State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1522

State of Minnesota,
Respondent,

vs.

Brad Donald Tomlinson,
Appellant.

Filed December 23, 2019
Affirmed in part and appeal dismissed in part
Jesson, Judge

Stevens County District Court
File No. 75-CR-16-207

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Aaron Jordan, Stevens County Attorney, Morris, Minnesota (for respondent)

Robert M. Christensen, Robert M. Christ ensen, P.L.C., Minneapolis, Minnesota (for
appellant)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and
Smith, John, Judge.

S Y L L A B U S
In cases where criminal charges are seve red for trial and resu lt in multiple final
judgments, each final judgment is appealable and subject to the timelines in Minnesota
Rule of Criminal Procedure 28.02.

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
O P I N I O N
JESSON, Judge
Appellant Brad Donald Tomlinson, accuse d of criminal sexual conduct toward four
young girls after befriending their parents and exploiting their trust, appeals his convictions
of criminal sexual conduct involving two of the victims. Tomlinson argues that the district
court abused its discretion by admitting evidence of a common scheme or plan in his trials.
Because we agree with the stat e that the appeal from his firs t convictions is untimely, we
review only Tomlinson’s subsequent convicti on. And because the di strict court did not
abuse its discretion by admitting evidence of Tomlinson’s common scheme in that trial, we
affirm.
FACTS
A woman reported to the police in May 2016 that the man living with her, appellant
Brad Donald Tomlinson, had been abusing young girls, including her granddaughters. The
police investigated, interviewing four victims and Tomlinson. After the investigation, the
state charged Tomlinson with five counts of criminal sexual conduct, including two counts
in the first degree and three coun ts in the second degree. Th e different counts related to
Tomlinson’s different victims. Counts one a nd two related to Tomlinson’s abuse of J.R.,
count three related to T.E., count four related to C.S., and count five related to L.M.
We review, in chronological order, the victims’ allegations.1 The incidents of abuse
began in 1986 when the first victim, T.E., wa s about five years old. Tomlinson and her

1 Our recitation of these allegations is base d on the record, includ ing the investigative
interviews, pretrial hearings, and testimony at both trials.

3
father, who were close friends, hunted and fished together. T.E. would often wait for them
to return after fishing trips. T.E. testified that, on five to seven different occasions, she
dozed off at home on the couch while waiting for her father to return and woke up to
Tomlinson touching her chest and vagina under her clothes.
Tomlinson’s next victim, J.R., was about nine when the abuse began in 1994.
Tomlinson was close friends with her father as well. Both men often went fishing and
Tomlinson even brought J.R. on a fishing trip once. J.R.’s father had serious health
problems so Tomlinson would often help him out, as he did with J.R., who has a physical
disability. J.R. testified that Tomlinson would touch her breasts and vagina over and under
her clothes at her home, often while her fath er was in the next room. Eventually, he
penetrated her vagina with his fingers and tongue. The in cidents occurred multiple times
over five years, according to J.R. She reporte d that the abuse ended when her father died
and she moved.
Tomlinson’s third and fourth victims, C.S. and L.M., were granddaughters of the
woman he was living with, who reported the abuse to the aut horities in 2016. Both girls
would often be around Tomlinson during visits with their grandmother. C.S. reported that
in 2004, when she wa s 11, she went fishing with To mlinson during a visit to her
grandmother’s. After they returned and ever yone else was asleep, according to C.S.,
Tomlinson came up behind her an d touched her chest under her shirt for about a minute.
C.S. reported that she avoided Tomlinson after that incident.
L.M. reported that when she was spending time at her grandmother’s home in 2008,
at around age seven, Tomlinson groped her chest under her shirt. Her grandmother was at

