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This opinion is nonprecedential except as provided by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
A21-1282

State of Minnesota,
Respondent,

vs.

Jeremy Simon Garcia,
Appellant.

Filed May 2, 2022
Affirmed
Bryan, Judge

Mower County District Court
File Nos. 50-CR-18-2502, 50-CR-19-1158

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

Kristen Nelsen, Mower County Attorney, John L. Brooks , Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Jesson, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges the sentences imposed for two convictions, arguing that the
district court erred when it included an out-o f-state conviction in th e calculation of his
criminal history score. Because we conclude that the state established that the out-of-state
2
conviction was equivalent to a Minnesota felony, we affirm the calculation of the criminal
history score and the two sentences imposed.
FACTS
On November 27, 2018, resp ondent State of Minnesota charged appellant Jeremy
Simon Garcia with first-degree aggravated ro bbery. Garcia entered a guilty plea to the
charge and was conditionally released pending sentencing. While on conditional release,
Garcia was charged with fe lony escape from custody for removing his GPS monitoring
bracelet. At his sentencing hearing, Garcia pleaded guilty to the new charge, and the
district court sentenced him to a term of 12 9 months in prison for the aggravated robbery
offense and a concurrent term of 26 months in prison for the new escape offense. Garcia
appealed his sentences, challenging the calcu lation of his criminal history score and
arguing that the sentence imposed for the aggravated robbery conviction violated the terms
of the plea agreement. This court determined that the sentence imposed did not violate the
plea agreement, but we reversed and remande d for resentencing on both offenses to
consider Garcia’s objections to the criminal history score. See State v. Garcia, 2021 WL
772557 (Minn. App. Mar. 1, 2021).
At the resentencing hearing, Garcia specifically challenged the inclusion of a Texas
burglary conviction.1 The district court received testimony from the probation officer who
prepared the sentencing worksheets and admitted, without objection, the most recent pre-
sentencing investigation report as well as certified records regarding the out-of-state

1 Garcia’s criminal history includes multiple out-of-state convictio ns, but Garcia only
challenges the inclusion of the Texas burglary conviction.
3
convictions. According to the testimony give n, the probation officer reviewed the Texas
statutes, the records relating to the Texas burglary offense, the facts expressly stated in the
indictment, and the judgment of conviction. The probation officer concluded that the Texas
burglary offense involved a theft of property and that it was equivalent to a felony in
Minnesota.
The district court also admitted the indict ment for the Texas bu rglary conviction.
The indictment states that on or about September 23, 2016, Garcia “enter[ed] a building
not there and then open to the public without the effective consent of [] the owner with the
intent to commit theft” and “therein attemp ted to commit and committed theft of certain
property to wit: Ten (10) A pple I-Pads, and Four (4) Dell Computer Monitors, owed by
[the owner].” The indictment is based solely on these allegations of theft and does not
include any facts relating to any alternative methods of committing burglary, such as facts
regarding entering a building intending to commit or actua lly committing an assault.
According to the judgment of co nviction, which the district court also admitted, Garcia
pleaded guilty to the charges in the indictment, received a suspended, two-year term of
imprisonment, and was placed on supervised prob ation for five years. The state did not
offer into evidence a transcript of the plea colloquy, and Garcia gave no testimony that the
facts in the indictment differed from what he admitted at the plea hearing in Texas.
The district court determined that the probation officer testified credibly and
concluded that Garcia’s Texas burglary convi ction was the equivalent of a felony third-
degree burglary in Minnesota. The district court assigned this Texas conviction one
criminal history point and determined that Garcia had a total criminal history score of six.
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The district court then impo sed the same sentence it had pr eviously imposed for both
offenses: a term of 129 months in prison for the aggravated robbery offense and a
concurrent term of 26 months in prison for the escape offense. Garcia appeals.
DECISION
Garcia challenges the calculation of his criminal history score, arguing that the
Texas burglary conviction could have involved an intent to commit an assault, without an
actual assault occurring. A conviction in Texas under these facts, Garcia asserts, would be
the equivalent of a gross misdemeanor fourth-degree burglary in Minnesota. Because the
specific facts in the Texas burglary indictment concern theft and do not include any facts
relating to assault, we conclude that the dist rict court did not abuse its discretion when it
determined that the Texas burglary was the equivalent of a Minnesota felony.
The sentencing guidelines “provide un iform standards for the inclusion and
[weighing] of criminal history information th at are intended to increase the fairness and
equity in the considerati on of criminal history.” State v. Reece , 625 N.W.2d 822, 824
(Minn. 2001) (quotation omitted). Convictions from other jurisdictions must be considered
in calculating an offender’s criminal history score under the guidelines. Id.; see also Minn.
Sent. Guidelines 2.B.5.a (2018). An out-of-s tate conviction may be counted as a felony
only if it would be defined as a felony in Mi nnesota “based on the elements of the prior
non-Minnesota offense” and “the offender received a sentence that in Minnesota would be
a felony-level sentence.” Minn. Sent. Guide lines 2.B.5.b (2018). The state bears the
burden to “show that a prior conviction qualifie s for inclusion within the criminal history
score.” Williams v. State, 910 N.W.2d 736, 740 (Minn. 20 18). “The state must establish
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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.” State v.
Maley, 714 N.W.2d 708, 711 (Minn. App. 2006 ). We review a district court’s
determination of a defendant’s criminal hi story score for an abuse of discretion. State v.
Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), rev. denied (Minn. Aug. 20, 2002).
We begin with a discussion of the language of the Texas and Minnesota burglary
statutes before considering the evidence presented by the state. In Texas, a person commits
a burglary when the person enters a building “w ithout the effective consent of the owner
. . . with the intent to commit a felony, theft, or an assault,” Tex. Penal Code § 30.02(a)(1)
(2018), or enters a building an d “commits or attempts to co mmit a felony, theft, or an
assault,” Tex. Penal Code § 30.02(a)(3) (2018).2
In Minnesota, a person commits a felony burglary when that person enters a
building, without consent, and while in the building, either has the “intent to steal or
commit any felony or gross misdemeanor,” or actually “steals or commits a felony or gross
misdemeanor.” Minn. Stat. § 609.582, subd. 3. (2018) (defining third-degree burglary and
setting forth the maximum penalty: a term of imprisonment not to exceed five years); Minn.
Stat. § 609.02, subd. 2 (2018) (defining “fel ony” as any crime for which a term of
imprisonment of more than one year may be imposed).

