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This opinion is nonprecedential except as provided by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
A23-1278

State of Minnesota,
Respondent,

vs.

Ryan Marshall McNally,
Appellant.

Filed December 2, 2024
Affirmed
Bentley, Judge

Hennepin County District Court
File No. 27-CR-21-7938

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bentley, Presiding Judge; Segal , Chief Judge; and
Johnson, Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
In this direct appeal from a conviction of second-degree criminal sexual conduct,
appellant argues that he is entitled to a new trial because the district court abused its
discretion by admitting evidence of a subsequent act of alleged abuse. Alternatively,
2
appellant seeks resentencing because the district court violated his constitutional right to a
jury trial under Blakely v. Washington, 542 U.S. 296 (2004), when the court determined
the date of the offense by a preponderance of evidence, and thereby increased his criminal-
history score and established a longer presumptive sentence. In a pro se supplemental brief,
appellant raises additional claims. Because we discern no abuse of discretion regarding the
admission of other-bad-act evidence and appellant’s supplemental arguments, and because
we conclude that the Blakely violation was harmless beyond a reasonable doubt, we affirm.
FACTS
Respondent State of Minnesota charged appellant Ryan Marshall McNally III with
second-degree criminal sexual conduct, Minn. Stat. § 609.343, subd. 1(a) (2014), alleging
that McNally made his eight- or nine-year-old neighbor, B.J.Y., rub his penis. During a
six-day jury trial in February 2023, the state presented evidence about the charged conduct
involving B.J.Y., as well as evidence about a 2021 incident when McNally allegedly made
his daughter, N.M., rub his penis. A summary of the evidence received at trial and the
relevant procedural history follows.
B.J.Y. became friends with McNally’s daughters after the McNallys moved to
B.J.Y.’s neighborhood in Golden Valley in 2015. The children played together about once
a week, typically at the McNally home. One day, when B.J.Y. was eight or nine years old,
B.J.Y. went there to play with McNally’s daughters. McNally answered the door and told
B.J.Y. that his daughters were not home, but he invited B.J.Y. inside anyway. B.J.Y. sat
with him on a couch and watched him play video games. McNally was wearing a robe with
nothing underneath. At some point, McNally said that he had a stomachache and asked
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B.J.Y. to rub his stomach. After B.J.Y. complied, McNally repeatedly asked B.J.Y. to rub
lower until B.J.Y.’s hand was on McNally’s penis. McNally then asked B.J.Y. to “rub it.”
When B.J.Y. did, they felt semen on their hand. 1 B.J.Y. testified that they felt
uncomfortable, removed their hand, and told McNally that they had to leave. B.J.Y. ran
home and washed their hands. B.J.Y. testified that they did not tell anyone about the
incident until “[a] few years later.”
In 2020, B.J.Y. told B.J.Y.’s grandmother and father about the alleged abuse .
B.J.Y.’s father contacted the police, and B.J.Y. was forensically interviewed at a child-
advocacy center a month later. The state charged McNally with criminal sexual conduct in
April 2021.
In February 2021, after the incident with B.J.Y. but before he was charged in relation
to it, McNally allegedly sexually abused his daughter, N.M. The district court allowed
evidence relating to N.M. “to demonstrate a common scheme or plan” between the alleged
incidents and to show that B.J.Y. was not fabricating their testimony. N.M. and her two
sisters had stayed the night with McNally at a hotel in Eau Claire, Wisconsin. N.M.’s
mother and McNally were separated, and he arranged for an overnight visit. The hotel room
had one king-sized bed and one couch with a pullout bed. N.M.’s sisters fell asleep on the
pullout, and N.M. initially fell asleep on the floor. McNally then woke N.M. and told her
to lie on the bed with him. N.M. fell back asleep on the bed, but she woke up again when
McNally grabbed her arm, “made [her] touch his penis,” and made “[her] hand go . . . up

1 Both parties note in their briefs that B.J.Y. uses they/them pronouns.
4
and down.” N.M. was afraid to move her hand away. She then felt wetness on her hand.
N.M. moved her arm away and fell asleep. The next morning, after McNally left the hotel
room, N.M. told one of her sisters what McNally did. After N.M. and her sisters returned
home later that day, N.M. told her other sister. N.M. then spoke with her mother about the
incident.
At trial, the state established these facts through witness testimony and exhibits. As
to B.J. Y.’s allegations, the jury heard testimony from B.J.Y., B.J.Y.’s father and
grandmother, the forensic interviewer who interviewed B.J.Y., and the police officer who
spoke with B.J.Y.’s father about the allegations. The jury also viewed a recording of
B.J.Y.’s forensic interview.
