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This opinion is nonprecedential except as provided by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
A24-1095

State of Minnesota,
Respondent,

vs.

Evan Dylan Davis,
Appellant.

Filed July 7, 2025
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-23-12846

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

Mary F. Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and Harris,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal, appellant challenges the final judgment of conviction for
third-degree criminal sexual conduct involving a physically helpless victim. Appellant
argues that the district court abused its discretion by admitting evidence that he had
2
sexually assaulted a previous partner while she was asleep. We conclude that the district
court did not abuse its discretion and therefore affirm.
FACTS
In June 2023, respondent State of Minnesota charged appellant Evan Dylan Davis
with third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(d) (2020),
alleging that the victim, K.S., was mentally impaired, mentally incapacitated, or physically
helpless when Davis sexually assaulted her in March 2021.
The district court held Davis’s jury trial in February 2024. The following
summarizes the evidence received along with the relevant procedural history. K.S. testified
that she met Davis in fall 2020. The two had a sexual relationship for “a few months” that
ended in January 2021. Two months later, in March 2021, Davis texted K.S. In response,
K.S. texted Davis, who is a plumber, about an “issue” with her bathroom sink.
“About a week or so later,” at 8:14 p.m. on March 21, 2021, Davis texted K.S. to
follow up about her sink. 1 When K.S. told him that the sink was still not working, Davis
offered to fix it, and they agreed he would “come over” the following morning. During the
same text exchange, Davis stated that he “really miss[ed] pinball.” K.S. believed he was
referring to a pinball-machine tattoo on her lower back. K.S. understood this text “as him
trying to have sexual relations with [her] again or referring to them.” K.S. responded,
“Please don’t help me if [sex is] the main reason.” K.S. testified that she “did not want to

1 The district court received evidence in the form of screenshots of these and other text
messages between Davis and K.S.
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have any sexual contact with [Davis] if he was to come over to help.” Davis texted an
apology for the “horrible joke” and said that he would be “professional.”
Later that same evening, Davis texted K.S., who responded that she was “drunk .”
Davis offered to come over to her place. K.S. texted that she did not “want to get frisky”
and that Davis could come over but she “might have [him] sleep away from” her.
Davis arrived at K.S.’s home around 11:11 p.m. that night. The two hugged and
“caught up,” and Davis looked at the sink. K.S. and Davis were drinking alcohol, so they
“decided” Davis “was going to stay” over. The two kissed, but K.S. “pushed him back and
said, no, this is not what I want.” Sometime between 12:30 a.m. and 1:00 a.m., K.S. and
Davis went to sleep in her bed. K.S. placed “a body pillow” between them. K.S. told Davis,
“I am not having sex with you tonight or something in that nature.” K.S. also said that
“cuddling is fine but keep your hands on the outside of my bra and panties.” K.S. “was
very tired” and “fell asleep right away.”
K.S. testified that she “woke up to” Davis “putting his hand in [her] panties and
fingering [her].” K.S. was “in shock” and “froze.” Davis then “put [K.S.’s] underwear
down to [her] knees” and inserted his penis into her vagina. K.S. was “very scared,”
“couldn’t move,” and did not respond when Davis “kept asking, is this okay?” When Davis
finished, he pulled up K.S.’s underwear, rolled over, and went to sleep. K.S. then left her
bedroom and went to the couch. K.S. testified that she told Davis the next morning that “he
needed to leave now” and that “[w]hat happened last night wasn’t appropriate.” K.S. told
Davis “not to contact [her] again.”
4
At 11:30 a.m. on March 22, 2021, Davis texted K.S. instructions to fix her sink and
added, “I obviously misunderstood what you said. Was not expecting this.” K.S.
responded, “I told you multiple times last night that [I] wasn’t interested. Please don’t
contact me anymore.”
K.S. told her sisters and friends about the sexual assault. During the evening of
March 23, 2021, K.S. went to the hospital and had a sexual-assault examination that
included body swabs for possible analysis. K.S. did not report the sexual assault to law
enforcement at that time. In October 2022, Davis texted K.S.; she “was very upset that he
decided to contact [her] again after [she] thought it was over. ” K.S. reported the sexual
assault to law enforcement, who recorded K.S.’s statement.
The state offered testimony from K.S.’s friends and a forensic nurse to corroborate
K.S.’s report of and statements about the sexual assault. The district court also received
K.S.’s recorded statement to law enforcement into evidence. A forensic scientist testified
that vaginal, perineal, and cervical swabs from K.S. contained a “major Y-chromosomal
DNA profile that matches Evan Davis,” meaning that “neither Evan Davis nor any of his
paternally related male relatives [could] be excluded as the contributor.” As discussed
below, the state called M.S., Davis’s previous sexual partner, to testify about Davis
sexually assaulting her while she was sleeping.
Davis did not present any evidence, and his attorney argued that the sexual contact
was consensual. The jury found Davis guilty of third-degree criminal sexual conduct
against a physically helpless victim. The district court imposed a sentence of 48 months in
prison. Davis appeals.
5
DECISION
Davis argues that the “district court abused its discretion by admitting evidence of
[his] prior bad acts [against M.S.] where that evidence did not establish a common scheme,
was not relevant to the issue of consent, was not proven by clear and convincing evidence,
and was more prejudicial than probative.” Davis contends that he is entitled to a new trial
because “the error was not harmless.”
Appellate courts review the admission of Spreigl evidence for abuse of discretion. 2
State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). An appellant challenging the
admission of Spreigl evidence “bears the burden of showing an error occurred and any
resulting prejudice.” State v. Buchan, 993 N.W.2d 614, 626 (Minn. 2023) (quotation
omitted).
A. The Spreigl Evidence

