This opinion will be unpublished and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

A14-1122

State of Minnesota, 

Respondent, 

vs. 

Tyrone Bill Harper, 

Appellant.

Filed July 20, 2015

Affirmed

Halbrooks, Judge

Hennepin County District Court

File No. 27-CR-13-3634

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant 

County Attorney, Minneapolis, Minnesota (for respondent) 

Cathryn Middlebrook, Chief Appellate Public Defender, David W. Merchant, Assistant 

Public Defender, St. Paul, Minnesota (for appellant) 

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and 

Reilly, Judge. 

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Appellant challenges his conviction of aiding and abetting first-degree aggravated 

robbery, arguing that the district court abused its discretion by admitting evidence of 
2

other crimes at trial and that the prosecutor’s misconduct deprived him of a fair trial. We 

affirm.

FACTS

On February 1, 2013, Minneapolis police officers responded to a report of a 

robbery. A store clerk told the officers that two people wearing masks entered the store.

One of them pointed a handgun at the clerk and demanded that he put the cash-register 

drawer on the counter. One of the masked individuals continued to point the gun at the 

clerk while the other emptied the cash out of the drawer. They also stole four packs of 

Newport cigarettes, Metro Transit bus passes, the clerk’s personal money out of his 

wallet, and the clerk’s cell phone. The clerk estimated that they stole between $200 and 

$300 from the cash register and $330 from the clerk’s wallet, including three two-dollar 

bills. The incident was captured by surveillance video, which the police officers 

reviewed with the store clerk. One of the officers testified that the video showed that the 

person with the gun wore a “dark Carhartt-type jacket” and that both people wore black 

masks. The clerk described the two suspects as African-American men of medium build 

and said that the gunman had bright hazel eyes. 

Using the clerk’s cell-phone number, the police tracked the phone to a specific 

location in Minneapolis. Police officers proceeded to that location, observed two males 

who fit the suspects’ descriptions, and identified them as appellant Tyrone Bill Harper 

and J.H. Harper was wearing a black Carhartt jacket. The officers conducted a pat 

search and a later search incident to arrest of Harper and discovered five packs of 

Newport cigarettes, Metro Transit bus passes, and $245 in cash, including two two-dollar 
3

bills. The officers also conducted a pat search and a later search incident to arrest of J.H. 

and discovered the store clerk’s cell phone, two black masks, Metro Transit bus passes, 

and $248 in cash, including one two-dollar bill. The state charged Harper with aiding 

and abetting first-degree aggravated robbery, in violation of Minn. Stat. §§ 609.05, subd. 

1, .245, subd. 1 (2012). 

The state provided notice that it intended to offer evidence of two Spreigl

incidents that Harper had previously committed with J.H. The state indicated that it 

would offer the evidence to show identity, common scheme or plan, and to provide 

context for the charged offense. One of the Spreigl incidents occurred while Harper was 

a juvenile. The other occurred in 2010, when Harper was an adult, and involved a

burglary. Harper moved the district court to preclude the state from introducing the 

evidence, arguing that it was not admissible because both of the Spreigl incidents were 

irrelevant and unduly prejudicial. 

The district court excluded the juvenile incident but admitted evidence of the 2010 

burglary. The district court stated that it would limit the evidence to the fact that Harper 

and J.H. had committed a previous offense together “and not necessarily that it was a 

burglary or any particular details of the offense.” With that limitation, the district court 

found that the evidence was relevant and material and that the probative value was not 

outweighed by the potential for unfair prejudice. The parties stipulated that in 2010, 

Harper and J.H., “acting together, entered a business without permission . . . and stole 

property.” After the state rested its case-in-chief, the district court provided a standard 
4

cautionary instruction to the jury and then read the stipulation to the jury. The district 

court read the cautionary instruction to the jury again before deliberations began.

Harper testified at trial that he did not commit the robbery but that he met J.H. the 

evening of the robbery because J.H. owed him money. Harper stated that J.H. paid him 

by giving him five packs of Newport cigarettes, Metro Transit bus cards, and $45, 

including two two-dollar bills. Harper then testified that he and J.H. were walking to the 

bus stop when the police stopped them, searched them, and discovered the evidence 

linking Harper and J.H. to the robbery. 

