This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-1187

State of Minnesota,

Respondent,

vs.

Otis Ray Mays,

Appellant.

Filed April 6, 2015

Affirmed

Stauber, Judge

Hennepin County District Court

File No. 27CR1140555

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief State Appellate Public Defender, Davi E. Axelson, Assistant 

State Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and 

Hooten, Judge. 
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U N P U B L I S H E D O P I N I O N

STAUBER, Judge

In a postconviction appeal challenging his convictions of attempted second-degree 

burglary and possession of burglary tools, appellant argues that (1) the district court 

abused its discretion by admitting police officer testimony that appellant was 

apprehended while he “was attempting to burglarize [a] home”; (2) appellant’s trial 

counsel was ineffective for failing to move to suppress warrantless evidence obtained 

from an initial search of appellant’s cellphone; and (3) the district court abused its 

discretion by refusing to exclude evidence of the contents of appellant’s cellphone that 

was obtained after issuance of a search warrant. We affirm.

FACTS

At about 9:00 a.m. on the morning of November 8, 2011, K.S. was looking out of 

her kitchen window in Robbinsdale when she “saw a person in my next door neighbor’s 

back yard looking in the window, fidgeting around the window.” K.S. thought the 

conduct looked “very suspicious,” so she verified that the neighbor was not expecting 

anyone and then called 911. The person disappeared for about five minutes but then 

reappeared at a house two down from K.S.’s, and she saw the person again “fidgeting 

around” at the window of that house. K.S. had no doubt that it was the same person. As 

K.S. saw the person attempt to climb onto the upper deck of the second neighbor’s house, 

she again called 911. Police arrived during the 911 call, and K.S. directed them to the 

proper house and saw them arrest the person she had been watching throughout the 

incident. K.S. observed no other persons in the area. 
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Robbinsdale Police officers Jon Gates and Robert Kaehn responded to the 911 

call. When Gates came upon appellant Otis Ray Mays in the back yard, appellant was 

standing at the ground level of the home, “right next to [the window,]” with a “wide 

stance,” and “a crowbar in his hands” that was “right up against the window” as if he 

“was about to pry the window open.” When Gates searched appellant, he found a 

hammer and flat Drywall tool/knife in his backpack and latex gloves in appellant’s back 

pocket. Appellant was also wearing a pair of gloves when he was apprehended. 

At appellant’s trial on charges of attempted second-degree burglary and possession

of burglary tools, Gates testified that the crowbar, knife, and hammer could be used to 

commit burglaries. When the prosecutor asked him, “[W]hat was [appellant] doing when 

you caught him?,” Gates replied, “I feel that he was attempting to burglarize the home.” 

Defense counsel’s objection was overruled. Gates was also allowed to testify over an 

objection that appellant had some texts on his cellphone, one of which indicated that at a 

nearby address the front door of the house was open. After appellant’s arrest, Gates went 

to that address and verified that the front door of the house was open. 

Police obtained a warrant to search the contents of appellant’s cellphone. 

According to Investigator Steven Cole, the cellphone contents included a series of 

incriminating

[t]ext messages that appeared to be sent by [appellant] 

to himself. They . . . included residences in Robbinsdale and 

notes like indicating if there was an open door, cars in the 

driveway. There were mentions of big screen TVs, Wiis, 

things that would be of interest to someone that was a burglar.
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A transcription of some of the text messages was received into evidence at trial. 

Referring to a burglary, one of appellant’s text messages said, “I got a lick right now 

super sweet.” 

Two witnesses gave alibi testimony for appellant. They stated that they were 

forced into participating in burglaries by a third person and that appellant became aware 

of what was happening, showed up at the scene before police arrived, and told the others 

to leave. A minister and two police officers also testified to appellant’s good moral 

character. Appellant did not testify.

The jury found appellant guilty of both charged offenses. The district court stayed 

imposition of sentence, placed appellant on probation for three years, and ordered him to 

serve 90 days in the workhouse. Appellant’s direct appeal was stayed to permit him to 

seek postconviction relief. 

At a postconviction evidentiary hearing, appellant’s trial counsel testified that at 

the time of trial she was unaware of State v. Barajas, 817 N.W.2d 204 (Minn. App. 

