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This opinion will be unpublished and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
A17-1980

State of Minnesota,
Respondent,

vs.

Duane John BlackBull,
Appellant.

Filed December 10, 2018
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-1663

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Stauber, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Duane BlackBull appeals after he was convicted of mu ltiple crimes,
arguing that the district court erred by (1) admitting evidence that appellant previously
assaulted the victim’s elderly aunt, (2) allowing the state to repeatedly reference appellant’s
prior guilty plea to violating a no-contact order, (3) admittin g the victim’s out-of-court
statements to law enforcement, (4) convicting appellant of two lesser-included offenses,
and (5) staying appellant’s sentence for five years when the ma ximum allowable term is
four years. Because the district court’s several trial errors were harmless, we affirm
appellant’s convictions for domes tic assault–strangulation and gross misdemeanor
domestic assault. But because fifth-degree assault is a lesser-included offense of domestic
assault–strangulation, we reverse appellant’s fifth-degree-assault conviction and remand to
the district court to vacate that conviction and resentence appellant within legal parameters.
FACTS
Appellant arrived at C.G’s apartment late on the evening of Sep tember 27, 2016.
After a dispute, the details concerning which appellant and C.G. disagree, C.G. ran down
the stairs of her apartment comp lex and knocked on a downstairs neighbor’s door. C.G.
said that she had been assaulted, and the neighbor called the police. The neighbor relayed
to the 911 operator what C.G. had said and then handed the phon e to C.G. C.G. told the
dispatcher that appellant is an ex-boyfriend, who had previousl y assaulted both C.G. and
her aunt, and that appellant showed up at her apartment the night before. C.G. stated that

3
appellant had choked her twice and pinned her down about one ho ur earlier. C.G. also
stated that appellant was drunk, running around the building, and frightening her neighbors.
Minneapolis Police Officer Dan te Dean arrived to find appellan t in C.G.’s
apartment. He handcuffed appe llant and placed him in a squad c ar. Officer Dean then
spoke to C.G., who told Officer Dean that she allowed appellant into her apartment building
the night before, and that she asked appellant to leave, but he followed her upstairs to the
apartment. She told Officer Dean that appellant wanted to have sex and became angry
when she refused his sexual advances. C.G. said that appellant began grabbing her neck
and strangling her on the bed, but that appellant let go when she promised to prepare some
food. C.G. told Officer Dean that she made food and the two we nt to sleep. C.G. told
Officer Dean that appellant strangled her for the second time at some point thereafter, and
the officer observed and documented what appeared to be light s cratch marks on C.G.’s
neck. Officer Dean did not speak to anyone else at the apartme nt regarding the incident
and did not see anyone else in the hallways. Officer Dean repo rted that he did not notice
any obvious signs of struggle in the apartment.
Minneapolis Police Sergeant Rebecca Lane interviewed C.G. appr oximately two
weeks after the alleged assault. C.G. told Sergeant Lane that she and appellant had been
seeing each other intermittently f or about two years. They bro ke up when appellant
assaulted her in April 2016. C.G . then explained the September 27 incident and told
Sergeant Lane that she mistakenly let appellant into her apartm ent building because she
believed appellant to be another man she was dating at the time . C.G. said that appellant
became agitated when she refused h is sexual advances and starte d to choke her with one

