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This opinion is nonprecedential except as provided by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
A24-0815

State of Minnesota,
Respondent,

vs.

Austin McKepton Lee,
Appellant.

Filed February 18, 2025
Reversed and remanded
Frisch, Chief Judge

Lyon County District Court
File No. 42-CR-23-316

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

Abby Wikelius, Lyon County Attorney, Julianna F. Passe, Assistant County Attorney,
Marshall, Minnesota (for respondent)

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

Considered a nd decided by Bjorkman, Presiding Judge; Frisch , Chief Judge; and
Reyes, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Chief Judge
In this direct appeal of his convictions for attempted first- and second-degree
murder, three counts of first-degree burglary, and first- and second-degree assault,
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appellant argues that (1) the district court erred in convicting appellant of both first- and
second-degree attempted murder, three counts of first-degree burglary, and both first- and
second-degree assault; (2) the sentencing order must be amended to reflect entry of the
judgment of conviction of attempted first- and second-degree murder; and (3) the district
court erred in sentencing appellant for burglary before sentencing him for attempted first -
degree murder. We conclude that the district court erred by improperly entering
convictions for lesser- included offenses, multiple offenses stemming from the same
behavioral incident, and offenses that were never charged. We also conclude that the
record is insufficient to determine whether the district court imposed the sentences in the
correct order. Accordingly, we reverse and remand for further proceedings.
FACTS
Based on allegations that appellant Austin McKepton Lee had assaulted his wife,
N.P., and the occupants of a nearby trailer where N.P. had fled for safety, respondent State
of Minnesota charged Lee with domestic assault by strangulation (count 1), two counts of
second-degree assault (counts 2 and 3), three counts of first -degree burglary (counts 4, 5,
and 9), terroristic threats (count 6), false imprisonment (count 7), attempted second-degree
murder (count 8), attempted first-degree murder (count 10), and first-degree assault (count
11). The matter proceeded to a two-day bench trial, after which the district court issued a
written order setting forth the following findings of fact.
At the time of the incident, Lee and N.P. lived together in a trailer located in a trailer
park. On April 5, 2023, Lee and N.P. got into an argument at home. Lee hit N.P., told her,
“You’re going to die, b-tch,” and choked her until she lost consciousness. N.P. managed
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to escape and ran to a nearby trailer. The trailer was owned by T.M., who lived there with
his son, H.M. N.P. knocked on the door, and T.M. let N.P. in to call 911. Lee followed
N.P. to the trailer, kicked in the door, entered the trailer carrying a 14 -pound cinderblock,
and began hitting N.P. on her head repeatedly with the cinderblock. H.M. came out of his
bedroom and tried to pull Lee away from N.P. Lee hit H.M. in the forehead with the
cinderblock, and N.P. fled to H.M.’s bedroom. Eventually, H.M. retrieved his shotgun,
approached Lee, and told him to leave the trailer. Lee departed.
An ambulance arrived and took N.P. to a local hospital, but due to the severity of
her injuries, she was transferred to a larger hospital. N.P. had injuries to her neck, lips,
eyes, and head. The head injuries required staples and sutures to repair. N.P. also exhibited
respiratory acidosis from air deprivation and burst capillaries in both eyes. N.P. suffered
bilateral fractures to her thyroid cartilage.
The district court acquitted Lee of the terroristic-threats charge and found him guilty
of the remaining charges. The district court also found three aggravating factors: (1) that
Lee “was a violent offender who is a danger to public safety and who has committed a third
violent crime,” (2) that Lee had “committed a sixth felony as part of a pattern of criminal
conduct,” and (3) that Lee “was convicted of an offense in which the victim was injured
and [that he] had been convicted of a prior felony offense in which the victim was injured.”
The district court sentenced Lee on three offenses in the following order as agreed
upon by the parties. First, the district court sentenced Lee to a 125-month commitment on
count 9 (one of the first-degree burglary counts). Next, the district court sentenced Lee to
a 240-month commitment on count 10 (the attempted first-degree murder count). Finally,
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the district court sentenced Lee to a 21-month commitment on count 3 (the second-degree
assault count where H.M. was the victim) . The district court ordered the sentences to run
consecutively. The district court entered convictions on all counts of which it had found
Lee guilty.
Lee appeals.
DECISION
I. The district court erred when it entered convictions for attempted second-
degree murder, three counts of first-degree burglary , and second-degree
assault.

