State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1652

State of Minnesota,
Respondent,

vs.

Jordan Antonio Urena-Muro,
Appellant.

Filed March 8, 2021
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Washington County District Court
File No. 82-CR-18-5389

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and Gaïtas,
Judge.

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NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his convictions of first-degree aggravated robbery and second-
degree assault, as well as his sentence for the robbery offense, arguing that the district court
erred in ruling that the state could impeach him with prior convictions if he were to testify
at trial, by failing to instruct the jury on lesser-included offenses, and in calculating his
criminal-history score. We affirm the convictions, reverse the sentence, and remand fo r
recalculation of appellant’s criminal-history score and resentencing.
FACTS
Respondent State of Minnesota charged appellant Jordan Antonio Urena-Muro with
several offenses stemming from a late night theft at a Walmart store, and ultimately tried
two of the offenses to a jury: first -degree aggravated robbery and second -degree assault.
Before trial, the state gave notice of its intent to impeach Urena -Muro with the following
convictions if he were to testify at trial: fleeing police, terroristic threats, domestic assault,
first-degree burglary, and fifth -degree controlled-substance crime. Urena -Muro objected
to the impeachment evidence. The district court heard arguments from both parties,
analyzed the issue on the record, and concluded that the convictions could be used for
impeachment purposes. However, the district court ruled that the terroristic -threats and
burglary convictions would be referred to as unspecified felonies to reduce the possibility
of prejudice.
The state presented evidence that in December 2018, Urena -Muro stole items,
including a suitcase, from a Walmart store. As he was exiting the store, an employee

3
confronted him and asked him for a receipt. When Urena-Muro refused to pro vide one,
the employee grabbed hold of the suitcase. Urena -Muro punched the employ ee’s arm,
chest, and shoulder. When the employee refused to let go of the suitcase, Urena-Muro
slashed at the employee with a box cutter, cutting the cuff of her sweatshirt . Urena-Muro
fled the scene in a vehicle, but the police stopped the vehicle and arrested him. The police
found stolen items from Walmart in the vehicle, as well as a box cutter. The Walmart theft
was recorded on a surveillance video, which was admitted into evidence.
Urena-Muro elected not to testify at trial because he feared the prejudicial effect of
his prior criminal record. Urena-Muro did not ask the court to provide a jury instruction
regarding lesser-included offenses, and the district court did not provide one.
The jury found Urena -Muro guilty of both offenses. The district court entered
judgments of conviction for both offenses, but imposed a sentence only for the robbery
offense. This appeal followed.
DECISION
I.
Urena-Muro contends that the district court erred in ruling that the state could
impeach him with five felony convictions if he were to testify at trial. A district court’s
ruling on a request to impeach with evidence of a prior conviction “will not be reversed
absent a clear abuse of discretion.” State v. Ihnot , 575 N.W.2d 581, 584 (Minn. 19 98)
(quotation omitted).
Under Minn. R. Evid. 609, the credibility of a witness may be impeached with prior
convictions. There are two types of convictions that may be admissible for impeachment

4
under rule 609. Minn. R. Evid. 609(a); State v. Flemino , 721 N.W.2d 326, 328 (Minn.
App. 2006). One type of conviction th at may be used for impeachment is a crime of
dishonesty. Minn. R. Evid. 609(a)(2); Flemino, 721 N.W.2d at 328. As the state concedes,
none of the convictions at issue here is a recognized crime of dishonesty for impeachment
purposes.
The other type of conviction that may be used for impeachment is any felony-level
offense, so long as “the probative value of admitting this evidence outweighs its prejudicial
effect.” Minn. R. Evid. 609(a)(1); Flemino, 721 N.W.2d at 328. In making that
determination, the court must consider the impeachment value of the prior crime , the
conviction date and the accused’ s subsequent history, the similarity of the past crime and
the charged crime , the importance of the accused’ s testimony, and the centr ality of the
credibility issue. State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).
The supreme court has explained the rationale for permitting impeachment with
felony convictions not involving dishonesty as follows:
Impeachment through prior convictions allows the fact -finder
to make credibility determinations by seeing the whole person
to judge better the truth of his testimony. We have noted that
lack of tru stworthiness may be evinced by the defendant’ s
abiding and repeated contempt for laws which he is legally and
morally bound to obey. Under both our approach to Rule
609(a) and the common law tradition, 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, at least with respect to convictions other than those
involving dishonesty or false statements. In other words, any
felony conviction is probative of a witness’ s credibility, and
the mere fact that a witness is a convicted felon holds
impeachment value.

