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This opinion is nonprecedential except as provided by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
A23-1919

State of Minnesota,
Respondent,

vs.

Steven Douglas Nelson,
Appellant.

Filed March 10, 2025
Affirmed in part, reversed in part, and remanded
Bentley, Judge

Isanti County District Court
File No. 30-CR-21-917

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, Paul J. Maravigli, Special
Assistant Public Defender, Minneapolis, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Bentley, Judge; and Reilly,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BENTLEY, Judge
In this appeal from convictions for attempted second-degree murder, first-degree
assault, second-degree assault, and aiding and abetting each of those three offenses,
appellant argues that he is entitled to a new trial because (1) the district court plainly erred
by admitting a witness’s testimony from a prior trial without finding that the witness was
unavailable and without appellant’s personal waiver of his confrontation rights, (2) the
district court abused its discretion by admitting global-positioning-system (GPS) evidence
from his ankle monitor in violation of the law-of-the-case doctrine, (3) appellant’s trial
counsel was ineffective, and (4) the state vindictively prosecuted appellant by amending
the complaint to add a count of attempted second-degree murder after Nelson moved to
suppress the GPS evidence. We affirm as to the issues raised by appellant, but we reverse
and remand for the district court to vacate four of Nelson’s convictions that are lesser-
included offenses that arose out of the same behavioral incident.
FACTS
This case stems from an early morning attack on a dirt road in Isanti County that
left an individual, T.T., requiring 32 stitches in his mouth and 16 staples in his head. T.T.
testified at trial that appellant Steven Douglas Nelson was driving T.T. and his friend, D.A.,
to get breakfast and cigarettes from a nearby town. Before arriving at the town, Nelson
drove onto a minimum-maintenance road. Nelson, D.A., and T.T. got out of the car to
check whether the road was passable but discovered that it was not. T.T. further testified
that, as he turned around to get back in the car, Nelson struck him twice in the face with a
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“solid metal pipe,” and T.T. fell to the ground. As he tried to get up, T.T. felt “five or six
more hits to the head.” Nelson and D.A. then got back in the car and left without T.T.
The resulting criminal proceedings were circuitous. Respondent State of Minnesota
filed charges against Nelson, requested and obtained dismissal, refiled charges, and
amended the complaint three times. Then, Nelson’s first trial resulted in a mistrial. At his
second trial, a unanimous jury returned guilty verdicts. Below, we describe the relevant
procedural history and facts deduced at various points in the proceedings.
A. Charges Filed, Dismissed, and Refiled
The state initially charged Nelson with one count of third-degree assault and two
counts of fifth- degree assault. The prosecutor had intended to introduce at trial a report
from a probation-mandated ankle monitor showing GPS evidence that Nelson was at the
scene of the crime when it occurred. To lay foundation for this evidence, the state planned
to call Nelson’s probation agent to testify. But Nelson argued that the probation agent could
not provide proper foundation because the report “was not produced by [the agent] himself”
and “the agent who did produce the report [was] not going to be testifying.” The district
court stated that, if the person testifying has “secondary information” and “the author or
the person that’s actually monitoring the device is not available for testimony,” the court
would have to sustain the defense’s objection. The prosecutor requested a continuance to
obtain the appropriate foundational witness, which the district court denied. In doing so,
the district court noted that its ruling on admissibility was not final: “ It’s likely that there
can be an opportunity to find out who might be the appropriate witness while we’re in
recess between the end of today and tomorrow morning, but I think it’s time to go forward.”
4
The prosecutor then asked to dismiss the case, explaining that he was unsure the witness
he planned to call would be available to testify and establish foundation for the GPS report,
that Nelson was already in custody on other charges, and that those charges involved “more
than twice the possible consequences” than the present one. The district court granted the
state’s dismissal request.
The state subsequently filed a new complaint in December 2021 and charged Nelson
with one count of third-degree assault and two counts of fifth- degree assault. The state
amended the complaint in April 2023 to add one count of first-degree assault and two
counts of second-degree assault. Shortly thereafter, on May 8, 2023, the state offered to
drop all other charges if Nelson agreed to plead guilty to one count of second-degree assault
and serve a 21-month permissive- consecutive sentence. The record does not indicate that
Nelson accepted the offer, nor does it show that the state extended any other offer after that
point. On May 19, 2023, the state again amended the complaint to add one count of
attempted second-degree murder. In a final amendment on June 14, 2023, the state added
charges of aiding and abetting attempted second-degree murder, aiding and abetting first-
degree assault, and aiding and abetting second-degree assault. The final complaint also
dropped one of the second-degree assault charges and the third- and fifth-degree assault
charges.
