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This opinion is nonprecedential except as provided by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
A20-0522

State of Minnesota,
Respondent,

vs.

Michael Darron Ware,
Appellant.

Filed April 12, 2021
Affirmed in part, reversed in part, and remanded
Cleary, Judge*
Dakota County District Court
File No. 19HA-CR-19-1792

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

Kathryn M. Keena, Acting Dakota County A ttorney, Anna Light, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Bjorkman, Pr esiding Judge; Segal, Chief Judge; and
Cleary, Judge.

*Retired judge of the Minnesot a Court of Appeals, servin g by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
CLEARY, Judge
A jury convicted appellant of first- and second-degree criminal sexual conduct
(CSC). In this appeal from final judgments of conviction, appellant argues the district court
prejudicially erred by admitting into evidence sexually-oriented text messages because the
texts constituted prior bad acts under Minn. R. Evid. 404(b) and the state did not follow
the procedural requirements to admit them . Additionally, appellant argues that the
conviction for second-degree CSC must be vacated as part of the same behavioral incident
as the first-degree CSC conviction. Because we determine the text messages did not contain
evidence of prior bad acts, but agree that appellant’s warrant of commitment incorrectly
lists two convictions, we affirm the first-degree CSC conviction but reverse and remand to
correct the error in the warrant of commitment to reflect one adjudication.
FACTS
Appellant Michael Darron Ware appeals from final judgments of conviction for
first- and second-degree CSC under Minn. Stat. § 609.342, subd. 1(a) (2016) and Minn.
Stat. § 609.343, subd. 1(a) (2016), respectively.
On the first day of trial, Ware filed mo tions in limine requesting the exclusion of
“any evidence that the defendant has been guilty of additiona l misconduct and crimes on
other occasions . . . pursuant to Minn. R. Ev id. 404(b).” The district court addressed
Ware’s motions the same day. The state e xplained it intended to offer text messages
between Ware and J.P., the alleged victim. The state also explained that there was a police
investigation of Ware relating to a different matter: “a family member of the defendant

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alleged that he had gone through the defendant’s phone and found text messages between
the defendant and his 17-year-old daughter that he found inappropriate.” The state said it
was not going “to move forward with Spreigl evidence as it relates to that issue.” See
generally State v. Spreigl, 139 N.W.2d 167 (Minn. 1965) (emphasis added). There was no
discussion of prior-bad-act evidence or Spreigl evidence pertaining to the texts Ware sent
to J.P.
Thirteen-year-old J.P.1 testified that Ware was in an “off-and-on” relationship with
J.P’s mom, and J.P. has known Ware for “eight or nine years.” While J.P. is not biologically
related to Ware, J.P. describe d Ware as “more like a parent.” At times, Ware lived with
J.P., J.P.’s mom, and J.P.’s two siblings.
During the summer of 2018, Ware was livi ng at his mom’s house and J.P. would
visit Ware’s mom’s house every weekend, occasionally accompanie d by J.P.’s mom,
cousin, and two siblings. J.P. spent the night at Ware’s mom’s house “every other
weekend” that summer. Ware’s mom’s house has two stories; Ware’s mom has a bedroom
on the second floor, and Ware’s bedroom was on the first floor next to his office. When
J.P. would spend the night, J.P. slept in Ware’s office on a couch and Ware slept on an air
mattress, also in his office.
J.P. testified that the last night J.P. slept at Ware’s mom’s house was in late August,
before school started. That night, J.P. recalled that Ware lay down on the air mattress and
told J.P. “to come over here on the air matt ress with him.” J.P. complied and fell asleep