5
State v. Hill, 801 N.W.2d 646, 651-52 (Minn. 2011) (quotations and citations omitted).
In ruling on the impeachment issue, the district court considered each of the relevant
factors. The court determined that each prior conviction had impeachment value because,
had Urena -Muro testified, the central issue would have been his credibility versus the
credibility of the Walmart employee. The court noted that all of the convictions were
“within the last six ye ars” and occurred “almost annually.” The court concluded that the
burglary and terroristic-threats crimes were similar to the crimes being tried and therefore
would be referred to as unspecified felonies, in an effort to reduce potential prejudice. The
court recognized that admission of the convictions could dissuade Urena -Muro from
testifying and that the fourth factor therefore weighed against admission. Lastly, the court
determined that credibility was a central issue as “there were only two people present.”
Urena-Muro argues that the district court did not “meaningfully” consider the
convictions and failed to consider them independently. The record belies that argument.
The district court heard arguments from both parties and explained its a nalysis of the
relevant factors on the record. The district court discussed the prior convictions
individually and as a whole. As a result of its consideration of the convictions individually,
the district court ruled that although the state could impeach Urena -Muro with all of the
convictions, the state could not refer to the offense type for two of the convictions.
Urena-Muro also points to the aggregate prejudicial effect of the convictions, but
caselaw indicates that ongoing criminal activity has probative impeachment value. See
State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (indicating that repeated crimes
may show a lack of trustworthiness).

6
In summary, “[a] district court abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” Eason v. State,
950 N.W.2d 258, 263 (Minn. 2020) (quotation omitted). We cannot say that either of those
circumstances is present here. We therefor e hold that the district court did not abuse its
discretion in ruling on the state’s motion for impeachment under Minn. R. Evid. 609.
II.
Urena-Muro contends that the district court erred by failing to instruct the jury on
the lesser-included offenses of simple robbery and fifth-degree assault. Urena -Muro did
not request such an instruction. “[W]hen a defendant fails to request a lesser -included
offense instruction warranted by the evidence, the defendant impliedly waives his or her
right to receive the instruction.” State v. Dahlin, 695 N.W.2d 588, 597-98 (Minn. 2005).
“Thus, absent pl ain error affecting a defendant’ s substantial rights, a trial court does not
err when it does not give a warranted lesser -included offense instruction if the defendant
has impliedly . . . waived that instruction.” Id. at 598.
To obtain relief under the plain-error standard of review, a defendant must show
that there was error, that the error was plain, and that the error affected h is substantial
rights. State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). Error is plain if it is clear or
obvious and not hypothetical or debatable. State v. Leutschaft , 759 N.W.2d 414, 420
(Minn. App. 2009), review denied (Minn. Mar. 17, 2009). Generally, plain error is shown
if it “contravenes case law, a rule, or a standard of conduct.” State v. Hersi, 763 N.W.2d
339, 344 (Minn. App. 2009) (quotation omitted). Error affects a defendant’ s substantial
rights when it deprives him of a fair trial. State v. Tscheu, 758 N.W.2d 849, 863 (Minn.

7
2008). If the three prongs of the plain-error test are met, this court then decides whether it
should address the error to ensure fairness and the integrity of the judicial proceedings. Id.
Courts must give a lesser -included offense instruction when “1) the lesser offense
is included in the charged offense; 2) the evidence provides a rational basis for acquitting
the defendant of the offense charged; and 3) the evidence provides a rational basis for
convicting the defendant of the lesser-included offense.” Dahlin, 695 N.W.2d at 598.
The state concedes that “simple robbery and fifth-degree assault are lesser included
offenses of the charged crimes .” As to the state’s concession , first -degree aggravated
robbery occurs when a person, “while committing a robbery,” is armed with a dangerous
weapon or inflicts bodily harm. Minn. Stat. § 609.245, subd. 1 (2018). S imple robbery
occurs when a person knowingly takes personal property from another and uses or
threatens “force” to take the property. Minn. Stat. § 609.24 (2018). “[S]imple robbery is
a lesser and included offense within the crime of aggravated robbery.” State v. Oksanen,
149 N.W.2d 27, 29 (Minn. 1967). Likewise, fifth -degree assault is a lesser -included
offense of second -degree assault, which occurs when a person assaults another with a
dangerous weapon. Minn. Stat. § 609.222, subd. 1 (2018); see Minn. Stat. § 609.04, subd.
1(1) (2018) (stating that lesser-included offenses include lesser degrees of the same crime).
It is not clear that the trial evidence provided a rational basis for acquitting Urena-
Muro of the charged offenses and convicting him of the lesser -included offenses. See
Dahlin, 695 N.W.2d at 598. The Walmart employee consistently testified that Urena-Muro
slashed at her with a box cutter, cutting the cuff of her s weatshirt. She testified that she
was “[o]ne hundred percent” certain that Urena -Muro used a silver box cutter during the

