This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A15 - 0821 State of Minnesota, Respondent

vs. James Lamar Davis, Appellant. Filed May 31, 2016 Affirmed Ross , Judge Reyes, Judge, dissenting Hennepin County District Court File No. 27

- CR

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- 11916 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes , Presiding Judge; Ross , Judge; and Smith, Tracy , Judge

.2 U N P U B L I S H E D O P I N I O N ROSS , Judge A jury heard evidence that James Davis is a member of a Minneapolis street gang and that he , accompanied by two of his gang allies , confronted and shot two men affiliated with a rival gang. The jury found Davis guilty of two counts of attempted intentional second

- degree murder for the benefit of a gang . Davis argues o n appeal that we should overturn his conviction on four grounds: (1) the district court should not have admitted evidence of his prior bad acts ; (2) the properly admitted evidence is insufficient to establish beyond a reasonable doubt that he shot the two victims , that he intended to cause their deaths, or that his conduct toward one of them was intended to benefit a gang; ( 3 ) the district court failed to instruct the jury on accomplice testimony; and (4) the prosecutor made statements that constitute misconduct. We hold that the district court did not abuse its discretion either by admitting the bad

- acts evidence or in its jury instructions, that the evidence supports each element of Davis’s conviction, and to the extent the prosecutor ’s statements crossed the line, they did not affect Davis’s substantial rights because they did not influence the verdict. FACTS K.W. and C.B. left their jobs at Target Field at about 3:00 on an April 2014 morning , and they encountered three men outside . The three men had been waiting. They wore hooded sweatshirts with the hoods partially obscuring their faces . One of the men drew a handgun and fired multiple shots, striking K.W. in the abdomen and C.B. in the spine, paralyz ing him.3

K.W. , a former member of the “ Taliban ” street gang , later told police that the shooter was James Davis, a member of the “1

- 9s” street gang . The 1

- 9s gang rivaled the Taliban gang in “wild, wild west” fashion. As K.W. described it, “We’re ki lling each other.” K.W. also identified Davis from a photo array, and he named another man, J.M.,

as having be en another of the three hooded attackers. The state charged Davis and J.M. with two counts of second

- degree attempted murder for the benefit of a gang. The district court severed the cases to try the two men separately. This appeal concerns only Davis ’s case

. The shooter’s identity was the primary question at Davis’s trial. The state announced its intent to offer prior

- bad

- acts ( Spreigl ) evidence th at Davis was the shooter in a previous
gang - related retaliatory shooting that occurred in 2010 beside Lake Calhoun, where Davis allegedly shot and killed a different Taliban gang member while K.W. stood beside the victim. At the time of Davis ’ s trial, Davis had not been charged in that shooting. The district court conducted a hearing after which it decided that clear and convincing evidence established that Davis participated in the Lake Calhoun shooting. Se rge a nt Gerry Wallerich testified that Davis is a known member o f the 1

- 9 s gang and that K.W. wa s a member of the rival Taliban gang . The sergeant detailed the 2010 Lake Calhoun shooting and testified that , two years after that shooting , N.P. (who was an eyewitness to the shooting) identified Davis “as a party that looked similar , especially with the nose and other characteristics” to the shooter

. He said additionally that K.J. overheard Davis confess to the shooting. And h e testified that Davis told him that he had his cellular tele phone with him the night of the shooting, and c e ll

- tower data established that Davis’s4

phone was “right next to the murder scene.” Sergeant Wallerich said that M.M., a 1

- 9 gang member and known gang associate , told hi m that Davis had admitted to the Lake Calhoun shooting , and another 1

- 9 gang member, D.H., said the sho o tin g was to r etaliat e for a prior shooting that D.M., the Lake Calhoun victim , was involved in

. K.W. testified at trial , retreating from his post

- shooting identification of Davis as the Target F ield shooter. He said that although he had initially told police that Davis was the shooter , he believes he w as unable to see faces

. He claimed that his identification of Davis as the shooter had resulted from be ing told that J.M. was one of the attackers and that Davis was the shooter. A police officer testified that Davis is known by police as having a document ed history associating with 1

- 9 gang members. The jury heard the testimony of various other witnesses, and it found Davis guilty as charged. The district court sentenced Davis to serve consecutive prison terms of 186 months and 153 months

. Davis appeals his conviction

. D E C I S I O N Davis challenges his conviction by contending that the district court should not have admitted evidence of the Lake Calhoun shooting. He maintains that the remaining evidence is insufficient to support the finding that he shot the two gunshot victims outside Target F ield , that he intended to kill them, or that the shooting was intended to benefit a gang . He argues also that the conviction is infirm because the district court failed to instruct th e jury about accomplice testimony and that the prosecutor made improper statements that require reversal

