State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1268

State of Minnesota,
Respondent,

vs.

Labaron Sentell Black,
Appellant.

Filed June 10, 2019
Affirmed
Rodenberg, Judge

Lyon County District Court
File No. 42-CR-17-893

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Rick Maes, Lyon County Attorney, Abby Wikelius, Assistant County Attorney, Marshall,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M . Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg , Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from a judgment of conviction, appellant Labaron Black argues
that the district court committed reversible error by admitting hearsay evidence in the

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Blakely phase of appellant’s trial, and that the district court’s determination that appellant
is a career offender must be reversed because the state failed to prove beyond a reasonable
doubt that appellant has five or more prior sequential felony convictions. We affirm.
FACTS
Appellant was charged with seco nd-degree assault under Minn. S tat. § 609.222,
subd. 1 (2016); threats of violence under Minn. Stat. § 609.713, subd. 3(a)(1) (2016); and
domestic assault under Minn. Stat. § 609.2242, subd. 4 (2016), after an August 19, 2017
incident. The state filed notice of its intent to seek an aggravated sentence on the basis that
appellant is both a dangerous offender and a career offender under Minn. Stat. § 609.1095,
subds. 2, 4 (2016). At a pretrial hearing, appellant waived hi s right to counsel and chose
to represent himself. Appellant also waived his right to a jury trial on guilt and sentencing.
Following a court trial, the dis trict court found appellant gui lty of all three of the
charged offenses. The district court issued a subsequent order concluding that appellant
qualifies as a dangerous offende r and a career offender. The d istrict court sentenced
appellant to a 50-month prison sentence for the felony domestic assault conviction and an
84-month prison sentence for the second-degree assault convicti on, to be served
concurrently. No sentence was imposed for the threats-of-violence offense.
This appeal followed.

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D E C I S I O N
I. The district court did not plainly err by admitting hearsay evidence in the
sentencing phase of appellant’s trial.

Appellant argues that the distric t court erred at the sentencin g phase of trial by
admitting hearsay evidence—the register of actions for at least 13 convictions of
misdemeanor and gross misdemeanor offenses, and another court’s order and findings on
a prior felony conviction. Appellant did not object to the admission of this evidence. And
appellant makes no argument on appeal that his waiver of the ri ght to counsel was
uninformed or otherwise deficient.
“Appellate review of an evidenti a r y i s s u e i s f o r f e i t e d w h e n a defendant fails to
object to the admission of evidence.” State v. Vasquez, 912 N.W.2d 642, 649 (Minn. 2018).
But appellate courts will review forfeited issues for plain error. Id. at 650 (citing Minn. R.
Crim. P. 31.02). To satisfy the plain-error standard, an appel lant must demonstrate that
“(1) there was an error, (2) the error was plain, and (3) the e rror affected the defendant’s
substantial rights.” State v. Myhre , 875 N.W.2d 799, 804 (Minn. 2016). If these three
elements of the plain error test are met, the court then considers whether it should address
the error to ensure the fairness and the integrity of the judicial proceedings. Id. at 804-05.
Generally, a district court must impose the presumptive guideli nes sentence unless
there are “identifiable, substantial, and compelling circumstan ces” to warrant an upward
departure. Minn. Sent. Guidelines 2.D.1 (2016). Other than a prior conviction, any fact
that increases the penalty for a crime beyond the presumptive sentence must be submitted
to a jury and be proved beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296,

4
124 S. Ct. 2531 (2004); State v. Shattuck, 704 N.W.2d 131, 135, 141 (Minn. 2005). Where
the defendant waives his right to have a jury determine whether aggravating factors exist
to justify an upward durational departure in his sentence, the defendant is entitled to a court
trial before a judge to determine whether the alleged aggravating factors have been proved.
State v. Sanchez-Sanchez, 879 N.W.2d 324, 327 (Minn. 2016). The rules of evidence apply
to a Blakely court trial. Id. at 330.
The career-offender statute allows the district court to impose an upward durational
departure from the guidelines for a felony conviction when an o ffender has five or more
prior felony convictions and the present offense is part of a p attern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4. The district court may also impose an upward durational
departure under the dangerous-o ffender statute, which permits d urational departures not
otherwise authorized by the sentencing guidelines. Neal v. State , 658 N.W.2d 536, 545
(Minn. 2003). The dangerous-offe nder statute allows for an upw ard departure if (1) the
offender was at least 18 years old at the time of the current offense; (2) the current offense
is a felony and a violent crime; (3) the offender has two or mo re prior convictions for
violent crimes; and (4) the fact-finder determines that the off ender is a danger to public
safety. Minn. Stat. § 609.1095, subd. 2.
First, appellant argues that the district court erred by improperly admitting hearsay
evidence of his prior convictions. Hearsay is defined as, “a statement, other than one made
by the declarant while testifying at the trial or hearing, offe red in evidence to prove the
truth of the matter asserted.” Minn. R. Evid. 801(c). Hearsay is not admissible except as
provided by the rules of evidence or other rules prescribed by the supreme court or