As to N.M.’s allegations, the jury heard testimony from N.M., N.M.’s mother and
grandmother, the forensic interviewer who interviewed N.M., and two police officers who
investigated N.M.’s allegations. The jury also viewed a redacted recording of N.M.’s
forensic interview, photographs of the hotel room, and screenshots of text messages
between one of N.M.’s sisters and N.M.’s mother.
On each day that the jury was presented evidence relating to N.M. , and directly
before the testimony of four of the six witnesses, the district court issued an instruction like
the following:
Members of the jury, the State is about to introduce evidence
of an occurrence on or about February 20th, 2021, at a hotel in
Eau Claire, Wisconsin. This evidence is being offered for the
limited purpose of assisting you in determining whether the
defendant committed those acts with whi ch the defendant is
charged in the complaint. The defendant is not being tried and
may not be convicted of any offense other than the charged
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offense. You are not to convict the defendant on the basis of
occurrences on February 20th, 2021, in Eau Claire. To do so
might result in unjust double punishment.

The district court issued a similar instruction before closing argument.
The district court also instructed the jury that, to convict McNally, it must find that
the offense date relating to the incident involving B.J.Y. occurred between August 31,
2015, and December 31, 2019. That offense-date range was wider than the range alleged
in the original complaint, which only extended to August 30, 2017. The state had amended
its complaint during the trial to reflect the wider offense-date range.
The jury found McNally guilty of second- degree criminal sexual conduct. A
sentencing worksheet assigned four felony points to McNally’s criminal-history score,
including two points for two felony convictions from 2004. At McNally’s sentencing
hearing, defense counsel questioned the inclusion of those two points on the ground that
the 2004 offenses would have decayed in 2019 for purposes of calculating McNally’s
present criminal-history score under the Sentencing Guidelines. Minn. Sent’g Guidelines
2.B.1.c. (Supp. 2019). Defense counsel reasoned that, if the offense against B.J.Y. had
occurred after the 2019 decay dates, the two points should not have been included in
McNally’s criminal-history score for this conviction.
In response, the district court asked whether defense counsel agreed that, “[w]ith
regard to all of these factual issues” relating to the criminal- history score, the standard of
proof was “not proof beyond a reasonable doubt to a jury, but it’s to the [c]ourt by a
preponderance that the state has the burden.” Defense counsel agreed. The state did not
directly address which burden of proof was correct but responded that the court could make
6
a finding that the offense occurred before 2019—and at the latest on August 30, 2017—
based on B.J.Y.’s testimony and B.J.Y.’s statements in the video of the forensic interview.
The state noted that even if it had “to have [the] jury come back and figure this
out[,] . . . the state would present the transcript of the trial and that would be it.” The district
court then found “based solely on the trial evidence that the state has proven that the offense
for sentencing was between August 31, 2015, and August 30, 2017, at least to a
preponderance of the evidence to the Court.” Accordingly, the district court kept the
criminal-history score at four and sentenced McNally to 91 months in prison.
McNally appeals.
DECISION
McNally argues for a new trial on the basis that the district court abused its
discretion by admitting evidence that McNally sexually abused N.M. He also seeks
resentencing because the district court violated his constitutional right to a jury trial when
it imposed a presumptive sentence based in part on findings relating to the offense date that
the court itself determined by a preponderance of the evidence. We address McNally’s
arguments in turn.
I
Evidence of other bad acts, also known as Spreigl evidence, is “generally not
admissible to prove the defendant’s character for committing crimes.” State v. Gomez, 721
N.W.2d 871, 877 (Minn. 2006) (citing State v. Spreigl, 139 N.W.2d 167 (Minn. 1965));
see also Minn. R. Evid. 404(b) (providing rule for admissibility of other-acts evidence).
But Spreigl evidence “may be admissible for other purposes,” including to show a
7
“common scheme or plan” and to rebut a defendant’s contention “that the conduct on which
the charge was based was a fabrication.” State v. Clark, 738 N.W.2d 316, 346 (Minn. 2007)
(quotation omitted). Appellate courts review a district court’s decision to admit evidence
of other bad acts for an abuse of discretion. State v. Griffin, 887 N.W.2d 257, 261 (Minn.
2016).
