State of Minnesota, Respondent, vs. Michael Anthony Pitts, Appellant.

This opinion will be unpublished and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
A18-1675
State of Minnesota,
Respondent,
vs.
Michael Anthony Pitts,
Appellant.
Filed August 19, 2019
Affirmed
Klaphake, Judge*
Hennepin County District Court
File No. 27-CR-17-23933
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, John Patrick Monnens, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Hooten, Judge; and Klaphake ,
Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Following a jury trial, appellant Michael Anthony Pitts was found guilty of
promoting the prostitution of an individual by knowingly procuring a patron for
prostitution. See Minn. Stat. §§ 609.322, subd. 1a(2), .321, subd. 7(1) (2016). On appeal,
appellant argues that (1) the state failed to prove beyond a reasonable doubt that he
knowingly procured a patron for a prostitute; (2) the state committed prejudicial
misconduct in its closing argument; and (3) the district court erroneously included prior
federal convictions in the calculation of his criminal history score, resulting in an excessive
and unreasonable sentence of 180 months’ imprisonment. We affirm.
D E C I S I O N
I.
In considerin g a claim of insufficient evidence, appellate courts “conduct a
painstaking review of the record to determine whether the evidence and reasonable
inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient
to allow the jury to reach its verdict.” Lapenotiere v. State, 916 N.W.2d 351, 360 (Minn.
2018) (quotation omitted). “Assessing the credibility of a witness and the weight to be
given a witness’s testimony is exclusively the province of the jury.” State v. Mems , 708
N.W.2d 526, 531 (Minn. 2006). Indeed, the jury may accept part of a witness’s testimony,
and reject the rest. Id.
We 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). “And we will not disturb

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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 that the
defendant was guilty of the charged offense.” State v. Ortega, 813 N.W.2d 86, 100 (Minn.
2012).
“[T]he due process clause of the fourteenth amendment to the United States
Constitution requires the state to prove each element of the crime charged beyond a
reasonable doubt.” State v. Merrill, 428 N.W.2d 361, 366 (Minn. 1988). Thus, to convict
appellant of section 609.322, subdivision 1a(2), the state was required to prove, beyond a
reasonable doubt, that appellant, “while acting other than as a prostitute or patron,
intentionally . . . promote[d] the pr ostitution of an individual.” Id. Promoting the
prostitution of an individual is defined as knowingly soliciting or procuring a patron for a
prostitute. Minn. Stat. § 609.321, subd. 7(1).
Procuring is not statutoril y defined. Thus, at trial, the district court instructed the
jury to apply “the common, ordinary meaning” of the word, “procure.” “In the absence of
a given definition[,] . . . we often consult dictionary definitions to ascertain the plain and
ordinary meaning of words or phrases.” State v. Washington, 908 N.W.2d 601, 607 (Minn.
2018) (quotation omitted). Black’s Law Dictionary provides that procure, a verb, is “[t]o
obtain a sexual partner for another, esp. an unlawful partner such as a minor or a prostitute.”
Black’s Law Dictionary 1401 (10th ed. 2014). Similarly, Merriam-Webster provides that
procure is “to obtain (someone) to be employed for sex (as for an individual or in a house
of prostitution).” Merriam-Webster (July 2019), https://www.merriam-
webster.com/dictionary/procure. The American Heritage Dictionary provides that procure

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is “[t]o obtain (a sexual partner) for another.” The American Heritage Dictionary 1405 (5th
ed. 2018).
Appellant’s conviction of promoting the prostitution of an individual stems from
conduct that took place near the intersection of Lake Street and Bloomington Avenue on a
night in September 2017. Minneapolis police officers were working an undercover sting
operation targeting individuals suspected of engaging in street-level prostitution and/or the
sale of narcotics. Based on observed conduct, officers identified appellant as a potential
target. Undercover officer Omar Foulkes, driving an unmarked vehicle, approached
appellant to purchase crack cocaine.
Hidden cameras in Officer Foulkes’s vehicle recorded t he encounter wherein
appellant walked up to the passenger window and sold the officer what appeared to be
crack cocaine. During the transaction, the following exchange took place:
Officer: Any b*tches out here you know I can get?

Appellant: What you tryin’ do?

