This opinion is nonprecedential except as provided by Minn.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 A22-1785
State of Minnesota, Respondent,
vs.
Walter Pierre Thomas, Appellant.
Filed April 22, 2024 Affirmed Frisch, Judge
Benton County District Court File No. 05-CR-21-992
Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul, Minnesota; and
Karl Schmidt, Benton County Attorney, Foley, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Frisch, Presiding Judge; Segal, Chief Judge; and Reilly,
Judge. ∗
∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
FRISCH, Judge
Following his conviction for second-degree assault, appellant challenges certain
evidentiary rulings by the district court and the inclusion of an out-of-state felony
conviction in the calculation of his criminal-history score at sentencing. Because the
district court did not abuse its discretion or plainly err in admitting evidence, and the district
court did not abuse its discretion in calculating appellant’s criminal-history score, we
affirm.
FACTS
In 2021, respondent State of Minnesota charged appellant Walter Pierre Thomas
with seven offenses, six of which were tried: (1) second‑degree assault in violation of
Minn. Stat. § 609.222, subd. 1 (2020), against M.C., the mother of his children;
(2) second‑degree assault against his son D.T.; (3) second‑degree assault against his son
A.C.; (4) threats of violence in violation of Minn. Stat. § 609.713, subd. 1 (2020);
(5) domestic assault by strangulation in violation of Minn. Stat. § 609.2247, subd. 2 (2020);
and (6) obstructing legal process or arrest in violation of Minn. Stat. § 609.50, subd. 1(2)
(2020). Thomas noticed the defense of self‑defense. The matter proceeded to trial.
M.C. was the state’s first witness at trial. M.C.’s testimony generally established
that, over the course of a day or so, Thomas engaged in several physical and verbal
altercations with M.C. and their two sons, D.T. and A.C. The altercations included Thomas
waiving a knife at them and threatening to kill them, Thomas cutting M.C.’s breast with a
knife, and Thomas choking M.C. for a few seconds. M.C. admitted that she could have
2 caused injuries sustained by Thomas during these altercations, including by burning
Thomas with a cigarette and stabbing his hand with a pen. Eventually, M.C. called 911.
Following a limiting instruction from the court, M.C. also testified about a 2008 incident
during which Thomas choked her.
After the first day of trial, but before M.C. completed her testimony, Thomas
objected to the admission of a recorded statement that M.C. made to the police when they
responded to the incident on the ground that it was unfairly prejudicial. The state argued
that the statement was admissible as “a combination of prior consistent statement and prior
inconsistent statement depending on how the rest of testimony goes through. Different
pieces have been consistent, and a few have been inconsistent.” The district court deferred
ruling on the admissibility of M.C.’s recorded statement until after her testimony.
During the state’s examination of M.C., the state used a transcript of M.C.’s
recorded statement to refresh her recollection. During cross-examination of M.C.,
Thomas’s counsel used the statement to impeach M.C.
Following M.C.’s testimony, the state confirmed that it planned to offer M.C.’s
recorded statement with portions redacted and argued that the content of the recorded
statement was admissible as either a prior consistent or prior inconsistent statement.
Thomas objected, arguing that M.C.’s recorded statement did not amount to a prior
consistent statement due to inconsistencies between M.C.’s testimony and the recorded
statement, the statement referenced a prior bad act related to a gun, and the statement was
overly cumulative and prejudicial. The district court ordered the state to make certain
3 redactions from M.C.’s recorded statement relating to Thomas having or using a gun. The
district court then stated:
In other respects, in reviewing the transcript, it appears that the bulk of it is consistent with [M.C.’s] statement in court here today. And I think it would be helpful to the trier of fact to be able to review and hear that statement and compare that to her testimony.
So my inclination, then, is to allow the statement to be presented with those redactions as we’ve cited on the record. And, since there is a reference to a 634.20 incident within the statement, I will again repeat my cautionary instruction before we play the audio for the jury.
Thomas renewed his objection when the state offered the recording during the testimony
of the officer who took the statement. The district court admitted the statement, finding it
admissible as a prior statement by a witness and under the residual hearsay rule. The
district court then permitted the state to play the recorded statement. The state later offered
as an exhibit a recorded statement Thomas made to police when police responded to the
incident. Thomas did not object to this evidence, and the district court admitted the
statement.
