This opinion will be unpublished and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
                                    A15-1283

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Bradley Dean Johnson,
                                       Appellant.

                                 Filed July 18, 2016
                               Reversed and remanded
                                   Stauber, Judge

                              Anoka County District Court
                               File No. 02-CR-14-1596

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Jon C. Audette, Assistant County Attorney,
Anoka, MN 55303 (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Johnson, Presiding Judge; Stauber, Judge; and

Kirk, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

      On appeal from his convictions of fifth-degree possession of methamphetamine

and storing methamphetamine in the presence of a child, appellant argues that his
convictions must be reversed because the district court committed reversible error by

admitting unnoticed, irrelevant, and highly prejudicial Spreigl evidence in the form of his

statements to police that he previously used methamphetamine. Because appellant’s

statements regarding his methamphetamine usage constitutes evidence of a Spreigl bad

act, and the district court committed prejudicial error by admitting this evidence, we

reverse and remand.

                                            FACTS

       In March 2014, appellant Bradley Dean Johnson was charged with one count of

fifth-degree possession of methamphetamine in violation of 

, subd.

2(b)(1) (2012), and one count of storing methamphetamine in the presence of a child in

violation of 

, subd. 2(a)(4) (2012). Prior to trial, the district court

granted appellant’s motion in limine to preclude the state from (1) presenting any Spreigl

evidence and (2) introducing any evidence referencing appellant’s prior conviction of fifth-

degree controlled-substance crime. The district court also asked the prosecutor if the state

would be presenting the audio of an interview police conducted with appellant after his

arrest. The prosecutor stated that he did not anticipate introducing the actual audio of

appellant’s statement, but would take testimony about the statement from the investigator.

       At trial, the state presented evidence that in November 2012, law enforcement

executed a search warrant at a residence in Coon Rapids. In a bedroom identified as being

occupied by appellant, police discovered a glass bulb pipe on top of a television. The pipe

contained a white residue that later tested positive for methamphetamine. Police also found

a small torch and a red canister containing more than 0.4 grams of methamphetamine in a


                                                2
“cupboard mounted on the closet wall in that [same] bedroom.” And in a bedroom located

adjacent to appellant’s room in which a woman was living with her two children, police

discovered a glass pipe and several plastic baggies containing a “white crystal substance.”

       During the examination of an investigating officer, the prosecutor inquired about his

interview with appellant. The district court interrupted the examination and, outside the

presence of the jury, expressed confusion about the prosecutor’s apparent intention to

introduce the recording given his pretrial representation that he did not intend to play the

audio recording of appellant’s interview with police. The prosecutor replied that he

changed his mind and that he now wanted to introduce the audio of appellant’s statement,

which included the following exchange:

              POLICE:               How long have you used
                                    methamphetamine?
              APPELLANT:            I used it a long time ago and then just
                                    recently off and on, not very much.
              POLICE:               How frequently, how many days a week?
              APPELLANT:            Not even—just recently like—(inaudible).

Counsel for appellant responded by asking the court to rule on whether appellant’s

admission to previously using methamphetamine was past conduct covered by the court’s

pretrial ruling on Spreigl evidence, or “whether it is considered intrinsic” evidence. Counsel

for appellant claimed that appellant’s statement was not only irrelevant, but constituted

Spreigl evidence that was deemed inadmissible by the district court’s pretrial order

precluding the introduction of Spreigl evidence.

       The district court overruled appellant’s objection, concluding that the statement was

not Spreigl evidence and that the “entire statement is admissible in evidence . . . as any



                                               3
statement of a party opponent would be under the rules of evidence.” The recording of

appellant’s statement was then played to the jury. In the statement, appellant acknowledged

staying in the room in which the methamphetamine residue and pipe were found. Although

appellant denied that the canister containing methamphetamine and the pipe were his, he

admitted that his fingerprints might be on them because he “moved” them.

       The jury found appellant guilty of the charged offenses. The district court later

sentenced appellant to concurrent stayed terms of 12 months and one day on the fifth-degree

controlled-substance offense, and 13 months on the other offense. This appeal followed.

                                       DECISION

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the

burden of establishing that the [district] court abused its discretion and that appellant was

thereby prejudiced.” State v. Amos, 

 (Minn. 2003) (citation

omitted).

