State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1159

State of Minnesota,
Respondent,

vs.

Bradley Stephen Rierson,
Appellant.

Filed July 3, 2017
Affirmed
Ross, Judge

Stearns County District Court
File No. 73-CR-14-10951

Lori Swanson, Attorney General, Edwin W. Stockmeyer, I II, Assistant Attorney General,
St. Paul, Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Ross, Judge; and Kirk, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The state charged Bradley Rierson with seven counts of possessing child
pornography or a computer containing child pornography. The jury found Rierson guilty.
At trial, the jury learned that his son’s former g irlfriend—a child —sent Rierson nude
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pictures of herself and that Rierson’s browser history indicated his sexual preference for
minor females. Rierson argues on appeal that this Spreigl evidence unfairly prejudiced him.
He argues alternatively that only two of the convictions can stand b ecause the evidence,
the district court’s instructions, and the jury’s verdict to gether establish only that he
possessed two computers containing child pornography, not that he possessed seven
images of child pornography. And he argues finally that his consecutive sentence s
exaggerate the singular nature of his illegal behavior. We reject his first argument because
the purported Spreigl evidence was either properly admitted or was not truly Spreigl
evidence. We reject his second argument because, even if the district court erred by not
instructing the jury to decide whether Rierson poss essed the pornographic works
themselves, the error did not substantially affect the verdict. A nd we reject his sentencing
argument because sufficient evidence allowed the district court to determine that the seven
pornographic images showed seven different child victims. We affirm.
FACTS
Police searching Bradley Rierson’s basement in June 2014 found three computers:
a laptop, a desktop, and a tower. Police seized the computers and discovered multiple
thumbnail images of child pornography depicting unknown children on the desktop and
the tower. They also found two nude pictures of a known adolescent girl, R.C.
The state charged Rierson with seven counts of possessing a pornographic work or
a computer that contained a pornographic work invo lving a minor, in violation of
Minnesota Statutes section 617.247, subdivision 4(a) (2012). Before trial, the state filed
notice of its intent to offer evidence that R.C. sent nude pictures of herself to Rierson and
3
that those pictures were located on th e desktop computer (the images of R.C. were not
included in Rierson’s charges in this case) . Rierson moved in limine to preclude the
evidence. The district court began the trial reserving the issue for later.
Among other witnesses, R.C. and Rierson’s 20-year-old son, B.R., testified. B.R.
testified that when he was 17 years old, he lived in Rierson’s home f rom May 2012 to
September 2012. B.R. and Rierson slept in the basement while Rierson’s eventual wife,
E.R., and three other children typically s tayed on the home’s main floor. Rierson spent
most of his time in the basement using the desktop computer. Discussing Rierson’s online
browser history, B.R. s aid that Rierson prefer s “younger-looking wom[e]n” and that his
search queries would include phrases like “barely legal.” Rierson did not object to this
testimony. B.R. also testified that , during his summer in Rierson’s home, B.R. had an
online, romantic relationship with R.C., a 14-year-old girl. He said that R.C. emailed him
several nude pictures of herself. He stated that he deleted the se pictures from his email
account before he left Rierson’s home in September 2012. Contact between B.R. and R.C.
ended about when he moved out of Rierson’s home.
Seventeen-year-old R.C. testified that she began communicating with Rierson after
her relationship with B.R. ended in October 2012. She was 14 years old at that time. For
about two months, Rierson and R.C. maintained nearly daily contact, either online or by
phone. R.C. estimated that she electronically sent Rierson 15 to 20 nude pictures of herself.
She testified that she did not send th ose pictures to any one else. She identified the two
pictures that the police located on the desktop computer’s hard drive as two of these
pictures. Rierson did not object to this testimony.
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The district court defined the crime of electronically possessing child pornography
for the jury. With no objections, the court defined the first element of the offense , saying,
“First, the defendant possessed a computer disk or computer or other electronic, magnetic
or optical storage system or a storage system of any other type containing a pornographic
work.” After closing arguments, the district court provided the jury with a verdict form ,
directing the jury to find Rierson either guilty or not guilty for each of the seven separate
counts.
