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This opinion is nonprecedential except as provided by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
A23-1929

State of Minnesota,
Respondent,

vs.

Jermaine La Johnson, Sr.,
Appellant.

Filed September 30, 2024
Affirmed in part, reversed in part, and remanded; motion denied
Connolly, Judge

Olmsted County District Court
File No. 55-CR-22-5172

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from final judgment of conviction, appellant challenges his sentence,
arguing that the district court erred by (1) imposing an upward durational departure without
stating reasons for the departure; (2) including two Illinois convictions in his c riminal-
2
history score; and (3) entering convictions for multiple offenses where the offenses were
committed during a single behavioral incident. Appellant also moved to strike an argument
from respondent’s brief as not properly before this court. We affirm in part, reverse in part
and remand. We also deny appellant’s motion to strike.
FACTS
Appellant Jermaine La Johnson, Sr. 1 and his ex-girlfriend lived together for about
two years, during which a son was born to the couple. The relationship ended in July 2022,
after the ex-girlfriend discovered that appellant had been unfaithful. Shortly before the
breakup, appellant moved out of his ex-girlfriend’s residence and, a couple weeks after the
breakup, the ex-girlfriend began dating appellant’s adult son. Appellant was unhappy that
his former girlfriend was dating his son and expressed this dissatisfaction in text messages
to his ex -girlfriend. As threatened in his text messages, appellant then entered his ex -
girlfriend’s home unannounced, assaulted her in her bedroom wh ile she was “cradling”
their one-year-old child, and left with her cell phone.
Respondent State of Minnesota charged appellant with the following offenses: count
I, first-degree burglary—occupied dwelling; count II, first -degree burglary—assault of a
person in the building; count III, third-degree assault—victim under the age of four; count
IV, interference with a 911 call; count V, theft of property valued at $500 or less; count
VI, domestic assault—fear of immediate bodily harm; and count VII, domestic assault —

1 Appellant claimed on the record that his full name is Jermaine LaJuane Johnson.
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infliction of bodily harm. A jury later found appellant guilty of all counts except third -
degree assault—victim under the age of four, and interference with a 911 call.
A pre -sentence investigation (PSI) was conducted prior to sentencing. The PSI
assigned appellant ten criminal -history points, which included criminal -history points for
several prior convictions from Illinois. A sentencing worksheet, completed in conjunction
with the PSI, reflected that first-degree burglary—assault of a person in the building (count
II), was a severity level eight offense, and that, with ten criminal-history points, and a three-
month custody enhancement, the sentencing range was 95-132 months. Conversely, first-
degree burglary—occupied dwelling (count I), is a severity level six offense, which carries
a sentencing range of 52 -71 months when calculated with ten criminal -history points and
a three-month custody enhancement. See Minn. Sent’g Guidelines 4.A, 5.A (2022).
At the sentencing hearing, appellant argued for a downward departure from the
sentencing guidelines, and respondent argued for a top-of-the-box sentence of 132 months.
The district court denied appellant’s departure motion, “adjudicated [him] guilty of first -
degree burglary,” and sentenced him to 100 months in prison . Thereafter, a warrant of
commitment was filed stating that appellant was convicted of all counts except counts III
and IV, of which he was acquitted. The warrant of commitment also sentenced appellant
on count I, first-degree burglary—occupied dwelling, rather than the more serious burglary
charge contained in count II.
This appeal follows.

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DECISION
I.
Appellant challenges his sentence for first -degree burglary, claiming that the
sentence constitutes an unlawful upward departure. We review de novo whether a sentence
is authorized by law. State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009).
A district court may grant a departure from the sentencing guidelines when “there
exist identifiable, substantial, and compelling circumstances to support a departure.” Minn.
Sent’g Guidelines 2.D.1 (2022). “If the reasons given for an upward departure a re legally
permissible and factually supported in the record, the departure will be affirmed.” State v.
Edwards, 774 N.W.2d 596, 601 (Minn. 2009). But “[i]f no reasons for departure are stated
on the record at the time of sentencing, no departure will be allowed.” State v. Williams,
361 N.W.2d 840, 844 (Minn. 1985). The remedy for an unsupported durational departure
is to remand for resentencing within the presumptive range. State v. Geller, 665 N.W.2d
514, 517 (Minn. 2003). When the district court does not state its reasons for departure on
the record at the time of sentencing, it is error for a reviewing court to remand to the district
court to allow it to provide reasons for the departure after sentencing has occurred. Id.
Appellant claims that the district court sentenced him on count I, which carries a
presumptive sentence of 60 months in prison due to his criminal -history score. He argues
that, because the district court sentenced him to 100 months in prison, his sentenc e
constitutes an upward departure. Appellant argues further that, because the imposition of
an upward departure may only be imposed when substantial and compelling reasons are
5
present, and the district court failed to identify such reasons, his sentence must be reversed,
and the case should be remanded for imposition of the presumptive sentence.
Respondent contends that the “district court erroneously signed a warrant of
commitment that indicated a sentence for Count I, burglary in the first degree (occupied
dwelling), a severity level 6 offense, instead of Count II.” As such, respondent agrees that
the case should be remanded “with instructions to correct the errors in the sentencing
worksheet.” But respondent argues that the record is “abundantly clear” that the “district
court intended to convict and sentence [appellant] for Count II” because the court indicated
on the record at the sentencing hearing that appellant was being sentenced on count II, the
most serious offense.2 We agree.
Generally, appellate courts “look to the official judgment of conviction in the district
court file as conclusive evidence of whether an offense has been formally adjudicated.”
Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted). But when a district
court’s orally pronounced sentence differs from the warrant of commitment, the oral
pronouncement controls. State v. Statloch , 643 N.W.2d 329, 331 (Minn. App. 2002).