Lee argues that the district court erred in entering convictions both for attempted
first-degree murder and the included offense of attempted second- degree murder, three
counts of first-degree burglary arising from the same behavioral incident, and both first-
degree assault and the included offense of second-degree assault, in violation of Minn. Stat.
§ 609.04 (2022). The state agrees that the warrant of commitment should be amended to
vacate these convictions. Whether the entry of multiple convictions violates section 609.04
is a question of law that we review de novo. State v. Bonkowske, 957 N.W.2d 437, 443
(Minn. App. 2021).
“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. As relevant
here, an “included offense” is defined as “a lesser degree of the same crime,” “an attempt
to commit a lesser degree of the same crime,” and “a crime necessarily proved if the crime
charged were proved.” Id., subd. 1(1), (3), (4). In other words, a person cannot be
convicted of “both an offense and any lesser-included offenses.” Steward v. State ,
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950 N.W.2d 750, 757 (Minn. 2020). And 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).
It is well-established that “the ‘conviction’ referred to in section 609.04 is not a
guilty verdict but instead a formal adjudication of guilt.” Steward, 950 N.W.2d at 757. “A
conviction occurs only after the district court judge accepts, records, and adjudicates a
finding of guilt.” Petersen v. State, 937 N.W.2d 136, 141 (Minn. 2019) (quotation
omitted).
Attempted Murder
The district court entered convictions for Lee for both first- and second-degree
attempted murder of N.P. Attempted second-degree murder is a “lesser degree of the same
crime” of attempted first-degree murder. See Minn. Stat. § 609.04, subd. 1(1). The district
court therefore erred in entering a conviction for the included offense of attempted second-
degree murder.
Burglary
The district court entered three convictions for first-degree burglary pursuant to
Minn. Stat. § 609.582 (2022): one conviction for burglary of an occupied dwelling under
subdivision 1(a); one conviction for burglary with a dangerous weapon under subdivision
1(b); and one conviction for burglary-assault under subdivision 1(c). All three convictions
stem from the same act—Lee kicking in the door and entering T.M.’s trailer—and therefore
the district court erred by entering convictions for all three counts of first-degree burglary.
See Jackson, 363 N.W.2d at 760.
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Assault
The district court entered convictions for both first- and second-degree assault.
Second-degree assault is a “lesser degree of the same crime” of first -degree assault. See
Minn. Stat. § 609.04, subd. 1(1). The district court therefore erred in entering a conviction
for the included offense of second-degree assault.
Based on these errors, we reverse and remand to the district court with the following
instructions: (1) vacate Lee’s conviction of second-degree murder, (2) vacate Lee’s
conviction of second-degree assault, (3) vacate two of the three first-degree-burglary
convictions, (4) issue an amended sentencing order and warrant of commitment, and
(5) leave the guilty verdicts for the vacated convictions intact. See State v. Walker, 913
N.W.2d 463, 467-68 (Minn. App. 2018) (remanding to the district court with instructions
to vacate the formal adjudication for one offense but to keep the underlying finding of guilt
for that offense intact).
II. The district court must amend the sentencing order and warrant of
commitment to reflect that Lee was convicted of attempted murder rather than
murder.