. We address each argument.5 I We first consider Davis’s argument that the district court improperly allowed the state to inform the jury that Davis was involved in the Lake Calhoun shooting. The district court may allow this type of prior

- bad

- acts evidence to show motive , intent, kno wledge, identity, absence of mistake or accident, or a common scheme or plan . Minn. R. Evid. 404(b). We review t he district court’ s decision to admit this evidence, often referred to as Spreigl evidence , for an abuse of discretion

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

. The district court may admit Spreigl evidence if five elements are met : (1) t he state has given the defendant notice; (2) the state clearly indicate s what the evidence is being offered to prove; (3) clear and convincing evidence e stablishes 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 is not ou tweighed by its potential unfair prejudice. Angus v. State , 695 N.W.2d 109, 119 (Minn. 2005). Davis focuses on th e third and fifth elements, arguing that clear and convincing evidence did not show that he was the Lake Calhoun shooter and that the probative value of the evidence does not outweigh the resulting improper prejudice. Clear and Convincing Evidence that Da vis Was the Lake Calhoun Shooter The district court was satisfied that clear and convincing evidence proves that Davis was the Lake Calhoun shooter, and we see no fault in the conclusion. The district court is in the best position to weigh the competing evidence. Cf. State v. Kennedy , 585 N.W.2d 385, 392 (Minn. 1998) (noting the district court’s “ discretion [in] first weighing the evidence ” to a ssess the strength of the state ’ s case when balancing prejudice and6

“ determining whether the Spreigl evidence should be admitted”) , modified by Ness , 707 N.W.2d 676

. Some of the evidence that supports the district court’s finding includes the following: e yewitness N.P. identified Davis “as a party that looked similar, especially with the nose and other characteristics” to the sho oter; M.M. “told [police] who the two shooters were in the murder,” specifically, “Javon [James] Davis and [D.W.],” after M.M. got a “[d]irect confession from both of them . . . a few hours after the murder” ; cellular phone records corroborated that Davis was present at the community center where M.M. says that Davis and D.W. confessed to the murder; Davis revealed that he had been previously shot by a Taliban gang member; the Taliban gang member who assisted in shooting Davis was the man shot and killed at Lake Calhoun; D avis acknowledged that he was carrying his cell phone t he day of the Lake Calhoun shooting and technical records place Davis’s phone at the scene of th at shooting ; based on the cell

- phone data, Davis ’s claim that he was in another part of the city at the t ime of the shooting was false ; contemporaneous with the Lake Calhoun shooting, imprisoned 1

- 9 members were calling Davis from prison ; Davis laughingly told a 1

- 9 gang member that investigating police did not know what was going

on . The inculpatory testimony included evidence of Davis’s confession, and it is true that th e evidence arrived second

- hand. But Davis does not contend that the Spreigl hearsay testimony was not admissible for the purposes of the Spreigl decision ; he argues on ly that it was not persuasive enough to amount to clear and convincing evidence

. The argument overlooks the district court’s broad discretion at the Spreigl hearing to decide whether to requir e eyewitnesses to t estify about the Lake Calhoun shooting and a bout Davis’s7

admission to that shooting

. Cf. S tate v. Kasper , 409 N.W.2d 846, 847 (Minn. 1987) ( faulting court of appeals and holding that trial court at Spreigl hearing had broad discretion
to decid e whether or not to require state to call Spreigl witnesses or instead to rely on prosecutor’s offer of proof ). Although the Spreigl testimony about the confession was hearsay , it was admitted as hearsay because D avis agreed through his counsel that the state could present the evidence th at way, volunteering, “I don’t think that’s unreasonable.” And

we disagree with Davis’s implication that hearsay testimony is , by its nature, insufficient
to prove an asserted fact clearly and convinc ingly . The unobjected

- to hearsay testimony here , which the district court weighed , establishe d both that Davis contemporaneously confessed to being one of two Lake Calhoun shooter s and that he lied to police by claiming he had been in a different, distant part of the city during the shooting

. As the district court explained to Davis’s attorney after the trial , “But the bottom line is, for whatever reason, you chose to let the Spreigl evidence come in the way you let it come in [as hearsa y testimon y], and, based on the testimony . . . ther e was clear and convincing evidence . . . to link your client to that incident.” A shooter’s confession and his false alibi are clear and convincing evidence of his participation , and the additional evidence simply girds that determination

