A17-1623

This opinion will be unpublished and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
A17-0610
A17-1623

State of Minnesota,
Respondent,

vs.

Leslie Paul Johnson,
Appellant.

Filed May 21, 2018
Affirmed in part and remanded
Rodenberg, Judge

Watonwan County District Court
File Nos. 83-CR-15-490, 83-CR-15-465

Lori Swanson, Attorney Gene ral, Edwin W. Stockmeyer, A ssistant Attorney General,
St. Paul, Minnesota; and

Stephen Lindee, Watonwan County Attorney, St. James, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In these consolidated appeals, appella nt Leslie Paul J ohnson challenges his
convictions for criminal sexual conduct and possession of pornographic work. He argues

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that the district court erred by finding that the search warrant, wh ich enabled police to
obtain the child-pornography evidence, was supported by probable cause. He also argues
that, ancillary to that probab le-cause finding, the district court erroneously denied his
motion to suppress evidence seized from his apartment. 1 Appellant also argues that the
district court erred by not making a factual finding concerning which offense occurred first
before sentencing. Appellant also argues in a pro se brief that he received ineffective
assistance of trial counsel in file A17-1623. We affirm a ppellant’s convictions in both
appeals, and remand to the district court for additional findings in appellate file A17-1623.
FACTS
An employee with Brown County Family Service Center contacted Madelia Police
Officer Travis Bottelson on Ma y 15, 2015 regarding a report of sexual abuse alleged to
have occurred between 2010 and 2012. T.B., ag e 15 at the time, told his therapist that
appellant sexually molested him during those years, when T.B. wa s between 10 and 12
years old. Officer Bottelson interviewed T.B. on May 16, 2015.
T.B. told the officer that he knew appellant from the Younger Brothers organization,
and that T.B. often spent the night at appellant’s home. T.B. reported that appellant would
tell T.B. that T.B. was “dirty” and would help T.B. shower, which included washing T.B.’s
hair and body. He reported that appellant grabbed T.B.’s backside, fondled T.B.’s genitals,
tried to convince T.B. to sleep in appellant’s bed with appellant, laid on the couch behind
T.B. in a “spoon” position, stro ked T.B.’s side, “place[d] his hands in the back of T.B.’s

1 The evidence that appellant sought to suppress in both cases resulted from the same search
warrant.

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pants and digitally penetrate[d] T.B.’s rectum.” T.B. also told Officer Bottelson that
appellant would grab his backsi de while they wrestled. T.B. estimated that appellant
touched him inappropriately about 30 times.
Officer Bottelson spoke with appellant on June 8, 2015 at the police station. The
officer read the Miranda warning to appellant and asked appellant about the incidents that
T.B. had reported. Ap pellant admitted that T.B. would spend the night at his house and
admitted that he helped T.B. shower, but a ppellant denied any inappropriate touching.
Officer Bottelson noted that appellant seemed “nervous as he was stammering his words
when answering [the officer’s] questions.”
Officer Bottelson arrested appellant after the interview. Appellant asked if he could
retrieve his medications from his apartment. Officer Bottelson took appellant to his
apartment, but appellant changed his mind and to ld the officer that he did not need to go
inside the apartment and would have someone else get the medications instead. As of the
next day, appellant had not a rranged for anyone to retrieve his medications or to care for
the pets that he told Officer Bottelson were in his apartment. Officer Bottelson later took
the keys for appellant’s apartment building to return them to the building owner. While
Officer Bottelson was returning the keys, an officer from the jail called Officer Bottelson
to tell him that appellant had, on learning th at Officer Bottelson was going to appellant’s
apartment with the keys, become “visibly upset and nervous” and spilled his coffee.
In his affidavit accompanying a search-warrant application, Officer Bottelson stated
that he learned through his investigation that appellant “carries a camera on his person at
all times,” that appellant “likes to use his video recorder,” and that appellant “had access

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to children previously while babysitting.” Officer Bottelson had found a camera in a pouch
on appellant’s belt when appellant was booked in to jail. He included in the affidavit that
appellant had been investigated about 25 years earlier for sexual misconduct with a child,
but that there was insufficien t evidence to file charges th en. Officer Bottelson also
explained that, from his training and experience, he “knows that computers and the internet
ha[ve] become a common tool for those who get sexual gratification from viewing images
of children, and/or interacting with minors,” and that those who have access to minors may
exploit them through photographs or video.
A district court judge signe d the search warrant on June 9, 2015, authorizing the
search of appellant’s apartm ent for evidence of child por nography. Law enforcement
officers executed the search warrant and rec overed “multiple hard drives, computers,
camera recording equipment, digital camera s, multiple CDs [and] DVDs.” Forensic
analysis of the recovered devices revealed “s everal hundred” photographs and 18 videos
of children who were partially or fully naked, including some photographs that were
cropped to highlight the children’s private parts.
The state charged appellant, in what is now appellate case file A17-1623, with three
counts of second-degree crim inal sexual conduct, one coun t of using minors in sexual
performances or pornographic work, one count of possessing child pornography, one count
of malicious punishment of a child, and one co unt of indecent exposure to a minor. In a
separate complaint, now appellate case file A17-0610, the state charged appellant with
three counts of second -degree criminal sexual conduct, two counts of using minors in
sexual performances or pornographic work, tw o counts of possessing pornographic work

