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This opinion is nonprecedential except as provided by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
A22-0521

State of Minnesota,
Respondent,

vs.

Courtney Wade Locke,
Appellant.

Filed March 13, 2023
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File No. 27-CR-19-30078

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

Mary F. Moriarty, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his conviction for violating a domestic abuse no-contact order,
arguing that the district court denied his right to confrontation by admitting a body- camera
recording of the nontestifying victim’s out -of-court statements. Appellant also asserts he
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is entitled to resentencing based on the erroneous calculation of his criminal -history score.
We affirm his conviction but reverse and remand for resentencing.
FACTS
In December 2019, law enforcement responded around 2:00 a.m. to a call reporting
an “unknown trouble” in an apartment in Minneapolis. An officer wearing a body camera
approached the door of the apartment, heard a female voice screaming, and opened the
unlocked door. The following paragr aph describes a portion of the officer’s body- worn-
camera recording later played at trial.
The officer was greeted by a man and the officer stated that he had received “a bunch
of calls about you guys.” From behind the door, a female voice cried out, “Yes, I did,” an d
the officer stepped inside. The officer discovered a wheelchair -bound woman, later
identified as R.M.T., who had blood on her swollen face from a laceration. The officer
assumed the man was R.M.T.’s assailant and ordered the man to put his hands behind his
back. T he woman yelled, “It’s not him.” The officer asked who did it . W hile crying,
R.M.T. replied, “He ran out the back door. He’s got on a white jacket with a ponytail.”
The officer asked, “Where did , ponytail, white dude? Black du de?” R.M.T. responded,
“No. Native American.” The officer’s partner asked, “What’s his name?” R.M.T.
responded, “Courtney Locke.” The officer and his partner informed the man and R.M.T.
that they would look for the assailant and then return.
In the alleyway behind the apartment building, the officer and his partner saw an
individual with a long ponytail wearing a winter jacket inside out walking quickly away
from the apartment building. They arrested the man, later identified as appellant Cou rtney
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Wade Locke, and discovered a small, tan , women’s wallet and R.M.T.’s Minnesota
identification card in the pocket of the white winter jacket. The officer ran a search using
R.M.T.’s identification and discovered that there was a no-contact order betw een Locke
and R.M.T. The officer returned to the apartment, called an ambulance to treat R.M.T.’s
facial injury, and took R.M.T.’s statement. R.M.T. said that she shared the apartment with
Locke and that she was lying in bed when Locke struck her three t imes in the face with a
closed fist and kicked her in the torso.
Respondent State of Minnesota charged Locke with felony violation of a no-contact
order and felony domestic assault. Later, the state amended its complaint and charged
Locke with fifth-degree assault. Before the district court conducted the jury trial, the state
moved to admit R.M.T.’s statements to the officer and his partner in the apartment that
were captured by the officer’s body-worn camera. The district court determined that the
statements were nontestimonial and did not violate Locke’s rights under the Confrontation
Clause because (1) the statements were made in the context of relating Locke’s current
location, (2) R.M.T. was afraid of Locke, (3) Locke still posed an immediate threat to
R.M.T., and (4) the interaction between R.M.T. and the officers was brief and informal.
R.M.T. did not testify at trial . The jury heard testimony from the responding officer who
wore the body camera and reviewed the recording of the exchange between the officer, his
partner, and R.M.T. in the apartment. Another officer testified about the content of the no-
contact order that identified Locke as the defendant and R.M.T. as the protected pe rson.
The jury found Locke guilty of fifth-degree assault and violating a no-contact order,
and not guilty of felony domestic assault. The district court sentenced Locke to 80 days in
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jail for fifth -degree assault and 18 months in prison, stayed for three years, for violating
the no-contact order .
This appeal follows.
DECISION
I. Admission of R.M.T.’s statements on the officer’s body-worn-camera
recording did not violate Locke’s constitutional right to confrontation.

