State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0085

State of Minnesota,
Respondent,

vs.

Jason Lee Cooley,
Appellant.

Filed December 10, 2018
Affirmed
Smith, John, Judge*

Crow Wing County District Court
File No. 18-CR-16-4220

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant Jason Lee Cooley’s conviction of aggravated stalking because
the evidence was sufficient to sustain the jury’s verdict and any errors in the admission of
other acts evidence did not unfairly prejudice the appellant.
FACTS
On May 17, 2016, a Crow Wing County deputy sheriff responded to a report by
F.C., who is the father of appellant , regarding two stolen tractors. F.C. claimed that his
other son, C.C., had taken the tractors. After speaking with F.C. over the phone, the deputy
paid a visit to C.C.’s residence, where C.C. stated that “the issue between the tractors was
being handled in civil court.” The deputy observed that C.C. was “frustrated” by the
situation and “felt that he was being harassed by [F.C.] and [Cooley].”
After this visit, the deputy proceeded to F.C.’s sister’s house, where F.C. was
staying, to discuss the allegedly stolen tractors. While the deputy was speaking with F.C.,
Cooley arrived. The deputy testified that Cooley “immediately had a hostile attitude” and
that both Cooley and F.C. became upset. They asked the deputy for his badge number and
supervisor’s name, at which point the deputy called his supervisor and asked that he
respond to the residence. “[D]ue to [Cooley’s] hostile behavior” and bec ause he was
concerned for his own safety, the deputy waited outside until his supervisor arrived. The
supervisor and deputy spoke to Cooley and F.C. about the tractors, again telling them that
it was a civil issue to be handled in civil court. Eventually, Cooley asked the officers to
leave. The deputy recorded audio of his conversation with F.C. and Cooley.

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Later that evening, the deputy received a phone call from C.C. stating that C.C.’s
seventeen-year-old son (and Cooley’s nephew), L.C., had had a n encounter with Cooley
on County Road 8. Cooley’s and C.C.’s homes are adjacent to each other along County
Road 8, and much of the nearby land is owned by members of the Cooley family. The
deputy responded to C.C.’s home and separately interviewed L.C. and N.M, a friend of
L.C.’s who was present during the incident. The deputy also interviewed W.S., another
friend who was present during the incident, over the phone. L.C., N.M., and W.S. all
testified to a substantially similar version of what happened that evening.
L.C. testified that on the night of May 17, 2016, he, with the assistance of N.M. and
W.S., placed a flag on a pole in the back of his truck, which was par ked in his family’s
driveway. L.C. started down his driveway toward County Road 8 with the intention of
testing how well the flag flew. He stopped near the end of the driveway whe n the flag
became tangled. After he fixed the flag, L.C. saw the headlights of a car approaching on
County Road 8. The car swerved onto the driveway, at which point L.C. saw that his uncle,
Cooley, was driving and that Cooley’s girlfriend, E.K ., was in the passenger seat. L.C.
also saw that Cooley had his middle finger out, “flicking [L.C.] off.”
Cooley then continued down County Road 8. L.C. turned onto County Road 8,
going in the same direction as Cooley, in order to continue testing the flag. As Cooley
approached an intersection, he put on his bli nker to indicate he was making a right turn .
L.C. then passed Cooley and continued on Cou nty Road 8 . Cooley did not turn off the
road, however, but instead sped up until he was following closely behind L.C.’s truck. At
that point, L.C. was “nervous” because Cooley’s vehicle “shouldn’t have been that close.”

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L.C. testified that Cooley then sp ed up and around L.C. before “stomping on his
brakes for no reason,” causing L.C. to also stomp on his brakes so as to avoid a collision.
L.C. admitted on direct examination that he could not remember if this incident occurred
before or after Cooley signaled that he was going to turn off of County Road 8. Not long
after Cooley drove up quickly behind L.C., L.C. pulled into a field and N.M. called C.C.
C.C. told them to “come back to the house,” at which point L.C. pulled onto County Road
8, this time driving back toward his home.
After L.C. turned around, he and Cooley were traveling in opposite directions. N.M.
testified that Cooley “cut in on” L.C.’s truck, forcing him to “go over on the shoulder.”
N.M. further testified that Cooley was not fully in t heir lane but was close . L.C. testified
that Cooley turned around so that the two vehicles were driving in opposite directions and
that Cooley swerved onto L.C.’s side of the road, which ma de L.C. drive into the ditch.
After this incident, L.C. drove home.
L.C. testified that during the incident on County Road 8 he “was scared” and “didn’t
know what [Cooley] was going to do, try and run [him ] off the road or something.” L.C.
was afraid of being “[run] off the road or hit.” N.M. testified that h e was “scared” and
“nervous.” W.S. described the incident as “scary” and said he “had no idea what was
happening.”
Cooley testified in his own defense. He testified that on the night of May 17, 2016,
while he and E.K. were driving past C.C.’s driveway on County Road 8, a vehicle there
flashed its “high beam” lights at him. Cooley continued down the road and slowed to make
a right turn when he noticed that the vehicle had driven up behind his vehicle. As Cooley