The jury found Thomas guilty of second‑degree assault against M.C., threats of
violence, and domestic assault by strangulation, and not guilty of the remaining charges.
The district court convicted Thomas of second‑degree assault and sentenced him to 33
months’ imprisonment, a guidelines sentence based on a severity level of six and two
criminal‑history points. Minn. Sent’g Guidelines 4.A (2020). Thomas’s criminal‑history
score was based on out‑of‑state convictions.
4 Thomas appealed and then moved this court to stay the appeal to pursue
postconviction relief to correct his criminal‑history score. We granted the stay.
Thomas moved the district court to correct his sentence, arguing that the district
court should not have included Indiana convictions in calculating his criminal‑history
score, including a 2016 conviction for strangulation. In response, the state filed a
judge‑executed domestic-violence determination, criminal information and affidavit of
probable cause for seven charges, an abstract of judgment, and documents related to
revocation of probation in support of its assertion that Thomas’s 2016 conviction for
strangulation should be compared to domestic assault by strangulation in Minnesota and
count for one criminal‑history point.
The district court determined that the state produced sufficient evidence of the 2016
Indiana strangulation conviction and that the offense was the equivalent of domestic assault
by strangulation in Minnesota and was therefore properly included in calculating Thomas’s
criminal-history score. But the district court determined that an Indiana misdemeanor
offense was not properly included in Thomas’s criminal‑history score, lowered his score
to one, and re‑sentenced him to 27 months’ imprisonment.
We reinstated Thomas’s appeal.
DECISION
Thomas challenges the district court’s admission of M.C.’s recorded statement and
his own recorded statement at trial and the inclusion of the 2016 Indiana strangulation
conviction in the amended calculation of his criminal‑history score. We address each
argument in turn.
5 I. There is no reasonable likelihood that the admission of M.C.’s out-of-court statements significantly affected the verdict.
Thomas argues that the district court abused its discretion by admitting certain
statements made in an audio recording of M.C. taken on the same day as the charged
incident. Thomas specifically challenges the admissibility of eight statements in the police
recording with M.C.:
(1) Thomas had sent M.C. text messages during the week and a half before the June 8 incident in which he threatened to kill her and said she was “out here f‑‑‑in’ everybody . . . because [she] won’t have sex with him”; (2) their conflict was about “f‑‑‑n’, f‑‑‑in’ f‑‑‑in’ . . . give him some”; (3) that sex is “all” Thomas “talks about” and that before the incident he said she “better give him some” and “better f‑‑k him”; (4) M.C. was “the only one tak[ing] care of” the children and that she had “no help” or “support”; (5) M.C. “had been through stuff with [Thomas] and [her] boys before,” that her sons grew up with violence “all they life,” and that she called police on Thomas in Gary, Indiana “[f]or [her] son”; (6) M.C. had tried to get Thomas “some help” and that Thomas “needs . . . some mental help”; (7) M.C. was trying to “save” her daughter by “break[ing] the cycles” and did not want her daughter to “end up like” her; and (8) M.C. was not sure if Thomas had been “doin’ drugs” on June 8, 2021 but that he’s “came around” after he “smoked it,” and that his behavior on the offense date was “worse than that.”
Thomas argues that these statements were inadmissible hearsay.
We begin by noting that our task is complicated by the fact that the record of
evidentiary objections at trial is unclear. Before the district court, defense counsel did not
specify with precision the objectionable portions of M.C.’s statement, and the district court
did not specify with precision the applicability of exceptions to the hearsay rule with
respect to any particular statement. See State v. Vasquez, 912 N.W.2d 642, 649 (Minn.
6 2018) (citing State v. Rossberg, 851 N.W.2d 609, 617-18 (Minn. 2014)) (“A defendant’s
objection to the admission of evidence preserves review only for the stated basis for the
objection or a basis apparent from the context of the objection.”). And, before the recording
was admitted as substantive evidence, defense counsel used M.C.’s recorded statement to
impeach her on cross-examination. We assume for purposes of this appeal that Thomas
objected to the eight categories of statements set forth above as inadmissible hearsay.
