State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1948

State of Minnesota,
Respondent,

vs.

James Francis Vierling,
Appellant.

Filed June 22, 2020
Affirmed
Smith, John, Judge*

Steele County District Court
File No. 74-CR-17-166

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorn ey General, St. Paul,
Minnesota; and

Dan McIntosh, Steele County Attorney, Christy Hormann, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Florey, 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 James Francis Vierling’s 2018 conviction of first -degree
criminal sexual conduct because there was sufficient evidence for the conviction, and the
district court did not err in admitting evidence of s imilar sexual conduct or in conclud ing
that Vierling was not entitled to a new trial for the state’s purported discovery violation in
his 2015 assault prosecution.
FACTS
In 201 5, Vierling was charged with multiple counts of assault after physically
abusing his stepdaughter, M.M. While preparing for trial, M.M. informed th e prosecutor
that Vierling had forced her to perform fellatio on him when she was approximately five
or six years old. The prosecutor did not disclose this incident due to it “not being the basis
for the charges in this complaint, not being part of any history of the relationship evidence
in this case, and because it would have most likely required a child protection response and
further investigation.” The day after M.M. informed the prosecutor of this incident,
Vierling pleaded guilty to second -degree assault pursuant to a plea agreement where the
parties jointly recommended a downward dispositional departure resulting in a
probationary sentence. By the time he was sentenced on April 28, 2016, Vierling had been
apprised of the allegation made by M.M. t o the prosecutor.
In January 2017, Vierling was charged with first-degree criminal sexual conduc t in
violation of Minn. Stat. § 609.342, subd. 1(g ) (2006). The criminal sexual conduct

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described in the complaint was the incident that M.M. had revealed to the prosecutor prior
to Vierling’s guilty plea to second-degree assault.
A two-day jury trial was held i n July 2018. M.M. testified that Vierling was her
stepfather, and that he sexually assaulted her when she was five or six years old by pushing
her to the floor, pulling down his pants, and placing his penis in her mouth. She did not
remember if anything came out of Vierling’s penis after he inserted it into her mouth. M.M.
testified that her mother was in the kitchen when this abuse took place, and likely heard it,
but chose not to intervene. She stated that she did not tell her mother or law enforcement
about what happened but told som e friends and a foster parent about it. M.M. also
described other instances of physical threats and abuse pe rpetrated by Vierling, includ ing
an instance when he inserted his fingers into her vagina. M.M. admitted that her
relationship with Vierling becam e more distant after she discovered that he was not her
biological father, but she denied that that discovery led her to manufact ure accusatio ns
against him. She also denied that Vierling’s probationary sentence for his assault
conviction led her to accuse him of forcing her to perform fellatio on him .
Prior to M.M.’s testimony about other instances of abuse perpetrated by Vierling ,
the trial court gave a cautionary instruction in which it informed the jury that they were to
hear about conduct that occurred subsequent to the charged offense, that the evidence was
being offered for the limited purpose of demonstrating the nature and the extent of the
relationship between Vierling and M.M., and that the evidence was being introduced in
order to assist them in determining whether Vierling committed the acts with which he was

4
charged. The district court added that Vierling was not being tried for, and was not to be
convicted of, any behavior other than the charged offense.
The jury also heard testimony from M.M.’s foster parent, M.M.’s t herapist, and
M.M.’s mother. M.M.’s foster parent testified that M.M. w rote down on a piece of paper
as they were going to mee t the prosecutor that Vierling had forced her to perf orm fellatio ,
and she confirmed that M.M. had confided in a friend days before. M.M.’s therapist also
testified that M.M. had told her about the abuse that occurred when M.M . was five or six
years old. But M.M.’s mother stated that M.M. never told her about the incident or the
circumstances surrounding it.
James Vierling testified. He denied putting his pen is in M.M.’s mouth. He also
denied ever putting his fingers in side M.M.’s vag ina. Vierling admitted that he pleaded
guilty to physically a ssaulting M.M. He also admitted to the conduct which led to the
second-degree assault charge. He noted that he pleaded guilty because the assault
allegations were true.
In its closing instructions, the trial court repeated the caution it had given the jury
regarding the evidence of other instances of abuse. And in its closing argument, the state
reminded the jury that Vierling was charged with one offense and that was the act of
forcibly inserting his penis into M.M.’s mouth.
The jury found Vierling guilty of first -degree criminal sexual conduct. Vierling
received a 144-month sentence which was to be followed by a ten-year conditional release
period.

