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This opinion is nonprecedential except as provided by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
A21-0648

State of Minnesota,
Respondent,

vs.

Matthew Dennis Smith,
Appellant.

Filed April 11, 2022
Affirmed
Rodenberg, Judge*

Brown County District Court
File No. 08-CR-20-782

Keith Ellison, Attorney General, Edwin Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

Charles Hanson, Brown County Attorney, New Ulm, Minnesota (for respondent)

Cathryn Middlebrook, Chief Public Defender, Jennifer Workman Jesness, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and
Rodenberg, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
RODENBERG, Judge
Appellant Matthew Dennis Smith appeals from his convictions for fifth-degree
assault and two counts of theft, arguing that (1) the district court plainly erred by admitting
inadmissible hearsay testimony at trial ; (2) his right to a speedy trial was violated; and
(3) the district court erred by imposing separate sentences for his two theft convictions
because the offenses arose from a single behavioral incident. Appellant also submitted a
pro se supplemental brief asserting various additional claims. We affirm.
FACTS1
On September 22, 2020, New Ulm police received a call that a shirtless man was
acting strangely. Officers found the man, who was appellant, and briefly spoke with him.
Appellant, wearing dark pants and shirtless while holding a sweatshirt, told the officers he
was in New Ulm visiting friends K.B. and “Danielle,” whose last name he did not know.
The officers determined that no further action was needed and allowed appellant to leave.
Around 9:00 p.m. that evening, D.C. pulled into the drive-through line at the New
Ulm McDonald’s restaurant. An adult man was in her front passenger seat. D.C. testified
that she brought the man to “get some food in his stomach” because he “wasn’t acting
himself.” While they were waiting in line, the man got out of D.C.’s car, walked up to the
car ahead of them in the line of cars, and punched the driver, S.H., through the open

1 The facts recited in this opinion are taken from the trial testimony.
3
window. S.H. rolled up his window and called 911. At trial, S.H. identified appellant as
the man who punched him.
This man briefly returned to D.C.’s vehicle and then walked north. He was White
and wore dark pants and a grey sweatshirt.
At 9:07 p.m., a witness at the Kwik Trip gas station a short distance north of the
McDonald’s saw a man wearing a grey sweatshirt jump over the fence, get into a white
Ford Interceptor, and drive away with the headlights off. The owner of the Interceptor had
parked the car and left it unlocked while he went into the store. The owner reported the
theft to police. He told police that a loaded handgun was in the Interceptor’s glove box.
Within the hour, police officers encountered a speeding vehicle that appeared to be
the stolen Interceptor. One officer saw the Interceptor going east—away from New Ulm—
at 113 miles per hour; the officer turned on his squad lights and tried to chase the speeding
vehicle. The Interceptor turned off its headlights, and the officer lost track of the
Interceptor after it went over a hill. While officers continued to look for the Interceptor, a
clerk at a Casey’s General Store reported that a vehicle with its headlights off had pulled
in at a high speed and tried to get gas. Surveillance video confirmed that the vehicle was
a white Interceptor. Its driver wore a white hooded sweatshirt, dark pants, and white shoes.
The Interceptor drove away southbound on Highway 169 with its headlights still off.
Police found a white Interceptor a few miles south of this Casey’s store, facing south
on the shoulder of the northbound lane of Highway 169. Investigators later confirmed that
this was the stolen Interceptor from the gas station. The glove box was open. The owner’s
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handgun was missing. Police searched unsuccessfully for the person who had taken the
vehicle.
The next morning, a nearby resident saw a man he did not recognize walking along
Highway 169. The man told the resident he needed gas and asked for a ride to town. The
resident, who knew police were searching the area, told the man to walk and then reported
the man to his neighbor, who was a deputy sheriff. The resident testified at trial and
identified appellant as the man he encountered.
A short time later, police found appellant walking along Highway 169 and arrested
him. Appellant’s hair was disheveled, he had no shoes, and he was wearing a blue jacket
and black pants with a blue stripe. Appellant’s clothing was muddy and covered in
cockleburs.