4
home, in another room, when this occurred. L.M. recalled that this happened about five
times. After that, L.M. stopped being alone with Tomlinson.
With these factual allegations in mind, we return to the procedural posture of this
case. After the charges were filed, at a co ntested omnibus hearing, the district court
dismissed the charge relating to Tomlinson’s abuse of T.E. (count three) because it was
outside the statute of limitations. 2 Then, at Tomlinson’s request, the court severed the
counts relating to J.R., C.S., and L.M. for trial. See Minn. R. Crim. P. 17.03, subd. 3(1).
At the first trial, relating to Tomlinson’ s abuse of J.R. (counts one and two), the
state moved to admit testimony from Tomlins on’s other victims, asserting that their
accounts established his common sc heme or plan of abuse. After holding an evidentiary
hearing, the district court granted the state’s motion and permitted the three other victims,
T.E., C.S., and L.M., to testify. The jury found Tomlinson gu ilty of first-degree criminal
sexual conduct toward J.R. on both counts. About five mont hs later, the district court
sentenced Tomlinson to 86 months in prison on count one and 110 months on count two,
to be served concurrently.
Two weeks after sentencing, the state proceeded with trial on Tomlinson’s abuse of
C.S. (count four). Again, the state move d to admit testimony from Tomlinson’s other

2 Tomlinson abused T.E. from about 1986 to 19 88. T.E. disclosed Tomlinson’s abuse in
1998 to a mandated reporter but the state did not pursue charges at the time because T.E.
said she did not want to make a report. B ecause Tomlinson was not charged within three
years of that report to police, the district c ourt determined that the statute of limitations
bars prosecution. See Minn. Stat. § 628.26(e) (2018) (requiring charges be brought within
nine years of the offense or three years of its reporting to police, whichever is later).

5
victims, J.R. and T.E., as evidence of a common scheme or plan. 3 The district court held
an evidentiary hearing. The state explained that Tomlinson got close to each victim’s
family over time, gaining their trust and spendi ng time at their homes, often fishing with
the families and the victims. Tomlinson would then position himself to have access to the
girls alone. The girls were similar ages when the abuse started—between five and 11. And
Tomlinson’s abusive conduct was similar. Following ar guments from the state and
Tomlinson, the district court granted the state’s request.
Trial continued, and C.S., J.R., and T.E. testified, among other witnesses. And the
testimony of the three victims wa s consistent with the allega tions described above. The
jury found Tomlinson guilty of second-degree criminal sexual conduct toward C.S. (count
four). Tomlinson was sentenced to 21 months in prison, to be served consecutively to his
previous sentence. This appeal follows.4
ISSUES
I. Is Tomlinson’s appeal from hi s first convictions untimely?

II. Did the district court a buse its discretion by admitting evidence of Tomlinson’s
other bad acts?

ANALYSIS
Tomlinson argues that his convictions should be reversed because the district court
abused its discretion by adm itting testimony from his other vi ctims at both trials. In
response, the state contends that Tomlinson’s appeal relating to the first trial fails as

3 The state did not seek to have L.M. testify at the second trial.
4 The state agreed to a continuance for dism issal on Tomlinson’s a buse of L.M. (count
five), pending the outcome of this appeal.

6
untimely and that, with regard to the second trial, admission of the other victims’ testimony
was not an abuse of discretion. Below, we first address th e threshold issue of timeliness
before turning to the evidentiary dispute.
I. Tomlinson’s appeal from his first convictions is untimely.

The question of whether Tomlinson’s appeal of his first two convictions (counts one
and two) is timely is a question of law, which we review de novo. State v. Dorn ,
887 N.W.2d 826, 830 (Minn. 2016). To answer this question, we turn to the Minnesota
Rules of Criminal Procedure. Tomlinson has a right to appeal any final judgment.
Minn. R. Crim. P. 28.02, subd. 2(1). A judgme nt is final when a de fendant is convicted
and sentenced. Id. And in a felony case like this, the final judgment must be appealed
within 90 days, with an additional 30 -day grace period, for good cause. 5 See id. ,
subd. 4(3)(a), (g).
Here, Tomlinson was sentenced for his first two convictions on April 11, 2018, and
he filed this appeal on September 14, 2018—156 days later. This is well outside the 90-day
requirement. His appeal relating to his first convictions (counts one and two) is untimely.6

5 Certain posttrial motions also toll the time for an appeal. See Minn. R. Crim. P. 28.02,
subd. 4(3)(e). But here, this tolling is not at issue becaus e Tomlinson’s posttrial motions
were resolved before his sentencing hearing.
6 We note that the district court reissued a single warrant of commitment following
Tomlinson’s sentencing in the second trial, but that is not enough to revive an untimely
appeal. Tomlinson’s sentencing for the first trial was still a distinct final judgment under
a strict, plain reading of the rules, and the rules prevent us from extending the timeline for
filing an appeal. See Minn. R. Crim. P. 28.01, subd. 3 (noting that the court “may not alter
the time for filing” an appeal).