During the closing and rebuttal arguments, the prosecutor referred to Harper’s 

history with J.H. multiple times. Harper’s counsel moved for surrebuttal, arguing that the 

prosecutor committed misconduct by discussing how Harper had acted in conformity 

with his criminal character. The district court denied the motion for surrebuttal. The jury 

found Harper guilty of aiding and abetting aggravated robbery in the first degree. The 

district court subsequently sentenced Harper to 68 months in prison. Harper now appeals

his conviction.

D E C I S I O N

I.

Evidence of other crimes, wrongs, or acts, also known as Spreigl evidence, “is not 

admissible to prove the character of a person in order to show action in conformity 

therewith,” but it may “be admissible for other purposes, such as proof of motive, 

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

accident.” Minn. R. Evid. 404(b); State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015); 
5

State v. Spreigl, 272 Minn. 488, 490-91, 139 N.W.2d 167, 169 (1965). We review a 

district court’s decision to admit Spreigl evidence for an abuse of discretion. State v. 

Ness, 707 N.W.2d 676, 685 (Minn. 2006). 

District courts follow a five-step process when determining the admissibility of 

Spreigl evidence:

(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 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.

Id. at 686.

Here, it is undisputed that the state satisfied the first three factors, but Harper

argues that the state failed to meet the fourth and fifth factors because the evidence is 

irrelevant and any probative value is outweighed by the danger of unfair prejudice. The 

district court admitted the Spreigl evidence of Harper’s 2010 burglary, stating: 

It is relevant and material to . . . the identification of joint 

actors. The probative value is not outweighed by the 

potential of unfair prejudice because of the fact that I would 

give a cautionary instruction at the time right before the 

evidence was admitted and as well in the final instruction. . . . 

I think the fact that they committed an offense together is the 

important relevant information. And so I’m going to limit the 

evidence to the fact that offenses were committed together 

and not necessarily that it was a burglary or any particular 

details of the offense. 
6

Relevance and Materiality

In determining the relevance of Spreigl evidence, the district court should “focus 

on the closeness of the relationship between the other crimes and the charged crimes in 

terms of time, place and modus operandi.” State v. Wermerskirchen, 497 N.W.2d 235, 

240 (Minn. 1993) (citation omitted). “[T]he closer the relationship, the greater is the 

relevance or probative value of the evidence and the lesser is the likelihood that the 

evidence will be used for an improper purpose.” Id.

Here, the district court found that the 2010 burglary, which Harper and J.H. had 

committed together, was relevant to prove “the identification of joint actors.” The jury 

heard the Spreigl evidence through a stipulation that was agreed upon by the parties. The 

stipulation stated: “On August 17th, 2010, in the City of Minneapolis, Hennepin County, 

Tyrone Bill Harper and [J.H.] acted together, entered a business without permission, and 

while inside stole property that did not belong to them. You must not speculate as to the 

other circumstances of the offense.” 

Other crimes committed by a defendant with an accomplice may be relevant to 

prove involvement with the accomplice in the charged offense. See State v. Clark, 755 

N.W.2d 241, 261 (Minn. 2008) (concluding that Spreigl evidence of a prior bank robbery 

was admissible in the appellant’s aiding and abetting first-degree-murder trial “for the 

limited purposes of showing absence of mistake or identity as joint actors”); State v. 

Nelson, 632 N.W.2d 193, 204 (Minn. 2001) (concluding that Spreigl evidence of two 

prior armed robberies was relevant in the appellant’s aiding and abetting first-degreemurder trial to show that the appellant and his accomplice “worked together closely to 
7

coordinate their criminal activity”). Here, Harper argues that the evidence is not relevant 

because the 2010 burglary is dissimilar to the charged offense as to time and manner. 

Harper argues that the burglary is too remote to be relevant because it occurred 

two and one-half years before the charged offense. But the Minnesota Supreme Court 

has declined “to adopt a bright-line rule for determining when a prior bad act [becomes] 

too remote” and has affirmed the admission of 19-year-old prior bad acts. State v. 