Police impounded the Interceptor and tested it for DNA. None of the DNA from
the car matched appellant: some of the samples yielded insufficient DNA to test, and others
contained a mixture of individuals with a major profile matching the Interceptor’s owner.
Police never found the Interceptor owner’s missing handgun.
On September 23, after appellant’s arrest, an investigator interviewed D.C. The
investigator showed D.C. a photo of appellant taken from the bodycam footage of the
officer who briefly spoke with appellant the prior afternoon. D.C. said she did not
recognize the person in the photo. D.C. told the investigator that the man in her car the
preceding evening was called “One.” D.C.’s friend K.B. joined the interview and said she
knew a person with appellant’s name, but she did not recognize the person in the photo.
5
The investigator showed K.B. appellant’s jail roster photograph and K.B. identified
appellant as the person she knew.
The investigator interviewed K.B. again on November 12, 2020. During the
interview, the investigator asked K.B. “Okay, so [D.C.] told you that [appellant] was the
one that was in the car?” K.B. answered “mmm-hmm” affirmatively. K.B. also told the
investigator, “That was [appellant] in [D.C.]’s car with her at McDonald’s,” and that “he
did go steal [a] car.” The investigator asked if K.B. and D.C. were afraid of appellant and
K.B. answered, “He’s crazy, I mean like he was sitting in the McDonald’s and she was
ordering her food and he just kept going like hey that guy looked at me funny and he just
got out of the car and punched, started punching him or something?” The investigator
asked if “[D.C.] admitted that it was [appellant] that got out of her car.” K.B. responded
“Yea.” K.B. also stated that “[D.C.] called me the night before you came, and she told me
all about it. . . . You won’t believe what happened with [appellant], blah blah blah, but we
didn’t know about the high-speed chase part.”
The state charged appellant with third- degree assault, fifth-degree assault, theft of
movable property (a handgun), and theft of movable property (a motor vehicle). Appellant
moved to sever the assault and theft charges; the district court denied that motion after
concluding that the offenses arose out of a single behavioral incident.
Appellant demanded a speedy trial on October 20, 2020. His trial was scheduled to
begin on December 1, 2020. On November 20, 2020, the Chief Justice of the Minnesota
Supreme Court ordered:
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[S]tarting on November 30, 2020, no new jury trials will
commence before February 1, 2021, except criminal jury trials
when the chief judge in the district where the trial is to be held,
after consulting with the Chief Justice, grants an exception for
the criminal jury trial to be held in person.
See Order Governing the Continuing Operations of the Minnesota Judicial Branch, No.
ADM20-8001 (Minn. Nov. 20, 2020). The district court continued appellant’s trial to
February 1, 2021, citing the Chief Justice’s order.
Appellant’s trial began on February 2, 2021. At trial, the state called D.C. and K.B.
to testify. D.C. testified that the man in her car at McDonald’s was a friend of hers named
“One.” When asked to describe the man, D.C. stated, “He was around my height. I don’t—
he had a hood over his head, so he had, maybe, light skin, African descent. I don’t know.”
After being asked what she meant by “African descent,” D.C. testified that she meant
“Albino. I don’t know. Like, light complected, freckles, with bright red hair.” D.C. was
shown the surveillance footage from the McDonald’s. She stated that she did not recognize
the man in it and that she could not remember what “One” had been wearing that night
because, she said, “I’m a recovering addict, you know, and I don’t remember things.”
The state impeached D.C. with testimony from an officer who pulled D.C. over
shortly after the McDonald’s assault. The officer testified that D.C. told him that the person
with her was a White man in his 30s. The officer testified that D.C. said the person had
brown hair or reddish hair, wore a hooded sweatshirt and blue and black pants, and had
been in contact with law enforcement earlier in the day.
K.B. testified that she remembered speaking with the investigator in November, but
when asked if she told the investigator that appellant was in D.C.’s car at McDonald’s on
7
September 22, 2020, K.B. answered, “No. That doesn’t make sense. She was with
someone named One or something, some guy that she had a crush on . . . and she was with
him, and he was African American . . . and that’s who she was with at McDonald’s.”
