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This opinion will be unpublished and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
A17-1225

State of Minnesota,
Respondent,

vs.

Roland Eugene Smith,
Appellant.

Filed July 9, 2018
Affirmed in part, reversed in part, and remanded
Schellhas, Judge

Mille Lacs County District Court
File No. 48-CR-16-2621

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

Joseph Walsh, Mille Lacs County Attorn ey, Timothy S. Kilgriff, Assistant County
Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Hooten, Judge; and
Klaphake, 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
SCHELLHAS, Judge
Appellant challenges his convi ctions of two counts of first-degree burglary, arguing
that he is entitled to a new trial because the district court abused its discretion and deprived
him of his constitutional right to present a complete defense. We affirm in part, reverse in
part, and remand to the district court with instructions to vacate one of appellant’s burglary
convictions.
FACTS
Respondent State of Minnesota charged appellant Roland Smith with first-degree
burglary of an occupied dwelling under Minn. Stat. § 609. 582, subd. 1(a) (2016); first-
degree burglary accompanied by assault under Minn. Stat. § 609.582, subd. 1(c) (2016);
third-degree assault under Minn. Stat. § 609.22 3, subd. 1 (2016); and fifth-degree assault
under Minn. Stat. § 609.224, subd. 1(2) (2016). At trial, the state pr esented evidence that
S.S. gave J.N. and N.A. permission to temporarily stay at her home because they had been
“kicked out” of their own residence. Shortly after arriving at the home, J.N. and N.A. heard
“pounding” at the door; N.A. opened the door, and Smith immediately hit N.A. in the face,
causing him to fall down. Smith, his brother, and C.S., then entered the home and punched,
kicked, and wrestled with N.A. During the altercation, a mi rror fell on N.A. and cut his
head. During the assault, J.N. hid in a bedr oom and called 911. She then ran out of the
bedroom and yelled at the men to stop. Police arrived at the scene shortly thereafter and
arrested Smith, his brother, and C.S. N.A. was taken to the hospital and treated for a cut on
his head, bleeding in his brain, and facial injuries.

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S.S. is A.W.’s sister and the aunt of A.W. and Smith’s children. S.S. testified for the
defense and claimed that she “verbally told ” A.W. and Smith that A.W. and Smith had
permission to be at her home because she “needed somebody to watch [her] house” while
she was away so that it did not appear abandoned. Although S.S. acknowledged that N.A.
and J.N. contacted her about staying at her home, she claimed that she did not know when
they would be staying there. S.S. also acknowledged that the night before she testified, she
spoke with Smith, who told her, “Like when I get some more, you know what I’m sayin’,
I got you for real.” S.S. claimed that she did not understand what Smith meant by that
statement.
The defense sought to call A.W. as a witn ess. The state objected to A.W.’s testimony
on the basis that A.W. had violated the district court’s sequestration order by being present
in the courtroom during approximately half of J.N.’s testimony. After defense counsel
explained that the “crux” of A.W.’s proffered testimony was that “Smith had permission”
from S.S. to be at her home, the state obj ected on hearsay grounds . The district court
excluded A.W.’s testimony on the basis that it was “duplicative.”
A jury found Smith guilty of the charged offenses. Following a Blakely trial, the
district court found that Smith satisfied the requirements of the career-offender statute and
sentenced him to an upward durational departure of 180 months.
This appeal follows.

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D E C I S I O N
I.
Smith argues that the district court abused its discretion and denied him his
constitutional right to present a complete defens e by excluding A.W.’s testimony at trial.
This court reviews “a district court’s evidentiary rulings for abuse of discretion, even when,
as here, the defendant claims that the ex clusion of evidence deprived him of his
constitutional right to a meaningful opport unity to present a complete defense.” State v.
Zumberge, 888 N.W.2d 688, 694 (Minn. 2017). If an objection was made and the district
court actually abused its discretion in making the evidentiary ruling, this court will reverse
only if the exclusion of the evidence was not harmless beyond a reasonable doubt. Id.
Smith was convicted of first-degree burglary accompanied by an assault under
Minn. Stat. § 609.582, subd. 1(c). An elemen t of this offense is that Smith “entered a
building without consent.” See id. (defining elements of crime). “‘Enters a building without
consent’ means: (a) to enter a building with out the consent of th e person in lawful
possession.” Minn. Stat. § 609.581, subd. 4(a) (2016).
At trial, Smith argued that he could not be convicted of the burglary charge because
S.S. was in lawful possession of the home, and she had given him permission to enter.
Smith asserts that A.W., S.S.’s sister, woul d have testified that S.S. had given him
permission to enter the house. Smith contends that because this proffered testimony “would
have been consistent with [S.S .’s] testimony” it would “have been helpful to the jury in
assessing whether [S.S.’s] testimony was truthful.” Smith argues that because “consent to

