Opinion
A19-1809
08-17-2020
State of Minnesota, Respondent, v. Timothy John Lufkins, Appellant.
Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul, Minnesota; and Damain D. Sandy, Pipestone County Attorney, Pipestone, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge Pipestone County District Court
File No. 59-CR-18-447 Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul, Minnesota; and Damain D. Sandy, Pipestone County Attorney, Pipestone, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Smith, Tracy M., Presiding Judge; Reilly, Judge; and Florey, Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
In this direct appeal from final judgments of conviction, appellant Timothy John Lufkins challenges both his convictions and his sentences for criminal sexual conduct. First, he argues that his convictions must be reversed because the district court erred by overruling his Batson challenge to the state's peremptory strike of the only non-white member of the jury venire. Second, he argues that that the district court erred by entering judgments of conviction and imposing sentences on multiple counts of criminal sexual conduct because the complaint and verdict forms did not identify the specific incident corresponding with each count. Third, he challenges the district court's imposition of a lifetime term of conditional release. And fourth, in a pro se supplemental brief, Lufkins argues that he received ineffective assistance of counsel. We affirm in part, reverse in part, and remand.
See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986) (holding that the equal protection clause bars peremptory strikes that are based solely on race).
FACTS
The facts are drawn from the trial record.
A.H., who was nine years old at the time of trial in 2019, testified about four occasions during the summer of 2018 on which Lufkins sexually assaulted her. Lufkins is A.H.'s great uncle, or her grandfather's brother. The sexual assaults all occurred at her grandfather's house, where Lufkins lived at the time and which was down the street from where A.H. lived with her mother.
The offenses
The first incident occurred in July 2018. A.H. had been playing at a park with her siblings, and one of her siblings turned on a spout and sprayed her with water. A.H. went to her grandfather's house to dry her clothes and found Lufkins alone in the house. Lufkins gave A.H. a towel and told her to go remove her clothing and wrap up in the towel while he dried her clothes. When A.H had done so, she sat down on the couch next to Lufkins. Lufkins then started to rub her chest and her "lower vagina area" under the towel. He did not touch the inside of her vagina. Lufkins stopped touching A.H. when her clothes were dry, and A.H. put them on and left.
The second incident also occurred in July 2018. A.H. could not remember the exact date but recalled that it occurred "during the garage sale," and the garage sale took place at A.H.'s home over two consecutive weekends that month. During this incident, A.H. was again alone at her grandfather's house with Lufkins, and they were watching the movie It together on the couch. Lufkins rubbed A.H.'s chest, and he also unbuttoned A.H.'s pants and "put[] his finger inside [her] vaginal area." A.H. testified that it hurt and felt like scratching when he touched the inside of her vagina and that she told him to stop. Lufkins eventually stopped, and A.H. believed that he instructed her not to tell anyone.
The third incident occurred when A.H. was sent over to her grandfather's house to ask the grandfather for help with the garage sale. A.H. looked for her grandfather, but he was not home. Lufkins was home, though, and asked A.H. to come sit down on the couch. He then put his hand under her clothes and rubbed her chest and the outside of her vagina but did not touch the inside. After he stopped, A.H. left and went back to the garage sale.
The fourth incident occurred another day that summer when A.H. and two of her siblings were at her grandfather's house watching the movie Tammy. A.H.'s siblings went downstairs with Lufkins's girlfriend at one point, leaving A.H. and Lufkins alone in the upstairs living room. Again, Lufkins rubbed A.H.'s chest, unbuttoned her pants, and put his finger inside her vagina. Lufkins's finger scratched the inside of A.H.'s vagina, which caused her to yell. Lufkins's girlfriend heard A.H. and came upstairs, but, as she was coming up the stairs, Lufkins instructed A.H. to go into the bathroom and button her pants.
While describing the fourth incident at trial, A.H. also recalled that Lufkins had inserted his finger into her "butt" at some point, though she could not remember if this specific event occurred during the movie It or the movie Tammy.
