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This opinion will be unpublished and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
A19-0794

State of Minnesota,
Respondent,

vs.

Edgar Noe Lopez-Monter,
Appellant.

Filed May 4, 2020
Affirmed
Florey, Judge

Ramsey County District Court
File No. 62-CR-17-9076

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appealing directly from his conviction for first and second-degree criminal sexual
conduct, appellant Edgar Noe Lopez -Monter argues (1) that the district court erred in

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admitting Spreigl evidence that appellant had committed fifth-degree criminal sexua l
assault against another child and (2) that a remand is required to permit the district court to
determine whether the state failed to disclose material and exculpatory evidence. We
affirm.
FACTS
J.M. opened a licensed in-home daycare in Roseville in 2006. In 2009, J.E.P. began
attending the daycare as an infant. Later, L.C.P., the younger sister of J.E.P. , also began
attending the daycare. In 2014, appellant Edgar Lopez -Monter began assisting his wife,
J.M., with her licensed in -home dayca re by driving a school bus and helping with the
daycare when more than 12 children were present.
In August 2017, the Roseville Police Department received a report of inappropriate
conduct concerning Lopez-Monter. Six-year-old L.C.P. asked J.M. to tell Lopez-Monter
to stop kissing her. Both L.C.P. and J.E.P., now nine, told their mother that Lopez-Monter
had been kissing them on the lips for the past several years. The girls stated that the kisses
occurred outside the presence of J.M. During Midwest Children’s Resource Center
interviews and exams that August, the girls disclose d only kissing. In early November
2017, another female child, A.P., reported at school that Lopez -Monter had exposed
himself to her and masturbated in front of her while she attended the daycare between 2011
and 2013. Around Thanksgiving of 2017, J.E.P. told her cousin that Lopez -Monter had
touched her privates. A few days later, J.E.P. left a note on her mother’s nightstand that
stated she was sorry for not telling the truth, but that Lopez-Monter “was touching me.”

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J.E.P. had a follow-up interview at the Midwest Children’s Resource Center, during
which she disclosed that Montez -Lopez touched her “front private” and “back private”
beginning when she was six, that it happened many times and in many places in the home,
and that Lopez -Monter told her not to tell anyone. The nurse recommended that J.E.P.
attend individual therapy. During two therapy sessions in early 2018, J.E.P. again
disclosed that Lopez-Monter touched her underneath her clothes, and penetrated both her
vagina and anus with his finger.
Lopez-Monter was arrested in December 2017, but declined to participate in a
custodial interview. He was charged with one count of second -degree criminal sexual
conduct involving J.E.P. In April 2018, the complaint was amended to include one count
of first-degree criminal sexual conduct.
A four-day jury trial was held in December 2018. The state sought to admit Spreigl
evidence that Lopez -Monter had kissed A.P., had exposed himself, and masturbated in
front of her. The district court ruled that the evidence was admissible to prove motive,
opportunity, intent, absence of mistake or accident, and commo n scheme or plan. L.C.P.
and J.E.P. testified for the state. A.P.’s testimony was also admitted as Spreigl evidence.
J.M. and Lopez-Monter testified for the defense. The jury found Lopez -Monter guilty on
both counts. Lopez -Monter was s entenced to the presumptive 172 months for the first -
degree criminal sexual conduct , executed, and ten years of conditional release. Lopez -
Monter appeals.

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D E C I S I O N
Lopez-Monter contends that the district court erred by admitting Spreigl evidence,
namely A.P.’s testimony that Lopez-Monter had previously kissed her, exposed himself to
her, and masturbated in front of her. The admissibility of evidence of other crimes or acts
is governed by Minn. R. Evid. 404(b). Such evidence is commonly referred to as “Spreigl
evidence.” State v. Spreigl, 139 N.W.2d 167 (Minn. 1965); see State v. Kennedy , 585
N.W.2d 385, 389 (Minn. 1998). Rule 404(b) prohibits the admission of other-acts evidence
to prove “the character of a person in order to show action in conformity therewith.” But
Spreigl evidence is “admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or ab sence of mistake or accident.” Minn.
R. Evid. 404(b).
A district court’s decision to admit Spreigl evidence is
reviewed for an abuse of discretion. A defendant who claims
the trial court erred in admitting evidence bears the burden of
showing an error occurred and any resulting prejudice. If an
appellate 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.

