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This opinion is nonprecedential except as provided by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
A23-1708

State of Minnesota,
Respondent,

vs.

John Warren Harris,
Appellant.

Filed December 2, 2024
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Ramsey County District Court
File No. 62-CR-20-414

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

John Choi, Ramsey County Attorney, Anna R. Light, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant John Warren Harris challenges his convictions for multiple counts of
criminal sexual conduct, domestic assault, and domestic assault by strangulation , arguing
that the charges in counts 5-6, should have been severed from counts 1-4, because they
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were unrelated, and that the district court erred by including appellant’s Florida convictions
in his criminal history score. We affirm in part, reverse in part, and remand.
FACTS
Appellant met E.R. in Florida, where they both resided and worked in the moving
industry. E.R. testified that they had been in a romantic relationship for “a few weeks to a
month.” In January 2020, E.R., appellant, and M.U. contracted to do a job in Minnesota,
where E.R.’s parents lived.
On January 7, E.R. met appellant and M.U. around 10:30 p.m. at a bar and found
them already drunk. The three of them took selfies and continued drinking until around
12:00 a.m. – 1:30 a.m. on January 8. Appellant had booked a room at a motel next door to
the bar; he and E.R. planned to have a few drinks, spend the night there, and go straight to
work the next day. M.U. excused himself to sleep in his 18 -wheeler in the motel parking
lot. E.R. testified that , as she and appellant left the bar , they got into an argument over
appellant being “jealous about something.”
In the hotel room, their argument escalated. Appellant started beating E.R. , took
her cellphone, and ripped the phone out of the hotel room so she could not call for help .
Appellant continued to beat E.R. while telling her he was going to kill her . After he had
choked her to the point where she passed out, she woke u p in the shower with appellant
slapping her face to revive her . Appellant then dragged E.R. to the bed and sexually
penetrated her vagina with his penis. E.R. did not remember what stopped the abuse; she
speculated that she fell asleep out of exhaustion or was knocked out.
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When E.R. woke up later in the morning , all her clothing had been removed. She
tried to act normally from fear of being beaten up again or killed, but when appellant woke,
he tried to kiss E.R., got on top of her, and spread her legs open. She repeatedly closed her
legs as she cried. Appellant vaginally penetrated E.R. for about a minute before releasing
her and complaining that she had broken his thumb the previous night. E.R. testified that
her whole body, including her vagina, was in serious pain during the morning assault.
Appellant eventually returned E.R’s phone, and she recorded a conversation in
which she asked him “[W]hy did you do that to me?” Appellant left the motel to check in
with M.U. and go to the moving job; he excused E.R.’s absence due to illness. E.R. then
called the police and her father, who came to pick her up. E.R. went straight to the hospital
where she had several medical exams and was given numerous medications.
The state initially charged appellant with four counts related to his conduct towards
E.R. in the early morning hours of January 8: (1) criminal sexual conduct in the first degree
(penetration, injury, use force or coercion); (2) criminal sexual conduct in the third degree
(force or coercion); (3) domestic assault (felony); and (4) domestic assault by strangulation.
The state later amended its complaint to include two counts related to appellant’s conduct
later that morning: (5) criminal sexual conduct in the first degree (injury, use of force or
coercion); and (6) criminal sexual conduct in the third degree (force or coercion).
Before trial, appellant moved the district court to sever counts 5 and 6. The district
court denied the motion, stating:
I am going to deny the defense’s motion, and I am relying upon
Minnesota Rules of Criminal Procedure Rule 17.03 and State
v. Profit, as the defense has indicated. The question with regard
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to severing or joining charges is whether or not the charges are
related . . . [and] it appears these are, from what the parties are
telling me, the same two parties; the same location, Motel 6;
the same day, January 8; and the time in between the
allegations is less than 12 hours . . . and there is nothing
intervening or anything to break up the first allegation and the
second allegation.

