Eric John Henderson-Bey, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A21-0572

Eric John Henderson-Bey, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 3, 2022
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Dakota County District Court
File No. 19HA-CR-11-1922

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota (for
appellant)

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

Kathryn M. Keena, Dakota C ounty Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Jesson, Judge; and Kirk, Judge.

NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Eric John Hender son-Bey challenges the distri ct court’s denial of his
motion to correct his two felony sentences. He nderson-Bey argues that the district court

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
erred in its calculation of his criminal-history score because (1) a prior cocaine-possession
conviction had decayed, (2 ) the two offenses for which he was sentenced were part of a
single behavioral incident, and (3) he should not have been assigned a criminal-history
point for an Illinois conviction because there is no equivalent Minnesota felony. Because
the district court correctly determined that Henderson-Bey’s cocaine-possession conviction
had not decayed and that his two sentences were not part of a single behavioral incident,
we affirm in part. But because the record does not establish whether there is a Minnesota
equivalent for Henderson-Bey’s Illinois conv iction, we reverse in part and remand for
additional proceedings on that question.
FACTS
Because we previously set forth the facts of this case on Henderson-Bey’s direct
appeal,1 we focus here only on the facts releva nt to Henderson-Bey’s challenge to the
district court’s computation of his criminal-h istory score. In 2012, the state charged
Henderson-Bey with ten counts of criminal sexual conduct and one count of engaging in a
pattern of harassing conduct. The charges followed allegations that he had sexual contact
with his girlfriend’s minor children: C.W. and O.W. 2 The jury found him guilty. After
trial, the district court se ntenced Henderson-Bey to 280 months’ imprisonment on count
one, first-degree criminal sexual conduct, a nd 38 months’ imprisonme nt on count six,
engaging in a pattern of harassing conduct. We affirmed his convictions on appeal.

1 State v. Henderson-Bey , No. A13-0165, 2015 WL 404350 (M inn. App. Feb. 2, 2015),
rev. granted (Minn. Apr. 14, 2015), and ord. granting rev. vacated (Minn. June 30, 2015).
2 The state alleged that Henderson-Bey had sexual contact with C.W. between 2003 and
2005, and that he had sexual contact with O.W. between 2008 and 2009.
3
In October 2020, Henderson-Bey moved the district court to correct his sentence
under Minnesota Rule of Criminal Procedur e 27.03, subdivision 9, and raised three
arguments. In March 2021, the district c ourt denied Henderson-Bey’s motion to correct
his sentence. The district court concluded that Henderson-Bey was not entitled to relief on
two of his three arguments. For the third argu ment, the district court recognized that the
record did not contain the information needed to resolve the issue of whether there is a
Minnesota felony equivalent to Henderson-Bey ’s Illinois conviction. But despite giving
the state additional time to obtain further information, the district court denied
Henderson-Bey’s motion without receiving any additional information from the state.
Henderson-Bey appeals.
DECISION
Because Henderson-Bey alre ady challenged his convictions on direct appeal, he
bears the burden of proving that his sentence s were based on incorrect criminal-history
scores. Williams v. State, 910 N.W.2d 736, 743 (Minn. 2018). With this burden of proof
in mind, we address Henderson-Bey’s arguments in turn.
I. The district court correctly includ ed the cocaine-possession conviction.
Henderson-Bey argues that the dist rict court erred by assigning him a
criminal-history point for a prior cocaine-possession conviction when it sentenced him on
count one. A prior convic tion has decayed, meaning it should not be counted in a
defendant’s criminal-history score, if the de fendant was either discharged from probation
or the sentence expired more than 15 years before the current o ffense. Minn. Sent.
Guidelines II.B.1.f (2008). We review de novo the district court’s interpretation of the
4
Minnesota Sentencing Guidelines. State v. Strobel, 932 N.W.2d 303, 306 (Minn. 2019).
To do so, we begin with the factual basis for including the prio r conviction and then
evaluate Henderson-Bey’s argument.
The state charged Henderson-Bey with first-degree criminal sexual conduct for
actions that occurred “on or about March 15, 2008 – May 31, 2009.” The district court
found that Henderson-Bey had been senten ced on the cocaine-po ssession conviction on
December 12, 1991, and he was discharged from probation for that offense on August 24,
1994. Under the guidelines, th e cocaine-possession conviction decayed 15 years after he
was discharged from probation. Minn. Sent. Guidelines II.B .1.f (2008). Thus,
Henderson-Bey’s cocaine-possession conviction decayed on August 24, 2009. Because
the last day of the range of dates for count one was May 31, 2009, the district court did not
err by assigning Henderson-Bey a criminal-history point for the conviction.
Still, Henderson-Bey asserts that the de cay period for his cocaine-possession
conviction began on either October 24, 1991 or December 12, 1991. But he does not
explain how he arrived at either date. There is no support in the record for the October 24,
1991 date. And while Henderson-Bey was sentenced on December 12, 1991, under the
version of the sentencing guidelines in effect at the time of his offense, the prior conviction
did not begin to decay until he was terminated from probation on the offense. 3