. The dissent begins and ends its disagreement with our holding as to the clear and convincing quality of the state’s Spreigl

- hearing evidence by relying on State v. Kasper , 409 N.W.2d at 847 , for the proposition that “[t] he state overstated the strength of its evidence connecting Davis to the Lake Calhoun shooting at the Spreigl hearing. ” The dissent accurately quotes the Kasper court as stating that “the trial court and the appellate8

courts are always free to grant r elief, when appropriate , if the evidence adduced was not what the prosecutor led the trial court to expect.” (Emphasis added.) But it overlooks the phrase “ when appropriate” and therefore misses the critical procedural hook here

. I t is not “appropriate” to grant relief to an appellant on an issue and argument tha t the appellant never raised. “ A reviewing court must generally consider onl y those issues that the record shows were presented [to] and considered by the trial court.” Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). It is therefore not “ appropriate ” t o consider the relief here , if Davis never made the offer

- of

- proof argument to the district court. There Davis argued only that “[t]he evidence presented by the State to the Court in support of its motion for admission of Spreigl evidence . . . was . . . flawed and . . . not accurate.” He argued that the hearsay evidence implicating Davis as the Lake Calhoun shooter was flawed and inaccurate not because the state failed to make good on the offer of proof , but because other evidence

— like statements made by the hearsay declarants

— purported ly indicat ed that someone other than Davis was the second shooter . Davis argued the point through counsel : “My . . . ultimate point about that is that it was clear the crime had been solved, the shooting at Lake Calhoun, because [a different person] was ar rested in Chicago with the murder weapon. . . . I think it was equally clear based on the MPD’s investigation that they had concluded that [T.W.] was a second shooter.” Davis was argu ing only that the evidence was not clear and convincing. We observe that the district court did interchangeably refer to the sergeant’s testimony as “evidence” and as an “offer of proof.” But we see that Davis n ever made the Kasper argument that the dissent makes, and , despite the district court’s use of the offer

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of

- proof phrase, it never analyzed Davis’s argument as if he had made the Kasper argument
. In dependently dispositive, even if Davis made the Kasper offer

- of

- proof argument in the district court , he has not made it in this court
. “In general, issues not raised in the parties ’ briefs are waived.” State v. Hurd , 763 N.W.2d 17, 32 (Minn. 2009) ; see also Brocks v. State , 753 N.W.2d 672, 675 n.3 (Minn. 2008) (“Failure to brief or argue an issue on appeal results in waiver of that issue on appeal. ”). It is not enough to merely “allude” to issues or arguments; an appellant’s failure to “address them in the argument portion of his brief” constitute s waiver

. McKenzie v. State , 583 N.W.2d 744, 746 n. 1 (Minn. 1998 ). The Kasper case appears first (and only) in the di ssenting opinion , and Davis’s brief never mentions the term “offer of proof

. ” We therefore do not address the argument ’s merits

. 1 Balancing P

robative V

alue Against P

rejudice Both t he probative value of the evidence that Davis was one of two or more Lake Calhoun shooters , and the prejudicial weight of the same evidence, are readily apparent. As to its probative value, t he evidence tends to show motive and a common scheme or plan

. S pecifically, it reveals the eye

- for

- eye, life

- for

- life, retaliatory exchange s between the rival gangs and specifically involving Davis. But as to its prejudicial nature, the evidence risks inviting a conviction based on Davis’s bad character or prior conduct rather than on the evidence of the present charges

.

1 Similarly, neither party has raised Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354 (2004) , in relation to the hearsay statements, and our decision therefore assumes without discussion that Crawford does not apply here.10

The su preme court ha s held that “ the closer the relationship between the other acts and the charged offense, in terms of time, place, or modus operandi, the greater the relevance and probative value of the other

- acts evidence and the lesser the likelihood that the evidence wi ll be used for an improper purpose .” Ness , 707 N.W.2d at 688. We see an obviously close relationship between the Lake Calhoun shooting and the Target Field shooting. B oth crimes involve the rival Minneapolis gang members shooting it out . Both involve a group of assailants lying in wait to attack the enemy unexpectedly. And both include a tit

