                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0395

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                    Joseph Greene,
                                      Appellant.

                               Filed February 13, 2017
                   Affirmed in part, reversed in part, and remanded
                                   Connolly, Judge

                              Steele County District Court
                                File No. 74-CR-15-345


Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

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



      Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       On appeal from his conviction of second-degree assault with a dangerous weapon

and felony domestic assault, appellant argues that (1) he is entitled to a new trial because

the district court erred when it ruled that the state could introduce evidence of a prejudicial

prior bad act as relationship evidence under Minn. Stat. § 634.20 (2014); (2) his criminal-

history score was improperly calculated when he was assigned a felony point for a prior

conviction that involved multiple offenses and victims and/or the prior felony was

sentenced as a gross misdemeanor; and (3) his conviction for felony domestic assault must

be vacated because it is a lesser-included offense of second-degree assault arising out of

the same behavioral incident involving the same victim. We conclude that the district court

did not abuse its discretion in allowing evidence under Minn. Stat. § 634.20 and that felony

domestic assault is not a lesser-included offense of second-degree assault. However,

because we conclude that appellant’s criminal-history score was improperly calculated, we

reverse and remand in part for resentencing based on the correct criminal-history score.

                                           FACTS

       Appellant Joseph Greene and the victim, K.H., met through an online dating website

and spoke with each other on and off for a “couple of years.” In December 2014, appellant

and K.H. finally met when appellant visited her. From that point forward the relationship

was an exclusive, romantic, and sexual relationship. The couple lived together at K.H.’s

residence. On the afternoon of February 5, 2015, K.H. was at the house doing normal

housework duties, including laundry. It was a weekday and her son was at school. K.H.


                                              2
was in the bedroom folding laundry when appellant came home and “started spazzing out

on [K.H.] for being unorganized.” Appellant used racial slurs toward K.H., threw her

against a wall, and then went downstairs to grab a steak knife. Appellant returned upstairs

with the steak knife and threatened K.H. with it, dragging it along K.H.’s throat. Appellant

then got a nail, heated it with a lighter and told K.H. he was going to burn her with it every

time she made him upset. He used the heated nail on her left forearm, leaving a red mark.

Appellant then went downstairs and, after a few minutes, K.H. followed.

       Once K.H. arrived downstairs, appellant prevented her from entering the kitchen by

pushing her into the laundry room while holding the knife to her chest, forced her to sit on

the washing machine, and stood between her legs poking her with his finger and calling

her derogatory names. Appellant threatened to cut K.H.’s face to make her “look like . . .

the joker”; grabbed her mouth with his hand; threatened to break her jaw while grabbing

her neck; and banged K.H.’s head on a cabinet. K.H. testified that she tried to escape and

tried everything she could to get out but appellant would just come at her more forcefully.

       Eventually, K.H. told appellant she was thirsty and needed something to drink and

appellant let her go to the kitchen. As she was drinking water, appellant noticed that she

was looking toward the door and said, “if you want to go, go. If you want to run, run.”

K.H. waited until appellant went back upstairs and then ran to her neighbor’s house. Her

neighbor encouraged her to call the police but, before calling, K.H. checked to see if

appellant was still at home. After confirming that he was not at home, K.H. sent messages

to appellant via Facebook before calling 911.




                                              3
       Appellant was arrested and charged with second-degree assault and felony domestic

assault. Prior to the start of the jury trial, appellant stipulated that he had prior convictions

for domestic assault and malicious punishment of a child and agreed that these prior

convictions served as a basis for enhancing the domestic-assault charge to a felony.

       At trial, the state wished to offer evidence of a previous incident between appellant

and K.H. that occurred in late-January 2015 during which appellant “flip[ped] out on

[K.H.]” At a pretrial hearing, the district court ruled that this evidence was admissible as

relationship evidence under Minn. Stat. § 634.20. Prior to K.H.’s testimony regarding the

incident, the district court gave a cautionary instruction. The district court explained:

              This evidence is being offered for the limited purpose of
              demonstrating the nature and extent of the relationship
              between [appellant] and [K.H.] in order to assist you in
              determining whether [appellant] committed those acts with
              which [he] is charged in the complaint.
                     You may use this evidence to attempt to better
              understand the history of the relationship between [appellant]
              and [K.H.]. And this evidence may be used by you to place
              those acts with which [appellant] has been charged in the
              context of their relationship.
                     This evidence is not to be used to prove the character of
              [appellant] or that [appellant] acted in conformity with such
              character. [Appellant] is not being tried for and may not be
              convicted of any behavior other than the charged offenses.
              You are not to convict [appellant] on the basis of conduct on
              or about January 29, 2015. To do so might result in unjust
              double punishment.