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on a computer disc or electronic storage system, and one count of malicious punishment of
a child.
Appellant challenged the validity of the se arch warrant and moved to suppress all
evidence obtained from it. Th e challenge to the search warrant was heard by a different
judge than the one who signed the warrant. This second judge found that the warrant was
supported by probable cause, and denied appellant’s motion to suppress.
Later, the charges of using minors in sexual performances or pornographic works
and the charge of malicious punishment in both files, and the indecent-exposure charge in
file A17-1623, were dismissed on statute-of- limitations grounds. One count of second-
degree criminal sexual conduct in each file was dismissed because the child’s age did not
qualify as a mental impairment under the stat utory provision charge d. None of these
dismissed charges are significant to this appeal.
Appellant waived his right to a jury in file A17-0610. After trial to the court, the
district court found appellant guilty of tw o counts of second-degree criminal sexual
conduct and two counts of possessing pornogra phic work. Appellant appealed, arguing
that the search warrant was unsupported by probable cause and that the resulting evidence
should therefore have been suppressed.
In file A17-1623, appellant submitted the charges to the court for a stipulated-facts
trial, and the parties agreed that the dispositiv e issue in that case was the validity of the
search warrant. The district court describe d in detail the rights that appellant would be
waiving by agreeing to a stipulated-facts trial, including the right to testify at trial.
Appellant indicated that he understood the ri ghts that he was giving up, and the district

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court found that appellant had validly waived those rights. The district court found
appellant guilty of two counts of second-degree criminal sexual conduct and one count of
possession of pornography in that file.
The presentence investigation (PSI) in file A17-1623 recommended that the district
court sentence appellant to 119 months in prison on the first crim inal-sexual-conduct
conviction, 300 months in prison on the se cond criminal-sexual-conduct conviction, and
60 months in prison on the po rnography conviction. The stat e asked the district court to
follow that recommendation. Appellant’s attorney did not object. The district court then
sentenced appellant to 142 months in pr ison on the first criminal-sexual-conduct
conviction, 300 months in prison on the se cond criminal-sexual-conduct conviction, and
60 months in prison on the pornography conviction, to be served concurrently. Appellant
appealed.
This court issued an order consolidating the two appeals. Both appeals challenge
the probable cause supporti ng the search warrant, and the appeal in file A17-1623
challenges appellant’s sentence. Appellant separately filed a pro se brief in file A17-1623
alleging ineffective assistance of counsel.
D E C I S I O N
I. The district court had a substantial ba sis for concluding th at probable cause
existed to support the search warrant.

Appellant argues that the district court erroneously denied his motion to suppress
the evidence seized from his apartment because the search warrant lacked probable cause.

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The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures. U.S. Const. amend.
IV; Minn. Const. art. 1, § 10. A search warrant may be issu ed by a neutral and detached
magistrate only upon a fi nding of probable cause. State v. Harris, 589 N.W.2d 782, 787
(Minn. 1999). When determining whether probable cause supports the issuance of a search
warrant, we do not engage in de novo review. State v. McGrath , 706 N.W.2d 532, 539
(Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Instead, our “only consideration
is whether the issuing judge ha d a substantial basis for conc luding that probable cause
existed.” State v. Fawcett , 884 N.W.2d 380, 384 (Minn. 2016) (quotation omitted). A
substantial basis in this context means a “fair probability,” given the totality of the
circumstances, “that contraband or evidence of a crime will be found in a particular place.”
State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted). We afford “great
deference” to the issuing judge’s finding of probable cause. State v. Wiley, 366 N.W.2d
265, 268 (Minn. 1985).
Our review “is limited to the information presented in the warrant application and
supporting affidavit.” Fawcett, 884 N.W.2d at 384-85. “[Appellate courts] must consider
the totality of the circumstances alleged in the supporting affidavit and must be careful not
to review each component of th e affidavit in isolation.” Id. at 385 (quotation omitted).
“[T]he critical question is whether the totality of facts and circumstances described in the
affidavit would justify a person of reasonable caution in believing th at the items sought
were located at the pla ce to be searched.” State v. Ruoho, 685 N.W.2d 451, 456 (Minn.
App. 2004), review denied (Minn. Nov. 16, 2004). We recognize “that doubtful or

