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This opinion is nonprecedential except as provided by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
A24-0984

State of Minnesota,
Respondent,

vs.

Jessee Lee Kuhns,
Appellant.

Filed June 16, 2025
Affirmed in part, reversed in part, and remanded
Larson, Judge

Stearns County District Court
File No. 73-CR-22-3443

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

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

Considered and decided by Larson, Presiding Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
In this direct appeal, appellant Jessee Lee Kuhns challenges his conviction for third-
degree criminal sexual conduct, arguing that his attorney conceded his guilt and therefore
provided ineffective assistance of counsel. Alternatively, Kuhns challenges his sentence,
2
arguing that the district court incorrectly included two South Dakota convictions when it
calculated his criminal -history score. Because we conclude that defense counsel did not
concede Kuhns’s guilt, we affirm in part. But we reverse and remand for resentencing to
allow the state to develop a record to facilitate the district court’s assessment of whether to
include the two South Dakota convictions in Kuhns’s criminal-history score.
FACTS
In April 2022, the Stearns County Sheriff’s Office received a report that Kuhn s
sexually assaulted a minor in his home. The minor allegedly worked for Kuhns’s towing
company. The state charged Kuhns with third-degree criminal sexual conduct under Minn.
Stat. § 609.344, subd. 1a(e) (Supp. 2021). Under that statute, a defendant is guilty of third-
degree criminal sexual conduct if: (1) the defendant “engages in sexual penetration with
anyone under 18 years of age”; (2) the other person is “at least 16 but less than 18 . . . and
the [defendant] is more than 36 months older ”; and (3) the defendant is “in a current or
recent position of authority over [the other person].” Minn. Stat. § 609.344, subd. 1a(e)
(emphasis added). The case proceeded to jury trial in October 2023.
During his opening statement, defense counsel commented on the nature of Kuhns’s
relationship with the minor. Defense counsel stated that Kuhns, his wife, and the minor’s
mother all thought that if Kuhns needed “a hand with [his] towing business[,] . . . [he] could
pay [the minor] a little bit of money.” “This [was] an easy arrangement,” defense counsel
stated, “like hiring the neighborhood kid to shovel your driveway” or “to mow your lawn.”
Defense counsel said: “I think what the evidence will show is that [the minor] maybe
worked somewhere from 10 to 20 hours in total assisting . . . Kuhns with various activities
3
around the towing business,” but “had no set schedule, had no real reporting obligations,
[and] decided at will when he wanted to help.”
Defense counsel also made a series of comments about the elements of the offense.
On the first element, defense counsel stated that Kuhns and the minor had consensual sex.1
On the second element , defense counsel conceded that the minor was 16 years old. But,
on the third element (position-of-authority element) defense counsel told the jury that it
would “have to figure out what a ‘position of authority’ is.” Parents, teachers, and law
enforcement are “obvious positions of authority,” defense counsel stated, because they
have “significant control over the situation.” By comparison, defense counsel asserted,
Kuhns had no responsibility “to take care of [the minor]” and simply “helped him out as a
friend.”
After defense counsel’s opening statement, and out of the presence of the jury, the
district court noted on the record that “there was a concession of elements” requiring
Kuhns’s consent. The district court stated that, while the state still had the burden to prove
guilt beyond a reasonable doubt, defense counsel “made some statements that could allow
a jury to conclude A) that [Kuhns] had a sexual encounter with an individual; and B) that
[the] individual was [over] the age of 16.” Kuhns stated that he was comfortable
proceeding. Defense counsel explained that he and Kuhns had discussed “the theories of
this case,” and Kuhns confirmed that the opening statement aligned with their

