                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0468

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                   Tyrese Thomas,
                                     Appellant.

                              Filed March 28, 2016
                 Affirmed in part, reversed in part, and remanded
                                Kalitowski, Judge

                           Chippewa County District Court
                               File No. 12-CR-14-79

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

David M. Gilbertson, Chippewa County Attorney, Montevideo, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and

Kalitowski, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

KALITOWSKI, Judge

       Appellant Tyrese Thomas challenges his convictions of first- and second-degree

criminal sexual conduct, arguing that the district court deprived him of a fair trial by seating

a biased juror without rehabilitating the juror and that the district court erred by formally

adjudicating him guilty of an included offense, second-degree criminal sexual conduct, for

the same behavior on which the first-degree criminal-sexual-conduct charge was based.

We affirm appellant’s conviction of first-degree criminal sexual conduct and remand to the

district court to vacate his conviction of second-degree criminal sexual conduct.

                                       DECISION

       Thomas maintains that the district court erred when it failed to strike a biased juror,

L.O., for cause sua sponte and seated L.O. without ensuring that he was rehabilitated. By

failing to object to L.O., however, Thomas has waived the right to challenge L.O. for cause.

But even if his argument is not waived, we conclude that Thomas has failed to establish

actual bias and that L.O. was rehabilitated regarding any possible bias by the district court’s

questioning.

                                               I.

       The Sixth Amendment to the United States Constitution provides, “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have been committed . . . .” U.S.

Const. amend. VI; see also Minn. Const. art. I, § 6. The right to an impartial jury also

derives from a defendant’s right to due process of law. Irvin v. Dowd, 366 U.S. 717, 722,


                                               2
81 S. Ct. 1639, 1642 (1961). The bias of even a single juror violates a defendant’s

constitutional rights because “the impartiality of the adjudicator goes to the very integrity

of the legal system.” State v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015) (quotation

omitted).

       Rule 26.02, subdivision 5, of the Minnesota Rules of Criminal Procedure provides

for the removal of any prospective juror who is not impartial. The rule enumerates 11

grounds on which a juror may be challenged for cause. Minn. R. Crim. P. 26.02, subd.

5(1). One such ground is when a prospective juror’s “state of mind . . . satisfies the court

that the juror cannot try the case impartially and without prejudice to the substantial rights

of the challenging party.” Minn. R. Crim. P. 26.02, subd. 5(1)1.

       The party challenging a prospective juror on this ground has the burden of

establishing that the prospective juror has “actual bias” toward the case or a party. State v.

Munt, 831 N.W.2d 569, 577 (Minn. 2013). To satisfy that burden, the challenging party

must show more than “‘the mere existence of any preconceived notion as to the guilt or

innocence of an accused’”; the challenging party must show a “‘strong and deep

impression[]’ that would prevent [the prospective juror] from lay[ing] aside [an]

impression or opinion.” Id. (quoting Irvin, 366 U.S. at 722–23 & n.3, 81 S. Ct. at 1642–

43 & n.3).

       To determine whether a juror is biased, district courts follow a two-step process.

Fraga, 864 N.W.2d at 623. First, it must determine whether the juror expressed actual

bias. Id. Second, the district court must determine whether the juror was properly

rehabilitated; a juror is rehabilitated if she states unequivocally that she will follow the


                                              3
district court’s instructions, set aside any preconceived notions, and fairly evaluate the

evidence. Id. “A reviewing court should give deference to the district court’s ruling on

challenges for cause because the district court is ‘in the best position to observe and judge

the demeanor of the prospective juror.’” State v. Prtine, 784 N.W.2d 303, 310 (Minn.

2010) (quoting State v. Graham, 371 N.W.2d 204, 206 (Minn. 1985)); see also State v.

Logan, 535 N.W.2d 320, 323 (Minn. 1995) (holding that the question of whether a juror is

impartial is a credibility determination and that appellate courts defer to a district court’s

finding of impartiality). Appellate courts “review a district court’s decision to seat a juror

for abuse of discretion.” Fraga, 864 N.W.2d at 623.

       Here, at the outset of jury selection, all potential jurors agreed that they would have

no difficulty accepting or following the rules of law that (1) Thomas was presumed to be

innocent, (2) the state had the burden of proof, (3) the state was required to prove each

charge beyond a reasonable doubt, and (4) Thomas did not have to prove his innocence.

