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This opinion will be unpublished and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
A19-1794

State of Minnesota,
Respondent,

vs.

Lukas Roy Miller,
Appellant.

Filed November 16, 2020
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Roseau County District Court
File No. 68-CR-18-370

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Kristy Kjos, Roseau County Attorney, Roseau, Minnesota (for respondent)

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

Considered and decided by Frisch, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this direct appeal from his judgment of conviction of one count of fourth -degree
controlled-substance sale crime, appellant argues that the district court (1) erred by failing

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to sever the three counts of controlled-substance-sale crime against him and that this error
prejudiced him; (2) abused its discretion by assigning one -half of a criminal-history point
for a 2005 fifth -degree controlled-substance conviction; and (3) abused its discretion by
assigning felony points for two 2009 convictions that appellant contends arose out of a
single behavioral incident. We affirm in part, reverse in part, and remand for resentencing.
FACTS
Beginning in August 2016, the Pine to Prairie Drug Task Force (task force)
conducted and recorded three controlled buys involving a confidential informant (CI) and
appellant Lukas Roy Miller. In the first, conducted on August 30, 2016, an officer dropped
the CI off near appellant’s residence, identified appellant, observed a hand -to-hand
exchange between appellant and the CI, and received a baggie from the CI after the
exchange containing a substance that appeared to be methamphetamine. The second,
conducted on September 8, 2016, followed the same pattern except appellant gave the C I
a cigarette box containing what appeared to be methamphetamine. In the third, conducted
on November 1, 2016, the CI drove himself to the meeting location near appellant’s
residence. The CI re turned to where officers waited and gave them what appellant gave
him, which was another cigarette box containing what appeared to be methamphetamine.
After each buy, the CI identified appellant as the person with whom he transacted. Officer
B., who conducted the final buy, helped plan the first two buys and spoke to appellant on
multiple prior occasions, recognized appellant’s voice on each recording. The substances
obtained by the CI in each transaction lab -tested positive as methamphetamine.
Respondent State of Minnesota charged appellant with three counts o f fourth -degree

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controlled-substance sale crimes (the three counts ) in violation of Minn. Stat. § 152.024,
subd. 1(1).
Before trial, appellant moved to sever the three counts. After a hearing and
supplemental briefing by the parties, the district court denied the motion. Following a two-
day trial, a jury found appellant guilty of all three counts. Appellant did not object to the
calculation of his criminal-history score during sentencing, at which the sentencing
worksheet for the first count reflected a criminal -history score of five. The district court
sentenced appellant to 27 months on the first count and dismissed the other two counts. 1
This appeal follows.
D E C I S I O N
I. Any alleged error by the district court for failing to sever appellant’s three
counts of fourth-degree controlled-substance sales did not prejudice appellant.

Appellant argues that the district court erred by failing to sever the three counts ,
which prejudiced him, and entitled him to a new trial . We disagree that any alleged error
resulted in prejudice.
“When a defendant’s conduct constitutes more than one offense, each offense may
be charged in the same charging document in a separate count.” Minn. R. Crim. P. 17.03,
subd. 1. T he district court must sever multiple counts if they are not related. Id., subd.
1(a). We review the district court’s decision of whether to sever offenses de novo. State
v. Fitch, 884 N.W.2d 367, 378 (Minn. 2016).

1 Despite the state’s apparent agreement that appellant’s offenses were separate incidents,
the district court entered only one judgment of conviction and imposed one sentence.

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If the district court improperly fails to sever multiple unrelated offenses, and if that
error is prejudicial, then the appellant is entitled to a new trial. State v. Profit, 591 N.W.2d
451, 458-60 (Minn. 2007). However, “the ultimate question in a severance claim . . . is
one of prejudice.” Id. at 460. Therefore, remand for a new trial is not required if the district
court’s error did not prejudice appellant. Id. A failure to sever is not prejudicial if evidence
of each offense would have been properly received as Spreigl evidence, or prior -acts
evidence, at trial for the other offenses. Profit, 591 N.W.2d at 460-61; State v. Spreigl, 139
N.W.2d 167 (Minn. 1965) (addressing prior -acts evidence). Spreigl evidence may be
“admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” State v. Ross, 732 N.W.2d 274, 282 (Minn. 2007). Spreigl
evidence is admissible at trial if:
(1) the state gives notice that it i ntends to use the evidence,
(2) the state clearly indicates what the evidence is being
offered to prove, (3) the evidence is clear and convincing that
the defendant participated in the other offense, (4) the evidence
is relevant and material to the state’s case, and (5) the probative
value of the evidence is not outweighed by its potential for
unfair prejudice.

