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This opinion will be unpublished and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
A16-1974

State of Minnesota,
Respondent,

vs.

Marcus Tavon Brown,
Appellant.

Filed December 18, 2017
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Cottonwood County District Court
File No. 17-CR-16-217

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Nick Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presid ing Judge; Reilly, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from his convictions of fel ony domestic assault and false imprisonment,
appellant Marcus Tavon Brown argues that his conviction of felony domestic assault was

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improper because the felony do mestic assault statute unambiguously requires predicate
offenses to arise from two separate instances of conduct. Appellant also objects to the jury
instructions, the submission of his unredacted conviction record to the jury, and multiple
sentencing issues. Appellant submitted a pro se brief allegi ng a number of other issues.
We affirm appellant’s convictions, reverse his sentence, and remand for resentencing.
D E C I S I O N
I. Appellant’s prior offenses qualify as predicate offenses for felony domestic
assault under Minn. Stat. § 609.2242.

Appellant argues the two predicate offe nses required for fe lony domestic assault
cannot arise out of the same instance of conduct. See Minn. Stat. § 609.2242, subd. 4
(2016). We conclude the statute unambiguously allows the two predicate offenses to arise
from one instance of conduct and affirm the district court.
Statutory interpretation is a question of law that we review de novo. State v. S.A.M.,
891 N.W.2d 602, 604 (Minn. 2017). The purpose of statutory interpretation is to “ascertain
and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2016); see also State
v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012). We construe statutes in accordance with their
“plain and ordinary meaning,” and if the statute is unambiguous, we apply the plain
language. State v. Zais, 805 N.W.2d 32, 38 (Minn. 2011). A statute is unambiguous if it
has only one reasonable interpretation. State v. Nelson , 842 N.W.2d 433, 436 (Minn.
2014). If the language of a statute is unamb iguous, we “[do] not e ngage in any further
construction and instead look[] to the plai n meaning of the stat utory language.” State v.
Leathers, 799 N.W.2d 606, 608 (Minn. 2011) (c itation omitted). We do not add terms or

3
meanings that are absent from un ambiguous statutory language. See Dupey v. State, 868
N.W.2d 36, 40 (Minn. 2015).
A defendant is guilty of a felony in Mi nnesota if they co mmit domestic assault
“within ten years of the first of any combination of two or more previous qualified domestic
violence-related offense convictions.” Minn. Stat. § 609.2242, subd. 4. Appellant argues
that “the first . . . of two or more previous” offenses unambiguously indicates the offenses
must be from two separate incidents. Respondent argues “any combination of two or more
previous” offenses unambiguously indicates that two convictions entered on the same day
would qualify as “any combin ation” of offenses. Appe llant argues the phrase “any
combination of two or more” ex ists to allow any of the 22 di stinct predicate offenses to
satisfy the rule. See Minn. Stat. § 609.02, subd. 16 (2016) (d efining qualified domestic
violence-related offense).
We agree with respondent’s reading of the statute. The phrase “any combination of
two or more previous” offenses is broad and plainly encompasses two convictions entered
at the same proceeding. Minn. Stat. § 609.22 42, subd. 4. Here, appellant was convicted
of two counts of assault for assaulting two different victims. The statute does not contain
language that would treat two convictions entered on the same day any differently than two
convictions entered on two different days. The only time-related lang uage in the statute
refers to the range of time in which the pr edicate offenses must have been committed,
within ten years. To reach appellant’s reading, this cour t would have to add language,
which we will not do. See Dupey, 868 N.W.2d at 40.

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The statute is unambiguous in requiring “any combination” of two prior domestic
violence-related convictions, which includes two convictions entered on the same day.
Accordingly, we affirm appellant’s conviction of felony domestic assault.
II. The district court did not err by instructing the jury that simple assault is
a qualified domestic-assault-related conviction.