On the first day of the first trial, Nelson expressed concern to the district court about
the sequence of the amendments and questioned whether it was proper for the state to bring
the charges in the manner that it did:
5
I don’t understand how . . . it’s in the rights to be charged with
every single count of felony and have, like, threats wagered
against me by the prosecutor: That if I don’t take this much
time, I will get charged with this . . . . Like, this whole case
began as assault—a Third-Degree Assault, I think it was, and
a Fifth-Degree Assault, and I refused and went to trial and it
was dismissed. And when I came back and refused to . . . take
the plea bargain, based on my innocence, now I am being
charged with the First- Degree Assault. And then I refused to
take the plea bargain and they threatened me again with more
time, and now I am being charged with Second-Degree
Attempted Murder because I won’t take the plea bargain for
the last charge. I just don’t understand how that that’s legal.

The district court replied that “those are the things you have to weigh when you decide
whether or not you’re going to enter a plea” and stated that “there is no authority”
disallowing the prosecutor from amending the complaint.
B. Nelson’s Objection to Ankle-Monitor Evidence
In May 2023, before the state amended the refiled complaint a second time to add
the second-degree murder charge, Nelson’s counsel filed a motion to exclude the data from
Nelson’s ankle monitor under the law-of-the-case doctrine. The motion alleged that, in the
court file relating to the dismissed complaint, the district court had granted Nelson’s
“motion to preclude the state from introducing the ankle monitoring data . . . based on a
foundational objection . . . [that] the state was intending to introduce this data through a
probation agent, rather than an employee, or other witness, with knowledge of the data.”
The district court heard argument on the motion on the first day of Nelson’s first trial. At
that time, defense counsel had not ordered the transcript with the purported law-of-the-case
ruling. Defense counsel explained that he “took this case over about two-and-a-half weeks
ago” and did not “have the time to order the transcript” that showed the prior ruling. The
6
district court indicated that it was “not sure” it could rule on the motion without the
transcript and expressed skepticism about requiring the device manufacturer to lay
foundation, but the district court ultimately reserved ruling on the issue.
Following the mistrial, and by the start of the second trial, the district court still did
not have the transcript. The district court said that the prior ruling “may or may not be law
of the case” and that the court was “happy to look at [the transcript]” if it could be produced.
Defense counsel noted that, “when [he] first got this case” and noticed the issue, he reached
out to court administration but found that the court reporter who transcribed the prior ruling
had retired, “creat[ing] some more logistical problems and time frame issues on [counsel’s]
end.”
Ultimately, defense counsel did not produce the transcript and did not object when
the state offered the GPS data obtained from the ankle monitor. According to an
investigator called by the state, the ankle monitor data showed that Nelson was in the
vicinity of the place where T.T. was assaulted in the early hours of the morning on the day
the attack occurred.
C. Trial, Conviction, and Sentencing
The first trial took place over four days, beginning on May 30, 2023. The jury was
unable to reach a unanimous verdict, and the district court declared a mistrial. Weeks later,
the district court held a second jury trial.
At the second trial, the district court admitted the prior testimony of two witnesses
from the first trial: D.A. and a doctor who treated T.T. Before admitting the doctor’s prior
testimony, the district court questioned Nelson, who confirmed that he was “giving up [his]
7
right to confront and cross examine at least this witness in this case.” The district court did
not question Nelson regarding the admission of D.A.’s prior testimony. Instead, defense
counsel agreed to the admission of D.A.’s prior testimony after the prosecutor indicated
that he likely would not be able to procure D.A.’s attendance despite a subpoena
compelling D.A.’s testimony. Pursuant to defense counsel’s agreement, D.A.’s complete
prior testimony was read into the record. D.A.’s testimony was that Nelson struck T.T. and
that D.A. was not involved in the assault.
The jury found Nelson guilty of all six counts: (1) attempted second-degree murder,
(2) aiding and abetting attempted second-degree murder, (3) first-degree assault, (4) aiding
and abetting first-degree assault, (5) second-degree assault, and (6) aiding and abetting
second-degree assault. The district court convicted Nelson of all counts and sentenced
Nelson to 240 months’ imprisonment for the attempted second-degree murder conviction.
