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This opinion will be unpublished and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
A16-1415

State of Minnesota,
Respondent,

vs.

Mitchell Thomas Ellis,
Appellant.

Filed August 28, 2017
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-16-862

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

Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, 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 Reyes, Presiding Judge; Bjorkman, 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
BJORKMAN, Judge
Appellant challenges his conviction of second -degree assault, arguing the district
court erred by (1) not requiring the state to file a written amended complaint,
(2) determining he could be impeached with evidence of prior felony convictions,
(3) giving an adverse -inference instruction, (4) not permitting the jury to listen to a 911
call during deliberations, (5) denying his motion for a downward durational departure, and
(6) convicting him on two counts. We affirm.
FACTS
On January 9, 2016, C.S. called 911 to report that her upstairs neighbor, appellant
Mitchell Thomas Ellis, brandished a large knife at her. She reported Ellis “just pulled a
knife out,” was acting “crazy,” and “look[ed] like the devil.” When responding
Minneapolis police officer Garrett Parten arrived at Ellis’s apartment, the door was open
and he saw Ellis standing inside. He observed a la rge knife within Ellis’s reach. Officer
Parten arrested Ellis and collected the knife as evidence.
On January 11, Sergeant David Hansen interviewed C.S. She told Sergeant Hansen
that on January 9 she and Ellis were having “a beer or two” outside their duplex. Ellis went
upstairs to his apartment and then “just flipped out.” C.S. told Sergeant Hansen she went
upstairs to tell him to quiet down. When Ellis answered the door , he was holding a knife
and said, “this isn’t about you but I will kill you to o.” Sergeant Hansen later interviewed
Ellis. He confirmed he and C.S. were drinking together and that he later became upset and
was “throwing things around” and yelling. But he denied threatening C.S. with a knife.

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He explained that he had been handling the knife earlier that day to fix a Conair hair clipper
because he did not want to use a screwdriver.
Respondent State of Minnesota charged Ellis with making threats of violence. On
February 8, the district court held an omnibus hearing. The state indicated that if the matter
proceeded to trial it would amend the complaint to add a charge of second -degree assault.
On May 9, the district court held a pretrial hearing, during which the state moved to add a
second-degree-assault charge. The district court granted the motion, and also determined
Ellis could be impeached with evidence of his five prior felony convictions should he
choose to testify at trial.
On May 9-11, the district court held a jury trial. Ellis did not testify. The jury found
him guilty on both charges. Ellis moved for a downward durational departure. The district
court denied the motion and sentenced Ellis to 51 months in prison on the assault offense.
Ellis appeals.
D E C I S I O N
I. The district court did not abuse its discretion by permitting the state to amend
the complaint immediately before trial.

The state may move to amend a complaint at any time before the commencement of
trial. Minn. R. Crim. P. 3.04. A district court has discretion to permit amendment to
include additional offenses before trial provided it allows continuances where needed.
State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). Where, as here, defense counsel did not
object to the state’s moti on to amend the complaint , we review the issue for plain error.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under a plain-error analysis, we must

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determine if there is error, that is plain, and affected appellant’s substantial rights. Id. The
appellant bears the heavy burden of establishing he was prejudiced by the error. Id. at 741.
Ellis makes four plain-error arguments, none of which we find persuasive.
First, Ellis argues that the district court plainly erred because the initial complaint
did not contain probable cause to support the second-degree-assault charge. Second-degree
assault occurs when an individual uses a dangerous weapon and acts with the intent of
causing another fear of immediate bodily harm or death. Minn. Stat. §§ 609.02, subd. 10,
.222, subd. 1 (2014). The complaint indicates that police officers responded to reports of
an assault and C.S. then reported that Ellis “threatened her with a knife” and while holding
the large knife “said he was going to kill her.” Because this provides probable cause that
Ellis committed second-degree assault , we discern no error by the district court by
permitting the state to amend the complaint.
Second, Ellis asserts that the state was required to file a new written complaint that
included the assault charge . We disagree. Ellis cites Minn. R. Crim. P. 3.04, subd. 2 ,
which provides that “[p]re-trial proceedings may be continued to permit a new complaint
to be filed . . . if the prosecutor promptly moves for a continuance” and that “[i]f the
proceedings are continued, the new complaint must be filed and process promptly issued.”
But the district court did not continue the proceedings after granting the state’s motion .
Accordingly, Minn. R. Crim. P. 3.04 does not support Ellis’s assert ion that the state was
required to file a written amended complaint.
Third, Ellis argues that he was prejudiced by the late amendment. In Nelson v. State,
407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987), w e held

