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This opinion will be unpublished and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
A18-1319

State of Minnesota,
Respondent,

vs.

Robert Michael Windell,
Appellant.

Filed May 13, 2019
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-17-25996

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Sc hmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appel late Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Halbrooks, Judge;
and Larkin, Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction of engaging in a pattern of stalking conduct,
arguing that the district court’s jury instruction regarding that offense constructively
amended the criminal complaint in violation of Minn. R. Crim. P. 17.05 . Appellant also
challenges his conviction of felony domestic assault, arguing that the trial evidence was
insufficient to sustain the conviction . Lastly, appellant challenges his sentence, arguing
that the district court impermissibly considered a 2003 Illinois conviction in calculating his
criminal-history score. We affirm appellant’s conviction of felony domestic assa ult. But
we reverse and remand appellant’s stalking conviction, as well as his sentence.
FACTS
Respondent State of Minnesota charged appellant Robert Michael Windell with
felony domestic assault, obstructing legal process, and fleeing a peace officer. Later, the
state amended the complaint to include a charge of stalking—pattern of stalking conduct.
The amended complaint alleged that on October 12, 2017, Windell was involved in a
domestic dispute with V.H., th e mother of two of his children, at V.H.’s h ome. V.H.
contacted the police to have Windell removed from her home, and Windell agreed to leave.
Because V.H. thought that Windell had taken the keys to her home, she barricaded the side
door with a chest freezer, in case Windell returned. Around 3:00 a.m. on October 13, 2017,
Windell returned to the residence, used keys to unlock the side door, and attempted to push
the door open. Windell demanded that V.H. let him into the residence. V.H. told Windell
to leave multiple times, but he remained on the doorstep and demanded that V.H. let him

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in. V.H. was afraid that Windell would assault her and take his children if he entered the
home, so she asked one of her children to call the police.
Officers responded to the scene and identified themselves to Windell. Windell
began to walk away, and the officers instructed him to stop. Windell ran from the officers
and physically resisted their attempts to detain him. Four police officers were even tually
able to restrain Windell.
The amended complaint alleged that Windell “had assaulted [V.H.] in the past and
HAD been arrested for domestic violence” and that Windell had previously been convicted
of violating an order for protection (OFP) regardin g V.H. on November 25, 2015 , and
January 25, 2016.
Prior to trial, the state moved to admit , as relationship evidence, incidents of
domestic violence and criminal conduct by Windell against V.H. as follows: (1) violation
of an OFP on January 5, 2016 , (2) domestic assault on September 9, 2015 , (3) domestic
assault on September 7, 2015, (4) domestic assault on February 20, 2013, and (5) domestic
assault on February 19, 2013. Windell objected, but the district court ruled that the “prior
instances do come in under 634.20,” the relationship -evidence statute. However, the
district court indicated that it would limit the e vidence, stating that “[t]his case is about
what happened on this occasion, and we don’t want . . . to go into the same detail on these
other incidents” and that the prior incidents “should be dealt with succinctly, and not in
any way that is unduly prejudicial.”
V.H. testified regarding the incidents that occurred on October 12 and October 13,
2017. V.H. also briefly testified regarding the January 2016 incident, the September 2015

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incidents, and the February 2013 incidents. Windell did not cross-examine V.H. regarding
the 2016, 2015, and 2013 incidents. The state offered video recordings of police interviews
of V.H., which were admitted without objection. In those recordings, V.H. stated that
Windell had assaulted her in April 2017.
The state proposed a jury instruction indicating that the jury could consider the
following acts as proof of a pattern of stalking conduct: (1) domestic assault on October 13,
2017, (2) trespass on October 13, 2017 , (3) trespass on October 12, 2017 , (4) domestic
assault on April 1, 2017, (5) violation of an OFP on January 5, 2016 , (6) domestic assault
on September 9, 2015 , and (7) domestic assault on February 19, 2013 . The district court
agreed to the state’s proposed instruction over Windell’s objection.
The jury found Windell guilty of engaging in a pattern of stalking conduct, felony
domestic assault, and fleeing a p eace officer. The jury found Windell not guilty of
obstructing legal process. The district court entered judgment s of conviction on the
stalking, felony-domestic-assault, and fleeing -a-peace-officer offenses, and sentenced
Windell to a 43 -month prison te rm for stalking . Windell appeals, challenging his
convictions of stalking and felony domestic assault, as well as his sentence.
D E C I S I O N
I.
Windell contends that his stalking conviction must be reversed “ [b]ecause the
district court’s jury instruction on ‘pattern of stalking conduct’ amounted to a constructive
amendment to the criminal complaint, ” which “charged a different crime and prej udiced
[his] substantial rights.”

