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This opinion is nonprecedential except as provided by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
A19-2039

State of Minnesota,
Respondent,

vs.

Milo Calvin Ojohn,
Appellant.

Filed February 1, 2021
Affirmed in part, reversed in part, and remanded
Johnson, Judge

Lyon County District Court
File No. 42-CR-18-1311

Keith Ellison, Attorney Genera l, Edwin W. Stockmeyer, Assi stant Attorney General, St.
Paul, Minnesota; and

Rick Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Milo Calvin Ojohn confined a woman in a hotel room for three days, during which
time he repeatedly sexually and physically assaulted her. A Lyon County jury found him
guilty of kidnapping, th ird-degree assault, and two counts of first-degree criminal sexual
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conduct. We conclude that the district court did not plainly err by not giving the jury a
specific-unanimity instruction. But we conclude that the district court erred by convicting
and sentencing Ojohn on both count 2 and co unt 8, by assigning him two and one-half
criminal-history points based on multiple prior convictions from the state of Colorado, and
by imposing a lifetime term of conditional release. Therefore, we affirm in part, reverse in
part, and remand for further proceedings, as described below in parts I, III, and IV.
FACTS
In early November 2018, Ojohn met M.E. at a bus depot in Denver, Colorado. They
boarded the same bus traveling eastward. Both drank alcoholic beverages at the bus depot
and on the bus. They got off the bus togeth er in Marshall, Minnesota, obtained more
alcoholic beverages, and rented a hotel room.
M.E. testified at trial as follows: Af ter checking into their hotel room, Ojohn
smoked methamphetamine. He told her that he “always carried,” which she understood to
mean that he had a gun with him in the hotel room. Ojohn threw M.E. on the bed, choked
her, and penetrated her vagina with his peni s without her consent. M.E. was terrified
because Ojohn was a “big guy.” For approximately 48 hours, Ojohn used force and threats
of force to sexually assault her multiple tim es. He also punched her in the face and
stomach, choked her, pulled out clumps of her hair, and told her that he would hunt her
down and kill her if she left the hotel room.
On November 6, 2018, the day they were scheduled to check out, a hotel employee
attempted to obtain payment fo r an additional night. M.E. went to the front desk to
facilitate the payment and sought assistance from the hotel empl oyee, who called the
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police. When police officers s earched the hotel room, they found numerous blood stains
on the bed, blood on the wall, a nd a clump of hair on the bed with roots attached. M.E.
was taken to a hospital, where she was trea ted for her injuries. An emergency-room
physician testified at trial that M.E. had “signs of trauma with swelling . . . and bruising on
her face” and “bruising on her wrists and ankles,” a fractured ankle, a fractured nasal bone,
and a lung contusion. After Ojohn was arrested, he told a detective that all sexual conduct
was consensual, that he hit M.E. on only one occasion after she hit him, and that all of her
other injuries were caused by a seizure.
The state charged Ojohn with multiple offens es. In an amended complaint, the state
charged Ojohn, in counts 1, 2, 3, 7, 8, and 9 with six counts of first-degree criminal sexual
conduct, in violation of Minn. Stat. § 609.342 (2018), for various acts on various dates and
date ranges. In addition, the state charged Ojohn in count 4 with kidnapping, in violation
of Minn. Stat. § 609.25, subd. 1(2) (2018); in count 5 with third-degree assault, in violation
of Minn. Stat. § 609.223, subd. 1 (2018); and in count 6 with threats of violence, in
violation of Minn. Stat. § 609.713, subd. 1 (2018).
The case was tried to a jury on three days in July 2019. The jury found Ojohn guilty
of the offenses charged in count 2 (firs t-degree criminal sexual conduct), count 4
(kidnapping), count 5 (third-d egree assault), and count 8 (first-degree criminal sexual
conduct). The district court imposed concurrent prison sentences of 201 months on count
2, 57 months on count 4, 24 mont hs on count 5, and 360 months on count 8. The district
court also imposed a ten-year term of conditional release on count 2 and a lifetime term of
conditional release on count 8. Ojohn appeals.
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DECISION
I. Multiple Convictions and Sentences
We begin by addressing Ojohn’s argument that the district court erred by convicting
him and sentencing him on both count 2 and c ount 8, both of which alleged first-degree
criminal sexual conduct. He contends that the state did not prove that the conduct
underlying both convictions and sentences was not a single behavioral incident.
