State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A23-1249

State of Minnesota,
Respondent,

vs.

Azzel Mickey Lee Foster,
Appellant.

Filed August 19, 2024
Affirmed
Halbrooks, Judge *

Hennepin County District Court
File No. 27-CR-22-7837

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Ede, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
In this direct appeal from final judgment of conviction of first-degree criminal
sexual conduct, appellant contends that the district court abused its discretion by failing to
appoint substitute counsel and in making various evidentiary rulings. Appellant also argues
that the cumulative effect of the se errors warrants a new trial. We affirm.
FACTS
From June 2021 to September 2022, nine -year-old E.H. and twelve -year-old D.H.
lived in Minneapolis with their mother A.H. In the summer of 2021, appellant Azzel
Mickey Lee Foster introduced himself to A.H. while he was walking around A.H.’s
neighborhood. A.H. and Foster became friends and Foster started spending time at A.H.’s
apartment. A.H. occasionally asked Foster to babysit E.H. and D.H. while she worked
overnight shifts.
At some point, A.H. learned from a neighbor that E.H. had told the neighbor’s
daughter that Foster had been touching her inappropriately. When A.H. spoke to E.H.
about the neighbor’s claim, E.H. reported that Foster had sexually penetrated her. After
A.H. confronted Foster with E.H.’s allegations, Foster denied them and stopped spending
time at A.H.’s apartment. A.H. entered “a state of shock” and did not attempt to file a
police report.
In February 2022, A.H. brought E.H. to a scheduled physical. Both E.H. and A.H.
told a pediatric physician that E.H. had been sexually abused. E.H. told the physician that
Foster touched her breasts and penetrated her vagina and anus with his penis multiple times
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over a three -week period. The physician referred A.H. and E.H. to CornerHouse “to
provide mental health support” and reported the incident to child protective services.
E.H. was interviewed at CornerHouse in March 2022. E.H. said that Foster
“touched [her] inappropriately,” and she described multiple instances of sexual penetration.
E.H. said that Foster threatened to kill her and her family if she told anyone. Based on
E.H.’s allegations, child protective services performed a “safety check” on her brother,
D.H. D.H. told an investigator that Foster had touched his penis. As a result of his
disclosure, D.H. was also interviewed at CornerHouse , where he told the interviewer that
Foster touched his penis and also described witnessing some of Foster’s abuse of E.H .
In April 2022, respondent State of Minnesota charged Foster with first -degree
criminal sexual conduct based on E.H.’s allegations , and with second-degree criminal
sexual conduct based on D.H.’s allegations. See Minn. Stat. §§ 609.342, subd. 1a(e), .343,
subd. 1a(e) (Supp. 2021). Following a trial, a jury found Foster guilty of first -degree
criminal sexual conduct (relating to E.H.’s allegations) but not guilty of second-degree
criminal sexual conduct (relating to D.H.’s allegations). The district court sentenced Foster
to 320 months in prison. This appeal follows.
DECISION
Foster argues on appeal that the district court improperly refused his request for
substitute counsel and abused its discretion regarding two evidentiary rulings, and that the
cumulative effect of the se errors deprived him of a fair trial. We address each of Foster’s
arguments in turn.
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I. The district court did not abuse its discretion by failing to appoint substitute
counsel.