2 We note that both Texas and Minnesota have statutes that criminalize certain types of
assault offenses as misdemeanors and other types as felony offenses. See Tex. Penal Code
§ 22.01 (2018) (setting forth bo th felony and misdemeanor type s of assault); Minn. Stat.
§§ 609.221, .222, .223, .2231, and .224 (2018 ) (setting forth felony , gross misdemeanor,
and misdemeanor types of assault). The par ties only dispute the application of the Texas
and Minnesota statutes regarding a misdemeanor-level assault.
6
A person commits a gross-mi sdemeanor burglary offense in Minnesota when that
person enters a building, without consent, and while in the building, either has the “intent
to commit a misdemeanor other than to steal” or actually “commits a misdemeanor other
than to steal.” Minn. Stat. § 609.582, subd. 4 (2018) (defining fourth-degree burglary and
setting forth the maximum penalty: a term of imprisonment not to exceed one year); Minn.
Stat. § 609.02, subd. 4 (2018) (defining gross misdemeanor as any crime for which a term
of imprisonment of more than 90 days, but equal to or less than one year, may be imposed).3
Comparing the burglary statutes of Texas and Minnesota, we reach two important
conclusions. First, we observe that any burglary involving a theft is a felony in Minnesota.
We reach this conclusion because the provision defining fourth-degree burglary expressly
excludes stealing and the provision defining third-degree burglary expressly includes
stealing. Compare Minn. Stat. § 609.582, subd. 3 (“[w]hoever enters a building without
consent and with intent to steal . . . or ente rs a building without c onsent and steals . . .
commits burglary in the third degree) with § 609.582, subd. 4 (“[w]hoever enters a building
without consent and with intent to commit a misdemeanor other than to steal . . . or enters

