This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0913

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Grant Leighton Johnson,
                                        Appellant.

                                  Filed March 14, 2016
                                        Affirmed
                                      Reilly, Judge

                              Wabasha County District Court
                                 File No. 79-CR-14-670

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,

Judge.
                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges his conviction of fifth-degree controlled substance crime,

arguing that the district court abused its discretion by allowing the state to introduce

evidence about past drug-related offenses to demonstrate intent. We affirm.

                                           FACTS

       In July 2014, a Wabasha County Sheriff’s Deputy on routine patrol saw a vehicle

swerve onto the shoulder and then cross the centerline of the roadway into oncoming

traffic. The deputy initiated a traffic stop and identified appellant as the driver. The deputy

smelled an odor of marijuana coming from inside the vehicle and appellant acknowledged

that he had marijuana in the center console. The deputy searched the vehicle and found a

clear plastic “sandwich-style Baggie with [a] green, leafy substance” that was later

determined to be 16.295 grams of marijuana. The deputy found other baggies in the storage

pocket on the back of the passenger seat containing “residue” of “[s]mall green, leafy

substances” and smelling of marijuana. The deputy also found $740 cash in appellant’s

wallet. Based on his observations, the deputy took appellant into custody and the state

charged appellant with one count of controlled substance crime in the fifth degree in

violation of 

, subd. 1(b)(1) (2014).

       A jury trial was held and the state called the arresting-deputy as its sole witness

during its case-in-chief. Following the deputy’s testimony, the state sought to prove the

element of intent or common scheme or plan by offering testimony from two Rochester

police officers in relation to two previous drug offenses. The district court allowed the


                                              2
testimony over appellant’s objection and provided cautionary instructions to the jury. The

first witness testified that in August 2008, he found 95.8 grams of marijuana in the center

console of appellant’s vehicle, prepackaged in sandwich baggies. The police officer also

found $492 in cash on appellant’s person, a scale, and clean and empty baggies. The

second witness testified that in October 2011, he found 381.7 grams of marijuana in a crate

on the front passenger seat of appellant’s vehicle. The police officer also found a brown

glass pipe, a scale, plastic baggies, $2,664 in cash, and three cell phones. Following this

testimony, appellant stipulated to the two prior controlled substance crime convictions and

waived his right to testify in his own defense.

       The district court instructed the jury on fifth-degree controlled substance crime

(possession with intent to sell) and the lesser-included charge of possession of a small

amount of marijuana. The jury found appellant guilty of controlled substance crime in the

fifth degree with intent to sell and guilty on the charge of possession of a small amount of

marijuana and the district court imposed a stayed sentence. This appeal followed.

                                     DECISION

       The issue presented on appeal is whether the district court abused its discretion by

allowing the state to introduce evidence through two Spreigl witnesses concerning

appellant’s past drug-crimes and refer to that evidence during closing argument, in order

to demonstrate appellant’s intent to commit the charged offense.

       As a general rule, evidence of past crimes or bad acts, known as Spreigl evidence,

is not admissible to prove the character of a person or that the person acted in conformity

with that character in committing an offense. Minn. R. Evid. 404(b) (2014); State v.


                                             3
Spreigl, 

, 

 (1965). However, Spreigl evidence

may be admitted for limited, specific purposes, to demonstrate factors such as “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Minn. R. Evid. 404(b). Admission of Spreigl evidence rests within the sound

discretion of the district court and is reviewed under an abuse of discretion standard. State

v. Ness, 

 (Minn. 2006). An appellant challenging the admission of

Spreigl evidence bears the burden of showing error and any resulting prejudice. State v.

Clark, 

 (Minn. 2007).

       Prior to admitting Spreigl evidence, the district court performs a five-step analysis

and considers whether: (1) the state gave notice of its intent to admit the evidence; (2) the

state clearly indicated what the evidence would be offered to prove; (3) there is clear and

convincing evidence that the defendant participated in the prior act; (4) the evidence is

relevant and material to the state’s case; and (5) the probative value of the evidence is not

outweighed by its potential prejudice to the defendant. Ness, 

; Minn.

R. Evid. 404(b). Here, the district court determined that each of the five elements was

satisfied.

       With respect to the first two elements, the state filed a Spreigl notice that it intended

to call two witnesses to give Spreigl evidence. Following its case-in-chief, the state

informed the district court that it intended to offer Spreigl evidence to prove the element

of intent or common scheme or plan. See State v. Billstrom, 

, 

 (1967) (“At the time the evidence is offered, the prosecutor shall specify




                                               4
the exception to the general exclusionary rule under which it is admissible.”). The district

court did not err in determining the first and second elements were satisfied.

       With respect to the third element, appellant does not dispute that he participated in

the prior acts. The state demonstrated by clear and convincing evidence that appellant

participated in the prior crimes by introducing evidence of his prior convictions. See State

v. Blom, 

 (Minn. 2004) (noting that defendant’s conviction was clear

and convincing evidence of prior incident). The third element is satisfied.

