                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-1678

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Eric Jerome Johnson,
                                       Appellant.

                                Filed August 11, 2014
                                      Affirmed
                                    Reilly, Judge

                              Scott County District Court
                               File No. 70-CR-12-10427

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

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and

Stoneburner, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges two convictions of first-degree criminal sexual conduct

arguing that the district court abused its discretion by allowing the state to introduce

evidence of a prior conviction for criminal sexual conduct and improperly convicted him

of two counts of first-degree criminal sexual conduct based on the same criminal act

against the same complainant. We affirm.

                                         FACTS

       On March 8, 2012, appellant’s sister T.J. traveled from Hammond, Indiana, to

Minnesota for a four-day family visit.       T.J. was accompanied by her three minor

daughters, including 15-year-old T.R., born May 5, 1996. T.J. and her daughters stayed

in appellant’s house with appellant and his wife and daughter. On March 10, several

family members, including appellant, T.R., and her mother and sisters, went to the Mall

of America from approximately 10:00 a.m. to 8:30 or 9:00 p.m. The family returned to

appellant’s house. Later that evening, appellant and his wife left the house to go to a club

with friends. T.R.’s mother stayed at the house with the children. T.R. went upstairs to

appellant’s daughter’s bedroom to watch television and fell asleep at approximately 1:00

or 2:00 a.m. T.R.’s mother and sisters fell asleep downstairs.

       At some point during the night, T.R. woke up and thought that someone had been

touching her breasts. Her clothes were still on. T.R. thought she could see someone in

the room, but she could not identify who it was. T.R. believed she saw a shadow by the

closet. T.R. could not distinguish whether someone was standing in the room with her or


                                             2
not and fell back to sleep. T.R. next remembered feeling as though someone was lying

on top of her. T.R. was partially undressed with both her right pant leg and her right

underpants leg off. She felt a “shove” and felt someone put his penis into her vagina.

T.R. woke up completely and jumped from the pain. She felt someone jump off of her

and run out of the room. There was a light on in the hallway and T.R. recognized the

individual as her uncle, the appellant. T.R. pulled her clothes on and ran downstairs to be

close to her mother and sisters. She crawled in bed next to her sister and tried to go to

sleep.

         The next morning, T.R. took a shower and reported that she was mad, sad, and did

not have an appetite. She went to the mall with her sisters to meet up with her aunts and

cousins. Appellant drove T.R. and her sisters to the mall. T.R.’s mother stayed at the

house to finish packing and cleaning before their departure that afternoon. Once at the

mall, T.R. went into a nearby store to call her mother. T.R. told her mother that appellant

had sex with her while she was asleep. Both T.R. and her mother began crying. T.R.’s

mother asked her where she was and instructed her to stay in the store. T.R.’s mother got

into her car to drive to the mall. En route to the mall, T.R.’s mother called her sister—

one of T.R.’s aunts—and asked her to find T.R. T.R.’s aunt found T.R. in the store and

led her out of the mall and into the parking lot outside. T.R.’s mother arrived at the mall

and found T.R. waiting for her outside.

         T.R. got into her mother’s car and they called the police to report the crime. At

approximately 2:00 p.m., T.R.’s mother spoke with a City of Prior Lake police officer

and reported that her daughter had been molested. The officer instructed T.R. and her


                                             3
mother to drive to St. Francis Regional Medical Center for a medical examination. The

officer met T.R. and her mother at the hospital. At approximately 3:00 p.m., T.R. met

with a Sexual Assault Nurse Examiner for a sexual assault examination and a forensic

physical examination. T.R. provided a urine sample and underwent a speculum exam,

which included swabs from her cervix, perineum, and vagina. T.R. and her mother and

sisters returned to Hammond, Indiana, immediately after leaving the hospital.