After one of the incidents of sexual assault, A.H. had blood in her underwear. Her mother found the underwear and initially thought that A.H. may have started menstruating, but A.H. had not and the bleeding only lasted one day. A.H.'s disclosures
A.H. first disclosed the sexual assaults in early August to her father. A.H.'s father and mother are divorced and share custody of A.H. While her father was driving with A.H. to meet up with her mother, he initiated a conversation in which he asked A.H. if anyone in the family had touched her or done anything bad to her. He asked this specifically because he had learned that another relative of A.H.'s—not Lufkins—had recently gone to jail for "something similar." When he asked A.H. if that specific individual had touched her, A.H. replied that he had not but that Lufkins had done so. A.H. told her father about the time that her clothing got wet and Lufkins touched her chest and her vagina while she was wrapped in the towel.
A.H.'s father immediately called A.H.'s mother, and, later that day, A.H. described more incidents where Lufkins had touched her. A.H.'s mother then took A.H. to law enforcement, and the two gave a statement to a sheriff's deputy. A.H. told the deputy that there had been three or four incidents in which Lufkins had touched her chest and vaginal areas, and that each occurred at her grandfather's house. She specifically told the deputy about the first incident, in which her clothes were wet and Lufkins touched her while she wore the towel.
A.H. later participated in a forensic interview that was conducted in accordance with the Corner House protocol. She provided the forensic interviewer with details about her experiences with Lufkins, and the recording of this interview was played at trial. The forensic interviewer testified and explained how the disclosure of sexual abuse is a process rather than an event for children and can accordingly appear disorganized.
Trial and sentencing
The state charged Lufkins with two counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct. The case proceeded to a jury trial, at which Lufkins testified on his own behalf and denied ever sexually touching A.H. Lufkins confirmed that A.H. had, on one occasion in July, come over with wet clothes and that he had dried them for her. He also confirmed that A.H. had been over once with her little siblings and that his girlfriend had been downstairs. He testified that, besides those two events, he was never with A.H. for any extended period of time. He did not know why A.H. would allege that he sexually touched her.
The jury found Lufkins guilty of two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct, and the district court imposed convictions on those five counts. The district court sentenced Lufkins on both counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. It imposed the sentences concurrently, with the longest being 360 months' imprisonment.
This appeal follows.
DECISION
I. The district court did not err by overruling Lufkins's Batson challenge to the state's peremptory strike.
Lufkins first argues that the district court erred by overruling his Batson challenge and allowing the state to exercise a peremptory strike to excuse a potential juror. Generally a district court's determination on a Batson challenge will not be reversed unless clearly erroneous. State v. McDonough, 631 N.W.2d 373, 385 (Minn. 2001). But, because clarity is important when applying the Batson analysis, when the district court fails to follow the prescribed steps, appellate courts will "examine the record without deferring to the district court's analysis." State v. Seaver, 820 N.W.2d 627, 633 (Minn. App. 2012).
Peremptory strikes allow a party to excuse a juror for "virtually any reason." State v. Spangler, 816 N.W.2d 651, 654 (Minn. App. 2012), review denied (Minn. Aug. 21, 2012). "The purpose of a peremptory strike is to excuse a prospective juror who has not demonstrated any grounds for bias, but who is otherwise unsatisfactory to the challenging party." Id. (quotation omitted). But, as the Supreme Court made clear in Batson, peremptory strikes that are based solely on race violate the equal protection clause. 476 U.S. at 89, 106 S. Ct. at 1719. When a party objects to a peremptory strike based on Batson, the court conducts a three-step analysis to determine whether the strike was motivated by race:
First, the party making the objection must make a prima facie showing that the responding party exercised its peremptory challenges on the basis of race or gender. . . .Minn. R. Crim. P. 26.02, subd. 7(3); see also State v. Diggins, 836 N.W.2d 349, 354 (Minn. 2013).
Second, if the prima facie showing has been made, the responding party must articulate a race- or gender-neutral explanation for exercising the peremptory challenge(s). . . .
Third, if the court determines that a race- or gender-neutral explanation has been articulated, the objecting party must prove that the explanation is pretextual. . . . If purposeful discrimination is proved, the objection must be sustained; otherwise the objection must be overruled.
Lufkins challenges the state's preemptory strike of R.L. R.L. was one of 20 prospective jurors called and questioned as a group before the district court passed the panel for cause. Defense counsel brought a Batson challenge to the state's strike of R.L. on the basis that R.L. was the only minority on the panel.
