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This opinion is nonprecedential except as provided by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
A20-0717

State of Minnesota,
Respondent,

vs.

Alvin Perkins,
Appellant.

Filed April 5, 2021
Affirmed in part, reversed in part, and remanded
Kirk, Judge*
St. Louis County District Court
File No. 69DU-CR-19-178

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reilly, Judge; and Kirk, Judge.

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

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NONPRECEDENTIAL OPINION
KIRK, Judge
On direct appeal from his conviction fo r first-degree criminal sexual conduct,
appellant Alvin Perkins challenges his convi ction, arguing that respondent State of
Minnesota committed prosecutor ial misconduct duri ng closing argument. Appellant also
challenges his sentence, arguing that he is en titled to a shorter sentence based on changes
to the sentencing guidelines. Appellant as serts an additional argument in his pro se
supplemental brief. Because appellant may be entitled to a shorter sentence based on
changes to the sentencing guidelines, we affirm in part, reverse in part, and remand to the
district court for resentencing consistent with this opinion.
FACTS
One night in August 2013, C.N. went out drinking w ith her friend. C.N. does not
remember all of the details of what happened that night, but testified that she talked to
appellant and then went to his friend’s apartm ent. At the apartment, C.N. took seven to
eight pills that “put [her] to sleep.” C.N. te stified that she blacked out, and that she woke
up to appellant holding her legs and penetrating her rectum with his penis.
The day after the assault, C.N. underwent a sexual assault examination. C.N. had
bruising on her arms as well as early signs of bruising on the inside of her thighs. The nurse
recovered from C.N.’s body two pubic hairs that did not belong to C.N. Semen was found
in C.N.’s vagina, rectum, and around her perineal area.
In 2017, an investigator interviewed C.N. and used her descri ption of where the
assault took place to locate th e apartment and ultimately, appellant. A DNA sample was

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obtained from appellant. Based on the se men obtained from C.N.’s sexual assault
examination, appellant could not be excluded as a contributor to the two-person mixture
on the three swabs, while 99 .99% of the general popula tion could be excluded as
contributors to that mixture.
After trial, the jury found appellant guilty of bot h counts. The district court
convicted appellant of one count and senten ced him to a presumptive sentence of 306
months in prison.
DECISION
I. The prosecutor did not commit prosec utorial misconduct during closing
arguments.
Appellant argues that he is entitled to a new trial because the prosecutor committed
prejudicial misconduct that impacted his substa ntial rights. Appellant contends that the
prosecutor committed misconduct by encouraging the jury to punish him for exercising his
right to a trial and by inflaming the passions and prejudices of the jury. Appellant admits
that he did not object to any of the alleged misconduct at tr ial, but he nonetheless asserts
that the prosecutor’s unobjected-to misconduct constitutes plain error. We have thoroughly
reviewed the record and there is no support for appellant’s argument that the state
committed prosecutorial misconduct. State v. Cao , 788 N.W.2d 710, 715 (Minn. 2010)
(describing plain error).
II. Appellant is entitled to a reduced criminal-history score based on the changes
to the sentencing guidelines.
The district court sentenced appellant to a bottom-of-the-b ox sentence of 306
months in prison. This senten ce was based on appellant’s crim inal-history score of six,

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which included a custody-status point of one. Appellant requests resentencing, arguing that
he is entitled to the benefit of a recent revision to the Minn esota Sentencing Guidelines,
which would reduce the custody-status point to one-half point. A party may raise an issue
regarding a criminal-history score even if the party did not raise the issue with the district
court. See State v. Strobel, 932 N.W.2d 303, 305-06 (Minn. 2019).
Under the sentencing guidelines at the time of his offense, one custody-status point
was assigned if “[t]he offender was under . . . release pending sentencing.” Minn. Sent.
Guidelines 2.B.2.a.(1)(v) (2012). Appellant states that his custody-status point was
assigned under this provision be cause the offense at issue in this appeal occurred during
his sentencing following a 2014 attempted-sale-of-a-simulated-substance conviction.
Under the 2019 amended sentencing guidelines, an offender is assigned one-half of
a custody-status point if the offender was “r elease[d] pending sentencing” for “a felony
currently assigned a severity level ranking . . . [of] D1 or D2 on the Drug Offender Grid.”
See Minn. Sent. Guidelines 2.B.2.a.(3)(i) (Supp . 2019). Appellant claims that he should
receive the benefit of this change, reducin g his 306-mont h sentence to a 261-month
sentence overall, which is the bottom of the box for someone with a criminal-history score
of five.
Appellant argues that he is entitled to relief under the amelioration doctrine. Under
that doctrine, a defendant is entitled to the sentencing benefits of later amendments to the
criminal law—including the sentencing guidelines—that mitigate punishment, so long as
final judgment has not been reached. State v. Kirby, 899 N.W.2d 485, 489, 491-94 (Minn.
2017). The amelioration doctrine applies to crimes co mmitted before an amendment’s

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effective date if “(1) there is no statement by the Legislature that clearly establishes its
intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and
(3) final judgment has not been entere d when the amendment takes effect.” State v. Otto,
899 N.W.2d 501, 503 (Minn. 2017).1
The only dispute here is condition one: wh ether the legislature clearly stated its
intent to abrogate the amelioration doctrine in connection with the 2019 amendments, a
question we answered in State v. Robinette , 944 N.W.2d 242 (Minn. App. 2020), review
granted (Minn. June 30, 2020) (discussing whet her the amended sentencing guidelines
reduces a custody-status point for an offende r discharged from probation). We concluded
that there is no statement by the legislature cl early establishing its intent to abrogate the
amelioration doctrine and that the ameliora tion doctrine must apply in this context. Id. at
251.
We remand to the district court to use its discretion to resentence appellant anywhere
between 261 months and 306 months. Three hundred six months is actually the
presumptive middle-of-the-range sentence for an offender with a criminal-history score of
five points, but since the district court c hose to use the bottom of the box in its initial
sentence, we send this back to the district court to determine whether to sentence below
this now-presumptive sentence of 306 months.

1 Although the state does not address whether conditions two and three are met, the record
reflects that they are met here . The change to the sentenci ng guidelines would mitigate
appellant’s punishment by reducing his criminal -history score, and appellant’s judgment
was not final because his case was ongoing at the time of the amendment.

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III. Appellant’s pro se argument fails.
Appellant argues that the district court erroneously excluded a 2018 police report
that C.N. made of a physical and sexual a ssault against her by another person that was
investigated but not charged. We have considered appellant’s claim and determined it lacks
merit. A sexual assault report that is filed but never charged does not go to truthfulness
and, in any event, the district court is in the best position decide evidentiary matters. State
v. Ali , 855 N.W.2d 235, 249 (Minn. 2014) (“Ev identiary rulings rest within the sound
discretion of the district court, and we will not reverse an evidentiary ruling absent a clear
abuse of discretion.”). Appellant’s argument thus fails.
Affirmed in part, reversed in part, and remanded.