The prosecutor began asking K.B. about her statements to police during the
November interview. The district court interjected and instructed the jury that K.B. was
testifying about things said by other people, which was not to be taken as evidence of guilt
but was only being admitted as evidence relevant to K.B.’s credibility.
The investigator also testified, and the video and transcript of his November
interview with K.B. were admitted as evidence. Before the jury watched the video, the
district court again instructed the jury that it would “be hearing statements that were made.
These are statements not offered as substantive evidence . . . they are offered as inconsistent
statements made by witnesses who testified yesterday, again, [K.B.] and [D.C.].” The
district court repeated the instruction after the video was played and reminded the jury that
“if there are any statements made here by other people . . . it is only evidence regarding the
credibility and believability of [D.C.] and [K.B.].”
The district court granted appellant’s motion for judgment of acquittal on the third-
degree assault charge. The jury found appellant guilty of the remaining charges: fifth-
degree assault under Minn. Stat. § 609.224, subd. 2(b) (2020), and two counts of theft of
movable property under Minn. Stat. § 609.52, subd. 2(a)(1) (2020) for theft of the handgun
and the Interceptor. The district court imposed separate sentences for each co nviction. It
sentenced appellant to 365 days’ imprisonment for the fifth-degree assault charge, 30
8
months’ imprisonment for the handgun theft, and 23 months’ imprisonment for the vehicle
theft, to be served concurrently.
This appeal followed.
DECISION
I. The district court did not commit plain error by admitting K.B.’s police
interview as evidence to be used solely to determine K.B.’s and D.C.’s
credibility as witnesses.

Appellant first argues that the district court committed plain error by admitting a
transcript and video of K.B.’s November interview because those statements were
inadmissible hearsay evidence.
Appellant did not object to admission of the transcript or video at trial. We therefore
review the admission of them for plain error. See Minn. R. Crim. P. 31.02; State v.
Manthey, 711 N.W.2d 498, 504 (Minn. 2006). To show plain error, appellant must show:
(1) error, (2) that was plain, and (3) that affected his substantial rights. Id. If all three
conditions are satisfied, we then determine “whether it is necessary to address the error to
ensure the fairness and integrity of judicial proceedings.” Id.
“An error is plain if it was clear or obvious,” which is usually established if the error
contravenes case law, a rule, or a standard of conduct. State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006) (quotation omitted). Hearsay is an out-of- court statement offered to
prove the truth of the matter asserted. Minn. R. Evid. 801(c). Hearsay is inadmissible
unless it fits under one of several exceptions. See Minn. R. Evid. 802.
Appellant argues that the following four out-of-court statements from K.B.’s
November interview constitute inadmissible hearsay: (1) K.B.’s affirmative answer when
9
the investigator asked her if D.C. said that appellant was in D.C.’s car; (2) K.B.’s statement
to the investigator that D.C. told her “[appellant’s] crazy, I mean like he was sitting in the
McDonald’s and she was ordering her food and he just kept going hey that guy looked at
me funny and he just got out of the car and punched, started punching him or something”;
(3) K.B.’s affirmative answer when the investigator asked her if D.C. admitted to her that
it was appellant who had gotten out of D.C.’s car; and (4) K.B.’s statement to the
investigator that D.C. told her “you won’t believe what happened with [appellant]” and
then asked K.B. to help her by coming to D.C.’s first interview with the investigator.
Appellant fails to establish any of the three plain-error requirements concerning the
admission of these statements.
First and foremost, K.B.’s out-of-court statements were admitted only as
impeachment evidence. P rior inconsistent statements offered to impeach a testifying
witness are not hearsay. See Minn. R. Evid. 801 1989 comm. cmt. (“If the out of court
statement is being offered for some other purpose, such as . . . for impeachment purposes
it is not hearsay.”); State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004) (“If a statement is
offered to show something other than the truth of the matter asserted, for example to
impeach a witness . . . it is not hearsay.”). When K.B. began testifying about the prior
statements, the district court promptly interjected sua sponte and instructed the jury that
those statements could not be used as substantive evidence of appellant’s guilt and could
only be used to judge the credibility of K.B.’s and D.C’s trial testimony. The district court
repeated that instruction both before and after the state played the video of K.B. ’s
10
interview. We assume on appeal that the jury followed the district court’s instructions. See
State v. Vang, 774 N.W.2d 566, 578 (Minn. 2009).