Officer: Trying to get me some a** tonight. Do a
little somethin’.

Appellant: ‘K.

Officer: You got a b*tch for me?

Appellant: Um, huh.

Officer: What’s that?

Appellant: How much money you got?

Officer: I got forty.

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Appellant: Hey, Tasha?

N.J.B.: What?

Appellant: Come here.

N.J.B.: [Inaudible.]

Appellant: He looking for a girl.

N.J.B.: No.

Officer: How much for some a** tonight, baby?

N.J.B.: For some a**? What do you mean a**?

Officer: Some a**, man, somethin’. That’s forty?

Appellant: Yep.

N.J.B.: Are we talking for play or are you talking
for the whole a**?

Officer: Well, how much you charge, baby girl?

N.J.B.: Oh, sh*t, there goes police.

Officer: What the f*ck?

N.J.B.: Go around the corner, I’m gon na meet
you on the other side, ‘K?

Officer Foulkes drove around the corner, as instructed, and met up with N.J.B.
Appellant was with her. N.J.B. approached the officer’s vehicle , and she and Officer
Foulkes continued to negotiate a price for sexual acts . Officer Foulkes and N.J.B. settled
on a price of fifty dollars for oral sex. N.J.B. then got into the officer’s vehicle, and, after
a short drive, they were pulled over by officers working the sting. N.J.B. was arrested, and
appellant, who tried to flee officers, was also apprehended.

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Appellant argues that, regardless of this co urt’s interpretation of the word ,
“procure,” his conviction must be reversed because he did not procure a patron. At oral
argument before this court, appellant’s counsel conceded, “There was a procurement of a
prostitute,” but not “a procurement of a patron.” Appellant’s counsel contended that, under
the subdivision of the statute of which appellant was convicted, “the thing that must [have
been] procured is the patron, not the prostitute.” Appellant did not brief this argument. See
Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007) (“A party who inadequately
briefs an argument waives that argument.”). Nevertheless, appellant’s argument is illogical,
and without legal merit.
Appellant’s concession that “[t]here was a procurement of a prostitute,” necessarily
implies that there was a procurement of a “patron ,” that is, “an individual who engages in
prostitution.” Minn. Stat. § 609.321, subd. 4. This logical inference is further supported by
“the common, ordinary meaning” of the word, “procure.” See, e.g., Black’s Law Dictionary
1401 (10th ed. 2014) (defining procure as “obtain[ing] a sexual partner for another, esp. an
unlawful partner such as a minor or a prostitute”).
Based on the evidence presented at trial , the state established beyond a reasonable
doubt that appellant procured a patron for prostitution. At trial, t he jury heard from the
police officers who were working the undercover operation on the ni ght of appellant’s
arrest, including Officer Foulkes. The jury also heard from N.J.B. Further, the surveillance
videos of Officer Foulkes’ interaction with appellant, as well as his later interaction with
N.J.B., were played for the jury and received into evidence. The foregoing evidence
showed that: (1) Officer Foulkes, acting undercover as a john, asked appellant if he had “a

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b*tch” for him, explaining that he was “[t]rying to get . . . some a** tonight”; (2) “a b*tch”
referred to “a prostitute,” as Officer Foulkes testified to at trial ; (3) appellant was aware
that N.J.B., who was with him on the street at that time, was engaged in prostitution; (4) in
direct response to Officer Foulkes’s inquiry, appellant called N.J.B. over and stated, “He
looking for a girl”; and (5) as N.J.B. testified at trial, appellant’s purpose in calling her over
to Officer Foulkes was for her “to have sex with [the officer] for money.”
While we recognize that appellant’s conduct was somewhat minimal compared to
other promoti on-of-prostitution offenses, the prostitution statutes “evince a legislative
intent to enact a comprehensive scheme to eradicate furtherance of prostitution, even if it
does not rise to the level of commercialized vice.” State v. Montpetit, 445 N.W.2d 571, 573
(Minn. App. 1989) (citing Minn. Stat. §§ 609.321-609.33 (1986)), review denied (Minn.
Oct. 31, 1989). Further, while we are mindful that N.J.B. provided inconsistent statements,
indicating initially that appellant was not involved with her prostitution services, she later
clarified for the jury the reasons for denying appellant’ s involvement, explaining she
“wanted to be loyal to him,” and that she was scared. In finding appellant guilty of
promoting prostitution, the jury, in effec t, found N.J.B. to be credible and accepted her
testimony as true. Because the jury could reasonably conclude, based on the evidence that
was presented, that appellant was guilty of the charged offense, we affirm his conviction.
See Ortega, 813 N.W.2d at 100.
II.
Appellant alleges that, by referring to facts not in evidence and misstating the
evidence as presented to the jury, the state committed prejudicial misconduct in its closing