7
Our decision is driven not only by the wording of rule 28.02, but by Minnesota
Supreme Court guidance in a recent decision, State v. Sleen , No. A18-1486 (Minn.
Dec. 19, 2018) (mem.). Similar to the posture here, the appellant in Sleen was charged
with several counts of criminal sexual conduct, relating to different complainants, that were
severed for trial. Sleen, No. A18-1486, at 1 (Minn. Dec. 19, 2018) (mem.). But Sleen took
the opposite path of Tomlinson: he sought appellate review after he was sentenced on only
one of the severed counts, while the remaining counts were still pending before the district
court. Id. at 1-2. Upon review, we concluded th at the appeal was premature, reasoning
that Minnesota Rule of Crim inal Procedure 17.03, subdivisi on 3, did not permit appeals
after final judgments on severed counts and that permitting such appeals would allow
interlocutory review. State v. Sleen , No. A18-1486 (Minn. App. Oct. 16, 2018) (order).
But the supreme court reversed, reasoning th at Sleen’s appeal was permitted because the
judgment it challenged was final even though it did not resolve the severed counts. Sleen,
No. A18-1486, at 3 (Minn. Dec. 19, 2018) (mem.). The court wrote:
Rule 28.02, subdivision 2(1) gi ves a defendant the right to
appeal from “any adverse final judgment.” (Emphasis added).
The fact that the final judgment on [one count] did not resolve
the severed counts does not determine appealability. The plain
language of [r]ule 28.02, subdivision 2(1), authorizes an appeal
from “any” final judgment. To conclude otherwise under the
facts of this case reads the word “any” out of the rule.

Id.
Still, presented with the 90-d ay limitation on the right to appeal imposed by rule
28.02, Tomlinson attempts to seek refuge in two different rule provisions. First, he posits
that the rules allow other char ges joined for prosecution to be included in an appeal. See

8
Minn. R. Crim. P. 28.02, subd. 4(3)(a) (“Othe r charges that were joined for prosecution
with the felony or gross misdemeanor may be included in the appeal.”). But we read that
subsection of the rule to require that charges once joined for prosecution remain joined.
Here, while the charges were originally joined, the c ounts were later severed at
Tomlinson’s request. As a resu lt, the charges were not joined for purposes of this rule
provision.
Second, Tomlinson argues that we shou ld read rule 28.02, about the time
requirements for appeals, in light of the overarching rule stating that the Minnesota Rules
of Criminal Procedure are “intended to pr ovide a just determination of criminal
proceedings, and ensure a simple and fair pr ocedure that eliminat es unjustified expense
and delay.” Minn. R. Crim. P. 1.02. And, according to Tomlinson, it would be more
“simple and fair” to appeal all of his convictions together.
It may, indeed, be simpler to simultaneously appeal all of one’s convictions at one
time. Yet Minnesota Rule of Criminal Procedure 28.02, subdivision 1, states that a
defendant may appeal “only as these rules permit.” And specific provisions control general
provisions—such as rule 1.02—when the tw o conflict. Minn. Stat. § 645.26, subd. 1
(2018); see also In re M.O., 838 N.W.2d 577, 583 (Minn. App. 2013) (“Courts may apply
principles of statutory interpretation when interpreting rules of court.”), review denied
(Minn. Oct. 23, 2013). Because rule 28.02 is more specific than rule 1.02, it controls here
and does not permit us to alte r the timeline to allow Tomlinson’s late appeal. We further
note that, were we to adopt Tomlinson’s ar gument, we would have to ignore another
subdivision of rule 28 that explicitly prohibits us from altering the timeline for filing an

9
appeal. Minn. R. Crim. P. 28.01, subd. 3. And our holding would run counter to the
long-standing policy favoring the finality of a judgment. See Kaiser v. State, 641 N.W.2d
900, 903 (Minn. 2002) (“Public policy favors the finality of judgments . . . .”).
We acknowledge that, at times, the practical effect of rule 28.02 may be challenging
because it could result in the temporary suspension of dist rict court jurisdiction and
effectively permit interlocutory review.7 But, with the plain language of the rule and Sleen
in mind, we strictly construe rule 28.02 of the Minnesota Rules of Criminal Procedure.
Accordingly, we conclude that Tomlinson’s appeal from his first two convictions (counts
one and two) is untimely and must be dismissed.8

