Opinion
No. C5-98-241.
Filed October 27, 1998.
Appeal from the District Court, Hennepin County, File No. 970445849.
Hubert H. Humphrey III, Attorney General, and
Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, (for appellant)
Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and Randall, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
On appeal from a conviction for conspiracy to commit kidnapping, appellant James Solarz argues that the evidence was insufficient to support his conviction and that the trial court erred in admitting Spreigl evidence. We affirm.
FACTS
Until the victim, D.M., was about seven years old, she lived in the same trailer park where Solarz lived. D.M.'s mother testified that one day while a neighbor was babysitting D.M. and her sister, the children went to Solarz's trailer. D.M.'s mother then went to Solarz's trailer. After she repeatedly knocked and yelled for D.M., the children came to the door wearing only their underwear. A neighbor girl testified that she once saw D.M. run out of Solarz's trailer wearing only her underwear, and Solarz come out behind her. D.M. ran between the trailers trying to hide.
D.M. testified at trial, and a videotaped interview of her by Debra Peterson, an employee of a child abuse evaluation center, was admitted into evidence. In her testimony and in the interview, D.M. described how Solarz exposed himself to her. D.M. testified that other children, she thought two, were present when Solarz exposed himself. It was not clear from D.M.'s testimony or the interview whether the sexual misconduct occurred once or repeatedly.
Peterson testified that during the interview, D.M. was in a tentative mode of disclosure, meaning that the information she provided was incomplete and very vague. Peterson testified that this is a normal stage that child-victims of sexual abuse go through when reporting sexual abuse. D.M.'s trial testimony was not more detailed than the interview.
Solarz's daughter, H.S., testified that Solarz said D.M. had "asked him to show her his private areas" and also said something about liking "for [D.M.] to touch his private areas." Solarz also told H.S. that he loved D.M. and cared for her as one of his own, that he wanted to sleep with D.M. and her mother, and that he wanted to take D.M. and H.S. somewhere where they would not be bothered by parents, possibly to Mexico or California.
In November 1995, D.M. and her family moved to a townhouse. Solarz attempted to contact D.M. after she moved. H.S. testified that Solarz instructed her to distribute his business cards around the townhouse complex where D.M. lived and to give D.M. one if H.S. saw her. Also, at Solarz's request, H.S. gave a Polaroid picture of Solarz with his name, address, phone number, and "call me" written on the back to a friend who attended D.M.'s school and asked the friend to give the picture to D.M.
Solarz also asked two neighborhood teenagers who sometimes visited him, C.G. and N.W., to help him find D.M. C.G. and N.W. testified that Solarz talked about wanting D.M. to have his baby when she was older and about taking D.M. away to Hawaii or Alaska. N.W. testified that just about every time he visited Solarz, Solarz talked about taking D.M. away to Hawaii or Alaska. C.G. testified that Solarz said he would wait four years for D.M. to have his baby. C.G. and N.W. testified that Solarz offered them $100 if they would find out where D.M. lived. N.W. told Solarz that he would help Solarz find D.M.'s address, although N.W. testified that he did not seriously intend to do so.
One day in May 1997, D.M.'s mother picked D.M. up at school. As they were leaving the school building, Solarz approached them. Solarz identified himself and said that he was at the school doing an estimate on lawn work. Solarz said that he would like to have D.M. over and that his daughter could babysit with him there to help. D.M.'s mother testified that during the conversation, Solarz apologized repeatedly without explaining why he was apologizing. D.M.'s mother characterized the conversation as "really strange."
D.M.'s parents contacted the school and learned that the school was not taking bids on any lawn work. They made arrangements with the school, so D.M. would not be alone at all during the school day. Nonetheless, when D.M.'s mother picked D.M. up from school a day or so later, D.M. showed her mother some paper flowers and a birthday card. The card had Solarz's phone number on it, and D.M. testified that Solarz gave her the flowers and the card. After that incident, D.M.'s parents removed her from school and contacted the police.