4
hand until she could no longer breathe. C.G. told Sergeant Lan e that appellant stopped
choking her for about 30 seconds before choking her again, stopping only after spit began
to leave C.G.’s mouth. C.G. recounted that appellant allowed h er to sit up and she was
able to run downstairs to her ne ighbor’s apartment when she saw appellant put on
headphones. C.G. told Sergeant Lane that she asked appellant to leave seven times during
the course of the evening. Based on these facts, the state charged appellant with one count
of domestic assault – strangulation, one count of gross misdemeanor domestic assault, and
gross misdemeanor violation of a domestic abuse no-contact order (DANCO).1
Before trial, appellant pleaded guilty to the DANCO-violation charge, leaving the
other charges for resolution by a jury. Appellant and the stat e acknowledged that
appellant’s guilty plea would not preclude the state from mentioning the DANCO violation
during trial in the context of providing relationship evidence, and the state agreed that it
would not dwell on the violation.
At trial, C.G. testified that, when she let appellant into the building, she believed
appellant was someone else. C.G. said that appellant was nice at first, but they began to
argue about the fact that appellant did not defend C.G. on an e arlier occasion when
appellant’s sister attacked C.G. C.G. also stated that appellant choked her and told her that
now she “knew what it was like to die.” C.G. testified that, a fter he briefly let go of her
throat, appellant choked her a second time. When asked if she was in a significant or
romantic relationship with appellant, C.G. agreed that the two had been dating “off and

1 The district court also instructed the jury on the lesser-incl uded offense of fifth-degree
assault.

5
on.” C.G. said that she was unsure if “romantic” was the word to describe their relationship
but testified that “we were like a couple.”
The jury returned guilty verdicts on the two domestic-assault c harges and on the
lesser-included charge of fifth-degree assault. The district c ourt entered a conviction on
all three charges but only sentenced appellant on the domestic assault–strangulation charge.
The district court stayed imposition of the sentence for five years, on conditions.
This appeal followed.
D E C I S I O N
I. Evidence of appellant assaulting victim’s aunt
Appellant argues that the distr ict court erred by admitting evi dence at trial that
appellant assaulted C.G.’s aunt. The district court reasoned t hat it was relationship
evidence under Minn. Stat. § 634.20 (2016).
The general rule in a criminal c ase is that evidence showing th at the accused has
committed another crime unrelated to the crime for which he is on trial is inadmissible.
See State v. Spreigl, 139 N.W.2d 167, 169 (Minn. 1965); State v. Thieman, 439 N.W.2d 1,
6 (Minn. 1989) (noting that evidence of Thieman making threats to victim offered to prove
a propensity or disposition to co mmit murder is inadmissible, b ut holding that such
evidence is admissible to show relationship between Thieman and victim). Relationship
evidence under section 634.20 serves as a legislatively created exception to this general
rule and “is offered to demonstrate the history of the relationship between the accused and
the victim of domestic abuse.” State v. Meyer, 749 N.W.2d 844, 848 (Minn. App. 2008).
Appellate courts review a district court’s decision to admit similar-conduct or relationship

6
evidence under Minn. Stat. § 634.20 for abuse of discretion. State v. McCoy, 682 N.W.2d
153, 161 (Minn. 2004). The appellant must show that the district court abused its discretion
and that the appellant was thereby prejudiced. State v. Amos, 658 N.W.2d 201, 203 (Minn.
2003).
“Evidence of domestic conduct by the accused against the victi m of domestic
conduct, or against other family or household members, is admissible unless the probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issue,
or misleading the jury . . . .” Minn. Stat. § 634.20. Section 634.20 directs courts to apply
the definitions in Minn. Stat. § 518B.01. Minn. Stat. § 634.20.
Under section 518B.01:
“Family or household members” means:
(1) spouses and former spouses;
(2) parents and children;
(3) persons related by blood;
(4) persons who are presently residing together or who
have resided together in the past;
(5) persons who have a child in common regardless of
whether they have been married or have lived together at any
time;
(6) a man and woman if the woman is pregnant and the
man is alleged to be the father, regardless of whether they have
been married or have lived together at any time; and
(7) persons involved in a significant romantic or sexual
relationship.

