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This opinion is nonprecedential except as provided by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
A23-1841

State of Minnesota,
Respondent,

vs.

Anthony James Moore,
Appellant.

Filed January 27, 2025
Affirmed in part, reversed in part, and remanded
Cleary, Judge*

Hennepin County District Court
File No. 27-CR-22-24121

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

Mary F. Moriarty, Hennepin County Attorney, Asha Jamison-Moreland, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Worke , Judge; and Cleary,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
CLEARY, Judge
In this appeal from appellant’s convictions of fifth-degree criminal sexual conduct
and attempted fourth- degree criminal sexual conduct, appellant argues that he did not
knowingly and intelligently waive his right to counsel. He also argues that the district court
made several errors at sentencing, including (1) improperly sentencing him using a
criminal-history score that included an out-of-state conviction, (2) imposing ten years of
conditional release for attempted criminal sexual conduct, and (3) convicting him of both
fifth-degree criminal sexual conduct and attempted fourth-degree criminal sexual conduct.
Appellant also raises arguments in a pro se supplemental brief to this court. Because
appellant knowingly and intelligently waived his right to counsel, the district court properly
calculated appellant’s criminal-history score, the district court properly convicted appellant
of both fifth-degree and attempted fourth-degree criminal sexual conduct, and appellant is
not entitled to relief for the issues raised in his pro se supplemental brief, we affirm in part.
Because the district court erred by sentencing appellant to ten years of conditional release
for attempted fourth-degree criminal sexual conduct, we reverse in part and remand.
FACTS
Respondent State of Minnesota charged appellant Anthony James Moore with
gross-misdemeanor fifth-degree criminal sexual conduct (fifth-degree CSC) on
December 2, 2022, alleging that he sexually assaulted a coworker while the two of them
were cleaning hotel rooms.
3
The district court initially appointed Moore a public defender, bu t Moore later
requested that the district court discharge his appointed attorney. The district court
addressed this request at a hearing on June 2, 2023, at which Moore stated that he had
“represented [himself] several times in the state of North Dakota.” An attorney from the
public defender’s office assisted Moore with a written petition to proceed pro se, which
Moore signed. After an on-the-record inquiry about Moore’s petition to proceed pro se, the
district court discharged the public defender’s office.
The parties appeared for trial on June 20, 2023. Before trial began, the state moved
to amend the complaint to add a charge of fourth-degree criminal sexual conduct
(fourth-degree CSC). The state noted that it had “advise[ d] [Moore’s counsel] of the
[s]tate’s intention to amend if [the case] proceeded to trial,” and that the state “conveyed
to Mr. Moore via email . . . that an amendment to allege felony [fourth-degree CSC] would
carry with it registration requirements.” Moore agreed that he understood that the amended
charge was a felony, and that “in addition to potential for prison time as opposed to local
time in a workhouse, the issue of predatory offender registration arises.” Moore also stated
that he had “read the statute[s] for” both fourth-degree and fifth-degree CSC.
The district court told Moore that “the idea that you are going to now face a felony
crim[inal] sex charge without a lawyer strikes me as a bad idea, and . . . I’m willing to
reconsider the discharge [of the public defender] because now you’re facing a felony.”
Moore requested that the district court appoint him counsel but refused to accept the
reappointment of his discharged public defender.
4
Eventually, the district court arranged for Moore to speak with another public
defender. After that discussion, the district court asked if Moore wanted “to continue to
represent [him]self,” and Moore said, “I have to continue to represent myself.” Moore
affirmed that he recalled his written waiver and agreed that he still wanted to waive “all of
those things that [he] waived before.” The district court told Moore “I don’t think that’s a
good idea,” and Moore once again confirmed that he wished to waive his right to counsel.
The parties appeared for a bench trial on June 22, 2023. Before trial, Moore
confirmed that he received a copy of the amended complaint. The state called four
witnesses: the victim; the hotel’s housekeeping supervisor; and two law-enforcement
officers. Moore did not testify.
The district court made the following written findings based on the trial testimony.
On November 7, 2022, D.R., who was a housekeeper at a hotel in Rogers, was assigned to
clean hotel rooms with Moore. They cleaned four rooms with no incident, but when they
entered the fifth room, Moore “grabbed D.R. between her legs,” touching “her vagina over
her clothes with his hand.” Moore “told D.R. he wanted to have sex with her, and D.R. told
[Moore] she did not want to have sex with him.” Moore attempted “to kiss D.R. on her
lips,” but she pushed him away and said “No.” D.R. then went into the hotel room’s
bathroom and Moore closed the door. Moore asked D.R. “how much [she] would cost,”
which D.R. believed meant he was asking “ how much she would cost to have sex with
him.” D.R. told Moore she was not “for sale.” D.R. finished cleaning the bathroom then
took a 15-minute break.
