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This opinion is nonprecedential except as provided by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
A22-0238

State of Minnesota,
Respondent,

vs.

Wayne Alan Bothun,
Appellant.

Filed January 9, 2023
Affirmed
Worke, Judge

Olmsted County District Court
File No. 55-CR-18-1022

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

James McGeeney, Doda McGeeney, Rochester, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his criminal- sexual-conduct convictions, arguing that the
district court erroneously admitted Spreigl evidence. We affirm.
FACTS
Respondent State of Minnesota charged appellant Wayne Alan Bothun with first -
and second-degree criminal sexual conduct for sexually abusing A.R.C. several times from
November 2017 to February 2018.
A.R.C. was four years old at the time of the offenses and is the daughter of Bothun’s
former neighbor and friend, A.R. Bothun a nd A.R. met years before A.R.C.’s birth as
neighbors at an apartment complex. A.R. came to trust Bothun as a “good friend[].” She
allowed Bothun to help take care of and babysit her children and chose Bothun as A.R.C.’s
godfather. A.R.C. knew Bothun as “Uncle Wayne.”
Bothun would often babysit A.R.C. at his house where he lived alone. Bothun
would often bathe A.R.C. during those times, which A.R. knew about and consented to. In
February 2018, A.R.C. disclosed to A.R. that Bothun came into the bathtub with her “in
the bare” and that he committed a sexual act on her in his bed.
During a subsequent CornerHouse interview, A.R.C. indicated that she and Bothun
would sometimes sit in the bathtub without clothes and that their genitals sometimes
touched while in the bathtub. A.R.C. also described how Bothun committed other sexual
acts on her on his bed and couch.
3
Police searched Bothun’s residence and found an SD card in a tablet. On the SD
card, law enforcement found 28 files, each containing a “child erotica”1 short story. The
state moved in limine to admit the full text from six of the stories. The texts vividly
describe sexual interactions between male adults and female children. In each story, the
interactions occur through the adult male’s relationship to the child as the child’s uncle,
neighbor, or babysitter, or as a friend of the child’s babysitter.
The district court ruled that the state could elicit testimony about the titles of and
introductions to the six stories, the length of each story, the age of the female child in each
story, and the relationship between the adult male and female child in each story. The
district court ruled the testimony admissible “to show [Bothun]’s common scheme or plan
and to rebut claims that the alleged victim fabricated the events.”
A.R. and A.R.C. testified at Bothun’s jury trial in September 2021. A.R. testified
about her relationship with Bothun, her knowledge of Bothun’s time with A.R.C. and of
Bothun’s home, and A.R.C.’s disclosures to her. A.R.C. testified that Bothun “would touch
[her] with his tongue” “[w]here [she] pee[s].” But she did not remember participating in
the CornerHouse interview. And she testified that she and Bothun would sit in the bathtub
naked but that she did not remember any bodily contact in the bathtub beyond their feet
touching. The CornerHouse interviewer testified that when A.R.C. met with the

