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This opinion will be unpublished and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
A18-1802

State of Minnesota,
Respondent,

vs.

Damion John Gullickson, Jr.,
Appellant.

Filed September 9, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Cass County District Court
File No. 11-CR-17-1730

Keith Elllison, Attorney General, Peter Magnuson, Assistant Att orney General, St. Paul,
Minnesota; and

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from his fi nal judgment of conviction and sentence for four
counts of assault, appellant argues that (1) the district court abused its discretion by

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permitting the state to use a prior conviction for impeachment; (2) the district court abused
its discretion by failing to provide a reason for an upward dur ational departure in
sentencing; and (3) the district court erred by entering judgme nts of conviction for the
lesser-included assault crimes. We affirm in part, reverse in part, and remand to correct
the warrant of commitment by vacating the convictions for the l esser-included assault
crimes.
FACTS
On September 17, 2017, Cass County law enforcement officers responded to a 911
call reporting an assault. They found the victim, V.W., lying on the deck of the house. His
nose appeared broken, and he had blood coming from his mouth, n ose, face, and hands.
V.W. stated that appellant, Damion John Gullickson Jr., was one of his attackers. He said
that Gullickson and a juvenile f emale hit, kicked, and punched him and that they also hit
him with a wooden chair.
Respondent State of Minnesota c harged Gullickson with aiding an d abetting
second-degree assault with a da ngerous weapon and inflicting su bstantial bodily harm
under Minn. Stat. § 609.222, sub d. 2 (2016) (count I); aiding a nd abetting second-degree
assault with a dangerous weapon under Minn. Stat. § 609.222, su bd. 1 (2016) (count II);
and aiding and abettin g third-degree assault under Minn. Stat. § 609.223, subd. 1 (2016)
(count III). The state later amended the complaint to add aidi ng and abetting first-degree
assault under Minn. Stat. § 609.221, subd. 1 (2016) (count IV). The amendment occurred
after law enforcement met with V.W. and learned that his injuri es were so severe that he
needed three plates surgically implanted above his left eye.

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The district court held a jury trial in June 2018. Before tria l, the state moved the
district court to allow it to introduce Gullickson’s previous f elony conviction for second-
degree manslaughter for impeachment purposes. The district cou rt, applying the Jones
factors,1 ultimately decided to allow the prior conviction to be introduced as impeachment
evidence if Gullickson chose to testify. The district court de cided to permit the state to
reference that the conviction was for second-degree manslaughter. Gullickson then chose
not to testify.
The jury found Gullickson gu ilty of all charges. At the Blakely stage of the trial, 2
the jury found that an aggravating factor existed, answering “y es” to the question: “Does
the defendant have a prior conviction for an offense in which the victim was injured?”
The district court held a sentencing hearing on August 9, 2018. The state asked for
an aggravated sentence and the statutory maximum of 240 months’ imprisonment. Defense
counsel argued for a sentence at the bottom of the guidelines range, arguing that Gullickson
was a 23-year-old young man who has issues with chemical depend ency and wants to
obtain treatment.
The district court did not follow either recommendation. Inste ad, the district court
stated: “The presumptive duration is 84 to 117 months. The mid dle of the box would be
98. The Court is going to depart in an upward departure, and the Court is going to impose

1 See State v. Jones, 271 N.W.2d 534, 537 538 (Minn. 1978) (identifying factors to consider
in determining admissibility of prior convictions for impeachment purposes).

2 See Blakely v. Washington, 542 U.S. 296, 301,124 S. Ct. 2531, 2536 (2004) (holding that
“any fact that increases the penalty for a crime beyond the pre scribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt” (quotation omitted)).

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140 months of prison.” The district court sentenced Gullickson to 140 months’
imprisonment on count IV, first-degree assault. The state agreed that the proper procedure
would be to “let the verdicts stand and only enter the conviction and sentence on the first-
degree assault” because the other charges were “lesser included s or involved the same
behavioral incident.” However, the warrant of commitment reflects that convictions were
entered on all counts.
This appeal follows.
D E C I S I O N
I. The district court did not a buse its discretion when it rule d that Gullickson’s
prior conviction was admissible as impeachment evidence.