- for

- tat rationale

. The district court attempted to prevent unfair prejudice by ordering that the state describe the Spreigl incident only as a “shooting,” not a “murder.” It also reminded the jury that Davis was on trial only in the Target Field shooting, not the Lake Calhoun shooting. The prosecutor added to the caution by telling jurors not to use the Spreigl evide nce to convict Davis of any other crime. These precautions satisfy us that the evidence was not unduly prejudicial in relationship to its more weighty probative value. II We turn to Davis’s contention that the evidence was insufficient to support the guilty verdict. We review a challenge to the sufficiency of the evidence by looking to the record to determine whether the evidence, v iewed in the light most favorable to the c onviction, supports the jury ’s verdict of guilty beyond a reasonable doubt. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). A defendant is guilty of second

- degree murder when he “causes the death of a human being with intent to effect the death of that pe rson or another, but without premeditation.” Minn. Stat. § 609.19, subd. 1(1) (2012) . The crime is more serious11

if the defendant committed the murder “ for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members .” Minn. Stat. § 609.229 , subd s . 2

– 3 (2012). Davis maintains that the evidence fails to establish that he shot K.W. and C .B., that he intended to cause their deaths , and that his action toward C.B. w as intended to benefit a
gang. Each argument fails. Evidence of Davis’s Identity as the Target Field Shooter We reject Davis’s argument that the evidence fails to allow the jury to find that he was the Target Field shooter. K.W. identified him as the shooter. He did so when police interviewed him and again when he picked Davis out of a photographic array within days after the shooting. We understand that K.W. recant ed at trial, asserting that when he identified Davis he had been merely parroting what others had told him. But the jury weighed the credibility of K.W.’s police statement against his retraction, and it is not our prerogative to dismiss their assessment
. As to his retraction, the jury was advised of t he “wild, wil d west” warfare between the 1

- 9s and the Taliban, so we doubt the jury had any trouble reasoning why K.W. would identify Davis and then why he might later back away from that identification. The jury also heard from J.M. , who testified that Davis admitt ed to the Target Field shooting. Although Davis offered some exculpatory evidence, we assume from the jury’s verdict that the jurors did not believe it. The evidence that favors the conviction was sufficient to prove that Davis shot K.W. and C .B.12

Evidence tha t Davis Intended to Kill K.W. and C.B. We likewise reject Davis’s argument that the evidence failed to prove that he intended to kill K.W. and C.B. Intent may be, and usually is, inferred from the circumstances. See, e.g. , State v. Thompson , 544 N.W.2d 8, 11

– 12 (Minn. 1996) ( holding that jury could infer intent to kill from the way the d efendant shot the victim); State v. Harris , 405 N.W.2d 224, 229 (Minn. 1987) ( holding that jury’s finding of intent to kill was supported when defendant shot the victim in hea d at close range). J urors learned that K.W. and C.B. left their jobs at Target Field and were walking together when Davis approached them and, at close range, fired his handgun several times in their direction. He rendered no aid to either man and did not sum mon emergency medical assistance to tend to their gunshot wounds. This is enough for the jury to find that Davis intended to kill the two men. Evidence that Davis Committed the Atte mp ted Murder to Benefit a Gang Davis argues that the state did not prove that his s hooting of C.B. was for the benefit of a gang. He maintains that no evidence establishes that C.B. was even a gang member or that shooting him promotes gang business. We can assume that Davis was targeting only K.W. and that he struck C.B. recklessly. This does not help his cause. The supreme court recently observed without further comment that shooting untargeted bystanders during
gang violence may establish a crime committed for the benefit of a gang

. State v. Thao , 875 N.W.2d 834 (Mi nn. 2016) ; see also State v. Caldwell , 803 N.W.2d 373, 379, 384 (Minn. 2011) ( raising no concern with b enefit

- of

- a - gang conviction when victim w a s bystander)

. The evidence of the hostility and retaliatory violence between the rival gangs generally,13

and as perpetrated by Davis specifically, is adequate to establish the gang

- benefit element of Davis’s murder convicti on. III Davis argues that because “ [ J.M. ] was an accomplice” the district court committed reversible error by failing to instruct the jury on accomplice testimony. Davis did not object to the instructions given, and so we review only for plain error. State v. Vance , 734 N.W.2d 650, 655 (Minn. 2007), overruled on other grounds by State v. Fleck , 810 N.W.2d 303 (Minn. 2012). We will reverse based on a plain error only if the error is plain, the error affected the defendant’s substantial rights, and only “if th e fairness, integrity, or public reputation of the judicial proceeding is seriously affected” by the error. State v. Jones , 678 N.W.2d 1, 17

– 18 (Minn. 2004). Whether or not failing to give the instruction was a plain error, we are confident that the error d id not affect Davis’s substantial rights or implicate fairness, integrity, or the reputation of the proceeding. Davis maintained at trial not only that he was innocent, but that J. M . was innocent. Davis’s counsel urged the jury, “[J.M.] is just as innocent of this crime as Mr. Davis,” and “ [ J. M

