                        This opinion will be unpublished and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
                                   A14-0433

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Arteco Marvell Rhodes,
                                     Appellant.

                                Filed August 3, 2015
                                      Affirmed
                                Cleary, Chief Judge

                            Ramsey County District Court
                              File No. 62-CR-13-3859


Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, Minnesota (for
appellant)


      Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge;

and Klaphake, Judge.




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                       UNPUBLISHED OPINION

CLEARY, Chief Judge

       The state charged appellant Arteco Marvell Rhodes with four crimes, including

sex trafficking under Minn. Stat. § 609.322 (2012), third-degree criminal sexual

conduct under Minn. Stat. § 609.344, subd. 1(b) (2012), possession of child

pornography under Minn. Stat. § 617.247, subd. 4(a) (2012), and second-degree

assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2012). The

jury found appellant not guilty of criminal sexual conduct and second-degree assault

with a dangerous weapon, but guilty of sex trafficking a minor and possession of child

pornography. The district court sentenced appellant to 300 months imprisonment for

sex trafficking and 15 months for possession of child pornography, to be served

consecutively. Appellant appealed and obtained an order staying the appeal to file a

petition for postconviction relief challenging his criminal-history score and the length

of his sentence. The district court denied appellant’s petition for postconviction relief

and this court reinstated his appeal. We affirm.

                                        FACTS

       In early April 2013, appellant met the victim, T.J., in Chicago. When they met,

T.J. was 15 years old and appellant was 38 years old. T.J.’s description of events was

corroborated by other testimony and evidence at trial.

       T.J.’s testimony and corroborating testimony from other witnesses

       T.J. met appellant through his brother in Chicago, Illinois. Appellant asked T.J.

whether she was “lookin’ for a family” and whether she wanted to go to Minnesota.


                                           2
At first, T.J. said that she did not want to go to Minnesota, but a female friend of

appellant convinced her to go. The next day, April 3, 2013, T.J., appellant, and his

friend left for Minnesota in appellant’s van. Appellant and his friend told T.J. that she

was going to make money for appellant by prostituting through a website called

Backpage. In return for working as a prostitute, appellant would provide T.J. with

clothes and food.

       When the group arrived, they got a motel room in Roseville, Minnesota. T.J.

went to take a shower, appellant followed her, and they allegedly had sexual

intercourse before going to bed. T.J. and appellant allegedly had sexual intercourse

the following morning as well. Appellant took several pictures of T.J. in the nude with

his phone, including one picture with appellant standing naked behind T.J.

Appellant’s friend became angry that appellant had sexual intercourse with T.J. and

left the motel.

       Throughout the next week, T.J. and appellant sometimes stayed in a motel and

other times in the van. At some point during the week, T.J. met a young woman

named Alexandria Pflepsen-Warnecke, who described herself as appellant’s step-

daughter.   Appellant asked Ms. Pflepsen-Warnecke to help him put a listing on

Backpage with a credit card. The pair used Ms. Pflepsen-Warnecke’s iPad for the

posting, but Ms. Pflepsen-Warnecke testified that she was not the person who actually

put the advertisement on Backpage. Ms. Pflepsen-Warnecke testified that appellant

put pictures of someone that looked like T.J. on Backpage and created a profile for her.

A male solicitor called T.J. and appellant drove her to meet him. T.J. had sex with the


                                           3
solicitor for $80.00 and gave the money to appellant. Appellant posted a second

advertisement but no one responded to it.

       On April 9, 2013, appellant got into an argument with Ms. Pflepsen-Warnecke

about whether T.J. should go home.          Appellant eventually left Ms. Pflepsen-

Warnecke’s apartment with T.J. Appellant was angry with T.J. because he believed

that she had talked about him to his brother. Appellant parked the van and began

assaulting T.J. He made T.J. lie down on the back seat of the van and began punching

her in the face. Appellant put on a pair of black gloves and began hitting T.J. with a

baseball bat. Appellant also choked T.J. with his hands until she urinated and lost

consciousness.    T.J. regained consciousness to appellant urinating, spitting, and

blowing “snot” on her. Appellant then began pulling T.J.’s hair extensions out and

burning her hair. Appellant told T.J. that he was going to kill her so she did not ruin

his life by telling the police. Appellant assaulted T.J. on-and-off for approximately

three hours.