5
After D.R. returned from her break, D.R. and Moore went to clean another hotel
room. When D.R. entered the bathroom to clean it, Moore closed the door to the hotel room
and entered the bathroom; Moore then “picked [D.R.] up from behind by putting both his
arms around her under her arms, and laid her down on a bed.” While D.R. was on the bed,
Moore “tried to put his hands down her pants,” and D.R. attempted to “fight[] him off.”
D.R. testified that she “thought he was going to rape [her].” Moore eventually stopped, and
D.R. left the room. D.R. told her supervisor what happened and contacted the police later
that day.
Before calling its last witness, the state moved to amend the complaint to include
attempted fourth-degree CSC, which the district court granted after all the witnesses had
testified. The district court issued a written order following trial and found Moore guilty of
fifth-degree CSC and attempted fourth-degree CSC.
A Pre-Sentence Investigation report (PSI) was prepared prior to sentencing which
listed Moore’s previous criminal convictions, including a conviction for gross sexual
imposition in Cass County, North Dakota. Moore was convicted in 2002 and sentenced to
20 years in prison. The PSI noted that this was a class A felony and assigned three criminal
history points for the offense. Based on a criminal history score of three, the PSI
recommended a sentence of 30 months and ten years of conditional release.
The parties appeared for sentencing on December 6, 2023. The district court
specified it was sentencing Moore only for attempted fourth-degree CSC and not
fifth-degree CSC because they both arose “out of one behavioral incident on the day of the
6
offense.” The district court then sentenced Moore to 30 months in the custody of the
commissioner of corrections and ten years of conditional release.
Moore appeals.
DECISION
I. Moore’s waiver of counsel was knowing and intelligent.
Moore argues that the district court “failed to obtain a knowing and intelligent
waiver of counsel” after amending the complaint to include fourth- degree CSC. Moore
does not challenge his initial waiver prior to the amended complaint. The state argues that
Moore effectively renewed his waiver of counsel after the district court added the charge
for fourth-degree CSC because Moore was aware of the change in the maximum penalty
for the offense and had an opportunity to consult with counsel.
Appellate courts “will only overturn a trial court’s finding of a valid waiver of a
defendant’s right to counsel if that finding is clearly erroneous.” State v. Worthy,
583 N.W.2d 270, 276 (Minn. 1998). “A finding is clearly erroneous when there is no
reasonable evidence to support the finding or when an appellate court is left with the
definite and firm conviction that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880,
885 (Minn. 2012). If “the facts are undisputed, however, the question of whether a
waiver-of-counsel was knowing and intelligent is a constitutional one that is reviewed de
novo.” Id.
Criminal defendants have a right to assistance of counsel. U.S. Const. amend. V I
and XIV; Minn. Const. art. 1. § 6. Criminal defendants also have “a constitutional right to
proceed without counsel when [they] voluntarily and intelligently elect[] to do so.”
7
Faretta v. California, 422 U.S. 806, 807 (1975). “[I]n order to represent [one]self, the
accused must knowingly and intelligently” waive their right to counsel. Id. at 835
(quotation omitted). A defendant who waives their right to counsel “should be made aware
of the dangers and disadvantages of self-representation, so that the record will establish
that he knows what he is doing and his choice is made with eyes open.” Id. (quotation
omitted). In Minnesota, a waiver of appointment of counsel “shall in all instances be made
in writing, signed by the defendant, except that in such situation if the defendant refuses to
sign the written waiver, then the court shall make a record evidencing such refusal of
counsel.” Minn. Stat. § 611.19 (2022). The Minnesota Rules of Criminal Procedure also
require that the district court advise an appellant of certain rights before accepting a waiver.
Minn. R. Crim. P. 5.04, subd. 1(4).
“Whether a waiver of a constitutional right is valid depends upon the particular facts
and circumstances surrounding that case, including the background, experience and
conduct of the accused.” Worthy, 583 N.W.2d at 275-76 (quotation omitted). The supreme
court has concluded that a waiver can be valid “even when a detailed on-the-record
colloquy between the defendant and the trial court was absent” if there were “circumstances
that demonstrated a valid waiver by the defendant.” Id. at 276. In Worthy, two defendants
“fired” their attorneys just before trial. Id. at 274. The supreme court concluded that, even
though the district court “did not include a recitation of the charges or potential
punishments” in the defendants’ waivers, they were still valid waivers because (1) the
defendants had been represented by counsel “for over a month before” waiving their right
to an attorney at trial, (2) the district court explained the consequences of proceeding pr o
8
se, and (3) both defendants had multiple felony convictions and court experience. Id. at
276. The supreme court noted that “[w]hen a defendant has consulted with an attorney prior
to waiver, a trial court could reasonably presume that the benefits of legal assistance and
the risks of proceeding without it had been described to defendant in detail by counsel.” Id.
