In the Matter of the Welfare of: D. L. N., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1021

In the Matter of the Welfare of: D. L. N., Child.

Filed March 6, 2023
Affirmed
Frisch, Judge

Otter Tail County District Court
File No. 56-JV-21-17

Luke T. Heck, Drew J. Hushka, Vogel Law Firm, Fargo, North Dakota (for appellant
D.L.N.)

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

Michelle Eldien, Otter Tail County Attorney, Kathleen J. Schur, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent State of Minnesota)

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following an adjudication of delinquency for first-degree criminal sexual conduct,
appellant argues that the district court abused its discretion by admitting Spreigl evidence
of three prior sexual acts, two acts between appellant and the juvenile victim and one act
between appellant and a juvenile relative. Because the district court did not abuse its
discretion by admitting the Spreigl evidence, we affirm.
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FACTS
Respondent State of Minnesota charged appellant D.L.N. with two counts of first-
degree criminal sexual conduct and two counts of second-degree criminal sexual conduct.
Trial testimony established that D.L.N., then 16 years old, inserted his fingers into the
victim’s vagina, forced the victim’s hand to rub his penis, and touched the victim’s breast.
The victim was D.L.N.’s cousin, then 11 years old. The victim’s close friend witnessed
the incident. Weeks later, the close friend and the victim disclosed the incident to their
mothers.
Before trial, the state provided written notice of its intent to introduce Spreigl
evidence related to incidents involving D.L.N. and non-victims.1 The notice provided that
the purpose for introducing the evidence was to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” The state di d
not provide written Spreigl notice for prior incidents involving the victim. D.L.N. objected
to the written Spreigl notice and moved in limine to preclude the state from introducing the
Spreigl evidence identified in the written notice. In its response, the state argued that the
evidence was admissible to show motive, intent, plan, preparation and “a propensity
towards inappropriate sexual contact with young girls and is admissible to prove a common
scheme or plan.” At the hearing on the motion, the state confirmed that it also sought to

1 Evidence of other crimes or bad acts is known in Minnesota as “Spreigl evidence.” State
v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (citing State v. Spreigl, 139 N.W.2d 167
(Minn. 1965)).
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admit additional Spreigl evidence regarding prior incidents involving the victim, which
D.L.N. opposed.
After hearing the motion, the district court considered all Spreigl evidence that the
state sought to introduce and determined that evidence of two prior incidents involving the
victim and one prior incident involving another of D.L.N.’s juvenile cousins were
admissible as Spreigl evidence. The district court excluded all other proffered Spreigl
evidence. The matter proceeded to a jury trial where the state introduced the approved
Spreigl evidence. The jury heard testimony about a prior incident where D.L.N. offered
the victim a massage, told the victim to pull her dress down to her waist, began massaging
her, pulled her dress and underwear down to her legs, and massaged her bare buttocks. The
jury also heard testimony about a prior incident where the victim woke up and felt D.L.N.’s
fingers moving inside her vagina. Finally, the jury heard testimony about a prior incident
where D.L.N. put his hand in a juvenile cousin’s pants, over her underwear, and near her
vagina.
The jury returned a guilty verdict on all counts. Following the jury trial, the district
court entered an adjudication of delinquency for one count of first-degree criminal sexual
conduct. D.L.N. now appeals.
DECISION
D.L.N. argues that the district court abused its discretion by admitting the Spreigl
evidence because the state did not clearly indicate its purpose for admitting the evidence,
the evidence was not relevant or material, and the potential prejudice to D.L.N. outweighed
the probative value of the evidence. D.L.N. argues that because of this abuse of discretion,
4
his case was prejudiced such that a new trial is warranted . We address each argument in
turn.
Evidence of other acts by a defendant “is not admissible to prove the character of a
person in order to show action in conformity therewith.” Minn. R. Evid. 404(b)(1). But
evidence of other acts by the defendant may be admissible for non- propensity purposes,
“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. The principal concern with the admission of Spreigl
evidence is that “it might be used for an improper purpose, such as suggesting that the
defendant has a propensity to commit the crime or that the defendant is a proper candidate
for punishment for his or her past acts.” State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).
Five requirements must be met before Spreigl evidence may be admitted:

(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.