“We review a district court’s evidentiary ruling on hearsay for an abuse of
discretion.” State v. Vangrevenhof, 941 N.W.2d 730, 736 (Minn. 2020). “A district court
abuses its discretion when its decision is based on an erroneous view of the law or is against
logic and the facts in the record.” Id. (quotation omitted). “A defendant claiming error in
the district court’s reception of evidence has the burden of showing both the error and the
prejudice resulting from the error.” Id. (quotation omitted).
Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). Hearsay is only admissible as provided by the rules of evidence or by other
rules not relevant here. Minn. R. Evid. 802. A statement is not hearsay if (1) the declarant
testifies at trial, (2) the declarant “is subject to cross-examination concerning the
statement,” (3) the statement is “consistent with the declarant’s testimony,” and (4) the
statement is “helpful to the trier of fact in evaluating the declarant’s credibility as a
witness.” Minn. R. Evid. 801(d)(1). “[A]ssertions about events that have not been
described by the witness in trial testimony” are not admissible under this rule because they
7 are not helpful to the trier of fact. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App.
2000) (quotation omitted), rev. denied (Minn. Feb. 24, 2000).
The admission of a statement “that is reasonably consistent with the trial testimony
is not reversible error.” State v. Zulu, 706 N.W.2d 919, 924 (Minn. App. 2005) (quotation
omitted). But a statement is not reasonably consistent such that it is a prior consistent
statement when “inconsistencies directly affect the elements of the criminal charge.”
Bakken, 604 N.W.2d at 110. To determine whether statements are reasonably consistent,
a district court must compare individual statements to determine their consistency,
otherwise “a few consistent statements in a multi-statement interview may be used to
bootstrap into evidence inconsistent statements that do not qualify under the rule.” Id. at
109.
We conclude from our comparison of M.C.’s trial testimony and recorded statement
that certain of M.C.’s statements regarding the nature of her relationship with Thomas,
including conflict between Thomas and M.C. and their sons prior to the charged incident,
were reasonably consistent. But the remainder of M.C.’s recorded statement identified by
Thomas on appeal—that M.C. was the only person taking care of their children, that
Thomas had tried to receive mental-health help in the past, that M.C. was trying to “break
the cycle,” and that M.C. was unsure if Thomas had been using illicit substances on the
day of the incident but was aware that Thomas had used them before—is not reasonably
consistent with her trial testimony and was therefore not admissible as a prior consistent
8 statement. 1 See id. (concluding that the district court improperly admitted portions of a
recorded statement inconsistent with testimony).
Our conclusion that the identified statements are inadmissible hearsay does not end
our analysis because Thomas has not shown a reasonable likelihood that the erroneous
admission of these statements significantly affected the verdict. See State v. Matthews, 800
N.W.2d 629, 633 (Minn. 2011) (“Under the harmless error standard, a defendant who
alleges an error that does not implicate a constitutional right must prove there is a
reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” (quotation omitted)). We are not persuaded that the state’s references in closing
argument to the statement and M.C.’s credibility, the volume and nature of the inadmissible
hearsay, the manner of presentation, and the strength of the evidence at trial were such that
there was a reasonable likelihood that the erroneously admitted statements had a significant
effect on the verdict. The record shows that Thomas highlighted the inconsistencies
between M.C.’s testimony and her statement by using the statement to undermine her
credibility at trial. And the hearsay statements were made in a recording totaling
approximately 40 minutes and were not referenced again during trial. We therefore affirm
Thomas’s convictions because the erroneous admission of evidence did not significantly
affect the verdict.
1 In admitting M.C.’s statement, the district court also summarily ruled the statement was admissible under Minn. R. Evid. 807, also known as the residual hearsay exception. Thomas challenges the admissibility of M.C.’s statement under this exception. We decline to resolve whether these statements may have been admissible under the residual exception to the hearsay rule because the district court conducted no analysis as to the admissibility of the statements under that exception.
9 II. The district court did not plainly err in admitting Thomas’s out‑of‑court statements.
Thomas next argues that the district court plainly erred by admitting a recording of
Thomas’s statement made shortly after his arrest because the statement contained
prejudicial indications that he was familiar with police. Thomas did not object to this
evidence at trial, so we review the admission of his recorded statement for plain error.