The Sixth Amendment to the United States 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; see also Minn. Const. art. I, § 6; State v.
Hull, 788 N.W.2d 91, 100 (Minn. 2010) (“We apply an identical analysis under both the
state and federal Confrontation Clauses.”). The Confrontation Clause bars the admission
of a prior testimonial statement of a person who does not testify at trial, subject to
exceptions. Crawford v. Washington, 541 U.S. 36, 53- 54 (2004). As a result, the
admissibility of a prior statement under the Confrontation Clause depends on whether the
statement is testimonial in nature. Davis v. Washington, 547 U.S. 813, 821 (2006). While
evidentiary rulings are within the district court’s discretion, whether the admission of
evidence violates a defendant’s rights under the Confrontation Clause is a question of law
that is reviewed de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
To determine w hether a statement made to a police officer is testimonial, we
consider the primary purpose of the interrogation. State v. Wright, 726 N.W.2d 464, 472
(Minn. 2007). A statement is testimonial when “the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal prosecution.” Id.
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(quotation omitted). A statement is nontestimonial when it is made “under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Id. (quotation omitted ). Nontestimonial
statements arise if police questioning “relate[s] directly to addressing the emergency.”
State v. Warsame, 735 N.W.2d 684, 694 (Minn. 2007).
The Supreme Court in Davis articulated four objective factors to be considered
when determining whether a victim’s statements were made to meet an ongoing
emergency: (1) the victim described events as they happened and not past events; (2) any
“reasonable listener” would conclude that the victim was facing an ongoing emergency;
(3) the questions asked and answers given were necessary to resolve a present emergency,
rather than only to learn what happened in the past; and (4) there was a low level of
formality in the interview because the victim’s answers were frantic and her environment
was not tranquil or safe. 547 U.S. at 827.
Locke contends R.M.T.’s statements to the officers were testimonial in nature
because the assault on R.M.T. was already o ver and her statements were geared toward
describing past events . Upon “objectively evaluating the statements and actions of the
parties . . . in light of the circumstances,” we disagree that R.M.T.’s statements were
testimonial. Michigan v. Bryant, 562 U.S. 344, 370 (2011). R .M.T.’s statements focused
on identifying her assailant. Though the assault happened in the past, before the police
arrived, R.M.T.’s statements in the recording did not describe the circumstances under
which she was injured. Rather, her statements focused on stopping the officers from
6
apprehending the man in her apartment and describing her assailant, Locke, who had just
fled the apartment building.
On the second Davis factor, a reasonable listener would likely conclude that R.M.T.
was facing an ongoing emergency. At trial, the officer testified he heard yelling and
believed an assault was still occurring when he arrived at the apartment door. The body-
worn-camera recording also depicts a disordered scene as the officers tried to quickly learn
who and where the assailant was while R.M.T. was sitting at a table, crying, yelling her
responses, and bleeding significantly from a swelling laceration on her face.
Locke contends that the emergency was over because when the officers arrived on
the scene, Locke was no longer present and a threat to the victim. But our caselaw does
not “restrict what may constitute an ongoing emergency to such a limited area” based on
the victim’s location. Warsame, 735 N.W.2d at 693-94. “[T]he necessity to assess the
assailant and any threat to personal safety is equally applicable when the police are
pursuing [an] assailant outside of the victim’s proximity.” Id. at 694. Locke’s absence
from the apartment does not, by itself, stop the ongoing emergency and render R.M.T.’s
statements testimonial. C.f. Hammon v. Indiana, 547 U.S. 813, 830 (2006) (determining
no emergency was in progress when police arrived and kept the assailant and victim in
separate rooms while the victim was questioned). We note Locke had very recently fled
from the scene after an alleged violent assault. In fact, Locke shared the apartment with
R.M.T. and presumably posed an ongoing threat because he had access to the apa rtment
and might return. See State v. Washington, 725 N.W.2d 125, 133 (Minn. App. 2006), rev.
denied (Minn. Mar. 20, 2007) (finding statements in a 911 call to be nontestimonial and to
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resolve an ongoing emergency when the assailant had the ability to ret urn to the crime
scene to assault the victims).
On the third factor, the questions asked and answers given were largely to resolve a
present emergency. In Bryant, police responded to a call that a man had been shot and
officers did not know the location of the shooter or any additional circumstances about the
shooting. 562 U.S. at 375-76. The court found that the officers’ questions to the victim
about what happened and who shot him were “the exact type of questions necessary to
allow the police to assess the situation, the threat to their own safety, and possible danger
to the potential victim and to the public .” Id. at 376 (quotation omitted). The victim
immediately identified the shooter and provided a physical description while bleeding from
a gunshot wound and awaiting emergency services. Id. at 375. “In other words, [the
officers] solicited the information necessary to enable them to meet an ongoing
emergency.” Id. at 376 (quotation omitted).
Here, the officers arrived only with the information that a n “unknown trouble” was
occurring in the apartment. The officer testified they were greeted at the apartment
complex door by a neighbor, who the officer be lieved to be the 911 caller. The officer
testified the neighbor told them, “They are still going at it.” When the officer discovered
R.M.T. crying and bleeding from a facial laceration, the officer mistakenly assumed the
man in the apartment was her assailant. Rather than describing past events, R.M.T.’s initial
statements were made to ensure that her at -large assailant was apprehended, not an
innocent man. The officer’s clarifying question asking “who did it” prompted R.M.T., like
the victim in Bryant, to say that her assailant fled from the apartment and to provide a brief
8
description of him—he wore a white jacket and ponytail . The officers’ follow-up questions
asked about the assailant’s name and race. And R.M.T.’s answers developed her assailant’s
description, ensuring that the correct suspect would be apprehended and inform ing the
officers “whom they are dealing with.” See Davis , 547 U.S. at 832 (“We have already
observed of domestic disputes that officers called to investigate need to know whom they
are dealing with in order to assess the situation, the threat to their own safety, and possible
danger to the potential victim. Such exigencies may often mean that initial inquiries
produce nontestimonial statements.”) . The officers did n ot try to elicit any information
about the altercation leading to R.M.T.’s injury. Their questions focused on what looked
like an ongoing emergency, rather than on creating a record for future prosecution. On
these facts, it is hard to conclude that the officer’s questions and R.M.T.’s statements were
to “prove past events potentially relevant to later criminal prosecution.” Id. at 822.
Finally, the exchange between R.M.T. and the officers exhibited a low level of
formality. The interaction in the apart ment lasted under one minute. R.M.T. raised her
voice while crying to respond to the officers’ clarifying questions, reflecting she was
frantic, upset, and in pain from the facial laceration that was bleeding significantly.
Taken together, an objective analysis of the statements and actions of the officers
and R.M.T., as well as the contemporaneous circumstances, show that the “primary
purpose of the interrogation [was] to enable [the officers] to meet an ongoing emergency.”
Wright, 726 N.W.2d at 472. Thus, R.M.T.’s statements were nontestimonial in nature and
their admission did not violate Locke’s constitutional right to confrontation.
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II. Locke is entitled to resentencing based on his correct criminal -history score.

