State of Minnesota v. Lazarous Lazaro Thomas

This opinion is nonprecedential except as provided by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
A25-1445

State of Minnesota,
Respondent,

vs.

Lazarous Lazaro Thomas,
Appellant.

Filed September 8, 2026
Affirmed
Beane, Judge

Blue Earth County District Court
File No. 07-CR-23-2677

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

Patrick R. McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Beane, Presiding Judge; Smith, Tracy M., Judge; and
Schmidt, Judge.
NONPRECEDENTIAL OPINION
BEANE, Judge
Appellant Lazarous Lazaro Thomas challenges his conviction, following a court
trial, for first-degree criminal sexual conduct. Thomas argues that the district court’s

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comments and questions during trial interfered with his constitutional right to an impartial
judge and, alternatively, that he is entitled to an additional 96 days of custody credit.
Thomas also raises several issues in a pro se supplemental brief. We affirm.
FACTS
In 2015, the victim in this case, who was 14 years old at the time, was sexually
assaulted by a man she did not know who entered her bedroom through a window while
she was asleep. She called 911 after the assault, and officers from the Blue Earth Police
Department (the department) arrived shortly thereafter. She then went to the hospital for a
sexual-assault examination, during which multiple DNA swabs were collected from her
body. The samples were secured by law enforcement and stored in evidence at the
department.
The samples collected during the victim’s sexual-assault exam were not sent to the
Minnesota Bureau of Criminal Apprehension (BCA) for DNA testing until October 2021,
when the department received funds to address untested evidence kits. After testing the
samples in May 2022, the BCA concluded that two samples contained the DNA profile of
an unidentified male. A month later, the unidentified male DNA profile was matched to
DNA samples in Minnesota’s DNA database and the National DNA Index System.
At some point after that testing was completed, the BCA sent the reports from its
DNA testing to the department. The department assigned an officer to the case in early
2023, and in March 2023, that officer reviewed the BCA report—which identified Thomas
as the source of male DNA in the samples from the victim’s sexual -assault exam— and
obtained a search warrant to collect a buccal swab from Thomas. The BCA tested Thomas’s

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saliva sample and, in July 2023, concluded that it matched the DNA profile found in the
samples taken from the victim’s body after the assault. Respondent State of Minnesota then
charged Thomas with four counts of criminal sexual conduct: first-degree criminal sexual
conduct under Minnesota Statutes section 609.342, subdivision 1(c) (2014); second-degree
criminal sexual conduct under Minnesota Statutes section 609.343, subdivision 1(c)
(2014); third-degree criminal sexual conduct under Minnesota Statutes section 609.344,
subdivision 1(b) (2014); and fourth-degree criminal sexual conduct under Minnesota
Statutes section 609.345, subdivision 1(b) (2014). Thomas waived his right to a jury trial,
and the case proceeded to a court trial.
During the three- day trial, the state presented testimony from several witnesses,
including the victim, several police officers who participated in the investigation, the nurse
who performed the sexual-assault investigation of the victim, and the BCA forensic
scientists who tested the DNA samples and analyzed the results. Relevant here, BCA
forensic scientist G.F. testified about the procedures used by the BCA to test the samples
collected during the victim’s sexual- assault exam. Then another BCA forensic scientist,
B.K., testified regarding her interpretation of the results of the DNA testing performed by
G.F.
Thomas’s theory of defense seemed to shift during trial. In their1 opening statement,
defense counsel stated that “Thomas has not, at this point, denied the intercourse” and that
they intended to present “a defense of mistake of age.” On the second day of trial, defense

1 Thomas was represented by two attorneys at trial. Since their identities are irrelevant to
the issues on appeal, we do not distinguish between them.

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counsel began cross-examining G.F. regarding the DNA test results and the adequacy of
the BCA’s DNA testing procedures. The district court interrupted this line of questioning
and instructed the attorneys to approach the bench. The following discussion ensued:
THE COURT: When you did your opening statement, you
conceded sexual intercourse or sexual contact. You said . . . in
your opening statement that [Thomas] initially denied it in an
interview during the investigative process, but he’ s seen
pictures, it jogged his memory, and he doesn’t deny the contact.