1 Under Minn. Stat. § 609.344, subd. 1a(e), “[n]either mistake as to the [minor’s] age nor
consent to the act by the [minor] is a defense.”
4
conversations. During the exchange, neither the district court, defense counsel, nor Kuhns
mentioned the position-of-authority element.
The state then called multiple witnesses, including the minor and an investigative
lieutenant. Defense counsel asked both witnesses questions about the relationship between
Kuhns and the minor. First, defense counsel asked the minor for details about his
employment with Kuhns, including the length of his employment, how much money he
made, his work schedule, and the specific tasks he performed.2 Second, when questioning
the lieutenant in reference to a recorded phone conversation between Kuhns and the minor,
defense counsel asked: “At any point does [the minor] say, [Kuhns], you made me do this
because I thought you were my boss.” The lieutenant replied: “From my recollection of
that phone call, he does not.”
After the state rested its case, Kuhns testified in his own defense. Consistent with
the questioning of prior witnesses, defense counsel asked Kuhns questions about his
relationship with the minor. First, defense counsel asked : “Did [the minor] make . . . a
significant amount of money helping you with [the towing company]?” Kuhns
replied: “No.” Second, defense counsel asked: “When [the minor] was assisting you . . .
would you order him around as though he was some sort of subordinate to you?” Kuhns
again replied: “No.” Third, defense counsel asked: “Was there ever . . . a formal schedule
posted . . . on the wall or anything?” Kuhns denied that he did so. Finally, defense counsel
asked Kuhns why he told law enforcement that the minor was “just an employee” and that

2 Prior to cross-examination, the state asked the minor its own questions about his
employment with Kuhns.
5
the allegations were simply about the towing company. Kuhns replied: “I used the
employee bit to try to clear my name. I thought that if I put it off as a disgruntled employee,
that it would just go away, not realizing that at the point in time, I was just making things
worse.”
Kuhns then rested his case, and the trial proceeded to closing arguments. Defense
counsel again focused largely on the position-of-authority element. For instance, defense
counsel stated:
What evidence did the State present that . . . Kuhns was
charged with the health, welfare, or supervision of [the minor]?

And I don’t have any – I’m not aware of any testimony
or exhibits that would have imposed such a formal
responsibility upon . . . Kuhns. That’s my recollection of the
evidence is that there’s nothing there that specifically says,
Look, . . . Kuhns, you’re going to take on [the minor], and
you’re responsible . . . regarding his health, welfare, or
supervision.
. . . .

. . . [W]hen I look at the testimony that I’ve heard, it
seems like he comes and goes as he pleases. So could we really
say . . . Kuhns is responsible for supervising [the minor] if he
has no control on when he comes there, no control on what he
does after he leaves there. No control on when he leaves. Does
not provide the transportation to or from, and I think the answer
naturally is no. I don’t think he’s really supervising him.

After deliberation, the jury found Kuhns guilty, and the district court convicted him of the
offense.
Prior to the sentencing hearing, Stearns County Community Corrections prepared a
presentence investigation report (PSI). According to the PSI, Kuhns had four prior felony
convictions in South Dakota, including two sex-offender- registration offenses that he
6
committed in 2013 and 2014. Using the two sex-offender-registration offenses, the PSI
calculated Kuhns’s criminal-history score at four.
At the sentencing hearing, regarding the South Dakota convictions, the district court
stated:
There is some research and further evaluation that needs to be
done to check to confirm that . . . Kuh ns’[s] criminal history
score is in fact a four. . . . And I understand the parties are
agreeable to still proceeding with sentencing today. In the
event his score should be a three, . . . Kuhns’ sentence would
need to be amended and we can do that in the future.