7 For example, if a defendant appealed a conviction after sentencing on some counts while
the remaining counts were pending in district court, the same issue may be pending in two
courts at the same time. For this reason, an appeal ordinarily suspends a district court’s
jurisdiction to avoid this problem. State v. Dwire, 409 N.W.2d 498, 502 (Minn. 1987); see
also Bonynge v. City of Minneapolis , 430 N.W.2d 265, 266 (Minn. App. 1988)
(recognizing “the policy against piecemeal a ppellate review”). Further, if a defendant
raised an issue in an appeal before that issue was decided by the district court in a remaining
severed count, the defendant may effectively obt ain interlocutory review of that issue,
which is not otherwise permitted. See, e.g. , State v. Kvale , 352 N.W.2d 137, 139-40
(Minn. App. 1984) (holding that a defendant does not have the right to appeal a pretrial
evidentiary ruling but may seek discretionary review).
We observe that, in other similarly situ ated matters, the state has avoided these
challenging effects by reissuing a new complaint on the remaining counts. See Minn. R.
Crim. P. 17.05 (permitting amendment of the complaint). Alternatively, we have observed
instances where sentencing is stayed until after all severed charges are adjudicated so there
is one final judgment in the matter.
8 We also note that the clear meaning of rule 28.02 is not the only thing barring Tomlinson’s
appeal of his first convictions. Rather, this partial dismissal is a direct consequence of the
legal strategy to sever the charged counts for trial.

10
II. The district court did not abuse it s discretion by admitting evidence of
Tomlinson’s other bad acts at trial.

With the timeliness issue on Tomlinson’s first convicti ons (counts one and two)
addressed, we turn to his subsequent conviction (count four), involving his criminal sexual
conduct toward C.S. Tomlinson argues that the district court abused its discretion by
allowing his other victims to testify at this trial. We review the district court’s decision to
admit evidence of a defendant’s other bad acts for an abuse of discretion. State v. Griffin,
887 N.W.2d 257, 261-62 (Minn. 2016). Gene rally, evidence of a defendant’s other bad
acts is not admissible to show that a defendan t acted in conformity with such behavior.
State v. Spreigl, 139 N.W.2d 167, 170-71 (Minn. 1965). But other-bad-act evidence, often
called Spreigl evidence, may be admissible for another purpose, such as to show a common
scheme or plan. Minn. R. Evid. 404(b)(1); State v. Ness , 707 N.W.2d 676, 688
(Minn. 2006). Offenses that have a “marked similarity” to the charged offense can be used
to show a common scheme or plan. Ness, 707 N.W.2d at 688.
To determine whether to admit Spreigl evidence, a district court generally uses a
five-step test:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indi cate 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.

11
Id. at 685-86 (emphasis added); see also Minn. R. Evid. 404(b)(2). Contesting four of the
five prongs9 of the test, Tomlinson argues that the district court abused its discretion by
admitting testimony from his other victims. We review each of the contested prongs in
turn.
Offered to Prove
First, Tomlinson argues that the state was too vague in suggesting what the Spreigl
evidence was offered to prove. But the district court found that the state “clearly indicated”
what the evidence was offered to prove: that Tomlinson had a common scheme or plan
because of the similarity of the victims’ accounts.
Based upon our review of the record, the district court’s assessment is correct. The
state clearly articulated the reasons it offered the testimony. And the state provided nearly
identical evidence for the same purpose in the earlier tria l on counts one and two. Thus,
Tomlinson was aware of what the Spreigl evidence was offered to prove.
Clear and Convincing Evidence
Next, Tomlinson argues that the witnesses’ testimony did not establish the acts by
clear and convincing evidence. The district court found that the testimony met this burden.
To be clear and convincing, the evidence surrounding a defendant’s participation in
a Spreigl incident should have a high probability of truthfulness. Ness, 707 N.W.2d at 686.
Here, the witnesses provided consistent, detaile d testimony about their relationships with
Tomlinson and the circumstances surrounding their abuse. And Tomlinson was convicted

