State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0415

State of Minnesota,
Respondent,

vs.

Lawrence Bernard Nowels,
Appellant.

Filed March 30, 2020
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Ramsey County District Court
File No. 62-CR-17-7413

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

John J. Choi, Ramsey County Attorney, Pete r R. Marker, Assistan t County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, St. Paul,
Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Jesson, Judge.
S Y L L A B U S
Under Minnesota Statutes section 609.035, su bdivisions 1, 3 (2016), a district court
cannot convict and sentence a defendant for be ing an ineligible person in possession of
both a firearm and ammunition in violation of Minnesota Statutes section 624.713,
subdivision 1(2) (2016), when the defendant possesses a single loaded firearm.

2
O P I N I O N
JESSON, Judge
Appellant Lawrence Bernard Nowels cha llenges his convictions and sentences for
robbing—at gunpoint—a pers on trying to buy marijuana from him. Nowels advances
several arguments on appeal. First, he argues that prosecutorial misconduct tainted his trial
such that reversal is necessary. Second, he contends that he was improperly convicted and
sentenced for unlawful possession of both a fi rearm and ammunition. Finally, Nowels
advances several arguments in his pro se s upplemental brief. Because we conclude that
any prosecutorial misconduct did not affect his substantial rights and his supplemental
arguments are without merit, we affirm in pa rt. But because the district court improperly
convicted and sentenced Nowels for both counts of possession, we reverse and remand for
the district court to vacate one possession conv iction and sentence c onsistent with this
opinion.
FACTS
Hoping to buy some marijuana, J.C. went to a gas station on Rice Street in St. Paul.
At the station, he approached a white car with a couple men inside and asked if they had
any “green.” The men agreed to a sale, but not at the gas station because it was too “hot,”
meaning that police officers frequent the store. Two of the men from the car got in J.C.’s
car with him, and J.C. drove, at their direc tion, to a nearby parking lot. Once parked, the
person in the front passenger seat (later identified as appellant Lawrence Bernard Nowels)
put a gun to J.C.’s head and demanded his belongings. The ma n in the back seat (later

3
identified as accomplice D.R.) put his arms around J.C.’s head and chin and threatened to
break his neck.
J.C. handed over his iPhone, car key, wife ’s bank card, wallet, and $18 cash. The
men got out of J.C.’s car and into a car idli ng nearby. This was th e same white car that
Nowels and D.R. occupied at the gas station when J.C. first approached them.
After borrowing a passerby’s phone, J.C. ca lled 911. He told the operator that two
men had robbed him and that one had put a gun to his head. Police showed up shortly after
that and spoke with J.C. Later, a relative came to pick him up, and he left the scene.
But J.C. was so upset by the robbery that he took matters into his own hands,
borrowing a car and phone to se arch for those who robbed him. J.C. spotted the men not
far from the scene of the robbery, outside a market on Rice Street. And he called the police
to have them come arrest the men, telling th em that he was going to kill the men if the
police did not come.
In response to J.C.’s call, police pulled up to the market. As they drove up, J.C. ran
toward them. J.C. pointed out D.R. standi ng outside the market saying he was the man
who robbed him. Police arrested D.R.
Next, J.C. said that Nowels went inside the market, so police entered and arrested
him. J.C. told police that Nowels was th e man who held the gun to his head so they
searched him for weapons. Finding nothing but suspecting Nowels had abandoned the gun
when he saw them arrive, police searched the market. After a quick, unsuccessful search,
police reviewed the store’s surveillance video.

4
In the video, Nowels appeared to watch police pull up and arrest D.R. outside. And
police noticed that Nowels spent most of his time in the store in one of the middle aisles.
Police searched the aisle and found a loaded gun hidden behind some cans of soup. When
police asked J.C. if it was the gun that Nowels used to rob him, he said it was the same one.
The state charged Nowels with three criminal offenses: (1) first-degree aggravated
robbery, (2) possession of a firearm by an ineligible person, and (3) possession of
ammunition by an ineligible person.
The case was tried to a jury over three days. At the outse t, Nowels stipulated that
he was ineligible to possess a firearm or ammunition at the time of the robbery. J.C. gave
his account of the robbery and the events that followed. Police officers involved in the
case also testified. And a fore nsic investigator with the po lice department testified that,
when he compared the latent fingerprints on the gun magazine to Nowels’s and D.R.’s
fingerprints, the results were inco nclusive—which is “quite common.” 1 In addition, the
state presented to the jury J.C.’s first 911 call and several surveillance videos, including
videos from the gas station, the parking lot where the robbery happened, and the inside and
outside of the market.

