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This opinion is nonprecedential except as provided by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
A22-1824

State of Minnesota,
Respondent,

vs.

Lamarr Lucky Smith,
Appellant.

Filed December 26, 2023
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-22-5376

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal- Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Segal, Chief Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Following a jury trial, appellant was convicted of second-degree criminal sexual
conduct. He asserts that he is entitled to reversal of his conviction and a new trial because
the district court erred by admitting other-acts evidence. Because appellant has not shown
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that there is a reasonable possibility that the challenged evidence significantly affected the
verdict, we affirm.
FACTS
On March 22, 2022, officers arrested appellant Lamarr Lucky Smith following two
911 calls. At 10:31 a.m., L.O. called 911 and reported that Smith was in her apartment
attempting to sexually assault her. Officer J.W. and Officer S.K. responded to that call at
10:44 a.m. and found L.O. outside her apartment building. L.O. asked them to remove
Smith from her apartment. As Officer J.W. walked up the stairs inside the building, he saw
Smith exiting the apartment. Officer J.W. retrieved Smith’s blue coat from inside the
apartment and gave it to Smith before escorting him out of the building. Once outside, the
officers ordered Smith to leave three times before he complied. The officers returned to
their squad car in the parking lot of L.O.’s apartment building.
Shortly thereafter, Officer J.W. and Officer S.K. received a second 911 dispatch for
a reported assault approximately two blocks away. At 11:12 a.m., T.B., the victim in this
case, called 911 and reported that a man she did not know had just tried to assault her
minutes earlier while she was walking down the street. She described his height and skin
color and stated that he was wearing “army pants” and a blue coat. She told the dispatcher
that the man had walked away but that she was concerned he would continue to follow her.
Officer J.W. and Officer S.K. arrived on the scene at 11:15 a.m. and spoke with T.B.
for about 25 seconds. T.B. told the officers that a man had started following her while she
was walking down the street, touched her “in places [she] didn’t want to be touched,” and
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“went in [her] pants.” While speaking with T.B., Officer J.W. recognized Smith, who was
less than a block away. Officer J.W. arrested Smith shortly thereafter.
While Officer J.W. and Officer S.K. were detaining Smith, Officer A.R. and Officer
S.A. arrived on the scene. Officer A.R. interviewed T.B. T.B. described the incident to
Officer A.R., explaining that the man who had assaulted her asked for her age and she
responded that she was underage to scare him off, but he replied that he did not care. When
she tried to get away from him and call her father, the man followed her, grabbed her arm,
and put his hands in her pants. As she was trying to call her father, the man tried to take
her cell phone and told her not to call 911. When Officer A.R. asked T.B. if the man put
his hand through her pants and her underwear, T.B. responded in the affirmative. Officer
A.R. asked if the man touched her vagina and whether he inserted his fingers, and T.B.
replied that he “just touched it.”
Officer S.A. spoke with a woman, R.L., who had approached the officers during
Smith’s arrest. During their conversation, Officer S.A. learned of a third incident involving
Smith that occurred after Smith’s encounter with L.O. and before his encounter with T.B.—
R.L. had encountered Smith around 11:00 a.m. outside a nearby apartment building. R.L.
told Officer S.A. that the man the officers were arresting had approached her on the
sidewalk outside the apartment building earlier that morning. R.L. told the officer that
Smith followed her when she tried to get away from him, so she walked to an entrance to
the apartment building to escape him. While locating her key, she yelled at Smith to stay
back, then unlocked the door and quickly shut it while he was reaching for the door.
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After speaking with the officers, T.B. went to the hospital, where she first talked
with a nurse in the hospital’s open triage area. The triage nurse’s notes identified the reason
for T.B.’s visit as an assault and stated that T.B. reported that she was grabbed on her
shoulder by a stranger. T he triage nurse’s notes did not mention a sexual assault. T.B.
next met with a resident doctor, who added a note to T.B.’s medical chart stating that T.B.
“denies any sexual contact, denies any oral or vaginal penetration.” Finally, T.B. saw the
examining doctor, who was supervising and training the resident doctor, and T.B. reported
to him that a man grabbed her shoulder and groin and that her shoulder was sore. T.B. did
not see a forensic nurse examiner at the hospital.
While she was still at the hospital, T.B. was interviewed by a sergeant with the
Minneapolis Police Department sex-crimes unit. T.B. told the sergeant that the man
followed her, asked how old she was, grabbed her upper arm, and put his hands in her
pants. T.B.’s father was in the room for portions of the interview. While T.B.’s father was