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Windell relies on Minn. R. Crim. P. 17.05, which provides: “The court may permit
an indictment or complaint to be amended at any time before verdict or finding if no
additional or different offense is charged and if the defendant’s substantial rights are not
prejudiced.” The rule’s use of the phrase “may permit” indicates that the rule is generally
applied prospectively and governs requests for amendments . Caselaw reflects the rule’s
application in that context. See State v. Caswell , 551 N.W.2d 252, 254 -55 (Minn. App.
1996) (applying rule 17.05 to state’s request to add charge s to complaint during trial after
witnesses were s worn); State v. Manley , 353 N.W.2d 649, 651 -52 (Minn. App. 1984)
(applying rule 17.05 to state’s request to add charge to complaint during trial after the close
of evidence); State v. Miller, 352 N.W.2d 524 , 525-26 (Minn. App. 1984) (applying rule
17.05 to state’s request to amend charge in complaint during trial at the close of the state’s
case), review denied (Minn. Nov. 9, 1984).
But appellate courts have also applied rule 17.05 in the context of instructional error.
More specifically, the rule has been applied when jury instructions varied from the charge
set forth in the underlying complaint. For example, in State v. DeVerney, the indictment
alleged that DeVerney aided and abetted others in committing first-degree murder while
committing kidnapping, with intent to effect the death of the victim. 592 N.W.2d 837, 845
(Minn. 1999). The indictment cited Minn. Stat. § 609.05, subd. 1 (1998), which provided
that “[a] person is criminally liable for a crime committed by another if the person
intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the
other to commit the crime.” Id. At the close of the state’s case, the state indicated that it
would also seek an aiding-and-abetting instruction under Minn. Stat. § 609.05, subd. 2

6
(1998), which provided that “[a] person liable under subdivision 1 is also liable for any
other crime committed in pursuance of the intended crime if reasonably foreseeable by the
person as a probable co nsequence of committing or attempting to commit the crime
intended.” Id. DeVerney objected, but the district court instructed the jury on both aiding-
and-abetting theories. Id.
On appeal, DeVerney argued that the district court “improperly instructed t he jury
on a theory of vicarious liability which was not included in the indictment.” Id. The
supreme court reasoned that although “the indictment was never formally amended
pursuant to Rule 17.05,” it was appropriate to analyze the issue under that rule because
“[DeVerney] argue[d] that the jury instruction resulted in an impermissible variance.” Id.
at 845-46.
Similarly, in State v. Guerra, this court relied on rule 17.05 when assessing an
assignment of instructional error in a case in which evidence was admitted for a limited
purpose, and not as substantive proof of the charged offense, but the district court instructed
the jury to consider the evidence as substantive proof of the charged offense. 562 N.W.2d
10, 12-13 (Minn. App. 1997). Guerra was charged with possession of a stolen firearm,
occurring “on or about January 30, 1996.” Id. at 11 . The complaint alleged that seven
shotguns were stolen from a house on December 5, 1995, that seven handguns were stolen
from a house on December 31, 199 5, and that three of the seven shotguns were retrieved
from Guerra’s apartment on January 30, 1996. Id. Statements on the record demonstrated
that prior to trial, Guerra, his attorney, the charging prosecutor, the trial prosecutor, and the
district court all believed that the charge of possession of a stolen firearm was based solely

7
on the possession of the shotguns found in Guerra’s apartment in January 1996, and not on
any of the handguns. Id.
Accordingly, the district court allowed “only enough testi mony [regarding the
handguns] to establish a foundation for why police were at Guerra’s apartment when they
discovered the shotguns.” Id. at 12. But after the state rested its case, the district court
reconsidered its approach and determined that the reference to “firearms” in the complaint
was broad enough to include the handguns and that the phrase “on or about January 30,
1996” could include an offense that allegedly occurred in December 1995. Id. The district
court therefore allowed the state to re -open its case and present testimony and evidence
regarding Guerra’s possession of the handguns that had been stolen in December 1995. Id.
Guerra asked for a continuance after the district court’s rulin g, which the district court
denied. Id. at 14. At the conclusion of the trial, the district court amended the jury
instructions to include events that took place in December 1995 as substantive evidence of
Guerra’s guilt. Id. at 12.
On appeal, Guerra argued that the district court constructively amended the
complaint in violation of rule 17.05. Id. at 11-12. This court held that “the district court’s
decision to allow the [state] to re-open its case to present additional evidence and to change
the date in the jury instruction constituted a constructive amendment” and that rule 17.05
applied. Id. at 13. Next, we considered whether the constructive amendment charged a
different offense. Id. We explained that “[a] different offense is charged if an amendment
affects an essential element of the charged offense.” Id. (quotation omitted). We noted
that “[t]he amended offense . . . was the same category of offense as that originally

