                           This opinion will be unpublished and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
                                      A16-0304

                                     State of Minnesota,
                                         Respondent,

                                             vs.

                                     Kevin Ray Goulet,
                                        Appellant.

                                  Filed February 21, 2017
                                         Affirmed
                                   Jesson, Judge, Judge
                                  Dissenting, Ross, Judge

                              Otter Tail County District Court
                                  File No. 56-CR-15-2128

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

David Hauser, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Schellhas,

Judge.

                          UNPUBLISHED OPINION

JESSON, Judge

         Appellant Kevin Goulet argues that the district court committed reversible error by

refusing to strike a juror for cause because the juror displayed actual bias when she
expressed that she did not know whether she could be fair and impartial in a case involving

children, and the district court’s questioning did not rehabilitate her. Because Goulet has

failed to establish actual bias, and the district court’s questioning rehabilitated the juror

with respect to any possible bias, we affirm.

                                           FACTS

       From June 2013 through June 2014, Goulet was living in Fergus Falls. During that

time, he lived initially in the home of his niece, J.C., then in his own apartment, and finally

in the garage of J.C.’s next home. J.C.’s child, T.S., who was then seven years old,

sometimes spent time alone with Goulet.

       After Goulet moved out of J.C.’s garage, J.C. discovered a pair of T.S.’s panties in

a mini-fridge belonging to Goulet. J.C. then heard T.S. playing with her twin brother and

telling him, “Let me see your naked booty.” J.C. was concerned, and T.S. told her mother

that Goulet had sexually touched her. J.C. reported the suspected abuse to police. T.S.

was interviewed by a social worker and disclosed in the interview that Goulet had sexually

penetrated her on a number of occasions.

       The state charged Goulet with first-degree and second-degree criminal sexual

conduct. During jury selection for Goulet’s trial, potential jurors were asked to fill out a

jury questionnaire. One question asked whether the potential juror would find it hard to be

fair and impartial in considering evidence if asked to serve on a case involving charges of

criminal sexual conduct. One potential juror, K.J., answered “Yes.” She commented,

“Anything done to a young child would be very hard to deal with.”

       At voir dire, defense counsel questioned K.J.:


                                                2
Q: You’re going to have some trouble, you think, sitting in this — this trial;
 is that right?
A: I think I might, yes.
Q: Okay. Tell me about that.
A: Well, I work at the school. I’m with kids during [the] school day. It’s —
 I just—I guess that’s why.
Q: What ages are the children in the school where you work?
A: They’re fifth through eighth grade.
....
A: Uh-huh. I work in the kitchen.
Q: And when you say that, what exactly will give you problems with it? Just
 because you work with children?
A: I don’t know. We’re raising three grandsons also; and, I don’t know, I just
 think children should be innocent children and . . .
Q: Okay. You think children should be innocent.
A: Uh-huh.
Q: So you have already made up your mind then—
A: I don’t think so, no.
Q: — in this?
A: I don’t think so.
Q: Do you think that just because Mr. Goulet’s sitting there then and that
 there’s a child involved that he must have done something?
A: I think I can be open to listening to everything. And judging by that.
Q: Do you think your sympathy — well, let me rephrase that. Would you
 give more weight to what a child says than anything else?
A: Maybe.
Q: So if the child says this and somebody else says this, you’ve already
 decided, “I’ll probably believe that child over anybody else?”
A: I don’t know. I can’t really — I just don’t really know how to answer. All
 I know is I think I would have a hard time doing it.
Q: You think you could put that aside then and not give that child more weight
 to her evidence? Or her testimony?
A: I might be able to. But I don’t know.
Q: You don’t really know?
A: I don’t really know.
Q: So you can’t say for sure, “I can set that aside and be fair.”
A: I can’t say for sure, no.
Q: How do you think your sympathy for children is going to affect how you
 feel about the evidence?
A: I don’t know. I’d be willing to listen to everything. And judge from that.
Q: Okay. I hear you saying, “I’ll be willing to listen to everything and judge
 from that”; but you also said, “I don’t believe I can put it aside.”
A: Maybe not completely. I don’t know.