8
assault. Although the defense argued during closing argument that Urena -Muro did not
possess a box cutter, no evidence supported that argument.
Moreover, a conviction for first -degree aggravated robbery may be obtained if the
person committing the robbery has a dangerous weapon or “inflicts bodily harm.” Minn.
Stat. § 609.245, subd. 1. The term “bodily harm” is defined as “physical pain or injury,
illness, or any impairment of physical condition. ” Minn. Stat. § 609.02, subd. 7 (2018).
Evidence—including the victim’s testimony—showed that the Walmart employee suffered
pain or injury as a result of Urena -Muro’s punches. Thus, the evidence did not provide a
rational basis for acquitting Urena-Muro of first-degree aggravated robbery and convicting
him of simple robbery.
Lastly, Urena -Muro has not cited any authority that requires a district court to
submit lesser-included instructions to a jury if the defendant does not request them . In
State v. Montermini, this court rejected a claim of plain error because the appellant failed
to cite authority “holding that the district court’s failure to sua sponte give an unrequested
lesser-included-offense instruction is plain error. ” 819 N.W.2d 447, 460 (Minn. App.
2012), review denied (Minn. Nov. 20, 2012).
In summary, it is not clear or obvious that the district court erred by failing to sua
sponte instruct the jury regarding lesser -included offenses. Urena -Muro is therefore not
entitled to relief under the plain-error standard.
III.
Urena-Muro challenges his sentence, arguing that the district court miscalculated
his criminal-history score. “We review determinations of a defenda nt’s criminal history

9
score for abuse of discretion.” State v. Strobel, 921 N.W.2d 563, 573 (Minn. App. 2018)
(quotation omitted), aff’d, 932 N.W.2d 303 (Minn. 2019).
“A defendant’s criminal-history score is cal culated, in part, by allotting points for
each of a defendant’s prior convictions for which a felony sentence was imposed.” State
v. Williams, 771 N.W.2d 514, 521 (Minn. 2009) (quotation omitted). The state has the
burden to establish a defenda nt’s criminal history. State v. Edmison, 379 N.W.2d 85, 87
& n.1 (Minn. 1985). The state also has the burden to establish the proper classification of
a prior offense for inclusion in a criminal-history score. See Williams v. State, 910 N.W.2d
736, 740 (Minn. 2018) (stating, in context of out-of-state offense classification, “[t]he State
bears the burden of proof at sentencing to show that a prior conviction qualifies for
inclusion within the criminal-history score”).
Urena-Muro argues that the state did not prove that a 2012 fifth -degree drug -
possession offense was properly assigned one-half of a felony point in his criminal-history
score. He relies on the 2016 Drug Sentencing Reform Act (DSRA) , which designated
certain first-time fifth-degree drug-possession offenses as gross misdemeanors. 2016
Minn. Laws ch. 160, § 7; Strobel, 932 N.W.2d at 305. He argues that the state did not
prove that his possession offense should be treat ed as a felony, and not a gross
misdemeanor, when calculating his criminal-history score.
Because the underlying first -degree aggravated robbery occurred in December
2018, the 2018 Minnesota Sentencing Guidelines are applicable. See State v. Scovel, 916
N.W.2d 550, 559 (Minn. 2018) (holding that sentencing policies in effect at the time the

10
“current offense” was committed control in determining prior -offense criminal -history
points). Under those guidelines, “T he classification of a prior offense as a petty
misdemeanor, misdemeanor, gross misdemeanor, or felony is determined by curren t
Minnesota offense definitions . . . and sen tencing policies. ” Minn. Sent. Guidelines
2.B.7.a. (2018). In this context, the supreme court has interpreted “offense definitions” to
mean the element-based offense definitions in effect when the offense being sentenced was
committed. See Strobel, 932 N.W.2d at 304, 306.
The issue presented here was addressed by this court in Strobel, in which we held
that “a prior fifth-degree controlled-substance-possession offense may not be classified as
a felony when calculating a criminal -history score to be used in sentencing a crime that
occurred after the effective date of the [DSRA] . . . if the prior offense would qualify as a
gross misdemeanor.” 921 N.W.2d at 576. “ Because the state did not establish that
Strobel’s 2012 fifth -degree controlled-substance conviction was properly classified as a
felony,” we reversed the defendant’s sentence and remanded “with instructions permitting
the state to develop the record regarding the type and amount of controlled substance
underlying” the prior conviction. Id. at 577. The supreme court affirmed our decision.
Strobel, 932 N.W.2d at 310.
Because the state in this case did not establish that Urena-Muro’s prior fifth-degree
conviction was properly classified as a felony, Strobel supports a remand.
Urena-Muro next a rgues that the district court erred by including offenses that
stemmed from single behavioral incide nts in his criminal -history score. The underlying
sentencing worksheet and presentence -investigation report indicate that Urena -Muro had