Both the United States and the Minnesota Constitutions guarantee criminal
defendants the right to assistance of counsel for their defense. U.S. Const. amend. VI;
Minn. Const. art I, § 6; Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Munt,
831 N.W.2d 569, 586 (Minn 2013). But this right does not give an indigent defendant “the
unbridled right to be represented by counsel of his own choosing.” State v. Gillam, 629
N.W.2d 440, 449 (Minn. 2001) (quotation omitted). “ When a defendant raises complaints
about the effectiveness of appointed counsel ’s representation and requests substitute
counsel, the district court must grant such a request only if exceptional circumstances exist
and the demand is timely and reasonably made. ” Munt , 831 N.W.2d at 586 (quotation
omitted).
“Exceptional circumstances are those that affect appointed counsel’s ability or
competence to represent the client.” Id. (quotation omitted). “When the defendant voices
serious allegations of inadequate representation, the district court should conduct a
searching inquiry before determining whether the defendant ’s complaints warrant the
appointment of substitute counsel.” Id. (quotation omitted) . We review a district court’s
refusal to appoint substitute counsel for an abuse of discretion. Id.
At Foster’s initial appearance, the district court appointed an assistant public
defender to represent Foster. At a hearing prior to trial, Foster told the district court that
he had a “disagreement” with appointed counsel and was looking for a new attorney. The
district court instructed Foster that disagreements with appointed counsel were normal
5
occurrences. The district court did not appoint a new public defender, and Foster was
represented by his originally appointed counsel at trial.
Foster contends that exceptional circumstances supported his request for substitute
counsel based upon his appointed attorney’s refusal to sign an acknowledgment required
by Minn. Stat. § 634.35(a)(6) (2022) to obtain recordings of the CornerHouse interviews
of E.H. and D.H. 1 Foster argues that “[h]ad the court asked even minimal questions, it
would have learned that [his] concern was based on the fact that [appointed counsel]
refused to sign the acknowledgement and, therefore, had not received the CornerHouse
materials that were critical to preparation for trial. ”
But the record reflects that Foster failed to tie his request for substitute counsel to
his appointed counsel’s refusal to sign the protective order. Foster told the district court
only that he did not think that appointed counsel was effective and that they had a
“disagreement.” Foster’s nondescript mention of a “disagreement” is legally insufficient
to constitute an exceptional circumstance. See id. (“[A] defendant’s general dissatisfaction
with his appointed counsel does not amount to an exceptional c ircumstance.” (quotation
omitted)). And Foster did not offer any support for his claim that appointed counsel was
ineffective.

1 Minn. Stat. § 634.35 restricts the reproduction, use, and dissemination of recordings of
interviews of child victims of physical or sexual abuse and provides that “ no person may
be granted access to the [recordings] unless the person has first signed a written agreement
that the person is aware of this statute and acknowledges that the person is subject to the
court’s contempt powers for any violation of it .” Minn. Stat. § 634.35(a)(6).
6
Foster therefore failed to identify any circumstances “that affect[ed] appointed
counsel’s ability or competence to represent [him].” Id. (quotation omitted). And because
he failed to allege “serious allegations of inadequate representation,” the district court was
not required to further conduct a “searching inquiry” to determine whether substitute
counsel was appropriate. Id. Accordingly, we conclude that the district court did not abuse
its discretion by refusing to appoint substitute counsel. 2
II. The district court did not abuse its discretion by excluding evidence of prior
allegations of sexual abuse by E.H. and D.H.

Foster contends that the district court violated his constitutional right to present a
complete defense by refusing to admit evidence of E.H.’s and D.H.’s prior accusations of
sexual abuse by another man. Foster asserts that the jury could have used such evidence
to question the credibility or motives of E.H. and D.H. “Rulings on evidentiary matters
rest within the sound discretion of the district court ,” and we will not reverse a district
court’s evidentiary decision absent a “clear abuse of discretion.” State v. Glover, 4 N.W.3d
124, 136 (Minn. 2024) (quotation omitted). “A court abuses its discretion when its decision
is based on an erroneous view of the law or is against logic and the facts in the record.” Id.
at 134 (quotation omitted).
The Due Process Clause of both the federal and state constitution s “guarantee a
criminal defendant’s right to present a complete defense. ” State v. Carbo, 6 N.W.3d 114,

