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This opinion will be unpublished and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
A17-0985

State of Minnesota,
Respondent,

vs.

Jeremiah Jerome Johnson,
Appellant.

Filed May 21, 2018
Affirmed
Schellhas, Judge

Carlton County District Court
File No. 09-CR-14-1163

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

Thomas Pertler, Carlton Co unty Attorney, Alexander W. Saumer, Assistant County
Attorney, Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Pres iding Judge; Reyes, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his conviction of felo ny fourth-degree assault, arguing that the
district court plainly erred by allowing testim ony that appellant resided in a unit at the
Minnesota Sex Offender Program for clients with significant behavioral issues. Appellant
raised several additional issues in a pro se supplemental brief. We affirm.
FACTS
Appellant Jeremiah Johnson is a client at the Minnesota Sex Offender Program
(MSOP) in Moose Lake, where he resided in the Omega unit. The Omega unit is a
“behavioral therapy unit” to which clients are assigned if they have had “significant
behavioral issues.” The Omega unit is secured by a door with a window. This door “has a
half door on the top” that “swings towards staff away from the unit allowing the rest of the
door to remain secure to provide a physical barrier” between the clients and MSOP staff.
On March 31, 2014, M.D., a security counselor at MSOP, observed Johnson place
a plastic garbage bag over his mailbox, and th en stand on a plastic property bin and tie a
string around the sprinkler-system head. M.D. and N.L., another MSOP employee, opened
the top part of the security door to the Omega unit and told Johnson to “stop tampering
with the sprinkler system.” When Johnson refused to stop, N.L. contacted the A-Team for
assistance. A-Team members respond to “incidents of adverse behaviors” and are “trained
in the use of force” and chemical irritants, when responding to emergencies.
Several A-Team members responded to N. L.’s request for assistance, including
A.H. Speaking through the open part of the security door, A.H. re peatedly instructed

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Johnson to stop tampering with the sprinkler system or he would deploy a chemical agent.
Johnson responded by “rapidly” approaching the security door and hitting the window with
“both hands,” “causing [it] to swing back and strike” A.H. on the head. As a result, A.H.
suffered a concussion, bruising, and a cut on his eyebrow.
Respondent State of Minnesota charged Jo hnson with fourth-degree assault under
Minn. Stat. § 609.2231, subd. 3a(b)(1) (2012). A.H. testified at trial that Johnson appeared
“angry” and “frustrated” as he tampered with the sprinkler system. A.H.’s supervisor, J.G.,
testified that as Johnson hit th e door, he said: “that will t each you, you bitch.” The court
allowed witnesses to testify that the Omega unit houses individuals who have behavioral
issues. In addition to testimony from MSOP em ployees, the district court admitted into
evidence videos that included A.H.’s body-camera video of the incident.
A jury found Johnson guilty of the ch arged offense. Johnson then moved to
challenge the constitutionality of the penalty aspect of section 60 9.2231, subdivision 3a
(2012). The district court denied the motion and sentenced Johnson to 13 months in prison
and five years of conditional release. This appeal follows.
D E C I S I O N
Admission of testimony about MSOP’s Omega unit
Johnson argues that the district court e rred by allowing “multiple workers at MSOP
to testify that he was housed in the Omeg a unit; a housing unit for MSOP clients with
significant behavior problems.” But Johnson co ncedes that he did not object to this
testimony at trial. When a defendant does not object to the admission of evidence, this
court reviews the district court’s ad mission of the evidence for plain error. See State v.

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Griller, 583 N.W.2d 736, 740 (Minn. 1998) (discussing plain-error test). An appellant must
show (1) an error, (2) that is plain, and (3) that affects the appellant’s substantial rights.
State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). If all three prongs of the plain-error test
are satisfied, we must consider “whether reversal is require d to ensure the fairness and
integrity of the judicial process.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016). But if
we conclude that any of the requirements of th e plain-error test are not satisfied, we need
not consider the others. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
Relevant evidence is generally admissi ble and includes “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Minn. R.
Evid. 401. Evidence that is not relevant is not admissible. Id., 402. “Evidence is relevant
and has probative value when it, in so me degree, advances the inquiry.” State v. Schulz ,
691 N.W.2d 474, 478 (Minn. 2005). “A fact is relevant if, when taken alone or in
connection with other facts, it warrants a jury in drawing a logical inference assisting, even
though remotely, the determination of the issue in question.” State v. Holmes, 758 N.W.2d
326, 329 (Minn. App. 2008), aff’d, 778 N.W.2d 336 (Minn. 2010).
But relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. “The rule favors
admission of relevant evidence, as the pr obative value of the evidence must be
‘substantially’ outweighed by prejudice . . . .” Schulz, 691 N.W.2d at 478 (quoting Minn.
R. Evid. 403). Under rule 403, unfair prejudi ce “is not merely damaging evidence, even

