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This opinion will be unpublished and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
A18-1872

State of Minnesota,
Respondent,

vs.
David Alexander Schill, Jr.,
Appellant.

Filed December 9, 2019
Affirmed
Ross, Judge

Polk County District Court
File No. 60-CR-17-2089

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Reilly, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The state charged David Schill with felony domestic assault f or punching his
fiancée. The district court admitted as trial evidence prior criminal complaints against
Schill and convictions for domestic-conduct-related offenses, and it found Schill guilty. It
departed upward from the sentenc ing guidelines and imposed a 48 -month prison term.

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Schill asks us to reverse his conviction and sentence , arguing that the district court
improperly relied on inadmissible hearsay and violated his right to an aggravated-sentence
trial. Because Schill waived his evidentiary objections at the bench trial, because no
inadmissible evidence was essential to the district court ’s finding of an aggravating
sentencing factor, and because the district court’s sentencing procedure did not violate
Schill’s Sixth Amendment rights, we affirm.
FACTS
The state charged David Schill with felony domestic assault for striking his fiancée,
and Schill waived his right to a jury trial . The prosecutor offered evidence of six prior
criminal complaints and convi ctions against Schill involving previous girlfriends. The
district court asked Schill’s counsel if Schill had any objection to the evidence, and the
answer was no with an explanation indicating that Schill had strategic reasons for not
opposing the evidenc e. The district court admitted the complaints and convictions as
relationship evidence involving other women and as evidence of domestic conduct under
Minnesota Statutes section 634.20 (2016).
Both Schill and the alleged victim, T.S., testified at the tria l. The district court
considered the evidence and then issued as its factual findings a narrative unsuitable for
paraphrasing:
This criminal proceeding arises out of an incident which
occurred on or about October 5, [2017], in Crookston, Polk
County, Minnesota.
It was mid-afternoon, the weather was mild, and David
Schill was released from jail. He struck off down the street to
his apartment – the same apartment he shared with his then

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fiancé[e]: [T.S.]. Before his short stint back at the NWRCC, he
gave her an engagement ring and pledged her his troth. But
when he arrived, he found she was gone – her belongings had
been removed, and she was at her friend Scott Wikstrom’s
apartment. Schill walked over to Wikstrom’s apartment and
found his fiancé[e] – they both left the apartment hand in hand
– off to experience life together and drink heavily. Things were
back to normal.
But before the party could begin, Schill needed cash. He
had coins, but what he needed was paper cash – to allow for
transactional ease a t the liquor store, and a simpler mode of
monetary transit. So he took his coin jar to Walma rt and ran it
through the money -changing machine. With the cash now
pocketed, Schill and [T.S.] headed over to I.C. Muggs to get
liquored up on some Earthquakes. To get from Walmart to I.C.
Muggs, one has to walk across the Walmart parking lot. During
this trek across blacktop and painted lines, Joshua Plante, a
Corporal at the NWRCC, recognized the Defendant and
observed the pair’s conduct together.
At the liq uor st ore they purchased a four -pack of
Earthquakes – a 12% ABV High Gravity Lager that has been
described [by an outside source] as something that will get you
“tore out of the frame” one -hundred percent of the time.
Loaded for action, and ready for anything, they headed back to
their apartment. Again, another person from the NWRCC –
Correctional Officer Melanie Lessard, recognized the
Defendant and observed the pair to be “getting along just fine.”
To get to their apartment on South Minnesota Street
from I.C. Muggs, requires walking down South Main Street [.]
Along this stretch of sidewalk near the 300th block, something
happened, and someone snapped. [T.S.] was punched in the
temple, kneed to the ground, and struck in the breast. But she
didn’t call the cops and she didn’t go to the hospital. Instead,
she returned with Schill back to their apartment to drink the
Earthquakes. And that’s what they did – four total, two apiece,
and split right down the middle.
In the apartment, Schill and [T.S.] drank and talked
together. But when he explained his plan to move to California
– a place that was warmer and would possibly treat him better,

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she became irate and some sort of altercation erupted. Both
parties engaged in this brawl, with Schill claiming a defensive
posture. But wanting sleep and not war, Schill retreated into
bed, where he heard [T.S.] leave the apartment at 9:30 -10:00.
When she was gone, he found her engagement ring on the
television stand. Their relationship was officially over.
[T.S.] left the apartment to go to Riverview Hospital,
which was a short walk down the street. After visiting the
hospital, she called her friend Bryan Suggs at 12:30 a.m. to get
a ride to Scott Wikstrom’s apartment. Nearly forty hours later,
she reported to the police that Schill had assaulted her. And so
commenced this case.
The district court found Schill guilty of felony domestic assault. It credited T.S.’s
testimony and found Schill’s version not believable because of inconsistencies between his
testimony and injuries and because of his history of domestic abuse.
Schill waived his right to a sentencing jury. The state moved for an upward
sentencing departure based on aggravating factors, arguing that, like one of his previous
victims, T.S. was injured by his attack and that Schill was a “career offender.” T he state
supported its argument with criminal complaints, court minutes, warrants of commitment,
and other records related to several of Schill’s prior convictions. The district court departed
upward from the sentencing guidelines and sentenced Schill to a 48-month prison term.
Schill appeals his conviction and sentence.

