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This opinion will be unpublished and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
A18-1480

State of Minnesota,
Respondent,

vs.

Antonio Desean Howard,
Appellant.

Filed August 5, 2019
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Olmsted County District Court
File No. 55-CR-17-540

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from the judgment of conviction of first- and third-degree
criminal sexual conduct, appellant argues that (1) the prosecutor committed misconduct
2
during closing arguments by disparaging the defense and implying that appellant bore the
burden of proof; (2) the district court erred by permitting the state to impeach him with
three prior convictions; (3) the district court erred by admitting evidence of a prior incident
between him and the victim as relationship evidence; and (4) the warrant of commitment
must be amended to reflect that no conviction was entered on the lesser-included offense
of third-degree criminal sexual conduct.
First, we conclude that the prosecutor committed mis conduct in his closing
argument, but the misconduct did not affect appellant’s substantial rights. Next, we
conclude that the district court did not abuse its discretion by permitting the state to
impeach appellant or by admitting relationship evidence. Finally , we conclude that the
district court erred by formally entering judgment of conviction of third-degree criminal
sexual conduct because it is a lesser-included offense of first-degree criminal sexual
conduct. Thus, we affi rm in part, reverse in part, and remand to the district court with
instructions to vacate the formal adjudicated conviction of third-degree criminal sexual
conduct, but to leave the finding of guilt in place.
FACTS
The evidence at trial established that, in 2016, H.R. owned and lived in a
two-bedroom mobile home in Rochester, Minnesota. H.R. stayed in the master bedroom
and had several roommates: A.G. and his girlfriend shared the second bedroom; and M.H.
and her boyfriend slept on the couch in the living room. In April or May 2016, A.G. invited
his friend and coworker, appellant Antonio Desean Howard, to stay in the home. H.R. did
not know Howard before he moved in, but allowed him to stay because he was “having a
3
tough time.” Additionally , until August 22, 2016, H.R.’s ex-boyfriend lived in the home
and slept in the master bedroom.
On August 28, 2016, H.R. visited a friend and returned home at around 11:30
p.m. M.H. and her boyfriend were sleeping on the couch, and A.G. “and his girlfriend
were in the spare bedroom sleeping.” H.R. entered her room, and saw Howard sitting in a
rocking chair. H.R. got into bed, and began watching a television show on her laptop;
Howard sat in the rocking chair while “smoking a blunt of K2.” 1 At one point, Howard
slept for “ten, fifteen minutes,” woke up, climbed into bed next to H.R., and “started
reaching toward [her.]” H.R. told Howard that she did not want to be touched or have sex,
and that she wanted him to leave her alone. Howard fell asleep, and dropped his “lit blunt”
on H.R., who left the bed and sat in the chair. After Howard woke up and got out of bed,
H.R. returned to bed while Howard sat in the chair.
Later, Howard came back to the bed, laid on top of H.R., and pushed her “head into
the pillow with his hand somewhat around [her] throat.” H.R. said “no and . . . was
crying,” but Howard pulled down her shorts and her underwear, and “put his penis in [her]
butt.” This caused H.R. “a lot of pain” because she had surgery in July to remove a cyst “at
the bottom of [her] tailbone.” Howard then put his penis in H.R.’s vagina, while H.R. cried
with her face in the pillow. Howard ejaculated, and then went to the bathroom before
leaving for work. H.R. waited for Howard to leave and then fell asleep.

