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This opinion is nonprecedential except as provided by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
A20-1220

State of Minnesota,
Respondent,

vs.

John Arlo Bowen Omaha,
Appellant.

Filed May 24, 2021
Affirmed
Reyes, Judge

Beltrami County District Court
File No. 04-CR-19-2310

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

David Hanson, Beltrami County Attorney, Ashley A. Nelson, Assistant County Attorney,
Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, C hief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this direct appeal from his judgment of conviction of and sentence for conspiracy
to commit assault in the first degree , appellant argues that (1) he received ineffective
assistance of counsel because his attorney conceded all elements of the offense without his
2
consent and (2) the district court abused its discretion by imposing an upward durational
departure based on facts unrelated to the offense of conviction. We affirm.
FACTS
In the early morning of June 10, 2018, law-enforcement officers responded to a
report of a person shot at the Pine Ridge Apartments in Bemidji, Beltrami County ,
Minnesota. Officers found R.T., after he was shot multiple times while lying in his recliner
in his apartment. They observed that the perpetrator fired numerous shots from the hallway
into R.T.’s apartment and from the lawn into R.T.’s and another apartment. Multiple
people, including a three-year-old child, were present in the building. R.T. was airlifted to
a hospital in critical condition, but ultimately survived his injuries.
In August 2019, after extensive investigation, r espondent State of Minnesota
charged appellant John Arlo Bowen Omaha with one count of conspiracy to commit assault
in the first degree under Minn. Stat. § 609.175, subd. 2 (2018), with reference to Minn.
Stat. § 609.221, subd. 1 (2018). The state filed an amended Blakely motion1 asserting as
grounds for an aggravated sentence that (1) appellant’s conduct could have injured persons
other than the intended victim and (2) appellant used a firearm in committing the offense.
At a contested omnibus hearing , defense counsel stated “[i]deally we would be
entering a [guilty] plea” but expressed reluctance due to the nature of the evidence and the
effect of the crime on the community. The parties therefore agreed to proceed with a
stipulated-evidence trial under Minn. R. Crim. P. 26.01, subd. 3. Because of the potentially

1 Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004) (establishing notice
requirements for prosecutor to seek aggravated sentence).
3
voluminous evidence, the district court asked both parties to prepare proposed orders as
closing arguments. Both parties hesitated over submitting closing arguments in that form.
The district court agreed to discuss the issue further at a later hearing.
In December 2019 , t he dis trict court held the stipulated -evidence trial , at which
appellant waived his right to a jury trial on the issues of guilt and the existence of facts to
support an aggravated sentence. The district court again asked the parties if they planned
to submit written closing arguments. The state confirmed that it would submit a narrative-
form written argument. Defense counsel said she discussed submitting a proposed order
with appellant and he agreed to do so. The parties also waived the seven-day timeline for
the district court’s d ecision on the stipulated eviden ce. The parties then submitted their
written closing arguments.
In February 2020, t he district court issued an order , finding in part that “[defense
counsel] seems to have waived elements in her closing statement. [Appellant] did not
waive these elements on the record.” At another hearing in March 2020, defense counsel
asked ap pellant questions on the record, showing that he agreed to her written closing
argument and that they had discussed a concession strategy.
The district court then issued findings of fact , conclusions of law, and an order
finding appellant guilty of conspiracy to commit first-degree assault and finding that facts
existed supporting the aggravating factors. At sentencing, defense counsel argued that both
aggravating factors related to the uncharged assault, rather than the charged conspiracy-to-
commit-assault-in-the-first-degree, and that the district court therefore could not rely on
those factors. The district court rejected that argument and found that the evidence
4
supported both aggravating factors . It convicted appellant and sentenced him to 120
months in prison, representing an upward durational departure.2 This appeal follows.
DECISION
I. Defense counsel’s concession of guilt does not constitute ineffective assistance
of counsel because appellant acquiesced to the concession.