DEFENSE COUNSEL: Yes.

THE COURT: What are we doing here?

DEFENSE COUNSEL: There—I understand that. It’s just the
way that the presumably some of the other reports are going to
come in, they’re calling things, frankly, I’ll be giving away my
case, Your Honor, but there is an issue with how they’re calling
some of the DNA, and I just want to make clear—

THE COURT: If he concedes the sexual intercourse, why do I
care whether there’s any DNA evidence at all?

DEFENSE COUNSEL: I don’t know, but they’re presenting it.

PROSECUTOR: Corroboration.

DEFENSE COUNSEL: So I want to be careful about what they
say certain things are and what they say certain things are not.

PROSECUTOR: This guy (inaudible) what he said, and then
my next witness, [B.K.], will (inaudible) everything next.

THE COURT: I get it.

DEFENSE COUNSEL: But there’s been a lot of testimony
from—on direct about how good the BCA is, how they’re
accredited, all this. And I understand you’re not a normal finder
of fact, but I have to make clear what the BCA really is, and
what accreditation really means, and what the testing was. He

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said there were no issues with the positive controls, and now
he’s saying he never interpreted it.

THE COURT: Does he concede the sexual intercourse or not?
Because what I’ve got here is a trial within a trial, if there’s a
concession. If there’s not a concession, and the Court has to
determine whether there was sexual contact based upon
whether or not this witness is credible or etc., then I get it. But
you see my dilemma, I hope. Does he concede it or not?

DEFENSE COUNSEL: So, we talked to him this morning, and
we’re not sure anymore. So, things have changed, so.

THE COURT: Alright. That’s fair enough. You can proceed.

Defense counsel’s cross-examination of G.F. continued, even after the court noted
that “a lot of the terms still mean nothing to the court,” until the prosecutor asked to
approach for another bench conference. During that bench conference, the following
exchange occurred:
THE COURT: . . . And just for the unique situation where I’m
the fact finder, and you’d never hear this from a jury, there are
questions that I don’t understand. Even though this witness is
probably not on your witness list as an expert, I think it’s fair
for you to say, there was a term you used that I’m not familiar
with, to say, what’s that? And then maybe a cross on it. You’ll
never hear that from a jury, but I think it’s fair for you to tell
you that sometimes I don’t get the terms.

DEFENSE COUNSEL: I’m going to wait for the next witness
for that.

THE COURT: Fair enough. Alright.

Defense counsel then proceeded to complete their cross-examination of G.F.
The state next called B.K. After both parties completed their questioning, the judge
asked B.K., “Has there been any issue brought to your attention today that would lead you

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to think that the calculations and conclusions in your reports might need to be modified or
altered in any way?” B.K. responded, “No, not at all.” The district court then asked whether
the attorneys on either side had any further questions. At no point during or after the trial
did defense counsel object to the judge’s comments or questions. During closing argument,
defense counsel did not concede that sexual contact occurred between Thomas and the
victim and did not mention the mistake- of-age defense previewed in their opening
statement. Instead, defense counsel disputed the credibility of the victim’s account and
characterized the DNA evidence as “questionable,” based on the testimony elicited from
G.F. and B.K.
The district court found Thomas guilty of four counts of criminal sexual conduct
and convicted him on the first -degree count. At sentencing, defense counsel argued that
Thomas— who spent time in custody for unrelated offenses between 2015 and the date he
was charged in this case—should receive more custody credit than was calculated by the
state. He argued that, if not for the state’s delay in testing the DNA samples from the
victim’s sexual-assault exam, the state would have had probable cause to charge Thomas
“within months” after the assault and that Thomas should therefore receive credit for time
he spent in custody between the date of the offense and the date he was charged. According
to the presentence investigation report, Thomas had been in custody several times between
the offense date and July 10, 2023, when the BCA matched the known sample of his DNA
to the samples taken during the victim’s sexual-assault exam —including for 96 days
between June 2022 (when the BCA’s testing first identified him as a suspect) and July 10,
2023. The district court calculated Thomas’s custody credit starting from July 10, 2023,