3 Henderson-Bey cites to the current version of the sentencing guidelines to support his
argument, but this reliance is misplaced beca use the version of the guidelines that was in
effect on the date of his offense is controlling. State v. Kirby , 899 N.W.2d 485, 493
(Minn. 2017).
5
Accordingly, Henderson-Bey has not met his burden of showing that his sentence for count
one was based on an incorrect criminal-history score.
II. The district court correctly sent enced Henderson-Bey for both counts.
Next, Henderson-Bey argues that the di strict court erred by assigning him a
criminal-history point for count six when it sentenced him on count one, because counts
one and six arose from a single behavioral incide nt. We begin our anal ysis of this claim
with the statutory directive that a person who violates multiple laws in a single behavioral
incident can only be sentenced for one of the offenses. Minn. Stat. § 609.035 (2002). But
acts committed against separate victims at different times do not constitute a single
behavioral incident. Munt v. State, 920 N.W.2d 410, 417 (Minn. 2018). Whether multiple
sentences violate section 609. 035 is a question of law, which we review de novo.
State v. Branch, 942 N.W.2d 711, 713 (Minn. 2020).
Turning first to count one, the jury f ound Henderson-Bey gu ilty of first-degree
criminal sexual conduct in violation of Minnesota Statutes section 609.342,
subdivision 1(h)(iii) (2008), which applie s when the defendant has a significant
relationship to the complainant and “the se xual abuse involved mu ltiple acts committed
over an extended period of time.” And for count six, the jury found Henderson-Bey guilty
of engaging in a pattern of harassing condu ct in violation of Minnesota Statutes
section 609.749, subdivision 5 (2002). A person violates se ction 609.749, subdivision 5,
when the person commits two or more acts—within a five-year period against one or more
members of a single household—that violat e, among others, the statutes prohibiting
criminal sexual conduct.
6
To prove that Henderson-Bey engaged in a pattern of harassing conduct, the state
submitted evidence of eight acts of criminal sexual conduct in varying degrees against two
victims: O.W. and C.W. He nderson-Bey committed three of the eight acts against C.W.
between 2003 and 2005. He committed the remaining five acts against O.W. in 2008 and
2009. To find Henderson-Bey guilty on th is count, the jury only had to find that
Henderson-Bey committed two of the eight tota l acts of criminal sexual conduct against
either O.W. or C.W.4 If the jury found Henderson-Bey gu ilty of at least two of the three
offenses committed against C.W., then the district court did not violate section 609.035 by
sentencing Henderson-Bey for both counts because counts one and six were committed
against different victims at different times. Branch, 942 N.W.2d at 713.
But, Henderson-Bey argues, the record does not clearly establish which of the eight
total offenses the jury foun d he committed. And because his conviction for count one
involves “multiple acts committed over an extended period of time” against O.W.,
Henderson-Bey asserts that the factual basis for count one overlaps with all five potential
offenses against O.W. that could serve as the factual basis for count six. Thus, because the
record does not confirm that the jury found him guilty of engaging in a pattern of harassing
conduct for only the offenses against C.W., Henderson-Bey contends that his two sentences
violate section 609.035 because they could have stemmed from a single behavioral
incident.