(quotation omitted).
“[A]s a general rule, a defendant who has knowingly, intelligently, and voluntarily
waived his right to counsel need not renew his waiver-of-counsel at subsequent
proceedings.” Rhoads, 813 N.W.2d at 887. There is an exception to this general rule when
the consequences of a criminal conviction are substantially altered. Id. at 888. In Rhoads,
the supreme court concluded that “an amended charge that doubles the maximum possible
punishment substantially alters the consequences of a criminal conviction.” Id.
Moore was initially charged with gross misdemeanor fifth-degree CSC under Minn.
Stat. § 609.3451, subd. 1a(1) (2022). An individual convicted of gross misdemeanor
fifth-degree CSC “may 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.” Minn. Stat. § 609.3451, subd. 2 (2022).
The state amended the complaint to add a charge for felony fourth-degree CSC under Minn.
Stat. § 609.345, subd. 1(a) (2022). An individual convicted of fourth-degree CSC, “may be
sentenced to imprisonment for not more than ten years or to a payment of a fine of not
more than $20,000 or both” and “is also subject to conditional release.” Minn. Stat.
§ 609.345, subd. 2 (2022). As in Rhoads, the maximum sentence for fourth-degree CSC is
more than double that of fifth-degree CSC, and, accordingly, the consequences of
conviction were substantially altered. Rhoads, 813 N.W.2d at 888. Therefore, the district
9
court needed to obtain a knowing and voluntary renewed waiver after amending the
complaint.
The best practice for the district court in this instance would have been to require
Moore to sign a second written waiver, followed by a detailed colloquy as required under
Minn. R. Crim. P. 5.04. Moore did not, however, sign a second written waiver of counsel
after the complaint was amended, and the district court did not make an on-the -record
inquiry about the potential punishments for fourth-degree CSC. Therefore, we must
determine whether the waiver was valid based on “the particular facts and circumstances
surrounding [this] case, including the background, experience, and conduct of the
accused.” Worthy, 583 N.W.2d at 275-76.
The state argues that the circumstances in this case support the conclusion that
Moore’s renewed waiver of counsel was knowing and voluntary. Specifically, the state
argues that (1) Moore had proper notice of the amended charge, (2) the district court
“engaged in a lengthy on-the-record colloquy regarding [Moore’s] right to counsel,”
(3) Moore spoke with a court-appointed attorney before waiving his right to an attorney,
and (4) Moore had experience “representing himself in court proceedings.”
The state argues that it informed Moore of the amended charge in an email, but this
email is not part of the record. However, the record contains other evidence indicating that
Moore was aware of the amended charge and the associated penalty. Moore stated at the
June 20 hearing that he “read the statute for the fourth degree and fifth degree.” The
fourth-degree CSC statute states that “a person convicted under subdivision 1 or
10
subdivision 1a may be sentenced to imprisonment for not more than ten years or to a
payment of a fine of not more than $20,000 or both.” Minn. Stat. § 609.345, subd. 2.
Additionally, during the district court’s colloquy, Moore confirmed that he
understood that the amended charge was a felony, and that felony criminal sexual conduct
involved the “potential for prison time as opposed to local time in a workhouse” and the
potential lifetime “predatory offender registration.” The district court also warned Moore
about the consequences of proceeding pro se, stating “I don’t think that’s a good idea.”
Moore also spoke with an attorney before deciding to waive his right to counsel.
“When a defendant has consulted with an attorney prior to waiver, a trial court could
reasonably presume that the benefits of legal assistance and the risks of proceeding without
it had been described to defendant in detail by counsel.” Worthy, 583 N.W.2d at 276
(quotation omitted). Like the defendants in Worthy, Moore had the opportunity to consult
with an attorney who, presumably, informed him of the risks of proceeding without
counsel. Id.
Also, like the defendants in Worthy, Moore had experience representing himself in
other criminal cases. Id. The defendants in Worthy both had several felony convictions. Id.
Moore stated to the district court that he had represented himself “several times” for cases
in another state.
Although the district court failed to obtain a written waiver of counsel and the
district court’s inquiry did not address the increased possible punishment for the
fourth-degree CSC charge, the record shows that Moore was aware of the increased
punishment, had the opportunity to discuss continuing pro se with counsel, understood the
11
consequences of proceeding pro se, and had previous experience with criminal litigation.
Therefore, like the court in Worthy, the district court did not err by determining that Moore
knowingly and voluntarily waived his right to court-appointed counsel.