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argument entitling him to a new trial. “A prosecutor engages in prosecutor ial misconduct
when the prosecutor violates clear or established standards of conduct, e.g., rules, laws,
orders by a district court, or clear commands in this state’s case law.” State v. Smith, 876
N.W.2d 310, 334 -35 (Minn. 2016) (quotations omitted). A p rosecutor may “present all
legitimate arguments on the evidence and all proper inferences that can be drawn from that
evidence,” but may not “misstate the evidence.” State v. Pearson , 775 N.W.2d 155, 163
(Minn. 2009); State v. Bobo, 770 N.W.2d 129, 142 (Minn. 2009) (quotations omitted).
Our standard of review depends on whether the defendant objected to the alleged
misconduct at trial. State v. McDaniel , 777 N.W.2d 739, 749 (Minn. 2010). When a
defendant does not object to allegations of prosecutorial misconduct, we review the claim
under a modified plain-error standard. State v. Peltier, 874 N.W.2d 792, 803 (Minn. 2016).
Appellant concedes that a modified plain-error analysis applies here.
Under this standard, the defendant bears the initial burden of establishing error that
is plain. State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006) . A plain error is one that is
“clear or obvious.” Id. (quotation omitted ). If the defendant is able to show that the
misconduct constitutes an error that is plain, the burden then shifts to the state to prove that
any misconduct did not prejudice the defendant’s substantial rights. Id. at 302. To meet this
burden, the state mu st show that there is no reasonable likelihood that the absence of the
misconduct would have had a significant impact on the jury’s verdict. Id.
In determining whether the misconduct affected appellant’s substantial rights, we
consider the following facto rs: “(1) the strength of the evidence against [the defendant];
(2) the pervasiveness of the erroneous conduct; and (3) whether [the defendant] had an

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opportunity to rebut any improper remarks.” Peltier, 874 N.W.2d at 805-06; see also State
v. Parker, 901 N .W.2d 917, 926 (Minn. 2017). “To warrant reversal for a new trial, the
prosecutor’s misconduct—placed into the context of the entire trial —must be so serious
and prejudicial that it impairs a person’s constitutional right to a fair trial.” State v. Banks,
875 N.W.2d 338, 348 (Minn. App. 2016), review denied (Minn. Sept. 28, 2016). In
examining a closing argument for prosecutorial misconduct, “we consider the argument as
a whole, rather than focusing on particular phrases or remarks that may be taken out of
context or given undue prominence.” State v. Jones, 753 N.W.2d 677, 691 (Minn. 2008)
(quotation omitted).
Appellant challenges two portions of the state’s closing argument. First, he contends
that the following statements constituted prejudicial misconduct:
What matters is what he did on September 20, 2017. And what
he did on that day is he was standing on a street corner in South
Minneapolis, which is o bviously in Hennepin County, and he
caught the police’s attention for the conduct that he was
engaged in. And they believed he was engaged in prostitution
and drug dealing. And so they sent the undercover officer to
engage him . . . .

Appellant argues, “This statement that police observed [appellant] engaging in prostitution
and drug dealing was an egregious misstatement of the evidence.” He contends, “There
was no evidence that police observed [appellant] himself engaging in prostitution or
promotion of prostitution; the conduct that police observed that made them decide to
approach [appellant] was unspecified and undescribed.” Appellant contends that the
statement amounted to misconduct because “it improperly invited the jury to draw an
inference that because the police saw [him] engaged in prostitution activities before they

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approached him, he must have actually been promoting prostitution when he called [N.J.B.]
over to Foulkes.”
Second, appellant contends that the prosecutor intentionally misstated the evidence
when summarizing the conversation that Foulkes and appellant had regarding prostitution
services:
Then the undercover officer: You got a b *tch for me?
Defendant: Uh-huh. How much you got? He asked the officer.
He says: I got 40. Now that the officer has indicated he’s got
$40 for prostitution, the defendant does what? Well, he says
very clearly on that tape: Hey, Tasha —clearly short for
[N.J.B.]—come here. He summons her over to the police car—
or the undercover police car, knowing that this person is
looking to spend $40 for sex. So what does he do? He calls
over his girlfriend, who he knows engages in prostitution.

