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This opinion is nonprecedential except as provided by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
A21-0497

State of Minnesota,
Respondent,

vs.

Justin Thurmon Keltner,
Appellant.

Filed March 14, 2022
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-20-10391

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, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his convictions of indecent exposure and fifth-degree criminal
sexual conduct, arguing that the district court violated his constitutional right to present a
complete defense at trial. He also challenges his sentence, arguing that the district court
abused its discretion by imposing a presumptive sentence and by including an out-of-state
conviction in his criminal -history score. We affirm appellant’s conviction s. But we
reverse and remand his sentence based on the criminal-history score calculation.
FACTS
Respondent State of Minnesota charged appellant Justin Thurmon Keltner with
indecent exposure in the presence of a minor and fifth-degree criminal sexual conduct. The
state alleged that Keltner exposed his penis at a Minneapolis park while a woman and her
two minor daughters were walking nearby.
The case was tried to a jury, and Keltner represented himself at trial. S.D. testified
that in April 2020, she and her daughters were walking at a park in Minneapolis when she
heard a man making noises. The nois es were “[l]ike moaning and like ‘pst’ so that you
would turn back and look at him.” S.D. turned around and saw Keltner with “his underwear
down and his private parts in his hand.” Based on Keltner’s movements, S.D. believed that
he was masturbating.
S.D.’s daughter, A.F., testified that she was 13 years old at the time of the incident,
and that S.D.’s other daughter was 11 years old. A.F. was walking a few feet in front of
S.D. She was approximately six feet from Keltner when she passed him, and she n oticed
that his pants were down. She did not see his penis, because she quickly looked away, kept
walking, and crossed the street. S.D. quickly crossed the street as well and told A.F. to call
the police. The police responded, found Keltner at the park with his pants down by his
thighs, and arrested him.
Keltner testified in his own defense. He claimed that he could not remember
exposing himself because he had blacked out on the day of the incident.
The jury found Keltner guilty of both charges. The district court received a
presentence-investigation report (PSI) , which included one point in Keltner’s criminal -
history score for a 2003 Iowa burglary conviction. Keltner objected to the presumptive 60-
month prison sentence , and the district court treate d his objection as a request for a
downward durational departure. The district court concluded that there was no basis for a
downward durational departure. The district court entered a judgment of conviction for
each offense and sentenced Keltner to a presumptive sentence of 60 months’ imprisonment
for the indecent-exposure offense. Keltner appeals.
DECISION
I.
Keltner contends that the district court violated his constitutional right to present a
complete defense. Specifically, he complains that the district court did not allow him to
present evidence that his drug use and traumatic brain injury (TBI) caused him to black out
on the day of the offense.
“Due process requires that every defendant be afforded a meaningful opportunity to
present a complete defense.” State v. Smith , 876 N.W.2d 310, 331 (Minn. 2016)
(quotations omitted). Accordingly, criminal defendants have the right “to give the jury an
explanation of their conduct even if their motive is not a valid defense.” State v. Thompson,
617 N.W.2d 609, 612 (Minn. App. 2000). But “the evidence proffered in support of the
defense must still comply with the rules of evidence.” State v. Nissalke, 801 N.W.2d 82,
102 (Minn. 2011). The district court has discretion regarding the admissi on of evidence,
and appellate courts generally review a district court’s evidentiary rulings for an abuse of
discretion. State v. Chavez-Nelson, 882 N.W.2d 579, 588 (Minn. 2016).
The abuse -of-discretion standard applies even if a “defendant claims that th e
exclusion of evidence deprived him of his constitutional right to a meaningful opportunity
to present a complete defense.” State v. Zumberge, 888 N.W.2d 688, 694 (Minn. 2017).
In such circumstances, if we discern constitutional error, we consider wheth er it was
harmless beyond a reasonable doubt. State v. Post , 512 N.W.2d 99, 102 (Minn. 1994).
“[T]he reviewing court must be satisfied beyond a reasonable doubt that if the evidence
had been admitted and the damaging potential of the evidence fully reali zed, an average
jury (i.e., a reasonable jury) would have reached the same verdict.” Id. (footnote omitted).
“If, on the other hand, there is a reasonable possibility that the verdict might have been
different if the evidence had been admitted, then the erroneous exclusion of the evidence
is prejudicial.” Id.
In this case, the challenged evidentiary rulings were based on relevancy. Evidence
is relevant if it has “any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Minn. R. Evid. 401. Irrelevant evidence is inadmissible. Minn. R. Evid.