II. The district court did not abuse its discretion in calculating Moore’s criminal
history score.
Moore also argues that the district court abused its discretion “by including a North
Dakota conviction for Gross Sexual Imposition in Moore’s criminal history score because
the [s]tate did not prove that the conduct for that conviction would have been a felony in
Minnesota.” The state argues that “the record adequately supports the calculation of
[Moore’s] felony criminal-history score.”
“A sentence based on an incorrect criminal-history score is an illegal sentence” and
can be corrected at any time. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007); Minn.
R. Crim. P. 27.03, subd. 9. Appellate courts review a district court’s calculation of a
defendant’s criminal history score for an abuse of discretion. State v. Maley, 714 N.W.2d
708, 711 (Minn. App. 2006).
A criminal history score is a “sum of points from eligible [] prior felonies; [] custody
status at the time of the offense; [] prior misdemeanors and gross misdemeanors; and []
prior juvenile adjudications.” Minn. Sent’g Guidelines 2.B. (2022). “The basic rule for
computing the number of prior felony points . . . is that the offender is assigned a particular
weight for every felony conviction for which a felony sentence was stayed or imposed
before the current sentencing.” Minn. Sent’g Guidelines cmt. 2.B.101.
12
Convictions from jurisdictions other than Minnesota are considered when
calculating an offender’s criminal history score. Minn. Sent’g Guidelines 2.B.5.a. “An
offense may be counted as a felony only if ” (1) it would “be defined as a felony in
Minnesota,” and (2) “the offender received a sentence that in Minnesota would be a
felony-level sentence.” 1 Minn. Sent’g Guidelines. 2.B.5.b. To determine whether an
offense would be defined as a felony in Minnesota, a “sentencing court should compare
the definition of the foreign offense with the definitions of comparable Minnesota offenses
but also may consider the nature of the foreign offense and the sentence received.”
Hill v. State, 483 N.W.2d 57, 58 (Minn. 1992). The statutes need not be “perfectly
parallel,” but should be “sufficiently close to each other.” Id. at 62 (quotations omitted).
A “district court may not use out-of-state convictions to calculate a defendant’s
criminal-history score unless the state lays foundation for the court to do so.” Maley,
714 N.W.2d at 711. “The state must establish 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.” Id. (citing State v. Griffin, 336 N.W.2d 519, 525 (Minn.
1983). “Fair preponderance of the evidence means that it must be established by greater
weight of the evidence” meaning it is “more likely that the claim is true than not true.” Id.
at 12 (quotations omitted).

1 “‘Felony’ means a crime for which a sentence of imprisonment for one year or more may
be imposed.” Minn. Stat. § 609.02, subd. 2 (2022). Moore does not argue on appeal that he
did not receive a felony-level sentence for his North Dakota conviction.
13
The PSI states that “[a]ccording to file records, [Moore] was charged in 2001 in
Cass County, ND with two counts of sexual assault involving two separate adult female
victims. It was alleged these assaults occurred four or five days apart and each involved
physical force and threats of death.” Moore was convicted of one count of felony gross
sexual imposition in Cass County, North Dakota in 2002 and sentenced to 20 years in
prison. The PSI assigned Moore three criminal history points based on the North Dakota
conviction.
Moore argues that “[t]he [s]tate did not prove what Moore was convicted of doing”
and, therefore “did not meet the requirements to include the out-of -state conviction.” The
state had the burden to prove by a fair preponderance of the evidence that (1) the prior
conviction was valid, (2) Moore was the person convicted, and (3) the crime would be a
felony in Minnesota. Maley, 714 N.W.2d at 711. The PSI shows by a preponderance of the
evidence that Moore had a valid prior conviction and that Moore was the person involved
by noting information about the sexual assaults, the victims, and Moore’s prison sentence.
The state argues that it met its burden to show that Moore’s previous conviction
would be a felony in Minnesota. Moore was convicted of gross sexual imposition under
N.D. Cent. Code § 12.1-20-03, which is categorized as a “Class A Felony” in the PSI. The
text of the statute is as follows:
1. A person who engages in a sexual act with another, or who
causes another to engage in a sexual act, is guilty of an offense
if:
a. That person compels the victim to submit by force or
by threat of imminent death, serious bodily injury, or
kidnapping, to be inflicted on any human being;
14
b. That person or someone with that person’s
knowledge has substantially impaired the victim’s power to
appraise or control the victim’s conduct by administering or
employing without the victim’ s knowledge intoxicants, a
controlled substance . . . or other means with intent to prevent
resistance;
c. He knows that the victim is unaware that a sexual act
is being committed upon him or her;
d. The victim is less than fifteen years old; or
e. He knows or has reasonable cause to believe that the
other person suffers from a mental disease or defect which
renders him or her incapable of understanding the nature of his
or her conduct.
