State v. Tomlinson, A18-1522

• Decision Date: 23 December 2019
• Docket Number: A18-1522
• Citation: 938 N.W.2d 279
• Parties: STATE of Minnesota, Respondent, v. Brad Donald TOMLINSON, Appellant.
• Court: Minnesota Court of Appeals

938 N.W.2d 279

STATE of Minnesota, Respondent,

v.Brad Donald TOMLINSON, Appellant.

A18-1522

Court of Appeals of Minnesota.

Filed December 23, 2019

Review Denied February 26, 2020

Keith Ellison, Attorney General, St. Paul, Minnesota; and Aaron Jordan, Stevens County Attorney, Morris, Minnesota (for respondent)

Robert M. Christensen, Robert M. Christensen, P.L.C., Minneapolis, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and Smith, John, Judge.^*

JESSON, Judge

Appellant Brad Donald Tomlinson, accused of criminal sexual conduct toward four young girls after befriending their parents and exploiting their trust, appeals his convictions of criminal sexual conduct involving two of the victims. Tomlinson argues that the district court abused its discretion by admitting evidence of a common scheme or plan in his trials. Because we agree with the state that the appeal from his first convictions is untimely, we review only Tomlinson’s subsequent conviction. And because the district court did not abuse its discretion by admitting evidence of Tomlinson’s common scheme in that trial, we affirm.

FACTS

A woman reported to the police in May 2016 that the man living with her, appellant Brad Donald Tomlinson, had been abusing young girls, including her granddaughters. The police investigated, interviewing four victims and Tomlinson. After the investigation, the state charged Tomlinson with five counts of criminal sexual conduct, including two counts in the first degree and three counts in the second degree. The different counts related to Tomlinson’s different victims. Counts one and two related to Tomlinson’s abuse of J.R., count three related to T.E., count four related to C.S., and count five related to L.M.

We review, in chronological order, the victims’ allegations.¹ The incidents of abuse began in 1986 when the first victim, T.E., was about five years old. Tomlinson and her father, who were close friends, hunted and fished together. T.E. would often wait for them to return after fishing trips. T.E. testified that, on five to seven different occasions, she dozed off at home on the couch while waiting for her father to return and woke up to Tomlinson touching her chest and vagina under her clothes.

Tomlinson’s next victim, J.R., was about nine when the abuse began in 1994. Tomlinson was close friends with her father as well. Both men often went fishing and Tomlinson even brought J.R. on a fishing trip once. J.R.’s father had serious health problems so Tomlinson would often help him out, as he did with J.R., who has a physical disability. J.R. testified that Tomlinson would touch her breasts and vagina over and under her clothes at her home, often while her father was in the next room. Eventually, he penetrated her vagina with his fingers and tongue. The incidents occurred multiple times over five years, according to J.R. She reported that the abuse ended when her father died and she moved.

Tomlinson’s third and fourth victims, C.S. and L.M., were granddaughters of the woman he was living with, who reported the abuse to the authorities in 2016. Both girls would often be around Tomlinson during visits with their grandmother. C.S. reported that in 2004, when she was 11, she went fishing with Tomlinson during a visit to her grandmother’s. After they returned and everyone else was asleep, according to C.S., Tomlinson came up behind her and touched her chest under her shirt for about a minute. C.S. reported that she avoided Tomlinson after that incident.

L.M. reported that when she was spending time at her grandmother’s home in 2008, at around age seven, Tomlinson groped her chest under her shirt. Her grandmother was at home, in another room, when this occurred. L.M. recalled that this happened about five times. After that, L.M. stopped being alone with Tomlinson.

With these factual allegations in mind, we return to the procedural posture of this case. After the charges were filed, at a contested omnibus hearing, the district court dismissed the charge relating to Tomlinson’s abuse of T.E. (count three) because it was outside the statute of limitations.² Then, at Tomlinson’s request, the court severed the counts relating to J.R., C.S., and L.M. for trial. See Minn. R. Crim. P. 17.03, subd. 3(1).

At the first trial, relating to Tomlinson’s abuse of J.R. (counts one and two), the state moved to admit testimony from Tomlinson’s other victims, asserting that their accounts established his common scheme or plan of abuse. After holding an evidentiary hearing, the district court granted the state’s motion and permitted the three other victims, T.E., C.S., and L.M., to testify. The jury found Tomlinson guilty of first-degree criminal sexual conduct toward J.R. on both counts. About five months later, the district court sentenced Tomlinson to 86 months in prison on count one and 110 months on count two, to be served concurrently.