Before trial, the state moved to admit Spreigl evidence that Davis previously
sexually assaulted two women while they were sleeping. Davis opposed the state’s motion.
In November 2023, the district court issued a preliminary order admitting Spreigl evidence
from one witness, M.S., to show a common scheme or plan.
In February 2024, Davis filed a notice stating that he would rely on a consent
defense at trial.

2 “Spreigl evidence is evidence of a defendant’s prior crimes, wrongs, or acts, which would
otherwise be inadmissible, but which the state can seek to have admitted for the limited
purpose of showing motive, intent, absence of mistake, identity, or a common scheme or
plan.” State v. Asfeld, 662 N.W.2d 534, 542 (Minn. 2003); accord Minn. R.
Evid. 404(b)(1); State v. Spreigl, 139 N.W.2d 167, 169-70 (Minn. 1965).
6
At an omnibus hearing a few days later, the state sought to introduce text messages
that Davis sent M.S., arguing that the messages corroborated M.S.’s account of the Spreigl
incidents. Davis objected, arguing that the text messages “would confuse the jury.” The
district court allowed the state to introduce some of the text messages to corroborate M.S.’s
testimony about the Spreigl incidents and stated that it would allow other text messages if
Davis challenged M.S.’s credibility at trial.
On the first day of trial, Davis asked the district court to reconsider its Spreigl ruling,
arguing that there was “no common scheme or plan regarding [M.S.] and [K.S.].” The
district court denied Davis’s motion to reconsider, stating that there were “substantial
similarities” in the assault allegations made by M.S. and K.S.
After K.S. concluded her testimony, Davis again moved for the district court to
reconsider its Spreigl ruling. Davis argued that the Spreigl evidence was “significantly
more prejudicial” than it was probative because K.S. had testified that she was “almost
asleep” when the assault began.3 Davis also contended that the incidents with M.S. did not
“show a common scheme or plan” because M.S. was fully asleep when Davis assaulted her
and K.S. was not . The prosecuting attorney countered that K.S. “testified on direct that
she . . . fell asleep and that the next thing she perceived was waking up to” Davis’s assault.
The prosecuting attorney added that “when a person’s asleep it’s difficult for them to

