                         This opinion will be unpublished and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
                                    A15-0372

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                 Nicholas Taylor Rod,
                                      Appellant.

                                Filed February 1, 2016
                                       Affirmed
                                   Schellhas, Judge

                             Ramsey County District Court
                              File No. 62SU-CR-14-2906

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

James C. Erickson, Jr., Roseville City Prosecutor, Erickson, Bell, Beckman & Quinn, P.A.,
Roseville, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

       Considered and decided by Rodenberg, Presiding Judge; Schellhas, Judge; and

Reilly, Judge.
                            UNPUBLISHED OPINION

SCHELLHAS, Judge

          Appellant challenges his conviction of causing demonstrable bodily harm to a public

safety dog, arguing that his guilty plea was not supported by an adequate factual basis. We

affirm.

                                             FACTS

          In early July 2014, Roseville police officers went to an area motel to arrest appellant

Nicholas Taylor Rod on an active felony warrant. Rod ignored officers’ repeated

commands to exit his motel room, so an officer deployed a public safety dog, which

“push[ed] into the room and began apprehending Rod.” Soon thereafter officers entered

the room and saw Rod choking the dog. Officers freed the dog only after subduing and

detaining Rod.

          On August 8, 2014, respondent State of Minnesota charged Rod with gross

misdemeanor causing demonstrable bodily harm to a public safety dog and with

misdemeanor assault of a public safety dog. On September 9, for an unrelated felony

conviction, a district court sentenced Rod to 69 months’ imprisonment. On October 16,

while incarcerated for the felony offense, Rod wrote to the district court that presided over

this case and asked to “take care of” the August 8 charges “by way of ‘writ’ or any other

means.”

          On October 27, 2014, the Roseville city prosecutor provided Rod a plea petition and

waiver of the right to be present and instructed him, “If you agree with the conditions set

forth in the plea petition, please sign the enclosed documents in front of a notary public


                                                 2
and forward them to” the district court. The petition recited the elements of causing

demonstrable bodily harm to a public safety dog and described a plea agreement under

which Rod would plead guilty to that offense, the state would dismiss the charge of assault

of a public safety dog, and Rod would receive an executed 365-day sentence to be served

concurrently with his prison sentence for the unrelated felony conviction. On November 3,

Rod sent the notarized petition and waiver to the district court.

       On November 13, 2014, the district court issued a writ of habeas corpus ad

prosequendum and order for transportation of Rod to the court. Rod therefore was

transported to the court, where he pleaded guilty to causing demonstrable bodily harm to a

public safety dog; the state dismissed the charge of assault of a public safety dog; and the

court adjudicated Rod guilty and imposed an executed 365-day sentence to be served

concurrently with his prison sentence for the unrelated felony conviction.

       This appeal follows.

                                      DECISION

       “A defendant who wishes to overturn a guilty plea may file a petition for

postconviction relief . . . , move to withdraw the plea under Rule 15.05 of the Minnesota

Rules of Criminal Procedure, or seek withdrawal on a direct appeal from the judgment of

conviction.” State v. Miller, 849 N.W.2d 94, 97 (Minn. App. 2014); see also Brown v.

State, 449 N.W.2d 180, 182 (Minn. 1989) (stating that “[a] defendant is free to simply

appeal directly from a judgment of conviction and contend that the record made at the time

the plea was entered is inadequate in one or more . . . respects”). “The defendant bears the

burden to establish that his plea was invalid. Whether a plea is valid is a question of law


                                              3
which [appellate courts] review de novo.” Lussier v. State, 821 N.W.2d 581, 588 (Minn.

2012) (Lussier I) (citation omitted).

       “Among other requirements, a constitutionally valid guilty plea must be accurate.”

Id. “To be accurate, a plea must be established on a proper factual basis.” Id. (quotation

omitted). “When determining whether a guilty plea has an adequate factual basis, [appellate

courts] examine whether there are sufficient facts on the record to support a conclusion that

defendant’s conduct falls within the charge to which he desires to plead guilty.” Lussier v.

State, 853 N.W.2d 149, 154 (Minn. 2014) (Lussier II) (emphasis omitted) (quotation

omitted). “The district court typically establishes a factual basis by asking the defendant to

express in his own words what happened.” Barrow v. State, 862 N.W.2d 686, 691 (Minn.

2015); see also Minn. R. Crim. P. 15.02, subd. 2 (“After explaining the defendant’s rights,

the judge, with the assistance of counsel, must question the defendant to determine a factual

basis for all elements of the offense to which the defendant is pleading guilty.”).