1 In this context, “child erotica” refers to literature “describing adults having . . . sexual
relations with children.”

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interviewer and the prosecutor several weeks before trial, A.R.C. did not remember any
sexual contact with Bothun.
The state presented the video of A.R.C.’s CornerHouse interview to the jury. The
state also elicited the testimony about the six child-erotica stories from a law-enforcement
witness. That witness testified on cross-examination that the files containing the stories
were created and last accessed at various times during a period of more than one year from
2010 to 2011.
Bothun testified and denied interacting with A.R.C. in a sexual way. He also denied
knowing about the child-erotica stories on the SD card before this case arose.
The jury found Bothun guilty as charged. The district court sentenced him to 172
months in prison. This appeal followed.
DECISION
Bothun argues that the district court erroneously admitted the child-erotica evidence
as Spreigl evidence. “Spreigl evidence” refers to evidence of a criminal defendant’s other
bad acts offered to prove something other than the defendant’s conformity with such
behavior. State v. Tomlinson, 938 N.W.2d 279, 286 (Minn. App. 2019), rev. denied (Minn.
Feb. 26, 2020). We review the admission of Spreigl evidence for an abuse of discretion.
State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). Bothun has the burden to show that
the district court erred and resulting prejudice. See id. at 261-62.
A five-step procedure must be followed to properly admit Spreigl evidence:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indicate what the evidence will be
offered to prove; (3) there must be clear and convincing
5
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.
State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006). Bothun challenges the admission of
the Spreigl evidence on steps two through five. We address each in turn.
Notice of intended use
Bothun argues that the district court erred by admitting the Spreigl evidence to show
a “common scheme or plan” when the state did not explicitly assert that theory of relevance.
“[T]he underlying purpose of the [Spreigl] notice is to avoid surprise to the defendant by
giving him time to prepare a defense to the charges.” State v. Riddley, 776 N.W.2d 419,
427 (Minn. 2009) (quotation omitted). Notice defects do not require reversal when there
was “substantial compliance with the notice requirements and lack of prejudice to the
defendant.” State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995).
Here, there was substantial compliance with the Spreigl notice requirement. The
record shows that Bothun had notice of the state’s intent to offer the child-erotica evidence
to show “motive” no later than December 2018 when the state submitted its first Spreigl
motion. The district court granted that motion. In March 2020, the state moved to expand
the admitted child-erotica evidence to show, among other things, Bothun’s “modus
operandi of his clandestine sexual abuse” of A.R.C., and “to rebut any” claim that A.R.C.
fabricated the allegations. In late May 2021, the district court clarified that the Spreigl
evidence was admissible to show whether Bothun had a scheme or plan. Bothun’s trial did
not begin until September 8, 2021.
6
For just under three years before Bothun’s trial, he had notice of the state’s intent to
offer the Spreigl evidence. He had several months to specifically prepare to address a
common-scheme theory. Bothun was “aware of the facts” necessary to address the Spreigl
evidence for a sufficient period before trial. Riddley, 776 N.W.2d at 427-28; Bolte, 530
N.W.2d at 199. In any event, he only asserted at trial that he did not know the child-erotica
stories were on his SD card. He did not address the purpose of the Spreigl evidence at trial.
Because Bothun has not shown how any notice defect “adversely affected” his preparation
or strategy, we conclude that any notice defect was harmless. Riddley, 776 N.W.2d at 427;
State v. Bell, 719 N.W.2d 635, 641-42 (Minn. 2006) (explaining that procedural defects
when admitting evidence generally are implicitly harmless if the evidence is otherwise
admissible).
Clear and convincing evidence
Bothun next claims that the evidence was insufficient to find by clear and
convincing evidence that he committed the Spreigl acts.
Evidence is clear and convincing “when it is highly pro bable that the facts sought
to be admitted are truthful.” Ness, 707 N.W.2d at 686. Here, police found the SD card
containing the child-erotica stories in a tablet that Bothun admitted he bought “before
2009.” The tablet was in Bothun’s personal office at his home where he lived alone. The
SD card’s “formatted name” was “WBOTHUN-1GB.” And besides the child-erotica
stories, the SD card contained several of Bothun’s financial documents, Bothun’s resume,
and documents from Bothun’s divorce. Based on the evidence at trial, the district court
could permissibly find it highly probable that Bothun possessed the child-erotica stories at
7
the time of the offenses. The district court did not abuse its discretion by ruling this
sufficient to admit the evidence.
Relevance and materiality
Bothun contends that the Spreigl evidence was not relevant and material to show a
common scheme or plan and rebut claims that the victim fabricated the allegations. Bothun
claims that because the Spreigl acts did not involve him committing child sexual abuse, the
Spreigl evidence did not fit under a “common scheme or plan” theory of relevance.
To assess whether Spreigl evidence is relevant and material to the state’s case, the
district court must “identify the precise disputed fact to which the Spreigl evidence would
be relevant.” Id.; Minn. R. Evid. 401 (defining “relevant evidence” as evidence tending to
make more or less probable the existence of any consequential fact). “This entails isolating
the consequential fact for which the evidence is offered, and then determining the
relationship of the offered evidence to that fact and the relationship of the consequential
fact to the disputed issues in the case.” Ness, 707 N.W.2d at 686.
Evidence beyond the alleged victim’s accusations is often scarce in cases of child
sexual abuse. State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn. 1993). Thus,
Spreigl evidence that shows “a design (not a disposition)” to commit the charged conduct
is broadly allowed in child-sexual-abuse cases . Id. at 240-42. Put differently, such
evidence “prove[s] [a] common scheme or plan and . . . thereby prove[s] the . . . doing of
the act charged”— also called the “corpus delicti”—disproving the theory that the charged
conduct is “a fabrication or a mistake in perception by the victim.” Id. (quotation omitted).
Hence, admitting common-scheme evidence is “proper at least whe[n] the corpus delicti is
8
truly in issue and . . . the other [act] is sufficiently relevant to the charged crime.” Id. at
242.
Here, the issue was whether the child sexual abuse occurred—that is, corpus delicti.
The Spreigl evidence tended to show Bothun’s “design” to commit the child sexual abuse
by showing that Both un fantasized about sexually abusing children in the contexts
described in the stories, which are like the context in which the jury found he sexually
abused A.R.C. Id. at 240, 242; State v. Chouinard, No. A13-1910, 2014 WL 7011115, at
*1-3 (Minn. App. Dec. 15, 2014) (affirming admission of defendant’s statement that he
wanted to have sex with a 13-year-old girl as common-scheme evidence because it showed
his “extant pedophilic stimulation and his express desire to act on that stimulation at some
point”), rev. denied (Minn. March 25, 2015) 2; United States v. Vosburgh, 602 F.3d 512,
519-22, 537-38 (3rd Cir. 2010) (affirming admission of child-erotica pictures found on
defendant’s hard drive because they “suggested that [he] harbored a sexual interest in
children”). Therefore, the Spreigl evidence tended to prove corpus delicti, rebutting the
claim that A.R.C. fabricated the allegations.
Although possessing child-erotica stories in and of itself is not alone criminal , we
do not understand Wermerskirchen as limited to criminal Spreigl acts. Minn. R. Evid.
404(b) (governing “[e]vidence of another crime, wrong, or act” (emphasis added)); Ness,
707 N.W.2d at 688 (noting that Wermerskirchen “held that other-acts evidence” is

