                           This opinion will be unpublished and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
                                      A15-0767

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                      David Mendoza,
                                        Appellant.

                                     Filed April 4, 2016
                                          Affirmed
                                      Stauber, Judge

                              Hennepin County District Court
                                 File No. 27-CR-14-8379

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         On appeal from his conviction of first-degree criminal sexual conduct, appellant

argues that structural error occurred when the district court judge was present during jury
deliberations and its comments influenced the jury to reach a verdict. In the alternative,

appellant argues that a Schwartz hearing is necessary to determine the nature of the

communications between the jurors. We affirm.

                                           FACTS

       In March 2014, appellant David Mendoza was charged with one count of first-

degree criminal sexual conduct and one count of second-degree criminal sexual conduct.

At trial, the jury was shown a video-taped statement appellant made to police wherein he

admitted to sexually penetrating his cousin. Later, during deliberations, the jury

requested “to view the video again.” When the jury reconvened in the courtroom, the

district court judge instructed the jury that transcripts of the video were available “to

aid . . . in watching the video,” but that they would be collected when the video was over.

The jury foreman then informed the district court judge that the jury only wanted to view

a portion of the video. But after an off-the-record discussion, the district court judge told

the jury that they were required by rule to watch the entire video. The jury then decided

to discuss amongst themselves whether they wanted to watch the entire video.

       Shortly after the jury left the courtroom, the deputy informed the district court

judge that the jury had reached a verdict. But before allowing the jurors back into the

courtroom, the district court judge discussed with the parties whether to “make” the

jurors watch the entire video again before rendering their verdict. During this discussion,

counsel for appellant informed the district court judge that he “noticed . . . two of the

jurors in the back row as they were seated down they picked up their copies of the

transcript [and] started reviewing the first couple pages. One of the [jurors] pointed to his


                                              2
copy of the transcript and . . . the other juror ended up nodding his head.” Trial counsel

further stated that his “precise concern” is the jurors “utilizing” the transcript to “just

answer their question.”

       The district court judge called the jury back into the courtroom and instructed the

jury that “if you did look at the transcript, . . . to ignore whatever it is you read.” The

district court judge further stated that if the jury had read any part of the transcript, the

jury would need to view the video in its entirety. The jury foreman then suggested that

the jury view the video, and after the video was played in its entirety, the jury retired to

deliberate.

       The jury found appellant guilty of the charged offenses. Appellant was then

sentenced to the presumptive guidelines sentence of 144 months in prison. This appeal

followed.

                                       DECISION

I.     Alleged structural error

       A defendant has a constitutional right to a trial by jury for any offense that is

punishable by incarceration. State v. Fluker, 781 N.W.2d 397, 400 (Minn. App. 2010).

A “cardinal principle” of the right to a jury trial is that “the deliberations of the jury shall

remain private and secret in every case,” and that “[t]he presence of any person other than

the jurors . . . impinges upon that privacy and secrecy.” State v. Crandall, 452 N.W.2d

708, 710 (Minn. App. 1990) (quotation omitted). Consistent with these principles,

Minnesota Rule of Criminal Procedure 26.03, subdivision 20(2)(b), requires the district

court to “instruct the jury to suspend deliberations during the review” of evidence.


                                               3
       Appellant claims that the two jurors were “deliberat[ing] together in open court”

when one of the jurors pointed to his copy of the transcript and the other juror nodded his

head. Appellant argues that the district court’s “presence” in the courtroom during these

“deliberations,” coupled with its “invitation to the jury to reconsider whether they wanted

to watch the video because of its length,” constituted structural error. Appellant further

claims that this error was compounded by the district court’s failure to instruct the jury to

suspend deliberations when they entered the courtroom. Thus, appellant contends that he

is entitled to an automatic reversal and a new trial.