       Appellant then brought T.J. to his cousin’s house so that she could stay there

overnight. T.J. fled the house in the morning and was able to flag down a man who

took her to a hospital. The nurses treating T.J. called the police and notified them that

a minor had been the victim of an assault. A doctor examined T.J. and diagnosed her

with a contusion and massive swelling around the left eye, a contusion on the right

forearm, bruising around the right thigh, and bruising of the chest wall. The doctor

also noticed that the back layer of scalp had been removed and testified that the

injuries were consistent with blunt force trauma.


                                            4
          Appellant’s Testimony

          Appellant testified that he met T.J. in Chicago, Illinois. According to appellant,

a female friend asked him if T.J. could go with them to Minneapolis. Appellant

claimed that he had no knowledge that his friend and T.J. were going to Minnesota to

prostitute. When they arrived in Minnesota, appellant said they rented a room, smoked

“a lot of weed, and went to sleep.” Appellant denied having sexual intercourse with

T.J. in the hotel room and testified that his friend actually took the nude photographs

of T.J.

          Appellant testified that he had never heard of Backpage, but admitted dropping

T.J. off at a hotel at Ms. Pflepsen-Warnecke’s request. According to appellant, he had

an argument with Ms. Pflepsen-Warnecke because she was jealous of T.J. Appellant

testified that he left Ms. Pflepsen-Warnecke’s apartment with T.J. and picked up

several female friends. Appellant then met another man at a gas station and went to

his car for around 30-40 minutes to smoke marijuana. He left T.J. and the other girls

in the van. When appellant returned to his van, he witnessed his female friends

assaulting T.J. because one of them was jealous of T.J.’s relationship with appellant.

          Appellant then took T.J. to his cousin’s house to stay the night. Appellant

never picked up T.J., and the next time he heard about her was from Ms. Pflepsen-

Warnecke, who told him to delete his Facebook page and go back to Chicago because

the police were looking for him. Appellant was subsequently arrested on April 19,

2013, found guilty of sex trafficking and possession of child pornography after a jury

trial, and this appeal followed.


                                              5
                                    DECISION

 I.    The district court did not commit plain error by allowing the state to
       introduce evidence of alleged threats that appellant made to witnesses

       The state elicited testimony that appellant threatened witnesses, that appellant

told Ms. Pflepsen-Warnecke to tell T.J. not to testify, and that appellant said that

anyone who testified against him would be killed upon leaving the courtroom.

Appellant did not object to any of these statements at trial, but now argues that their

admission was plain error. The state argues that the statements were admissible to

explain a witness’s contradictory statements.

       Appellate courts use the plain-error doctrine when examining unobjected-to

error. State v. Ramey, 721 N.W.2d 294, 297-98 (Minn. 2006). Plain error exists if

there is (1) an error, (2) that is plain, (3) and that affects the defendant’s substantial

rights. State v. Washington, 725 N.W.2d 125, 133 (Minn. App. 2006), review denied

(March 20, 2007). This court will find error in a trial court’s evidentiary ruling only if

appellant can show that the district court abused its discretion. State v. Atkinson, 774

N.W.2d 584, 594 (Minn. 2009). And an error is plain if it “contravenes case law, a

rule, or a standard of conduct.” Ramey, 721 N.W.2d at 302.

       “Evidence of witnesses’ fears of testifying and of purported threats against

witnesses both tend to be relevant to general witness credibility or to explain a

witness’s reluctance to testify or inconsistencies in a witness’s story.” State v.