Nelson appeals.
DECISION
Nelson challenges his conviction on four separate grounds: (1) the admission of
D.A.’s prior testimony violated his rights to confront the witnesses against him; (2) the
admission of the GPS evidence violated the law-of-the- case doctrine; (3) he received
ineffective assistance of counsel; and (4) he was the subject of vindictive prosecution. We
conclude that none of Nelson’s arguments compel reversal of his convictions. But, because
Nelson was convicted of included offenses in violation of Minnesota Statutes section
609.04 (2024), we reverse Nelson’s convictions for those offenses and remand for the
district court to vacate them.
8
I
We turn first to Nelson’s arguments invoking his right to confront the witnesses
against him. The issue turns on whether Nelson’s counsel had the authority to waive
Nelson’s right to confrontation or whether Nelson must have waived his right personally.
Before we reach the merits of that issue, we offer a brief overview of relevant precedent
regarding the waiver of constitutional rights. We then introduce the right to confrontation
and apply the law to the facts of this case.
A criminal defendant has some fundamental rights that “cannot be waived absent
the defendant’s own consent.” Gonzalez v. United States, 553 U.S. 242, 247 (2008). For
example, a defendant must decide matters such as “whether to plead guilty, waive the right
to a jury trial, testify in one’s own behalf, and forgo an appeal.” McCoy v. Louisiana, 584
U.S. 414, 422 (2018). But a defendant need not make every decision, such as “what
arguments to pursue, what evidentiary objections to raise, and what agreements to conclude
regarding the admission of evidence.” Id. These tactical decisions may be made by an
attorney because otherwise, “[t]he adversary process could not function effectively.”
Gonzalez, 553 U.S. at 249 (quoting Taylor v. Illinois, 484 U.S. 400, 418, (1988)).
Nelson argues that the right to confront witnesses is among those fundamental rights
requiring a personal waiver. Under the United States and Minnesota constitutions, a
criminal defendant has the right “to be confronted with the witnesses against him.” U.S.
Const. amend. VI; Minn. Const. art. I, § 6. “But the right to personally confront a witness
is not absolute.” State v. Tate, 985 N.W.2d 291, 297 (Minn. 2023) (citing Coy v. Iowa, 487
U.S. 1012, 1020 (1988)). For example, a defendant may waive the right to confront
9
witnesses, “including by failure to object to the offending evidence.” State v. Trifiletti, 6
N.W.3d 79, 94 (Minn. 2024) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313
n.3 (2009)). And in Crawford v. Washington, the United States Supreme Court held that
the Confrontation Clause does not prohibit admission of a witness’s out -of-court
testimonial statement if the witness “was unavailable to testify, and the defendant had a
prior opportunity for cross-examination.” 541 U.S. 36, 54 (2004).
Here, because Nelson did not object at the second trial to the admission of D.A.’s
prior testimony, we review his claim for plain error. State v. Rossberg, 851 N.W.2d 609,
618 (Minn. 2014).1 Under the plain-error standard, a defendant must establish “(1) error;
(2) that was plain; and (3) that affected the defendant’s substantial rights.” Rossberg, 851
N.W.2d at 618. Even then, “an appellate court may correct the error only when it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Pulczinski v.
State, 972 N.W.2d 347, 356 (Minn. 2022) (emphasis omitted).
Focusing on the second prong of the plain-error standard, “[a]n error is plain if it is
clear or obvious, which is typically established if the error contravenes case law, a rule, or
a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotations
omitted). Nelson has provided no binding authority to support his position that a defendant

1 The state contends that, under the invited-error doctrine, Nelson’s attorney’s waiver
prohibits Nelson from raising this issue on appeal. But the invited-error doctrine does not
bar us from reviewing whether the district court made a plain error that affected Nelson’s
substantial rights. State v. Benton, 858 N.W.2d 535, 540 (Minn. 2015). We therefore review
Nelson’s argument in accordance with our “ discretionary authority to remedy errors that
seriously affect the fairness, integrity or public reputation of judicial proceedings, even
when the defendant invited the error.” Id.