Police searched Solarz's residence in May 1997. They found a notebook in which Solarz had written "Jim and [D.M.'s first name] Full Service Lawn Care." They also found another notebook in which Solarz had written:
Let me explain something. I realize [D.M.'s first name] fondness for me over her father is embarrassing enough and to deny her the wish to see me is only selling her short. Your source of anger is the shame at yourself for not meeting her needs. I know you love [D.M.'s first name] and so do I. I care deeply for her health and her growing process.
DECISION
1. When the sufficiency of the evidence is challenged, this court must review the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). This court must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
A person who "conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy" is guilty of conspiracy. Minn. Stat. § 609.175, subd. 2 (1996). Solarz was convicted of conspiracy to commit kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (1996). Under Minn. Stat. § 609.25, subd. 1(2), a person who removes from one place to another a child under age 16 without the parents' consent "[t]o facilitate commission of any felony or flight thereafter" is guilty of kidnapping.
Solarz argues that the evidence was insufficient to support his conspiracy conviction because although N.W. agreed to accept $100 to find D.M.'s address, N.W. never actually intended to do so. But a defendant may be convicted of violating the conspiracy statute even if the person with whom he agreed cannot be convicted of conspiracy. State v. Happel , 259 N.W.2d 600, 601 (Minn. 1977); see State v. St. Christopher , 305 Minn. 226, 232 N.W.2d 798 (1975) (upholding conviction for conspiracy to commit murder when person with whom defendant conspired never intended to aid defendant but merely feigned agreement while cooperating with police). Under Happel and St. Christopher , N.W.'s feigned agreement does not negate the agreement element of the conspiracy statute.
Solarz also argues that the evidence was insufficient to support his conspiracy conviction because the only act that N.W. agreed to do, finding D.M.'s address, was not illegal. We disagree.
Where the evidence permits an inference of concert of action to accomplish a given unlawful result, as where several persons commit separate acts which form parts of a connected whole, an inference of conspiracy — that there was concert in both planning and execution — is permissible. The parts or acts done by each must, however, not only tend to show a prior unlawful combination, but negative the idea of lawful undertaking or purpose.
State v. Burns , 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).
The state presented evidence that Solarz intended to kidnap D.M. for the purpose of committing criminal sexual conduct against her. "Intent is an inference drawn by the jury from the totality of circumstances." State v. Raymond , 440 N.W.2d 425, 426 (Minn. 1989). In reviewing a jury's determination of intent, we must view the evidence in the light most favorable to the state and determine whether a reasonable jury could conclude that the only reasonable inference to be drawn was that defendant had the requisite criminal intent. State v. Cooper , 561 N.W.2d 175, 179 (Minn. 1997).
Solarz made statements that he loved D.M., liked her to touch him, wanted to sleep with her, wanted her to have his baby, and wanted to take her away from Minnesota. His handwritten notebooks indicated a desire to be with D.M. A reasonable jury could conclude that the only reasonable inference to be drawn from the evidence as a whole was that Solarz wanted D.M.'s address for the purpose of kidnapping her. The evidence was sufficient to support Solarz's conspiracy conviction.
2. "[E]vidence of prior bad acts and previously committed crimes is commonly known as Spreigl evidence." State v. Moorman , 505 N.W.2d 593, 601 (Minn. 1993). The district court has discretion to admit Spreigl evidence, and its decision will not be reversed absent a clear abuse of discretion. State v. Landin , 472 N.W.2d 854, 859 (Minn. 1991). Before admitting Spreigl evidence, the district court must find that
(1) the evidence is clear and convincing that the defendant participated in the Spreigl incident; (2) the Spreigl evidence is relevant and material to the state's case; and (3) the probative value of the Spreigl evidence outweighs its potential for unfair prejudice.
Id.
The district court admitted Spreigl evidence regarding sexual misconduct by Solarz involving another juvenile girl, S.C. S.C. testified about an incident in which she, D.M., and another girl visited Solarz and watched "dirty" movies with Solarz and "some other guys." S.C. testified that the girls went into a back bedroom and were blindfolded and touched and that that occurred more than once.
Solarz challenges S.C.'s testimony. He contends that although S.C. claimed D.M. was her best friend, there was evidence that neither D.M. nor her mother knew S.C.; that D.M. never talked about an incident like the one described by S.C.; and that Solarz was acquitted on the second-degree criminal sexual misconduct charge involving S.C.