When the district court further asked them if they “had heard or read anything regarding

the alleged incident,” five potential jurors, including L.O., reported that they read a

newspaper article that described the charges, summarized the alleged offense, and noted

that Thomas was currently incarcerated for unrelated drug charges.

       The district court questioned L.O. as follows:

              THE COURT: Okay, now you read about the case in the West
              Central Tribune, is that right?
              [L.O.]: Yes, on Saturday, and I saw the starting date of the trial
              was Wednesday. And my math is pretty good and I figured it
              out.
              THE COURT: You put two and two together and decided this
              was going to be your case?
              [L.O.]: Yes.

                                              4
              THE COURT: All right. Now do you understand that if you’re
              selected as a juror you must decide the case only on the
              evidence that you hear in this courtroom?
              [L.O.]: Yes.
              THE COURT: And the instructions of law that I give you?
              [L.O.]: Yes.
              THE COURT: Whatever you did read are you able to set that
              aside and make your decision only on the evidence that you
              hear in this courtroom?
              [L.O.]: That is correct, yes.
              THE COURT: All right. And is there anything about what you
              did read in the paper that causes you at least at this point in
              time to lean one way or the other in the case? In other words,
              are you predisposed to believe that Mr. Thomas is guilty, or
              not guilty based on what you read in the paper?
              [L.O.]: That’s a tough question.
              THE COURT: Why don’t you explain?
              [L.O.]: Ah --- once you hear something or see something it
              sticks with you a little bit. It’s not easily erased.
              THE COURT: If I instruct as I already have, and as I will again
              if you sit as a juror that Mr. Thomas is presumed innocent and
              the State bears the burden of proof beyond a reasonable doubt
              --
              [L.O.]: Yes.
              THE COURT: -- and also instruct you that you must disregard
              any information that you have about the case that you learned
              of outside the courtroom, are you able to follow that
              instruction, or do you believe that what you have read would
              taint and interfere with your ability to deliberate and make a
              decision? And I guess what I’m asking is this intellectual
              question, can you separate what you --
              [L.O.]: I believe I can, yes.

       The district court then allowed questioning, and defense counsel additionally asked

L.O. how many times he read the article. After L.O. responded that he had only read it

once, both defense counsel and the prosecutor stated that they had no further questions.

       Once questioning ended, defense counsel expressly stated “I pass the panel for

cause.” After the prosecutor passed the panel for cause, the district court permitted the

parties to use their peremptory strikes.

                                            5
Appellant Has Waived the Right to Challenge L.O.

       Before addressing Thomas’s argument, the state argues that Thomas’s failure to

challenge L.O. for cause, given the opportunity, should result in waiver of his juror-bias

claim on appeal. Quoting State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007), Thomas

asserts that seating a biased juror is structural error and “[s]tructural errors always

invalidate a conviction whether or not a timely objection to the error was made.”

       Consistent with the state’s contention, this court has recently held that it “will not

consider whether a district court erred by not striking a juror for cause sua sponte if the

appellant expressly waived the right to challenge the juror for cause.” State v. Geleneau,

873 N.W.2d 373, 376 (Minn. App. 2015), pet. for review filed (Minn. Jan. 20, 2016). In

Geleneau, as here, the appellant argued that the district court erred by failing to dismiss

two prospective jurors for cause sua sponte. Id. at 378. Noting Minnesota and federal

caselaw consistent with requiring parties to preserve the error for appeal, we declined to

consider the merits of Geleneau’s argument. Id. at 380–81. Because Geleneau’s trial

counsel did not challenge either juror for cause and later expressly passed the panel for

cause, we held that Geleneau had affirmatively waived the right to challenge the impaneled

jurors on appeal. Id. at 381.

       Presently, Geleneau controls on whether this court will consider Thomas’s

argument. See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (stating that this

court is “bound by supreme court precedent and the published opinions of the court of

appeals” and must apply precedent to factually similar cases), review denied (Minn. Sept.

21, 2010). As in Geleneau, Thomas’s trial counsel expressly passed the juror panel for


                                             6
cause, thereby affirmatively waiving the right to challenge the impaneling of L.O. on

appeal. See Geleneau, 873 N.W.2d at 381.

       Moreover, because the Brown court vacated the defendant’s conviction on different

grounds before addressing his juror-bias claim, the Brown language Thomas relies on is

not controlling. See 732 N.W.2d at 629. Accordingly, following Geleneau, we decline to

consider his challenge to the district court’s failure to sua sponte strike L.O.