1 “K2” is a controlled substance, described at trial as “synthetic marijuana.”
4
Later in the afternoon of August 29, H.R. told A.G.’s girlfriend and M.H. about the
assault. At around 3:00 p.m., A.G. and Howard came home, and Howard denied that the
assault had taken place. H.R. left to stay with friends. M.H. reported the assault to police.
On August 30, Officer Osborne called and left a voicemail for H.R., who returned
his call. T hey discussed her “going to the hospital to do a rape kit.” Also on August 30,
H.R. went to the hospital, and was examined by a sexual assault nurse examiner. During
the examination, the nurse noticed bleeding at H.R.’s “cervix opening,” and reported that
H.R. was tender and complained of pain “both on the labia majora and . . . the anal area.”
On August 31, H.R. met with Investigator Johnson and reported that she had been sexually
assaulted by Howard on August 29.
The state charged Howard with two counts stemming from the August 29
incident: first-degree criminal sexual conduct (personal injury and force or coercion) under
Minn. Stat. § 609.342, subd. 1(e)(i) (2016), and third-degree criminal sexual conduct (force
or coercion) under Minn. Stat. § 609.344, subd. 1(c) (2016).
Before trial, the state moved for permission to impeach Howard with four prior
convictions. Howard opposed the state’s motion and moved to preclude testimony from
H.R. about a prior instance in which she claimed that Howard had tried to pull down her
shorts while she slept. After a hearing, the district court allowed the state to impeach
Howard with three prior convictions. The district court also ruled that the prior incident
between Howard and H.R. was admissible to “illuminate . . . the relationship of the
parties.”
5
During the jury trial, H.R., M.H., Osborne, the nurse, and Johnson testified to the
facts above. Howard waived his right to remain silent and testified that he and H.R. were
friends. He testified that, on August 29, he smoked a blunt in the rocking chair and H.R.
talked to him about her ex-boyfriend. Later, Howard testified that H.R. invited him to lie
down with her and watch a movie, and they had consensual sex. Howard acknowledged
his three prior convictions on both direct- and cross-examination.
The jury found Howard guilty of count one, first-degree criminal sex ual conduct
and count two, third- degree criminal sexual conduct. At sentencing, the district court
denied Howard’s motion for a downward durational departure. The district court
adjudicated the conviction of count one and imposed a sentence of 306 months. The district
court also stated that count two was the “same type of behavior” as count one. Two days
later, however, the district court issued a warrant of commitment that included judgments
of convictions of both first- and third-degree criminal sexual conduct. This appeal follows.
D E C I S I O N
I. Howard is not entitled to a new trial based on prosecutorial misconduct that
occurred during the state’s closing argument.

Howard argues that the prosecutor committed misconduct during his closing
argument, and that the misconduct “amounted to plain error by repeatedly disparaging the
defense and implying that [Howard] bore a burden of proving his innocence.” Howard
asserts that the state cannot show that the statements in the prosecutor’s closing argument
did not affect the jury’s verdict, and contends, therefore, that this court must reverse his
6
convictions and remand for a new trial. The state argues that there was no misconduct or,
if there was misconduct, it did not affect Howard’s substantial rights.
At trial, Howard did not object to the state’s closing argument. When the defendant
fails to object during trial, this court reviews allegations of prosecutorial misconduct under
a modified plain-error standard, in which the appellant must establish (1) error and (2) that
the error was plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Plain error is one
that was clear or obvious, which may be the case if the error “contravenes case law, a rule,
or a standard of conduct.” Id. If the appellant establishes plain error, then the burden shifts
to the state to demonstrate that the misconduct did not affect the appellant’s substantial
rights. Id. If the three elements of the modified plain-error test are satisfied, this court must
then determine whether to address the error to ensure the fairness and integrity of judicial
proceedings.2 Id.
Howard submits that prosecutorial misconduct occurred when the prosecutor
“repeatedly referred to [ the defense attorney’s ] closing arguments as ‘straw man’
arguments and suggested that these arguments could not ‘create reasonable doubt.’”
Specifically, Howard identifies the following from the prosecutor’s rebuttal as misconduct:

2 Howard contends that “the fairness and integrity ” prong does not apply to our review of
prosecutorial-misconduct claims. We disagree. Binding precedent states that where this
court finds prosecutorial misconduct, “[i]f the state fails to demonstrate that substantial
rights were not affected, the appellate court then assesses whether it should address the
error to ensure fairness and the integrity of the judicial proceedings.” State v. Davis,
735 N.W.2d 674, 682 (Minn. 2007) (quotation omitted). Davis did not reach the
fairness-and-integrity element in its analysis of the prosecutor’s misconduct because the
state proved that the defendant’s substantial rights were not affected. Id.
7
• Howard’s attorney’s closing argument “wasn’t based on the evidence,
and it wasn’t based on reason, and it wasn’t based on good judgment,
and it wasn’t based on common sense.”

• “And the main way in which it was argued was a form of argument
called a straw man argument. And this is the kind of argument that
one person involved in the dispute puts up, but only to knock it down.
Puts up a claim that, oh, the State’s claiming this, or you must believe
this for the Defendant to be guilty and then you can knock it down so
easily. But those straw man arguments aren’t really a straightforward
way of dealing with the issues in this case, and they didn’t
demonstrate to you a reasonable doubt.”

• In response to Howard’s attorney’s argument that H.R. lacked visible
injuries: “That’s the kind of straw man argument that simply does not
create reasonable doubt.”