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severely damaging evidence; rather, unfair prejudice is evidence that persuades by
illegitimate means, giving one party an unfair advantage.” Id.
Rule 404 of the Minnesota Rules of Evid ence concerns character evidence. Under
rule 404(a), evidence of a pers on’s character or a trait of character is generally “not
admissible for the purpose of proving action in conformity therewith.” Minn. R. Evid.
404(a). Nor may evidence of another crime, wrong, or bad act be admitted to prove
character “in order to show action in conformity therewith.” Id., 404(b).
Here, the jury heard testimony from MSOP employees that the Omega unit in which
Johnson was housed was a “beh avioral therapy unit” where MS OP placed clients if they
have had “significant behavioral issues.” Johnson argues that this testimony was irrelevant
because the only issue at trial was whether he intended to assault A.H. Johnson argues
further that even if this evidence had so me minimal probative value, such value was
substantially outweighed by the danger of unfair prejudice because it amounted to improper
character evidence that implied that he “was a difficult and potentially dangerous person.”
We conclude that the testimony expl aining the purpose of the Omega unit was
relevant to provide context for the assault. In State v. Garcia, this court held that testimony
from the victim’s sister regarding the defendant’s drinking and abusive behavior “provided
a factual background for the jury’s understanding, and was limited to a brief summary” of
the defendant’s and the victim’s sister’s re lationship. 374 N.W.2d 47 7, 480 (Minn. App.
1985), review denied (Minn. Nov. 1, 1985). Simila rly, the challenged testimony here
provided background about the unit in which Johnson was housed, as well as a factual
context for the videotape of the assault. The state did not offer the testimony to prove that

6
Johnson has a bad character or that he acted in conformity with th e “behavioral issues”
referenced in the challenged testimony. In fa ct, the district court admitted no evidence
about Johnson’s behavioral issues that led to his assignment to the Omega unit. Johnson
therefore fails to establish that the evidence constituted improper character evidence.
Moreover, Johnson fails to demonstrate that the evidence should have been
excluded under Minn. R. Evid. 403. Although arguably prejudi cial, we cannot conclude
that the prejudicial impact of the challenged testimony substantially outweighs its
probative value, or that the testimony atte mpted to persuade by illegitimate means. The
jury knew that the assault occurred at MSOP. Conseque ntly, testimony that Johnson was
in an MSOP unit for individuals with “behavioral issues” would not be substantially more
prejudicial than the fact that Johnson was a client at MSOP. We therefore conclude that
Johnson has not established that the district court plainly erred by admitting the challenged
testimony.
Even if Johnson could show plain error, he has not established that his substantial
rights were prejudiced. An error affects s ubstantial rights “if there is a reasonable
likelihood that the error substantially affected the verdict.” State v. Strommen, 648 N.W.2d
681, 688 (Minn. 2002). In de termining whether the evidence significantly affected the
verdict, appellate courts consider the followin g factors: (1) the mann er in which the state
presented the evidence; (2) wh ether the evidence was highly persuasive; (3) whether the
state referenced the evidence in closing argument; and (4) whether the defense effectively
countered the evidence. State v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016).

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As discussed above, the state presented the challenged testimony simply to provide
context for MSOP employees’ duties, as well as the location where the assault occurred.
And the state did not reference the testimony in closing argument, or emphasize it in any
way. Moreover, the evidence against Johnson was strong. The jury viewed multiple videos
that showed Johnson violently pushing the upper part of the door, causing it to hit A.H. on
the head. Multiple witnesses testified that Johnson appeared angry as he tampered with the
sprinkler system, and the videos support this testimony, particularly the video from A.H.’s
body camera that contains audio of the interaction between MSOP staff and Johnson. The
video shows Johnson rapidly approaching the door and violently hitting it with both hands
as MSOP staff tried to shut and lock th e door. Because the evidence overwhelmingly
supports the jury’s determination that Johnson intended to assault A.H., we conclude that
Johnson is not entitled to a new trial.
Pro se arguments
Johnson argues in a pro se supplemental brief that (A) the state lacked probable
cause to charge him with a ssault; (B) he was selectively prosecuted; (C) he received
ineffective assistance of counsel; and (D) Minn. Stat. § 609.2231, subd. 3a(b)(1), violates
his right to equal protection.
Probable cause
Johnson argues that the stat e lacked probable cause to bring charges against him.
But once a defendant has been found guilty beyond a reasona ble doubt, a probable-cause
challenge becomes irrelevant because the “sta ndard for the sufficie ncy of evidence to
support a conviction is much higher than probable cause.” State v. Holmberg, 527 N.W.2d

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100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995). Once convicted, the
lack-of-probable-cause argument is more accurately constr ued as a challenge to the
sufficiency of the evidence. See id. (“If Holmberg could show on appeal that probable
cause is lacking, he would necessarily prevail on a claim of insufficiency of the evidence.”).
When reviewing sufficiency of the evidence claims, this cour t’s review is limited to “a
painstaking analysis of the record to determ ine whether the evidence , when viewed in a
light most favorable to the conviction, was su fficient to permit the jurors to reach their
verdict.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted).
Under Minn. Stat. § 609.2231, subd. 3a (b), inflicting demonstrable bodily harm
“against an employee or other individual wh o provides care or treatment at a secure
treatment facility while the person is engaged in the performance of a duty imposed by law,
policy, or rule” is a felony. Here, the record evidence is su fficient to sustain Johnson’s
conviction. The evidence includes that A.H. is an employee at MSOP and video evidence
offered by the state shows Johnson violently hitting the top part of the security door causing
it to hit A.H. on the head. As addressed above, the state presented sufficient evidence that
Johnson intended to assault A.H., who suff ered a concussion as a result of Johnson’s
conduct.
Although Johnson argues at length in his pro se brief that the state lacked probable
cause to charge him because MSOP employees conducted the investigation, the record
reflects that the state did no t charge Johnson until the Mo ose Lake Police Department
reviewed the investigative reports and concl uded that probable cause existed to support a
charge of fourth-degree assault. And MSOP ’s report was not the basis for Johnson’s