Washington, 693 N.W.2d 195, 201-03 (Minn. 2005). And this court has affirmed the 

admission of Spreigl evidence of an “aggravated robbery in which a handgun and an 

accomplice were involved” because “the crimes were separated by only two and one-half 

years and the modus operandi was similar.” State v. Rodriguez Torres, 400 N.W.2d 802, 

804 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Therefore, the fact that 

the Spreigl incident occurred two and one-half years prior to the charged offense does not 

necessitate a finding that it is too remote to be relevant.

Harper also argues that the 2010 burglary is irrelevant because it is factually 

distinguishable from the charged offense. Harper argues that the Spreigl incident is 

dissimilar to the charged offense because it occurred in the middle of the night when the 

business was closed, involved a theft of a television, and did not involve a weapon. The 

state argues that the similarities between the prior act and the charged offense outweigh 

the dissimilarities. The similarities include that Harper and J.H.: identified a business in 

Minneapolis; acted at night; acted together; and stole property. Because “[a]bsolute 

similarity between the charged offense and the Spreigl incident is not required to 

establish relevancy,” State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992), we conclude that 
8

the district court did not abuse its discretion by finding that the Spreigl evidence was 

relevant and material to the state’s case.

Probative Value Versus Potential Prejudice

In determining whether the evidence’s probative value outweighs its potential for 

unfair prejudice, we balance the evidence’s relevance and “the [s]tate’s need to 

strengthen weak or inadequate proof” against the risk of use as propensity evidence. 

State v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009). “When identity is at issue, 

evidence of other crimes is admissible only if the [district] court finds the direct or 

circumstantial evidence of defendant’s identity is otherwise weak or inadequate, and that 

it is necessary to support the state’s burden of proof.” State v. Lynch, 590 N.W.2d 75, 81 

(Minn. 1999). “It should be excluded where it is merely cumulative and a subterfuge for 

impugning defendant’s character or for indicating to the jury that he is a proper candidate 

for punishment.” Id. (quotation omitted). The district court should make “[t]he final 

determination of the strength of the state’s case . . . after the state has presented all of its 

non-Spreigl evidence.” State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998).

Here, the district court did not engage in an analysis of “the state’s need” and 

simply determined before trial that the evidence would not be unduly prejudicial because 

the jury would receive a cautionary instruction. The better practice would have been for 

the district court to reserve its ruling on the probative value of the Spreigl evidence until 

the rest of the state’s case-in-chief was presented. See id. But Harper’s defense theory 

was that he innocently connected with J.H. after J.H. committed the robbery, which made 

identity of joint actors a central issue at trial. To rebut Harper’s defense theory and to 
9

prove the elements of the crime beyond a reasonable doubt, the state needed to 

demonstrate that Harper and J.H. acted jointly. Therefore, the Spreigl evidence of the 

2010 burglary was necessary for the state to prove identity—that is, to prove that Harper

was the masked gunman. 

District courts reduce the risk of prejudice to a defendant by limiting the number 

of Spreigl incidents and the kind of facts included in the Spreigl evidence. Washington, 

693 N.W.2d at 203 (ruling that the district court “properly guarded against admitting 

evidence that was unnecessary” and unfairly prejudicial by “limiting the number of 

Spreigl incidents” and by limiting the testimony to only relevant facts). Here, the district 

court appropriately considered and then limited the number of Spreigl incidents by not 

admitting evidence of Harper’s juvenile Spreigl incident and restricting the facts admitted 

regarding the 2010 burglary, stating, “I’m going to limit the evidence to the fact that 

offenses were committed together and not necessarily that it was a burglary or any 

particular details of the offense.” Appellant argues that the district court abused its 

discretion by allowing the parties’ stipulation to include some of the particular details of 

the burglary. But the parties agreed on which facts to include in the stipulation, and 

nothing in the record indicates that Harper’s counsel could not have sought a more 

“sanitized” version of the evidence prior to trial. The fact that the district court did not 

reject the parties’ agreed-upon stipulation does not amount to an abuse of discretion

because the district court carefully analyzed the Spreigl-evidence issue and instructed the 

parties to limit the facts so as to limit the prejudicial effect.
10

In addition, cautionary instructions lessen “the probability of undue weight being 

given by the jury to the evidence.” Kennedy, 585 N.W.2d at 392. Therefore, the district 

court reduced the potential for prejudice by reading cautionary instructions regarding the 

proper use of the evidence to the jury once before it read the stipulation and once again 

before the jury started deliberating. We conclude that the district court did not abuse its 

discretion by admitting the Spreigl evidence.