“Nevertheless, even if a district court does not elicit proper responses, a defendant may not

withdraw his plea if the record contains sufficient evidence to support the conviction.”

Lussier I, 821 N.W.2d at 589 (quotations omitted).

       “[The supreme court] ha[s] never required that the factual basis for the plea appear

in the plea hearing transcript verbatim.” Id. “Indeed, the plea petition and colloquy may be

supplemented by other evidence to establish the factual basis for a plea.” Id. In evaluating

the adequacy of the factual basis for a guilty plea, the supreme court has considered record

contents including an off-duty police officer’s sworn complaint, State v. Warren, 419

N.W.2d 795, 799 (Minn. 1988); “the allegations contained in the complaint” and “pictures


                                              4
of the victim’s injuries,” State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983); “sworn

statements and testimony of the victims introduced at earlier hearings,” Burnell v. State,

287 N.W.2d 412, 413 (Minn. 1979); “[t]he state’s evidence, as summarized by the

prosecutor” at the plea hearing, Kochevar v. State, 281 N.W.2d 680, 684, 686 (Minn.

1979); evidence introduced during partial trial, State v. Neumann, 262 N.W.2d 426, 432–

33 (Minn. 1978), abrogated on other grounds by State v. Moore, 481 N.W.2d 355 (Minn.

1992); and a detective’s sworn complaint, a presentence-investigation report (PSI), and the

defendant’s Department of Corrections file, State v. Hoaglund, 307 Minn. 322, 326–27 &

n.9, 240 N.W.2d 4, 6 & n.9 (1976). On factual-basis review, this court has considered the

undisputed allegations in the complaint, Sanchez v. State, 868 N.W.2d 282, 289 (Minn.

App. 2015), review granted (Minn. Oct. 28, 2015); an insurance inventory of damaged

property, Barnslater v. State, 805 N.W.2d 910, 914–15 (Minn. App. 2011); and a notice of

driver’s-license revocation and a traffic citation, State v. Sandmoen, 390 N.W.2d 419, 422

(Minn. App. 1986).

       Furthermore, the factual basis for a guilty plea may include reasonable inferences

arising from the defendant’s admissions and other record contents. See State v. Russell, 306

Minn. 274, 275, 236 N.W.2d 612, 613 (1975) (concluding that “[d]efendant’s answers to

questions by the prosecutor in this case disclose a factual basis for the plea [of guilt of

second-degree intentional murder] even though no question was specifically directed to the

element of intent to kill”); State v. Hopkins, 293 Minn. 522, 523, 198 N.W.2d 542, 542

(1972) (concluding that “[defendant’s] answers to questions by the prosecutor disclose a

factual basis for the plea [of guilt of aggravated assault] even though no question was


                                             5
specifically directed to the element of intent”); Barnslater, 805 N.W.2d at 914–15

(concluding that adequate factual basis supported guilty plea to first-degree burglary,

reasoning in part that defendant’s intent to damage property—an element of the predicate

offense—could be inferred from his admission that he “thr[e]w some stuff around” in

manner that could have caused damage (quotation omitted)); State v. Petersen, 799 N.W.2d

653, 658 (Minn. App. 2011) (concluding that adequate factual basis supported guilty plea

to second-degree intentional murder, reasoning in part that defendant’s intent to kill “a

child born alive” could be inferred from his admission that he punched pregnant woman in

stomach with intent to kill fetus), review denied (Minn. Sept. 28, 2011); cf. Neumann, 262

N.W.2d at 430 (“It is well established that before a plea of guilty can be accepted, the trial

judge must make certain that facts exist from which the defendant’s guilt of the crime

charged can be reasonably inferred.” (emphasis added)).

       In this case, Rod pleaded guilty to causing demonstrable bodily harm to a public

safety dog. The relevant statute provides:

                      It is a gross misdemeanor for any person to intentionally
              and without justification cause demonstrable bodily harm to a
              police dog, search and rescue dog, or an arson dog when the
              dog is involved in law enforcement, fire, or correctional
              investigation or apprehension, search and rescue duties, or the
              dog is in the custody of or under the control of a peace officer,
              a trained handler, or an employee of a correctional facility.

