State of Minnesota v. Mark Allan Misgen ( 2016 )

This opinion will be unpublished and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
A15-0656
State of Minnesota,
Respondent,
vs.
Mark Allan Misgen,
Appellant.
Filed March 14, 2016
Affirmed
Cleary, Chief Judge
Steele County District Court
File No. 74-CR-13-912
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and
Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)
Ted Sampsell-Jones, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Jesson, Judge; and Kalitowski,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
CLEARY, Chief Judge
In this appeal from his conviction of first-degree arson and insurance fraud,
appellant Mark Allan Misgen challenges the admission of other-crimes evidence to prove
he had financial motive to commit arson. We affirm, because even if there was plain error,
it did not affect appellant’s substantial rights.
FACTS
Appellant, his wife, and their four children lived in a single-family home where
firefighters responded to two separate fires in the early hours of December 7, 2011.
Appellant reported the first fire at approximately 1:50 a.m. He told a police officer that he
and his family had just returned home when they discovered smoke in the house. A pot
sitting on an electric burner that had been left on was apparently the source of the smoke.
Firefighters inspected the house and departed between approximately 2:45 and 3:00 a.m.
Appellant and his family went to stay with his mother rather than sleep in the house.
Firefighters responded to a second fire at appellant’s house within about an hour of their
departure after the first reported fire. The second fire destroyed appellant’s home.
Appellant and his wife owned and operated two pizza restaurants, one in their home
town of Ellendale and another in the nearby town of Lonsdale. Immediately after the
second fire, appellant told police that on the night before the two fires, he and his family
were out to dinner when he was called to his Lonsdale restaurant to help an employee who
was having trouble locking the restaurant door. In the recorded statement he gave to police
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on December 7, appellant explained that the employee got the door locked before appellant
arrived, so appellant turned around and headed back to Ellendale where he intended to pick
up his truck from his father’s house. Appellant told an insurance adjuster in a recorded
statement that the truck would not start so, at his request, his wife went to purchase
isopropyl alcohol to help him start it. When the family finally arrived at their home just
before 2:00 a.m. on December 7, appellant stated that they found it filled with smoke.
Appellant and his wife later told an insurance adjuster that appellant’s wife had been
cooking at about 5:30 p.m. on December 6 and that she likely left the burner on. Appellant
told police that he did not know how the second fire started.
On May 13, 2013, respondent State of Minnesota charged appellant with first-
degree arson in violation of Minn. Stat. § 609.561, subd. 1 (2010) and insurance fraud in
violation of Minn. Stat. § 609.611, subd. 1(a)(2) (2010). On August 13, 2013, appellant
filed a pretrial motion requesting an order preventing the state from introducing “any
evidence that [appellant] has been guilty of additional misconduct and crimes on other
occasions.” In the motion, appellant argued that such evidence is not admissible on the
“grounds that the prosecution’s notice . . . is not specific enough, does not specify the
exception, was not included as required in the State’s Rule 9 disclosures, the evidence is
more prejudicial [than] probative, and is remote.” At this point, the state had not yet given
any notice that it intended to introduce such evidence. Appellant’s objection was part of a
series of boilerplate objections included in the motion, many of which related to matters
that were irrelevant to the case.
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The matter was set for trial in late September 2014. On May 12, 2014, the state
filed a notice of evidence of additional offenses pursuant to Minn. R. Crim. P. 7.02 and
Minn. R. Evid. 404(b). The state’s notice indicated its intent to offer evidence of
appellant’s “check kiting” and various estimated liabilities to show the financial pressure
appellant was experiencing at the time of the fire.1 The record indicates that there were no
further pretrial motions and no further hearings were conducted or requested.
At trial, the state introduced evidence tending to undermine appellant’s version of
events. Witnesses testified that appellant’s employee was not working on December 6 and
did not have trouble locking the door at the pizza restaurant. Testimony also suggested
that the employee did not call appellant’s cell phone as appellant claimed. And the state
introduced evidence showing that appellant was not at all times in the locations he claimed
to be on the night of the fire, and that he and his wife had been storing large amounts of
personal property at their business.
Evidence also suggested that appellant and his wife were struggling under a large
amount of debt. When an insurance adjuster interviewed them and asked whether they had
outstanding debts, appellant and his wife said that appellant paid child support and they
had a mortgage on their home. But appellant and his wife did not report that they had
accounts in collection; that they had written multiple checks with insufficient funds; or that
they had outstanding tax obligations. When asked if both of their restaurants had positive
1
We refer to confidential information found in the record only where appellant has already
made that information a matter of public record via briefing and statements in public
hearings.