       K.H. then proceeded to testify that on January 29, 2015, appellant told K.H. to get

in the bathtub wearing her clothes (the bathtub incident). Appellant then put plastic bags

on his boots and around his hands, turned up the radio to muffle out any screaming, and

threatened to kill appellant with a switchblade. K.H. testified that this went on for 15-20


                                               4
minutes before appellant stopped and took her out of the bathtub, soaking wet. Appellant

testified that the event was traumatizing.

       The jury found appellant guilty on both counts. At sentencing, appellant’s attorney

argued that appellant should be sentenced to “45 months, which is the . . . mandatory

minimum sentence under the guidelines for Count 1.” The court stated its intent to “convict

on Count 1 and consider the second count as the same course of conduct or the same

behavioral incident” without objection. The district court denied appellant’s request for a

downward departure and concluded that it would “just sentence [appellant] to the

presumptive middle of the box, 45 months.” A judgment of conviction was subsequently

entered on both the second-degree assault and the felony domestic-assault counts.

                                      DECISION

I.     Did the district court err when it admitted relationship evidence under Minn.
       Stat. § 634.20, concluding that the testimony was not unfairly prejudicial?

       Evidentiary rulings generally rest within the district court’s discretion, and this court

will not reverse a district court’s decision on the admission of evidence absent an abuse of

that discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). This rule applies to

the admission of relationship evidence. State v. Matthews, 779 N.W.2d 543, 553 (Minn.

2010). If the district court erroneously admits evidence, an appellate court will nonetheless

affirm unless the appellant establishes prejudice from the abuse of discretion, which occurs

if there is a reasonable possibility that the wrongfully admitted evidence significantly

affected the verdict. State v. O’Meara, 755 N.W.2d 29, 35 (Minn. App. 2008).




                                               5
       Generally, evidence of prior bad acts is inadmissible because the jury may punish

the defendant for that prior bad act for which he is not currently on trial. See, e.g., State v.

Fardan, 773 N.W.2d 303, 315 (Minn. 2009); Minn. R. Evid. 404(b). However, a district

court may admit evidence of “domestic conduct by the accused against the victim of

domestic conduct, or against other family or household members . . . unless the probative

value is substantially outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20.

“‘Domestic conduct’ includes, but is not limited to, evidence of domestic abuse . . . .” Id.

“Domestic abuse” includes physical harm, bodily injury, or assault, as well as the infliction

of fear of imminent physical harm, bodily injury, or assault. Minn. Stat. § 518B.01, subd.

2(a) (2014). “Family or household members” includes persons who are presently residing

together or who have resided together in the past. Id., subd. 2(b)(4) (2014).

       “Evidence that helps to establish the relationship between the victim and the

defendant or which places the event in context bolsters its probative value.” State v.

Barnslater, 786 N.W.2d 646, 652 (Minn. App. 2010) (quotation omitted), review denied

(Minn. Oct. 27, 2010). “Obviously, evidence showing how a defendant treats his family

or household members . . . sheds light on how the defendant interacts with those close to

him, which in turn suggests how the defendant may interact with the victim.” State v.

Valentine, 787 N.W.2d 630, 637 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010).

       Unfair prejudice “is not merely damaging evidence, even severely damaging

evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving

one party an unfair advantage.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006)

(quotation omitted). Cautionary instructions minimize the potential for prejudice. State v.


                                               6
Lindsey, 755 N.W.2d 752, 757 (Minn. App. 2008), review denied (Minn. Oct. 29, 2008).

“A district court should instruct the jury regarding the proper use of relationship evidence

presented under section 634.20 both when the evidence is received and in the final jury

instructions.” Barnslater, 786 N.W.2d at 653. “A district court’s limiting instruction

lessens the probability of undue weight being given by the jury to the evidence.” State v.