Appellant has a conviction of simple assault from the State of Georgia. The district
court judge instructed the jury that “simple assault is a qualified do mestic-assault-related
conviction” of felony domestic assault. Appellant equates this statement to a directed
verdict on the element of pred icate convictions and argues the judge deprived the jury of
its fact-finding role.
Appellant did not object to this jury instru ction. When there is no objection at trial,
the appellate court has discretion to consider a claim of error on appeal under the plain-
error standard. State v. Crowsbreast , 629 N.W.2d 433, 437 (M inn. 2001) (quotation
omitted). Plain error requires a showing of: (1) an error; (2) that was plain; and (3) that
affected substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).
Here, appellant does not satisfy the first pr ong of the plain-error test. The district
court did not commit error by giving this jury instruction. A district court has “considerable
latitude” in the selection of lang uage for jury instructions. State v. Gatson, 801 N.W.2d
134, 147 (Minn. 2011). It is the role of the district court to “fairly and adequately explain
the law” to the jury. Id. Whether an out-of-state conviction is a qualified domestic
violence-related offense is a matter of law. See State v. Moen , 752 N.W.2d 532, 535-36
(Minn. App. 2008); see also State v. Wiskow, 774 N.W.2d 612, 616-17 (Minn. App. 2009)

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(explaining that there is no right to a jury finding on whether an ou t-of-state conviction
qualifies as a “violent crim e” for enhancement purposes). Whether an out-of-state
conviction qualifies as a predicate offense in Minnesota is a question of law. The district
court judge’s instruction that appellant’s pr ior out-of-state convictions qualified as
domestic-assault-related convictions was a fair and accurate statement of the law well
within the district court judge’s wide latitude to select jury instructions.
III. The district court’s failure to sua sponte redact appellant’s conviction
record was not plain error.

The district court submitted an unredacted conviction record to the jury for the
purposes of showing two prior assault convic tions, which were predicate offenses for
felony domestic assault. The unredacted conviction record also showed that appellant held
two people at gunpoint and stole one of their smart phones. Appellant objects to the district
court submitting his unredacted conviction record to the jury as being irrelevant, unfairly
prejudicial, cumulative, inadmissible under Spreigl, and a violation of the Confrontation
Clause.
We review evidentiary rulings applyi ng an abuse of discretion standard. State v.
Amos, 658 N.W.2d 201, 203 (Minn. 2003). Where there is no objection to an evidentiary
ruling, the appellate court considers a claim of error under the plain-error standard. State
v. Goelz, 743 N.W.2d 249, 258 (Minn. 2007). Plai n error requires a showing of: (1) an
error; (2) that was plain; and (3) that affected substantial rights. Id. An error is “plain” if
it is clear or obvious. Strommen, 648 N.W.2d at 688 (citing United States v. Olano, 507
U.S. 725, 734, 113 S. Ct. 1770 (1993)). Plainness is shown if the error “contravenes case

6
law, a rule, or a standard of conduct.” State v. Sontoya, 788 N.W.2d 868, 872 (Minn. 2010)
(citation omitted). A new trial shall be awarde d only if the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Crowsbreast, 629 N.W.2d
at 437 (citation omitted).
Before trial, appellant provided a writte n statement stipulatin g to his two prior
assault convictions. The day of trial, the judge asked appellant to confirm that he wanted
to stipulate to his prior convictions. After conferring with his attorney, appellant chose to
withdraw his stipulation, and sa id he wanted “[the jury] to get the full intel of the case.”
Appellant seemed to understand that the jury would receive information about his prior
convictions. Respondent then admitted a copy of appellant ’s conviction record into
evidence to establish his prior convictions. Appellant’s counsel never objected to the full
conviction record being admitted, presumably in furtherance of his client’s wishes that the
jury see the “full intel.”
The issue before the court, then, is not whether the district court erred in admitting
the conviction record, since the court was never as ked to rule on that issue. Instead, the
question is whether the court committed plain error by failing to su a sponte redact the
conviction record. This question is almost identical to the one in Vick, where a witness’s
testimony about a defendant’s prior bad acts was admitted without objection. State v. Vick,
632 N.W.2d 676 (Minn. 2001). The record indicated there was no prior notice about the
possible prejudicial nature of the witness’ s testimony, so the court did not have the
opportunity to rule on admissi bility or the scope of the Spreigl notice. Id. at 685. In the
absence of an objection, the district court found “there was no reason for the trial court to