Two weeks after sentencing, the state proceeded with trial on Tomlinson’s abuse of C.S. (count four). Again, the state moved to admit testimony from Tomlinson’s other victims, J.R. and T.E., as evidence of a common scheme or plan.³ The district court held an evidentiary hearing. The state explained that Tomlinson got close to each victim’s family over time, gaining their trust and spending time at their homes, often fishing with the families and the victims. Tomlinson would then position himself to have access to the girls alone. The girls were similar ages when the abuse started—between five and 11. And Tomlinson’s abusive conduct was similar. Following arguments from the state and Tomlinson, the district court granted the state’s request.

Trial continued, and C.S., J.R., and T.E. testified, among other witnesses. And the testimony of the three victims was consistent with the allegations described above. The jury found Tomlinson guilty of second-degree criminal sexual conduct toward C.S. (count four). Tomlinson was sentenced to 21 months in prison, to be served consecutively to his previous sentence. This appeal follows.⁴

ISSUES

I. Is Tomlinson’s appeal from his first convictions untimely?

II. Did the district court abuse its discretion by admitting evidence of Tomlinson’s other bad acts?

ANALYSIS

Tomlinson argues that his convictions should be reversed because the district court abused its discretion by admitting testimony from his other victims at both trials. In response, the state contends that Tomlinson’s appeal relating to the first trial fails as untimely and that, with regard to the second trial, admission of the other victims’ testimony was not an abuse of discretion. Below, we first address the threshold issue of timeliness before turning to the evidentiary dispute.

I. Tomlinson’s appeal from his first convictions is untimely.

The question of whether Tomlinson’s appeal of his first two convictions (counts one and two) is timely is a question of law, which we review de novo. State v. Dorn , 887 N.W.2d 826, 830 (Minn. 2016). To answer this question, we turn to the Minnesota Rules of Criminal Procedure. Tomlinson has a right to appeal any final judgment. Minn. R. Crim. P. 28.02, subd. 2(1). A judgment is final when a defendant is convicted and sentenced. Id. And in a felony case like this, the final judgment must be appealed within 90 days, with an additional 30-day grace period, for good cause.⁵ See id. , subd. 4(3)(a), (g).

Here, Tomlinson was sentenced for his first two convictions on April 11, 2018, and he filed this appeal on September 14, 2018—156 days later. This is well outside the 90-day requirement. His appeal relating to his first convictions (counts one and two) is untimely.⁶

Our decision is driven not only by the wording of rule 28.02, but by Minnesota Supreme Court guidance in a recent decision, State v. Sleen , No. A18-1486 (Minn. Dec. 19, 2018) (mem.). Similar to the posture here, the appellant in Sleen was charged with several counts of criminal sexual conduct, relating to different complainants, that were severed for trial. Sleen , No. A18-1486, at 1 (Minn. Dec. 19, 2018) (mem.). But Sleen took the opposite path of Tomlinson: he sought appellate review after he was sentenced on only one of the severed counts, while the remaining counts were still pending before the district court. Id. at 1-2. Upon review, we concluded that the appeal was premature, reasoning that Minnesota Rule of Criminal Procedure 17.03, subdivision 3, did not permit appeals after final judgments on severed counts and that permitting such appeals would allow interlocutory review. State v. Sleen , No. A18-1486 (Minn. App. Oct. 16, 2018) (order). But the supreme court reversed, reasoning that Sleen’s appeal was permitted because the judgment it challenged was final even though it did not resolve the severed counts. Sleen , No. A18-1486, at 3 (Minn. Dec. 19, 2018) (mem.). The court wrote:

Rule 28.02, subdivision 2(1) gives a defendant the right to appeal from "any adverse final judgment." (Emphasis added). The fact that the final judgment on [one count] did not resolve the severed counts does not determine appealability. The plain language of [r]ule 28.02, subdivision 2(1), authorizes an appeal from "any" final judgment. To conclude otherwise under the facts of this case reads the word "any" out of the rule.

Id.

Still, presented with the 90-day limitation on the right to appeal imposed by rule 28.02, Tomlinson attempts to seek refuge in two different rule provisions. First, he posits that the rules allow other charges joined for prosecution to be included in an appeal. See Minn. R. Crim. P. 28.02, subd. 4(3)(a) ("Other charges that were joined for prosecution with the felony or gross misdemeanor may be included in the appeal."). But we read that subsection of the rule to require that charges once joined for prosecution remain joined. Here, while the charges were originally joined, the counts were later severed at Tomlinson’s request. As a result, the charges were not joined for purposes of...