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This opinion will be unpublished and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
A18-1922

State of Minnesota,
Respondent,

vs.

Robert Kerrell Levell Dawson,
Appellant.

Filed September 30, 2019
Affirmed
Kalitowski, Judge*

Stearns County District Court
File No. 73-CR-17-11151

Keith Ellison, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and
Kalitowski, 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
KALITOWSKI, Judge
In this direct appeal from his convictions of firearm possession, burglary, and
attempted first-degree murder, appellant Robert Kerrell Levell Dawson argues that (1) the
district court erred in admitting evidence concerning an altercation between appellant and
relatives of the shooting victim that occurred earlier on the day of the shooting; (2) the
district court abused its discretion by permitting the state to impeach appellant with
evidence of prior convictions; (3) his jury-trial waiver was invalid; and (4) the district court
erred by sentencing appellant for both burglary and attempted first-degree felony murder.
Appellant also raises an ineffective -assistance-of-counsel claim in his pro se brief. We
affirm.
FACTS
Appellant was charged with six offenses in connection with the shooting of S.C. on
the evening of November 25, 2017. Investigators located appellant in Chicago and
extradited him to Minnesota to face charges. Appellant waived his right to a jury trial. At
the bench trial, S.C. testified that he was sitting in the bedroom of his apartment when
someone entered without knocking. S.C. heard the person say something to the effect of
“you all go to the b ack and I’m gonna go in here.” S.C. recognized the voice as that of
appellant, whom S.C. knew as “ Boo Man” and the boyfriend of S.C.’s niece , T.M. S.C.
testified that appellant came into his bedroom, they looked each other in the face, and
appellant shot S.C. one time. S.C. dove through his bedroom window onto the fire escape
and ran down the stairs. He called 911 and did not see appellant again.

3
At trial, the district court heard testimony from V.C., L.G., and M.G. concerning an
incident that occurred hours before the shooting . V.C. is S.C.’s brother. L .G. is S.C.’s
brother-in-law (and T.M.’s step-father). M.G. is S.C.’s niece (and L.G.’s daughter). The
three of them went to appellant’s mother’s house to pick up T.M. When they arrived,
appellant was outside the house with T.M. arguing about a phone. M.G. testified that when
they arrived at A.D.’s she saw appellant pushing T.M. and when she told T.M. to get in
L.G.’s car, appellant said “she’s not going nowhere.” M.G. further testified that T.M. was
ultimately picked up by someone else and that T.M. broke appellant’s phone in the street
as she left. Appellant then got into the car where L.G. was sitting and told L.G. that he
needed to buy appellant a new phone. L.G. said he did not have anything to do with
appellant and does not get into T.M.’s business. L.G. recalled appellant saying something
about T.M. “messing with [appellant’s] family.” M.G. was certain that appellant told L.G.
that “since [T.M.] f ---ked up my family I’m going to f--k up hers.” When L.G. and
appellant got out o f the car, appellant punched L.G. in the face, dropping L.G. to the
ground. Officer Baumann testified that he viewed a Snapchat video of appellant showing
his knuckles and referencing “blood from [T.M.’s] daddy.” The video was made at around
4:00 p.m. on the day of the shooting.
The district court found appellant guilty o f all counts and sentenced appellant to
concurrent executed terms of 60 months for the felon -in-possession-of-a-firearm
conviction, 108 months for the first -degree-burglary conviction, an d 240 months for the
attempted-first-degree-felony-murder conviction.