The district court asked defense counsel whether the "sole basis" for the Batson challenge was that R.L. is a minority, and defense counsel replied that it was. The district court then asked the two prosecutors whether they had a race-neutral reason for exercising the peremptory strike, and one explained that "[l]aw enforcement flagged [R.L.'s] name before trial" and that R.L. had been "glaring" at her (the prosecutor) throughout the impaneling process. The district court then asked for more detail about "flagged" names, and the other prosecutor stated that their office speaks with law enforcement about prospective jurors because they have "more contact with the community," and that law enforcement will flag people they have concerns about without providing a specific reason. The district court asked whether there was any "racial component" for the flag expressed by law enforcement, and the prosecutor responded "absolutely not." Defense counsel then argued that, because the reason that law enforcement flagged R.L. was unknown, the state had not set forth a race-neutral explanation. He also asserted that he had not noticed any glaring by R.L. and that glaring would not be a sufficient reason for a preemptory strike.
The district court determined that that state had articulated two race-neutral reasons for the strike—the law enforcement flag and the perceived hostility—and concluded that it was satisfied the strike was not based on race. Lukfins argues that the district court erred because the state's first reason regarding the law enforcement flag was not race-neutral and because the state's second reason regarding glaring was a pretext for discrimination.
Before turning to these issues, we note that the state makes the preliminary argument that Lufkins's Batson challenge fails at the first prong because the sole proffered reason for the challenge—that R.L. was the only minority on the panel—is insufficient to create a prima facie showing that the state exercised the strike on the basis of race. Lufkins replies that the state's argument is "moot" because the district court moved to the second prong of the Batson analysis. For the purposes of this appeal, we decline to address whether the defense made a prima facie showing of discrimination here and move to the prongs actually analyzed by the district court. See Diggins, 836 N.W.2d at 355-56.
A. The state offered two race-neutral explanations.
A race-neutral explanation is "an explanation based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991). The reason need not be "persuasive, or even plausible." Diggins, 836 N.W.2d at 355 (quotation omitted). "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered is deemed race neutral." Id. (quotation omitted).
Lufkins concedes that the state's explanation that R.L. was glaring at the prosecutor was race-neutral, and we agree. He argues, though, that the law-enforcement-flag explanation was not race neutral, and accordingly should have been rejected by the district court, because law enforcement potentially could have flagged R.L. for race-based reasons. But Lufkins has not presented evidence or argument showing that discriminatory intent is inherent in the law-enforcement-flag explanation. See id. Instead, he speculates that discriminatory intent could have motivated the initial flag. The prosecutor stated that there was no "racial component" for the flag expressed by law enforcement. Under these circumstances, we conclude that the law-enforcement-flag explanation was race-neutral.
B. Lufkins did not prove pretext.
After the state articulates its race-neutral explanation for a preemptory strike, the defendant has the burden to show "that the peremptory strike was motivated by racial discrimination and that the proffered reasons were merely a pretext for the discriminatory motive." State v. Pendleton, 725 N.W.2d 717, 726 (Minn. 2007) (quotation omitted).
With respect to the law-enforcement-flag explanation, Lufkins makes no argument on appeal as to why it was pretextual, relying instead on the argument—which we reject—that this explanation should have failed at prong two. As for the glaring-at-the-prosecutor explanation, Lufkins argues that it was a pretext for racial discrimination. We turn our analysis to that issue.
If a prosecutor's explanation is based on a juror's demeanor, the district court "must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor." Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208 (2008). Such "determinations of credibility and demeanor lie peculiarly within a [district court] judge's province." Id. (quotations omitted).
Lufkins argues that the district court erroneously credited the prosecutor's explanation because the prosecutor's questioning of the prospective jurors was too brief to elicit glares and because the prosecutor did not ask R.L. if he had animosity towards her that would affect his ability to be fair and impartial. Neither of these arguments shows error by the district court though. The questioning of potential jurors by the district court, defense counsel, and prosecutor spans about thirty pages of transcript, and any amount of time is presumably long enough to permit glares. Additionally, the prosecutor did ask the prospective jurors whether there was "anything about the fact that the State of Minnesota is a party to this case that would make it difficult for [them] to be fair and impartial." Even if these circumstances could be said to demonstrate pretext, though, the burden remains on Lufkins to show that racial discrimination was the real motivation for the preemptory strike, which he did not do. See Pendleton, 725 N.W.2d at 726.
