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This opinion will be unpublished and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
A16-1052

State of Minnesota,
Respondent,

vs.

Michael Gene Johnson,
Appellant.

Filed May 15, 2017
Affirmed in part, reversed in part, and remanded
Cleary, Chief Judge

Swift County District Court
File No. 76-CR-15-386

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Danielle H. Olson, Swift County Attorney, Benson, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Reilly, Judge.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this appeal from the judgment of co nviction, appellant Michael Gene Johnson
argues that the evidence was insufficient to pr ove that he committed the second-, third-,
and fifth-degree controlled-substance offenses for which he was found guilty and asks this
court to reverse. In the alternative, appella nt requests that his case be remanded to the
district court for resentencing in accordance with the 2016 Drug Sentencing Reform Act
(DSRA). Although we reject appellant’s argum ents, we conclude that the district court
erred by convicting appellant of a charge that was not tried. As a result, we affirm in part,
reverse in part, and remand to the district court to amend the judgment of conviction.
FACTS
In the early morning of Au gust 15, 2015, Officer McAlpin was patrolling in Swift
County and observed a vehicle swerving within its lane. The vehicle crossed the center
line, and its brake lights came on. Officer McAlpin activated his emergency lights to
initiate a traffic stop. After stopping the vehicle, he approached it and obser ved four
people: a male driver, a female passenger, and two children in the back seat.
Officer McAlpin asked appellant, who wa s driving the vehicle, for his name.
Appellant responded Chris John son. After appellant stat ed that he did not have
identification on him, Officer McAlpin asked him to write down his name. Appellant wrote
his name as Christopher Gene Johnson and his date of birth as August 24, 1967, and stated
that he had a North Dakota driver’s license. Officer McAlpin observed that appellant had
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droopy eyelids and slow, thick speech. Appella nt stated that he was not drinking, and
Officer McAlpin did not notice a smell of alcohol on appellant.
Officer McAlpin attempted to verify appe llant’s identity, but was unable to do so.
He again asked appellant for his information. Appellant told him that his name was
Christopher Gene Johnson, but gave a new date of birth of August 26, 1967.
Deputy Hoffman arrived to assist Office r McAlpin. While identifying the female
passenger, Deputy Hoffman detected the odor of marijuana and observed small chunks of
a green, leafy substance on the driver’s seat. After he informed O fficer McAlpin of his
observations, Officer McAlpin spoke with the female passenger. He also smelled
marijuana and observed the chunks of a green, leafy substance on the seat. The female
passenger produced a driver’s license and identified herself as S.S. When asked who the
driver was, she responded that he was Chris Johnson.
Officer McAlpin received Christopher Gene Johnson’s North Dakota driving
record, which included addresses and descript ors of the person. At some point, Officer
McAlpin asked appellant for his address, and the address provided did not match the
address in the record. Officer McAlpin also noted that appellant’s eye color did not match
that reported in the record.
From his observations of appellant, Offi cer McAlpin suspected that he might be
under the influence. Officer McAlpin condu cted field sobriety tests, including a
horizontal-gaze nystagmus test, lack-of-convergence test, walk-and-turn test, one-leg stand
4
test, and Romberg test.1 During the horizontal-gaze nystagmus test, Officer McAlpin did
not observe anything notable. During the lack-of-convergence test, he noted that appellant
was unable to converge his eyes, indicating that appellant might be under the influence of
a controlled substance. He concluded that appellant failed the walk-and-turn test because
appellant broke the starting position, stepped off the line, missed heel to toe, and used his
arms to balance. He observed that appellant swayed and experienced body tremors during
the one-leg stand test, indicating that appella nt might be impaired. Finally, he observed
that appellant experienced body tremors during the Romberg test. After observing
appellant’s performance on the field sobriety tests, Officer McAlpin concluded that
appellant was possibly under the influence of a central-nervous-system stimulant (CNS
stimulant). Appellant’s pulse rate was 138 beats per minute, also indicating that appellant
might be under the influence of a CNS stimulant.
Officer McAlpin arrested appellant and put him in the back seat of his patrol car.
During the course of the investigation, police learned that the vehicle belonged to S.S. and
that the children in the backseat were appellant’s children. Officer McAlpin requested that
S.S. consent to a search of her vehicle, but she did not consent. While talking to S.S.,
Officer McAlpin saw appellant moving in the police car. When Officer McAlpin checked
on appellant, appellant blurted out, “My name is Michael Gene Johnson. I have a warrant
out in North Dakota. Leave my kids alone.”