       The samples collected from T.R.’s examination were sent to the Minnesota BCA

for testing. Semen was identified on the cervical, perineal, and vaginal swabs. On

April 28, the BCA performed DNA tests on the swabs and determined that appellant

could not be excluded from the analysis and 99.9999998% of the general population

could be excluded. The state charged appellant with one count of first-degree criminal

sexual conduct.

       As part of their investigation into the case, detectives ran a search of appellant’s

criminal history and discovered previous criminal convictions, including a criminal

sexual conduct conviction from 2002. Prior to trial, the state moved to introduce Spreigl

evidence of appellant’s prior criminal sexual conduct conviction to show intent,

knowledge, lack of mistake, and modus operandi. Specifically, the state proposed to

offer evidence of appellant’s 2002 conviction of second-degree criminal sexual conduct

arising out of sexual contact between appellant and his then-girlfriend’s 12-year-old

daughter. In that case, appellant, who was living in his girlfriend’s household, habitually

entered the girl’s bedroom at night to touch her buttocks and vaginal area. Appellant

pleaded guilty to that offense and served a 39-month executed sentence. Appellant


                                            4
objected to the admission of this evidence. On March 27, the district court issued an

order partially granting the state’s request. The district court determined that the 2002

conviction involved a victim living in the same household as the appellant at the time of

the offense, and that the abuse took place at night when the victim was in her bed and

sleeping. The district court concluded that:

               These facts meet the materiality and relevance requirements
               of Spreigl. The location of the offenses, the status of the
               victim, and the circumstances of the abuse are remarkably
               similar. Moreover, in both cases, the victim was a child that
               was known to the Defendant and was someone the child knew
               as a household member.

         At the beginning of trial, the state moved to amend the complaint to add a second

count of first-degree criminal sexual conduct, and the motion was granted from the

bench.     The jurors were instructed that the complaint contained two allegations:

(1) criminal sexual conduct in the first degree, alleging that appellant engaged in sexual

penetration with another person, that appellant had a significant relationship with the

complainant, and that the complainant was under 16 years of age at the time; and

(2) criminal sexual conduct in the first degree, alleging that appellant engaged in sexual

penetration with another person when that person was between 13 and 16 years of age,

and that appellant was in a position of authority over the victim.

         Appellant testified on his own behalf during trial. Appellant testified that in the

middle of the night, he entered the bedroom where T.R. was sleeping to turn off the

television. Appellant stated that he saw T.R. lying on the bed masturbating and began

masturbating himself.      Appellant stated that he ejaculated and then returned to his



                                               5
bedroom. During cross-examination, appellant testified that he is attracted to developed

young girls between the ages of 12 and 15. Appellant acknowledged that he has a

problem and testified that he and his wife have taken precautions to ensure that people in

their house are safe. By way of example, appellant stated that he does not bathe or

change his daughters or let young girls sleep over at the house. Appellant’s wife also

testified that appellant is attracted to physically developed young girls and that he sought

sex-offender treatment and took classes as a means of overcoming these issues. Although

appellant objected to his wife testifying based on spousal privilege, he did not object to

the content of her testimony.

          Before the state presented Spreigl testimony and by agreement of the parties, the

district court gave the standard cautionary instruction to the jury regarding testimony of

other crimes. The Spreigl witness testified that appellant dated her mother from 1999 to

2001. Between 2000 and 2001, appellant lived with the witness and her mother. The

witness reported that, beginning when she was 11 years old, there were over 20 sexual

incidents between appellant and the witness. During one incident, appellant walked into

the witness’s bedroom while everybody was asleep and began groping her. When she

opened her eyes, appellant was hiding against the closet door, “camouflag[ing] himself

into the night.” The witness described this activity as “ongoing behavior,” during which

appellant visited her bedroom and assaulted her during the night while everyone else was

asleep.




                                              6
       The jury found appellant guilty of both charges.         The district court formally

adjudicated and sentenced appellant on count one only.              Appellant subsequently

appealed.

                                      DECISION

                                              I.