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Vierling filed a notice of appeal in December 2018 . The appeal was later staye d
and the case remanded to the district court for post conviction proceedings. In his petitio n
for postconviction relief, Vierling requested a new trial because of a discovery violation in
his prosecution for se cond-degree assault. Vierling alleged that the state had failed to
disclose M.M .’s allegation of criminal sexual conduct after it was disclosed t o the
prosecutor. He argued that the allegation should have been disclosed because it would
have been relevant to settlement negotiations and could have been used as potential cross -
examination material at trial. Vierling alleged that, because the allegation was not
disclosed, he accepted the state’s plea agreement when he otherwise would not have, and
that the state then used his assault conviction to bolster M.M.’s credibility in his trial for
criminal sexual conduct. Vierling argued that, because of the state’s discovery violatio n ,
he was “deprived of due process of law to a fair trial .” At the same time Vierling filed a
postconviction petition in the present case, he filed a petition for postconviction relief in
his 2015 assault case , which similarly alleged that the state’s failure to disclose M.M.’s
allegation of sexual abuse led him to enter a plea agreement that he otherwise would not
have entered had he known of the allegation.
The state opposed Vierling’s petitions. It argued that there was no discover y
violation in Vierling’s assault case and that, even if there had been a violation, Vierling
had not established that he was prejudiced by it. The state also argued that Vierling’s claim
that he would not have pleaded guilty had he known about M .M.’s allegation of criminal
sexual conduct is not credible as he had actual knowledge of the allegation prior to his
sentencing, yet never moved to wit hdraw his plea and failed to timely petition for

6
postconviction relief. Finally, the state argued that Vierling’s claim that it had secured his
conviction in the assault case so as to use that conviction against him in his prosecution for
criminal sexual conduct was unavailing as it did not use Vierling’s assault conviction to
bolster M.M.’s credibility.
A hearing on Vierling’s postconviction petitions was held in June 2019. At the
hearing, Vierling testified that, had he known that M.M. had alleged that he had coerced
her to perform oral sex on him, he would not have signed the plea agreement because the
assault conviction could be used against him in a subsequent prosecution f or sexual abuse.
The district court denied Vierling’s postconviction petitions in both matters .
In October 2019, this court dissolved the stay and reinstated this appeal.
D E C I S I O N
Vierling advances three arguments on appeal, the second of whi ch was made in his
postconviction petition, and the first and third which are being raised for the first time on
direct appeal.
I.
Vierling first argues that there was insufficient evidence to convict him of first -
degree criminal sexual conduct.
When the sufficiency of the evidence is challenged, this court “‘carefully
examine[s] the record to determine whether the facts and the legitimate inferences drawn
from them would permit the fact [-]finder to reasonably conclude that the defendant was
guilty beyond a reasonable doubt of the offense of which he was convicted.’” State v.
Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (quoting State v. Boldmam, 813 N.W.2d 102,

7
106 (Minn. 2012)). “The evidence must be viewed in the light most favorable to the
verdict, and it must be assumed that the fact-finder disbelieved any evidence that conflicted
with the verdict.” State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016). “The verdict should
be upheld if the jury, giving due regard to the presumption of innocence and to th e state’s
burden of proof beyond a reasonable doubt, could reasonably have found the defendant
guilty of the offense charged.” State v. Thames , 599 N.W.2d 122, 127 (Minn. 1999).
Minn. Stat. § 609.342, subd. 1(g), provides that:
A person who engages in se xual penetration with another
person, or in sexual contact with a person under 13 years of age
as defined in section 609.341, subdivision 11, paragraph (c), is
guilty of criminal sexual conduct in the first degree if . . . the
actor has a significant relat ionship to the complainant and the
complainant was under 16 years of age at the time of the act.
Neither mistake as to the complainant’s age nor consent to the
act by the complainant is a defense.
“Sexual penetration” includes the act of fellatio “whether or not emission of semen occurs.”
Minn. Stat. § 609.341, subd. 12(1) (2006).
Vierling argues that “even with recognition of the deference to the verdict of the
jury, the lack of corroboration taken together with the physical impossibility/improbability
of the allegation, the conviction of the [a]ppellant should be reversed.” Vierling notes that
M.M. could not recall any details of the incident, including why her mother, who was
nearby, did not respond. He also notes that M.M. neglected to tell her mothe r or law
enforcement about this incident for approximately ten years, that she did not recall any
seminal em ission, and that the allegation only arose when “collateral issues were
confronting the relationship between M.M. and her parents.”