Appellant argues that the statements were nevertheless inadmissible hearsay
because to qualify as a prior inconsistent statement under the hearsay rules, the inconsistent
statement must have been given under oath at a trial, hearing, or other proceeding, or in a
deposition. See Minn. R. Evid. 801(d)(1)(A). But that rule applies when a prior
inconsistent statement is being offered as substantive evidence of guilt, not when it is being
offered only to impeach a witness’s credibility. Here, the district court repeatedly and
properly instructed the jury that the challenged statements were not substantive evidence.
Appellant also argues that the district court’s limiting instruction required the jury
to accept the truth of K.B.’s prior statements. In addition to being implausible on its face,
D.C.’s and K.B.’s testimony was also inconsistent with their earlier statements. The jury
could, without accepting the truth of the prior inconsistent statements offered at trial,
properly use those statements to measure the reliability of their trial testimony.
The law limits the state’s ability to impeach its own witnesses with prior inconsistent
statements. Impeachment of a prosecution witness is not permitted if the prosecutor knows
that the witness intends to testify inconsistently, and its sole reason f or calling the witness
is to make jurors aware of the prior statements. State v. Dexter, 269 N.W.2d 721-22 (Minn.
1978). But this rule does not apply if the witness has not revealed an intent to recant before
testifying, Moore v. State, 945 N.W.2d 421, 430 (Minn. App. 2020), rev. denied (Minn.
Aug. 11, 2020), and appellant has not argued, nor could he argue on this record, that the
state had advance notice that K.B. and D.C. were going to testify at trial in a manner
11
inconsistent with their prior statements. Because the prior out- of-court statements were
impeachment, not substantive, evidence, and because the record contains nothing to
suggest that the state was aware of the intention of K.B. and D.C. to testify contrary to their
earlier statements, it w as not error for the district court to admit those earlier statements.
As discussed above, the district court properly and commendably instructed the jury of the
limited use to which the jury could put the inconsistent out-of-court statements.
Second, even if we concluded that the statements were admitted in error—which we
do not—any error was not plain. “The number and variety of exceptions to the hearsay
exclusion make objections to such testimony particularly important to the creation of a
record of the [district] court’s decision-making process in either admitting or excluding a
given statement.” Manthey, 711 N.W.2d at 504. A defendant’s failure to object at trial
deprives the state of the opportunity to establish a statement’s admissibility under a
hearsay-rule exception. Id. Because of the “complexity and subtlety” of the hearsay rule
and its numerous exceptions, admission of a hearsay statement rarely constitutes plain
error. Id. Here, the state argues that there may have been exceptions to the hearsay-
exclusion rule that would apply to the challenged statements. We need not accept those
arguments but simply note that no error was plain on this record.
Finally, even assuming error that was plain, and assuming further that the jury
disregarded the district court’s repeated instructions that it should not use the out-of-court
statements as substantive evidence, the statements’ admission did not affect appellant’s
substantial rights. The evidence of appellant’s guilt here is overwhelming and includes
12
S.H.’s eyewitness identification of appellant as his ass ailant and appellant’s arrest in the
vicinity of the stolen Interceptor after it was abandoned.
We therefore easily conclude that it was not plain error for the district court to admit
K.B.’s statements to the investigator as impeachment evidence.
II. Appellant was not improperly denied his right to a speedy trial.
Appellant next argues that his constitutional right to a speedy trial was violated
because his trial did not begin until 105 days after his speedy-trial demand.
Under the United States and Minnesota constitutions, criminal defendants have the
right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Whether a defendant
was denied a speedy trial is a constitutional question that we review de novo. State v.
Osorio, 891 N.W.2d 620, 627 (Minn. 2017).