D E C I S I O N
Schill asks us to reverse his conviction, arguing that the district court erred by
admitting prior criminal complaints containing testimonial hearsay in violation of the
Confrontation Clause , and by admitting his prior convictions as evidence o f “domestic
conduct” under Minnesota Statutes section 634.20. He argues alternatively that we should

5
reverse his sentence and remand for a new sentencing trial, maintaining that the district
court erred at the sentencing trial by relying on inadmissible evidence to determine the
aggravating factors and by failing to comply with the requisite procedures. Neither
argument supports reversal.
I
Schill challenges the district court’s admission of evidence at his trial. He focuses
on six criminal complaints containing testimonial hearsay and records of Schill’s prior
convictions and sentences submitted as evidence of domestic conduct. On appeal, we
generally review evidentiary decisions for an abuse of discretion. State v. Burrell ,
772 N.W.2d 459, 465 (Minn. 2009). And where, as here, the appellant failed to object to
the evidence during trial, we generally review for plain error. See S tate v. Griller ,
583 N.W.2d 736, 740 (Minn. 1998). But the state argues that we should refuse to apply
even the plain-error test because Schill did not merely fail to object to the evidence he now
challenges; he agreed to the admissibility of the evidence as part of his defense strategy.
Our review of the record and the controlling authority helps frame the state’s position.
The state contends that Schill waived —not just forfeited —his evidentiary
objections as a matter of trial strategy. Waiver and forfeiture are distinct concepts;
forfeiture is the “failure to make the timely assertion of a right,” while waiver is the
“intentional relinquishment or abandonment of a known right.” State v. Beaulieu ,
859 N.W.2d 275, 278 n.3 (Minn. 2015) (quoting United States v. Olano , 507 U.S. 725,
733, 113 S. Ct. 1770, 1777 (1993)). When a right has been forfeited by the failure to assert
it, courts review the denial of that right for plain error. Id. at 279. But at least under the

6
United States Supreme Court’s development of plain-error review, when a party has instead
voluntarily waived a right, there is no “error” to be reviewed, plain or otherwise. See Olano,
507 U.S. at 732–33, 113 S. Ct. at 1777 (“Deviation from a legal rule is ‘error’ unless the
rule has been waived.”).
The record supports the state’s theory t hat Schill did not merely forfeit any
evidentiary challenges by not objecting at trial; he waived them by deliberately agreeing to
admissibility. The prosecutor indicated that he intended to admit five prior “incidents” as
evidence of domestic conduct under Minnesota Statutes section 634.20. Schill’s attorney
gave the following explanation responding to the district court’s inquiry about Schill’s
position on admissibility:
We took no position on that, Your Honor. And as [the
prosecutor] is noting, the defense is potentially seeking to
introduce a Domestic Assault conviction of the victim against
the Defendant under 634.20, and we will not oppose their
634.20 submission . . . . And so we believe that there would be
enough relevance for you to permit that prior conviction . . . to
potentially be admitted also.
The prosecutor then moved to introduce six exhibits (Exhibits 10–15) containing various
criminal complaints, warrants of commitment, court minutes, and a plea petition . Before
admitting Exhibits 10 and 11, the court specifically asked if the defense had any objection,
to which Schill’s counsel responded, “No.” Likewise, when asked about and shown
Exhibits 12 through 15, which included criminal complaints against Schill, counsel stated,
“I believe the Court has previously ruled that they’re going to be admissible, so there’s no
objection.” It is evident that Schill did not merely fail to object to the evidence , he
intentionally allowed the evidence as a trade -off for a key compone nt of his defense