McArthur, 730 N.W.2d 44, 52 (Minn. 2007). A witness’s potential bias is relevant

“because the jury, as finder of fact and weigher of credibility, has historically been



                                            6
entitled to assess all evidence which might bear on the accuracy and truth of a witness’

testimony.”    State v. Clifton, 701 N.W.2d at 793, 797 (Minn. 2005) (quotation

omitted). But the district court should be sure that the evidence of fear or threats is not

impermissibly used to attack the defendant’s character. McArthur, 730 N.W.2d at 52.

       On cross-examination, both T.J. and Ms. Pflepsen-Warnecke admitted to lying

to the police. The fact that two witnesses, both of whom were essential to the state’s

case, initially lied to the police could have impacted their credibility in the eyes of the

jury. The evidence of appellant’s alleged threats to Ms. Pflepsen-Warnecke and T.J.

was therefore relevant in bolstering the witnesses’ credibility. See State v. Vance, 714

N.W.2d 428, 441 (Minn. 2006) (holding that threat evidence was admissible to bolster

credibility of witnesses who were impeached based on cooperation with state).

Because the threat evidence was admissible to rehabilitate two key witnesses’

credibility, the district court did not err by failing to sua sponte strike the threat

testimony, let alone commit plain error that contravened settled law.

II.    There was sufficient evidence to prove that T.J. suffered bodily injury
       during the commission of the sex-trafficking offense

       Appellant argues that there was insufficient evidence to support the jury’s

verdict that T.J. suffered bodily harm during the commission of the sex-trafficking

offense. Appellant makes two arguments regarding the aggravating factor of bodily

harm: (1) the evidence was insufficient to establish that T.J. suffered bodily harm, and

(2) the alleged physical assault occurred after the sex-trafficking offense had ended.




                                            7
       In reviewing a claim challenging the sufficiency of the evidence, “our

role . . . is limited to ascertaining whether the jury could reasonably find the defendant

guilty given the facts in evidence and the legitimate inferences which could be drawn

from those facts.” State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998). “We view the

evidence in the light most favorable to the verdict and assume that the jury believed

the state’s witnesses and disbelieved any evidence to the contrary.” Id.

       The state charged appellant with violating Minn. Stat. § 609.322, subd. 1(a)(4),

which requires one who is not acting as a prostitute or patron to intentionally engage

“in the sex trafficking of an individual under the age of 18 years.” Sex trafficking is

broadly defined as “receiving, recruiting, enticing, harboring, providing, or obtaining

by any means an individual to aid in the prostitution of the individual.” Minn. Stat.

§ 609.321, subd. 7a. (2014). An aggravating factor to sex trafficking is whether the

offense involves a sex-trafficking victim who suffered bodily harm during the

commission of the offense. Minn. Stat. § 609.322, subd. 1(b)(2). “Bodily harm”

includes physical pain or injury. Minn. Stat. § 609.02, subd. 7 (2012). The state also

charged appellant with second-degree assault under Minn. Stat. § 609.222, subd. 1,

which requires a showing of assault with a dangerous weapon but does not require a

showing of bodily harm.

       Appellant first argues that because the jury found him not guilty of second-

degree assault with a dangerous weapon, he could not be sentenced for inflicting

“bodily harm” under section 609.322. However, the second-degree assault charge did

not require a showing of bodily harm. See Minn. Stat. § 609.222, subd. 1 (“Whoever


                                            8
assaults another with a dangerous weapon may be sentenced to imprisonment . . . .”).

The fact that the jury found appellant not guilty of assault with a dangerous weapon is

therefore irrelevant to the question of whether T.J. suffered bodily harm.

       The evidence presented at trial established that appellant attacked T.J. and she

suffered bodily harm, including contusions to her face, thigh, chest, and right arm. An

emergency-room doctor testified about the extent of T.J.’s injuries, and the jury found

that T.J. suffered bodily harm during the commission of the offense in its verdict form.

The jury had sufficient evidence to find that T.J. suffered bodily harm.