4 The jury had to find two acts against a single victim, instead of one against each, because
C.W. was not a resident of the household when the offenses against O.W. occurred.
7
We disagree. Because Henderson-Bey previously appealed his conviction, he now
bears the burden of proving th at his sentence was based on an incorrect criminal-history
score. Williams, 910 N.W.2d at 737. And he has shown no basis to conclude that the jury
did convict him based solely on the offenses committed against O.W. Absent this showing,
Henderson-Bey cannot prove that his two sentences violate section 609.035 because he has
not established that the two offenses formed a single behavioral incident. 5 Accordingly,
Henderson-Bey’s sentence does not violate section 609.035.
III. The district court prematurely denied Henderson-Bey’s motion regarding the
Illinois conviction.

Henderson-Bey argues that the dist rict court erred by assigning him a
criminal-history point for an Illinois conviction when it sentenced him on count six. The
Minnesota Sentencing Guidelines require that out-of-state convictions be included in
calculating a criminal-history score. State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001);
Minn. Sent. Guidelines II.B.5 (2003). But to be included, the state must lay the foundation
for the district court by showing that the prior conviction was valid, the defendant was the
person involved, and that the crime would be a felony if committed in Minnesota. 6

5 Henderson-Bey further argues that because section 609.749, subdivision 5, is ambiguous,
he should be given the benefit of that ambiguity. But the am biguity that he references
relates to which of the predicate offenses the jury found him guilty of. And we have
rejected similar arguments where the victim testified to ongoing abuse, the prosecution did
not distinguish proof of certain incidents from others, and the defendant did not present
separate defenses for each incident. State v. Rucker, 752 N.W.2d 538, 548 (Minn. App.
2008), rev. denied (Minn. Sept. 23, 2008).
6 At oral argument, the state contended that, following Williams, Henderson-Bey should
bear the burden of proving that there is no Minnesota equivalent for his out-of-state
conviction. But because the stat e did not present that argument to the district court, we
8
State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). Because Henderson-Bey
challenges the district court’s interpretation of the sentencing guidelines in making this
argument, our review is de novo. Strobel, 932 N.W.2d at 306.
Here, the district court assigned Henders on-Bey one criminal-his tory point for an
“Unlawful Use of Weapon” charge. The only information in the record about this charge
is in a presentence investigation report that Henderson-Bey completed following trial. That
report indicates that, according to an earlie r federal presentence investigation report,
Henderson-Bey stated that he brought guns from Alabama to Chicago, not knowing that it
is a crime in Chicago to possess any firearms without a firearm owner’s identification card.7
But neither the federal presentence investig ation report nor the statute under which
Henderson-Bey was convicted is in the record.
In its memorandum in opposition to He nderson-Bey’s motion to correct his
sentence, the state noted that it requested records about the conviction from Illinois in
December 2020. The state represented that, as of February 2021, no records had yet been
received from Illinois. And the state conced ed that the Illinois statute under which
Henderson-Bey asserts he was convicted in cludes “prohibitions that would not be
considered a felony in Minnesota.” Accordi ngly, the state requested more time from the
district court to receive the records from Illi nois. But in March 2021, the district court

decline to address it here for the first time. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988).
7 Henderson-Bey asserts that he was convicted of violating the ve rsion of Chapter 430
Act 65 Section 2 of the Illinois Compiled Statutes that was effective in 1989.
9
denied Henderson-Bey’s motion to correct hi s sentence, despite giving the state until
May 2021 to obtain the records.
As a result of this March 2021 order, the state—thinking that it had until May 2021
to do so—did not meet its burden of showing that the Illinois conviction would be a felony
in Minnesota. Maley, 714 N.W.2d at 711. Because the record does not contain sufficient
information about Henderson-Bey’s Illinois conv iction for the district court to determine
whether the state laid the foundation fo r the court to assign Henderson-Bey a
criminal-history point, we reverse the district court on this point and remand for additional
proceedings.8 See State v. Outlaw , 748 N.W.2d 349, 356 (Minn. App. 2008) (permitting
the state to further develop the sentencing record for the district court to determine whether
to include out-of-state convictions), rev. denied (Minn. July 15, 2008).
Affirmed in part, reversed in part, and remanded.

8 The state argues that we need not reach th is issue because even if Henderson-Bey’s
criminal-history score for count six is inaccurate, his tota l prison sentence would not
change because his sentence for count one is longer. But we address the issue because the
purpose of the sentencing guidelines is to en sure equity in senten cing, a goal that is
furthered by the proper calcula tion of Henderson-Bey’s crimin al-history score. Minn.
Sent. Guidelines I (2003).