1 Although J.P.’s legal name is not J.P., we refer to those initials as they are the initials of
J.P.’s preferred name.

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next to Ware on the air mattress. J.P. woke up to Ware touching J.P. “in my vagina” with
his fingers. J.P. testified that Ware “was insi de of me” for “one to two minutes” and that
J.P. “was scared.” Ware stopped when J.P. “squirmed” away, then Ware “pretended like
he was asleep.” J.P. fell back asleep and th en woke up again because Ware was touching
J.P. “the same way he was touching me before,” which lasted “two to three minutes.” J.P.
then “squirmed” away again, waited for Ware to fall asleep, and then moved onto the
couch.
J.P. testified that the assaults occurred multiple times, “mostly every week—every
weekend I would go over there.” J. P. stated that Ware touche d J.P. in “the same way”
“about nine or ten” times in total. The second time the assault occurred,2 J.P. testified that
Ware “told me if I told anybody we’d both get in trouble,” so J.P. did not tell anyone about
Ware’s conduct. Sometimes Ware “would be fully naked,” sometimes Ware would touch
J.P.’s “behind” and “chest,” sometimes Ware would “put lotion on [J .P.] and rub [J.P.],”
and sometimes it would “happen in his living room and in his bedroom.” Similar incidents
also occurred at the apartment where J.P. lived with J.P.’s mom. J.P. testified that the first
time J.P. told anyone about Ware’s conduct was in May of 2019, when J.P. was in inpatient
treatment at the hospital for “suicidal thoughts.”
J.P. testified that Ware bought J.P. a cell phone on the first day of school, September
4, 2018. Throughout September, Ware and J.P. exchanged text messages. Ware’s attorney
objected to the text messages on relevance, foundation, and hearsay grounds. After an off-

2 J.P. first testified about the August incident—the last time Ware assaulted J.P.—and then
explained that Ware assaulted J.P. earlier as well.

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the-record discussion, the district court overruled the objection and admitted the texts into
evidence as exhibits 1-27. At a bench discussion outside the pr esence of the jury, Ware’s
attorney argued she already ob jected to the admission of the text messages as prior bad
acts, but the district court stated, “I don’t reca ll hearing an objection on that basis . . . the
prior bad acts.” Ware’s attorney responded, “Well, I don’t think I—I don’t know that I
mentioned that but I know—I believe that I did object to their—to them being admitted.”
In the initial text messages, Ware told J.P. that “from here on out, if I ever say
something to you th at is CRAZY, INAPPROPRIATE, NASTY, FREAKY, SLUTTY or
ANYTHING ABOUT MOM . . . ALWAYS DELETE THEM RIGHT AWAY!!!! YOU
UNDERSTAND ME??” Ware sent J.P. text messages calling J.P. “sweet cheeks,”
“honey,” and “baby.” Ware also sent J.P. a text message with a link to TikTok that showed,
as J.P. described, a video of “[a] girl da ncing in a tank top an d shorts,” which Ware
followed up with texts saying “[s]h-t like that! Reminds me of your little shorts” and “I
want you to practice your Ti[k]Tok.”
In other text messages referencing J.P.’s girlfriend, who was twelve at the time,
Ware stated, “OH MY GOD [J.P.]!!!! SHE IS BADDDD!!!! Dam baby. You got yourself
a Bad B-tch. Good job baby Dam!” Also in reference to J.P.’s girlfriend, Ware texted, “Can
she hang out with you after school? Where she live baby? . . . I can come get you and we
can go get her if you want to??” The district court gave a curative instruction as to the text
messages involving J.P.’s girlfriend:
Members of the Jury, earlie r in the trial, you heard
evidence regarding a September 6, 2018, text exchange in
which Mr. Ware made references to [J.P.’s] girlfriend. Because

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of the nature of the charges in this case, one might reasonably
conclude that Mr. Ware had a de sire to set up a situation in
which he would have access to [J .P.]’s girlfriend. The parties
both agree that you should not draw such a conclusion.

Ware testified that he has five children and actively participated as a parent in their
day-to-day lives. One of Ware’s children is J. P.’s younger brother. Ware testified that he
had a “really great” relationship with J.P. Ware could not remember a time that he ever had
to discipline J.P. Ware explained that J.P. would spend the nights at Ware’s mom’s house
with him, but that Ware woul d always sleep in his bedroom. Ware testified that he could
not remember a time that he ever slept in the office, and that he never laid on the air mattress
with J.P., touched J.P., or penetrated J.P.
Ware testified that he aske d J.P. to delete the text messages because of “the
contentious nature of the house at the time. The family dynamics was falling apart . . . I
was just letting her know that if I ever sa id anything, you know, about your mom, my
bad. . . . I would hate for two adults’ argument to spill over. . . .” Ware explained that he
was angry when he first learne d J.P. had a girlfriend, so he sent the texts about J.P.’s
girlfriend because he “was trying to not be so insensitive and let [J.P.] know that I still had
[J.P.’s] back.” Ware testified, “I did a dumb dad joke instead of me being mad about [J.P.]
being gay or coming out, I said, go—go ahead.”
Ware testified that he called all of his children “honey,” “baby,” and “sweet cheeks.”
Ware explained that J.P. would use his phon e to practice recording singing and dancing
because “kids are becoming huge stars” through apps like TikTok. Ware further explained
that he sent the links to the TikTok videos because Ware and J.P. were trying to get J.P. “a

