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This opinion is nonprecedential except as provided by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
A20-1455

State of Minnesota,
Respondent,

vs.

Jason William Olson,
Appellant.

Filed March 28, 2022
Reversed and remanded
Jesson, Judge

Steele County District Court
File No. 74-CR-19-588

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

Daniel McIntosh, Steele County Attorney, Scott A. Hersey , Special Assi stant County
Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Bryan, Judge; and Smith,
John, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Jason William Olson challenges his conviction of first-degree possession
of methamphetamine. Respondent State of Minnesota charged Olson after police
discovered a large green bag of methamphetami ne concealed in a car occupied by Olson
and two others. All three people denied ownership of the green bag. At Olson’s trial, the
state introduced evidence of eight former convictions for controlled-substance offenses and
four photographs depicting Olson using methamphetamine. Olson argues that he is entitled
to a new trial because the admi ssion of these 12 prior bad acts was unfairly prejudicial.
Because we agree that the introduction of th e bad-acts evidence affected the fairness of
Olson’s trial, we reverse and remand for a new trial.
FACTS
The events underlying the charge against Olson occu rred on April 15, 2019.
Testimony at trial established th at, on that day, Olson pulled into a Target parking lot in
Owatonna. Olson, his then-girlfriend, and another friend were on the way to Colorado
where Olson had a court date. But after they stopped at a Target store to take a break, the
girlfriend’s car would not start. While Olson and the friend tried to get the car’s hood open,
the girlfriend went back into Ta rget to look for someone to assist with jump-starting the
car. This alerted the suspicions of a shopper, who called the police.
When the police arrived, they spoke with Olson and discovered that he had a felony
warrant. The officers arrested Olson. When officers searched the car with the assistance
of a drug-detecting dog, they discovered controlled substances in three places. The friend
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later admitted to possessing a bag of methamphetamine found underneath the passenger’s
seat, and the girlfriend admitted to possessing ecstasy pills found in her purse. But police
also found a green bag containing a large am ount of methamphetami ne that had been
concealed in the engine compartment. No one admitted to possessing the contents of the
green bag.
In the course of searching Olson and the car, police found several items linking
Olson to the green bag and the methamphetamine inside. He had about $10,000 cash in
his pocket. A backpack in the backseat of th e car contained several items of interest to
police: a $1,000 receipt for a wire transfer bearing Olson’s name, a butane torch of a kind
commonly used to smoke methamphetamine, vinyl tubing with methamphetamine residue,
and two digital scales. Inside the green ba g, officers also fou nd a 50-gram calibration
weight. The two scales in the backpack required a calibration weight.
The state charged Olson with first-degr ee possession of a controlled substance,
alleging that he owned the green bag. Th e central issue at trial was whether Olson
constructively possessed the contents of that bag. Before trial, the st ate noticed its intent
to admit evidence of 12 prior bad acts by Olson: eight prior controlled-substance
convictions and four photographs of Olson and the girlfriend smoking what appeared to be
methamphetamine using a butane torch like the one in Olson’s backpack. Over Olson’s
objection, the district court admitted all 12 prior bad acts into evidence.
At trial, the state argued that Olson constructively possessed the methamphetamine
on the basis of his direct possession of $10, 000 cash and the items in the backpack. The
state introduced the four p hotographs and the eight prior convictions: (1) fifth-degree
4
possession1 in 1994, (2) fifth-degree possession in 2004, (3) third-de gree possession in
2004, (4) first-degree attempt to manufacture in 2007, (5) fifth-degree possession in 2012,
(6) fifth-degree possession in 2013, (7) fifth-degree possession in 2017, and (8) possession
with intent to distribute in 2019, in Colorado.
Olson called his girlfriend to testify. Olson’s girlfriend testified that she bought the
car in which the green bag was discovered the day before Olson’s arrest. She claimed that
the large sum of cash was hers and that Olson carried it for her. She also testified that
Olson was not involved in concealing the methamphetamine in the engine compartment of
the car. The jury found Olson guilty of first-degree controlled-substance possession.
Olson appeals.
DECISION
The central question before us is whether the district court abused its discretion by
allowing the state to introduce 12 pieces of other-acts evidence including Olson’s prior
controlled-substance convictions and photographs of Olson and his girlfriend apparently
smoking methamphetamine. Evidence of past crimes or prior uncharged conduct (that is,
prior bad acts) is not admissible to show the defendant’s bad character or suggest that the
defendant’s conduct conformed to that charac ter in a given situation. Minn. R. Evid.
404(b). However, such evidence may be admissible for another purpose, such as to show
motive, opportunity, intent, plan, knowle dge, identity, or absence of mistake. 2 Id. The

