what
the Spreigl evidence will prove; (3) whether there was clear and convincing evidence that
the defendant participated in the Spreigl act; (4) whether the Spreigl evidence was relevant
and material to the state's case; and (5) whether the probative value of the Spreigl evidence
was outweighed by its potential prejudice to the defendant. State v. Ness, 707 N.W.2d 676,
685-86 (Minn. 2006). The primary factors for which Neal believes the court erred involve
the second and fourth factors, purpose and relevance.
The district court determined that the state satisfied each factor and allowed Neal’s
cousin to testify at trial. With regard to the second and fourth factors, the district court
stated:
[T]he incidents [ underlying the 2004 conviction] address the
precise disputed fact as to whether Mr. Neal employed a
common scheme in committing the present offense. The
consistency between [the] incidents establishes a design of
sexually abusing younger women that Mr. Neal is rela ted to.
Both relevant acts involved familial ties, both took place at the
location where Mr. Neal was staying, both involve penetration
of genitals by Mr. Neal’s penis that lead to ejaculation, and
both involve a threat from Mr. Neal to not speak. The cl ose
similarity in modus operandi is readily a pparent based upon
those facts.

2 Neal argues for the first time on appeal that the state did not provide notice of some of
the facts testified to by his cousin during her testimony related to the Spreigl incident.
Appellate courts generally will not consider matters not argued to and considered by the
district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“This court generally
will not decide issues which were not raised before the district court, including
constitutional questions of criminal procedure.”). We therefore d ecline to consider this
claim.

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The district court determined that the probative value of the evidence outweighed its
potential for unfair prejudice. The district court also stated that the prejudice in admitting
the evidence would be mitigated by providing a cautionary instruction to the jury before
the evidence was introduced.
During trial, Neal’s cousin testified that Neal sexually penetrated her twice while at
her home—once in 2003 in her brother’s room whe n nobody else was home, and once
again in 2004 in her bedroom after everyone else in the home had gone to sleep. Neal told
her not to t ell her dad about what happened and that her family “won’t find out.” Her
family eventually did find out and reported the allegations to law enforcement.
Following the testimony of Neal’s cousin, the district court instructed the jury that
they were to consider the cousin’s testimony “for a limited purpose. It ’s a purpose—the
purpose is to assist [the jury] in determining whether Mr. Neal committed the acts that he’s
charged of here. He’s not charged with those offenses and you can’t convict him based on
those offenses. Is that clear to everyone?” See 10 Minnesota Practice, CRIMJIG 2.01
(2015).
Marked Similarity
Our supreme court stated that rule 404(b) “plan” evidence includes “evidence of
offenses which, because of their marked similarity in modus operandi to the charged
offense, tend to corroborate evidence of the latter.” Ness, 707 N.W.2d at 687-88 (quotation
omitted). Such evidence may be admissible “to refute the defendant’s contention that the
victim’s testimony was a fabrication or a mistake in perception.” Id. at 688. “[T]he closer

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the relationship between the other acts and the charged offense, in ter ms of time, place, or
modus operandi, the greater the relevance and probative value” of the evidence. Id.
Neal argues that the Spreigl incident is not markedly similar to the charged offense
because the prior offense: (1) included a single form of penetration; (2) involved his minor
cousin who was five to seven years older than his daughter at the time of the abuse; (3) did
not involve a threat; and (4) occurred at a different location. Each argument is addressed
below.
Different forms of assault
Neal cites no caselaw in support of his argument that a Spreigl incident that involved
a single form of penetration is markedly different from the charged offense which includes
multiple forms of penetration for Spreigl admission. That Neal sexually assaulted both his
minor cousin and minor daughter through vaginal penetration establishes that the forms of
assault were sufficiently similar.
Different familial relationships and ages
Our supreme court has allowed common plan Spreigl evidence of past abuse of
relatives in cases where the defendant was charged with assaulting a daughter. See State
v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (past allegation of sexual assault
of niece admissible to show a pattern of abusing you ng girls within the “family context”).
Neal assaulted two familial minors. The fact that one victim was a cousin and the other
was a daughter does not establish a different modus operandi between the two incidents .
Further, b oth victims were minor relat ives, and the 2004 incident shows an “ongoing
pattern of opportunistic [assault] of young girls within the family context.” Id.

