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This opinion is nonprecedential except as provided by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
A21-0585

State of Minnesota,
Respondent,

vs.

Tyreese Eugene Roberson,
Appellant.

Filed March 7, 2022
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Dakota County District Court
File No. 19HA-CR-19-2172

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

Kathryn M. Keena, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Bryan, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his convictions for two counts of first-degree criminal sexual
conduct, arguing that the district court violated his right to confrontation by allowing a
state witness to testify remotely at the underlying jury trial. Appellant also argues that the
district c ourt erred by entering judgment s of conviction for both counts of first-degree
criminal sexual conduct because the underlying offenses arose from the same behavioral
incident. Because appellant’s Confrontation Clause rights were not violated, we affirm in
part. But because the district court erred by entering judgments of conviction for both
counts of first-degree criminal sexual conduct, we reverse in part and remand with
instructions for the district court to vacate the conviction on count one.
FACTS
Respondent State of Minnesota charged appellant Tyreese Eugene Roberson with
two counts of first -degree criminal sexual conduct under Minn. Stat. § 609.342, subds .
1(a), 1(c) (2018). The charges were tried to a jury in September and October 2020.1
The state moved the district court , in limine, to allow L.A., a Bureau of Criminal
Apprehension forensic scientist, to testify using remote technology. As support, the state
explained that “[L.A.] is immunocompromised and has been advised by her doctors not to
go to public places” due to the COVID -19 pandemic. Roberson opposed the motion,
arguing that remote, electronic testimony would violate his rights under the Confrontation
Clause. See U.S. C onst. amend. VI ; Minn. Const. art. I, § 6 . The dis trict court heard
arguments on the motion at a pretrial hearing and asked the state to submit additional
medical information, as well as evidence that L.A. had been subpoenaed. The district court
ultimately ruled that L.A. would be allowed to testify remotely.

1 The trial initially began in August 2020, but it ended in a mistrial.
The jury heard testimony from 17 witnesses, including the 12-year-old victim, the
victim’s mother and other family members, the nurse who examined the victim, officers
who responded to and investigated the crime, and L.A. The victim identified Roberson as
the man who assaulted her. L.A. testified via two -way videoconferencing (Zoom)
technology. She explained that she performed DNA and serology testing on a sexual
assault evidence kit from the victim and a knife that was used in the assault. She testified
that, based on her testing, Roberson’s DNA could not be excluded from the DNA found on
the knife handle and on the victim.
The jury found Roberson guilty of both counts of first -degree criminal sex ual
conduct. The district court entered a judgment of conviction for each count, but it
sentenced Roberson for only the second count.
Roberson appeals, arguing that the district court erred by allowing L.A. to testify
remotely and by entering judgment of conviction for each count of first-degree criminal
sexual conduct.
DECISION
I.
Roberson contends that L.A.’s remote testimony violated his rights under the
Confrontation Clause. See U.S. Const. amend. VI; Minn. Const. art. I, § 6 . This clause,
contained within the Sixth Amendment of the United States Constitution and echoed in the
Minnesota Constitution, provides that “ [i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him. ” U.S. Const. amend.
VI. “[W]e apply de novo review when determining whether the admission of evidence
violates a defendant’s rights under the Confrontation Clause.” State v. Sutter, 959 N.W.2d
760, 764 (Minn. 2021).
The Confrontation Clause “ predominantly requires a face -to-face meeting.” State
v. Tate, __ N.W.2d __, __, 2022 WL 16575, at * 1 (Minn. App. Jan. 3, 2022) , petition for
rev. filed (Minn. Jan. 20, 2022) . However, the right to face -to-face confrontation is not
absolute. In Maryland v. Craig, the United States Supreme Court held that “a defendant’s
right to confront accusatory witnesses may be satisfied absent a physical, face -to-face
confrontation at trial ” so long as “ denial of such confrontation is necessary to further an
important public policy and . . . the reliability of the testimony is otherwise assured.” 497
U.S. 836, 850 (1990). This court recently held, in Tate, that the two-part Craig test applies
to live, remote, and two-way video testimony in criminal trials. Tate, 2022 WL 16575, at
*3-6. We therefore apply the Craig test here.
Important Public Policy
Under Craig, we first consider whether denial of Roberson’s right to confrontation
was “necessary to further an important public polic y.” Craig, 497 U.S. at 850. Roberson
argues that L.A.’s remote testimony was not necessary to further an important public policy
because it “ involved a single, individual witness’s particul ar situation” as opposed to “ a
broad public policy goal.”
The public policy exception to the Confrontation Clause is defined narrowly; it does
not include, for example, “ issues related to the convenience of the parties or added
expense.” Tate, 2022 WL 165 75, at *6. In Tate, this court summarized the Governor’s
and Chief Justice’s COVID-19-related orders from 2020 that were in effect during Tate’s
November 2020 trial and concluded that “protecting public health when in the throes of a
global pandemic . . . . e asily qualifies as an important purpose .” Id. at *8. This court
reached that conclusion based on the “juncture of the pandemic in November 2020,”
suggesting that future changes in public-health conditions or state policy might impact the
relative importance of that purpose. Id. Here, Roberson’s trial occurred within two months
of Tate’s trial, from September 21 to October 2, 2020. As this court did in Tate, we
conclude that given the circumstances at the time of Roberson’s trial, protecting the public
health was an important public policy.
In Tate, this court noted that under Craig, a finding of necessity must be “case-
specific.” Id. (quoting Craig, 497 U.S. at 855). We held that, to satisfy Craig, the state
must “show that the testimony of a particular witness must be remote in order to serve an
important public policy, rather than . . . rest[ing] on the general existence of the pandemic.”
Id. Here, the state submitted a letter from L.A.’s physician stating that she “has a history
of Diffuse Large B Cell Lymphoma” and is currently a patient in a bone marrow transplant
clinic. The physician stated that “[t] he disease itself, and the treatment for it ha s left her
immunocompromised,” and that “it is advised that she testify for this trial via video
conferencing for her safety.” The district court noted the physician’s recommendation in
making its decision. This record satisfies the case-specific necessity requirement.2