       “Generally, there are two types of error: structural error and trial error.” Colbert

v. State, 870 N.W.2d 616, 624 (Minn. 2015). “[S]tructural errors are defects in the

constitution of the trial mechanism” that “affect the entire trial from beginning to end and

undermine the structural integrity of the criminal tribunal itself.” Id. (quotations

omitted). Structural errors “defy analysis by ‘harmless-error’ standards” and therefore

“require automatic reversal of a conviction.” State v. Kuhlmann, 806 N.W.2d 844, 851

(Minn. 2011) (quotation omitted). Conversely, a trial error “may be quantitatively

assessed in the context of the other evidence presented in order to determine whether it

was harmless beyond a reasonable doubt.” Colbert, 870 N.W.2d at 624 (quotation

omitted). “Most errors are trial errors, which are reviewed under a prejudicial-impact

analysis to determine whether they require reversal and a new trial.” State v. Watkins,

840 N.W.2d 21, 25–26 (Minn. 2013). “Structural errors resulting in automatic reversal

occur only in a very limited class of cases.” Colbert, 870 N.W.2d at 624 (quotation

omitted).


                                              4
       Although it did not use the phrase “structural error,” the supreme court in State v.

Mims, held that a judge’s uninvited entry into the jury room during deliberations and in

the absence of the defendant and counsel requires automatic reversal because it “offends

the integrity of the proceedings and risks influencing the jury’s decisional process in

some degree, however difficult to define or impossible to measure.” 306 Minn. 159, 169,

235 N.W.2d 381, 388 (1975). In that case, the jury had been deliberating for about four

hours when the judge “entered the jury room,” and asked the jurors about the “prospects”

of their “arriving at a verdict.” Id. at 160-61, 235 N.W.2d at 383. The judge “wanted to

canvass the [prospects of a verdict] generally [with the jurors] and then talk with the

attorneys and the defendant.” Id. In reversing, the supreme court stated that the trial

judge is an “imposing figure,” and that when this “imposing figure” intrudes into the

jury’s deliberative process, “there is a significant interference with the orderly decisional

process, and prejudice to the process results by the implication that the judge has the

prerogative of entering the jury room and there exercising the same dominant authority

he possesses in the courtroom.” Id. at 168-69, 235 N.W.2d at 387-88. The court

reasoned that the concern when the judge intrudes is that he or she can exert a

“controlling influence,” and for this reason, “a communication by the judge to the jury

stands on a different basis from that of another person, and for a like reason the law

should throw a higher degree of circumspection around such communications.” Id. at

166, 235 N.W.2d at 386 (quotation omitted).

       A similar conclusion was reached in State v. Brown, 682 N.W.2d 162, 167-68

(Minn. 2004). In that case, the judge went into the jury room three times and questioned


                                              5
the jury as to whether there was “realistically . . . any possibility” of the jury reaching a

verdict that evening.” Id. at 165. In reversing the defendant’s conviction, the supreme

court applied the “strict rule” from Mims. Id. at 168. The court reasoned that by going

into the jury room after deliberations had begun, the judge inserted himself into the jury’s

deliberative process. Id. at 167.

       Appellant argues that because his case is similar to Brown and Mims, he is entitled

to a new trial. Conversely, the state argues that this case is more like State v. Everson,

749 N.W.2d 340 (Minn. 2008), and State v. Nissalke, 801 N.W.2d 82 (Minn. 2011),

wherein the supreme court declined to apply the strict rule of Mims.

       In Everson, the district court responded to the jury’s request to replay tape

recordings by allowing the jury, with the defendant’s consent, to listen to the recordings

in the courtroom in the presence of only the court clerk and a non-lawyer employee of the

county attorney’s office who operated the playback equipment. 749 N.W.2d at 344. In

holding that structural error was not committed, the supreme court stated that “the

procedure used here, while perhaps inadvisable, is not comparable to an uninvited entry

by the judge into the jury room. Id. at 348 (recognizing that a court clerk and non-lawyer

employee of the county attorney’s office stand “on a different basis” from a judge).