7
intercede sua sponte and, as a result, the tr ial court did not err in not striking [the]
testimony.” Id.
Here, appellant’s conviction record was s ubmitted the day of trial without objection.
The district court was not aware that the ev idence would be offered, because respondent
offered it the day of trial in response to appe llant withdrawing his s tipulation the day of
trial. Appellant’s conviction record was admi ssible to the extent it established predicate
offenses for felony domestic assault. The judge provided limiting instructions, 1 which
diminished the risk of unfair prejudice to appellant. “In the absence of an objection, then,
we are hard pressed to see how the trial court could be attuned to whether” the conviction
record would exceed the scope of limiting instructions. Id. The district court did not err
under the established “rule that a trial court’s failure to sua sponte strike unnoticed Spreigl
evidence . . . is not ordinarily plain error.” Id. Though there were potential evidentiary
issues, the district court was never given the opportunity to rule on the question of
admissibility, so its failure to sua sponte redact the document is not plain error.
Even if this court found error, there is not a reasonabl e likelihood that appellant’s
conviction record had a significant effect on the outcome of the case. The appellant bears
a heavy burden of persuasion to show a reas onable likelihood that, without the error, the

1 “The State has introduced evidence of prior criminal
convictions. This evidence is not to be used to prove the
character of the defendant or that the defendant acted in
conformity with such character . The defendant is not being
tried for and may not be convict ed of any offense other than
the charged offenses. You are no t to convict the defendant on
the basis of prior criminal convictions. To do so might result in
unjust double punishment.”

8
outcome of the case would be different. Bernhardt v. State, 684 N.W.2d 465, 475 (Minn.
2004). Even then, the court will further addr ess whether they must correct the error to
“ensure fairness and the integrity of the judicial proceedings.” Id. (quotation omitted).
Appellant’s conviction record likely had little prejudicial effect on the verdict.
Appellant was convicted of one count of domestic violence for causing fear. The jury
acquitted appellant of three co unts of domestic assault in volving violence, which shows
they did not believe him to be an inherently violent pers on. The mixed verdict also
indicates the jury carefully considered the persuasivene ss of the evidence and the
credibility of the witnesses. In addition to the victim test ifying, the jury also heard
testimony from the victim’s mother and daughter, who were in the same home at the time
appellant was assaulting the victim. Removing the details of appellant’s prior convictions
from the jury room was unlikely to have changed their verdict. The district court’s failure
to sua sponte redact the conv iction record did not create a reasonable likelihood that the
jury verdict would have been different with the redaction, and appellant’s substantial rights
have not been violated.
IV. The district court erred by imposing two sentences for crimes arising from
the same behavioral incident.

Minn. Stat. § 609.035 (2016 ) prohibits sentencing for two crimes arising from the
same behavioral incident. Appellant was sentenced for domestic assault and false
imprisonment. The state agre es with appellant that both crimes arose from a single
behavioral incident, and the district court should have imposed one sentence. We remand
to the district court for resentencing in accordance with Minn. Stat. § 609.035.

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V. The state did not sufficiently prove appellant’s out-of-state convictions to
determine his criminal-history score.

The state must prove “the facts necessary to justify consideration of [an] out-of-state
conviction[] in determining a defenda nt’s criminal history score.” State v. Outlaw , 748
N.W.2d 349, 355 (Minn. App. 2008) (quotation omitted), review denied (Minn. July 15,
2008). The state must establish by a fair prepond erance of the eviden ce that the out-of-
state conviction would constitute a felony in Minnesota. State v. Griffin, 336 N.W.2d 519,
525 (Minn. 1983). According to the Minnesota Sentencing Guidelines, for an out-of-state
felony to count on a person’s criminal-history score, the pe rson must have “received a
sentence that in Minnesota would be a felony-level sentence, which includes the equivalent
of a stay of imposition.” Minn. Sent. Guidelines 2.B.5.b (2016).
The district court used six felony convic tions from Georgia to calculate appellant’s
criminal-history score. Appellant’s two 2 013 convictions occurred on the same day, and
the record is unclear as to whether he was se ntenced for one or both of the offenses as a
felony. At the sentencing hearing, appellant di d not object to the cr iminal-history score,
and the state did not show that appellant’s Georgia convictions wo uld be felonies in
Minnesota or that the 2013 o ffenses entered on the same day were sentenced as separate
felonies. We remand this case to the distri ct court to determine if appellant’s Georgia
felony convictions would be felonies in Mi nnesota and whether the 2013 offenses were
both sentenced as felonies. The state may “fur ther develop the sentencing record so that
the district court can appropriat ely make its determination.” Outlaw, 748 N.W.2d at 356