To determine whether a defendant has been unconstitutionally denied his right to a
speedy trial, we apply the four-factor balancing test outlined in Barker v. Wingo, 407 U.S.
514 (1972). See State v. Mikell, 960 N.W.2d 230, 245 (Minn. 2021). The four factors are:
(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted
his right to a speedy trial; and (4) whether the delay prejudiced the defendant. Barker, 407
U.S. at 530-33. No one factor is dispositive or necessary to establish a speedy-trial
violation. Id. at 533. Ultimately, we balance the factors to answer the essential question
of “whether the State brought the accused to trial quickly enough to avoid endangering the
values that the right to a speedy trial protects.” Mikell, 960 N.W.2d at 245.

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A. Length of the Delay
We first consider the length of the delay. This factor serves two purposes. It serves
as an initial “triggering mechanism.” Barker , 407 U.S. at 530. There must be some
“presumptively prejudicial” delay before further review is necessary. Osorio, 891 N.W.2d
at 628. Delays beyond 60 days of a defendant’s speedy-trial demand are considered
presumptively prejudicial. See Minn. R. Crim. P. 11.09(b). W e also consider the length
of delay; the longer a delay stretches, the less likely it can be justified by other factors.
Mikell, 960 N.W.2d at 250.
Appellant made his speedy-trial demand on October 20, 2020. His trial began
February 2, 2021, 105 days after his demand. Because appellant’s trial occurred more than
60 days after his speedy-trial demand, the delay was presumptively prejudicial, and we
must consider the remaining Barker factors.
B. Reason for Delay
The essential ques tion under the second Barker factor is whether the state or the
defendant is to blame for the delay. Osorio, 891 N.W.2d at 628. After determining which
party is responsible for the delay, we consider the specific reason for the delay. Id. A
deliberate attempt to delay the trial in order to hamper the defense weighs heavily against
the state, while neutral reasons such as negligence are weighted less heavily. Mikell, 960
N.W.2d at 251 (quoting Barker, 407 U.S. at 531). “And if there is good cause for the
delay . . . the delay will not be held against the State.” Id.
Appellant’s trial was delayed after Minnesota’s Chief Justice suspended jury trials
in Minnesota in response to the COVID-19 pandemic. See Order Governing the
14
Continuing Operations of the Minnesota Judicial Branch , No. ADM20-8001 at 1 (Minn.
Nov. 20, 2020). We held in State v. Jackson, 968 N.W.2d 55, 61 (Minn. App. 2021), rev.
granted (Minn. Jan. 18, 2022), that a delay solely attributable to the COVID-19 pandemic
is attributable to neither the state nor the defendant. Although appellant argues that the
district court could have sought an exception from the Chief Justice under the November
20, 2020 order, appellant never requested that the district court do so. We therefore
conclude that the delay is attributable to neither party and that this factor is neutral.
C. Assertion of the Right
A defendant’s assertion of his speedy-trial right is entitled to strong evidentiary
weight in determining whether he was deprived of the right. Mikell, 960 N.W.2d at 252.
Appellant repeatedly asserted his right to a speedy trial. He demanded a speedy trial
on October 20, 2020 and reasserted that demand on November 16, 2020. This factor
weighs in appellant’s favor.
D. Prejudice Due to the Delay
“We consider three interests when determining whether a defendant suffered
prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and
concern of the accused; and (3) preventing the possibility that the defense will be
impaired.” Id. at 253 (quotations omitted). Impairment of the defense is the most
significant of these interests and is typically suggested by witness memory loss or witness
unavailability. Jackson, 968 N.W.2d at 62.
Appellant argues that his pretrial incarceration was oppressive and caused anxiety
and concern because he remained in jail during a deadly pandemic, putting him at increased
15
risk of contracting COVID-19. He also argues that, because of the unpredictable delays
caused by the pandemic, he suffered more uncertainty than other defendants about whether
his trial would really proceed in February or would again be postponed.