3 On direct, K.S. testified as summarized above. During cross-examination, K.S. testified
that she “was asleep” when Davis started to assault her. On redirect, K.S. testified that she
recalled “trying to sleep, almost asleep, and waking up through it, not quite asleep.” K.S.
also agreed that, in her condition, she did not believe she was “in a place where [she would
be] able to say no.”
7
perceive their sleeping state” and that K.S. testified she was “in and out of sleep, unable to
communicate, [and] in a vulnerable state.” The prosecuting attorney maintained that
“nothing about that scenario [was] any different . . . than” the Spreigl incidents with M.S.,
arguing that the evidence was admissible to prove a “common scheme or plan.”
The district court denied Davis’s second motion to reconsider. The district court
recognized that K.S.’s testimony about whether she was fully asleep at the time of the
assault was inconsistent. The district court added that K.S. told the forensic nurse that she
“had not slept for two days and that her memory of what happened” during the incident
“was clouded by that fact.” The district court agreed “that there [was] a factual dispute,”
but also concluded that there was “enough” testimony “for the admission of the Spreigl
evidence here.” Before M.S. took the stand, t he district court gave a cautionary Spreigl
instruction.4
M.S. testified that she dated Davis from February to August 2018 and that Davis
lived with M.S. during that time. In May 2018, M.S. came home “from a really long shift
at work” and “laid down with [Davis] in bed and [the two] were cuddled up.” Davis “started
to touch and rub on [M.S.’s] vagina.” M.S. told Davis, “No, I’m exhausted. I do not want
to have sex.” M.S. fell asleep and later “woke up to him . . . penetrating [her] vagina with
his penis.” M.S. “was very shocked.” When Davis was finished, he said “good night,
roll[ed] over, and went to sleep.” M.S. “was more withdrawn” after the assault, but things
went “back to normal after that.”

4 This instruction followed the pattern jury instruction. See 10 Minnesota Practice,
CRIMJIG 2.03 (2023).
8
In July 2018, M.S. and Davis were in bed together and M.S. “had fallen asleep.”
M.S. “woke up to him ejaculating inside of [her].” M.S. said, “What the f-ck,” and the y
argued. M.S. told Davis to “get out,” so “he slept on the couch that night.” Later, M.S. told
Davis that she “felt very violated, that it wasn’t okay,” and that she “wasn’t comfortable
with it.” Davis “was very calm and apologetic” and told M.S. that “it’s not going to happen
again.”
In August 2018, M.S. returned home from a weeklong trip out-of-state. She and
Davis went to bed and were “cuddling.” As M.S. was falling asleep, Davis began “to touch
[her] vagina.” M.S. was “groggy” and “half asleep” when she told him, “No. I don’t want
to tonight. I’m tired.” Davis responded, “ We haven’t been together,” and said that he
“really wanted to have sex.” Davis “got more on top of” M.S., “put his hand on [her] hip,”
“held [her] into the bed,” and “had sex with [her].” M.S. was “very upset” and “ended
[their] relationship a few days after that.”
M.S. agreed that Davis tried “to convince” her that she consented to the sexual
assaults. Davis told her that she “was a liar” or “just taking things the wrong way.” Davis
also “basically” told M.S. that she “consented no matter what because [they were]
together.” M.S. did not report any of the assaults to law enforcement.
M.S. agreed that Davis sent her text messages after they broke up “about what
happened on those three different occasions.” Davis texted M.S. the following statements:
(1) “I f-cked you after you fell asleep”; (2) “You are right. I’m a liar. A rapist and not a
good man”; (3) “After tomorrow I’m going to tell everyone what I’ve done to you to make
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you hate me so much”; and (4) “I’m turning myself in tomorrow. I’m not going to wait for
you two to do it. I’ve told everyone who matters.” Davis also texted the following to M.S.:
I never would have done it again if I knew how seriously you
felt about it. Doesn’t make it right or ok or your fault. But I
truly didn’t know you felt this way until way after the fact. I
disrespected you and your personal boundaries. I never had any
intention of hurting you at all. It was just sex but it was not
ok . . . I’m sorry I’ve made this such an incredibly horrific time
in our lives.
M.S. read all five text messages out loud during her testimony. Screenshots of the text
messages were received into evidence and published to the jury.
After the parties rested, the district court gave the jury instructions, which included
a limiting instruction about the Spreigl evidence.
5
B. The Spreigl Analysis

“Evidence of another crime, wrong, or act is not admissible to prove the character
of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b)(1).
Such evidence “may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. The supreme court has established a five-step test to determine the
admissibility of Spreigl evidence:
(1) the State must provide notice of its intent to use the
evidence; (2) the State must clearly indicate what the evidence
is being offered to prove; (3) there must be clear and
convincing evidence that the defendant participated in the
other act; (4) the Spreigl evidence must be relevant and

5 These instructions followed the pattern jury instruction. See 10 Minnesota Practice,
CRIMJIG 3.05 (2023).
10
material; and (5) the probative value of the evidence must not
be outweighed by the potential prejudice.