10
must personally waive the right to confrontation. We have found none, and the alleged
error is not otherwise clear or obvious. To the contrary, Nelson’s argument is in tension
with the supreme court’s statements “that confrontation rights are not among those (right
to a jury trial and right to counsel) that require an affirmative waiver in writing or on the
record,” State v. Caulfield, 722 N.W.2d 304, 311 (Minn. 2006), and that “[t]he right to
confrontation . . . may be waived, including by failure to object to the offending evidence,”
Trifiletti, 6 N.W.3d at 94 (quoting Melendez-Diaz, 557 U.S. at 314 n.3) (alteration in
original).2 Our court has also expressed the understanding that deciding “what evidentiary
objections to raise” is a “[n]onfundamental right[] that an attorney may waive.” State v.
Halseth, 653 N.W.2d 782, 786 (Minn. App. 2002) (citing New York v. Hill, 528 U.S. 110,
115 (2000)).
Because Nelson has not established that the alleged error “contravenes case law ,”
nor that the alleged error is otherwise clear or obvious , Webster, 894 N.W.2d at 787, the
district court did not plainly err. We need not reach the other factors in the plain-error
analysis. State v. Epps, 964 N.W.2d 419, 423 (Minn. 2021).

2 Nelson contends that Trifiletti supports the view that his confrontation rights were
violated because the state did not prove that D.A. was unavailable for trial. 6 N.W.3d at
93-95. In Trifiletti, the issue turned on whether the defendant had preserved a challenge to
the witness’s unavailability. Id. at 93. But here, the issue of unavailability is irrelevant
because Nelson’s trial counsel affirmatively agreed to admit the prior testimony, thereby
obviating the need for the district court to find that D.A. was unavailable. Nelson did not
choose to admit the prior testimony “under protest,” like the defendant in Trifiletti. Id. at
95.
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II
We turn next to Nelson’s argument that the district court violated the law-of-the-
case doctrine by admitting GPS evidence from his ankle monitor at the second trial. The
purported law-of-the-case ruling was the district court’s statement in pre-trial proceedings
relating to the dismissed compliant that, if “the author or person that’s actually monitoring
the device is not available for testimony, [the court would] have to sustain an objection by
the defense.”
We briefly address our standard of review. At the second trial, Nelson filed a pretrial
motion to exclude the ankle-monitor evidence but the district court reserved adjudicating
that motion because Nelson had not provided the transcript containing the ruling that
purportedly established law of the case. With out a definitive ruling on the pretrial motion,
Nelson was required to renew his objection at trial to preserve it for appeal. See State v.
Word, 755 N.W.2d 776, 783 (Minn. App. 2008). He did not. When the evidence was
eventually offered by the state, there was no contemporaneous objection by defense
counsel; defense counsel later told the district court, “I have no objection to it, period.”
Because there was no definitive pretrial ruling on the GPS evidence and Nelson did not
object when it was offered at trial, we review Nelson’s law-of-the-case argument for plain
error. See Rossberg, 851 N.W.2d at 618. We discern no error.
“The doctrine of law of the case ‘ordinarily applies where an appellate court has
ruled on a legal issue and has remanded the case to the lower court for further
proceedings.’” State v. Bailey, 732 N.W.2d 612, 623 (Minn. 2007) (quoting Mattson v.
Underwriters at Lloyds of London, 414 N.W.2d 717, 719-20 (Minn. 1987)). Law of the
12
case “is not normally applied by a trial court to its own prior decisions.” Smith v. Kessen,
996 N.W.2d 581, 588 (Minn. App. 2023), rev. denied (Minn. Jan. 31, 2024) (quoting Loo
v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994)). One exception involves “[p]retrial
evidentiary decisions made before a mistrial ,” which may create law of the case for a
subsequent trial unless the ruling was clearly erroneous or there was “a change in
circumstances.” State v. Ferguson, 729 N.W.2d 604, 612 (Minn. App. 2007).
Nelson relies on the mistrial law-of-the-case rule from Ferguson. But here, the
purported evidentiary ruling was made in a separate, prior criminal file— not in a
proceeding relating to the operative complaint , as in the case of a pretrial decision that is
made before a mistrial. Moreover, Ferguson’s change-in-circumstances exception would
preclude application of the law-of-the -case doctrine here. The ruling in the dismissed file
was provisional in that the district court noted before the state moved to dismiss that “[i]t’s
likely that there can be an opportunity to find out who might be the appropriate witness
while we’re in recess between the end of today and tomorrow morning”; and at the second
trial, the state presented an investigator to provide foundation for the GPS data. Id.; cf.
