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This opinion is nonprecedential except as provided by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
A20-0928

State of Minnesota,
Respondent,

vs.

Moses Louis Hubert,
Appellant.

Filed June 7, 2021
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File No. 27-CR-19-8671

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Frisch, Pres iding Judge; Reilly, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his conviction for fi rst-degree assault, arguing that the
evidence was insufficient to sustain the jury’s guilty verdict, the district court erred in its
evidentiary rulings, and he is entitled to re sentencing because of the revised Minnesota

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Sentencing Guidelines. We affirm appellant’s conviction. But we remand to the district
court for resentencing.
FACTS
This appeal arises out of appellant Moses Louis Hubert’s conviction for first-degree
assault.1 In March 2019, appellant lived in an apartment building down the hall from S.W.
One evening, S.W. and his then-girlfriend D.O. were in S.W.’s apartment when appellant
knocked on the door. S.W. let appellant into the apartment. D.O. described appellant as
“loud” and “very aggressive,” and testified that he was carrying a firearm and a bottle of
liquor. Appellant’s presence in the apartment with a firearm scared D.O. S.W. placed
appellant’s firearm on the kitchen counter, and appellant and S.W. began speaking.
Appellant turned to D.O., sa id some “disrespectful thin gs” to her, and “smacked
[her] on [her] rear twice, skin to skin.” S.W. and appellant began struggling. During the
struggle, appellant hit D.O. twice on the left side of her face with a closed fist. D.O.
immediately felt pain in her head and felt dizzy. She also “saw stars” and noticed that her
“ears started ringing.” D.O. began “making a lot of noise” because she was in pain, and
her boyfriend, S.W., hit her on the back of her head and told her to be quiet. Appellant and
S.W. continued struggling. Appellant punched S.W. and bit him on the chest. Appellant
then grabbed the firearm off the kitchen counter and hit S.W. twice with the butt of the gun
above his eye. S.W. pushed appellant out of the apartment.

1 Appellant does not challenge his conviction for first-degree burglary.

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S.W. and D.O. called the police, who came to S.W.’s apartment. Police officers
saw that S.W. was “covered in blood,” had bloo d over his left eye, and had a gash on the
palm of his hand. They also noticed that D.O. was beginning to develop bruises on the
side of her face. D.O. told officers that appellant was responsible for their injuries. Officers
noticed “signs of struggle” in the apartment, including a “blood trail” on the floor, blood
on the bedsheets, and blood on the kitchen countertops and on the kitchen floor. Officers
found a magazine clip for a rifle and “ammunition scattered throughout the floor and then
inside the magazine.”
The state charged appellant by amended comp laint with first-degree assault, great
bodily harm against D.O.; s econd-degree assault, dangerous weapon against S.W.; first-
degree burglary against S.W.; and two counts of threats of violence against S.W. and D.O.
Following a jury trial, the jury found appellant guilty of first-degree assault against D.O.
and first-degree burglary agains t S.W. The jury acquitted appellant of the remaining
charges. The district court sentenced appe llant to 94 months in prison for the assault
conviction and 58 months in prison for the burglary conviction. This appeal follows.
DECISION
I. Sufficient evidence supports appellant’s first-degree-assault conviction.
Appellant challenges the sufficiency of the evidence for his first-degree-assault
conviction. We review a sufficiency-of-the-evidence challenge by carefully examining the
record to determine whether the evidence, when viewed in the light most favorable to the
conviction, was sufficient to support the conviction. State v. Ortega, 813 N.W.2d 86, 100
(Minn. 2012). We assume that “the jury believed the state’s witnesses and disbelieved any

4
evidence to the contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation
omitted). We will not disturb a guilty verdict “if the jury, ac ting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the charged offense.” Ortega, 813
N.W.2d at 100. We review de novo whether an appellant’s conduct satisfies the statutory
definition of an offense. State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).
The jury found appellant guilty of first-degree assault under Minn. Stat. § 609.221,
subd. 1 (2018). Under this statute, “[w]hoeve r assaults another and inflicts great bodily
harm” is guilty of first-degree assault. Minn. Stat. § 609.221, subd. 1. “Great bodily harm”
is “bodily injury [1] which creates a high probability of death, or [2] which causes serious
permanent disfigurement, or [3] which causes a permanent or protracted loss or impairment
of the function of any bodily member or organ, or [4] [which causes] other serious bodily
harm.” Minn. Stat. § 609.02, subd. 8 (2018); see also State v. Moore , 699 N.W.2d 733,
738 (Minn. 2005) (adding numerals to identify four alternative definitions).
Appellant argues that respondent failed to prove that D.O. suffered great bodily
harm. An injury that causes “protracted loss or impairment of the function of any bodily
member or organ” constitutes great bodily harm. Minn. Stat. § 609.02, subd. 8. While the
statute does not specifically define the term “protracted,” we understand it to mean drawn
out, prolonged, or lengthened in time. The American Heritage Dictionary 1417-18 (5th
ed. 2011). Whether an injury constitutes a particular degree of bodily harm is a question
for the jury. Moore, 699 N.W.2d at 737 (Minn. 2005) (noting that whether an injury
constitutes great bodily harm is a jury question).