8
In response, th e state argues that M.M.’s testimony was partially corroborated by
other evidence in the record. It notes that M.M.’s testimony about the sexual assault was
consistent with the note she gave to her foster mother, and with what she had previously
disclosed to a friend. The state also argues that M.M.’s testimony was supported by
similar-conduct evidence which demonstrated that Vierling frequently lost his temper with
M.M. and either physically or sexually assaulted her in response. The state argues that,
given the deference afforded to jury verdicts, there are no grounds for reversing Vierling’s
conviction, especially considering that the defects identified by Vierling were either
presented to the jury and rejected, or irrelevant. The state emphasizes that it is not the role
of this court to retry the facts of the case or substitute its credibility determinations for
those of the jury.
The state’s analysis is correct. Vierling’ s conviction came down to an assessment
of credibility, which is the province of the jury. State v. Bliss, 457 N.W.2d 385, 390 (Minn.
1990) (“The weight and credibility of individual witnesses is for the jury to determine . . .
[and it] has no obligation to believe a defendant’s story.” (quotation omitted)). Moreover ,
in a prosecution for first-degree criminal sexual conduct, “the testimony of a victim need
not be corroborated.” Minn . Stat. § 609.347, subd. 1 (2006 ); State v. Cao, 788 N.W.2d
710, 716-17 (Minn. 2010). This reflects the general rule that “‘a conviction can rest on the
uncorroborated testimony of a single credible witness.’” State v. Foreman , 680 N.W.2d
536, 539 (Minn. 2004) (quoting State v. Hill, 172 N.W.2d 406, 407 (Minn. 1969)). Vierling
has not identified anything in the record that is so impossible or improbable as to cast doubt
on the jury’s verdict. The fact that M.M. could not recall certain details is not a defect at

9
all, much less one that requires this court’s intervention. See State v. Stufflebean , 329
N.W.2d 314, 319 (Minn. 1983).
Therefore, there was sufficient evidence to support the jury’s verdict.
II.
Vierling next argues that the district court erred when it denied him a new trial ,
which he argues he was entitled to because of the state’s purported discovery violation in
his 2015 assault case.
The district court concluded that the state did not commit a discovery viola tion in
Vierling’s assault case as M.M.’s allegation of sexual abuse was not sufficiently relatable
to the assault case to warrant production under Minn. R. Crim . P. 9.01. The district court
noted that “[a]lthough the two incidents involved the same victim, the disclosed act of
sexual abuse significantly predated the events at issue and did not arise out of the same
behavioral incident . . . and the conduct was not motivated by obtaining a common criminal
objective.” The district court added that, even if the state had committed a discovery
violation, Vierling had failed to demonstrate that he was prejudiced as he made no attempt
to withdraw his plea despite being aware of M.M.’s allegation of sexu al abuse. Finally,
the district court concluded that Vierling’s petition for postconviction relief for the
purported discovery violation was untimely, and that none of the exceptions to the statutory
time-limit applied.
On appeal, Vierling repeats the same arguments that he made in his postconvictio n
petition, namely, that the state withheld the allegation of sexual abuse that M.M. had made
during trial preparation in his assault case; that, had he known of the allegation, he woul d

10
not have accepted the state’s plea deal, and would have used M.M.’s allegation in cross -
examination to establish her bias against him; and that the allegation led the state to make
an attractive plea offer in order to gain his conviction, which was then used to bolster
M.M.’s credibility in the pres ent case. Vierling argues that the state’s discovery violatio n
deprived him of “due process of law to a fair trial” in the present case, and “a knowing
intelligent entry of a guilty plea” in his assault case.
In response, the state argues that Vierling’s claim that the state committed a
discovery violation in his assault case is untimely, and that even when the merits of
Vierling’s arguments are considered, they do not warrant granting hi m a new trial. With
respect to the latter, the state notes that Vierling fails to cite any caselaw which “holds that
a discovery violation by the state in one case, necessarily leads to a new trial in a subsequent
case.”
The state is correct that Vierling’s collateral attack on his guilty plea in his assault
case is unsupported by any authority. The supreme court has stated that a collateral attack
on the validity of a guilty plea will only be allowed in “unique cases.” State v. Warren ,
419 N.W.2d 795, 798 (Minn. 198 8) (quoting State v. Edmison, 379 N.W.2d 85, 86 (Minn.
1985)). However, the only “unique cases” in which a collateral attack is permitted are
those where the defendant’s prior conviction was accompanied by a “ violation of a pivotal
constitutional right,” particularly the right to counsel. Id. But “[w]hen [a] defendant has
counsel, it may be assumed that other important trial rights, including a factual basis for
the plea, are being protected, at least for the purposes of a collateral attack. ” Id. As
Vierling does not allege that a “pivotal constitutional right” was violated when he pleaded

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guilty to second -degree assault in 2015, but rather that he was deprived of “ a knowing
intelligent entry of a guilty plea,” his case is not unique. Therefore, Vi erling’s guilty plea
in his assault case is immune from collateral attack and cannot be used to challenge his
conviction in the present case.
As such, the district court did not er r in concluding that Vierling was not entitled to
a new trial for the state’s purported discovery violation.
III.
Finally, Vierling argues that the district court erred by admitting M.M.’s testimo ny
that Vierling digitally penetrated her approximately four years after the charged incide nt
took place. Vierling argues that this testimony was not admissible under section 634.20
because it w as not a “prior incident” and was “more prejudicial than pr obative.”1 His
argument that the evidence was more prejudicial than probative is two -fold. First, he
argues that, because t his evidence was not offered to prove an element of the charged
offense, he “was entitled to Spriegl analysis, including notice and a judicial determinatio n
of whether there was clear and convincing evidence that the subsequent act of criminal
sexual conduct in fact had occurred.” Second, he argues that the evidence confused the
jury because “[t]he offense date of the alleged fellatio and digital penetration incidents