Appellant contends that the argument constituted an in tentional misstatement of the
evidence because Officer Foulkes testified that he believed the 40 dollars was in reference
to the sale of narcotics, and conceded that N.J.B. was the one who he negotiated with about
the price for sexual activities.
Appellant argues that the two portions of the state’s closing argument constituted
prejudicial misconduct because the remarks “directly invited the jury to infer that
[appellant] was promoting prostitution not just based on the properly-admitted evidence of
his conduct of calling [N.J.B.’s] name, but also because, the prosecutor argued, police had
seen [appellant] engaging in prostitution related activities and had discussed the price of
prostitution services with Foulkes.”
We are not persuaded. With regard to the first portion of the state’s closing argument
at issue, one of the state’s witnesses, Officer Severance, expressly testified about the

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interplay between the sale of narcotics and street -level prostitution. In response to the
state’s question regarding who the officers were targeting that night, Officer Severance
explained:
On that day—so just like I said before, there’s three kind of —
it’s like an ecosystem that kind of works, right? You’ve got the
money; you’ve got the people that are selling the sex; and then
you have the people that are out there with the women that are
lining up deals or selling narcotics that are working with these
people. . . . On that day we were focused on the third, which is
the person lining up the deal and then getting the female.

The prosecutor’s remarks in closing argument constitute rational inferences based upon
testimony regarding the officers’ sting operation and identification of appellant as a
potential target in that operation. See State v. Munt, 831 N.W.2d 569, 587 (Minn. 2013).
With regard to the second portion of the state’s closing argument at issue, it is
unclear, based on the surveillance video and transcript, whether the 40 dollars was, in fact,
in reference to the sale of narcotics or prostitution services. Additio nally, any potential
error was corrected in the defense’s closing argument when appellant’s counsel stated to
the jury:
And I want to —I do want to point out one thing is that [the
state] indicated that in the video when [appellant] is talking
with the unde rcover officer, they talk about $40. What they
were discussing is $40 for two —what the officer described as
“dubs,” the drugs. That’s what the discussion was about,
because obviously when the undercover officer later goes with
[N.J.B.], they don’t talk abo ut $40; they’re talking about $50.
So there’s no mention by [appellant] about any financial
agreement. There was no exchange of money. There was
nothing about that.

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Furthermore, even if the prosecutor’s remarks constituted plain error, the state’s
closing argument, reviewed as a whole, does not amount to prejudicial misconduct. Peltier,
874 N.W.2d at 805 -06; see also Parker, 901 N.W.2d at 926. First, as indicated in the
preceding section, the strength of the evidence against appellant was strong. Second, the
erroneous conduct was not pervasive in light of the closing argument as a whole. The state
emphasized in its closing argument that the entire crime was “all right there on the tape.”
It encouraged the jury to recall appellant’s conduct that they observed on tape, as well as
the words that he used. And the jury did just that. While deliberating, the jury asked to
watch, again, and the district court replayed, the surveillance vid eo capturing Officer
Foulkes’ and appellant’s exchange.
Lastly, appellant had an opportunity to rebut any allegedly erroneous remarks. Both
portions at issue of the state’s closing argument took place before the defense presented its
closing argument, an d, in fact, as stated above, the defense did rebut the state’s remarks
regarding the 40 dollars. Accordingly, we conclude that appellant’s claim of prosecutorial
misconduct is without legal merit.
III.
Appellant argues that the district court erroneously used four federal offenses to
calculate his criminal history score, and that the resulting sentence of 180 months ’
imprisonment was excessive and unreasonable. He argues that the use of all four federal
offenses was error bec ause the state failed to prove that they were separate courses of
conduct, or otherwise subject to an exception justifying multiple sentences.