2. A person who engages in sexual contact with another, or
who causes another to engage in sexual contact, is guilty of an
offense if:
a. The victim is less than fifteen years old;
b. He compels the victim to submit by force or by threat
of imminent death, serious bodily injury, or kidnapping, to be
inflicted on any human being.
3. An offense under this section is a class A felony if in the
course of the offense the actor inflicts serious bodily injury
upon the victim or if his conduct violates subdivision a or d of
subdivision 1. Otherwise the offense is a class B felony.

N.D. Cent. Code § 12.1-20-03 (1997). When the conduct leading to Moore’s conviction
occurred, North Dakota defined a “sexual act” as “contact between the penis and the
vulva . . . [or] anus, the mouth and the penis . . . [or] vulva, or any other portion of the
human body and the penis, anus, or vulva; or the use of an object which comes in contact
with the victim’s anus, vulva, or penis.” N.D. Cent. Code § 12.1-20-02.3 (1997). Sexual
contact “occurs upon penetration, however slight.” Id.
The state argues that “[t]he applicable section of the North Dakota statute is
sufficiently close to the Minnesota offense of first-degree criminal sexual contact.” The
Minnesota statute for criminal sexual conduct in the first-degree states that
15
A person who engages in sexual penetration with another
person is guilty of criminal sexual conduct in the first-degree
if any of the following circumstances exists:
(a) circumstances existing at the time of the act cause
the complainant to have a reasonable fear of imminent great
bodily harm to the complainant or another;
(b) the actor is armed with a dangerous weapon or any
article used or fashioned in a manner to lead the complainant
to reasonably believe it to be a dangerous weapon and uses or
threatens to use the weapon or article to cause the complainant
to submit;
(c) the actor causes personal injury to the complainant,
and any of the following circumstances exist:
(i) the actor uses coercion to accomplish the act;
(ii) the actor uses force, as defined in section
609.341, subdivision 3, clause (2); or
(iii) the actor knows or has reason to know that
the complainant is mentally impaired, mentally incapacitated,
or physically helpless;
(d) the actor uses force as defined in section 609.341,
subdivision 3, clause (1); or
(e) the actor is aided or abetted by one or more
accomplices within the meaning of section 609.05, and either
of the following circumstances exists:
(i) the actor or an accomplice uses force or
coercion to cause the complainant to submit; or
(ii) the actor or an accomplice is armed with a
dangerous weapon or any article used or fashioned in a manner
to lead the complainant reasonably to believe it to be a
dangerous weapon and uses or threatens to use the weapon or
article to cause the complainant to submit.

Minn. Stat. § 609.342, subd. 1 (2022). Minnesota statutes define “sexual penetration” as
“sexual intercourse, cunnilingus, fellatio, or anal intercourse, or . . . any intrusion however
slight into the genital or anal openings” by a body part or an object. Minn. Stat. § 609.341,
subd. 12 (2022). First-degree criminal sexual conduct is a severity level A felony, which is
assigned three criminal-history points. Minn. Sent’g Guidelines 5.B, 2.B.1.b (2022).
16
The state argues that these statu tes are substantially similar, specifically the
language about causing “a reasonable fear of imminent great bodily harm,” and the use of
force or coercion. Minn. Stat. § 609.342, subd. 1(a), (d)-(e). The state also notes that Moore
was sentenced to 20 years in prison, which “demonstrates the severity of the offense.” The
state’s argument is persuasive. While the statutes are not identical, they are substantially
similar, especially in their references to threats, force, and coercion. Additionally, North
Dakota’s definition of a “sexual act” is sufficiently similar to Minnesota’s definition of
“sexual penetration.”
While Moore’s 20-year sentence for his North Dakota conviction is not
determinative of whether gross sexual imposition would be a felony in Minnesota, it
supports the district court’s determination that Moore engaged in the equivalent of
first-degree criminal sexual conduct, which is a felony in Minnesota. Therefore, the state
met its burden of showing by a fair preponderance of the evidence that Moore’s North
Dakota conviction would have been a felony in Minnesota, and, accordingly, the district
court did not abuse its discretion by assigning the conviction three criminal history points.2

2 We note that the state argues that, if this case were remanded for resentencing “the district
court should have discretion to allow additional arguments related to a custody status
point.” Moore argues that, if the case is remanded, “the district court cannot impose a
sentence any greater than the 30-month prison sentenced already imposed because
State v. Prudhomme prohibits the imposition of a greater sentence for a previously
sentenced conviction.” 228 N.W.2d 243, 246 (Minn. 1975). We do not address this issue,
given that the district court did not abuse its discretion in determining Moore’s criminal
history score.