1 Another forensic scientist with the Minnes ota Bureau of Criminal Apprehension who
analyzed DNA swabs from the gun and magazine also determined that the results were
inconclusive.

5
Before the end of the trial, the state prop osed a modified jury instruction defining
proof beyond a reasonable doubt. Specifically, the state requested the district court read
the following statement:
Proof beyond a reasonable doubt is simply that amount
of proof that ordinary men a nd women rely upon in making
their own most important decisi ons. You have a reasonable
doubt if your doubts are based upon reason and common sense.
You do not have a reasonable d oubt if your doubts are based
upon speculation or irrelevant details.

Nowels requested that the court rely on the pattern jury instruction, which reads:
Proof beyond a reasonable doubt is such proof as
ordinarily prudent men and women would act upon in their
most important affairs. A reas onable doubt is a doubt based
upon reason and common sense. It does not mean a fanciful or
capricious doubt, nor does it me an beyond all possibility of
doubt.

After arguments, the district court decided to give the pattern jury instruction.
During its rebuttal argument, the state referenced the standard of proof, drawing on
some of the language in its proposed jury in struction, using the words “speculation” and
“irrelevant details.” The defense did not object to any portion of this statement. And the
state addressed Nowels’s theory that J.C. made up the robbery and stated, “ [J.C.] didn’t
lie. He told the police what happ ened as best he could back on October 2 of 2017 and he
then came here and told you what happened in the best way that he could.” Nowels did
not object to this statement either.
After deliberation, the jury found Nowels guilty of all three counts. The district
court sentenced Nowels to 60 months in pr ison on count two (possession of a firearm),

6
111 months on count one (aggravated robbery), and 60 months on count three (possession
of ammunition), all to be served concurrently. Nowels appeals.
ISSUES
I. Did the prosecutor’s statements in her rebuttal closing argument constitute
misconduct that requires a new trial?

II. Did the district court err by convic ting and sentencing Nowels for unlawful
possession of both a firearm and ammunition for possessing one loaded gun?

III. Do Nowels’s arguments in his supplemental brief warrant relief?

ANALYSIS
Under two theories of prosecutorial misconduct, Nowels requests that we vacate his
convictions and remand his case to the district court for a new trial. He also asserts that he
was improperly convicted and sentenced twic e for the same possession crime. Finally,
Nowels makes a number of arguments in his pr o se supplemental brief. We address each
issue in turn.
I. The prosecutor’s statements in her re buttal closing argument do not constitute
misconduct requiring a new trial.

Nowels first contends that the prosecutor made improper statements in her rebuttal
closing argument that require a new trial. No wels did not object at trial to any of the
statements he now challenges. Accordingl y, we review unobjected-to claims of
prosecutorial misconduct under a m odified plain-error standard. State v. Ramey ,
721 N.W.2d 294, 302 (Minn. 2006). Nowels bears the burden of establishing plain error.
Id. “An error is plain if it is clea r or obvious; usually this mean s an error that violates or

7
contradicts case law, a rule, or an applicable standard of conduct.” State v. Bustos ,
861 N.W.2d 655, 660-61 (Minn. 2015) (quotation omitted).
If Nowels establishes error that is plain, th e burden shifts to the state to prove that
there is no reasonable likelihood that the absence of the miscond uct would have had a
significant effect on the jury’s verdict. Ramey, 721 N.W.2d at 302. Said another way, the
error must affect Nowels’s substan tial rights to justify a new trial. See State v. Griller ,
583 N.W.2d 736, 740 (Minn. 1998); see also Ramey, 721 N.W.2d at 299. And even if it
does, “plain error affecting subs tantial rights warrants reversal only if the error must be
addressed to ensure the fairness, integrity, or public reputation of the judicial proceedings.”
Bustos, 861 N.W.2d at 663 (emphasis added).
In addition, because the e rrors Nowels alleges are in the prosecutor’s closing
argument, this court considers the argument as a whole to ensure that no single word or
phrase is “taken out of context and used as a basis for reversal.” State v. Schwartz ,
122 N.W.2d 769, 774 (Minn. 1963). With this framework in mind, we review each alleged
instance of prosecutorial misconduct.
Prosecutor’s Description of the Burden of Proof

Nowels first challenges the prosecutor’s de scription of the burde n of proof in her
rebuttal summation, advancing two reasons why the statements constituted misconduct. 2
We address each theory in turn.