       Appellant raises evidentiary errors regarding the admission of Spreigl evidence

and testimony that he was sexually attracted to physically mature young girls. We

conclude that the district court did not abuse its discretion in admitting this evidence.

       Generally, evidence of past crimes or bad acts, known as Spreigl evidence, is not

admissible to prove the character of a person or that the person acted in conformity with

that character in committing an offense. Minn. R. Evid. 404(b); State v. Kennedy, 585

N.W.2d 385, 389 (Minn. 1998). But Spreigl evidence may be admissible to demonstrate

factors such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Minn. R. Evid. 404(b). Spreigl evidence may also be

admitted to show whether the conduct on which the charge was based actually occurred

or was “a fabrication or a mistake in perception by the victim.” State v. Wermerskirchen,

497 N.W.2d 235, 241-42 (Minn. 1993). Admission of Spreigl evidence rests within the

sound discretion of the trial court and is reviewed under an abuse of discretion standard.

State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).            An “appellant challenging the

admission of Spreigl evidence bears the burden of showing the error and any resulting

prejudice.” State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007).

       Before admitting Spreigl evidence, a court must perform a five-step analysis:


                                              7
              (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.

Ness, 707 N.W.2d at 685-86.

       The first three elements are uncontested. The state gave proper notice of its intent

to admit Spreigl evidence, articulated what the evidence was offered to prove, and

demonstrated by clear and convincing evidence that appellant participated in the prior

act. See, e.g., State v. Blom, 682 N.W.2d 578, 601 (Minn. 2004) (holding that evidence

of defendant’s conviction is clear and convincing evidence of prior incident).

       With respect to the fourth element, the record shows that the district court fully

and thoughtfully considered the parties’ arguments and determined that the facts giving

rise to the 2002 conviction “[met] the materiality and relevance requirements of Spreigl.”

In determining the relevance of Spreigl evidence to the charged crime, a court must

consider its proximity to the charged crime in time, place, or modus operandi. Kennedy,

585 N.W.2d at 391 (holding that Spreigl evidence need not be identical to the charged

offense, but must be “sufficiently or substantially similar”). Here, the district court found

that the 2002 incident was sufficiently similar to the charged offense in several respects.

In both instances, the district court found that the victims were children known to

appellant as a household member, and that the sexual assaults occurred in the child’s

bedroom while the child was sleeping alone in her bed. The district court acknowledged

that the offenses are separated by approximately ten years. Minnesota recognizes that


                                             8
bad acts that are remote in time may still be relevant if the defendant was incarcerated

during that time. Ness, 707 N.W.2d at 689. For incarceration, a court may subtract the

length of incarceration from the time that has passed since the charged offense. Clark,

738 N.W.2d at 346. Here, the district court noted that following appellant’s conviction in

2002 he served an executed sentence and a supervised release period of approximately

eight years.

       Appellant concedes that the facts underlying the 2002 offense share some

similarities with the present case but argues that the 2002 offense is not similar enough

because it did not involve sexual penetration. However, “[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). The district court plainly articulated why it

determined that the Spreigl conduct is “remarkably similar” to the charged offense. The

district court did not abuse its discretion in finding that the 2002 incident was relevant

and material to the charged offenses.

       Additionally, with respect to the fifth factor, the district court did not abuse its

discretion in determining that the probative value of the evidence outweighed its

prejudicial effect. In weighing these considerations, “the court must consider how crucial

the Spreigl evidence is to the state’s case.” Pierson v. State, 637 N.W.2d 571, 581

(Minn. 2002). The district court may also determine that Spreigl evidence is more

probative than prejudicial if the testimony is admitted not to “arouse the jury’s passion,

but rather for the purpose of illuminating the relationship” between a defendant and the

victim, and “placing the incident . . . in proper context.” Kennedy, 585 N.W.2d at 392


                                            9
(“Evidence that helps to establish the relationship between the victim and the defendant

or which places the event in context bolsters its probative value.”). Further, before any

Spreigl evidence was presented in this case, the district court gave the jurors cautionary

instructions regarding the proper use of the evidence. The district court again gave the

cautionary instruction before the case was submitted to the jury for deliberation. These

cautionary instructions “lessened the probability of undue weight being given by the jury

to the evidence.” Id. The district court did not abuse its discretion in finding that the

2002 incident was relevant and material to the present case.