2 Foster also argues that the district court erroneously failed to grant substitute counsel
during the trial itself. As Foster concedes on appeal, however, he did not actually request
substitute counsel and instead merely sought to make “a record about what [he thought
was] ineffective assistance of counsel.” Accordingly, the district court was not obligated
to take further action and did not err by failing to do so.
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123 (Minn. 2024) ( citing U.S. Const. amend. XIV; Minn. Const. art. I, § 6). As such,
criminal defendants have the right to present their version of the facts through witness
testimony. State v. Smith, 876 N.W.2d 310, 331 (Minn. 2016). But a defendant’s right to
present a complete defense is not absolute. Carbo, 6 N.W.3d at 123. A defendant “must
comply with established rules of procedure and evidence.” State v. Guzman, 892 N.W.2d
801, 811 (Minn. 2017) (quotation omitted) .
In a prosecution for criminal sexual conduct, evidence of a n alleged victim’s prior
sexual conduct is generally inadmissible under Minnesota Rule of Evidence 412 and
Minnesota Statutes section 609.347 (2022), also known as the “rape -shield law.” 3
State v. Wenthe, 865 N.W.2d 293, 306 (Minn. 2015). But the purpose of the rape -shield
law is to “emphasize the general irrelevance of a victim’s sexual history, not to remove
relevant evidence from the jury’s consideration.” Id. (quotation omitted). Thus, evidence
of a victim’s prior sexual conduct can be admissible “when admission is constitutionally
required by the defendant’s right to due process.” Id. (quotation omitted).
Here, Foster sought to introduce testimony indicating that the children were
previously interviewed regarding separate allegations of sexual abuse by another person.
Foster argued that the evidence would (1) demonstrate that the children “received a
tremendous amount of focus and attention” on account of their prior allegations , thereby
giving them a motive to fabricate allegations against Foster and (2) place the children’s
allegations regarding Foster in context “vis -à-vis what their previous experience was ,”

3 Rule 412 enumerates two exceptions to the general rule against admissibility that are
inapplicable here. See Minn. R. Evid. 412(1)(A), (B).
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thereby establishing an alternative source for the children’s knowledge of age -
inappropriate terms.
The district court determined that evidence of the children’s prior allegations fell
under the rape -shield law and assessed whether due process nevertheless required its
admission. The district court concluded that the evidence held low probative value
regarding both motive and source of knowledge , and that the evidence carried a greater
risk of unfairly prejudicing E.H. and D.H. Accordingly, the district court denied Foster’s
motion to admit the evidence of the children’s prior allegations of sexual abuse. On appeal,
Foster asserts that the evidence was admissible to show the children’s motive to fabricate
or their source of knowledge .
Motive
Foster contends that evidence of the children’s prior allegations was admissible to
demonstrate the children’s motive to fabricate . Inadmissible evidence of prior sexual
conduct under the rape -shield law includes evidence of prior allegations of sexual abuse.
State v. Kowbow , 466 N.W.2d 747, 750 (Minn. App. 1991), rev. denied (Minn. Apr. 18,
1991). But evidence of a witness’s prior sexual conduct that suggests the witness’s motive
to fabricate allegations of sexual abuse can be admissible when its risk of unfair prejudice
does not outweigh its probative value. State v. Olsen , 824 N.W.2d 334, 340 (Minn. App.
2012), rev. denied (Minn. Feb. 27, 2013).
Here, the district court determined that the evidence’s risk for unfairly prejudicing
D.H. and E.H. outweighed its low probative value and noted that Foster made no showing
that the children’s past allegations were fabricated or that the children understood that
9
making false allegations was a method for “get[ting] rid of” men in their mother’s life. On
appeal, Foster appears to assert that the mere existence of the children’s prior allegations
demonstrates their potential motive to fabricate the allegations against him. But evidence
of a witness’s prior allegations of sexual abuse alone “does not show a predisposition to
fabricate.” State v. Kroshus, 447 N.W.2d 203, 205 (Minn. App. 1989), rev. denied (Minn.
Dec. 20, 1989). And the record also demonstrates that Foster was nevertheless permitted
to develop his defense theory that the children had a motive to fabricate their allegations.
During Foster’s cross-examination of E.H., E.H. testified that she did not like it when her
mother spent time with men. And during closing argument, F oster’s attorney emphasized
that the children had a motive to lie because they craved their mother’s attention, and the
investigation process gave them an additional source of attention. Thus, the evidence of
the children’s prior al legations of sexual abuse was not “ constitutionally required by
[Foster’s] right to due process.” Wenthe, 865 N.W.2d at 306.
The district court’s ruling, therefore, did not infringe on Foster’s due -process right
to present a defense regarding the children’s motives. And because evidence of the prior
allegations was unnecessary for Foster’s defense theory, we discern no abuse of discretion
in the district court’s conclusion that the evidence’s probative value was outweighed by its
risk of unfair prejudice.
Source of Knowledge
Foster asserts that he also should have been permitted to introduce the evidence of
the children’s prior allegations to show that the children had an alternative source of
knowledge of sexual matters . “[E]vidence tending to establish a source of knowledge of
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or familiarity with sexual matters may be admitted in cases where the jury might otherwise
infer that the defendant was the source.” Id.
In excluding the evidence for this purpose, the district court noted that Foster had
not established that the jury would be left with the impression that the children’s source of
sexual knowledge was due to Foster’s conduct alone. But Foster now argues that the
testimony of D.H.’s CornerHouse interviewer created such an impression because he stated
that the “sensory and contextual information” provided by D.H. “stood out” and because
he questioned how D.H. could know about the things he described if they had not actually
happened. Accordingly, Foster asserts that the district court’s exclusion of evidence of the
prior allegations was an abuse of discretion. We disagree.
First, the CornerHouse interviewer’s testimony came after the district court’s ruling,
and Foster did not object to the interviewer’s testimony or renew his request to introduce
evidence of the prior allegations. Second, appellate courts have upheld rulings excluding
evidence of prior sexual conduct while still providing “leeway” for questioning based on
how the testimony plays out. Kowbow, 466 N.W.2d at 750-51 (Minn. App. 1991);
State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986). Similarly here , despite denying
Foster’s motion, the district court specifically ruled that Foster could “probe the basis” of
the children’s knowledge if any suggestion arose that their knowledge could have only
come from interactions with Foster.
The district court therefore appropriately balance Foster’s right to present a defense
relating to the children’s sources of knowledge against the risk of unfairly prejudicing the
children. And the district court’s ruling was sufficiently flexible to allow Foster to respond
11
to any suggestion that the children’s source of sexual knowledge was limited to Foster’s
conduct. Accordingly, we conclude that the district court did not abuse its discretion.
III. The district court did not abuse its discretion by admitting evidence of Foster’s
prior criminal-sexual-conduct offense.