Ware, 856 N.W.2d 719, 729 (Minn. App. 2014) (quotation omitted).

       Appellant’s action of forcing K.H. into a bathtub, placing plastic bags over his hands

and feet, and threatening K.H. with a switchblade is enough to make a reasonable person

afraid of imminent bodily harm. K.H. was the victim in the bathtub incident as well as the

victim in the incident for which appellant was on trial and appellant and K.H. were living

together. All the requirements for Minn. Stat. § 634.20 are satisfied. The only remaining

question is whether the probative value was outweighed by the danger of unfair prejudice.

We conclude that the evidence was properly admitted and not unfairly prejudicial.

       Appellant argues that the rationale behind Minn. Stat. § 634.20 does not apply here

because (1) this is not a case where the victim claims she does not remember the events

and there is no other eyewitness testimony and (2) the relationship evidence is not probative

because it “does not accurately portray the couple’s history” because much of that history

consisted of e-mails and social media contact. Traditionally, domestic-abuse cases are

difficult to prosecute due to the abuser’s assertion of control, the private nature of the abuse,

and the victim’s unwillingness to testify. State v. McCoy, 682 N.W.2d 153, 161 (Minn.

2004). As a result, evidence may be offered to show the history of the relationship between

the accused and the victim of domestic abuse. Id. Here, K.H. did not fail to show up at


                                               7
trial, she was able to remember what happened, and she did not recant her statements. We

agree that the rationale for allowing the evidence under Minn. Stat. § 634.20, expressed in

McCoy is not consistent with the facts of this case. However, evidence showing how a

defendant treats his household members “sheds light on how the defendant interacts with

those close to him, which in turn suggests how the defendant may interact with the victim.”

Valentine, 787 N.W.2d at 637. While much of the relationship occurred over social media,

the bathtub incident sheds light on how appellant acted during the month that he was living

with K.H., supporting the reliability of K.H.’s testimony. Additionally, K.H.’s testimony

was important because her testimony helped put into context her fear of serious bodily

harm given appellant’s past history of abuse.

       Appellant also argues that the danger of unfair prejudice was too great because the

evidence that appellant allegedly threatened K.H. with a knife in a similar fashion just a

week prior to the charged offense could only have served to persuade the jury that appellant

was a bad person who acted in conformity with his previous actions. The fact that the

alleged bathtub incident occurred one week before the incident for which appellant was

charged is emphasized by appellant as being unfairly prejudicial. But this court reviews

only for an abuse of discretion, not to see whether it would reach the same result.

       Moreover, the district court gave cautionary instructions before testimony of the

bathtub incident and during its final instructions to the jury. These cautionary instructions

minimized the potential for prejudice and decreased the potential that the evidence

persuaded by illegitimate means, giving one party an unfair advantage. Bell, 719 N.W.2d

at 641; Lindsey, 755 N.W.2d at 757.        We conclude that the cautionary instructions


                                             8
combined with the substantial probative value of the evidence, indicating similar domestic

conduct and giving the jury context of the relationship, outweighs any danger of unfair

prejudice to appellant. The district court did not abuse its discretion in admitting the

relationship evidence.

II.    Did the district court err in calculating appellant’s criminal-history score?

       “[I]nterpretation of the sentencing guidelines [is] subject to de novo review. . . . We

apply the rules of statutory construction to our interpretation of the sentencing guidelines.”

State v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012) (citation omitted). However, the district

court’s determination of a defendant’s criminal-history score will not be reversed absent

an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review

denied (Minn. Aug. 20, 2002). Appellant argues that the criminal-history score was

improperly calculated and that he should have received a criminal-history score of three

and not four. The state agrees.