                                      3
        Q: Not completely. So you can’t say for sure that you can put all this aside
        and just judge like we’re on an even — we’re not even on an even playing
        field. He’s presumed innocent; the State has to overcome that.
        A: Uh-huh.
        Q: And you’re already kind of giving the State not the even — you’re giving
        them more than an even playing field; would you agree?
        A: Maybe.
        Q: Thank you. This is hard. I know.
        A: It is very hard.

Defense counsel asked to have K.J. removed for cause. The prosecutor then inquired of

K.J.:

        Q: . . . [T]he judge will give instructions in that regard; do you understand?
        A: Uh-huh. I understand.
        Q: And if the judge tells you today and throughout the trial that you need to
        listen to the facts and judge this case based on that, are you going to be able
        to do that?
        A: I think so.
        Q: And you’re going to — you come here, obviously, with your
        preconceived notions or your life experiences that you talked about; right?
        You see kids every day.
        A: Yes.
        Q: Is that where your struggle is coming from; just that you see them? Or
        have you had some experience with a particular child?
        A: No. Because I’m with them during the day, and raising three grandsons,
        which —
        Q: How old are they?
        A: 10, 12, and 17.
        Q: And so it’s that that you’re coming into saying it would be difficult from
        your questionnaire?
        A: Yes.
        Q: Nothing different from that?
        A: No.
        Q: All right. And so, with that, if the judge — it is your job to decide this
        case, the facts, and to look at all of the factors about weighing somebody’s
        credibility. Will you look at those and follow the instructions of the Court
        without just saying, “Well, I believe this person more than the other because
        I like kids,” or whatever it is that you have in your mind now?
        A: Right. I think I can, yes.
        Q: All right. You’re going to do your best to do that?
        A: Yes, I will do my best.


                                              4
The prosecutor opposed the motion to remove K.J. for cause. Defense counsel stated that

she was renewing the objection because K.J. stated that she would do her best, but also said

that “she couldn’t put it aside.” The district court then further questioned K.J.:

       Q: Ma’am, at the end of this, if you’re chosen as a juror, you will be asked
       to listen to the evidence as it comes in, not decide any case on anything else,
       other than the evidence that you hear; and then listen to the law as I give it to
       you and make your findings, you know, as to the—based solely on the
       evidence that you’re hearing, putting aside all sympathy and prior feelings
       and applying the law as I give it to you. Do you think you can do that?
       A: I think so.

The district court then ruled that it would deny the challenge for cause, and K.J. was seated

as a juror.

       The jury found Goulet guilty of seven counts of criminal sexual conduct, and the

district court sentenced him to 144 months in prison. This appeal follows.

                                      DECISION

       The United States and Minnesota Constitutions guarantee a criminal defendant the

right to a fair trial by an impartial jury. U.S. Const. amend. VI; Minn. Const. art I, § 6.

The Minnesota Rules of Criminal Procedure provide that a party may seek to have a

prospective juror removed on one of several grounds, including that “[t]he juror’s state of

mind . . . satisfies the court that the juror cannot try the case impartially and without

prejudice to [that party’s] substantial rights.” Minn. R. Crim. P. 26.02, subd. 5(1). If a

juror is actually biased and sits in judgment, a structural error has occurred, which requires

a new trial. State v. Fraga, 864 N.W.2d 615, 626 (Minn. 2015); State v. Geleneau, 873

N.W.2d 373, 380 n.1 (Minn. App. 2015), review denied (Minn. Mar. 29, 2016). No



                                              5
additional showing of prejudice is necessary. Fraga, 864 N.W.2d at 625-26. A defendant

may raise this issue on appeal even if he did not use a peremptory challenge to remove a

juror who, he argues, should have been removed for cause. See United States v. Martinez-

Salazar, 528 U.S. 304, 314-15, 120 S. Ct. 774, 781 (2000).

       Goulet challenges the district court’s failure to remove K.J. for cause, arguing that

she expressed a state of mind showing actual bias. See State v. Munt, 831 N.W.2d 569,

577 (Minn. 2013). Establishing that a prospective juror expressed actual bias requires more

than the existence of a preconceived notion as to the defendant’s innocence or guilt. Id.

Rather, the challenging party must show that the juror has “exhibited strong and deep

impressions that would prevent [the juror] from lay[ing] aside [an] impression or opinion

and render[ing] a verdict based on the evidence presented.” Id. (quotation omitted).