Lufkins makes a related argument that the district court failed to make a necessary finding on the record regarding the prosecutor's credibility and R.L.'s demeanor. Because this specific finding is lacking, he argues, and the record suggests that the glaring explanation was "unconvincing," this court should find that an error occurred. But, again, it was ultimately Lufkins's burden to prove pretext and that the real motivation for the strike was racial discrimination. He offered no explanation at trial as to why the glaring explanation was pretextual, beyond his counsel noting that he personally had not noticed glaring. Even if the district court should have been more explicit in analyzing credibility, any error was harmless in light of defense counsel's failure to show that race was the true motivating factor. Moreover, the law-enforcement-flag explanation remains as a valid race-neutral reason, and Lufkins has not shown that that explanation was a pretext for discrimination. We accordingly hold that the district court did not err by overruling Lufkins's Batson objection.
II. The district court did not err by entering judgments of conviction and imposing sentences on multiple counts of criminal sexual conduct.
Lufkins next argues that the district court erred by imposing five convictions and four sentences because the state did not prove that the convictions arose from separate behavioral incidents.
"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 (2016). An "included offense" includes "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). Minnesota courts have interpreted section 609.04 to prohibit convicting a person of multiple counts of criminal sexual conduct "on the basis of the same act or unitary course of conduct." State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989). This is true even when the offense involves distinct types of sexual penetration. State v. Dudrey, 330 N.W.2d 719, 721-22 (Minn. 1983). But "the protections of section 609.04 will not apply if the offenses constitute separate criminal acts," and "[t]he inquiry into whether two offenses are separate criminal acts is analogous to an inquiry into whether multiple offenses constituted a single behavioral incident under Minn. Stat. § 609.035." State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006).
Section 609.035 addresses sentencing and provides that "if a person's conduct constitutes more than one offense . . . , the person may be punished for only one of the offenses." Minn. Stat. § 609.035, subd. 1 (2016). Minnesota courts have interpreted section 609.035 to prohibit "multiple sentences for multiple offenses committed as part of the same behavioral incident." State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020).
To determine whether offenses were committed as part of the same behavioral incident, courts examine "(1) whether the offenses occurred at substantially the same time and place, and (2) whether the conduct was motivated by an effort to obtain a single criminal objective." Id. (quotations and citation omitted). The state bears the burden of proving by a preponderance of the evidence that the conduct giving rise to each offense occurred in a separate behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000). We review the district court's factual determinations for clear error. State v. O'Meara, 755 N.W.2d 29, 37 (Minn. App. 2008). When the facts are not in dispute, the decision whether multiple offenses are part of a single behavioral incident presents a question of law that is reviewed de novo. State v. Ferguson, 808 N.W.2d 586, 590 (Minn. 2012).
The state charged Lufkins with six counts of criminal sexual conduct. Counts 1 and 2 are each for first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2016), which requires the state to prove that the person engaged in "sexual penetration with another person, or in sexual contact with a person under 13 years of age," when "the complainant is under 13 years of age and the actor is more than 36 months older than the complainant." Counts 3, 4, 5, and 6 are for second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(g) (2016), which requires the state to prove that the person engaged in "sexual contact with another person" when "the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual contact."
Each count in the complaint lists the same offense date and describes the offense as occurring "between April and August of 2018." The complaint's descriptions of the counts do not contain any information distinguishing them from one another, beyond that the first two are for criminal sexual conduct in the first degree and the next four are for criminal sexual conduct in the second degree. The jury verdict forms likewise do not distinguish the counts from one another or delineate how they correspond to A.H.'s testimony about the incidents. Neither the state, the defense, nor the district court explained to the jury how it should decide each specific count, nor did any of them provide information about lesser-included offenses. The jury returned guilty verdicts on counts 1, 2, 3, 4, and 5 and a not-guilty verdict on count 6.
In preparation for sentencing, Lufkins's counsel submitted a memorandum requesting that Lufkins be sentenced on only counts 1, 2, and 5, asserting that counts 3 and 4 were lesser included offenses of counts 1 and 2. The state submitted a memorandum asking the district court to sentence Lufkins on four counts in the following order, based on the chronological sequence of the incidents as described by A.H. at trial:
When multiple offenses are sentenced on the same day, the court must sentence the offenses in the order in which the sentences occurred. State v. Anderson, 345 N.W.2d 764, 766 (Minn. 1984); Minn. Sent. Guidelines 2.B.1.e (2016).
