Bradley D. Fordyce, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A21-1619

Bradley D. Fordyce, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 29, 2022
Affirmed
Cochran, Judge

Crow Wing County District Court
File No. 18-CR-19-2588

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Donald F. Ryan, Crow Wing County Attorney, Janine L. LePage, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Considered and decided by Gaïtas, Presiding Judge; Cochran, Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this appeal from the district court’s denial of his petition for postconviction relief,
appellant challenges his conviction of indecent exposure. Appellant argues that (1) his
conviction must be reversed because the evidence presented at trial was insufficient to
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prove the “place” element of the indecent-exposure offense, and (2) alternatively, he is
entitled to a new trial because the district court erroneously denied his motion for a mistrial
after a state witness offered improper testimony.
First, we conclude that the state presented sufficient evidence to allow the jury to
conclude that the “place” element of the offense was satisfied. Second, we conclude that
the district court did not abuse its discretion by denying appellant’s motion for a mistrial.
We therefore affirm the district court’s denial of appellant’s postconviction petition.
FACTS
Police cited appellant Bradley Fordyce for misdemeanor indecent exposure, in
violation of Minn. Stat. § 617.23, subd. 1(1) (2018), after a neighbor reported that she saw
Fordyce standing naked in his backyard. Because Fordyce had a prior conviction of
indecent exposure, respondent State of Minnesota subsequently charged Fordyce with
gross-misdemeanor indecent exposure, in violation of Minn. Stat. § 617.23, subd. 2(2)
(2018). The case proceeded to a jury trial.
Evidence Presented at Jury Trial
The jury heard testimony from two witnesses: Fordyce’s neighbor who reported
seeing Fordyce naked, and the investigating officer. At the time of the incident, the
neighbor lived in a house on the other side of an alley from Fordyce’s house. The two
houses were both located near a main road from which the alley was accessed. Fordyce’s
backyard had a fence along the sides, but there was no fence along the part facing the alley.
Because there was no privacy fence along the back, Fordyce’s backyard was visible to his
neighbor from her property and to passersby along the alley.
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The neighbor testified that, around 9:00 on the morning of July 1, 2019, she was
going to her back porch to water her flowers when she saw Fordyce in his backyard not
wearing any clothes. The neighbor was standing just inside the back door of her enclosed
porch, and Fordyce was standing naked in his backyard near the back door of his house.
As the neighbor watched him, Fordyce turned to face her direction and then to face the wall
of his house. When Fordyce turned around, the neighbor could see his buttocks.
Disturbed by Fordyce’s behavior, the neighbor went outside onto her deck and used
her cell phone to take two pictures of Fordyce. The state introduced the two photographs
into evidence at trial. The photographs depict Fordyce from the front, standing just outside
his back door. He appears to be smoking a cigarette. His genitals are not visible in the
photographs; a black area appears where his genitals are. The parties disputed at trial
whether the black area was a shadow or a piece of fabric. The neighbor testified that, based
on her view of Fordyce when she took the picture, she did not believe the photo depicted a
piece of fabric. She further testified that, when she viewed Fordyce from behind, she only
saw his buttocks and did not see any lines of fabric across his back. She also had no doubt
that Fordyce was naked in his backyard on the date in question. After taking the
photographs, the neighbor drove to the police station and reported the incident.
The investigating officer testified that the neighbor told him that she had seen
Fordyce standing outside naked and showed the officer the pictures she had taken. The
officer then went to Fordyce’s house. When the officer arrived, Fordyce was standing by
his back door and was wearing shorts and a shirt with cutoff sleeves. The officer explained
to Fordyce that the police had received a complaint that he was standing naked outside his
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back door. Fordyce responded that he had been wearing clothes at the time. The officer
advised Fordyce that he had a picture showing Fordyce naked. The officer then arrested
Fordyce.
The officer returned to Fordyce’s property several days later and took approximate
measurements of distances. The officer estimated that Fordyce’s back door, near where he
had been standing naked, was 40 to 50 feet from the alley. Relying on the neighbor’s
photographs, the officer measured that the neighbor and Fordyce must have been standing
approximately 79 feet apart when the neighbor saw him naked.
Redirect Testimony and Motion for Mistrial
During redirect examination of the officer, the prosecutor asked the officer about
the circumstances surrounding Fordyce’s arrest. The defense attorney objected, and the
district court overruled the objection. The following exchange then took place between the
prosecutor and the officer:
Q: What were the circumstances surrounding his arrest?
A: We had an apprehension and detention order for a violation
of conditions of release [by Fordyce].