In general, a person “may be convicted of either the crime charged or an included
offense, but not both.” Minn. Stat. § 609. 04, subd. 1 (2018). Th e statute includes a
definition of the term “included offense.” Id. In determining whether an offense is an
“included offense” for purposes of section 60 9.04, it is appropriate to examine “the
elements of the offense instead of the facts of the particular case.” State v. Bertsch, 707
N.W.2d 660, 664 (Minn. 2006). This court applies a de novo standard of review to a district
court’s application of section 609.04. State v. Chavarria-Cruz , 839 N.W.2d 515, 522
(Minn. 2013).
Similarly, “if a person’s co nduct constitutes more than one offense under the laws
of this state, the person may be punished fo r only one of the offe nses.” Minn. Stat.
§ 609.035, subd. 1 (2018). This statute “g enerally prohibits mu ltiple sentences, even
concurrent sentences, for two or more offenses that were committed as part of a single
behavioral incident.” State v. Ferguson , 808 N.W.2d 586, 589 (Minn. 2012) (quotation
omitted). If there are two intentional crimes, “we determine whether the crimes were part
of a single behavioral incident by consider ing (1) whether the offenses occurred at
substantially the same time and place, and (2 ) whether the conduct was motivated by an
5
effort to obtain a single criminal objective.” State v. Bakken, 883 N.W.2d 264, 270 (Minn.
2016) (citations and quotations omitted). The state bears the bur den of proving by a
preponderance of the evidence that the conduct underlying multiple offenses was not part
of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).
This court applies a clear-error standard of review to a district court’s findings of fact and
a de novo standard of review to a district c ourt’s ultimate decisi on concerning multiple
sentences. State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020).
Ojohn contends that the state did not pr ove that the conduct underlying the two
convictions of and sentences for first-degr ee criminal sexual conduct was not a single
behavioral incident. He explains that, in both counts, the state sought to prove that Ojohn
penetrated M.E.’s vagina with his penis between November 4 and 6, 2018, but the amended
complaint, jury instructions, and verdict forms do not describe the particular act underlying
each count, and M.E.’s testimony was lacking in specifics about what occurred on the days
in question. In response, th e state agrees that the eviden tiary record does not reveal
separate behavioral incidents, and the state concedes that the district court erred by
convicting and sentencing Ojohn on both count 2 and count 8.
The state’s concession is consistent with the caselaw. In Bixby v. State, 344 N.W.2d
390 (Minn. 1984), the defendant was convicted of two counts of third-degree criminal
sexual conduct, but the supreme court held th at “there was just one basic incident of
wrongdoing that took place at two diffe rent locations in one evening.” Id. at 391-93. In
State v. Grampre , 766 N.W.2d 347 (Minn. App. 2009), review denied (Minn. Aug. 26,
2009), the defendant invaded a woman’s home and assaulted her in her bedroom, and this
6
court concluded that only one conviction of criminal sexual conduct was appropriate. Id.
at 349, 354. The state’s concession also is consistent with the evidentiary record. M.E.’s
testimony is lacking in specifics about which of the particular acts of criminal sexual
conduct were committed on which dates. See Barthman, 938 N.W.2d at 266-67 (analyzing
whether appellant was properly sentenced on two counts of criminal sexual conduct).
Thus, the district court erred by convic ting and sentencing Ojohn on both count 2
and count 8. Therefore, we reverse and remand to the district court with instructions to
vacate one of the two convictions. The finding of guilt on the count corresponding to the
vacated conviction should remain intact but not adjudicated. See State v. Walker , 913
N.W.2d 463, 469 (Minn. App. 2018).
II. Unanimity Instruction
Ojohn also argues that the district court erred by not giving the jury a specific-
unanimity instruction with respect to both count 2 and count 8. He argues that the absence
of such an instruction, in combination with the manner in which the state charged the case
and presented its evidence, violated his right to a unanimous verdict. We review Ojohn’s
argument in light of our conclusion that he may not be convicted and sentenced on both
count 2 and count 8. See supra part I. In light of that conclusion, the narrower question is
whether his conviction on either count 2 or count 8 violated his right to a unanimous
verdict.
The district court gave the jury a “general un animity” instruction, as follows: “In
order for you to return a verdict, whether gu ilty or not guilty, each juror must agree with
that verdict. Your verdict must be unanimous .” Ojohn argues that this instruction was
7
inadequate and that the jury should have been instructed that it must unanimously agree on
the particular act for which it found Ojohn guilty. Ojohn ac knowledges that he did not
request a specific-unanimity instruction at tria l and that we should review only for plain
error. Under the plain-error te st, we will not grant appellate relief on an i ssue to which
there was no objection unless (1) there is an error, (2) the erro r is plain, and (3) the error
affects the defendant’s substantial rights. State v. Griller , 583 N.W.2d 736, 740 (Minn.