1 A person who performs a Romberg test tilts hi s head back, closes his eyes, and guesses
the passage of 30 seconds. Drug recognition evaluators use this test to determine if a person
is under the influence.
5
Later that day, police secured a search warra nt and searched S.S.’s vehicle. In the
trunk area of the vehicle, police found a court document from North Dakota bearing
appellant’s name, a digital scal e, and a bag with methampheta mine and marijuana pipes.
On the floor of the front, passenger-side area , police found a scale. Police also took an
eyeglass case from the passenger-side floorboard. Inside the eyeglass case, police found a
bag containing approximately 3.574 gram s of methamphetamine, a bag containing
approximately 1.835 grams of methamphetamine, a methamphetamine smoking device, a
scoop straw, and an oxycodone pill. In the center consol e, police found a Ziploc bag
containing approximately 0.198 grams of methamphetamine, Ziploc bags of various sizes,
and a scoop that field-tested positive for me thamphetamine. On the rear, passenger-side
floor of the vehicle, police f ound a black bag containing sma ll Ziploc bags, a spoon with
methamphetamine residue on it, a wallet with a casino card bearing appellant’s name, and
mail bearing appellant’s name and S.S.’s name. Police also found seven cell phones in the
vehicle.
Appellant was charged with multiple offens es relating to his conduct and the items
found in S.S.’s vehicle. In January 2016, the state voluntarily withdrew count 5, and a jury
trial commenced on the remaining charges. Th e jury found appellant guilty of: count 1 –
second-degree sale of a controlled substance ( possession with intent to sell three or more
grams of methamphetamine); count 2 – third- degree possession of a controlled substance
(methamphetamine); count 3 – storing methamphetamine paraphernalia in the presence of
a child; count 4 – fifth-degree possession of a controlled substance (oxycodone); count 6 –
child endangerment; count 7 – third-degree driving while under the influence of a
6
controlled substance (DWI); count 8 – giving a peace officer a false name; and count 9 –
driving after suspension. The district court entered a judgment of conviction on each count
of which appellant was found guilty, 2 and imposed sentences on counts 1, 7, and 8.
Appellant now challenges the judgment of conviction.
D E C I S I O N
I. Sufficiency of the Evidence
Appellant first argues that the evidence pr oduced at trial was insufficient to prove
that he committed the second-, third-, and fifth-degree cont rolled-substance offenses of
which he was found guilty. “A defendant bears a heavy burden to overturn a jury verdict.”
State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001). When considering a claim of insufficient
evidence, an appellate court reviews the record to determine whether the evidence, viewed
in the light most favorable to the conviction, was sufficient to permit jurors to reach the
verdict that they did. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). In this review,
the appellate court assumes that the jury believed the state’s witnesses and disbelieved any
evidence to the contrary. Id.

2 The state asserts that the district court only entered convictions on counts 1, 7, and 8 and
left the remaining counts unadjudicated. At the sentencing hearing, the district court stated
that it would adjudicate appella nt guilty of counts 1, 7, a nd 8 and retain the remaining
counts. However, the warrant of commitment provides that appellant was convicted of
counts 1, 2, 3, 4, 6, 7, 8, and 9.
Appellate courts “look to the official judgme nt of conviction in the district court file as
conclusive evidence of whether an offense has been formally adjudicated.” Spann v. State,
740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted ). Because the warrant of
commitment provides conclusive evidence of whether an offense has been adjudicated, the
district court adjudicated appellant guilty of counts 1, 2, 3, 4, 6, 7, 8, and 9.
7
Appellant asserts that the evidence was in sufficient to prove that he constructively
possessed the methamphetamine and oxycodone pill found in the eyeglass case. The
second-degree sale and third-degree possessi on statutes under which appellant was tried
required the state to prove that appellant possessed at least three grams of
methamphetamine. Minn. Stat. §§ 152.01, subd. 15a, .022, subd. 1(1), .023, subd. 2(a)(1)
(2014). The fifth-degree possession statute u nder which appellant was tried required the
state to prove that appellant unlawfully possessed a “controlle d substance classified in
Schedule I, II, III, or IV, except a small amou nt of marijuana.” Minn. Stat. § 152.025,
subd. 2(a)(1) (2014). The parties agree that this is a constructive-possession case. To prove
constructive possession, the state was required to show:
(a) that the police found the substance in a place under
defendant’s exclusive control to which other people did not
normally have access, or (b) that , if police found it in a place
to which others had access, there is a stro ng probability
(inferable from other evidence) that defendant was at the time
consciously exercising dominion and control over it.