Word, 755 N.W.2d at 783 (holding that rulings are not definitive when they are
“provisional or unclear” or “when the context at trial differs materially from that at the time
of the former ruling”). Accordingly, Ferguson is inapposite and does not support the
conclusion that the admission of evidence here was error.
For these reasons, the district court did not err by admitting the ankle-monitor
evidence.
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III
We next address Nelson’s arguments that he received ineffective assistance of trial
counsel relating to (1) the waiver of Nelson’s confrontation rights, (2) the admission of the
GPS evidence, and (3) a statement by trial counsel in opening argument.
“An ineffective assistance of counsel claim is an alleged violation of the right to
reasonably effective assistance of counsel as guaranteed by the Sixth Amendment of the
United States Constitution.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). Because
an ineffective-assistance-of-counsel claim involves a mixed question of law and fact,
appellate courts review the claim de novo. State v. Mosley, 895 N.W.2d 585, 591 (Minn.
2017). Typically, ineffective-assistance-of-counsel claims are raised in a postconviction
proceeding, when a defendant establishes a factual record in support of the claim. State v.
Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). But if there is “no need for additional facts
to explain the attorney’s decisions, ” an appellate court may address an ineffective-
assistance-of-counsel claim on direct appeal. Black v. State, 560 N.W.2d 83, 85 n.1 (Minn.
1997).
To determine whether trial counsel was ineffective, this court evaluates claims
according to the two- prong test set forth in Strickland v. Washington , 466 U.S. 668, 687
(1984). See Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Under the Strickland test,
a defendant must “show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Pearson v.
State, 891 N.W.2d 590, 598 (Minn. 2017). “[T]here is a strong presumption that counsel’s
14
performance was reasonable.” Andersen, 830 N.W.2d at 10. We address Nelson’s three
ineffective-assistance-of-counsel claims in turn.
Nelson first contends that his trial counsel acted unreasonably by waiving Nelson’s
right to confront D.A. at the second trial. But we are not privy to the strategic reasons that
may have driven trial counsel’s acquiescence to admission of the prior testimony in lieu of
requiring the state to establish D.A.’s unavailability or to present D.A. to testify again. See
Gustafson, 610 N.W.2d at 321 (declining to review ineffective-assistance-of-counsel claim
when “the record . . . is devoid of the information needed to explain the attorney’s
decisions” and preserving the right to pursue the claim in a postconviction petition). We
therefore decline to reach the merits of Nelson’s ineffective-assistance-of-counsel claim.
Nelson’s right to pursue the claim in postconviction proceedings is preserved. Id.
As for Nelson’s two remaining ineffective-assistance-of-counsel claims, the record
is adequate for our consideration. Nelson argues that trial counsel was ineffective for
failing to obtain the prior transcript regarding the GPS evidence and present it to the district
court overseeing the second trial. But even though we cannot discern from the record why
Nelson’s attorney could not obtain the transcript, we conclude that counsel’s failure to
obtain and present the transcript was not prejudicial. As previously discussed, the transcript
from the prior proceeding does not create law of the case that would require suppression
of the GPS evidence. We therefore conclude that there is no reasonable probability that the
results of Nelson’s trial would have been different had trial counsel obtained the transcript
and presented it to the district court.
15
Finally, Nelson argues that he received ineffective assistance of counsel because his
trial counsel stated in opening argument that he had to prove his client’s innocence. In a
criminal prosecution, “[t]he state must prove every element beyond a reasonable doubt to
satisfy the requirements of due process.” State v. Beganovic, 991 N.W.2d 638, 654 (Minn.
2023). Appellate courts reviewing ineffective-assistance-of-counsel claims based on
statements made in opening or closing argument look to the argument as a whole and the
evidence produced at trial. See State v. Eling, 355 N.W.2d 286, 294 (Minn. 1984)
(considering defense counsel’s opening statement as it relates to prosecutor’s opening
statement); State v. Brown, 376 N.W.2d 451, 455 (Minn. App. 1985), rev. denied (Minn.
Dec. 19, 1985) (concluding that a closing argument that conceded that it “looked like”
defendant was guilty was not ineffective assistance in the context of the argument and the
evidence received). We do not second-guess counsel’s choice of strategy in argument.
Brown, 376 N.W.2d at 455.