2 Nonprecedential opinions are not binding but may be persuasive. Minn. R. Civ. App. P.
136.01, subd. 1(c).
9
admissible under common-scheme doctrine (emphasis added)). We therefore conclude
that the child-erotica evidence was relevant as common-scheme evidence.
But for Spreigl evidence to be both relevant and material, there must be a
“sufficiently close relationship between the charged offense and the Spreigl [act] in time,
place, or modus operandi.” 3 Ture v. State, 681 N.W.2d 9, 15 (Minn. 2004) (quotation
omitted). “The closer the relationship between the events, the greater the relevance of the
evidence and the lesser the likelihood it will be used for an improper purpose.” Id.
Moreover, common-scheme evidence must meet a heightened standard of relevance—the
Spreigl act “must have a marked similarity in modus operandi to the charged offense.”
State v. Clark, 738 N.W.2d 316, 346 (Minn. 2007) (quotation omitted).
Here, given the “centrality” of the corpus-delicti issue, the approximately six- to
seven-year time gap between the Spreigl acts and the charged conduct fell well within the
temporal proximity that the supreme court has held sufficient for admission. Blom, 682
N.W.2d at 612 (holding 16-year -old Spreigl act sufficiently relevant because of its
similarity to the charged offense when defendant spent three of those years incarcerated
and Spreigl evidence went to central issue). Time considerations favored admission.
Place considerations also favor ed admission. Bothun abused A.R.C. in his
Rochester home where police found the SD card containing the child-erotica stories.
Before that, Bothun met A.R. as a neighbor elsewhere in Rochester. Bothun later moved

3 “Modus operandi” in this context is not to be confused with that term’s use in cases
involving so-called “‘signature’ crime[s].” See State v. Blom, 682 N.W.2d 578, 612 (Minn.
2004).
10
to the house in Rochester where he abused A.R.C. blocks away from where she had recently
moved with her mother and siblings. State v. Landin, 472 N.W.2d 854, 860 (Minn. 1991)
(holding charged murder and another murder sufficiently related in part because “both
incidents took place in the Twin Cities”).
The Spreigl acts also bore marked similarities to the charged acts. The child-erotica
stories involved an adult male sexually abusing a female child. Several of the children in
the stories are the same or close to the same age as A.R.C. when Bothun abused her. The
stories involved the adult male abusing a position of trust with the child—including as an
uncle, neighbor, babysitter, or friend of the child’s babysitter. Bothun did the same as
A.R.’s friend and neighbor and thereby A.R.C.’s godfather, neighbor, and babysitter
known as “Uncle Wayne.” Tomlinson, 938 N.W.2d at 287 (observing “marked
similarities” in modus operandi of defendant’s charged conduct and Spreigl acts in part
because “victims were all young girls” and defendant “gained access to them through a
relationship with their parent or grandparent”).
We conclude that the Spreigl evidence was sufficiently relevant and material for
admission as common- scheme evidence to prove corpus delicti and rebut the theory that
A.R.C. fabricated the allegations.4