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based on its conclusion that the state lacked probable cause to charge Thomas until the
BCA completed its DNA testing. And the district court found nothing in the record
indicating that the state intentionally delayed its investigation to prevent Thomas from
receiving custody credit to which he otherwise would have been entitled. The district court
sentenced Thomas to 360 months in prison, with 694 days of credit for time served.
Thomas appeals.
DECISION
Thomas raises several arguments on appeal. First, he contends that he is entitled to
a new trial because the district court violated his due- process right to a fair and impartial
judge by asking questions of defense counsel and a witness that interfered with his defense
and helped the state. Next, he argues that, even if his conviction is affirmed, his sentence
should be corrected because he is entitled to more custody credit than the district court
awarded. And finally, in a pro se supplemental brief, Thomas asserts that he received
ineffective assistance of counsel, the judge was biased against him and incorrectly
evaluated certain evidence, he should have received more custody credit, and the district
court incorrectly calculated his criminal-history score.
I.
We first consider Thomas’s constitutional challenge to the district court judge’s
conduct during trial. He contends that the judge interfered with his defense and assisted the
prosecution. Criminal defendants are entitled to due process, a right which courts have
recognized includes “the fundamental right to a fair trial and a fair and impartial judge.”
State v. Duol, 25 N.W.3d 135, 141 (Minn. 2025) (quotation omitted); see also U.S. Const.

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amend. XIV; Minn. Const. art. 1, § 7. “A judge’s conduct must be fair to both sides, and a
judge should refrain from remarks which might injure either of the parties to the litigation.”
State v. Dorsey, 701 N.W.2d 238, 250 (Minn. 2005) (quotations omitted). We review
de novo whether a district court denied a criminal defendant the constitutional right to an
impartial judge. Duol, 25 N.W.3d at 141. The denial of that right is a structural error and
requires automatic reversal of the conviction and a new trial, without harmless-error
review. Id. at 143-44.
Thomas argues that the district court judge here was not impartial because (1) the
judge improperly asked defense counsel to explain why they were cross-examining G.F.
about DNA evidence when defense counsel had previously conceded that he had sexual
intercourse with the victim; (2) the judge informed defense counsel that he did not
understand many of the terms that G.F. used and instructed defense counsel to define the
terms on further cross -examination; and (3) the judge’s question to B.K. helped the
prosecution by negating defense counsel’s line of questioning that showed potential
irregularities in the DNA testing linking Thomas to the victim. We address each instance
of alleged partiality in turn.
A.
Thomas contends that the judge interfered with defense counsel’s ability to make
strategic choices by asking defense counsel why they were questioning the validity of the
DNA evidence, given the representation in their opening statement that Thomas did not
deny having sexual intercourse with the victim. We are not convinced that this exchange
shows that the judge was not impartial. The full context of the exchange, which occurred

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during a bench conference with both attorneys present, shows that the judge sought to
clarify whether defense counsel’s opening statement—that their defense was based on a
mistake of age—remained accurate. The transcript of this exchange shows that the judge
was trying to understand the scope of what Thomas was asking the district court to decide.
The judge expressed concern about avoiding “a trial within a trial, if there’s a concession”
that sexual contact occurred, but acknowledged that without such a concession, the judge
would have to “determine whether there was sexual contact based upon whether or not this
witness is credible or etc.”
Contrary to Thomas’s assertion, the judge’s question did not force defense counsel
to change their defense strategy. Rather, defense counsel seemed to have already changed
their strategy. After stating in their opening that they would pursue a mistake-of-age
defense because Thomas had not then “denied the intercourse,” they seemed to shift their
defense and sought to discredit the DNA evidence linking Thomas to the victim on the
night of the assault. Nothing in the judge’s question to defense counsel suggests bias in
favor of either party but instead reflects the judge’s concern about avoiding potentially
unnecessary and distracting evidence. See generally State v. Smith , 876 N.W.2d 310, 332
(Minn. 2016) (affirming the exclusion of evidence that risked creating a “trial-within -a-
trial” that “would misdirect the jury away from the key inquiry” (quotation omitted)).
B.
Next, Thomas contends that the judge interfered with his defense when the judge
twice told defense counsel, during cross-examination of a forensic scientist regarding some
technical aspects of DNA testing, that “a lot of the terms still mean nothing to the Court.”