• The prosecutor referred to Howard’s attorney ’s argument that H.R.
did not make noise during the assault as “another straw man
argument.” The prosecutor also stated that this was “an example of a
straw man argument, an argument that doesn’t make sense, isn’t based
upon good judgment, life experience, and common sense, and
certainly creates no reasonable doubt in this case.”

Howard argues that these statements were error because they disparaged the defense and
misstated the burden of proof.
First, we agree that the prosecutor’s references to “straw man” arguments were plain
error.3 The supreme court has held that “it is improper during closing arguments for the
State to invite jurors to speculate as to the motivation for a defendant to try the case a
specific way.” State v. Pearson, 775 N.W.2d 155, 164 (Minn. 2009). The state is permitted
to “argue that there is no merit to a particular defense in view of the evidence or no merit

3 A straw-man argument is a “tenuous and exaggerated counterargument that an advocate
makes for the sole purpose of disproving it.” Black’s Law Dictionary 1647 (10th ed. 2014).
We note that Howard’s attorney’s arguments regarding lack of noise, lack of injury , and
consent were not actually straw-man arguments, as that term is commonly defined.
8
to a particular argument.” State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993). But the
prosecutor’s broad statements here appear to belittle Howard’s defense. See i d. For
example, the prosecutor’s reference to a straw-man argument implies that Howard’s
testimony that H.R. consented was only being offered because “nothing else [would]
work.” State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994) (holding that prosecutors
may not belittle a defense in the abstract or suggest a defendant raised a particular defense
because it was the only defense that “might work”).
Second, we agree that the prosecutor’s “does not create reasonab le doubt”
arguments were also plain error. The supreme court has held that “ misstatements of the
burden of proof are highly improper and constitute prosecutorial misconduct.” State v.
Coleman, 373 N.W.2d 777, 782 (Minn. 1985). Here, the prosecutor implied that H oward
had the burden of proof. See State v. Martin, 773 N.W.2d 89, 105 (Minn. 2009)
(“Prosecutors improperly shift the burden of proof when they imply that a defendant has
the burden of proving his innocence.”).
Because Howard established plain error, the burden shifts to the state to establish
that the error did not affect Howard’s substantial rights. See Ramey, 721 N.W.2d at 302.
An error affects a defendant’s substantial rights if it was prejudicial and affected the
outcome of the case. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). “ An error is
prejudicial if there is a reasonable likelihood that the error had a significant effect on the
jury’s verdict.” Id. (quotations omitted). In evaluating the effect on substantial rights, this
court considers various factors, such as “the pervasiveness of improper suggestions ” and
“the strength of evidence against the defendant.” Id. When reviewing a prosecutor’s closing
9
arguments, this court “review[s] the closing argument as a whole.” State v. Cao, 788
N.W.2d 710, 717 (Minn. 2010); see State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993)
(noting that courts look at the state’s argument “as a whole, rather than just selective
phrases or remarks that may be taken out of context or given undue prominence”).
The state contends that any error did not affect Howard’s substantial rights because
the disputed comments were brief and not pervasive, and there was ample testimony
supporting Howard’s conviction. See Parker, 901 N.W.2d at 926 -27 (considering the
pervasiveness of improper suggestions and the strength of evidence against the defendant
to determine whether the error affected substantial rights). Howard asserts that, because
these statements took place during the state’s rebuttal, the statements were more damaging
as they “were the final statements the jury heard before retiring to deliberate.”
Based on our careful review of the record, we conclude that the prosecutorial
misconduct during rebuttal argument did not affect Howard’s substantial rights. The vast
majority of the prosecutor’s closing argument focused on the applicable law and the state’s
evidence. See State v. Johnson, 616 N.W.2d 720, 729-30 (Minn. 2000) (noting that a
prosecutor’s comments must be considered in the context of the entire closing argument).
In fact, the disputed statements were, according to the state’s brief to this court, less than
“twenty percent of [the state’s] closing remarks.” See State v. Washington, 521 N.W.2d 35,
40 (Minn. 1994) ( concluding there was no prejudice when improper comments found in
only four out of 45 transcript pages).
Despite the limited nature of the prosecutor’s improper remarks, Howard had no
opportunity to respond because the remarks occurred during rebuttal. See Davis, 735
10
N.W.2d at 682; see also State v. Buggs, 581 N.W.2d 329, 341 (Minn. 1998) (noting that
“the defense had an opportunity to rehabilitate the appellant on re-direct and to respond to
the remarks in closing argument, clearly lessening the possibility that the remarks
contributed to the verdict”). This is very concerning. Our concern is lessened, however,
when we consider the prosecutor’s rebuttal as a whole. See Johnson, 616 N.W.2d at 729.
The prosecutor began the rebuttal by reiterating that the state has the burden of proving
Howard guilty “beyond a reasonable doubt,” and that this was a “high standard of proof.”
The prosecutor went on to define “proof beyond a reasonable doubt” and stated twice that
Howard was “presumed innocent.”
In addition, the state presented a strong case against Howard, including H.R.’s
testimony, M.H.’s testimony, testimony from police officers and the nurse about H.R.’s
statements to them, which were consistent with H.R.’s testimony, and medical records from
H.R.’s sexual-assault exam. The district court also properly instructed the jury on the
presumption of innocence and the state’s burden to prove Howard guilty beyond a
reasonable doubt. See State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (“[A]
prosecutor’s attempts to shift the burden of proof are often nonprejudicial and harmless
where . . . the district court clearly and thoroughly instructed the jury regarding the burden
of proof.”). For the reasons mentioned, we conclude that the prosecutor’s misconduct
during rebuttal argument did not affect Howard’s substantial rights. 4 Accordingly, a new
trial is not warranted.

