State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0818

State of Minnesota,
Respondent,

vs.

DaJuan Wendell Webster Rayford,
Appellant.

Filed April 27, 2020
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-18-16931

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

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Florey,
Judge.

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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 his convictions for two driving-while-impaired (DWI)
offenses, arguing that the district court erred by rejecting his challenge to the state’s
exercise of a peremptory strike during voir dire and by entering a judgment of convictio n
for each offense. Because the district court did not err in ruling on the state’s exercise of
the peremptory challenge, we affirm in part. But becaus e caselaw permits only one
conviction for the two DWI offenses in this case, we reverse one of the convictions and
remand for the district court to vacate that conviction.
FACTS
In July 2018, respondent State of Minnesota charged appellant DaJuan Wendel l
Webster Rayford with felony first -degree DWI —alcohol concentration of 0.08 or more ,
felony first-degree DWI —driving under the influence of alcohol , and gross misdemeanor
driving after cancellation. An October 2018 jury trial on the charges resulted in a mistrial.
The case was retried in January 2019. The jury venire consisted of 24 prospective
jurors. On the juror -profile list, 20 venire members self-identified as white, three self -
identified as black or African American, and one self-identified as two or more races. The
state exercised a peremptory strike against venire m ember L , who had self-identified as
two or more races. Rayford challenged the state’s peremptory strike, and the district court
rejected his challenge.
The jury found Rayford guilty as charged, and the district court entered a judgment
of conviction for each offense. The district court sentenced Rayford to serve 51 months in

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prison for DWI—alcohol concentration of 0.08 or more and a concurrent term of 365 days
for driving after cancellation. The district court did not sentence the offense of DWI—
driving under the influence of alcohol.
Rayford appeals.
D E C I S I O N
I.
Rayford contends that the district court erred by denying his challenge to the state’s
peremptory strike of venire member L , which was based on Batson v. Kentucky , 476 U.S.
79, 106 S. Ct. 1712 (1986). “In Batson v. Kentucky, the United States Supreme Court held
that the exclusion of prospective jurors through peremptory challenges is subject to the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitutio n. ”
State v. Harvey, 932 N.W.2d 792, 810 (Minn. 2019) (citing Batson, 476 U.S. at 89, 106 S.
Ct. at 1719). A peremptory challenge that is used against a prospective juror b ased on the
juror’s race “denies equal protection both to the prospective juror, because it denies [him]
the right to participate in jury service, and to the defendant, because it violates his right to
be tried by a jury made up of members selected by nondiscriminatory criteria.” Id. at 810-
11 (quotation omitted).
The Batson Court articulated a three -step process for determining whether a
peremptory challenge was motivated by racial discrimination. Id. at 811; see also State v.
Carridine, 812 N.W.2d 130, 136 (Minn. 2012) (“To determine whether a peremptory strike
was discriminatory, we apply the three -step test articulated by the United States Supreme
Court in Batson v. Kentucky .”); Minn. R. Crim. P. 26.02, subd. 7(3) (adopting the Batson

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three-step process). First, a defendant must establish a prima facie case of purpo seful
discrimination by showing “(1) that a member of a protected racial group has been
peremptorily e xcluded from the jury and (2) that circumstances of the case rai se an
inference that the exclusion was based on race.” State v. Blanche, 696 N.W.2d 351, 364 -
65 (Minn. 2005). A district court “should consider all relevant circumstances in deciding
whether an inference of discrimination might exist.” Id. at 365. Second, if the objecting
party establishes a prima facie case of racial discrimination, “the burden of production
shifts to the proponent of the strike to come forward with a race -neutral explanation.” Id.
at 364 (quotation omitted). Third, “[i]f a race -neutral explanation is tendered, the [district]
court must then decide . . . whether the opponent of the strike has proved purposeful
discrimination.” Id. at 364-65 (quotation omitted).
The existence of racial discrimination in the use of a peremptory chal lenge is a
factual determination. State v. Diggins, 836 N.W.2d 349, 355 ( Minn. 2013). This court
gives “great deference to the district court’s [ Batson] ruling and will uphold the ruling
unless it is clearly erroneous.” Id. (quotation omitted). This deference recognizes “that the
record may not reflect all of the relevant circumstances that the court may consider.” State
v. Pendleton, 725 N.W.2d 717, 724 (Minn. 2007).
In district court, Rayford argued that he had made a prima facie showing of
purposeful discrimination because although “ [t]here [were] other people of color on the
[jury] panel . . . they [were] all female” and the state had stricken venire member L, “the
single black man on [the] jury panel.” Rayford also argued that the state had not stricken
a white juror who, like L, had expressed concern about the believability of a witness in a