1. Count 3: second-degree criminal sexual conduct (wet clothes incident);The district court adopted the state's sequence of the counts and imposed four presumptive, concurrent sentences: 48 months' imprisonment, stayed execution on count 3; 180 months' imprisonment on count 1; 140 months' imprisonment on count 4; and 360 months' imprisonment on count 2.
2. Count 1: first-degree criminal sexual conduct in the first degree (movie It incident);
3. Count 4: second-degree criminal sexual conduct (garage sale incident); and
4. Count 2: first-degree criminal sexual conduct (movie Tammy incident).
On appeal, Lufkins argues that the district court erred because the state did not meet its burden of proving that the offenses were separate behavioral incidents, and the district court thus could not impose more than one conviction and sentence. He argues that it is impossible to determine whether the offenses arose from discrete behavioral incidents without knowing what conduct underlies each offense. He submits that, while the state and district court's alignment of the convictions to the four incidents described by A.H. at trial is "one possibility," there are "at least two other possibilities."
First, Lufkins argues, the jury's verdicts are "equally consistent" with the possibility he committed offenses in only two separate behavioral incidents. This is plausible, Lufkins argues, because he himself testified to only interacting with A.H. twice: the clothes-drying event (the first incident) and the event where his girlfriend was home (the fourth incident). A.H. testified that sexual contact occurred at both the first and fourth incidents, and that vaginal penetration and perhaps anal penetration occurred at the fourth. Thus, he argues, all five verdicts could encompass sexual conduct occurring in these two incidents.
Alternatively, Lufkins argues, the jury's verdicts are "equally consistent" with the jury having found that all five offenses occurred during the fourth incident. This account, he contends, was the only one corroborated by other evidence, namely, A.H.'s mother's testimony that she found blood in A.H.'s underwear. Lufkins ultimately argues that, because the verdicts are unclear and there are equally plausible possibilities, he must "be given the benefit of the doubt" and sentenced on only one count, citing State v. Lockhart, 376 N.W.2d 249, 253 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985), and State v. Cromey, 348 N.W.2d 759, 760-61 (Minn. 1984).
The state responds that the record supports the district court's imposition of four separate sentences because A.H. testified that she was assaulted on four separate occasions. A.H. testified about two separate incidents of vaginal penetration, which account for the two guilty verdicts for first-degree criminal sexual conduct. And each of the four separate occasions involved criminal sexual contact, accounting for the four charged counts and three guilty verdicts for second-degree criminal sexual conduct. The state contends that its burden to prove separate behavioral incidents did not require it to show that there are no other possible interpretations of the jury's verdicts.
The state also argues that the four separate occasions themselves constituted four distinct behavioral incidences because they were separated by time. See Barthman, 938 N.W.2d at 267. But Lufkins does not contest the time issue; he does not contend that multiple sentences were inappropriate if the four sentenced convictions in fact correspond with the four temporally separate incidents described by A.H.
The state only needed to show by a preponderance of the evidence—meaning that it is more likely than not—that Lufkins's convictions arose out of separate behavioral incidents. See Williams, 608 N.W.2d at 841-42. With respect to the two counts of first-degree criminal sexual conduct, we discern no clear error in district court's determination that these verdicts align with two separate behavioral incidents: incident two, which occurred during the movie It, and incident four, which occurred during the movie Tammy. A.H. unequivocally described vaginal penetration occurring during both of these incidents. While she also testified that anal penetration occurred during one of the movies, she could not remember which and testified that she did not have any physical symptoms as a result. The district court did not err by determining that it was more likely than not that the two first-degree criminal-sexual-conduct verdicts aligned with the clearly described incidents of vaginal penetration rather than the anal penetration incident.
As to the three guilty verdicts for second-degree criminal sexual conduct, A.H. testified about four incidents in which Lufkins engaged in sexual contact with her (touching her chest and the outside of her vagina), two of which were accompanied by sexual penetration. The district court convicted him on all three counts, but only imposed sentences on two, because the fifth count necessarily overlapped with—and arose out of the same behavioral incident as—one of the other four incidents of sexual assault. But, under section 609.04 and our controlling precedent, a person may not be convicted of multiple counts of criminal sexual conduct "on the basis of the same act or unitary course of conduct." Folley, 438 N.W.2d at 373. We accordingly vacate the conviction on the fifth count for second-degree criminal sexual conduct.