Although appellant remained in custody from the time of his arrest until his trial,
the rules of criminal procedure do not require a defendant’s release from custody until 120
days from the date of the speedy-trial demand. See Minn. R. Crim. P. 11.09(b). Appellant
was tried 105 days after his speedy-trial demand, within the 120-day period. There is also
no record evidence that appellant suffered from any condition that made him particularly
susceptible to the COVID-19 virus. On this record, we cannot say that appellant suffered
oppressive pretrial incarceration or anxiety and concern more serious than that experienced
by other people held in custody pending trial during the COVID-19 pandemic. See State
v. Strobel, 921 N.W.2d 563, 571 (Minn. App. 2018) (noting that the expected stress and
anxiety experienced by anyone involved in a trial is insufficient to demonstrate prejudice).
Appellant argues that the delay hampered his ability to thoroughly examine witness
D.C. D.C. testified in February 2021 that she could not remember the September 2020
events. But she testified that she could not remember those events because she was on
drugs and her mental health was “wrong” and she was “really messed up.” The record is
devoid of evidence that the passage of time adversely affected D.C.’s memory—it is clear
from the record that D.C. attributed her memory problems to her drug use and mental state.
Appellant fails to show that his defense was impaired by the delay.

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E. Balancing the Factors
Finally, we engage in the balancing required to determine whether appellant was
brought to trial “quickly enough so as not to endanger the values that the speedy trial right
protects.” Mikell, 960 N.W.2d at 255.
Appellant’s trial was delayed only because it could not be held within the 60-day
time period without a special exception from the Chief Justice. The length of the delay (45
days past the 60-day demand period) was proportionate to the reason for the delay, and
appellant has not established that he was prejudiced by that delay. We conclude that he
was not unconstitutionally denied his right to a speedy trial.
III. Appellant’s two theft offenses did not arise from a single behavioral incident.
Appellant argues that he should have not been separately sentenced for his two theft
convictions because they arose out of a single behavioral incident.
Generally, “if a person’s conduct constitutes more than one offense under the laws
of [Minnesota], the person may be punished for only one of the offenses.” Minn. Stat.
§ 609.035, subd. 1 (2020). This prohibition against multiple punishment applies only if
the offenses arose out of “a single behavioral incident.” State v. Bookwalter, 541 N.W.2d
290, 294 (Minn. 1995). If multiple offenses arose out of a single behavioral incident, the
district court should impose only one sentence for the offense at the highest severity level.
Minn. Sent. Guidelines cmt. 2.B.107 (2020).
We determine whether crimes were committed as part of a single behavioral
incident by considering whether there was (1) a single criminal objective, and (2) a unity
of time and place. Bookwalter, 541 NW.2d at 294. “Whether the offenses were part of a
17
single behavioral incident is a mixed question of law and fact, so we review the district
court’s findings of fact for clear error and its application of the law to those facts de novo.”
State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). The state bears the burden of proving,
by a preponderance of the evidence, that a defendant’s offenses were not part of a single
behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).
Appellant was convicted of and sentenced for two counts of theft of movable
property under Minn. Stat. § 609.52, subd.2(a)(1): one count for the vehicle theft and one
for the gun theft. Although the district court did not expressly state its findings on this
issue at sentencing, it implicitly found that the two offenses were not committed as part of
a single behavioral incident when it imposed a separate, though concurrent, sentence for
each conviction. The record supports that implicit finding.
First, the two theft offenses were not motivated by the same criminal objective.
Appellant stole the Interceptor from the Kwik Trip lot to escape and evade apprehension
for the McDonald’s assault that immediately preceded the theft of the vehicle. He quickly
entered and drove off in the unlocked and running vehicle shortly after the assault and then
drove wildly and without headlights to avoid capture by pursuing police officers. The
objective underlying the gun theft, on the other hand, was unrelated to appellant’s flight
from the McDonald’s and was apparently motivated by appellant’s desire to have and keep
the gun. Although the gun was never found, appellant did not use the gun as part of his
escape attempt, and the circumstances indicate that appellant found, and then took, the gun
sometime after the vehicle theft.