7
strategy. His response reveals his particular reason for not opposing the state’s exhibits as
evidence—he was planning to rely on a prior conviction of the victim to show her hostile
domestic conduct toward Schill , bolstering his account that she, not Schill, had been the
aggressor in the episode for which Schill was on trial.
The state’s accurate characterization of Schill’s waiver does not technically end the
analysis, however, because the state supreme court continues to allow for rev iew of
seemingly waived, invited errors under the plain-error standard. See State v. Carridine, 812
N.W.2d 130, 142 (Minn. 2012) (“The invited error doctrine does not apply . . . if an error
meets the plain error test.”) . But t he accurate characterization does practically end the
analysis in this case . That is because, “[e]ven if [the] three elements [of plain error] are
met, this court has discretion whether to address the error to ensure the fairness and
integrity of the judicial proceedings,” State v. Smith, 819 N.W.2d 724, 730–31 (Minn. App.
2012), aff’d, 835 N.W.2d 1 (Minn. 2013) , and the supposed error in Schill’s trial strategy
not to object to evidence in order to develop defense testimony and argument does not
implicate the fairness and integrity of the proceedings. The supreme court reached a similar
conclusion in a different case, albeit on the third plain-error prong. See State v. Goelz ,
743 N.W.2d 249, 258 (Minn. 2007) (holding that a defendant’s trial strategy not to object
to evidence in order to develop defense testimony and argument “does not fall within the
plain error exception to the invited error doctrine” because it precluded the defendant from
“establish[ing] that his substantial rights were violated by the admission of the . . .
evidence.”).

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It turned out that Schill’ s implicit evidentiary quid pro quo strategy failed to
discredit T.S. as much as he had hoped. Having placed his bet using the parties’ competing
prior conduct as his bargaining chip, Schill cannot challenge the exchange as unfair after
his gamble failed to win him the pot. He is essentially urging reversal based on the district
court’s decision not to overrule his own tactical objectives and evidentiary concessions .
But as the supreme court has put it, “We do not agree that the district court must, or even
should, interfere with the trial strategy of the defendant. To act sua sponte here would risk
highlighting or enforcing rights that the defendant had, for tactica l reasons, decided to
waive.” State v. Washington , 693 N.W.2d 195, 205 (Minn. 2005). By intentionally
choosing not to object to the evidence during the trial as a matter of deliberate strategy,
Schill effectively surrendered his chance to prevail on appeal.
II
Schill argues next that the district court’s sentencing procedures violated his Sixth
Amendment rights because the district court relied on inadmissible hearsay to find the
aggravating factors to justify a departure. He also argues that the sentencing process failed
to follow the procedural requirements of Minnesota Rule of Criminal Procedure 26.01 and
Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004). We ordinarily review
sentencing decisions for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307 –08
(Minn. 2014).
Schill did not object to the alleged hearsay at the sentencing hearing. But unlike his
decision not to object to this evidence during the guilt phase of the trial, his failure to object
at the sentencing hearing was not part of a deliberate trial strategy. We will therefore review

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for plain error. See Beaulieu, 859 N.W.2d at 279. We will consider reversing under this
standard only if an appellant shows that there was an error, the error was plain, and the
error affected his substantial rights. State v. Sanchez-Sanchez, 879 N.W.2d 324, 328 n.2,
330 (Minn. 2016). An error affects an appellant’s substantial rights if there is a reasonable
likelihood that it substantially affected the outcome. State v. Rossberg , 851 N.W.2d 609,
618 (Minn. 2014). If the appellant establishes these three elements, still we will not reverse
a plain error unless we also conclude that it is necessary to ensure fairness and the integrity
of the judicial proceedings. Id.
We need not decide whether the district court plainly erred by relying on hearsay
because, even assuming plain error, Schill has not established that his substantial rights
were affected. The district court found as aggravating factors both that Schill’s prior and
current conviction s we re for offenses that resulted in injuries to his victims under
Minnesota S entencing Guidelines section 2.D.3.b(3) (Supp. 2017), and that Schill is a
repeat offender under Minnesota Statutes section 609.1095, subdivision 4 (2016). Because
the district court clarified that it was basing its departure decision on “both, or either” of
the aggravating factors, we will affirm the sentence if the unchallenged evidence supports
either of the aggravating factors.
The largely unchallenged, admissible evidence of Schill’s prior convictions
supports the district court’s finding t hat Schill i s a repeat offender; Schill’s responsive
sentencing memorandum acknowledged, “Mr. Schill does not deny the existence of the
requisite number of prior felonies.” The repeat-offender statute allows the sentencing court
to impose an aggravated sentence “up to the statutory maximum sentence if the factfinder