       To determine whether a juror is biased, we follow a two-step process. Fraga, 864

N.W.2d at 623. We first examine a juror’s voir dire answers in context to determine

whether the juror has expressed actual bias. Id. If a juror expressed actual bias, we then

determine whether the juror was rehabilitated. State v. Prtine, 784 N.W.2d 303, 310 (Minn.

2010).1 Rehabilitation occurs if the juror states unequivocally that he or she will set aside

any preconceived notions, follow the district court’s instructions, and fairly evaluate the

evidence. Id. We give “great deference to a district court’s findings on juror bias” and will

not reverse the denial of a challenge for bias unless the district court has abused its


1
  If a juror’s statements establish bias based on race, such a bias may be so strong that it is
not subject to rehabilitation. 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice
§ 27:9 n.18 (4th ed. 2012) (citing State v. Brown, 732 N.W.2d 625 (Minn. 2007)). Because
racial bias is not implicated in this case, we do not reach this issue.

                                              6
discretion. Fraga, 864 N.W.2d at 623; see also State v. Logan, 535 N.W.2d 320, 323

(Minn. 1995) (stating that the question of whether a juror is impartial amounts to a

credibility determination, and an appellate court defers to the district court’s finding of

impartiality).

       Goulet argues that the district court erred by declining to remove K.J. for cause

because she expressed actual bias and was not rehabilitated. In our review of this issue,

we examine other cases in which Minnesota appellate courts have concluded that the

district court erred by declining to strike a juror for cause based on actual bias. For

instance, in Fraga, the supreme court concluded that the district court committed reversible

error by seating a juror on a case involving the murder of a child who had been sexually

abused. Fraga, 864 N.W.2d at 624-25. That juror was familiar with the case, had read

press about it, and had discussed case details with a family member who was an emergency-

room nurse where the victim was treated. Id. at 623. When asked if he could put this aside,

be fair and impartial, and decide the case solely on the evidence presented, he answered

equivocally, including references to his prior knowledge of the case and his discussion of

the nature of the case with family and friends. Id. at 624. The supreme court concluded

that the juror displayed actual bias and was not rehabilitated. Id. at 624-25; see also Prtine,

784 N.W.2d at 311 (holding that the district court erred by declining to strike a juror for

cause when she repeatedly expressed that she “would be more inclined to believe a police

officer’s testimony.”).

       Here, K.J. expressed hesitation about serving on a jury involving a crime committed

against a child and initially gave equivocal answers as to whether she would believe a child


                                              7
over another witness. But she acknowledged that her hesitation stemmed only from raising

her three grandchildren; she did not indicate prior familiarity with the details of the case,

as in Fraga, or express a strong bias in favor of a certain group, as in Prtine. And when

questioned by the prosecutor whether she could follow the district court’s instructions, she

stated, “Right. I think I can, yes.” On this record, we cannot conclude that she expressed

actual bias in the form of deep-seated impressions that would prevent her from putting

aside her opinion and rendering a verdict based on the evidence. See Munt, 831 N.W.2d at

577.

       Further, even if K.J. did express some degree of actual bias, the district court’s

additional questioning rehabilitated her.         Rehabilitation occurs if a juror states

unequivocally that he or she will follow the district court’s instructions and fairly evaluate

the evidence, setting aside any preconceived notions. Fraga, 864 N.W.2d at 623. Here,

the district court informed K.J that if chosen as a juror, she would be asked to “put[] aside

all sympathy and prior feelings,” listen to evidence and the law as instructed by the court,

and decide the case only based on that evidence, applying the law as given. The district

court then asked her directly. “Do you think you can do that?” She answered, “I think so.”

       K.J.’s positive response to the district court is less equivocal than the potential

juror’s response in Fraga that he “guess[ed]” he could form his own opinion and be

impartial. See id. at 625. In addition, K.J.’s initial expression of hesitancy stemmed only

from her general belief that children were often truthful. It did not reflect a deep-seated

bias that would prevent her from laying her views aside and rendering a verdict based only

on the evidence. Munt, 831 N.W.2d at 577. Thus, the strength of rehabilitation required


                                              8
in her situation was less than in cases in which potential jurors expressed more ingrained

and stronger biases. See, e.g., Fraga, 864 N.W.2d at 623-25 (concluding that a potential

juror displayed actual bias when he acknowledged that he had previous knowledge of the

case and had discussed its details with family and friends).