Considering the record as a whole, we conclude that trial counsel’s opening-
argument statements do not constitute ineffective assistance of counsel under either prong
of the Strickland test. The full context of defense counsel’s statement suggests that his goal
was to prove Nelson innocent, even though he was not required to do so:
Now, you kind of heard, you know, when we were
talking about . . . the questions posed to you —the judge had a
couple comments. And I kind of wrote this down because I
think [it] instructs us sometimes. Prove the negative. Do you
remember him saying that? You can’t —it’ s hard—you ’ve
probably heard that in your life before. It’s hard to prove the
absence of something. And that’s why the State has their
burden to prove beyond a reasonable doubt.

16
However, I’m a realist. I know the best way to do my
job is to prove that negative, prove innocence. I don’t have to
do that. I shouldn’t have to do that. But in reality, I do have to
do that. And so I do that to the best of my ability. And so that
will be my goal here, to prove that Mr. Nelson is innocent.

Defense counsel appeared to be responding to the district court’s pretrial statements to the
jury that “[t]he defendant does not have to prove his innocence. He does not have to prove
a negative.” In concluding his opening statement, defense counsel clarified the burden of
proof:
In the end, I’ll be asking you to return a not guilty
verdict not because I can say . . . you know, with absolute
certainty [D.A.] did this, not Mr. Nelson. I won’t be saying
that. But I’ll also be saying who knows what happened out
there, which, again, results in a not guilty verdict. That is what
I’ll be asking for and why I’ll be asking for it.

Further, in closing argument, defense counsel stated several times that the state had the
burden to prove the charges beyond a reasonable doubt. And the district court instructed
the jury that Nelson “has no obligation to prove innocence” and to disregard statements of
law by attorneys that differed from the district court’s instructions.
Although counsel’s statement that he ha d to “prove innocence” is inaccurate and
appears unreasonable out of context, he preceded that statement with the comment that,
“the best way to do my job is to prove that negative, prove innocence.” (Emphasis added.)
Given our deference to counsel in matters of trial strategy, Brown, 376 N.W.2d at 455, and
counsel’s repeated statements of the correct burden of proof, we do not consider the “prove
innocence” statement as an objectively unreasonable shifting of the burden.
17
Moreover, we are not persuaded that defense counsel’s statements regarding the
burden of proof prejudiced Nelson. The supreme court has held repeatedly that a district
court’s instructions to the jury as to the proper burden of proof will, in most cases, cure any
prior misstatement of the standard. Cf., e.g., State v. McDonough, 631 N.W.2d 373, 389
n.2 (Minn. 2001) (“[A] prosecutor’s attempts to shift the burden of proof are often
nonprejudicial and harmless where . . . the district court clearly and thoroughly instructed
the jury regarding the burden of proof.”); see also State v. Hunt, 615 N.W.2d 294, 302
(Minn. 2000) (holding that a prosecutor’s “questionable” burden-of -proof analogy was
cured by subsequent statement of the correct standard by prosecutor and court, which
instructed the jury to disregard any statements to the contrary). Here, the district court
properly instructed the jury on the burden of proof both before and after defense counsel’s
opening argument.
For these reasons, we decline to reverse Nelson’s convictions based on ineffective
assistance of counsel. Nelson’s right to pursue his ineffective-assistance-of-counsel claim
relating to the waiver of his confrontation rights is preserved for a postconviction
proceeding.
IV
We next address Nelson’s argument that his convictions must be reversed because
he was vindictively prosecuted. Nelson contends that “it was vindictive prosecution for the
state to amend the complaint with a count of attempted second-degree murder for the same
offense following dismissal of the charges and a motion to exclude the GPS evidence.” He
also contends that the state did not “attempt to plea bargain” after amending the complaint
18
with the second-degree murder charge, which would have “obviate[d] an otherwise clear
example of a due process violation.”
As an initial matter, the state argues that Nelson forfeited this argument by not
raising it in the district court. The state relies on State v. Wickner, in which we declined to
review an unpreserved vindictive -prosecution argument because “the state had no
opportunity to respond” and the record did not provide a sufficient basis for review. 673
N.W.2d 859, 863 (Minn. App. 2004). But the circumstances here are different. As we
recount in the facts section, Nelson personally asked the district court why it was proper
for the state to amend the complaint over the course of plea negotiations. Although he did
not make an affirmative request for relief, the district court responded to his concerns,
noting that “those are the things you have to weigh when you decide whether or not you’re
going to enter a plea” and that “there is no authority” disallowing the prosecutor from
amending the complaint. To be sure, Nelson’s theory on appeal is somewhat different from
how it was raised in the district court. Here, he identifies the second-degree murder charge
as retaliation for filing a motion to exclude GPS evidence (not only as punishment for
failing to accept a plea offer). Either way, unlike in Wickner, Nelson’s argument regarding
vindictive prosecution relies entirely on a sequence of events that are reflected in the record
before us. We therefore consider the claim and apply de novo review with respect to the
question of law he presents. See State v. Beaulieu, 859 N.W.2d 275, 280 (Minn. 2015)
(“Whether a defendant has been denied due process of law is a question of law that we
review de novo.”).
