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This opinion will be unpublished and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
A17-0150

State of Minnesota,
Respondent,

vs.

Matthew William Hedstrom,
Appellant.

Filed February 5, 2018
Affirmed
Kirk, Judge

Clay County District Court
File No. 14-CR-16-2204

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

Brian J. Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)

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

Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his 25-month prison sentence for felony fleeing a peace officer
in a motor vehicle under Minn. Stat. § 609.487, subd. 3 (2014), arguing that (1) the state
committed prosecutorial misconduct during its rebuttal -closing argument and denied him

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a fair trial, and (2) the district court erred in adopting appellant’s criminal-history score as
listed in the presentence investigation (PSI) and sentencing worksheet because the state
failed to prove the points for appellant’s score by a preponderance of the evidence . We
affirm.
FACTS
On June 28, 2016, at approximately 7:30 p.m. , a sergeant and deputy sheriff from
the Clay County Sheriff’s Office and a Minnesota State Patrol trooper responded to a
residential address in Barnesville to assist in executing an arrest warrant for appellant
Matthew William Hedstrom. Law enforcement set up a “loose perimeter” around the
property and waited for other officers to arrive before attempting to make contact with
appellant. The deputy sheriff observed a person later identified as appellant get into the
driver’s seat of a vehicle parked outsid e the property and alerted the other officer s at the
scene. Law enforcement collapsed the perimeter and attempted to box appellant’s vehicle
in, but as the first marked squad car approached with its overhead lights activated, appellant
drove up on the boulevard, sped away, and ran a stop sign.
The deputy sheriff and trooper pursued appellant’s vehicle in their marked squad
cars with the emergency lights and sirens activated , followed by the sergeant’s marked
squad car. They followed appellant’s vehicle for several city blocks and observed appellant
running stop signs before the trooper performed a pursuit intercept tactic (PIT) maneuver
in order to stop appellant’s vehicle and bring the pursuit to a safe end . Appellant was
ordered out of the vehicle and placed under arrest. Appellant was charged with (1) fleeing

3
a peace officer in a motor vehicle, (2) reckless driving, and (3) driving without a valid
driver’s license. Counts two and three were dismissed prior to the start of trial.
A jury trial was hel d on September 27, 2016. Squad videos of the pursuit of
appellant’s vehicle were admitted into evidence, and the sergeant, deputy, and trooper who
were at the scene testified consistently with the videos . The jury deliberated for nine
minutes before finding appellant guilty of fleeing a peace officer in a motor vehicle. The
district court ordered a PSI and scheduled sentencing for October 31. According to the PSI
and sentencing worksheet, appellant had a criminal-history score of 11, which included 10
points for prior felony convictions and 1 custody-status point. Based on that criminal -
history score, the district court sentenced appellant to a presumptive term of 25 months in
prison, including a three-month custody-status enhancement. This appeal follows.
D E C I S I O N
I. The record does not support appellant’s claim of prosecutorial misconduct.

Appellant requests a new trial, arguing that the state committed prosecutorial
misconduct that denied him a fair trial. During jury sel ection, defense counsel asked
prospective jurors if they had heard about the officer shooting in Tulsa, or that the officer
was subsequently charged with manslaughter. During her closing argument, defense
counsel again referenced the Tulsa officer shooting to argue that law enforcement officers
do not have “unfettered access to do whatever [they] want” and that they must act lawfully.
Defense counsel said that the officers’ actions in this case did not rise to the level of what
happened in Tulsa, but then suggested that appellant did not intend to flee and was merely

4
reacting to the first squad car coming at him outside the property. Defense counsel also
described the use of the PIT maneuver as “unbelievable,” “unlawful,” and “inappropriate.”
In response, during the state’s rebuttal, the prosecutor characterized defense
counsel’s suggestion that appellant was merely reacting as “unbelievable.” The prosecutor
emphasized that the jury must look at the evidence in the record and said that defense
counsel’s portrayal of the record was “manufactur[ed].” Defense counsel objected to the
prosecutor’s rebuttal as burden shifting. The district court overruled the objection without
explanation. The prosecutor went on to argue that defense counsel’s depict ion of the
evidence was “completely and utterly wrong,” and that it was “absolutely unbelievable and
unfounded and ludicrous” to compare the officers’ conduct in this case to that of the officer
in Tulsa.
On appeal, appellant argues that the prosecutor’s rebuttal did not go to the substance
of defense counsel’s closing argument, and was instead aimed at disparaging defense
counsel’s character and credibility. Appellant contends that the state cannot prove that his
substantial rights were not impacted as a result, and argues that he is entitled to a new trial.
The state argues that even if the prosecutor committed misconduct, it did not affect the
case’s outcome or impact appellant’s substantial rights given the evidence against him.
At trial, appellant objected to the prosecutor’s rebuttal as burden shifting but did not
object to the prosecutorial misconduct he now alleges on appeal. “Before an appellate
court reviews an unobjected -to error, there must be (1) error; (2) that is plain; and (3) the
error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
For unobjected -to prosecutorial misconduct, our review is under a modified plain-error