Minn. Stat. § 518B.01, subd. 2(b) (2016).
Before trial, the state moved to admit a recording of C.G.’s 91 1 call under Minn.
Stat. § 634.20. In the recording, C.G. tells the 911 operator that appellant “assaulted me
and my aunt” and “he also beat up my aunt too and she’s 72 years old.” Appellant objected,

7
arguing that evidence of the assault on C.G.’s aunt cannot properly be admitted as evidence
of a separate and earlier fifth-degree assault, and is inadmissible under section 634.20. The
district court asked, “what if [C.G.] testifies during the course of the events, that [appellant]
assaulted her aunt as well? . . . [i]f it’s . . . testimony th at comes in the courtroom, rather
than through the 911 call?” Appellant argued that in neither i nstance would the evidence
be admissible under section 634.20. The state responded that “ it seems unfair and stilted
to try to excise that part of the incident.”
The district court admitted evidence of the assault on both C.G. and her aunt under
Minn. Stat. § 634.20. It found the assault on C.G. to be admis sible under section 634.20
and determined that it could not “parse out [the assault on the aunt] from the assault on
[C.G.].” The district court determined that a cautionary instr uction would be adequate to
address appellant’s concerns.2 At trial, C.G. testified that, in April 2016, she awoke to find
appellant pushing her aunt. Whe n she went to help her aunt, ap pellant grabbed C.G.’s
throat, pushed C.G., and knocked C.G. to the ground. The district court read a cautionary
instruction to the jury before C.G.’s testimony and at the close of trial. The following day,
the jury heard the recording of C.G.’s 911 call.
Appellant argues on appeal that evidence of the assault against C . G . ’ s a u n t i s
inadmissible because the state provided neither evidence nor argument that C.G.’s aunt and
appellant were family or household members.

2 The district court stated that it would “give an instruction before it is played,” suggesting
the district court may not then have anticipated courtroom testimony about the assault on
C.G.’s aunt.

8
There is no record evidence that appellant and C.G.’s aunt are family or household
members. On appeal, the state adopts the district court’s reas oning and argues that
evidence of the assault on C.G.’s aunt was properly admitted because it could not be parsed
out from the assault on C.G., and the assault on C.G. was admissible under section 634.20.
The state provides several cases to support its argument that t he assault on C.G.’s aunt is
admissible because it occurred during the same course of conduc t as an assault on C.G.
See, e.g., State v. Wofford , 114 N.W.2d 267, 271 (Minn. 1962) (“[W]here two or more
offenses are linked together in point of time or circumstances so that one cannot be fully
shown without proving the other, or where evidence of other crimes constitutes part of the
res gestae , it is admissible.”); State v. Walsh , 495 N.W.2d 602, 606 (Minn. 1993)
(“Arguably, the waitress incident was admissible as part of the occurrence or episode out
of which the offense charged agai nst defendant arose.” (quotati on omitted)); State v.
Riddley, 776 N.W.2d 419, 426-27 (Minn. 2009) (holding that the distric t court abused its
discretion by allowing testimony regarding a prior robbery as immediate-episode evidence
where there was no causal connection between the prior act and the charged offense,
despite being closely connected in time and place).
All of the cases that the state asserts support its proposition that the assault on C.G.’s
aunt was admissible as part of t he assault on C.G. relate to im mediate-episode evidence.
The state argues that those case s can be properly analogized to Minn. Stat. § 634.20
evidence. The underlying theme of the immediate-episode cases is clear: The state may
prove all relevant facts and circumstances which tend to establ ish any of the elements of
the offense with which the accuse d is charged, even though such facts and circumstances