State v. Stewart , 643 N.W.2d 281, 296 (Minn. 2002) . In analyzing whether a failure to
sever offenses prejudiced a party, we focus on the third, fourth, and fifth prongs. Ross, 732
N.W.2d at 282.
First, “there must be clear and convincing evidence that the [appellant] participated
in the prior act.” Ross, 732 N.W.2d at 282. Here, the jury convicted appellant of each
count, showing that the evidence presented at trial proved each offense beyond a reasonable

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doubt, meeting the lower clear -and-convincing-evidence standard. See State v. Jackson ,
615 N.W.2d 391, 395 (Minn. 2000).
Second, the evidence of each offense must be relevant and m aterial to the other
offenses. Ross, 732 N.W.2d at 282. Evidence is relevant and material if it has “any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Minn.
R. Evid. 401. Here, evidence connecting appellant to each offense would have shed light
on his motive, identity, and common plan . Id. at 282 (discussing the mutual relevance of
joined offenses). The district court determined that each offense demonstrated appellant’s
motive to se ll illegal drugs. We agree. Each offense makes more probable appellant’s
overall objective of selling methamphetamine. In addition, we note that appellant raised
the issue of identity in his closing argument. If raised at a trial for one of his offense s,
evidence of appellant’s involvement in the other offenses would have made his
involvement as the seller in the trial offense more likely.
In addition, as the state noted, appellant’s offenses also would have been admissible
to show a common plan. The closer the relationship between a prior act and the charged
act in “time, place, or modus operandi,” the greater the prior act’s relevance as evidence of
a common plan. State v. Ness, 707 N.W.2d 676, 688-89 (Minn. 2006). The acts need not
be identical, but should be markedly similar. Id. Here, the record demonstrates a common
plan: appellant sold the same substance in a similar location by a similar method to the

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same buyer, all within a relatively short period of time.2 In sum, the offenses were relevant
and material to each other.
Third, the risk of unfair prejudice must not substantially outweigh the probative
value of the evidence of each offense. Ross, 732 N.W.2d at 282; Minn. R. Evid. 403 .
“Unfair prejudice under rule 403 is not merely damaging evidence, even severely damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving
one party an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). The
probative value of evidence depends on the “closeness of the relationship between the other
crimes and the charged crimes in terms of time, place and modus operandi.” Profit, 591
N.W.2d at 461. Probative evidence should be admitted unless its tendency to persuade by
illegitimate means overwhelms its probative value. Schulz, 691 N.W.2d at 478-79.
Here, the offenses occurred within 64 days of each other, in a similar location, and
had similar, although not identical, modus operandi. Evidence of each offense, while
damaging, is not inflammatory or “likely to persuade by illegitimate means.” Ross, 732
N.W.2d at 283. Each offense is probative of appellant’s identity, motive, common plan,
and opportunity, and is not outweighed by potential prejudice to appellant. Because any
alleged error for failing to sever the charges against appellant did not prejudice him, we
affirm his conviction.

2 We also note that, in addition to the grounds raised by the parties and the district court,
each offense would have been admissible to show appellant ’s opportunity to conduct the
other sales. Each offense demonstrates that appellant had the means to commit the other
offenses, in terms of appellant being acquainted with the CI, residing in the location of the
sales, and possessing methamphetamine. See State v. Kinyon, 302 N.W.2d 27, 28 (Minn.
1981) (stating that defendant had opportunity to commit crime by his presence in home).

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II. The current record does not support assigning one-half of a criminal -history
point for appellant’s 2005 fifth-degree controlled-substance conviction.

