State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-1801

Court of Appeals Moore, III, J.

State of Minnesota,

Respondent,

vs. Filed: July 14, 2021
Office of Appellate Courts

Seth Mars Reimer,

Appellant.

________________________

Keith M. Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, Saint
Paul, Minnesota; and

Mark S. Rubin, Saint Louis County Attorney, Duluth, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson , Assistant
Appellate Public Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S

Although the district court violated the appellant’s right to have a jury determine the
dates of his offenses under Blakely v. Washington, 542 U.S. 296 (2004), the violation was
harmless beyond a reasonable doubt.
Affirmed.

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O P I N I O N
MOORE, III, Justice.
This case asks us to decide whether a Blakely violation committed by the district
court at a sentencing hearing was harmless beyond a reasonable doubt. A jury found the
appellant, Seth Mars Reimer, guilty of two counts of criminal sexual conduct. At
sentencing, the district court determined that Reimer’s offenses were committed after
August 1, 2006, even though the complaint alleged that the offenses were committed
sometime between 2004 and 2018. The court of appeals found that the district court’s
determination of Reimer’s offense dates was a Blakely violation, but concluded that, even
though the presumptive sentence under the applicable sentencing guidelines increased on
August 1, 2006, the violation was harmless beyond a reasonable doubt. The court therefore
affirmed Reimer’s sentence. Because we agree with the court of appeals that the district
court’s Blakely violation was harmless beyond a reasonable doubt, we affirm.
FACTS
The State charged Reimer with three counts of criminal sexual conduct based on
allegations that he sexually abused his girlfriend’s three minor daughters: M.M., E.R., and
D.R. The first count alleged that Reimer committed first-degree criminal sexual conduct
against M.M. between January 1, 2004, and March 31, 2018. The second count alleged
that Reimer committed second-degree criminal sexual conduct against E.R. between
January 1, 2006, and June 16, 2018. The third count alleged that Reimer committed
first-degree criminal sexual conduct against D.R. between January 1, 2012, and June 16,
2018.
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The case proceeded to a jury trial. At trial, M.M. testified that Reimer sexually
assaulted her numerous times over the course of his relationship with her mom, beginning
in 2012 when she was in fourth or fifth grade. E.R. testified that Reimer started sexually
assaulting her in 2009 and continued to sexually assault her over several years. The jury
found Reimer guilty of the two counts of criminal sexual conduct against M.M. and E.R. 1
The jury was not asked to determine the dates or range of dates that Reimer assaulted either
of the victims.
The recommendation in the presentence investigation report was to sentence Reimer
in accordance with the sentencing guidelines that were in effect before August 1, 2006,
based on the date range set forth in the complaint (2004 to 2018). Based on the pre-August
1, 2006 sentencing guidelines, the presumptive sentences for the two convictions would be
161 months in prison and 57 months in prison, respectively. At sentencing, the State
argued that Reim er should be sentenced in accordance with the sentencing guidelines in
effect after August 1, 2006, because the evidence presented during the jury trial suggested
that the earliest offense occurred in 2009. Based on the post-August 1, 2006 sentencing
guidelines, the presumptive sentences for the two convictions would be 360 months in
prison and 140 months in prison, respectively.
The district court found that “there was absolutely no evidence that any of these
offenses happened in 2006,” “probably not in 2007 [or] 2008” and “the earliest that these
offenses . . . occurred was maybe 2010.” The district court observed “that there was a

