State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0192

State of Minnesota,
Respondent,

vs.

Raymon Freeman,
Appellant.

Filed February 22, 2021
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge*

Hennepin County District Court
File No. 27-CR-19-1652

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

Michael O. Freeman, Hennepin County Attorn ey, Adam E. Petras , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and
Halbrooks, Judge.

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

2
NONPRECEDENTIAL OPINION
HALBROOKS, Judge
In this direct appeal from final judgment of conviction, appellant argues that (1) he
is entitled to a new trial on the grounds of multiple evidentiary errors, (2) the district court
abused its discretion by denying his motion to present alternative-perpetrator evidence, and
(3) the district court erred in sentencing him. We affirm in part because the district court
did not abuse its discretion in its evidentiary rulings or by denying appellant’s motion to
present alternative-perpetra tor evidence. But we reve rse in part and remand for
resentencing because the district court erred in sentencing appellant.
FACTS
A concerned citizen contacted the police an d informed them that someone standing
outside appellant Raymon Freeman’s1 apartment door told the concerned citizen that they
were waiting to buy a gram of heroin. Th e concerned citizen identified a picture of
Freeman as the person selling heroin from th e apartment. A detective began surveilling
Freeman in early 2019 and observed activity that indicated that Freeman was selling
narcotics in the parking lot of the apartment complex where he lived.
During the surveillance, the detective w itnessed at least ten encounters involving
hand-to-hand exchanges while Freeman shared a vehicle with another person. On several
occasions, the detective saw Freeman grab something from under the hood of his car when

1 Appellant’s legal name is Bruce Terrain Solomon, but the proceedings in the district court
were captioned “State v. Raymon Freeman” because he had previously given that name in
jail. Appellant’s counsel continued to use the name Raymon Freeman in this appeal for
the sake of clarity.

3
he was not working on it. The detective testified at trial that the frequent trips to remove
items from beneath the hood of his car and short visits with other persons inside cars
indicated narcotic exchanges.
The detective applied for a warrant to search Freeman’s apartment for evidence of
drug activity. The police executed the warrant on January 16, 2019. Freeman was alone
inside the apartment and initially attempted to barricade the apartment door. After gaining
entry, the officers recovered a “drug ledger,”2 scales, packaging materials, $13,000 in cash,
a box of 9-mm ammunition, 4.5 grams of heroin, and 0.6 grams of cocaine. The cash and
the box of ammunition were recovered from a digital safe, the code to which Freeman
provided to the officers. The officers recovered a DNA sample from the box of ammunition
that matched Freeman. In the bathroom, the officers also found a plastic bag with residue
that tested positive for heroin and powder on the toilet seat that tested positive for heroin,
which were consistent with someone flushing heroin down the toilet.
The police also seized Freem an’s phone and applied for a second warrant to search
its contents. That search revealed “several messages that were indicative of narcotic
activity.”3 In addition, some of the names and numbers in the text messages were identical
to the names and numbers appearing in the drug ledger. The state presented a list of text
messages recovered from Freeman’s phone at trial.

2 The “drug ledger” was a piece of notebook paper with a list of names and corresponding
numbers that police, based on their training and experience, concluded referenced amounts
owed to Freeman by various persons for drug sales.
3 The detective testified that Freeman receive d text messages at 10:00 p.m., 12:00 a.m.,
1:00 a.m., 2:00 a.m., 3:00 a.m. and 4:00 a.m. with short messages like “Are you around?”,
“Got a ten?”, and “Stop by.”

4
Freeman was charged with four coun ts: (1) possession of ammunition by an
ineligible person under Minn. Stat. § 624.713, subd. 1(2) (2020); (2) second-degree sale of
heroin under Minn. Stat. § 152.022, subd. 1(3) (2020); (3) fifth-degree possession of heroin
under Minn. Stat. § 152.025, subd. 2(1) (2020);4 and (4) fifth-degree possession of cocaine
under Minn. Stat. § 152.025, subd. 2(1). Prior to trial, Freeman moved the district court to
allow him to present an alternative-perpetrator defense. In support of his motion, Freeman
submitted an affidavit prepared by his girlfriend. In her affidavit, Freeman’s girlfriend—
who lived with Freeman—averred that the cash found in the safe was hers and that the box
of ammunition had been left by an ex-boyfrie nd. The district court denied Freeman’s
motion on the ground that his girlfriend’s a ffidavit did not establish that she was an
alternative perpetrator because, at most, the affidavit established that she jointly possessed
the ammunition with Freeman.
At trial, the state called to testify th e detective who surveilled Freeman and the
officers who executed the search warrants. The state played surv eillance footage of
Freeman’s parking lot activities for the jury, and the officers testified about discovering the
drugs, drug ledger, cash, ammunition, plastic bag with residue, and Freeman’s phone in the
apartment. An officer tes tified that the quantity of he roin recovered from Freeman’s
apartment—4.5 grams—is a much greater quan tity than would typically be possessed for
personal use. The district court instructed the jury that a person is guilty of second-degree
sale of heroin if he “on one or more occasi ons within a 90-day period, sold one or more