. ] has nothing to do with this crime.” Counsel insisted , “The fact [J. M .] was dismissed certainly makes sense.” Davis’s appe llate counsel takes the contrary position, insisting, “It is clear that [J.M.] was an acco mplice to the offense.” An accomplice instruction would have contradicted Davis ’s defense theory, implying a fact that Davis denied. It is true that, “[a]s a rule, trial courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice.” State v. Strommen , 648 N.W.2d 681, 68914

(Minn. 2002). But unlike in Strommen , whe re “ there was no question that Townsend was an accomplice ,” id ., here there was subst antial question, urged by Davis, whether J.M. was an accomplice. We will not reverse based on the alleged instructional error here. IV Davis maintains that the prosecutor engage d in reversible misconduct based on conduct to which Davis did not object. Again, the standard on review is plain error. State v. Carri dine , 812 N.W.2d 130, 146 (Minn. 2012). If Davis points to a plain error , the burd en shifts to the state to show that “there is no reasonable likelihood that the absence of the misconduct

. . . would have had a significant effect on the verdict of the jury.” State v. Ramey , 721 N.W.2d 294 , 302 (Minn. 2006) (quot ation omitted)

. For the followin g reasons, we conclude that to the extent the prosecutor engaged in misconduct, the misconduct did not cause the verdict. Facts N ot in E vidence Davis maintains th at the prosecutor’s comments regarding C.B. being shot in the spine during opening and closing arguments was misconduct because it referenced facts not in evidence. P arties are allowed to “ argue reasonable inferences from the facts presented at trial. ” State v. Young , 710 N.W.2d 272, 28 0 (Minn. 2006). Th e video recording of K.W.’s testimony , which was presented to the jury, discusses C.B.’s physical injury and offers that “he might not walk again.” K.W. testified that C.B. is not walking and is confined to a wheelchair. The difference between the evidence presented and the prosecutor’s statement describing the shot as having entered C.B.’s spine is negligible. In15

any event, a reasonable jury would have inferred that detail from the evidence

. We see no mis conduct here. Closing Argument Davis a rgues that the prosec utor committed misconduct in his closing argument

. He has a point. It is true that “ t he prosecutor and the defense have considerable latitude in closing argument, for neither is required to mak e a colorless argument.” State v. Smith , 541 N.W.2d 584, 589 (Minn. 1996). But we agree with Davis that the prosecutor went beyond a properly colorful argument by stating , “This case isn ’ t worth that much to me. Whatever you do, I ’ m sure I ’ ll see Mr. Davis again

. ” Davis also complains that the prosecutor said that t he 2010 shooting is a crime “ that the [ d ] efendant hasn’t been charged with yet
. ” Davis fails to put the primary statement in its context. The prosecutor made th os e remarks specifically responding to Davis’s trial counsel’s allegation that the prosecutor had offered J.M. an underhanded deal to testify against Davis . The prosecutor more fully stated as follows : If I pulled some stunt like that, if I cut an under

- the

- table deal

with some defendan t to suborn perjury, I would ha ve effectively ended my career. This case isn ’ t worth that much to me. Whatever you do, I ’ m sure I ’ ll see Mr. Davis again. That didn ’ t happen. And the other thing, you ’ ll recall, you ’ re supposed to render a verdict based on evidence. What evidence do you have that there ’ s some shady underhanded deal? The Judge had to order him to testify. The prosecutor here was responding to Davis’s counsel’s accusation that he had acted unfairly, implying that he had taken excessive meas ures to secure a conviction against Davis. In context, the first part of the challenged statement, “ This case isn ’ t worth that16

much to me , ” would likely be taken to mean that Davis’s case is not so essent ial to the prosecutor that he would use unfair means to obtain a conviction. The problem, however, is with the second part , “ Whatever you do, I ’ m sure I ’ ll see Mr. Davis again .” In the best light, the statement again indicates that the prosecutor is not pr eoccupied with obtaining a conviction. But even in that favorable light, the unstated premise abandons the prosecutor’s duty not to invite a conviction on anything other than a fair review of the evidence. The implied premise is th e prosecutor’s reason for not being preoccupied with a conviction in this case : that is, even without a conviction, Davis is such a habitual offender that he will likely offend again. I ntentionally or not, this implied premise tends to suggest to the jurors that , unless they convict, Da vis will commit more crime. While the prosecutor has latitude to respond to the defendant’s arguments, State v. Jackson , 773 N.W.2d 111, 123 (Minn. 2009) , he may not make comments that inflame the passions of jurors or make “predictions of the consequen ces of the jury’s verdict.” State v. Salitros , 499 N.W.2d 815, 817 (Minn. 1993) . The prosecutor’s statement was plain error. It therefore puts the burden on the state to establish that there is no reasonable likelihood that the result would have been dif ferent but for the misconduct