       Appellant argues that the district court erred by (1) concluding that his admission to

previous and occasional recent methamphetamine usage did not constitute a Spreigl bad act

and (2) allowing the state to introduce this unnoticed, irrelevant, and unfairly prejudicial

Spreigl evidence. Appellant contends that because he was prejudiced by the erroneous

introduction of the Spreigl evidence, he is entitled to a new trial.

                                                I.

       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


                                                4
with that character in committing an offense. Minn. R. Evid. 404(b); State v. 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).

       The district court concluded that appellant’s statement was not Spreigl evidence

because the “use of drugs is not really misconduct.” The district court also concluded

that the statement was admissible “as any statement of a party opponent would be under

the rules of evidence.” We acknowledge that appellant’s statement constitutes an

exception to the hearsay rule and is admissible as a statement by a party opponent under

rule 801(d)(2). See Minn. R. Evid. 801(d)(2) (stating that a statement is not hearsay if the

statement is offered against a party and is the party’s own statement). But non-hearsay

evidence is still subject to other rules of evidence. See Minn. R. Evid. 402 (providing

that all relevant evidence is admissible except as otherwise provided); see also Minn. R.

Evid. 403 (stating that relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice”). Thus, although admissible

under rule 801(d)(2), the statement may not be admissible if it constitutes a Spreigl bad

act.

       Appellant argues that the district court “clearly erred when it concluded that

evidence of methamphetamine use is not evidence of a prior bad act” because it “is illegal

to possess and sell methamphetamine” and, therefore, it “logically follows that using

methamphetamine . . . is a bad act.” We agree. A Spreigl act must be a “‘bad’ act.”


                                             5
State v. McLeod, 

 (Minn. 2005); see also Ture v. State, 

 (Minn. 2004) (holding that evidence that defendant collected

information on women was not Spreigl evidence because there is nothing inherently

wrong with collecting information on women). “But the prior bad act need not constitute

a crime.” McLeod, 

.

       Here, the alleged “bad act” is the use of controlled substances. Such an act is

generally not considered acceptable by societal standards. And appellant’s admission

that he previously used methamphetamine implies that he previously possessed the

substance, which not only is a crime, but is the underlying offense in this case. See 

, subd. 2(b)(1). Moreover, despite the state’s claim to the contrary,

appellant’s statement was clearly admitted to prove that appellant acted in conformity

with that bad act in committing the charged offense. Therefore, we conclude that

appellant’s statement regarding his previous and occasional methamphetamine usage

constitutes a Spreigl bad act.

                                              II.

       Because we conclude that appellant’s statement is a Spreigl bad act, we must next

determine whether the district court abused its discretion by admitting the evidence. See

State v. Ness, 

 (Minn. 2006) (stating that the admission of Spreigl

evidence is reviewed for an abuse of discretion). Before a district court may admit

Spreigl evidence, five elements must be met:

              (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


                                              6
                 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.

.

       Appellant argues that the first element is not satisfied because the state failed to

give notice of its intent to admit the evidence. We agree. The Minnesota Rules of

Criminal Procedure provide that “[t]he prosecutor must notify the defendant or defense

counsel in writing of any crime, wrong, or act that may be offered at trial under Minn. R.

Evid. 404(b).” Minn. R. Crim. P. 7.02, subd. 1 (emphasis added). “[T]he purpose of the

notice requirement is to prevent a defendant from being taken by surprise by the

introduction of evidence of collateral bad acts.” State v. McCoy, 

(Minn. 2004). To warrant reversal, the untimely notice must also be prejudicial. See

State v. Woodard, 

 (Minn. 1977) (concluding that, although the

Spreigl notice was late, the “defendant does not appear to have been prejudiced by the

tardiness” because “[f]ormal notice was given 3 days before the trial began and defendant

has not shown that he did not have adequate time to prepare to meet the evidence”).