Appellant argues that the district court improperly assigned one -half of a criminal-
history point to his 2005 fifth -degree controlled -substance conviction in light of
amendments to controlled-substance laws enacted under the Drug Sentencing Reform Act
(DSRA). 2016 Minn. Laws ch. 160. Because the record is insufficiently developed with
regard to appellant’s 2005 sentence, we agree.
The state agrees that appellant’s sentence should be remanded for recalculation of
his criminal-history score. But we must “decide cases in accordance with [the] law” even
when the parties agree on an issue. State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn.
1990). We review the district court’s criminal -history-score calculation for an abuse of
discretion. State v. Stillday , 646 N.W.2d 557, 561 (Minn. App. 2002), review denied
(Minn. Aug. 20, 2002). But the district court’s interpretation of the sentencing guidelines
presents a question of law, which we review de novo. State v. Strobel, 932 N.W.2d 303,
306-07 (Minn. 2019). “The state bears the burden of proof at sentencing to show that a
prior conviction qualifies for inclusion within the criminal -history score.” Williams v.
State, 910 N.W.2d 736, 740 (Minn. 2018).
The Minnesota Sentencing Guide lines provide that current Minnesota offense
definitions determine the classification of prior convictions for criminal -history-score
purposes. State v. Strobel , 921 N.W.2d 563, 575 (Minn. App. 2018) (citing Minn. Sent.
Guidelines 2.B.7.a.), aff’d, 932 N.W.2d 303 (Minn. 2019). Prior to the enactment of the
DSRA, all fifth -degree controlled-substance offenses were classified as felonies. Id. at

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574, n. 4. After the enactment of the DSRA, certain fifth -degree controlled -substance
offenses are now gross mis demeanors if the substance quantity falls below a certain
amount. Id. at 574; Minn. Stat. § 152.025, subd. 4(a) (2016). The DSRA applies to crimes
committed after its August 1, 2016 effective date. 2016 Minn. Laws ch. 160, § 7, at 585
(codified as Minn. Stat. § 152.025).
Here, appellant’s present offenses were committed after the DSRA’s August 1, 2016
effective date. For criminal-history-score purposes, the DSRA-amended section 152.025,
subd. 4(a), applies to appellant’s 2005 conviction. See State v. K irby, 899 N.W.2d 485,
493 (Minn. 2017) (clarifying that “a presumptive sentence is determined by the Sentencing
Guidelines in effect on the date of the conviction offense”). If appellant’s 2005 conviction
is a gross misdemeanor under section 152.025, subd . 4(a), then one -half of a criminal-
history point should not be allocated for that conviction. But the record does not show
whether the 2005 conviction would constitute a felony or gross misdemeanor under
section 152.025, subd. 4(a). As a result, the sta te did not carry its burden to establish the
weight of appellant’s 2005 conviction. Williams, 910 N.W.2d at 740. However, appellant
did not challenge his criminal-history score at the sentencing hearing. When an appellant
fails to object to the district court’s criminal-history-score calculation and the state did not
carry its burden at sentencing, the proper remedy is to reverse and remand “to further
develop the sentencing record so that the district court can appropriately make its
determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008), review denied

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(Minn. July 15, 2008). We therefore reverse and remand to the district court to allow the
state to develop the record with regard to appellant’s criminal-history score.3
III. The current record does not support assigning felony points for two 2009 felony
convictions which may have arisen out of a single behavioral incident.

Appellant argues that he can challenge his criminal -history score on the basis that
two 2009 felony convictions, which oc curred on the same day, should not have each
received felony points. Appellant’s argument has merit.
Again, as with the 2005 conviction, the record does not contain sufficient
information about appellant’s 2009 convictions for us to determine the issue. Because we
reverse and remand for resentencing based on appellant’s second argument, we need not
address the merits of appellant’s argument here. Instead, we note that appellant may raise
his additional challenge to the criminal -history-score calculatio n on remand. Minn. R.
Crim. P. 27.03, subd. 9 (“The court may at any time correct a sentence not authorized by
law.”); State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (“[A] sentence based on an
incorrect criminal-history score is an illegal sentence[. ] . . . [A] defendant may not waive
review of his criminal-history score calculation.”).
Affirmed in part, reversed in part, and remanded.

3 We note that on June 2, 2020, after this appeal was filed, the district court resentenced
appellant to 23 months based on a criminal-history score of five. But because the
resentencing did not address appellant’s argument that his criminal-history score should be
lower, our decision to reverse and remand on this issue does not change.