       Appellant next argues that the bodily harm occurred after the sex-trafficking

offense had ended. The jury found appellant guilty of sex trafficking for the actions

occurring “on or about April 1st to April 10, 2013.” Testimony established that

appellant brought T.J. to Minnesota for the purpose of prostituting; appellant helped

T.J. set up an advertisement on Backpage; appellant took T.J. to a hotel to prostitute;

and appellant arranged for T.J.’s living accommodations while she was in Minnesota.

The jury had sufficient evidence to find that the sex trafficking occurred from April 1-

10.   The assault that caused bodily harm occurred on April 9, 2013, during the

commission of the sex-trafficking offense.       The bodily harm therefore occurred

“during the commission of the offense.” Minn. Stat. § 609.322, subd. 1(b)(2). The

jury had sufficient evidence to find that T.J. suffered bodily harm and that she suffered

the bodily harm during the commission of the sex-trafficking offense.




                                           9
III.     The district court did not abuse its discretion by including one-half of a
         point for a non-Minnesota felony offense

         During the sentencing phase, the district court included one-half of a felony

point in appellant’s criminal-history score for an Illinois felony offense of possession

of less than 15 grams of cocaine, for which he received a sentence of 24 months’

probation. After being convicted of sex trafficking, appellant filed for postconviction

relief challenging his criminal-history score.     The district court concluded that

possession of cocaine would be a felony in Minnesota. Appellant argues that the

probation sentence would be a gross misdemeanor sentence in Minnesota and that he

therefore should not have received one-half of a felony point in his criminal-history

score.

         The district court’s determination of the 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). The district court makes non-

Minnesota offense designations based on “whether the offense is defined as a felony,

gross misdemeanor, or targeted misdemeanor in Minnesota; and the sentence

imposed.” Minn. Sent. Guidelines 2.B.5.b (2012).          Minnesota law governs the

designation of a non-Minnesota offense as a felony or gross misdemeanor. Id.

         “[A]ny court may stay imposition or execution of sentence and . . . may place

the defendant on probation . . . .” Minn. Stat. § 609.135, subd. 1(a)(2) (2014). When

ordering a stay of imposition, the defendant is found guilty, but the court does not

pronounce a prison sentence duration. Minn. Sent. Guidelines 3.A.1 (2012); State v.



                                           10
C.P.H., 707 N.W.2d 699, 702 (Minn. App. 2006). If a defendant fails to meet the

conditions of the stay, the district court can vacate the stay and impose a sentence.

C.P.H., 707 N.W.2d at 702. A stay of imposition of a felony offense results in felony

criminal-history points regardless of the period of probation that the defendant

receives. State v. Campbell, 814 N.W.2d 1, 7 (Minn. 2012).

       As to the sentencing prong of the non-Minnesota offense, the Illinois court

sentenced appellant to 24 months’ probation, but did not use the term “stay of

imposition” because Illinois apparently does not have an equivalent term. In the

Illinois sentencing order, appellant agreed that any violation of the terms of his

probation “may result in a re-sentencing imposing the maximum penalty as provided

for the offense.”   Appellant’s sentence was functionally equivalent to a stay of

imposition in Minnesota where a district court can similarly revoke a stay and impose

a sentence if the defendant violates certain conditions. C.P.H., 707 N.W.2d at 702.

       As to the definition prong of the non-Minnesota offense, the district court did

not abuse its discretion by finding that appellant’s Illinois offense would be defined as

a felony in Minnesota. A felony is defined as a “crime for which a sentence of

imprisonment for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2

(2014). The possession of any amount of cocaine in Minnesota is a crime punishable

by up to five years in prison. Minn. Stat §§ 152.025, subd. 2, .02, subd. 3(b) (2012).

The non-Minnesota offense (possession of cocaine) to which appellant pleaded guilty

is therefore defined as a felony in Minnesota.




                                           11
         Because appellant’s Illinois offense would be defined as a felony in Minnesota,

and he received the equivalent of a stay of imposition of a felony offense, we affirm

the sentence.

