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This opinion will be unpublished and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
A19-0160

State of Minnesota,
Respondent,

vs.

Nicholas James Bandur,
Appellant.

Filed December 2, 2019
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Sherburne County District Court
File No. 71-CR-16-1777

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

Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant Sherburne
County Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from judgment of conviction for criminal sexual conduct,
appellant challenges the district court’s admission of other-acts evidence and contends that

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the district court erred in adjudicating him guilty of both counts of criminal sexual conduct
of which a jury found him guilty. In his pro se supplemental brief, appellant also argues
that the district court erred because no mental health evaluation was completed prior to
sentencing to support a downward departure and appellant’s counsel was ineffective when
counsel failed to arrange a psychosexual evaluation. We reverse in part and remand with
instructions to vacate the conviction for second-degree criminal sexual conduct. We affirm
in all other respects.
FACTS
In September 2016, the victim reported to police that when he was 11 years old,
appellant Nicholas James Bandur sexually abused him on multiple occasions. In December
2017, appellant was charged by complaint in Sherburne county district court with first-
degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) and
second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a).
At trial, the victim testified to the following: when the victim was nine or ten years
old and l iving in Monticello, appellant would stay overnight at his house. Appellant
showed the victim pictures of nude people engaging in sex, asked the victim to undress
himself, and touched the victim’s penis. Appellant sucked on the victim’s penis and
instructed the victim to put his mouth on appellant’s penis. When the victim was 11 or 12
years old and living in Big Lake, appellant continued to come over to his house and ask the
victim to put his mouth on appellant’s penis. When the victim moved to a new ho use, the
activity stopped. Eventually, the victim told his mother what had happened with appellant.

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The state filed a notice of intent to offer evidence of appellant’s other acts involving
the victim’s brother. The state identified intent, absence of mi stake or accident , and
common scheme or plan as the bases for its admission. Appellant opposed the state’s
motion. After reviewing a copy of the statement made by the victim’s brother to the Big
Lake Police Department, the district court allowed the state to offer evidence of appellant’s
other acts involving the victim’s brother, finding that there was clear and convincing
evidence that appellant engaged in those acts. The district court found that the other-acts
evidence was relevant given the similar t imeframes and similar alleged acts. The district
court acknowledged that the other -acts evidence would be prejudicial to appellant, but
found that the probative value of the evidence outweighed any prejudice. The district court
gave a cautionary instruct ion prior to the receipt of other-acts testimony and during final
instructions before submitting the case to the jury.
At trial, the victim’s brother testified that he was approximately 13 or 14 years old
when appellant started coming to his house in Monti cello. The victim’s brother testified
that he and appellant would play video games together and that when someone died on the
video game they would have to do a truth or dare. One of the dares suggested by appellant
involved stripping down and running around the outside of the house. The victim’s brother
declined to do this dare because it made him uncomfortable. The victim’s brother also
testified that appellant made a “proposition for a blow job” through hand motions, which
he declined, and that “masturbation was propositioned” along with the truth or dare game.
The victim’s brother testified that these incidents continued at the house in Big Lake. He

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eventually told his mother about what had happened and later learned that the victim told
their mother as well.
Appellant did not testify at the trial, but his video statement to police was played for
the jury. In his statement, appellant denied all of the allegations.
Following a jury trial, the jury found appellant guilty of first-degree criminal sexual
conduct and second-degree criminal sexual conduct. Appellant was ordered to complete a
presentence investigation. A ppellant moved the court for a downward dispositional
departure from the presumptive sentence of a 144-month commitment to the commissioner
of corrections.
The district court denied appellant’s motion for a downward dispositional departure
and sentenced appellant on count I —criminal sexual conduct in the first degree —to the
presumptive guidelines sentence of 144 months incarce ration, followed by ten years of
conditional release. The district court entered convictions for both count I and count II.
This appeal follows.
D E C I S I O N
I. The District Court Did Not Abuse its Discretion when it Admitted Other-
Acts Evidence.

Appellant argues that the district court abused its discretion by admitting other-acts
evidence because the evidence was not relevant or needed and was overly prejudicial.
Minnesota Rule of Evidence 404(b) governs the admissibility of evidence of other cr imes
or acts. This evidence is referred to as “ Spreigl evidence” based on the supreme court’s
decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965). State v. Kennedy, 585 N.W.2d

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385, 389 (Minn. 1998). Evidence of other crimes or acts is not admissib le to prove “the
defendant’s character for the purpose of showing that he or she acted in conformity with
that character.” Id. However, such evidence may be admitted for the purpose of showing
motive, intent, absence of mistake or accident, identity or a common scheme or plan. Id.
(citing Minn. R. Evid. 404(b)). The court has developed a five -step process to determine
whether to admit other-acts evidence. The steps include:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly 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.

State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).