4 Prior to trial, the state amended the possessi on-of-heroin charge from a fifth-degree to a
third-degree charge.

5
mixtures of a total weight of 3 grams or more containing heroin.” The jury found Freeman
guilty of all counts.
The district court adjudicated Freeman gui lty of count one, being an ineligible
person in possession of ammun ition, and count two, second-degree sale of heroin. The
district court sentenced Freeman first on the possession-of-ammunition conviction and
second on the second-degree sale conviction. This appeal follows.
DECISION
Freeman argues that he is entitled to reve rsal of his second-degree sale conviction
because the district court abused its discretion in its evidentiary rulings and the prosecutor
committed misconduct in the closing argument. He further contends that the district court
sentenced him in the wrong chronological order. In a pro se supplemental brief, Freeman
asserts that the district court abused its discretion by denying his motion to present
alternative-perpetrator evidence. We address each argument in turn.
I. Freeman is not entitled to a new trial on his s econd-degree sale-of-heroin
conviction based on his claim of evidentiary errors.

Freeman was convicted of second-degree sale of heroin under Minn. Stat.
§ 152.022, subd. 1(3), which provides: “A pers on is guilty of controlled substance crime
in the second degree if on one or more occasions within a 90-day period the person
unlawfully sells one or more mixtures of a total weight of three grams or more containing
heroin.” “Sell” is defined as “to sell, give away, barter, deliver, exchange, distribute or

6
dispose of to another, or to manufacture,” or “to possess with intent to perform” any of the
previously identified acts. Minn. Stat. § 152.01, subd. 15a(1), (3) (2020).
A. Spreigl Evidence
For the first time on appeal, Freeman argues that the state introduced copious
evidence of his prior bad acts in violation of the notice re quirement of Minn. R. Evid.
404(b)(2).5 Freeman contends that the district court erred by ad mitting “extensive
testimony, surveillance footage, and text me ssage evidence of Freeman’s alleged pre-
January 16, 2019 drug traffickin g.” The state contends that the evidence that Freeman
alleges was introduced in violation of Spreigl was not Spreigl evidence but instead was
direct evidence to prove the statutory elements that he sold one or more mixtures of a total
weight of three grams or more containing he roin within 90 days of the search of his
apartment. We agree.
Evidence of past crimes or other bad act s is generally not admissible to prove the
character of a person or that the person acted in accordance with that character at a
particular time. Minn. R. Evid. 404(b)(1); Spreigl, 139 N.W.2d at 169. When the state
seeks to introduce evidence of a defendant’s past crimes or other bad acts, it must “furnish[]
defendant in writing a statement of the offenses it intends to show he has committed” within
a reasonable time before trial. Spreigl, 139 N.W.2d at 173. Such evidence “shall not . . . be
received” unless the state complies with this notice requirement. Id.

5 Evidence of prior crimes or other ba d acts is commonly referred to as Spreigl evidence
following the supreme court’s decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).
State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

7
Because Freeman did not object at trial to the admission of the evidence of his prior
activities, we review the district court’s admission of the evidence for plain error. State v.
Ezeka, 946 N.W.2d 393, 407 (Minn. 2020). Under this standard, Freeman must
demonstrate “(1) an error, (2) that is plain, a nd (3) that affect[ed] his substantial rights.”
Id. An error is plain if it “contravenes case law, a rule, or a standard of conduct.” State v.
Hayes, 831 N.W.2d 546, 555 (Minn. 2013) (quotation omitted). A defendant’s substantial
rights are affected if “there is a reasonable likelihood that [the admission of evidence] in
question had a significant eff ect on the jury verdict.” State v. Gomez , 721 N.W.2d 871,
880 (Minn. 2006). If Freeman establishes all three of the prongs, we will reverse only if
the error “seriously affects the fairness, integrity, or pu blic reputation of judicial
proceedings.” State v. Mouelle, 922 N.W.2d 706, 718 (Minn. 2019).
In determining whether Freeman has shown that the district court plainly erred,
“[w]e review a district court’s admission of Spreigl evidence for an abuse of discretion.”
State v. Smith, 940 N.W.2d 497, 503 (Minn. 2020). Spreigl evidence is generally excluded
to protect defendants from the risk that the jury could use the evid ence for “an improper
purpose.” Id. (quotation omitted). “A district court abuses its discretion when its decision
is based on an erroneous view of the law or is against logic and the facts in the record.”
State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
Freeman argues the detective’s testimony about the text messages and his activities
in the parking lot was “classic propensity evidence” because the evidence invited the jury
to conclude that “because he sold drugs befo re, he must have been acting in conform[ity]
with that prior conduct” on January 16, 2019. We disagree.