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Different threats
The record shows that Neal threatened his daughter by telling her “not to tell or he
would hurt her.” Neal’s cousin testified that Neal told her that “[her family] won’t find
out” and that she should not “tell [her] dad.” While the language used in the incidents was
different, it would have been reasonable for both Neal’s cousin and the district court to
interpret Neal’s language in each case as a threat.
Different locations
The district court concluded that the Spreigl and charged incident “both took place
at the location Mr. Neal was staying .” It is reasonable to conclude that the incidents
occurred i n the bedrooms of homes where Neal was staying even though the offenses
occurred at different physical locations.
In sum, the modus operandi of the prior offense was markedly similar to the
convicted offense for the district court to conclude that the prior offense was admissible as
Spreigl evidence.
Relevancy
Neal asserts that the abuse of his cousin occurred at least six years before the
conduct underlying the current charges , and is therefore too remote to be relevant. The
district court stated in its pretria l order that “[a]lthough large periods of time have passed
between the past allowed bad act, the relevance of the similarities is striking and the matter
is not stale.”
“The degree of proximity betw een the prior and charged acts, while bearing
somewhat on the probative value analysis, is largely a factor in determining whether the

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Spreigl evidence is relevant to the prosecution. ” State v. Washington , 693 N.W.2d 195,
201 (Minn. 2005). “ In general, the prior acts become less releva nt as time passes. Thus,
the greater the time gap, the more similar the acts must be ” to be considered as relevant.
Id. There is no bright-line rule for determining how old is too old.
Relevancy concerns of prior bad acts are lessened if “the defendant was actually
convicted of a crime based on the prior bad act, thus reducing the prejudice of having to
defend against claims of other acts that occurred years before.” Ness, 707 N.W.2d at 689.
Neal’s conviction resulting from the 2004 incident bolsters its rel evance to the current
charges.
The record establishes that the prior conviction is relevant and the district court did
not abuse its discretion in admitting the evidence on this ground.
Probative Value
Neal also argues that the probative value of his cousin’s testimony is outweighed by
its prejudicial impact. “The use of Spreigl evidence to show a common scheme or plan has
been endorsed repeatedly, despite the particular risk it poses for unfair prejudice. ” Ness,
707 N.W.2d at 687. Plan evidence may be admissible “to refute the defendant’s contention
that the victim’s testimony was a fabrication or a mistake in perception. ” Id. at 688. The
need for plan evidence is perhaps the largest factor in determining whe ther the probative
value of the evidence is outweighed by its prejudicial effect. Id. at 690. In assessing the
probative value, appellate courts look to whether the evidence was relevant and whether
the evidence was needed to strengthen the proof of an element. Id. at 689.

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At trial, Neal’s primary defense was that his daughter was lying about the abuse .
“In criminal sexual conduct cases, particularly in child sex abuse prosecutions, prior acts
of sexual conduct are often relevant . . . where the defendant asserts the victim is fabricating
the allegations.” State v. Boehl, 697 N.W.2d 215, 219 (Minn. App. 2005), review denied
(Minn. Aug. 16, 2005). Neal’s cousin’s testimony has clear probative value in refuting the
allegation that his daughter was lying.
In sum, Neal’s argument that his daughter fabricated the abuse allegations compels
us to conclude that the district court did not abuse its discretion in concluding that the
probative value of his cousin’s testimony outweighed it prejudicial effect.
Lastly, the district court attempted to mitigate the prejudicial impact of the cousin’s
testimony by giving a cautionary instruction on how the jury should evaluate the testimony.
Neal argues that the district court erred by giving this instruction after his cousin testified.
Because the alleged error was not objected to, our court reviews for plain error. State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998).
The record shows that the district court acknowledged that the instruction is
typically given before the evidence is presented, but that it forgot to do so before the
cousin’s testimony. The record also shows that, after noting this, Neal’s attorney expressly
agreed with the district court’s suggestion to give the instruction after the testimony.
In cases involving Spreigl evidence, Minnesota caselaw suggests that “[b]oth at the
time the evidence is received and in the final charge, the court should admonish the jury
that the testimony is received for [a] limited purpose.” State v. Billstrom, 149 N.W.2d 281,

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285 (Minn. 1967). The record shows that the district court did both, and there is no support
that giving the instruction after the cousin’s testimony was an error.
In sum, the district court did not abuse its discretion or otherwise err in admitting
the Spreigl evidence.
Affirmed.