This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).

UNPUBLISHED OPINION

WILLIS, Judge

A jury found appellant Lee Draughn guilty of second-degree intentional murder. Draughn challenges the district court's admission of testimony relating to a prior uncharged assault, arguing that the testimony was inadmissible "other-crime" evidence, was cumulative, and was prejudicial. Draughn also claims the district court abused its discretion in failing to give a jury instruction he requested. We affirm.

FACTS

Draughn met Ava Scott in 1995 and subsequently moved in with her and her two children. Draughn acquired a .45 caliber handgun, which both he and Scott occasionally carried.

In the early morning hours of August 8, 1995, in the living room of the home Scott and Draughn shared, Scott was killed by a single gunshot fired from between six and twelve inches away. Draughn admits that both he and Scott were in the living room when she was shot and that after Scott died, he wrapped her body in a garbage bag and blanket, placed it in the trunk of her car, and cleaned up the blood in the house. Draughn left Scott's nude body beside a service road in Minneapolis.

Draughn told police that on the night Scott died, he came home from a bar and Scott was not at home. He stated that he knew nothing about Scott's death and denied killing her. At trial, Draughn asserted that (1) he had lied to police about not being at home at the time of Scott's death because he feared he would be accused of murder; (2) Scott shot herself because she learned that Draughn planned to leave her; (3) he struggled to stop her from shooting herself; and (4) after he realized Scott had killed herself, he panicked because he did not want her children to see their dead mother. The state sought to prove that Draughn killed Scott by establishing that (1) although both Scott and Draughn had carried the gun, Draughn controlled it; (2) Draughn's version of the incident was inconsistent with other testimony; and (3) Draughn's version of the incident was unlikely and unreasonable based on the observations of police and other experts.

DECISION 1. Admission of evidence

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State , 347 N.W.2d 824, 826 (Minn.App. 1984). Draughn asserts that the district court abused its discretion in allowing testimony that Draughn committed an uncharged assault on a business associate, Kirk Le, using what appeared to be the gun that killed Scott.

The rule excluding evidence of the commission of other offenses does not necessarily deprive the state of the right to make out its whole case against the accused on any evidence which is otherwise relevant upon the issue of defendant's guilt of the crime with which he was charged. The state may prove all relevant facts and circumstances which tend to establish any of the elements of the offense with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. It is sufficient if a reasonable connection [can] be shown. * * * [T]he evidence of other offenses may be admissible where such evidence is relevant and competent as proof of the offense in issue.

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"[T]he true rule is that evidence of the commission of other crimes is admissible when it tends corroboratively or directly to establish the defendant's guilt of the crime charged in the indictment on trial, or some essential ingredient of such offense."

State v. Drews , 274 Minn. 426, 430-31, 144 N.W.2d 251, 254-55 (1966) (citations omitted).

The state gave notice of its intention to present Le's testimony as Spreigl evidence, arguing that it should be admitted because the incident was close in time to Scott's killing, the incident involved a weapon that matched the description of the gun involved in the present case, and Draughn had raised the issue of intent and Le's testimony went to intent. Alternatively, the state argued that Le's testimony was admissible to show that Draughn controlled the gun because Draughn had made an issue of possession and control by presenting evidence of a prior relationship of Scott's to prove that it was she who needed the gun. The district court denied the motion to admit Le's testimony as Spreigl evidence, but allowed the testimony as relevant to the issue of possession and control.

Draughn argues that the district court abused its discretion in admitting Le's testimony because (1) it was unnecessary in light of other witnesses' testimony that Draughn sometimes carried the gun and (2) it was prejudicial because it tended to show Draughn had a violent nature.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Minn. R. Evidence 403. The fact that the district court admitted Le's testimony notwithstanding Draughn's arguments regarding necessity and prejudice shows that the court believed the testimony was not unnecessary and that its probative value was not substantially outweighed by its potential prejudice. The district court did not abuse its discretion in admitting Le's testimony.

Draughn also claims that the state improperly maximized Le's already prejudicial testimony by using the incident in closing arguments to show Draughn's violent and assaultive character. A defendant is entitled to a new trial if prosecutorial misconduct rose to the level of denying the defendant a fair trial. State v. Porter , 526 N.W.2d 359, 365 (Minn. 1995). In cases involving unusually serious misconduct, this court will affirm a conviction only if the misconduct was harmless beyond a reasonable doubt. State v. Caron , 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Where the misconduct is less serious, this court will affirm if the misconduct did not likely play a substantial part in influencing the jury to convict. Id. Even if the prosecutor's comments regarding Le's testimony were misconduct, they cannot be characterized as serious misconduct. Given the fact that the record is replete with evidence of Draughn's violent behavior, including other assaults against Scott, it is unlikely that any improper reference to Draughn's violent behavior towards Le substantially influenced the jury to convict.

2. Jury instruction

Draughn argues that the district court abused its discretion by refusing to give the jury an instruction he requested. Because the state's case was based on circumstantial evidence, Draughn proposed, in relevant part, that the jury be instructed that he may be found guilty

only if those circumstances are conclusive enough to leave you with a clear and settled belief that the defendant is guilty, and that there is no other reasonable explanation of the facts as proven. The evidence must not only be consistent with the defendant's guilt, it must be inconsistent with his innocence.

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Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to defendant's guilt and the other to his innocence, you must adopt that interpretation which points to innocence, and reject that interpretation which points to guilt.

The district court refused to give Draughn's proposed "inconsistent with innocence" instruction and instead gave the jury the standard CRIMJIG instructions on proof beyond a reasonable doubt and direct and circumstantial evidence.

The refusal to give a proposed jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. O'Hagan , 474 N.W.2d 613, 620 (Minn.App. 1991), review denied (Minn. Sept. 25, 1991).

Draughn argues that the district court must give a circumstantial evidence instruction including language such as that in his proposed instruction if (1) the state's case is based entirely on circumstantial evidence, and (2) the defense presented "evidence which, if believed, would explain the facts relied upon by the state," citing State v. Turnipseed , 297 N.W.2d 308, 313 (Minn. 1980). In Turnipseed , however, the supreme court concluded that a district court does not abuse its discretion in circumstantial evidence cases by failing to instruct the jury that the circumstances proved must be inconsistent with any other rational conclusion than guilt. 297 N.W.2d at 313. The court noted that although such language had appeared in many other circumstantial evidence cases, "we have never held the phrase to be mandatory." Id. at 312. Contrary to Draughn's argument, an instruction including the language he requested is not required by Turnipseed .

Draughn also argues that a circumstantial evidence instruction such as the one he requested must be given if the defense offers a believable alternative explanation to the state's circumstantial case and claims Turnipseed is limited to those cases where the defendant offers no alternative explanation of the state's evidence. Turnipseed , however, cites State v. Pankratz , 238 Minn. 517, 57 N.W.2d 635 (1953), and State v. Brady , 244 Minn. 455, 70 N.W.2d 449 (1955), both of which involved defendants' alternative explanations of the state's circumstantial evidence, and notes that although both courts approved circumstantial evidence instructions including language similar to that at issue in Turnipseed , neither held that such language was mandatory. Turnipseed , 297 N.W.2d at 312-13. The district court did not abuse its discretion in denying Draughn's proposed instruction.

Affirmed.