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This opinion will be unpublished and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
A17-1248

State of Minnesota,
Respondent,

vs.

Larry Gene Lester,
Appellant.

Filed July 16, 2018
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Waseca County District Court
File No. 81-CR-17-68

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

Brenda Miller, Waseca County Attorney, Rachel V. Cornelius, Assistant County Attorney,
Waseca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Larry Lester was convicted of a nd sentenced for both first-degree sale of
a controlled substance (sales aggregated ov er 90 days) and second-degree sale of a

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controlled substance (sale in a school zone ). Lester challenges his convictions, arguing
that the district court erred in admitting ev idence of a previous dr ug-possession offense.
Lester also argues that the district court erred in convicting him of and sentencing him for
both the first- and second-degre e sales crimes. Because any error by the district court in
admitting the previous-offense evidence was not prejudicial, we affirm his first-degree sale
conviction. But because the district court erred in entering a conviction for the second-
degree sale offense, we reverse that convic tion and remand to the district court with
instructions to vacate it.
FACTS
On December 14 and 16, 2016, and January 9 and 17, 2017, the South Central Drug
Investigation Unit (SCDIU) conducted four separate controlled buys in which Lester sold
methamphetamine totaling over 17 grams to two different c onfidential informants (CIs).
Agent Joseph Linde was the representative from SCDIU principally working with the CIs
on the controlled buys, and he led three of the four controlled buys.
Lester was charged with one count of first-degree sale of a controlled substance (17
grams or more, sales aggregated over 90 da ys) under Minn. Stat. § 152.021, subd. 1(1)
(2016), and one count of second-degree sale of methamphetamine (sale in school zone)
under Minn. Stat. § 152.022, subd. 1(7)(ii) (2016). Before trial, the state filed notice of its
intent to offer evidence of multiple previous controlled-substance offenses by Lester under
Minn. R. Evid. 404(b). Lester objected. After a hearing, the district court allowed the state
to introduce evidence of on ly one offense—Lester’s 20 15 offense of fifth-degree
controlled-substance possession in Steele County.

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A jury trial was held over two days. Agen t Linde testified to the details of the
controlled buys that SCDIU co nducted on December 14 thro ugh January 17. He also
briefly testified about Lester’s previous fifth-degree controlled-substance offense. One CI
testified that, on December 14 and 20, 2016 , she bought methamphetamine from Lester
during two controlled buys. The second CI testified that she bought methamphetamine
from Lester on January 9 and 17 , 2017, during two controlled buys. Video recordings of
the controlled buys were also played.
The jury found Lester guilty on both count s. Lester was adj udicated guilty by the
district court and sentenced to 105 months in prison for each of the two counts, the
sentences to be served concurrently.
Lester appeals.
D E C I S I O N
I. The admission of Lester’s previous po ssession-of-controlled-substance offense
was not prejudicial.

We review the district court’s decision to admit “evidence of other crimes, wrongs,
or acts for an abuse of discretion.” See State v. Welle, 870 N.W.2d 360, 365 (Minn. 2015).
Even if we determine that there was an abuse of discretion, we will affirm the district court
unless the appellant can also demonstrate that he was prejudiced by the erroneous
admission. See id. at 366.
Evidence of other crimes or misconduct, also referred to as Spreigl evidence, is not
admissible to show bad character or a propensity to behave criminally. State v. Spreigl ,
272 Minn. 488, 493, 139 N.W.2d 167, 170 (1965). It may be allowed, however, if offered

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for a limited non-propensity purpose such as showing “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid.
404(b).
In admitting evidence of Lester’s prev ious offense of controlled-substance
possession, the district court reasoned:
The Spreigl act was possession, the State claims in order to sell
methamphetamine he had to possess it. Further, prior
convictions of the same controlled substance shows knowledge
of the controlled substance an d absen[ce of] a mistake to
possess it. The Spreigl conduct in Steele County is sufficiently
material to the State to aid th eir case in showing Defendant’s
knowledge and lack of mistak e of possessing the controlled
substance.

Lester contends that neither his knowle dge nor a lack of mi stake was at issue
because he never contested that he knew wh at methamphetamine was nor did he suggest
he intended to sell a different substance and mistakenly sold methamphetamine. The state
responds by emphasizing that controlled-s ubstance crimes require proof of “actual
knowledge” that the de fendant possessed a controlled substance. See State v. Ali , 775
N.W.2d 914, 919 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010). Thus,
according to the state, “[w] hen knowledge is an elemen t of the charged offense, Spreigl
evidence is admissible to prove that element.”
The Minnesota Supreme Court’s decision in State v. Rossberg calls the state’s
argument into question. 851 N.W.2d 609 (Minn. 2014). In Rossberg, the defendant moved
to preclude the state from offe ring evidence of his past bad conduct because it was

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irrelevant. Id. at 614. In concluding that the district court erred by admitting testimony of
the defendant’s prior bad acts, the supreme court explained:
[W]e review “whether the . . . rationale cited by the district
court provides a proper basis upon which to admit the . . .
evidence,” State v. Fardan, 773 N.W.2d 303, 317 (Minn. 2009)
(emphasis added) . . . . In short, because the “precise disputed
fact[s]” identified by the court were either not precise or not
disputed, they did not support admission of Spreigl
evidence . . . .

