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This opinion will be unpublished and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
A19-1519

State of Minnesota,
Respondent,

vs.

Robert Lee Fettig,
Appellant.

Filed August 24, 2020
Affirmed
Slieter, Judge

Kandiyohi County District Court
File No. 34-CR-18-418

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

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

Considered and decided by Cochran, Presiding Judge; Slieter, Judge; a nd Bryan,
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 his judgment of conviction for a fifth-degree controlled-
substance crime, appellant Robert Lee Fettig argues that (1) the district court abused its

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discretion by excluding evidence of an alternative perpetrator, and (2) the prosecutor
committed misconduct by failing to adequately prepa re a witness who volunteered
prohibited testimony. Because the district court properly excluded evidence of an
alternative perpetrator and the prosecutor did not commit reversible misconduct, we affirm.
FACTS
Fettig was charged with fifth -degree possession of a controlled substance
(methamphetamine), in violation of Minn. Stat. § 152.025, subd. 2(1) (2016) , after law
enforcement deputies found a bag containing methamphetamine in a vehicle in which he
was a passenger. The case was tried to a jury, and the following facts are based on the
evidence presented at trial.
Fettig was a front-seat passenger in a Chevrolet Silverado pickup truck driven by
and registered to T.W. Law enforcement stopped the truck following a report from a citizen
that Fettig, for whom there was an active arrest warrant, was in the vehicle. As the deputies
spoke with T.W. and Fettig through the driver-side window of the truck, the deputies
smelled an odor of marijuana coming from inside the vehi cle. Based on the odor, the
deputies asked T.W. and Fettig to step out of the vehicle so they could search it. After
T.W. got out of the vehicle, she told one of the deputies that Fettig had placed “something”
between her seat and the center console.
The deputies found a bag containing a white, powdery substance between the
driver’s seat and the center console. The deputies also found a torch -style lighter in the
area where T.W.’s feet were and over $1,000 in cash in T.W.’s purse. A field test showed
the substance tested positive for methamphetamine , and subsequent testing by the

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Minnesota Bureau of Criminal Apprehension confirmed the substance to be 2.094 grams
of methamphetamine.
Fettig sought to introduce, as alternative -perpetrator evidence, T.W.’s pending
controlled-substance charge and to preclude the prosecutor from eliciting testimony of his
warrant status at the time of the stop . The district court denied Fettig’s motion to present
alternative-perpetrator evidence of T.W.’s pending charge, and the parties agreed not to
reference Fettig’s prior fifth -degree controlled -substance crime conviction and arrest
warrant. However, despite this agreement , testimony of his arrest warrant led Fettig to
move for a mistrial, which the district court denied. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by excluding
alternative-perpetrator evidence.

Fettig contends that, by not allowing him to present evidence of T.W.’s pending
drug charge , the district court precluded him from presenting an alternative -perpetrator
defense. Fettig argues that this abuse of discretion warrants a new trial.
“District courts have discretion in ruling on evidentiary matters, and will not be
reversed absent a clear abuse of discret ion.” State v. Hokanson , 821 N.W.2d 340, 350
(Minn. 2012). “If an appellate court concludes that the district court abused its discretion
in excluding alternative perpetrator evidence, the appellate court must then determine
whether the error was harmles s beyond a reasonable doubt. ” Id. “An error is harmless
beyond a reasonable doubt if the verdict rendered is surely unattributable to the error.” Id.
(quotation omitted).

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“Every defendant has a constitutional right to present a complete defense, including
evidence tending to prove another person committed the crime .” State v. Jenkins ,
782 N.W.2d 211, 224 (Minn. 2010); see generally Minn. R. Evid. 404(b). Evidence of
other crimes of an alternative perpetrator is often called “reverse-Spreigl” evidence.1 State
v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997). “The foundational requirements for
reverse Spreigl evidence are the same as for Spreigl evidence.” Id.
The right to present alternative-perpetrator evidence “is not absolute; courts may
limit the defendant’s evidence to ensure that the defendant does not confuse or mislead the
jury.” Jenkins, 782 N.W.2d at 224. Accordingly, there are certain limitations to the
admission of reverse-Spreigl evidence. As a threshold limitation, the defendant must first
“connect[] the alternative perpetrator to the charged crime.” State v. Jones, 678 N.W.2d 1,
17 (Minn. 2004). The record shows Fettig successfully connected T.W. to the crime by
showing that T.W. was in the vehicle with him at the time of the stop, and that the deputies
found the baggie of methamphetamine next to T.W.’s seat and a torch-style lighter at her
feet.
Having met this initial threshold, Fettig was required to meet each of the following
elements: (1) provide clear and convincing evidence that T.W. participated in the reverse-
Spreigl incident; (2) demonstrate that the reverse-Spreigl incident is relevant and material
to Fettig’s case; and (3) demonstrate that the probative value of the reverse -Spreigl
evidence outweighs its potential fo r unfair prejudice. See id. at 16-17. Because caselaw