Gullickson argues that the district court abused its discretio n by ruling that his prior
conviction was admissible as im peachment evidence and by ruling that the state did not
need to “sanitize” the conviction but could identify it as a co nviction for second-degree
manslaughter.
A district court may admit evidence of a defendant’s prior felo ny convictions for
impeachment if “the probative va lue of admitting this evidence outweighs its prejudicial
effect.” Minn. R. Evid. 609(a)(1 ). In determining whether the probative value of a
conviction outweighs its prejudicial effect, the district court must consider 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 o f
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.

5
Jones, 271 N.W.2d at 538. We review a district court’s admission of a defendant’s prior
convictions for an abuse of discretion. State v. Swanson , 707 N.W.2d 645, 654 (Minn.
2006). If the district court abused its discretion, we will re verse only if the error
substantially influenced the jury’s verdict. State v. Carridine, 812 N.W.2d 130, 141 (Minn.
2012).
A. Admissibility of prior conviction
The district court here decided that Gullickson’s conviction, including the date of
conviction and the fact that the conviction was fo r second-degr ee manslaughter, was
admissible impeachment evidence. But the district court ruled that it would not allow in
the certified copy of the conviction because it had the word “murder” on it, which the court
thought could be prejudicial. I n making its decision, the dist rict court evaluated the five
Jones factors and found that factors one, two, four, and five weighed in favor of admitting
the past conviction. We examine each in turn.
1. The impeachment value of the prior conviction
The district court found that this factor weighed in favor of a dmission, explaining
that the impeachment value lay i n the “ability to better judge the truth of the testimony.”
Gullickson argues that his prior conviction lacked impeachment value because it was “not
a crime of dishonesty.” However, caselaw supports the district court’s determination. The
purpose of admitting past convictions to impeach is to give the jury an opportunity to judge
the “whole person.” State v. Brouillette , 286 N.W.2d 702, 707 ( Minn. 1979) (quotation
omitted). And the supreme court in State v. Hill explained that “it is the general lack of
respect for the law, rather than the specific nature of the conviction, that informs the fact-

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finder about a witness’s credibility.” 801 N.W.2d 646, 652 (Mi nn. 2011). Thus, even
though manslaughter is not a “crime of dishonesty,” conviction of that crime would still be
valuable as impeachment evidenc e to inform the jury of Gullicks on’s previous contempt
for the law.
2. Date of conviction a nd subsequent history
Gullickson’s manslaughter conviction occurred in 2014. As he a dmits, this was
recent. Therefore, as the district court found, this factor weighed in favor of admission.
3. Similarity between the prio r offense and the charged offense
The state conceded, and the dist rict court agreed, that Gullick son’s prior
manslaughter conviction was similar to his first-degree assault charge. This factor weighed
against admission.
4. The importance of Gullickson’s testimony
The only person present at the a ssault who testified at trial w as the victim, V.W.,
whom the state called as a witness. In evaluating this factor, the district court noted that
there were a number of other people who were present at the actual assault, but the defense
did not call them. The district court thought that calling those witnesses “would have been
[an] opportunity for the defense to get information from folks that were there.” Instead,
the defense called no witnesses. The district court therefore held that this factor weighed
in favor of admission.
The fact that V.W. was the only person present at the assault w ho testified could
render Gullickson’s testimony important to give another version of events. But Gullickson
made no offer of proof regarding what his testimony would be and thus gave no indication