Buchan, 993 N.W.2d at 626 (quotation omitted).
Davis concedes that the state satisfied steps one and two. We therefore consider
Davis’s arguments about admissibility of the Spreigl evidence under steps three, four, and
five.
Step 3: The state offered clear and convincing evidence that Davis
assaulted M.S.

Under step three, “there must be clear and convincing evidence that the defendant
participated in the other act.” Id. (quotation omitted). “Clear and convincing evidence is
more than a preponderance of the evidence but less than proof beyond a reasonable doubt.”
State v. Profit, 591 N.W.2d 451, 464 (Minn. 1999) (quotation omitted). Evidence that a
defendant committed a prior act “may be considered clear and convincing when it is highly
probable that the facts sought to be admitted are truthful.” State v. Ness, 707 N.W.2d 676,
686 (Minn. 2006). Appellate courts generally give “great deference” to a district court’s
finding that evidence is clear and convincing. State v. McLeod , 705 N.W.2d 776, 788
(Minn. 2005).
The state supported its Spreigl motion with an offer of proof that described M.S.’s
statements to a law-enforcement investigator. In its preliminary order, the district court
found that the investigator asked M.S. “for more details regarding [the] sexual assaults that
[M.S.] described in an order for protection [OFP] obtained against [Davis] in 2021.” M.S.
described the assaults to the investigator and explained “why she did not report any of the
incidents to law enforcement originally. ” The district court concluded that M.S.’s
11
“statements to the police were sufficiently detailed to find the statements meet the clear
and convincing standard.”
Davis argues that the state “did not establish by clear and convincing evidence prior
to the admission of M.S.’s testimony that Davis sexually assaulted her on three occasions.”
Davis contends that M.S.’s statements to the investigator and her statements included in
the OFP against him lacked “guarantees of trustworthiness” because they were “not under
oath.” Davis argues that “M.S. did not press criminal charges against [him], which
undermines her claim” that the Spreigl incidents occurred. Davis also maintains that a
criminal conviction “is the type of reliable evidence that the clear-and-convincing evidence
standard requires.”
The state counters that “Minnesota law does not require that Spreigl evidence” be a
prior conviction. The state argues that , “[e]ven if some sort of formal document was
required” to meet the clear-and-convincing-evidence standard, M.S.’s OFP petition against
Davis—which described the Spreigl incidents—“was signed and sworn under oath” by
M.S. two years before Davis was charged with assaulting K.S. The state also points out
that M.S.’s testimony was corroborated by text messages between M.S. and Davis and that
the supreme court “has on numerous occasions admitted Spreigl evidence supported only
by the testimony of the victim of the Spreigl offense.” State v. Kennedy, 585 N.W.2d 385,
389 (Minn. 1998).
The state’s argument is persuasive. Spreigl evidence may include “another crime,”
but also may be another “wrong” or “act.” Minn. R. Evid. 404(b); see also Ness,
707 N.W.2d at 686 n.2 (noting that, although most “Spreigl cases use the term other-crime
12
evidence, . . . [rule] 404(b) pertains to ‘other crimes, wrongs, or acts’” (quoting Minn. R.
Evid. 404(b))). In his brief, Davis concedes that “appellate courts have found unsworn
statements to satisfy the clear-and-convincing standard.” See Kennedy, 585 N.W.2d at 390
(upholding a district court’s conclusion that a Spreigl witness’s “videotaped statements to
social workers regarding the incident” satisfied the clear-and-convincing standard).
M.S. gave a detailed report to a law-enforcement investigator about Davis’s
assaults. M.S. told the investigator that she did not make a police report because she did
not “feel that she would be believed because she was in a sexual relationship” with Davis.
M.S. also stated that she “did not want to relive the [assaults] by having to talk about the
details.” The report states that M.S. “obtained an [OFP] ” against Davis in 2021, which
referred to M.S.’s statements that Davis “raped her multiple times.”6 The state also offered
text messages from Davis to M.S. that corroborated M.S.’s allegation that Davis sexually
assaulted her while she was asleep.
In its preliminary order, the district court determined that M.S.’s statements were
“sufficiently detailed” and concluded that Davis’s assaults of M.S. had been proved by
clear and convincing evidence. Because a conviction or sworn statement is not required to
admit Spreigl evidence, the district court acted within its discretion in determining that the
Spreigl incidents were proved by clear and convincing evidence.