The district court’s sentencing order and warrant of commitment show a disposition
of convictions for both first- and second-degree murder. But Lee was never convicted of—
or even charged with—first- or second-degree murder. He was found guilty of attempted
first- and second-degree murder. Lee argues that we must direct the district court to correct
the sentencing order and warrant of commitment to accurately reflect convictions for
attempted first- and second-degree murder. The state agrees that Lee “was found guilty of
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attempted murder, rather than murder” but “takes no position” as to amendment of the
warrant of commitment or sentencing order.
The sentencing order and warrant of commitment erroneously reflects convictions
for first- and second- degree murder. On remand, the district court must amend the
sentencing order and warrant of commitment to accurately reflect Lee’s convictions. See
Minn. R. Crim. P. 27.03, subd. 10 (providing that “[c]lerical mistakes in a judgment, order,
or in the record arising from oversight or omission may be corrected by the court at any
time”).
III. The record is insufficient to determine whether the district court imposed the
sentences for Lee’s convictions in the correct order.

Lee argues that the district court erroneously imposed the sentence for first-degree
burglary before imposing the sentence for attempted first -degree murder. Lee contends
that “[t]he order [of sentencing] in this case matters” because, had the district court
sentenced the burglary second and imposed a consecutive sentence, “the presumptive
sentence for that offense would have been 86 (74-103) months rather than 98 (84-117)
months.” The Minnesota Sentencing Guidelines provide that “[m]ultiple offenses
sentenced at the same time before the same court must be sentenced in the order in which
they occurred.” Minn. Sent’g Guidelines 2.B.1.e (2022). Whether a sentence conforms to
the requirements of the sentencing guidelines is a question of law reviewed de novo. State
v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). “Where the district court errs by
incorrectly imposing a sentence, we remand for resentencing.” State v. Bell, 971 N.W.2d
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92, 107 (Minn. App. 2022), rev. denied (Minn. Apr. 27, 2022); see also Minn. Stat.
§ 244.11, subd. 2(b) (2024).
“Generally, the crime of burglary is defined in terms of entry, and is complete upon
entry.” State v. Jerry , 864 N.W.2d 365, 368 (Minn. App. 2015) (quotation omitted),
rev. denied (Minn. Sept. 15, 2015). Therefore, the crime of first- degree burglary was
complete when Lee entered T.M.’s residence.
An attempt is complete when a defendant, “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.” Minn. Stat. § 609.17, subd. 1 (2022). To convict Lee of attempted first-degree
murder, the state was required to prove that Lee acted intentionally and with premeditation.
Minn. Stat. § 609.185(a)(1) (2022). “Premeditation” means “to consider, plan, or prepare
for, or determine to commit, the act referred to prior to its commission.” Minn. Stat.
§ 609.18 (2022). “Neither a specific period of deliberation nor evidence of extensive
planning is required to prove premeditation, but the state must prove that some appreciable
period of time passed after the defendant formed the intent to kill, during which the
statutorily required consideration, planning, preparation, or determination took place.”
State v. Holliday, 745 N.W.2d 556, 563 (Minn. 2008).
We conclude that the record is insufficient for us to determine whether Lee
completed the act of attempted first-degree murder before he completed the act of burglary.
The district court’s findings do not provide clear direction as to which act was completed
first. In its sentencing order, the district court found that Lee committed attempted first-
degree murder “when, after entry, [Lee] beat [N.P.] in the head with a cinderblock with the
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intention of killing her.” But the district court also found that, while Lee and N.P. were
arguing in their trailer, Lee said, “You’re going to die b-tch ”; that Lee then choked N.P.
until she lost consciousness; and that while pursuing N.P. to T.M.’s trailer, Lee retrieved
the 14-pound cinderblock he later used to beat, and grievously injure, N.P. These act s
occurred before Lee entered T.M.’s residence. And if these acts amounted to attempted
first-degree premeditated murder, then the district court should have sentenced Lee for that
crime first. But the district court’s findings do not provide us with a sufficient factual basis
to make this assessment on appeal. We therefore remand to the district court for additional
factual findings as to which offense was completed first, and then re-sentence Lee
accordingly. The district court may in its discretion allow the parties additional argument
based on the factual record submitted at trial.
Reversed and remanded.