2 Roberson argues that the district court erred by considering the necessity of L.A.’s
testimony to the state’s case. Because our review is de novo, the alleged error is
immaterial, and we do not discuss it.
Roberson argues that the state had other options for presenting L.A.’s testimony
regarding the DNA evidence such as deposition testimony, having another forensic
scientist testify regarding L.A.’s work on this case, or continuing the tria l until L.A. was
able to testify in person. Those arguments do not change our view of the legal issue because
as Roberson acknowledges in his brief, “the Supreme Court has not required a showing of
less-restrictive alternatives in the confrontation analys is.” See Craig, 497 U.S. at 860
(“[W]e decline to establish, as a matter of federal constitutional law, any such categorical
evidentiary prerequisites for the use of the one -way television procedure.”). Regardless,
the district court here considered and rejected a continuance, reasoning that “[i]t’s unknown
how long the pandemic will last, and it is uncertain when this witness would be able to
testify.” Cf. Tate, 2022 WL 16575 , at *9 (holding that “the possibility of a continuance
did not negate the stat e’s showing of necessity” because “ no definite end date of the
pandemic was on the calendar”).
In sum, we conclude that the state made a sufficient, case -specific showing that
allowing L.A. to testify via remote technology was necessary to further the important
public policy of protecting public health during the COVID-19 pandemic.
Reliability
Under Craig, we next consider whether “the reliability of the [remote] testimony is
otherwise assured. ” Craig, 497 U.S. at 850. “ To satisfy this prong, the witness must
generally be under oath and understand the seriousness of his or her testimony, the witness
must be subject to cross -examination, and the judge, jury, and defendant must be able to
properly see and hear the testifying witness. ” Tate, 2022 WL 16575, at *10. Roberson
argues that the remote electronic testimony here was not reliable because it was not
“equivalent” to live, in-person testimony.
The record in this case indicates that the district court was conscious of the need to
ensure reliability and took steps to do so. First, when making its decision to allow L.A. to
testify remotely, the district court discussed the importance of assuring reliability. It noted
that L.A. would be sworn in, that the defense would be able to cross-examine her, and that
the jury might be better able to observe her demeanor because the court “could order that
[L.A.] not wear a mask.” The district court also noted that L.A. is “an experienced witness”
and that “[s] he has been in court many times and understands w hat it is to testify in the
presence of an accused. ” And it noted that L.A. had prepared reports that were already
available to the defense, reducing the likelihood of “any surprises or recantation.”
The district court also addressed the need to prepare for the use of remote
technology, stating:
It’s the Court’s expectation that the Dakota County Attorney’s
Office will work directly with court administration to facilitate
and ensure that the technology will be workable before calling
the witness i n the presence of the jury. The Court will
administer an oath and ensure that all parties are able to see and
hear the witness via the technology. If the Court senses that
the technology is not working and that any of the issues . . . that
I have address ed are going to be an issue, then the Court
reserves the right to change its mind on that. But I can ’t
observe the technology until the technology is in effect.