4
D E C I S I O N
I.
Prior to trial, and over appellant’s objection, the district court granted the state’s
motion to admit evidence concerning the altercation that occurred with S.C.’s family
members several hours before S.C. was shot. “Evidentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear abuse of discretion.”
State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). Appellant has the burden on appeal to
establish “that the [district] court abused its discretion and that appellant was thereby
prejudiced.” Id.
Generally, “evidence showing that the accused has committed another crime
unrelated to the crime for which he or she is on trial is inadmissible because it is not
competent to prove one crime by proving another.” State v. Nunn, 561 N.W.2d 902, 90 8
(Minn. 1997). Evidence of prior bad acts is inadmissible except where the evidence fits
within a specific exception, such as immediate -episode evidence, which is a narrow
exception to the general character -evidence rule. State v. Riddley, 776 N.W.2d 419, 424 -
25 (Minn. 2009). The general rule against admitting other -crime evidence does not
preclude the state from proving all relevant facts and circumstances which tend to establish
any of the elements of the offense for which the accused is charged, even though such facts
and circumstances may prove or tend to prove that the defendant also commi tted other
crimes. State v. Wofford, 114 N.W.2d 267, 271 (Minn. 1962). In order for evidence to be
properly admissible as immediate-episode evidence, the supreme court has “emphasize[d]
the need for a close causal and temporal connection between the prio r bad act and the

5
charged crime.” Riddley, 776 N.W.2d at 426 (citing State v. Fardan, 773 N.W.2d 303, 306
(Minn. 2009)).
Appellant argues that the district court abused its discretion because evidence of the
earlier assaults was not sufficiently related t o the shooting, not relevant or material to the
current allegation, and any probative value was far outweighed by the prejudice. Appellant
also maintains that the earlier assaults occurred hours before the shooting , and admitting
evidence of T.M. breaking appellant’s phone would have been sufficient to support the
state’s theory. But the state’ s theory was not that appellant was simply upset about a
phone—its theory was that appellant had threatened to go through T.M.’s family to get
back at her.
Immediate-episode evidence “is admissible where two or more offenses are linked
together in point of time or circumstances so that one cannot be fully shown without
proving the other, or where evidence of other crimes constitutes part of the res gestae. ”
Riddley, 776 N.W.2d at 425 (quotation omitted). The two events bore such a connection
here. As found at trial, appellant went into S.C.’s apartment, was inside for only ten
seconds, shot S.C. at point-blank range, and ran out. Given S.C.’s limited familiarity with
appellant, and no evidence of any contention between the two or other motivation, the
shooting does not make sense without having an understanding of the incident occurring
earlier in the day. And the district court’s determination to admit evidence concerning the
earlier assault and threats is consistent with authority addressing this issue. In Nunn, 561
N.W.2d at 908, the supreme court explained that the district court properly admitted
evidence of threats that occurred several months prior to the alleged crime as immediate -

6
episode evidence because the evidence supported the prosecution’s case on motive, which
in turn went to the issues of intent and premeditation, which are elements of attempted
first-degree murder. It also explained that t he earlier threats and “kidnapping” were
relevant “to show the lengths to which Nunn was willing to go to retrieve his money and
marijuana and to punish the individual s he believed to be responsible for their
disappearance.” Id.; State v. Leecy, 294 N.W.2d 280, 282 (Minn. 1980) (concluding that
the district court properly admitted testimony concerning a threat defendant made earlier
in the evening in question).
Appellant asserts that even if the evidence of the earlier events was immediate -
episode evidence, its probative value was outweighed by the highly preju dicial nature of
the evidence. Appellant’s argument, properly understood, is that the evidence is highly
prejudicial because it is highly probative. But the standard under Minn. R. Evid. 404(b) is
only concerned with unfair prejudice. See State v. Schulz, 691 N.W.2d 474, 478 (“Unfair
prejudice under rule 403 is not merely damaging evidence, even severely damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, gi ving
one party an unfair advantage.”). The overarching concern regarding evidence of prior bad
acts is its potential use for an improper purpose, such as suggesting that the defendant has
the propensity to commit a crime. See State v. Washington , 693 N.W .2d 195, 200 -01
(Minn. 2005). Here, we see no reasonable likelihood that the fact-finder would be inclined
to unfairly conclude that, based upon the earlier immediate -episode evidence, appellant
had a propensity to commit the shooting. More logically, the fact-finder was going to either