. The state meets that burden here. The prejudice that results from the statement is in significant co m pared to the substantial evidence of Davis’s guilt . This includes, among other things , the eyewitness victim identification of Da vis as the Target Field shooter, the account of Davis admitting he was the Target Field shooter, and the similarit ies between the charged Target Field attack and Davis’s Lake Calhoun attack. We are convinced that17

there is no reasonable likelihood that the outcome would have been different but for the prosecutor’s inflammatory comment

. We are less troubled by the prosecutor’s statement that the 2010 shooting is a crime

“ that the [ d ] efendant hasn’t been charged with yet ,” given the context and evidence . The jur y had heard evidence that Davis was identified as the Lake Calhoun shooter and o ther evidence tying Davis to th at shooting. B y clarifying that Davis had not yet been charged with that crime , the prosecutor r emind ed the jury that it shoul d avoid any temptation to

c onvict Davis for the uncharged offense

. We have held that when “a reference to a defendant ’ s prior record is of a passing nature,

. . . a new trial is not warranted because it is extremely unlikely that the [challenged reference] p layed a significant role in persuading the jury to convict.” State v. Clark , 486 N.W.2d 166, 170 (Minn. App. 1992) (quotations omitted)

. The prosecutor’s statement regarding the Lake Calhoun shooting was of a passing nature and did not play a significan t role in the trial. W e conclude that Davis was not denied a fair trial. Affirmed.R EYES , Judge (dissenting)

I respectfully dissent. The district court abused its discretion in admitting Spreigl evidence of Davis ’ s other crimes that were not proven by clear and convincing evidence at the Sprei gl hearing

. In addition, t he state ’ s production of one uncertain eyewitness and hearsay statements at trial to establish that Davis aided and abetted the attempted murder of K.W. at Lake Calhoun in 2010 did not conform to its offer of proof and was “ simply too incomplete. ” State v. Link , 289 N.W.2d 102, 106 (Minn. 1979) (quotation omitted)

. Because the erroneous admission of the other

- crimes evidence was not harmless , I would reverse and remand for a new trial. I. The state ’ s Spreigl evidence did not rise to the level of clear and convincing. Though sometimes admissible, other

- crimes evidence , often referred to as Spreigl evidence, is disfavored because it is “potentially oppressive,” State v. Spreigl , 272 Minn. 488, 494, 139 N.W.2d 167, 171 (1965), and creates a risk that the jury will “convict[] a defendant for crimes with which he is not charged.” State v. Billstrom , 276 Minn. 174, 177, 149 N.W.2d 281, 284 (1967). The “overarching concern” is that the evidence will be used for an improper purpose , “such as suggesting that the defendant has a propensity to commit a crime.” State v. Washington , 693 N.W.2d 195, 200 (Minn. 2005). Appellate courts have expressed a strong dislike for Spreigl evidence, Link , 289 N.W.2d at 105, and have encouraged trial courts to be “vigilant in observing the safeguards” provided in Minn. R. Evid. 404(b) to protect against “the risk of unfair prejudice.” State v. DeWald , 464 N.W.2d 500, 505 (Minn. 1991). It is the trial court’s obligation to “determine that there isD

- 2

cl ear and convincing evidence” of a defendant’s involvement in the crimes or other bad
act s . State v. Doughman , 384 N.W.2d 450, 454 (Minn. 1986) ( quotation omitted ). The Minnesota Supreme Court has stated: [T] he trial court has broad discretion in determining whether or not to require the state to call the Spreigl witnesses at the hearing to determine the admissibility of the Spreigl evidence.