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Here, the record shows that appellant punched D.O. twice on the left side of her face
with a closed fist. D.O. immediately develope d pain in her head a nd felt dizzy. Several
days later, D.O. continued to have headaches and pain, and felt her jaw “starting to lock.”
D.O. had trouble opening her mouth and was in “excruciating pain.” D.O. could not close
her jaw properly to eat and noticed “blood and pus” coming out of her mouth. D.O. made
several visits to the emergency room and to her primary care doctor.
Respondent called D.O.’s doctors at trial to testify about her injuries. Dr. Marc
Salita was D.O.’s primary-care doctor and treated her from April to October 2019 for her
jaw pain. Dr. Salita testified that D.O. had trouble opening her jaw and “just couldn’t open
it up all the way due to pain.” D.O.’s condi tion worsened and she required surgery. Dr.
Luke McMahon, an oral and maxillofacial su rgeon, testified about this surgery. Dr.
McMahon stated that a CT scan revealed that D.O. had “a la rge area of fluid collection,
which is consistent with abscess or infection, and that’s typically a surgical disease that
requires draining or removing the abscess.” This type of infection limits a patient’s “ability
to either speak or eat” and can spread to the brain if left untreated. Dr. McMahon noticed
that D.O. had swelling on the left side of her face and drainage coming out of her mouth.
Dr. McMahon performed the surgery to drain th e fluid causing D.O.’s infection. D.O.
remained in the intensive-care unit of the hospital for two weeks following the surgery. In
response to a question from counsel, Dr. McMahon agreed that “blunt force trauma” could
have caused D.O.’s injuries, and that her inability to open her mouth was “consistent with”
having been struck with a closed fist on the left side of her face.

6
D.O. continued to visit Dr. Salita and Dr. McMahon. By October, which was nearly
eight months after the assault, D.O. was s till reporting that she had muscle spasms and
discomfort along the left side of her face. Counsel asked Dr. McMahon if he had an opinion
about how long D.O.’s jaw issue would last. The doctor resp onded, “At this point, being
that the patient, from my last exam, was six months out fro m surgery, I don’t know that
there will be a significant improvement in the jaw range of motion, based on experience.”
Dr. McMahon noted that together with the ja w issue, D.O. might have “complications
related to muscular discomfort or muscle spasm.”
D.O. testified that she continues to have lasting effects from her injury. D.O. stated
she “can’t talk for long periods of time without taking a muscle relaxer,” cannot open her
mouth as much as she used to, has headaches “[a]t least four times a week,” and experiences
“[t]remors on [her] face” and “spasms.” D.O. did not experience any of these physical
effects before the assault. Based on the reco rd, a jury could reasonably infer that D.O.
suffered great bodily harm because her injury caused a protracted loss or impairment of the
function of her mouth. See State v. Russell , 503 N.W.2d 110, 114 (Minn. 1993) (“In
making its factual determination, the [fa ct-finder] was entitled to make reasonable
inferences from the evidence, including inferences based on their experiences or common
sense.”) (quotation omitted).
Appellant argues that even if D.O. suffered great bodily harm, respondent failed to
prove that appellant was the one who inflicted it. This court will not disturb a guilty verdict
if the jury could “reasonably conclude that the defendant was guilty of the charged
offense.” Ortega, 813 N.W.2d at 100. While appellant argues that the testimony could

