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This opinion is nonprecedential except as provided by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
A20-0666

State of Minnesota,
Respondent,

vs.

Tim Davin Dortch,
Appellant.

Filed May 10, 2021
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Ramsey County District Court
File No. 62-CR-17-13

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant Coun ty Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Wo rke, Judge; and
Reyes, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After stabbing a woman six times at th e Dorothy Day Cente r, appellant Timothy
Dortch was charged with atte mpted second-degree murder, first-degree assault, and
second-degree assault. The district court found Dortch guilty of each charge. We reversed

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due to structural error, concluding that Dortch’s then-counsel violated his Sixth
Amendment right to autonomy, and remanded fo r a new trial. Dortch, after being found
guilty of the same charges following a second trial, now argues that the retrial violated his
double-jeopardy rights. He also asserts that his multiple convictions were improper, and
submitted a supplemental pro se brief alleging se veral other violations of law. Because a
retrial following a remand due to trial error does not violate double jeopardy, and Dortch’s
host of allegations in his supp lemental pro se brief are gene rally mere assertions without
citation to legal authority, or otherwise lack merit, we affirm in part. But because
second-degree assault is a lesser-included offense of first-degree assault, we reverse in part
and remand with instructions to vacate the second-degree-assault conviction.
FACTS
A.H., who had an extensive career as a se curity guard, lived at the Dorothy Day
Center in Saint Paul. On December 30, 2016, after choosing her sleeping mat, A.H. went
outside to vape. While outsi de, A.H. saw a woman through the window that she did not
know looking through her belo ngings. A.H. went back in side and, after seeing her
backpack unzipped and items tampered with, went to the bathroom to confront the woman.
Dortch, who was also a stranger to A.H. but a companion to the woman A.H. was arguing
with, stood near the bathroom door. After an argument with the wo man, A.H. exited the
bathroom and began a discussion with another woman.
Suddenly, Dortch lunged at A.H. from behind and struck her forehead with a knife,
sending her to the ground. Dortch stabbed her three more times in her shoulder and torso
and then, as she tried to get away, stabbed her again. A.H. later testified that after the

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assault Dortch said, “I ride fo r my baby mama,” that he knew “how to stab a b-tch,” and
that he guaranteed that A.H. would “not make it through the night.” A Dorothy Day Center
employee, who was tending to A.H. after secu rity guards pulled Dortch away, overheard
Dortch say to A.H. “every time I see you, I will stab you.” Separate workers described
A.H.’s heavy bleeding, including one who c ould see exposed bone on A.H.’s forehead
wound. After law enforcement arrived on the scene, Dortch continued to threaten A.H.,
saying “you’re not going to make it to the hospital.” While alone in a squad car, Dortch
laughed spontaneously and unc ontrollably. He spoke alou d to himself about how he
stabbed A.H. “over and over.”
Meanwhile, an ambulance took A.H. to the hospital. Sh e had six stab wounds to
her forehead, right shoulder, right armpit, stomac h, and in her right fl ank. Five of the
wounds were superficial, but the sixth wound was a life-threatening injury to her liver. She
later recovered.
The state charged Dortch with: attempted second-d egree murder, first-degree
assault, and second-degree assault.1 After a bench trial, the court found Dortch guilty of
each charge. Dortch appealed, and we reversed and remanded, concluding that a structural
error required a new trial. 2 State v. Dortch , No. A18-1242 (Minn. App. Apr. 23, 2019)
(order op.).

1 Minn. Stat. §§ 609.17, subd. 1, .19, subd. 1, .221, subd. 1, .222, subd. 2 (2016). The
district court dismissed an attempted first-degree murder charge for lack of probable cause.
Minn. Stat. §§ 609.17, subd. 1, .185(a) (2016).
2 Specifically, we concluded th at Dortch’s attorney violated Dortch’s Sixth Amendment
right to autonomy by concedin g, without Dortch’s consent, that Dortch did not act in
self-defense.

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On remand, Dortch argued that a sec ond trial would violate the constitutional
prohibition against double jeopardy. 3 The district court declin ed to rule on Dortch’s
double-jeopardy claim, stating that the issue could be decided on appeal. The district court,
after a bench trial, again found Dortch guilty of all three counts. At sentencing, the district
court entered convictions for all three count s but only sentenced Do rtch to 193 months’
imprisonment for attempted second-degree murder.
Dortch appeals.
DECISION
On appeal, Dortch argues that (1) the second trial on remand violated the
constitutional prohibition agains t double jeopardy and (2) the district court erred by
convicting him of both first-degree assau lt and second-degree assault. In a pro se
supplemental brief, Dortch raises a multitude of other issues. We address each challenge
in turn.
I. Holding a trial after re mand for structural error did not violate Dortch’s
double-jeopardy rights.