5
standard. State v. Ramey , 721 N.W.2d 294, 299 -300 (Minn. 2006). If an appellant
establishes that the prosecutorial misconduct is plain error, the n the burden shifts to the
state to show that the misconduct did not affect the appellant’s substantial rights. Id. at
302. If all prongs of the modified plain-error standard are met, “the court then assesses
whether the error should be addressed to ensure fairness and the integrity of the judicial
proceedings.” Id. (citing Griller, 583 N.W.2d at 740).
The prosecutor “may present all legitimate arguments on the evidence and all proper
inferences that can be drawn from that evidence” during closing argument. State v.
Pearson, 775 N.W.2d 155, 163 (Minn. 2009). Further, a “prosecutor has the right to fairly
meet the arguments of the defendant.” State v. Martin, 773 N.W.2d 89, 106 (Minn. 2009).
A prosecutor can also argue that a particular defense lacks merit. See State v. Simion, 745
N.W.2d 830, 844 (Minn. 2008). However, “a prosecutor may not belittle the defense, either
in the abstract or by suggesting that the defense was raised because it was the only defense
that might succeed.” Martin, 773 N.W.2d at 108. And prosecutors “must avoid inflaming
the jury’s passions and prejudices against the defendants.” State v. Bailey , 677 N.W.2d
380, 404 (Minn. 2004).
Our review of the record indicates that the prosecutor’s challenged statements were
in response to defense counsel’s own highly charged closing argument in which defense
counsel repeatedly questioned the actions of the law enforcement officers involved and
inexplicably referenced an unrelated shooting by a Tulsa police officer. In response, the
prosecutor repeated defense counsel’s use of “unbelievable” to argue that appellant’s
defense lacked merit and was wholly unsupported by the evidence in the record. The record

6
shows that the prosecutor met defense counsel’s arguments and attempted to discredit them
by focusing the jury on the evidence proving appellant’s guilt.
The record also shows that both defense counsel and the prosecutor made dramatic
arguments and perhaps could have used less impassioned language. But even if we were
to conclude that the state committed prosecutorial misconduct here, and that it was plain
error for the court to allow the prosecutor’s rebuttal arguments, there is nothing in the
record to establish that there was a substantial impact on the jury’ s verdict, which was
overwhelmingly supported by the record. Thus, we cannot conclude that the prosecutor’s
rebuttal arguments denied appellant his right to a fair trial.
II. Based on the record , we cannot conclude that the district court abused its
discretion in relying on the criminal-history score listed in the unobjected-to
PSI and sentencing worksheet.

Appellant challenges his sentence, arguing that the district court abused its
discretion because the state failed to prove his prior federal and North Dakota convictions
and his custody-status point by a preponderance of the evidence, and also failed to disprove
that some of his convictions may ha ve arisen from a single behavioral incident. At
sentencing, appellant’s PSI and sentencing worksheet indicated the following federal and
North Dakota felonies:
1. Forgery (ND, 03/03/2003) – 0.5 point
2. Possession of stolen property (ND, 03/03/2003) – 1 point
3. Conspiracy to possess with intent to distribute and distribute
a controlled substance (Federal, 09/29/2003) – 2 points
4. Aiding and abetting possession with intent to distribute a
controlled substance (Federal, 09/29/2003) – 2 points
5. Aiding and abetting conspiracy to distribute a controlled
substance (Federal, 09/29/2003) – 1 point
6. Theft of property (ND, 10/03/2003) – 1 point

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7. Theft of property (ND, 08/12/2014) – 1 point
8. Burglary (ND, 08/12/2014) – 1 point
9. Reckless endangerment (ND, 11/24/2014) – 0.5 point
10. Fleeing or attempting to elude a police officer (ND,
11/24/2014) – 0.5 point

Appellant was assigned a criminal -history score of 11, which included 10 felony
points and 1 custody-status point.1 Appellant argues that the PSI and sentencing worksheet
were insufficient proof to establish the points for his criminal-history score and that the
state failed to prove that he was on parole or supervised release to support the custody-
status point. Appellant further argues that convictions three and four have the same offense
date, as do convictions nine and ten, so points should not have been assigned for all four
convictions. Appellant requests that his sentence be reversed and that we remand for
resentencing without the challenged points, unless the state can meet its burden of proof.
The state argues that it was not required to provide additional proof , and that the PSI
provided appellant’s criminal-history score at sentencing, to which appellant did not object.
“The district court’s determination of a defendant’s criminal-history score will not
be reversed absent an abuse of discretion.” State v. Maley, 714 N.W.2d 708, 711 (Minn.
App. 2006). When a district court calculates an offender’s criminal -history score, it must
take into consi deration convictions from non -Minnesota jurisdictions, provided that “the
state lays foundation for the court to do so.” Id.; see Minn. Sent. Guidelines 2.B.5 & cmt.
2.B.502 (2015). “The state must establish by a fair preponderance of the evidence that the
prior conviction was valid, the defendant was the person involved, and the crime would