8
charged—possession of a stolen firearm,” but that “the object of the offense, the date, and
the alleged facts underlying each offense were all different.” Id. We concluded that
because the “state’s proof that Guerra possessed the handguns was different from proof of
possession of the shotguns” and the “knowledge that the guns were stolen and the time and
place of possession also differ [ed],” the constructive amendment charged a different
offense in violation of rule 17.05. Id.
This court also concluded that the constructive amend ment violated rule 17.05’s
independent proscription against amendments that prejudice a defendant’s substantial
rights. Id. We reasoned that Guerra did not have notice that the references to the handguns
in the complaint would be transformed into a separate cha rge and that “[t]he jury wa s
obviously confused by the chan ge” because it had asked the district court , during its
deliberations, whether Guerra had been charged with possession of the handguns or the
shotguns. Id. at 13-14. We also reasoned that Guerra’s defense was based on the shotguns,
that a claim based on the handguns “require[d] a substantially different defense,” and that
Guerra did not have an opportunity to develop a defense to the possession of the handguns
because his request for a continuance after the court’s ruling was denied. Id. at 14. We
stated that “[t]he lack of notice and an opportunity to prepare a defense, the confusion of
the jury, and the adverse effect on [Guerra’s] trial tactics all demonstrate that the midtrial
amendment to th e complaint prejudiced Guerra’s substantial rights .” Id. We therefore
reversed Guerra’s conviction. Id.
We now turn to the circumstances in this case. The relevant charging statute
provides:

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A person who engages in a pattern of stalking conduct with
respect to a single victim or one or more members of a single
household which the actor knows or has reason to know would
cause the victim under the circumstances to feel terrorized or
to fear bodily harm and which does cause this reaction on the
part of the victim, is guilty of a felony . . . .

Minn. Stat. § 609.749, subd. 5(a) (2016). “[A] ‘pattern of stalking conduct’ means two or
more acts within a five -year period that violate or attempt to vio late the provisions of”
several listed criminal statutes, including statutes prohibiting domestic assault, violations
of domestic-abuse OFPs, and certain trespass offenses. Id., subd. 5(b) (2016).
Windell argues that, like the circumstances in Guerra, the jury instructions in this
case affected an essential el ement of the charged offense —pattern of stalking conduct —
and added an additional or different offense in violation of rule 17.05. Specifically,
Windell argues that “by allowing the state to use facts and evidence different than those
contained in the comp laint to prove that [he] was guilty of stalking, the district court’s
instruction amount[ed] to a constructive amendment.” He further argues that “the
amendment charged a different crime because the evidence that the state used to prove the
‘pattern of stalking conduct’ element as contained in the criminal complaint differed from
the evidence it used to prove the element as set out in the jury instructions.”
Although the amended complaint generally alleged that Windell had “assaulted”
V.H. in the past, it did not specifically mention the domestic assaults that allegedly
occurred on April 1, 2017, September 9, 2015, and February 19, 201 3,1 as a basis for

1 We do not include the January 5, 2016 OFP violation that was mentioned in the district
court’s instruction in our analysis for the reasons that follow. The complaint refers to
Windell’s violation of an OFP on January 25, 2016. However, the complaint also provides

10
criminal liability. Yet, the jury was instructed to consider those offenses for that purpose.
Moreover, the district court had ruled that the evidence regarding the alleged offenses on
September 9, 2015, and February 19, 2013, would be allowed as relationship evidence, that
is, for the purpose of establishing the nature of the relationship between Windell and V.H.
See Minn. Stat. § 634.20 (2016) ( stating that “[e] vidence of domestic conduct by the
accused against the victim of domestic conduct . . . is admissible unless the probative value
is substantially outweighed by the danger of unfair preju dice”); State v. McCoy , 682
N.W.2d 153, 159 (Minn. 2004) (stating that relationship evidence “illuminate[s] the history
of the relationship” between the accused and the alleged victim, “that is, [it] put[s] the
crime charged in the context of the relations hip between the two”). Consistent with that
purpose, the district court stated that “[t]his case is about what happened on this occasion,
and we don’t want . . . to go into the same detail on these other incidents” and that those
incidents “should be dealt with succinctly, and not in any way that is unduly prejudicial.”
Nonetheless, the district court instructed the jury to rely on the September 201 5 and
February 2013 incidents as substantive proof of the charged offense.
Like the handgun evidence in Guerra, evidence regarding Windell’s prior domestic
offenses was admitted for a limited purpose , and not as substantive proof of the charged
offenses. It was not until after the close of evidence that the district court indicated that

a case number for that offense , and the district court’s records indicate that the offense
occurred on January 5, 2016. Thus, it appears that the January 25 reference in the
complaint may be a typographical error. If so, the alleged January 5, 2016 OFP violation
contained in the jury instruction arguably is noticed in the criminal complaint. Because
the parties did not address this issue, and because inclusion of the alleged January 5, 2016
OFP violation in our analysis would not impact our decision, we do not include it.