Id. at 615-16.
Here, the district court allowed the state to introduce evidence of Lester’s previous
fifth-degree controlled-substance offense by reasoning that the offense would help show
Lester’s “knowledge and lack of mistake of possessing the controlled substance.” Yet,
similar to Rossberg, the district court did not identify the “precise disputed fact” to which
Lester’s prior drug offense was relevant. While the court stated the language of rule 404(b),
it did not identify as disputed facts Lester’s knowledge of methamphetamine or his intent
to sell methamphetamine rather than another substance.
Moreover, at trial, the state did not us e the evidence for the district court’s
authorized purposes of showing Lester’s knowledge and absence of mistake. During Agent
Linde’s testimony, the district court read to the jury a stipulation by the parties describing
Lester’s prior offense and gave a cautionary instruction:
The parties stipulated that they will be introducing evidence of
defendant’s prior conviction, which defendant was charged on
November 8, 2014, and convicted on May 18, 2015, of fifth-
degree controlled-substance possession, in Steele County,
Minnesota. This evidence is being offered for the limited
purpose of assisting you in determining whether the defendant
committed those acts which the de fendant is charged in the

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complaint. The defendant is not being tried for and may not be
convicted of any offense other than the charged offenses. You
are not to convict the defendant on the basis of the occurrences
on November 8, 2014, in Steele County, Minnesota. To do so
might result in unjust double punishment.

Following this explanation, Agent Linde was briefly que stioned by the prosecutor
about Lester becoming a “target” for the c ontrolled buys. Agent Linde responded that,
during the investigation proce ss, he “did learn that Mr. Lester did have a criminal
background,” which was “the conviction that th e judge just relayed to the jury.” The
prosecutor then asked Agent Linde to confirm that this “conviction” was from 2015, which
he did. This was the extent of the evidence regarding Lester’s prior bad act. Notably, in
her brief questioning, the prosecutor never identified for the ju ry that this conviction was
for methamphetamine possession—the key piece of information that would have made the
offense relevant for the permissible purposes pr eviously identified by the district court.
Rather, at trial, the offense was identifie d only as “fifth-degree controlled-substance
possession.”
Nevertheless, we conclude th at any error in admitting th e evidence was harmless.
Erroneous admission of other-acts evidence cons titutes reversible error only if there is a
“reasonable possibility that the wrongfully ad mitted evidence significa ntly affected the
verdict.” State v. Ness, 707 N.W.2d 676, 691 (Minn. 2006). Relevant factors to consider
in making this determination include the pros ecutor’s reliance on the evidence in closing
argument, the presence of a limiting instruc tion to the jury, and the strength of the
prosecution’s other evidence of guilt. State v. Bolte , 530 N.W.2d 191, 198-99 (Minn.
1995).

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At the outset, we observe that the test imony regarding the prior offense was brief
and limited to Agent Linde’s direct examin ation. Moreover, the prosecutor made no
mention of the evidence in closing argument. And the district court gave two cautionary
instructions on the use of the Spreigl evidence, forbidding the jury from convicting Lester
based on this prior incident. We presume jurors follow the district court’s instructions and
recognize that cautionary instructions minimize the prejudicial effect of Spreigl evidence.
See State v. Clark, 755 N.W.2d 241, 261 (Minn. 2008).
Moreover, the other evidence against Lester was strong. The state’s case included
two different CIs identifying Le ster as the person who sold them methamphetamine on a
total of four different occasi ons; two drug-task-force agents testifying about the four
controlled buys; and videos of ea ch incident, which were played for the jury. In at least
two of these videos, Lester’s face is visible as he entered the passenger side of the CI’s
vehicle and as he exited the vehicle after spending just a short period of time in the vehicle
with the CI. The CIs and task -force officers all testified that the CIs and their vehicles
were thoroughly searched immediately befo re the controlled buy, that the CIs drove
directly to and from the controlled-buy locations while followed by law enforcement, and
that officers met with the CIs directly after each controlled buy and were given a small bag
that tested positive for methamphetamine. Th is evidence overshad owed any error in
admitting the prior-bad-act evid ence. Therefore, it is unlik ely that the admission of
Lester’s prior conviction significantly affected the verdict. Because there is no “reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict,” we

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conclude that any error in admitting evidence of Lester’s prior offense was not prejudicial.
See Ness, 707 N.W.2d at 691.
II. The district court erred by entering a conviction of and sentence for second-
degree controlled-substance crime.