7
have been interpreted in an alternate way, it is not within the scope of this court’s review
to reweigh the evidence and draw different conclusions. See State v. Robinson , 536
N.W.2d 1, 2 (Minn. 1995) (stating that appellate courts do not reweigh evidence). Given
the evidence presented, which we view in the light most favorable to the guilty verdict, we
conclude that sufficient evidence supports appellant’s first-degree-assault conviction.
II. The district court did not abuse it s discretion by limiting alternative-
perpetrator evidence.
Appellant argues that the district cour t improperly excluded evidence suggesting
that an alternative perpetrator caused D.O.’s injuries. We review a district court’s decision
to exclude alternative-perpetrator evidence for an abuse of discretion. State v. Woodard,
942 N.W.2d 137, 141 (Minn. 2020). If a reviewing court determines that the district court
improperly excluded evidence, “the conviction will still sta nd if the error was harmless
beyond a reasonable doubt.” State v. Sailee, 792 N.W.2d 90, 93 (Minn. App. 2010), review
denied (Minn. March 15, 2011). “The error is harmless if the jury’s verdict is surely
unattributable to the error.” Id.
A criminal defendant has a due-process right under the United States and Minnesota
Constitutions to be treated fairly and to present a complete defense. See U.S. Const. amend.
XIV, § 1; Minn. Const. art. I, § 7; see also State v. Richards, 495 N.W.2d 187, 191 (Minn.
1992). This includes the right “to present evidence showing that an alternative perpetrator
committed the crime with which the defendant is charged.” Sailee, 792 N.W.2d at 93
(quotation omitted). A criminal defendant may present evidence of other crimes, wrongs,
or bad acts committed by the alleged alternative perpetrator to “cast reasonable doubt upon

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the identification of the defendant as the person who committed the charged crime.” State
v. Jones , 678 N.W.2d 1, 16-17 (Minn. 2004). This evidence is often called “reverse-
Spreigl” evidence. Id. at 16; see also State v. Spreigl, 139 N.W.2d 167 (Minn. 1965). Such
evidence “is admissible if it has an inherent tendency to connect the alternative party with
the commission of the crime.” Jones, 678 N.W.2d at 16 (citations omitted). But the district
court may limit such testimony to “ensure that the defendant does not confuse the jury with
misleading inferences.” Sailee, 792 N.W.2d at 93.
Appellant sought to assert an alternative-perpetrator defense. Appellant alleged that
S.W. caused D.O.’s injuries in a domestic-violence attack. Appellant sought to introduce
evidence of two orders for protection in 201 3 and 2014; no-contact orders; and domestic
assaults from 2012 to 2016; the incident in March 2019, when S.W. hit D.O. on the back
of her head to stop her from screaming after a ppellant punched her; an incident in June
2019, when S.W. slapped D.O. in the face; and an incident in August 2019, when S.W.
violated a domestic abuse no-contact order and hit D.O. in the hip with his car. The district
court partially granted appellant’s motion and permitted appellant to present evidence that
S.W. hit D.O. on the back of the head in March 2019, and slap ped her in the face in June
2019. That said, the district court prohibited the defense from presenting the rest of the
evidence from 2012 to 2016, or the August 2019 violation.
A defendant seeking to introduce reverse- Spreigl evidence must first connect the
alternative perpetrator to the actual commission of the crime. Jones, 678 N.W.2d at 16.
The proponent must then estab lish: “(1) clear and convinci ng evidence that the alleged
alternative perpetrator par ticipated in the reverse- Spreigl incident; (2) that the reverse-

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Spreigl incident is relevant and material to de fendant’s case; and (3) that the probative
value of the evidence outweighs its potential for unfair prejudice.” Id. at 16-17. “Failure
to satisfy any part of this test results in the evidence being inadmissible.” State v. Gutierrez,
667 N.W.2d 426, 437 (Minn. 2003).
Here, the district court did not abuse its discretion by limiting the alternative-
perpetrator evidence. The evidence must be admissible under the rules of evidence. State
v. Nissalke, 801 N.W.2d 82, 102 (Minn. 2011). The district court noted that the incidents
between 2012 and 2016 were irrelevant because they were “remote in time” and were not
similar to the charged crime. The district court also determined that the August 2019
incident was “not the same modus operandi at all” because it involved S.W. hitting D.O.’s
hip with his car. And the district court determined that evidence of S.W.’s domestic-abuse
crimes against D.O. were unduly prejudicial and that the probative value did not outweigh
the prejudicial effect. “[E]vidence of other crimes, wrongs, or acts separate from the crime
charged is not admissible to ‘p rove the character of a person in order to show action in
conformity therewith.’” State v. Swaney , 787 N.W.2d 541, 557 (Minn. 2010) (quoting
Rule 404(b)). The district court noted that evidence of domestic abuse between 2012 and
2016 was “impermissib le character evidence” and “the fa ct that [S.W.] has [hit D.O.]
before is propensity evidence” and was therefore inadmissib le. Because the proffered
evidence was inadmissible under the rules of evidence and the prejudicial effect exceeded
any probative value, the district court did not deny appellant a meaningful right to present
a complete defense by excluding it.