Appellant argues that h e received ineffective assistance of counsel because h is
attorney conceded all three elements of the offense without his consent. We disagree.
“To succeed on an ineffective assistance of counsel claim, a defendant must show
that (1) ‘his attorney’ s performance fell below an object ive standard of reasonableness,’
and (2) ‘a reasonable probability exists that the outcome would have been different, but for
counsel’s errors.’” State v. Luby , 904 N.W.2d 453, 457 (Minn. 2017) (quoting Gail v.
State, 732 N.W.2d 243, 248 (Minn. 2007) ). But “[w]hen defense counsel concedes the
defendant’s guilt without consent, ‘ counsel’s performance is defic ient and prej udice is
presumed.’” Id. (quoting State v. Prtine, 784 N.W.2d 303, 317-18 (Minn. 2010) (Prtine I)).
In determining whether counsel impermissibly conceded guilt, we apply a two -step
analysis. First, we ask “whether defense counsel made a concession of guilt.” Id. Second,
we ask whether the defendant “acquiesced in that concession.” Id. (quoting Prtine I, 784

2 The presumptive sentence for conspiracy is one -half of the appropriate sentence for the
underlying offense. Minn. Sent. Guidelines 2.G.2 (Supp. 2017). Appellant’s presumptive
sentence, based on his criminal-history score and the severity level of the offense, was 67
months, so that a double upward departure wo uld be 134 months. But the district court
capped appellant’s sentence at 120 months because of the statutory maximum. Minn. Stat.
§ 609.221, subd. 1 (capping first-degree-assault sentence at 20 years).
5
N.W.2d at 318). We review both inquiries de novo. Id. at 457. But we review the district
court’s findings of fact for clear error. Prtine I, 784 N.W.2d at 312.
A. Defense counsel conceded all three elements of conspiracy.
Appellant argues that defense counsel conceded all three elements of conspiracy.
We agree.
A concession of guilt may be express or implied . Luby, 904 N.W.2d at 457. In
assessing whether counsel implied ly conceded guilt, we consider counsel’s challenged
statements in the context of the whole trial. Dukes v. State, 660 N.W.2d 804, 813 (Minn.
2003). Counsel’s statements constitute an implied concession of guilt only when “a
reasonable person viewing the totality of the circumstances would conc lude that counsel
conceded the defendants [sic] guilt.” Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004)
(quotation omitted).
The elements of conspiracy to commit assault in the first degree are the following:
(1) defendant conspired with another to commit assault in the first degree; (2) defendant or
another party to the conspiracy committed an overt act in furtherance of the conspiracy;
and (3) either defendant entered into the conspiracy in the venue or an overt act took place
in the venue. 10 Minnesota Practice, CRIMJIG 5.07, 13.03 (2020); Minn. R. Crim . P.
24.01 (stating case must be tried in county where offense committed).
Here, defense counsel expressly conceded the first and second elements of
conspiracy in her written closing argument . Although she stated in her proposed
conclusions of law that the state failed to prove venue in Beltrami County, in her proposed
findings of fact, she stated that appellant went to Beltrami County to scout out R.T.’s
6
apartment and he drove with J.H. to Bemidji, in Beltrami County, on the night the incident
occurred. Because t hese proposed finding s recount overt act s in fur therance of the
conspiracy in Beltrami County, they satisfy the venue requirement and implicitly concede
venue. CRIMJIG 5.07 (requiring that defendant “entered the agreement, or an overt act
took place” in venue) ; see Amaral v. Saint Cloud Hosp. , 598 N.W.2d 379, 385 (Minn.
1999) ( noting that “or” is generally disjunctive). By conceding al l three elements of
conspiracy, defense counsel conceded appellant’s guilt.
B. Appellant acquiesced to defense counsel’s concession of guilt.
Appellant argues that he did not consent to defense counsel’s concession of venue
and that no understandable trial strategy supported counsel’s concession. We are not
persuaded.
We first recite the facts relevant to whether appellant consented to the concession
strategy. Defense counsel presented the concession strategy early in the case, noting
“[i]deally we would be entering a [guilty] plea.” She expressed concern about appellant
having to testify in front of an emotiona l community in order to enter a plea. Further,
defense counsel stated that appellant would be “happy to discuss his role since it’s a
conspiracy charge, but as a matter of honor he [did] not want to implicate anyone else, so
that’s why we feel that the stipulated evidence trial is the best option.” The parties therefore
proceeded with a stipulated -evidence trial to avoid those concerns . Appellant never
objected to that strategy, even though he objected to other matters not raised on appeal.
Additionally, defense counsel stated that appellant “agree[d] that [her] argument
was proper as far as admitting the elements of the offense” and that she had discussed the
7
defense strategy with appellant. Defense counsel made a record of that agreement at the
March 5 hearing:
COUNSEL: [A]s part of [my written argument] we
said the State has proven that the
Defendant conspired with another to
commit the crime of assault in the first
degree, correct?
APPELLANT: Yes.
Q: And you agree that it’s okay for me to
make that argument.
A: Yes.
Q: And then we also agreed that an overt act
was made in furtherance of that
conspiracy, correct?
A: Yes.
Q. And we’ve discussed the strategy of why
I’ve made that argument, correct?
A: Yes.
Q: So you’re comfortable with what I’ve
submitted to the Court?
A: Yes.
Q: And . . . I did lay out findings of
fact . . . and you agree with the factual
findings except for number 17,3 correct?
A: Yes.