1 The 1994 conviction was for possessing marijuana. All the other convictions involved
methamphetamine, and all, save the last, occurred in Minnesota.
2 This kind of evidence is commonly referred to as Spreigl evidence. State v. Kennedy ,
585 N.W.2d 385, 389 (Minn. 1998).
5
danger of admitting this evidence is that the jury may convict the defendant on the basis of
the past crimes or other bad acts or a per ceived propensity to comm it the crime, and not
because the state proved the defendant’s gu ilt of the charged crime beyond a reasonable
doubt. State v. Ness , 707 N.W.2d 676, 685 (Minn. 2006); State v. Spreigl , 139 N.W.2d
167, 172 (Minn. 1965).
Here, Olson contends that the state used the evidence of his prior convictions and
the photographs for an improper purpose: to s how that he had the pr opensity to possess
controlled substances. The state counters th at the convictions and photographs both
established that Olson knew what methamphetamine was and that it was illegal to possess
and rebutted his alternative-perpetrator defense.3
To receive a new trial, Olson must show both that the district court abused its
discretion by admitting the evidence and that he was thereby prejudiced. State v. Campbell,
861 N.W.2d 95, 102 (Minn. 2015). We begi n our analysis by cons idering whether the
district court abused its discretion by admitting the 12 pieces of bad-acts evidence and then
turn to whether the admission of these prior bad acts prejudiced Olson.
Admission of bad-acts evidence
Before evidence of a prior cr ime or other bad ac t may be admitted at trial, five
requirements must be satisfied:
1. the state must notice its intent to admit the evidence,
2. the state must specify what the evidence is offered to prove,
3. there must be clear and conv incing eviden ce that the
defendant committed the prior act,
4. the evidence must be relevant and material, and

3 At trial, Olson argued that his friend and girlfriend were alternative perpetrators.
6
5. the probative value of the evidence must not be outweighed
by the potential for prejudice.

Ness, 707 N.W.2d at 685-86. In determining whether to admit the evidence, the district
court must conduct a thorough examination of the purpose for which the evidence is
offered. Id. at 686. After the district court is satisfied that the purpose for which the
evidence is being offered is one of the excep tions to rule 404(b)’s general prohibition of
prior bad-acts evidence, then the court must determine whether the probative value of the
evidence is outweighed by its potential to be unfairly prejudicial. Id.
At trial, Olson challenged the admission of the prior bad-acts evidence under only
the fourth and fifth prongs of the Ness test: the relevance prong and the balancing prong.
Likewise, on appeal Olson argues that the di strict court abused its discretion in its
application of these two prongs.
In concluding that the prior bad-acts evid ence was admissible, the district court
reasoned:
Inasmuch as [Olson] has expr essed an intention to cross
examine State’s witn esses for the purpose of mounting an
alternative perpetrator defe nse, evidence possessed by the
State tending to show that [Olson] had knowledge of, and was
not by accident or mistake in constructive possession of
controlled substances, is evidence that is relevant and
potentially helpful to the jury. . . . The photographs submitted
by the State ostensibly establis h that [Olson] is familiar with
implements of illegal drug use (a torch is not required to ignite
an e-cigarette), and knows that [t he girlfriend] also had that
familiarity with the same. Th erefore this evidence may be
helpful to the jury in determining whether [Olson] knowingly
possessed methamphetamine individually or in concert with
[the girlfriend] on the date of this offense.
4

4 (Emphasis added.)
7

In reviewing the district court’s decision, we turn first to the fourth prong: whether
the evidence is relevant and ma terial to the state’s case. To convict Olson of first-degree
possession of a controlled substance, 5 the state had to prove that he (1) knowingly
possessed the methamphetamine, (2) knew the substance was a controlled substance, and
(3) possessed the substance w ithout lawful authority. Look ing at each prior bad act in
isolation, we conclude that all but one of the prior bad acts were relevant to the issue of
knowledge.6 While Olson did not directly contest whether he knew that methamphetamine
was illegal to possess, he also di d not stipulate to that fact. Cf. Coleman, 944 N.W.2d at
481 (noting defendant’s admission that he knew danger of driving while intoxicated did
not undermine relevance of prior alcohol-relate d hit-and-run incident). As a result, the
burden of proving Olson’s know ledge that methamphetamine was a controlled substance
remained with the state.
Here, the prior convictions prove that Olson was aware that methamphetamine was
illegal to possess. See id. (allowing evidence of prior convictions to prove knowledge).
Likewise, the photographs are relevant to show Olson’s knowledge of methamphetamine.