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determines that the offender has five or more prior felony convictions and that the present
offense is a felony that was committed as part of a pattern of criminal conduct.” Minn. Stat.
§ 609.1095, subd. 4. It is undisputed that Schill has five prior felony convictions. A pattern
of criminal conduct may be shown through evidence of conduct “similar, but not identical,
in motive, purpose, results, participants, victims, or other shared characteristics,” including
evidence of past felony convictions. State v. Henderson , 706 N.W.2d 758, 761 (Minn.
2005) (quotation omitted). Any findings that go beyond the fact of a prior conviction must
be proved beyond a reasonable doubt. Id. at 762.
Schill insists that there is insufficient evidence to show a pattern of criminal conduct
because the fact that he was convicted does not show such a pattern and the strongest
supporting facts are contained within inadmissible hearsay evidence detailing his conduct
in those cases. Schill is correct that the fact of a prior conviction, by itself, ordinarily does
not establish a pattern of criminal conduct. State v. McClenton, 781 N.W.2d 181, 193
(Minn. App. 2010) , review denied (Minn. June 29, 2010) . But in this case, detailing the
facts underlying his convictions is not necessary because the nature of his offenses, by
itself, is sufficient to show a pattern. Schill’s present offense and prior convict ions
necessarily show a pattern of domestic conduct. His present conviction of felony domestic
assault parallels his five prior felony convictions, all of which constitute domestic conduct
as defined in Minnesota Statutes section 634.20. See Minn. Stat. §§ 609.2242, subd. 4
(2014 & 2016), .224, subds. 1, 4(b) (2008, 2010 & 2012), .749, subds. 2, 4(a) (2008); see
also Minn. Stat. § 518B.01, subd. 2(2) (2016) (defining “domestic abuse” as used in section
634.20). It was not the fact of Schill’s conviction s alone that enabled the district court to

11
find a pattern of criminal conduct. Rather, the elements necessarily proved by virtue of the
convictions establish similar “domestic conduct” sufficient to demonstrate a pattern of
criminal conduct. The district cou rt had ample admissible evidence to find that the
repeat-offender aggravating factor is met. The upward departure stands.
Schill also argues that the district court’s sentencing procedure violated his Sixth
Amendment rights because he did not receive a pro per sentencing trial outlined in
Minnesota Rule of Criminal Procedure 26.01 and that this constitutes a structural error
necessitating a new sentencing trial. We reject the argument.
When an appellant maintains that the district court failed to follow rule 26.01
procedures, we review unobjected-to errors for plain error. See State v. Myhre, 875 N.W.2d
799, 804 (Minn. 2016) (reviewing error in a “trial to the court” under rule 26.01,
subdivision 4). The same standard applies when the challenge is couched in constitutional
terms. See State v. Tscheu , 758 N.W.2d 849, 8 63 (Minn. 2008) (applying plain -error
analysis to constitutional challenge). We see no error. Schill received a proper sentencing
trial under the ru le, which provides, “The defendant and the p rosecutor
may agree that a determination of . . . the existence of facts to support an aggravated
sentence . . . may be submitted to and tried by the court based entirely on stipulated facts,
stipulated evidence, or both. ” Minn. R. Crim. P. 26.01, subd. 3(a). A stipulated fact is an
agreement between opposing parties regarding an event or circumstance. Dereje v. State,
837 N.W.2d 714, 720 (Minn. 2013). For a proper trial on stipulated facts, the parties cannot
submit evidence of contradictory versions of events, because this requires the court to adopt
one party’s version and reject the other’s. Id. at 721.

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Schill maintains that he never agreed to a stipulated-facts sentencing trial. But it was
Schill’s counsel who suggested handling the sentencing trial through briefing. The district
court expressly offered Schill the opportunity to present evidence, but Schill declined,
answering, “No, Your Honor. I think my argument is pretty well contained in my
brief . . . .” Schill’s agreement to proceed on stipulated facts is clear from the record.
Schill’s hearing complied with the requirements for a trial on stipulated facts
because he tacitly stipulated to the facts presented by the state by not disputing them. The
state submitted a memorandum of law in support of its motion for an aggravated sentencing
departure, attaching multiple exhibits providing details about Schill’s prior con victions.
Schill filed only a two-page reply memorandum that disputed none of the facts about his
prior convictions and which argued only that those facts were insufficient to establish the
aggravated sentence. The district court did not have to choose bet ween competing facts.
The process met the requirements of a rule 26.01 trial.
Schill argues last that the district court was required to issue written findings of fact
regarding the aggravating factors and that the failure to do so requires a remand . The
controlling r ule provides that the district court must, after making its general finding,
“make findings in writing of the essential facts.” Minn. R. Crim. P. 26.01, subd. 2(b). The
purpose of written findings is to assist the appellate court in reviewing the conviction. State
v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990). The district court did not issue written
findings explaining why it found the aggravating factors but merely indicated on the record
that it was adopting the written arguments presented by the state. The district court should
have carefully followed the rule. But because the state’s memorandum rested on evidence

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provided contemporaneously, the district court’s oral explanation provides the means for
us to examine its reasoning. Schill has identified no plain error that affected his substantial
rights.
Affirmed.