1 Both parties and the district court refer to evidence admitted pursuant to section 634.20
as relationship evidence. Despite a tendency among courts to conflate the two, see State v.
Matthews, 779 N.W.2d 543, 549 (Minn. 2010) , “[r]elationship evidence adm itted under
section 634.20 is a subtype of general relationship evidence. ”
State v. Bell, 719 N.W.2d 635, 638 n.4 (Minn. 2006). In order to avoid any confusio n,
evidence admitted pursuant to section 634.20, which is at issue here, will be referred to as
“similar-conduct evidence.”

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were very vaguely described by the complainant [and t]he jury was instructed with an
equally vague time element in which the charged offense had to be proven beyond a
reasonable doubt.”
In response, the state argues that similar-conduct evidence need not be prior in time
to the charged conduct to be a dmitted under section 634.20. The state also argues that the
similar-conduct evidence was more probative tha n prejudicial. It notes that the evidence
was “probative to assist the jury when it weighed M.M.’s credibility, as well as probative
to explain the delay in her reporting of the assault,” and that Vierling’s claim that the
similar-conduct evidence was prejudicial is unavailing as there is no indication in the
record that either the state or the defense conflated that evidence with the charged offense.
Finally, the state contends that, eve n if the district court err ed in admitting the similar -
conduct evidence, there was no prejudice to Vierling warranting a new trial.
In a prosecution for criminal sexual conduct:
Evidence of domestic conduct by the accused against the
victim of domestic c onduct, or against other family or
household members, is admissible unless the probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issue, or misleading the jury, or by
considerations of undue delay, waste of time , or needless
presentation of cumulative evidence. “Domestic conduct”
includes, but is not limited to, evidence of domestic abuse,
violation of an order for protection under section 518B.01;
violation of a harassment restraining o rder under section
609.748; . . . or violation of section 609.749 or 609.79,
subdivision 1. “Domestic abuse” and “family or househo ld
members” have the meanings given under section 518B.01,
subdivision 2.

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Minn. Stat. § 634.20 (2016); Minn. Stat. § 518B.01, subd. 2(a)(1), (3) (2016); see also State
v. Sanders, 743 N.W.2d 616, 620 (Minn. App. 2008), aff’d, 775 N.W.2d 883 (Minn. 2009).
Similar-conduct evidence has probative value if it helps establish the relationship between
the victim and defendant or places the alleged conduct in context. State v. Barnslater, 786
N.W.2d 646, 652 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010). However, it
may give rise to unfair prejudice if the evidence persuades by illegitimate means and gives
the state an unfair advantage. Bell, 719 N.W.2d at 641. This court applies an abuse -of-
discretion standard of review to the admission of evidence pursuant to secti on 634.20.
State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).
Vierling’s arguments that the district court erred in admitting evidence that he
digitally penetrated M.M. four years after the charged incident took place are unavailing.
First, Vierling’s ar gument that the state’s similar -conduct evidence was inadmissib le
because it was not prior to the charged offense is legally unsupported. This court has held
that “[t]he statute d oes not state that evidence of ‘similar conduct’ is admissible only if that
conduct occurred before the incident giving rise to the charged offense,” emphasizing that
“there is no temporal restriction contained in the statute. ” State v. Lindsey, 755 N.W.2d
752, 756 (Minn. App. 2008), review denied (Minn. Oct. 29, 2008) . Second, Vierling’s
argument that the evidence was more prejudicial than probative finds no support in either
case law or the record. S imilar-conduct evidence does not need to prove some element of
the charged offense to be admissible . Rather, it may b e offered to “assist[] the jury by
providing a context with which it [can] better judge the credibility of the principals in the
relationship.” McCoy, 682 N.W.2d at 161. Additionally, there is no indication in the

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record that the admission of the similar-conduct evidence confused the jury. At the close
of trial, t he trial court instructed the jury that Vierling could only be convicted of the
charged offense, and that it was prohibited from convicting Vierling on the basis of the
subsequent conduct. Similarly, the state reminded the jury that Vierling was charged with
one offense and that was the act of forcibly inserting his penis in to M.M.’s mouth.
As such, there is no indication that the district court’s decision to admit the
subsequent sexual abuse a s similar-conduct evidence was in error.
Affirmed.