9
may prove or tend to prove tha t the defendant also committed ot her crimes. See State v.
Nunn, 561 N.W.2d 902, 907 (Minn. 1997) (citing Wofford , 114 N.W.2d at 272). The
supreme court reasoned “that the general rule against admitting o t h e r c r i m e e v i d e n c e
should not necessarily preclude the state from making out its w hole case against the
accused based on evidence that may be relevant to the accused’s guilt of the crime
charged.” Id. (quotation omitted).
Neither this court nor the Minnesota Supreme Court has endorsed the admission of
prior non-domestic-conduct bad acts or crimes solely because su ch evidence is part of an
incident that also involved domestic conduct. We see no basis for doing so here. Evidence
of the assault on the aunt is not relevant to whether appellant is guilty of the crimes charged,
and it sheds no light on appellant ’s relationship with household or family members. The
district court should not have admitted evidence that appellant assaulted C.G.’s aunt on the
basis that it could not be separated from the assault on C.G.
When a district court’s eviden tiary error follows a timely obj ection, the harmless-
error standard applies.3 State v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016). Under the
harmless-error standard, “an app ellant who alleges an error in the admission of evidence
that does not implicate a constitutional right must prove that there is a reasonable
possibility that the wrongfully a dmitted evidence significantly affected the verdict.” Id.
(quotation omitted). In determin ing whether a defendant has es tablished a reasonable

3 Appellant’s initial objection was to the 911 recording that co ntained evidence of the
assault on C.G.’s aunt, but appellant also argued that the same sort of evidence would also
not be admissible through courtroom testimony. The state does not argue that the plain-
error analysis should apply.

10
likelihood that erroneously admitte d prior-bad-acts evidence su bstantially affected the
verdict, we consider whether the district court provided the ju ry with a cautionary
instruction, whether the state emphasized the evidence, and whether the other evidence of
guilt was strong. State v. Fraga, 898 N.W.2d 263, 274 (Minn. 2017); State v. Thao, 875
N.W.2d 834, 839-40 (Minn. 2016); State v. Hill, 801 N.W.2d 646, 658-59 (Minn. 2011).
I n Fraga, the Minnesota Supreme Court determined that improperly admitt ed sex-
abuse evidence was harmless for three reasons. 898 N.W.2d at 274. First, the district court
provided a cautionary instruction that informed the jury that i t should not convict the
defendant based on the evidence in question. Id. Second, the state did not dwell on the
other-bad-acts evidence, mentioning it only once in summation. Id. Third, the state’s case
was strong, consisting of corrobor ating testimony and physical evidence. Id. Here, the
district court provided a cauti onary instruction to the jury be fore C.G.’s testimony was
presented and again at the close of trial, instructing the jury that it was not to convict
appellant on the basis of similar conduct from April 2016 because to do so might result in
unjust double punishment. And, as in Fraga, the state did not dwell on the evidence in
closing, only mentioning it once.
Appellant maintains that the state’s case was weak because it hinged on C.G.’s in-
court testimony and her prior st atements regarding the Septembe r 27 incident. The state
acknowledged as much in its su mmation at trial, arguing that “a t its very core, [C.G.’s
credibility is] what this case comes down to.” Because there w ere no other witnesses to
the assault, this case does depend largely on C.G.’s testimony. Officer Dean observed
some “really light,” “little scrat ch marks” on C.G.’s neck afte r the incident, which

11
observation was not itself par ticularly indicative of an assaul t. But the marks on C.G’s
neck corroborated her unequivocal testimony. Moreover, the jury was instructed multiple
times not to convict appellant on the basis of any conduct that occurred in April 2016, and
“[w]e presume that the jury followed the instructions given by the court.” Hill, 801 N.W.2d
at 658. Although the evidence that appellant assaulted C.G.’s aunt was not properly
admitted, the error was harmless because we see no reasonable l ikelihood that the jury’s
verdict would have been different had the evidence not been adm itted. See Peltier, 874
N.W.2d at 802-03.
II. Evidence of appellant violating domestic abuse no-contact order
Appellant argues that the district court plainly erred by admit ting cumulative
evidence of appellant’s DANCO violation without providing a cautionary instruction to the
jury. Appellant pleaded guilty t o the charged DANCO violation, but the state referred to
the DANCO and appellant’s violation of it several times during trial. The parties had
agreed to this treatment of the DANCO violation and appellant a grees that he was
prohibited by the DANCO from having contact with C.G.
We generally do not decide issues which were not raised before the district court,
but we have discretion to review such issues on appeal if plain error is shown. State v.
Barthman, 917 N.W.2d 119, 125 (Minn. App. 2018). Minnesota appellate c ourts apply a
three-prong test for plain error, requiring that before an appe llate court reviews an
unobjected-to error, there must b e (1) error; (2) that is plain ; and (3) the error impacts
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “An error is plain
if it is clear or obvious, whic h is typically established if th e error contravenes case law, a

