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This opinion is nonprecedential except as provided by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
A22-1045

State of Minnesota,
Respondent,

vs.

Steven Douglas Nelson,
Appellant.

Filed May 30, 2023
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Isanti County District Court
File No. 30-CR-21-425

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

Jeffrey R. Edblad, Isanti County Attorney, Nicholas J. Colombo, Assistant County
Attorney, Cambridge, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Bjorkman, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
On a summer night in June 2021, appellant Steven Douglas Nelson removed his
electronic ankle monitor, borrowed his stepfather’s truck without permission, and entered
a home without consent from the homeowner, believing that it was his ex-girlfriend’s house
2
and wanting to surprise her. Respondent State of Minnesota charged Nelson with
first-degree burglary, third-degree burglary, receiving stolen property, and escape from
custody. A jury found him guilty of all four charges, and the district court sentenced him
to 60 months’ imprisonment for the first -degree burglary conviction, 24 months’
imprisonment for the receiving-stolen-property conviction, and 26 months’ imprisonment
for the escape-from-custody conviction, to be served concurrently. Because escape from
custody is a continuing offense for the purpose of a first-degree burglary conviction and
Nelson cannot demonstrate prejudice from his attorney’s actions during jury selection, we
affirm his convictions. But because the district court improperly sentenced Nelson to more
than the 12-month maximum sentence for his escape-from-custody conviction, we reverse
and remand for resentencing on that conviction.
FACTS
On June 17, 2021, Nelson was released from custody for a 2018 second-degree
burglary conviction and fitted with an electronic ankle monitor. Two days later, he
removed his monitoring device and borrowed his stepfather’s truck 1 without permission.
Around 10:00 p.m., Nelson drove to a house where he believed his ex-girlfriend was living.
After he parked the truck in the driveway and rang the doorbell, Nelson waved at the
security camera. When no one answered the doorbell, he left. Nelson returned around
11:30 p.m., rang the doorbell, and again received no answer. At trial, Nelson testified that

1 The truck belongs to Nelson’s mother’s significant other, who has been in a relationship
with Nelson’s mother for about 33 years. Accordingly, both Nelson and this opinion refer
to the truck’s owner as Nelson’s stepfather.
3
he believed he was at the same house where he and his ex-girlfriend had lived eight or nine
years ago. When they were living there, they kept the service door to the garage unlocked.
Nelson entered the house through the unlocked service door. Nelson testified that
eventually he realized that he was in the wrong house and “panicked and got the heck out
of there as fast as I could, knowing that I made a mistake.” He testified that he did not take
anything, break anything, threaten anyone, or hurt anyone. He got back into the truck and
drove away, but he returned to apologize to the homeowners.
A sheriff’s deputy arrested Nelson, and the state charged him with first-degree
burglary, third-degree burglary, receiving stolen property, and escape from custody. 2
Nelson brought a motion to dismiss the burglary charges, arguing that the state lacked
probable cause because there were insufficient facts to establish that Nelson committed or
intended to commit a crime when he was inside the house, an element of both burglary
charges. The district court denied this motion, ruling that there were sufficient facts to
support the burglary charges because when Nelson entered the home, he was “on escapee
status.” As a result, his presence in the home satisfied the committed or
intended-to-commit-a-crime element of both burglary charges.
The case proceeded to trial. During jury selection, Nelson’s attorney used a
peremptory strike on the wrong juror and stated on the record that he had made a similar
mistake earlier in the voir dire process but had corrected that mistake at the time. After
jury selection, the jury saw surveillance footage from the home depicting Nelson walking

2 These offenses violate Minnesota Statutes sections 609.582, subdivision 1(a) and
subdivision 3, 609.53, subdivision 1, and 609.485, subdivision 2(1) (2020), respectively.
4
up the driveway and ringing the doorbell, viewed a video where Nelson admitted to
entering the home without permission, and heard testimony from the homeowner whose
home Nelson had entered, Nelson’s probation officer, three law enforcement officers
involved in the incident, Nelson’s stepfather, and Nelson himself.
The jury found Nelson guilty of all four charges. Nelson moved for a new trial
based on the jury-selection error, and the district court orally denied his motion at the
sentencing hearing. The district court sentenced Nelson to 60 months’ imprisonment for
the first-degree burglary conviction, 24 months’ imprisonment for the
receiving-stolen-property conviction, and 26 months’ imprisonment for the
escape-from-custody conviction, to be served concurrently.3
Nelson appeals.
DECISION
I. The district court did not err by finding that Nelson committed the predicate
offense of escape from custody to convict Nelson of first-degree burglary.