17
III. The district court erred by sentencing Moore to conditional release.
Both Moore and the state agree that we should remand this matter for resentencing
to vacate Moore’s sentence of ten years of conditional release. A court may correct an
unauthorized sentence at any time. Minn. R. Crim. P. 27.03, subd. 9. While district courts
have broad discretion when imposing a sentence, they cannot impose an unauthorized
sentence. State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982); Minn. Stat. § 609.095(a)
(2022). A sentence is unauthorized if it is “contrary to law or applicable statutes .”
State v. Borrego, 661 N.W.2d 663, 666 (Minn. App. 2003) (citation omitted).
In State v. Noggle, the supreme court concluded that a district court could not impose
a ten-year conditional release term for an attempted criminal sexual conduct offense.
881 N.W.2d 545, 550 (Minn. 2016). The supreme court noted that the applicable statute
required conditional release for a violation of the criminal sexual conduct statute. Id.; see
Minn. Stat. § 609.3455, subd. 6 (2022) (stating that there is a mandatory ten-year
conditional release term for “a violation of ” several sections, including 609.344 and
609.345). Since an “attempted” crime is an “uncompleted offense” and therefore not a
“violation,” the supreme court concluded that the criminal sexual conduct statute “does not
authorize a [ten]-year conditional release term for” attempted criminal sexual conduct. 3
Noggle, 881 N.W.2d at 550-51.

3 The appellant in Noggle was convicted of third-degree criminal sexual conduct under
Minn. Stat. § 609.344 (2022). Noggle, 881 N.W.2d at 546, 551. The statute addressing
conditional release for criminal sexual conduct is the same for both third- and fourth-degree
criminal sexual conduct. Minn. Stat. § 609.3455, subd. 6.
18
The district court convicted Moore of fifth-degree CSC and attempted fourth-degree
CSC but sentenced him only for attempted fourth-degree CSC. Moore was sentenced to 30
months of incarceration, and ten years of conditional release. Because the district court
imposed conditional release as part of a sentence for attempted criminal sexual conduct,
this portion of his sentence is unauthorized, and the district court abused its discretion.
Accordingly, we reverse and remand for the district court to resentence Moore.
IV. The district court did not err by convicting Moore for both fifth-degree CSC
and attempted fourth-degree CSC.
Moore argues that “[t]his [c]ourt must vacate Moore’s conviction for” fifth-degree
CSC, because it is an included offense of attempted fourth-degree CSC and arose from the
same behavioral incident. The state argues that the district court “appropriately adjudicated
both counts because the convictions involved different elements and different conduct.”
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04 subd. 1 (2022). The
supreme court has held that this statute prohibits “multiple convictions . . . for a single
criminal act.” State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). Whether a sentence
violates Minn. Stat. § 609.04 is “a legal question [appellate courts] review de novo.”
State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
A. Fifth-degree CSC is not an included offense of attempted fourth- degree
CSC.
An included offense can be “a lesser degree of the same crime,” or “a crime
necessarily proved if the crime charged were proved.” Minn. Stat. § 609.04, subd. 1(1), (4).
While fifth-degree CSC is a lesser-degree of fourth-degree CSC, it is not a lesser-degree
19
of attempted fourth-degree CSC because attempt is a separate crime under Minn. Stat.
§ 609.17 (2022).
Fifth-degree CSC is also not a crime necessarily proved if attempted fourth-degree
CSC is proved. To determine “whether one offense is necessarily included in the other,
[appellate courts] compare the statutory elements of the two offenses.” State v. Degroot,
946 N.W.2d 354, 364 (Minn. 2020) (quotation omitted). Fifth-degree CSC, under Minn.
Stat. § 609.3451, subd. 1a(1), occurs when “the person engages in nonconsensual sexual
contact.” Fourth-degree CSC is governed by Minn. Stat. § 609.345 (2022). Minnesota
Statute § 609.17, subd. 1 states that “[w]hoever, with intent to commit a crime, does an act
which is a substantial step toward, and more than preparation for, the commission of the
crime is guilty of an attempt to commit that crime.” Accordingly, attempted fourth-degree
CSC under Minn. Stat. § 609.345, subd. 1(a), occurs when a defendant attempts to engage
“in sexual contact with another person” using “coercion to accomplish the sexual contact.”
Because attempted fourth-degree CSC does not require actual sexual contact, and
fifth-degree CSC does, fifth-degree CSC is not necessarily proved if fourth-degree CSC is
proved and is therefore not an included offense of attempted fourth-degree CSC.