The jury found appellant guilty on all six counts. The district court sentenced
appellant to 216 months in prison on count 1, based on a criminal history score of three,
and to 18 months in prison on count 3 , based on a criminal history score of two. The
sentences were concurrent. Each criminal history score included appellant’s prior
convictions in Florida. This appeal follows.
DECISION
I. Denial of the Motion to Sever
We review de novo a district court’s denial of a motion to sever of offenses under
Minn. R. Crim. P. 17.03. State v. Kendell, 723 N.W.2d 597, 607 (Minn. 2006). “On motion
of the prosecutor or the defendant, the court must sever charges if: (a) the offenses or
charges are not related, [or] (b) before trial, the court determines severance is appropriate
to promote a fair determination of the defendant’s guilt or inno cence of each offense or
charge. . . .” Minn. R. Crim. P. 17.03, subd. 3. “Therefore, when faced with a motion for
severance of offenses, a district court must first decide whether the offenses are related
and, if they are related, must determine whether joinder would prejudice the defendant.”
Kendell, 723 N.W.2d at 607. Appellant argues that (a) his offenses are not sufficiently
related, (b) joinder prejudiced his right to a fair trial, and (c) he was not able to properly
defend against all six counts.
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A. Relationship of the Charges
Appellant argues that joinder was improper because counts 1-4 were not sufficiently
related to counts 5-6. A district court shall sever offenses if they are not related. Minn. R.
Crim. P. 17.03, subd 3(1)(a). In determining whether offenses are related, a district court
considers whether they were “part of a single behavioral incident or course of conduct.”
State v. Profit, 591 N.W.2d 451, 459 (Minn. 1999). To make that determination, a district
court looks to (1) the “temporal and geographic proximity of the offenses” and (2) “whether
the conduct was motivated by an effort to obtain a single criminal objective.” Kendell, 723
N.W.2d at 608. Whether multiple offenses arise from a single behavioral incident is
dependent upon the particular facts and circumstances of each case . State v. Gilbertson,
323 N.W.2d 810, 812 (Minn. 1982).
Appellant argues that, while the offenses involved the same victim in the same hotel
room, they were separated by time and thus were not part of a single behavior al incident,
and that the two sets of counts, 1-4 and 5-6, lacked a single criminal objective because they
were not part of a premediated plan or prearranged program of events because each set had
its own independent foundation. See State v. Bookwalter , 541 N.W.2d 290, 296 (Minn.
1995). Appellant also notes that courts have rejected broad criminal objectives such as
“abusive behavior” that might cover both counts 1-4 and counts 5-6, relying on State v.
Eaton, 292 N.W.2d 260, 266 -67 (Minn. 1980) and State v. Secrest, 437 N.W.2d 683, 685
(Minn. App. 1989), rev. denied (Minn. May 24, 1989).
But case law indicates that the charges against appellant constituted one behavioral
incident. See, e.g., State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996) (concluding that two
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robberies were related because they were separated by minutes in time and one block in
distance and they shared the “objective of obtaining money through robbery”); State v. Ivy,
902 N.W.2d 652, 659 (Minn. App. 2017) (concluding that the motivation of a single
criminal objective to traffic women in the sex trade , even when coupled with a broad
interpretation of geographic and time relations, constituted one behavioral incident); State
v. Dick, 638 N.W.2d 486, 491 (Minn. App. 2002) (concluding that two burglary charges
were related because of the proximity of the burglarized cabins, the timing, and the shared
criminal objective).
Here, counts 1-4 are closely related to counts 5-6 because the only thing separating
them was a few hours of sleep. They occurred in the same motel room and with the same
victim, who was still naked and in pain from the first assault during the second assault.
Appellant even refer red to his previous assault during his second assault when he
complained that E.R. had broken his thumb.
Appellant’s offenses also had a single criminal objective. Appellant argues that his
broad motivations did not satisfy the standard of relatedness . We disagree. The record
indicates that all six counts arose from the argument between appellant and E.R. over
“jealousy” and were motivated by appellant’s desire to assault E.R. both physically and
sexually. Moreover, E.R. was still in pain from the first assault when appellant assaulted
her after a few hours of sleep; the second assault was worse because she had not recovered
from the first. In Profit, two offenses were considered unrelated in part because there was
no indication that “either offense was dependent on or incidental to the other.” Profit, 591
N.W.2d at 459. (emphasis added).
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Appellant also argues that counts 1 -4 could have been prove d independently of
counts 5-6, and thus the two sets of counts are not part of a single behavioral incident.
Relying on, State v. Butcher, 563 N.W.2d 776, 784 (Minn. App. 1997), rev. denied (Minn.
Aug. 5, 1997). But “[a]ll the offenses, if prosecuted, shall be included in one prosecution
which shall be stated in separate counts .” Minn. Stat. § 609.035, subd 1 (2018).
Appellant’s argument fails because the charges against him likely could not have been
proved independently. See State v. Knight, 260 N.W.2d 186, 187 (Minn. 1977) (holding
that two assaults against the same victim separated by a twelve hour “short period of
apparent reconciliation” were held to be so closely related that trying the m separately
would have violated Minn. Stat. § 609.035). The same is true here, because a person who
has committed more than one offense “may be punished for only one of the offenses and a
conviction or acquittal of any one of them is a bar to prosecution for any other of them.”
Minn. Stat. § 609.035, subd. 1.1
B. Prejudice of Joinder
Even if offenses are related, the court must decide whether joinder would prejudice
the defendant. Kendell, 723 N.W.2d at 607. “Joinder is not unfairly prejudicial if evidence
of each offense would have been admissible at a trial of the other offenses had the offenses
been tried separately.” Id. at 608. Appellant argues that the district court’s joinder of all
counts prejudiced his right to a fair trial. However, the other-acts evidence would have