       Appellant further argues that the district court wrongfully admitted evidence

during trial that had a cumulative, prejudicial effect and deprived appellant of a fair trial.

Specifically, appellant cites to admission of his wife’s testimony, the Spreigl evidence

arising from his 2002 conviction, and the testimony elicited from appellant on cross-

examination. “Evidentiary rulings rest within the sound discretion of the trial court and

will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201,

203 (Minn. 2003). On appeal, the appellant bears the burden of establishing that the

district court abused its discretion and that appellant was prejudiced. Id.

       Appellant challenges the admission of his wife’s testimony regarding his attraction

to physically developed young girls, his sex-offender treatment classes, and the steps

appellant and his wife took to keep children safe in their house. Before trial, appellant

objected to his wife’s testimony based on spousal privilege. The district court ruled that

appellant’s wife’s testimony was admissible for the purpose of describing the abuse in the

present case as well as the 2002 Spreigl incident under Minnesota Statute section


                                             10
626.556, which provides an exception to marital privilege in cases of child abuse. Minn.

Stat. § 626.556, subd. 8 (2010) (“No evidence relating to the neglect or abuse of a child

or to any prior incidents of neglect or abuse involving any of the same persons accused of

neglect or abuse shall be excluded in any proceeding arising out of the alleged neglect or

physical or sexual abuse on the grounds of privilege[.]”). Appellant did not object to the

content of his wife’s testimony at trial. “Failure to object to the admission of evidence

generally constitutes waiver of the right to appeal on that basis.” State v. Vick, 632

N.W.2d 676, 684-85 (Minn. 2001). Since appellant failed to object to this evidence at

trial this issue was not preserved for appeal and generally this court would apply a plain-

error standard of review.

       Here, appellant is not entitled to relief under the plain-error doctrine. The plain-

error doctrine holds that “a party cannot assert on appeal an error that he invited or that

could have been prevented at the district court.” State v. Carridine, 812 N.W.2d 130, 142

(Minn. 2012). So although appellant did not object to testimony regarding his attraction

to physically mature young girls and his sex-offender treatments at trial, “we have the

discretion to consider this issue on appeal if it is plain error affecting substantial rights.”

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The plain-error test permits this

court to review unobjected-to errors if: “(1) there is error, (2) the error is plain, and

(3) the error affects substantial rights.” Carridine, 812 N.W.2d at 142. While not finding

that the first two prongs have been satisfied we focus our analysis on the third prong.

With respect to the third prong, appellant must demonstrate that the error “was prejudicial




                                              11
and affected the outcome of the case.” Griller, 583 N.W.2d at 741. The defendant bears

a “heavy burden” of persuasion on this third prong. Id.

       We conclude that the plain-error standard is not met here because appellant has

not shown that his substantial rights were affected. Here, appellant himself relied on

testimony during trial that he was physically attracted to sexually developed young girls,

that he sought treatment as a recovering sex offender, and that he took a number of

precautions to protect young girls in his home. We do not credit appellant’s argument

that similar evidence introduced through his wife’s testimony affected his substantial

rights. Upon review, we conclude that appellant’s wife’s testimony did not have a

significant effect on the verdict, and thus it was not a plain error entitling appellant to a

new trial. Id. at 742.