The jury found Rierson guilty on all seven counts of possession of a pornographic
work involving a minor child. The district court sentenced Rierson to 60 months i n prison
for the first count and consecutive terms of 15 months for each of the remaining six counts.
Rierson appeals.
D E C I S I O N
Rierson appeals on three grounds. He first argues for a new trial because the district
court improperly admitted Spreigl evidence. He next contends that five of the seven counts
of conviction fail because only two computers contained child pornography and the district
court instructed the jury to decide only whether he possessed computers containing a
pornographic work (not whether he possessed the pornographic works themselves). He
finally maintains that he should not serve a consecutive prison term for each count because
his crime constituted only a single behavioral incident. The arguments do not prevail.
I
Rierson argues that the evidence of his online relationship with R.C. constituted
Spreigl evidence that was irrelevant and highly prejudicial. He similarly contends that
5
B.R.’s testimony about Rierson’s online browsing history and his preference for “younger-
looking women” was Spreigl evidence for which the state failed to provide advance notice
or explain its relevancy.
Evidence of prior bad acts, commonly referred to as Spreigl evidence, is admissible
for some things but not others. State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169
(1965). It is admissible as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, but it is inadmissible to show that
a defendant acted in conformity with his character. Minn. R. Evid. 404(b).
We typically review the district court’s admission of Spreigl evidence for an abuse
of discretion. Ture v. State, 681 N.W.2d 9, 15 (Minn. 2004). But when, as it regards some
of the challenged evidence here, a defendant did not object when the district court admitted
the evidence, we review only for plain error. State v. Word, 755 N.W.2d 776, 781 (Minn.
App. 2008). We consider if there was an error, if that error was plain or obvious, and if the
error affected the defendant’s substantial rights. State v. Reed, 737 N.W.2d 572, 583 (Minn.
2007). And even if the district court plainly erred by admitting Spreigl evidence, we will
not vacate a guilty verdict unless the defendant carries his burden to demonstrate tha t the
improperly admitted evidence “significantly affected the verdict.” State v. Ness , 707
N.W.2d 676, 685, 691 (Minn. 2006).
The district court may admit Spreigl evidence only if the evidence clears five
requirements: (1) the state must noti fy the defendant of its in tent to admit the evidence;
(2) the state must disclose clearly what the evidence will be offered to prove; (3) clear and
convincing evidence must prove that the defendant participated in the prior act; (4) the
6
evidence must be relevant; and (5) the potential prejudice to the defendant must not exceed
the evidence’s probative value. See Ness, 707 N.W.2d at 685 –86. Rierson contends that
admitting R.C.’s testimony of Rierson’s relationship with R.C. failed the fourth and fifth
requirements and that admitting B.R.’s contested testimony of Rierson’s browsing history
failed the first and fourth requirements. We first address the evidence of Rierson’s
relationship with R.C. and then the evidence of his browsing history.
Evidence of Rierson’s Online Relationship with R.C.
We will review only for plain error whether the district court properly admitted
evidence of Rierson’s r elationship with R.C. Although Rierson objected to the evidence
in limine, the district court did not grant the motion in limine and Rierson failed to renew
his objection when the state introduced the evidence.
Rierson argues that the evidence that R.C. emailed Rierson nude pictures of herself
should have been prohibited as Spreigl evidence because it was irrelevant and highly
prejudicial. He is wrong . “Spreigl evidence may be relevant and material to show the
identity of the perpetrator if identity is at issue and if there is a sufficient time, place, or
modus operandi nexus between the charged offense and the Spreigl offense.” State v.
Wright, 719 N.W.2d 910, 917 (Minn. 2006) (quotation omitted). The state had to prove
that Rierson either knew or had reason to know that he possessed pornographic images
involving minors. See Minn. Stat. § 617.247, subd. 4(a). And Rierson’s trial theory was
that, without his knowledge, someone else had downloaded the images onto the two
computers. B.R. even stated that Rierson urged him to take the blame by testifying (falsely)
that R.C. had sent the two pictures to B.R., not to Rierson. Rierson’s trial theory invited
7
the jury to infer that perhaps his son (R.C.’s former boyfriend) had put the images on
Rierson’s computers. By establishing that B.R.’s relationship with R.C. had ended, that
Rierson himself had begun a relationship with R.C., t hat as part of that relationship R.C.
sent nude images of herself to Rierson exclusively, and that some of those images were
stored on Rierson’s computer in the same file as other pornographic child images, the state
effectively connected Rierson to the other pornographic images on the two computers. This
evidence was relevant to explain why Rierson would have pictures of his son’s ex -
girlfriend and to connect him to the other improper images.