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(holding the state may supplement the record on remand where appellant did not object to
including his out-of-state criminal record).
VI. Appellant’s pro se arguments lack merit.
Appellant raises a number of arguments in his pro se brief. Appellant first argues
ineffective assistance of counsel for his lawyer’s failure to object to the use of a prior
conviction for impeachment purposes. The prior conviction was for giving a false name to
a police officer, and crimes involving dish onesty are automatic ally admissible for
impeachment purposes. See State v. Sims, 526 N.W.2d 201, 201 (Min n. 1994); Minn. R.
Evid. 609. This evidence would have been admitted over an objection. Id.2
Appellant next objects to the district cour t’s failure to grant a continuance after the
state added the false imprisonment charge. While adding a criminal charge after jeopardy
attaches can prejudice defendants such that they deserve a new trial, appellant was notified
of the new charge before the jury was sw orn, so no apparent prejudice exists. See, e.g.,
State v. Smith, 313 N.W.2d 429, 430 (Minn. 1981).
Appellant next challenges T.M.F.’s mental health, arguing that her credibility was
chiefly responsible for his conviction, and that evidence of her mental health issues would
have been proper for impeachment. Appellant moved the court to conduct an in camera
review of T.M.F.’s mental health records. Appellant did not indicate that T.M.F. suffered

2 Appellant also argues that cross-examination about his pr ior conviction for providing a
false name to a police officer violated the Confrontation Clause, because the arresting
officer was not present to provide testimony. The cross-examination of appellant did not
constitute an out-of-court testimonial statem ent, so the Confrontation Clause does not
apply. See Crawford v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 1364 (2004).

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from a psychological condition that would affect her memory or ability to testify, and given
appellant’s bald assertions of mental illness and nothing more, the district court did not err
by declining in camera review of T. M.F.’s mental health records. See State v. Hummel ,
483 N.W.2d 68, 71-72 (Minn. 1992) (holding that a person requesting in camera review
must make a “plausible showin g that the information sought would be both material and
favorable to his defense”).
Finally, appellant argues that the pros ecutor engaged in impermissible vouching
during her closing argument. In Minnesota, a prosecutor may not “personally endorse the
credibility of witnesses.” State v. Swanson , 707 N.W.2d 645, 656 (Minn. 2006). When
evaluating alleged misconduct, “the closing argument will be considered as a whole.” State
v. Powers, 654 N.W.2d 667, 679 (Minn. 2003). We evaluate unobjected-to prosecutorial
vouching under the plain-error standard. Swanson, 707 N.W.2d at 656. Vouching is plain
error if: (1) there was an erro r, (2) the error was plain, an d (3) the error affected the
defendant’s substantial rights. Id. “To meet the third prong, a defendant must show that
the error was prejudicial and affected the outcome of the case.” Id.
Here, while summarizing appellant’s test imony during her closing argument, the
prosecutor said:
Now I want to talk to you about why I don’t think Mr. Brown
is credible. As I mentioned before, this case is a large—largely
a matter of credibility. It’s [T .M.F.]’s word, along with her
grandmother’s and her daughter’s , against the defendant, and
clearly there are big discrepancies in between those statements.
I would like to take a couple minutes [sic] why I think you
should not believe the defendant.

. . .

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I hope that you don’t—I hope that you don’t buy that argument
because again it just doesn’t make sense.

These statements are a persona l endorsement of the credibility of a witness, because the
prosecutor described how she personally did not believe appellant’s testimony. While
these statements represent prosecutorial mi sconduct, the statements are only a small
portion of the prosecutor’s otherwise satisfactory behavior at trial, so we determine the
error did not affect the outcome of the case.
Affirmed in part, reversed in part, and remanded for resentencing.