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

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dictates that all three factors must be satisfied for a district court to admit reverse -Spreigl
evidence and the first factor fails, we need not address the remaining factors.
T.W.’s Participation in Reverse-Spreigl Incident

Fettig must show by clear and convincing evidence that T.W. participated in the
reverse-Spreigl incident. “‘Clear and convincing’ requires more than a preponderance of
the evidence, but less than proof beyond a reasonable doubt. ” Johnson, 568 N.W.2d at
433. “[T] he eviden ce must clearly show the person’ s direct pa rticipation in the other
crime.” State v. Miller , 754 N.W.2d 686, 701 (Minn. 2008) (quotation omitted) .
“[Appellate courts] have found evidence to be clear and convinc ing on the str ength of a
conviction, a victim’ s clear identification of the defendant as the assailant, or the
defendant’s own confession of participation in the incident.” Id. (quotation omitted).
Fettig did not provide the district court with clear and convincing evidence of T.W.’s
participation in the reverse-Spreigl incident. Fettig alleges, without an offer of proof, that
T.W. participated in a drug crime. This does not meet the clear and convincing standard.
Even if we presume that a criminal complaint was filed which alleges T.W. participated in
the drug crime, probable cause needed to support a criminal complaint is not the clear-and-
convincing-evidence standard needed to show participation in the crime for purposes of
reverse-Spreigl. Cf. State v. Scholberg, 393 N.W.2d 247, 249 (Minn. App. 1986) (holding
that criminal charges alone do not demonstrate participation in the offense). Fettig
provided the district court with little information about the charge othe r than brief,
unsubstantiated details about the general nature of the charge, and that T.W. allegedly told
law enforcement during its investigation that she was a drug dealer. Based upon this

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record, the district court properly concluded that Fettig failed to demonstrate by clear and
convincing evidence that T.W. participated in the reverse -Spreigl incident. Because the
district court did not abuse its discretion in excluding the reverse-Spreigl evidence, we need
not undergo a harmless-error analysis.
II. Fettig is not entitled to a new trial due to prosecutorial misconduct.

Fettig argues that a mistrial is warranted on the grounds that the prosecutor
committed misconduct by failing to prepare T.W. for her testimony and that this failure led
to T.W. uttering the prohibited statements.
“The denial of a motion for a mistrial is reviewed for an abuse of discretion.” State
v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016). “In cases involving serious prosecutorial
misconduct this court will reverse if the misconduct was so prejudicial as to have
substantially affected the jury and denied appellant a fair trial. ” State v. McNeil ,
658 N.W.2d 228, 231-32 (Minn. App. 2003). In Minnesota, “the state has an absolute duty
to prepare its witnesses to ensure they are aware of the limits of permissible testimony. ”
Id. at 232.
During trial, the prosecutor asked T.W., “Prior to the officers approaching the
vehicle, what was Mr. Fettig doing?” T.W. responded, “Well, we knew we were going to
get pulled over because [Fettig] had a warrant.” Fettig immediately moved for a mistrial.
The district court denied Fettig’s mistrial motion but offered to instruct the jury to give no
consideration to T.W.’s reference of Fettig’s warrant. Fettig’s counsel rejected this offer
explaining that it was “better to not” give the curative instruction so not to “add anything
more to it.” No curative instruction was provided to the jury.

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T.W. resumed her testimony. Eventually during her testimony, and unprompted by
the prosecutor, T.W. stated that “[She and Fettig] knew [Fettig] was going to jail” due to
the presence of the drugs in the vehicle. Fettig again asked for a mistrial on the grounds
that this was an improper reference to his warrant status. The district court denied Fettig’s
motion.
Given the factual record of this case , we will presume, without so ruling, that the
prosecutor erred in failing to prepare T.W. for her testimony which led to the prohibited
utterances. We next analyze whether the prohibited utterances caused prejudice.
When reviewing whether testimony was prejudicial, appellate courts consider
whether the testimony was emphasized and assess the strength of the other evidence in the
record supporting the conviction. See State v. Haglund , 2 67 N.W.2d 503, 506 (Minn.
1978); see also McNeil, 658 N.W.2d at 233 (concluding that, despite error, there was no
prejudice because of the “overwhelming weight of the evidence” supporting the verdict).
The record reflects that T.W.’s statements were not emphasized during the trial. In
fact, Fettig rejected the district court’s offer to provide a curative instruction to avoid
drawing unnecessary emphasis to T.W.’s statements. Further, the district court concluded
that T.W.’s second statement was not necessarily an improp er referen ce to his warrant
because the statement could be interpreted to relate to the presence of drugs in the vehicle
as T.W. had testified . Lastly, the weight of the evidence supporting the verdict is
overwhelming. We therefore determine that the district cour t did not abuse its discretion
by concluding that neither statement resulted in error.

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In sum, the district court did not abuse its discretion in de nying Fettig’s mistrial
motion.
Affirmed.