In addition to failing to demonstrate that the evidence was irr elevant, Rierson fails
to demonstrate that it was disproportionately prejudicial. It is self -evident that testimony
revealing his sexual interest in R.C.—a child—would put him under a shadow. But given
the state’s need to establish that Rierson, rather than his son, was responsible for receiving
and retaining the child pornography, the probative value of the evidence meets or exceeds
any risk of its unfair use. The district court did not err by admitting evidence that Rierson
had a lustful relationship with R.C. and that she sent him nude pictures of herself.
Evidence of Rierson’s Internet Search History and Preferences
Rierson unpersuasively contends that B.R.’s testimony about R ierson’s internet
browsing should have been excluded as Spreigl evidence about which the state gave no
advance notice and for which the state failed to e stablish relevancy. The challenged
testimony occurred during the following exchange between the prosecutor and B.R.:
Q: Any other ways that you personally have reason to
believe that he’s looked at pornography . . . .
8
A: Living with him when I was a sneaky son and looked at
his browser history but that’s about it.
Q: What did looking at his browser history tell you about
your father and pornography?
A: Um––that he does like younger-looking wom[e]n.
Q: What were the words that you saw there?
A: Um––barely legal––ah––candid, stuff like that.

The state argues that it did not need to provide notice concerning this testimony
because it was not Spreigl evidence. We agree. The su preme court has established that
where “there is nothing per se wrong” with an act, it is not Spreigl evidence. See Ture, 681
N.W.2d at 17. However suggestive B.R.’s testimony might have been in this context, the
reference to “barely legal” does not implicate an act which is “per se wrong.” See id. at 16–
17 (ruling that evidence of defendant collecting personal information about women was
not Spreigl evidence because there is nothing inherently wrong with collecting this
information).
Even if Rierson accurately characterized the testimony as Spreigl evidence, its
relevance is readily apparent. Like the evidence of Rierson’s relationship with R.C., this
evidence tends to prove that Rierson is sexually interested in young females and motivated
to use his computer to explore that interest. It also corroborates the evidence of his sexual
interest in R.C., and together these facts help the jury understand Rierson’s preference to
see and retain images of the girls who were the subjects of the child pornography on the
computers. And we note that the evidence is even less prejudicial than the evidence of his
relationship with R.C., since, theoretically, “barely legal” at least suggests “ legal.” The
district court did not err by admitting B.R.’s testimony. Finally, even if B.R.’s testimony
9
constituted unnoticed and irrelevant Spreigl evidence, we see no reasonable possibility that
it significantly affected the verdict. See Ness, 707 N.W.2d at 691.
II
Rierson also asks us to vacate five of his seven convictions because the jury found
only that the images of child pornography in his possession were stored on two computers,
falling short of a finding that he illegally possessed seven images . The operative statute
criminalizes the posse ssion of “a pornographic work on a computer disk or computer or
other electronic, magnetic, or optical storage system or a storage system of any other type,
containing a pornographic work, knowing or with reason to know its content and
character.” Minn. Stat. § 617.247, subd. 4(a). This renders illegal “ both the possession of
a pornographic work itself and the possession of a computer storing a pornographic work.”
State v. Bakken , 883 N.W.2d 264, 268 (Minn. 2016). The state charged Rierson in the
alternative, alleging seven counts of possessing a pornographic work or a computer that
contained a pornographic work involving a minor. The state had the authority to charge
Rierson with seven counts of possession, whether it charged him for possessing the seven
pornographic images themselves or possessing the computers that stored the images.