The supreme court has adopted a five-step process to determine whether Spreigl
evidence is admissible:
(1) the State must provide notice of its intent to use the
evidence; (2) the State must clearly indicate what the evidence
is being offered to prove; (3) there must be clear and
convincing evidence that the defendant participated in the
other act; (4) the Spreigl evidence must be relevant and
material; and (5) the probative value of the evidence must not
be outweighed by the potential prejudice.

State v. Buchan , 993 N.W.2d 614, 626 (Minn. 2023). If the district court abused its
discretion by admitting Spreigl evidence, we “must then determine whether there is a
reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” Griffin, 887 N.W.2d at 262.
Here, the state offered the Spreigl evidence to prove a common scheme or plan and
to rebut McNally’s contention that the charged conduct did not happen. The district court
determined that the state satisfied all five steps. On appeal, McNally challenges only the
district court’s determination of steps four and five: that the evidence was relevant and that
the probative value outweighed its potential prejudice to McNally. For the following
reasons, we conclude that the district court did not abuse its discretion.
8
A
For Spreigl evidence to be relevant, the “general rule” is that a bad act must be
“sufficiently or substantially similar to the charged offense—determined by time, place,
and modus operandi.” State v. Ness, 707 N.W.2d 676, 688 (Minn. 2006) (quotation and
emphasis omitted). But when the state introduces Spreigl evidence for the purpose of
showing a common scheme or plan, as it does here, the other bad act must have a “marked
similarity in modus operandi” to the charged conduct. Id. at 688 (emphasis added) (quoting
State v. Forsman, 260 N.W.2d 160, 166 (Minn. 1977)).
McNally first argues that the district court erroneously applied the “sufficiently or
substantially similar” standard, instead of the “marked similarity” standard, when
determining the relevance of the other bad act for purposes of establishing a common
scheme or plan. We disagree. The district court first described the general relevance rule,
outlined above, that the state must show “sufficient similarity” in “time, place, and modus
operandi.” But when discussing the modus-operandi factor, the district court explained that
“the Spreigl evidence should have a ‘marked similarity’ in modus operandi to the charged
offense.” It then compared the factual circumstances of the Spreigl incident to the charged
conduct under that framework. The district court did not misapply the legal standard.
McNally next argues that the Spreigl incident was not markedly similar. A Spreigl
incident can be markedly similar in modus operandi without being “identical in every way
to the charged crime,” so long as the Spreigl incident serves to “complete the picture of the
defendant” and does not “paint another picture.” Ture v. State, 681 N.W.2d 9, 15-16 (Minn.
2004) (quotation omitted).
9
To support his argument that the Spreigl incident and charged conduct here are not
markedly similar, McNally cites cases he identifies as involving more distinctive modi
operandi than this case. E.g., State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998)
(reasoning that “the modus operandi was nearly identical” because both incidents involved
attempted penetration of the same victim in the same room). But while the conduct in those
cases certainly met the marked -similarity standard, we have little trouble concluding that
the district court was within its discretion in finding a marked similarity here. The district
court noted that the victims were both eight or nine years old; the conduct occurred in a
private location where the children were isolated with McNally on a bed or a couch; both
events began with “seemingly innocent conduct” (McNally asking B.J.Y. to rub his belly
to help ease a stomachache, and McNally telling his daughter to sleep in the hotel bed with
him); and, in both instances, McNally then directed the children (verbally or physically) to
rub his penis to the point of ejaculation.
The modus operandi here is at least as distinctive as that in State v. Wermerskirchen,
where the supreme court affirmed the admission of common -scheme-or-plan Spreigl
evidence. 497 N.W.2d 235 (Minn. 1993). In Wermerskirchen, the charged conduct
involved the defendant sticking his hand down his nine-year -old daughter’s pants and
touching her vagina. Id. at 236-37. The state presented two Spreigl incidents from before
the charged conduct: one from 19 years earlier that involved the defendant touching his 12-
and 13-year-old nieces’ breasts and buttocks, and another from 7 years earlier that involved
the defendant touching his stepdaughter’s breast and buttocks as well as rubbing his penis
on her. Id. at 237-38, 242 n.3. The Wermerskirchen court determined that the evidence of
10
prior sexual abuse was admissible to rebut a fabrication defense because it “showed an
ongoing pattern of opportunistic fondling of young girls within the family context.” Id. at
242.
McNally also argues that the up-to-six -year gap in time between the charged
conduct and the Spreigl incident demands even greater similarity to establish a modus
operandi. To be sure, the supreme court has said that “as the time span increases between
the past misconduct and the crime charged, the similarity between the acts in terms of
modus operandi must likewise increase in order for the past misconduct to be relevant.”