No Actual Bias

       Moreover, even if we were not bound by this court’s decision in Geleneau, the

record shows that the district court did not err by impaneling L.O. because Thomas has not

demonstrated actual bias. L.O.’s statement that “once you hear something or see something

it sticks with you a little bit,” does not rise to the level of the statements of the challenged

jurors found to be actually biased in Minnesota caselaw. See e.g., Fraga, 864 N.W.2d at

623–24 (holding that the district court erred in seating a juror who knew about the case,

had read about it in the newspaper, had discussed case details with his mother-in-law, an

emergency room nurse where the victim was treated, and called the allegations

“sickening”); Prtine, 784 N.W.2d at 311 (holding that the district court erred when it

declined to strike for cause a juror who repeatedly expressed that “she would be more

inclined to believe a police officer’s testimony”); see also Brown, 732 N.W.2d at 629 (“[A]

juror admitted that he was racially biased, that he did not trust black people, and that his

daughter was dating a black man and he would not allow the man in his home.”). L.O.’s

statements reveal no impressions concerning the case or either party, which is

understandable, as the record suggests that the article he read simply listed the allegations


                                               7
against Thomas. See Irvin, 366 U.S. at 722 & n.3, 81 S. Ct. at 1642 & n.3 (noting that

fairness does not require “that the jurors be totally ignorant of the facts and issues

involved”).

L.O. Was Rehabilitated

       Finally, even if L.O.’s statements constituted some degree of bias, the district court

properly rehabilitated him. In response to L.O.’s statements about the newspaper article,

the district court sought confirmation from L.O. that he understood that Thomas was

presumed innocent and that the state bore the burden of proof beyond a reasonable doubt.

The district court further sought assurance that L.O. could disregard any extrajudicial

information, to which L.O. responded, “I believe I can, yes.” Because the district court is

“in the best position to observe and judge the demeanor of the prospective juror,” see

Prtine, 784 N.W.2d at 310, we defer to the district court’s implicit finding that L.O.’s

response indicated that he was capable of following the district court’s instructions, setting

aside any preconceived notions, and fairly evaluating the evidence.

                                             II.

       Thomas asserts, and the state agrees, that the district court erred by formally

adjudicating him guilty of second-degree criminal sexual conduct. “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 (2014). “A lesser degree of the same crime” is an

included offense. Id. Accordingly, second-degree criminal sexual conduct is a lesser-

included offense of first-degree criminal sexual conduct. State v. Kobow, 466 N.W.2d 747,

752 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).


                                              8
       “[T]he ‘conviction’ prohibited by this statute is not a guilty verdict, but is rather a

formal adjudication of guilt.” State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999); see

also Minn. Stat. § 609.02, subd. 5 (2014) (defining a conviction as a guilty verdict by a

jury that is “accepted and recorded by the court”). On review, this court typically looks

“to the official judgment of conviction . . . as conclusive evidence of whether an offense

has been formally adjudicated.” Pflepsen, 590 N.W.2d at 767. “When this official

judgment order states that a party has been convicted of or sentenced for more than one

included offense,” the supreme court has vacated the conviction and remanded for

adjudication and resentencing on only one offense. Id.

       At the sentencing hearing in this case, the district court adjudicated Thomas guilty

of first- and second-degree criminal sexual conduct, imposing a 306-month sentence for

only the first-degree criminal-sexual-conduct charge. Similarly, the criminal judgment and

warrant of commitment mirrors this disposition, noting that the district court credited

Thomas with 499 days towards his sentence for the first-degree criminal-sexual-conduct

conviction.

       Thomas argues that the district court erred by convicting him of both counts because

second-degree criminal sexual conduct is an included offense of first-degree criminal

sexual conduct and the charges stemmed from the same conduct. He maintains that his

conviction of second-degree criminal sexual conduct should be vacated and asks that we

direct the district court to issue a corrected order and warrant of commitment. We agree.

       Thomas was correctly sentenced on only one count. But the official judgment of

conviction and the sentencing hearing transcript reflect a recorded, formal adjudication of


                                             9
guilty for the included offense of second-degree criminal sexual conduct. This was error.

Accordingly, we remand to the district court to correct the order and warrant of

commitment to vacate Thomas’s second-degree criminal-sexual-conduct conviction.

      Affirmed in part, reversed in part, and remanded.




                                           10