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legislature. Minn. R. Evid. 802. The rules of evidence provid e numerous exceptions to
the general rule. See Minn. R. Evid. 803, 804.
Appellant acknowledges that Minn. R. Evid. 803(22) provides an exception to the
rule against hearsay for a prior judgment of conviction entered after trial or upon a plea of
guilty to prove any fact essential to sustain the judgment, but only if the crime was
punishable by death or imprisonment in excess of one year. Appellant argues that, because
his prior convictions for misdemeanors and gross misdemeanors w ere not punishable by
death or imprisonment in excess of one year, this exception doe s not apply and evidence
of those convictions is therefore inadmissible. But even if this particular hearsay exception
is inapplicable, that does not necessarily mean that the eviden ce would not be admissible
under any other hearsay exception.
The state agrees with appellant that the register of actions is hea rsay. The state
argues that the evidence is admissible under the public records exception, which provides:
Unless the sources of information or other
circumstances indicate lack of trustworthiness, records,
reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the office
or agency, or (B) matters observed pursuant to duty imposed
by law as to which matters there was a duty to report,
excluding, however, in criminal cases and petty misdemeanors
matters observed by police officers and other law enforcement
personnel . . . .

Minn. R. Evid. 803(8). The comment to the rule explains that t he rationale for this
exception rests in a belief in the trustworthiness of the work product of government agents
operating pursuant to official duty, the necessity for introducing full reports as opposed to
testimony that relies on memory, and a concern for the disrupti on that would result in

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government agencies if employees were continually required to testify in trials. Minn. R.
Evid. 803(8) 1989 comm. cmt.
The record here is sparse because appellant did not raise this objection to the district
court, but the register of actions is an official record of the clerk of the district court. State
ex rel. Craig v. Tahash , 116 N.W.2d 657, 660 (Minn. 1962). And every district court i s
required by law to keep records, including a register of actions. Minn. Stat. §§ 485.07(1),
.16, subd. 1 (2018). We see no error in the district court hav ing admitted the register of
actions, much less any error that is plain.
Appellant also argues that the d istrict court erred by admittin g as evidence a
previous district court’s judicial findings concerning a prior felony conviction. Appellant
provides some persuasive authority holding that prior judicial findings are categorically
inadmissible hearsay. E.g., United States v. Sine , 493 F.3d 1021, 1036 (9th Cir. 2007)
(“[J]udicial findings of fact are hearsay, inadmissible to prov e the truth of the findings
unless a specific hearsay exception exists.” (emphasis added)).
The Minnesota Supreme Court has recognized that “[t]he number a nd variety of
exceptions to the hearsay exclusion make objections to such tes timony particularly
important to the creation of a record of the trial court’s deci sion-making process in either
admitting or excluding a given statement.” State v. Manthey, 711 N.W.2d 498, 504 (Minn.
2006). And the complexity and s ubtlety of the hearsay rule and its exceptions make it
particularly important that a full discussion be had on the record. Id. The failure to object
to the district court deprives the state of the opportunity to establish that the evidence is
admissible under one of the numerous hearsay exceptions, and consequently, an appellate

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court will not find plain error if the statements are not “clea rly or obviously inadmissible
hearsay.” Id.; State v. Smith , 825 N.W.2d 131, 138 (Minn. App. 2012), review denied
(Minn. Mar. 19, 2013).
Appellant made the informed decis ion to proceed pro se in this matter. The
problems of which appellant now complains are due in large part to his not having objected
at the district court. Here, the district court had no occasio n to consider the admissibility
of the claimed inadmissible hearsay. We cannot conclude on thi s record that the district
court’s receipt of evidence in the form of prior judicial findi ngs proving appellant’s prior
felony conviction was “clearly or obviously” in error. Consequently, it was not plain error
for the district court to admit the prior judicial findings.
Moreover, and even if admitting th e prior judicial findings was erroneous and
plainly so (which we do not conclude), the error was harmless because appellant meets the
dangerous-offender criteria regardless of the challenged evidence. The district court found
as fact that appellant has two or more prior convictions for vi olent crimes. It also found
that appellant’s past criminal behavior and the high frequency of his criminal behavior—
being convicted of a new offense, in prison, or on warrant status every year since he turned
18 in May 1997—make appellant a danger to public safety. Appellant’s probation officer
testified concerning appellant’s criminal history. Accordingly, the district court could have
properly determined that appellant is a dangerous offender with out regard to the prior
judicial findings.