402. But e ven relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury.” Minn. R. Evid. 403.
Keltner’s theory at trial was that he blacked out on the day of the incident, could not
remember the incident because of his drug use and TBI , and therefore could not have
formed the requisite intent to commit the charged offenses. On appeal, he acknowledges
that such evidence may not have amounted to a legal defense, but he argues that he
nonetheless had a due-process right to explain his conduct and to “provide the jury with a
context in which his actions made sense.” We address each type of evidence in turn.
Evidence of Keltner’s Drug Use
Keltner asserts that the district court prevented him from testifying that his drug use
caused him to black out on the day of the incident. Although the district court sustained
some objections to Keltner’s testimony, it permitted him to testify regarding his drug use
and that he had blacked out the day of the incident.
For example, Keltner stated on direct examination, “I don’t remember how I got to
the park. I was under the influence of narcotics. I’m an active —I’m a drug addict. I use
meth and heroin. This isn’t an excuse. They’re facts.” He further explained that he had
injected methamphetamine into his arm with a hypodermic needle the night before the
incident. He said, “Well, I put air bubbles into my vein. One of the characteristics of
intravenous use is blacking out.” He also said, “I blacked out three times that day.” The
state objected to those last statements based on relevance, and the district court sustained
the objection.
Keltner continued his testimony, stating that at the time of the incident, he was
dehydrated and ha d not slept since he was released from jail several days earlier. He
testified that he had been “living on the street lately, in and out of drug treatments and
stuff.” He then stated:
But, essentially, what happened was I don’t even know how I
got to this park. I woke up there, and I stayed there most of the
day trying to get my bearings back. And I kept blacking out
throughout the day. As the air bubbles were going through my
heart, they make you black out, and you don’t remember whole
parts.
Keltner described what he could remember about the day of the incident . He
testified that he “woke up here in a turtle suit” and speculated that he was on “suicide
watch.” The district court sustained the state’s objection to that testimony and granted its
motion to strike. The district court also sustained the state’s objection to Keltner’s
testimony that he had been attacked the night before the incident and may have been
sexually assaulted.
Keltner testified that he remembered looking for water because he was dehydrate d
and that he “woke up in the back of the cop car.” He testified that he had “no idea how I
even got back to where I was.” He testified that he had been having difficulty keeping his
pants up and opined that his pants must have fallen down because he fell to the gr ound.
Keltner emphasized that he had no sexual intent and had “no intentions of ever
masturbating that day in front of anybody or anything.” He summarized, “I didn’t even
know where I was at that day at all. And, yeah. And that’s not indecent exposure. That’s
a victim of circumstance, and I did the best I could to get out of there.”
In sum, the district court sustained objections to Keltner’s testimony that he woke
up in a “turtle suit” because he was on “suicide watch” and that he was assaulted the night
before the incident. Those circumstances do not show that Keltner’s drug use caused him
to black out on the day of the offense, which is the basis for his assertion of constitutional
error. Because the excluded evidence was unrelated to Keltner’s the ory that he blacked
out due to drug use, the exclusion could not have violated his constitutional right to present
a complete defense.
The district court also sustained objections to some of Keltner’s testimony that his
drug use caused him to black out and that he blacked out three times on the day of the
incident. We need not decide whether those rulings were erroneous because the district
court allowed Keltner to explain his behavior on the day of the incident and to testify that
he unintentionally exposed himself because he had blacked out from drug use. Based on
that testimony, we are satisfied beyond a reasonable doubt that if the excluded evidence
had been admitted and the damaging potential of the evidence fully realized, a reasonable
jury would have reached the same verdict.
Evidence of Keltner’s TBI
After Keltner rested his case and the jury left the courtroom, he raised the possibility
of presenting evidence that he had a TBI. The district court ruled that such evidence was
irrelevant. The district court reasoned that it had already concluded that Keltner was
competent to stand trial and that the evidence regarding his TBI was unduly prejudicial to
the state because it might “garner undue sympathy” for Keltner. The district court appears
to h ave misunderstood Keltner’s reason for offering the TBI evidence, which was to
support his claim that he was blacked out during the incident. Nonetheless, for the reasons
that follow, we do not discern prejudicial error.
A lay witness may not testify about opinions that are “based on scientific, technical,
or other specialized knowledge.” Minn. R. Evid. 701. Whereas a witness qualified as an
expert may testify in the form of an opinion if “scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue.” Minn. R. Evid. 702. Because testimony that Keltner’s TBI caused him to black out
would be based on scientific, technical, or specialized knowledge, an expert was likely
necessary to present that evidence.
In fact, Keltner informed the district court that he “would like to be able to call in a
professional” to provide evidence regarding his TBI . But Keltner did not identify any
“professional” who was available and willing to testify on his behalf. Thus, Keltner cannot
establish that he was prejudiced by the district court’s refusal to allow him to call a
“professional” to the stand to testify about his TBI. See State v. Lee, 494 N.W.2d 475, 479
(Minn. 1992) (conc luding that record did not show that the district court’s exclusion of
defense evidence was prejudicial because it did not “establish that the defense had such
evidence”).