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cash flow, appellant and his wife indicated that they did. At trial, the state introduced
evidence showing that the businesses had a negative cash balance. Appellant’s recorded
statement to police was played for the jury, as were the recorded statements appellant and
his wife gave the insurance adjuster.
The state also introduced eyewitness testimony suggesting that appellant’s wife
drove to the house to pick appellant up after the first fire, at about 3:00 a.m., and at that
time, appellant walked from his wife’s car to the house carrying a small object. Appellant’s
wife testified that she and appellant then went to his mother’s house and stayed there until
they received a call about the second fire at about 6:00 a.m. However, appellant’s neighbor
testified that she heard a car approach appellant’s house at about 3:15 a.m. She identified
it as appellant’s car after it was parked. The neighbor observed a man resembling appellant
park at the house and go inside, leaving the car door open. At about 3:30 a.m., two men
driving home from work observed that appellant’s house was on fire and called 9-1-1.
Firefighters arrived about ten minutes later, at which time the house was engulfed in
flames.
A deputy state fire marshal, an insurance investigator, and an electrical engineer
were among those investigating the cause of the fire. The marshal and the insurance
investigator testified that they thought the fire started in an interior closet and was
intentionally set. Additional evidence included a statement from a witness who had been
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appellant’s co-defendant in an earlier case which resulted in appellant’s felony conviction.2
The co-defendant testified at trial about his own felony and stated that appellant had, in the
past, asked him about fire investigation and insurance claims associated with fires because
the witness had worked as an EMT at a fire department and had taken a fire science class.
After a seven-day jury trial, the jury found appellant guilty of both charged offenses.
On January 21, 2015, the district court sentenced appellant on the arson count to 58 months
at a Minnesota correctional facility. Appellant filed this appeal from his judgment of
conviction.
DECISION
Appellant argues that the district court erred by admitting evidence of his prior bad
acts to prove he had a financial motive to commit arson. The state argues that the
challenged evidence is admissible to establish the elements of the charged offenses and to
prove motive.
Evidence of other crimes, bad acts, or wrongs is not admissible as character
evidence to show that a defendant acted in conformity with that character. Minn. R. Evid.
404(b); State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). Such other-
2
Appellant objected to testimony that would reveal appellant’s prior felony conviction and
restitution obligation. The district court instructed the witness not to reveal any
information about appellant’s felony. The district court also instructed a different witness
not to draw attention to the reason for an item titled “restitution portion” in a table showing
appellant’s liabilities at the time of the fire. The table was shown to the jury and the witness
discussed appellant’s liabilities, but it was not revealed that appellant had a prior felony
conviction. Additionally, references to appellant’s felony conviction and associated
restitution obligation were redacted from recorded statements that were played for the jury.
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crimes evidence—also referred to as Spreigl evidence—is admissible to establish motive,
opportunity, intent, absence of mistake or accident, identity, knowledge, preparation, or
plan. Minn. R. Evid. 404(b); State v. DeWald, 464 N.W.2d 500, 502-03 (Minn. 1991).
“Motive is not an element of most crimes, but the state is usually entitled to prove motive
because motive explains the reason for an act and can be important to a required state of
mind.” State v. Ness, 707 N.W.2d 676, 687 (Minn. 2006) (quotation omitted). To admit
other-crimes evidence, a district court must find that: (1) the state gave notice of its intent
to admit the evidence; (2) the state clearly indicated what the evidence will 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, 707
N.W.2d at 685-86. Evidence of other offenses may also be admissible where that evidence
“tend[s] 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.” State v. Riddley, 776 N.W.2d 419, 425 (Minn. 2009) (quotation
omitted).
[T]he 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 the defendant’s
guilt of the crime with which he was charged.
Id. (quotation omitted).
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Where a party objects to admission of evidence at or before trial and the court makes
a definitive ruling on the record admitting the evidence, the party normally does not need
to renew its objection to preserve a claim of error for appeal. Minn. R. Evid. 103(a); State
v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002). However, “evidentiary objections should
be renewed at trial when an in limine or other evidentiary ruling is not definitive but rather
provisional or unclear.” State v. Word, 755 N.W.2d 776, 783 (Minn. App. 2008).