Rierson asserts that only two of his convictions are appropriate because as to each
count the district court specifically instructed the jury to decide whether Rierson possessed
a computer containing a pornographic work, not generally whether he possessed a
pornographic work. In its final instruction to the jury, the district court defined the first
element of the offense as: “First, [Rierson] possessed a computer disk or computer or other
electronic, magnetic or optical storage system or a storage system of any other type
10
containing a pornographic work.” This description of the first element deviates from the
standard recommended jury instruction by omitting the phrase “First, defendant possessed
a pornographic work or a computer disk . . . .” 1 0 Minnesota Practice, CRIMJIG 12.107
(2015) (emphasis added).
The charging complaint, the prosecutor’s arguments, and the evidence at trial all are
consistent with a conviction under either theory of the offense—possessing the computers
that had the images or possessing the images on the computers. The only concern is the
propriety of the instruction, so we construe this issue as asking whether the district court’s
final instruction was erroneous. Neither party raised any concern about the jury instruction,
so we review any potential error in the instruction for plain error. State v. Milton, 821
N.W.2d 789, 805 (Minn. 2012).
As discussed, this standard permits reversal only based on an error that is plain and
that affects the defendant’s substantial rights. State v. Watkins, 840 N.W.2d 21, 28 (Minn.
2013). To affect a defendant’s substantial rights, an error in the jury instruction must be
prejudicial, meaning that “there is a reasona ble likelihood that giving the instruction in
question had a significant effect on the jury’s verdict. ” Id. (quotation omitted). The state
charged and tried this case on the theory that Rierson possessed the pornographic works
themselves and also that he p ossessed the computers that stored the m. While the district
court has broad discretion in fashioning the jury instruction s, it must rightly define the
crime charged and explain its elements. Milton, 821 N.W.2d at 805. Based on the state’s
presenting both theories (possession of the works and possession of the computers
containing them), we hold that the district court plainly erred by omitting the phrase “a
11
pornographic work” in describing the first element. See State v. Carridine , 812 N.W.2d
130, 142 (Minn . 2012) (“Jury instructions, reviewed in their entirety, must fairly and
adequately explain the law of the case.” ). The question then becomes whether this error
affected Rierson’s substantial rights by significantly influencing the jury’s verdicts. We
believe that it did not.
In addition to the flawed instruction, t he district court also instructed the jury that,
“In this case [Rierson] has been charged with multiple offenses. You should consider each
offense and the evidence pertaining to it separately.” Each of the state’s seven exhibits was
a pornographic image that included a corresponding count number on the exhibit itself. For
instance, exhibit 59 is conspicuously labeled, “COUNT ONE .” The verdict form listed
seven distinct criminal counts. For each count, the form directed the jury to decide whether
Rierson was guilty or not guilty of the charge with reference to specific file numbers
corresponding to the prohibited pornographic images. For example, “On the charge of
Possession of Pornographic Work Involving Minors (File #7 ), we find [Rierson] . . .
Guilty.” (Emphasis Added.)
These circumstances were sufficient to info rm the jury that it must decide whether
Rierson possessed seven different pornographic works , not merely whether he possessed
two computers that contained pornographic works. And corroborating these circumstances,
the parties’ closing arguments reiterated the specific issue. The prosecutor told the jury that
“there’s 7 counts” and “[t]here’s 7 different files here before you [and] they all have the
same elements [that the state has] to prove beyond a reasonable doubt. ” The prosecutor
often referred to the pornographic images as “counts” and the computers as eviden tiary
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items. Consistent with all of this, Rierson’s own counsel declared plainly during closing
argument, “We are here because [Rierson] is being charged with seven counts of having
seven photos that contain pornographic images involving minors.”
The jury returned the verdict form separately checking the word “Guilty” for each
of the seven counts, illustrating that it found Rierson guilty of all seven counts—as in guilty
of possessing all seven images. Despite the district court’s omission of t he phrase “a
pornographic work” in defining the first element , the rest of t he instructions, the verdict
form, the relevant exhibits , the prosecutor’s arguments, and the arguments of Rierson’s
attorney all unquestionably informed the jury of its duty to decide whether Rierson
possessed seven pornographic works dep icting minors. Rierson has shown no prejudice
and we will not vacate five of his seven convictions because of the error.
