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This opinion will be unpublished and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
A19-0082

State of Minnesota,
Respondent,

vs.

Earlynne Joy Redday,
Appellant.

Filed December 23, 2019
Reversed and remanded
Larkin, Judge

Traverse County District Court
File No. 78-CR-17-28

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

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Slieter, Judge; and Randall,
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
LARKIN, Judge
Appellant challenges her convictions for two counts of first-degree driving while
impaired (DWI) under Minn. Stat. § 169A.24 (2016) . Because the evidence was
insufficient to prove the felony DWI offenses that were tried to the jury, we reverse the
resulting convictions. However, we remand for the district court to enter one judgment of
conviction for a reduced misdemeanor DWI offense under Minn. Stat. § 169A.20, subd. 1
(2016), and to resentence appellant on that offense.
FACTS
Respondent State of Minnesota charged appellant Earlynne Joy Redday by
complaint with two counts of first -degree DWI—driving under the influence of alcohol
(counts one and two) and two counts of first -degree DWI—alcohol concentration of 0.08
or more (counts three and four). The complaint alleged that counts one and three were
felonies because Redday “committed the violation within ten years of the first of three or
more qualified prior impaired driving incidents.” The comp laint alleged that counts two
and four were felonies because Redday “was previously convicted of felony-level Driving
While Under the Influence on or about October 29, 1997 in Roberts County, South
Dakota.”
Redday agreed to a “Stipulation as to Prior Conviction Enhancing DWI Charge to
Felony Level.” The written stipulation provided,
[Redday] stipula tes . . . to [ her South Dakota ]
conviction on October 29, 1997 for felony DWI, and to her
convictions for DWI in Wahpeton, ND on April 14, 2008,

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Richland County, ND on September 9, 2008, Marshall County,
SD on May 23, 2011 and again on November 18, 2013.

[Redday] further stipulates t hat these convictions
combine to enhance all driving under the influence charges
herein to felony level, and, pursuant to this stipulation, these
enhancing elements of the case s hould not go to the jury. . . .
Redday . . . waive[s] her right to have the ju ry decide this
element of the case and stipulates to the conviction or
convictions in order to keep them from consideration by the
jury.

At the beginning of Redday’s trial, the state moved to dismiss counts one and three
of the complaint because Redday had “agreed that [she] was going to stipulate to the priors”
and “[t]here really is no distinction . . . in front of the jury [regarding] Counts 1 and 3 and
Counts 2 and 4.” The district court granted the state’s motion and dismissed counts one
and three, noting that the two remaining counts were “felony counts because of a prior
felony conviction.” At trial, the district court instructed the jury on the elements of DWI
under Minn. Stat. § 169A.20, subd. 1(1), (5 ), and the jury found Redday guilty of both
DWI offenses.
Prior to sentencing, the state notified the district court and Redday that the
presentence investigator had questioned whether “Redday’s prior South Dakota felony
conviction qualifies as a prior felony conviction .” At sentencing , the district court,
prosecutor, and defense counsel discussed that issue. The prosecutor explained that, “based
upon [Redday’s] stipulation” to her 2008, 2011, and 201 3 DWI convictions, Redday and
the state “believe[d] that the Court [could] still sentence t his as a felony but sentence it
based upon the fact of the four prior convictions not the 1997 felony conviction from . . .
South Dakota.”

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The district court entered judgments of conviction, reasoning that the charged
offenses were felonies because Redday had committed a DWI “within 10 years of the first
of four or more prior impaired driving incidents .” The district court sentenced Redday to
a stayed 42 -month prison term on count two, driving under the influence of alcohol .
Redday appeals.
D E C I S I O N
“It is a crime for any person to drive, operate, or be in physical control of any motor
vehicle” when “the person is under the influence of alcohol” or “the person’s alcohol
concentration at the time, or as measured within two hours of the time, of d riving,
operating, or being in physical control of the motor vehicle is 0.08 or more.” Minn. Stat.
§ 169A.20, subd. 1(1), (5). A person who commits a DWI under Minn. Stat. § 169A.20
(2016), is guilty of felony first-degree DWI if an enhancement requireme nt under Minn.
Stat. § 169A.24, subd. 1 , is satisfied. Subdivision 1(1) provides that a DWI offense is
enhanced to first-degree DWI if the offender “commit[ted] the violation within ten years
of the first of three or more qualified prior impaired driving incidents.” Minn. Stat.
§ 169A.24, subd. 1(1). Subdivision 1(2) provides that a DWI offense is enhanced to first-
degree DWI if the offender “has previously been convicted of a felony under this section.”
Id., subd. 1(2).
Redday contends that “[t]he state’s evidence was insufficient to prove that [she] was
guilty of first -degree driving while impaired pursuant to section 169A.24, subdivision
1(2).” The state counters that Redday “was NOT charged or convicted of a violation of
[Minn. Stat. § 169A.24, su bd. 1(2)],” that “[a]ll four charges, and the two convictions,