This colloquy shows that appellant expressly consented to counsel’s concession of
guilt for elements one and two, but not the third element of venue. We must therefore
analyze whether the record shows that appellant impliedly consented to counsel’s
concession of the venue element.

3 Proposed finding 17 states “Defendant assaulted the victim by firing multiple rounds of
ammunition through the wall of the victim’s apartment. The victim was ultimately struck
several times and required extensive emergency care. Three other individuals were present
in the apartment at the time of the shooting, but none were injured.”
8
A defendant impliedly consents to concession if (1) conceding guilt is an
“understandable strategy”; and the defendant (2) was present when counsel conceded guilt;
(3) understood that counsel conceded guilt; and (4) did not object to the concession (four-
factor test).4 Luby, 904 N.W.2d at 459; Prtine I, 784 N.W.2d at 318. We look to “the
entire record to determine if the defendant acquiesced” to the concession strategy. Prtine I,
784 N.W.2d at 318.
First, a concession strategy is understandable if the totality of the circumstances
show that conceding guilt is objectively reasonable. State v. Prtine, 799 N.W.2d 594, 599
(Minn. 2011) ( Prtine II). The strength of the state’s evidence is relevant in determinin g
whether a concession strategy is understandable. Id. (citation omitted).
Here, the record shows that appellant planned to plead guilty to the conspiracy
charge but wanted to avoid testifying in front of an emotional community, implicating his
coconspirators, or admitting the assault . Conceding guilt on the conspiracy charge in a
stipulated-evidence trial, thereby avoiding extensive testimony by appellant, is an
understandable strategy to achieve those goals. Further, the state had overwhelming
evidence on each element , including the venue element, showing the reasonableness of
conceding guilt.
Appellant argues that defense counsel’s concession strategy does not fit within three
specific examples set out by the supreme court indicating when such a strategy i s

4 Appellate courts may also look to whether counsel used a concession strategy consistently
throughout trial without objection from the defendant to determine whether a defendant
impliedly consent ed. Luby, 904 N.W.2d at 457. Because we conclude that appellant
consented under the four-factor test, we need not address this test.
9
“understandable.” State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984). But Wiplinger
provides examples, not an exhaustive list, of when a concession strategy is understandable.
We therefore conclude that conceding guilt is an understandable strategy in this case, and
this factor supports acquiescence.
Second, appellant stated on the record that he reviewed the pro posed order. He
attended the March hearing when the district court noted that defense counsel waived “a
couple of” elements in the proposed order . Appellant nevertheless approved of the
proposed order. In the unique context of a stipulated -evidence trial with written closing
arguments which appellant reviewed and approved, we conclude that he was present when
the concessions were made. This factor supports acquiescence.
Third, appellant affirmed on the record that defense counsel’s argument, including
conceding elements of the offense, was proper. Although he explicitly denied finding of
fact 17, he approved of all others, including those that recount his presence in Beltrami
County on two occasions while carrying out the conspiracy. Appellant also reviewed the
93 stipulated exhibits and agreed to submit them. Some of those exhibits also show
appellant’s presence in Beltrami County during the conspiracy. And the record reflects
that defense counsel discussed the defense strategy with appellant and indicated, on the
record and with appellant present , the reaso ns for that strategy. These facts show that
appellant understood he was conceding the elements of the offense, including venue, and
this factor therefore supports acquiescence.
Fourth, appellant did not object to the concession s at any time throughout the
proceedings. This factor also supports acquiescence. In sum, all four factors are met. We
10
conclude that appellant acquiesced to counsel conceding his guilt and therefore affirm his
conviction.
II. The district court did not abuse its discretion by imposing an upward
durational departure due to aggravating factors.