       Here, the state did not provide appellant with formal notice that it would seek to

admit any Spreigl evidence. This failure to provide notice is contrary to the rules of

criminal procedure, which states that such notice “must” be provided if known at the

time. See Minn. R. Crim. P. 7.02, subd. 1; see also 

, subd. 15a

(2014) (stating that “‘must’ is mandatory”). The record reflects that appellant’s statement

was known to the prosecutor prior to trial. In fact, the prosecutor was specifically asked



                                                 7
about the audio of appellant’s statement to police, and the prosecutor informed the district

court that he did not anticipate introducing the audio of the statement. And, the district

court granted appellant’s motion in limine which precluded the state from presenting any

Spreigl evidence. At trial, however, the prosecutor changed his mind about playing the

audio and, without notice to appellant, or even the district court, sought to introduce the

audio. The prosecutor’s actions were blatant, and lacked good reason for failing to

provide appellant with notice. With no notice of the state’s intent to play the audio of

appellant’s statement, along with an order prohibiting the admission of any Spreigl

evidence, appellant had no reason to prepare for the admission of the Spreigl bad act at

issue here. Thus, the lack of notice by the state was prejudicial.

       Appellant also contends that his statement is more prejudicial than probative.

Again, we agree. “Spreigl evidence must not be more prejudicial than probative.” State

v. Wright, 

 (Minn. 2006). In determining whether the evidence’s

probative value outweighs its prejudicial impact, this court balances the relevance of the

evidence and “the [s]tate’s need to strengthen weak or inadequate proof” against the risk

that the evidence will be used as propensity evidence. State v. Fardan, 

 (Minn. 2009). “Prior bad act evidence can be unfairly prejudicial if it is used by the

jury for an improper purpose, such as proof of a defendant’s propensity to commit the

charged offense.” State v. Scruggs, 

 (Minn. 2012).

       In his statement, appellant admitted using methamphetamine “a long time ago and

then just recently off and on, not very much.” There is no question that this statement is

prejudicial; it portrays appellant as a former drug user who recently relapsed into using


                                              8
methamphetamine again. And because appellant is charged with fifth-degree possession

of methamphetamine, the statement is particularly prejudicial due to the likelihood of the

jury using it for the improper purpose of proof of appellant’s propensity to commit the

charged offense. Although the state claims that the evidence is probative because it

demonstrates appellant’s familiarity with methamphetamine, we cannot conclude that its

probative value outweighs the highly prejudicial nature of the statement. Therefore,

because the state failed to provide proper notice of its intent to admit the Spreigl bad act,

and the prejudicial nature of the evidence outweighs its probative value, we conclude that

the district court abused its discretion by admitting appellant’s statement regarding his

methamphetamine usage.1

                                             III.

       Finally, appellant argues that he is entitled to a new trial because there is a

reasonable likelihood that the district court’s error in admitting the Spreigl bad act

substantially influenced the verdict. See State v. Campbell, 

 (Minn.

2015). In determining whether the evidence significantly affected the verdict, the

reviewing court considers the manner in which the evidence was presented, whether the


1
  We note that appellant’s statement is inadmissible under rule 404(b) because its
potential for unfair prejudice outweighs its probative value, which is a higher threshold
for admissibility than rule 403. Compare Minn. R. Evid. 404(b) (providing that prior-
bad-act evidence is admissible only if “the probative value of the evidence is not
outweighed by its potential for unfair prejudice”) with Minn. R. Evid. 403 (providing that
relevant evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice” (emphasis added)). But even under the lower threshold
for admissibility under rule 403, appellant’s statement regarding his methamphetamine
usage would be inadmissible because its probative value is substantially outweighed by
the danger of unfair prejudice.

                                              9
district court gave a cautionary instruction, whether the state referenced the evidence in

closing arguments, the strength of the state’s other evidence, and any evidence appellant

may have produced in defense. State v. Bolte, 

 (Minn. 1995).

       Here, appellant was charged with constructively possessing methamphetamine

after police discovered more than 0.4 grams of the controlled substance in the room

where he was staying. But the record reflects that drug paraphernalia was found

throughout the house, and appellant denied that the methamphetamine was his.

Moreover, no cautionary instruction was provided by the district court, and the prosecutor

referenced appellant’s statement during closing arguments. The consideration of these

factors, along with the prejudicial nature of appellant’s statement leads, us to the

conclusion that the error affected appellant’s substantial rights because there is a

reasonable likelihood that the error had a significant effect on the verdict. Accordingly,

we reverse and remand for proceedings not inconsistent with this opinion.

       Reversed and remanded.




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