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relate to violations of [ Minn. Stat. § 169A.24, subd. 1(1)],” and that “[t]his is expressly
noted not only on the criminal complaint . . . but also on the Sentencing Order.” (Emphasis
omitted.) Before we review the merits of Redday’s sufficiency challenge, we must first
determine the offenses of conviction.
Offenses of Conviction
The complaint in this case alleged that counts one and three were felonies because
Redday “committed the violation within ten years of the first of three or more qualified
prior impaired driving incidents .” The complaint alleged that counts two and four were
felonies because Redday “was previously convicted of felony -level Driving While Under
the Influence on or about October 29, 1997 in Roberts County, South Dakota.” However,
the state points out that all four counts of the complaint reference Minn. Stat. § 169A.24,
subd. 1(1), as the charging statute, which provides for felony enhancement based on the
existence of three or more qualified prior impaired driving incidents. The state asserts that
those references determine the offenses of conviction. Specifically, the state argues that
“nowhere in the charging instrument was [Redday] charged with a violation of [Minn. Stat.
§ 169A.24, subd. 1(2)].” For the reasons that follow, we disagree.
The purpose of a complaint is to “apprise the defendant of the charge for which [she]
is being held and tried.” State v. Clark, 134 N.W.2d 857, 866-67 (Minn. 1965). “For each
count, the indictment or complaint must cite the statute, rule, regulation, or other provision
of law the defendant allegedly violated.” Minn. R. Crim. P. 17.02, subd. 3. Thus, in
determining what charges the state has brought against a defendant, courts should rely upon

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the language of a complaint rather than the actual statutory citations contained in it. See
State v. DeVerney, 592 N.W.2d 837, 847 (Minn. 1999) (discussing indictment).
The description of the offenses charged in counts one and three of the complaint
indicate that those charges were based on Redday’s 2008, 2011, and 2013 out-of-state DWI
convictions. Counts one and three therefore set forth charges under Minn. Stat. § 169A.24,
subd. 1 (1), the felony -enhancement provision based on th ree or more qualified prior
impaired driving incidents within ten years. But the district court granted the state’s motion
to dismiss counts one and three before trial, leaving counts two and four of the complaint
for trial. The description of the offenses charged in counts two and four of the complaint
indicate that those charges were based on Redday’s 1997 felony-level South Dakota DWI
conviction. Counts two and four therefore set forth charges under Minn. Stat. § 169A.24,
subd. 1(2), the felony -enhancement provision based on a prior felony DWI conviction.
Indeed, the state admits that “[a]s demonstrated by the charging language under Counts II
and IV, [it] had intended to cite to [Minn. Stat. § 169A.24, subd. 1(2)].” Consistent with
that admission, the district court stated that the two counts remaining for trial were “felony
counts because of a prior felony conviction.”
Because the district court granted the state’s motion to dismiss counts one and three,
counts two and fou r, which charged an enhanced offense under Minn. Stat. § 169A.24,
subd. 1(2), were the only remaining counts to be tried to the jury. Thus, the jury’s finding
of guilt resulted in convictions of enhanced felony DWI under Minn. Stat. § 169A.24, subd.
1(2). We therefore consider whether the evidence was sufficient to convict Redday of
felony DWI under that statute.

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Sufficiency of the Evidence
When considering a claim of insufficient evidence, an appellate court carefully
analyzes the record to determine whether the evidence, when viewed in a light most
favorable to the conviction, was sufficient to permit the jury to reach the verdict that it did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). An appellate court will not dis turb a
guilty 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 state
proved that the defendant was guilty of the offense charged. Bernhardt v. State , 684
N.W.2d 465, 476-77 (Minn. 2004).
Redday does not argue that the evidence was insufficient to prove t he elements of
Minn. Stat. § 169A.20, the underlying DWI statute. Instead, Redday argues that the
evidence was insufficient to prove that she had previously been convicted of a felony DWI,
as required under Minn. Stat. § 169A.24, sub d. 1(2). Redday stipulat ed that she ha d a
“conviction on October 29, 1997 for felony DWI” and to the district court’s receipt of a
certified copy of h er 1997 S outh Dakota conviction . But Redday asserts that her 1997
South Dakota conviction does not satisfy the requirement of Minn. Stat. § 169A.24, subd.
1(2), because she “was convicted of [a] felony driving under the influence offense under a
South Dakota statute, and not under section 169A.24.” See Minn. Stat. § 169A.24, subd.
1(2) (referring to a previous felony conviction “under this section” (emphasis added) ).
Redday also asserts that the conduct underlying her 1997 South Dakota DWI conviction
would not constitute a felony DWI under Minn. Stat. § 169A.24, subd. 1(2). The state does
not challenge either of Redday’s assertions. Based on our review of the relevant statutes,