. . . It is our understanding that most trial judges generally use the offer of proof procedure at the Spreigl hearing. We see nothing wrong with this or any reason for requiring a mini

- trial on the issue. The [c]ode of [p]rofessional [r] esponsibility helps to insure that prosecutors will not intentionally give an inacc urate statement of what the other

- crime evidence will be, and the trial court and the appellate courts are always free to grant relief, when appropriate, if the evidence adduced was not what the prosecutor led the trial court to expect

. State v. Kasper , 4 09 N.W.2d 846, 847 (Minn. 1987) (emphasis added)

. Here, the state ’ s evidence at trial was “ not what the prosecutor led the trial court to expect ” at the Spreigl hearing. Id. Notably, Davis was not arrested, charged , or convicted of any crime related to the Lake Calhoun shooting

. A s part of the state’s offer of proof a t the pretrial Spreigl hearing , only Sergeant Wallerich testified. The sergeant testified that an eyewitness, N.P., identified Davis from a photo lineup “ as a party that looked similar ”
to one of the Lake Calhoun shooters. The sergeant further testified that Davis confessed his involvement in the Lake Calhoun shooting to two witnesses and intimated his involvement to a third

. Finally, the sergeant discussed cell

- tower evidence placing Davis in the proximity of Lake Calhoun on the night of the shooting

. At trial, only N.P. and Sergeant Wallerich testified regarding the Lake Calhoun incident. N.P. testified that it was 10:00 p.m., the perpetrators came out from the bushesD

- 3

behind her, sh e did not see their faces, and she got only a “ glimpse ” of them in passing. Additionally , N.P. acknowledged that, immediately following the Lake Calhoun incident , she did not believe she could identify the perpetrator . Two years later, she identified Davis from a photo lineup because she “ recogniz ed some facial features. ” Cf. State v. Lindahl , 309 N.W.2d 763, 766 (Minn. 198 1 ) (noting eye witness “ positively identified defendant ” after spending five to six hours with him, providing “ a good opportunity to observe him ” ). Thus, N.P. ’ s identification of Davis as a Lake Calhoun shooter was not as strong as the prosecutor led the district court to believe through the serge a nt’s testimony at the Spreigl hearing

. Of the three witnesses to whom Davis allegedly confessed or intimated his involvement in the Lake Calhoun shooting, two of them never testified , and the third recanted. Instead , the state offered hearsay testimony through the sergeant that individuals affil iated with the 1

- 9 gang identified Davis as one of the Lake Calhoun shooters and that one witness provided corroborating, non

- public information linking Davis to the Lake Calhoun crime. Finally, Sergeant Wallerich again testified about the cell

- tower evidence. But the state did not offer the cell

- phone records into evidence at the Spreigl hearing or at trial. After he was found guilty, Davis moved for a new trial. Davis highlighted that the
state ’ s evidence at trial regarding the Lake Calhoun inciden t did not conform to its offer of proof at the Spreigl hearing. T he district court agreed, “conced[ ing ] . . . that what was offered at trial was significantly less than the offer of proof .” Nevertheless, the district court denied Davis ’ s motion for a new trial , noting Davis ’ s failure to object to the hearsayD

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sta tements offered by the state. But see Riley v. State , 819 N.W.2d 162, 169 (Minn. 2012) (rejecting testimony in affidavits as based on inadmissible hearsay). At the very least, this case presents a close call, which requires that the evidence be excluded

. State v. Ness , 707 N.W.2d 676 , 685 (Minn. 2006) ( “ If the admission of evidence of other crimes or misconduct is a close call, it should be excluded. ” ). The evidence consists only of an eyewitness ’ s uncertain identification after getting a glimpse of the shooter at 10:00 p.m. ; cell

- tower evidence placing Davis in proximity to Lake Calhoun on the night in question ; and out

- of

- court statements from biased, gang

- affiliated witnesses with no opportunity for either the judge at the Spreigl hearing or the jury at trial to evaluate their credibility

. State v. Brown , 739 N.W.2d 716, 720 (Minn. 2007) (“Inquiry on cross

examination into common gang membership may be sufficiently probative to show bias

. .

. .”). “ U nlike other cases in which we have affirmed the trial court ’ s admission of Spreigl evidence on the strength of a conviction, a victim ’ s clear identification of the defendant as the assailant, or the defendant ’ s own confession , ” State v. Shannon , 583 N.W.2d 579, 584 (Minn. 1998), in this case, it cannot be said that Davis ’ s participation in the Lake Calhoun shooting is “ highly probable. ” State v. Kennedy , 585 N.W.2d 385, 389 (Minn. 1998) ( quotation omitted ), holding modified by Ness , 707 N.W.2d at 6 86

. The state’s evidence
was not “ unequivocal, intrinsically probable and credible, and free from frailties. ” Gassler v. State , 787 N.W.2d 575, 583 (Minn. 2010)

. The state overstated the strength of its evidence connecting Davis to the Lake Calhoun shooting at the Spreigl hearing . P ursuant to Kasper , the district court and appellate courts have the authority “ to grant relief, when appropriate, if the evidenceD