1 Reimer was acquitted of the count submitted to the jury charging an offense against
D.R.
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mistake made in . . . not amending the Complaint to change the date of the offenses” and
suggested that “ideally, there should have been a special interrogatory or something like
that to the jury asking them for each victim when did these offenses occur.” Ultimately,
the district court sentenced Reimer in accordance with the sentencing guidelines that
existed after August 1, 2006, and imposed the presumptive sentences of 360 months in
prison and 140 months in prison, to run concurrently.
On appeal, Reimer argued that the district court violated Blakely v. Washington, 542 U.S. 296 (2004), and its progeny by finding that the earliest offense occurred after
August 1, 2006. In a nonprecedential opinion, the court of appeals agreed with Reimer that
the district court’s finding that the offenses occurred after August 1, 2006 violated Blakely.
The court concluded, however, that the district court’s error was harmless due to “the
unique circumstances in this case” where the record “simply contains no evidence to
support a jury finding that any of the offenses occurred before August 1, 2006, and Reimer
makes no claim to the contrary.” State v. Reimer, No. A19-1801, 2020 WL 7019403, at *5
(Minn. App. Nov. 30, 2020). We granted Reimer’s petition for review on the Blakely issue.
ANALYSIS
Under Blakely, a criminal defendant has a right under the Sixth Amendment to the
United States Constitution to be sentenced based solely upon factual findings made by a
jury. 542 U.S. at 303–05. A violation of that right—what we have described as a Blakely
violation, see State v. Houston, 702 N.W.2d 268, 273–74 (Minn. 2005)—occurs when a
court determines “any disputed fact essential to increase the ceiling of a potential
sentence,” including factual findings related to offense dates, without the defendant
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waiving the right to a jury’s determination of that issue. State v. DeRosier, 719 N.W.2d
900, 903 (Minn. 2006) (quoting Shepard v. United States, 544 U.S. 13, 25 (2005))
(emphasis omitted). “If the determination of which presumptive sentence applies depends
on a fact issue . . . such an issue is for the jury to decide.” Id.
In this case, the court of appeals found, and the parties agree, that a Blakely violation
occurred when the district court determined that Reimer’s offenses against M.M. and E.R.
occurred after August 1, 2006. The jury was never asked to determine the date of the
offenses. Therefore, the district court determined a “presumptive sentence” based “on a
fact issue,” resulting in a Blakely violation. Id.; State v. Robinson, 480 N.W.2d 644, 646
(Minn. 1992) (explaining that defendants have the “right to let the jury authoritatively
decide the” date on which an offense occurred).
Thus, the sole issue presented in this case is whether the Blakely violation was
harmless beyond a reasonable doubt. The State contends that the Blakely error was
harmless because there was no evidence presented that Reimer’s offense occurred before
August 1, 2006. Reimer, citing to our decisions in State v. DeRosier, 719 N.W.2d 900
(Minn. 2006) and State v. Osborne, 715 N.W.2d 436 (Minn. 2006), counters that any
factual determination made by a court that results in a higher sentence for a criminal
defendant is per se prejudicial.
Our harmless error doctrine reflects the fact that “most constitutional errors can be
harmless.” State v. Finnegan, 784 N.W.2d 243, 259–60 (Minn. 2010) (quoting Neder v.
United States, 527 U.S. 1, 8 (1999)). We apply the harmless error doctrine to a
constitutional error when that error does not qualify as a “structural” error, which deprives
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a defendant “of ‘basic protections’ without which . . . ‘no criminal punishment may be
regarded as fundamentally fair.’ ” Neder, 527 U.S. at 8–9 (quoting Rose v. Clark, 478 U.S.
570, 577–78 (1986)). Blakely violations do not rise to the level of a structural error and
are therefore subject to our harmless error standard. See Washington v. Recuenco, 548 U.S.
212, 222 (2006); State v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006); see also Neder,
527 U.S. at 15, 19–20 (applying a harmless error analysis to the district court’s
determination of an element of a crime when the defendant “did not contest” that element
at trial nor did he “suggest that he would introduce any evidence” related to that element if
he was re-tried).
Under our harmless error standard, “[a]n error is not harmless if there is any
reasonable doubt the result would have been different if the error had not occurred.”
DeRosier, 719 N.W.2d at 904. If a district court’s error is not harmless beyond a reasonable
doubt, the case must be remanded for resentencing. Chauvin, 723 N.W.2d at 30–31; see
also Recuenco, 548 U.S. at 222.
In this case, the complaint alleged that Reimer committed criminal sexual conduct
against M.M. between January 1, 2004, and March 31, 2018, and against E.R. between
January 1, 2006, and June 16, 2018. At trial, the State presented no evidence that Reimer
committed acts of criminal sexual conduct against either victim before 2009. And Reimer
has not argued “that he would introduce any evidence” related to the timing of his offense