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of how his testimony would be important to the case. See State v. Williams, 771 N.W.2d
514, 519 (Minn. 2009) (observing, in discussing this Jones factor, that the appellant “made
no offer of proof as to what testimony he would have added to t he testimony” of another
witness). Moreover, if credibility is a central issue (which, as we conclude below, it is),
both the fourth and fifth factors weigh in favor of admission. Swanson, 707 N.W.2d at
655.
5. The centrality of credibility
The district court also found this factor weighed in favor of a dmission, explaining
that “certainly that is always one that I think the jury should know if there are big issues in
the history of the defendant.” Had Gullickson testified to refute the victim’s testimony, his
credibility would have been central.
In sum, the district court co ncluded that only the third Jones factor—the similarity
of the prior crime and the charged crime—weighed against admissibility. It further decided
that the overall balance of the factors supported admissibility of the conviction for
impeachment. Its decision was not an abuse of discretion. In other cases in which the prior
crime is similar to the charged crime, the supreme court has affirmed the admission of the
prior convictions for impeachment. See State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985)
(affirming admissibility of two p rior rape convictions for impe a c h m e n t i n a t r i a l f o r
criminal sexual conduct); State v. Bettin , 295 N.W.2d 542, 546 (Minn. 1980) (affirming
admissibility of prior aggravated rape conviction although “bas ically the same” as the
charged offense).

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B. Unsanitized conviction
Gullickson further argues that, even if it was not error to all ow impeachment with
the prior conviction, the district court still abused its discretion by ruling that the jury could
hear the nature of the prior conviction without “sanitizing” it. Gullickson cites State v. Hill
i n s u p p o r t o f t h i s a r g u m e n t . 8 0 1 N . W . 2 d a t 6 5 2 . Hill stands for the proposition that
unspecified felony convictions can be used to impeach a crimina l defendant’s testimony.
Id. However, Gullickson’s reliance on Hill is misguided; the supreme court in that case
specifically explained:
We do not suggest . . . that a party must always impeach a
witness with an unspecified felony conviction. To the
contrary, the decision about what details, if any, to disclose
about the conviction at the time of impeachment is a decision
that remains within the sound discretion of the district court.

Id. And Gullickson cites no other caselaw that supports his argument that failing to sanitize
a prior conviction for impeachment is an abuse of discretion. Here, the district court
weighed the probative value versus prejudicial effect of Gullic kson’s prior manslaughter
conviction and decided to permit the general information, but n ot the certified copy,
because it had the word “murder” on it, which the district cour t decided would be
prejudicial. The district court did not abuse its discretion b y not sanitizing the prior
conviction.
C. Absence of prejudice
Finally, even if Gullickson were able to demonstrate an abuse o f discretion by the
district court in this evidentia ry ruling, he would still need to show that it significantly
affected the verdict. State v. Robinson, 718 N.W.2d 400, 407 (Minn. 2006). It is unlikely

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that Gullickson would be able to meet this burden. V.W. descri bed in his testimony how
Gullickson punched him in his face and chest and that Gullickson “hit [him] hard enough
where [V.W.] kind of fell to [his] knees, and then that’s where [Gullickson] presumed to
kick [him].” V.W. also testified that Gullickson was the person who hit him with the chair,
stating, “I was kind of like in a crawling position, and he hit me over the back with it.” The
record also includes physical e vidence of V.W.’s blood on Gulli ckson’s shorts and
scratches on Gullickson’s hands, which would have been very impactful on the jury.
Furthermore, because Gullickson does not explain what he planne d to testify to or
how his testimony would have been important, it is difficult to say that the district court’s
ruling made a difference to the jury’s verdict. There is no reason to believe from this record
that the district court’s ruling on the prior conviction significantly affected the verdict.
II. The district court did not abuse its discretion when it imp osed an upward
durational departure.

The Minnesota Sentencing Guidelin e s p r e s c r i b e a r a n g e o f s e n t e nc e s , a n d t h e
sentencing court “must pronounce a sentence within the applicable range unless there exist
identifiable, substantial, and compelling circumstances that di stinguish a case and
overcome the presumption in favor of the guidelines sentence.” State v. Soto, 855 N.W.2d
303, 308 (Minn. 2014) (quotation omitted); see M i n n . S e n t . G u i d e l i n e s 2 . D . 1 ( 2 0 1 6 ) .
“Substantial and compelling circumstances are those demonstrati ng that the defendant’s
conduct in the offense of conviction was significantly more or less serious than that
typically involved in the commission of the crime in question.” State v. Hicks, 864 N.W.2d
153, 157 (Minn. 2015) (quotation omitted). The district court has broad discretion to