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adduced was not what the prosecutor led the trial court to expect. ” 409 N.W.2d at 847

. Therefore, I would conclude that the district court abused its discretion because the evidence of Davis’s involvement in the Lake Calhoun shooting did not meet the clear

- and

convincing standard

. Minn. R. Evid. 404(b). T he evidence connecting Davis to the Lake Calhoun crime is “ simply too incomplete

. ” Link , 289 N.W.2d at 106 (quotation omitted)

. II. Because the evidence of Davis ’ s involvement in the Lake Calhoun shooting was erroneously admitted and harmful , Davis is en titled to a new trial. I n order to obtain a new trial , an appellant must show that the district court abused its discretion by admitting the Spreigl evidence and that its erroneous admission was harmful. State v. Thao , 875 N.W.2d 834, 839 (Minn. 2016)

. An error is harmful if there is a reasonable possibility that the “wrongfully admitted evidence significantly affected the verdict.” Id. (quotation omitted). Factors to consider include whether a cautionary instruction was used, whether in closing arg uments the state dwelled on the evidence, and whether there was overwhelming evidence of guilt. Id. As explained above, the admission of the Spreigl evidence was erroneous, so I next turn to the analysis of whether the erroneous admission was harmful. Fi rst, t he district court provided a cautionary instruction to the jury regarding the Lake Calhoun shooting

. However, in its instructions, the district court charged the jury with determining whether Davis’s participation in the Lake Calhoun shooting was clear and convincing. Th is was an abuse of discretion because it is the court’s duty , not the jury’s, to determine whether the Spreigl evidence meets the clear and convincing standard. See Kasper , 409 N.W.2d at 847.D

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Second , t he record reflects that the state dwelled on the wrongfully admitted evidence in its closing arguments. The state made seven different references to the Lake Calhoun sho oting. Cf. Thao , 875 N.W.2d at 840 ( noting that the prosecutor did not dwell on prior incident by alluding to it only twice). Notably, with respect to N.P.’s testimony identifying Davis as the alleged shooter, t he state acknowledged that “ [m] aybe she wasn’t positive

. ” T he state also highlighted that the 2010 shooting was a crime “that the defendant [has not] been charged with yet ,” implying that charges for the crime were pending. Moreover, the state went even further by stating to the jury , “ Whatever you do, I’m sure I’ll see Mr. Davis again.” I agree with the majority that this statement was plain error by the state and the “i mplied premise is [that] . . . even without a conviction, Davis is such a habitual offender that he will likely offend again. ” This is precisely the danger of admitting Spreigl evidence, that it will be used “for an improper purpose, such as suggesting that the defendant has the propensity to commit a crime.” Washington , 693 N.W.2d at 200. T hird, t he state ’ s evidence against Davis in the Target Field shooting , particularly with respect to the identification o f Davis as the shooter, was weak. The Target Field victim identified Davis as the shooter in a recorded interview to the police. Yet , prior to the interview, the victim stated that he would be unable to identify the shooter . T hen , at trial, he recanted his identification of Davis as the shooter

. A second biased witness impli cated Davis by testifying that , following the Target Field shooting, Davis insinuated his participation in the crime. But this second witness was originally charged as a co

defendan t in the Target Field shooting and initially gave two false statements to the police

.D

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And once he came forward and implicated Davis in the crime , the cha rges against him were dropped. In view of the district court’s erroneous instruction to the j ury, the state ’s dwelling on the wrongfully admitted Spreigl evidence during closing arguments , and th e limited evidence of Davis ’ s guilt in the Target Field shooting, I cannot conclude that the erroneous admission of the Spreigl evidence did not substantially influence the jury’s decision

. Thao , 875 N.W.2d at 839. I acknowledge the challenge the state faces in prosecuting gang

- related

cases. I am also cognizant of the significant negative impact that gang

- related violence has on the community and the desirability of obtaining convictions. But trial courts and appellate courts have an obligation to ensure that the legal standard of clear and convincing evidence is met for the proper admission of Spreigl evidence and , as the Min nesota Supreme Court has noted, the courts “are always free to grant relief , when appropriate ” when the state’s offer of proof is not supported by the evidence adduced at trial and fails to meet the clear

- and

- convincin g standard

. Kasper , 409 N.W.2d at 847

. Here, after trial, the district court “concede[d] . . . that what was offered at trial was significantly less than the offer of proof

” a nd did not meet this standard

. As such , I would reverse and remand for a new trial.