Finally, the district court discussed a prior successful experience with remote
testimony in a similar case, noted that such technology “is used [not only] widely in the
court system, but by all citizens,” and stated that “[a]s a society, people have become more
familiar with remote technology, whether FaceTime, Zoom, or ITV, in both personal and
professional applications.” And the district court noted that it had allowed the defense “to
voir dire potential [jurors] on their attitudes toward assessing remote testimony.”
The record indicates that L.A.’s remote testimony went smoothly. Prior to the start
of L.A.’s testimony, the district court administered an oath to L.A. The district court then
asked Roberson, his attorney, the prosecutor, and each one of the jurors whether they could
see and hear L.A. Each person indicated that they could. T he district court told both the
jury and L. A. to let the court know if they had “trouble hearing or seeing” at any point
during the testimony, and then instructed the jury as follows:
[T]estimony will now be presented to you by way of remote
technology. The testimony of a witness who, for some reason,
cannot be present to testify in perso n may be presented in this
form. Such testimony is under oath and is entitled to neither
more nor less consideration by you because it was presented
remotely. You are to judge its believability and weight in the
same manner as you would if the witness was present in court.

The record also indicates that the defense cross -examined L.A. Based on this
record, it is clear that L.A. was under oath, that she was subject to cross-examination, and
that the judge, jury, and defendant could properly see and hear her. See Tate, 2022 WL
16575, at *10. Thus, the reliability of L.A.’s remote testimony was assured.
In sum, the two-part Craig test is satisfied in this case, and we therefore discern no
violation of Roberson’s rights under the Confrontation Clause.
II.
Roberson contends that the district court erred by entering judgment of conviction
for each count of first -degree criminal sexual conduct. He asserts that his conviction on
count one should therefore be vacated. The state concedes that this was an error and that
Roberson’s conviction on count one should be vacated. We agree.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2018).
Whether a conviction violates Minn. Stat. § 609.04 is a legal question that this court
reviews de novo. State v. Cox , 820 N.W.2d 540, 552 (Minn. 2012). The Minnesota
Supreme Court has interpreted Minn. Stat. § 609.04 to “bar[] multiple convictions under
different sections of a criminal statute for acts committed during a single behavioral
incident.” State v. Jackson , 363 N.W.2d 758, 758, 7 60 (Minn. 1985). This includes
multiple convictions of first-degree criminal sexual conduct for the same incident. State v.
Beard, 380 N.W.2d 537, 542 (Minn. App. 1986), rev. denied (Minn. Mar. 3, 1986) ; see
also State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981).
As stated in State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984):

[T]he proper procedure to be followed by the [district] court
when the defendant is convicted on more than one charge for
the same act is for the court to adjudicate formally and impose
sentence on one count only. The remaining conviction(s)
should not be formally adjudicated at this time. If the
adjudicated conviction is later vacated for a reason not relevant
to the remaining unadjudicated conviction(s), one of the
remaining unadjudicated convictions can then be formally
adjudicated and sentence imposed, with credit, of course, given
for time already served on the vacated sentence.