2012), review denied (Minn. Oct. 16, 2012), which makes the contents of cellphones 

subject to Fourth Amendment privacy protections. Trial counsel decided not to challenge 

the initial search of appellant’s cellphone because the parties were engaged in plea 

negotiations, the prosecutor had agreed to reduce the burglary charges to a gross 

misdemeanor level, and counsel “didn’t think that even if the phone records were 

suppressed that that would be dispositive in the case.” According to the police report, 

which was offered postconviction, appellant’s phone rang repeatedly when Officers 

Gates and Kahn were conducting an inventory of appellant’s property post-arrest. 
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Officer Kaehn “unlocked the screen of the cell phone to shut it off [and] observe[d] a text 

message which [appellant] had sent to himself.” The message included a “long list” of 

Robbinsdale addresses and, in some cases, whether vehicles were parked in the 

driveways, and in one case, that there was an “open door” at the address. 

The district court denied appellant’s postconviction petition, ruling that trial 

counsel’s failure to challenge the validity of the initial search of the cellphone was a 

tactical decision, and that even if trial counsel had brought a motion to suppress the 

cellphone evidence, it was not reasonably likely to have been successful because, unlike 

in Barajas, the evidence obtained from appellant’s cellphone was in plain view and did 

not involve “key strokes made by Kaehn to navigate the cell phone’s digital contents and 

thus no violation of the Fourth Amendment [occurred].”

This appeal followed.

D E C I S I O N

I. Evidentiary Ruling on Police Testimony

Appellant challenges the district court’s decision to admit Officer Gates’ 

testimony that when he came upon appellant, he believed that appellant “was attempting 

to burglarize the home.” In an appeal challenging an evidentiary ruling, this court will 

reverse only for a clear abuse of discretion. Bernhardt v. State, 684 N.W.2d 465, 474 

(Minn. 2004). “A defendant claiming he is entitled to a new trial because the district 

court abused its discretion in admitting evidence over his objection must show both an 

error and prejudice resulting from the error.” State v. Hohenwald, 815 N.W.2d 823, 835 

(Minn. 2012). If the evidentiary error is not a constitutional violation, the “defendant 
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must show that the error substantially influenced the verdict in order to obtain a reversal.” 

Id. 

Officer Gates’ testimony encompassed a legal conclusion to be decided by the 

jury—whether appellant’s conduct constituted an attempt to commit burglary. See State 

v. Vang, 774 N.W.2d 566, 578-79 (Minn. 2009) (ruling police officer testimony that 

defendant’s activities constituted a “pattern of criminal behavior” was an expression of a 

legal opinion and “invaded the province of the jury”); State v. Valtierra, 718 N.W.2d 

425, 434-35 (Minn. 2006) (prohibiting admission of testimony about a legal conclusion 

or about mixed questions of law and fact). The district court abused its discretion by 

admitting this evidence. However, the evidence of appellant’s guilt was very strong. 

Appellant was apprehended by police while carrying burglary tools and attempting to 

break into a house, and an eyewitness testified that she had watched him attempt to

forcibly enter two of her neighbor’s homes. Under these circumstances, the officer’s 

improper testimony that appellant’s conduct amounted to attempted burglary could not 

have substantially convinced the jury to convict. 

II. Ineffective Assistance of Trial Counsel

Appellant next claims ineffective assistance of trial counsel due to counsel’s

failure to object to incriminating warrantless evidence obtained from appellant’s

cellphone at the time of his arrest. To be successful in this claim, appellant needed to 

show that his attorney’s representation “fell below an objective standard of 

reasonableness” and that but for the attorney’s conduct, the result would have been 

different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 
7

2068 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (adopting Strickland 

standard). “When a defendant initially files a direct appeal and then moves for a stay to 

pursue postconviction relief, we review the postconviction court’s decisions using the 

same standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836 

(Minn. 2012). This court reviews ineffective-assistance-of-counsel claims de novo. 

Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

As to the first Strickland prong pertaining to the quality of trial counsel’s 

performance, an attorney is required to know the current law, and here, counsel did not. 

We therefore cannot conclude that the attorney’s failure to object to admission of the 

cellphone evidence was grounded in trial strategy. But it is also unclear under the facts 

of this case whether the cellphone evidence would be inadmissible under Barajas. 

Barajas holds that a defendant has a constitutional reasonable expectation of privacy in 

cellphone contents that are concealed from the plain view of police by a cellphone’s 

internal memory. 817 N.W.2d at 213-14. The facts here suggest that some of the 

information initially obtained by police was in plain view, at least within the parameters 

discussed in Barajas. Barajas identifies differing expectations of privacy for cellphone 

contents that are not made public and can only be accessed by “deliberate[ly] [making] 

key strikes and [requiring] navigat[ion] [of] the cellular telephone’s digital contents” and 

cellphone contents that are “expose[d] . . . to the public or the police.” Id. at 214. 