III
Rierson argues that the district court erred by imposing consecutive sentences for
each of the seven counts of conviction because the state failed to prove that five of the
pornographic images depicted different children. It is true that “if a person’s conduct
constitutes more than one offense under the laws of this state, the person may be punished
for only one of the offenses.” Minn. Stat. § 609.035, subd. 1 (2012). But our caselaw has
established a multiple -victim exception. State v. Marquardt , 294 N.W.2d 849, 850 –51
(Minn. 1980).
Under this exception, the district court may impose multiple sentences for
convictions arising out of a single behavioral incident if the offenses involve multiple
victims and the multiple sentences would not unfairly exaggerate the criminality of the
13
defendant’s conduct. State v. Rhoades, 690 N.W.2d 135, 138 (Minn. App. 2004). Whether
possessing multiple images of child pornography invokes the multiple-victim exception to
section 609.035 presents a question of law that we review de novo. Id. at 137. We will not
disturb the district court’s decision to impose consecutive sentences under this exception
unless the district court clearly abused its discretion. Id. at 138. Because the state relies on
the multiple -victim exception to establish that Rierson’s conduct does not constitute a
single behavioral incident, and proving that his conduct does not constitute a single
behavioral incident requires proof by a preponderance of the evidence, see State v.
Williams, 608 N.W.2d 837, 841 –42 (Minn. 2000), the state had to prove by a
preponderance of the evidence that Rierson’s conduct involved multiple victims. We
review the district court’s implicit factual finding that the pornographic images depicted
different children. See Bakken, 883 N.W.2d at 270 (stating that single-behavioral-incident
analysis involves mixed question of law and fact, and that we review fact-findings for clear
error).
We have already applied the multiple-victim exception to section 617.247, because
one of the statute’s purposes is “to protect minors from the physical and psychological
damage caused by their being used in pornographic work depicting sexual conduct.” See
Rhoades, 690 N.W.2d at 138–39; Minn. Stat. § 617.247, subd. 1 (2016). The circumstances
direct us to apply it here as well. Rierson does not persuade us otherwise by contending
that the state failed to offer sufficient evide nce that the pornographic images depicted
different children. Police identified one pornographic image on the desktop computer’s
hard drive and six pornographic images on the computer tower’s hard drive . The police
14
investigator testified that the image from the desktop computer (exhibit 59, count one)
depicted a girl of approximately two to three years of age. He also testified about each of
the images on the computer tower’s hard drive. He described exhibit 60 (count two) as a
still picture from a video depicting an identified girl from the registry of the National Center
for Missing and Exploited Children (NCMEC). Exhibit 61 (count three) was also a
thumbnail of a video showing a known girl from the NCMEC registry. Exhibit 62 (count
four) was a thumbnail p hoto of an underage girl from a pornographic film commonly
referred to at the NCMEC as the “Vicky series.” Exhibit 63 (count five) showed a juvenile
boy engaging in a sexual act with an adult woman. Exhibit 64 (count six) was a thumbnail
of another known video involving an underage girl. And exhibit 65 (count seven) is another
known image of child pornography, a thumbnail of a video depicting a young, prepubescent
female.
Each exhibit portraying a pornographic image was received into evidence without
objection. Some exhibits provide descriptive information, including the file’s name and
size, the date the file was created, modified, and access ed, and the metadata path tracking
how each file was stored on the computer. Several of the file names also note the age or
ethnicity of the child. For example, exhibit 61 (count three) states that the image depicts an
eight-year-old Brazilian girl. Exhibit 62 (count four) provides that the girl in the Vicky
series is six years old. Exhibit 63 (count five) notes that the boy is 13 years old.
The district court also considered the presentence investigation (PSI) report before
sentencing Rierson. The PSI more descriptively identified the child ren in each
pornographic image. For example, the PSI noted that the image on exhibit 60 (count two)
15
depicted a female child between the ages of five and eight. The image on exhibit 64 (count
six) included a “known juvenile female .” And the image on exhibit 65 (count seven)
showed a female child between the ages of two to five.
Based on the police investigator’s testimony, the description s set forth in some of
the admitted exhibits, and the details provided for each image in the PSI, we cannot say
that the district court clearly erred by implicitly finding that the images depict different
children. The district court therefore did not abuse its discretion by imposing consecutive
sentences for each count of the conviction.
Affirmed.