B. Moore committed two acts of criminal sexual conduct.
Moore also argues that the district court erred by convicting him of both fifth-degree
CSC and attempted fourth-degree CSC because both convictions arose out of the same
criminal act and behavioral incident. The state argues that the district court did not err
because the two convictions did not arise out of the same incident.
20
We first note the difference between the prohibitions in Minn. Stat. § 609.035
(2022) and Minn. Stat, § 609.04. Minnesota Statute § 609.035, subd. 1 prohibits multiple
sentences for “more than one offense” arising from the same instance of conduct.
Minnesota Statute § 609.04, on the other hand, prohibits multiple convictions “for a single
criminal act.” LaTourelle, 343 N.W.2d at 284 (emphasis added); see also Minn. Stat.
§ 609.035, subd. 6 (“Notwithstanding subdivision 1, a . . . conviction for committing a
violation of sections 609.342 to 609.345 . . . is not a bar to conviction of or punishment for
any other crime committed by the defendant as part of the same conduct.”) . Accordingly,
an offender can receive multiple convictions for multiple acts that occur as part of a single
behavioral incident but cannot receive multiple sentences. State v. Papadakis, 643 N.W.2d
349, 358 (Minn. App. 2002).
The record evidence shows two separate acts of criminal sexual conduct. The first
act occurred when Moore “grabbed D.R. between her legs” and “touched her vagina over
her clothes with his hand.” D.R. then “took a 15-minute break.” The second act occurred
after D.R.’s break when Moore “picked her up from behind putting both his arms around
her under her arms, and laid her down on a bed” then “tried to put his hands down her
pants.”
These two acts took place at different times and in different rooms. And, most
importantly, the first act can be characterized as fifth-degree CSC because it involved
nonconsensual sexual contact given that Moore touched D.R.’s genital area, and the second
act can be characterized as attempted fourth- degree CSC because it involved attempted
21
sexual contact using force or coercion, but no actual sexual contact. These are clearly two
separate criminal acts.
Therefore, while Moore’s offenses may have been committed as part of one
behavioral incident under Minn. Stat. § 609.035, he committed two separate criminal
sexual acts under Minn. Stat. § 609.04. Accordingly, the district court complied with both
statutes by convicting Moore of both counts but sentencing him for only one of the
offenses.
V. Moore is not entitled to relief based on the arguments in his pro se
supplemental brief.
Moore raises several additional arguments in a pro se supplemental brief. Moore
argues that (A) “[t]he district court erred by sentencing [him to] 30 months in prison instead
of 24 months,” (B) “the evidence is insufficient for the felony conviction,” (C) “[t]he
sentencing transcript has been falsified,” and (D) “[t]he complaint was illegally amended
before a verdict or finding of guilt.” Moore also argues that “[t]he district court erred by”
convicting him “of multiple counts extending from a single behavioral incident,” which is
addressed above.
A. The district court did not abuse its discretion by sentencing Moore to 30
months.
Moore argues that he should not have been sentenced to more than 24 months.
Under Minn. Stat. § 609.17, subd. 4, “[w]hoever attempts to commit a crime may be
sentenced . . . to not more than one-half of the maximum imprisonment or fine or both
provided for the crime attempted.” Moore asserts that his criminal history score should
have been one and a half or two, rather than three. He argues that, based on a criminal
22
history score of two and the sex offender grid in the Minnesota Sentencing Guidelines, his
presumptive sentence for a completed offense would have been 48 months and, therefore
he should not have been sentenced to more than 24 months for an attempt.
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.”
State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). “A district court
abuses its discretion when its decision is based on an erroneous view of the law or is against
logic and the facts in the record.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019)
(quotation omitted). Whether a sentence conforms to the requirements of a statute, or the
sentencing guidelines is a question of law that appellate courts review de novo.
State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009).
Because, as stated above, the district court did not err in treating Moore’s North
Dakota convictions as first-degree criminal sexual conduct, the district court properly
assigned Moore three criminal history points. Minn. Sent’g Guidelines 5.B, 2.B.1. b. The
presumptive sentence for completed fourth-degree CSC with a criminal history score of
three is 60 months. Minn. Sent’g Guidelines 4.B. Thirty months’ incarceration is half of
the presumptive sentence for the completed offense. Therefore, the district court did not
abuse its discretion because it properly applied the law by sentencing Moore to 30 months.
B. The evidence was sufficient to convict Moore of attempted fourth-degree
CSC.
Moore argues that there was not sufficient evidence to convict him of attempted
fourth-degree CSC. When reviewing for sufficiency of the evidence, “appellate courts
23
carefully examine the record to determine whether the facts and the legitimate inferences
drawn from them would permit the [fact-finder]4 to reasonably conclude that the defendant
was guilty beyond a reasonable doubt of the offense of which he was convicted.”