       More recently, in Nissalke, the district court entered the jury room to deliver

corrected verdict forms and the trial exhibits a few minutes after the sworn bailiffs

escorted the jury from the courtroom to the jury room. 801 N.W.2d at 94-95. Although

the district court informed the jury that he would be coming in with the corrected verdict

forms, neither the defendant nor his counsel were present during the district court’s brief


                                               6
appearance in the jury room. Id. In rejecting the defendant’s argument that under Mims,

the district court’s entry into the jury room constituted an error requiring automatic

reversal, the supreme court stated that “[t]he Mims rule . . . is triggered only when the

jury is into the deliberative process.” Id. at 92, 96. The court held that

              under the unique circumstances presented here, where the
              district court’s entry into the jury room occurred a few minutes
              after the jury left the courtroom and the record does not
              establish that the jury had begun formal deliberations, the entry
              does not undermine the traditional safeguards preventing
              intrusions during deliberations or the independence of the
              jury’s final, collective, decisional process.

Id. at 98.

       We conclude that this case is akin to Nissalke and Everson, and distinguishable

from the circumstances in Brown and Mims because the district court judge did not insert

himself into the decision-making process. Unlike Mims and Brown, the district court

judge did not enter the jury room, nor did he communicate with the jury in the absence of

appellant and counsel. Instead, the proceedings were conducted in open court where the

jury knew that the judge, appellant, and counsel would be present, and observed their

presence in the courtroom. Moreover, the district court judge’s comment about the

length of the video was irrelevant to the deliberation process. The jury had already

viewed the video once, and knew its length. And the jury ultimately viewed the video a

second time before retiring for final deliberations.

       Finally, despite appellant’s argument to the contrary, the district court judge

instructed the jury before they retired to deliberate to “converse among itself only in the

jury room and only after the entire jury has assembled.” The jury was also instructed to


                                              7
“avoid any conversations about the case outside that jury room.” And after the jury asked

to review the video and had returned to the courtroom, the district court judge cautioned

the jury that they could not keep the transcript and that it could only be used to “aid you

in watching the video.” The district court judge further reminded the jury to “remember

from my instructions you only talk to each other in the jury room.” Therefore, because

the jury was properly instructed, and the district court judge did not insert himself into the

decision-making process, appellant cannot establish structural error.1

II.      Schwartz hearing

         Appellant argues that if this court “is not inclined to reverse [his] conviction for

structural error, then [his case] should be remanded for a Schwartz hearing.” “The

purpose of a Schwartz hearing is to determine whether a jury verdict is the product of

misconduct,” such as improper contact between the district court and the jury. State v.

Greer, 635 N.W.2d 82, 92 (Minn. 2001). Such a hearing allows the defendant to

question jurors under oath to determine whether any jury misconduct occurred or whether

any outside influence improperly affected the verdict. Schwartz v. Minneapolis Suburban

Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). Before a motion for a

Schwartz hearing will be granted, the defendant must establish a prima facia case of jury

misconduct. State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979). “To establish a prima

facie case, a defendant must submit sufficient evidence which, standing alone and

unchallenged, would warrant the conclusion of jury misconduct.” Id. But a Schwartz



1
    We note that appellant makes no claim that his trial was prejudiced.

                                                8
hearing is inappropriate where the claim of misconduct is “wholly speculative and . . . not

based on any evidence reasonably suggesting that misconduct had occurred.” State v.

Mings, 289 N.W.2d 497, 498 (Minn. 1980).

       Appellant did not request a Schwartz hearing in district court. Because review is

normally limited to consideration of the issues presented to or decided by the district

court, appellant has waived the issue. See Everson, 749 N.W.2d at 349. Moreover, to

obtain a Schwartz hearing, “a defendant must show actual misconduct resulting in

prejudice or present a claim of outside influence or extraneous information.” State v.

Bauer, 471 N.W.2d 363, 367 (Minn. App. 1991), review denied (Minn. July 24, 1991).

Here, appellant failed to establish prejudice and he does not allege that facts came to light

after the return of the verdict that indicate outside influence. Moreover, the record

reflects that the jury was properly instructed. Thus, appellant cannot meet his burden to

show that he is entitled to a Schwartz hearing.

       Affirmed.




                                              9