Vasquez, 912 N.W.2d at 650. To show plain error, a defendant must demonstrate that
“(1) there was an error, (2) the error was plain, and (3) the error affected the defendant’s
substantial rights.” Id. (quotation omitted). On appeal, we “correct the error only when it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022).
Assuming that the admission of Thomas’s statement was plainly erroneous, we do
not conclude that such error affected Thomas’s substantial rights. Matthews, 800 N.W.2d
at 634 (explaining that the analysis of whether a plain error affected a defendant’s
substantial rights is equivalent to harmless-error analysis, such that “[a] plain error affects
the substantial rights of the defendant when there is a reasonable likelihood that the error
substantially affected the verdict” (quotation omitted)). First, the statement did not
unequivocally suggest that Thomas had knowledge of his rights and of criminal
investigations because he has a prior criminal history. Second, the admission of Thomas’s
recorded statement permitted him to share in his own words—without testifying at trial—
his version of the incident, including M.C.’s conduct resulting in harm to him. Third, the
statement further highlighted inconsistencies in the testimony describing the events
10 surrounding the incident. Under these circumstances, we conclude that any error by the
district court in admitting Thomas’s statement did not affect his substantial rights.
And even if Thomas’s own statement affected his substantial rights, we cannot
conclude that the admission of the statement seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Pulczinski, 972 N.W.2d at 356. Thomas argues
that his statement suggested to the jury that he was “arrested for assaultive conduct on
many prior occasions” and therefore the verdict “raises doubt about the jury’s ability to
fairly resolve the case before it, including with respect to whether Thomas acted in self-
defense.” Again, we note that Thomas’s statement did not conclusively establish that he
had a prior history of assaultive conduct and benefited Thomas by allowing the jury to hear
his explanation as to what happened, including how he acted in self-defense.
We therefore conclude that the district court did not commit reversible error by
admitting Thomas’s recorded statement.
III. The district court did not abuse its discretion in calculating Thomas’s criminal‑history score.
Thomas argues that the district court erred in calculating his criminal-history score
on remand because it included a 2016 Indiana strangulation conviction and the state did
not meet its burden to prove that conviction was equivalent to domestic assault by
strangulation in Minnesota. We disagree.
A district court must use an accurate criminal‑history score to determine the
presumptive sentence under the sentencing guidelines. State v. Maurstad, 733 N.W.2d
141, 147 (Minn. 2007). Thus, any sentence based on an incorrect criminal‑history score is
11 an illegal sentence that can be corrected at any time. Id. When a defendant is sentenced
based on an incorrect criminal‑history score, the district court must resentence the
defendant. State v. Provost, 901 N.W.2d 199, 202 (Minn. App. 2017).
“The [sentencing] guidelines direct that out‑of‑state felony convictions be included
in a defendant’s criminal‑history score.” State v. Maley, 714 N.W.2d 708, 711 (Minn. App.
2006); see also Minn. Sent’g Guidelines 2.B.5 (2020) (providing the district court with a
procedure for counting out‑of‑state convictions). “The state must establish by a fair
preponderance of the evidence that the prior conviction was valid, the defendant was the
person involved, and the crime would constitute a felony in Minnesota.” Maley, 714
N.W.2d at 711. We review a district court’s determination of a defendant’s
criminal‑history score for an abuse of discretion. Id.
An out‑of‑state conviction “may be counted as a felony [in a criminal‑history score]
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.” Minn. Sent’g Guidelines
2.B.5.b (emphasis omitted). To determine whether an out‑of‑state conviction should be
included in a defendant’s criminal‑history score, the sentencing court should compare the
definition of the out‑of‑state offense with the definitions of comparable Minnesota offenses
but may also consider the nature of the out‑of‑state offense and the sentence the offender
received. Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992). “The offense definitions in effect
when the current Minnesota offense was committed govern the designation of
non‑Minnesota convictions as felonies.” Minn. Sent’g Guidelines 2.B.5.b.