Respondent argues that the text message discovered by police does not fall within the 

privacy protections because appellant’s cellphone was unlocked by police only for the 

purpose of turning off the cellphone, and during that time a single message flashed on the 
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screen. But the quantity of evidence obtained by police during this process, including a

significant list of residential addresses, suggests that some additional “navigation” on the 

cellphone occurred. The quantity of evidence obtained suggests a search beyond what 

would be in the officers’ plain view on a small cellphone screen. 

However, while we are troubled that police likely exceeded the scope of a plainview search, we need not reach the admissibility of the cellphone evidence because, even 

without that evidence, other admissible evidence firmly supports a conviction for 

purposes of the second Strickland prong. See State v. Rhodes, 657 N.W.2d 823, 842 

(Minn. 2003) (stating that a reviewing court need not address both Strickland prongs if 

one is dispositive). Again, police apprehended appellant as he was using a crowbar to 

attempt to gain entry to a residence. He had been seen by a neighbor doing the same 

activity at that house and another house. And, there was no question as to his identity. 

When apprehended, appellant had burglary tools and latex gloves on his person. The 

neighbor saw no others about in the neighborhood. On these facts, there is no showing 

that the result would have been different without the claimed ineffective representation of 

appellant’s trial attorney. 

III. Evidentiary Ruling on Contents of Cellphone

Appellant also argues that the district court abused its discretion by admitting 

evidence of his other bad acts or crimes that were established by the contents of his 

cellphone; this evidence was obtained after police executed a valid search warrant. At 

trial, appellant’s counsel objected to Officer Gates’ testimony about what his partner, 

Kaehn, had initially seen on the text messages, arguing that the evidence was hearsay, 
9

irrelevant, and “uncharged Spreigl.”1 The district court permitted Gates to testify about 

seeing the initial text message that identified other houses in the neighborhood that 

appellant had apparently cased, including one house in which the door was open, ruling 

that the evidence was relevant to show the state’s theory of the case: that appellant was 

casing residences in Robbinsdale to commit burglaries. The district court did not address 

whether the evidence was inadmissible evidence of appellant’s other bad acts. When the 

state later sought to introduce the contents of appellant’s cellphone, defense counsel did 

not object.

Whether the evidence is subject to the plain-error rule because appellant failed to 

object to its admission or to the harmless-error rule because appellant’s earlier objection 

was sufficient to constitute a Spreigl objection, the district court did not abuse its 

discretion by admitting the evidence. See State v. Ness, 707 N.W.2d 676, 685 (Minn. 

2006) (applying abuse-of-discretion standard of review to other-crimes evidence). 

Generally, evidence of other bad acts is inadmissible under Minn. R. Evid. 404(b) Id. 

(stating that 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). But 

“[i]mmediate-episode evidence is a narrow exception to the general character evidence 

rule.” State v. Riddley, 776 N.W.2d 419, 425 (Minn. 2009). Under this exception, the 

state may offer “any evidence which is otherwise relevant upon the issue of the 

defendant’s guilt of the crime with which he was charged,” including all relevant 

 

1

State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), sets forth parameters for 

admissibility of other crimes or “bad acts” evidence. 
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evidence that tends to prove the elements of the offense, “even though such facts and 

circumstances may prove or tend to prove that the defendant committed other crimes.” 

Id. (quotations omitted). Such evidence must be linked in “point of time or 

circumstances” so that “evidence of other crimes constitutes part of the res gestae,” which 

the supreme court defined as “the events at issue, or other events contemporaneous with 

them.” Id. at 425 & n.2 (quotation omitted). The supreme court has “repeatedly affirmed 

the admission of immediate-episode evidence when there is a close causal and temporal 

connection between the prior bad act and the charged crime.” Id. 

Here, the evidence included that contemporaneously with the charged offense, 

appellant was casing other houses in the neighborhood of the burglary. This evidence 

was relevant to show motive and intent to commit the attempted burglary and provided 

evidence that tended to prove that the items appellant carried were burglary tools. The 

causal and temporal connections to the charged crimes in this case were very close. The 

district court did not abuse its discretion by admitting this evidence. Further, under either 

the harmless-error or plain-error standards, the evidence would have not affected the trial 

outcome. 

Affirmed.