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Thomas’s argument here seems to be that the judge exhibited bias because he did not also
tell the state that the terms were unclear. But the context of the judge’s second such
comment, which immediately followed the state’s objection to a question it argued was
unclear, shows that the judge sought clarity on the forensic scientist’s testimony because
he did not know what many of the terms being used by the witness and defense counsel
meant. Thomas cites no authority supporting that a judge asking a clarifying question of
one side and not the other establishes bias. This is not a situation in which the judge
suggested arguments helpful to the prosecution that the prosecution had not raised. See,
e.g., State v. Schlienz, 774 N.W.2d 361, 369 (Minn. 2009) (concluding that judge’s ex parte
communication with prosecutor about how to oppose a motion deprived the defendant of
the right to a fair hearing before an impartial decision-maker). Instead, the judge advised
defense counsel that he was struggling to understand defense counsel’s efforts to undermine
the state’s DNA evidence because the judge was unfamiliar with the technical language
being used. Nothing about this statement violated Thomas’s right to an impartial judge.
C.
Finally, Thomas asserts that the judge assisted the state by asking B.K. this question:
“Has there been any issue brought to your attention today that would lead you to think that
the calculations and conclusions in your reports might need to be modified or altered in
any way?” In concluding that the judge’s single question did not violate Thomas’s right to
an impartial judge, we find persuasive the reasoning of our nonprecedential decision in
State v. Murray. No. A23-0117, 2024 WL 764009 (Minn. App. Feb. 24, 2024), rev. denied
(Minn. June 18, 2024). In Murray, the appellant argued that the trial judge violated his

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constitutional right to an impartial judge, in part “by extensively questioning trial
witnesses.” 2024 WL 764009, at *3. We rejected this argument, relying on two principles:
(1) as permitted by the Minnesota Rules of Evidence, a trial judge may question witnesses,
id. at *4 (citing Minn. R. Evid. 614(b)), and (2) while a judge may question witnesses, they
“must not act in a manner that intrudes on the state’s burden of proof,” id. at *5 (citing
Dorsey, 701 N.W.2d at 251). Applying those two principles here, we conclude that the
judge’s single question to B.K. did not violate Thomas’s right to an impartial judge.
Thomas argues that the judge’s question was “not meaningfully different than the
judge’s conduct in Dorsey.” But Dorsey is readily distinguishable. In Dorsey, while
presiding over a bench trial in a criminal case, the judge directed a clerk to investigate a
fact not introduced into evidence and then announced the results of the investigation to
counsel in open court. 701 N.W.2d at 243-44. The supreme court concluded that the judge’s
conduct amounted to a structural error and reversed because Dorsey’s right to an impartial
judge “was compromised by the conduct of a district court judge who, sitting as the finder
of fact, openly questioned the veracity of a factual assertion made by a key defense witness,
independently investigated that fact, then reported the results of her investigation to
counsel.” Id. at 241, 253.
Here, unlike in Dorsey, nothing in the record indicates that the judge independently
investigated facts not in evidence, reported results of that investigation to counsel, or relied
on that investigation in finding Thomas guilty. Instead, the judge asked a question of a
witness based on what the witness was asked about during her testimony. As explained in
Murray, Minnesota Rule of Evidence 614(b) and relevant caselaw “allows a district court