Moreover, Keltner cannot establish that he was prejudiced by the alleged error .
Keltner offered the TBI evidence to explain why he may have blacked out on the day of
the incident. As discussed above, Keltner testified at length that he had blacked out because
of his drug use and that he therefore did not intend to expose himself. Given the extent to
which Keltner testified about his black-out condition, we are once again satisfied beyond
a reasonable doubt that if the excluded evidence had been admitted and the damaging
potential of the evidence fully realized, a reasonable jury would ha ve reached the same
verdict.
II.
Keltner contends that the district court abused its discretion by denying his request
for a downward durational departure because his conduct was significantly less serious
than the conduct in a typical case for felony indecent exposure. The Minnesota Sentencing
Guidelines establish presumptive sentences for felony offenses. Minn. Stat. § 244.09,
subd. 5 (2020). The sentencing guidelines seek to “maintain uniformity, proportionality,
rationality, and predictability in s entencing” of felony crimes. Id. “Consequently,
departures from the guidelines are discouraged and are intended to apply to a small number
of cases.” State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016). A district court may
depart from the presumptive sentence only when there exist “identifiable, substantial, and
compelling circumstances to support a departure.” Minn. Sent. Guidelines 2.D.1 (2019).
A durational departure must be based on factors that reflect the seriousness of the
offense. Solberg, 882 N.W.2d at 623. “[A] downward durational departure is justified if
the defendant’s conduct is significantly less serious than that typically involved in the
commission of the offense.” State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985).
When substantial and compelling circumstances exist, the district court has broad
discretion to depart, and we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). But the district court is not req uired to
depart even if there are grounds to do so. State v. Olson , 459 N.W.2d 711, 716 (Minn.
App. 1990), rev. denied (Minn. Oct. 25, 1990). Moreover, although the district court must
give reasons for a departure, “an explanation is not required when th e court considers
reasons for departure but elects to impose the presumptive sentence.” State v. Van Ruler,
378 N.W.2d 77, 80 (Minn. App. 1985). We will not interfere with the district court’s
discretion if the record shows that the district court “caref ully evaluated all the testimony
and information presented before making a determination.” Id. at 80-81.
Keltner argues that his conduct was significantly less serious than the conduct in a
typical indecent -exposure case because no minor actually saw his penis, he exposed
himself to only a couple people, he was “passively masturbating” and did not engage in
any other sexual conduct, and the situation did not involve a captive audience. Keltner and
the state discuss appellate decisions involving indecent -exposure offenses as support for
their positions regarding the relative severity of Keltner’s offense. See State v. Winchell,
363 N.W.2d 747, 750-51 (Minn. 1985) (comparing the facts of the underlying case to other
cases when determining whether the offen se was more serious than a typical case ). But
neither party relied on case comparisons in the district court. Thus, the district court did
not consider the cases that the parties cite on appeal.
Here, our role is to review the district court’s imposition of a presumptive sentence
for an abuse of discretion. Engaging in a de novo comparison of cases cited for the first
time on appeal would exceed our standard of review . Indeed, that approach invites us to
substitute our judgment regarding whether a sentencing departure was appropriate for that
of the district court, which is improper. We therefore do not engage in case comparisons.
Once again, the district court does not need to explain its reasons for imposing a
presumptive sentence. See Van Ruler, 378 N.W.2d at 80. Even though Keltner did not
expressly ask for a downward durational departure, the district court construed his
complaint regarding the length of the presumptive sentence as a request for one.1 The
district court acknowledged the proper standard for a downward durational departure and
applied that standard, stating , “I find that this case is not less onerous than simi larly-
charged cases, and there is no basis for a durational departure in this matter.”
In sum, the record shows that the district court considered the testimony and
information presented before ruling on Keltner’s objection to a presumptive sentence, as it
was required to do. This is not a rare case that warrants reversal of a presumptive sentence.
See Kindem , 313 N.W.2d at 7 (stating, “ it would be a rare case which would warrant
reversal of the refusal to depart”).
III.
Keltner contends that his sentenc e was based on an inaccurate criminal -history
score. Specifically, he argues that the district court erred by including one point for a 2003
Iowa burglary in his criminal -history score because the state did not present sufficient
evidence to prove the exi stence of that conviction. We review the district court’s
determination of a defendant’s criminal -history score for an abuse of discretion. State v.
Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). Although Keltner did not raise this issue
with the district court, a defendant cannot waive or forfeit review of the calculation of his
criminal-history score because a sentence based on an incorrect criminal -history score is
an illegal sentence, which is correctable at any time. State v. Maurstad, 733 N.W.2d 141,

1 We observe that the district court’s treatment of Keltner’s profanity-laced statements as
a request for a downward departure was charitable.
