State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0598

State of Minnesota,
Respondent,

vs.

Reginald Oranz Calhoun,
Appellant.

Filed March 6, 2017
Affirmed in part, reversed in part, and remanded
Kirk, Judge

Hennepin County District Court
File No. 27-CR-15-15651

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Reilly , Judge; and Bratvold ,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
A jury found appellant guilty of attempted third-degree criminal sexual conduct,
fourth-degree criminal sexual conduct, and fifth-degree criminal sexual conduct.
2
Appellant requests a new trial, arguing that the district court erred by: (1) denying his two
Batson challenges; (2) allowing the state to present impeachment evidence; and
(3) allowing the state to present rebuttal evidence. Appellant also asks this court to correct
his sentence because the district court erred by entering multiple convictions and by
imposing a lifetime term of conditional release. Because the district court did not err in its
trial rulings, but did err at sentencing, we affirm in part, reverse in part, and remand.
FACTS
On October 27, 2015, appellant Reginald Oranz Calhoun was charged with
attempted third-degree criminal sexua l conduct by force or coercion, fourth-degree
criminal sexual conduct by force or coercion, and fifth-degree criminal sexual conduct—
nonconsensual sexual contact, alleged to have occurred on June 10. The state moved to
impeach appellant with four of his prior felony convictions if he testified at trial. Appellant
opposed the motion.
A jury was impaneled. Following voir dire, appellant raised Batson challenges in
response to two of the state’s peremptory strikes. The district court allowed the state to
strike both jurors. Appellant testified at the three-day trial, and the district court allowed
the state to use two of appellant’s prior felony convictions to impeach him. Appellant
testified that he had a previous sexual encounter with the victim in 2014. In response, the
state presented rebuttal evidence over appellant’s objection. The jury found appellant
guilty of all three counts.
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The district court entered convictions on all three counts and sentenced appellant to
90 months in prison and a lifetime term of conditional release on the attempted third-
degree-criminal-sexual-conduct conviction.
This appeal follows.
D E C I S I O N
I. The district court did not err in denying appellant’s Batson challenges.
When analyzing a Batson challenge, the district court applies a three-part test :
(1) “the opponent of a peremptory challenge [must make] out a prima facie case of racial
discrimination”; (2) “the proponent of the strike [must] come forward with a race-neutral
explanation” for the peremptory challenge; and (3) the district court must then decide
“whether the opponent of the strike has proved purposeful racial discrimination.” State v.
Reiners, 664 N.W.2d 826, 830 (Minn. 2003) (quoting Purkett v. Elem, 514 U.S. 765, 767,
115 S. Ct. 1769, 1770- 71 (1995)); see also Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712 (1986). The district court is in “the unique position . . . to determine, based on all
relevant factors, whether the circumstances of the case raise an inference that the challenge
was based upon race.” State v. White , 684 N.W.2d 500, 506 (Minn. 2004). Appellate
courts give deference to the district court’s rulings on Batson challenges, recognizing that
the record on appeal may not accurately reflect all of the relevant circumstances that may
properly be considered. Id. If a peremptory strike is determined to have been racially
motivated, the appellant is entitled to a new trial. State v. Greenleaf, 591 N.W.2d 488,
500-01 (Minn. 1999).
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“[U]pon review of a district court’s determination under step one of the Batson
process[,] that a prima facie showing of discrimination has not been established, we will
reverse only in the face of clear error.” White, 684 N.W.2d at 507. The mere fact that a
member of a jury panel is a racial minority does not establish a prima facie case of
discrimination. Angus v. State, 695 N.W.2d 109, 117 (Minn. 2005). “Whether the
circumstances of the case raise an inference of discrimination depends in part on the races
of the defendant and the victim.” Id. A district court’s determination of the genuineness
of the prosecutor’s response to a peremptory challenge is entitled to great deference on
review. State v. James, 520 N.W.2d 399, 404 (Minn. 1994). Appellate courts give
“considerable deference” to the district court’s findings because whether a peremptory
challenge was motivated by prohibited discriminatory intent is an issue that typically
requires an evaluation of the prosecutor’s credibility. State v. Johnson, 616 N.W.2d 720,
725 (Minn. 2000); James , 520 N.W.2d at 403-04. Appellate courts must determine
whether the district court “abused its considerable discretion” in determining that a
“prosecutor did not engage in purposeful discrimination.” Johnson, 616 N.W.2d at 725.
A. The district court did not err in denying appellant’s Batson challenge to
the state’s peremptory strike of juror W.F.