Defense counsel confirmed that he received the PSI and did not “have any additions
or corrections.” The state submitted, and the district court received, South Dakota trial-
court records with information on Kuhns’s prior offenses. Among the records are two
documents titled “Judgement of Conviction and Sentence” for the two sex-offender-
registration offenses. Both documents state that Kuhns was found guilty of providing false
information on his sex-offender registration. For both offenses, the South Dakota district
court sentenced Kuhns to two years in prison but suspended the sentence subject to certain
terms and conditions.
At the conclusion of the sentencing hearing, the district court calculated Kuhn’s
criminal-history score at four and sentenced Kuhns to a 109-month prison term and a
lifetime conditional-release period.
Kuhns appeals.
7
DECISION
On appeal, Kuhns argues that defense counsel provided ineffective assistance of
counsel when he conceded Kuhns’s guilt. In the alternative, Kuhns argues that he is
entitled to resentencing because the district court incorrectly calculated his criminal-history
score. We address each argument in turn.
I.
Kuhns argues that defense counsel provided ineffective assistance of counsel
because he conceded Kuhns’s guilt. Ordinarily, we review an ineffective-assistance-of-
counsel claim by applying the Strickland test. See Nissalke v. State, 861 N.W.2d 88, 93-
94 (Minn. 2015) (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). Under
Strickland, an ineffective-assistance-of-counsel claim requires a defendant to prove:
“(1) that [their] counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a reasonable possibility that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 94
(quotations omitted).
But we apply a different standard when a defendant claims that his counsel was
ineffective for conceding guilt. “When defense counsel concedes the defendant’s guilt
without consent, counsel’s performance is deficient and prejudice is presumed.” State v.
Luby, 904 N.W.2d 453, 457 (Minn. 2017) (quotation omitted). This rule stems from the
well-established principle that “whether or not to admit guilt at a trial is a decision that . . .
can only be made by the defendant.” State v. Wiplinger, 343 N.W.2d 858, 860-61 (Minn.
1984). Consequently, “if that decision is taken from the defendant, the defendant is entitled
8
to a new trial, regardless of whether he would have been convicted without the admission.”
Luby, 904 N.W.2d at 457 (quotation omitted).
We apply a two- step analysis to review ineffective-assistance-of- counsel claims
based on an unauthorized concession of guilt. Id. “First, we review the record de novo to
determine whether defense counsel made a concession of guilt.” Id. Defense counsel may
concede guilt either expressly or implicitly. Id. Defense counsel makes an express
concession when it plainly admits—or clearly states it does not dispute—that the defendant
committed one or more elements of the offense. See id. at 457-58; State v. Provost, 490
N.W.2d 93, 97 (Minn. 1992). Defense counsel makes “an implied concession only where
a reasonable person viewing the totality of the circumstances would conclude that counsel
conceded . . . guilt.” Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004). Whether a
statement is an implied concession depends heavily on the specific context of the statement.
See State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001). If we determine that defense counsel
conceded the defendant’s guilt, we move to the second step of the analysis and evaluate
whether the defendant consented or acquiesced to the concession. Luby, 904 N.W.2d at
459. If the defendant did not do so, the defendant is entitled to a new trial. Id. at 457.
As set forth above, under Minn. Stat. § 609.344, subd. 1a(e), the state needed to
prove three elements: (1) that Kuhns engaged in sexual penetration with the minor; (2) the
minor was “at least 16 but less than 18 . . . and [Kuhns was] more than 36 months older”;
and (3) Kuhns was “in a current or recent position of authority over” the minor. (Emphasis
added.) Here, Kuhns admits that he acquiesced to his defense counsel conceding the first
9
two elements. Thus, the only question is whether defense counsel conceded the position-
of-authority element.
For the purposes of Minn. Stat. § 609.344, subd. 1a(e), a “[c]urrent or recent position
of authority”
includes but is not limited to any person who is a parent or
acting in the place of a parent and charged with or assumes any
of a parent’s rights, duties or responsibilities to a child, or a
person who is charged with or assumes any duty or
responsibility for the health, welfare, or supervision of a child,
either independently or through another, no matter how brief,
at the time of or within 120 days immediately preceding the
act.