State v. Florine , 303 Minn. 103, 105, 226 N.W.2d 60 9, 611 (1975). The state was also
required to prove that appellant had knowledge of the nature of the substance. State v. Ali,
775 N.W.2d 914, 918 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010). Proof that
appellant was aware that he possessed a controlled substance satisfies the actual-knowledge
requirement. Id. at 919.
Here, the police found the eyeglass case, and the methamphetamine and oxycodone
pill within it, on the passenger-side floorboard of the vehicle that appellant was driving.
Because S.S. was with appellant in the vehicle, the methamphetamine and oxycodone pill
8
were not found in a place under appellant’s excl usive control. The state was required to
prove that there was a strong probability th at appellant was consciously exercising
dominion and control over the methamphetamine and oxycodone pill.
When the state’s case rests largely or entirely on circumstantial evidence, a court
must apply the circumstantial-ev idence analysis described in State v. Silvernail , 831
N.W.2d 594, 598-99 (Minn. 2013), and State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn.
2010). State v. Sam, 859 N.W.2d 825, 831 (Minn. App. 2015). Because the state relied on
circumstantial evidence to prove appellant ’s possession of the methamphetamine and
oxycodone pill, we apply the circumstantial-evidence analysis here.
Under the circumstantial-evidence standa rd, appellate courts apply a two-step
analysis. Silvernail, 831 N.W.2d at 598. First, we id entify the circumstances proved at
trial, deferring to the jury’s acceptance of the proof of these circumstances and rejection of
evidence that conflicted with the ci rcumstances proved by the state. Id. at 598-99. Like
with direct evidence, we construe the conflic ting evidence in the light most favorable to
the verdict and assume that the jury believe d the state’s witnesses and disbelieved the
defense witnesses. Id. at 599. Stated differently, we consider only those circumstances
that are consistent with the verdict. Id. “ T he s e c on d s t e p i s to determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Id. (quotation omitted). In making this determination, we
review the circumstantial evid ence as a whole and give no deference to the fact-finder’s
choice between reasonable inferences. Id.; Al-Naseer, 788 N.W.2d at 474. The
“[c]ircumstantial evidence must form a complete chain that, in view of the evidence as a
9
whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable inference other than guilt.” Al-Naseer, 788 N.W.2d at 473 (quotation
omitted). The state need not remove all doubt, but must remove all reasonable doubt. Id.
We will not overturn a conviction based on mere conjecture. Id.
Appellant asserts that the state’s only evid ence of his constructive possession of the
drugs was his presence in S.S.’s vehicle. He argues that the mere fact that he was driving
the vehicle was insufficient to prove that he exercised dominion and control over the
controlled substances found in the eyeglass case. Although Minn. Stat. § 152.028 (2014)
permits an inference that a driver knowingl y possesses everything in the vehicle, it does
not negate other reasonable inferences. Sam, 859 N.W.2d at 832 n.4. However, the state
did not rely solely on the fact that appellant drove S.S.’s vehicle, but instead presented
additional evidence to prove appellant’s guilt.
Construing the evidence in the light most favorable to the verdict and assuming that
the jury believed the state’s witnesses, the following circum stances were established.
Appellant drove the vehicle while under the in fluence of a controlled substance. When
police searched the vehicle, they found: (1) a digital scale, a bag with methamphetamine
and marijuana pipes, and a court document fro m North Dakota bearing appellant’s name
in the trunk area; (2) a scale and an eyeglass case, which had within it one bag containing
3.574 grams of methamphetamine, one bag containing 1.835 grams of methamphetamine,
an oxycodone pill, a methamphetamine smoking device, and a scoop straw, on the floor of
the front, passenger-side area; (3) a Ziploc bag containing approximately 0.198 grams of
methamphetamine, Ziploc bags of various size s, and a scoop, which tested positive for
10
methamphetamine when a preliminary test wa s performed, in the center console; (4) a
black bag containing small Ziploc bags, a spoon with methamphetamine residue on it, a
wallet with a casino card bearing appellant’s name, and mail bearing appellant’s name and
S.S.’s name on the rear, passenger-side floor; and (5) seven cell phones in the vehicle.
“Proximity is an important factor in establishing constructive possession.” State v.
Porte, 832 N.W.2d 303, 308 (Minn. App. 2013); see State v. Cusick, 387 N.W.2d 179, 180-
81 (Minn. 1986) (concluding that the eviden ce was sufficient to establish defendant’s
constructive possession of cocaine, despite his girlfriend’s testimony that it was hers, when
the cocaine was found on the ground at a car crash, inches from defendant’s wallet); State
v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000) (explaining that the proximity of the
drugs to defendant’s personal effects supported the inference that defendant possessed the
drugs), review denied (Minn. June 13, 2000). Here, police found methamphetamine
paraphernalia in a black bag that contained mail and a casino card bearing appellant’s
name. Police also found methamphetamine paraphernalia near a document bearing
appellant’s name in the trunk area of the vehicle.
At trial, S.S. testified and disclaimed ownership of the items within the eyeglass
case, the methamphetamine in the center console, the black bag on the rear, passenger-side
floor, and the items within the bag in the trunk area of her vehicle. This court must assume
that the jury believed the stat e’s witnesses and disbelieved an y evidence to the contrary.
Silvernail, 831 N.W.2d at 599; Porte, 832 N.W.2d at 309. We are not permitted to reweigh
the evidence, but must instead defer to the jury’s credibility assessments. State v. Franks,
765 N.W.2d 68, 73 (Minn. 2009); Porte, 832 N.W.2d at 308-09. As a result, we assume
11
that the jury credited S.S.’s testimony and believed that she did not own the items that she
disclaimed.
Appellant argues that it can be reasona bly inferred from the circumstances proved
that he knowingly possessed the parapherna lia and used methamphetamine, but did not
possess the methamphetamine in the eyeglass case. Cons idered as a whole, the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis other than guilt. Given S.S .’s testimony that she did not own the
methamphetamine or oxycodone pill, the amount of drug paraphernalia in the vehicle, the
proximity of appellant’s belongings to such paraphernalia, and the fact that appellant drove
the vehicle while under the influence of a controlled substance, the only reasonable
inference to be drawn is that appellant knowingly possessed the methamphetamine and
oxycodone pill in the vehicle. Because this court will not overturn a conviction based on
mere conjecture or where possibilities of innocence are unreasonable, we conclude that the
evidence was sufficient to establish that appellant knowingly possessed the
methamphetamine and oxycodone found in S.S.’s vehicle.
II. Resentencing Under the DSRA
Appellant next asserts that he is entitle d to be resentenced under the DSRA, which
would reduce his sale-of-a-controlled-substance conviction from a second-degree offense
to a third-degree offense. Appellant was found guilty of second-degree sale of a controlled
substance in violation of Minn. Stat. § 152.022, subd. 1 (2014), for the sale of three or more
grams of methamphetamine.
12
On May 22, 2016, the DSRA was signed into law. 2016 Minn. Laws ch. 160, at
576-592. On August 1, 2016, the sections of the DSRA under which appellant seeks to be
resentenced became effective. 2016 Minn. Laws ch. 160, §§ 4-5, at 579-82. The DSRA
amended Minn. Stat. § 152.022 by, inter alia , raising the threshold weight for second-
degree sale of a controlled substance from three grams to ten grams, provided the offense
does not involve a firearm or three aggravating factors. 2016 Minn. Laws ch. 160, § 4, at