6 M.S.’s OFP against Davis is not included in the record.
13
Step 4: The Spreigl evidence was relevant and material.

Under step four, “the Spreigl evidence must be relevant and material” to the state’s
case. Buchan, 993 N.W.2d at 626. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. To
demonstrate the “common plan or scheme exception” under rule 404(b), Spreigl evidence
must “have a marked similarity in modus operandi to the charged offense.” Ness,
707 N.W.2d at 688 (emphasis omitted) (quotation omitted) (considering appellant’s
common plan or scheme to commit criminal sexual conduct). “[T]he closer the relationship
between the other acts and the charged offense, in terms of time, place, or modus operandi,
the greater the relevance and probative value of the other-acts evidence and the lesser the
likelihood that the evidence will be used for an improper purpose.” Id. We consider each
of these three subfactors to assess the Spreigl evidence under step four.
a. Time

The district court stated in its pretrial order that “the alleged incidents between
[M.S.] and [K.S.] are not remote in time, and therefore are relevant.” Davis argues that the
“three-year time gap between the M.S. and K.S. incidents is too long to be relevant,” given
“that these were short-lived relationships that lasted a matter of months.” The state counters
that the supreme court “has consistently affirmed the admission of Spreigl evidence which
was far older than three years.”
“In general, the prior acts become less relevant as time passes. Thus, the greater the
time gap, the more similar the acts must be to lessen the likelihood that the Spreigl evidence
14
will be used for an improper purpose.” State v. Washington, 693 N.W.2d 195, 201 (Minn.
2005) (quotation omitted). But there is no “ bright-line rule” for when Spreigl evidence
becomes stale. Ness, 707 N.W.2d at 688. Three years is not too remote to render M.S.’s
testimony irrelevant given the similarities between the incidents. See Washington,
693 N.W.2d at 201-02 (analyzing cases upholding the admission of Spreigl incidents that
occurred up to 19 years before trial). Therefore, the district court acted within its discretion
when it decided that this subfactor favored admission.
b. Location

The district court found that the locations of the incidents were “closely related”
because they “took place within the [victims’] homes.” Davis argues that “these incidents
occurred in different homes in different cities in different parts of the state, meaning they
did not share a marked similarity for common-scheme purposes.” Davis points out that he
lived with M.S. in the house where the Spreigl incidents occurred and that he did not live
with K.S. where the alleged criminal sexual conduct occurred. Davis maintains that “[t]his
difference fundamentally alters any similarity” between the two locations. The state argues
that “there were marked similarities in the locations of both offenses” because M.S. and
K.S. “were in their own beds in their own homes when [Davis] assaulted them.” We agree
with the state. The assaults against M.S. and K.S. took place in the victims’ homes—
specifically, in their beds after they fell asleep next to Davis. Because the locations of the
assaults were markedly similar, the district court did not abuse its discretion by deciding
that this subfactor favored admission.
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c. Modus Operandi