W.F., an African-American male, noted on his juror questionnaire that he believes
the Hennepin County jury syste m is unfair, but that he does not know why he holds that
belief. W.F. was first questioned separately from the rest of the panel and he stated that
two years ago, he was falsely accused of theft from a drug store, and that he was searched
by an employee. W.F. said that law enforcement was not involved and that this was not
5
the first time that he had been falsely accused of something. W.F. stated that he could be
a fair and impartial juror.
When W.F. was later questioned with the rest of the panel, he stated that he does
not believe that the criminal justice system is fair because people are prosecuted differently
based on their background and religion. He stated that whether African-Americans are
treated fairly “depends on the situation.” W.F. also said that he believed he could judge a
case without regard to the defendant’s race, but that he was not sure other people could and
that “everything isn’t equal even though at times they try to make it seem like it is.”
The prosecutor exercised one of his peremptory strikes to remove W.F. from the
jury panel. Appellant’s counsel made a Batson challenge, asserting that the prosecutor
struck W.F. from the panel based on W.F.’s race. The district court concluded that because
W.F. was potentially the only African-American who would be seated on the jury,
appellant had made a prima facie showing that the strike was discriminatory. The
prosecutor gave a race-neutral explanation for the strike, stating that W.F. had expressed
concerns that the criminal justice system is unfair and that African-Americans were treated
unfairly, but he could not explain why he had those concerns. The district court accepted
the prosecutor’s explanation as race-neutral. Appellant’s counsel then asserted that the
prosecutor’s explanation was pretextual because other white panelists, specifically K.A.,
had expressed similar concerns. The prosecutor noted that W.F.’s responses were more
evasive than those of other jurors, including K.A., who was able to articulate her concerns
about the fairness of the criminal justice system. The district court agreed with the
6
prosecutor and concluded that his race-neutral explanation was not pretextual. W.F. was
struck from the jury.
On appeal, appellant argues that the prosecutor’s peremptory strike of W.F. was
racially motivated, and he asks this court to order a new trial. Appellant asserts that the
prosecutor’s race-neutral explanation for striking W.F. was pretextual and evidenced
implicit bias. The state argues that the district court erred when it concluded that
appellant’s counsel made a prima facie case of racial discrimination regarding the strike.
The state asserts that appellant’s counsel failed to prove purposeful racial discrimination
in the prosecutor’s strike of W.F . The state notes that Minnesota law does not require an
analysis of possible implicit bias on the part of the prosecutor in a Batson challenge. State
v. Martin, 773 N.W.2d 89, 102-03 (Minn. 2009) (“Our case law under Batson is well
established . . . . We see no reason to extend existing law to include ‘implicit bias.’”).
When a stricken juror is the only member of a racial group on a jury panel, that fact
is sufficient to establish a prima facie case that the juror was struck on the basis of his race.
See State v. Moore, 438 N.W.2d 101, 107 (Minn. 1989) (The “inference of discrimination
can be drawn by proof of disproportionate impact upon the racial group,” such as the total
exclusion of that racial group from the jury). Here, because W.F. was the onl y African-
American on the jury panel, the district court did not err in finding that appellant’s counsel
established a prima facie case of racial discrimination.
In support of his claim that W.F. was stricken from the jury due to race, appellant
argues that the only difference between W.F. and K.A. was race. But K.A. did not state
that she had ever been falsely accused of criminal activity, and the district court found that
7
W.F.’s responses to follow-up questions were evasive, while K.A.’s were not. The district
court’s finding of the prosecutor’s explanation as race -neutral was not clear error. See
James, 520 N.W.2d at 404.
The district court also implicitly found that the prosecutor’s race-neutral explanation
for striking W.F. was credible when it noted that it had made similar observations of W.F.’s
evasiveness. We give great deference to the district court’s conclusion that a peremptory
strike was not motivated by discriminatory intent, and there is no evidence that the court
abused its discretion w hen it found the prosecutor’s explanation to be credible. Johnson,
616 N.W.2d at 725; James, 520 N.W.2d at 403-04. Additionally, as noted above, neither
the district court nor this court is required to attempt to analyze whether the prosecutor
acted out of implicit bias when he struck W.F. Martin, 773 N.W.2d at 102-03. The district
court’s determination that the strike of W.F. was not discriminatory was not erroneous, and
appellant is not entitled to a new trial. Greenleaf, 591 N.W.2d at 500-01.
B. The district court did not err in denying appellant’s Batson challenge to
the state’s peremptory strike of juror H.X.