579-80 (codified at Mi nn. Stat. § 152.022, subd. 1 (2 016)). The parties agree that
appellant’s conduct would constitute third-degree sale of a controlled substance in violation
of Minn. Stat. § 152.023, subd. 1 (2016), if the DSRA applied. See 2016 Minn. Laws ch.
160, § 5, at 581 (codified at Minn. Stat. § 152.023, subd. 1 (2016)) (defining third-degree
sale to include the selling of one or more mixtures containing a narcotic drug).
To determine whether the DSRA applies to appellant’s case, this court must
interpret the DSRA. The interpretation of a statute is a question of law that appellate courts
review de novo. State v. Noggle , 881 N.W.2d 545, 547 (Minn. 2016). The purpose of
statutory interpretation is to ascertain and effect the legislature’s intent. State v. Leathers,
799 N.W.2d 606, 608 (Minn. 2011).
The legislature has plainly st ated that “[n]o law shall be construed to be retroactive
unless clearly and manifestly so intended by the legislature.” Minn. Stat. § 645.21 (2016).
Relying on State v. Coolidge, 282 N.W.2d 511 (Minn. 1979), appellant argues that he is
entitled to resentencing in acco rdance with the mitigated p unishment provisions of the
DSRA. In Coolidge, the supreme court held that a defendant, whose conviction was not
final when a statute mitigating punishment took effect in 1977, should have been sentenced
13
under the 1977 statute, which repealed the law under which he was convicted and reduced
the maximum sentence for his conduct. 2 82 N.W.2d at 514-15. The supreme court
reasoned that “it would be harsh for defendant to receive a 10-year sentence in the spring
of 1977, when the legislature was repea ling the statute under which defendant was
convicted and changed the maximum punishment for his act from 10 years to 1 year.” Id.
at 514. It noted that, under the common law, where a criminal law is repealed without a
savings clause, all prosecutions are barred if not reduced to a final judgment. Id. The
supreme court then held that “a statute mitigating punishment is applied to acts committed
before its effective date, as long as no final judgment has been reached.” Id.
Appellant argues that he is entitled to be resentenced under the DSRA because his
judgment of conviction is not yet final. A judgment of conviction becomes final when the
availability of appeal has b een exhausted and the time for a petition for certiorari has
elapsed or the petition has been denied. Hutchinson v. State, 679 N.W.2d 160, 162 (Minn.
2004). Because appellant’s direct appeal fro m the judgment of convi ction is now before
us, the judgment is not yet final. We must determine whether appellant is entitled, under
the supreme court’s opinion in Coolidge, to be resentenced according to the DSRA.
In Edstrom v. State, 326 N.W.2d 10, 10 (Minn. 1982 ), the supreme court clarified
when a statute mitigating punishment is to be applied to conduc t committed before the
mitigating statute’s effective date. In Edstrom, the supreme court was asked to decide
whether a statute that reduced the maximu m sentence that could be imposed for a
defendant’s conduct applied where the de fendant’s conduct occurred before the
ameliorative statute took effect. 326 N.W.2d at 10. The supreme court held that “a statute
14
mitigating punishment is to be applied to acts committed before its effective date, as long
as no final judgment has been reached, at least absent a contrary statement of intent by the
legislature.” Id. (emphasis added). Because the legislature had clearly indicated its intent
that the criminal-sexual-conduct statutes w ould not affect crimes committed before the
effective date of the act, August 1, 1975, the supreme court declined to apply the new
statute to reduce the defendant’s sentence for conduct that occurred in March 1975. Id.
In circumstances similar to Edstrom, this court has declined to apply a statute to
conduct that occurred before the statute took effect. In State v. McDonnell, this court was
asked to determine whether a 2003 statutor y amendment applied to appellants’ conduct,
which occurred before the amen dment’s effective date. 68 6 N.W.2d 841, 842-45 (Minn.
App. 2004), review denied (Minn. Nov. 16, 2004). Because the legislature explicitly stated
that the amendment “is effectiv e August 1, 2003, and applie s to violations committed on
or after that date,” we concluded that the amendment did not apply to appellants’ conduct.
Id. at 846 (quoting 2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 9, § 1, at 1446). Similarly,
in State v. Basal, we were asked to determine whether a 2007 statutory amendment applied
to conduct that occurred in September 2005 wh ere the legislature expressly provided that
the 2007 amendment would become effective Ja nuary 1, 2008. 763 N.W.2d 328, 335-36
(Minn. App. 2009). We declined to apply the amendment, reasoning that the provision of
a specific effective date indicated that the le gislature did not intend for the amendment to
apply to conduct occurring before that effective date. Id. at 336.
Here, the legislature indicated that the se ctions of the DSRA under which appellant
seeks to reduce his sentence are applicable only to crimes committed on or after the act’s
15
effective date. Specifically, the legislature stated that Minn. Stat. §§ 152.022-.023 (2016)
are “effective August 1, 2016, and appl[y] to crimes committed on or after that date.” 2016
Minn. Laws ch. 160, §§ 4-5, at 579-82. This statement clearly provides that the legislature
did not intend for the amendments to apply to conduct occurring before August 1, 2016.
For this reason, appellant is not entitled to resentencing under the DSRA.
III. Conviction upon a Charge Not Tried
Although neither party has rais ed the issue, we note that the district court erred by
convicting appellant of second-degree possession of a controlled substance. Because this
error is obvious from the record, we address it here. See State v. Hannuksela, 452 N.W.2d
668, 673 n.7 (Minn. 1990) (“[I]t is the responsibility of appellate courts to decide cases in
accordance with law, and that responsibility is not to be d iluted by counsel’s oversights,
lack of research, failure to specify issues or to cite re levant authorities.” (quotation
omitted)).
From our careful review of the record, we conclude that neither party objected to
the error in convicting appellant of second-degree possession of a controlled substance.
An appellate court may correct an unobjected-to error only if: “(1) th ere is error; (2) the
error is plain; and (3) the error affect s the defendant’s substantial rights.” State v.
Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). If the first three prongs of the plain-
error doctrine are met, an appellate court “may correct the error only if it seriously affect[s]
the fairness, integrity, or public re putation of judicial proceedings.” State v. Huber, 877
16
N.W.2d 519, 522 (Minn. 2016) (alteration in original) (quotations omitted). Because
neither party objected to the conviction, we review it for plain-error.3
Both the verdict form and th e trial transcript reflect th at the jury found appellant
guilty of third-degree possession of a controlled substance und er count 2. However, the
warrant of commitment erroneously lists co unt 2 as second-degree possession of a
controlled substance. Appellate courts look to the judgment of conviction as conclusive
evidence of whether an offense has been formally adjudicated. Spann, 740 N.W.2d at 573;
State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999). As a result of the error in the warrant
of commitment, the district court convicted appellant of second-degree possession, a
charge that was not tried to the jury. “It is axiomatic that a conviction upon a charge not
made or upon a charge not tried constitutes a denial of due process.” Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct . 2781, 2786 (1979) (citing Cole v. Arkansas , 333 U.S. 196,
201, 68 S. Ct. 514, 517 (1948)). Relying on a verdict form that states that appellant is
guilty of third-degree possession of a controlled substance to enter a conviction of second-
degree possession of a controlled substance is error. Because it is well-settled that a court
may not convict a defendant of a charge that was not tried, the error was plain.