147-48 (Minn. 2007) ; see also Minn. R. Crim. P. 27.03, subd. 9 (“The court may at any
time correct a sentence not authorized by law.”).
When calculating a defendant’s criminal -history score, the district court must
determine whether to include out -of-state convictions. Minn. Sent. Guidelines 2.B.5.a
(2019). Criminal -history points are assigned to an out -of-state conviction based on the
equivalent Minnesota offense with elements similar to the out -of-state offense of
conviction. Minn. Sent. Guidelines 2.B.5.b (2019). An out -of-state conviction may be
counted as a felony only if it would “be defined as a felony in Minnesota, and the offender
received a sentence that in Minnesota would be a felony-level sentence.” Id.
The district court may not use out -of-state convictions when calculating the
defendant’s criminal-history score “unless the state lays foundation for the court to do so.”
Maley, 714 N.W.2d at 711. The state has the burden of “establishing the facts necessary
to justify consideration of out -of-state convictions.” Id. (quotation omitted). “The state
must establish 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.
To meet its burden, the state does not need to provide certified copies of out-of-state
convictions, but it must provide evidence sufficient under Minn. R. Evid. 1005 that proves
the validity of the convictions. State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983). Minn.
R. Evid. 1005 states:
The contents of an official record, or of a document
authorized to be recorded or filed and actual ly 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.
In accordance with Griffin and rule 1005, the district court can “rely on persuasive evidence
that sufficiently substi tutes for the official, certified record of conviction.” Maley, 714
N.W.2d at 712.
In Griffin, the supreme court concluded that the state met its burden by submitting
“considerable documentation” that the defendant had been convicted of an out-of-state
offense, even though it did not submit a certified copy of the conviction. 336 N.W.2d at
525. In another case, the state provided sufficient evidence of an out -of-state conviction
based only on the unsworn “advice and testimony” of a probation officer during sentencing.
State v. Jackson , 358 N.W.2d 681, 682 -83 (Minn. App. 1984). In contrast, the state did
not meet its burden in Maley when it listed the out -of-state convictions on the sentencing
worksheet but provided no documents or evidence admissible under rule 1005 to prove the
convictions. 714 N.W.2d at 710, 712.
Keltner argues that the state presented no evidence to prove the existence of the
2003 Iowa burglary conviction. He maintains that, without such evidence, there is no way
to determine whether the conviction was valid, whether he was the person who received
the conviction, or whether the elements of the Iowa burglary offense correspond to a
Minnesota felony.
The state counters that the PSI provided sufficient information to establish the out-
of-state conviction. The PSI indicated that Keltner was convicted of burglary in the third
degree of a dwelling, and that the offense was committed on August 14, 2003, in Polk
County, Iowa. It also indicated that Keltner was sentenced to a term of probation, he
violated probation, probation was revoked, and he was sentenced to five years’
imprisonment. The state argues that an online search for Iowa third -degree burglary
demonstrates that the elements of that offense in 2003 correspond to a current Minnesota
felony offense for third -degree burglary. It also argues that information in the PSI
establishes Keltner’s connections to Polk County, Iowa, so there is sufficient evidence that
Keltner is the person who committed the 2003 Iowa burglary.
The state’s reliance solely on statements in the PSI is similar to the approach that
this court deemed inadequate in Maley. See id. (concluding that the state’s reliance solely
on a sentencing worksheet to prove the existence of out -of-state convictions was
inadequate). The state did not offer a certified copy or other documentation regarding the
2003 Iowa conviction. And unlike Jackson, no probation officer provided advice or
testimony regarding that conviction at Keltner’s sentencing hearing . See 358 N.W.2d at
682-83 (concluding that the unsworn “advice and testimony” of a probation officer at the
sentencing hearing was sufficient). In sum, the state did not meet its burden to establish
the facts necessary to justify consideration of the Iowa con viction, and the district court
abused its discretion by including that conviction in Keltner’s criminal -history score. We
therefore reverse Keltner’s sentence and remand for resentencing.
If a defendant did not object at sentencing to the district court’s inclusion of an out-
of-state conviction in his criminal -history score, the proper remedy is to remand the case
and permit the state “to further develop the sentencing record so that the district court can
appropriately make its determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App.
2008), rev. denied (Minn. July 15, 2008). Keltner did not object at sentencing to the district
court’s inclusion of the 2003 Iowa conviction in his criminal -history score . Thus, on
remand, the state shall be allow ed to present evidence supporting inclusion of the Iowa
conviction.
Affirmed in part, reversed in part, and remanded.