Louis County District Court File No. 69DU-CR-15-1361
Swanson, Attorney General, Michael Everson, Assistant
Attorney General, St. Paul, Minnesota; and Mark Rubin, St.
Louis County Attorney, Duluth, Minnesota (for respondent).
Cathryn Middlebrook, Chief Appellate Public Defender, Anders
J. Erickson, Assistant Public Defender, St. Paul, Minnesota
Considered and decided by Jesson, Presiding Judge; Rodenberg,
Judge; and Bratvold, Judge.
determining whether a juvenile's conviction following
certification for adult prosecution in another state should
properly be included in an offender's Minnesota criminal
history score, a district court does not violate an
offender's constitutional right to a sentencing jury
trial when it compares the Minnesota statute with that of the
certifying state to decide whether the juvenile would have
been certified as an adult under Minnesota law.
Tommy James Edwards appeals his conviction of second-degree
assault, arguing that the district court gave erroneous jury
instructions. He also argues that his right to a jury trial
was violated when the district court included two Wisconsin
convictions in calculating his criminal history score without
submitting to a jury the question of whether those Wisconsin
offenses would have been certified for adult prosecution
under Minnesota law. We affirm.
was charged with second-degree assault with a dangerous
weapon under Minn. Stat. § 609.222, subd. 1 (2014),
after he stabbed L.R.D. with a knife during a fight outside a
nightclub. While the state did not produce the knife
at trial, it introduced testimony to support its theory.
L.R.D. described the knife used by appellant, the state
provided photos of L.R.D.'s wounds, and a police
investigator testified that the wounds were consistent with a
theory at trial was that he used no knife to attack L.R.D.,
and that he used only his fists during the fight. A witness
for appellant testified that he did not see either combatant
use a knife during the fight. In summation, appellant's
attorney stated the "key question is whether or not
[appellant] had a knife" during the fight.
were no objections to the district court's jury
instructions. The jury convicted appellant of second-degree
did not request a jury trial concerning his criminal history
score. But before sentencing, appellant moved the district
court to exclude two of his prior Wisconsin felony
convictions from his criminal history score. The convictions
were for two separate attempted robberies, both involving
appellant's use of a handgun to threaten the imminent use
of force. Appellant argues to the district court that it
could not include those convictions in his criminal history
score because he was a minor when he was convicted and,
although Wisconsin tried him as an adult, the district court
had not made sufficient findings that appellant would have
been tried as an adult in Minnesota. The district court
included the Wisconsin felony points in appellant's
criminal history score, concluding that appellant would have
been certified for adult prosecution in Minnesota had the
offenses been committed here.
the district court plainly err by not instructing the jury on
the statutory definitions of "bodily harm" and
"great bodily harm, " or by defining
"assault" as either intentionally inflicting bodily