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Turning to the merits of Nelson’s argument, “[t]he state’s imposition of additional
penalties in retaliation for a defendant’s exercise of legal rights is impermissible vindictive
prosecution.” State v. Shaka, 927 N.W.2d 762, 771 (Minn. App. 2019), rev. granted (Minn.
Jul. 16, 2019) and ord. granting rev. vacated (Minn. Nov. 19, 2019). We impose a
presumption of vindictiveness when “the defendant’s exercise of a procedural
right . . . caused a complete retrial after the defendant had already been tried and
convicted.” State v. Pettee, 538 N.W.2d 126, 132 (Minn. 1995) (citing United States v.
Goodwin, 457 U.S. 368, 376 (1982)). However, there is no presumption of vindictiveness
“[i]n the area of pretrial prosecutorial decisions.” Cuypers v. State, 711 N.W.2d 100, 104
(Minn. 2006) (citing Goodwin, 457 U.S. at 384). The U.S. Supreme Court has held that
“changes in the charging decision that occur in the context of plea negotiation are an
inaccurate measure of improper prosecutorial ‘vindictiveness.’” Goodwin, 457 U.S. at 379-
80. “An initial indictment . . . does not necessarily define the extent of the legitimate
interest in prosecution.” Id. at 380. If a prosecutor files lesser charges and the defendant
does not plead guilty, a prosecutor may file additional charges. Id. Absent the presumption
of vindictiveness, a defendant must “prove objectively that the prosecutor’s charging
decision was motivated by a desire to punish him for something that the law plainly allowed
him to do.” Id. at 384.
We do not presume that the prosecutor was vindictive here because Nelson’s claim
relates to a pretrial prosecutorial decision: whether to amend the complaint to add an
attempted second-degree murder charge. Accordingly, Nelson “retains the burden of
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proving prosecutorial vindictiveness.” Pettee, 538 N.W.2d at 133. We conclude that he has
not met that burden.
Nelson posits that “[t]he record does not indicate that the [s]tate ever extended a
plea offer” after it added the attempted second-degree murder charge, and that such an offer
would have “obviate[d] an otherwise clear example of a due process violation.” Nelson
relies on Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), which stated that “in the ‘give-
and-take’ of plea bargaining, there is no . . . retaliation so long as the accused is free to
accept or reject the prosecution’s offer.” This language, according to Nelson, means that
the prosecutor must extend a plea offer after adding a new, more severe charge. Because
the state did not extend a plea, Nelson argues that the more severe charge reflects vindictive
prosecution.
We disagree. Bordenkircher does not suggest that a prosecutor has an obligation to
extend a plea offer after adding a charge. It only requires the defendant’s freedom to
“accept or reject the prosecution’s offer.” Id. As the Supreme Court later explained,
“Bordenkircher made clear that the mere fact that a defendant refuses to plead guilty and
forces the government to prove its case is insufficient to warrant a presumption that
subsequent changes in the charging decision are unjustified.” Goodwin, 457 U.S. at 382-
83. That is the case here. Accordingly, we discern no objective evidence of prosecutorial
vindictiveness in the sequence of plea offers and charging decisions.
Nelson also maintains that it “is very conspicuously in the record” that the state
added the charge of attempted second-degree murder after Nelson brought a motion to
exclude GPS evidence. He maintains that his first motion to exclude the GPS evidence led
21
to the dismissal of the first complaint and infers that, because the state added the attempted-
murder charge shortly after Nelson filed a similar motion to exclude GPS evidence in the
proceedings on the second complaint, the state was punishing him for seeking to exclude
the evidence again. We disagree that the record supports that inferential leap, such that it
“prove[s] objectively that the prosecutor’s charging decision was motivated by a desire to
punish him.” Goodwin , 457 U.S. at 384. The supreme court has recognized that “filing
suppression motions” is a “procedural right[] . . . that [does] not possess a realistic
likelihood of vindictive response.” Pettee, 538 N.W.2d at 132 (citing Goodwin, 457 U.S.
at 381). Absent additional facts in the record suggesting the amendment to the second
complaint was vindictive, we decline to infer that the state filed the enhanced charge to
punish Nelson for filing a suppression motion that the state should have been expecting in
the ordinary course of pretrial proceedings. Indeed, the state had every reason to expect
that Nelson would file the motion, since he did so with respect to the first complaint and,
at that time, the district court was receptive to his argument that the state lacked proper
foundation to admit the GPS evidence.