5
enter the home was the central issue at trial relating to the burglary charge,” the exclusion
of A.W.’s testimony deprived him of his right to present a complete defense.
Under Minn. R. Evid. 403, a district c ourt may exclude relevant evidence “if its
probative value is substantially outweighed by the danger of . . . needless presentation of
cumulative evidence.” Although a district court also has “substantial discretion to sequester
witnesses from the trial process,” State v. Zornes, 831 N.W.2d 609, 620 (Minn. 2013), the
district court here made no finding that A.W. had violated the court’s sequestration order.
The record reflects that the court’s sole ba sis for excluding A.W.’s testimony was that it
would be cumulative.
We need not decide whether the district court abused its discretion in excluding
A.W.’s testimony because, even if it did, we will reverse only if the exclusion of evidence,
thereby depriving Smith of hi s right to present a complete defense, was not harmless
beyond a reasonable doubt. See Zumberge, 888 N.W.2d at 694 (“Even if an objection was
made and a district court abused its discretion, [a reviewing court will] reverse only if the
exclusion of evidence was not harmless beyond a reasonable doubt.”). “An error is not
harmless beyond a reasonable do ubt when there is a reasonabl e possibility that the error
complained of may have contributed to the conviction.” Id. (quotation omitted).
In this case, both J.N. and N.A. testified that they had permission from S.S. to stay
at her home on the evening of the burglary, a nd that S.S. agreed that she had given the
couple permission to stay at her home before th e time of the alleged crime. The state also
presented evidence that when police arrived at the scene, Smith attempted to flee the scene,
which is inconsistent with his claim that he had a lawful right to be in S.S.’s home.

6
Moreover, the district court allowed Smith to present his defense through S.S.’s testimony
that she had given Smith consent to be at her home. Although A.W.’s testimony might have
corroborated S.S.’s testimony, the persuasive value of A.W.’s testimony was questionable
because Smith is the father of A.W.’s child and A.W. continued to be in a relationship with
Smith. Given the eyewitness testimony of J.N. and N.A. and the strength of the state’s case,
we conclude that no reasonable possibility existed that the alleged error may have
contributed to Smith’s conviction. See id. (“An error is not harmless beyond a reasonable
doubt when there is a reasona ble possibility that the erro r complained of may have
contributed to the conviction.” (quotation omitted)). We therefore also conclude that Smith
is not entitled to reversal and a new trial.
II.
Minnesota Statutes section 609.04, subd ivision 1 (2016), provides that “[u]pon
prosecution for a crime, the actor may be co nvicted of either the crime charged or an
included offense, but not both.” A conviction is the district court’s formal adjudication of
the verdict through the filing of the official judgment of conviction. State v. Pflepsen, 590
N.W.2d 759, 767 (Minn. 1999) (directing cour ts 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 sentence on one count only.” Spann v. State, 740 N.W.2d 570, 573
(Minn. 2007) (quotation omitted). “[F]or the pur pose of section 609.04, the burglarious
entry of one dwelling should just ify only one burglary conviction.” State v. Hodges, 386
N.W.2d 709, 711 (Minn. 1986).

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A reviewing court typically looks “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.” State v. Nodes, 863 N.W.2d 77, 81 (Minn. 2015)
(quotation omitted); see also Pflepsen , 590 N.W.2d at 767 (“ Because the testimony and
statements recorded in hearing and trial tran scripts are often imprecise and unclear with
respect to sentencing and conviction orders, [appellate courts] typically look to the official
judgment of conviction, which generally appe ars as a separate entry in the file, as
conclusive evidence of whether an offense has been formally adjudicated.”).
Here, although not mentione d by either party, the warra nt of commitment reflects
that the district court entered judgments of conviction on all counts but imposed a sentence
only for the burglary conviction involving the assault. Because this case involves a single
burglary, section 609.04 dictat es that the court should have convicted Smith of only one
burglary. See Hodges , 386 N.W.2d at 711 (vacating tw o of three burglary convictions
arising from same burglary incident). We ther efore affirm in part, reverse in part, and
remand with instructions to vacate one of Smith’s burglary convictions.
Affirmed in part, reversed in part, and remanded.