II.

Appellant objected to the prosecutor’s closing arguments on the ground that they 

encouraged the jury to conclude that appellant acted in conformity with his 2010 bad act 

and moved the district court for surrebuttal. The district court denied the motion. We 

review objected-to claims of prosecutorial misconduct under the two-tier harmless-error 

test. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). We “first address whether there 

was misconduct, and if so, whether it entitles [Harper] to a new trial.” State v. Wren, 738 

N.W.2d 378, 390 (Minn. 2007). A prosecutor commits misconduct “by means of 

insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in 

the existence of evidence which is otherwise inadmissible.” State ex rel. Black v. Tahash, 

280 Minn. 155, 157, 158 N.W.2d 504, 506 (1968). “There is nothing inappropriate, of 

course, about referring to properly admitted Spreigl evidence in a closing argument. But 

such evidence may not be used as a means to attack the defendant’s character or to 

establish a criminal propensity.” State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 

2000), review denied (Minn. May 16, 2000). 

Here, in relevant part, the prosecutor stated in closing argument: 
11

This Defendant and [J.H.] planned on going into that 

convenience store, robbing it, and splitting the proceeds. It is 

as simple as that. These two guys have known each other for 

11 years. Back in 2010 they had no problem with getting 

together, going into a business and stealing something. But 

this time around Mr. Harper wants you to believe that he 

didn’t do it. 

And on rebuttal, the prosecutor stated:

[T]his is about identity. . . . 

. . . [Harper] cannot escape the fact that he has a 

history with [J.H.] . . . . [I]t’s almost like they knew each 

other for a long time and that they knew how to do this thing 

and they discussed it beforehand like two people who have 

known each other for 11 years and who are already willing, 

able and have engaged in stealing before. . . . 

. . . You cannot ignore the history. You cannot ignore 

the hazel eyes.

The other thing that you can’t ignore is the black 

Carhartt jacket. Another fact that just stacks upon everything 

else.

Harper’s counsel objected by asking for surrebuttal, arguing that the prosecutor’s 

statements in both closing argument and on rebuttal that “they did it then, they did it 

now” were misconduct because the prosecutor used the Spreigl evidence “to prove the 

character of the Defendant or that the Defendant acted in conformity with such 

character.” The district court denied the motion. 

Identity was the central issue at trial, and the district court admitted the Spreigl

evidence to prove the identity of joint actors. Harper argues that the prosecutor did not 

confine the use of the Spreigl evidence to show identity or the accomplice relationship 

but instead “framed his entire closing argument around the assertion that Harper’s claim 
12

of innocence was not believable because he and [J.H.] had stolen from a business 

before.” But our review of the prosecutor’s closing arguments as a whole indicates that 

the prosecutor walked through each element of aggravated robbery—(1) theft, (2) with 

threat of force, (3) with a dangerous weapon, (4) in Hennepin County on February 1, 

2013—and then the prosecutor explained, “I am not going to harp on these elements 

because you heard all the testimony from the witnesses, and in fact by now you gather 

what is going to be the real issue in this case, is how do you know that it is this 

Defendant, Mr. Harper.” The prosecutor then explained that because the robbers were 

wearing masks, the identity of Harper “is proved by circumstantial evidence.” Therefore,

the prosecutor’s closing argument as a whole focused on the issue of identity and all of 

the circumstantial evidence that proved that Harper was the masked gunman. 

Throughout his closing argument, the prosecutor laid out the circumstantial 

evidence of identity: the gunman’s hazel eyes; the Carhartt jacket; the two black masks; 

the store clerk’s cell phone; the Metro Transit bus passes; the five packs of Newport 

cigarettes; Harper and J.H. each had roughly $250 on them, including three two-dollar 

bills; Harper and J.H. had a history, including their “willing[ness] to engage in crimes 

together”; and Harper and J.H. were together when they were apprehended. The 

prosecutor did not commit misconduct by relying on Harper’s criminal history with J.H. 

as one piece of circumstantial evidence to argue that all of the evidence combined proved 

that Harper aided and abetted the charged offense. We conclude that the district court 

acted within its discretion by denying appellant’s motion for surrebuttal.

Affirmed.