8
The district court instructed the jury, both at the beginning of trial and in its closing
instructions, that Freeman was guilty of second-degree sale of heroin if the jury found that
he sold “one or more mixtures” containing heroin on one or more occasions “within a 90-
day period.”6 This instruction tracks exactly with the language of Minn. Stat. § 152.022,
subd. 1(3).
The state analogizes the 90 -day period in Minn. Stat. § 152.022, subd. 1(3), to the
six-month period in Minn. Stat. § 609.52, subd . 3(5) (2020) (providing that “the value of
the money or property or services received by the defendant in violation of any one or more
of the above provisions within any six-month period may be aggregated and the defendant
charged accordingly”). In construing § 60 9.52, the supreme court concluded that the
inclusion of a period of time in a statute permits considering the defendant’s conduct within
that period as a “continuous act,” in which each individual act becomes an element of the
offense. State v. Mathiasen, 141 N.W.2d 805, 810-11 (Minn. 1966). Here, the inclusion
of a period of time in § 152.022, subd. 1(3), permits the state to introduce evidence of the
defendant’s conduct within the 90 days preceding the date of offense for the second-degree
sale-of-heroin charge. Based on Mathiasen, we conclude that the district court did not
plainly err by permitting the state to offer Freeman’s messages and parking lot activities to
prove a necessary element of the second-degree sale-of-heroin offense.
But even if we were to conclude, withou t deciding, that the evidence of Freeman’s
prior activities was improper Spreigl evidence, the plain-error analysis does not end there.

6 Freeman raised no objection to the jury instructions at trial.

9
Freeman must show that “there is a reasona ble possibility that [the wrongfully admitted
evidence] had a significant effect on the jury verdict” to show that his substantial rights
were affected. Ezeka, 946 N.W.2d at 407 (quotation omitted). He has not done so.
When determining whether an appellant has shown a reasonable possibility that the
allegedly wrongfully ad mitted evidence had a significant e ffect on the jury verdict, we
consider the strength of the evidence against the defendant. State v. Robinette, 944 N.W.2d
242, 248 (Minn. App. 2020), review granted in part (Minn. June 30, 2020). 7 Where the
state has produced other eviden ce that would support the conviction even if the alleged
bad-act evidence had been excluded, the defendant cannot show that his substantial rights
have been affected. See State v. Ness , 707 N.W.2d 676, 691 (Mi nn. 2006) (holding that
defendant did not show a reasonable possib ility that the wrongfu lly admitted evidence
significantly affected the verdict because other evidence in the record attested to the same
element as the Spreigl evidence). Here, the state pres ented overwhelming evidence of
Freeman’s guilt that was recovered from his apartment during execu tion of the search
warrant.
The state introduced the following evidence obtained from Freeman’s apartment:
4.5 grams of heroin, multiple scales, packaging materials, a drug ledger containing a list of
names and dollar amounts presumably owed to Freeman, and a safe—to which Freeman
knew the code—containing $13,000 separated into $1,000 bundles. In addition, the jury

7 The Minnesota Supreme Court grante d review of only part III of the Robinette opinion,
which is not relied upon here. State v. Robinette , No. A19-0679 (Minn. June 30, 2020)
(order).