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the evi dence w ould in fact be used as substantive proof of guilt. Although the jury
instruction presented the same category of offense as that charged in the complaint —
engaging in a pattern of stalking conduct —the offenses allegedly constituting the pattern
under the jury instruction were different than those described in the complaint. Instead of
requiring Windell to defend against a pattern consisting of incidents that occurred on
October 12 and 13, 2017, as well as violations of orders for protection that occ urred on
January 25, 2016 ,2 and November 25, 2015 —as alleged in the complaint —the jury
instruction required Windell to defend against a pattern based on three additional offenses
that allegedly occurred in 2017, 2015, and 2013.
The state argues that Windell’s “entire argument below (and on appeal) rests upon
a contention that he lacked notice that his prior acts of abuse against V.H. within the past
five years could be used against him” and that the “face of the complaint—with the statute
cited and prior acts note d—dooms [his] entire notice -based argument.” In overruling
Windell’s objection to the state’s proposed jury instruction, the district court similarly
reasoned: “I’m going to let it stand as it is because the definition of the crime invo lved a
five-year period, and so it’s pretty clear that anything within five years could be used.” We
are not persuaded by that reasoning because the issue here is not that Windell did not know
that his prior acts of abuse against V.H. could be used to prove a pattern. The issue is that
he was not informed which acts would be used until after the close of evidence.

2 Again, the January 25, 2016 offense date may be incorrect.

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The state also argues that because the district court instructed the jury “exactly as
the [stalking] statute provided” and “explained the elem ents of the crime, completely
consistent with the law, the [district] court did not abuse its discretion in instructing the
jury on pattern of stalking.” See State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014) (stating
that jury instructions must “accurately state the law in a manner that can be understood by
the jury”); State v. Koppi, 798 N.W.2d 358, 361 (Minn. 2011) (“[Appellate courts] review
a district court’s decision to give a requested jury instruction for an abuse of discretion.”).
But the issue that Windell raised in district court, and again on appeal, is not that the district
court inaccurately instructed the jury regarding the law, it is that the jury instruction
impermissibly varied from the offense charged in the complaint. This court analyzes such
an issue under rule 17.05. See DeVerney, 592 N.W.2d at 845 -46 (applying rule 17.05
because defendant argued that jury instruction resulted in an impermissible varianc e from
the indictment).
Based on the similarity of the circumstances of this case and those in Guerra, we
conclude that the district court’s instruction that the jury could consider the alleged offenses
from April 2017, September 201 5, and February 2013 , as proof of a pattern of stalking
conduct, resulted in Windell being charged with an additional or different offense in
violation of rule 17.05.
We next consider whether Windell’s substantial rights were prejudiced. Windell
argues that they were because he “was not given adequate notice of the complaint
amendment,” “he was not given the opportunity to defend against the different charge,”
and he “did not ask V.H. a single question in cross -examination regarding the incidents

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that allegedly occurred betwee n February 2013 and January of 2016, but focused his
examination entirely on the incidents occurring on October 12 and October 13.” Windell
also argues that if he had known that the limited relationship evidence would actually be
used to prove a pattern of stalking conduct, he might have cross-examined V.H. regarding
those incidents, called witnesses, or even testified in his own defense.
Windell’s arguments raise concerns similar to those that led this court to conclude
that Guerra’s substantial rights had been prejudiced. See Guerra, 562 N.W.2d at 14 (“The
lack of notice and an opportunity to prepare a defense, the confusion of the jury, and the
adverse effect on [Guerra’s] trial tactics all demonstrate that the midtrial amendment to the
complaint prejudiced G uerra’s substantial rights.”). The record supports Windell’s
argument that his defense was based on representations by the state and the district court
that the evidence regarding the September 2015 and February 2013 domestic assaults
would be used only to show the nature of the parties’ relationship and not as substantive
evidence of guilt. Expanding the use of that evidence to include substantive proof of the
stalking charge after the close of evidence p rejudiced Windell’s substantial rights in
violation of rule 17.05.
As to the remedy for a violation of rule 17.05, “[i]f the improper addition of charges
substantially prejudiced the defendant, a reviewing court must reverse the [district] court’s
decision to grant the motion.” Caswell, 551 N.W.2d at 253; see Guerra, 562 N.W.2d at 14
(“Because Rule 17.05 prohibits the amendment, we reverse Guerra’s conviction.”).
Because the jury instruction resulted in an additional or different offense and Windell’s

