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This opinion will be unpublished and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
A16-1437

State of Minnesota,
Respondent,

vs.

Solomon Washington McIntyde,
Appellant.

Filed June 19, 2017
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Kandiyohi County District Court
File No. 34-CR-15-1057

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and Smith,
John, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant challenges his convictions of both domestic assault and fifth-degree
assault, arguing that the prosecutor comm itted misconduct during closing arguments and
that the district court erred by formally adjudicating his guilt to the lesser-included offense
of fifth-degree assault. We affirm in part, reverse in part, and remand.
FACTS
At trial, M.M.R. testified that appellant grabbed her by the neck, pushed her up
against a refrigerator, and thre atened to kill her. Appellant admitted that he grabbed
M.M.R., but that he was intending to be affectionate. He acknowledged that his behavior
may have seemed rough or obnoxious to M.M.R.
The jury was instructed on the elements of both domestic assault and fifth-degree
assault. During the state’s closing argume nts, the prosecutor described appellant’s
aggressive behavior and then explained the elements of domestic assault, stating:
To find [appellant] guilty of domestic assault you have to find
that [appellant] assaulted [M.M.R .], and so it means an act
done with intent to cause her to fear . . . immediate bodily harm
or death. [M.M.R.] testified she was afraid that [appellant] was
going to strike her. I believe she was also afraid that
[appellant] was going to be furt her sexually aggressive with
her.

The jury returned guilty verdicts on both counts. At the sentencing hearing, the state
clarified that the charge of fifth-degree assault was a lesser-included offense of the charge
of domestic assault. The district court an nounced that it would en ter conviction on both
counts, but would only sentence on the domestic-assault conviction.

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D E C I S I O N
I. The state did not commit misconduct during its summation.
Appellant argues that the prosecuto r committed misconduct during closing
arguments by indicating that the intent elem ent of domestic assault under Minn. Stat.
§ 609.2242, subd. 1(1) (2014), was satisfied by evidence of M.M.R.’s fear. Appellant did
not object to the statements at trial.
We review unobjected-to allegations of prosecutorial misconduct under the
modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). This
standard requires appellant to establish that the prosecutor committed an error and that the
error was plain. Id. “An error is plain if it was clear or obvious.” Id. (quotations omitted).
If appellant demonstrates that a plain error occurred, the bur den shifts to the state to
demonstrate that the error did not affect appellant’s substantial rights. Id. “If the state fails
to demonstrate that substantial rights were no t affected, ‘the appellate court then assesses
whether it should address the er ror to ensure fairness and th e integrity of the judicial
proceedings.’” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quoting State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998)). Ultimately, we will reverse a conviction “only if the
[prosecutorial] miscond uct, when considered in light of the whole trial, impaired
[appellant’s] right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
“A prosecutor engages in prosecutorial mi sconduct when he violates ‘clear or
established standards of conduct, e.g., rules, laws, orders by a district court, or clear
commands in this state’s case law.’” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008)
(quoting State v. Fields , 730 N.W.2d 777, 782 (Minn. 2007)). It is improper for a