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we agree that Redday’s 1997 South Dakota conviction is not a felony DWI “ under [Minn.
Stat. § 169A.24].” See id.
Because Redday’s 1997 South Dakota conviction does not satisfy the requirements
of Minn. Stat. § 169A.24, subd. 1(2), the evidence was insufficient to convict her of first-
degree DWI under that statute. We therefore reverse her convictions.
Remedy
If an appellate court reverses a district court’s judgment of conviction, the appellate
court must direct:
(a) a new trial;
(b) vacation of the conviction and entry of a
judgment of acquittal; or
(c) reduction of the convic tion to a lesser included
offense or to an offense of lesser degree, as the
case may require. If the court directs a reduction
of the conviction, it must remand for
resentencing.

Minn. R. Crim. P. 28.02, subd. 12.
Redday argues that “[i]f this Court is n ot inclined to vacate [her] conviction[s]
outright given the jury’s verdict, it may alternatively reduce [her] convictions for first -
degree driving while impaired to the lesser included offense of misdemeanor driving while
impaired.”
At trial, the distr ict court instructed the jury on the elements of DWI under
§ 169A.20, subd. 1(1), (5), and the jury found Redday guilty of both DWI offenses. A
person who violates Minn. Stat. § 169A.20, subd. 1, is guilty of fourth -degree DWI, a
misdemeanor. Minn. Stat. § 169A.27 (2016). Because Redday does not dispute that the

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evidence was sufficient to support the jury’s finding of guilt based on the elements of DWI
under Minn. Stat. § 169A.20, subd. 1(1), (5), a reduced conviction is appropriate.
However, Redday argues and the state agrees that the district court improperly
entered judgments of conviction for both of the proven DWI offenses because they arose
from the same alleged criminal conduct and derive from different subsections of the same
statute. At sentencing, the district court stated, “I’m not going to adjudicate or do anything
on Count 4 because it’s a lesser included offense. It will remain unadjudicated.” But the
district court’s judgment of conviction states that Redday was convicted of two counts of
first-degree DWI under Minn. Stat. § 169A.24, subd. 1(1). Appellate courts look to the
official judgment of conviction in the district cour t file as conclusive evidence of whether
an offense has been formally adjudicated. See Spann v. State, 740 N.W.2d 570, 573 (Minn.
2007) (stating that the “official judgment of conviction in the district court file” is
“conclusive evidence of whether an offense has been formally adjudicated” (quotation
omitted)).
“Upon prosecution for a crime, the actor may be convicted of e ither the crime
charged or an included offense, but not both.” Min n. Stat. § 609.04, subd. 1 (2016 ). An
“included offense” include s “[a] lesser degree of the same crime” and “ [a] crime
necessarily proved if the crime charged were proved.” Id., subd. 1(1), (4). The Minnesota
Supreme Court has interpreted Minn. Stat. § 609.04 to “bar[] multiple convictions under
different sections of a criminal statute for acts committed during a single behavioral
incident.” State v. Jackson , 363 N.W.2d 758, 760 (Minn. 1 985). Whether a conviction

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violates Minn. Stat. § 609.04 is a legal question that this court reviews de novo. State v.
Cox, 820 N.W.2d 540, 552 (Minn. 2012).
The circumstances of State v. Clark are instructive. 486 N.W.2d 166, 170-71 (Minn.
App. 1992). In Clark, a jury found the defendant guilty of “driving while under the
influence of alcohol and driving with a blood alcohol concentration of .10 or more” in
violation of the DWI statute in effect at the time. Id. at 169. The district court entered
judgments of conviction for both offenses and sentenced the defendant for the offense of
driving under the influence of alcohol. Id. at 170-71. This court held that one of the
convictions must be vacated under Minn. Stat. § 609.04 because they were based on
different subsections of the same statute and stemmed from acts committed during a single
behavioral incident. Id.
As in Clark, the DWI convictions in this case were based on different subsections
of the same criminal statute and stemmed from acts committed during a single behavioral
incident. Like Clark, there may be only one judgment of conviction in this case.
Remand Instructions
We remand for the district court to vacate Redday’s felony-level judgments of
conviction under Minn. Stat. § 169A.24, to enter one judgment of conviction for a reduced
misdemeanor DWI offense under Minn. Stat. § 169A.20, subd. 1, and to resentence Redday
on that misdemeanor offense.
Reversed and remanded.