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that a defendant is not prejudiced by amendment of a complaint on the day of trial if the
new charge “arose from the same conduct” as the other offense. See State v. Mickelson,
378 N.W.2d 17, 19 -20 (Minn. App. 1985) (determining district court did not abuse its
discretion by amending complaint on first day of trial and then proceeding without a
continuance), review denied (Minn. Jan. 23, 1986). That is the situation here. The second-
degree-assault charge plainly arose from the same conduct alleged in the origina l
complaint. And defense counsel did not seek a continuance or object . Rather, counsel
indicated that, depending on the evidence, he may request that the jury be instructed on the
lesser-included offense of attempted second-degree assault.
Finally, Ellis argues that his counsel was ineffective for failing to object to addition
of the second -degree-assault charge. To prevail on his ineffective-assistance-of-counsel
claim, Ellis must demonstrate “(1) that his counsel’s representation ‘fell below an objective
standard of reasonableness’; and (2) ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedin g would have been different.’” Nissalke
v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S. 668,
688, 703, 104 S. Ct. 2052, 2064, 20 72 (1984)). As discussed above, we see no error —
plain or otherwise—by the district court in permitting the amendment. Accordingly, Ellis
has not shown that , but for the alleged ineffective representation, the result would have
been different.

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II. The district court did not abuse its discretion by permitting the state to
impeach Ellis with evidence of his prior felony convictions.

A district court may admit evidence of a defendant’s prior fe lony convictions for
impeachment if “the probative value of admitting this evidence outweighs its prejudicial
effect.” Minn. R. Evid. 609(a)(1) . In determining whether the probative value of a
conviction outweighs its prejudicial effect, the district court must consider
(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.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). We review a district court’s ruling on
the admissibility of a def endant’s prior convictions for abuse of discretion. State v.
Swanson, 707 N.W.2d 645, 654 (Minn. 2006).
Ellis argues that after determining each felony conviction could be admitted for
impeachment purposes,1 the district court should have then considered whether admitting
all five prior felony convictions would be overly prejudicial. We are not persuaded.
Contrary to Ellis’s assertion, Minnesota law does not require district courts to conduct a

1 Ellis does not argue that the district court failed to properly analyze the Jones factors on
the record, but the state concedes the district court failed to do so. Our review of the record
persuades us this error does not require reversal. In Swanson, the district court failed to
analyze the Jones factors, but the supreme court determined that reversal was unnecessary
because the factors plainly weighed in favor of admitting the prior convictions. 707
N.W.2d at 654 -55. The same is true her e. Ellis’s prior convictions have impeachment
value because they allow the jury to see the “whole person,” the district court limited
potential prejudice by ruling the nature of the offenses would not be admitted, and
credibility was a central issue. On this record, the Jones factors plainly weigh in favor of
admitting the prior convictions.

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post-Jones prejudice analysis. Minnesota courts recognize that potential prejudice is part
of the Jones framework. See, e.g., State v. Zornes, 831 N.W.2d 609, 627 (Minn. 2013)
(stating that Jones established “five factors relevant to determining if a prior conviction is
more probative than prejudicial” ). In Swanson, the defendant challenged the district
court’s admission of his five prior felony convictions for impeachment purposes. 707
N.W.2d at 653. In affirming the district court, our supreme court analyzed the Jones factors
with respect to each o f Swanson’s five felony convictions; the court did not separate ly
analyze whether admission of the convictions, in the aggregate, would be overly
prejudicial. Id. at 654-56. Because Ellis points to no legal authority for the proposition
that a district court must conduct a post-Jones analysis, and we have found none, we discern
no abuse of discretion by the district court.
III. The district court committed harmless error by giving an adverse -inference
instruction.