5 Minn. Stat. § 152.021, subd. 2(a)(1) (2018).
6 The 1994 possession-of-marijuan a conviction does not meet the relevancy test. When
considering whether to admit prior bad-act ev idence, the district c ourt must identify the
“precise disputed fact” to which th at evidence would be relevant. State v. Rossberg ,
851 N.W.2d 609, 615 (Minn. 2014) (quotation omitted). To determine whether the prior
bad act is relevant to the disputed fact, the court should consider whether there is a
sufficient nexus of time, place, or modus operandi between the charged offense and the
prior bad act. State v. Coleman, 944 N.W.2d 469, 481 (Minn. 2020). The district court
here did not explicitly address the nexus of time, place, or method between the instant
offense and the convictions. And the first convi ction, which was 25 years old at the time
of the offense and did not involve methamphetamine, clearly does not meet this test.
8
Accordingly, most of the prior bad-acts evidence admitted by th e district court was
relevant.7
Having determined that the district court’s relevancy determination regarding 11 of
the 12 prior bad acts was not an abuse of disc retion, we turn to the district court’s
assessment of the fifth Ness prong: whether the probative value of the evidence is
outweighed by its potential for unfair prejudice. 707 N.W.2d at 686. Specifically, the
district court must balance the relevance of the prior bad acts and the state’s need to
strengthen weak or inadequate proof agains t the risk of the ev idence being used for
propensity purposes. State v. Fardan, 773 N.W.2d 303, 319 (Minn. 2009). If the admission
of bad-acts evidence under this test is a close call, the evidence should be excluded. Ness,
707 N.W.2d at 685. Similarl y, prior bad-acts evidence s hould be excluded if it is
cumulative. State v. Ture, 681 N.W.2d 9, 16 (Minn. 2004).
Here, the district court did not explicitly conduct the balancing test required by Ness.
Olson argues that this failure alone constitutes an abuse of discretion. See Ness ,
707 N.W.2d at 690 (requiring district court to “weigh the probative value of the evidence
on disputed issues in the case against its potential for unfair prejudice”). The state argues
that we can infer that the district court cond ucted this balancing test because the parties’

7 But the prior bad-acts evidence was not releva nt to rebut Olson’s alternative-perpetrator
defense. Such evidence may be admissible if relevant to exculpate the alleged alternative
perpetrators. State v. Jones , 753 N.W.2d 677, 687 (Minn. 2008) (noting that
alternative-perpetrator defens e opens the door to state pr esenting evidence tending to
exculpate alleged alternate perpetrators). But Olson’s prior convictions and the
photographs do not exculpate th e other occupants of the car except through the kind of
propensity reasoning prohibited by rule 404(b).
9
briefs before the district court extensively discussed the Ness factors. See
State v. McDonnell, 686 N.W.2d 841, 845 n.1 (Minn. App. 2004) (inferring findings from
district court’s conclusions), rev. denied (Minn. Nov. 16, 2004). Additionally, the state
relies on the district court’s decision to give a limiting instruction as evidence that it
considered the risk of unfair prejudice. While our review woul d have benefited from
explicit balancing by the district court on the record, we can infer that the court implicitly
determined that the probative value of the prior bad acts was not outweighed by the danger
of prejudice.
We disagree with that determination. The probative value of the prior bad acts was
limited. The central issue at trial was whether Olson constructively possessed the
methamphetamine—not whether he knew th at methamphetamine was illegal. More
fundamentally, the volume of the prior bad-ac ts evidence was disproportionate to its
limited materiality. One prior conviction would have established Olson’s knowledge that
methamphetamine was illegal. One photograph woul d have shown Olson to be familiar
with the consumption of methamphetamine.8 Further, the state’s need for the evidence was