“Admission of Spreigl evidence rests within the sound discretion of the trial court
and a trial court’s ruling will not be disturbed absent a clear abuse of discretion.” State v.
DeWald, 464 N.W.2d 500, 503 (Minn. 1991) . When a defendant claims the trial court
erred in admitting evidence, the defendant “bears the burden of showing an error occurred
and any resul ting prejudice.” State v. Griffin , 887 N.W.2d 257, 261 -62 (Minn. 2016)
(citations omitted). Appellant does not challenge the first three factors.
A. Other-Acts Evidence is Relevant Where Defendant Disputes that Sexual
Conduct Occurred.
Appellant argues that the other-acts evidence was not relevant since neither identity
nor intent was at issue. More specifically, appellant contends that
[i]n this case no issue existed as to whether the conduct was a
mistake or accident. If it happened , it was criminal sexual

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conduct; if it did not happen, no crime occurred. If no issue
existed as to whether the behavior was an accident but, instead,
the only issue was the complainant’s credibility, as the
prosecution conceded, then the Spreigl evidenc e would have
and could only have been used by the jury, despite the
cautionary instruction, to improperly imply appellant had a
propensity to sexually assault young boys.

Appellant essentially claims that other-acts evidence under Minnesota Rule of Eviden ce
404(b) is irrelevant where a defendant denies allegations of sexual abuse or misconduct.
This is contrary to caselaw, which provides that “[i]n criminal sexual conduct cases,
particularly in child sex abuse prosecutions, prior acts of sexual conduct are often relevant
where the defendant disputes that the sexual conduct occurred or where the defendant
asserts the victim is fabricating the allegations.” State v. Boehl , 697 N.W.2d 215, 219
(Minn. App. 2005), review denied (Minn. Aug. 16, 2005). Due to the “secrecy in which
such acts take place, the vulnerability of the victims, the absence of physical proof of the
crime . . . and a general lack of confidence in the ability of the jury to assess the credibility
of child witnesses,” prior bad acts or convi ctions are relevant to show a common scheme
or plan, or that the act occurred. Id. at 219-20 (quotation and citation omitted). “Admission
for this purpose . . . should be proper at least where the corpus delicti truly is in issue and
where the trial court is satisfied that the other crime is sufficiently relevant to the charged
crime.” State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993).
Appellant denied all allegations of inappropriate sexual conduct with the victim.
Therefore, corpus delicti “t ruly was in issue.” Additionally, the district court found that
the other-acts evidence was relevant given that the incidents were “similar in time frames”
and “similar acts [were] being alleged.” Appellant does not challenge these findings. The

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district court did not abuse its discretion when it found that the other-acts evidence was
relevant.
B. The Other-Acts Evidence Was Not Unfairly Prejudicial.
Appellant next argues that the other-acts evidence was overly prejudicial.
Specifically, appellant argues that the other-acts evidence had no proper purpose except to
imply that appellant had a propensity to sexually assault young boys, and that its prejudicial
effect outweighed any probative value. Courts, when determining the need for other-acts
evidence should “conduct a thoroughgoing examination of the purposes for which Spreigl
evidence is offered and . . . weigh the probative value of the evidence on disputed issues in
the case against its potential for unfair prejudice.” Ness, 707 N.W.2d at 690. “[T]he closer
the relationship between the other acts and the charged offense, in terms of time, place, or
modus operandi, the greater the relevance and probative value of the other -acts evidence
and the lesser the likelihood that the evidence will be used for an improper purpose.” Id.
at 688. “The prosecution’s need for other-acts evidence should be addressed in balancing
probative value against potential prejudice, not as an independent necessi ty requirement.”
Id.
Here, the district court found that the other-acts evidence was relevant given the
similar timeframes and alleged acts. The district court also considered the fact that the
victim and his brother were “similar ages,” and the incident s occurred in “similar
locations.” The district court acknowledged that the other -acts evidence would be
prejudicial to appellant, but found that the probative value of the evidence outweighed any
prejudice. Moreover, the district court considered the weakness of the state’s case, noting

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the delayed report and lack of physical evidence. Appellant conceded that the state’s case
was weak, noting that “[t]here was no corroborating evidence: no semen, DNA,
eyewitnesses or any person who was told contemporaneously about the allegations.” But
cf. Ness, 707 N.W.2d at 689 (concluding that the probative value of the other-acts evidence
was outweighed by its potential for unfair prejudice because, in part, the other -acts
evidence was not needed “to strengthen otherwise weak or inadequate proof of an element
of the charged offense or the state’s case as a whole”). The district court did not abuse its
discretion when it found that the probative value of the other -acts evidence was not
outweighed by its potential for unfair prejudice.
Finally, appellant argues that this court should reverse and remand for a new trial
because the improper other-acts testimony affected the verdict. “When the district court
has erroneously admitted other-acts evidence, this court must determine whether there is a
reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” Id. at 691. Because we conclude that the district court did not erroneously admit
the other-acts evidence, we need not consider this argument.
II. The District Court Erroneously Convicted Appellant of The Crime
Charged and a Lesser-Included Offense.