Id. at 685-86.
We review a district court’s decision to admit Spreigl evidence for an abuse of
discretion. State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). The appellant bears the
burden of showing that the district court erred in admitting the evidence and any resulting
prejudice. Id.

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Notice of Intended Use
D.L.N. argues that the district court abused its discretion by admitting the Spreigl
evidence because the state did not set forth in its notice a clear and unambiguous purpose
for offering the evidence and because the state explicitly stated that it sought to introduce
the evidence for an impermissible purpose — propensity. Although we agree with D.L.N.
that one of the state’s proffered rationales for introducing the evidence—to establish
propensity—is plainly improper, w e discern no abuse of discretion by the district court in
its determination that D.L.N. received sufficient notice of a proper purpose for the
admission of the evidence, and we do not identify any prejudice to D.L.N. resulting from
any defect in the state’s notice.
First, the district court did not abuse its discretion by independently reviewing the
state’s Spreigl notice and determining that certain evidence was admissible for a proper
purpose. Notwithstanding any improper purpose noticed by the state, the district court as
the evidentiary gatekeeper bears the responsibility of conducting an independent
determination of the true purpose of the proffered evidence. See Ness, 707 N.W.2d at 686
(“The district court should not simply take the prosecution’s stated purposes for the
admission of other-acts evidence at face value. Instead, the court should . . . look to the
real purpose for which the evidence is offered.” (quotation omitted)). We review the
admission of Spreigl evidence based on the rationale as identified by the district court, not
the rationale identified by the state. State v. Fardan, 773 N.W.2d 303, 317 (Minn. 2009);
see also State v. Rossberg, 851 N.W.2d 609, 615-16 (Minn. 2014) (reasoning that review
is limited to the rationale cited by the district court, and not the one supplied by the state).
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Because the district court followed the directive in Ness by independently determining the
proper basis for admission of the Spreigl evidence, we see no abuse of discretion.
Second, the district court did not abuse its discretion in concluding that D.L.N. was
not prejudiced by any deficiency in the state’s notice. “The notice requirement is designed
to give a defendant sufficient opportunity to prepare for trial and to avoid situations where
a defendant must defend against unexpected testimony regarding prior offenses.” State v.
Bolte, 530 N.W.2d 191, 197 (Minn. 1995); see also Minn. R. Juv. Delinq. P. 10.03 (“Such
additional acts shall be described with sufficient particularity to enable the child to prepare
for the trial.”). The notice requirement also helps “ensure that the evidence is subjected to
an exacting review.” Ness, 707 N.W.2d at 685 (quotation omitted). Notice defects do not
require reversal when there was “substantial compliance with the notice requirements and
lack of prejudice to the defendant.” Bolte, 530 N.W.2d at 199.
The district court reasoned that D.L.N. was not prejudiced by the state’s failure to
“formally or artfully” express the purpose for which it sought to introduce Spreigl evidence
because he had a chance to respond to the state’s arguments and “no potential argument
favorable to the defense [was] ignored.” The record supports this determination. In its
written notice, the state identified that its purpose for introducing Spreigl evidence was
proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” In its memorandum opposing D.L.N.’s motion in limine, the state
further argued that the similarities between the prior incidents justified admissibility of the