Foster next argues that the district court abused its discretion by admitting evidence
of his previous conviction of a criminal-sexual-conduct offense as Spreigl evidence.
Spreigl evidence is evidence of a prior bad act and “ is generally not admissible to prove
the defendant ’s character for committing crimes, but it can be admitted to show motive,
intent, absence of mistake, identity, or a common scheme or plan.” State v. Gomez , 721
N.W.2d 871, 877 (Minn. 2006) (citing State v. Spreigl, 139 N.W.2d 167 (Mi nn. 1965));
see also Minn. R. Evid. 404(b) (providing rules for admissibility of prior bad acts).
For Spreigl evidence to be admissible,
(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.

State v. Ness , 707 N.W.2d 676, 686 (Minn. 2006). Here, Foster argues that the Spreigl
incident was insufficiently similar in modus operandi to be relevant , that its risk for unfair
prejudice outweighed its probative value , and that the evidence as presented at trial failed
to establish a marked similarity with the charged conduct . As discussed below , we
disagree.

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Marked Similarity
Spreigl evidence can be relevant for establishing a common scheme or plan in cases
in which “whether the act occurred” is at issue , such as it is here. State v. Kennedy , 585
N.W.2d 385, 391 (Minn. 1998). “When determining whether past misconduct is
admissible under the common scheme or plan exception, the misconduct must have a
marked similarity in modus operandi to the charged offense.” State v. Clark , 738 N.W.2d
316, 346 (Minn. 2007) (quotation omitted).
Here, the district court observed six commonalities between the Spreigl incident and
the allegations at hand:
(1) Defendant was babysitting the victims at the time of the
abuse; (2) the victims were children under the age of thirteen;
(3) the abuse took place in victims’ homes; (4) Defendant
engaged in sexual contact with victims on multiple occasions;
(5) the incidents occurred even when another child was in the
home; and (6) Defendant pe netrated the Spreigl victim and
[E.H.] anally and vaginally.