7
contract” with “YouTube or whatever,” and that “[J.P.] and the other kids, the neighbors,
and my nieces and nephews, they were all tryi ng to become stars.” Lastly, Ware agreed
that there were no sexual undertones in the messages that he and J.P. exchanged.
The state offered testimony from J.P., the investigating detective, J.P.’s mother, and
a social worker who interviewed J.P after J.P.’s hospitalization.3 Ware testified on his own
behalf. The jury found Ware guilty of first- and second-degree CSC. The district court
sentenced Ware to 360 months in prison for first-degree CSC.
Ware appeals.
DECISION
I. The district court did not plainly erro r by admitting the text messages into
evidence because they are not Spreigl evidence.

Ware argues the text messages constituted ev idence of prior bad acts, the state did
not follow the procedural requirements to admit prior-bad-acts ev idence, and that the
district court committed plain error by admitting the text messages into evidence. The state
contends that the text messages are not prior-bad-acts evidence and, even if they are, any
error in admission was not plain. The dist rict court overruled Ware’s objections on
foundation, hearsay, and relevance grounds but did not rule on whether the evidence was
admissible under Minn. R. Evid. 404(b), evidence of prior bad acts, because Ware did not
object on those grounds.
“Evidentiary rulings rest w ithin the sound discretion of the district court, and we
will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali, 855

3 The forensic interview was recorded and the video was admitted into evidence.

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N.W.2d 235, 249 (Minn. 2014). 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. See Spreigl, 139 N.W.2d at 167; State v. Kennedy, 585 N.W.2d 385, 389 (Minn.
1998).
Appellate review of an evidentiary issue is forfeited when a defendant fails to object
to the admission of the evidence. State v. Vasquez, 912 N.W.2d 642, 649 (Minn. 2018). “A
defendant’s objection to the admission of evid ence preserves review only for the stated
basis for the objection or a basis apparent from the context of the objection.” Id. This court
has also concluded that “evidentiary objections should be renewed at trial when an in
limine or other evidentiary ruling is not definitive but rather provisional or unclear, or when
the context at trial differs materially from that at the time of the former ruling.” State v.
Word, 755 N.W.2d 776, 783 (Minn. App. 2008).
Here, Ware objected to the admission of the text message evidence at trial on
different grounds than those he raises in this appeal. At trial, Ware objected to the text
messages on relevance, foundation, and hearsay grounds. On appeal, Ware argues that the
evidence should not have been admitted based on Minn. R. Evid. 404(b) and Spreigl
violations. Ware concedes in his brief that his trial attorney “did not object to the State’s
non‐compliance with the Rule of Criminal [Procedure] 7.02 Spreigl notice and Evidence
Rule 404(b) admissibility require ments for such evidence.” Because Ware’s objection to
the admission of evidence preserves review only for the stated basis for the objection, Ware
forfeited this issue. See Vasquez, 912 N.W.2d at 649-50.
“We review forfeited issues for plain error.” Id. at 650. Under the plain-error

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doctrine, the appellant must show that there was (1) an error; (2) that is plain; and (3) that
the error affected his substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
If these three prongs are met, the appellate court then assesses whether it should “address
the error to ensure fairness and the in tegrity of the judicial proceedings.” Id. “An error is
plain if it is clear or obvious, which is typica lly established if the error contravenes case
law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017)
(quotation omitted). “With respect to the substantial-rights requirement, [the appellant]
bears the burden of establishing that there is a reasonable likelihood that the absence of the
error would have had a significant effect on the jury’s verdict.” State v. Horst, 880 N.W.2d
24, 38 (Minn. 2016) (quotation omitted).
Ware argues that the text messages are Spreigl evidence and that the state did not
provide notice to offer the texts as evidence in violation of Minn. R. Crim. P. 7.02, subds.
1 and 2, which amounted to plain error. Eviden ce of other crimes, wrongs, or acts, also
known as Spreigl evidence, is inadmissible to prove th e character of a person or to show
that the person acted in conformity with that character. Minn. R. Evid. 404(b)(1). Spreigl
evidence is, however, admissible “for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. When
determining whether to admit Spreigl evidence, courts consider a five-step process:
(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.