1 The district court did not impose a sentence for the first -degree criminal sexual conduct
in Count 5.
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been admissible if the counts had been tried separately , as either immediate-episode, or
relationship, or Spreigl evidence, and thus joinder was not prejudicial.
Evidence of the first sexual assault could have been admitted as relationship
evidence for the second sexual assault . Relationship evidence is “any evidence of past
conduct between the alleged victim and the accused that sheds light on the relationship
between the two.” State v. Bell, 719 N.W.2d 635, 638, n.4 (Minn. 2006).
Evidence of domestic conduct by the accused against the
victim of domestic conduct, or against other family or
household members, is admissible unless the probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issue, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.

Minn. Stat. § 634.20 (2018). The assaults in counts 1 -4 and those in counts 5 -6 all
illuminated the relationship between appellant and E.R. and could have been admissible as
relationship evidence if the counts had been severed.
Evidence of all the counts could also have been admitted as immediate-episode
evidence. “[E]vidence relating to offenses that were part of the immediate episode for
which defendant is being tried may be admissible.” Kendell, 723 N.W.2d at 608
(quotations omitted). Immediate-episode evidence is separate from evidence of other prior
bad acts. Id. Immediate-episode evidence offenses must be “linked together in point of
time or circumstances so that one cannot be fully shown without proving the other.” Id.,
n.9 (quotation omitted). Here, the two sets of counts were linked together by the same
victim, the same m otel room, and the fact that the acts occurr ed only a few hours apart.
E.R. still felt fear and pain from the earlier offenses during the later offenses. Moreover,
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evidence from all six counts was collected after the offenses occurred. Thus, evidence of
each set of counts could have been admitted as immediate-episode evidence.
Finally, the evidence could have been admitted as Spreigl evidence. “[T]he analysis
. . . for Spreigl evidence serves as a useful framework for evaluating the possible prejudicial
effect of improperly joining offenses .” Profit, 591 N.W.2d at 461. And, while evidence
of prior bad acts is not admissible to show character, it may “be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). Spreigl evidence shall
not be admitted in a criminal prosecution unless the court determines:
(1) that the evidence is clear and convincing that the defendant
participated in the other offense; (2) that the Spreigl evidence
is relevant and material to the state’s case; and (3) that the
probative value of the Spreigl evidence is not outweighed by
its potential for unfair prejudice.

State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).

