Stevens County District Court File No. 75-CR-16-207
Ellison, Attorney General, St. Paul, Minnesota; and Aaron
Jordan, Stevens County Attorney, Morris, Minnesota (for
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. [*]
cases where criminal charges are severed for trial and result
in multiple final judgments, each final judgment is
appealable and subject to the timelines in Minnesota Rule of
Criminal Procedure 28.02.
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.
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.
review, in chronological order, the victims'
allegations. 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.
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.
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.
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.
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. 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).
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.
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. 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.
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.
Tomlinson's appeal from his first convictions untimely?
the district court abuse its discretion by admitting evidence