Appellant argues that the district court impermissibly relied on aggravating factors,
specifically risk to others in the apartment and use of a firearm, that are unrelated to the
conspiracy to support an upward durational departure. We disagree.
We review the district court’s decision to depart from a presumptive guidelines
sentence for an abuse of discretion. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
The district court abuses its discretion if its reasons for departure are improper or
insufficient evidence exists to justify departure. State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014). It may exercise its discretion to depart only if aggravating factors that “provide []
substantial and compelling reason[s]” to do so exist. Id. Substantial and compelling
reasons are those that show the defendant’s conduct was “significantly more . . . serious
than that typically involved in the commission of the crime in question.” State v. Hicks,
864 N.W.2d 153, 157 (Minn. 2015) (quotation omitted). Aggravating factors generally
must relate to the offense of conviction. Id. at 157, 162.
Here, in order to justify an upward departure based on the aggravating factors of
risk to others in the apartment and use of a firearm, the se aggravating factors must relate
to the conspiracy. 5 Whether these aggravating factors , which are most closely tied to

5 We note that Minn. Stat. § 244.10, subd. 5a(b) , allows the district court to rely on
aggravating factors “arising from the same course of conduct” as the offense of conviction.
11
appellant’s conduct of shooting into R.T.’s apartment, relate to the conspiracy requires us
to address whether a conspiracy is a continuing offense that encompasses the shooting .
This is a matter of statutory construction that we review de novo. Longoria v. State, 749
N.W.2d 104, 106 (Minn. App. 2008). A crime is not continuing unless the legislature
clearly so indicates, State v. Lawrence, 312 N.W.2d 251, 253 (Minn. 1981) (citing Toussie
v. United States, 397 U.S. 112, 115, 90 S. Ct. 858, 860 (1970)), or the nature of the offense
is such that the legislature “must assuredly have intended that it be treated as a continuing
one.” Toussie, 397 U.S. at 115, 90 S. Ct. at 860.
“Whoever conspires with another to commit a crime and [,] in furtherance of the
conspiracy[,] one or more of the parties does some overt act in furtherance of such
conspiracy” is guilty of the offense of conspiracy. Minn. Stat. § 609.175, subd. 2. T he
conspiracy statute does not clearly indicate that conspiracy is a continuing crime . See id.
Because we discern no clear indication of the legislature’s intent in the statutory language,
we must therefore decide whether the nature of a conspiracy is such that the legislature
must have intended it as a continuing crime. See Toussie, 397 U.S. at 115, 90 S. Ct. at 860.
Like other continuing crimes such as possession and concealment of stolen property,
conspiracy involves ongoing activity rather than a single act. See Lawrence, 312 N.W.2d
at 253 ( comparing “receiving,” which “connotes a single act,” with possession and
concealment, which are ongoing); State v. Fleming , 883 N.W.2d 790, 797 (Minn. 2016)
(stating that possession offense continued during assault). “It is in the nature of a