1998). An error is plain if it is clear or obvious, State v. Strommen, 648 N.W.2d 681, 688
(Minn. 2002), and an error is clear or obvious if it “contravenes case law, a rule, or a
standard of conduct,” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If the first three
requirements of the plain-error test are satisfied, we then consider the fourth requirement,
whether the error “seriously affe cts the fairness, integrity or public reputation of judicial
proceedings.” State v. Washington , 693 N.W.2d 195, 204 (Minn. 2005) (quotation
omitted).
Ojohn relies primarily on this court’s opinion in State v. Stempf, 627 N.W.2d 352
(Minn. App. 2001). In that opinion, we relied primarily on the United States Supreme
Court’s opinion in Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707 (1999), as
well as opinions of several other state courts concerning a defendant’s right to a unanimous
verdict. See Stempf, 627 N.W.2d at 355-58. Since Stempf, the Minnesota Supreme Court
has further developed the cas elaw on this subject. In State v. Crowsbreast, 629 N.W.2d
433 (Minn. 2001), the court stated that the right to a unanimous verdict does not mean that
“‘jurors should be required to agree upon a single means of commission’” of a criminal
offense. Id. at 439 (quoting Schad v. Arizona, 501 U.S. 624, 631-32, 111 S. Ct. 2491, 2497
8
(1991) (plurality opinion)). Rather, “‘different jurors may be persuaded by different pieces
of evidence, even when they agree upon the bottom line.’” Id. (quoting Schad, 501 U.S. at
631-32, 111 S. Ct. at 2497 (plurality opinion) (internal quotation omitted)); see also State
v. Ihle, 640 N.W.2d 910, 917-19 (Minn. 2002).
In this case, the district court instructed the jury that, to fi nd Ojohn guilty of the
offense charged in count 2, it must find that (1) he “intentionally sexually penetrated” M.E.;
(2) “the sexual penetration occurred without the consent of” M.E.; (3) “the defendant
caused personal injury to” M.E.; (4) “the defe ndant used force or coercion to accomplish
the act”; and (5) “the defendant’s act took pl ace on or about November 4th through 6th,
2018.” The district court instructed the jury on count 8 in a similar manner except for the
third element, which required proof that M.E. “had a reasonable fear of imminent great
bodily harm to herself,” and the fourth element, which required proof that Ojohn
“accomplished the act because [M.E.] had such a fear of imminent great bodily harm.”
Ojohn is correct in observing that, given th e district court’s instructions, different
jurors could determine that Ojohn is guilty based on different acts. But Ojohn’s right to a
unanimous verdict would not be vi olated in that scenario. As stated above, the right to a
unanimous verdict does not mean that “‘juro rs should be required to agree upon a single
means of commission’” of a criminal offense. Crowsbreast, 629 N.W.2d at 439 (quoting
Schad, 501 U.S. at 631-32, 111 S. Ct. at 2497 (plurality opinion)). Accordingly, this court
has rejected Ojohn’s argument in similar circumstances. See State v. Rucker, 752 N.W.2d
538, 547-49 (Minn. App. 2008) (affirming co nvictions of first-degree and second-degree
9
criminal sexual conduct with respect to each of two different victims), review denied
(Minn. Sept. 23, 2008).
Thus, the district court did not err, let al one plainly err, by not giving the jury a
“specific unanimity” instruction.
III. Criminal-History Score
Ojohn also argues that the district court erred by assigning him 2.5 criminal-history
points based on multiple prior convictions from the state of Colorado. There are two main
components to Ojohn’s criminal-history score of 2.5. First, the district court assigned him
1.5 points for a 2013 Colorado felony conviction of “menacing.” Second, the district court
assigned him 1.0 point for five prior Colorado convictions that are equivalent to Minnesota
misdemeanors. Ojohn challenges the assi gnment of both 1.5 points for the Colorado
menacing conviction and 1.0 point for the Colorado misdemeanor convictions.
A. 1.5 Points for Menacing Conviction
The district court assigned Ojohn 1.5 points for this prior conviction by reasoning
that it is equivalent to the Minnesota felony offense of second-degree assault, which has a
severity level of 6. See Minn. Sent. Guidelines 2.B.5; 5.B (2018).