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Second, the two thefts were also not unified in time or place. Appellant stole the
Interceptor when he entered it and drove away from the gas station. Although the gun was
in the vehicle’s glove compartment, appellant took the gun out of the glove compartment
later and with the intent to keep it after he abandoned the car on the side of the highway.
Because the two thefts were not unified in time or place and were motivated by
different criminal objectives, the two offenses did not arise from a single behavioral
incident.
Appellant notes that the district court found that his offenses occurred as part of a
single behavioral incident when it denied his pretrial motion to sever the assault offenses
from the theft offenses. We first note that this determination followed appellant’s motion
to sever the assault charge from the theft charges. The district court’s pretrial order on that
issue only addressed whether the assault and theft offenses arose out of a single behavioral
incident. The district court concluded that the assault and theft convictions arose out of a
single behavioral incident because the theft of the car was motivated by an intent to escape
after the assault. Appellant does not challenge that finding and acknowledges that the
district court could properly impose separate sentences for the assault and theft convictions
because the assault and theft crimes involved two different victims. See State v. Ferguson,
808 N.W.2d 586, 590 (Minn. 2012) (“Under the multiple- victim exception, courts are not
prevented from giving a defendant multiple sentences for multiple crimes arising out of a
single behavioral incident if: (1) the crimes affect multiple victims; and (2) multiple
sentences do not unfairly exaggerate the criminality of the defendant’s conduct.”
(quotations omitted)).
19
The district court did not directly address in the pretrial order whether the two theft
offenses arose out of the same behavioral incident. We also note that the district court
correctly considered that the evidence underlying the offenses would have been admissible
at each trial even if the charges had been severed and tried separately.
Finally, while pretrial joinder follows the same analysis as posttrial sentencing
under Minn. Stat. § 609.035 (2020), pretrial joinder does not limit the district court’s
analysis during sentencing. Appellant’s theft offens es did not arise out of a single
behavioral incident. T he district court properly imposed separate sentences for both
convictions.
IV. Appellant’s claims in his pro se supplemental brief do not merit relief.
Appellant submitted a pro se supplemental brief asserting various additional claims.
We have carefully reviewed those claims and conclude that none merit relief.
Some of appellant’s pro se claims repeat arguments concerning the hearsay and
speedy-trial issues already raised in his principal brief and addressed above.
Appellant also claims that his trial counsel provided bad advice concerning his
omnibus hearing and that the state and his counsel failed to investigate other suspects.
Those claims involve facts not contained in the record on appeal and we therefore decline
to address them. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (declining to
reach merits of claim on the grounds that the appellate record was insufficient for review).
Appellant argues that the state’s original felony assault charge was improper
because appellant did not have the requisite prior qualified offenses. Appellant raised that
issue before his trial, and the district court agreed with appellant. Appellant has failed to
20
show any prejudice resulting from the state’s initial charging error, which was corrected
before his trial.
Appellant appears to challenge the sufficiency of the evidence on the grounds that
his DNA was not found in the car. In reviewing the sufficiency of circumstantial evidence,
we identify the circumstances proved and determine whether they are consistent with guilt
and inconsistent with any other rational hypothesis. State v. Silvernail, 831 N.W.2d 594,
598 (Minn. 2013). We review the evidence not as isolated facts, but as a whole. Id. at 599.
Here, the state produced evidence showing that appellant was in the area and acting
strangely; S.H. identified appellant as the man who punched him; a man matching
appellant’s description stole a vehicle from the nearby Kwik Trip just minutes after that
assault; the Interceptor was left unoccupied on the side of the road; and appellant was found
near the abandoned vehicle with his clothes covered in mud and cockleburs. Even without
DNA evidence linking appellant to the Interceptor, the circumstances proved are consistent
with appellant’s guilt and inconsistent with any other rational hypothesis. We therefore
conclude that the state’s evidence is sufficient to support appellant’s convictions.
In sum, the district court did not commit plain error by admitting K.B.’s out-of-court
statements to the investigator, appellant’s speedy trial rights were not unconstitutionally
violated by the COVID-19-related delay of his trial, and the district court did not err by
imposing separate sentences for his two theft convictions that did not arise from a single
behavioral incident.
Affirmed.