2 Appellant moved to strike respondent’s argument on this issue , claiming that it is not
properly before us because, “[i]f [respondent] thought the district court erred by sentencing
[appellant] on Count I and not sentencing him on Count II, then [respondent] should have
appealed the sentence,” which it “chose” not to do. But respondent is not challenging
appellant’s sentence on appeal, nor does it claim that appellant’s sentence was unlawful;
rather respondent merely agrees that, with respect to this issue, the matter should be
remanded to correct the clerical error in the sentencing worksheet. We, therefore, deny
appellant’s motion to strike because respondent’s argument on this issue is properly before
us.
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Additionally, the court may correct clerical errors in the warrant of commitment at any
time. Minn. R. Crim. P. 27.03, subd. 10.
Here, we acknowledge that a sentence of 100 months in prison for first -degree
burglary—occupied dwelling would be an upward departure because, with appellant’s
criminal-history score, and a three -month custody enhancement, the sentencing range for
that offense is 52-71 months in prison. See Minn. Sent’g. Guidelines 4.A, 5.A. But at the
beginning of the sentencing hearing, the district court stated: “The most serious offense
. . . before the Court for sentencing is first-degree burglary. It’s a severity level 8 offense,
[appellant has] 10 criminal history points, the presumptive disposition is a commit to the
commissioner within the range of 95 to 132 months, the middle of the box is 111.” The
district court then acknowledged two more times during the se ntencing hearing that the
applicable sentencing range for appellant’s offense was 95-132 months. And after hearing
general sentencing arguments, the district court “adjudicated [appellant] guilty of first -
degree burglary,” and “committed [him] to the Comm issioner of Corrections of the State
of Minnesota for a period of 100 months.” Although the district court never stated on the
record that it was sentencing appellant on count II, the court “adjudicated [appellant] guilty
of first-degree burglary,” and re peatedly stated that the offense at issue has a sentencing
range of 95 -132 months. First -degree burglary—assault of a person in a building, is the
most serious offense of which appellant was found guilty, and when calculated with
appellant’s criminal-history score, that offense has a sentencing range of 95 -132 months.
See Minn. Sent’g Guidelines 4.A. As such, the record unambiguously shows that appellant
was convicted of, and sentenced for, count II, first-degree burglary—assault of a person in
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a building. And because appellant was sentenced on count II, which carries a sentencing
range of 95 -132 months, the district court’s sentence of 100 months in prison does not
constitute an upward departure.
Moreover, our supreme court has acknowledged that Minn. Stat. § 609.035 (2022)
“contemplates that a defendant will be punished for the most serious of the offenses arising
out of a single behavioral incident because imposing up to the maximum punishment for
the most serious offense will include punishment for all offenses.” State v. Franks , 765
N.W.2d 68, 77 (Minn. 2009) (quotations omitted). Thus, the district court was required to
sentence appellant on count II because it was the most serious offense arising out of a single
behavioral incident. See id. And to adopt appellant’s argument would be inconsistent with
supreme court precedent. Th us, we affirm the district court’s imposition of sentence on
count II, but we remand the case to correct the clerical error in the warrant of commitment
that erroneously states that appellant was convicted and sentenced on count I.
II.
Next, appellant challenges the calculation of his criminal-history score. Generally,
we review a district court’s determination of a defendant’s criminal -history score for an
abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), rev. denied
(Minn. Aug. 20, 2002). But the interpretation of the sentencing guidelines presents a legal
issue, which we review de novo. State v. Scovel, 916 N.W.2d 550, 554 (Minn. 2018).
The sentencing guidelines “provide uniform standards for the inclusion and
weighting of criminal history information that are intended to increase the fairness and
equity in the consideration of criminal history.” State v. Reece , 625 N.W.2d 822, 824
8
(Minn. 2001) (quotation omitted). Convictions from other jurisdictions must be considered
in calculating an offender’s criminal-history score under the guidelines. Id.; see also Minn.
Sent’g Guidelines 2.B.5.a (2022). An out-of-state conviction may be counted as a felony
only if it would be defined as a felony in Minnesota “based on the elements of the prior
non-Minnesota offense” and “the offender received a sentence that in Minnesota would be
a felony-level sentence.” Minn. Sent’g Guidelines 2.B.5.b ( 2022). The state bears the
burden to “show that a prior conviction qualifies for inclusion within the criminal -history
score.” Williams v. State, 910 N.W.2d 736, 740 (Minn. 2018) . “[T]he 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.” State v. Maley, 714 N.W.2d 708, 711 (Minn.
App. 2006).
The district court here sentenced appellant using a criminal -history score that
included points for several Illinois convictions. Appellant argues that this was error