H.X., an Asian-American male, was first questioned separately from the rest of the
panel. H.X. stated that his brother was falsely accused of shooting and killing his cousin,
and he spent two years in jail waiting for trial. This was very hard on H.X.’s family and
all of his cousins now “hate” his side of the family. H.X. stated that he could be a fair and
impartial juror. When H.X. was questioned further with the rest of the panel, he again
indicated that his brother’s prosecution created tension in his family. H.X.’s brother was
8
prosecuted by the Hennepin County Attorney’s Office in 2003 or 2004. H.X. again stated
that he believed he could be a fair and impartial juror.
The prosecutor exercised one of his peremptory strikes to remove H.X. from the
jury panel. Appellant’s counsel made a Batson challenge, asserting that H.X. was stricken
from the panel based on his race. The district court concluded appellant had made a prima
facie showing that the strike was discriminatory because H.X. is a racial minority . As a
race-neutral explanation for the strike, the prosecutor stated that H.X. was biased against
the state based on his brother’s prosecution by the Hennepin County Attorney’s Office and
his two-year pretrial incarceration. The district court accepted the prosecutor’s explanation
as race-neutral. Appellant’s counsel then asserted that the prosecutor’s explanation was
pretextual. But the district court rejected this argument, citing H.X.’s demeanor and
emotion regarding the effect that his brother’s prosecution had upon his family as
supporting the conclusion that the prosecutor’s explanation was not pretextual. H.X. was
struck from the jury.
On appeal, appellant argues that the prosecutor’s peremptory strike of H.X. was
racially motivated and he asks this court to order a new trial. Appellant asserts that the
prosecutor’s race-neutral explanation for striking H.X. was pretextual and evidence d
implicit bias. Appellant also argues that H.X. was not the only panelist who expressed
concerns about fairness in the criminal justice system. Appellant notes that his case did
not include allegations of racism by law enforcement.
The state argues that appellant’s counsel failed to prove purposeful racial
discrimination in the prosecutor’s strike of H.X., and that an analysis of possible implicit
9
bias on the part of the prosecutor is not required. Additionally, the prosecutor’s concern
was that H.X.’s perceived bias was directed against the Hennepin County Attorney’s Office
for its prosecution of his brother, not against law enforcement.
Appellant’s focus on H.X.’s comments about unfairness in the criminal justice
system does not address the race-neutral explanation tendered by the prosecutor that was
accepted by the district court. H.X. became emotional when discussing his brother’s
prosecution and the prosecutor believed H.X. harbored bias against the state. The district
court agreed that H.X. was still emotionally affected by what had occurred to his brother
and its continuing impact on his family. The district court’s acceptance of the prosecutor’s
race-neutral explanation was not clear error. See Johnson, 616 N.W.2d at 725; James, 520
N.W.2d at 403-04. Additionally, as noted above, neither the district court nor this court is
required to attempt to analyze whether the prosecutor acted out of implicit bias. Martin ,
773 N.W.2d at 102-03. The district court did not err in determining that the prosecutor’s
strike of H.X. was not discriminatory.
Although the district court’s analysis of steps two and three under Batson are sound,
we note that the analysis was not necessary because H.X.’s race alone was ins ufficient to
establish a prima facie case of discrimination. Neither appellant nor the victim in this case,
who is Latina, were of the same race as H.X., and the only support appellant offered to
establish a prima facie case of discrimination was that H.X. was the only person of color
on the panel. As noted above, the fact that a member of the jury panel is a racial minority
does not establish a prima facie case of discrimination absent additional circumstances
10
supporting an inference of discrimination. Angus, 695 N.W.2d at 117. Accordingly, we
conclude that appellant is not entitled to a new trial. Greenleaf, 591 N.W.2d at 500-01.
II. The district court did not err in allowing the state to impeach appellant with
his prior felony convictions.