4 The district court also ruled the Spreigl evidence admissible to show motive, which
Bothun argues was error. Any error in admitting the Spreigl evidence as proof of motive
was harmless because the jury was not instructed that it could consider the evidence for
that purpose. Cf. State v. Frisinger , 484 N.W.2d 27, 31 (Minn. 1992) (holding district
court’s failure to give jury cautionary instruction on proper use of Spreigl evidence
harmless when “the prosecutor did not suggest that the jury use the other-crime evidence
for an improper purpose.”). Additionally, the district court ruled that the Spreigl evidence
could show intent if Bothun testified that he touched A.R.C.’s intimate parts while bathing
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Probative value versus potential for unfair prejudice
Bothun argues that even if the Spreigl evidence w as relevant and material, its
potential for unfair prejudice outweighed its probative value.
“[P]rejudice” in this context does not mean the damage to a party’s case “from the
legitimate probative force of the evidence.” State v. Welle, 870 N.W.2d 360, 366 (Minn.
2015) (quotation omitted). “[I]t refers to the unfair advantage” resulting from the
evidence’s capacity “to persuade by illegitimate means.” Id. (quotation omitted).
Here, the child-erotica evidence “complete[d] the picture” of Bothun by showing
that he fantasized about committing child sexual abuse and how he would accomplish it.
State v. Washington, 693 N.W.2d 195, 201 (Minn. 2005) (quotation omitted). This tended
to legitimately establish that the sexual abuse occurred and in turn rebut the claim that
A.R.C. fabricated the allegations. Without the Spreigl evidence, the state’s case rested on
the CornerHouse interview video, A.R.C.’s forgetful and undetailed testimony, and A.R.’s
minimally corroborative testimony. Given the proper purpose of the Spreigl evidence and
the state’s “need” for the evidence, we conclude that the probative value of the Spreigl
evidence was high. Ness, 707 N.W.2d at 689-90.
In contrast, the potential for unfair prejudice was relatively low. The Spreigl
evidence here did not involve Bothun committing child sexual abuse—only possessing
writings suggesting that he fantasized about committing child sexual abuse. The state first

her. But Bothun never admitted that, and the jury also was never instructed that it could
consider the Spreigl evidence as proof of intent. Admitting the Spreigl evidence for any
improper purpose was harmless.
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moved to admit the titles of 28 stories from the SD card before asking the district court to
admit the full text of six stories. Yet, the district court only admitted testimony describing
the titles of, introductions to, and relevant details of the six stories.
The district court also instructed the jury twice that it could consider the Spreigl
evidence only to determine whether Bothun committed the charged acts and not as proof
of Bothun’s character or that he acted in conformity with that character. The court
admonished the jury that convicting Bothun of anything other than the charged offenses
“might result in unjust double punishment.” These cautionary instructions reduced the risk
of unfair prejudice . See Tomlinson, 938 N.W.2d at 287-88 (noting that cautionary
instructions reduce risk of unfair prejudice); State v. Fardan, 773 N.W.2d 303, 317 (Minn.
2009) (stating that juries presumably follow instructions). The court further reduced the
risk of unfair prejudice by informing the jury before closing argument that “[b]eing in
possession of the[] stories is not a crime.” Vosburgh, 602 F.3d at 538 (explaining that court
minimized risk of unfair prejudice by telling jury that defendant was not on trial for
possessing child-erotica pictures and that the pictures were not illegal). The prosecutor
reminded the jury of this during his rebuttal —noting that the First Amendment protects
free speech—and reiterated the district court’s other Spreigl instructions. He also correctly
told the jury that it could specifically consider the Spreigl evidence to determine whether
A.R.C. was “fabricating” the allegations.
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We conclude that the risk of unfair prejudice from the Spreigl evidence did not
outweigh the evidence’s probative value. As a result, the district court did not abuse its
discretion by admitting the evidence.
Affirmed.