because respondent failed to “prove that at least two of those convictions were properly
included” in his criminal-history score. Respondent acknowledges that it failed “to submit
any evidence to prove [appellant’s] . . . criminal history score.” But respondent argues
that, because appellant “did not object to his criminal history score bel ow, the proper
procedure is to remand with instructions to further develop the sentencing record.”
We agree. Although the state need not present certified copies of out -of-state
convictions for the convictions to be included in a defendant’s criminal -history score, the
state must provide “persuasive evidence that sufficiently substitutes for the offic ial,
certified records of conviction.” Maley, 714 N.W.2d at 711-12. If the state fails to meet
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its burden, the proper remedy is to reverse and remand for resentencing. See id. at 715.
But if the defendant fails to object to his criminal-history score at sentencing, the state may
“further develop the sentencing record” on remand to allow the district court to determine
whether the relevant out -of-state convictions were properly included in the defendant’s
criminal-history score. State v. Outlaw , 748 N.W.2d 349, 356 (Minn. App. 2008), rev.
denied (Minn. July 15, 2008).
Here, although respondent failed to present any evidence related to appellant’s out-
of-state convictions, appellant did not object to his criminal -history score below.
Accordingly, we reverse appellant’s sentence and remand to allow respondent to introduce
evidence to satisfy its burden of proof with respect to the proper calculation of appellant’s
criminal-history score. See id.
III.
Finally, appellant contends that the district court erred by entering convictions for
multiple offenses that arose out of the same behavioral incident. “Upon prosecution for a
crime, the actor may be convicted of either the crime charged or an included of fense, but
not both.” Minn. Stat. § 609.04, subd. 1 (2022). This statute bars not only multiple
convictions for an offense and its included offenses, but also “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). The rule set forth in
Jackson applies when (1) multiple offenses ar ise “under different sections of the same
statute,” and (2) the offenses are committed “as part of a single behavioral incident.” State
v. Bonkowske, 957 N.W.2d 437, 444 (Minn. App. 2021). We generally review de novo
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whether a conviction violates section 609.04. Id. at 443. But whether offenses occurred
as part of a single behavioral incident is a mixed question of fact and law; we review the
district court’s factual findings for clear error and its application of the law to those facts
de novo. State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020).
Here, the warrant of commitment reflects that convictions were entered on count I,
first-degree burglary —occupied dwelling; count II, first -degree burglary —assault of a
person in the building; count V, theft of property valued at $500 or less; count VI, domestic
assault—fear of immediate bodily harm; and count VII, domestic assault —infliction of
bodily harm. Appellant argues that this was error because both counts VI and counts VII
“were committed during a single behavioral incident.” Respondent acknowle dges that
appellant “should not be convicted of Count VI, domestic assault —fear.” In fact,
respondent argues that a “remand is required to clean up the sentencing order,” and that,
on remand, the district court should be instructed “to vacate any convicti ons for Counts I,
V, and VI, and to enter judgment of conviction for Counts II and VII.”
The supreme court recently stated that “[a] burglary conviction ‘is not a bar to
conviction of or punishment for any other crime committed on entering or while in the
building entered.’” State v. Smith, 940 N.W.2d 497, 507 (Minn. 2020) (quoting Minn. Stat.
§ 609.585 (2018)). “But if a defendant commits multiple crimes during the burglary
against the same victim, the district court can only sentence the defendant for one additional
crime.” Id.
Here, appellant was charged with, and found guilty of, multiple offenses arising out
of his entry into his ex -girlfriend’s residence. As addressed above, because count II was
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the most serious offense, appellant should be convicted of that offense. See Franks, 765
N.W.2d at 78 (stating that Minn. Stat. § 609.035 “contemplates that a defendant will be
punished for the most serious of the offenses arising out of a single behavioral incident
because imposing up to the maximum punishment for the most serious offense will include
punishment for all offenses” (quotation omitted)). And under Smith, appellant could be
convicted of one other offense arising out of the burglary conviction. 940 N.W.2d at 507.
That offense would be count VII, domestic assault —bodily harm, since that is the
underlying assault related to count II. But because the remaining offenses arose from the
same behavioral incident, it was impermissible for the district court to convict appellant of
those offenses. See id. Accordingly, we reverse and remand to the district court to vacate
appellant’s adjudications for counts I, V, and VI, but leave the jury’s finding of guilt intact.
Affirmed in part, reversed in part, and remanded; motion denied.