       Appellant further contends that the district court wrongly permitted the state

during cross-examination to question appellant extensively about his sexual attraction to

young girls and the facts underlying his 2002 conviction.         Appellant’s argument is

unpersuasive. As part of his trial strategy, appellant took the stand in his own defense

and testified about his sex-offender treatment classes and the precautions appellant and

his wife took in their own house. In essence, appellant is objecting to trial strategy, and

“[t]his court cannot reverse on grounds of inappropriate trial strategy.” State v. Spurgin,

358 N.W.2d 648, 651 (Minn. 1984).

       In rare cases, the cumulative effect of trial errors can deprive a defendant of his

constitutional right to a fair trial. State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012).

But we have concluded, in this case, there were no errors. The district court acted within


                                             12
its discretion in admitting the Spreigl evidence, appellant’s wife’s testimony, and

appellant’s testimony on cross-examination. Thus, the cumulative-effect argument is not

relevant to this case.

                                             II.

       Appellant raises two additional arguments in his supplemental pro se brief. First,

appellant argues that the state sought to have a district court judge assigned to the case at

the pretrial stage and that appellant did not have the opportunity to challenge this judicial

assignment. Second, appellant objects to the district court judge’s statement to the

prospective jury panel during voir dire that “I think it’s safe to say that no one is in favor

of child abuse.” Appellant contends that this comment was prejudicial and entitles him to

a new trial. Appellant fails to cite to any relevant facts or legal authority to support these

arguments, and they are deemed waived. See State v. Manley, 664 N.W.2d 275, 286

(Minn. 2003) (waiving arguments raised in supplemental pro se brief that were

“unsupported by any facts in the record” and contained “no citation to any relevant legal

authority”).

                                             III.

       Appellant argues that he was improperly convicted of two counts of first-degree

criminal sexual conduct based on the same criminal act against the same complainant.

See Minn. Stat. § 609.04 (2010). (“Upon prosecution for a crime, the actor may be

convicted of either the crime charged or an included offense, but not both.”).

        “[T]he proper procedure to be followed by the trial court when the defendant is

convicted on more than one charge for the same act is for the court to adjudicate formally


                                             13
and impose sentence on one count only.” State v. French, 400 N.W.2d 111, 114 (Minn.

App. 1987) (quoting State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984)), review

denied (Minn. Mar. 25, 1987). Here, the jury found appellant guilty of both charges.

During sentencing, the district court formally adjudicated appellant on count one,

criminal sexual conduct in the first degree, and sentenced him on that count alone. The

remaining offense was merged for sentencing purposes and an additional sentence was

not imposed.

       Appellant argues that the order and warrant of commitment is incorrect because it

states that appellant was convicted on both counts. However, the Minnesota Supreme

Court has “long recognized that the ‘conviction’ prohibited by this statute is not a guilty

verdict, but is rather a formal adjudication of guilt.” Pierson v. State, 715 N.W.2d 923,

925 (Minn. 2006). “In other words, a conviction occurs only after the district court judge

accepts, records, and adjudicates the jury’s guilty verdict.” Id. Whether a defendant was

“formally adjudicated” guilty of an offense must be determined by reviewing the official

judgment of conviction. State v. Plan, 316 N.W.2d 727, 728-29 (Minn. 1982). Here, the

factual record supports the jury’s convictions, State v. Ashland, 287 N.W.2d 649, 650

(Minn. 1979), and the order and warrant of commitment accurately reflects that the jury

convicted appellant on both counts one and two.

       Our review of the record further reveals that appellant was formally adjudicated on

only one of the jury’s convictions. The jury’s conviction on the second charge was never

adjudicated as defined by Minnesota caselaw and, as such, it would be improper to vacate

an unadjudicated-conviction. French, 400 N.W.2d at 114-15; see also LaTourelle, 343


                                            14
N.W.2d at 284 (“If the adjudicated conviction is later vacated for a reason not relevant to

the remaining unadjudicated conviction(s), one of the remaining unadjudicated

convictions can then be formally adjudicated and sentence imposed[.]”). Accordingly,

appellant’s request to remand to the district court to alter the order and warrant for

commitment is denied.

       Affirmed.




                                            15