Clark, 738 N.W.2d at 346. But the gap here is still shorter than the incidents in
Wermerskirchen, the shortest of which involved a seven-year gap. 497 N.W.2d at 242 n.3.
And in cases where the supreme court has invoked that principle to reverse the admission
of Spreigl evidence, the gaps were significantly longer. E.g., State v. Wright, 719 N.W.2d
910, 918 (Minn. 2006) (13 years); State v. Blom, 682 N.W.2d 578, 601 (Minn. 2004) (about
16 years).
Ultimately, the district court is “best positioned to weigh” the factors determining
the relevance of Spreigl evidence. State v. Washington, 693 N.W.2d 195, 201 (Minn. 2005).
We see no reason to disturb its conclusion here.
B
We next turn to the district court’s assessment of Spreigl’s fifth prong: whether the
potential for undue prejudice substantially outweighed the evidence’s probative value.
Ness, 707 N.W.2d at 686.
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1
The need for the evidence is a “major factor” in this analysis. Id. at 690. As the
supreme court recognizes, Spreigl evidence may be needed when “it is not clear that the
jury will believe the state’s other evidence bearing on the disputed issue,” even if the state
has otherwise presented sufficient evidence to convict. Id. (quotation omitted). And,
particularly in child sexual abuse prosecutions, “problems of secrecy, victim vulnerability,
the absence of physical proof of the crime, the unwillingness of so me victims to testify,
and a general lack of confidence in the ability of the jury to assess the credibility of child
witnesses” may require Spreigl evidence to strengthen an otherwise weak case. State v.
McLeod, 705 N.W.2d 776, 786 (Minn. 2005).
Here, the district court admitted the Spreigl evidence because it was “highly
probative” of the lack of fabrication of B.J.Y.’s testimony. At trial, the state’s primary
evidence was B.J.Y.’s own testimony about McNally’s abuse. The state had no physical
evidence of the crime and could not present any other witnesses with personal knowledge
of the charged conduct. B.J.Y. did not disclose the allegations to others until years later,
which is common for child victims of sexual abuse according to the forensic interviewers
who testified. Alongside McNally’s testimony that the abuse did not occur, the Spreigl
evidence served to rebut his denial and support B.J.Y.’s credibility. See State v. Fardan,
773 N.W.2d 303, 319 (Minn. 2009) (holding that the state needed Spreigl evidence to rebut
defendant’s testimony that the charged offense was an accident).
McNally argues that the state did not need the Spreigl evidence because B.J.Y. was
old enough to testify at trial, and B.J.Y.’s recitation of events was corroborated by family
12
members and the forensic interview. But while the non-Spreigl evidence may have been
sufficient for a jury to convict McNally, “it is not clear that the jury [would have] believe[d]
the state’s other evidence.” Ness, 707 N.W.2d at 690 (quotation omitted). The district court
was within its discretion to conclude that the evidence was needed to rebut McNally’s
claim that B.J.Y. fabricated testimony.
2
Having assured itself of the need for the evidence, the court still must consider that
need in light of the potential for undue prejudice. “[T]he overarching concern over the
admission of Spreigl evidence is that it might be used for an improper purpose, such as
suggesting that the defendant has a propensity to commit the crime or that the defendant is
a proper candidate for punishment for his or her past acts.” Id. at 685 (quotation omitted).
Spreigl evidence should be excluded if it is unduly cumulative with the potential to be used
as propensity evidence. Ture, 681 N.W.2d at 16.
McNally argues that the volume of the Spreigl evidence admitted here was unduly
prejudicial and likely to be treated as propensity evidence. He highlights that most of the
state’s exhibits and 6 of the state’s 11 witnesses related to the Spreigl incident. In support
of this argument, he relies on Ture, in which the supreme court reiterated that “courts
should not allow the state, when presenting Spreigl evidence, to present evidence that is
unduly cumulative with the potential to fixate the jury on the defendant’s guilt of the other
crime.” Ture, 681 N.W.2d. at 16.
Outside of that general principle, however, Ture does not support McNally’s cause.
Here, the jury heard from six Spreigl witnesses, whereas in Ture, the jury heard four times
13
that number. Id. And even though the Spreigl evidence in this case constituted a significant
proportion of the overall evidence, the district court was within its discretion to admit it as
relevant to N.M.’s credibility, especially given that McNally testified that N.M.’s
allegations were fabricated as well. The Spreigl evidence supporting N.M.’s recitation of
the events, including the forensic interview video and testimony of N.M.’s mother ,
therefore had significant probative value.