5
case with only one witness. The state countered that three black jurors had been seated on
the jury and that, therefore, Rayford had not met his burden of proving a prima facie case.
The Minnesota Supreme Court has “consistently held [that] the mere removal of a
member of a racial group does not necessarily establish a prima facie case [of
discrimination]—an inference of racial discrimination based on the surround ing
circumstances is also required. ” State v. Onyelobi, 87 9 N.W.2d 334, 348 (Minn. 2016).
For example, an inference of racial discriminat ion can be drawn upon “proof of
disproportionate impact upon the racial group, [such as when] t he prosecutor totally
excluded all blacks from the venire.” State v. Moore, 438 N.W.2d 101, 107 (Minn. 1989).
Conversely, the Minnesota Supreme Court has relied on the inclusion of other jurors
of color on the jury to conclude that there was no inferenc e of discrimination. See, e.g.,
Harvey, 932 N.W.2d at 815 (concluding that the district court properly considered “that
one African-American venire member had already been seated” on the jury) ; State v.
Wilson, 900 N.W.2d 373, 382 (Minn. 2017) (determining that there was no inference of
discrimination in part because “the State accepted one black juror”); Onyelobi, 879 N.W.2d
at 348 (noting that because the defendant did not identify any other circumstance raising
an inference of discrimination, it was significant that a minority venire member was
selected before the state struck a person of color) ; State v. White , 684 N.W.2d 500, 507
(Minn. 2004) (concluding that defendant had not established a prima facie case in part
because a minority member “ had already been accepted as a juror and eventually, she
would serve as the foreperson of the jury”).

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In ruling that Rayford failed to make a prima facie case , the district court reasoned
that two other jurors “who identified as African American” had been selected for the jury,
that “neither of them were struck,” and that the exclusion was therefore not based on race.
The district court’s reasoning was consistent with caselaw. See Harvey, 932 N.W.2d at
815 (“The fact that an African-American was seat ed on the jury was a proper consideratio n
at step one of the Batson analysis.”).
But a n inference of discrimination can be drawn from “other surround ing
circumstances, such as the prosecutor’s questions in voir dire, the stated reasons for
exercising the peremptory challenge, or established past patterns of racial discriminatio n
in the current jury’s selection.” Onyelobi, 879 N.W.2d at 345 (quotation omitted) .
Rayford argues that the state’s peremptory strike of venire m ember L raised an inference
of discrimination because the state did not strike two other jurors who expressed similar
concerns about the believability of a witness in a case with only one witness . The district
court rejected that argument, reasoning that venire member L was the “only person who
really fully developed that line of ques tioning from the State” because Rayford objected
and “cut off” the state’s line of questioning on that topic . Because the views of the other
two prospective jurors were not fully explored as a result of Rayford’s objection, we cannot
say that the district court erred by concluding that the circumstances did not raise a n
inference of discrimination.
Again, the district court’s ruling on a Batson challenge is entitled to “great
deference” and will not be reversed unless it was clearly erroneous. Diggins, 836 N.W.2d
at 355. T he district court rejected Rayford’s Batson challenge at the first step of the

7
analysis, relying on a consideration that the supreme court has consistently recognized as
proper. The district court did not err in concluding that Rayford failed to make a prima
facie showing of racial discrimination and that his Batson challenge therefore failed.1
II.
Rayford contends that the district court erred by entering a judgment of convictio n
for each DWI offense because they “arose from a single act and are criminalized under
different subdivisions of the same statute.” The state agrees.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). An
“included offense” includes “ [a] lesser degree of the same crime” and “ [a] crime
necessarily proved if the crime charged were proved.” Id., subd. 1(1), (4). The Minneso ta
Supreme Court has “consistently held that section 609.04 bars 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. 1985).
“[W]hen [a] defendant is convicted on more than one charge for the same act . . .
the [district] court [is] to adjudicate formally and impose sentence on one count only.”
State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1 984). If a defendant’s adjudicated
conviction is vacated, the finding of guilt with resp ect to that offense remains intact. State
v. Pflepsen, 590 N.W.2d 759, 766 (Minn. 1999). Whether a conviction violates Minn. Stat.

1 The district court allowed the state to make a record regarding the second and third steps
of the Batson analysis for purposes of appeal. Because the district court pro perly rejected
Rayford’s challenge at step one, we do not review the remainder of its analysis.