14
substantial rights were prejudiced, we reverse Windell’s stalking conviction and remand
for a new trial.
Because we reverse Windell’s stalking conviction on other grounds, we do not
address his argument that the “district court plainly erred by allowing th e jury to consider
both the alleged October 13, 2017, trespass and the alleged October 13, 2017, domestic
assault to find the pattern of stalking conduct element because both alleged crimes derived
from a single act” or that the district court committed plain error by admitting V.H.’s prior
recorded statements to Officer Womble and Sergeant Rowe. However, we briefly address
his argument that the district court “committed plain and fundamental error” by “fail[ing]
to properly instruct the jury that the stat e needed to prove two of the alleged criminal acts
beyond a reasonable doubt to sufficiently establish [he] committed a pattern of stalking
conduct.”
The relevant jury instruction was as follows:
The State must prove the pattern of stalking conduct beyo nd a
reasonable doubt, but it is not required to prove each separate
criminal act beyond a reasonable doubt for this charge. When
more than two criminal acts are alleged, each juror must agree
that more than one criminal act occurred. The jury does not
have to be unanimous about which criminal acts occurred, but
must be unanimous that more than one criminal act occurred.
I’m sorry, I think that’s mistaken. You must agree
unanimously that two criminal acts occurred, at least two.

(Emphasis added.)
Windell argues that “by failing to affirmatively inform the [jury] that it must find at
least two of the alleged criminal acts beyond a reasonable doubt, the district court’s

15
instruction conveyed to the jury that the state need not prove any of the criminal acts
beyond a reasonable doubt.”
We are not aware of precedent addressing the state’s burden of proof in the context
of a pattern of stalking. But in the context of a pattern of domestic abuse, the supreme
court has said that a pattern requires two predicate acts and that those two acts must be
proved beyond a reasonable doubt. State v. Johnson, 773 N.W.2d 81, 86-87 (Minn. 2009).
If the state alleges more than two predicate acts, the jury need not unanimously agree
regarding which two acts were committed; but the jury must agree, beyond a reasonable
doubt, that some combination of two acts was committed. Id. It is reasonable to believe
that those same principles apply in the pattern-of-stalking context. Thus, we are concerned
that the district court’s jury instruction that “[t]he State must prove the pattern of stalking
conduct beyond a reasonable doubt, but it is not required to prove each separate criminal
act beyond a reasonable doubt for this charge ” could have misled the jury by suggesting
that the state did not need to prove any of the acts beyond a reasonable doubt. If the state
elects to retry the stalking charge on remand, the district court should keep this concern in
mind.
II.
Windell contends that his conviction of felony domestic assault was not supported
by sufficient evidence. Windell was convicted under Minn. Stat. § 609.2242, subd. 4
(2016), which provides, “Whoever violates the provisions of this section or [the fifth -
degree-assault statute], within ten years of the first of any combination of two or more

16
previous qualified domestic violence -related offense convictions or adjudications of
delinquency is guilty of a felony.”3 Minn. Stat. § 609.2242, subd. 1 (2016), provides,
Whoever does any of the following against a family or
household member as defined in section 518B.01, subdivision
2, commits an assault and is guilty of a misdemeanor:
(1) commits an act with intent to cause fear in another
of immediate bodily harm or death; or
(2) intentionally inflicts or attempts to inflict bodily
harm upon another.

The parties agree that the domestic -assault charge in this case was based solely on
the theory that Windell committed an act with intent to cause fear in V.H. of immediate
bodily harm or death. Windell argues that the circumstantial evidence was insufficient to
prove such intent.
In considering a claim of in sufficient evidence, this c ourt’s review is limited to a
close analysis of the record to determine whether the evidence, when viewed in the light
most favorable to the conviction, was sufficient to allow the jury to reach the verdict that
it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume “the
jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the
jury, acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the
charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

3 Windell stipulated that he had necessary predicate convictions.

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An offense may be proved by direct or circumstantial evidence. Direct evidence is
“evidence that is based on personal knowledge or observation and that, if true, proves a
fact without inference or presumption.” State v. Harris , 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted). Circumstantial evidence is “evidence from which the factfinder
can infer whether the facts in dispute existed or did not exist.” Id. (quotation omitted).
Circumstantial evidence always requires an inferential step that is not required with direct
evidence. Id.
Because intent is a state of mind, it is “generally proved circumstantially —by
drawing inferences from the defendant’s words and actions in light of the totality of the
circumstances.” State v. Cooper , 561 N.W.2d 175, 179 (Minn. 1997). “ [T]he jury may
infer that a person intends the natural and probable consequences of his actions and a
defendant’s statements as to his intentions are not binding on the jury if his acts
demonstrated a contrary intent.” Id.
When the state relies on circumstantial evidence to prove an element of an offense,
we apply a heightened standard of review. See Harris, 895 N.W.2d at 601-03 (applying
circumstantial-evidence standard to individual element of criminal offense that was proved
by circumstantial evidence). First, we determine the circumstances proved. Loving v.
State, 891 N.W.2d 638, 643 (Minn. 2017). When evaluating the circumstances proved, we
“disregard evidence that is inconsistent with the jury’s verdict.” Harris, 895 N.W.2d at
601. Next, we determi ne if the circumstances proved are consistent with guilt and
inconsistent with any rational hypothesis other than guilt. Loving, 891 N.W.2d at 643. We
will reverse a conviction based on circumstantial evidence only if there is a reasonable