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prosecutor to misstate the law during closing arguments. State v. Strommen, 648 N.W.2d
681, 689 (Minn. 2002). While the prosecutor may “argue a ll reasonable inferences from
evidence in the record,” the prosecutor may not “intentionally . . . misstate the evidence or
mislead the jury as to the inferences it may draw.” State v. Smith, 876 N.W.2d 310, 335
(Minn. 2016) (quotations omitted). When assessing alleged prosecutorial misconduct
during a closing argument, “we lo ok to the closing argument as a whole, rather than to
selected phrases and remarks.” State v. Graham , 764 N.W.2d 340, 356 (Minn. 2009)
(quotation omitted).
“[A] finding of intent to cause fear in a nother of immediate bodily harm or death
cannot be based solely on the effect the actor’s behavior had on the victim.” In re Welfare
of T.N.Y., 632 N.W.2d 765, 767 (Minn. App. 2001); see also State v. Ott , 291 Minn. 72,
75, 189 N.W.2d 377, 379 (1971) (noting for assault-fear, the intent of the actor “becomes
the focal point for inquiry,” as opposed to “the effect upon the victim”). Rather, a person’s
assaultive intent “must be determined fro m all the objective facts and circumstances,
including the defendant’s conduct and/or statements at the time of the act.” State v.
Whisonant, 331 N.W.2d 766, 768 (Minn. 1983); see also Davis v. State, 595 N.W.2d 520,
525-26 (Minn. 1999) (noting that intent may be proved from circumstantial evidence,
including the defendant’s conduct, the characte r of the assault, and the events occurring
before and after the crime).
Appellant asserts that the pr osecutor misrepresented to the jury that the intent
element of assault-fear could be established solely on the basis of M.M.R.’s subjective fear.
But the prosecutor did not say that M.M.R.’s fear alone was sufficient proof of intent. The

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prosecutor discussed the elements of domestic assault and the evidence that supported each
element. The prosecutor’s st atements about the intent element and supporting evidence
were truncated, but the prosecutor did not misst ate the law nor mislea d the jury. Careful
examination of the prosecutor’s closing argume nt as a whole reveals that the prosecutor
discussed the evidence in detail, including the status of appellant and M.M.R.’s relationship
at the time of the incident, appellant’s statem ents to M.M.R., his behavior, and M.M.R.’s
reactions. Given the context of the entire closing argument, the prosecutor’s statements to
the jury were not plainly erroneous.
II. The district court erred when it entered convictions on both counts.
Appellant argues that the district court erred by making formal adjudications of guilt
on both counts, because fifth-degree assaul t is a lesser-include d offense of domestic
assault. The state agrees that the convictio n to fifth-degree assault should be vacated
because it arose from the same behavioral incident as the domestic-assault conviction.
Minn. Stat. § 609.04, subd. 1 (2014), provides that a pe rson “may be convicted of
either the crime charged or an included offense, but not both.” A conviction is the district
court’s formal adjudication of the verdict thro ugh the filing of the official judgment of
conviction. See State v. Hoelzel, 639 N.W.2d 605, 609 (Minn. 2002) (instructing courts to
include information contained in Minn. R. Crim. P. 27.03, s ubd. 7, in conviction orders);
State v. Pflepsen, 590 N.W.2d 759, 767 (M inn. 1999) (directing courts to be “very clear”
when issuing conviction orders of which offe nse the defendant is formally adjudicated
guilty); see also Minn. Stat. § 609.02, subd. 5 (2014) (defining “conviction” as a guilty
verdict that is “accepted and recorded by the court”). “When the defendant is convicted on

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more than one charge for the same act the court is to ad judicate formally and impose
sentence on one count only.” Spann v. State , 740 N.W.2d 570, 573 (Minn. 2007)
(alterations omitted) (quotation omitted).
An “included offense” is “[a] crime neces sarily proved if the crime charged were
proved.” Minn. Stat. § 609.04, subd. 1(4). “ An offense is ‘necessarily included’ in a
greater offense if it is impossible to commi t the greater offense without committing the
lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). Fifth-degree assault,
under Minn. Stat. § 609.224, s ubd. 1(1) (2014), is necessarily proved if domestic assault,
under Minn. Stat. § 609.2242 , subd. 1(1), is proved. A formal adjudication of guilt for
fifth-degree assault, as a lesser-included offense of domestic assault, was error. We remand
with instructions to the district court to vacate the formal adjudication of guilt on the fifth-
degree assault charge, but to leave that guilty verdict in place. See State v. Crockson, 854
N.W.2d 244, 248 (Minn. App. 2014) (remanding to the district court w ith instructions to
vacate erroneous conviction), review denied (Minn. Dec. 16, 2014).
Affirmed in part, reversed in part, and remanded.