Q: What was that regarding?
A: Regarding past convictions for similar—

DEFENSE: Objection, Your Honor.
THE COURT: Sustained.

Q: Was he on probation?
A: Yes.

Q: What was he on probation for?
A: For incidents similar to—

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DEFENSE: Objection, Your Honor.
THE COURT: Sustained.

Q: Do you know what—
A: I do not know specifically what he was on probation for.
We were in contact with his probation officer.

Q: And his probation officer directed you to take him into
custody; is that right?
A: That is correct.

After this exchange, the defense attorney asked the district court to give a curative
instruction to the jury to address the testimony for which the district court had sustained
the objections. The district court told the jury: “[T]here are times when there is an objection
and I make a ruling. You are not to speculate about the nature of my ruling, why the ruling
is the way it is, or what would have happened if I had ruled differently.”
The state then rested its case in chief, the jury was excused, and the court went into
recess to hold a bench conference. At that time, the defense attorney moved for a mistrial.
The defense attorney argued that the officer’s testimony that Fordyce was on probation for
“similar” offenses was improper because the district court issued a ruling before trial that
precluded the parties from referencing Fordyce’s prior incidents of indecent exposure, the
officer’s testimony was inaccurate because Fordyce was actually on probation for a
burglary offense which is not a “similar” offense, and the officer’s testimony would cause
the jury to infer that Fordyce was on probation for an indecent -exposure offense. The
district court denied the motion for a mistrial, reasoning that the officer’s testimony likely
would not impact the jury’s decision and noting that the district court had given a curative
instruction.
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Jury Verdict and Sentence
Fordyce waived his right to testify, and the defense did not call any witnesses. The
jury found Fordyce guilty of indecent exposure. The district court later sentenced Fordyce
to one year in the county jail but stayed execution of the sentence for two years on
probationary conditions.
Postconviction Petition
In June 2021, Fordyce filed a petition for postconviction relief challenging his
conviction of indecent exposure.1 Fordyce’s postconviction petition sought reversal of his
conviction or, alternatively, a new trial. The petition raised two grounds for relief. First,
Fordyce argued that the state failed to prove a necessary element of the offense because
Fordyce was not in a “public place” when he exposed himself. Second, Fordyce argued
that the district court erred by denying his motion for a mistrial because the officer
improperly testified that Fordyce was on probation for “similar” crimes.
After a hearing on the petition, the district court denied Fordyce’s postconviction
petition in an October 2021 order. The district court determined that the state had presented
sufficient evidence to prove the “place” element of the offense because the evidence
showed that Fordyce’s conduct was “likely to be observed” by a neighbor or passerby. The
district court also determined that it did not err when it denied Fordyce’s motion for a
mistrial because there was no reasonable probability that the officer’s improper statements
affected the outcome of the trial . In reaching this determination, the district court

1 Fordyce did not file a direct appeal.
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emphasized that the state offered no additional evidence about Fordyce’s prior offenses,
the state made little reference to the testimony and in closing arguments focused on the
neighbor’s testimony, and the district court gave the jury a cautionary instruction. Thus,
the district court denied Fordyce’s postconviction petition in its entirety.
Fordyce appeals.2
DECISION
Fordyce challenges the district court’s decision denying his petition for
postconviction relief. We review the district court’s denial of a postconviction petition for
an abuse of discretion. Dolo v. State, 942 N.W.2d 357, 362 (Minn. 2020). A district court
abuses its discretion if its decision misapplies the law or is contrary to logic and the facts
in the record. Id.
Fordyce argues that the district court’s postconviction decision was erroneous for
two reasons: (1) the evidence was insufficient to support his conviction of i ndecent
exposure because the state failed to prove the “place” element of the offense; and (2) the
district court erred by denying his motion for a mistrial after the officer offered
inadmissible testimony that Fordyce was on probation for “similar” offenses. We address
each argument in turn.