       Under the Minnesota Sentencing Guidelines, a district court sentences an offender

based on a presumptive sentencing range determined by the severity level of the offense

and the offender’s criminal-history score. State v. Jackson, 749 N.W.2d 353, 359 n.2

(Minn. 2008). The district court properly noted that second-degree assault is a severity-

level-six offense. Minn. Sent. Guidelines 5.A (2014). The district court then concluded

that appellant had four criminal-history points. Appellant was assigned four criminal-




                                              9
history points based on four prior convictions from two Hennepin County cases from

2010.1 For each conviction, the district court assigned one criminal-history point.

       Generally, a defendant is assigned one felony point for every felony conviction for

which a sentence was stayed or imposed before the current sentencing. Minn. Sent.

Guidelines 2.B.1.a (2014) (assigning one point to prior severity-level-four offenses).

However, a felony conviction is deemed a gross misdemeanor if the sentence imposed for

the felony is within the gross misdemeanor limits. Minn. Stat. § 609.13, subd. 1(1) (2014).

“[W]hen a prior felony conviction resulted in a non-felony sentence (misdemeanor or gross

misdemeanor), the conviction must be counted in the criminal[-]history score as a

misdemeanor or gross misdemeanor conviction as indicated in section 2.B.3.” Minn. Sent.

Guidelines 2.B.1.h (2014). Prior gross misdemeanor and misdemeanor convictions count

as “units” and four units are needed for one criminal-history point. Minn. Sent. Guidelines

2.B.3 (2014). Prior to sentencing, appellant had been sentenced for felony domestic assault

and three counts of malicious punishment of a child under four years old. However, one

count of malicious punishment of a child under four years old was deemed a gross

misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1(1). As a result, appellant only had

three felony points and not four because he did not have enough misdemeanor and gross

misdemeanor units to make a point. The presumptive commitment range for a severity-

level six offense for an offender with three criminal-history points is 34 to 46 months,



1
 Appellant was convicted of domestic assault by strangulation and two counts of malicious
punishment of a child under four years old in one Hennepin County case and one count of
malicious punishment of a child under four years old in a different Hennepin County case.

                                            10
rather than the 39 to 54 months that the district court considered the presumptive range.

Minn. Sent. Guidelines 4.A (2014).

       The state still argues that the panel should affirm the sentence of 45 months in prison

because the district court’s sentence of 45 months in prison is within the range for

appellant’s adjusted presumptive sentence and thus the district court did not abuse its

discretion. “All three numbers in any given cell [on the sentencing guidelines grid]

constitute an acceptable sentence[.]” Jackson, 749 N.W.2d at 359 n.2. Appellant relies on

a recent United States Supreme Court case involving the federal sentencing guidelines in

which the district court applied a sentencing guidelines range higher than the applicable

one. Molina-Martinez v. United States, 136 S. Ct. 1338, 1341 (2016). “The error went

unnoticed . . . so no timely objection was entered.” Id. The Supreme Court held that

“[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the

defendant’s ultimate sentence falls within the correct range—the error itself can, and most

often will, be sufficient to show a reasonable probability of a different outcome absent the

error.” Id. at 1345.

       Minnesota courts have concluded that “a sentence based on an incorrect criminal

history score is an illegal sentence . . . and therefore . . . correctable at any time.” State v.

Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (quotation omitted). In order to effectuate

the public policy to “maintain uniformity, proportionality, rationality, and predictability in

sentencing[,]” sentences must be based on correct criminal-history scores, as these are the

“mechanism district courts use to ensure that defendants with similar criminal histories

receive approximately equal sanctions for the same offense.” Id. at 146-47 (quotations


                                               11
omitted). The fact that appellant’s sentence falls within the authorized sentencing range

does not change the fact that the sentence was illegal in the first instance. We conclude

that the district court abused its discretion in sentencing appellant based on the wrong

history-score range and appellant should be resentenced based on the correct criminal-

history-score range. Moreover, because the district court stated that it was giving a “middle

of the box” sentence, we are not convinced it would still sentence appellant to 45 months

in prison since the range is now different. For that reason, this matter is remanded for

resentencing.

III.   Should the felony domestic-assault conviction be vacated because it is a lesser-
       included offense of second-degree assault arising out of the same behavioral
       incident involving the same victim?