In determining whether to assign crimin al-history points for a prior out-of-state
conviction, a district court first should identify “the equivalent Minnesota offense based on
the elements of the prior non-Minnesota offe nse” and then assign criminal-history points
accordingly. Minn. Sent. Guid elines 2.B.5.b. A district court should identify the
equivalent Minnesota offense by considering whether the out-of-state offense “is defined
as a felony, gross misdemeanor, or targeted misdemeanor in Minnesota” and “the sentence
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imposed.” Id. The district court shou ld seek to “comply with the sentencing guidelines’
mandate that the court determine how the of fender would have been sentenced had the
offense occurred in Minnesota at the time of the current offense, not when the offense
actually occurred out of state.” State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001). This
court applies an abuse-of-discretion standard of review to a district court’s assignment of
criminal-history points based on out-of-state convictions. Id.
In Colorado, a defendant may be found guilty of menacing if he placed or attempted
“to place another person in fear of imminent serious bodily injury.” Colo. Rev. Stat.
§ 18-3-206(1) (2018). Menacing ordinarily is a misdemeanor offense, but it is a felony
offense if the defendant placed the other person in fear by “the use of a deadly weapon” or
by “representing verbally or otherwise that he or she is armed with a deadly weapon.” Id.,
§ 18-3-206(1)(a)-(b). In this case, the record indicates that Ojohn was convicted of felony
menacing, which implies that he used a deadly weapon or re presented that he was armed
with a deadly weapon. In Minnesota, a defendant comm its second-degree assault if he
“assaults another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1 (2018).
“Assault” is defined to include “an act done with intent to cause fear in another of
immediate bodily harm or deat h.” Minn. Stat. § 609.02, su bd. 10(1) (2018). Based on
these similarities, the district court did not abuse its discretion by determining that Ojohn’s
prior Colorado conviction of menacing is equi valent to the Minneso ta felony offense of
second-degree assault.
Ojohn contends that the two offenses ar e not equivalent on the ground that the
Colorado offense of felony menacing is not a specific-intent crime, while the Minnesota
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offense of second-degree assault is a specific-intent crime. The state disagrees, contending
that the mens rea requirements for the two statutes are equivalent. Ojohn has not cited any
caselaw for the proposition that a district court must compare the mens rea requirements
of an out-of-state offense and a Minnesota offense. In any event, the state has effectively
demonstrated that Colorado law and Minnesota law are equivalent with respect to the mens
rea requirements of the two offenses. Compare Colo. Rev. Stat. § 18-1-501(6) (2018);
People v. Crump, 769 P.2d 496, 497 (Colo. 1989), with State v. Fleck, 810 N.W.2d 303,
312 (Minn. 2012); State v. Hough , 585 N.W.2d 393, 396-97 (Minn. 1998); Linert v.
MacDonald, 901 N.W.2d 664, 668-69 (Minn. App. 2017). Any difference between the
mens rea requirements is not significant enough to compel the conclusion that the district
court abused its discretion by determining that the two offenses are equivalent.
Thus, the district court did not err by a ssigning Ojohn 1.5 criminal-history points
for Ojohn’s prior Colorado felony conviction of “menacing.”
B. 1.0 Point for Non- Felony Convictions
The district court assigned Ojohn 1.0 point for five pr ior Colorado convictions on
the ground that they are equi valent to Minnesota gross misdemeanors or misdemeanors.
Prior convictions of gross misdemeanor or misdemeanor offenses “count as units
comprising criminal history poi nts,” four of which “equal one criminal history point.”
Minn. Sent. Guidelines 2.B.3.
1. Prior Non-Felony Convictio n of Criminal Impersonation
One of Ojohn’s five prior Colorado non -felony convictions was a conviction of
criminal impersonation. A person commits cr iminal impersonation in Colorado if he
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“[a]ssumes a false or fictitious identity or capac ity, legal or other, a nd in such identity or
capacity he or she . . . performs any other act w ith intent to unlawfully gain a benefit . . .
or to injure or defraud another.” Colo. Rev. Stat. § 18-5-113, subd. 1(b)(ii) (2018). The
district court determined that this offense is equivalent to the Minnesota offense of giving
a false name to a police officer. A person comm its that offense in Minnesota if he “gives
a fictitious name other than a nickname, or gives a false date of birth, or false or
fraudulently altered identification card to a p eace officer, . . . when that officer makes
inquiries incident to a lawful investigatory stop or lawful arrest, or inquiries incident to
executing any other duty imposed by law.” Minn. Stat. § 609.506, subd. 1 (2018).
Ojohn contends that the two offenses are not equivalent because a person may
commit the Colorado offense by giving a false identity to anyone, not just a police officer,
and by doing so at times other than when there is a lawful investigatory stop or arrest. The
state concedes this point. But the state contends that Ojohn is not entitled to relief on appeal
because he did not object to, and in fact agre ed to, the assignment of a unit to his prior
Colorado conviction of criminal impersonation. In reply, Ojohn contends that a defendant
cannot waive an issue concerning the calculation of a crimin al-history score, and he cites
State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007), in support of that contention.
