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This opinion will be unpublished and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
A20-0138

State of Minnesota,
Respondent,

vs.

Conrad James Smith,
Appellant.

Filed December 28, 2020
Reversed and remanded
Florey, Judge

Clay County District Court
File No. 14-CR-19-2627

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

Brian J. Melton, Clay County Attorney, Pamela L. Foss, Chief Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appel late Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Bryan, Judge; and Klaphake,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Conrad James Smith challenges his sentence, arguin g that the district
court erred in its calculation of his criminal -history score—specifically, that the district
court erroneously assigned criminal-history points for three convictions that arose out of a
single incident and for an alleged federal assault conviction. Because there is insufficient
evidence in the record to support the district court’s calculation of Smith’s criminal-history
score, we conclude that the district court abused its discretion. But because Smith did not
object to the district c ourt’s criminal-history-score calculation at sentencing (and in fact
invited the district court to sentence him without examining his non-Minnesota convictions
more thoroughly), we remand with instructions to allow the state to supplement the record
with evidence to support its position on Smith’s criminal-history score.
FACTS
Smith pleaded guilty to first-degree assault pursuant to a plea agreement that called
for a “bottom-of-the-box” sentence. The parties disagreed over what the precise sentence
would be because they disag reed over what Smith’s criminal -history score was. But the
parties agreed that “whatever we end up with points -wise, it’ll be a bottom -of-the-box
sentence.”
A sentencing worksheet completed before sentencing indicated that Smith had a
criminal-history score of seven. The worksheet assigned two points in relation to a 2004
federal conviction for assault resulting in serious bodily injury. The worksheet also
assigned points in relation to three offenses that all occurred on November 15, 2012.

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Because first -degree assault is a severity -level-nine offense, the presumptive range of
sentences for Smith, according to the Minnesota Sentencing Guidelines, was 138 months
to 192 months with a presumptive sentence of 161 months.1
At the sentencing hearing, defense counsel argued that the federal conviction should
count for one point instead o f two and that Smith’s criminal -history score should only be
six. The prosecutor informed the district court that she was not prepared to arg ue the
criminal-history score because Smith had not filed an ything challenging the criminal -
history score. Specifically, the prosecutor indicated that she had not seen the federal
“complaint or the allegations to be able to argue whether” the conviction shou ld count as
one or two criminal-history points.
The district court observed that it would need to continue the sentencing hearing to
allow the parties to litigate Smith’s criminal -history score. Because the conviction was a
federal conviction, the prosecutor said that it would take more time than normal to get
information about the conviction. In the midst of this discussion, Smith indicated that he
would prefer to “just be sentenc ed today t o the 138 [months].” The district court stated
that it would either “[go] forward today with the seven [points] and the 138 [month
sentence]” or give Smith “more time” to develop a proper record, and that by choosing to
be sentenced to 138 mo nths, Smith e ffectively waived “the ability to argue that [his]
criminal-history score should actually be six and not seven [points].” Smith agreed to

1 These figures contemplate an additional three months added to the ordinary guidelines
sentence because (1) Smith was assigned a custody -status point in his criminal -history
score and (2) Smith’s criminal-history score of seven exceeded the maximum score on the
sentencing grid. See Minn. Sent. Guidelines 2.B.2.c (2018).

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waive a calculation of his criminal-history score. The district court sentenced Smith to 138
months’ imprisonment.
Smith appeals, arguing that the district court erred by sentencing him according to
an incorrect criminal-history score.
D E C I S I O N
Smith argues that the district court abused its discretion by sentenc ing him with a
criminal-history score of seven. “A sentence based on an incorrect criminal history score
is an illegal sentence.” State v. Woods , 945 N.W.2d 414, 416 (Minn. App. 2020). “[A]
defendant may not waive review of his criminal history score calculation.” State v.
Maurstad, 733 N.W.2d 141, 147 (Minn. 2007). “When a defendant’s sentence is based on
an incorrect criminal-history score, his case must be remanded for resentencing.” Woods,
945 N.W.2d at 416 -17. “The district court’s determin ation of a defendant’s criminal -
history score will not be reversed absent an abuse of discretion.” State v. Maley , 714
N.W.2d 708, 711 (Minn. App. 2006).
Smith challenges the inclusion of two prior convictions in the calculation of his
criminal-history score. First, Smith argues that the d istrict cour t erroneously assigned
criminal-history points for three convictions that arose out of a single incide nt involving
multiple victims. Second, Smith argues that the district court erroneously assigned two
points for his federal assault convictio n. We address each challenged prior conviction in
turn.