State v. Griffin, 887 N.W.2d 257, 261-62 (Minn. 2016) (citations omitted).
In State v. Ness , the Minnesota Supreme Court laid out a five -step process to
determine whether a district court may admit other acts evidence:
(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

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(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

707 N.W.2d 676, 68 5-86 (Minn. 2006). Lopez -Monter challenges the district
court’s determinations on steps four and five, arguing that the evidence was not relevant or
material, and that the probative value was outweighed by its potential for unfair prejudice.
The district court concluded that the extrinsic conduct is “relevant and material to the
defendant’s intent, absence of mistake or accident, and common scheme or plan related to
the underlying charges.” The district court noted that the “location of where these acts
occurred . . . who the victims were . . . [and] when the conduct occu rred is relevant and
material to establish intent, absence of mistake or accident, and common scheme or plan”
because each of the acts occurred in the daycare, with daycare children, and during daycare
hours, just like the conduct being charged. “Spreigl evidence need not be identical in every
way to the ch arged crime, but must instead be sufficiently or substantially similar to the
charged offense—determined by time, place and modus operandi.” Id. at 688 (citation and
emphasis omitted).
Here, as the stat e argues, there are numerous similarities between A.P.’s Spreigl
testimony and the charged acts: both girls were around six years old, Lopez-Monter began
by kissing them on the mouth, and the acts all occurred while J.M. was busy with other
activities in the daycare. The district court did not abuse its discretion by concluding that
this testimony is relevant and material because the similarities between A.P.’s testimony
and the charged conduct tends to show opportunity and the absence of a mistake or
accident.

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Lopez-Monter argues that the Spreigl evidence was unfairly prejudicial due to both
the dissimilarity between A.P.’s testimony and the charged conduct, and the fact that the
statute of limitations had already run on the offense against A.P. But unfairly prejudicial
evidence is not evidence that is merely damaging, but evidence that persuades by
illegitimate means. State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006). The district court
concluded that A.P.’s testimony was highly probative, but not “unfairly prejudicial.” Here,
the jury was cautioned when A.P.’s testimony was introduced, and again during final jury
instructions. Jurors are presumed to have followed instructions. Griffin, 887 N.W.2d at
262. In addition, the prosecutor reminded the jury during closing argument that the conduct
at issue was not related to A.P.
The record reflects that the district court properly weighed the dec ision to admit
Spreigl evidence, and Lopez-Monter has not met his burden of demonstrating error. We
therefore conclude that the district court did not abuse its discretion by admitting A.P.’s
testimony.
Finally, Lopez-Monter contends that a potential Brady violation occurred. During
the defense’s direct examination of J.M., J.M. stated that J.E.P. once told her “she was
touched by a boy at school.” J.M. testified that this occurred during 2015 and that she had
not previously given this information to defense counsel or to the police. The state objected
and argued this testimony should be stricken as he arsay and because it had not been
disclosed by the defense. The defense agreed, and the jury was instructed to disregard this
statement. Based on this incident, Lopez -Monter asks this court to remand to the district
court to determine whether a Brady vio lation occurred. Lopez -Monter requests that this

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court instruct the district court to perform an in camera review of J.E.P.’s school records
to determine whether they contain exculpatory information. Lopez -Monter concedes that
the “record is unclear as to the exact nature” of the “prior accusation.”
The state argues that we should not rule or remand on this issue because it did not
come before this court on appeal from an order or ruling . Roby v. State, 547 N.W.2d 354
(Minn. 1996). We agree. To the e xtent that there was a ruling on this issue, it was that
J.M.’s statement should be struck from the record. Defense counsel agreed. Lopez -
Monter1 could have sought postconviction review of this issue instead of raising it as part
of his direct appeal. Having concluded that this issue is not properly before us, we decline
to reach it.
Affirmed.

1 Lopez-Monter raises several additional issues in his pro-se supplemental brief, including
a jury issue, sufficiency of the evidence, delay in trial, judge biased because he presided
over a family law matter, and ineffective assistance of counsel. However, Lopez-Monter
does not provide any legal authority or argument beyond a mere assertion that these issues
affected his trial. Inadequately briefed issues are not properly before an appellate court.
State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (criminal), review denied (Minn.
Aug. 5, 1997).