2 Nowels also argued that the prosecutor’s de scription of the burden of proof improperly
instructed the jury, but we are unpersuaded. “[I]t is solely the responsibility of the court to
instruct juries on the law nece ssary to render a verdict.” State v. Cao, 788 N.W.2d 710,
716 (Minn. 2010). And the district court remi nded the jurors of the roles of the parties

8
First, according to Nowels, the prosecutor “circumvented the district court’s ruling”
when she explained “beyond a reasonable doubt” in her preferred way, despite the district
court denying her motion for a modified instruc tion. It is misconduct for a prosecutor to
violate an order from the district court. State v. Smith , 876 N.W.2d 310, 334-35
(Minn. 2016). Nowels contends that the prosecutor’s closing argument violated the district
court’s order denying the state’s proposed jury instruction.
While the district court adopted the pattern jury instruction, it did not order the
parties to refrain from any furt her discussion or explanation of the standard. Nor did it
prohibit the parties from using any language outside of that instruction. And explaining or
referencing the jury instructions in different ways in closing arguments is permissible. See
Minn. R. Crim. P. 26.03, subd. 19(3) (“Any party may refer to the instructions during final
argument.”). Given the district court’s lack of an order prohibiting the phrases the state
used, the prosecutor did not violate a court ruling. This was not plain error.
Second, Nowels contends that the prosec utor misstated the law, thereby lowering
the state’s burden of proof. Such misstatem ents constitute prosecutorial misconduct.
State v. Fields, 730 N.W.2d 777, 786 (Minn. 2007). And “[a]ny time a prosecutor makes
such a misstatement of law, the defense is free to object and ask for a curative instruction.”
State v. Jolley, 508 N.W.2d 770, 773 (Minn. 1993).
Read in context, the prosecutor’s statements are revealing. In her principal closing
argument, the prosecutor only spoke genera lly about the beyond -a-reasonable-doubt

during its jury instructions, saying: “If an at torney’s argument contains any statement of
the law that differs from the law that I gave you, disregard the statement.”

9
standard. Then, in defense counsel’s closing, counsel de scribed reasonable doubt as a
consideration that is “different for everybody,” “[i]t’s not 51 percent,” and as a “yeah, but”
theory. The defense then app lied the “yeah, but” descriptio n of reasonable doubt to the
state’s evidence. In the state’s rebuttal, the prosecutor assailed this argument, stating: “The
defendant is asking you to speculate on evid ence that you don’t have. You have the
evidence that there is. Don’t speculate on what you don’t have. Don’t engage in the ‘what
if’ thinking . . . .” And later, she added that reasonable doubt is “not based upon speculation
and irrelevant details,” the phrase from the state’s proposed jury instruction.
When we review the closing arguments as a whole, the prosecutor’s statements
characterizing reasonable doubt were a direct response to the defense’s statements on the
same topic. Neither characterization was prec isely included in the ju ry instructions. But
statements from each party abou t the standard, explained in words or phrases other than
those used in the jury instructions, are not per se erroneous.3 Rather, both parties here were
attempting to explain abstract legal phrases in terms that an average juror could understand
and apply. This is not impermissible. See Minn. R. Crim. P. 26.03, subd. 19(3).
Nor were the prosecutor’s references to “speculation” and “irrelevant details”
misstatements of law. Two Minnesota Supreme Court cases compel this conclusion. First,
in State v. Smith, the court ruled on the district court’s use of “speculation” and “irrelevant
details” in its jury instru ction regarding the beyond-a-reasonable-doubt standard.
674 N.W.2d 398, 403 (Minn. 2004). In fact, the jury instruction in Smith and the one the

3 We note that defense counsel’s statements are not at issue in this appeal, and our analysis
is not intended to address the appropriateness of those comments.