“[A]ttorneys have an obligation to seek clarification regarding whether an in limine ruling
is definitive when there is doubt on that point.” Id.In this case, appellant filed a pretrial motion objecting to the introduction of any
evidence of appellant’s other misconduct or crimes. The state filed its notice on May 12,
2014, approximately nine months after appellant’s pretrial motion. The district court
admitted the majority of the state’s proffered evidence without objection during trial four
months later. The district court record contains no ruling on the admissibility of Spreigl
evidence. Nor is there any indication in the record that appellant ever renewed his objection
to the admission of Spreigl evidence, requested a hearing on the issue, or objected to the
district court’s apparent failure to rule on the issue. Because the district court went forward
without making a definitive ruling on the admission of evidence of appellant’s prior bad
acts, appellant should have renewed his objection to preserve the issue for appeal.
If a defendant fails to object to admission of Spreigl evidence, the district court is
left to consider whether to sua sponte strike the evidence or give the jury limiting
instructions as to its use. State v. Vick, 632 N.W.2d 676, 685, 687 (Minn. 2001). Generally,
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the district court’s failure to do either is not reversible error. Id. at 685. The district court
should give a specific instruction regarding the permissible use of such evidence if a
defendant requests an instruction. State v. Broulik, 606 N.W.2d 64, 69 (Minn. 2000). But
even where defense counsel does not make a specific request, the district court “should
give an appropriate cautionary instruction both upon receipt of the other-crime evidence
and as part of the final instructions.” State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995).
If counsel fails to request such instructions and the district court fails to give them, it does
not create “grounds for reversal absent a showing of plain error.” State v. Bauer, 598
N.W.2d 352, 365 (Minn. 1999).
After the initial boilerplate motion over a year before trial, appellant did not file any
further motions regarding admission of other-crimes evidence. During trial, he did not
object to the great majority of the testimony that referred to evidence listed in the state’s
notice. Appellant did not object when the district court failed to give limiting instructions
as evidence was introduced, nor did he object to the final jury instruction, which included
no cautionary instruction as to permissible use of other-crimes evidence.
Where a district court admits Spreigl evidence and a defendant fails to object or fails
to renew his objection, we review for plain error. State v. Washington, 693 N.W.2d 195,
205 (Minn. 2005); Word, 755 N.W.2d at 783. The appellant must demonstrate that
“(1) there was error, (2) the error was plain, and (3) the error affected the defendant’s
substantial rights.” Washington, 693 N.W.2d at 204. “To satisfy the third prong, [an
appellant] bears a heavy burden of persuasion to show that the error was prejudicial and
9
affected the outcome of the case.” Vick, 632 N.W.2d at 685 (quotation omitted). If an
appellant shows that the three prongs are met, a reviewing court “may correct the error
only if it seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Washington, 693 N.W.2d at 204 (quotation omitted).
With respect to the question of whether there was error, it is unclear from the record
how the district court viewed the evidence described in the state’s Minn. R. Crim. P. 7.02
and Minn. R. Evid. 404(b) notice. The state’s notice referred to evidence of appellant’s
check kiting and various outstanding financial liabilities. It is not clear whether the district
court considered the evidence to be evidence of crimes, wrongs, or acts that have been
previously prosecuted; evidence arising out of the same occurrence or episode as the
charged offense; or other-crimes evidence under Rule 404(b). Because it is not clear that
the Spreigl procedural safeguards apply to immediate-episode evidence, it is also not clear
that the state must give notice before offering such evidence. See Riddley, 776 N.W.2d at
428 (declining to reach the question of whether immediate-episode evidence should be
treated as Rule 404(b) bad-acts evidence).
Because the district court made no ruling and appellant never renewed his objection
or sought clarification from the court, we cannot determine whether the district court
considered any of the evidence to be Spreigl evidence. As a result, we will not evaluate
whether the district court plainly erred when it admitted evidence of appellant’s check
kiting, failure to file income taxes, and other outstanding financial liabilities. But, we may
decide whether the admission of this evidence affected appellant’s substantial rights,
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without deciding whether it was plain error. “If any prong of the [plain-error] test is not
met, the claim fails.” State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006).
Appellant bears the burden of showing that the district court’s error affected his
substantial rights, meaning that the admission of other-crimes evidence without any
limiting instruction “was prejudicial and affected the outcome of the case.” State v. Griller,
583 N.W.2d 736, 741 (Minn. 1998). “Error is prejudicial if there is reasonable likelihood
that the error had a significant effect on the jury’s verdict.” Jackson, 714 N.W.2d at 690
(quotation omitted). We consider the entire record in determining whether there is a
significant likelihood that other-crimes evidence improperly affected the jury’s verdict.