2 In lieu of filing a respondent’s brief, the county attorney’s office submitted a letter to this
court stating that it supported the district court’s postconviction decision and asking this
court to decide this matter on the record.
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I. The state presented sufficient evidence to prove the “place” element of the
indecent-exposure offense.

Fordyce first challenges the sufficiency of the evidence to support his conviction of
indecent exposure. To evaluate the sufficiency of the evidence, we “carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them would
permit the [jury] to reasonably conclude that the defendant was guilty beyond a reasonable
doubt.” State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted). In doing
so, we view the evidence in the light most favorable to the jury’s verdict, and we assume
that the jury disbelieved any evidence conflicting with the verdict. State v. Griffin,
887 N.W.2d 257, 263 (Minn. 2016). We will not overturn the verdict if the jury, “upon
application of the presumption of innocence and the [s]tate’s burden of proving an offense
beyond a reasonable doubt, could reasonably have found the defendant guilty of the
charged offense.” Id.
We begin our analysis by considering the nature of the charged offense. The
indecent-exposure statute provides:
A person who commits any of the following acts in any
public place, or in any place where others are present, is guilty
of a misdemeanor:
(1) willfully and lewdly exposes the person’s body, or
the private parts thereof;
(2) procures another to expose private parts; or
(3) engages in any open or gross lewdness or lascivious
behavior, or any public indecency other than
behavior specified in this subdivision.

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Minn. Stat. § 617.23, subd. 1 (emphasis added).3 In his primary brief, Fordyce challenges
the sufficiency of the evidence to prove the “place” element.4
The statute provides two ways to prove the “place” element: the defendant exposed
himself (1) in “any public place” or (2) “in any place where others are present.” Id. The
state therefore needed to present evidence sufficient to prove that either alternative was
satisfied. Fordyce’s brief addresses only the first alternative. Fordyce’s brief does not
address the second alternative.
Based on the evidence presented at trial, we conclude that there is sufficient
evidence from which the jury reasonably could have concluded that either alternative of
the “place” element was met. 5 The evidence presented at trial shows that Fordyce was

3 The state charged Fordyce under Minn. Stat. § 617.23, subd. 2(2), which enhances the
offense to a gross misdemeanor if a person violates subdivision 1 when he has previously
been convicted under the same section or a criminal-sexual-conduct offense.
4 In a pro se supplemental brief, Fordyce asserts that the two photographs introduced into
evidence at trial show that he was not naked. We construe Fordyce’s argument as a
challenge to the sufficiency of the evidence of the “act” element. We conclude that the
evidence presented is sufficient to prove that element of the offense. The photographs do
not show Fordyce’s genitals, as the area around his hips appears darkened. But the
neighbor testified that she saw Fordyce’s buttocks when he faced away from her and she
did not see any lines of fabric to suggest that he was wearing anything. She also testified
that she had no doubt that he was naked. Viewing the neighbor’s testimony in the light
most favorable to the verdict, we conclude that the evidence is sufficient to prove that
Fordyce lewdly exposed his body or private parts. In other words, the evidence is sufficient
to prove the “act” element of the offense.
Fordyce also asserts in his pro se supplemental brief that the second photograph was
never entered into evidence at trial and that his lawyer “hid[] the existence” of the photo
from him. The record contradicts Fordyce’s assertion, as the district court admitted both
photographs into evidence at trial.
5 In denying Fordyce’s postconviction petition, the district court concluded that the “place”
element was met because Fordyce “was so likely to be observed, either by a neighbor or a
passerby in the alley, that it must be reasonably presumed that [Fordyce’s] conduct was
intended to be witnessed.” We agree with Fordyce that the district court’s analysis focused
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standing naked in his backyard, just outside the back door of his house. An alley ran along
the back of his backyard and was located close to a main road. There was no privacy fence
separating the backyard and the alley. The neighbor saw Fordyce naked from across the
alley and had a clear line of sight from her back porch and deck to Fordyce’s back door.
Despite Fordyce being on his private property, the jury reasonably could have
concluded that he was either in a public place or in a place where others were present.
Fordyce was in a “public place” in the sense that he was in a place that was open to public
view. The supreme court has recognized that the phrase “public place” is ambiguous and
can have different meanings depending on context. See State v. Serbus, 957 N.W.2d 84,
88 (Minn. 2021) (interpreting the phrase “public place” for purposes of a statute prohibiting
a person who is under the influence of alcohol from carrying a pistol in a public place).
The supreme court in Serbus noted that one definition of “public” is “exposed to general
view: conspicuous, open,” and that a “public place” could mean a place that is “visible to[]
people as a whole.” Id. Here, Fordyce was in a place that was open to view from the alley
behind his home and where he was easily visible to anyone passing through the alley.
Similarly, Fordyce was in “a place where others are present” in the sense that he was within
view of the neighbor, despite her being on her own property. One definition of “present”