18
inference other than guilt. Id. We “will not overturn a conviction based on circumstantial
evidence on the basis of mere conjecture.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.
1998). “[P]ossibilities of innocence do not require reversal of a jury verdict so long as the
evidence taken as a whole makes such theories seem unreasonable.” State v. Stein , 776
N.W.2d 709, 719 (Minn. 2010) (quotation omitted).
Because the state relied on circumstantial evidence to prove Windell’s intent , we
apply a heightened standard of review. See Harris, 895 N.W.2d at 601-03.
The trial evidence established the following circumstances. Windell is the father of
two of V.H.’s children, who were seven and eight years old in October 2017. V.H. does
not have a custody agreement with Wind ell regarding their children. V.H. stopped living
with Windell in 2014, around the time that she moved to her current residence. Windell
has physically assaulted V.H. in the past. For example, he punched V.H. in the face
multiple times in February 2013 and September 2015.
On October 12, 2017, V.H. allowed Windell into her home, but V.H. asked Windell
to leave after he started to yell at her. Windell refused to leave and fell asleep in V.H.’s
home. V.H. called 911 to have Windell removed. Windell left V.H.’s home after the police
arrived and told him to leave. V.H. placed a chest freezer against the side door to her home
to prevent Windell from getting inside if he returned. Windell returned approximately 15
to 20 minutes later and wal ked back and forth outside V.H.’s home. Windell told V.H.,
“B---h, let me in,” and said he wanted his kids. V.H. again told Windell to leave , and he
did so.

19
At approximately 3:00 a.m. the next morning , Windell returned to V.H.’s home.
He used keys to unlock the side door and pushed on the door repeatedly. Windell was not
able to get inside because of the chest freezer that V.H. had placed against the door.
Windell demanded that V.H. let him in and stated that he wanted his children. V.H. asked
her daughter to call 911, and she did so. Police responded to the scene, and Windell began
to walk away. The police directed Windell to stop, and he ran from them.
Windell argues that , “[c]onsidering the state’s evidence as a whole, it cannot be
concluded without unsubstantiated speculation that [he] intended to cause V.H. to be afraid
of imminent bodily harm or death when he went to her residence on October 13.” Windell
argues that although “the evidence shows that [he] went to V.H.’s residence at an odd hour
that morning,” it “also shows that [he] did not exhibit physical violence towards V.H. on
that day or the day before, [he] did not threaten V.H. with physical violence at the time of
the incident, and [he] did not act in a physically aggressive manner during the altercation.”
We are not persu aded. Windell refused to leave V.H.’s home on October 12 ,
resulting in a police call to have him removed. Windell returned to V.H.’s home shortly
after being removed by the police and told V.H., “B---h, let me in,” and that he wanted his
kids. Despite being on notice that V.H. did not want him at her home, Windell returned at
3:00 a.m. on October 13, unlocked the side door and pushed on it repeatedly, demanding
that V.H. let him in and stating that he wanted his children. Windell’s demand to take his
children was threatening given the circumstances: Windell made the demand at 3:00 a.m.,
after V.H. had repeatedly told him to leave her home and enlisted police assistance in
removing him; V.H. did not have a child -custody arrangement with Windell ; Windell

20
repeatedly tried to push open a door to V.H.’s home that she h ad barricaded to keep him
out; and Windell had a history of physically assaulting V.H. Under the circumstances, i t
was reasonable for the jury to conclude that Windell intended to cause fear in V.H. of
immediate bodily harm and death. Thus, the circumsta nces proved are consistent with
guilt.
Windell argues that the evidence also supports a rational hypothesis other than guilt,
namely, that he “went to V.H.’s home to take his children from V.H.” Windell argues that
“[i]t is unclear” why the fact that he did not have a child-custody agreement or a legal right
to take the children “is relevant as to whether [he] went to V.H.’s home to take the children
or to commit fear assault.” It is not unclear to this court. The lack of a child -custody
agreement, coupled with the threatening circumstances described above, indicate that even
if Windell went to V.H.’s home to take his children, it is not reasonable to conclude that
Windell intended to do so peacefully.
In sum, the evidence taken as a whole makes Windell’s proffered alternative
hypothesis that he did not intend to cause V.H. to fear immediate bodily har m or death
seem un reasonable. Because t he circumstances proved are consistent with the jury’s
finding that Windell was guilty of felony domestic assault a nd inconsistent with any
rational hypothesis other than guilt, we affirm Windell’s conviction of felony domestic
assault.
Even though we reverse Windell’s conviction of stalking, we briefly address his
argument that the district court erred by entering judgment of conviction on the felony
domestic assault “because that crime is a lesser included offense of felony stalking.”