Lester argues that the district court erre d in entering a conviction of and sentence
for his second-degree sale crime because the sales underlying that conviction were among
the aggregated sales forming th e predicate for the first-degree sales offense. The state
counters that the second-degree sale convicti on is proper but asserts that the sentence for
that offense should be vacate d because both offenses were pa rt of the same behavioral
incident.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offens e, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). “If
the lesser offense is a lesser degree of the same crime or a lesser de gree of a multi-tier
statutory scheme dealing with a particular s ubject, then it is an ‘included offense’ under
section 609.04.” State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995); see also Minn. Stat
§ 609.04, subd. 1(1) (stating that “[a] lesser degree of the same crime” is an included
offense). The Minnesota Supreme Court has held that the proper procedure “[w]hen the
defendant is convicted on more than one char ge for the same act is for the court to
adjudicate formally and impose sentence on one count only. The remaining conviction(s)
should not be formally adj udicated at this time.” State v. LaTourelle , 343 N.W.2d 277,
284 (Minn. 1984).

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In this case, the district court entered a conviction of first-degree aggregated sales
under Minn. Stat. § 152.021, subd. 1(1), and a conviction of second-degree sale in a school
zone under Minn. Stat. § 152.022, subd. 1(7)(ii). The drug sales on December 20, 2016,
and January 17, 2017 were the sales underlying Lester’s second-degree sale conviction.
See Minn. Stat. § 152.022, subd. 1(7)(ii) (m aking it a second-degree sales crime to sell
“one or more mixtures” of methamphetamine in a school zone). The same sales were two
of the four drug sales that were aggregated to meet the statutory threshold necessary to
convict Lester of the first-degree sale crime. See Minn. Stat. § 152.021, subd. 1(1) (making
it a first-degree sale crime to sell more than 17 grams of methamphetamine in a 90-day
period). Thus, the second-degree sale convi ction was a second conviction under a multi-
tiered statutory scheme for acts committed during a single behavi oral incident. See
Hackler, 532 N.W.2d at 559; see also State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985)
(“[S]ection 609.04 bars multiple convictions under different sections of a criminal statute
for acts committed during a single behavioral incident.”).
The state argues that “multiple drug sales over a period of several days” constitute
multiple incidents, and therefore Minn. Stat. § 609.04, subd. 1, is not a bar to multiple
convictions. The state relies on State v. Soto , in which the Minn esota Supreme Court
affirmed the multiple sentences of an individual convicted of four counts of first-degree
controlled-substance crime based on four cocai ne sales that took place on four different
days. 562 N.W.2d 299, 301-02 (Minn. 1997).
Soto differs from this case in at least two important aspects. First, in Soto the
defendant appealed only his sentences, not his convictions. Id. at 302 (noting that, although

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in his first appeal the defend ant “appealed the jury’s convic tions as well as the sentences
imposed,” after a remand “[i]n this second appeal, [the de fendant] again challenged his
sentence” with no mention of a challenge to his convictions ). Thus, the court was not
considering what constituted a conviction of a lesser offense under Minn. Stat. § 609.04,
but rather the different question of wh ether, assuming multiple convictions were
appropriate, the district court could sentence the defendant on each conviction.
Second, in Soto each of the four sales in questi on independently involved enough
cocaine to support a first-degree controlled-substance crime conviction. See id. at 301-02
(noting that each sale involved more than ten grams of cocaine, the amount required for
first-degree controlled-substance crime cocaine sale in 1992). In this case, however, all
four of Lester’s sales must be aggregated to reach the 17-gram threshold required to sustain
a charge of first-degree controlled-substance crime. If either school-zone sale is removed
from the aggregate and made an independent offense, then the remaining aggregated sales
would total less than 17 grams. Thus, to c onvict Lester of both first- and second-degree
controlled-substance crimes would be to “to adjudicate formally and impose sentence”
twice for the same, singular act—selling methamphetamine in a school zone—in violation
of Minn. Stat. § 609.04 and the supreme court’s instructions in LaTourelle. Entering a
conviction of second-degree controlled-substance crime was therefore error. Accordingly,
we reverse that conviction and remand to the district court to vacate the second-degree-sale
conviction and amend the warrant of commitment.
Affirmed in part, reversed in part, and remanded.