First, Dortch contends that retrying hi m for these offenses violates the Double
Jeopardy Clause of the United States Constitu tion. We review the application of the
constitutional protection against double jeopardy de novo. State v. Gouleed ,
720 N.W.2d 794, 800 (Minn. 2006).4

3 Dortch’s counsel for the second trial disa greed that there was a violation of double
jeopardy, but documented Dortch’s belief that there was for the record and possible appeal.
4 The district court chose not to address Dort ch’s double-jeopardy claim, and instead said
it could be heard on appeal. We observe that district courts should rule on the issues before
them.

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The Fifth Amendment of th e United States Constitution provides that no person
shall be “subject for the same offense to be twice put in jeopardy of life or limb.” The
Minnesota Constitution similarly provides that “no person shall be put twice in jeopardy
of punishment for the same offense.” Minn. Const. art. I, § 7. Each constitutional provision
“protects against multiple punishments fo r the same offense, and against a second
prosecution after an ac quittal or conviction.” State v. Jeffries , 806 N.W.2d 56, 60-61
(Minn. 2011).
If a defendant’s conviction is reversed based on insufficient evidence, then the
Double Jeopardy Clause 5 clearly precludes further prosecution. Burks v. United States ,
437 U.S. 1, 18, 98 S. Ct. 2141 , 2150-51 (1978). Bu t it is also well established that if a
conviction is reversed based on trial error, the “defendant is entitled to a new trial, not to
outright reversal of his conviction.” State v. Harris , 533 N.W.2d 35, 36 (Minn. 1995).
Stated differently, the Double Jeopardy Clause does not bar retrial when a case is heard on
remand following struct ural trial error. Id.; see also Burks, 437 U.S. at 15, 98 S. Ct. at
2149 (“In short, reversal fo r trial error, as distinguished from evidentiary insufficiency,
does not constitute a decision to the effect that the government has failed to prove its case.
As such, it implies nothing with respect to the guilt or innocence of the defendant.”).
Here, Dortch faced retrial because we dete rmined that the defe nse attorney in the
first trial committed structural error when he disagreed with Dortch’s claim of self-defense.
Structural errors—those defects that affect the framework within a trial and “call[] into

5 For ease of reference, we refer to both clauses collectively as “the Double Jeopardy
Clause.”

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question the reliability and fairness of th e trial”—require automatic reversal.
State v. Dalbec, 800 N.W.2d 624, 627 (Minn. 2011). We reversed in the first appeal based
on a trial error—not based on the insufficiency of the evidence. Dortch’s trial after remand
does not implicate one purpose of the prohibition against double jeopardy—his expectation
of finality—as it is consistent with the remedy he sought in his first appeal. State v. Humes,
581 N.W.2d 317, 321 (Minn. 1998).
Because we remanded in the first appeal due to a trial error, the retrial did not violate
the prohibition against double jeopardy.
II. Imposing convictions fo r both first-degree and se cond-degree assault violate
Minnesota Statutes section 609.04.

Next, Dortch argues that we should reverse and remand because his multiple
convictions violate Minnesota Statut es section 609.04 (2016). His conviction of
second-degree assault, Dortch asserts, should be vacated as a lesser-included offense. The
state agrees that the second-degree-assault conviction should be vacated.
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. An offense is an included offense if
it is a “lesser degree of the same crime.” Id.; see also State v. Hackler, 532 N.W.2d 559,
559 (Minn. 1995) (“If the lesser offense is a lesser degree of the same crime . . . then it is
an ‘included offense’ under s ection 609.04.”). We review de novo a district court’s
application of section 609.04. State v. Degroot, 946 N.W.2d 354, 364 (Minn. 2020).
Here, the district court convicted Dort ch of both second-degree assault and
first-degree assault. Second-d egree assault is a lesser degree of first-degree assault. See

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Hackler, 532 N.W.2d at 559. Because it is a lesser-included offense, the district court erred
by entering a conviction for second-degree assault.
We reverse Dortch’s conviction of second-degree assault and remand for correction
of the warrant of commitment. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
III. Pro Se Supplemental Brief
Finally, Dortch raises a multitude of issues in a supplemental pro se brief. We
recognize a duty to accommodate pro se litig ants, so long as no prejudice results.
State v. Schloegl, 915 N.W.2d 14, 24 (Minn. App. 2018). But we have repeatedly
emphasized that pro se litigants are “generally held to the same standards as attorneys and
must comply with court rules.” Fitzgerald v. Fitzgerald , 629 N.W.2d 115, 119 (Minn.
App. 2001).
Because Dortch either cites no legal authority in support or otherwise inadequately
briefed the majority of his argum ents, those arguments are waived. 6 State v. Krosch ,
642 N.W.2d 713, 719 (Minn. 2002). There are four remaining issues that, while they also
largely do not contain citations or are unsupported by facts in the record, rise above the
level of a mere assertion and warrant review . Those four issues are Dortch’s claims