Minn. Stat. § 609.596, subd. 2 (2012). “[D]emonstrable” means “[c]apable of being

demonstrated or proved” or “[o]bvious or apparent.” The American Heritage Dictionary of

the English Language 484 (4th ed. 2006); see also State v. Backus, 358 N.W.2d 93, 95

(Minn. App. 1984) (concluding that “definition given by the trial court adequately defined


                                              6
‘demonstrable’ as capable of being perceived by a person other than the victim” in case

involving statute criminalizing infliction of “demonstrable bodily harm” on peace officer

(quotation omitted)); cf. 10A Minnesota Practice, CRIMJIG 24.19 (Supp. 2012) (stating

that, as element of causing demonstrable bodily harm to a public safety dog,

“‘[d]emonstrable bodily harm’ means bodily harm that is capable of being perceived by a

person other than the victim”).

       Rod challenges the adequacy of the factual basis for his guilty plea. The following

colloquy took place at his plea hearing:

              PROSECUTOR: . . . Sir, I’m going to direct your attention to
              July 3rd, 2014 in the city of Roseville, Ramsey County. Is it
              true, sir, that on that date you were present at the Motel 6?
              ROD: Yes.
              PROSECUTOR: Would you agree, sir, that you came into
              contact with a police officer after they were attempting to
              execute a felony warrant for your arrest?
              ROD: Yes.
              PROSECUTOR: And in the process of coming into contact
              with the police officer, the police officer arrived at the motel
              with a [police dog]. Is that correct?
              ROD: Yes.
              PROSECUTOR: And the police officer attempted to enter your
              room with the dog. Is that correct?
              ROD: Yes.
              PROSECUTOR: And, sir, in the process of attempting to enter
              your room, the dog partially was in the room but the police
              officer wasn’t in the room. Is that correct?
              ROD: Yes.
              PROSECUTOR: And, sir, at some point you attempted—or
              excuse me. At some point you were alone with the dog and you
              were attempting to choke the dog with the dog’s leash. Is that
              true?
              ROD: Yes.
              PROSECUTOR: And, sir, you were intentionally trying to
              cause harm to the dog. Is that correct?
              ROD: Yes.


                                             7
              PROSECUTOR: And you knew it was a police dog?
              ROD: Yes.

Rod expressly admitted every element of causing demonstrable bodily harm to a public

safety dog except the element of demonstrable bodily harm itself. Rod argues that because

“[he] never admitted to actually causing the dog demonstrable bodily harm, and the state

failed to present any evidence of the same,” his guilty plea was not supported by an

adequate factual basis and “manifest justice compels this Court to allow him to withdraw

it.” We disagree.

       Rod fails to address the fact that he provided to the district court a notarized plea

petition prior to the plea hearing. In his petition, Rod stated that

              I am pleading guilty because on July 3, 2014 in the City of
              Roseville, County of Ramsey, State of Minnesota I committed
              the following acts . . . : Intentionally and without justification
              cause demonstrable bodily harm to a police dog, search and
              rescue dog, or an arson dog when the dog is involved in law
              enforcement, fire, or correctional investigation or
              apprehension, search and rescue duties, or the dog is in the
              custody of or under the control of a peace officer, a trained
              handler, or an employee of a correctional facility.

When asked by the court whether he “underst[oo]d every word” of the petition, Rod

responded affirmatively. The petition is part of the record, and we may consider it in our

de novo evaluation of the adequacy of the factual basis for Rod’s plea. See Lussier I, 821

N.W.2d at 589 (stating that “a defendant may not withdraw his plea if the record contains

sufficient evidence to support the conviction”). The record also contains the complaint, the

probable-cause portion of which alleges as follows:

              Rod attempted to slam the door shut on the [dog] striking the
              dog on the neck and shoulder area. [The dog] was able to push


                                               8
             into the room and began apprehending Rod. Rod continued to
             push the door shut and the door closed behind [the dog]
             trapping the leash in the door and preventing the officers from
             entering along with the [dog]. Officers used the management
             key and entered the room. Officers observed Rod had a hold of
             the [dog’s] leash and Rod was wrapping the leash around [the
             dog’s] neck as [the dog] held Rod by his upper right thigh. Rod
             was attempting to choke [the dog] with his own leash. Rod
             ignored officers’ commands and attempted to choke [the dog]
             with his bare hands. . . .

                    [The dog] sustained demonstrable bodily harm in the
             nature of broken blood vessels (petechial hemorrhaging) in
             both of his eyes after being choked by Rod.

On this record, a fact-finder reasonably could infer that Rod’s admitted use of violence

against the dog—with the admitted intent to cause bodily harm to the dog—led to bodily

harm to the dog that was capable of being perceived by a human observer of the dog.

      Affirmed.




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