1 Partial points are rounded down to the nearest whole number. Minn. Sent. Guidelines
2.B.1.i. (2015).

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constitute a felony in Minnesota.” Maley, 714 N.W.2d at 711; see Minn. Sent. Guidelines
2.B.5.
“[I]f a person’s conduct constitutes more than one offense under th e laws of this
state, the person may be punished for only one of the offenses.” Minn. Stat. § 609.035,
subd. 1 (2014) . “T he state has the burden of proving the facts which establish the
divisibility of a defendant’s course of conduct for purposes of sect ion 609.035.” State v.
McAdoo, 330 N.W.2d 104, 109 (Minn. 1983). Under the Minnesota Sentencing
Guidelines, an offender convicted of multiple offenses based o n a single behavioral
incident generally receives criminal-history points only for the most serious offense. Minn.
Sent. Guidelines 2. B.1.d. & cmt. 2.B. 107 (2015). The state is not required to supply
certified records but must provide persuasive evidence that would be sufficient under Minn.
R. Evid. 1005. Maley, 714 N.W.2d at 711 -12; see State v. Griffin, 336 N.W.2d 519, 525
(Minn. 1983). Minn. R. Evid. 1005 allows data compilations of the contents of an official
record to be proven by certified copy or by the testimony of a witness who compared the
compilation to the original.
The record shows that at various points in the district court proceedings both the
parties and the court acknowledged appellant’s extensive criminal history . The state
indicated that it was able to provide documentation and/or certified copies of appellant’s
federal and out-of-state convictions, although it never did so. At the October 31 sentencing,
both parties stated that they received and reviewed the PSI and said that they had no
additions or corrections. The prosecutor summarized appellant’s felony convictions and
asked for the upper duration of 25 months in prison. The prosecutor referenced the PSI as

9
evidence of appellant’s convictions in his sentencing argument; appellant did not object.
Defense counsel also acknowledged appellant’s lengthy criminal history, but argued for a
20-month prison sentence. The district court imposed a 25 -month prison sentence,
concluding that appellant’s “significant criminal history” and conduct posed “a serious
public safety risk” and that “incarceration [wa]s appropriate and necessary.”
Here, the only documentation provided for appellant’s prior convictions and custody
status was the PSI and sentencing worksheet prepared by the Department of Corrections
(DOC), and a charging document from North Dakota indicating the underlying charges for
convictions nine and ten. The corrections agent who prepared the documents did not testify
to their accuracy. However, the record shows that appellant did not object to the
documentation for, or the calculation of , his criminal -history score at the time of his
sentencing. Further, on appeal, appellant does not actually dispute the existence of his
prior federal and North Dakota felony convictions; he claims only that the state failed to
prove them by a preponderance of the evidence.
Appellant cites to State v. Maurstad for the principle that “a defendant cannot forfeit
[or waive] review of his criminal-history score calculation” and may correct his score “at
any time.” 733 N.W.2d 141, 147 -48 (Minn. 2007) (quotation omitted). We believe that
Maurstad is distinguishable from the case at hand because Maurstad pursued a corrected
sentence in a postconviction petition after failing to object to the PSI or sentencing
worksheet prior to or at sentencing. Id. at 142. In his postconviction petition, Maurstad
argued that he was improperly assigned a custody-status point and asked to be resentenced
with a lower criminal-history score. Id. The postconviction court denied Maurstad’s

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petition, ruling that because he failed to object to his criminal-history score at sentencing
he had waived or forfeited his right to review. Id. This court reversed and remanded for
resentencing after concluding that Maurstad had not forfeited his right to appeal by failing
to object at sentencing, and the supreme court affirmed. Id. at 143.
Unlike Maurstad, in this case, appellant did not petition for postconviction relief.
Although the state bears the burden of proving a defendant’s out -of-state convictions in
determining a defendant’s crimina l-history score, the state “is [also] permitted to further
develop the sentencing record so that the district court can appropriately make its
determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), review denied
(Minn. July 15, 2008). Further, the Minnesota Rules of Criminal Procedure provide that ,
“The court may at any time correct a sentence not authorized by law.” Minn. R. Crim. P.
27.03, subd. 9. Here, unlike in Maurstad, the state was not given an opportunity to cure,
and the district court was not given an opportunity to review, the alleged deficiency in the
documentation supporting appellant’s criminal-history score.
“It is not within the province of this court to determine issues of fact on appeal.”
Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966). Because we are
not a fact-finding court, and because no challenge to appellant’s criminal-history score was
raised at the time of appellant’s sentencing or in a request for postconviction relief, we
cannot conclude that the district court abused its discretion in sentencing appellant based
on the criminal-history score provided in the unobjected-to PSI and sentencing worksheet.
In addition, under the sentencing guidelines in effect at the time of appellant’s
offense, for a criminal-history score of six or more, the sentence range for a fleeing-a-peace

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officer-in-a-motor vehicle conviction under Minn. Stat. § 609.487, subd. 3, was 20 to 25
months, with a presumptive term of 22 months , including a three -month custody-status
enhancement. See Minn. Sent. Guidelines 2.B.2.c.(1), 4.A., 5.A. (2015). Even if appellant
established that his criminal-history score was miscalculated because he received two or
three points in error, his corrected criminal-history score would still be eight or nine, and
thus, his presumptive sentence term, with the custody-status enhancement, would remain
the same.
Affirmed.