3 Generally, the plain-error doctrine has been a pplied to permit review of errors that were
not objected to at trial. In State v. Maurstad, the supreme court concluded that the plain-
error doctrine did not apply wher e a defendant failed to object to a sentencing error that
rendered his sentence illegal under Minn. R. Cr im. P. 27.03, subd. 9. 733 N.W.2d 141,
147-48 (Minn. 2007). However, the court considered that the plain-error doctrine might
apply to other unobjected-to errors at sentencing. See id. at 148 n.5 (explaining that a
sentencing error does not ipso facto result in a sentence not authorized by law and that the
court’s conclusion that a defendant may not fo rfeit review of his criminal-history score
does not create a broad exception to the plain-e rror rule for sentencing errors). For this
reason, we apply the plain-error doctrine here.
17
We must next determine whether the plai n error affected appellant’s substantial
rights. An error affects substantial rights if it was prejudicial and affected the outcome of
the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Here, the error affected the
outcome of the case as it caused appellant to be convicted of a charge that was not tried.
Because the plain error affected appellant ’s substantial rights, we must determine
whether the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings. We are certain that convicting appellant of a charge that was not tried
seriously affects the fairness, integrity, or pub lic reputation of judicial proceedings. As a
result, we reverse and remand to the district court to amend the judgment of conviction.4
Affirmed in part, reversed in part, and remanded.