7
accept or reject the state’s theory that there was an earlier incident involving an assault and
threats, culminating with appellant shooting S.C.
II.
Prior to trial, the state filed its notice of intent, pursuant to Minn . R. Evid. 609, to
introduce seven prior felony convictions and three false -information-to-police-officer
convictions to impeach appellant. The prior felony convictions included three predatory -
offender registration violations , two domestic-abuse-no-contact order ( DANCO)
violations, and two aggravated -robbery convictions. Appellant objected, arguing that
admitting ten convictions for impeachment purposes was excessive and overly prejudicial.
The district court ruled that the state could introduce all of the convictions except for one
DANCO violation because it arose from the same case as the other DANCO violation.
Appellate courts will not reverse a district court’s ruling on the impeachment of a
witness by prior conviction absent a clear abuse of disc retion. State v. Hill, 801 N.W.2d
646, 651 (Minn. 2011). As discussed, appellant has the burden on appeal to establish that
the district court abused its discretion and that appellant was thereby prejudiced. Amos,
658 N.W.2d at 203.
For the purpose of attacking the credibility of a witness, evidence that the witness
has been convicted of a crime shall be admitted only if the crime “(1) was punishable by
death or imprisonment in excess of one year under the law under which the witness was
convicted, and the court determines that the probative value of admitting this evidence
outweighs its prejudicial effect; or (2) involved dishonesty or false statement, regardless of
the punishment.” Minn. R. Evid. 609(a). When applying Minn. R. Evid. 609, the distric t

8
court considers: (1) the impeachment value of the prior crime; (2) the dates of conviction
and the defendant’s subsequent history; (3) the similarity of the past crime with the crime
charged; (4) the importance of the defendant’s testimony; and (5) the c entrality of
credibility. State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). We address these factors
in turn.
1. Impeachment value of prior convictions
Appellant argues that this factor weighs in his favor, but acknowledges precedent to
the contrary. In Hill, the supreme court explained that “it is the general lack of respect for
the law, rather than the specific nature of the conviction, that informs the fact-finder about
a witness’s credibility.” 801 N.W.2d at 652. Any felony conviction is probative of a
witness’s credibility and holds impeachment value. Id. Appellant disputes this
interpretation. But the cases he relies on do not support his argument and were decided
before Hill. Appellant’s felony convictions hold significant impeachment value because
they allow the fact-finder to make credibility determinations by seeing “the whole person
to judge better the truth of his testimony.” Hill, 801 N.W.2d at 651 (quotation omitted).
This factor favors admissibility.
2. Dates of conviction and subsequent history
Minn. R. Evid. 609(b) provides that prior felony convictions more than ten years
old are inadmissible for impeachment purposes. All of appellant’s convictions were within
ten years of the offense date. The oldest conviction was from 2009, or approximately eight
years prior to th e date of the charged offense. While eight years is close to the 10 -year-
limit, appellant’s subsequent history supports admission. In State v. Ihnot , the supreme

9
court explained that while the prior conviction was fairly old (also eight years), Ihnot’s
subsequent convictions show “a pattern of lawlessness that indicates that the prior offense
had not lost any relevance by the passage of time.” 575 N.W.2d 581, 586 (M inn. 1998)
(quotation omitted). This factor favors admission.
3. Similarity between the prior offense and the charged offense
The supreme court has recognized that the greater the similarity between the prior
conviction and charged offense, the greater the reason for not permitting use of the prior
conviction to impeach. Jones, 271 N.W.2d at 538. Here, the two aggravated -robbery
convictions bear some similarity to the charged offense. But the district court explained
that it would not consider the types of offenses in any way to determine whether appellant
was guilty of the charged offense. Hill explained that if a district court finds that the
prejudicial effect of disclosing the nature of a felony conviction outweighs its probative
value, it may still allow a party to impeach a witness with an unspecified felony conviction
if the use of the unspecified conviction satisfies the balancing test. 801 N.W.2d at 652-53.
This factor also favors admission.
4. The importance of defendant’s testimony
The district court explained that the importance of appellant’s testimony obviously
weighs against admission, but posited that it would be easier for the court to separate out
the fact that appellant has prior conviction s than it might be for a jury. Appellant argues
that his testimony was critical because, without it, the defense version of events was never
presented to the court. He argues that he could have explained why he went to Chicago,
which the court found suggestive of guilt. But appellant made no offer of proof. If the

