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This opinion will be unpublished and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
A17-1006

State of Minnesota,
Respondent,

vs.

Jermaine Harry Rudolph,
Appellant.

Filed May 29, 2018
Affirmed in part, reversed in part and remanded
Kalitowski, Judge*

Ramsey County District Court
File No. 62-CR-16-8676

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

John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reyes, Judge; and Kalitowski,
Judge.

* Retired judge of the Minnesota Court of Appeals, 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
KALITOWSKI, Judge
On appeal from his conviction s of two counts of first-degree criminal sexual
conduct, appellant argues that he is entitled to a new trial because the prosecutor committed
prejudicial unobjected -to misconduct, and the district court erred by entering two
convictions for the same conduct under Minn. Stat. § 609.04 (201 6). Appellant also filed
a pro se supplemental brief in which he challenged his conviction. We affirm one of the
convictions and reverse and remand to correct the warrant of commitment.
D E C I S I O N
I.
Appellant Jermaine Harry Rudolph was charged with two counts of first -degree
criminal sexual conduct. Before trial, the district court ruled that respondent State of
Minnesota could impeach Rudolph with four of his prior convictions, but that the state
could only elicit evidence of the date of conviction, the offense of conviction, and that
Rudolph was the person convicted. At trial , during examination by defense counsel,
Rudolph was asked if he was “a rapist.” Rudolph replied that he “ain’t never . . . made no
female do anything that she didn’t want to do.” The prosecutor responded on cross -
examination by eliciting testimony from Rudolph that the victims in his prior domestic -
assault convictions were females.
Rudolph argues that the prosec utor committed prejudicial misconduct by eliciting
evidence about the underlying facts of his prior convictions in violation of the district
court’s order prohibiting the admission of such evidence. But Rudolph did not object to

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the alleged prosecutorial misconduct. Under these circumstances, we apply a “modified
plain-error test.” State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail under
this test, Rudolph must first establish that there is an error and that the error is plain. Id.
(explaining the modified plain -error test). An error is plain if it “contravenes case law, a
rule, or a standard of conduct.” Id. (quotation omitted). If Rudolph is able to satisfy that
burden, the state would need to show that the error did not affect Rudolph’s substantial
rights. See id. (explaining the third prong of the plain -error test). “If all three prongs of
the test are met, [the reviewing court] may correct the error only if it seriously affect[s] the
fairness, integrity, or public reputati on of judicial proceedings.” State v. Peltier , 874
N.W.2d 792, 804 (Minn. 2016) (quotations omitted).
We conclude that even if the prosecutor engaged in misconduct, the misconduct did
not affect Rudolph’s substantial rights. Such a conclusion required us to consider (1) the
strength of the state’s evidence; (2) “the pervasiveness of the erroneous conduct”; and (3)
whether the defendant “had an opportunity to rebut any improper remarks.” Id. at 805-06.
The record here reflects that the prosecutorial misconduct was not pervasive. The jury was
already apprised of Rudolph’s prior convictions, and in cross -examining Rudolph , the
prosecutor elicited minimal information about the prior convictions—only that the victims
were female. Moreover, the prosecuto r did not dwell on or emphasize this information,
nor mention it in the closing argument. And none of the alleged misconduct was central to
the state’s case. See id. at 806 (concluding that prosecutorial misconduct did not affect
substantial rights when the “prosecutor did not unduly emphasize, or repeat” any of the
improper remarks, and none of the misconduct “was central to the State’s case”).

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The record also indicates that Rudolph had the opportunity to rebut the elicitation
of the improper evidence, but declined, likely because the alleged misconduct was not
pervasive. In addition, the district court gave the jury a cautionary instruction not to use
the evidence of Rudolph’s prior convictions as evidence of guilt for his criminal -sexual-
conduct offen se. Finally, the evidence against Rudolph was compelling. The victim
recounted the events of the sexual assault in great detail, and her testimony was
corroborated by area surveillance video photos, as well as DNA samples taken from the
victim’s hands that matched DNA taken from Rudolph. Although Rudolph testified at trial
that the sexual contact was consensual, Rudolph’s trial testimony was inconsistent with a
statement he previously made to police. On this record, there is no reasonable likelihood
that the outcome of the case would have been different absent the alleged prosecutorial
misconduct. Accordingly, Rudolph is not entitled to a new trial.
II.
Under Minnesota Law, a criminal defendant “may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. A conviction
is the district court’s formal adjudication of the verdict through the filing of the official
judgment of conviction. See State v. Pflepsen , 590 N.W.2d 759, 767 (Minn. 1999)
(directing courts issuing conviction orders to be “very clear” about the offense of which
the defendant is formally adjudicated guilty). “When the defendant is convicted on more
than one charge for the same act the court is to adjudicate formally and impose sent ence
on one count only.” Spann v. State , 740 N.W.2d 570, 573 (Minn. 2007) (quotation
omitted). “[A] defendant may not be convicted of two counts of criminal sexual conduct

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(different sections of the same statute or different subsections) on the basis of the same act
or unitary course of conduct.” State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989).
Here, the record indicates that after the jury found Rudolph guilty of both charged
counts of first-degree criminal sexual conduct, the district court sentenced Rudolph on only
count II. But the warrant of commitment reflects that the district court entered convictions
for both counts of first-degree criminal sexual conduct.
Rudolph argues that the district court erred by entering convictions for both counts
of first-degree criminal sexual conduct because they arose from the same behavioral act.
We agree. In Spann, the supreme court stated that a reviewing court may “look to the
official judgment of conviction in the district court file as conclusive evidenc e of whether
an offense has been formally adjudicated.” 740 N.W.2d at 573 , (quotations omitted); see
also Pflepsen , 590 N.W.2d at 567 (“Because the testimony and statements recorded in
hearing and trial transcripts are often imprecise and unclear with respect to sentencing and
convictions orders, [appellate courts] typically look to the official judgment of conviction,
which generally appears as a separate entry in the file, as conclusive evidence of whether
an offense has been formally adjudicated .”). He re, the warrant of commitment provides
that Rudolph was convicted of both counts of criminal sexual conduct. Because Rudolph
could only be convicted of one of the first -degree criminal -sexual-conduct charges, the
district court erred by entering convictions on both counts. We , therefore, affirm one of
appellant’s convictions for first -degree criminal sexual conduct and reverse and remand
with instructions to correct the warrant of commitment to reflect judgment of conviction
of one count of first-degree criminal sexual conduct.

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III.
Rudolph filed a pro se supplemental brief in which he challenges the sufficiency of
the evidence sustaining his conviction by repeating his trial testimony and attacking the
victim’s credibility. But Rudolph’s pro se brief includes no arguments in support of his
position, nor citations to legal authority. The Minnesota Supreme Court has stated:
General allegations of error, without detailing specific factual
or legal errors, do not aide our review of the lower court’s
proceedings and consequently, almost never aid an appellant’s
cause. Therefore, we will not consider any claim lacking
supporting argument or authority unless prejudicial error
appears obvious upon inspection in the record.

Nelson v. State, 880 N.W.2d 852, 859 n.2 (Minn. 2016) (quotation omitted). Because no
such error is obvious here, we need not consider Rudolph’s argument.
Affirmed in part, reversed in part, and remanded.