Spreigl evidence as a common plan or scheme and to show intent, motive, and preparation.
The state also asserted that the evidence would be particularly relevant “for the jury to
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determine which version of events to believe.” The motion in limine was heard and decided
months before trial began. D.L.N. therefore suffered no prejudice, as he had ample
opportunity to prepare for trial.
Relevance and Materiality
D.L.N. asserts that the district court abused its discretion by admitting the Spreigl
evidence because the incidents were not relevant or material. We disagree.
To assess whether Spreigl evidence is relevant and material to the state’s case, “the
district court must identify the precise disputed fact to which the Spreigl evidence would
be relevant.” Ness, 707 N.W.2d at 686 (quotation omitted); see also Minn. R. Evid. 401
(defining “relevant evidence” as evidence tending to make more or less probable the
existence of any consequential fact). “This entails isolating the consequential fact for
which the evidence is offered, and then determining the relationship of the offered evidence
to that fact and the relationship of the consequential fact to the disputed issues in the case.”
Ness, 707 N.W.2d at 686.
The district court explained that prior incidents involving the victim were relevant
and material in relation to the victim’s credibility and her recounting of the incident, which
D.L.N. suggested he would argue was fabricated. The district court reasoned that Spreigl
evidence of prior incidents between D.L.N. and the victim would allow the prosecution to
give context to and explain certain details offered by the victim, such as why the victim
came up with a codeword before meeting up with D.L.N. and certain reactions following
the incident. The district court also reasoned that the evidence would show D.L.N.’s
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preparation, opportunity, and motive through D.L.N.’s “grooming” of the victim and desire
for sexual gratification from the victim specifically.
The district court also concluded that one prior incident involving another juvenile
cousin of D.L.N. was admissible as a common scheme because it was relevant to whether
the victim fabricated the story. Common-scheme evidence may be admissible to refute an
assertion that the victim fabricated testimony or is mistaken. Id. at 688; see also State v.
Wermerskirchen, 497 N.W.2d 235, 240-42 (Minn. 1993) (recognizing the relevance of
common-scheme evidence “to the specific issue of whether the conduct on which the
charge was based actually occurred or was . . . a fabrication or a mistake in perception by
the victim”). Such incidents must have a “marked similarity in modus operandi to the
charged offense.” Ness, 707 N.W.2d at 688. While remoteness of an act is a relevant
consideration, the focus should be on the closeness of the relationship between the incident
in terms of factors such as time, place, and modus operandi, which the district court is in
the best position to weigh. State v. Washington, 693 N.W.2d 195, 201 (Minn. 2005). The
district court considered the similarity of the relationship between the parties and the ages
of the victims at the time of the incidents, and emphasized the common means of abuse—
touching underneath clothing.
The district court thoughtfully considered the relevance and materiality of each
proffered Spreigl incident. It determined that the defense was likely to dispute the victim’s
narrative and suggest that she fabricated the story. It reasoned that the admissible Spreigl
evidence was relevant to the victim’s credibility and tended to show D.L.N.’s preparation,
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opportunity, motive, and plan. We see no abuse of discretion in the district court’s analysis
on relevance and materiality.
Probative Value and Potential Prejudice