4 Even if we were to assume, without deciding, that the prosecutor’s misconduct affected
Howard’s substantial rights, the f inal step in the modified plain-error analysis is whether
11
II. The district court did not abuse its discretion by permitting the state to
impeach Howard with three prior felony convictions.

Howard contends that the district court erred by allowing the state to impeach
Howard with “three of his unsanitized prior convictions.” The state was permitted to
impeach Howard with the following prior felony convictions: (1) a 2005 third-degree
controlled-substance crime, (2) a 2005 fifth-degree controlled-substance crime, and (3) a
2012 domestic assault. Appellate courts “will not reverse a district court’s ruling on the
impeachment of a witness by prior conviction absent a clear abuse of discretion.” State v.
Hill, 801 N.W.2d 646, 651 (Minn. 2011) (quotation omitted).
Prior-conviction evidence is admissible if the crime is a felony and “the court
determines that the probative value of admitting this evidence outweighs its prejudicial
effect.” Minn. R. Evid. 609(a). In conducting this balancing test, the district court considers
five factors:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater the reason for not permitting use of
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). Because the district court is in “a
unique position” to assess and weigh the Jones factors, “it must be accorded broad

the prosecutor’s misconduct affected the fairness and integrity of the judicial proceedings
and, therefore, requires reversal. Davis, 735 N.W.2d at 682. We would then conclude that,
in Howard’s case, the fairness and integrity of judicial proceedings were not jeopardized
and a new trial is not required. Howard was “afforded a complete adversarial trial” and
“presented his defense and theory of the case.” State v. Kelley, 832 N.W.2d 447, 457 (Minn.
App. 2013), aff’d on other grounds, 855 N.W.2d 269 (Minn. 2014).
12
discretion.” State v. Hochstein, 623 N.W .2d 617, 625 (Minn. App. 2001). “[A]ny felony
conviction is probative of a witness’s credibility, and the mere fact that a witness is a
convicted felon holds impeachment value.” Hill, 801 N.W.2d at 652. “If credibility is a
central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of
the prior convictions.” State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).
Here, the district court considered each of the five Jones factors on the record. The
district court concluded that Howard’s criminal activity after the prior offenses and before
the current charges weighed in favor of admission. The district court also found that the
2005 drug convictions were “not similar at all” to the crimes charged, and the 2012
domestic assault was “different enough.” The district court found that Howard’s testimony
was very important to the case, and credibility was a central issue. After considering each
of the Jones factors, the district court concluded that it would use a cautionary instruction
and allow the state to impeach Howard with the three prior felony convictions.
Still, Howard makes several arguments as to why the district court abused its
discretion in allowing these convictions. First, Howard argues that the convictions had little
impeachment value. But the district court specifically found that these convictions would
help the jury to see Howard as a “whole person,” which is the relevant inquiry in the first
Jones factor. See id. (holding “ that a prior conviction can have impeachment value by
helping the jury see the ‘whole person’ of the defendant”).
13
Next, Howard argues that the 2005 fifth-degree drug conviction was “possibly
decayed” and, therefore, inadmissible. 5 “Evidence of a conviction . . . is not admissible if
a period of more than ten years has elapsed since the date of the conviction or of the release
of the witness from the confinement imposed for that conviction, whichever is the later
date.” Minn. R. Evid. 609(b). At the motion hearing, the prosecutor stated that Howard
served an executed prison sentence for the 2005 fifth-degree conviction which “lasted past
August 29, 2006.” In addition, Howard’s trial attorney stated that both of the 2005
convictions fell within the ten -year period, but noted that they were “just on the cusp.”
Finally, the presentence investigation stated that, on October 24, 2005, Howard was
committed for 21 months for the fifth-degree c ontrolled-substance crime. This record
supports the prosecutor’s assertion that Howard would have been released after August 29,
2006. Thus, the district court’s finding that thi s conviction was within the ten- year period
before August 29, 2016, was not an abuse of its discretion.
Third, Howard argues that the 2012 domestic-assault conviction was too similar to
the crimes charged in the current case. Jones stated that “the greater the similarity” between
the prior crime and the charged crime, “the greater the reason for not permitting use of the
prior crime to impeach.” 271 N.W.2d at 538. Howard cites no authority for his assertion
that domestic assault and criminal sexual conduct are too similar to allow admission of the
2012 conviction. He contends that both crimes involve “a nonconsensual act of violence