But because we co nclude that the aggravating factors relate to the offense of conviction,
here, conspiracy, we need not rely on this statute.
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conspiracy that each day’s acts bring a renewed threat of the substantive evil [the
legislature] sought to prevent.” Toussie, 397 U.S. at 122, 90 S. Ct. at 864. In other words,
conspiracies involve planning and execution, which continue until the participants actively
terminate the conspiracy , the participants achieve their objective, or the conspiracy is
terminated for other reasons.
Appellant argues that a conspiracy is complete upon the first overt act in furtherance
of the conspiracy. But ju st because a conspiracy may be charged upon the first overt act
does not mean that the conspiracy terminates at that point. Possession of contraband begins
when a person first obtains the item , but that does not mean the crime of posse ssion
terminates upo n the instance of obtaining the item . See Fleming , 883 N.W.2d at 797
(noting that after obtaining a gun, Fleming “continued to commit the possession offense
when he fired the gun”). Rather, the person continues to commit the offense of possession
as long as the person remains in possession of the item. Id. Similarly, while the initial acts
of agreement and an overt act meet the definition of conspiracy, those acts do not exhaust
it. Cf. Lawrence, 312 N.W.2d at 253 (stating that “while the initial act of concealing may
meet the definition of the proscribed conduct, it does not exhaust it”); see also United States
v. Kissel, 218 U.S. 601, 607, 31 S. Ct. 124, 126 (1910) (stating with regard to conspiracy
that “the unlawful agreement satisfies the definition of the crime, [] it does not exhaust it”).
Additionally, the facts of this case demonstrate the nature of conspiracy as a
continuing offense. The district court found that, after a physical fight with R.T., appellant
told J.H. that J.H. “need[ed] to pop out on this lil issue” and asked others on Facebook for
R.T.’s address. J.B. provided R.T.’s address at the Pine Ridge Apartments to appellant.
13
Appellant and two other men went to the Pine Ridge Apartments on June 9 a nd took
pictures and videos of the exterior and interior of the apartment building. In the early
morning of June 10, J.H. and K.A. drove appellant from Cass Lake to Bemidji where h e
transferred to a van with “Ty.” “Ty” brought appellant to the Pine Ridge Apartments where
appellant carried out the shooting. After the incident, K.A. reported to law enforcement
that appellant said that he “shot off so many rounds” and that he knocked on the door and
started shooting after he heard footsteps inside. Each of these acts are overt acts in
furtherance of the same conspiracy. It is nonsensical to separate them into independent
conspiracies or say that later conduct supporting the conspiracy is not relevant because it
occurs after the first overt act. Kissel, 218 U.S. at 607, 31 S. Ct. at 126.
Three reasons in addition to the nature of conspiracy support our conclusion that
conspiracy is a continuing offense. First, the definition of the intransitive verb “conspire”
includes “ scheme.” Merriam-Webster’s Collegiate Dictionary 267 (11 th ed. 2014).
“Scheme” in turn means “to form plans,” which connotes ongoing action. Id. A plain and
ordinary meaning of “conspire” therefore shows that it is an ongoing activity.
Second, Minnesota’s conspi racy statute is similar to the federal conspiracy statute
in that both require an agreement and an overt act. Compare Minn. Stat. § 609.175, subd.
2, with 18 U.S.C. § 371 (2016). Although only persuasive, 6 federal caselaw states that