       Appellant argues that, pursuant to Minn. Stat. § 609.04, subd. 1 (2014), he cannot

be convicted of multiple violations for the same offense that was committed as part of a

single behavioral incident against the same victim. “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. An included offense could be: “A lesser degree of the same

crime; or . . . [a] crime necessarily proved if the crime charged were proved.” Minn. Stat.

609.04, subd. 1(1), (4). Appellant argues that felony domestic assault is an “included

offense” of second-degree assault, describing felony domestic assault as fifth-degree

assault enhanced to a felony if the defendant has convictions for two or more qualified

domestic violence-related offenses in the previous ten years and as a crime that is

necessarily proved when second-degree assault is proved.




                                             12
       This court recently concluded, in an unpublished opinion, that felony domestic

assault is not a lesser-included offense of third-degree assault under Minn. Stat § 609.04,

subd. 1. State v. Clemmensen, 2016 WL 5640625 at *2 (Minn. App. Oct. 3, 2016).2 The

legislature created a multi-tier statutory scheme dealing with assault in 1979 when it

enacted Minn. Stat. § 609.221 (2014) (assault in the first degree), Minn. Stat. § 609.222

(2014) (assault in the second degree), Minn. Stat. § 609.223 (2014) (assault in the third

degree), and Minn. Stat. § 609.2231 (2014) (assault in the fourth degree). 1979 Minn.

Laws ch. 258, §§ 4-7 at 550. The legislature subsequently added a fifth degree of assault,

Minn. Stat. § 609.224 (2014), to this multi-tier statutory scheme. 1983 Minn. Laws ch.

169, §§ 1, 2 at 424. The legislature did not include domestic assault in this multi-tier

scheme. The legislature separately addressed domestic assault when it enacted Minn. Stat.

§ 609.2242 (2014), which does not assign any degree to domestic assault. Within the

domestic-assault statute, the legislature created a separate multi-tier statutory scheme that

treats a domestic-assault offense as a misdemeanor, a gross misdemeanor, or a felony,

depending on the number of offense convictions an offender has within ten years. Minn.

Stat. § 609.2242, subds. 1-4.

       Additionally, appellant’s arguments comparing fifth-degree assault and felony

domestic assault are misleading. Felony domestic assault requires either fifth-degree

assault or misdemeanor domestic assault in addition to convictions for two or more

qualified domestic violence-related offenses in the previous ten years.         Minn. Stat.


2
  While this unpublished opinion carries no precedential value, we are persuaded by the
reasoning of that case.

                                             13
§ 609.2242, subd. 4 (emphasis added). The jury was instructed on the requirements of

domestic assault and the jury convicted appellant of domestic assault that was enhanced to

a felony because appellant stipulated that he had two or more qualified domestic violence-

related offenses in the previous ten years. The jury was never told he had prior convictions,

based on his stipulation. Appellant’s comparisons between fifth-degree assault and felony

domestic assault are not relevant in this case because appellant was never charged with

fifth-degree assault. We conclude that Minn. Stat. § 609.04, subd. 1(1) does not prevent

appellant from being convicted of both second-degree assault and felony domestic assault.

       In order to succeed under subd. 1(4), appellant must show that felony domestic

assault is “necessarily proved if [second-degree assault] were proved.”         Minn. Stat.

§ 609.04, subd. 1(4). Domestic assault is not necessarily proved if second-degree assault

is proved. Unlike second-degree assault, felony domestic assault requires proof that the

assailant and the victim were family or household members and it must be shown that

appellant had two or more previous qualified domestic violence-related offense convictions

within ten years. Compare Minn. Stat. § 609.222 with Minn. Stat. § 609.2242, subd. 4.

Appellant’s charges required that the victim be a family or household member and

appellant did not dispute that he had two or more previous qualified domestic violence-

related offense convictions within ten years. As a result, Minn. Stat. § 609.04, subd. 1(4)

does not apply to prevent multiple convictions.

       Because neither Minn. Stat. § 609.04, subd. 1(1) nor 1(4) apply to prevent multiple

convictions, appellant’s argument that his conviction for domestic assault must be vacated




                                             14
because the domestic assault was committed during the same behavioral incident and

against the same victim as the second-degree assault fails.

       Affirmed in part, reversed in part, and remanded.




                                            15