At the conclusion of the trial, the district court instructed the jury , “The defendant
has the right not to testify. This right is guaranteed by the federal and state Constitutions.
You should not draw any inference from the fact that the defendant has not testified in this
case.” The state conce des that the district court erred because Ellis requested that the
instruction not be given. But this error does not require reversal unless Ellis demonstrates
that “the facts of th is case make the error prejudicial” and “me[ets ] his heavy burden of
showing that there is a reasonable likelihood that giving the instruction had a significant
effect on the jury’s verdict.” State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).

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Ellis contends that the instruction had a significant imp act on the verdict because
the evidence against him was not strong. This argument is unavailing. To support his
argument, he highlights inconsistencies in C.S.’s statements and testimony, as well as other
witnesses’ testimony that is in conflict with C.S.’s. He also notes that the knife was never
tested for DNA. But he does not explain how these facts demonstrate the adverse-inference
jury instruction significantly impacted the jury. He merely offers the conclusory statement
that “erroneously highlight ing to the jury that [he] did not testify would certainly have
affected the verdict.” But it would have been plain to the jury that he did not testify. On
this record, Ellis failed to meet the “heavy burden” of establishing the erroneous jury
instruction likely had a significant impact on the jury’s verdict.
IV. The district court did not commit plain error by not permitting the jury to
listen to the 911 call during deliberations.

A district court has broad discretion to determine whether to grant a deliberating
jury’s request to review evidence, and will not be reversed absent an abuse of discretion.
State v. Everson, 749 N.W.2d 340, 345 (Minn. 2008). During deliberations, the jury asked
to review the transcript of C.S.’s 911 call. The district cour t denied the request. Ellis
concedes that defense counsel did not object to the district court’s ruling and therefore this
issue is subject to plain-error review. Accordingly, we must determine if there was error,
that was plain, and affected Ellis’s substantial rights. Griller, 583 N.W.2d at 740.
The record indicates the jury did not ask to have the 911 call played again; it asked
to review the transcript of the call. The parties agreed the district court should not provide

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the transcript because it was not admitted into evidence.2 Although the district court further
observed that it did not have a way to replay the evidence, any error in that analysis was
harmless because the jury did not ask to hear the audio recording again. Based on the
limited record on this issue, we discern no plain error.
V. The district court did not abuse its discretion by denying Ellis’s motion for a
downward durational departure.

“[A] sentencing court has no discretion to depart from the sentencing guidelines
unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88
(Minn. 1999). The appropriateness of a durational departure turns on the nature of t he
offense, not the circumstances of the offender. State v. Behl, 573 N.W.2d 711, 713 (Minn.
App. 1998), review denied (Minn. Mar. 19, 1998). A district court may grant a downward
durational departure if the defendant’s conduct is significantly “less ser ious than that
typically involved in the commission of the crime in question.” State v. Cox, 343 N.W.2d
641, 643 (Minn. 1984). We review a district court’s decision whether to depart from the
presumptive sentence for an abuse of discretion. Dillon v. St ate, 781 N.W.2d 588, 59 4
(Minn. App. 2010), review denied (Minn. July 20, 2010).
Ellis argues that the district court abused its discretion by denying a downward
durational departure because he suffers from severe untreated mental illness. He references
various portions of the record, including C.S.’s statements to the 911 operator and trial
testimony describing him as “crazy,” defense counsel’s indications that Ellis was agitated