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judge to interrogate witnesses, whether called by itself or by a party.” 2024 WL 764009, at
*4 (quotation omitted). That the judge asked a question of a witness is not, by itself,
sufficient for us to conclude that the judge violated Thomas’s constitutional right to an
impartial judge.
We are also not convinced that the judge’s question encroached on the state’s burden
of proof. As in Murray, the judge’s question here “merely confirmed evidence that had
already been introduced or inferences from that evidence.” Id. at *5. In questioning B.K.
in court, while both attorneys were present, the judge “did not investigate or produce new
evidence for the prosecution.” Id.; see also Dorsey, 701 N.W.2d at 249-50 (explaining that
“conclusions reached by the trier of fact [must ] be based upon the facts in evidence” and
not “evidence sought or obtained beyond that adduced in court”). Instead, the judge used
this single question “to further understand the evidence presented.” Murray, 2024 WL
764009, at *5.
Nothing about the judge asking a single clarifying question of a witness who
had testified at length about technical scientific concepts encroached on the state’s burden
of proof or otherwise exhibited bias.
We are therefore not persuaded that any of the district court judge’s statements
identified here—either individually or taken together—violated Thomas’s constitutional
right to a fair and impartial judge.
II.
We next address Thomas’s contention that he is entitled to an additional 96 days of
custody credit because law enforcement intentionally manipulated its investigation by
delaying the collection of his DNA until after he was released from custody for a different

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offense. A defendant is entitled to credit against their sentence for time spent in custody “in
connection with the offense or behavioral incident being sentenced.” Minn. R. Crim.
P. 27.03, subd. 4(B). But a defendant may receive credit for time spent in custody on a
separate offense beginning on the date “when (1) the State has completed its investigation
in a manner that does not suggest manipulation by the State, and (2) the State has probable
cause and sufficient evidence to prosecute its case against the defendant with a reasonable
likelihood of actually convicting the defendant of the offense for which he is charged.”
State v. Clarkin, 817 N.W.2d 678, 689 (Minn. 2012). The district court lacks discretion in
awarding custody credit. Id. at 687. “A district court’s decision whether to award custody
credit is a mixed question of fact and law; the court must determine the circumstances of
the custody the defendant seeks credit for, and then apply the rules to those circumstances.”
State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008). The defendant bears the burden of
establishing their entitlement to custody credit. Id. In reviewing a district court’s decision
whether to award custody credit, we review the district court’s factual findings for clear
error and questions of law de novo. Clarkin, 817 N.W.2d at 687.
Thomas argues that the state manipulated its investigation to prevent him from
receiving credit for time he spent in custody in 2022. Thomas was in custody for unrelated
offenses and released in late 2022. The BCA tested the samples collected from the victim
in May 2022 and matched those samples to DNA samples in state and federal DNA
databases in June. But law enforcement did not obtain a warrant to collect a sample of
Thomas’s DNA until April 2023—nearly four months after he was released. The district
court concluded that custody credit should be counted from the date on which the state had

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probable cause to charge Thomas, which was “no earlier than July 10, 2023, when the
admissible BCA DNA test was completed indicating a match between [Thomas] and the
DNA obtained” from the victim. The district court also found no indication “that there was
delay that was intentionally engaged in or with any intent to prejudice” Thomas and that
the investigation into the 2015 assault was in no way “complete until DNA testing was
received in July of 2023.”
Thomas has not identified anything in the record from which we could conclude
that the district court’s factual findings were clearly erroneous. And the evidence in the
record supports the district court’s findings. The district court heard testimony that, in May
2022, the BCA reported an unidentified male DNA profile in two of the samples taken
from the victim’s body and then, a month later, matched that unidentified male DNA
profile against a database, which suggested Thomas was the source of the DNA. The BCA
returned the samples to the department in August 2022, but the record is not clear as to
when the department was notified of the results. The record shows that the department
assigned an officer to the case in early 2023, the officer reviewed reports of the BCA’s
DNA testing results in March 2023, and the officer then sought a search warrant to obtain
a DNA sample from Thomas. In other words, nothing in the record indicates that the
department considered Thomas a suspect until March 2023, well after he was released from
custody in late 2022. Based on this evidence and Thomas’s failure to point to any evidence
that the department manipulated its investigation or had probable cause to charge him
before July 10, 2023, we discern no clear error in the district court’s findings.