9 Tomlinson concedes that the notice requirement was met.

12
of abusing one of the two w itnesses, establishing his conduct with regard to her by more
than clear and convincing evidence. Moreover, the district court found the testimony from
both Spreigl witnesses credible, a determinati on to which this court defers.
State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct.
2130 (1993). The district court did not abuse its discretion in finding that Tomlinson’s acts
were established by clear and convincing evidence.
Relevant and Material
Next, Tomlinson argues that the Spreigl evidence was not relevant or material
because the accounts are mere uncorroborated, cumulative allega tions such that none of
the allegations serve to make any material fa cts more or less likely. The district court
concluded that the evidence was relevant and material.
When there is a close relationship—in terms of time, place, or modus operandi—
between the charged offense and the Spreigl offense, the evidence is relevant and material.
State v. Gomez , 721 N.W.2d 871, 878 (Minn. 2006). The evidence here showed the
“marked similarities” in Tomlinson’s modus operandi, including that his victims were all
young girls, that he gained access to them through a relati onship with their parent or
grandparent, and the similarity of the sexual conduct. See Ness, 707 N.W.2d at 689. This
evidence supports the district court’s conclusion.
But Tomlinson also contends that the alle gations are too old to be relevant or
material. We acknowledge this concern, but here it is mitigated because the acts showed a
pattern of markedly similar conduct. See id. (noting that concerns about remoteness in
time are lessened if the acts demonstrate an on going pattern or repeated similar conduct).

13
As a result, the district court did not abuse its discretion in concluding that the evidence
was relevant and material.
Probative Value Greater Than Potential Prejudice
Finally, Tomlinson argues that the Spreigl evidence was obviously prejudicial and
its admission allowed the jury to convict him based on his character and not the merits of
the evidence. The distri ct court found that the Spreigl evidence was both probative and
prejudicial but that when balancing the two factors, the probativ e value outweighed the
unfair prejudice.10
In reviewing this decision for an abuse of discretion, we note that the probative value
of this Spreigl evidence is high because of the ma ny similarities between the victims’
accounts, including how Tomlins on knew the victims, how they came to trust him, and
how he used that trust to gain access to the victims in place s where they felt safe. But,
while there was the potential for unfair prej udice in admitting the testimony, the district
court provided a cautionary instruction before and after each Spreigl witness testified, and
at the end of trial before the jury deliberated. See State v. Kennedy, 585 N.W.2d 385, 392
(Minn. 1998) (noting that providing cautionary instructions lessened the likelihood that the
jury would give undue weight to the evidence). In light of this instruction, the district court
did not abuse its discretion in concluding th at the probative value ex ceeded the potential
for unfair prejudice such that admission was appropriate.

10 Once a court determines that Spreigl evidence is relevant, it must balance the risk that it
will be used for a propensity infere nce against its probative value. State v. Fardan ,
773 N.W.2d 303, 319 (Minn. 2009).

14
In sum, because the district court’s fi ndings and conclusions were thorough and
satisfied each element of the five-step test , the district court’s decision to admit Spreigl
evidence was not an abuse of discretion.11
D E C I S I O N
Tomlinson appealed his co nvictions, arguing that the district court abused its
discretion by admitting evidence of his common scheme or plan of abuse. But Tomlinson’s
first convictions were a final judgment se parate from his subsequent conviction, and
Minnesota Rule of Criminal Procedure 28.02 required that they be appealed within 90 days
of that judgment. They were not. Beca use his appeal from the first convictions was
untimely under rule 28.02, we dismiss that portion of this appeal. With regard to
Tomlinson’s appeal of his s ubsequent conviction, the dist rict court did not abuse its
discretion in admitting testimony from his other victims at trial. Accordingly, we affirm.
Affirmed in part and appeal dismissed in part.

11 Because the appeal from Tomlinson’s first co nvictions is dismissed, we do not address
his argument about the district court judge’s alleged bias. Tomlinson’s only argument on
this issue relates to the transcript during the trial on counts one and two, which we do not
address because that appeal is dismissed. Tomlinson raised an additional concern about a
comment the judge made at sentencing in his second trial but the issu e was not raised in
his principal brief. As a result, we decline to review it. See, e.g. , Larson v. Degner ,
78 N.W.2d 333, 336 (Minn. 1956) (raising issues for appeal in a reply brief is “not proper
practice and is not to be permitted”); State v. Paige, 256 N.W.2d 298, 304 (Minn. 1977)
(declining to consider an issue raised for the first time in a reply brief).