8
§ 609.04, subd. 1, is a legal question, which is reviewed de novo. State v. Cox, 820 N.W.2d
540, 552 (Minn. 2012).
In State v. Clark , a jury found the defendant guilty of driving while under the
influence of alcohol and driving with an alcohol concentration of 0.10 or more. 486
N.W.2d 166, 169 (Minn. App. 1992). The district court entered a judgment of convictio n
for each offense and sentenced the defendant for the offense of driving under the influence
of alcohol. Id. at 170-71. This court held that because “section 609.04 forbids multip le
convictions under different sections of a criminal statute for acts committed during a single
behavioral incident,” one of the convictions must be vacated. Id. (quotation omitted).
Similar to Clark, Rayford’s DWI convictions were based on different subsectio ns
of Minn. Stat. § 169A.20 (2016 & Supp. 2017), and there is no dispute that they stemmed
from acts committed during a single behavioral incident. See Minn. Stat. § 169A.20, subd.
1(1) (driving under the influence of alcohol) , (5) (driving with an alcohol concentratio n
over 0.08) (2016). Under Clark, one of the convictions must be vacated. We therefore
reverse Rayford’s conviction for DWI —driving under the influence of alcohol, for which
sentence was not imposed, and remand for the district court to vacate that conviction .
III.
In a pro se supplemental brief, Rayford contends that he received ineffective
assistance of counsel in district court. This court examines an ineffective -assistance-of-
counsel claim under the two -part test set forth in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984) . State v. Ellis -Strong, 899 N.W.2d 531, 535 (Minn.
App. 2017) . To prevail under Strickland, a “defendant must show that counsel’s

9
representation fell below an objective standard of reasonableness” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 688 , 694, 104 S. Ct. at 2064, 2068;
see State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (applying Strickland).
An objective standard of reasonableness is defined as the level of customary skill
and diligence that a reasonably competent attorney would employ in representation under
similar circumstances. Leake v. State , 767 N.W.2d 5, 10 (Minn. 2009) . Appellate courts
apply a strong presumption that an attorney’s performance falls within the wide range of
reasonable professional assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). An
ineffective-assistance-of-counsel claim involves mixed quest ions of law and fact that this
court reviews de novo. Rhodes, 657 N.W.2d at 842.
Attorneys have discretio n in representing their clients and regarding trial tactics
such as “[w]hat evidence to present to the jury” and “which witnesses to call .” State v.
Doppler, 590 N.W.2d 627, 633 ( Minn. 1999). “Such trial tactics should not be reviewed
by an appellate court, which, unlike the counsel, has the benefit of hindsight.” Jones, 392
N.W.2d at 236. Appellate courts “give trial counsel wide latitude to determine the best
strategy for the client,” and “the extent of any investigation is a part of trial strategy and,
thus, should not be readily second -guessed.” State v. Nicks , 831 N.W.2d 493, 506 (Minn.
2013). Appellate courts generally “will not review an ineffective-assistance-of-counsel
claim that is based on trial strategy.” State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014).
Rayford argues that his attorney “failed to make a reasonable diligent effort to apply
a discovery plan in favor of [his] defense” and should have done the following :

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(1) researched statutes, policies, licensing , certification, and laws on automated-license -
plate-reader technology; (2) called expert witnesses; (3) cross -examined Minneto nka
Police Department Officer Heather Olson about her licensing and authority to operate an
automated plate reader; (4) investigated the Minnetonka Police Department for not
reporting its plate-reader technology use; (5) showed that the police department’s loss of
data resulted from a lack of compli ance with Minnesota statutes; and (6) requested a
hearing on the admissibility of plate -reader technology. Rayford also argues that his
attorney should have moved to suppress the “illegal Terry stop and its fruit, which was
obtained after seizing [his] pe rson,” because “an unconfirmed hit on the [automated plate
reader] does not, alone, form the reasonable suspicion necessary to support an investigato ry
detention.”2
Rayford fails to establish that the complained -of conduct is anything other than
unreviewable trial strategy. Moreover, Rayford does not explain how more informatio n
regarding plate-reader technology would have helped his defense. Indeed, the record
shows that such information would have been irrelevant. At trial, Officer Olson testified
that although she uses the automated plate reader because “it’s easier and faster than [her]
typing [license plates] in the computer,” on the day she stopped Rayford’s v ehicle, the
reader “had technical difficulties” and she manually entered the plate number of the car
Rayford was driving. In sum, Rayford has failed to meet his burden under Strickland.

2 We note that the district court held an evidentiary hearing on constitutional search and
seizure issues before trial.

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Rayford also appears to challenge the jury’s credibility determinations. The jury is
in the best position to weigh witness credibility and thus determine which witnesses to
believe and how much weight to give their testimony. State v. Hurd, 819 N.W.2d 591, 598
(Minn. 2012). We defer to the fact -finder’s assessment of witness credibility. Id.
Rayford’s credibility challenges are therefore unavailing.
We have reviewed Rayford’s remaining pro se arguments and conclude that none
provides a basis for relief. See Ture v. State, 681 N.W.2d 9, 20 (Minn. 2004) (conclud ing
that appellant’s pro se arguments were without merit after “a thorough review of the record
and case law relevant to [appellant’s] arguments”).
Affirmed in part, reversed in part, and remanded.