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The district court therefore did not err in awarding Thomas 694 days of custody
credit.2
III.
Finally, we address the issues Thomas raises in a pro se supplemental brief. He
contends that he received ineffective assistance of counsel; the judge was biased against
him and ignored certain evidence; the victim’s testimony was inconsistent; he “should have
more time served”; and he had a lower criminal-history score.
As to Thomas’s first contention, that counsel was ineffective, he argues there were
“many things” that “could have been done” but were not. But because Thomas does not
identify what aspects of defense counsel’s performance were ineffective or how any
ineffective assistance prejudiced the outcome of his trial, we cannot address the merits of
Thomas’s claim.3 See State v. Nyonteh, 24 N.W.3d 271, 287 (Minn. 2025) (declining to
address an ineffective- assistance-of-counsel claim raised in a pro se supplemental brief
because the appellant did “not identify any specific conduct by his attorney,” nor did he
“include argument or citation to legal authority”).

2 Thomas does not dispute the district court’s calculation of 694 days of custody credit
based on a starting date of July 10, 2023. Instead, he argues only that he should have been
awarded an additional 96 days of credit for time spent in custody before July 10, 2023.

3 Because we do not address the merits of Thomas’s ineffective-assistance-of-counsel
claim here, we note that he is not foreclosed from pursuing this claim in a postconviction
proceeding. See State v. Jackson, 726 N.W.2d 454, 463 (Minn. 2007) (denying ineffective-
assistance-of-counsel claims on direct appeal “without prejudice to [appellant’s] right to
raise them in a postconviction proceeding”).

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Thomas next asserts that the judge favored the victim’s “story before hearing
everything,” did not review police and nurse reports, and ignored “the lies in the victim’s
statements.” The record shows that the victim was the first of many witnesses from whom
the judge heard testimony during trial, that the judge heard testimony from several police
officers and from the nurse who examined the victim in the hospital following the assault,
and that reports from the police and the nurse were admitted into evidence. We see no
indication that the judge failed to review all of the admitted evidence. Thomas points to
nothing supporting his assertion that the judge was biased, and we do not “presume error
by the district court.” Butler v. Jakes, 977 N.W.2d 867, 873 (Minn. App. 2022) (citing
Noltimier v. Noltimier, 157 N.W.2d 530, 531 (Minn. 1968)).
As to Thomas’s contention that he “should have more time served than what they
gave me,” we understand this to be an argument that he should have received more custody
credit than what the district court awarded. We addressed this argument above.
Lastly, Thomas argues that he should have a lower criminal-history score—
specifically, fewer “felony conviction points.” When a district court relies on its
interpretation of the sentencing guidelines, as it did here, we review its criminal-history-
score calculation de novo. State v. Strobel, 932 N.W.2d 303, 306 (Minn. 2019). The district
court concluded that Thomas had 4 felony points, 1.5 of which were based on 3 past
convictions—in 2015, 2018, and 2022—of fifth-degree possession of a controlled
substance. As the supreme court explained in State v. Scovel, “the classification of prior
offenses for the purpose of calculating a defendant’s criminal history score is based
on . . . offense definitions and sentencing policies in effect when the defendant committed

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the current crime.” 916 N.W.2d 550, 559 (Minn. 2018). Thomas was convicted of
possessing marijuana, which, under sentencing policies effective at the time of the instant
offense, subjected him “to imprisonment for not more than five years” for each offense.
Minn. Stat. § 152.025, subd. 2(a)(1) (2014). And the sentences for each offense were
imposed before Thomas was sentenced in this case, so the prior convictions were properly
included in calculating Thomas’s criminal-history score. Minn. Sent’g Guidelines 2.B.1
(Supp. 2015). Having reviewed the information in the sentencing worksheet and
presentence investigation report, we conclude that the district court did not err in
categorizing those three past controlled-substance convictions as felonies.
Affirmed.