10
state proposed here are identical. See id. at 401. The court in Smith held that, when read
in context, this instruction did “not impermissibly narrow the reasonable doubt standard
nor mislead, confuse, or misstate the law.” Id. at 403. And the Minnesota Supreme Court
reiterated this point in State v. Thao , 875 N.W.2d 834, 842 (M inn. 2016). There, the
defense argued that “the words ‘speculation’ and ‘irrelevant details’ . . . impermissibly
narrowed the standard” thereby lowering the state’s burden. Thao, 875 N.W.2d at 842.
But the supreme court stated that it “rejected this precise argument in Smith.” Id.
Nowels acknowledges both of these cases but argues that his case is distinguishable
because it does not have the context and circumstances present in Smith and Thao. Nowels
appears to argue that, because the prosecutor referenced “speculation” without referring to
“irrelevant details,” this makes the stat ements incorrect. Bu t we do not read Smith and
Thao so narrowly. And Nowels provides no legal authority to support his contention that
any rephrasing of “speculation or irrelevant details”—even a minor one—is erroneous.
In sum, when read in c ontext, the prosecutor’s stat ements in her rebuttal are
consistent with the law and are therefore not plainly erroneous.
Vouching for the Victim’s Credibility
Nowels further contends that the pr osecutor improperly vouched for the
victim-witness, J.C., when sh e said that he “didn’t lie .” Generally, there is a
“well-established prohibition against” an attorney “injecting [her] personal opinion
concerning the veracity of a witness during closing argument.” State v. Williams ,
210 N.W.2d 21, 26 (Minn. 1973). “A prosecutor’s statements in closing argument become
improper vouching when the prosecutor implie s a guarantee of a witness’s truthfulness,

11
refers to facts outside the record, or e xpresses a personal opinion as to a witness’s
credibility.” State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012) (quotation omitted),
review denied (Minn. Mar. 19, 2013). Such conduct violates the rules of professional
responsibility. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984 ). It is the jury’s job to
determine witness credibility. Id. “But prosecutors are not prohibited from arguing that
certain witnesses are believable.” State v. Rucker , 752 N.W.2d 538, 552 (Minn.
App. 2008), review denied (Minn. Sept. 23, 2008).
Here, the prosecutor went be yond merely arguing J.C.’s credibility or that he was
believable—she stated that he did not lie . Because she implicitly injected her personal
opinion about the veracity of his testimony, we conclude that this statement constitutes
impermissible vouching. The prosecutor’s misconduct was plainly erroneous.
Having found plain error, we move to the next step in our analysis: determining
whether the error affected Nowels’s substantia l rights such that a new trial is necessary.
Ramey, 721 N.W.2d at 299-300. We find a Minnesota Supreme Court case,
State v. Swanson, to be particularly instructive in this regard. 707 N.W.2d 645
(Minn. 2006). There, the court considered whether two statements were impermissible
vouching under the plain-error standard. Id. at 656. In closing arguments, the prosecutor
made two statements: first, that “[t]he state believes [the witness] is very believable,” and
second, that a witness was “very believable.” Id. While the court determined that the first
statement was impermissible vouching amounting to plain error, the error did not warrant
relief. Id. It reasoned that, “[g]iven the strength of the evidence agains t [the defendant]
and given that the impermissible vouching constituted only a small part of the prosecutor’s

12
closing argument, we hold the statements, while plain error, were not sufficiently
prejudicial to warrant a new trial.” Id.
All of those factors are present in this case. The evidence against Nowels is strong.
J.C. testified about how he was robbed at gunpoint, and he identified Nowels and the gun
found in the market as the one Nowels put to his forehead. Surveillance footage confirmed
J.C.’s recitation of the events and the descriptions of the robbers and cars. And the police
corroborated J.C.’s testimony. Further, the prosecutor’s statement was a small phrase in a
rebuttal closing argument. Relying on the principles from Swanson, we conclude that the
vouching did not affect Nowels’s substantial rights.
The district court’s instructions bolst er our conclusion. When a prosecutor
expresses a personal opinion about the veracity of a witness, but the district court provides
an instruction that counsel’s arguments are not evidence, evidence of guilt is adequate, and
the argument is otherwise proper, the statement about a witness’s veracity is harmless. See
Ture, 353 N.W.2d at 517. Here, the court gave such an instruction, the case was strong,
and the argument was otherwise proper. Nowels is not entitled to a new trial.
In sum, while the statemen t, “[J.C.] didn’t lie” was impermissible vouching and
plainly erroneous, it did not affect Nowels’s s ubstantial rights. As a result, a new trial is
not warranted on this basis. And we do not discern any error in the other alleged
misconduct. Accordingly, we affirm with respect to this issue.

