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This opinion will be unpublished and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
A17-0582

State of Minnesota,
Respondent,

vs.

Shane Anthony Spicer,
Appellant

Filed April 30, 2018
Affirmed in part, reversed in part, and remanded
Worke, Judge

St. Louis County District Court
File No. 69DU-CR-14-1701

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the evidence supporting his first -degree criminal -sexual-
conduct convictions was insufficient and he was denied a fair trial when the district court

2
admitted evidence of prior domestic abuse and infidelity. Appellant also argues that the
district court erred by convicting him of multiple crimes arising from a single behavioral
incident. We affirm in part, reverse in part, and remand.
FACTS
Appellant Shane Anthony Spicer and his wife, A.S., had three children. The
youngest child, T.S., was born in May 2000. The Spicer family lived in Alborn for most
of T.S.’s childhood. Spicer and A.S. divorced in 2012; Spicer moved out and the children
lived with A.S.
In early 2014, T.S. was unable to concentrate in school, was “crying all the time,”
and had anxiety attacks. T.S. told her ex -boyfriend that Spicer had raped her. She then
told the school nurse the same thing. The nurse told A.S. and social services. A.S. asked
her nephews if Spicer had ever touched them inappropriately, to whi ch both answered
affirmatively.
In February 2014, Melissa Lehr , a county child -protection investigator, conducted
a video-recorded interview with T.S. During the interview, T.S. stated that when she was
seven or eight, she was lying in bed with Spicer in her parents’ bedroom when he raped
her. T.S. explained that she was cuddling with Spicer when he pulled down her pants and
started touching her vagina, which she identified as her “no-no spot,” with his fingers. She
said that Spicer then took off his pa nts and put his penis, which she identified as his “no-
no spot,” insider her “no -no spot.” T.S. said that she started crying and Spicer stopped.
She told Lehr that Spicer rolled over and tried to fall asleep . T.S. told Lehr that she went
to the living room and watched television until she fell asleep.

3
Spicer was charged with two counts of first -degree criminal sexual conduct
involving T.S., one count of first -degree criminal sexual conduct involving one nephew,
and four counts of second-degree criminal sexual conduct involving both nephews. In his
pretrial motions , Spicer moved for an order prohibiting: (1) the state from eliciting
testimony regarding or referencing Spicer’s prior convictions or other instances of
domestic a buse; (2) testimony about or reference to Spicer hitting A.S. or chasing her
“down the road and dragging her back by her hair”; and (3) testimony about or reference
to “[Spicer] thinking that [A.S.] was cheating on him .” The district court granted the
motions, albeit reserving a ruling on the last motion for trial.
At trial, T.S. testified consistently with her report to Lehr. T.S. testified that when
she began crying during the assault and Spicer stopped, he “told [her] it was okay and . . .
he said, Daddy never tried to hurt you, and he told [her] that he loved [her].”
When asked how she felt about her parents getting divorced, T.S. testified that she
thought it was for the best becau se “they fought all the time, both screaming and actually
physically fighting all the time.” Spi cer did not object to this testimony. One of Spicer’s
nephews testified that Spicer was no longer his uncle because A.S. could not “take any
more of him cheating [and] lying, so they have to be divorced.”
A.S. testified that her marriage to Spicer deteriorated and “got abusive and cheating
started and basically [they] just started hating each other.” A.S. testified that she decided
that she did not want to stay with Spicer “because of a certain affair he had.” She also
testified that the marriage was “p hysically violent” and that Spicer “did get a ccused by

4
people in Alborn of doing things and . . . you have to ask your kids.” Spicer did not object
to these statements.
The jury found Spicer guilty of two counts of first -degree criminal sexual conduct
involving T.S. and not guilty of the remaining counts. The district court sentenced Spicer
to 154 months in prison on one count, but did not impose a sentence on the other. The
warrant of commitment , however, indicated that Spicer was convicted of two coun ts of
first-degree criminal sexual conduct. This appeal followed.
D E C I S I O N
Sufficiency of the evidence
Spicer argues that the evidence was insufficient to support his convictions because
the state’s case rested entirely on T.S.’s uncorroborated te stimony. In reviewing a claim
of insufficient evidence, this court reviews the record to determine whether the evidence,
when viewed in the light most favorable to the verdict, is sufficient to allow the jury to
reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court
will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guil ty of the charged offense. Bernhardt v. State , 684
N.W.2d 465, 476-77 (Minn. 2004). The reviewing court assume s that the jury “believed
the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438
N.W.2d 101, 108 (Minn. 1989).
Under Minnesota law, “the testimony of a [sexual assault] victim need not be
corroborated.” Minn. Stat. § 609.347, subd. 1 (2016). Spicer acknowledges that T.S.’s