5 In his brief to this court, Howard agrees that the 2005 third-degree controlled-substance
conviction fell within the ten- year period because he was “likely released from
confinement sometime in 2008” for that conviction.
14
committed against people from the defendant’s personal life.” But relevant caselaw has
held that a district court does not abuse its discretion by permitting impeachment with
crimes more similar than domestic assault and criminal sexual conduct. See, e.g., State v.
Frank, 364 N.W.2d 398, 399 (Minn. 1985) (holding that the admission of two rape
convictions in a first-degree criminal -sexual-assault trial was not an abuse of the district
court’s discretion); State v. Flemino, 721 N.W.2d 326, 229 (Minn. App. 2006) (approving
impeachment evidence of a burglary conviction at a robbery trial).
Finally, Howard argues that the district court abused its discretion by “failing to
require the impeachment . . . with unspecified felony convictions.” The supreme court has
held that the decision to sanitize prior convictions is left to the district court. Hill,
801 N.W.2d at 652-53. The district court in this case properly balanced the probative value
and the prejudicial effects of the impeachment evidence. We conclude that the district court
did not abuse its broad discretion by declining to sanitize Howard’s convictions. In sum,
the district court did not abuse its discretion by allowing the state to impeach Howard with
three prior felony convictions.
III. The district court did not abuse its discretion by allowing testimony regarding
a prior incident between Howard and H.R. as relationship evidence.

H.R. testified that, in June 2016, after a birthday party, she fell asleep on the couch
in the living room. H.R. stated that she woke up to Howard “pulling . . . at [her] shorts.”
After this occurred, H.R. testified that she felt very uncomfortable with “having [Howard]
at the house” and asked for A.G.’s help in evicting Howard. In a pretrial order, the district
court allowed H.R.’s testimony as relationship evidence. Howard argues that this evidence
15
was not admissible because “1) the prior incident did not constitute a crime, [and] 2) it did
not illuminate the relationship between [Howard] and [H.R.].” We review the district
court’s admission of relationship evidence for an abuse of discretion. State v. Hormann,
805 N.W.2d 883, 888 (Minn. App. 2011), review denied (Minn. Jan. 17, 2012). To be
entitled to relief, an appellant must show that the district court abus ed its discretion and
that he was prejudiced as a result. Id.
General “relationship evidence is character evidence that may be offered to show
the strained relationship between the accused and the victim . . . [and] such evidence has
further probative value when it serves to place the incident for which appellant was charged
into proper context.” 6 State v. Loving, 775 N.W.2d 872, 880 (Minn. 2009) (quotations
omitted). Relationship evidence may illuminate the relationship between the defendant and
the alleged victim, and place a crime in the context of that relationship. See id.; see also
Hormann, 805 N.W.2d at 890 (stating that relationship evidence includes evidence of a
“strained relationship” that puts the incident between the accused and the victim in
context). Before admitting the relevant evidence, district courts must consider whether the
relationship evidence should be excluded because its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