Finally, and in any event, the district court’s repeated cautionary instructions
“lessen[ed] the probability of undue weight being given by the jury to the [Spreigl]
evidence.” State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008); see also State v. Clark, 755
N.W.2d 241, 261 (Minn. 2008) (holding that the district court’s cautionary instructions
regarding permissible uses of Spreigl evidence “minimized” concerns about the potential
for undue prejudice); cf. Buchan, 993 N.W.2d at 626-27 (concluding that any error in
admitting Spreigl evidence was harmless in part because the district court issued a
cautionary instruction before all Spreigl witnesses and before closing). We are not
persuaded otherwise by McNally’s contention that the cautionary instructions were
ineffective because of the volume of the Spreigl evidence. McNally cites no authority
directly supporting that argument. To the contrary, “[w]e presume that jurors follow the
court’s instructions.” Clark, 755 N.W.2d at 261. And here, the district court issued a
detailed instruction on the permissible uses of the Spreigl evidence on each day that the
evidence was presented and before closing, five times in total. This instruction reduced the
risk that the jury used the Spreigl evidence as improper propensity evidence.
14
In sum, we discern no abuse of discretion in the district court’s decision to admit
the Spreigl evidence. The district court appropriately determined that the evidence was
relevant, was highly needed by the state, and that the probative value was not substantially
outweighed by the risk of undue prejudice. Any potential for undue prejudice was mitigated
by the repeated issuance of a detailed cautionary instruction.
II
McNally next argues that the district court erred by sentencing him based on a
criminal-history score that was calculated using a judicially determined offense date in
violation of Blakely v. Washington, 542 U.S. 296 (2004). This presents a question of law
that we review de novo. State v. DeRosier, 719 N.W.2d 900, 903 (Minn. 2006).
McNally raises the Blakely issue for the first time on appeal. But “Blakely rights can
only be waived if the waiver is knowing, intelligent, and voluntary.” DeRosier, 719 N.W.2d
at 902. Although McNally’s trial counsel agreed to have the district court determine the
offense date by a preponderance of the evidence, the record does not reflect that McNally
knowingly, intelligently, and voluntarily waived his Blakely rights. And the state concedes
that McNally did not waive his Blakely rights. Accordingly, we will address McNally’s
argument. See State v. Reimer, 962 N.W.2d 196, 200 (Minn. 2021) (reaching Blakely issue
where the “district court . . . determin[ed] the date of Reimer’s offense without receiving a
Blakely waiver”); see also State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007)
(concluding that, “because a sentence based on an incorrect criminal history score is an
illegal sentence,” a defendant “may not waive review of his criminal history score
15
calculation”). We first decide whether a Blakely violation occurred and then consider
whether any error was harmless beyond a reasonable doubt.
A
Blakely established that a criminal defendant’s Sixth Amendment right to a jury trial
includes the right to be sentenced based only on facts found by a jury and proved beyond
a reasonable doubt. 542 U.S. at 301, 303. A court violates Blakely when it “determines any
disputed fact essential to increase the ceiling of a potential sentence, including factual
findings related to offense dates, without the defendant waiving the right to a jury ’s
determination of that issue.” Reimer, 962 N.W.2d at 198 (quotation omitted). In turn, the
right applies to any facts that affect which presumptive sentence applies. Id. at 198-99.
Here, the district court’s offense-date finding affected whether the two 2004 felonies
had “decayed” for purposes of calculating the criminal-history score. Decayed felonies are
given no weight towards a defendant’s score. Minn. Sent’g Guidelines 2.B.1.c (Supp.
2019). That means zero criminal-history points would have been assigned for McNally’s
two 2004 felonies if the offense date here was after October 20, 2019—the date on which
the second 2004 felony decayed. See id. (providing the rules for when felonies decay).
Because the district court found “that the offense [date] for sentencing was between
August 31st, 2015 and August 30, 2017,” it shortened the end range of the offense date
presented to the jury from December 31, 2019 to August 30, 2017. As a result, the district
court concluded that the felonies had not decayed and assigned one-half point for the
January 7, 2004 felony conviction and one and one-half point for the October 20, 2004
felony conviction. The district court sentenced McNally to a presumptive 91 months in
16
prison based on the criminal-history score of four. Had the offense date extended to the
outer limit of the range presented to the jury, however, both 2004 felonies would have
decayed, McNally’s criminal-history score would have been two, and his presumptive
sentence would have been 60 months. Id.; Minn. Sent’g Guidelines 2.B.1.i. (2015)
(providing that partial felony points are rounded down to the nearest whole number). The
district court’s offense-date finding therefore “increase[d] the ceiling of a potential
sentence” and violated Blakely. Reimer, 962 N.W.2d at 198.