A distric t court’s ruling on the impeachment of a witness by prior conviction is
reviewed, as are other evidentiary rulings, under an abuse-of -discretion standard. State v.
Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). The state may impeach a defendant testifying
in his own defense with evidence of a prior felony conviction if no more than ten years
have elapsed since the date of conviction or since the defendant was released from
confinement for that conviction, and if the district court determines that the probative value
of admitting the evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1), (b);
State v. Zornes, 831 N.W.2d 609, 626-27 (Minn. 2013) (citing Minn. R. Evid. 609(a)(1),
(b)).
Whether the probative value of a prior conviction outweighs its prejudicial effect is
a matter left to the discretion of the district court. State v. Graham , 371 N.W.2d 204, 208
(Minn. 1985). “Five factors guide the exercise of a district court’s discretion under Rule
609(a).” State v. Hill, 801 N.W.2d 646, 653 (Minn. 2011) (citing State v. Jones, 271
N.W.2d 534, 538 (Minn. 1978)). These factors are:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater the reason for not permitting use of
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.

Jones, 271 N.W.2d at 538.
11

Prior convictions derive their impeachment value from their ability to assist the jury
in seeing the “whole person” and in evaluating his testimony for truthfulness. State v.
Swanson, 707 N.W.2d 645, 655 (Minn. 2006). “[T]he mere fact that a witness is a
convicted felon holds impeachment value.” Hill, 801 N.W.2d at 652. Courts review the
date of conviction and the defendant’s subsequent history in order to determine whether
the prior convictions have lost relevance over time. State v. Vanhouse, 634 N.W.2d 715,
719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). However, “[c]onvictions
that have occurred within the ten- year period are presumptively not stale.” State v.
Williams, 757 N.W.2d 504, 509 (Minn. App. 2008), aff’d, 771 N.W.2d 514 (Minn. 2009).
“[I]f a prior conviction is similar to the crime a defendant is charged with, then the
prejudicial effect of admitting the prior conviction increases.” Zornes, 831 N.W.2d at 627.
“The danger when the past crime is similar to the charged crime is that the likelihood is
increased that the jury will use the evidence substantively rather than merely for
impeachment purposes.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).
“If credibility is a central issue in the case, the fourth and fifth Jones factors weigh
in favor of admission of the prior convictions.” Swanson, 707 N.W.2d at 655. There may
be a greater need for the admission of impeachment evidence in situations that require the
jury to decide the narrow issue of the defendant’s credibility versus the credibility of one
other person. Bettin, 295 N.W.2d at 546.
Appellant opposed the state’s motion for a court order allowing it to impeach him
with four of his felony convictions if he chose to testify at trial. After reviewing the parties’
12
arguments, the district court analyzed the Jones factors and concluded that the first two
Jones factors favored admission of appellant’s prior felony convictions because it was
important that appellant’s “whole person” be presented to the jury, and that the convictions,
which had occurred with in 10 years, had impeachment value. The court also concluded
that the third Jones factor favored admission because all four convictions were for offenses
dissimilar to the current criminal-sexual-conduct charges. The court noted that the fourth
and fifth Jones factors also favored admissibility because credibility was a central issue in
this case.
The district court went on to note its concern about the cumulative prejudicial effect
that all four convictions could have on the jury. It concluded that it would allow the state
to impeach appellant with two of his four convictions. The court allowed appellant’s
second (third-degree sale of a controlled substance) and third (simple robbery) convictions
to be presented to the jury. The district court noted that it was “balancing between the right
of the [s]tate to present the whole person” and “the potential chilling effect on testimony
that would arise from allowing all four convictions to be admitted.” Appellant testified at
trial and answered questions about his convictions during direct- and cross-examination.
Appellant argues that when the district court balanced the state’s right to present the
whole person against the potential chilling effect on appellant’s testimony from admission
of all four convictions, it departed from consideration of all of the Jones factors and it failed
to properly evaluate each conviction’s admissibility. The state asserts that the district court
properly applied the Jones factors and it did not abuse its discretion.
13
The record reflects that the district court first deter mined that each conviction was
admissible under Jones before it concluded that the cumulative effect of all four
convictions could be prejudicial. This was not an abuse of discretion. See Ihnot, 575
N.W.2d at 584.
III. The district court did not err in allowing the state to present rebuttal testimony
regarding whether the victim had a large tattoo on her back.