Minn. Stat. § 609.341, subd. 10 (2020).
Kuhns argues that defense counsel conceded his guilt because he mistakenly applied
a prior definition of the phrase “position of authority.” Before 2019, a “position of
authority” required a defendant to have certain duties or responsibilities over a minor at the
time of the act. See Minn. Stat. §§ 609.341, subd. 10, .344, subd. 1(e) (2018). But in 2019,
the legislature amended the statute to contain the language applicable here, which
encompasses duties or responsibilities over a minor both “at the time” of the act and “within
120 days immediately preceding the act .” 2019 Minn. Laws 1st Spec. Sess. ch. 5, art. 4,
§§ 2, at 984; 7, at 987-88.
We disagree with Kuhns that defense counsel misapprehended the law governing
the case. The record demonstrates that defense counsel contested the position-of-authority
element by arguing Kuhns never held a position of authority over the minor. As such,
10
defense counsel did not narrow the scope of the defense to the position Kuhns held over
the minor at the time the act occurred. Thus, Kuhns’s argument is unavailing.
Kuhns next argues that, even if defense counsel did understand the applicable law,
defense counsel implicitly conceded that Kuhns was in a position of authority over the
minor when defense counsel admitted Kuhns employed the minor. No precedential
Minnesota case has concluded that the position-of-authority definition includes all
employment relationships. But in State v. Fero, we determined that a reasonable factfinder
could “conclude that an employer is charged with the duty or responsibility for the health,
welfare, or supervision of a child in his or her employ.” See 747 N.W.2d 596, 598-99
(Minn. App. 2008) (collecting cases to support proposition), rev. denied (Minn. July 15,
2008).
After reviewing the totality of the circumstances, and from the perspective of a
reasonable person, we conclude that defense counsel did not implicitly concede the
position-of-authority element. During both opening and closing statements, while
acknowledging that Kuhns employed the minor, defense counsel specifically argued the
relationship did not satisfy the position-of -authority element because Kuhns: (1) lacked
control over the situation and (2) was not acting in a similar capacity to a parent, teacher,
or law-enforcement officer. While examining witnesses, defense counsel consistently
sought to undermine the state’s case on the position-of-authority element. When cross -
examining the minor, defense counsel targeted his questions at the sporadic nature of the
minor’s employment relationship. When cross-examining the lieutenant, defense counsel
did reference an employment relationship between Kuhns and the minor, asking: “At any
11
point does [the minor] say, [Kuhns], you made me do this because I thought you were my
boss?” This question fit into the broader strategy to contest the position-of -authority
element; after all, the question drew a negative response from the lieutenant when he
replied: “From my recollection of that phone call, he does not.” And on direct examination
with Kuhns, defense counsel asked questions that allowed Kuhns to deny he was an
authority figure over the minor, including that he paid the minor little money, did not give
him a set schedule, and did not order him around. Moreover, defense counsel’s questioning
allowed Kuhns to walk back an earlier statement to police that the minor was an employee,
with Kuhns saying he “used the employee bit to try to clear [his] name.”
For these reasons, we conclude that defense counsel did not concede the position-
of-authority element, and in turn, did not concede Kuhns’s guilt. 3 Accordingly, defense
counsel did not provide ineffective assistance of counsel.
II.
Kuhns next argues in the alternative that the district court abused its discretion when
it used the two sex- offender-registration offenses from South Dakota to calculate his
criminal-history score. Under the Minnesota Sentencing Guidelines, a district court may
include prior non-Minnesota convictions in a defendant’s criminal-history score for
sentencing. See Minn. Sent’g Guidelines 2.B.5 (Supp. 2021). The guidelines provide:
An offense may be counted as a felony only if it would
both be defined as a felony in Minnesota, and the offender
received a sentence that in Minnesota would be a felony-level
sentence, which includes the equivalent of a stay of imposition.

3 Because we conclude that defense counsel did not concede guilt, we do not address
whether Kuhns acquiesced to a concession. See Luby, 904 N.W.2d at 457.
12
The offense definitions in effect when the current Minnesota
offense was committed govern the designation of non-
Minnesota convictions as felonies, gross misdemeanors, or
misdemeanors.

Minn. Sent’g Guidelines 2.B.5.b (emphasis omitted).
“The State bears the burden of proof at sentencing 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) . To do so, the state must demonstrate by a preponderance of the
evidence that “the crime would constitute a felony in Minnesota.” State v. Maley, 714
N.W.2d 708, 711 (Minn. App. 2006). To meet its burden , the state may need to both
demonstrate the commonalities between the Minnesota and non -Minnesota statutes, see
State v. Pruitt, 16 N.W.3d 856, 860-62 (Minn. App. 2025), and provide factual information
on the precise conduct that led to the defendant’s conviction, see State v. Outlaw, 748
N.W.2d 349, 356 (Minn. App. 2008), rev. denied (Minn. July 15, 2008). “T he [district]
court must make the final determination as to whether and how a prior non-Minnesota
conviction should be counted in the criminal history score.” Minn. Sent’g Guidelines
2.B.5.a.
We generally review “a district court’s determination of a defendant’s criminal-
history score” for an abuse of discretion. Pruitt, 16 N.W.3d at 860 . However, when a
defendant failed to challenge the inclusion of certain offenses in their criminal- history
score in district court, or if the district court never engaged in the analysis that the
guidelines prescribe, we reverse and remand for resentencing. See State v. Reece, 6 25
N.W.2d 822, 825-26 (Minn. 2001); Outlaw, 748 N.W.2d at 356. This gives the state the
13
opportunity “to further develop the sentencing record so that the district court can
appropriately make its determination.” Outlaw, 748 N.W.2d at 356.
Here, Kuhns has two convictions for violating S.D. Codified Laws § 22-24B-8(3),
(13) (2013). The analogous Minnesota statute is Minn. Stat. § 243.166 (2020 & Supp.
2021). Under S.D. Codified Laws § 22-24B-8 (2013), offender
registration shall include the following information which
unless otherwise indicated, shall be provided by the offender:
. . .
(3) Residence, length of time at that residence including the
date the residence was established, and length of time expected
to remain at that residence; . . .
(13) Information identifying any internet accounts of the
offender as well as any user names, screen names, and aliases
that the offender uses on the internet;
. . . .