The parties agree that the district court erroneously adjudicated appellant guilty of
first-degree criminal sexual conduct and the lesser -included offense of second-degree
criminal sexual conduct . Second-degree criminal sexual conduct is a lesser -included
offense of first -degree criminal sexual conduct. State v. Kobow , 466 N.W.2d 747, 753
(Minn. App. 1991), review denied (Minn. Apr. 18, 1991). “Upon prosecution for a crime,

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the actor may be convicted of either the crime charged or an included offense, but not
both.” Minn. Stat. § 609.04, subd. 1 (2018). An “included offense” includes “a crime
necessarily proved if the crime charged were proved.” Id., subd. 1(4). “A guilty verdict
alone is not a conviction.” Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007). Where a
defendant is convicted of more than one charge for the same conduct, the district court
should formally adjudicate and impose sentence on one count only, while leaving the
remaining guilty verdict intact with no formal adjudication. State v. LaTourelle , 343
N.W.2d 277, 284 (Minn. 1984) . “Whether a defendant was ‘formally adjudicated’ guilty
of an offense is usually determined by looking at the official judgment of conv iction.”
State v. Plan , 316 N.W.2d 727, 729 (Minn. 1982). Whether the district court erred by
formally adjudicating multiple convictions is a question of law reviewed de novo. State v.
Ferguson, 729 N.W.2d 604, 618 (Minn. App. 2007), review denied (Minn. June 19, 2007).
The jury found appellant guilty of both first-degree criminal sexual and second-
degree criminal sexual conduct based on the same occurrences, and t he district court
entered convictions for both offenses at sentencing and in the official judgment. The proper
practice is for the district court to formally adjudicate and impose sentence on only one
count. LaTourelle, 343 N.W.2d at 284. Appellant’s second -degree criminal sexual
conduct offense is a lesser -included offense to the first -degree criminal sexual conduct
offense; therefore, the district court erroneously entered convictions for both offenses. We
reverse and remand to the district court with instructions to vacate the adjudication of guilt
with respect to the second -degree criminal sexual conduct charge, without disturbing the
jury’s finding of guilt on that charge.

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III. Appellant is Not Entitled to Relief on His Pro Se Arguments.
Appellant makes additional arguments in his pro se supplemental brief . Appellant
argues that a mental health evaluation should have been completed prior to his sentencing
to support his request for a downward departure . A presentence investigation ( the PSI)
was completed, which addressed appellant’s mental health. According to the PSI, appellant
denied ever being diagnosed with a mental health condition, being prescribed psychotropic
medication, or being treated by a mental health professional. Appellant did report that he
was diagnosed with autism as a child, but stated that the diagnosis does n ot generally
impact him. Because appellant denied any mental health diagnoses and denied being
treated by a mental health professional, appellant’s argument is without merit.
Appellant also argues that no safeguards were put in place regarding his mental
health concern “to help him in a [sic] environment to help protect him from being a bigger
target due to the severity of the charges.” Appellant cites to no legal authority to support
this contention. Because inadequately briefed issues are not properly before the court, we
decline to address this argument. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App.
1997) (concluding that appellant’s arguments were not properly before the court because
appellant failed “to make and develop any argument, other than a general statement”) ,
review denied (Minn. Aug. 5, 1997).
Finally, appellant contends that he received ineffective assistance of counsel
because “it was the duty of [his] lawyer or the state or both to set up a PSE” 1 and one was

1 It appears appellant is referring to a psychosexual evaluation.

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never conducted. More specifically, appellant argues that his lawyer did not arrange the
PSE after asking for one at his sentencing. And because it was never conducted, appellant
was not given enough information to argue for a downward departure.
In order to succeed on a claim of ineffective assistance of counsel, the claimant must
prove 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)). A reasonable probability is a “probability sufficient to undermine confid ence in
the outcome.” State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. 2052)). Under the prejudice prong, an “[appellant] must show
that counsel’s errors ‘actually’ had an adverse effect.” Gates, 398 N.W.2d at 562. Where
the claim does not satisfy one of the Strickland requirements, “we need not consider the
other requirement.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017) (citation omitted).
Appellant has not met his burden of proving that b ut-for counsel’s error in not
arranging a PSE, the result of the proceedings would have been different. Appellant argues
that “[w]ithout that PSE not enough evidence was given for a chance at a downward
departure.” But appellant denied that he had any sexual contact with the victim and so it
is unclear what helpful information may have been obtained from a psychosexual
evaluation. Furthermore, appellant has not articulated how the district court’s decision
regarding a sentencing departure would have been different if the results of a psychosexual

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evaluation would have been provided. Appellant is not entitled to relief on these
arguments.
Affirmed, in part, reversed, in part, and remanded.