in the room, the sergeant asked where in her shorts, and T.B. motioned to her hip area. The
sergeant confirmed with T.B. that T.B. meant the crease where her hip meets her thigh.
The sergeant perceived that T.B. was hesitant to answer questions with her father in the
room and asked T.B. if she wanted her father to leave the room. After T.B.’s father left,
the sergeant asked T.B. if the man had touched her vagina, to which she responded, “Just
a little bit.”
The state charged Smith with second-degree criminal sexual conduct related to his
assault of T.B. Before trial, the state moved for admission of evidence of Smith’s
encounters with L.O. and R.L. Smith argued that the evidence was inadmissible character
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evidence under Minn. R. Evid. 404(b) and State v. Spreigl, 139 N.W.2d 167 (Minn. 1965),
and the state argued that the evidence was admissible under the intrinsic- evidence
exception. The district court ruled that the evidence was admissible because it involved
“at least an allegation of some sexual intent” and “explains why the police were in the area
and looking for [Smith].”
At trial, T.B. testified as follows. Smith followed her and asked her age. T.B. was
19 years old at the time but told Smith she was 16, which she thought would encourage
him to leave her alone. Smith told T.B. he did not care about her age. T.B. turned the
corner to get away from Smith and tried to call her father. Smith followed her, tried to take
her phone, grabbed her arm, and put his hand down her shorts, touching her body under
her shorts. T.B. tried to call her father again, but when he did not pick up, she called 911.
The state’s attorney showed T.B. a diagram of a female body and asked her to circle the
body parts Smith touched. She circled her right shoulder and upper arm as well as her
groin.
The examining doctor testified about examining T.B. at the hospital and the triage
nurse’s and resident doctor’s notes. Regarding the triage nurse’s notes, which indicated
that T.B. had been grabbed on her shoulder but did not mention sexual assault, the
examining doctor opined that triage notes are often “cryptic” because they are taken in an
“open” waiting room in front of many other people. Regarding the resident doctor’s note
that T.B. “denies any sexual contact, denies any oral or vaginal penetration,” the examining
doctor explained that this was part of a broader assessment indicating that T.B. had been
sexually assaulted but not in a penetrative manner.
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Smith testified that he had a hostile interaction with T.B. after he asked to use her
cell phone to call an Uber. He denied grabbing her shoulder, putting his hand down her
pants, or touching her anywhere on her body. He admitted that he did not know T.B. prior
to the incident and that she would not have a motive to lie about him touching her other
than the fact that he had “cussed her out.”
The state introduced L.O.’s 911 calls and Officer J.W.’s testimony about the events
surrounding the calls. Officer J.W. testified that he recognized and detained Smith quickly
when responding to T.B.’s call because he was already familiar with Smith’s description
from responding to L.O.’s 911 call. The state also introduced surveillance video,
body-camera footage, and testimony from Officer S.A. and R.L. about R.L.’s encounter
with Smith. Smith testified that when he left L.O.’s apartment building, he asked R.L. to
use her cell phone to call an Uber, and R.L. became hostile. The district court issued
cautionary instructions to the jury regarding the use of character evidence multiple times,
including immediately before the state published L.O.’s 911 calls, immediately before R.L.
testified, between the conclusion of the parties’ cases and closing arguments, and in its
written instructions. Each time, the distr ict court quoted the relevant model jury
instructions nearly verbatim. Following trial, the jury found Smith guilty of second-degree
criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. l(d) (Supp. 2021).
Smith appeals.
DECISION
Smith asserts that his conviction should be reversed and that he is entitled to a new
trial because the district court abused its discretion in admitting evidence regarding his
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encounters with L.O. and R.L. 1 He argues that the evidence was inadmissible character
evidence that did not meet the intrinsic-evidence or immediate-episode exceptions to the
rule against character evidence because there was no causal connection between the other
encounters and his encounter with T.B. and the state did not need the evidence to tell a
complete story of the charged offense. He further argues that the evidence significantly
affected the verdict because the state’s case was weak in that T.B.’s trial testimony was
inconsistent with her prior statements, the district court’s cautionary instructions
exacerbated the prejudicial effect of the evidence, and the state’s use of the evidence during
its closing was “nothing more than a propensity argument.”
When appealing the admission of other-acts evidence, a defendant has the burden
to show that the district court abused its discretion by admitting the other-acts evidence
and that the admission was prejudicial. State v. Riddley, 776 N.W.2d 419, 424 (Minn.
2009). “Evidence of another crime, wrong, or act is not admissible to prove the character
of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b).