Here, the district court entered judgments of conviction on both counts of first -
degree criminal sexual conduct: count one for Minn. Stat. § 609.342, subd. 1(c)
(penetration; fear of great bodily harm) and count two for Minn. Stat. § 609.342, subd. 1(a)
(penetration; victim under 13 ). The state does not dispute that th ose convictions are for
acts committed during a single b ehavioral incident. We therefore conclude that the
multiple convictions in this case violate section 609.04. We reverse in part and remand
with instructions to vacate the conviction on count one.
III.
Roberson submit ted a pro se supplemental brief in this appeal. In addition to
reiterating the Confrontation Clause and multiple -conviction arguments set forth in his
primary brief, Roberson argues that the district court did not permit him to discharge the
public defender’s office, that his counsel was ineffective, that the district court judge was
biased against him , that he was denied the right to compulsory pr ocess for obtaining
witnesses in his favor, and that he was denied due process and equal protection of the law.
When considering pro se arguments made on appeal, several principles govern our
review. Courts have a duty to reasonably accommodate pro se litigants, so long as there is
no prejudice to the adverse party. Kasson State Bank v. Haugen , 410 N.W.2 d 392, 395
(Minn. App. 1987) . But “[a] lthough some accommodations may be made for pro se
litigants, this court has repeatedly emphasized that pro se litigants are generally held to the
same standards as attorneys and must comply with court rules .” Fitzgerald v. Fitzgerald,
629 N.W.2d 115, 119 (Minn. App. 2001) . “ When an appellant acts as attorney pro se,
appellate courts are disposed to disregard defects in the brief, but that does not relieve
appellants of the necessity of providing an adequate record a nd preserving it in a way that
will permit review.” Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App.
1990), rev. denied (Minn. Apr. 13, 1990).
“Claims in a pro se supplemental brief that are unsupported by either arguments or
citation to legal authority are forfeited.” State v. Montano, 956 N.W.2d 643, 6 50 (Minn.
2021) (quotation omitted). “Such arguments will not [be] considered unless prejudicial
error is obvious on mere inspection. ” Id. at 650-51. Further, a party must cite the record
in support of factual assertions. See Minn. R. Civ. App. P. 128.02, subd. 1(c) (stating that
“[e]ach statement of a material fact shall be accompanied by a reference to the record”) .
The record on appeal consists of “[t]he documents filed in the [district] court, the exhibits,
and the transcript of the proceedings, if any.” Minn. R. Civ. App. P. 110.01. This court
will not consider any factual assertions that are beyond the record. See Plowman v.
Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (stating that “[i]t is well settled
that an appellate court may not base its decision on matters outside the record on appeal”).
Having reviewed Roberson’s pro se brief with those principles in mind, we conclude
that with the exception of the issue addressed in section II of this opinion, his arguments
are “based on mere assertion ” and therefore f orfeited. See Brooks v. State , 897 N.W.2d
811, 818 (Minn. App. 2017), rev. denied (Minn. Aug. 8, 2017). Although Roberson asserts
various violations of his constitutional rights, he provides no citations to legal authority
and no citations to the record.
For example, Roberson asserts that the district court judge was biased against him
and “made multiple prejudice remarks towards [him].” He does not cite to remarks in the
record as support. He points only to the district court’s alleged failure to all ow him to
discharge the public defender’s office. However, “[p]revious adverse rulings by
themselves do not demonstrate judicial bias. Rather, the bias must be proved in light of
the record as a whole.” Hannon v. State , 752 N.W.2d 518, 522 (Minn. 2008) (citation
omitted).
When reviewing a claim of judicial bias, we consider “whether the trial judge
considered arguments and motions made by both sides, ruled in favor of a complaining
defendant on any issue, and took actions to minimize prejudice to the defendant.” Id. Here,
the record indicates that the district court scheduled a hearing to address Roberson’s choice
of counsel two weeks after he first expressed dissatisfaction with the public defender’s
office, “to make sure [he] had enough time to make a knowing dec ision.” And the district
court thoroughly questioned him on the issue. Roberson ultimately decided not to
discharge the public defender’s office at that time. The record also indicates that the district
court considered Roberson’s arguments on multiple m otions and ruled in favor of him on
an evidentiary motion in limine. This record does not show obvious prejudicial error in
the form of judicial bias.
In sum, our careful review of the record reveals no obvious prejudicial error
justifying relief, except for the error and relief granted in section II of this opinion.
Affirmed in part, reversed in part, and remanded.