State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). Appellate courts
view the evidence “in the light most favorable to the verdict” and assume “that the
fact-finder disbelieved any evidence that conflicted with the verdict.” Id.
The state had to prove that Moore attempted to use “coercion to
accomplish . . . sexual contact.” Minn. Stat. § 609.345, subd. 1(a). The crime of attempt is
defined as “an act which is a substantial step toward, and more than preparation for” the
crime, done “with intent to commit [the] crime.” Minn. Stat. § 609.17, subd. 1. Coercion
is defined as “use by the actor of words or circumstances that cause the complainant
reasonably to fear the infliction of bodily harm upon the complainant or another, or the use
by the actor of confinement, or superior size or strength, against the complainant to
accomplish the act.” Minn. Stat. § 609.341, subd. 14 (2022). Sexual contact is defined
above. Minn. Stat. § 609.341, subd. 11.
D.R.’s testimony provided evidence sufficient to convict Moore of attempted
fourth-degree CSC. She testified that, while cleaning a hotel room after her break, Moore
closed the hotel room door, “[put] both his arms around her,” and “picked her up.” He then
moved her to the bed and tried to put his hands down her pants. Generally, a victim’s

4 Appellate courts “use the same standard of review in bench trials and in jury trials in
evaluating the sufficiency of the evidence.” State v. Palmer, 803 N.W.2d 727, 733 (Minn.
2011).
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testimony in a sex crime case “need not be corroborated.” State v. Blair, 381 N.W.2d 908,
910 (Minn. App. 1986).
Moore’s conduct indicates that he intended to touch D.R.’s genitals, which is sexual
contact, because he attempted to reach down her pants. Minn. Stat. § 609.341, subd. 11
(sexual contact includes “the intentional touching by the actor of the complainant’s
intimate parts”). He did so by using coercion because, by picking up D.R. and putting her
on the bed, he used “confinement, or superior size or strength against” her. Minn. Stat.
§ 609.341, subd. 14. By engaging in this conduct, he took a substantial step towards
committing fourth-degree CSC. Therefore, there was sufficient evidence for the district
court to convict Moore of attempted fourth-degree CSC.
C. Moore fails to show any error related to the sentencing hearing
transcript.
Moore argues that the transcript from the sentencing hearing “has been falsified to
reflect statements never made by [him] to verify the tape recorder to the sentencing
transcripts” and claims that the transcript reflects statements “he never made.” He states in
his brief to this court that “[t]here is always a tape machine used in court proceedings
recording verbal statements made by the parties” and “[t]his recording must be presented
to the Minnesota Court of Appeals. If they do, they are in trouble and if they do not then
they are still in trouble.”
“An assignment of error based on mere assertion and not supported by any argument
or authorities in appellant’s brief is waived and will not be considered on appeal unless
prejudicial error is obvious on mere inspection.” State v. Yang, 774 N.W.2d 539, 552
25
(Minn. 2009) (quotation omitted). Accordingly, appellate courts do not consider arguments
when a party “cites no authority and provides no further argument to support [an]
assertion.” State v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015).
Moore appears to assert that the transcript is falsified and reflects statements that he
did not make. He does not provide further argument or authority to support his allegation
that this is reversible error. No prejudicial error is obvious upon mere inspection.
Therefore, we do not consider this argument.
D. The district court did not err by granting the state’s motion to amend
the complaint at the close of trial.
Moore argues that the district court erred by amending the complaint to include
attempted fourth-degree CSC after the close of evidence at trial. He cites to Minnesota Rule
of Criminal Procedure 17.05, which states that “[t]he court may permit an indictment or
complaint to be amended at any time before verdict or finding if no additional or different
offense is charged and if the defendant’s substantial rights are not prejudiced.” Moore
argues that his substantial rights were prejudiced because the complaint was amended after
the witness testimony ended.
“The interpretation of the Minnesota Rules of Criminal Procedure is a question
[appellate courts] review de novo.” Reynolds v. State, 888 N.W.2d 125, 129 (Minn. 2016).
At trial, the state moved to amend the complaint to include attempted fourth-degree CSC
prior to calling its last witness, and the district court took the motion under advisement.
The district court granted the motion after all witnesses had testified. After the parties made
closing arguments, the district court informed them that a verdict would be released in
26
seven days, then issued findings of fact, conclusions of law, and a verdict on June 29, 2023.
The district court did not violate Minn. R. Crim. P. 17.05 by granting the state’s motion to
modify the complaint at the close of evidence at trial because the amendment was granted
before the verdict was issued.
Therefore, Moore is not entitled to relief based on the arguments raised in his pro se
supplemental brief.
Affirmed in part, reversed in part, and remanded.