“Evidentiary rulings rest within the sound discretion of the [district] court and will
not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden
of establishing that the [district] court abused its discretion and that appellant was thereby
prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). “The
prosecutor may rebut the defense evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). “In
general, rebuttal evidence consists of that which explains, contradicts, or refutes the
defendant’s evidence.” State v. Swaney, 787 N.W.2d 541, 563 (Minn. 2010) (quotation
omitted). “The determination of what constitutes proper rebuttal evidence rests almost
wholly in the discretion of the trial court.” State v. Williams, 586 N.W.2d 123, 126 (Minn.
1998) (quotation omitted).
Appellant testified that he had a consensual sexual encounter with the victim in
2014, about a year before the sexual assault. Appellant claimed that he saw the victim
naked, that her “ab area wasn’t great,” that she did not have any distinguishing marks on
her body, and that he did not recall her having any tattoos. He testified that, during his
2014 encounter with the victim, she was nude while she took a shower, but that he did not
notice any tattoos and that she “may have been wearing a shirt.” Appellant then testified
14
that she was wearing at least a shirt in order “to cover [her] ab area that she maybe wasn’t
too proud of.”
After the defense rested, the district court allowed the state to recall the victim as a
rebuttal witness over appellant’s objection. The victim reiterated her previous testimony ,
stating that she had not met appellant before the night of the assault. The victim also
testified that she has four tattoos on her back and shoulders, and that one of them is a large
tattoo of Jesus that is located about one-third of the way down her back. A photograph of
the tattoo was admitted into evidence. The victim testified that she got the large tattoo in
2008.
After the victim testified, appellant’s counsel made a record related to the objection,
asserting that: (1) the rebuttal evidence was not relevant because appellant testified that he
did not know whether the victim had a tattoo, but he did not deny that she had one; (2) the
state committed discovery violations when it contacted the victim without disclosing a
summary of that contact and any photographs taken to appellant’s counsel; and (3) the state
committed a Brady violation by failing to disclose the contact and the photographs of the
victim’s tattoos. The state argued that the information regarding the victim’s tattoos was
impeachment evidence, not exculpatory evidence, and it was not required to be disclosed
prior to trial. The district court did not alter its ruling admitting the rebuttal evidence.
Later, appellant’s counsel renewed her objection to the admission of the rebuttal evidence
in a motion to dismiss or for the court to declare a mistrial. The district court denied
appellant’s motions.
15
Appellant asserts that the district court abused its discretion when it allowed the
state to present its rebuttal evidence and requests a new trial. 1 Appellant argues that
because he never admitted that he had ever seen the victim’s back or claim that she did not
have a tattoo on her back, the victim’s rebuttal testimony did not directly refute his claims
and should not have been admitted. Appellant characterizes his alleged 2014 sexual
encounter with the victim as a “brief sexual encounter” that did not “involve an
examination of [her] physical features, especially on [her] back.”
The state points out that appellant initially testified that during his encounter with
the victim in 2014, she showered and then they had sex and that he did not recall her having
any distinguishing marks or tattoos on her body. The state also notes that, during cross-
examination, appellant changed his testimony to assert that he had not seen the victim
naked and that she may have partially redressed after her shower and before they had sex.
This testimony appears to be inconsistent because appellant initially testified that the
victim’s “ab area” was not great, but he later claimed that he had never seen her shirtless.
Rebuttal evidence may be admitted to show that the defense’s version of events is
untrue. See, e.g., Williams, 586 N.W.2d at 127. At trial, appellant claimed he had a lengthy
and intimate sexual encounter with the victim in 2014, despite the victim’s testimony that
she met appellant for the first time on the night of the sexual assault in 2015. Based on this
conflicting testimony, as well as inconsistencies in appellant’s testimony, the district court

1 Appellant noted in his appellate brief that at trial he made a motion for a mistrial because
the state failed to disclose its rebuttal evidence prior to trial. Appellant does not present
any legal argument or analysis related to this issue on appeal, and it is not properly before
the panel. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).
16
did not abuse its discretion in allowing the state to present its rebuttal evidence, and
appellant is not entitled to a new trial. Amos, 658 N.W.2d at 203.
IV. The district court erred in sentencing appellant.

The jury found appellant guilty of all three counts. The district court also entered
convictions on all three counts. At sentencing, the parties agreed that appellant should only
be sentenced on one count. The prosecutor argued that appellant should be sentenced on
the fourth-degree criminal-sexual-conduct conviction, asserting that this conviction was
the most severe offense appellant was convicted of because it was a completed offense
rather than an attempt. Appellant argued that the district court was required to sentence on
the attempted third -degree criminal-sexual- conduct conviction because it carried the
highest severity level. In choosing to impose sentence on the third-degree criminal-sexual-
conduct conviction, the district court noted that appellant would have a shorter prison
sentence, but he would be subject to a lifetime term of conditional release. The district
court sentenced appellant to 90 months in prison and a lifetime term of conditional release,
and the court did not sentence appellant on any other count.
A. The district court erred when it entered convictions on all three counts.