As discussed, to be admissible, Spreigl evidence must “have a marked similarity in
modus operandi to the charged offense.” Ness, 707 N.W.2d at 688 (quotation omitted). The
district court found that the Spreigl evidence involving M.S. and the charged offense were
markedly similar because “(1) the victim had been a romantic partner with [Davis]; (2) the
acts took place in the home of the victim; and (3) the victims were sleeping at the time of
the penetration.”
Davis argues that (1) “M.S. and K.S. were not in similar relationships with Davis
when the incidents occurred”; (2) “the evidence did not clearly establish that K.S. was
[fully] asleep” at the time of the charged offense, unlike M.S., who testified “that she had
fallen asleep and was awoken during each episode”; and (3) the difference in living
situations between M.S. and K.S. “shows that Davis did not act only at other people’s
homes.” The state counters that Davis’s “modus operandi was exactly the same in each
case; waiting for his victim to fall asleep and then sexually assaulting her.”
We conclude that Davis’s modus operandi for the Spreigl incidents and the charged
offense had “a marked similarity.” Id. (emphasis omitted) (quotation omitted). The
evidence showed Davis’s common plan or scheme of sexually assaulting sleeping women
in their home after they rejected his sexual advances and then lying about the assaults
afterward. K.S.’s inconsistent testimony about whether she was fully asleep does not
diminish the similarity because any inconsistency relates to K.S.’s credibility, not Davis’s
modus operandi.
16
Davis contends that “[w]hether M.S. consented did not impact whether a completely
different person, K.S., consented.” But Minnesota caselaw recognizes the relevance of a
defendant’s prior sexual conduct to criminal-sexual-conduct cases in which consent is
disputed, as it was here. See State v. Boehl, 697 N.W.2d 215, 219 (Minn. App. 2005) (“In
criminal sexual conduct cases . . . prior acts of sexual conduct are often relevant where the
defendant disputes that the sexual conduct occurred or where the defendant asserts the
victim is fabricating the allegations.”), rev. denied (Minn. Aug. 16, 2005).
Consent was a central issue in this trial. Davis argued that K.S. fabricated the
sexual-assault allegations against him. During opening arguments, Davis’s attorney
maintained that “[t]his was consensual, and at no point was [K.S.] asleep or sleeping.”
Davis’s attorney began closing arguments: “Regret, shame, and lies. Evan Davis is falsely
accused.” The Spreigl evidence was therefore relevant to determine whether K.S.
consented to sexual contact and fabricated the sexual assault. See State v. Wermerskirchen,
497 N.W.2d 235, 242 (Minn. 1993) (concluding that Spreigl evidence was “highly
relevant” when it “tended to disprove the defense that” the victim’s sexual-assault
allegations were fabricated).
Because the time, place, and modus operandi support the district court’s conclusion
that the Spreigl evidence was relevant, we conclude that the district court acted within its
discretion in weighing this factor in favor of admission.
17
Step 5: The probative value of the Spreigl evidence was not outweighed
by its potential for unfair prejudice.