on the wrong issue. Whether Fordyce was likely to be observed is relevant to the intent
element of the offense rather than the “place” element. See State v. Stevenson,
656 N.W.2d 235, 241 (Minn. 2003) (explaining that the “relevant question” in determining
intent to be indecent is whether the defendant’s conduct “was so likely to be observed ‘that
it must be reasonably presumed that it was intended to be witnessed’” (quoting State v.
Peery, 28 N.W.2d 851, 854 (Minn. 1947))). Here, however, Fordyce does not challenge
the sufficiency of the evidence to prove the intent element. As such, the analysis in
Stevenson and Peery does not inform our decision.
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is “being in view or at hand.” Merriam-Webster’s Collegiate Dictionary 982 (11th ed.
2003). Because the neighbor was nearby and could easily view Fordyce in his backyard,
the neighbor was “present.”6 The evidence presented at trial therefore reasonably allowed
the jury to conclude that the “place” element was proven because Fordyce exposed himself
either in a public place or in a place where others were present.
Fordyce also points to the Fourth Amendment’s protections against unreasonable
searches and seizures to further support his position that the state did not prove the “place”
element of the indecent-exposure statute. See U.S. Const. amend. IV. Fordyce argues that
he had a reasonable expectation of privacy at the time of his offense because he was
standing on the curtilage of his home, which is a constitutionally protected area. Fordyce’s
reliance on Fourth Amendment jurisprudence is misplaced. The supreme court has
expressly rejected the application of Fourth Amendment principles to the
indecent-exposure statute. In Stevenson, this court affirmed the defendant’s conviction of
indecent exposure when he committed lewd conduct in his truck, and we reasoned that the
defendant was in a public place because he had a diminished expectation of privacy in his

6 We note that our interpretation of the term “present,” for purposes of Minnesota’s
indecent-exposure statute, tracks closely with other states’ interpretations of their own
indecent-exposure statutes. For example, an Oklahoma appellate court has interpreted
Oklahoma’s indecent-exposure statute, which prohibits indecent exposure “in any public
place, or in any place where there are present other persons to be offended or annoyed
thereby.” Davison v. State, 281 P.2d 196, 197 (Okla. Crim. App. 1955) (emphasis added).
Relying on dictionary definitions of “present,” the Oklahoma court determined that the
indecent-exposure statute encompasses situations in which a person exposes himself “in
any place where others are present, in view of, being before him, or in sight of him.” Id. at
198 (emphasis added); see also Martin v. State, 674 P.2d 37, 39 (Okla. Crim. App. 1983)
(applying Davison and noting that indecent exposure need not occur in a public place and
may include private property if others are present).
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truck. 656 N.W.2d at 240. But the supreme court held that our emphasis on the defendant’s
expectation of privacy misconstrued the focus of indecent-exposure caselaw. Id. The
supreme court explained: “Our concept of ‘public’ was not based on the privacy
expectations of the defendant but on the likelihood that the conduct would be witnessed by
others.” Id. at 240-41. Thus, Fourth Amendment principles do not guide our analysis.
For these reasons, we reject Fordyce’s challenge to the sufficiency of the evidence
supporting his indecent-exposure conviction.
II. The district court did not abuse its discretion by denying Fordyce’s motion for
a mistrial.