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I. Assignment of points for a single course of conduct with multiple victims
Smith argues that the district court erroneously assigned criminal-history points for
three prior convictions that were part of a single incident. The state concedes that the
district court erro neously assigned criminal -history points for these three offenses. The
parties agree that Smith should have only been assigned criminal-history points for two of
the three offenses and that one point should be removed from his score for his conviction
for criminal vehicular operation. After our own review of the issue, we agree.
“When multiple offenses arising from a single course of conduct involving multiple
victims were sentenced, include in criminal history only the weights from the two offenses
at the highest severity levels.” Minn. Sent. Guidelines 2.B.1.d(2) (2018). The district court
assigned points for three offenses arising out of a single incident that occurred on
November 15, 2012. The two most serious offenses arising out of this incident are second-
degree manslaughter and criminal vehicular operation with negligence —under the
influence of alcohol. The district court assigned one and one half points for each of these
offenses. But the district court also assigned a criminal -history point for the criminal-
vehicular-operation conviction. Accepting the state’s concession that the three offenses
arose out of the same course of conduct and involved multiple victims, it was improper for
the district court to assign a criminal -history point for the criminal -vehicular-operation
conviction because it was the third and least serious offense that arose out of the November
15, 2012 incident.

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Because a sentence based on an incorrec t criminal -history score is an illegal
sentence, the district court abused its discretion by sentencing Smith with a criminal-history
score of seven.
II. Assignment of points for Smith’s federal assault conviction
Smith also challenges the inclusion of his federal assault conviction in his criminal-
history score. Convictions from jurisdictions other than Minnesota are co unted in an
offender’s criminal-history score. Minn. Sent. Guidelines 2.B.5 (2018). “The [district]
court must make the final determinati on as to whether and how a prior non -Minnesota
conviction should be counted in the criminal history score.” Minn. Sent. Guidelines
2.B.5.a.
The state must lay foundation for the district court to include a non -Minnesota
conviction in the defendant’s criminal-history score. Maley, 714 N.W.2d at 711. The state
has the burden at a sentencing hearing of establishing, by a fair preponderance of the
evidence, “that the prior conviction was valid, the defendant was the person involved, and
the crime would constitute a felony in Minnesota.” Id.
Smith argues that the state did not meet its burden of proving that his federal assault
conviction was valid because the only evidence in the record to establish the conviction are
the notations in the presentence investigation report ( PSI) and the guidelines worksheet.
The state maintains that the sentencing worksheet and the PSI, which identified the federal
charge and the 63-month sentence imposed, were sufficient to meet its burden of proof by
a fair preponderance of the evidence.

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The “appropriate standard” of proving a prior conviction is that established in Minn.
R. Evid. 1005:
The contents of an official record, or of a document authorized
to be recorded or filed and actually recorded or filed, including
data compilations in any form, if otherwise admissible, may be
proved by copy, certified as correct in accordance with rule 902
or testified to be correct by a witness who has compared it with
the original. If a copy which complies with the foregoing
cannot be obtained by the exercise of reasonable diligence,
then other evidence of the contents may be given.

Maley, 714 N.W.2d at 712 (quoting Minn. R. Evid. 1005).
In light of this standard, we conclude that the district court abused its discretion by
assigning points to Smith’s criminal -history score. The state did not provide a certified
copy of the conviction, did not present testimony of any witnesses, and made no argument
that a copy that complies with the rule “cannot be obtained by the exercise of reas onable
diligence.” Minn. R. Evid. 1005. In fact, the state was discussing a continuance of the
sentencing hearing to obtain the necessary records when Smith decided to forego a proper
criminal-history-score calculation. Because the record does not inclu de evidence of
Smith’s federal conviction that complies with rule 1005, we conclude that the district court
abused its discretion by assigning points to Smith’s criminal -history score in relation to
this conviction.
Smith also argues that the district co urt did not consider what the equivalent
Minnesota offense to the federal offense was, and therefore inappr opriately assigned two
criminal-history points to the federal offense. We agree.