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prepared to make the turn, the vehicle moved into the other lane and passed by so closely
that he “could reach [his] hand out and touch their vehicle.” Cooley testified that the
vehicle moved in front of his vehicle, stopped and slammed on i ts brakes, and then sped
off. Instead of turning, Cooley continued down County Road 8 in an unsuccessful attempt
to “get the license plate number” of the vehicle. Cooley testified that the vehicle quickly
turned around in a ditch and came back in the other direction. According to Cooley, the
whole incident “h appened in a 16 th of [a] mile” and “lasted about 45 seconds, maybe a
minute.”
Respondent State of Minnesota charged Cooley with two counts of stalking and two
counts of aggravated stalking . At trial, the state offered an audio recording of Cooley’s
heated conversation with the deputy concerning the all egedly stolen tractors. Cooley
objected, arguing that the recording did not qualify as relationship evidence, was
inadmissible other-acts evidence, and was cumulative. The state argued that the evidence
was relevant to show Cooley’s “demeanor, his state of mind, his intentions, his thoughts at
that point.” The district court agreed, stating, “I do find that [the recording] is relevant and
it appears that the state of mind, in this case, the probative value is greater than the prejudice
that it would bring.”
After the jury heard the recording, the district court gave a cautionary instruction
reminding the jurors that the subject matter of the recording was part of a civil matter that
was not before them, and also noted, “I believe you heard some testimony as to whether or
not somebody’s opinion that somebody else was lying, that’s generally not admissible and

6
you should d isregard that as well, okay?” The parties had agreed to this cautionary
instruction after a bench conference.
Following the trial, the jury found Cooley guilty of the two aggravated-stalking
counts, finding that Cooley (1) intended to injure L.C. by an unlawful act and (2) followed,
monitored, or pursued L.C.
D E C I S I O N
I.
Cooley challenges the sufficiency of the evidence for his aggravated stalking
convictions. In considering a claim of insufficient evidence, an appellate court’s review
“is limited to a painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction, was sufficient to permit the jurors to
reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The
reviewing court must assume “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). This
assumption “is particularly appropriate when resolution of the case depends on conflicting
testimony, as it is the function of the jury to evaluate the credibility of the witnesses.” State
v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002). We “will not disturb the verdict if the jury,
acting with due regard for the presumption of innocence and for the necessity of
overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a
defendant was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465,
476-77 (Minn. 2004) (quotation omitted).

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Cooley was convicted under Minn. Stat. § 609.749, subd. 2(1) and (2) (2014), which
prohibits “directly or indirectly . . . manifest[ing] a purpose or intent to injure the person,
property, or rights of another” and “follow[ing], monitor[ing], or pursu[ing] another.”
Cooley’s convictions are classified as felonies under Minn. Stat. § 609.749, subd. 3(a)(5)
(2014), which defines “aggravated stalking offense” as including the commission of “any
offense described in subdivision 2 against a victim under the age of 18, if the actor is more
than 36 months older than the victim.” Stalking is a general intent crime. See Minn. Stat.
§ 609.749, subd. 1a (2014) (“[T]he state is not required to prove that the actor intended to
cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated . . . .”).
When viewed in the light most fav orable to the conviction s, the evidence showed
the following: Cooley was involved in a dispute with C.C. over family property. On May
17, 2016, Cooley and his father, F.C., had a heated discussion with two police officers
about this dispute. Later that evening, Cooley was driving by C.C.’s house when he pulled
into the driveway, “flicked off” C.C.’s son, L.C., and then continued down the road. L.C.,
N.M., and W.S. then turned onto the road, traveling in the same direction. Cooley slowed
down and signaled a right turn, but did not actually make the turn after L.C. drove around
him. Instead, Cooley drove up directly behind L.C., close enough to make L.C. nervous .
At some point, either before or after he signaled the turn, Cooley “brake-checked” L.C. by
braking suddenly, forcing L.C. to brake as well to avoid a collision.
L.C. and his passengers pulled off of the road and called C.C., who told them to
come home. L.C. began driving back toward his house. Cooley was driving in the opposite
direction and swerved into the other lane, forcing L.C. to drive into the ditch to avoid a