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And the record shows that the district c ourt did permit the defense to pursue the
alternative-perpetrator theory. For example, D.O. testifie d that after appellant struck her
on the face, she began “making a lot of noise.” D.O. stated that S.W. then leaned over and
hit her on the back of her head and told her to be quiet. D.O. testified that S.W. also
“smacked” her in the face in June 2019 duri ng an argument, when her face was “still
tender” from surgery. Even with this evidence, the jury determined that appellant inflicted
great bodily harm on D.O. Based on the ev idence and on the district court’s findings, we
determine that the district court did not abuse its discretion in excluding the reverse-Spreigl
evidence.
III. Appellant is entitled to resentencing.
Appellant argues that he is entitled to resentencing under the revised Minnesota
Sentencing Guidelines. We review the district court’s calculation of a defendant’s
criminal-history score for an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561
(Minn. App. 2002), review denied (Minn. Aug. 20, 2002). But “[i]nterpreting the
Minnesota Sentencing Guidelines presents a question of law, which we review de novo.”
State v. Scovel , 916 N.W.2d 550, 554 (Minn. 2018) . When a defend ant’s incorrect
criminal-history score increases the presumptive sentencing range, we remand the case for
resentencing under the correct criminal-history score. State v. Provost, 901 N.W.2d 199,
202 (Minn. App. 2017).
“An offender’s criminal history score is th e sum of points from eligible [] prior
felonies[,] custody status at the time of the offense[,] prior misdemeanors and gross
misdemeanors[,] and prior juvenile adjudications .” Minn. Sent. Guidelines 2.B. “If the

11
sum of the weights results in a partial point, the point value must be rounded down to the
nearest whole number.” See Minn. Sent. Guidelines 2.B.1. i. The sentencing guidelines
were revised in 2019. “[T]he language concerning custody status points was modified to
indicate that half a point, and not one point, should be assigned to an offender who commits
an offense while on probation.” State v. Epps, 949 N.W.2d 474, 488 (Minn. App. 2020),
review granted (Minn. Nov. 25, 2020); see also Minn. Sent. Guidelin es 2.B.2.a (Supp.
2019). “[T]his change to the sent encing guidelines is retroactive.” Epps, 949 N.W.2d at
488 (citing State v. Robinette , 944 N.W.2d 242, 252 (Minn. App. 2020), review granted
(Minn. June 30, 2020)); State v. Kirby, 899 N.W.2d 485, 489-90 (Minn. 2017) (noting that
amelioration doctrine applies to modifications to guidelines).
We agree that this case must be remande d for resentencing. The district court
sentenced appellant in 2019, for offenses which occurred in March 2019. The district court
calculated the sentence using the 2017 sentencing guidelines. The district court sentenced
appellant to 58 months in prison on the burg lary charge and 94 mont hs in prison on the
assault charge. These sentences were within the presumptive sentencing range for an
individual with appellant’s criminal history sc ore. Appellant received one custody-status
point because he was on proba tion for a gross misdemeanor ob struction-of-legal-process
conviction from September 2018 when he committed the offenses in this case. Under the
revised sentencing guidelines, however, appe llant would receive only one-half custody
status point for his gross-misdemeanor charge , rather than a full point. Appellant is

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therefore entitled to have his sentence recalculat ed using a correct criminal history score.
We therefore remand for resentencing under the 2019 Minnesota Sentencing Guidelines.2
IV. Appellant has no right to relief on his pro se claims.
In a pro se supplemental brief, appellant substantially repeats the arguments of his
principal brief. To the extent that appellant attempts to raise new issues, we find those
issues forfeited because they are conclusory and unsupported by legal argument. See State
v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (declining to addr ess arguments raised in
supplemental pro se brief that were “unsupported by any facts in the record” and contained
“no citation to any relevant legal authority”).
Affirmed in part, reversed in part, and remanded.

2 Respondent urges us to defer making a decision until the Minnesota Supreme Court issues
an opinion in Robinette, which is currently on appeal. We decline to do so. This court will
follow published opinions of this court unless the supreme court announces a different rule
of law. See State v. Chauvin, 955 N.W.2d 684, 694-695 (Minn. App. 2021) (recognizing
“that a precedential opinion of this court ha s immediate precedential effect, which is not
limited by the availability or grant of further appellate review”), review denied (Minn. Mar.
10, 2021).