1 Smith raises several additional challenges in his pro se supplemental brief. We do not
consider pro se claims on appeal that are unsupported by argument or legal authority
“unless prejudicial error is obvious on mere inspection.” State v. Taylor, 869 N.W.2d 1,
22 (Minn. 2015) (quotation omitted). Smith asserts that (1) officers lacked probable cause
to arrest him; (2) he was never positively identified before or during trial; (3) the state
lacked probable cause to charge him; (4) he received ineffective assistance of counsel
because his attorney allowed him to testify, did not allow him to “testify properly,” and did
not impeach T.B. with prior inconsistent statements; (5) his right to be present at trial was
violated when he failed to appear; ( 6) his right to a speedy trial was violated; (7) the state
violated his right to confront L.O. as a witness; and (8) the state committed prosecutorial
misconduct during discovery, direct examination of T.B., cross-examination of Smith, and
closing arguments. Each of Smith’s pro se claims is unsupported by argument, facts in the
record, or both, and our review revealed no obvious prejudicial error. Thus, we consider
Smith’s pro se claims waived.
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“Minnesota has long adhered to the common-law rule excluding evidence of prior bad acts
except where the evidence fits within a specific exception.” Riddley, 776 N.W.2d at 424;
Spreigl, 139 N.W.2d at 169. One such exception is evidence of other bad acts that are part
of the “immediate episode” of the charged crime. State v. Fardan, 773 N.W.2d 303,
315-16 (Minn. 2009); Spreigl, 139 N.W.2d at 173.2 In this case, however, we need not
decide whether admitting the evidence was an abuse of discretion because the error, if any,
was harmless. See State v. Thao, 875 N.W.2d 834, 839 (Minn. 2016) (declining to analyze
whether other-acts evidence was admissible where the defendant had not demonstrated that
the admission was harmful).
To obtain reversal of a conviction based on the erroneous admission of other-acts
evidence, a defendant must “demonstrate that the erroneous admission of evidence created
‘a reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.’” Riddley, 776 N.W.2d at 427 (quoting State v. Ness, 707 N.W.2d 676, 691 (Minn.
2006)). We examine the entire record to determine whether wrongfully admitted evidence
significantly affected the verdict. State v. Jaros, 932 N.W.2d 466, 474 (Minn. 2019).
Erroneously admitted other-acts evidence “ is not of such weight as to tip the balance