3 The burglary statute also defines first- and second-degree burglary. First-degree burglary
involves entering a dwelling wh ile another is present in th e dwelling, while possessing a
dangerous weapon or other similar item, or co mmitting an assault while in the building.
Minn. Stat. § 609.582, subd. 1 (2018). Second-degree burgl ary involves entering certain
types of buildings without co nsent (such as a dwelling, a pharmacy, a banking business,
and a religious establishment, among others ) or entering a building while possessing “a
tool to gain access to money or property.” Minn. Stat. § 609. 582, subd. 2 (2018). Given
our decision that the district court did not ab use its discretion when it determined that the
Texas burglary conviction was equivalent to a third-degree burglary offense in Minnesota,
we need not determine whether the Texas burgl ary conviction would also constitute first-
or second-degree burglary in Minnesota.
7
a building without consent and commits a misdemeanor other than to steal . . . commits
burglary in the fourth degree” (emphasis added)). 4 Similar conduct would constitute a
burglary in Texas. Tex. Penal Code § 30.02(a)(1) (relating to entering a building with the
intent to commit “a felony, theft, or an assault”); Tex. Pena l Code § 30.02(a)(3) (relating
to actually committing “a felony, theft, or an assault” while in the building (emphasis
added)). Thus, if Garcia’s Texas burglary conviction involv ed stealing or entering the
building with the intent to steal, then the Texas burglary conviction would be the equivalent
of a Minnesota felony.
Second, we observe that any burglary involving the commission of a misdemeanor-
level assault is a felony in Minnesota. State v. Olson, 382 N.W.2d 279, 282 (Minn. App
1986) (holding that the word “assault” in section 609. 582, subdivisi on 1 “includes
misdemeanor assault” and stating that “the State need not prove assault in excess of
misdemeanor assault in order to prove first degree burglary”). Similar conduct would also
constitute a burglary in Texas. Tex. Penal Code § 30.02(a) (defining burglary as entering
a building without consent and co mmitting “a felony, theft, or an assault” (emphasis
added)). Thus, if Garcia’s Texas burglary conviction involved committing an assault, then
the Texas burglary conviction would be the equivalent of a Minnesota felony.
On appeal, Garcia acknowled ges both conclusions. Garcia’s argument on appeal,
however, concerns one theoretical possibility that he believes the state failed to rule out: if

4 Garcia makes no argument regarding the valu e of the property, and we note that the
Minnesota burglary statute makes it a felony to enter a building with the intent to steal or
actually stealing property, without regard to the value of the property.
8
Garcia entered a building with out consent and with the inte nt to commit a misdemeanor-
level assault, but never actually committed the misdemeanor assault, he could have violated
the Texas burglary statute while only commit ting the equivalent of a gross misdemeanor
burglary in Minnesota. Assuming without deci ding that Garcia’s interpretation of the
Texas and Minnesota statutes is correct, we conclude that the evidence presented was
sufficient to rule out this possibility.
As noted above, the state bears the burden to prove the Minnesota equivalent of the
foreign offense by a preponderance of the evidence. Maley, 714 N.W.2d at 711. The state
introduced the Texas burglary indictment as well as uncontested evidence establishing the
fact of the Texas burglary conviction. The specific factual allegations in the indictment
relate only to theft. The indictment first states that Garcia “enter[ed] a building . . . without
the effective consent of [the ow ner] with the intent to commit theft.” In a second section
of the indictment, the allegations include a description of the property that Garcia allegedly
stole: Garcia “enter[ed] a building . . . with out the effective consent of [the owner], and
therein attempted to commit and committed theft of certain property to wit: Ten (10) Apple
I-Pads, and Four (4) Dell Computer Monitors , owed by [the owner].” Garcia does not
dispute these facts or challenge the admission of the indictment. The indictment contains
no facts regarding an assault, an intent to commit an assault, or whether Garcia expected
to or actually did encounter any other persons while inside the build ing. The probation
officer also testified that in her review and opinion, Garcia admitted the facts in the
indictment when he pleaded guilty to that o ffense. Again, there is no evidence to the
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contrary.5 Based on this uncontroverted evidence , the state carried its burden and the
district court did not abuse its discretion when it included the Texas burglary conviction in
the calculation of Garcia’s criminal history score.
Affirmed.

5 We acknowledge that the stat e could have introduced the tr anscript of the out-of-state
plea. Doing so would likely remove any doubt regarding the facts of the Texas burglary.
Introducing such proof is not required to prove the foreign conviction by preponderance of
the evidence in this case because the uncontested, specific facts in the indictment are
consistent with only one possible theory of committing the foreign offense. Cf. Shepard v.
United States, 544 U.S. 13, 26 (2005) (concluding that when reviewing a prior conviction
for purposes of applying the federal Armed Ca reer Criminal Act, a court is generally
precluded from considering polic e reports and is limited to considering “the terms of the
charging document, the terms of a plea agreement or transcript of colloquy . . . or to some
comparable judicial record of this information”); but see State v. Johnson , 411 N.W.2d
267, 270 (Minn. App. 1987) (c oncluding that the state faile d to carry its burden because
the parties relied on “contradictory statements made by appellant and complainant in [the
foreign] prosecution,” and “there is no trial court determina tion of which version of the
facts is more credible”).