12
rule, or a standard of conduct.” State v. Webster , 894 N.W.2d 782, 787 (Minn. 2017)
(quotation omitted). An error affects substantial rights if th e defendant establishes that
there is a reasonable likelihood that the error had a significant effect on the jury’s verdict.
State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016). If this test is met, “we may correct the
error only if it seriously affect s the fairness, integrity, or public reputation of the judicial
proceedings.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quotation omitted).
This requirement “is satisfied only in those circumstances in which a miscarriage of justice
would otherwise result.” State v. Huber, 877 N.W.2d 519, 528 (Minn. 2016) (quotation
omitted).
Evidence of a DANCO violation qualifies as domestic conduct tha t may be
admissible under Minn. Stat. § 634.20 if its “probative value i s not substantially
outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the
jury, or by considerations of undue delay, waste of time, or ne edless presentation of
cumulative evidence.” Minn. Stat. § 634.20. “Upon admittance of relationship evidence,
even in the absence of a request from counsel, the district court should provide a cautionary
instruction when the evidence is admitted, and again during its final charge to the jury.”
State v. Meldrum, 724 N.W.2d 15, 21 (Minn. App. 2006). The instruction should be given
because relationship evidence and Spreigl evidence present a similar danger of misuse. Id.
In State v. Word , we held that “[i]n light of our decision in Meldrum, the district court
should have issued cautionary ins tructions related to the prope r use of relationship
evidence, and the failure to do so represented error that was plain.” 755 N.W.2d 776, 785
(Minn. App. 2008). Then, in State v. Barnslater, we held that “[i]n light of our decisions

13
in Word and Meldrum, the district court’s error in failing to instruct the jury regarding the
proper use of relationship evidence was plain.” 786 N.W.2d 646, 654 (Minn. App. 2010),
review denied (Minn. Oct. 27, 2010). On this record, the references at trial to the DANCO
and appellant’s violation of it were not erroneous (and conform ed to the parties’
agreement), but the absence of a limiting instruction concerning the repeated references to
the DANCO violation was error that is plain.
“The court’s analysis under the third prong of the plain error test is the equivalent
of a harmless error analysis.” State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011). Here,
the state did not mention appellant’s DANCO violation in its closing argument. Also, and
as discussed, C.G.’s testimony was unequivocal and was corrobor ated by marks on her
neck. It seems quite unlikely, on this record, that the jury convicted appellant of the charges
because of the unquestioned DANCO violation. We conclude that the district’s court’s
failure to provide a limiting inst ruction sua sponte did not af fect appellant’s substantial
rights, and we therefore do not reach the question of whether reversal is required “to ensure
[the] fairness and the integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740.
III. Admission of C.G.’s out-of-court statements to police
Appellant argues that the district court committed reversible e rror by admitting
C.G.’s prior and out-of-court statements to police. The admission of C.G.’s statements to
Officer Dean are subject to a plain-error analysis because appellant did not object at trial.
The recording of C.G.’s interview with Sergeant Lane is subject to an abuse-of-discretion
and harmless-error review because appellant objected to admissi on of the recording as
inadmissible hearsay.