In sum, we conclude that the record does not support Nelson’s claim of prosecutorial
vindictiveness.
V
As a final matter, our review of the record revealed violations of Minnesota Statutes
section 609.04, because the district court convicted Nelson of several lesser- included
offenses arising out of the same behavioral incident. We address this issue out of our
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“responsibility . . . to decide cases in accordance with law.” State v. Hannuksela, 452
N.W.2d 668, 673 n.7 (Minn. 1990) (quotation omitted).
If a defendant is prosecuted for multiple offenses arising out of a single behavioral
incident, they “may be convicted of either the crime charged or an included offense, but
not both.” Minn. Stat. § 609.04, subd. 1; State v. Bertsch, 707 N.W.2d 660, 664 (Minn.
2006). An “included offense” encompasses a “crime necessarily proved if the crime
charged were proved.” Minn. Stat. § 609.04, subd. 1(4). Further, “section 609.04 bars
multiple convictions under different sections of a criminal statute for acts committed during
a single behavioral incident.” State v. Jackson, 363 N.W.2d 758 , 760 (Minn. 1985) .
Whether a conviction is barred by section 609.04 is a legal question that we review de
novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
Here, the district court convicted Nelson for: (1) attempted second-degree murder,
Minn. Stat. §§ 609.17, subd. 1, .19, subd. 1 (2020), and aiding and abetting attempted
second-degree murder, Minn. Stat. §§ 609.05 , subd. 1, .17, subd. 1, .19, subd. 1 (2020);
(2) first-degree assault, Minn. Stat. § 609.221, subd. 1 (2020), and aiding and abetting first-
degree assault, Minn. Stat. §§ 609.05, subd. 1, .221, subd. 1; and (3) second-degree assault,
Minn. Stat. § 609.222, subd. 1 (2020), and aiding and abetting second-degree assault,
Minn. Stat. §§ 609.05, subd. 1, .222, subd. 1.
All the convictions stemmed from a single behavioral incident: the early-morning
attack. Under the Jackson rule, Nelson’s conviction for aiding and abetting attempted
second-degree murder is an included offense of attempted second-degree murder, because
they arise out of the same criminal statute, Minnesota Statutes section 609.19, subdivision
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1. See Jackson, 363 N.W.2d at 760. The same applies to Nelson’s conviction for aiding
and abetting first-degree and second-degree assault, which arise out of the same statutes as
his convictions for first-degree and second- degree assault respectively. Id. Likewise,
second-degree assault is a lesser-included offense of first-degree assault. State v. Hackler,
532 N.W.2d 559, 559 (Minn. 1995). But it was permissible to convict Nelson of both
attempted-murder and assault offenses because “first-degree assault is not a lesser-included
offense of . . . attempted second- degree murder.” State v. Gisege, 561 N.W.2d 152, 155
(Minn. 1997).
Accordingly, we reverse Nelson’s convictions for aiding and abetting attempted
second-degree murder (Minn. Stat. § § 609.05, subd. 1, .17, subd. 1, .19, subd. 1); aiding
and abetting first- degree assault (Minn. Stat. §§ 609.05, subd. 1, .221, subd. 1); second-
degree assault (Minn. Stat. § 609.222, subd. 1); and aiding and abetting second-degree
assault (Minn. Stat. §§ 609.05, subd. 1, .222, subd. 1). We “remand to the district court
with instructions to vacate [those] conviction[s],” while leaving the jury’s findings of guilt
intact. State v. Hallmark, 927 N.W.2d 281 , 300 (Minn. 2019) . We affirm Nelson’s
convictions for attempted second-degree murder (Minn. Stat. §§ 609.17, subd. 1, .19,
subd. 1) and first-degree assault (Minn. Stat. § 609.221, subd. 1).
Affirmed in part, reversed in part, and remanded.