9
conviction; rather, the trial evidence provided sufficient support for Johnson’s conviction
of fourth-degree assault.
Selective prosecution
Johnson argues that the state subjected him to “selective prosecution.” But Johnson
fails to articulate how or why the state selectively prosecuted him, and he does not cite any
legal authority to support his position. Because Johnson fails to support his argument with
citations to relevant facts or legal au thority, he has forfeited this argument. See State v.
Manley, 664 N.W.2d 275, 286 (Minn. 2003) (c onsidering arguments waived when they
lack factual support in the record and contain no citation to relevant legal authority).
Ineffective assistance of trial counsel
This court reviews ineffective-assi stance-of-counsel claims de novo. State v.
Rhodes, 657 N.W.2d 823, 8 42 (Minn. 2003) (citing Strickland v. Washington , 466 U.S.
668, 698, 104 S. Ct. 2052, 2 070 (1984)). To preva il on such a claim, an appellant must
“demonstrate that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probab ility exists that, but for his counsel’s
unprofessional error, the outcome would have been different.” Leake v. State, 767 N.W.2d
5, 10 (Minn. 2009) (citing Strickland, 466 U.S. at 687 −88, 104 S. Ct. at 2064 −65). Both
prongs need not be analyzed if one is determinative. Id.
Johnson contends that he received ineffective assistance of trial counsel because his
counsel failed to challenge the state’s evid ence, “never called defense witnesses,” and
“failed to provide the . . . jury with an alte rnative theory on the ac tions that took place
leading to a jury trial.” This court generally will not review an in effective-assistance-of-

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counsel claim that is based on trial strate gy, which includes determining which witnesses
to call, the extent of counsel’ s investigation, and the selecti on of evidence to present at
trial. Staunton v. State, 784 N.W.2d 289, 302 (Minn. 2010). Accordingly, Johnson has not
met his burden to demonstrate that his counse l’s performance was deficient. Because the
first Strickland prong is dispositive, Johnson’s claim fails.
Equal protection
Johnson argues that the “sentencing aspe ct” of Minn. Stat. § 609.2231, subd. 3a,
violates his right to equal protection under the United States and Minnesota Constitutions.
The constitutionality of a statute presents a question of law th at is subject to de novo
review. State v. Melde , 725 N.W.2d 99, 102 (Minn. 2006 ). This court presumes that
“Minnesota statutes are constitutional and w ill strike down a statute as unconstitutional
only if absolutely necessary. To prevail, a party challenging the constitutionality of a statute
must demonstrate beyond a reasonable doubt that the statute violates a constitutional
provision.” State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011) (citation omitted).
To establish that he has been denied equal protection of th e laws, Johnson “must
show that similarly situated person s have been treated differently.” Id. at 521 (quotation
omitted); see U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 2. Appellate courts
“impose this threshold showing because the guaranty of equal protection does not require
that the State treat persons who are differently situated as though they were the same.” Cox,
798 N.W.2d at 519 (quotation omitted). The Minnesota Supreme Court has rejected equal-
protection claims when a party cannot establish that he or she is similarly situated to those
whom he or she contends ar e being treated differently. Id. “The focus . . . in determining

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whether two groups are similarly situated is whether they are alike in all relevant respects.”
Id. at 522.
Minnesota law provides that a district c ourt must sentence a person convicted under
Minn. Stat. § 609.2231, subd. 3a(b), to prison for “not less than one year and one day,” and
five years of conditional release. Minn. Stat. § 609.2231, subd. 3a(c), (d). Johnson contends
that the statute violates his right to equa l protection because it requires “a mandatory
commit to prison and five years of conditiona l release only for those who commit fourth-
degree assault while under civil commitment and residing in secure facilities.” To support
his claim, Johnson compares his sentence to a person convicted of fourth-degree assault
and incarcerated in a Minnesota correctional facility. Johnson contends that the prison
inmate is similarly situated to the individual committed at MSOP because both have their
freedoms restricted, but the prison inmate is treated differently because the inmate is not
subject to the stricter sentencing requirements that a committed person is subjected to under
section 609.2231, subdivision 3a.
Johnson’s argument is w ithout merit. The groups Johnson compares are not
similarly situated because th e members of one group have been committed as sexually
dangerous persons or sexual psychopathic personalities, a nd the members of the other
groups have not. Johnson’s equal-protection claim therefore fails because he cannot
demonstrate that similarly situated person s are treated differently under Minn. Stat.
§ 609.2231, subd. 3a.
Affirmed.