       Appellant challenges the fourth element and argues that the Spreigl evidence was

inadmissible because it was not relevant and did not bear strong enough similarities to the

charged offense. The district court determined that the 2008 and 2011 incidents were

relevant and material because “the whole case turns on the question of intent.” Minnesota

caselaw supports the district court’s determination that Spreigl evidence may be used to

demonstrate intent. See, e.g., State v. Fardan, 

 (Minn. 2009)

(affirming use of Spreigl evidence as relevant of intent); State v. Berry, 

(Minn. 1992) (holding district court properly admitted evidence of Spreigl incidents to

show intent); State v. Hannuksela, 

 (Minn. 1990) (holding no

abuse of discretion where district court admitted Spreigl evidence as “particularly probative

of the ‘knowledge of intent’”).

       Under the common scheme or plan exception, a prior bad act “must have a marked

similarity in modus operandi to the charged offense.” Ness, 

.          The

district court plainly articulated why the Spreigl conduct was markedly similar to the

charged offense, namely, that in each of the three cases police officers discovered


                                             5
marijuana, plastic baggies, and large amounts of cash in appellant’s vehicle. We agree

with the district court that the 2008 and 2011 offenses share a marked similarity with the

current offense and the district court did not abuse its discretion in finding that the Spreigl

evidence was relevant and material to the charged offense.

       Appellant concedes that the 2008 and 2011 offenses share “broad similarities” with

the present case but argues that they were not similar enough because the amount of

marijuana found in the prior offenses was greater than the amount found in 2014, and the

deputy did not find multiple cell phones, scales, or a pipe in the present case. We

acknowledge that crimes that are “simply” of the “same generic type” are not markedly

similar. Clark, 

 (finding prior crime was not markedly similar to

charged offense where the crimes were “relatively remote in time” and the two incidents

did not show a “distinctive modus operandi”). However, “[a]bsolute similarity” between

the charged offense and the Spreigl crime is not required. Berry, 

; see

also State v. Kennedy, 

 (Minn. 1998) (holding that Spreigl evidence

“need not be identical”); Ness, 

 (citing Kennedy, 

).

The district court acknowledged the distinctions but concluded that there were “enough

similarities” to support a relevancy-finding, and we agree. We are satisfied that the district

court did not abuse its broad discretion in concluding that the Spreigl evidence was relevant

and markedly similar to the charged offense.

       Finally, appellant argues that the potential for unfair prejudice outweighed the

probative value of the Spreigl evidence.          Spreigl evidence is more probative than

prejudicial if the testimony is admitted not to “arouse the jury’s passion,” but rather for the


                                              6
purpose of “placing the incident . . . in [the] proper context.” Kennedy, 

.

Appellant claims that the evidence was unfairly prejudicial because there were two Spreigl

witnesses and only one witness during the state’s case-in-chief, and the Spreigl evidence

was unnecessary in light of the strength of the state’s case. “[C]ourts should not allow the

state, when presenting Spreigl evidence, to present evidence that is unduly cumulative with

the potential to fixate the jury on the defendant’s guilt of the other crime.” Ture v. State,

 (Minn. 2004). Here, the district court determined that the probative

value outweighed the potential for prejudice and permitted the two police officers to testify.

Each police officer testified regarding a separate incident. The district court did not abuse

its discretion because the evidence was not “unduly cumulative” nor did it risk “fixat[ing]

the jury on the defendant’s guilt.” 

       Moreover, the district court gave the jurors cautionary instructions regarding the

proper use of the evidence prior to admitting Spreigl evidence. The use of cautionary

instructions mitigates the danger that evidence may be misused. State v. Diggins, 

 (Minn. 2013). The district court advised the jurors that the evidence was

offered for a “limited purpose,” and could not be used to convict appellant of any offense

other than the charged offense. The district court also offered a cautionary instruction

before the case was submitted to the jury for deliberation. The cautionary instructions

“lessened the probability of undue weight being given by the jury to the evidence.”

Kennedy, 

. The district court did not err in determining that the

probative value of the evidence outweighed its prejudicial effect.




                                              7
       Appellant also contends that the prosecutor referred to the prior offenses during

closing argument, placing “undue importance on that evidence.” During closing, the

prosecutor argued that: “The two Rochester police officers told you about two prior

incidents. The State would suggest to you that you use those to decide what the Defendant

intended. . . . What does that tell you about his intent?” The prosecutor noted that police

officers found plastic baggies, marijuana, and large amounts of cash in all three instances.

During appellant’s closing argument, the defense attorney also addressed the previous

incidents and attempted to distinguish the earlier offenses from the charged offense.

“There is nothing inappropriate . . . about referring to properly admitted Spreigl evidence

in a closing argument,” provided the evidence is not used to attack the defendant’s

character or establish a criminal propensity. State v. Duncan, 

 (Minn.

App. 2000), review denied (Minn. May 16, 2000). A review of the prosecutor’s closing

argument as a whole does not support appellant’s argument that the state used Spreigl

evidence to attack appellant’s character or establish criminal propensity. See id.; State v.

Powers, 

 (Minn. 2003) (directing that closing arguments should be

considered as a whole).

       Appellant argues that the admission of Spreigl evidence deprived him of a fair trial

and that he is entitled to a new trial on that basis. Because we do not discern any error, we

need not address appellant’s new-trial demand.

       Affirmed.




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