                         This opinion will be unpublished and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
                                    A14-0540

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Albert Leroy Goranson,
                                       Appellant.

                                Filed March 23, 2015
                                      Affirmed
                                    Reilly, Judge

                              Clay County District Court
                               File No. 14-CR-12-3816

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

Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.

                        UNPUBLISHED OPINION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 items found in appellant’s gun safe to show the absence of mistake or

accident. We affirm.
                                          FACTS

       The present case arises out of appellant’s first-degree criminal sexual conduct

convictions committed against his then-five-year-old daughter, A.G. On more than one

occasion, appellant sexually abused his daughter by inserting his finger into her vagina.

This conduct occurred when A.G. watched movies with her father, when she was

swimming, and when A.G. was in her bunk bed at night. Appellant “stuck his finger in

[her] private part” and “[m]oved it around.” A.G. stated that it felt “bad” when appellant

put his finger into her vagina, and she “usually [] said ‘[o]w.’”

       The initial report occurred at the end of September 2012. On September 30, 2012,

A.G. was watching a movie with appellant in the basement of the family’s house. A.G.

was sitting on appellant’s lap watching the movie when appellant “stuck his thumb in

[her] private part.” Appellant moved his finger around inside of A.G., causing her pain.

A.G. told her mother that appellant “stuck his finger up her butt.” A.G.’s mother clarified

that appellant inserted his finger into A.G.’s “front butt,” which A.G.’s mother

understood to be her vaginal area.

       The following day, A.G.’s mother took her to a medical clinic and reported the

abuse. Appellant had returned to work in Williston and was not at home. The incident

was referred to the Moorhead police department and assigned to a detective responsible

for investigating the matter. The detective went to appellant’s house to take pictures of

the basement and interview A.G. and her mother. A Clay County social services worker

conducted a forensic interview with A.G. at the Red River Children’s Advocacy Center.

A.G. indicated on a drawing that appellant touched her vagina. A.G. also described an


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incident where appellant’s clothes became wet and A.G. believed that appellant had

“pee[d] on himself.”

       The detective set up an interview with appellant and informed him that there were

allegations of inappropriate contact between appellant and A.G. Appellant claimed these

allegations were the result of a “misunderstanding.” The detective disclosed several

different instances in which A.G. claimed appellant touched her vagina. Appellant told

the detective that “his finger may have accidentally got into her butt” when he picked her

up, but he insisted that any contact was accidental.

       A few weeks later, A.G.’s mother opened appellant’s gun safe and discovered

several items inside, including a little girl’s swimsuit, two pairs of A.G.’s underwear,

another pair of little girl’s underwear that did not belong to A.G., and numerous

photographs of young girls and women, some of which were pornographic. Several of

the photographs were loose pictures printed on printer paper and others were pasted

collage-style into a spiral notebook.     Most of the pictures were of small children,

including A.G. One picture showed a small girl’s vagina being spread open by an adult

male’s hand. A.G.’s mother identified it as a picture of her daughter’s vagina. A.G.’s

mother immediately turned these items over to the detective. The detective conducted a

follow-up interview with appellant the next day and confronted him with the items found

in the gun safe. Appellant admitted that he masturbated into the underwear but did not

provide further information about why he kept these items.

       The state charged appellant with one count of first-degree criminal sexual conduct,

penetration or contact with a person under the age of 13 when the perpetrator is more


                                             3
than 36 months older than the victim, and one count of first-degree criminal sexual

conduct, penetration or contact with a victim under the age of 13 with a significant

relationship with the perpetrator. The state later amended the complaint to add two

counts of second-degree criminal sexual conduct as lesser-included charges.

       Appellant sought to exclude evidence of the items found in the gun safe, arguing

that the prejudicial effect outweighed any evidentiary value. The state opposed, claiming

the evidence was relevant to show motive and intent under Minnesota Rule of Evidence

402. The district court denied appellant’s motion to exclude evidence of the images

depicting children and the items of clothing. The district court determined sua sponte

that the challenged evidence qualified as Spreigl evidence and was admissible “as

evidence of another crime, wrong, or act in order to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident” under

evidentiary rule 404(b). The district court stated that the evidence would be admitted and

considered solely for the limited purpose of assessing whether appellant “acted

accidentally or without sexual intent . . . at the times of the incidents in issue.” Following

the district court’s decision permitting the state to introduce the contested evidence,

appellant waived his right to a jury trial.

       A bench trial was held in October 2013. Appellant testified on his own behalf.