10
could have reasonably inferred that Freeman was in possession of more than 4.5 grams of
heroin, because the state introduced evidence—the plastic bag and powder from the toilet
seat—indicating that he had flus hed heroin down the toilet just before the police entered
the apartment.
The statutory definition of “sell” includ es possession of the contraband with intent
to sell it. Minn. Stat. § 152.01, subd. 15a(1), (3). Because the jury could have reasonably
concluded that, based on the evidence seized from his apartment, Freeman intended to sell
the heroin in his possession he has not shown a reasonable possibility that the allegedly
wrongfully admitted evidence significantly affected the verdict.
B. Text Messages
Freeman asserts that the district court abus ed its discretion by admitting evidence of
text messages that he characterizes as inadmissible hearsay. Again, Freeman did not object
to the introduction of the text messages at trial. We therefore review the district court’s
admission of the text messages for plain error. Van Buren v. State, 556 N.W.2d 548, 551
(Minn. 1996). Freeman must demonstrate a plain error that affected his substantial rights.
Ezeka, 946 N.W.2d at 407. To show that the district court abused its discretion by
admitting the text messages, Freeman must sh ow that the district court’s decision was
“based on an erroneous view of the law or is against logic an d the facts in the record.”
Guzman, 892 N.W.2d at 810.
Hearsay is a “statement, other than one ma de by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). Hearsay is inadmissible, unless an exception applies. Minn. R. Evid. 802.

11
Hearsay is excluded to protect the defendant’s right to cross-examine the declarant. State
v. Ferguson, 804 N.W.2d 586, 594 (Minn. 2011). But a statement made out of court is not
hearsay if it is admitted into evidence for a purpose other th an to prove the truth of the
matter asserted in the statement. State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004).
Freeman has not shown that the district court plainly erred by admitting the text
messages. He concedes that his outgoing te xt messages were not hearsay because they
were statements of a party-opponent as defi ned by Minn. R. Evid. 801(d)(2) (excluding
statements made by party-opponents from the definition of hearsay). But Freeman asserts
that the incoming messages admitted by the dist rict court were hearsay statements not
falling within any recognized exception. The state conten ds that the incoming text
messages were not admitted to prove the truth of their contents, but instead to contextualize
Freeman’s messages under State v. Tovar, 605 N.W.2d 717, 724-26 (Minn. 2000).
In Tovar, the district court admitted a tape-r ecorded interview between Tovar and
the police. Id. at 724. On appeal from his conviction, Tovar argued that the district court
abused its discretion by permitting the jury to hear the intervie w, which contained
statements from third parties relayed to Tovar by the police. Id. at 724. The supreme court
held that the statements were not hearsay beca use they were admitted not “for their truth,
but rather to give context to Tovar’s responses and admissions on the tape.” Id. at 726.
The supreme court concluded that Tovar—w ho, like Freeman, had not objected to the
statements at trial—had not demonstrated plain error. Id.
Here, the state did not introduce the text messages to prove th at the statements
asserted in the messages were true. As in Tovar, the state introduced the messages to

12
contextualize Freemans’s outgoing text message s for the jury. Because Freeman has not
demonstrated that the district court plainl y erred by permitting the state to introduce the
text messages in order to contextualize his own messages, we need not reach the remaining
prongs of the plain-error analysis. See State v. Lilienthal , 889 N.W.2d 780, 786 (Minn.
2017) (declining to consider whether appellant ’s substantial rights were affected because
appellant did not show plain error).
C. Closing Argument
Freeman contends that he is entitled to a new trial because the prosecutor committed
misconduct in her closing argument by inviting the jury to convict him based on his pre-
January 16, 2019 conduct. Because Freeman did not object to the prosecutor’s alleged
misconduct at trial, we apply a modified plain-error standard of review. State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2 006). Under this standard, if Freeman demonstrates plain
error, the burden shifts to the state to show that the error did not affect Freeman’s
substantial rights. State v. Peltier, 874 N.W.2d 792, 803 (Minn. 2016). If the state does
not meet its burden, this court will order a new trial only if the error “seriously affects the
fairness, integrity, or public repu tation of judicial proceedings.” Id. at 804 (quotation
omitted).
Prosecutors are required to ensure that each defendant receives a fair trial, despite
strong evidence of guilt. State v. Henderson, 620 N.W.2d 688, 701-0 2 (Minn. 2001). A
prosecutor violates that duty by engaging in improper conduct, such as “eliciting
inadmissible evidence.” Ramey, 721 N.W.2d at 300. The violation of a defendant’s right