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marginal cases should be largely determined by the preference to be accorded to warrants.”
Fawcett, 884 N.W.2d at 385 (quotation omitted).
Appellant argues that the information from T.B. that Officer Bottelson included in
the search-warrant affidavit was stale because of the passage of time between the alleged
incidents and the search-warrant application. Appellant also argues that the information in
the search-warrant affidavit was insufficient to provide the district court a substantial basis
supporting a nexus between T.B.’s allegations and the stated belief that evidence of child
pornography would be found at appellant’s apartment.
Stale information cannot be used to establish probable cause. State v. Jannetta, 355
N.W.2d 189, 193 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985). “[T]he
freshness of the information provided by the witness is an important factor for determining
the probability that contraband or evidence of a crime will be found in a particular place.”
State v. Carter, 697 N.W.2d 199, 206 (Minn. 2005) (quotation omitted). The United States
Supreme Court has said that a search-warrant application must contain proof “of facts so
closely related to the time of the issue of th e warrant as to justify a finding of probable
cause at that time.” Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932).
Courts have declined “to set arbitrary time lim its in obtaining a warra nt or to substitute a
rigid formula for the judge’s informed decision,” but rather evaluate the facts based on the
circumstances of each case. Jannetta, 355 N.W.2d at 193. This approach is flexible and
allows the courts to apply common sense. Id. Factors to be cons idered in determining
whether information contained in a search-warrant affidavit is stale include: “the age of
the person giving the information; whether th ere is any indication of ongoing criminal

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activity; whether the items sought are innocuo us or incriminating; whether the property
sought is easily disposable or transferable ; . . . and whether the property would have
enduring utility.” Id. at 193-94 (citations omitted).
Additionally, “a sufficient ‘nexus’ must be established between the evidence sought
and the place to be searched.” State v. Yarbrough , 841 N.W.2d 619, 622 (Minn. 2014).
“[D]irect observation of evidence of a crime at the place to be searched is not required.”
Id. “A nexus may be inferred from th e totality of the circumstances.” Id. A number of
circumstances inform a judge’s determination of whether such a ne xus exists, including
“the type of crime, the nature of the items sought, the extent of [a defendant’s] opportunity
for concealment,” and normal inferences about where a defendant would usually keep such
items. State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984).
The affidavit attached to the search-warrant application here contained information
that can be broken into five categories which, taken together, amount to a substantial basis
upon which the district court could find proba ble cause and issue the warrant. First, the
affidavit gave a detailed descri ption of appellant’s alleged ab use of T.B. over a two-year
period. Second, the affidavit referenced law enforcement’s suspicion that appellant had
engaged in similar conduct with other children in the past and had continuous access to
other children from his involvement in the Younger Brothers organization. These first two
circumstances support a conclusion of rep eated and ongoing criminal behavior by
appellant.
Third, Officer Bottelson had observed that appellant carried a camera when he was
arrested, and reportedly carried it with him at all times and used it quite frequently. These

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facts alleged in the search-warrant affidavit provide a link between the allegations and the
officer’s stated belief that appellant may have taken and may possess sexually explicit
images of minors.
Fourth, Officer Bottelson stated in the a ffidavit that his training and experience
informed him that persons with criminal sexual propensities toward minors and who have
access to minors may exploit the minors through photographs or video recordings, and that
computers and the internet may be used by persons who get sexual gratification from such
exploitation. “[A] police affiant’s training and experience can be a proper factor to
consider in making a probable-cause determination.” State v. Brennan, 674 N.W.2d 200,
204 (Minn. App. 2004) (citing State v. Miller, 666 N.W.2d 703, 714 (Minn. 2003)). Officer
Bottelson’s training and experience here pr ovided a common-sense link between T.B’s
allegations against appellant and the electronic devices in appellant’s apartment.
Finally, and we think significantly, appella nt’s conduct after his arrest evidenced
his desire that law enforcement not enter his apartment. While appellant was of course not
required to consent to law enforcement entering his apartment, it seems highly unusual that
appellant asked law enforcement to bring him to his apartment to retrieve his medications
after his arrest only to decide that he did not need the medications once he realized that the
officer, having arrested him earlier, would accompany him inside to retrieve it. Appellant
also became “visibly upset and nervous,” spilling his coffee, when he thought that Officer
Bottelson might enter his apartment while he wa s jailed. There were pets in appellant’s