The clear and convincing standard of proof "is met when the truth of the facts sought to be admitted is `highly probable.'" State v. Shannon , 583 N.W.2d 579, 584 (Minn. 1998). The evidence that D.M. and her mother did not recall S.C. and that S.C. may have overstated the nature of her relationship with D.M. did not demonstrate that S.C. did not know D.M. S.C. lived in the trailer park for only a few months. Her description of D.M. was consistent with D.M.'s appearance, and S.C. correctly identified to police the trailer lot where D.M. had lived. D.M.'s failure to talk about the incident described by S.C. could be explained by her tentative mode of disclosure, as testified about by Peterson. Finally, proof of a criminal offense is subject to a stricter standard than proof of a Spreigl incident. See State v. Ward , 369 N.W.2d 293, 296 (Minn. 1985) ("The facts underlying conviction of a crime * * * must be proved beyond a reasonable doubt."); State v. Johnson , 568 N.W.2d 426, 433 (Minn. 1997) ("`Clear and convincing' requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt."). S.C. gave consistent accounts of the misconduct committed by Solarz. The district court did not err in determining that the state proved the Spreigl incident by clear and convincing evidence.
Solarz argues that the probative value of the Spreigl evidence was low because the state presented other evidence showing his sexual interest in D.M. Solarz cites the evidence that he spoke openly about his desire to take D.M. away and have sex with her. But evidence that Solarz previously committed sexual misconduct against D.M. was highly probative to show that Solarz intended to act on his desires, not just talk about them. D.M.'s testimony about the sexual misconduct was vague and lacking in detail. The record supports the district court's finding that the state's case was weak on the intent element.
The danger of unfair prejudice was low. Although S.C. identified herself as a victim of sexual misconduct by Solarz, D.M. testified that other children were present when Solarz exposed himself. S.C.'s testimony, thus, was not the only evidence that Solarz committed sexual misconduct against children other than D.M. The district court's admission of the Spreigl evidence was not an abuse of discretion.
3. In a pro se supplemental brief, Solarz argues that the charges against him should have been dismissed because the state violated his constitutional right to a speedy trial. Both the federal and state constitutions grant a defendant a right to a speedy trial. U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6. Minn.R.Crim.P. 6.06, 11.10 require that a trial begin within 60 days after a speedy trial demand is made. But because the rules allow delay for good cause, the 60-day limit is not absolute. McIntosh v. Davis , 441 N.W.2d 115, 119 (Minn. 1989).
Four factors are relevant in determining whether the constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) whether there was any prejudice to the defendant. State v. Friberg , 435 N.W.2d 509, 512 (Minn. 1989) (citing Barker v. Wingo , 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93 (1972)). The district court has discretion to determine whether there was good cause for the delay and whether defendant was denied his speedy trial right. Friberg , 435 N.W.2d at 515.
The delay here was only slight. The district court began hearing motions 61 days after Solarz demanded a speedy trial, and the trial commenced seven days later. See Aligah v. State , 394 N.W.2d 201, 205 (Minn.App. 1986) (delay of 19 days past 60-day period was "slight" delay not sufficient by itself to show denial of speedy trial), review denied (Minn. Nov. 17, 1986).
The reasons for the delay do not weigh heavily against the state. Solarz made a speedy trial demand on August 1, 1997. A trial date was set for September 24, 1997. The trial was continued from September 24 because the state needed to investigate the newly charged Spreigl incident involving S.C. The trial was set for October 1 because both parties mistakenly believed that that date was within the 60-day limit. On October 1, the parties appeared prepared for trial, and the district court began hearing motions. The fact that trial did not begin until October 8 was due in part to Solarz's motions. See State v. Johnson , 498 N.W.2d 10, 16 (Minn. 1993) (when delay results primarily from defendant's motions, claim for violation of speedy trial rights is less compelling).
Solarz has not shown any prejudice resulting from the delay. The district court's determination that there was good cause for the delay and that Solarz was not entitled to dismissal based on violation of his speedy trial right was not an abuse of discretion.