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Under the Minnesota Sentencing Guidelines, convictions from other jurisdictions
must be considered in calculating a defendant’s criminal-history score. State v. Reece, 625
N.W.2d 822, 824 (Minn. 2001); 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.”). Convictions from jurisdictions other than
Minnesota include convictions under the federal criminal statutes. Minn. Sent. Guidelines
cmt. 2.B.501 (Supp. 2017). An out -of-jurisdiction conviction may be counted as a felony
in calculating a criminal -history score “only if it would both be defined as a felony in
Minnesota, and the offender received a sentence that in Minnesota would be a felony-level
sentence.” Minn. Sent. Guidelines 2.B.5.b. (Supp. 2017) (emphasis in original).
The state carries the burden of establishing the facts necessary to justify
consideration of out -of-jurisdiction convictions in determining a defendant’s criminal -
history score. State v. McAdoo , 330 N.W.2d 104, 109 (Minn. 1983); State v. Maley , 714
N.W.2d 708, 711 (Minn. App. 2006) ( “[T]he district court may not use out -of-state
convictions to calculate a defendant’s criminal -history score unless the state lays
foundation for the court to do so.”). It 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.” Id.
Further, a defendant generally may not receive criminal-history points for more than
one offense arising out of a single behavioral incident. McAdoo, 330 N.W.2d at 107; Minn.
Stat. § 609.035 (2016); Minn. Sent. Guidelines cmt. 2.B.107 (Supp. 2017) (“In cases of

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multiple offenses occurring in a sin gle course of conduct in which state law prohibits the
offender from being sentenced on more than one offense, only the offense at the highest
severity level should be considered.”).
“Whether multiple offenses arose out of a single behavior incident depen ds on the
facts and circumstances of the particular case.” State v. Bookwalter, 541 N.W.2d 290, 294
(Minn. 1995). Courts consider factors including “the singleness of purpose of the defendant
and the unity of time and of place of the behavior.” Id. (quotation omitted); see also State
v. Soto, 562 N.W.2d 299, 304 (Minn. 1997) (“Under section 609.035, the factors to be
considered in determining whether multiple offenses constitute a single behavioral act are
time, place, and whether the offenses were motivated by a desire to obtain a single criminal
objective.”). In the case of multiple convictions, the state must establish, in order to support
inclusion of the convictions in the defendant’s criminal history score, “the divisibility of a
defendant’s course of conduct for purposes of section 609.035 .” McAdoo, 330 N.W.2d at
109.
The district court, however, “must make the final determination as to whether and
how a prior non-Minnesota conviction should be counted” in a defendant’s criminal-history
score. Minn. Sent. Guidelines 2.B.5.a. This court reviews the district court’s determination
of a defendant’s criminal -history score for an abuse of discretion . Maley, 714 N.W.2d at
711.
At sentencing, appellant had nine criminal history points based, in part, on four prior
federal convictions. His presumptive sentence was 180 months’ imprisonment. See Minn.
Sent. Guidelines 4.B. (2016). To support the district court’s inclusion of the federal

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convictions in the calculation of appellant’s criminal history score, the state offered both
the federal criminal complaint and the Eighth Circuit’s affirmance of those convictions .
The district court rejected appellant’s argument that the four federal convictions arose from
the same course of conduct, and it imposed the presumpti ve sentence of 180 months’
imprisonment.
On appeal, appellant argues that the state failed to show that the four federal
convictions did not arise from a single behavioral incident , and, consequently, the district
court abused its discretion in its calculation of appellant’s criminal history score. However,
appellant concedes tha t his criminal history score at the time of sentencing should have
been six points, and that the presumptive sentence with six criminal history points is 180
months’ imprisonment. See Minn. Sent. Guidelines 4.B. (capping a defendant’s criminal
history score at six points).
Because appellant would be subject to the same presumptive sentence of 180
months’ imprisonment with nine points, or an amended score of six points, we need not
determine whether the district court abused its discretion by including the four federal
offenses in the calculation of appellant’s criminal history score. And, because 180 months’
imprisonment i s “presumed to be appropriate,” we reject appellant’s argume nt that his
sentence is excessive or unreasonable. See Minn. Sent. Guidelines 2.D.1. (Supp. 2017).
Affirmed.