Minn. Stat. § 609.04, subd. 1 (2014), provides that a person “may be convicted of
either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd.
1(4), defines “[a]n included offense” as “[a] crime necessarily proved if the crime charged
were proved.” Additionally, “[w]hen the defendant is convicted on more than one charge
for the same act the court is to adjudicate formally and impose sentence on one count only.”
Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (alterations omitted) (quotation
17
omitted); State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Whether the district
court erred by formally adjudicating multiple convictions is a question of law, which this
court reviews de novo. See State v. Ferguson , 729 N.W.2d 604, 618 (Minn. App. 2007),
review denied (Minn. June 19, 2007).
Appellant argues that the fourth-degree criminal-sexual-conduct conviction and the
fifth-degree criminal-sexual-conduct conviction, are lesser-included offenses to attempted
third-degree criminal sexual conduct. Appellant asserts that because those counts are
lesser-included offenses, the district court erred when it entered convictions on those two
offenses. Appellant asks this court to vacate those convictions. The state argues that all
three counts stem from the same behavioral incident and that the district court should only
have entered a conviction on one of the three counts. The state asks this court to remand to
the district court to vacate whichever two counts the court does not intend to sentence on.
The parties correctly note that the district court erred when it entered conviction on
all three counts. Minn. Stat. § 609.04, subd. 1; Spann, 740 N.W.2d at 573. It is not
necessary here to determine whether any of these offenses are less er-included offenses
because all three stem from the same act and the district court should therefore have only
entered conviction on one count. Spann, 740 N.W.2d at 573. We remand to the district
court so the adjudications of guilt, but not the jury’s findings of guilt, can be vacated on
two of the three counts. LaTourelle, 343 N.W.2d at 284.
18
B. The district court erred when it sentenced appellant to a lifetime term of
conditional release on the attemp ted third -degree criminal -sexual-
conduct conviction.

“Interpreting a sentencing statute is a question of law, which we review de novo.”
State v. Noggle, 881 N.W.2d 545, 547 (Minn. 2016). This court may correct a sentence
not authorized by law at any time. Minn. R. Crim. P. 27.03, subd. 9. An attempted offense
is not subject to a lifetime term of conditional release. Minn. Stat. § 609.3455, subd. 7(b)
(2014); see also Noggle, 881 N.W.2d at 547.
Appellant argues that the district court erred when it imposed a lifetime conditional-
release term when it sentenced him on his attempted third-degree criminal-sexual-conduct
conviction. He asks this court to vacate the term of his conditional release. The state agrees
that the imposition of a lifetime term of conditional release for an attempted offense was
improper, but requests that this court remand to the district court for resentencing on the
fourth-degree criminal-sexual-conduct conviction because it is a more severe offense.
In determining which of the multiple offenses is the most severe, it is appropriate
for the district court to consider the length of each associated sentence, the severity level
of each offense according to the sentencing guidelines, the maximum potential sentence of
each offense, the nature of each offense, and to conduct an analysis of which offense
formed the “essence” of the behavioral incident. State v. Kebaso, 713 N.W.2d 317, 322-
23 (Minn. 2006). Here, after improperly entering conviction on all three counts, the district
court decided that a shorter sentence was appropriate for appellant in part because he would
be subject to a lifetime term of conditional release.
19
The district court must vacate two of appellant’s convictions on remand, and it is
also appropriate for the court to consider the factors set out above before choosing which
offense to resentence on. Regardless of which conviction the district court ultimately
leaves in place and sentences on, the court cannot impose a longer period of confinement
than the original 90 months in prison. Minn. R. Crim. P. 27.03, subd. 9.
V. Appellant’s pro se arguments are not properly before this court.
Issues not briefed on appeal are not properly before the appellate court. State v.
Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).
Appellant raises the following issues in his pro se supplemental brief: ineffective
assistance of trial counsel, unfair trial management, insufficient evidence, newly
discovered evidence, and prosecutorial misconduct. In support of these claims, appellant
makes mostly factual and credibility assertions. Although he occasionally cites to caselaw,
the relevance of those citations is not readily apparent and he fails to conduct any legal
analysis. Because appellant failed to adequately brief these issues, we deem them forfeited
and decline to reach them on appeal. See State v. Krosch, 642 N.W.2d 713, 719 (Minn.
2002) (“The brief contains no argument or citation to legal authorit y in support of the
allegations and we therefore deem them waived.”).
Affirmed in part, reversed in part, and remanded.