13
II. The district court erred by convicti ng and sentencing Nowels for unlawful
possession of both a firearm and ammuni tion for possessing a single loaded
gun.

Nowels also argues that the district court erroneously convicted and sentenced him
for counts two and three—possession of a fi rearm and possession of ammunition by an
ineligible person—because they are “the same offense.” We agree. Because the gun
Nowels possessed was loaded with amm unition, his possession of a firearm and
ammunition involved a single course of conduct. We reverse and remand.4
We consider de novo whether multiple se ntences are permissible under Minnesota
Statutes section 609.035 (2016). State v. Ferguson, 808 N.W.2d 586, 590 (Minn. 2012).
But whether Nowels’s “offenses occurred as part of a single course of conduct is a mixed
question of law and fact.” State v. Patzold, 917 N.W.2d 798, 809-10 (Minn. App. 2018),
review denied (Minn. Nov. 27, 2018). When cons idering mixed questions, we review
factual findings for clear error and legal conclusions de novo. Id.
We begin our review with th e constitutional backdrop for this statute. Both the
United States and Minnesota Constitutions pr ohibit the government from jeopardizing a
person’s liberty twice for the same offense. See U.S. Const. amend. V, XIV; Minn. Const.
art. I, § 7. This idea—one deeply ingrained in Ameri can jurisprudence—is commonly
referred to as double jeopardy. See Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct.
221, 223 (1957); see also State v. Chavarria-Cruz , 839 N.W.2d 515, 520 (Minn. 2013).

4 At sentencing, Nowels did not object to th e district court entering multiple convictions
and sentences. But “an appellant does not waive claims of multiple convictions or
sentences by failing to raise the i ssue at the time of sentencing.” Spann v. State ,
740 N.W.2d 570, 573 (Minn. 2007).

14
And state statutes expand these protections for criminal defendants facing charges for
multiple offenses. See State v. Hill , 918 N.W.2d 237, 242 (Mi nn. App. 2018). These
broader protections aim to prevent exaggerating the criminality of a person’s behavior and
safeguard the policies rooted in our cons titutional double-jeopardy protections. See
State v. Johnson, 141 N.W.2d 517, 522 (Minn. 1966).
With this context for the applicable laws in mind, we turn to the substantive statutes
at issue here, followed by analysis of the relevant caselaw, before applying both to the facts
in this case. We begin with the provision under which Nowels was charged for counts two
and three: Minnesota Statutes section 624.713, subdivision 1(2). Under this provision, if
a person has been convicted of a crime of violence, that person shall not possess a firearm
or ammunition. Minn. Stat. § 624.713, subd . 1(2). Nowels stipulated that he was
prohibited from possessing these items at the time of the robbery. And the jury found that
Nowels possessed a loaded gun. Therefore, he violated this statute.
However, Nowels contends that his possession of the loaded gun does not warrant
two convictions and two sentences under the same statute. As indicated above, Minnesota
law prohibits a district court from convicting and sentencing a defendant for more than one
crime if his unlawful conduct is part of the same behavioral incident. See Minn.
Stat. §§ 609.035, subd. 1, .04 (2016). “And unless a statutory exception applies, ‘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.’” State v. Mitchell, 881 N.W.2d 558, 563
(Minn. App. 2016) (quoting Mi nn. Stat. § 609.035, subd. 1), review denied (Minn.
Aug. 23, 2016). Here, Nowels’s possession of the loaded gun cons titutes more than one