8 While the state’s primary relevancy argum ent regarding the photographs focused on
evidence of Olson’s knowledge, the state alternatively argues that the photographs linked
Olson to the backpack, which contained meth amphetamine paraphernalia, which in turn
linked Olson to the green bag containing methamphetamine. The district court did not rely
on this argument when assessing the releva ncy of the photograph s under the fourth Ness
prong. But even if we consider the photogra phs relevant to link Ol son to the green bag,
when the balancing test is considered under the fifth Ness prong, the same result is reached.
A single photograph would have served this purpose. See Ture , 681 N.W.2d at 16
(cautioning district courts against admitting cumulative prior bad-acts evidence). Further,
the state’s need for the photographs was low because documents in the backpack bearing
Olson’s name connected him to the backpack, and the torch, tubing, and scales in the
backpack linked it—and therefore Ols on—to the green bag containing the
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slight. Fardan, 773 N.W.2d at 319; Ness, 707 N.W.2d at 690 (stating state’s need for the
evidence is major factor in balancing probative value and prejudice under this prong). In
sum, the collective probative value of this evidence was low.
Conversely, the potential for unfair prejudice posed by the prior bad-acts evidence
was high. In total, the prior convictions a nd photographs painted a picture of Olson as a
person with a long history of involvement with the criminal-justice system for drug-related
offenses. Given that history, it would be all too easy for the jury to infer that because Olson
had committed drug offenses before, he must have been the one out of the three occupants
of the car who possessed the green ba g of methamphetami ne this time. See Ness ,
707 N.W.2d at 685 (stating evidence of defe ndant’s bad acts is not admissible to show
defendant had propensity to act similarly). Or the jury coul d have concluded that Olson
was a proper candidate for punishment based on his prior convictions alone. See id. And
the prejudicial potential of the bad-acts evid ence increased with each piece admitted.
Given the high risk of unfair prejudice, the district court abused its discretion by admitting
12 pieces of prior bad-acts evidence.
Still the state argues that the district c ourt’s admittance of the prior bad-acts
evidence was justified under the supreme court’s decisions in State v. Rainer ,
411 N.W.2d 490 (Minn. 1987), and Ture, 681 N.W.2d at 15-16. We are not persuaded. In
Rainer, when the defendant claimed that he accide ntally shot his girlfriend, the district

methamphetamine. The state’s evidence connecting Olson to the backpack was not weak.
See Fardan, 773 N.W.2d at 319 (noting district courts must balance state’s need to bolster
weak evidence against potential prejudice).
11
court allowed the state to present evidence of five prior assaults against the defendant’s
former wives. 411 N.W.2d at 493, 496. Th e supreme court affirmed Rainer’s conviction
because the incidents showed a “repeating pattern of very similar conduct.” Id. at 497.
Here, the prior bad acts do not show a repeating pattern of similar conduct because
they vary substantially in tim e, place, and modus operandi. The convictions span from
2004 to 2019, none of them occurred in Steele County (the location of the present offense),
and none involved Olson concealing controlled substances within the engine compartment
of a car. Further, none of the prior convict ions involve Olson posse ssing an amount of
methamphetamine similar to the amount he was convicted of possessing here.
And in Ture, the state presented copious eviden ce in a murder trial concerning a
prior murder of a similar victim. 691 N.W.2d at 12-14. The supreme court agreed with
Ture that the evidence of the prior murder was “highly prejudicial” and cautioned district
courts to not allow the state, when presenting prior bad-acts evidence, “to present evidence
that is unduly cumulative with the potential to fixate the jury on the defendant’s guilt of
the other crime.” Id. at 16. But because the defendant failed to object at trial, the supreme
court declined to second gu ess the district court’s deci sion to admit the evidence. Id.
Because Ture strongly acknowledges the danger of presenting cumulative prior bad-acts
evidence, and, unlike the defendant in Ture, Olson objected here, Ture does not persuade
us that the district court was within its discretion to admit the evidence.
Finally, the state contends that Olson fo rfeited his argument that the cumulative
effect of the prior bad-act s evidence outweighed its proba tive value. Because Olson
objected to the introduction of each and ever y one of the 12 pieces of prior bad-acts
12
evidence, we disagree. That Olson did not use the word “cumulative” in objecting does
not amount to forfeiture.
In sum, the district court abused its discretion by admitting evidence of all 12 prior
bad acts. While most of the bad acts, considered individually, were relevant, the probative
value of those bad acts was low both because whether Olson knew methamphetamine was
illegal was not directly contested at trial and because the state’s case concerning knowledge
was not weak. The potential for unfair prejudice was high because the numerous
convictions painted Olson as a repeat contro lled-substance offender. And the amount of
the prior bad-acts evidence admitted was disproportionate to its low probative value.
Prejudice
Having determined that the district c ourt erred by admitting the prior bad-acts
evidence, we consider whethe r Olson demonstrated prejudice . To determine this, we
consider “whether there is a reasonable possi bility that the wrongfully admitted evidence
significantly affected the verdict.” State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016). In
making this determination, “we consider whet her the district court provided a cautionary
instruction, whether the State dwelled on the evidence in closing argument, and whether
the evidence of guilt was strong.” State v. Fraga, 898 N.W.2d 263, 274 (Minn. 2017).
Here, it is reasonably possible that the prior bad-acts evidence significantly affected
the jury’s verdict. We acknowledge that the district court provided cautionary instructions
before the evidence was received and again befo re closing arguments. Though the court
cautioned the jury that it could not convict Olson on the basis of the prior convictions, the
court did not explain that the jury could us e those prior convictions only to determine
13
whether Olson knew that the substance in the green bag wa s methamphetamine or knew
methamphetamine was illegal. Accordingly, the court’s inst ruction did not fully address
the risk of the jury using the prior bad-acts evidence as propensity evidence.
Next we consider how central the prior bad- acts evidence was to the state’s case.
The risk of prejudice is lesse ned if the state does not rely heavily on the evidence.
Rossberg, 851 N.W.2d at 616. Here, while the bad-acts evidence did not take central stage,
neither was it in the wings. The prosecutor used the prior convictions as a theme to tie his
opening and closing arguments together. He argued that the convictions would show that
Olson understood the “significance and presence” of the methamphetamine in his opening
argument. And in his closing argument, the prosecutor argued that the methamphetamine
was concealed by someone with “savvy” or “skill.” While he did not argue that Olson’s
prior convictions evinced just that sort of savvy or skill, the inference was there. Further,
in his closing remarks the prosecutor argued:
And [Olson has] also attempted to manufacture
methamphetamine. He is very familiar, and I think that’s
probably an understatement. He is knowledgeable about
methamphetamine. And it tells you that he would have a
reason to know and to appreciate and to value a large bag of
methamphetamine that’s in the car that he was driving.