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depart, and we review its decision for an abuse of discretion. State v. Edwards, 774 N.W.2d
596, 601 (Minn. 2009).
The guidelines provide a nonexclusive list of aggravating factors that may justify a
departure. Minn. Sent. Guidelines 2.D.3.b (2016). Before imposing an upward departure,
the district court “must submit to a jury the question of whether the State has proven beyond
a reasonable doubt the existence of additional facts . . . whic h support reasons for
departure.” State v. Rourke , 773 N.W.2d 913, 921 (Minn. 2009). Then, based on the
factual determinations made by the jury, the district court mus t “explain why the
circumstances or additional facts found by the jurors in a Blakely trial provide the district
court a substantial and compelli ng reason to impose a sentence outside the range on the
grid.” Id. at 920.
Here, the district court chose to depart durationally, imposing a 140-month prison
term when the presumptive duration was 84 to 117 months.
Gullickson does not assert that the aggravating factor found by the jury—a prior
conviction for an offense in whi c h t h e v i c t i m w a s i n j u r e d — i s n ot a substantial and
compelling basis for departure. Rather, he argues that the district court erred by failing to
identify the departure ground on the record. Gullickson conten ds that his sentence must,
therefore, be vacated and the case remanded for the district co urt to impose a guidelines
sentence.
It is true that a departure ground must be stated on the record by the district court at
the time of sentencing. See State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003) (holding
that, “absent a statement of the reasons for the sentencing dep arture placed on the record

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at the time of sentencing, no departure will be allowed”); Williams v. State, 361 N.W.2d
840, 844 (Minn. 1985) (“If no reasons for departure are stated on the record at the time of
sentencing, no departure will be allowed.”). Gullickson argues that the district court did
not identify the reason for departure when, after hearing argum ents from counsel, the
district court said:
Mr. Gullickson, you’re going to get out at some point, and the
Court wishes you the best when you do, but the jury spoke, and
it didn’t take them long to figure out what they wanted to speak
for as an answer, and they were convinced that this was a bad
deal, and as such I’m going to sentence you.

. . . .

Like I said, you’re going to get out, and I hope that you don’t
come right back in like what has happened this time. That’s
one of the more concerning facts for me, too, is the short
window of time between being off of one case and right back
in on another.

. . . .

The presumptive duration is 84 to 117 months. . . . The Court
is going to depart in an upward departure, and the Court is
going to impose 140 months of prison time . . . .

A review of the sentencing transcript as a whole demonstrates that the district court
identified the aggravating factor on the record. Before the court pronounced sentence, the
parties and the district court discussed the single aggravating factor at issue. The district
court stated, “And with respect to the aggravating factor, the question that was given to the
jury was, ‘Does the defendant hav e a prior conviction for an of fense in which the victim
was injured,’ and the jury answered ‘Yes,’ . . . . So we have that aggravating factor.” The
district court then referred to this jury determination when it explained at sentencing,

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“[T]he jury spoke, and it didn’t take them long to figure out what they wanted to speak for
as an answer, and they were conv inced that this was a bad deal. ” The district court also
referenced the aggravating factor when it stated, “I hope that you don’t come right back in
like what has happened this time. That’s one of the more conce rning facts for me, too, is
the short window of time between being off of one case and right back in on another.” The
district court explicitly stated that it was choosing to impose an upward departure. Taking
the district court’s comments together in the context of the sentencing hearing as a whole,
we conclude that the district court stated its reason for depar ture on the record at the time
of sentencing.
Gullickson cites a recent unpubli shed decision of this court in w hi c h t he pa r t i es
agreed about the presence of aggravating factors supporting a departure in a plea agreement
but, at sentencing, the district court “did not provide any departure grounds” or “state that
its sentence constituted a departure.” State v. Barnard, No. A17-0116, 2017 WL 5559905,
at *1 (Minn. App. Nov. 20, 2017), review denied (Minn. Jan. 24, 2018). This court
reversed, stating, “Although we have no doubt that permissible departure grounds exist in
this case, because the district court did not provide any departure grounds on the record at
the time of sentencing, caselaw c ompels us to remand for imposi tion of the presumptive
sentence.” Id. at *3.
Barnard is distinguishable from the situation here. Although the dist rict court’s
findings here were not extensive, the district court stated on the record that it was departing
and did so after referencing the sole aggravating factor found by the jury.