10
defendant does not make any offer of proof as to any additional testimony the defendant
would have added if he had taken the stand, that is a factor that favors admissibility of
prior-conviction-impeachment evidence. State v. Gassler , 505 N.W.2d 62, 67 (Minn.
1993); State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984). Where the defendant makes no
offer of proof, the district court “is left to assume that the thrust of his testimony would
have been to deny the allegations.” Ihnot, 575 N.W.2d at 587. Therefore, even if the
district court correctly weighed this factor in favor of appellant, it favors appellant only
slightly.
5. The centrality of credibility
Without providing argument, a ppellant states that this factor might weigh in favor
of admissibility. The district court found that this factor weighs in favor of admissibility
and caselaw supports that determination. Where credibility would have been a main issue
in the case had the defendant testified, there would have been a significant nee d for the
admission of impeachment evidence. Gassler, 505 N.W.2d at 67; see, e.g., State v.
Swanson, 707 N.W.2d 645, 655 (Minn. 2006) (explaining that if credibility is a central
issue, the fourth and fifth Jones factors weigh in favor of admission of the prior
convictions). This factor weights in favor of admission because appellant’s credibility
would have been a central issue had he testified.
Contrary to appellant’s assertion, the fact that the district court allowed six felonies
to be admitted was not excessive. Cf. Hill , 801 N.W.2d at 651 (noting that lack of
trustworthiness may be evinced by the defendant’s repeated contempt for laws). The
district court did not clearly abuse its discretion by admitting the prior-conviction evidence.

11
See Lloyd, 345 N.W.2d at 246 (“We must uphold the [district] court’s ruling unless a clear
abuse of discretion is shown.” (quotation omitted)); see also Gassler , 505 N.W.2d at 67
(“The [district] court is vested with great discretion in this area.”).
III.
A criminal defendant has the constitutional right to a jury trial when charged with
an offense punishable by incarceration. State v. Kuhlmann, 806 N.W.2d 844, 848 (Minn.
2011). A defendant may waive the right to a jury trial so long as the waiver is voluntary,
knowing, and intelligent. Id. “A waiver made in compliance with [Minn. R. Crim. P.]
26.01, subd ivision 1(2)(a), meets the knowing, voluntary, and intelligent requirement. ”
State v. Thompson, 720 N.W.2d 820, 827 (Minn. 2006). With the approval of the court, a
defendant may waive a j ury trial on the issue of guilt provided that the defendant does so
personally, in writing or on the record in open court, after being advised by the court of the
right to trial by jury, and after having had an opportunity to consult with counsel. Minn.
R. Crim. P. 26.01, subd. 1(2)(a).
Appellant argues that his jury-trial waiver was invalid. Appellant does not contest
that his waiver was done personally and on the record. Nor does appellant argue that the
district court failed to advise him of his right to trial by jury. Importantly, appellant does
not argue that he did not have an opportuni ty to consult with counsel. Rather, appellant
argues that the district court frustrated his jury-trial rights because the district court failed
to ask whether he had an opportunity to consult with counsel. We reject this argument.
The record demonstrates that appellant’s counsel was present at the omnibus
hearing, represented appellant’s interests, and appellant had an opportunity to consult with