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apartment, and yet appellant made no e ffort for their care after his arrest. 2 Appellant’s
conduct and demeanor demonstrate a peculiar level of concern with what was in his
apartment—and that police not enter the apartment, even at the expense of appellant’s
health and his pets’ well-being.
Given the totality of the ci rcumstances, the preference accorded to warranted
searches, and considering the deference owed to a district court’s probable-cause
determinations, we see no reversible error in the district court’s finding of a substantial
basis that probable cause supported the search warrant. Fawcett, 884 N.W.2d at 385.
II. Appellant has failed to establish an ineffective-assistance-of-counsel claim.
Appellant argues in a pro se supplemental brief that he received ineffective
assistance of trial counsel in file A17-1623.
When a “brief contains no argument or cita tion to legal authority in support of the
allegations[,] . . . we . . . deem [the issues] waived.” State v. Krosch, 642 N.W.2d 713, 719
(Minn. 2002). Because appellant’s pro se brief does not contain legal argument or citations
to legal precedent, we deem appellant to have waived his ineffective-assistance-of-counsel
claim.
Moreover, appellant’s ineffective-assistance-of-counsel claim is wholly lacking in
merit in any event. We analyze ineffectiv e-assistance-of-counsel claims under the two
elements of the Strickland test. State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App.

2 The record is unclear as to exactly what types of animals were in appellant’s apartment,
and we recognize that immediate care is a less-pressing matter for some animals. However,
it is significant that appellant made no effort at all after his arrest to arrange any type of
care for those animals.

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2017). “The defendant must affirmatively pr ove that his counsel’ s representation ‘fell
below an objective standard of reasonableness’ and ‘that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Gates v. State , 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). But “[w]e will generally
not review an ineffective-assistance-of-counse l claim that is based on trial strategy.”
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Trial-strategy decisions include what
evidence is presented to the factfinder. Id.; State v. Miller, 666 N.W.2d 703, 716 (Minn.
2003).
Appellant identifies a number of questions that he belie ves his trial counsel could
have asked at trial that may have bolstered hi s defense, and states that his attorney could
have presented other evidence. The presentation of evidence and what questions to ask of
witnesses falls squarely within the category of trial-strategy decisions that we do not
review.
Appellant also seems to argue that he was forced to submit the ca se to the district
court for a stipulated-facts trial because he knew that his attorney would not help him. But
“[t]he U.S. Supreme C ourt has ‘recognized that the accu sed has the ultimate authority to
make certain fundamental decisions regarding the case, as to whether to plead guilty, waive
a jury, testify in his or her own behalf, or take an appeal.’” Erickson v. State, 725 N.W.2d
532, 536 (Minn. 2007) (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312
(1983)). From the record on appeal, it is evident that appellant made the ultimate decision
of whether to proceed with a jury trial or to waive that right. The district court thoroughly

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discussed appellant’s rights with him and concluded that appellant “validly waived his right
to the jury trial with a unanimous verdict.” The district court specifically asked appellant
if he had talked through the d ecision with his attorney and if his attorney “fully advised
[him] and represented [his] interests.” Appe llant responded in the affirmative to both
questions. There is no basis on this record to conclude that appellant received ineffective
assistance from his trial counsel.
III. Appellant is entitled to further finding s concerning the order of his offenses in
file A17-1623.

Appellant argues that the district court erred by not making findings regarding the
order of the offenses for which he was sentenced and asks that the matter be remanded to
the district court for further factual findings. The state agrees that the district court did not
make such findings and that further proceedings in the district court are required.
When a district court sentences a defendant for multiple offenses at the same time,
the offenses “must be sentenced in the order in which they occurred” and each sentenced
offense is included “in the criminal history on the next offense to be sentenced” unless the
offenses arise from a single course of conduct . Minn. Sent. Guidelines 2.B.1.e (Supp.
2015); See State v. Hernandez , 311 N.W.2d 478, 480-81 (Minn. 1981) (providing that a
district court, when sentencing multiple fel ony offenses at the same time, should include
earlier-sentenced offenses in calculating a criminal-history score for each subsequent
offense). Generally, “[t]he district court’s determination of a defendant’s criminal-history
score will not be reversed absent an abuse of discretion.” State v. Maley, 714 N.W.2d 708,
711 (Minn. App. 2006). But “a district court ‘must use accurate criminal history scores.’”

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State v. Provost, 901 N.W.2d 199, 201 (Minn. App. 2017) (quoting State v. Maurstad, 733
N.W.2d 141, 142 (Minn. 2007)).
Because the record here contains no finding concerning th e order in which
appellant’s offenses were committed, it is un clear in which order the convictions should
have been sentenced and what criminal-histo ry scores should have been used for the
sentences in appellate file A17-1623. Theref ore, we remand file A17-1623 to the district
court to make factual findings concerning th e order in which the offenses occurred. See
State v. Kvam , 336 N.W.2d 525, 528 (Minn. 1983) (stating that appellate courts may
remand for findings when necessary to review the district court’s order).
In sum, we affirm appellant’s convicti ons in both appeals and remand in file
A17-1623 for additional findings as set forth in this opinion.
Affirmed in part and remanded.