D.L.N. argues that the district court abused its discretion by admitting the Spreigl
evidence because the evidence was only probative to show D.L.N.’s propensity to commit
sexual assault. We disagree.
“[T]he probative value of the [Spreigl] evidence must not be outweighed by its
potential prejudice to the defendant.” Ness, 707 N.W.2d at 686. As previously discussed,
the district court determined that there were proper purposes for the Spreigl evidence. The
district court noted that Spreigl evidence is particularly important when the defendant
denies the act occurred, the victim is underage, and the defendant argues that the victim
had a motivation to fabricate the allegation, which D.L.N. indicated he would argue here.
In the context of the admission of Spreigl evidence, “prejudice does not mean the
damage to the opponent’s case that results from the legitimate probative force of the
evidence; rather, it refers to the unfair advantage that results from the capacity of the
evidence to persuade by illegitimate means.” State v. Welle, 870 N.W.2d 360, 366 (Minn.
2015) (quotation omitted). The district court reasoned that the risk of presenting
cumulative or distracting evidence was sufficiently lowered by limiting evidence allowed
at trial.
2 We see no abuse of discretion in this analysis.

2 We note that district courts may minimize the risk of admitting Spreigl evidence that is
more prejudicial than probative by deferring a final ruling until after the state has presented
its evidence to determine whether Spreigl evidence is crucial to the state’s burden of proof.
See State v. DeWald, 464 N.W.2d 500, 504-05 (Minn. 1991) (explaining that the need to
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Prejudice to D.L.N.’s Case
Although the district court did not abuse its discretion by admitting the Spreigl
evidence, we nevertheless address D.L.N.’s argument that his case was prejudiced by the
erroneous admission of evidence.
“To warrant a new trial, the erroneous admission of Spreigl evidence must create a
reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” Fardan, 773 N.W.2d at 320 (quotation omitted). In assessing this possibility, we
consider whether the district court issued a cautionary instruction to the jury, which we
presume the jury followed, whether the state “dwelled on the evidence in closing
argument,” and “whether the evidence of guilt was overwhelming.” State v. Thao, 875
N.W.2d 834, 839 (Minn. 2016).
First, D.L.N. asserts that the district court abused its discretion because it did not
issue a cautionary instruction after every mention of Spreigl evidence at trial. 3 “The

introduce Spreigl evidence may be diminished if the state’s case is stronger than was
expected before trial). We encourage district courts to exercise their discretion to use this
procedure where appropriate.

3 D.L.N. also asserts that the district court abused its discretion by giving a cautionary
instruction that did not specify the precise purpose for which the Spreigl evidence could be
used. D.L.N. did not request that the Spreigl evidence jury instructions include such
content or object to the final instructions that were given, and he therefore forfeited this
argument. See State v. Zinski, 927 N.W.2d 272, 275 (Minn. 2019) (stating that the
defendant forfeited their right to appellate review of jury instructions where they did not
request that an instruction include the proper use for certain evidence or object to the final
jury instructions). Even so, we are unaware of any Minnesota authority requiring a district
court to instruct the jury as to the precise purpose for which the jury can use the Spreigl
evidence, particularly when no such instruction was requested. See State v. Broulik, 606
N.W.2d 64, 68-71 (Minn. 2000) (analyzing whether jury instruction should have included
the specific purpose for which the jury could use Spreigl evidence and concluding that no
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[district] court should give an appropriate cautionary instruction both upon receipt of the
other-crime evidence and as part of the final instructions, even if not specifically requested
to do so by defense counsel.” Bolte, 530 N.W.2d at 197 (emphasis added). While the
district court did not consistently offer the cautionary instruction at every mention of the
Spreigl evidence during trial, the district court did read the cautionary instruction multiple
times during trial, including when it was requested, and in its closing instructions. Because
the district court gave instructions several times and we presume that the jurors followed
those instructions, Thao, 875 N.W.2d at 839, this factor does not weigh in favor of
prejudice.
4
Second, D.L.N. argues that the state purposefully and repeatedly elicited Spreigl
evidence at trial. But our review of the record shows that the state did not dwell on or lead
the jury to an inference about the Spreigl evidence in its closing argument. On this record,
we conclude that this factor does not demonstrate prejudice.
Third, D.L.N. argues that the state’s evidence of D.L.N.’s guilt was weak because
the state did not have physical evidence and relied mostly on the victim’s allegations

such instruction was required when no request was made); State v. DeYoung, 672 N.W.2d
208, 212 (Minn. App. 2003) (applying Broulik and holding that the district court erred by
denying an appellant’s request for a specific instruction).

4 We note that trial counsel may, as a matter of trial strategy, have elected to not request a
cautionary instruction each time Spreigl evidence was elicited at trial so as to avoid
drawing more attention to the evidence. See State v. Eling, 355 N.W.2d 286, 293 (Minn.
1984) (reasoning that a decision not to request a cautionary instruction about the possibility
of the defendant appearing in handcuffs could have been a tactical decision to avoid
drawing attention to that fact). We generally do not review trial strategy decisions on
appeal. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).
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against D.L.N. We acknowledge that there was no physical evidence and that the state
relied on witness testimony to establish its case. But despite the lack of physical evidence,
the testimony about the charged incident was mostly consistent and corroborated. Even if
it was not, consideration of these three factors leads us to conclude that there was not a
reasonable possibility that the Spreigl evidence significantly affected the verdict.
We therefore see no abuse of discretion by the district court by admitting Spreigl
evidence.
Affirmed.