And those prior cases also tell you he clearly knew that
possession of methamphetamine was illegal.

Those other cases can also be helpful in the idea of
whether someone else did it, and they can show you that
Mr. Olson’s presence here wi th this large quantity of
methamphetamine, large quantit y of cash, was not just by
mistake or accident.
14
In sum, the state’s reliance on the bad-ac ts evidence in its opening and closing
arguments contributed to the risk of unfair prejudice.
Finally, we evaluate whether there wa s overwhelming evid ence of guilt. Griffin,
887 N.W.2d at 262. In Griffin, the evidence was overwhelming because the victim’s blood
and DNA were found on Gri ffin’s shoes and shorts. Id. In Campbell, the evidence was
overwhelming because one eyewitness connect ed Campbell to the outfit worn by the
shooter, and another testified to picking up Campbell fifteen minutes after the shooting
without the distinctive jacket that he was wearing upon being dropped off. 861 N.W.2d at
103.
By contrast, here the state’s circ umstantial evidence was strong but not
overwhelming. Of the three occupants of the car, only Olson had a significant amount of
cash in his possession, methamphetamine para phernalia, and the scales to which the
calibration weight corresponded. But both of the other occu pants of the car admitted to
possessing controlled substances , and the girlfriend—and to a lesser extent the friend—
had as much access to the engine compartment of the car as did Olson. The state’s evidence
was not so strong as to preclude the reasonable possibility that the prior bad-acts evidence
significantly affected the jury’s verdict.
In sum, admitting eight prior convictions and four photographs to prove a point that
was not directly disputed created an unjustifiable risk that the jury would use the evidence
as propensity evidence. Because he has shown that the district court abused its discretion
15
by admitting the eviden ce and that there is a reasonable possibility that the evidence
significantly affected the jury’s verdict, Olson is entitled to a new trial.9
Reversed and remanded.

9 Because we conclude that Olson is entitled to a new trial because of the introduction of
the prior bad-acts evidence, we do not reach the other issues that he raised concerning the
district court’s polling of the jury, or his pr o se arguments that we re not supported by
citations to legal authority. See State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008) (rejecting
unsupported claims).