8
collision. During this incident, L.C., N.M., and W.S. were scared and nervous, and did not
know what was happening. They did not know what Cooley’s intentions were and feared
his actions might result in a collision.
By “brake-checking” L.C. and later swerving into his lane, Cooley twice acted in a
manner that nearly caused L.C.’s truck to collide with his vehicle, and these actions caused
L.C. and his passengers to be scared and unsure of what was happening. Thus, Cooley
directly or indirectly manifest ed a purpose or intent to injure L.C.’s person or property.
And by speeding up behind L.C. after signaling his intent to turn right, Cooley followed or
pursued L.C. These actions are sufficient evidence of aggravated stalking.
Cooley argues that the state conceded at trial that he did not intend to injure L.C.’s
person or property, instead focusing on an injury to L.C.’s “right to use the road.” Cooley
argues that “[a]t most, L.C.’s right to travel down the road was temporarily impaired” but
not “materially injured,” and that as a result L.C. suffered no injury from Cooley’s actions.
This argument is unpersuasive. Under Minn. Stat. § 609.749, subd. 2(1), Cooley is guilty
of aggr avated stalking if he manifested an intent to injure L.C.’s person or property;
whether Cooley actually intended this result is irrelevant. We therefore do not disturb the
jury’s guilty verdict on the charges of aggravated stalking.
II.
Cooley next contends that the district court improperly admitted other-acts evidence
at trial. He argues that the audio recording of his interaction with the deputy regarding the
stolen tractors was a prior bad act that was not properly noticed, was not relevant, and was
more prejudicial than probative. He also argues that the district court failed to provide the

9
jury with a limiting instruction on the proper use of other-acts evidence, constituting plain
error.
Admission of the Recording
“A district court’s decisio n to admit Spreigl evidence is reviewed for an abuse of
discretion. A defendant who claims the [district] court erred in admitting evidence bears
the burden of showing an error occurred and any resulting prejudice.” State v. Griffin, 887
N.W.2d 257, 261 -62 (Minn. 2016) (citations omitted) ; see State v. Spreigl , 139 N.W.2d
167, 169 (Minn. 1965) (stating that other-acts evidence is generally inadmissible to prove
that a defendant committed the present offense) . If this court “determines that the district
court erroneously admitted Spreigl evidence, the court must then determine whether there
is a reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” Id. at 262.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person to show that the person acted in conformity therewith on a particular occasion.
Minn. R. Evid. 404(b). Further, such evidence may not be introduced if its probative value
is substantially outweighed by its tendency to unfairly prejudice the fact-finder. Minn. R.
Evid. 403. District courts must follow a five -step process to determine whether to admit
other-acts evidence:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clear ly 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.

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State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006).
Cooley argues that the state did not provide proper notice of the audio recording.
The record includes a motion from the state, filed on the first day of trial, asking the court
for permission to admit “evidence of the history of the relationship between the defendant
and the victim as reflected in reports prev iously disclosed.” When the court inquired on
the record about this motion, the state clarified that this is a reference to Cooley’s
interaction with the deputy, but also stated that it intended only to introduce that evidence
through the testimony of the deputy; the audio recording is not mentioned. The state did
not give proper notice of its intent to use the recording as other-acts evidence.
Moreover, the recording was not relevant, was cumulative, and was more prejudicial
than probative. First, stalking is a general intent crime and Cooley’s specific intent was
not relevant to the jury’s guilty verdict. See Minn. Stat. § 609.749, subd. 1a. However,
the state offered the recording as evidence of his intent. Thus, the state failed to
demonstrate that the evidence was relevant and material to its case. See Minn. R. Evid.
401 (“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”).
Second, t he deputy tes tified to his recollection of the conversation, specifically
noting Cooley’s “hostile behavior” and the fact that the deputy was concerned for his own
safety. Cooley did not object to this testimony. Having heard the deputy’s testimony, the
jury had no need to listen to the recording as well. And third, because the recording was
cumulative and not relevant, its potential for prejudice outweighed its probative value. See