Step five requires that the probative value of the Spreigl evidence not be outweighed
by its potential for unfair prejudice. Buchan, 993 N.W.2d at 626. In applying step five, the
district court must “balance the relevance of the [Spreigl] offenses, the risk of the evidence
being used as propensity evidence, and the State’s need to strengthen weak or inadequate
proof in the case.” State v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009). Although Spreigl
evidence of other criminal sexual conduct likely prejudices a defendant, the issue is
whether the Spreigl evidence unfairly prejudices a defendant and, if so, whether the
potential for unfair prejudice outweighs the probative value of the evidence. Id. “[U]nfair
prejudice 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. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).
In its pretrial order, the district court recognized that “the Spreigl acts and
allegations are prejudicial to” Davis but determined that “the probative value of modus
operandi outweighs such prejudice.” On appeal, Davis argues that the “prejudicial effect
of the Spreigl evidence overwhelmed its probative value” for three reasons: (1) “the state
did not need [Spreigl] evidence to prove K.S. did not consent” because other evidence
rebutted this defense; (2) the Spreigl evidence “had the considerable potential to mislead
and confuse the jury”; and (3) “the nature of the Spreigl evidence . . . would have stretched
the abilities of even the fairest juror to not use [it] as character evidence.”
18
The state counters that “M.S.’s Spreigl evidence was properly admitted to rebut
[Davis’s] repeated assertion to the jury that K.S. was a liar.” The state argues that K.S.’s
testimony “that she was unsure if she was fully asleep” at the time of the assault did not
render the Spreigl evidence more prejudicial than probative. Instead, it “created a
credibility issue” that increased the probative value of the Spreigl evidence “because one
of M.S.’s incidents also involved [Davis] sexually assaulting her when [she] was ‘very
tired, very groggy and half asleep,’ exactly like K.S.”
The state’s arguments are persuasive. During trial, Davis contended that he had
consensual sex with K.S. and that K.S. fabricated the sexual assault. During closing
arguments, Davis’s attorney emphasized that K.S. was a liar . As discussed above, the
Spreigl incidents were markedly similar to the sexual assault of K.S. Given Davis’s consent
defense and the marked similarity between the Spreigl evidence and K.S.’s assault, the
Spreigl evidence was “highly relevant” to establish a modus operandi and to help the jury
determine whether K.S. lied about the sexual assault. Wermerskirchen, 497 N.W.2d at 242;
see also Ness , 707 N.W.2d at 688 (stating that the “closer the relationship between the
other acts and the charged offense, in terms of . . . modus operandi, the greater
the . . . probative value of the other-acts evidence and the lesser the likelihood that the
evidence will be used for an improper purpose”).
We acknowledge that other evidence established that K.S. did not consent to sexual
contact with Davis. K.S.’s inconsistent testimony about some details—whether she was
fully asleep at the time of the assault—created a specific need for evidence probative of
19
her credibility.7 Evidence that Davis sexually assaulted someone else under nearly identical
circumstances tends to prove that K.S.’s testimony was credible . See Boehl, 697 N.W.2d
at 219-20 (concluding that evidence of an appellant’s previous sexual conduct was
“sufficiently probative on the issue of whether the conduct [the victim] alleged actually
occurred”).
The risk that the jury would improperly use the Spreigl evidence as propensity
evidence was mitigated by the district court’s limiting instructions. The district court
provided a cautionary instruction before M.S.’s testimony as well as limiting instructions
after the presentation of the evidence and during final jury instructions. Thus, the
prejudicial effect of the Spreigl evidence was limited. See Kennedy, 585 N.W.2d at 392
(concluding that “the fact that the trial court read two cautionary instructions,” one before
the Spreigl witness’s testimony and one at the close of the entire case, “lessened the
probability of undue weight being given by the jury to the evidence”); State v. Welle,
870 N.W.2d 360, 366 (Minn. 2015) (stating that appellate courts presume that a jury
followed cautionary instructions).
Davis finally argues that his text messages to M.S. were more prejudicial than
probative because M.S.’s testimony “did not require corroboration.” Davis relies on
Kennedy, in which the supreme court concluded that corroboration of a Spreigl witness’s

7 To be clear, the state did not need to prove that K.S. was fully asleep at the time of the
assault. Caselaw establishes that evidence of even intermittent sleep sustains a conviction
for the charged offense. See State v. Williams, 3 N.W.3d 68, 75-76 (Minn. App. 2024)
(concluding that a victim’s testimony that “she was intermittently asleep or not conscious”
was sufficient to sustain the jury’s finding that she was “physically helpless” under Minn.
Stat. § 609.341, subd. 9 (2016)).
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testimony in a criminal -sexual-conduct case is not “necessary as a matter of law to meet
the clear and convincing standard” under step three of the Spreigl analysis. 585 N.W.2d at
390. Davis, however, cites no authority suggesting that a district court errs by admitting
evidence corroborating a Spreigl incident.
Davis challenged M.S.’s credibility at trial. Davis cross-examined M.S. about her
failure to report Davis’s sexual assaults to law enforcement. During closing arguments,
Davis attacked M.S.’s credibility based on her failure to report the assaults. Thus, Davis’s
text messages that admitted to assaulting M.S. were probative to show that Davis
committed the Spreigl incidents, to demonstrate Davis’s modus operandi, and ultimately
to bolster K.S.’s credibility in response to Davis’s claim that K.S.’s claim was fabricated.
Davis’s text messages to M.S. showed he similarly claimed that M.S. consented to sexual
contact.
For these reasons, we conclude that the district court acted within its discretion by
determining that the probative value of M.S.’s testimony and Davis’s text messages to M.S.
was not outweighed by their potential for unfair prejudice.
In summary, the district court did not abuse its discretion when it admitted the
Spreigl evidence of Davis’s prior sexual assaults of M.S. Davis concedes that the Spreigl
evidence satisfies steps one and two of the test for admission. We conclude that the district
court was within its discretion in determining that the Spreigl evidence satisfies steps three,
four, and five. Because the district court did not abuse its discretion by admitting the
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Spreigl evidence, we need not consider Davis’s argument that the erroneous admission of
Spreigl evidence was not harmless.
Affirmed.