The state’s contrary position—that it may “prove[] by a preponderance of evidence
[a]ppellant’s criminal history score underlying his guideline sentence”—is unavailing. The
state cites State v. Griffin, but that case involved a judicial determination of the fact of a
prior conviction, not a n offense-date determination. 336 N.W.2d 519, 525 (Minn. 1983).
Blakely expressly carves out “the fact of a prior conviction” from its requirement that facts
be determined by a jury and proved beyond a reasonable doubt. 542 U.S. at 301 (quotation
omitted). Griffin is therefore inapposite to the issue at hand. We conclude that the district
court erred in determining the offense date by a preponderance of the evidence.
B
Although the district court violated McNally’s Blakely rights, resentencing is not
appropriate if the error was harmless beyond a reasonable doubt. Reimer, 962 N.W.2d at
198-99. Our close review of the record assures us that, here, the error was harmless beyond
a reasonable doubt and McNally is not entitled to relief.
The circumstances in this case track closely with Reimer. There, the supreme court
held that the district court violated Blakely when it determined that the offense dates
17
relevant to Reimer’s case occurred after August 1, 2006. Id. at 198. Based on that
determination, the district court applied the sentencing guidelines that were in effect after
August 1, 2006, which imposed higher presumptive sentences for each offense. Id.
Nevertheless, the supreme court concluded that the district court’s Blakely violation was
harmless because “there was no evidence presented at trial” that the offense date occurred
before 2010, let alone before August 1, 2006. Id. at 200. That was so even though the
complaint alleged offense dates ranging between 2004 and 2018. Id. at 199. The supreme
court recognized that “[a]n indictment or complaint should be as specific as possible with
respect to time,” but “it is not always possible to know with certainty when an offense or
offenses occurred.” Id. (quoting State v. Waukazo, 269 N.W.2d 373, 375 (Minn. 1978)).
That is “especially true in cases like this where there is a minor victim who does not
complain to the authorities immediately.” Id.
McNally argues that, because the state moved during trial to extend the end range
of the charged offense to December 31, 2019, the district court’s Blakely violation was not
harmless beyond a reasonable doubt. He also points to the prosecutor’s closing argument,
which identified the date range of the offense as August 31, 2015, to December 31, 2019.
We are not persuaded that those aspects of the record create reasonable doubt.
The only trial testimony relating to the date of the offense established that the
offense occurred on or before August 30, 2017, which is well over a year before the 2019
decay dates. B.J.Y. testified that the offense happened when B.J.Y. was eight or nine years
old, which would place the offense date between August 31, 2015 and August 30, 2017.
That date range is consistent with B.J.Y.’s testimony that the 2020 conversations with their
18
grandmother and father took place “a few years” after the offense date. McNally does not
“contest the timeline of events in this case” with any evidence or testimony that contradicts
the district court’s conclusion. Reimer, 962 N.W.2d at 200 n.3. And our review of the
record revealed no such evidence. This case is therefore one of those “unique” cases, id.,
where the Blakely violation does not warrant a remand because “the error was harmless
beyond a reasonable doubt.” Id. at 200.
III
McNally raises two arguments in a supplemental pro se brief. A party that appears
pro se “is held to the standard of an attorney in presenting his appeal.” Francis v. State,
781 N.W.2d 892, 896 (Minn. 2010). McNally’s first argument is substantially similar to
the Blakely issue discussed above, and there is no nuance in the supplemental brief that
requires additional discussion. McNally next argues that “his public defender is refusing to
investigate [his] concerns over the trial record being fraudulent” and laments that he is
unable to make motions related to that issue while represented. But McNally does not
explain what portions of the record before us are fraudulent or inaccurate. See Hecker v.
Hecker, 543 N.W.2d 678, 681 n.2 (Minn. App. 1996), aff’d, 568 N.W.2d 705 (Minn. 1997)
(stating that factual assertions “are to be supported by a cite to the record”). Nor does he
provide applicable authority that would support his requested relief. The authorities he does
cite are inapposite. In light of these deficiencies, and because “prejudicial error is [not]
obvious on mere inspection,” State v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015)
(quotation omitted), McNally’s fraud argument is forfeited.
Affirmed.