15
offense—whether the state charged the condu ct as possession of ammunition, possession
of a firearm, or both—but the unlawful conduc t occurred as part of the same behavioral
incident.
Yet, several statutory exceptions to this same-behavioral-incident prohibition exist.
See Patzold, 917 N.W.2d at 810. One of these ex ceptions applies to firearms offenses.
Section 609.035, subdivision 3, provides that , “a prosecution for or conviction of a
violation of section . . . 624.713, subdivision 1, clause (2), is not a ba r to conviction of or
punishment for any other crime committed by the defendant as part of the same conduct.”
(Emphasis added.) The issue before us is whether the “any other crime” language removes
the bar against multiple convictions and sent ences so that Nowels can be punished
separately for aggravated robbery, possession of a firearm, and possession of ammunition.
Precedent informs our review of the phrase “any othe r crime.” We begin with
State v. Mitchell. Based on his nonconsensual entry into his former girlfriend’s residence
in which he assaulted her with a knife, Mitchell was convicted of two counts of first-degree
burglary. Mitchell, 881 N.W.2d at 560. The two convic tions were based on alternative
means of committing a first-degree burglary: one involved an assault and the other involved
a dangerous weapon. 5 Id. The district court imposed concurrent sentences for each

5 In Minnesota, there are three ways to commit a first-degree burglary. Generally, a person
commits first-degree burglary wh en she or he enters a build ing without consent with the
intent to commit a crime and satisfies one of the following altern ative means. Minn.
Stat. § 609.582, subd. 1 (2018 ). The first type of burglary is comm itted when a burglar
enters a dwelling and another person is present. Id., subd. 1(a). The second type is
committed when a burglar en ters the building and posse sses a dangerous weapon. Id.,
subd. 1(b). The third type o ccurs when a burglar assaults someone with in the building.
Id., subd. 1(c). The second and third types are relevant to Mitchell.

16
first-degree-burglary conviction. Id. Similar to section 609.035, subdivision 3, there is a
statutory exception to the bar against multipl e sentences for burglaries. That exception
provides that “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.” Minn. Stat . § 609.585 (2018) (emphasis added). After engaging in
statutory interpretation, we c oncluded that, under the plain la nguage of section 609.585,
“any other crime” means “a crime different from burglary.” Mitchell, 881 N.W.2d at 564.
We remanded for the district court to vacate Mitchell’s conviction and sentence for one of
the first-degree burglary counts. Id.
We reached a result similar to Mitchell two years later in State v. Patzold .
917 N.W.2d at 810-11. Based on his cond uct during a single attack on his girlfriend—
including repeated strikes to her arms and face, and kicks to her pelvic area—the jury found
Patzold guilty of two counts of domestic assault. Id. at 802, 811. The two assault counts
were based on alternative means—intent to caus e fear and intent to inflict bodily harm—
but both assaults arose fro m the exact same conduct. 6 Id. at 811. The jury also found
Patzold guilty of three counts of criminal sexual conduct based on his conduct during the
assault. Id. at 809. We concluded that Patzold was properly sentenced for one count each
of domestic assault and criminal sexual conduct under Minnesota Statutes section 609.035,

6 Similar to burglary, there are two ways to commit a domestic assault in Minnesota. In
either case, the victim must be a family or household member. Mi nn. Stat. § 609.2242,
subd. 1 (2018). The first type of domestic a ssault is committed when a person acts with
intent to cause fear of immediate bodily harm or death in the victim. Id., subd. 1(1). The
second type is committed when a person inten tionally causes or attempts to cause the
victim bodily harm. Id., subd. 1(2). Both types of assault are relevant in Patzold.

17
subdivision 6 (2016), which permits a sentence for criminal sexual conduct and any other
crime committed as part of the same conduct. Id. at 811. But the general prohibition
against multiple sentences did not permit two sentences for domestic assault based on the
same conduct.7 Id. (citing Minn. Stat. § 609.035, subd. 1). We explained that, “[i]f a jury
has convicted a defendant of more than one offense from a single course of conduct, the
court is to adjudicate formally and im pose sentence on one count only.” Id. at 810
(quotation omitted).
Earlier, in State v. Holmes, the supreme court considered a similar question: whether
Holmes could be convicted of and sentenced for both third-degree assault and first-degree
burglary when the assault was committed during the burglary in a single course of conduct.
778 N.W.2d 336, 340 (Minn. 2010). There, the issue again turned on the meaning of “any
other crime” under Minnesota Statutes section 609.585 (2008). Id. at 341-42. To answer
these questions, the court considered what was required to prove each offense—the
elements. Id. at 341. First-degree burglary with an assault—the third type discussed
earlier—requires proof that a person entered a building without consen t with intent to
commit a crime and assaulted a pe rson within the building. Id. (citing Minn.
Stat. § 609.582, subd. 1(c) (2008)). And third-degree assault requires proof of an assault
that inflicts substantial bodily harm. Id. (citing Minn. Stat. § 609.223, subd. 1 (2008)).
The court concluded that, because the crime of first-degree burglary (assault) and the crime