6 State v. McClenton, 781 N.W.2d 181, 191 (Minn. App. 2010) (addressing authorities from
other states and federal courts), review denied (Minn. June 29, 2010); State v. Eichers, 840
N.W.2d 210, 216-17 (Minn. App. 2013) (addressing Eighth Circuit in particular), aff’d on
other grounds, 853 N.W.2d 114 (Minn. 2014).
14
“[c]onspiracy is a continuing offense that continues through the last overt act committed in
furtherance of the conspiracy.” Ashraf v. Lynch, 819 F.3d 1051, 1053 (8th Cir. 2016).7
Third, a number of overt acts may occur in a conspiracy , and jury members need
not agree on which overt act establishes guilt. State v. Ayala-Leyva, 848 N.W.2d 546, 554-
55 (Minn. App. 2014). Ayala-Leyva shows that a conspiracy continue s beyond the first
overt act. In sum, we conclude that conspiracy is a continuing offense . Further, we
conclude that it continues until “the last overt act committed in furtherance of the
conspiracy,” Ashraf, 819 F.3d at 1053, up to and including conduct completing the target
offense, Fishman, 645 F.3d at 1195.
Having established that conspiracy is a continuing offense, we turn to whether the
aggravating factors here relate to the conspiracy. Appellant shooting into R.T.’s apartment
constitutes the last overt act committed in furtherance of, or more specifically, completing,
the conspiracy to commit first-degree assault. See Ashraf, 819 F.3d at 1053; Fishman, 645
F.3d at 1195. Just as in Fleming, when the continuing offense of possession continued
while the defendant committed an assault by firing six shots in a public par k, so the
conspiracy here continued while the appellant committed the uncharged assault by firing
numerous shots into R.T.’s and a neighboring apartment. 883 N.W.2d at 797. That conduct

7 Other circuits agree. See, e.g., United States v. Payne, 591 F.3d 46, 69 (2d Cir. 2010)
(“Conspiracy is a continuing offense . . . that involves a prolonged course of conduct; its
commission is not complete until the conduct has run its course.”); United States v.
Fishman, 645 F.3d 1175, 1195 (10th Cir. 2011) (“A conspiracy . . . continues to exist
until it is abandoned, succeeds, or is otherwise terminated.”).
15
endangered others in the apartment and involved use of a firearm. Therefore, the
aggravating factors relate to the last overt act of the conspiracy.
Appellant points out that conspiracy is a separate, substantive crime from the
uncharged assault, State v. Burns, 9 N.W.2d 518, 520 (Minn. 1943), and that the elements
of the assault need not be proved to establish a conspiracy, see State v. Tracy, 667 N.W.2d
141, 146 ( Minn. App. 2003). We acknowledge and reaffirm these well -established
principles. But these principles do not prevent facts constituting elements of the assault
from overlapping with overt acts i n furtherance of the conspiracy. Cf. United States v.
Felix, 503 U.S. 378, 390, 112 S. Ct. 1377, 1384 (1992) (stating that “overt acts charged in
a conspiracy count may also be charged . . . as substantive offenses”); State v. McAlpine,
352 N.W.2d 101, 104 (Minn. App. 1984) (noting that evidence of possession of controlled
substance submitted in prior conspiracy trial could be submitted in subsequent possession
trial). And because the shooting constitutes an overt act in furtherance of the conspiracy,
the aggravating factors associated with the shooting can therefore relate both to the charged
conspiracy and the uncharged assault.
In sum, because a conspiracy is a continuing offense encompassing the acts to which
the aggravating factors here relate, the district court did not abuse its discretion by relying
on these aggravating factors to impose an upward departure on the conspiracy conviction.
Finally, appellant appears to argue that the evidence does not support the district
court’s determination that his conduct was “significantly more . . . serious than that
typically involved” in a conspiracy. Hicks, 864 N.W.2d at 157. But in State v. Blanche,
the supreme court upheld an upward departure when the defendant sprayed bullets in a
16
residential area, endangering multiple people and killing a child. 696 N.W.2d 351, 379-80
(Minn. 2005). The aggravating factors here are similar to Blanche: here, the district court
found that multiple people, including a child, were present in the apartment when appellant
“spray[ed] bullets inside of a residential apartment building showing a degree of
recklessness that appropriately ju stifies an upward departure.” See id.; see also Fleming,
883 N.W.2d at 797 (noting that firing gun six times in park filled with children made
possession-of-firearm offense more serious than usual). A review of Minnesota conspiracy
cases shows that a typical conspiracy does not endange r multiple people besides the
intended victim. Nor does a typical conspiracy involve using a firearm, let alone using one
in such a reckless manner. We therefore conclude that the district court did not abuse its
discretion by determining that these fact ors made appellant’s conduct “significantly
more . . . serious than that typically involved” in a conspiracy, and it therefore did not abuse
its discretion by imposing an upward departure in this case.
Affirmed.