6 The listed assertions that do not rise above the level of an argumentative assertion
include: (1) violation of Minnesota Rules of Criminal Procedure 17.05; (2) violation of
Minnesota Rules of Criminal Procedure 17.06; (3) violation of “laws of expiditaions [sic]
in time limitation and proper authority” when transporting; (4) violation of collateral
estoppel; (5) violation of Minnesota Rules of Criminal Procedur e 11.09 and 6.1; (6)
violation of “expiration to charge an o ffense” under Minnesota Rules of Criminal
Procedure 1.0 to 37.02; (7) privileged communications adm itted at trial; (8) ineffective
assistance of counsel; and (9) a violation of the right to a public trial.

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of: (1) a violation of his right to a speedy trial; (2) a violation of his Miranda rights; (3) an
illegal sentence; and (4) a lack of consent to a retrial.
Speedy Trial
Dortch argues that his speedy-trial rights were violated. But the argument centers
on whether a delay in starting his first trial violated his right to a speedy trial. On remand
after his first appeal, Dortch’s second trial began only 48 days after Dortch demanded a
speedy trial. As a result, his speedy-trial claim lacks merit. See State v. Friberg ,
435 N.W.2d 509, 512 (Minn. 1989) (stating that while there is no arbitrary time limit for
speedy trials, “delays greater than 60 days af ter a demand for speedy trial has been made
are presumptively prejudicial”).
Violation of Miranda Rights
Dortch claims that his Miranda rights were violated when law enforcement
transported him to Ramsey Co unty from jail for retrial, b ecause he was not read his
Miranda rights. But he does not point to a sp ecific time when he was under custodial
interrogation or otherwise had evidence used against him at trial when he was not
Mirandized. See State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998) (“Statements made
by a suspect during custodial interrogation are generally inadmissible unless the suspect is
first given a [Miranda] warning.”). Accordingly, this claim lacks merit.
Illegal Sentence
Dortch alleges that his sentence was improper because the district court imposed an
illegal sentence with an unsupported upward departure.

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This court may correct an illegal sentence at any time. Minn. R. Crim. P. 27.03,
subd. 9. We review de novo the interpretation of the Minn esota Sentencing Guidelines.
State v. Rouland, 685 N.W.2d 706, 708 (Minn. App. 2004), review denied (Minn. Nov. 23,
2004).
Upon our review of the record, it appears that Dortch is mistaken about this claim.
Because Dortch was convicted of attemp ted second-degree murder, the Minnesota
Sentencing Guidelines instruct the district court to apply an attempt-sentencing modifier.
Minn. Sent. Guidelines 2.G.2 (2016). This modifier halves the du ration “found in the
appropriate cell on the applicable Gr id for the underlying offense.” Id. Second-degree
intentional murder is a severity level 11 offense with a presumptive sentence of 386 months
for a defendant with four crim inal-history points. Minn. Sent. Guidelines 4.A (2016).
When the attempt modifier is applied, the presumptive se ntence becomes 193 months—
the sentence length that the district court impos ed. In sum, the district court imposed the
presumptive sentence—not an aggravated departure—assumi ng that Dortch had four
criminal-history points, a calculation of which he does not appear to challenge.
Consent to Retrial
Finally, Dortch argues that he did not consen t to having a retrial and did not file a
motion for a retrial, but instead requested acqu ittal. Similar to his other claims, Dortch
does not cite to any legal authority to explain how the district court or this court erred. He
also makes several statements that are not supported by facts in the record. If an argument
contains no citation to legal authority, it is waived. State v. Taylor , 869 N.W.2d 1, 22
(Minn. 2015).

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In sum, the supplemental brief is largely lacking in citation to legal authority, factual
support, and arguments that ri se above the level of mere assertions. After a thorough
review of the record, we conclude these claims are all waived or lack merit.
Ultimately, we conclude that the retrial fo llowing a reversal due to structural error
did not violate Dortch’s double-jeopardy rights. And because the allegations in Dortch’s
supplemental pro se brief do not rise above a le vel of assertion or cite to legal authority,
we affirm in part. But, because second-degr ee assault is a lesser-included offense of
first-degree assault, we reverse in part and remand to the district court to vacate the
second-degree conviction.
Affirmed in part, reversed in part, and remanded.