6 Howard relies solely on the claim that the prior-incident evidence was inadmissible under
Minn. Stat. § 634.20 (2016), which provides that a district court may admit evidence of
“domestic conduct by the accused against the victim of domestic conduct, or against other
family or household members . . . unless the probative value is substantially outweighed
by the danger of unfair prejudice.” See Minn. Stat. § 634.20. But section 634.20 describes
only one “subtype of general relationship evidence.” State v. Bell, 719 N.W.2d 635, 638-39
n.4 (Minn. 2006). Here, the district court did not rely on section 634.20 in admitting the
prior-incident evidence.
16
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence. Minn. R. Evid. 403.
First, Howard disputes that the prior-incident evidence was relevant or “qualif[ies]
as relationship evidence.” Relationship evidence assists the factfinder by providi ng a
context with which it can better judge the credibility of the people in the relationship. See
Loving, 775 N.W.2d at 880. We agree with the district court that evidence of a previous
incident where Howard attempted to pull down H.R.’s shorts is relevant, and revealed that
Howard had “some sexual interest in the alleged victim.” The evidence, as stated by the
state, also “shows a prior instance where the alleged victim said no to a sexual advance.”
Thus, the evidence helped illuminate the context of the strained relationship between
Howard and H.R. See id. In addition, the evidence corroborated H.R.’s testimony about
the events of August 29, 2016, namely, that Howard initiated sexual contact with H.R.
Second, Howard argues that the relationship evidence was more prejudicial than
probative. We disagree. “When balancing the probative value against the potential
prejudice, unfair prejudice is not merely damaging evidence, even severely damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving
one party an unfair advantage.” Bell, 719 N.W.2d at 641 (quotation omitted). We have
already discussed the probative value of the evidence. And, to balance the probative value
against any unfair prejudice, the district court instructed the jury that the relationship
evidence should be considered “only to test the believability and weight of the witnesses’
testimony.” See State v. Ware, 856 N.W.2d 719, 729 (Minn. App. 2014) (noting that in the
context of section 634.20 relationship evidence, the “district court’s limiting instruction
17
lessens the probability of undue weight being given by the jury to the evidence.” (quotation
omitted)). Thus, we conclude that the district court did not abuse its discretion in admitting
the previous incident between H.R. and Howard as relationship evidence. 7
IV. The warrant of commitment must be corrected.

At sentencing, the district court adjudicated and sentenced Howard for count one ,
and stated that count two was the “same type of behavior.” The district court later issued a
warrant of commitment, however, that included a conviction of third-degree criminal
sexual conduct.
On appeal, Howard argues that the adjudication for count two must be vacated,
because the district court’s oral sentencing pronouncement must control and because
third-degree criminal sexual conduct is an included offense of first-degree criminal sexual
conduct. The state agrees that the “warrant of commitment should be corrected to reflect
the district court’s pronouncement and the statutory prohibition on multiple convictions for
a crime and its lesser included offense.” Although the state agrees that the conviction
should be corrected, we conduct an independent inquiry. See State v. Hannuksela , 452
N.W.2d 668, 673 n.7 (Minn. 1990).
Under section 609.04, subdivision 1, a person may be convicted of a crime charged
or of a lesser-included offense, but not both. Minn. Stat. § 609.04, subd. 1 (2016). A
lesser-included offense is “[a] crime necessarily proved if the crime charged were proved.”

7 Finally, Howard asserts that the “cumulative effect” of the alleged trial errors deprived
him of a fair trial. See State v. Penkaty, 708 N.W.2d 185, 206 (Minn. 2006). Because we
find only one error, there is no “cumulative effect” as asserted by Howard.
18
Id., subd. 1(4). When a jury finds a defendant guilty of more than one offense based on a
single course of conduct, the district court should “adjudicate formally and impose sentence
on one count only.” State v. Pflepsen, 590 N.W.2d 759, 766 (Minn. 1999).
The record indicates, and the state does not dispute, that both charges against
Howard were based on the same act, the nonconsensual sexual penetration. See Minn. Stat.
§§ 609.342, subd. 1(e)(i), 609.344, subd. 1(c). The difference between the two offenses is
that count one, first-degree criminal sexual conduct, has a personal -injury element that
count two does not have. Thus, count two was “necessarily proved” by count one, and is a
lesser-included offense. See State v. Koonsman, 281 N.W.2d 487, 489-90 (Minn. 1979)
(holding it would violate section 609.04 to convict defendant of “two counts of criminal
sexual conduct in the third degree and two in the fourth degree” for one act of criminal
sexual conduct.)
Accordingly, we reverse and remand to the district court with instructions to vacate
Howard’s conviction of count two but to leave the finding of guilt in place. See State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (stating that the proper procedure “when
the defendant is convicted on more than one charge for the same act is for the court to
adjudicate formally and impose sentence on one count only,” and to leave the remaining
count unadjudicated); State v. Crockson, 854 N.W.2d 244, 248 (Minn. App. 2014), review
denied (Minn. Dec. 16, 2014).
Affirmed in part, reversed in part, and remanded.