5
testimony need not be corroborated to sustain his conviction s, arguing instead that in the
absence of corroborating evidence, T.S.’s testimony was too contradictory and suspect to
sustain his convictions. Spicer relies on State v. Huss, 506 N.W.2d 290 (Minn. 1993), and
State v. Foreman, 680 N.W.2d 536 (Minn. 2004) for support.
In Huss, the supreme court overturned the appellant’s conviction based on the
alleged victim’s uncorroborated testimony. 506 N.W.2d at 292 -93. T he only direct
evidence that a three -year-old child had been abused by her father came from the child’s
testimony, but her testimony was “particularly troublesome.” Id. at 292. The child testified
for nearly an hour before making any accusation of abuse; she accused both of her parents
of inappropriate touching; she denied having “yucky secrets”; she testified that six people
had touched her private parts; she included a touch to her hair and a hug as “bad touches”;
she had not seen her father for a year before trial, but testified that she had taken a shower
at his house on the day she testified; she was unable to identify her father in the courtroom;
and she described her father as bald and blind, although he was neither . Id. at 292. In
addition, the child was repeatedly exposed to a highly suggestive book on sexual abuse.
Id. at 292-93. Based on the “unusual facts” of the case, the supreme court determined that
the uncorroborated testimony was insufficient to support a criminal -sexual-conduct
conviction. Id. at 293.
In Foreman, the supreme court rejected the appellant’s argument that the victim’s
uncorroborated testimony was insufficient to support the conviction. 680 N.W.2d at 539.
The supreme court noted that it had previously affirmed a conviction based on a single
witness’s testimony even though the witness had previously stated that he woul d testify

6
against the defendant because of personal dislike. Id. (citing State v. Hill, 285 Minn. 518,
518, 172 N.W.2d 406, 407 (1969)). The supreme court also discussed State v.
Reichenberger, in which it affirmed “a conviction of having sexual interco urse with a
minor, even though the victim made conflicting statements at various times prior to trial,
because at trial she testified positively that intercourse had occurred.” Id. (citing 289 Minn.
75, 78, 182 N.W.2d 692, 694 (1970)). The supreme court noted that it was significant in
Reichenberger that the jury was apprised of the prior inconsistent statements. Id. (citing
289 Minn. at 79, 182 N.W.2d at 695). The supreme court further noted that in the cases
when it determined that the uncorroborated testimony of a victim was insufficient alone to
sustain a conviction, there were “additional reasons to qu estion the victim’s credibility. ”
Id. These include expert testimony that the victim was exposed to highly suggestive
materials, actions by the vict im that were unexplained or questionable, or errors in the
lineup process. Id.
Here, Spicer points to inconsistencies between T.S.’s statement to Lehr and her trial
testimony. In particular: T.S. told Leh r that Spicer said nothing to her after the inci dent,
but T.S. testified that he said he loved her and that he never tried to hurt her; T.S. told Lehr
that Spicer was wearing pajama pants and a black shirt prior to the sexual contact, but T.S.
testified that Spicer was wearing boxer shorts; T.S. told Le hr that the incident took place
between fall and winter, but T.S. testified that it occurred in February; and T.S. told Lehr
that Spicer touched her vagina with his fingers before penetration, but T.S. did not mention
this touching at trial.

7
These inconsistencies do not rise to the level of those in Huss. Furthermore, T.S.’s
testimony was mostly consistent with her statement to Lehr, including that Spicer
penetrated her with his penis . See Reichenberger, 289 Minn. at 78, 182 N.W.2d at 694
(affirming conviction despite the victim’s inconsistent statements when the victim testified
at trial that intercourse occurred). Additionally, defense counsel cross-examined T.S. about
these inco nsistencies and discussed them during closing argument. See id. at 79, 18 2
N.W.2d at 695 (affirming conviction when the jury was apprised of the victim’s
inconsistent statements). Based on this record, we conclude that there was sufficient
evidence to convict Spicer of first-degree criminal sexual conduct.
Prejudicial testimony
Spicer argues that the district court denied him a fair trial by allowing testimony
repeatedly referring to matters it had already excluded. Whether a criminal defendant was
denied a fair trial is a constitutional question that this court reviews de novo. State v.
Dorsey, 701 N.W.2d 238, 249 (Minn. 2005).
Spicer relies on State v. Hogetvedt for the proposition that he is entitled to a new
trial because the jury was exposed to prejudicial material, thus depriving him of a fair trial.
623 N.W.2d 909 (Minn. App. 2001), review denied (Minn. May 29, 2001). In Hogetvedt,
a police officer testified that he believed that the defendant was guilty of assault despite
the district court’s ruling that such testimony was inadmissible. Id. at 914. This court
stated that “[j]ury exposure ‘to potentially prejudicial material creates a problem of
constitutional magnitude, because it deprives a defendant of the right to an impartial jury.’”