7 Patzold did not challenge whether the dist rict court properly entered judgments of
conviction for both co unts of assault under section 609.04. Patzold, 917 N.W.2d at
809 n.4.

18
of third-degree assault (bodily harm) have di fferent statutory elements, the assault fell
within the meaning of “any other crime.” Id. Accordingly, Holmes’s convictions and
sentences for both crimes were permitted. Id.
With these precedents in mind, we turn to Nowels’s sentences.8 We view this case
to be more like Mitchell and Patzold than Holmes. In Mitchell and Patzold, the defendants
were charged with two counts of the same crime, but each count was a different means of
committing the same crime. Here, Nowels was also charged with two counts of the same
crime—unlawful possession—but each count is a different means to commit the crime—
possessing a firearm and possessing ammunition. And like Patzold, where we permitted
punishment for both the domestic assault and sexual assault, Nowels may be convicted and
punished for one unlawful-possession offense and aggravated robbery because aggravated

8 Nowels also briefly cited—without supporting argument—to Minnesota Statutes section
609.04 in his brief, which prohibits a defend ant from being convicted twice for the same
offense. See Minn. Stat. § 609.04; see also State v. Dudrey , 330 N.W.2d 719, 721
(Minn. 1983) (“We have interpreted section 609.04 as preventing the state from convicting
a defendant twice of the same offense or of a greater and a lesser-included offense on the
basis of the same act or course of conduct.”). Whether multiple convictions are appropriate
is a separate question from whether multiple sentences are appropriate. See State v. Spears,
560 N.W.2d 723, 726-27 (Minn. App. 1997) (conducting a separate analysis of sentences
and convictions), review denied (Minn. May 28, 1997).
To determine whether an offense falls under section 609.04, “a court examines the
elements of the offense instead of th e facts of the particular case.” Mitchell, 881 N.W.2d
at 562. Here, unlawful possession of ammunition or a firearm requires proof of the same
elements. And the same cond uct—Nowels’s possession of a single loaded gun—is the
basis of the two charged offenses. See State v. LaTourelle , 343 N.W.2d 277, 284
(Minn. 1984) (“We hold that the proper proce dure to be followed by the trial court when
the defendant is convicted on more than one ch arge for the same act is for the court to
adjudicate formally and impose sentence on one count only.”). For these reasons, and those
articulated in our analysis, we conclude that section 609.04 prohibits the district court from
convicting Nowels for both unlawful possession offenses.

19
robbery is “any other crime,” unde r the firearms-offense exception. 9 See Minn.
Stat. §§ 609.035, subd. 3, .04. But he cannot be convicted and punished for two possession
offenses under the Mitchell and Patzold analytical frameworks.
This case differs in meaningful ways from Holmes, making our holding consistent
with that precedent as well. In Holmes, it was permissible that the defendant was punished
for the two crimes at issue because they required proof of different elements. But here, the
two possession crimes charged require proof of the same elements: (1) that Nowels was
prohibited from possessing a firearm or ammun ition based on a conviction for a crime of
violence and (2) that he possessed a firearm or ammunition. See Minn. Stat. § 624.713,
subd. 1(2).
In sum, we conclude that the district court erred in entering convictions and
sentences for both counts two and three because the possession of a single firearm loaded
with ammunition constituted one course of unlawful conduct and is not subject to multiple
convictions and sentences.10 This conclusion is consistent with our published caselaw and
acknowledges Minnesota’s broad protections against double jeopardy, while respecting the
jury’s determination about No wels’s criminal conduct. Ac cordingly, we reverse and

9 We also observe that this is consistent with the Minnesota Supreme Court’s recent
decision in State v. Smith, ___ N.W.2d ___, ___, No. A19-0695, slip op. at 14-15 (Minn.
Mar. 18, 2020). There, the court concluded that the district court erred by sentencing the
defendant for more than one a dditional crime as permitted unde r the burglary exception.
Smith, slip op. at 14-15 (citing Minn. Stat. § 609.585 (2018)).
10 For its argument on this issue, the state relied on two unpublished cases from this court.
But unpublished cases are not binding precedent. See Minn. Stat. § 480A.08,
subd. 3(c) (2018).

