OPINION
Appellant William McRae was convicted of criminal sexual conduct in the third degree in violation of Minn.Stat. § 609.344(c) (1984) and was sentenced to a prison term of 24 months. On appeal he contends he is entitled to a new trial because (1) the jury was not impartial, (2) he was removed from the courtroom in violation of his right to be present, and (3) the court erroneously admitted Spreigl evidence. We affirm.
FACTS
McRae had dated the victim for about six months in 1983, and during that time they had engaged in a consensual sexual relationship. By February 1984 the victim was seeing another man. On May 1, 1984, as the victim was entering her аpartment, McRae forced her inside and subjected her to multiple sexual assaults.
During trial a juror handed the triаl judge a note indicating that one of a group of men in the hall outside the courtroom had said, in effect, to the jury, “You better vote guilty or we’ll kill you.” The trial court tightened security to ensure that the individual would not return. The trial cоurt then conducted a
Schwartz
hearing.
See Schwartz v. Minneapolis Suburban Bus Co.,
ISSUES
1. Was appellant denied an impartial jury when a third party threatened to kill jurors unless they voted to convict?
2. Was appellant denied his constitutional right to be present when he was removed from the courtroom after interrupting proceedings?
3. Did the trial court abuse its discretion in admitting Spreigl evidence?
DISCUSSION
I
McRae argues on apрeal, as he did in a motion for a new trial, that his right to an impartial jury was prejudiced and that even though defense counsel did not move for a mistrial, the court should sua sponte have called a mistrial.
The trial court conducted a
Schwartz
hearing to determine what effect, if any, the remark had on the jurors’ ability to fulfill their duty and to decide the case impartially. The cоurt was in the best position to gauge the jurors’ responses and determine whether they were sincere in stating they wоuld not be affected and could act fairly. Further, defense counsel believed the trial court handled the matter properly and did not seek to poll the jury or request a mistrial. McRae has made no showing that the jury was prejudiced against him.
See State v. Wahlberg,
II
McRae claims his right to be present during trial was violated when he was removed from the courtroom after he continued to interrupt the prosecution’s closing argument. McRae’s removal was sanсtioned by Minn.R.Crim.P. 26.03, subd. 1(2), which provides:
The further progress of a trial to and including the return of the verdict shall not be preventеd and the defendant shall be considered to waive his right to be present whenever:
‡ ⅝ ⅝ ⅝ ⅜ ⅝
a defendant after warning engages in conduct which is such as to justify his being excluded from the courtroom because it tends to interrupt the ordеrly procedure of the court and the due course of the trial. As an alternative to exclusion, the cоurt may use all such methods of restraint as will ensure the orderly procedure of the court and the due coursе of the trial.
When a defendant insists on interrupting for the purpose of addressing jurors even when told it is not his time to do sо, he may be removed from the courtroom.
State v. Jones,
Here the trial court determined that, based on its observation, McRae would continue to interrupt the arguments of the prosecutor and defense counsel. The court did not feel it was appropriatе to bring McRae in for the final arguments in restraints and that it would be more “humane” and fair if McRae simply were not prеsent for the final arguments. The Supreme Court has indicated that restraints
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are a matter of “last resort.”
State v. Stewart,
Ill
After the State’s case was complеted, the trial court heard further arguments on admission of Spreigl evidence. The trial court admitted the evidence undеr the “common plan or scheme” exception to show lack of consent. See Minn.R.Evid. 404(b). This evidence consisted of testimony that two months after the charged offense, McRae met a woman on a bus and the next day obtained a ride from her to Lindstrom, Minnesota. On the return trip they engaged in sexual intercourse. When they arrived at her аpartment in St. Paul, McRae locked the door and ordered the woman to remove her clothes. He then forced her to engage in multiple sexual acts and beat her.
This incident is sufficiently similar in terms of time and modus oрerandi to be relevant to the charged offense. The crimes were only two months apart. The victims werе people McRae knew before and with whom he had had previous consensual intercourse. In both cases he entered the victim’s residence and used force to engage in multiple forms of sexual activity. Thе evidence of McRae’s participation in the
Spreigl
offense was clear and convincing, and we cаnnot upset the trial court’s discretionary determination that the probative value outweighed its potential for unfair prejudice.
See State v. Filippi,
DECISION
Appellant was fairly tried by an impartial jury despite the fact that a third person threatened the jury. The trial court did not abuse its discretion in removing appellant from the courtroom for persistent interruptions during closing argument or in admitting Spreigl evidence.
Affirmed.