if he was re-tried. Neder , 527 U.S. at 15. Accordingly , there is no “reasonable doubt the
result would have been different if the error had not occurred” and the error is therefore
harmless. DeRosier, 719 N.W.2d at 904.
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We disagree with Reimer’s argument that our DeRosier decision stands for the
proposition that a Blak ely violation is not harmless if a defendant’s sentence is increased
by the violation, which would in effect transform Blakely violations into structural errors
mandating automatic reversal. In DeRosier, the defendant committed multiple acts of
criminal sexual conduct against a teenage girl during 2000. Id. at 901. At trial, the State
presented evidence that the conduct “began in June 2000” and there was at least one act
that occurred in August 2000. Id. at 901–02. On August 1, 2000, the sentencing guidelines
were amended and DeRosier’s crime carried a presumptive sentence that was 58 months
longer than it did before the amendment. Id. at 901. The jury found DeRosier guilty, but
never determined the date of the offense. Id. at 902. The district court sentenced DeRosier
under the guidelines that took effect after August 1, 2000. Id.
The court of appeals found a Blakely violation in DeRosier and remanded for
resentencing. Id. We affirmed under a harmless error analysis because there was
reasonable doubt as to the exact timing of DeRosier’s acts of criminal sexual conduct. Id.
at 904. We did not reverse because of the 58-month difference in the presumptive sentence
between the initial and amended sentencing guidelines, as Reimer suggests. Id. The
reasonable doubt arose out of the State’s evidence that DeRosier’s sexual assaults against
the victim happened both before and after the August 1, 2000 amendments to the
sentencing guidelines. Id. As a result, we rejected the State’s argument in DeRosier that
the district court’s factual finding was harmless beyond a reasonable doubt. Id. And
nowhere did we suggest that the Blakely violation in that case was structural error, which
is the logical premise of Reimer’s argument. See Recuenco, 548 U.S. at 221 (rejecting the
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argument that Blakely violations are structural errors); Osborne, 715 N.W.2d at 447
(applying the harmless error analysis to the Blakely violation in that case).
In addition, Reimer’s representation of our Osborne precedent is inaccurate. In
Osborne, the defendant was found guilty of a drug offense. 715 N.W.2d at 439. At
sentencing, the district court granted an upward departure based on four aggravating factors
that rested on factual findings not made by the jury. Id. at 440–41. The sentence was
reversed on appeal because the jury never found the existence of the aggravating factors,
nor did Osborne admit to the aggravating factors. Id. at 446–47. We did not, however,
reverse Osborne’s sentence simply because the district court’s error resulted in a higher
sentence. See id.; see also State v. Essex, 838 N.W.2d 805, 813 (Minn. App. 2013), rev.
denied (Minn. Jan. 21, 2014) (concluding a district court committed a Blakely violation by
finding the existence of an aggravating factor, but affirming the sentencing decision
because the error was harmless).
Here, there was no evidence presented at trial that Reimer committed any act of
criminal sexual conduct before August 1, 2006. Indeed, as the district court summarized,
no evidence presented at trial showed that Reimer committed an act of criminal sexual
conduct against any of the three victims alleged in the complaint before 2010. Although
the district court erred in determining the date of Reimer’s offense without receiving a
Blakely waiver from Reimer, the error was harmless beyond a reasonable doubt.
2 See State

2 Because we find the Blakely violation in this case was harmless beyond a reasonable
doubt, we do not address the State’s argument that a sentencing jury should be empaneled
if this case is remanded to the district court.
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v. Waukazo, 269 N.W.2d 373, 375 (Minn. 1978) (“[A]n indictment or complaint should be
as specific as possible with respect to time. However, it is not always possible to know
with certainty when an offense or offenses occurred,” which is “especially true in cases
like this where there is a minor victim who does not complain to the authorities
immediately.”).
3
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

3 We emphasize the unique nature of this case. Here, there is absolutely no evidence
that any of the acts of criminal sexual conduct occurred before August 1, 2006. And,
critically, the defendant does not contest the timeline of events in this case. Nonetheless,
we stress to district courts that juries must make all factual findings that could potentially
raise a defendant’s presumptive sentence to comport with Blakely, absent an appropriate
waiver by the defendant. See Blakely, 542 U.S. at 313 (“[E]very defendant has the right to
insist that the prosecut or prove to a jury all facts legally essential to the punishment.”);
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“[A]ny fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt.” (emphasis added)); Houston, 702 N.W.2d at 273
(finding “the right to jury trial implicated by Blakely is fundamental to our system of
criminal procedure”).