20
remand for the district court to vacate the conviction and sentence for one of the counts of
unlawful possession.
III. The arguments advanced in Nowels’s supplemental brief do not warrant
reversal.

In a supplemental brief filed on his own behalf, Nowels advanced several additional
claims.11 We address his claims below.
Ineffective Assistance of Counsel
According to Nowels, his trial counsel was in effective. In order to prevail on an
ineffective-assistance-of-counsel claim, Nowels has the affirmative burden to show (1) that
his attorney’s representation “fell below an objective standard of reasonableness” and
(2) that, but for his attorney’s failings, the outcome would have been different.
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington ,
466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Nowels points to a number
of strategic and evidentiary decisions that his counsel made with which he disagreed. But
deciding which “evidence to pr esent and which witnesses to call at trial are tactical
decisions properly left to the discretion of trial counsel.” State v. Outlaw, 748 N.W.2d 349,
359 (Minn. App. 2008) (quotation omitted), review denied (Minn. July 15, 2008). And
Nowels failed to describe how his attorney’s evidentiary and strategic choices would have

11 We note that Nowels failed to support any of these arguments with specific legal
authority. Instead, at the end of his brief, he listed more than 50 Minnesota cases, many of
which are unpublished and therefore not precedential. See Minn. Stat. § 480A.08,
subd. 3(c). While failing to cite to app licable law generally results in forfeiture, see
State v. Bursch, 905 N.W.2d 884, 889 (Minn. App. 2017), we choose to address his
arguments substantively in this opinion.

21
changed the outcome of his trial. For these reasons, his ineffective-assistance-of-counsel
claim fails.
Misuse of Evidence
Nowels also contends that the prosecutor improperly used surveillance video of him
in the market to support the state’s theory that he hid the gun there. Specifically, he asserts
that the state “chopped up misleading shots” to misrepresent his conduct to the jury. But
there is no evidence that the video was distor ted or altered, and prosecutors are permitted
to argue all reasonable inferences from the evidence th ey present. See State v. Mems ,
708 N.W.2d 526, 532 (Minn. 2006) (“Counsel has the right to an alyze and explain the
evidence, and to argue all proper inferences to be drawn from the evidence.”). This claim
does not merit reversal.
Order of Sentencing
Finally, Nowels takes issue with the order in which the district court sentenced him
because sentencing count two (possession of a firearm) first resulted in a longer sentencing
recommendation for count one (aggravated robbery). But under the sentencing guidelines,
“[m]ultiple offenses sentenced at th e same time before the same court must be sentenced
in the order in which they occurred.” Minn. Sent. Guidelines 2.B.1.e (Supp. 2017). And
the district court found that Nowels would have to possess the gun first before he could use
it to commit the aggravated robbery. Therefore, the district court did not err by sentencing
Nowels on the possession-of-a-firearm conviction first, because it occurred first.

22
D E C I S I O N
Alleging prosecutorial misconduct, erroneous conviction and sentencing, and other
issues in his supplemental brief, Nowels requests that we grant him a new trial. But none
of the alleged instances of prosecutorial misconduct require reve rsal and none of his
supplemental issues merit relief. For these reasons, we affirm in part. However, we agree
with Nowels that the district court err oneously convicted and sentenced him for both
unlawful possession counts. Accordingly, we hold that under Minnesota Statutes sections
609.035, subdivisions 1, 3, and .04, a district court cannot convict and sentence a defendant
for being an ineligible pers on in possession of both a fi rearm and ammunition when the
defendant possesses a single loaded firearm. Because Nowels was erroneously convicted
and sentenced, we reverse and remand with respect to the possession offenses for the
district court to vacate one of his convictions and sentences.
Affirmed in part, reversed in part, and remanded.