As to the remaining two second-degree criminal-sexual-conduct convictions, the state and the district court determined that these corresponded with the first and third incidents of sexual assault described by R.L. at trial. Lufkins does not cite any caselaw suggesting that the district court cannot examine the evidence at trial to reasonably interpret a jury's verdicts, and it is his burden to show error on appeal. Our review of the record satisfies us that the district court's decision that the offenses underlying the convictions were committed as part of four separate behavioral incidents is not clearly erroneous. See O'Meara, 755 N.W.2d at 37. We accordingly affirm the district court's imposition of convictions and sentences for two counts of first-degree criminal sexual conduct and for two counts of second-degree criminal sexual conduct, while vacating the unsentenced conviction for the third count of second-degree criminal sexual conduct. The district court should correct the warrant of commitment accordingly.
III. The district court erred by imposing lifetime conditional-release because Lufkins had no prior sex offense convictions within the meaning of Minn. Stat. § 609.3455 (2016).
Lufkins next argues that because he did not have a "previous or prior" sex offense conviction within the meaning of Minn. Stat. § 609.3455, the district court erred by imposing a lifetime conditional-release term on the second, third, and fourth counts that it sentenced. The issue of whether multiple convictions adjudicated at the same hearing can result in a prior conviction and a present offense is a matter of statutory interpretation, which is a question of law that appellate courts review de novo. See State v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012).
Lufkins argues correctly that, although he did not raise the issue of his conditional-release term at sentencing, "[t]he court may at any time correct a sentence not authorized by law." Minn. R. Crim. P. 27.03, subd. 9; see State v. Brown, 937 N.W.2d 146, 155 n.1 (Minn. App. 2019), review denied (Minn. Feb. 18, 2020).
Minn. Stat. § 609.3455, subd. 6, mandates a ten-year conditional-release term for offenders convicted of criminal sexual conduct in violation of Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345, or 609.3453. However, an offender convicted under these sections must instead be sentenced to a lifetime conditional-release term if they have a "previous or prior sex offense conviction." Minn. Stat. § 609.3455, subd. 7. An offender has a "prior sex offense conviction" "if the offender was convicted of committing a sex offense before the offender has been convicted of the present offense, regardless of whether the offender was convicted for the first offense before the commission of the present offense, and the convictions involved separate behavioral incidents." Id., subd. 1(g) (emphasis added).
The "previous sex conviction" provision does not apply here. "A conviction is considered a 'previous sex offense conviction' if the offender was convicted and sentenced for a sex offense before the commission of the present offense." Minn. Stat. § 609.3455, subd. 1(f) (emphasis added).
In State v. Nodes, the supreme court examined the meaning of "prior sex offense conviction" in Minn. Stat. § 609.3455, subd. 1(g), and held that, when two convictions are entered in the same hearing, the first conviction entered constitutes a "prior sex offense conviction" with respect to any subsequently entered conviction. 863 N.W.2d 77, 80, 82 (Minn. 2015). In State v. Brown, this court applied Nodes when the district court entered convictions on multiple offenses simultaneously, rather than sequentially, in the same hearing. 937 N.W.2d at 156-57. We held that, under the plain meaning of section 609.3455, subdivision 1(g), "when a district court convicts an offender simultaneously of multiple sex offenses in the same hearing, the offender does not have a prior sex-offense conviction and is not subject to a lifetime conditional-release term under Minn. Stat. § 609.3455, subd. 7(b), absent another qualifying conviction." Id. at 157.
Here, the jury found Lufkins guilty of five counts of criminal sexual conduct, and each guilty verdict was read into the record one at a time. At the sentencing hearing, the district court denied Lufkins's request for a downward durational or dispositional departure, determined that concurrent sentences were appropriate, and began its pronouncement of the individual sentences by stating: "[T]he jury having convicted the defendant following trial on Counts 3, 1, 4, 2, and 5, it is the sentence of law and judgment of this Court as follows." The district court then sentenced each count separately in the following order: 3, 1, 4, and 2. Once it had done so, the district court advised Lufkins that he was subject to a ten-year conditional-release term on count 3 and a lifetime conditional-release term on counts 1, 4, and 2.