13
to a fair trial is a violation of th e defendant’s right to due process. State v. Hanke , 712
N.W.2d 211, 214 (Minn. App. 2006).
Freeman’s allegation of error here is ba sed upon the claims of error we just
addressed. Because we have concluded that the district court did not plainly err by
admitting the evidence of Freeman’s prior activities or the text messages, Freeman has not
demonstrated plain error with respect to the prosecutor’s closing argument. Therefore, we
need not determine whether the state has met its burden to show that Freeman’s substantial
rights were not affected. See Lilienthal, 889 N.W.2d at 786 (declining to consider whether
appellant’s substantial rights were affected because appellant did not show plain error).
Finally, Freeman argues that even if any individual error would not require reversal,
the cumulative weight of the alleged errors entitles him to a new trial. Freeman’s argument
that he was prejudiced by the alleged errors focuses heavily on his argument that the state
introduced improper character evidence. The state contends th at Freeman was not
prejudiced because police “recovered a substantial amount of evidence of drug trafficking
from [Freeman’s] apartm ent.” We conclude that Free man has not shown a reasonable
possibility that the evid ence alleged to be wrongfully ad mitted significantly affected the
verdict because the jury could have convicted him solely on the basis of the drugs, money,
scales, packaging materials, and drug ledger recovered from his apartment. Accordingly,
Freeman is not entitled to a new trial on his second-degree sale conviction.
II. The district court improperly sentenced Freeman.
Freeman argues that his ca se must be remanded for re sentencing irrespective of
whether his second-degree sale conviction is reversed because the district court sentenced

14
him in the wrong sequence. Th e sentencing guidelines mandate that “[m]ultiple offenses
sentenced at the same time before the same court must be sentenced in the order in which
they occurred.” Minn. Sent. Guidelines 2.B.1. e (2018). Freeman asse rts that the district
court erred by sentencing him first on the o ffense of being an ineligible person in
possession of a firearm because that offens e occurred on Januar y 16, 2019, while the
second-degree sale charge occurred during th e 90-day period preceding January 16. The
state agrees. Because the district court se ntenced Freeman in th e wrong order for his
convictions, we reverse and remand to the distri ct court for resentencing consistent with
the sentencing guidelines.
III. The district court did not abuse its di scretion by denying Freeman’s motion to
present alternative-perpetrator evidence.
In a pro se supplemental brief, Freeman ar gues that the district court abused its
discretion by denying his motion to present alte rnative-perpetrator evidence with respect
to who owned the items found in the safe. Prior to trial, Freeman submitted an affidavit
from his girlfriend in which she claimed that the cash was hers and that the ammunition
had been left in the safe by an ex-boyfriend. The state contends that the district court
correctly concluded that Free man’s girlfriend’s affidavit di d not satisfy the requirements
of an alternative-perpetrator defense.
This court reviews a district court’s denial of a defendant ’s motion to admit
alternative-perpetrator evidence for an abuse of discretion. State v. Atkinson, 774 N.W.2d
584, 589 (Minn. 2009). “A district court ab uses its discretion when its decision is based

15
on an erroneous view of the law or is agai nst logic and the facts in the record.” Guzman,
892 N.W.2d at 810.
In determining whether alte rnative-perpetrator evidence is admiss ible, the district
court “must determine whether the defendant laid a proper foundation for admission of
such evidence by offering evidence that has an inherent tendency to connect the alternative
perpetrator to the commission of the charged crime.” Atkinson, 774 N.W.2d at 590 (citing
Huff v. State, 698 N.W.2d 430, 436 (Min n. 2005)). If the defendan t fails to lay a proper
foundation, the defendant cannot present alternative-perpetrator evidence. Id. (citing State
v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977)).
Here, the district court concluded that Freeman failed to lay a proper foundation
because his girlfriend’s affidavit did not es tablish that she had “exclusive and sole
possession” of the contraband. The district court ruled that Freeman’s girlfriend’s affidavit
did not eliminate the possib ility of Freeman’s joint posse ssion of the ammunition,
particularly in light of the fact that Freem an knew the code to the safe and his DNA was
found on the ammunition. See State v. Lee , 683 N.W.2d 309, 316 n.7 (Minn. 2004)
(holding that a defendant may be convicted of constructively possessing contraband that is
jointly possessed with anothe r person). Because Freeman did not lay the required
foundation for the alternative-perpetrator evidence, the district court properly exercised its
discretion by denying his motion.
In sum, we conclude that Freeman has not shown that he is entitled to a new trial on
his second-degree sale charge because he has not shown that the district court plainly erred
or that his substantial rights were affected by the evidence that he alleges was erroneously

16
admitted. We further conclude that the dist rict court properly exercised its discretion by
denying Freeman’s motion to admit his alternative-perpetrator evidence. But because we
conclude that the district court sentenced Freeman for his two convictions in the wrong
order, we reverse and remand for resentencing consistent with the sentencing guidelines.
Affirmed in part, reversed in part, and remanded.