Nelson contends that the district court erred in finding that he committed the
predicate offense of escape from custody to convict him of first-degree burglary because
escape from custody is not an ongoing offense. Nelson was convicted under Minnesota
Statutes section 609.582, subdivision 1(a). The elements of first -degree burglary are as
follows: (1) the defendant enters, (2) a dwelling, (3) without the consent of the person in
lawful possession of the dwelling, (4) when another person is present in the dwelling,

3 Though Nelson was convicted of the third -degree burglary charge, because it is a
lesser-included offense to first-degree burglary, he was not sentenced on that conviction.
5
(5) where the defendant commits or intends to commit a crime while in the dwelling.
Minn. Stat. § 609.582, subd. 1(a). Nelson only disputes the final element— that he
committed or intended to commit a crime while in the dwelling. The district court
concluded that a jury could find that Nelson escaped from custody while in the house
because, although he removed his ankle monitor before entering the house, his escapee
status continued while he was in the house. In other words, the district court found that
escape was a continuing offense. Whether escape from custody is a continuing offense
requires interpretation of the burglary statute, a question of law that we review de novo.
State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016).
The Minnesota Supreme Court has answered this question twice , holding that
escape is a continuing offense. State v. Burnett, 195 N.W.2d 189, 189 (Minn. 1972);
see State v. Washington, 908 N.W.2d 601, 606 (Minn. 2018) (citing Burnett for the
proposition that the Minnesota Supreme Court has concluded that other crimes, including
escape, are continuing offenses for the purpose of the statute of limitations). But the statute
that defines escape has been amended since Burnett was decided. At that time, Minnesota
Statutes section 609.485, subdivision 1 (1971), defined escape as “departure without lawful
authority and failure to return to custody following temporary leave granted for a specific
purpose or limited period.” And while the text of that definition remains identical today,
the statute now includes the clarification that escape includes “absconding from electronic
monitoring or removing an electronic monitoring device from the person’s body.”
Minn. Stat. § 609.485, subd. 2 (2020).
6
This modification does not change the controlling holding in Burnett.
195 N.W.2d at 189. T he statutory amendment added another act for which a defendant
could be found guilty of escape from custody, but it did not alter the fundamental principles
of the crime.
Still, focusing on the “or” in the definition of escape, “absconding from electronic
monitoring or removing an electronic monitoring device from the person’s body,” Nelson
contends that because he was convicted of removing his electronic monitor, he committed
a discrete act which cannot be a continuing offense because the offense was complete once
he removed the monitor. Minn. Stat. § 609.485, subd. 2. But this “or” is in a clarification
to the definition, not within the definition itself, which includes “departure without lawful
authority.” Id., subd 1. And if departing from custody is what makes escape a crime, then
remaining out of custody is a continuation of that crime because the crime is ongoing until
the escapee has turned themselves in or been apprehended again. Because the change to
the statute expands what acts constitute an escape rather than changes the underlying
structure of the crime, Nelson’s act of escape by removing an electronic ankle monitor, like
the escape in Burnett, was a continuing offense.
Examination of other continuing-offense cases supports this conclusion as well.
This court held in 2011 that a burglary conviction for an appellant who fled police could
be upheld based on the premise that the appellant continued to flee police when she entered
a garage without permission such that she committed a crime inside a dwelling.
Anderson v. State, 806 N.W.2d 856, 859-60 (Minn. App. 2011), rev. denied
(Minn. Jan. 17, 2012). And in State v. Jones, this court held that the appellant’s plea
7
provided a sufficient factual basis to establish a burglary conviction when he admitted to
being a felon in possession of a firearm inside a building he did not have permission to
enter. 921 N.W.2d 774, 781-82 (Minn. App. 2018), rev. denied (Minn. Feb. 27, 2019).
Further support comes from cases analyzing the statute of limitations for a
continuing offense. The supreme court in Washington held that although the language of
the predatory-offender-registration statute does not explicitly state that failure to register is
a continuing offense, the continuing obligation of the offender to register under the statute
renders failure to do so a continuing offense. 908 N.W.2d at 606. And the supreme court
held that for a statute of limitations, possession of stolen property is a continuing off ense
because property is being kept from someone in violation of a duty to return, and this duty
to return continues. State v. Lawrence, 312 N.W.2d 251, 253 (Minn. 1981).
In sum, escape by removal of an electronic ankle monitor involves a continuing
obligation to return to custody. It is a continuing offense. Therefore, we affirm on this
issue.
4
II. The district court did not err by denying Nelson a new trial based on ineffective
assistance of counsel.