Based on those similarities, the district court concluded that the prior act was sufficiently
similar in modus operandi to be relevant.
Foster argues that the district court erred in this conclusion because the following
differences show that the Spreigl incident and the charged offense share “few common
threads”: (1) the Spreigl victim was “significantly” younger than E.H. and D.H.; (2) the
Spreigl incident involved just one female victim, whereas this case involves one male and
one female victim; (3) the Spreigl incident involved a significant relationship as Foster is
the Spreigl victim’s uncle; and (4) the Spreigl incident did not involve allegations of
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nonsexual, physical violence, while E.H. claimed that Foster punched her and pulled her
hair.
The similarities identified by the district court, however, go far beyond merely
outlining crimes “of the same generic type,” as Foster asserts. And Foster cites no authority
supporting his claim that the discrepancies he identified are sufficient to overcome the
overwhelming similarities between the circumstances of the Spreigl incident and th ose of
the charged offenses. On this record, the district court did not abuse its discretion when it
found that the Spreigl incident bore a marked similarity to the charged conduct.
Probative Value Versus Potential Prejudice

Foster also argues that the district court erroneously admitted the Spreigl evidence
because its risk of unfair prejudice outweighed its probative value. Unfairly prejudicial
evidence “is not merely damaging evidence, even severely damaging evidence; rather,
unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair
advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005) .
Here, t he district court found that the Spreigl evidence “has substantial probative
value to demonstrate common scheme or plan” and “to rebut any claim s of fabrication.”
The district court recognized the inherent prejudicial effect of admitting evidence of
Foster’s prior conviction but concluded that its high probative value outweighed the risk
for unfair prejudice and that this risk could be mitigated by providing the jury with a
limiting instruction or by excluding any facts from the testimony that “do not have
independent probative value.”
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Because, a s discussed above, the Spreigl incident bore a marked similarity to the
charged offense involving E.H., it carried significant probative value as evidence of a
common scheme or plan. See Kennedy, 585 N.W.2d at 391. And the district court’s order
demonstrates that it cautiously balanced the probative value of the evidence against its risk
of unfairly prejudicing Foster in light of measures that could reduce this risk. Therefore,
the district court did not abuse its discretion by admitting the Spreigl evidence in its pretrial
order.
The Evidence as Presented at Trial
At trial, the peace officer who provided the state’s evidence of the Spreigl incident
testified only that it involved “vaginal and anal penetration with a juvenile female ,” that
the victim was five or six years old, and Foster was approximately 18 years old at the time
of the incident, and that Foster pleaded guilty to the charges that arose from the incident.
Foster moved to strike the officer’s testimony, arguing that the state did not introduce the
underlying facts identified in the district court’s order that made the prior act admissible as
Spreigl evidence.
In denying Foster’s motion, the district court expressed “concern” that the state did
not produce more testimony from the officer about some of the commonalities that the
district noted in its Spreigl order but concluded that “enough facts came in” about the nature
of the offense and the victim to establish a permissible Spreigl use of Foster’s prior
criminal-sexual-conduct offense. Foster argues that the district court erred in declining to
strike the officer’s testimony.
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We conclude that the district court did not abuse its discretion . Although the
officer’s testimony did not include all the facts enumerated in the district court’s pretrial
order, the testimony established that Foster had previously engaged in anal and vaginal
penetration with a prepubescent girl. These details alone bear a sufficiently marked
similarity to the charged conduct involving E.H. to make the testimony admissible to rebut
Foster’s defense that E.H. was fabricating her allegations.
IV. Foster is not entitled to a new trial due to the cumulative effect of the alleged
errors.

Lastly, Foster contends that, even if the district court’s substitute -counsel and
evidentiary rulings do not independently warrant relief, he is entitled to a new trial due to
the cumulative effect of those purportedly erroneous rulings. “In rare cases, an appellant
is entitled to a new trial when the cumulative effect of trial errors results in denying the
appellant a fair trial.” State v. Gilleylen, 993 N.W.2d 266, 286 (Minn. 2023). But having
determined that the district court did not abuse its discretion with regard to its substitute-
counsel or evidentiary rulings, we conclude that Foster has failed to demonstrate any error,
let alone cumulative error. Accordingly, Foster is not entitled to a new trial.
Affirmed.