The district court is afforded great discretion in the imposition of sentences and this
court will reverse sentencing decisions only for an abuse of discretion. State v. Soto, 855
N.W.2d 303, 307- 08 (Minn. 2014). A district court must use accurate crimin al-history
scores to impose presumptive sentences that comply with the sentencing guidelines. State
v. Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Any sentence based on an incorrect
criminal-history score is an illegal sentence correctable at any time. Id. at 147. When a
defendant is sentenced based on an incorrect criminal-history score, the district court must
resentence the defendant. State v. Provost, 901 N.W.2d 199, 202 (Minn. App. 2017).
The parties agree that Locke was sentenced based on an erroneously high criminal -
history score of two 1 and has a right to be resentenced based on a criminal-history score of
one. We agree. But the parties disagree as to how the district court should have arrived at
Locke’s criminal-history score when dealing with a partial custody -status point . An
offender’s criminal-history score is the sum of points assigned to their custody status at the
time of the offense and points assigned to certain prior felonies, gross misdemeanors,
misdemeanors, and juvenile adjudications. Minn. Sent’g Guidelines 2.B (Supp. 2019) .
Prior felony points are calculated by assigning a “particular weight for every felony
conviction” before sentencing on the present offense . Minn. Sent’g Guidelines cmt.

1 For violating the no- contact order, the district court sentenced Locke to 18 months in
prison and stayed the execution of his sentence based on Locke’s two criminal -history
points. See Minn. Sent’g Guidelines 4.A, 5.A (Supp. 2019) (showing that 18 months and
presumptive stayed sentence is the guidelines sentence corresponding to a level four
offense and criminal-history score of two).
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2.B.101. Custody- status points are assigned when offenders were under some form of
eligible criminal justice supervision when they comm itted the present offense. Minn.
Sent’g Guidelines cmt. 2.B.201.
Locke’s presentence investigation report and sentencing worksheet reflected that he
had a total criminal -history score of two based on the sum of 1.5 felony points and 0.5
custody-status points. But when the sum of the weighted felony points leads to a partial
point, the point value for felony points must be rounded down to the nearest whole number.
Minn. Sent’g Guidelines 2.B.1.i. Applying the rounding rule to Locke’s felony points,
Locke is left with one felony point and 0.5 custody- status points for a total of 1.5 criminal-
history points. But the sentencing grids’ horizontal axes, which reflect an offender’s
criminal-history score, contain only whole numbers. See Minn. Sent’g Guidelines 4.A,
4.B, 4.C (Supp. 2019). In State v. Beganovic, this court adopted the Minnesota Sentencing
Guidelines Commission’s interim guidance that addressed an error in the calculation of
criminal-history scores when partial -custody points were present and held that a partial
custody-status point should be disregarded when calculating a presumptive sentenc e. 974
N.W.2d 278, 288 (Minn. App. 2022) . According to the interim guidance and Beganovic,
Locke’s total 1.5 criminal-history points are effectively treated as a criminal-history score
of one for determin ing his presumptive sentence because Locke’s partial custody -status
point is disregarded. 2 Id. Because Locke’s criminal -history score was incorrectly

2 The interim guidance memorandum provides instruction for calculating a criminal-history
score using facts identical to this case as an example. See Minn. Sent’g Guidelines
Comm’n, Half Custody Status Point Problem – Interim Guidance (Jan. 15, 2022),

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calculated and the incorrect score was used to determine his presumptive sentence, Locke’s
sentence is illegal. Maurstad, 733 N.W.2d at 142-47. We reverse and remand for
resentencing based on his correct criminal-history score.
Affirmed in part, reversed in part, and remanded.

https://mn.gov/sentencing-guidelines/assets/20220115- MSGC-
PartialPointsinCriminalHistory_tcm30-515455.pdf [https://perma.cc/LH7M-2KHH]
(determining that 0.5 custody- status points and 1.5 felony points leads to an accurate
criminal-history score of 1.5, which should be treated as a criminal -history score of 1 for
finding the presumptive sentence).