2 Here, the district court determined that the other-acts evidence was admissible under the
“intrinsic-evidence” exception. Smith questions whether there is a meaningful difference
between the intrinsic-evidence exception, as it is identified in State v. Hollins, 765 N.W.2d
125, 131-32 (Minn. App. 2009), and the immediate-episode exception and asks this court
to hold that they are the same. It is worth noting that when the parties argued the state’s
motion in limine before trial, they referred to the challenged evidence as intrinsic evidence
but cited cases interpreting the immediate-episode exception. However, because we
conclude that there is no reasonable possibility that the challenged evidence significantly
impacted the verdict, we need not address the difference, if any, between the two
exceptions.
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toward reversal” if it merely bolsters another witness’s credible testimony; rather, it must
be “the critical push beyond a reasonable doubt.” Ness, 707 N.W.2d at 691; see also Jaros,
932 N.W.2d at 474 (citing this aspect of Ness). Appellate courts have considered the
following factors when conducting this analysis: (1) whether the state presented other
evidence on the issue for which the other-acts evidence was offered, (2) whether the district
court issued cautionary instructions, (3) whether the state relied on the inadmissible
evidence in its closing argument, and (4) whether other evidence of guilt was
overwhelming. Riddley, 776 N.W.2d at 428. We apply these factors here.
We first consider whether the state presented other evidence on every issue for
which the state offered the other-acts evidence, and we conclude that the state did so.
Regarding identity, the state presented evidence that included T.B.’s testimony describing
Smith’s appearance and the clothes he was wearing on the date of the offense, which
matched the description she gave the 911 dispatcher. And in his testimony, Smith admitted
that he had an altercation with T.B. on the date of the offense. Regarding sexual or
aggressive intent, the state presented evidence that included T.B.’s testimony and prior
consistent statements that Smith touched her body under her shorts and underwear on her
vagina. See Ness, 707 N.W.2d at 687 (stating that “sexual or aggressive intent can readily
be inferred from the contacts themselves”). Regarding the reason the officers identified
and detained Smith quickly, the state presented evidence that the officers had T.B.’s
description of Smith’s appearance from T.B.’s 911 call, saw him less than a block away
while they were speaking with T.B., and arrested him based on her report of sexual assault.
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Second, we consider whether the district court issued cautionary instructions, and
we conclude that it did. The record shows that the district court issued cautionary
instructions three times during trial and included the same instruction in the written jury
instructions. Although Smith argues that the instructions to the jury heighten ed the
potential prejudicial effect of the other-acts evidence, we presume that the jury followed
the district court’s instructions. State v. Matthews, 779 N.W.2d 543, 550 (Minn. 2010);
Riddley, 776 N.W.2d at 428.
Third, we consider whether the state relied on the challenged evidence in its closing
argument, and we conclude that, although the state’s use of the other-acts evidence during
closing arguments here was not insignificant, it was not improper , and the state relied
primarily on the other evidence it presented . D uring its closing argument, the state
emphasized the evidence that was not other -acts evidence by discussing it in detail. And
the state stressed the importance of the district court’s cautionary instructions to the jury
by explaining that the jury should be cautious about how it used the other-acts evidence,
stating that “[w]e don’t just convict people because they’ve done bad stuff before” and
reiterating that the jury should not use the other-acts evidence to convict Smith.
Finally, we consider whether the evidence of Smith’s guilt was overwhelming
without the challenged evidence, and we conclude that it was. The other evidence must be
strong, but it need not be conclusive. State v. Bolte, 530 N.W.2d 191, 198 n.6 (Minn.
1995). On this factor, Smith argues that the state’s case was weak becaus e T.B.’s
statements from the date of the offense were inconsisten t. Smith points to the following
alleged inconsistencies: T.B. did not tell the 911 dispatcher that she had been assaulted,
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only that a man had “tried” to assault her; T.B. did not tell the triage nurse that she had
been sexually assaulted, only that the man grabbed her shoulder; the resident doctor’s note
states that T.B. denied sexual contact; and T.B. did not initially volunteer exactly where
she was touched in her interview with the sergeant.
The state presented overwhelming evidence that T.B.’s testimony was credible and
consistent, and it refuted or explained the purported inconsistencies. For example, the state
presented T.B.’s video-recorded statements in which T.B. described the incident
consistently in her responses to the officers and the sergeant, confirming each time that
Smith had touched T.B. under her clothing on her groin. The examining doctor testified
that T.B. told him she was touched on her groin, explained that triage notes are often
“cryptic” because they are taken in front of other people, and clarified that the resident
doctor’s note that T.B. denied sexual contact was specific to oral or vaginal penetration.
The sergeant testified that it is very co mmon for people not to want to use the word
“vagina” and that in this case, T.B. was especially hesitant because her father was in the
room for portions of the interview. The sergeant also testified that when she asked T.B. if
Smith touched her vagina, T.B. responded, “A little bit.” All of this testimony and evidence
corroborates T.B.’s testimony at trial.
Furthermore, Smith’s testimony corroborated key points of the state’s case. Smith
testified that he had a hostile interaction with T.B. that day involving a cell phone, resolving
any doubt about identity. Smith initially blamed the hostile interaction on T.B. but then
admitted that he became hostile first. He also admitted that he and T.B. did not know each
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other and that T.B. should not have had any motivation to lie. And Smith did not present
any other evidence undermining T.B.’s credibility.
Based on our examination of the entire record, these factors weigh in favor of a
conclusion that no reasonable possibility exists that the challenged other-acts evidence was
the critical push beyond reasonable doubt here. We are therefore persuaded that even if
the district court abused its discretion by admitting the other-acts evidence, Smith failed to
demonstrate that the alleged erroneous admission of Smith’s encounters with L.O. and R.L.
significantly affected the verdict. Thus, Smith is not entitled to reversal of his conviction
or a new trial.
Affirmed.