8
Id. (quoting State v. Cox , 322 N.W.2d 555, 558 (Minn. 1982)). We concluded that the
defendant was denied a fair trial as a result of the officer’s testimony. Id. at 916.
In Cox, the supreme court considered whether the district court abused its discretion
in determining that the appellant could still obtain a fair trial despite a remark by a sheriff
acting as bailiff that he believed the pros ecution had proved its case. 322 N.W.2d at 557-
58. The supreme court noted th at “the proper procedure for reviewing a jury verdict is to
determine from juror testimony what outside influences were improperly brought to bear
upon the jury and then estimate their probable effect on a hypothetical average jury.” Id.
at 559 (emphasis added). The supreme court stated that, to determine whether a defendant
has been deprived of the right to an impartial jury due to potentially prejudicial matter s,
courts should consider “the nature and source of the prejudicial matters, the number of
jurors exposed to the influence, the weight of evidence properly before the jury, and the
likelihood that curative measures were effective in reducing the prejudice.” Id.
We read Cox as instructing courts to apply those factors to circumstances in which
the jury was exposed to an outside influence, rather than trial testimony. This reading is
consistent with the supreme court’s analysis in State v. Erickson, in which the court stated
that “Cox instructs courts to determine from juror testimony what outsid e influences were
improperly brought to bear upon the jury and then estimate their probable effect on a
hypothetical ave rage jury.” 610 N.W.2d 335, 339 (Minn. 2000) (quotation omitted).
Admittedly, in Hogetvedt, we applied the Cox factors to prejudicial trial testimony. 623
N.W.2d at 914. However, in that case, we emphasized that the police officer’s testimony
was “egregious” because, “[i]n essence, he told the jury he believed [the] appellant was

9
guilty.” Id. at 915. Furthermore, before trial, the district court stated that opinion testimony
of this nature would be “totally improper .” Id. Finally, this court noted that given the
witness’s “status as a police officer, he may have unduly influenced the jury.” Id.
Here, Spicer argues that portions of witnesses’ testimony were similarly prejudicial
to the testimony in Hogetvedt. In particular, T.S. testified that her parents frequently
fought, A.S. testified that her marriage to Spicer was abusive, physically violent, and
involved infidelity by Spicer, and Spicer’s nephew testified that Spicer and A.S. divorced
because of Spicer’s infidelity. A.S. also testified that Spicer had been accused by people
in Alborn of “doing things.” However, unlike Cox, Spicer does not argue that there was
any outside influence on the jury. Furthermore, even applying the Cox factors in this case,
this testimony does not rise to the same “egregious” level as in Hogetvedt. None of these
witnesses are police officers and none of them invaded the province of the jury by testifying
that the state had met its burden of proof. We conclude that the district court’s admission
of this testimony did not deprive Spicer of a fair trial.1
Sentencing
The parties agree that this court should vacate the conviction on count two because
counts one and two arose out of a single behavioral incident. Whether multiple offenses
form part of a single behavioral act is a question of fact, “[b]ut where the facts are

1 Although the state addressed in its brief whether the district court plainly erred or abused
its discretion by admitting prejudicial testimony, Spicer does not advance those arguments
or cite supporting caselaw. We decline to address t hose arguments because they are not
properly before this court. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997)
(stating that issues not briefed on appeal are not properly before this court), review denied
(Minn. Aug. 5, 1997).

10
established, the determination is a question of law subject to de novo review. ” State v.
Grampre, 766 N.W.2d 347, 353-54 (Minn. App. 2009) (quotation omitted), review denied
(Minn. Aug. 26, 2009).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2006). The
supreme court has interpreted this statute to mean that “a defendant may not be convicted
of two counts of criminal sexual conduct . . . on the basis of the same act or unitary course
of conduct.” State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989). A “[c]onviction” refers
to either a guilty plea or “[a] verdict of guilty by a jury” that is “accepted and recorded by
the court.” Minn. Stat. § 609.02, subd. 5 (2006).
When a defendant is found guilty on multiple charges for the same act, the district
court should formally adjudicate and impose sentence on only one count . State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). The other guilty verdicts should not be
formally adjudicated at that time. Id. “If the adjudicated conviction is later vacated for a
reason not relevant to the remaining unadjudicated [guilty verdicts], one of [them] can then
be formally adjudicated and sentence imposed . . . .” Id.
There is no dispute that the jury found Spicer guilty of two co unts of first -degree
criminal sexual conduct arising out of a single incident. Because the warrant of
commitment indicates that Spicer was convicted of two counts of first -degree criminal
sexual conduct, we conclude that Spicer was formally convicted of both counts. See State
v. Pflepsen , 590 N.W.2d 759, 767 (Minn. 1999) (“[W]e typically look to the official
judgment of conviction . . . as conclusive evidence of whether an offense has been formally

11
adjudicated.”). Therefore, we reverse in part and remand to the district court with
instructions to correct the warrant of commitment to reflect judgment of conviction of only
one count of first-degree criminal sexual conduct.
Pro se issues
In his pro se supplemental brief, Spicer argues that he is entitle d to a new trial
because: (1) a biased juror was impaneled; (2) his attorney was ineffective for failing to
strike that juror; (3) he was denied his constitutional right to confront his accuser; (4) his
attorney was ineffective for failing to raise objections at trial; (5) his attorney was biased
against him; and (6) the district court abused its discretion by limiting expert testimony.
We have carefully reviewed the substance of each pro se claim and relevant caselaw, and
conclude that the claims are without merit. See Ture v. State , 681 N.W.2d 9, 20 (Minn.
2004) (rejecting pro se claims without articulating reasoning for each claim).
Affirmed in part, reversed in part, and remanded.