4 It also appears that the warrant of co mmitment erroneously lis ted count 7 as second-
degree DWI rather than third-degree DWI. At trial, the district court instructed the jury on
the elements of third-degree DWI. In its instruction, the district court correctly stated that
the jury must find one aggravating factor present and that this required the jury to determine
whether, at the time of the violation, there was a child in the vehicle under 16 years of age
and more than 36 months younger than appellant. See Minn. Stat. §§ 16 9A.03, subd. 3,
.26, subd. 1 (2014).
Count 7 of the verdict form asked the jury to determine two questions. First, the jury was
asked to determine whether appellant was guilty of DWI in the third degree. The jury
found appellant guilty. Second, the jury was asked to determine whether a child, who was
under 16 years of age and more than 36 months younger than appellant, was in the vehicle
at the time of the violation. The jury answered affirmatively. Following the reading of the
verdict, the district court repeated the charges of which the jury found appellant guilty and
stated that “the jury has returned a verdic t for guilty of . . . Dr iving While Under the
Influence of a Controlled Substance in the Third Degree.”
However, count 7 of the warrant of commi tment provides that appellant was convicted
of second-degree DWI. Because it is clear from the record that the jury was properly
instructed on the elements of third-degree DWI and found that all elements were satisfied,
no new trial is necessary. On remand, the distri ct court should correct this apparent error
in the judgment of conviction.