Fordyce next challenges the district court’s decision to deny his motion for a
mistrial. At trial, Fordyce moved for a mistrial after the officer, on redirect examination,
alluded to the fact that, at the time of his arrest, Fordyce was on probation for “similar”
offenses. Fordyce argues that the officer’s testimony on this point was inadmissible and
that there is a reasonable probability that the jury would not have found him guilty if it had
not heard the testimony.
We review the district court’s denial of a motion for a mistrial for an abuse of
discretion. State v. Bahtuoh, 840 N.W.2d 804, 819 (Minn. 2013). “A mistrial should not
be granted unless there is a reasonable probability that the outcome of the trial would be
different if the event that prompted the motion had not occurred.” State v. Manthey,
711 N.W.2d 498, 506 (Minn. 2006) (quotation omitted). “[T]he district court is in the best
position to evaluate the prejudicial impact, if any, of an event occurring during the trial.”
Bahtuoh, 840 N.W.2d at 819. In determining whether there is a reasonable probability that
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the outcome of the trial would have been different, courts consider various factors,
including the extent of the improper testimony and the strength of the state’s case. See id.
(concluding that the defendant was not prejudiced by an improper reference to the
defendant’s possible involvement in another shooting when the reference was “isolated and
brief” and the state’s case against the defendant was strong); State v. Farr,
357 N.W.2d 163, 166 (Minn. App. 1984) (determining that an investigator’s improper
testimony was unlikely to have played a significant role in the jury’s decision to convict
the defendant “because the remark was of a passing nature, the impact of which might have
been missed by the jury, and because the other evidence was overwhelming”).
Even accepting Fordyce’s argument that the officer’s testimony about Fordyce’s
probation status due to “similar” offenses was improper, we discern no abuse of discretion
by the district court in determining that this testimony did not significantly affect the
outcome of the trial. The district court properly reached this conclusion based on the
limited nature of the officer’s testimony.
At trial, the officer made a passing reference to Fordyce’s prior offenses, and he did
so in vague terms —saying only that Fordyce was on probation for “similar” incidents.
Importantly, the officer then acknowledged that he did not actually know “specifically
what” Fordyce was on probation for. Aside from this isolated, vague reference, the state
offered no evidence at trial that Fordyce was on probation or that he had been convicted of
indecent exposure in the past. Nor did the prosecutor mention the officer’s testimony on
that point during her closing argument. Instead, the prosecutor urged the jury to find
Fordyce guilty based on the neighbor’s testimony and the two photographs showing
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Fordyce naked. Because the evidence presented at trial and the prosecutor’s closing
argument appropriately focused on the neighbor’s testimony and the photographs, it is
highly unlikely that the officer’s vague, passing reference to Fordyce having committed
“similar” incidents influenced the jury’s decision to find him guilty.
We add that the district court judge who decided Fordyce’s postconviction petition
was the same judge who presided over his trial. The district court therefore was in the best
position to assess the impact of the impro per testimony on the trial. See Bahtuoh,
840 N.W.2d at 819. For these reasons, we discern no abuse of discretion in the district
court’s determination that there was no reasonable probability that the outcome of the trial
would have been different without the officer’s testimony about Fordyce’s “similar”
incidents.7

7 Fordyce also argues that the district court applied the wrong legal standard because it
referred to the “manifest necessity” standard when it orally denied his motion for a mistrial
from the bench. The “manifest necessity” standard applies when a mistrial is declared
“without the defendant’s consent,” and it requires that “[a] high degree of necessity . . .
must exist before a mistrial is appropriate.” State v. Long, 562 N.W.2d 292, 296 (Minn.
1997). Fordyce is correct that the “manifest necessity” standard does not apply here
because the mistrial was sought at his request, not over his objection. Although the district
court’s reference to “manifest necessity” at trial was incorrect, the record nonetheless
shows that the district court applied the corre ct standard. The district court stated that it
considered whether the improper testimony was prejudicial, as well as “the nature of the
case, the emphasis upon the argument and the likely impact upon the jury” —which are
appropriate considerations in determining whether to grant a mistrial. And the district court
cited the correct legal standard—whether there was a reasonable probability that the
improper evidence significantly affected the verdict—when it denied Fordyce’s
postconviction petition. For this reason, the district court’s reference to the “manifest
necessity” standard at trial is not a basis for reversal.
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Accordingly, the district court did not abuse its discretion by denying Fordyce’s
motion for a mistrial, or by denying his postconviction petition.
Affirmed.