Appellant denied putting his finger into A.G.’s vagina but admitted he may have

accidentally penetrated her when he was “picking her up” or “moving her.” Appellant

admitted that there were a “couple of events” in which appellant was “wet” on his “belly

button,” but explained that it was due to the fact that he “spill[ed] a glass of water” that


                                              4
got on the “back side of [A.G.’s] butt,” and another instance in which there was a leak in

the bathroom upstairs that leaked onto his bed. Appellant admitted that he kept pictures

of little girls and articles of little girls’ clothing in his gun safe, but stated he did so “[t]o

keep them out of the reach of children.” Appellant testified that he found the girls’

underwear and swimsuit bottoms in the laundry room, masturbated into them, and “saved

them to get rid of them” by putting them in the gun safe. Appellant admitted to owning a

notebook containing, among other things, a picture of his daughter’s exposed vagina.

Appellant stated he took the picture in 2007 to document a diaper rash and failed to

destroy the picture because the paper shredder was malfunctioning.

       The district court found appellant guilty on two counts of first-degree criminal

sexual conduct and sentenced him to 144 months in the custody of the commissioner of

corrections and ten years of conditional release on count one. On count two, the district

court sentenced appellant to 180 months in custody to run concurrently with the sentence

imposed for count one. The district court ordered appellant to register as a predatory sex

offender and submit a sample of his DNA. The district court found appellant guilty on

counts three and four for second-degree criminal sexual conduct but dismissed them as

lesser-included offenses. This appeal followed.

                                       DECISION

       The district court admitted evidence of the items found in appellant’s gun safe to

refute appellant’s argument that he acted accidentally or without sexual intent during the

instances recounted by A.G. Appellant challenges the district court’s decision, arguing

that the items are neither relevant nor material. “Evidentiary rulings rest within the sound


                                                5
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). Appellant bears the burden of

demonstrating that an error occurred and that he was prejudiced. State v. Clark, 738

N.W.2d 316, 345 (Minn. 2007).

                                            I.

       The state offered the gun case evidence as immediate-episode and res gestae

evidence to provide context for A.G.’s statements concerning the abuse allegations. The

district court admitted it as Spreigl evidence for the purpose of showing absence of

mistake. Although this issue was not addressed below, we may affirm a district court’s

decision on grounds other than those relied on by the court below. Dukes v. State, 718

N.W.2d 920, 921-22 (Minn. 2006).         We conclude that the evidence was properly

admitted to rebut appellant’s conflicting statements and his defense theory of mistake.

       Shortly after A.G.’s mother reported the abuse, a Moorhead police department

detective interviewed appellant and informed him of the allegations. Appellant denied

committing a sexual-conduct crime against A.G. and further denied that he was aroused

by young female children. Appellant claimed that the allegations were the result of a

“misunderstanding,” and that his finger may have “accidentally got into [A.G.’s] butt.”

Several weeks after the first interview, A.G.’s mother discovered a gun safe containing

pictures of A.G.’s vagina and A.G.’s underwear that appellant later admitted he used for

masturbation. Testimony concerning the evidence discovered in the gun safe rebuts

appellant’s claim that A.G. was mistaken or that he accidentally inserted his finger into

A.G.’s vagina.


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         “Rebuttal evidence is that which explains, contradicts, or refutes the defendant’s

evidence. Its purpose is to cut down defendant’s case and not merely to confirm that of

the plaintiff.” Farmers Union Grain Terminal Ass’n v. Indus. Elec. Co., 365 N.W.2d

275, 277 (Minn. App. 1985). What qualifies as proper rebuttal evidence rests “almost

wholly” in the discretion of the district court. State v. Turnbull, 267 Minn. 428, 434, 127

N.W.2d 157, 162 (1964). This court has previously recognized that a district court may

admit rebuttal evidence to show that a defendant’s version of events is untrue. See, e.g.,

State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993) (concluding district court did not

abuse its discretion by admitting evidence to rebut defendant’s testimony); Turnbull, 267

Minn. at 434, 127 N.W.2d at 161-62 (finding “no error” in district court’s admission of

rebuttal testimony to clarify differing versions of events); State v. Stevens, 580 N.W.2d

75, 80 (Minn. App. 1998) (determining district court did not abuse its discretion in

admitting rebuttal evidence that refuted appellant’s alibi), review denied (Minn. Aug. 18,

1998).

         In Ture v. State, the petitioner sought postconviction relief from his first-degree

murder conviction arguing that the district court erred by admitting notebooks and

address books seized during the underlying investigation. 681 N.W.2d 9, 16 (Minn.