Appellant admits that Spreigl analysis is the correct framework for evaluating
whether an erroneous failure to sever unrelated offenses is prejudicial , but argues that ,
although the district court stated, “this could be Spreigl,” a Spreigl analysis never took
place, and also that the evidence would not have been admitted under Spreigl as “identity
was certainly not in dispute and there is no identified common plan or scheme.” Appellant
goes on to argue that the evidence would have been barred as unfairly prejudicial. See
State v. Ness, 707 N.W.2d 676, 690 (Minn. 2006) (stating that courts should address the
need for Spreigl evidence in the context of balancing the probative value of the evidence
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against its potential for unfair prejudice). Profit points to Spreigl as a “useful framework”
in severance circumstances, not as a required test. Profit, 591 N.W.2d at 461.
Here, the evidence of the other set of counts could have been admitted as Spreigl
because (1) the evidence is clear that appellant participated in the other offenses, (2) the
crimes were closely related, and (3) the close relationship of the crimes increased their
relevance and thus their probative value. See State v. Kennedy , 585 N.W.2d 385, 390
(Minn. 1998) (reasoning that close relationship between events increases the relevance or
probative value of evidence). Each set of offenses was highly relevant and material to the
other.
Overall, appellant’s argument that he was unfairly prejudiced and that “ [b]ecause
evidence of the second sexual assault could not be used for legitimate means in a separate
trial on the first sexual assault” joinder was erroneous, is unconvincing . Counts 1-4 and
counts 5-6 were closely related and highly relevant to the state’s case. And, as detailed
above, the offenses would have been admitted as immediate -episode, relationship, or
Spreigl evidence. See Profit , 591 N.W.2d at 461 (holding that joinder was justified
“because, absent joinder, evidence of either crime could have been used for legitimate
means in a separate trial on each charge.”).
C. Defense Against All Counts
Even related offenses must be severed if a district court “determines severance is
appropriate to promote a fair determination of the defendant’s guilt or innocence of each
offense . . . .” Minn. R. Crim. P. 17.03, subd. 3(1)(b). Appellant argues that he was unable
to defend against all counts at trial , relying on an American Bar Association ( A.B.A.)
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commentary that severance can be appropriate “if available defenses are inconsistent.”
A.B.A. Standards for Criminal Justice, Joinder and Severance, chap. 13-2.1 (commentary)
(1978). Appellant points out that his defense against the sexual assault (counts 1 -2) was
that he physically assaulted (counts 3 -4), but did not sexually assault E.R. But appellant
had no such defense for counts 5 -6. Id. Additionally, appellant states that he “disagrees
with appellate caselaw that indicates that the Spreigl test is the appropriate prejudice test
when the defendant claims that he cannot defend against joined charges.”
Appellant’s argument that he was unable to fairly defend himself is not persuasive
because the record demonstrates that he did provide a defense to the joined claims, arguing
that (1) the state failed to prove nonconsensual sex occurred, (2) E.R.’s testimony and prior
statements were inconsistent and , (3) E.R.’s testimony was not credible. Appellant also
does not offer an alternative to the Spreigl prejudice test, but merely suggests it does not
apply. We disagree. Thus, we conclude that , “[g]iven the close connection between the
offenses, the probative value of the evidence of each offense would not have been
substantially outweighed by the risk of unfair prejudice at a trial for the other offenses. ”
Kendell, 723 N.W.2d at 609.
II. Inclusion of Florida Convictions

Appellate courts “review a district court’s ruling with respect to a defendant’s
criminal history score for an abuse of discretion.” State v. Morgan, 953 N.W.2d 729, 732
(Minn. App. 2020), aff’d, 968 N.W.2d 25 (Minn. 2021). A “sentence based on an incorrect
criminal history score is an illegal sentence” that is “correctable ‘at any time.’” State v.
Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (quoting Minn. R. Crim. P. 27.03, subd. 9).
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For an out -of-state conviction to be included as a felony , it must “both be defined as a
felony in Minnesota, and the offender [must have] received a sentence that in Minnesota
would be a felony-level sentence.” Minn. Sent. Guidelines 2.B.5.b. The state has the duty
to prove out-of-state convictions by a preponderance of the evidence. State v. Maley, 714
N.W.2d 708, 712 (Minn. App. 2006).
Appellant did not object to his criminal history score at sentencing , and the parties
agree that the state did not put into evidence any proof regarding appellant’s Florida
convictions. Thus, the case should be remanded for resentencing to enable the state “to
further develop the sentencing record so that the district court can appropriately make its
determination.” State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008).
Affirmed in part, reversed in part, and remanded.