At sentencing, the state bears the burden of proving the facts necessary to justify
including out-of-state convicti ons in the calculation of a de fendant’s criminal-history
score. Williams v. State, 910 N.W.2d 736, 743 (Minn. 2018). A defendant may argue on
appeal that the state did not satisfy that burden, even if the defendant did not challenge the
evidence in the district court. See Maurstad, 733 N.W.2d at 148. If a defendant makes
13
such an argument, this court must examine the record to determine whether it contains
evidence supporting the district court’s calculation of criminal-history points. See State v.
Maley, 714 N.W.2d 708, 711-12 (Minn. App. 2 006). If the evidence is lacking due to
inadequate development of the record and th e lack of an objection, the appropriate
appellate remedy is for this court to reverse and remand to the district court for further
development of the record and resentencing. State v. Outlaw, 748 N.W.2d 349, 356 (Minn.
App. 2008), review denied (Minn. May 6, 2008).
In this case, it appears that the state did not introduce any evidence of Ojohn’s prior
Colorado non-felony conviction of criminal impersonation. Th us, the district court erred
by relying in part on Ojohn’s prior Colo rado non-felony conv iction of criminal
impersonation when assigning one criminal-history point for all of Ojohn’s prior Colorado
non-felony convictions.
2. Four Other Prior Non-Felony Convictions
It appears that the district court implic itly adopted the probation officer’s sentencing
worksheet, which identified five prior non-felony Colorado convictions, including a 2010
conviction of menacing, a 2010 conviction of driving under the influence, a 2010
conviction of motor-vehicle theft, and a 2015 conviction of thir d-degree assault. Each of
these non-felony convictions was counted as one unit, thereby s upporting the assignment
of one criminal-history point.
Ojohn contends that the district court erre d by relying on these four prior convictions
on the ground that the state did not introduce any evidence into the record to satisfy its
burden of proof. Ojohn seeks a remand, at wh ich the state would have the opportunity to
14
introduce evidence of the prior convictions. In response, the state contends that Ojohn is
not entitled to appellate relief because he has not asserted that he does not actually have
the four prior convictions at issue. In reply, Ojohn contends that a defendant cannot waive
an issue concerning the calc ulation of a criminal-history score and cites unpublished
opinions in which this court has reversed and remanded in similar circumstances.
As stated above, the state bears the bu rden of proving the facts necessary for a
calculation of a defendant’s criminal-history score. Williams, 910 N.W.2d at 743. A
defendant does not waive or forfeit an argument concerning criminal-history points by not
making it in the district court. Maurstad, 733 N.W.2d at 148. If there is no evidence in
the record to support the district court’s reliance on a prior conviction, it is appropriate for
this court to remand for further proceedings. Outlaw, 748 N.W.2d at 356.
In this case, it appears that the state did not introduce any evidence of Ojohn’s four
other prior Colorado non-felony convictions. Thus, the distri ct court erred by relying in
part on those prior convictions when assigning one criminal-history point for Ojohn’s non-
felony convictions. Therefore, we reverse the district court’s calculation of criminal-
history points and remand for fu rther proceedings, with instruct ions to give the state an
opportunity to introdu ce evidence concerning Ojohn’ s prior Colorado non-felony
convictions.
IV. Conditional Release
Ojohn last argues that the district c ourt erred by imposing a lifetime term of
conditional release on count 8 because his conviction on count 2 should not be considered
a qualifying prior sex-offense conviction.
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A district court must impose a lifetime term of conditional release if a defendant is
being sentenced for first-degree criminal sexual conduct and “has a previous or prior sex
offense conviction.” Minn. Stat. § 609.3455, subd. 7(b) (2018); see also State v. Nodes ,
863 N.W.2d 77, 82 (Minn. 2015). Ojohn conten ds that, if this court were to grant him
relief with respect to either his conviction on count 2 or his conviction on count 8, he would
not have a prior sex-offense conviction. Indeed, we have concluded that Ojohn cannot be
convicted of and sentenced on both count 2 and count 8, and we are remanding for vacatur
of one of those convictions and for resentencing. See supra part I. Consequently, Ojohn
can be convicted of only one sex offense in this case, which means that there can be no
prior sex-offense conviction. The state agrees.
Thus, the district court erred by imposing a lifetime term of conditional release. On
remand, the district court shall resentence Ojohn without imposi ng a lifetime term of
conditional release.
Affirmed in part, reversed in part, and remanded.