2 Minn. R. Crim. P. 26.03, subd. 20(1), provides: “The court must permit received exhibits
. . . into the jury room.”

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during trial and was not always taking his medications, and notes in the presentence
investigation report that both he and his mother suffer from mental illness. The state argues
that even if we accept Ellis’s contention that he suffers from a mental illness, the district
court nonetheless did not abuse its discretion in imposing a presumptive sentence. We
agree with the state.
Ellis cites State v. Martinson for the proposition that a significant mental impairment
may justify a downward durational departure. 671 N.W.2d 887, 891 -92 (Minn. App.
2003), review denied (Minn. Jan. 20, 2004). But in Martinson, the district court granted
the defendant’s motion for a downward departure. Id. at 891. Accordingly, this court did
not consider whether a departure was mandated; we decided the district court did not abuse
its discretion by deciding to depart. Id. at 892. Indeed, the sentencing guidelines permit,
but do not require, a district court to depart when substantial and compelling reasons are
present. Minn. Sent. Guidelines 2.D.1 (2014). The presence of mitigating factors does not
require the district court to order a durational departure. Wells v. State, 839 N.W.2d 775,
781 (Minn. App. 2013), review denied (Minn. Feb. 18, 2014). Based on our careful review
of this record, we conclude that the district court did not abuse its discretion by imposing
a presumptive sentence.

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VI. The district court did not err by convicting Ellis of both second-degree assault
and making threats of violence.3

Minn. Stat. § 609.04, subd. 1 (2014) provides:
Upon prosecution for a crime, the actor may be
convicted of either the crime charged or an included offense,
but not both. An included offense may be any of the following:
. . . .
(4) A crime necessarily proved if the crime charged
were proved[.]

The statute also forbids “multiple convictions under different sections of a criminal statute
for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758,
760 (Minn. 1985). Application of Minn. Stat. § 609.04 (2014) is a question of law, which
we review de novo. State v. Chavarria-Cruz, 839 N.W.2d 515, 522 (Minn. 2013).
The state argues that the district court did not err because making threats of violence
is not necessarily included in a second-degree-assault offense. We agree . An offense is
necessarily proven “if it is impossible to commit the greater offense without committing
the lesser offense. ” State v. Bertsch , 707 N.W.2d 660, 664 (Minn. 2006). When
determining whether an offense is necessarily included in another , we consider the
elements of the offenses, not the facts of the particular case. State v. Roden, 384 N.W.2d

3 The record shows that the district court convicted Ellis of both offenses. At oral
argument, Ellis asked this court to consider whether the district court also imposed
sentences on both counts. A district court generally may not impose multiple sentences for
crimes committed during a sin gle behavioral incident. Minn. Stat. § 609.035, subd. 1
(2014). At sentencing, the district court pronounced a 51-month sentence on the second -
degree-assault conviction, and then stated “[y]ou’ve also been found guilty of [making
threats of violence] . . . [t]hat is a 27 -months sentence; however, that will merge into the
51-month sentence; so you’ll have one sentence, and not two.” The sentencing order only
imposes a sentence for the second -degree-assault conviction. Accordingly, the district
court did not violate Minn. Stat. § 609.035, subd. 1.

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456, 457 (Minn. 1986). An individual is guilty of second -degree assault if he “assaults
another with a dangerous weapon.” Minn. Stat. § 609.222 (2014). Assault is defined as
“an act done with intent to cause fear in another of immediate bodily harm or death” or
“the intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat.
§ 609.02, subd. 10 . An individual is guilty of making threats of violence when he
“threatens, directly or indirectly, to commit any crime of violence with the purpose to
terrorize another.” Minn. Stat. § 609.713, subd. 1 (2014). Thus, a defendant may only be
convicted of making threats of violence if he threatens to commit a crime of violence with
the intent to terrorize. But a defendant may commit second-degree assault by intentionally
assaulting another with a weapon without making any kind of threat. Because it is possible
to commit second-degree assault without making threats of violence, the latter offense is
not necessarily included in a second-degree-assault offense. Accordingly, the district court
did not err by convicting Ellis of both offenses.4
Affirmed.

4 Ellis raises several additional pro se arguments regarding witness credibility, the
admission of the knife into evidence, and the jury instructions. After careful review of the
record, we conclude these arguments lack merit.