2004).     The notebooks and address books contained women’s names, license plate

numbers, addresses, and phone numbers. Id. The petitioner argued that the evidence was

improperly admitted Spreigl evidence. Id. at 16-17. The district court concluded that the

evidence did not constitute evidence of bad acts “because there is nothing per se wrong

with collecting information on women.” Id. at 17. The supreme court agreed, and


                                              7
concluded that the evidence was admissible because “collecting information on women

was [petitioner’s] habit and routine practice.” Id. The supreme court affirmed the lower

court’s determination that the notebooks and address books seized as part of the

investigation did not qualify as Spreigl evidence and were properly admitted. Id.

       Here, as in Ture, the items in the gun safe demonstrate appellant’s habits and

routine practices and rebut his version of events. Appellant testified that he masturbated

into the underwear and swimsuit only because those items happened to be conveniently at

hand and collected the images in his notebook only for the purpose of shredding them

later. We conclude that the district court did not abuse its broad discretion in allowing

the state to introduce evidence of the items found in the gun safe to contradict and refute

appellant’s testimony. See also Farmers Union Grain Terminal Ass’n, 365 N.W.2d at

277 (“The fact that testimony would have been more proper for the case-in-chief does not

preclude the testimony if it is proper both in the case-in-chief and in rebuttal.”).

                                              II.

       We further determine that the evidence was admissible under rule 404(b).

Generally, evidence of another crime, wrong, or act, 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) (2012); State v. Spreigl,

272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). However, such 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 that the conduct on which the charge was based


                                              8
actually occurred or to refute an argument that it was “a fabrication or a mistake in

perception by the victim.” State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993).

       A district court follows a five-step process to determine whether to admit other-

acts evidence. State v. Smith, 749 N.W.2d 88, 93 (Minn. App. 2008). The steps are:

                (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 93-94.

       The district court addressed each of the five factors and determined that the

evidence was admissible. On appeal, appellant only challenges the fourth prong of the

test and contends that the evidence was neither relevant nor material.

       The district court admitted the evidence as proof of “absence of mistake or

accident” and considered it “solely for purposes of evaluating [appellant’s] claim that the

alleged contact was accidental and/or a misunderstanding.”                Evidence used to

demonstrate a common scheme or plan “must have a marked similarity in modus

operandi to the charged offense.” State v. Ness, 707 N.W.2d 676, 688 (Minn. 2006). In

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

closeness of the relationship between the other [act] and the charged crimes in terms of

time, place and modus operandi.” Wermerskirchen, 497 N.W.2d at 240.

       The record supports the district court’s determination that the items in the gun safe

were relevant and material to the state’s case. The items in the safe share a marked


                                               9
similarity with the charged offense. The district court heard testimony that appellant put

his finger inside his daughter’s vagina and ejaculated. Appellant also simulated sexual

conduct using items stored in the gun case by looking at pictures of young girls, including

a photograph of his daughter’s vagina, and ejaculating into A.G.’s underwear.

       Other-acts evidence is admissible under the common scheme or plan exception to

show “that the conduct on which the charged offense was based actually occurred or to

refute the defendant’s contention that the victim’s testimony was a fabrication or mistake

in perception.” Ness, 707 N.W.2d at 688 (quoting Wermerskirchen, 497 N.W.2d at 241-

42). The district court had a legitimate purpose for admitting evidence of the items found

in the gun safe to refute appellant’s argument that A.G.’s sexual-abuse allegations were

the result of a misunderstanding. In both instances, the focus is on the same victim with

the same result: appellant became sexually aroused by A.G.’s vagina and ejaculated.

Given the record before us, we conclude that the district court did not abuse its discretion

in determining that the Spreigl evidence was relevant and material to the charged offense.

       We further determine that even if admission of the evidence was erroneous, the

error was harmless under the facts of this case and in light of A.G.’s credible and

consistent report of sexual abuse coupled with the social worker’s account of the forensic

interview. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (requiring a showing

that admission of evidence was prejudicial and significantly affected the verdict).

                                            III.

       Appellant raises additional arguments regarding the adequacy of a Miranda

warning during a police interview. Appellant has not supported these supplemental


                                            10
arguments with relevant facts or legal authority and we consider them waived. Thiele v.

Stich, 425 N.W.2d 580, 582 (Minn. 1988) (declining to consider matters outside the

record on appeal).

      Affirmed.




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