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The weight of a prior non -Minnesota felony conviction “must be base d on the
severity level of the equivalent Minnesota felony offense.” Minn. Sent. Guidelines 2.B.5.c.
The equivalent Minnesota offense is “based on the elements of the prior non -Minnesota
offense. Minn. Sent. Guidelines 2.B.5.b. “[W]hile the main focus should be on the offense
definition, the sentencing court should also consider the nature of the offense and the
sentence received by the offender.” Hill v. State , 483 N.W.2d 57, 61 (Minn. 1992)
(quotation omitted).
Smith’s federal conviction was for assa ult resulting in “serious bodily injury” in
violation of 18 U.S.C. § 113(a)(6) ( 2002). “Serious bodily injury” means bodily injury
involving “a substantial risk of death,” “extreme physical pain,” “protracted and obvious
disfigurement,” or “protracted los s or impairment of the function of a bodily member,
organ, or mental faculty.” 18 U.S.C. § 1365(h)(3) (2002).
Minnesota law distinguishes between levels of assault using the terms “bodily
harm,” “substantial bodily harm” and “great bodily harm” to refer to escalating levels of
harm. See Minn. Stat. § 609.221, .223, .224 (2018) (first -degree assault, third -degree
assault, and fifth-degree assault). “Bodily harm” means “physical pain or injury, illness,
or any impairment of physi cal condition.” Minn. St at. § 609.02, subd. 7 (2018). Any
assault that results in bodily harm constitutes a fifth-degree assault. Minn. Stat. § 609.224,
subd. 1.
An assault that results in “substantial bodily harm” is a third-degree assault. Minn.
Stat. § 609.223, subd. 1. “Substantial bodily harm” means “bodily injury which involves
a temporary but substantial disfigurement, or which causes a temporary but substantial loss

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or impairment of the function of any bodily member or organ, or which causes a fracture
of any bodily member.” Minn. Stat. § 609.02, subd. 7a (2018).
An assault resulting in great bodily harm is a first -degree assault. Minn. Stat.
§ 609.221, subd. 1 . “Great bodily harm” means “bodily injury which creates a high
probability of death, or which causes seri ous permanent disfigurement, or which causes a
permanent or protracted loss or impairment of the function of any bodily member or organ
or other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2018). “‘Other serious bodily
harm’ is not defined by th e statute, and it should be taken in context of the other three
alternative definitions.” State v. Dye, 871 N.W.2d 916, 922 (Minn. App. 2015) (quotation
omitted). “To determine whether a victim’s injuries constitute ‘other serious bodily harm,’
courts must consider the totality of the victim’s injuries.” Id.
The federal definition of “serious bodily injury” does not clearly align with our
statutes’ definitions of “bodily harm,” “substantial bodily harm,” or “great bodily harm.”
Minnesota statutes addressing levels of bodily harm do not expressly contemplate the level
of pain an injury causes, and consequently, it is possible that an injury resulting in “extreme
physical pain” may constitute any of these levels of harm, depending on the facts and
circumstances of the incident. Thus, because there is no clear equivalent Minnesota offense
based on elements alone and because the district court did not explain why it assigned two
points to Smith’s criminal-history score based on the federal conviction, we conclude that
the district court abused its discr etion by assigning two criminal -history points in relation
to Smith’s federal conviction.

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We reverse and remand for resentencing because the district court abused its
discretion by sentencing Smith with a criminal-history score of seven. But because Smith
did not object to the district court’s calculation of his criminal-history score, the state must
be allowed to supplement the record with evidence supporting i ts position that Smith’s
federal conviction should be assigned two points . See State v. Outlaw, 748 N.W.2d 349,
355 (Minn. App. 2008) (remanding with instructions that the state be allowed to further
develop the sentencing record so that the district court can appropriately determine
defendant’s criminal-history score, where the defendant failed to object to the criminal -
history-score calculation at sentencing), review denied (Minn. July 15, 2008).
Reversed and remanded.