12
his counsel. Defense counsel stated that “we’ve had several conversations with [appellant]
and my last one wa s this morning with him, and he indicated to me that he had made a
decision to waive his jury trial, and ask that his case be heard in front of you sitting alone.”
The district court then said that it was going to have appellant sworn in and “ask you a
couple of questions to make sure that this is what you want to do, okay?” Appellant said,
“Yes, ma’am” and the following colloquy occurred:
Q. All right, and Mr. Dawson, obviously, you’re familiar with
the counts, the five counts [sic] that are in the compl aint,
correct?
A. Yes, ma’am.
Q. All right, you understand that you have a right to have the
State prove beyond a reasonable doubt to members of a jury if
you choose, to all of them, that you committed the crimes to
which you are charged, you aware of that?
A. Yes, Your Honor.
Q. And if you did choose a jury trial it would be twelve
members of the community that would be making that
decision, and they would have to agree unanimously that the
State had proven beyond a reasonable doubt, one, and then and
up to all of those crimes, you know crime by crime, it would
have to be proven beyond a reasonable doubt in order for you
to be found guilty of each of those crimes, you understand that?
A. Yes, Your Honor.
Q. Are you wanting to give up your right to a j ury and to the
unanimous verdict by a jury, and instead have those cases, in
each of those crimes come before me?
A. Yes, Your Honor.

Appellant is on record waiving his right to a jury trial after being advised of that
right. The fact that appellant did not expressly state on the record that he consulted with
counsel does not render the waiver invalid. See State v. Pietraszewski , 283 N.W.2d 887,
890 (Minn. 1979) (explaining that the district court should have questioned the defendant
more thoroughly to determine whether he had conferred with his attorney about the

13
consequences of a waiver, but the failure to do so did not require reversal). Appellant’s
jury-trial waiver was knowing, voluntary, and intelligent. It was therefore valid.
IV.
Appellant was charged with first -degree burglary under both subdivision 1(b) and
1(c), but convicted of first -degree burglary only under Minn. Stat. § 609.582, subd. 1(b).
Appellant was also convicted of attempted first -degree felony murder under Minn. Stat.
§ 609.185(a)(3) (2016), an offense that occurred during the burglary. The issue is whether
appellant may be separately convicted of and sentenced for first -degree burglary while
possessing a dangerous weapon and attempted first -degree felony murder. Whether a
sentence conforms to the requirements of a statute is a question of law reviewed de novo.
State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009).
Minnesota law generally prohibits a person from being punished twice for conduct
that is part of the same behavioral incident. “Except as provided in . . . [section] 609.585
. . . if a person’s conduct constitutes more than one offense under the laws of this state, the
person may be punished for only one of the offenses.” Minn. Stat. § 609.035, subd. 1
(2016). Minn. Stat. § 609.585 (2016), in turn, provides that: “Notwithstanding section
609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction
of or punishment for any other crime committed on entering or while in the building
entered.” (emphasis added). The issue here then, is whether the nonburglary offense is
“any other crime.” State v. Holmes, 778 N.W.2d 336, 340 (Minn. 2010). If attempted first-
degree felony murder is “any other crime,” appellant may be convicted and sentenced for
both first -degree burglary with a dangerous weapon and attempted first -degree felony

14
murder. Id. If attempted first-degree felony murder is not “any other crime,” Minn. Stat.
§ 609.585 may not be used to allow multiple convictions and sentences based on the same
conduct. Id. The Minnesota Supreme Court has explained that, in the context of section
609.585, the phrase “any other crime” means “a crime that requires proof of different
statutory elements than the crime of burglary.” Id. at 341.
First-degree burglary with a dangerous weapon prohibits a person from (1) entering
a building without consent and with the intent to commit a crime , or entering a building
without consent and committing a crime while in the building; and (2) possessing when
entering, or at any time while in the building, a dangerous weapon, any article used or
fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon,
or an explosive. Minn. Stat. § 609.582, subd. 1(b).
A defendant is guilty of first-degree felony murder if the defendant:
causes the death of a human being with intent to effect the
death of the person or another, while committing or attempting
to commit burglary, aggravated robbery, kidnapping, arson in
the first or second degree, a drive-by shooting, tampering with
a witness in the first degree, escape from custody, or any felony
violation of chapter 152 involving the unlawful sale of a
controlled substance.