14
Hearsay, an out-court-statement offered to prove the truth of the matter asserted, is
generally inadmissible. Minn. R. Evid. 801(c), 802. But an ou t-of-court statement is not
hearsay if the “declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement,” and the statement is consistent with the declarant’s testimony
and helpful to the trier of fact in evaluating the declarant’s credibility as a witness. Minn.
R. Evid. 801(d)(1)(B). Before a statement can be admitted unde r rule 801(d)(1)(B), “the
witness’[s] credibility must have been challenged, and the stat ement must bolster the
witness’[s] credibility.” Nunn, 561 N.W.2d at 909.
Here, Officer Dean interviewed C.G. in the immediate aftermath of the domestic
incident. Officer Dean testified without objection that C.G. told him that she inadvertently
let appellant into her apartment building, thinking him to be s omeone else, and that
appellant refused C.G.’s requests to leave. Officer Dean also testified that C.G. told him
that appellant began strangling her because she had refused his sexual advances.
Over appellant’s objection, the district court permitted the state to play a recording
of C.G.’s interview with Sergeant Lane. In the recording, C.G. tells Sergeant Lane that she
told appellant to leave her apartment several times before appe llant assaulted her. C.G.
also stated that appellant began to strangle her because she re fused appellant’s sexual
advances. When asked if appella nt was under the influence of d rugs at the time of the
alleged offense, C.G. stated that appellant showed her needle marks on his arm.
Because the statements to Officer Dean and the recorded conversation with Sergeant
Lane are nearly identical, we analyze both statements under the harmless-error standard.
If the district court abused its discretion in admitting prior statements, we will reverse only

15
if the error substantially influenced the jury to convict. State v. Brown, 455 N.W.2d 65, 69
(Minn. App. 1990), review denied (Minn. July 6, 1990).
Appellant argues that the out-of-court statements were inadmiss ible because C.G.
did not testify at trial that (1) she asked appellant to leave several times, (2) appellant
became angry because she refused h is sexual advances, and (3) t hat appellant had needle
marks on his arm. See Minn. R. Evid. 801(d)(1)(B) 19 89 comm. cmt. (“Thus, when a
witness’ prior statement contains assertions about events that have not been described by
the witness in trial testimony, those assertions are not helpful in supporting the credibility
of the witness and are not admissible under this rule.”). The trial testimony and the prior
statement need not be verbatim to be considered consistent stat ements, and minor
discrepancies do not necessarily prevent videotaped statements from being consistent with
trial testimony. See State v. Bakken , 604 N.W.2d 106, 109 (Minn. App. 2000), review
denied (Minn. Feb. 24, 2000). However, in Bakken, this court held that the district court
erred by not analyzing each statement in the interview individually, explaining that “[s]uch
analysis is necessary under Rule 801(d)(1)(B), for without it a few consistent statements in
a multi-statement interview may be used to bootstrap into evidence inconsistent statements
that do not qualify under the rule.” Id. “[W]here inconsistencies directly affect the
elements of the criminal charge, the requirement of consistency is not satisfied and the . . .
prior inconsistent statements may not be received as substantive evidence . . . .” Id. at 110.
We agree with appellant that the inconsistencies between C.G.’s trial testimony and
the out-of-court statements are significant. Admitting the out-of-court statements to police
as substantive evidence was improper under rule 801(d)(1)(B).

16
Nevertheless, we conclude that this error was harmless, for the same reasons
discussed above. C.G. testifie d that appellant assaulted her a nd this was corroborated by
marks on her neck. The prior inconsistent statements to police did not substantially
influence the jury to convict appellant. Although the out-of-c ourt statements to police
added some detail that was not consistent with C.G.’s trial testimony, the fact of the assault
and of the strangulation was proved by C.G.’s trial testimony.
Finally, appellant argues that the cumulative effect of the err ors warrants reversal
and remand even if the errors individually would not require a new trial. The cumulative
effect of errors may warrant reversal. State v. Valentine , 787 N.W.2d 630, 642 (Minn.
App. 2010), review denied (Minn. Nov. 16, 2010). As discussed, this case turned on C.G.’s
testimony that appellant assaulted her. C.G. testified to that at trial, and her testimony was
corroborated by physical evidence of marks on C.G.’s neck. The jury was able to consider
for itself C.G.’s credibility, which the parties agree was central. It was on these facts that
the jury arrived at its verdicts, and the erroneous admission o f these tangential bits of
evidence would not have changed that outcome. Accordingly, on this record, the errors do
not warrant a reversal, either individually or cumulatively.
IV. Lesser-included offenses
Appellant argues that the district court erred by entering conv ictions for the gross-
misdemeanor domestic assault and the fifth-degree assault, desp ite only sentencing
appellant for the domestic assault–strangulation charge.
“Upon prosecution for a crime, the actor may be convicted of ei ther the crime
charged or an included offense, but not both.” Minn. Stat. § 6 09.04, subd. 1 (2016). An