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State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006); see Minn. R. Evid. 404(b)(2).
For rule 404(b) to apply, the prior act must have been a “bad” act. State v. McLeod,
705 N.W.2d 776, 787-88 (Minn. 2005). “But the prior bad act need not constitute a crime.”
Id. at 788. The Minnesota Supreme Court has de termined that for evidence to be deemed
Spreigl evidence, there must be something “per se wrong” with the act. Ture v. State ,
681 N.W.2d 9, 17 (Minn. 2004).
In Ture, the supreme court considered whether notebooks and address books seized
from the defendant constituted Spreigl evidence. Id. at 16. These items contained women’s
names, license plate numbers, addresses, and phone numbers, including a reference to the
place of employment where one of the victim’s worked. Id. The defendant argued that
notice was required before admitting the ev idence because his behavior could be
“characterized as stalking.” Id. at 17. The supreme court de termined however, that “the
evidence was not evidence of bad acts because there is nothing per se wrong with collecting
information on women.” Id. (emphasis added).
Similar to Ture, while the text messages here appear inappropriate, there was
nothing expressly or per se wrong about the text messages. Ware argues in his reply brief
that “the [s]tate cannot plausibly argue that inappropriate conduct between an adult and a
child, and which involves sexual references, and where, as here, the adult has a parenting
or care-giver role, is not per se wrong.” But Ware himself te stified that these messages
were appropriate in context.
Ware testified that he called all of his children “honey,” “baby,” and “sweet cheeks.”

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Ware testified that J.P. used his phone to practice singing and dancing to make TikTok
videos because “kids are becoming huge stars” through apps like TikTok. Ware explained
he sent the links to TikTok videos because Ware and J.P. were trying to get J.P. “a contract”
with “YouTube or whatever,” and that “[J.P. ] and the other kids, the neighbors, and my
nieces and nephews, they were all trying to become stars.” Ware further explained that he
sent the messages about J.P.’s girlfriend to compensate for his initial reaction and to try to
show J.P. that he “still had [J.P’s] back.”
Ware now argues that the texts constitute a bad act under Minn. R. Evid. 404(b), but
does not cite any legal authority to support his argument. We are not persuaded. While the
text messages demonstrated unusual behavior, similar to Ture, there was nothing “per se
wrong” with the conduct to rise to the level of a crime, wrong, or act to qualify as Spreigl
evidence under Minn. R. Evid. 404(b).
Therefore, under Ture, the text messages did not constitute Spreigl evidence so the
district court did not err by admitting them.4
II. Ware’s warrant of commitment incor rectly lists two convictions and the
conviction for second-degree CSC must be vacated to reflect only one
adjudication.

Ware argues that his convictions for firs t- and second-degree CSC “represent one
behavioral incident and therefore the convi ction entered on the unadjudicated Count 1
second-degree guilty verdict must be vacated.” The state concedes that Ware’s “conviction

4 We note that even if the text messages were considered Spreigl evidence and the district
court did err by admitting them, the error was not “clear or obvious” so it did not amount
to plain error. See Webster, 894 N.W.2d at 787.

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on count one [second-degree CSC] should be vacated.” Under Minn. Stat. § 609.04, subd. 1
(2020), the judgment of conv iction entered for Ware’s second-degree CSC should be
vacated as a lesser-included offense. The distri ct court recognized this at the sentencing
hearing, explaining that “[a]s to Count Two [s ic], that is officially dismissed, as it is
consumed by Count One [sic].” 5
The warrant of commitment indicates un der “Case Charges” that Ware was
“convicted” for both first- and second-degree CSC. The warrant of commitment, however,
also indicates under “terms of disposition or sentence” that Ware was convicted and
sentenced for just first-degree CSC.
We assume that the double conviction lis ted in the warrant of commitment was a
clerical error, and while it does not affect the actual disposition or sentence in this case, we
reverse and remand to correct the warrant of commitment to reflect one adjudication. The
district court should record the guilty verdicts but only record convictions for first-degree
CSC. We reverse and remand to vacate th e conviction for second-degree CSC in the
warrant of commitment.
Affirmed in part, reversed in part, and remanded.

5 To contextualize Ware’s argument, the jury found Ware guilty of count one, second-
degree CSC, but the district court did not co nvict Ware for count one because it was part
of the same behavioral incident as count th ree, first-degree CSC. Yet, the warrant of
commitment incorrectly reflects that the court convicted Ware of count one under “Case
Charges.” We conclude that the warrant of commitment uses the misnomer “convicted”
under “Case Charges” on page 1 of the document to reflect (i ncorrectly) a jury verdict of
guilt.