Minn. Stat. § 609.185, subd. (a)(3). “Whoever, with intent to commit a crime, does an act
which is a substantial step toward, and more than preparation for, the commission of the
crime is guilty of an attempt to commit that crime . . . .” Minn. Stat. § 609.17, subd. 1
(2016). Therefore, a defendant is guilty of attempted first -degree felony murder if the
defendant attempts to effect the death of a human being, provided that the attempt is done
while committing, or attempting to commit, one of the enumerated crimes.

15
Attempted first-degree felony murder requires that the defendant attempt to cause
the death of another person. First -degree burglary does not. Because attempted first -
degree felony murder requires p roof of different statutory elements than first -degree
burglary with a dangerous weapon, it falls within the meaning of “any other crime” under
Minn. Stat. § 609.585. Cf. Holmes, 778 N.W.2d at 341. Accordingly, a conviction and
sentence for first-degree burglary with a dangerous weapon is not a bar to a conviction and
sentence for attempted first -degree felony murder committed during the course of the
burglary.
V.
Appellant also filed a pro se supplemental brief in which he claims that his trial
counsel w as ineffective. “To prevail on an ineffective -assistance-of-counsel claim,
[appellant] must prove that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that, but for counsel’s errors, th e
outcome would have been different.” Staunton v. State , 784 N.W.2d 289, 300 (Minn.
2010); see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Because both
prongs of the Strickland test are required, we need not analyze both prongs if one is
determinative. Staunton, 784 N.W.2d at 300. “When a claim of ineffective assistance of
trial counsel can be determined on the basis of the trial record, the claim must be brought
on direct appeal or it is Knaffla-barred.” Andersen v. State , 830 N.W.2d 1, 10 (Minn.
2013). But when the claim requires examination of evidence outside of the trial record or
additional fact-finding, the claim is better brought in a postconviction proceeding and is
not Knaffla barred. Id.

16
Appellant argues that his trial counsel’s representation was ineffective because
counsel failed to interview witnesses and to visit the crime scene. Appellate courts
generally do not review attacks on counsel’s trial strategy. Opsahl v. State, 677 N.W.2d
414, 421 (Minn. 2004). Decisions regarding what witnesses to call and what information
to present to the jury are generally questions that lie within the discretion of trial counsel.
State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). But the supreme court has considered
whether trial counsel’s lack of investigation, including failure to thoroughly investigate the
crime scene and review photographic and video evidence of the crime scene taken by
police, affected the outcome of the case. Staunton, 784 N.W.2d at 300 n.9 (observing that
trial counsel’s lack of investigation was “disturbing,” but declining to address deficiency
prong in light of absence of prejudice). On this record we cannot ascertain whether
appellant has demonstrated that trial counsel’s purported failure to investigate fell below
an objective standard of reasonableness, or that the lack of investigation affected the
outcome of the case. Because the record is insufficient, we decline to consider this issue.
See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (preserving appellant’s right to
pursue ineffective-assistance-of-counsel claim in postconviction proceedings where record
was insufficient).
Appellant also raises an ineffective-assistance-of-appellate counsel claim premised
on his appellate counsel’s refusal to stay the appeal to pursue postconviction relief on his
ineffective-assistance-of-trial-counsel claim. See Minn. R. Crim. P. 28.02, subd. 4(4)
(providing that defendant may file motion to stay appeal for postconviction proceedings).
Appellate counsel does not have an obligation to raise all possible claims on direct appeal,

17
and is “permitted to argue only the most meritorious claims.” Schneider v. State , 725
N.W.2d 516, 523 (Minn. 2007). Claims that appellate counsel was ineffective may b e
raised in postconviction proceedings because defects in appellate counsel’s representation
are not known at the time of the direct appeal. Id. at 521. Moreover, an ineffective-
assistance-of-appellate-counsel claim premised on counsel’s failure to rais e a claim that
trial was counsel was ineffective requires appellant to establish that his trial counsel’s
representation was ineffective. Id. Because appellant’s ineffective -assistance-of-
appellate-counsel claim depends on the determination that his trial counsel was ineffective,
we decline to consider the ineffective-assistance-of-appellate-counsel claim.
Affirmed.