IV.      The district court did not clearly err by finding that the sex-trafficking and
         possession of child pornography offenses did not occur as part of a single-
         behavioral incident

         The jury found appellant guilty of sex trafficking and possession of child

pornography. The district court sentenced appellant to consecutive sentences totaling

315 months’ imprisonment. Appellant makes two arguments regarding his sentence:

(1) that the two offenses were committed as part of a single behavioral incident, and

(2) that the district court abused its discretion by imposing consecutive sentences.

         First, appellant argues that both offenses were committed as part of a single

behavioral incident.     Minn. Stat. § 609.035 (2014) generally “prohibits multiple

sentences, even concurrent sentences, for two or more offenses that were committed as

part of a single behavioral incident.” State v. Norregaard, 384 N.W.2d 449, 449

(Minn. 1986). Whether multiple offenses are part of a single behavioral incident

depends on the time and place of the offenses, and whether the offenses were

motivated by a single criminal objective. State v. Schmidt, 612 N.W.2d 871, 876

(Minn. 2000).      “[T]he district court’s determination of whether multiple offenses

constitute a single behavioral incident is a factual determination that we will not

disturb unless clearly erroneous.” State v. O’Meara, 755 N.W.2d 29, 37 (Minn. App.

2008).




                                           12
       The complaint charged appellant with, and the jury found appellant guilty of,

possessing child pornography on April 19, 2013. The state charged appellant with

possession of child pornography on April 19 because that was when he was arrested

with his cell phone. The jury found appellant guilty of sex trafficking from April 1-10,

2013. The district court’s finding that the two offenses occurred on different dates and

at different places was not clearly erroneous.

       The district court also found that the two offenses were not motivated by a

single criminal objective because the nude photographs of T.J. were not used in the

Backpage advertisement. Appellant challenges this finding by citing an investigator’s

trial testimony in which the investigator said that the nude photographs of T.J. could

have been used to coerce her into prostitution. Appellant errs by relying on only one

passage of one witness’s testimony when the district court examined all of the facts

and circumstances. See State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997) (stating that

whether multiple offenses are part of a single behavioral act involves an examination

of all the facts).   The record clearly demonstrates that appellant kept the nude

photographs of T.J. after the sex-trafficking offense had ended.           At that point,

appellant had a different criminal objective because sex trafficking was no longer

taking place. Because the two offenses occurred at a different time and place, and

with a different criminal objective, the district court did not err in finding that the two

offenses were part of separate behavioral incidents.

       Finally, appellant argues that the district court abused its discretion by imposing

consecutive sentences for both offenses. This court will not disturb a district court’s


                                            13
imposition of consecutive sentences absent a clear abuse of discretion.          State v.

McLaughlin, 725 N.W.2d 703, 715 (Minn. 2007). We will not find an abuse of

discretion unless the sentence is disproportionate to the offense or unfairly exaggerates

the criminality of the defendant’s conduct.        Id.   Consecutive sentencing for sex

trafficking and possession of child pornography is permitted.          See Minn. Sent.

Guidelines 6.A (2012) (listing possession of child pornography and sex trafficking as

permissible offenses for consecutive sentences).

       Appellant was sentenced to 300 months for sex trafficking and 15 months for

possession of child pornography. Appellant’s culpability and the criminality of his

conduct were horrific: he drove T.J., a 15-year-old girl, to Minnesota for the purpose

of making her work as a prostitute; he took photographs of T.J. in the nude; he

manipulated T.J. into having sex with a stranger for money; and after T.J. told

appellant that she wanted to return to Chicago, he physically assaulted her while

threatening to kill her so that she could not go to the police. Appellant did not present

any mitigating factors that would have reduced his culpability for his criminal acts or

take responsibility for his actions at the sentencing hearing. See McLaughlin, 725

N.W.2d at 716 (considering mitigating factors in imposing consecutive sentences).

Given the brutal nature of appellant’s actions, the district court did not abuse its

discretion in imposing a consecutive sentence that fell within the guidelines.

       Affirmed.




                                           14