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II. The district court did not err in determining that appellant qualifies as a career
offender.

Appellant argues that the state f ailed to prove beyond a reason able doubt that he
qualifies as a career offender because the state did not prove that appellant has five or more
prior sequential felony convictions. Specifically, appellant argues that, because the state’s
evidence only proved the dates on which appellant was charged and sentenced, and not the
offense date of each crime, the state failed to prove that his convictions are sequential.
In considering a claim of insufficient evidence, we review the record to determine
whether the evidence, when viewed in the light most favorable t o the district court’s
verdict, is sufficient to support the verdict. State v. Palmer, 803 N.W.2d 727, 733 (Minn.
2011). We will not disturb the verdict if the fact-finder, whi le acting with proper regard
for the presumption of innocence and the requirement of proof beyond a reasonable doubt,
could reasonably conclude that the defendant was guilty of the charged offense. State v.
Olhausen, 681 N.W.2d 21, 25-26 (Minn. 2004).
To support a finding that appellant is a career offender, the s tate was required to
prove that appellant had five or more prior felony convictions and that his present offenses
were committed as part of a pattern of criminal conduct. Minn. Stat. § 609.1095, subd. 4.
A “pattern of criminal conduct” is established upon “proof of criminal conduct similar, but
not identical, in motive, purpose, results, participants, victi ms or other shared
characteristics.” State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). A “prior conviction” is
defined as “a conviction that o ccurred before the offender comm itted the next felony
resulting in a conviction.” Minn. Stat. § 609.1095, subd. 1(c) (2016). In order to sentence

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pursuant to Minn. Stat. § 609.1095, subd. 4, “five sequential f elony offenses and
convictions are required (i.e., offense/conviction, offense/conviction, offense/conviction,
etc.).” State v. Huston , 616 N.W.2d 282, 283-84 (Minn. App. 2000). Accordingly, the
state was required to prove the offense and conviction dates of appellant’s prior felony
convictions.
Appellant’s argument rests on an unpublished decision of this court, State v. Jones,
No. A07-2112, 2008 WL 5334401, at *6 (Minn. App. Dec. 23, 2008), where we determined
that the state’s evidence was insufficient to support a departu re under section 609.1095,
subd. 4. There, the state offered several “criminal court case histories” that were received
in evidence. Id. at *2. We determined that, while those exhibits may “contain” the dates
of both the offense and the conviction, they were “insufficient to prove the offense dates.”
Id. at *6. Jones is not binding authority and has persuasive value, “[a]t best.” Dynamic
Air, Inc. v. Bloch , 502 N.W.2d 796, 800-01 (Minn. App. 1993) (addressing dangers of
miscitation and unfairness associated with the use of unpublished opinions and stating that
“[t]he legislature has unequivo cally provided that unpublished decisions are not
precedential”); see Minn. Stat. § 480A.08, subd. 3 (2018) (stating that unpublished
decisions of the court of appeals are not precedential).
Here, each register of actions p rovided three different dates. First, there is a “Date
Filed” for each charge. Second, each charge lists a date under the heading “Date.” Lastly,
each charge lists another date under the heading “Disposition.” The central concern in
Jones was that, while the case histories may have provided both the offense and conviction
dates, the state failed to explain how the jury would know the legal significance of the

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listed dates. Here, the district court was acting as the fact-finder and could properly discern
the offense and conviction date s from the register of actions. Our independent review of
the register of actions convinces us that offense dates here we re adequately proved in this
case.1
We also observe that the distri ct court’s finding that appellan t is a dangerous
offender provided an independent basis for the sentence. See Williams v. State , 361
N.W.2d 840, 844 (Minn. 1985) (stating that if reasons given jus tify the departure, the
departure will be affirmed); cf. State v. Rund , 896 N.W.2d 527, 534-36 (Minn. 2017)
(independently examining the record to determine if alternative grounds exist to support
the departure). Accordingly, the record adequately supports appellant’s sentence.
Affirmed.

1 We observe in passing that the better practice might well be f or the state to offer a more
robust explanation of the register of actions than was provided here. Our holding is limited
to the particular facts in this appeal.