Nelson maintains that he was denied effective assistance of counsel because his
attorney accidentally struck the wrong juror with a peremptory strike. When an
ineffective-assistance-of-counsel claim is properly raised in a direct appeal, we examine

4 The state also alleges that the crime of receiving stolen property can form the basis for
Nelson’s burglary convictions because he was in possession of his stepfather’s truck—
stolen property—when he entered the house. Because we hold that escape is a continuing
offense, we need not reach this argument.
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the claim under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984). State v. Ellis -Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). “We review a
district court’s application of the Strickland test de novo because it involves a mixed
question of law and fact.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
To meet the Strickland test, a party must show that (1) their counsel’s representation
“fell below an objective standard of reasonableness,” and (2) “there was a reasonable
probability that, but for counsel’s errors, the result of the proceedings would have been
different.” Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020) (quotation omitted). If one
prong is not satisfied, we may dispose of the claim without considering the other prong.
Id. We apply a strong presumption that an attorney’s performance “falls within the wide
range of reasonable professional assistance. ” State v. Jones, 392 N.W.2d 224, 236
(Minn. 1986) (quotation omitted).
Here, Nelson alleges that he was prejudiced by his attorney’s conduct when his
attorney struck the wrong juror. This court has held that an attorney’s representation during
jury selection is below the objective standard of reasonableness if the party can prove “that
defense counsel was so inattentive or indifferent during the jury selection process that the
failure to remove a prospective juror was not the product of a conscious choice or
preference.” Jama v. State, 756 N.W.2d 107, 114 (Minn. App. 2008). But while Nelson’s
attorney’s conduct might meet this standard, Nelson must also establish that “there was a
reasonable probability that, but for counsel’s errors, the result of the proceedings would
have been different.” Peltier, 946 N.W.2d at 372 (quotation omitted). Nelson fails to carry
this burden.
9
Nelson contends that this mistake deprived him of the right to be tried by a jury
composed of those persons whom he believed would be most fair. But there is no evidence
to support that with the correct juror, the outcome would have been any different. Nelson
admitted to all the elements of both burglary offenses, possession of stolen property, and
escape in his testimony and in a video recording played to the jury. The juror he meant to
strike was not the foreperson, the jury did not ask the district court questions during
deliberation, and it returned four guilty verdicts in less than one hour. Because Nelson
cannot demonstrate that his counsel’s conduct altered the result of the proceedings given
the strength of the case against him, his ineffective-assistance-of-counsel claim fails.
III. The district court erred by sentencing Nelson to 26 months’ imprisonment for
his escape-from-custody conviction.

Nelson argues, and the state agrees, that the district court erred when it sentenced
Nelson to 26 months’ imprisonment for his escape-from-custody conviction because the
statutory maximum sentence is 12 months. Whether a sentence conforms to the
requirements of a statute or the sentencing guidelines is a question of law reviewed
de novo. State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). Nelson was convicted
under Minnesota Statutes section 609.485, subdivision 2(1). And while the same statute
provides a maximum sentence of five years under subdivision 4(a)(1) (2020), subdivision
4(f) states:
Notwithstanding paragraph (a), any person who escapes or
absconds from electronic monitoring or removes an electric
monitoring device from the person’s body is guilty of a crime
and shall be sentenced to imprisonment for not more than
one year or to a payment of a fine of not more than $3,000, or
both. A person in lawful custody for a violation of
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section 609.185, 609.19, 609.195, 609.20, 609.205, 609.2112,
609.2113, 609.2114, 609.221, 609.222, 609.223, 609.2231,
609.342, 609.343, 609.344, 609.345, 609.3451, or civil
commitment under chapter 253D, or Minnesota Statutes 2012,
section 609.21, and who escapes or absconds from electronic
monitoring or removes an electronic monitoring device while
under sentence may be sentenced to imprisonment for not
more than five years or to a payment of a fine of not more
than $10,000, or both.

Minn. Stat. § 609.485, subd. 4(f) (2020) (emphasis added). Nelson was in lawful custody
for a 2018 second-degree burglary conviction under Minnesota Statutes section 609.582,
subdivision 2(a)(1) (2016). Because this statute is not one of the listed statutes that would
authorize a five-year maximum sentence, the maximum sentence for Nelson’s
escape-from-custody conviction is one year, per the first part of subdivision 4(f). Minn.
Stat. § 609.485, subd. 4(f). Because it was error for the district court to sentence Nelson
to more than 12 months’ imprisonment for this conviction, we reverse and remand for
resentencing on this count.
In sum, because escape from custody is a continuing offense for the purpose of a
first-degree burglary conviction and Nelson cannot demonstrate prejudice from his
attorney’s actions during jury selection, we affirm his convictions. But because the district
court improperly sentenced Nelson to more than the 12-month maximum sentence for his
escape-from-custody conviction, we reverse and remand for resentencing on that
conviction.
Affirmed in part, reversed in part, and remanded.