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Gullickson also cites a nother recent decision, State v. Ivy , in which we remanded
for resentencing. 902 N.W.2d 652, 658 (Minn. App. 2017), review denied (Minn. Dec. 19,
2017). But, Ivy, too, is distinguishable. In Ivy, we concluded that “neither the sentencing
transcript nor the warrant of commitment” reflected any sentenc ing departure and,
“because the district court did not depart, it did not articula te reasons to support a
departure.” Id. at 667. Ivy does not compel the conclusion that the district court here failed
to articulate its basis for departure.
Because the district court sufficiently stated its reason for departure on the record at
sentencing, the district court did not abuse its discretion by imposing an upward durational
departure.
III. The district court erred when it entered convictions on al l four counts.

Gullickson finally argues that the district court erred by entering convictions on the
second- and third-degree assault offenses because the offenses are lesser-included offenses
of the first-degree assault, arising from the same act against the same victim. The state
agrees and recommends that the cas e be remanded for the distric t court to vacate the
convictions for counts I through III, leaving in place the guilty verdicts on those offenses.
A defendant may be convicted of either a crime charged, or an included offense, but
not both. Minn. Stat. § 609.04 (2016). “If the lesser offense is a lesser degree of the same
crime or a lesser degree of a multi-tier statutory scheme deali ng with a particular subject,
then it is an ‘included offense’ under section 609.04.” State v. Hackler, 532 N.W.2d 559,
559 (Minn. 1995) (quotations and citations omitted). Here, Gullickson was found guilty
of first-, second- (two counts), and third-degree assault based on his assault of V.W. The

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district court sentenced only on the first-degree count but entered convictions on all four.
Because the second- and third-degree-assault crimes are lesser degrees of the same crime,
conviction on those crimes is precluded by section 609.04. See id. (holding that second-
degree assault is an included offense of first-degree assault). We remand with instructions
to vacate the convictions on counts I, II, and III, while leavi ng intact the jury verdicts of
guilt on those crimes. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (holding
that “the proper procedure to be followed by the trial court 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. The remaining conviction(s) should not be formally
adjudicated at this time.”).
In his pro se brief, Gullickson a rgues that the district court improperly entered
multiple convictions for the same offense, which is true. But, citing Minn. Stat. § 611.02
(2016) (stating that when “there exists a reasonable doubt as t o which of two or more
degrees the defendant is guilty, the defendant shall be convict ed only of the lowest”), he
argues that he should have been convicted of the third-degree a ssault, not the first-degree
assault, because the jury “must have had doubt” about which count he was guilty of.
The same argument was rejected by the supreme court in Morrow v. State , 886
N.W.2d 204 (Minn. 2016). In that case, the supreme court held that section 609.04 did not
require the district court to convict the appellant of the lowe st-degree offense charge;
instead, the district court was only prevented from entering co nvictions on both first and
second-degree murder. Morrow, 886 N.W.2d at 207-08. Moreover, the supreme court
rejected the argument that secti on 611.02 changes the analysis, reasoning that the jury’s

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verdicts of guilty on both offens es “demonstrate beyond reasona ble doubt that [the
appellant] was guilty of both charges.” Id. at 208 n.3. Likewise, here, there is nothing to
suggest that there is reasonable doubt about which count the jury thought Gullickson guilty
of, since the jury found him gu ilty of all four. Thus, under s ection 609.04 and consistent
with section 611.02, the appropriate conviction in this case is for first-degree assault.
Affirmed in part, reversed in part, and remanded.