17
included offense may be a lesser degree of the same crime or a crime necessarily proved if
the crime charged is proved. Minn. Stat. § 609.04, subd. 1(1), (4). The supreme court has
“consistently held that section 609.04 bars multiple convictions under different sections of
a criminal statute for acts co mmitted during a single behaviora l incident.” State v.
Chavarria-Cruz, 839 N.W.2d 515, 522-23 (Mi nn. 2013) (quotation omitted); see State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (stating that when a defenda nt is found
guilty on multiple charges for the same act, the district court should formally adjudicate
and impose sentence on only one count). The application of Min n. St a t . § 6 09. 0 4 i s a
question of law that is reviewed de novo. See Chavarria-Cruz, 839 N.W.2d at 522.
Appellant argues that both gross misdemeanor domestic assault a nd fifth-degree
assault are a lesser degree of felony domestic assault–strangul ation. The legislature
separately addressed domestic assa ult when it enacted Minn. Sta t. § 609.2242 (2016).
Accordingly, neither gross misdemeanor domestic assault nor fif th-degree assault are a
lesser degree of felony domestic assault–strangulation.
Appellant argues that fifth-degree assault is necessarily proven by proving domestic
assault–strangulation. To determine whether an offense is necessarily proved by proof of
another offense, courts must look at the statutory definitions. State v. Gisege, 561 N.W.2d
152, 156 (Minn. 1997). Felony domestic assault–strangulation r equires proof that the
defendant “assault[ed] a family or household member by strangul ation.” Minn. Stat.
§ 609.2247, subd. 2 (2016). Misde meanor fifth-degree assault r equires proof of “an act
[committed] with intent to cause fear in another of immediate bodily harm or death . . . or
intentionally inflicts or attemp ts to inflict bodily harm upon another.” Minn. Stat.

18
§ 609.224, subd. 1 (2016). The s tate argues that it is possibl e to commit felony domestic
assault–strangulation without also committing misdemeanor fifth -degree assault because
the elements are different. However, the state cannot prove an actor to have assaulted a
person by strangulation without necessarily proving that the ac tor attempted to inflict
bodily harm on that person. Therefore, fifth-degree assault is a lesser-included offense of
domestic assault–strangulation. Accordingly, we reverse appell ant’s conviction of fifth-
degree assault and remand with instructions to the district cou rt to vacate that conviction.
Gross misdemeanor domestic assault, however, is not necessarily proved by proving felony
domestic assault–strangulation, because gross misdemeanor domestic assault requires that
the violation occur within ten years of a previous domestic vio lence related offense or
conviction. Minn. Stat. 609.2242, subd. 2. Therefore, gross misdemeanor domestic assault
is not a lesser offense of felony domestic assault–strangulation.
V. Stay of appellant’s sentence
The state and appellant agree t hat we should remand for resente ncing because the
district court stayed appellant’s 21-month sentence for five years when the maximum stay
is four years under Minn. Stat. § 609.135, subd. 2(a) (2016). The parties are correct in that.
We therefore direct the district court on remand to resentence appellant to a legally
permitted sentence.
Affirmed in part, reversed in part, and remanded.