Lufkins argues that the convictions were all entered simultaneously at the sentencing hearing, while the state argues that Lufkins was convicted for the purposes of Minn. Stat. § 609.3455, subd. 1(g), when the guilty verdicts were announced sequentially on the record at trial.
To support its position, the state distinguishes Nodes, where the supreme court concluded, in the case of a guilty plea, that "a 'conviction' occurs when the district court accepts the guilty plea and the acceptance is on the record." 863 N.W.2d at 81. Here, the state argues, there was no possibility for "deferred acceptance" of the guilty verdicts: once read into the record by the clerk of court, they became convictions.
The state's argument is without merit. "[A] guilty plea or guilty verdict is not a conviction." State v. Walker, 913 N.W.2d 463, 467 (Minn. App. 2018). Minn. Stat. § 609.02, subd. 5 (2016), defines "conviction" to mean "any of the following accepted and recorded by the court: (1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty by the court." The plain language of the statute mandates that some action is required by the district court before a guilty verdict becomes a conviction. See, e.g., State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999) ("We have long recognized that the 'conviction' prohibited by [Minn. Stat. § 609.04] is not a guilty verdict, but is rather a formal adjudication of guilt."); State v. Martinson, 312 N.W.2d 248, 251 (1981) (declining to consider appellant's argument regarding conviction of multiple offenses because it was "hypothetical" when the jury returned multiple guilty verdicts but the district court formally adjudicated only one offense). We see no reason to depart from the general rule that a jury-verdict-based conviction "occurs only after the district court judge accepts, records, and adjudicates the jury's guilty verdict." Pierson v. State, 715 N.W.2d 923, 925 (Minn. 2006).
Having rejected the state's argument that the convictions occurred when the verdicts were announced, we turn to the sentencing hearing to determine whether the district court "accepted and recorded" the guilty verdicts simultaneously or sequentially. Minn. Stat. § 609.02, subd. 5. Here, the district court summarized the verdicts by noting—incorrectly—that the jury "convicted" the defendant "on Counts 3, 1, 4, 2, and 5." The district court then went on to sentencing. We have explained in the past that district courts should be clear when formally adjudicating offenses. E.g. Walker, 913 N.W.2d at 467. The state points to no moment in time, outside its argument regarding the announcement of the verdicts, when Lufkins was convicted of one count of criminal sexual conduct before another. Because we discern none and are unwilling to infer sequential imposition of convictions under these circumstances, we hold that the district court erroneously imposed a lifetime conditional-release term. We reverse and remand to vacate the lifetime conditional-release term and resentence Lufkins to the appropriate term, correcting the warrant of commitment accordingly.
IV. Lufkins's claim in his pro se supplemental brief that he received ineffective assistance of trial counsel is without merit.
Lufkins's pro se supplemental brief contains a numbered list of questions that he believes his counsel should have asked various witnesses. He also submits that there are specific people that his counsel should have interviewed. Lufkins does not provide any legal citations or argument, though, so we agree with the state that his claim is inadequately briefed. See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (declining to consider allegations made in a pro se supplemental brief with "no argument or citation to legal authority"). But even if we were to consider his claim of ineffective assistance of counsel, his claim is without merit.
Minnesota courts will "generally not review an ineffective-assistance-of-counsel claim that is based on trial strategy." Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). "Trial strategy" includes matters such as the selection of evidence presented to the jury, what witnesses to call, what questions to ask witnesses, and whether to make objections. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009); State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Such matters "lie within the proper discretion of trial counsel and will generally not be reviewed later for competence." Bobo, 770 N.W.2d at 138.
Here, Lufkins asserts that his trial counsel should have asked additional questions and interviewed additional witnesses, but these matters fall squarely within the realm of trial strategy, and are accordingly not subject to review for ineffective assistance of counsel. See id. His claim of ineffective assistance of counsel accordingly fails.
The state construes Lufkins's pro se supplemental brief as also containing a challenge to the sufficiency of the evidence and responds accordingly. The state is apparently reacting to Lufkins's statement in his brief: "I didn't do any of the things that A.H. is saying that I did." Because Lufkins does not identify the nature of his argument and provides no legal analysis or citations for a sufficiency-of-the-evidence argument, we decline to consider such an argument as inadequately briefed. Krosch, 642 N.W.2d at 719. --------
Affirmed in part, reversed in part, and remanded.