       “[T]he district court is in the best position to observe and judge the demeanor of the

prospective juror” and therefore should be given deference in determining whether a juror

should be removed for cause. Prtine, 784 N.W.2d at 310 (quotation omitted). Our

deference is based on the practical reality that “[j]urors . . . cannot be expected invariably

to express themselves carefully or even consistently. Every trial judge understands this,

and under our system it is that judge who is best situated to determine competency and to

serve impartially.” Patton v. Yount, 467 U.S. 1025, 1039, 104 S. Ct. 2885, 2893 (1984).

Here, the district court was able to observe K.J.’s demeanor, body language, and tone of

voice as she responded to the district court’s questioning. The district court implicitly

found that K.J.’s affirmative response, “I think so,” indicated that she was able to follow

the court’s instructions and set aside prior impressions to render a verdict based only on

the evidence as applied to the law given. We defer to this determination and conclude that

the district court acted within its discretion in denying the challenge for cause.

       Affirmed.




                                              9
ROSS, Judge (dissenting)

       I respectfully dissent.

       I agree that the majority accurately describes the correct standard under State v.

Fraga, in that after a potential juror in a criminal trial reveals a bias against the defendant,

the juror may sit on the trial only if the district court establishes “unequivocally” that the

juror will not act on her bias. 864 N.W.2d 615, 623 (Minn. 2015). But I do not think the

majority applies Fraga appropriately in either step of the analysis here.

       I believe that the juror, K.J., expressed actual bias when she told the court, “All I

know is I think I would have a hard time doing it.” In context, the “it” she was referring to

was “sitting in this . . . trial” and being “open to listening to everything” without giving

undue, disproportionate weight to the child victim’s testimony “over anybody else.” She

told the court that she could “[m]aybe not completely” put aside her sympathy toward the

child victim, that she would have trouble sitting as a juror, that she didn’t know whether

she could properly weigh the evidence, and that she “can’t say for sure” that she could be

fair. She admitted that she would “maybe” give the prosecution “more than an even playing

field,” which opposes a juror’s duty to presume the defendant innocent.

       These repeated, consistent comments unquestionably revealed the juror’s

fundamental prejudices against the defendant and candidly exposed her difficulty in

affording the defendant his constitutional right to a fair trial by a panel of impartial jurors.

If a district court judge sitting as fact-finder said these things to a defendant before a bench

trial, we would not hesitate to immediately reverse any conviction resulting from the




                                             D-1
judge’s guilty verdict. In my view, the district court judge here should have exercised that

same authority and removed the juror upon the defendant’s reasonable request.

       It is equally clear to me that the district court never rehabilitated the juror

“unequivocally” after the juror openly revealed her bias. The juror answered equivocally,

only, “I think I can, yes” to the judge’s equivocal question, “Do you think you can [listen

fairly to the evidence, apply the law as the court gives it, and put aside all sympathy

favoring the victim]?” (Emphasis added.) The judge did not ask her to declare

unequivocally that she would put aside her bias, and she never volunteered that she would.

Of course the majority is correct that the district judge is in the best position to observe a

potential juror’s “demeanor, body language, and tone of voice.” But even assuming that

the cold record hides from us that the juror here raised her voice, shot her fist in the air,

and furrowed her brow resolutely, the most extreme passion in tone does not transform the

judge’s and juror’s equivocation in substance into the unequivocal assurance that she

would treat the evidence fairly to overcome her declared bias.

       In the face of the juror’s repeated and consistent voluntary statements expressing

her apparently deeply held doubt that she would be fair to the defendant, the uncommitted

“I think I can” response to the leading and softball “Do you think you can?” inquiry does

not come close to the kind of certain and absolute rejection of bias necessary for

convincing, “unequivocal” rehabilitation. Because of the district court’s structural error of

empaneling an admittedly biased juror without first unequivocally rehabilitating her, I

believe that Goulet is entitled to a new trial.




                                              D-2