State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). In general, factors that reduce the
likelihood that testimony regarding a defendant’s other crimes unfairly affected the
outcome of trial include: whether defendant has notice that other-crimes evidence is going
to be introduced; whether other-crimes evidence is described with sufficient particularity
to permit the defendant to muster a defense in advance of trial; whether testimony was
properly introduced, without objection; and whether the jury received cautionary
instructions at appropriate times. Vick, 632 N.W.2d at 685-86, 693. Also of relevance are
“whether the [s]tate dwelled on the evidence in closing argument and whether the evidence
of guilt was overwhelming,” and “whether the [s]tate presented other evidence on the issue
for which the other crime evidence was offered.” Riddley, 776 N.W.2d at 428.
Appellant has not demonstrated on appeal how the admission of evidence of
appellant’s financial crimes improperly affected the outcome of the case. The evidence
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was relevant to motive, which the state is entitled to prove even though it is not an element
of the charged offenses. Ness, 707 N.W.2d at 687. In the state’s closing argument, counsel
mentioned appellant’s unpaid bills, check kiting, and cash payments to employees, along
with the fact that appellant’s home had not had gas service for over two years. The state
argued that such financial difficulty would certainly lead to great stress, which would serve
as a motive to burn one’s home with the intent to collect on an insurance claim. The state
did not focus unduly on appellant’s prior bad acts in its opening or closing statements, but
highlighted them to emphasize the severity of appellant’s financial problems. The state
noted that despite many other unpaid bills, appellant and his wife never allowed their
homeowners’ insurance policy to lapse during the year before the fire, but actually paid it
using bad checks. In its closing argument, the state did present check kiting as the first
way that appellant tried to solve his financial problems, which could suggest that appellant
has a propensity to commit crime. The prosecutor argued, “So frankly, the financial picture
shows that they were sinking fast. The short-term solution was to kite these checks. It’s
kind of a ‘robbing Peter to pay Paul’ situation . . . .” But immediately after this statement,
the prosecutor portrayed appellant’s check kiting as a scheme that intensified the financial
pressure on appellant by creating an even greater need for an influx of cash. At no time
did the state urge the jury to use other-crimes evidence as evidence of appellant’s
propensity to commit crimes.
The state presented a substantial amount of circumstantial evidence that was
unrelated to appellant’s prior bad acts. After a seven-day trial in which more than twenty
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witnesses testified, almost 100 exhibits were received, and the jury heard three recorded
statements by appellant, the jury found appellant guilty of arson. Neighbors testified to
circumstantial evidence suggesting that appellant was at the house when he claimed to be
elsewhere. Evidence was introduced to show that appellant and his wife were storing a
large amount of personal property at their business instead of in their home. Other evidence
was introduced to show that appellant made cell phone calls at certain locations while
claiming to be elsewhere on the night of the fire. Witnesses testified to the speed with
which the fire engulfed the house and the shape of burn patterns, stating that it indicated to
them than an accelerant was involved and that the fire had been started intentionally.
Appellant argues that because the state’s case is built entirely on circumstantial
evidence, every piece of evidence was necessary to the jury’s determination, including the
evidence of appellant’s prior bad acts. However, even assuming this to be true, it does not
mean that the jury used other-crimes evidence improperly in reaching its verdict. The state
did not suggest that the jury use Spreigl evidence to determine anything other than motive
to commit arson and whether appellant made false representations regarding his finances.
Appellant also had sufficiently particular notice of the state’s Spreigl evidence. As
explained above, the state filed a notice well in advance of trial. The notice specifically
described the other-crimes evidence to be offered. The state attached a forensic accounting
report to its notice to “provide[ ] the full factual basis supporting the State’s Notice of
evidence to be offered at trial.” Although the district court did not give a cautionary
instruction when other-crimes testimony was introduced or in the final jury instructions,
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the district court’s failure to instruct the jury on the proper use of other-crimes evidence
did not affect appellant’s substantial rights because the state presented a strong case, the
state did not urge the jury to misuse the evidence, appellant received adequate notice, and
appellant failed to object.
Even if appellant carried his burden of persuasion on the third prong of the plain-
error test, an unobjected-to error must seriously affect the fairness, integrity, or public
reputation of judicial proceedings before this court will correct it. Washington, 693
N.W.2d at 204. Appellant received a complete, adversarial trial. The trial was lengthy and
the evidence varied. Most of the testimony did not focus on other-crimes evidence.
Prosecutors did not focus unduly on evidence of appellant’s prior bad acts and they did not
encourage the jury to misuse the evidence to seek a conviction for an improper purpose.
Any error by the district court did not affect the fairness, integrity, or public reputation of
judicial proceedings.
Affirmed.
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