21
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). An
“included offense” means any of the following:
(1) [a] lesser degree of the same crime; or
(2) [a]n attempt to commit the crime charged; or
(3) [a]n attempt to commit a lesser degree of the same
crime; or
(4) [a] crime necessarily proved if the crime charged
were proved; or
(5) [a] petty misdemeanor necessarily proved if the
misdemeanor charge were proved.

Id.
“To determine whether an offense is an included offense falling under this statute,
a court examines the elements of the offense instead of the facts of the particular case. ”
State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). “An offense is necessarily included
in a greater offense if it is impossible to commit the greater offense without committing
the lesser offense. ” Id. (quotation omitted). This court reviews whether an offense
constitutes a lesser-included offense de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn.
2012).
Again, “a ‘pattern of stalking conduct’ means two or more acts within a five -year
period that violate or attempt to violate the provisions of” multiple listed statutes, including
statutes prohibiting first-degree murder, terroristic threats, domestic assault, violation of
domestic-abuse OFPs, certain trespass offenses, interference with an emergency call,
obscene or harassing telephone calls, burglary, damage to property, and criminal sexual
conduct. Minn. Stat. § 609.749, subd. 5(b).

22
Thus, under the stalking statute, felony domestic assault is one of many acts on
which the state may rely to prove a pattern of stalking conduct . See id., subd. 5(b)(5)
(listing domestic assault under Minn. Stat. § 60 9.2242 (2016) as an act which can be part
of a pattern of stalking conduct). But a person can engage in a pattern of stalking conduct
without committing a felony domestic assault. Because it is possible to engage in a pattern
of stalking conduct without committing felony domestic assault, felony domestic assault is
not an included offense of engaging in a pattern of stalking conduct within the meaning of
Minn. Stat. § 609.04.
III.
Windell contends that his sentence must be reduced because the district court erred
by including a 2003 out-of-state conviction as a felony in his criminal-history score.
The sentencing guidelines “provide uniform standards for the inclusion and
weighting of criminal history information that are intended to increase the fai rness and
equity in the consideration of criminal history.” State v. Reece , 625 N.W.2d 822, 824
(Minn. 2001) (quotation omitted). Convictions from other jurisdictions must be considered
in calculating a defendant’s criminal -history score under the guidel ines. Id.; see Minn.
Sent. Guidelines 2.B.5.a. (Supp. 2017); see also Minn. Sent. Guidelines cmt. 2.B.502
(Supp. 2017) (“The Commission concluded that convictions from other jurisdictions must,
in fairness, be considered in the computation of an offender’s criminal history score.”). An
out-of-state conviction may be counted as a felony in calculating a criminal -history score
only if it would be defined as a felony in Minnesota “based on the elements of the prior

23
non-Minnesota offense” and “the offender received a sentence that in Minnesota would be
a felony-level sentence.” Minn. Sent. Guidelines 2.B.5.b. (Supp. 2017).
“[T]he district court may not use out-of-state convictions to calculate a defendant’s
criminal-history score unless the state lays fo undation for the court to do so.” State v.
Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). The state has the burden of establishing
the facts necessary to justify consideration of out -of-state convictions in determining a
defendant’s criminal-history score. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
“The state must establish by a fair preponderance of the evidence that the prior conviction
was valid, the defendant was the person involved, and the crime would constitute a felony
in Minnesota.” Maley, 714 N.W.2d at 711 (citing State v. Griffin, 336 N.W.2d 519, 525
(Minn. 1983)). The supreme court has explained that if a certified copy of an out -of-state
conviction “cannot be obtained by the exercise of reasonable diligence, then other evidence
of the contents may be given.” Griffin, 336 N.W.2d at 525 (emphasis omitted) (quoting
Minn. R. Evid. 1005).
The district court “must make the final determination as to whether and how a prior
non-Minnesota conviction should be counted” in a defendant’s crimin al-history score.
Minn. Sent. Guidelines 2.B.5.a. This court reviews the district court’s calculation of a
defendant’s criminal-history score for an abuse of discretion. State v. Stillday, 646 N.W.2d
557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).
After the jury returned its verdict in this case , the district court asked whether
Windell wanted a presentence investigation (PSI) before sentencing . A PSI had been
completed months earlier when Windell had entered a guilty plea, which he later withdrew.