12 The state submitted evidence to the district court to prove that Thomas was
convicted of strangulation in Indiana. Those documents included a domestic-violence
determination, criminal information (complaints) for seven different charges, affidavits of
probable cause for each charge, an “abstract of judgment” listing the charges to which
Thomas pleaded guilty, dismissed charges, and sentencing information, and documents
related to a subsequent probation revocation. Although Thomas asked the district court
not to consider the state’s late submission, Thomas did not otherwise object to the district
court’s consideration of any of this evidence.
The district court exercised its discretion to consider the documents and concluded
that these documents established the validity of Thomas’s 2016 Indiana strangulation
conviction and that the crime was equivalent to a felony in Minnesota by a fair
preponderance of the evidence. The district court specifically noted the contents of the
affidavit of probable cause, “[a]ssociated certified documents” discussing other charges
arising from the same incident, the domestic-violence determination, and the abstract of
judgment. The district court concluded, and we agree, that a fair reading of these
documents shows that Thomas was charged with, and pleaded guilty to, a strangulation
charge based on an allegation that he “grabbed [the victim] by her neck and lifted her up
against a wall” which impeded her normal breathing or blood circulation and that he
received a sentence of 912 days’ imprisonment. The documents also show that the victim
of the strangulation “is or was the spouse of” Thomas. And the Indiana court issued a
domestic-violence determination as part of sentencing. See Ind. Code § 35-38-1-7.7 (2020)
(providing that a domestic-violence determination “must be based upon . . . evidence
13 introduced at trial” or “a factual basis provided as part of a guilty plea”). On this record,
the district court did not abuse its discretion by determining that the state had proven the
2016 Indiana strangulation conviction by a fair preponderance of the evidence. Compare
Ind. Code §§ 35-42-2-9(b) (defining strangulation), 35-31.5-2-78 (defining crime of
domestic violence), 35-31.5-2-128 (defining family or household member) (2020), with
Minn. Stat. §§ 609.2247 (defining domestic assault by strangulation), 518B.01, subd. 2(b)
(defining family or household members) (2020).
Thomas argues that these documents are insufficient to prove the validity of the
conviction because they are simply allegations and do not necessarily establish that the
factual basis of Thomas’s plea was consistent with the allegations. In effect, Thomas
argues that the state was obligated to produce a transcript of his testimony at the plea
hearing to confirm that the Indiana conviction was equivalent to a felony in Minnesota to
satisfy its burden. But Minnesota law does not impose such a requirement on the state to
prove the validity of an out-of-state conviction. State v. Griffin, 336 N.W.2d 519, 525
(Minn. 1983) (explaining that the state may prove the conviction by a copy of the
conviction “certified as correct in accordance with Rule 902 or testified to be correct by a
witness who has compared it with the original” or, if such a copy “cannot be obtained by
the exercise of reasonable diligence, then other evidence of the contents may be given”);
Maley, 714 N.W.2d at 712 (explaining that the district court may “rely on persuasive
evidence that sufficiently substitutes for the official, certified record of conviction”). And
we decline to impose such a requirement here because defendants with prior foreign or
out‑of‑state convictions must “have their criminal history scores computed according to
14 the same basic standards” as with Minnesota prior convictions and a “mini‑trial” is not
required in every case. Hill, 483 N.W.2d at 61.
Thomas also argues that the state was required to specify to the district court the
elements of both the foreign conviction and the comparable Minnesota crime. But Thomas
cites no authority for the proposition that the state is required to do so to meet its burden.
See Braylock v. Jesson, 819 N.W.2d 585, 590 (Minn. 2012) (describing the difference
between a burden of production and a burden of persuasion); State v. Jackson, 358 N.W.2d
681, 683 (Minn. App. 1984) (stating that the state must establish the validity of a prior
conviction “by a fair preponderance of the evidence”). It is ultimately the district court’s
responsibility to determine whether an out-of-state conviction must be included in
calculating a defendant’s criminal-history score. Minn. Sent’g Guidelines 2.B.5 (“The
court must make the final determination as to whether and how a prior non-Minnesota
conviction should be counted in the criminal history score.”). We therefore decline to
impose additional obligations upon the state in satisfying its burden to prove an out-of-state
conviction.
Affirmed.