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Ness, 707 N.W.2d at 689 (concluding that other -acts evidence was more prejudicial th an
probative where “the evidence was not relevant” and “was not needed to strengthen
otherwise weak or inadequate proof of an element of the charged offense”). In sum,
because the recording was not properly noticed, was not relevant, was cumulative, and was
more prejudicial than probative, the district court abused its discretion by admitting it into
evidence.
Because we decide that the district court abused its discretion by admitting the audio
recording, the next step is to “determine whether there is a reasonable possibility that the
wrongfully admitted evidence significantly affected the verdict. ” Griffin, 887 N.W.2d at
262. In making this determination, we consider such factors as the amount of evidence
linking the defendant to the charged offense, t he strength (or lack thereof) of the
defendant’s case, the extent to which the state relied on the evidence in its case -in-chief
and closing argument, whether the district court gave a cautionary instruction, and whether
other other-acts evidence was admit ted. State v. Bolte , 530 N.W.2d 191, 198 -99 (Minn.
1995).
Cooley has not demonstrated that the admission of the recording significantly
affected the verdict. Just as the recording was cumulative of the deputy’s testimony and
not necessary to the state’s case, it was not necessary to prove Cooley’s intent. The
testimony from L.C., N.M., and W.S. describing Cooley’s actions that night were sufficient
to establish his manifested intent to injure L.C.’s person or property. The jury did not need
the recording to convict Cooley, and had already heard testimony as to its contents. See
Ness, 707 N.W.2d at 691 (holding that while district court erroneously admitted other-acts

12
evidence, there was no prejudice to defendant because the evidence merely “bolstered” the
finding of guilt and “was not the critical push beyond a reasonable doubt”). Thus, it is
unlikely that the jury was swayed by the admission of the recording in a manner that
significantly affected the verdict.
Cautionary Instruction
Cooley did not object at trial to the lack of a proper other-acts cautionary instruction
either when the audio recording was admitted or during final jury instructions. “Ordinarily,
the defendant’s failure to object to an error at trial forfeits appellate consideration of the
issue.” State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). However, in the absence of
an objection, an appellate court may review an issue first raised on appeal for plain error.
Minn. R. Crim. P. 31.02; State v. Pearson, 775 N.W.2d 155, 161 (Minn. 2009). The plain-
error standard “requires the defendant to show (1) error (2) that was plain and (3) that
affected the defendant’s substantial rights.” State v. Manthey, 711 N.W.2d 498, 504 (Minn.
2006). The party asserting plain error has the burden of establishing all three elements.
State v. Hollins, 765 N.W.2d 125, 131 (Minn. App. 2009). “If these three prongs are met,
the court must then decide whether it should address the issue in order to ensure fairness
and the integrity of the judicial proceedings.” State v. Vick, 632 N.W.2d 676, 685 (Minn.
2001) (quotation omitted). An appellate court may exercise its discretion to correct an
unobjected-to error only after all three plain-error elements are satisfied. Id.
“Under the plain-error doctrine, an error is a deviation from a legal rule unless the
rule has been waived.” State v. Kelley , 855 N.W.2d 269, 274 (Minn. 2014) (quotation
omitted). The legal rule at issue here states that when the district court receives other-acts

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evidence it must, “[b]oth at the time the evidence is received and in the final charge,”
instruct the jury that the testimony is received for a limited purpose and that the defendant
“is not being tried and may not be convicted for any offense except that charged.” State v.
Billstrom, 149 N.W.2d 281, 285 (Minn. 1967); see Minn. R. Evid. 105 (“When evidence
which is admissible as to one party or for one purpose but not admissible as to another
party or for another purpose is admitted, the court, upon request, shall restrict the evidence
to its proper scope and instruct the jury accordingly.”). The district court must give this
cautionary instruction even absent a request from either party. Vick, 632 N.W.2d at 685.
The district court here did not instruct the jur y on how to evaluate other -acts
evidence, either when it was received or during final instructions. This is plain error, and
so the issue becomes whether that error affected Cooley’s substantial rights. To satisfy this
element, Cooley “must show prejudice that forms the basis for a reasonable likelihood the
error substantially affected the verdict.” Manthey, 711 N.W.2d at 504. The supreme court
has stated that plain error affects substantial rights “if [the error] had the effect of depriving
the defenda nt of a fair trial.” State v. Tscheu , 758 N.W.2d 849, 863 (Minn. 2008)
(quotation omitted).
Although a cautionary instruction is “strongly preferred,” the “absence thereof does
not automatically constitute [reversible] plain error.” State v. Meldrum, 724 N.W.2d 15,
22 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007). This court has held that “other
evidence offered during trial may negate the allegation that the probative value of [other -
acts] evidence is outweighed by its potential for unfair prej udice.” Id. Such is the case
here. When the audio recording was introduced , the jury had already heard the deputy’s

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testimony regarding his heated conversation with Cooley, as well as testimony from L.C.,
N.M., and W.S. regarding Cooley’s actions on Cou nty Road 8. Under the circumstances,
it is unlikely that the instructional error significantly affected the jury’s verdict. Cooley
therefore has not established that he is entitled to reversal of his aggravated stalking
convictions under the plain-error standard.
Affirmed.