24
Defense counsel noted the earlier PSI and stated that an updated PSI was not necessary.
The prosecutor noted that the probation officer who completed the PSI had indicated that
she was unable to confirm a 2003 Cook County, Illin ois conviction and therefore had not
included it in her criminal -record summary. The prosecutor stated that he would obtain
records confirming that conviction.
At the sentencing hearing, the state asked the district court to include a 2003 Cook
County, Illinois conviction of manufacture or delivery of a controlled substance in the
calculation of Windell’s criminal-history score. The prosecutor explained,
We were able to obtain records from Cook County both
a copy of the criminal complaint as well as what appears to be
something similar to their register of action indicating that
[Windell] was convicted of the statute as alleged in the
complaint so we believe that point and a half that is indicated
on the criminal record summary is appropriate and that the
defendant’s criminal history score is five.

I did consult with [the probation officer who completed
the earlier PSI ] and based on the records that were provided
she did agree.

Neither the Cook County criminal complaint nor the equivalent of a register of action was
received as evidence at the sentencing hearing. Thus, those documents are not part of the
record on appeal.
Windell objected to the inclusion of the a lleged 2003 Illinois conviction , arguing
that the documentation provided by the state did not sufficiently substantiate the
conviction. The district court stated that it was “going to rely on the probation officer in
this matter whose job it is to calculate criminal history scores and tell us what the guideline
sentence is.” The district court included the 2003 Illinois conviction, determined Windell’s

25
criminal-history score to be five, and sentenced Windell based on that criminal -history
score.
Windell argues that the state failed to d emonstrate that it had exercised reasonable
diligence “to obtain a certified record or a certified copy before resorting to alternative
forms of evidence to prove the out-of-state conviction.” (Emphasis omitted.) Windell also
argues that the state did no t “provide a satisfactory alternative to a certified record or a
certified reproduction.”
The state counters that the record is sufficient to establish the existence of the 2003
Illinois conviction b ecause the state relied on a copy of the underlying complaint and
“something similar” to Cook County’s register of action and “consulted with probation
who agreed that based upon Windell’s criminal record—including the Illinois conviction—
his correct criminal history score was five points.”
In State v. Jackson, this court held that the unsworn testimony of a defendant’s
probation officer regarding a prior out-of-state conviction was sufficient to establish that
conviction for the purpose of the defendant’s criminal -history score. 358 N.W.2d 681,
682-83 (Minn. App. 1984). But Jackson is distinguishable. Here, the assigned probation
officer was not present at the sentencing hearing and did not present any information to the
district court regarding the circumstances of the Illinois conviction. And again, the Cook
County documents on which the prosecutor relied are not of record on a ppeal. Thus, the
evidence regarding Windell’s 2003 Illinois conviction consists of the prosecutor’s
representations regarding a probation officer’s opinion and the contents of two documents
that are not of record.

26
Assuming, without deciding, that the prosecutor’s statements were adequate to
prove the existence of the prior Illinois conviction, the statements do not tell us anything
about the elements of the offe nse or the sentence. That information is necessary to
determine whether the conviction was properly included in Windell’s criminal -history
score. See Minn. Sent. Guidelines 2.B.5.b. On this record, we cannot determine whether
the district court correct ly included the Illinois conviction in Windell’s criminal -history
score because the documents on which the district court relied are not of record. Thus, the
state has not met its burden to show that inclusion of the alleged 2003 Illinois conviction
in Wi ndell’s criminal history was appropriate. We therefore reverse and remand for
resentencing.
Windell argues that , because he objected to the use of the alleged 2003 Illinois
conviction at sentencing, the “state was therefore on notice that it would have to prove the
conviction by a preponderance of the evidence and it failed to do so.” Windell argues that,
“[h]aving failed to meet that burden once, there is no reason the state should be given
another opportunity to prove the Illinois conviction” and that this “Court should order upon
remand that [he] be sentenced without it.”
When a defendant does not object to the use of an out -of-state conviction in his
criminal-history score at sentencing and then successfully challenges the use of that
conviction on appeal, this court has allowed the state to develop the record on remand. See,
e.g., State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008) (allowing the state to further
develop the record on remand because defendant did not object to the district court’s
determination that his out -of-state convictions were felonies) , review denied (Minn.

27
July 15, 2008). We are not aware of precedent holding that the state is precluded from
developing the record on remand if the defendant objected to the state’s use of an out-of-
state conviction at sentencing. Cf. Maley, 714 N.W.2d at 713 -15 (noting defendant’s
objections to his criminal -history score, concluding that alleged out -of-state convictions
were insufficiently documented, and reversing and remanding without indicating whether
state could develop the record on remand ). On remand, the district court shall make an
initial determination regarding whether to allow the state to further develop the record. See
Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“[An appellate court] generally will not
decide issues which were not raised before the district court . . . .”).
In conclusion, we affirm Windell’s conviction of felony do mestic assault. But we
reverse and remand Windell’s conviction of stalking, as well as his sentence.
Affirmed in part, reversed in part, and remanded.