Any failure by the offender to accurately provide the
information required by this section is a Class 6 felony.

By comparison, Minn. Stat. § 243.166, subd. 4a (2020), provides:

(a) A person required to register under this section shall
provide to the corrections agent or law enforcement the
following information:
(1) the person’s primary address; . . .
(8) all telephone numbers including work, school, and
home and any cellular telephone service.

(b) . . . If because of a change in circumstances any information
reported . . . no longer applies, the person shall immediately
inform the agent or authority that the information is no longer
valid.

Furthermore, under Minn. Stat. § 243.166, subd. 5(a) (2020):
(a) A person required to register under this section who was
given notice, knows, or reasonably should know of the duty to
register and who:
14
(1) knowingly commits an act or fails to fulfill a
requirement that violates any provision of this section;
or
(2) intentionally provides false information to a
corrections agent, law enforcement authority, or the
bureau is guilty of a felony and may be sentenced to
imprisonment for not more than five years or to
payment of a fine of not more than $10,000, or both.

As Kuhns observes, important differences exist between the South Dakota and
Minnesota statutes. See Minn. Sent’g Guidelines 2.B.5.b. First, although both Minnesota
and South Dakota require offenders to report their “primary address” or “residence,” only
South Dakota requires offenders to disclose the date the residence was established and how
long they expect to be at a residence. See Minn. Stat. § 243.166, subd. 4a(1); S.D. Codified
Laws § 22-24B-8(3). Second, unlike South Dakota, Minnesota does not require offenders
to disclose internet accounts. See Minn. Stat. § 243.166, subd. 4a(8); S.D. Codified Laws
§ 22-24B-8(13). Finally, Minnesota includes “knowing” or “intentional” requirements to
prove a felony violation, which may not be the case in South Dakota. See Minn. Stat.
§ 243.166, subd. 5; S.D. Codified Laws § 22-24B-8.
4 In short, while the statutes share
commonalities, there are also differences in the punishable conduct. Therefore, the district
court must evaluate the precise conduct underlying Kuhns’s South Dakota sex-offender-

4 The state relies on Hill v. State, 483 N.W.2d 57 (Minn. 1992), to argue that because the
sex-offender-registration statutes in Minnesota and South Dakota prohibit the same crime
of failing to make proper disclosures, they share the same general “nature” and are
sufficiently similar to each other for the South Dakota offenses to constitute felonies in
Minnesota. However, in Pruitt, we cautioned against overreliance on Hill, emphasizing
that the case applied the 1987 sentencing guidelines, and noting that the guidelines had
changed substantially since that time, including omission of the language directing
sentencing courts to “consider the nature . . . of the foreign offense.” Pruitt, 16 N.W.3d at
862-63 (quotation omitted).
15
registration convictions to determine whether that conduct would constitute a felony
offense in Minnesota. See Outlaw, 748 N.W.2d at 356.
Here, at the sentencing hearing, the state did not submit any indictments, police
reports, transcripts, or other information into the record to ascertain what conduct led to
Kuhns’s convictions. And the district court recognized that “[t]here is some research and
further evaluation that needs to be done to check to confirm that . . . Kuhns’ criminal history
score is in fact a four.” The district court readily acknowledged that if Kuhns’s criminal-
history score should be lower, then his “sentence would need to be amended.” We,
therefore, conclude that the record lacks sufficient information to determine whether the
two sex-offender-registration convictions in South Dakota were properly included in
Kuhns’s criminal-history score. But because Kuhns did not object to their inclusion during
the sentencing hearing , we reverse and remand for resentencing to allow the state “to
further develop the sentencing record so that the district court can appropriately make its
determination.” Id.
Affirmed in part, reversed in part, and remanded.