11
two related 2014 c onvictions for violating an order for protection and two related 2017
convictions for fleeing police in a motor vehicle. The record indicates that the district court
included all four convictions in Urena-Muro’s criminal-history score.
As a general rul e, “the offender is assigned a particular weight for every felony
conviction for which a felony sentence was stayed or imposed before the current
sentencing.” Minn. Sent. Guidelines cmt. 2.B.101 (2018). But if an offender has “multiple
offenses occurring in a single course of conduct in which state law prohibits the offender
from being sentenced on more than one offense, only the offense at the highest severity
level should be considered.” Minn. Sent. Guidelines cmt. 2.B.107 (2018). The term
“single course of conduct” is equivalent to the term “single behavioral incident.” Minn.
Sent. Guidelines cmt. 2.B.116 (2018).
“Whether multiple offenses form part of a single behavioral act is a question of
fact.” State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001). A determination of
whether two intentional offenses aros e from a single behavioral incident depends on
whether the conduct shares a unity of time and place and “was motivated by an effort to
obtain a single criminal objective.” State v. Bauer , 792 N.W.2d 825, 828 (Minn. 2 011)
(quotation omitted). Moreover, the determination depends on “the particular facts and
circumstances of each case.” State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000),
review denied (Minn. Oct. 17, 2000).
The state argues that Urena -Muro cannot raise the single -behavioral-incident issue
for the first time on appeal to this court. Specifically, the state argues that “case law makes
clear that [Urena-Muro’s] remedy lies not in an appeal, but in a petition for postconviction

12
relief or motion to correct sentence.” However, the state alternatively argues that if this
court disagrees with its improper -forum argument, this court should “remand with
instructions to allow the parties to develop the record about all relevant details of [Urena-
Muro’s] criminal history.”
The state relies on this court’s reasoning in State v. Yancy, in which the court held
that a criminal-history-score challenge based on a s ingle-behavioral-incident theory must
be raised in the distri ct court at sentencing. No. A19-1695, 2020 WL 5359405, at *1 -2
(Minn. App. Sept. 8, 2020) .1 However, the supreme court recently vacated this court’s
opinion in Yancy and remanded the case back to this court for reconsideration in light of
Strobel, 932 N. W.2d 303, Scovel, 916 N.W.2d 550, and State v. Maurstad , 733 N.W.2d
141 (Minn. 2007). State v. Yancy, No. A19-1695 (Minn. Nov. 25, 2020) (mem. ). Those
cases indicate that defendants may challenge their criminal-history scores for the first time
on appeal. See, e.g., Scovel, 916 N.W.2d at 553 n.5 (“A defendant cannot forfeit appellate
review of his criminal history score.”). We therefore allow the challenge here.
As to the merits, the underlying sentencing worksheet and presentence investigation
suggest, at a minimum, that the relevant offenses share a unity of time and place. Indeed,
the state does not argue otherwise. We therefore r everse Urena-Muro’s sentence and
remand for the district court to recalculate his criminal-history score. On remand, the state
should be allowed to present evidence regarding the proper classification of Urena-Muro’s

1 Unpublished opinions “are not precedential.” Minn. Stat. § 480A.08, subd. 3(c) (2018);
Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc. , 762 N.W.2d 572, 575 n.2 (Minn. 2009)
(stating that an “ unpublished Minnesota court of appeals decision d oes not constitute
precedent”).

13
fifth-degree drug -possession offense and regarding the single -behavioral-incident issue .
See Strobel, 921 N.W.2d at 577 (permitting the state “to develop the record regarding the
type and amount of controlled substance underlying” the prior conviction); State v. Outlaw,
748 N.W.2d 349, 356 (Minn. App. 2008) (remanding with similar instructions where the
defendant “did not object to the district court’s de termination that his out -of-state
convictions were felonies”), review denied (Minn. July 15, 2008).
In conclusion, because Urena-Muro has not established that the district court erred
in ruling on the state’s request for impeachment under Minn. R. Evid. 609 or in instructing
the jury, we affirm Urena-Muro’s convictions. But we reverse his sentence for first-degree
aggravated robbery and remand fo r recalculation of his criminal -history score and
resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded.