State of Minnesota, Respondent,

This opinion will be unpublished and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
A16-1068

State of Minnesota,
Respondent,

vs.

Bobby Joe Houle,
Appellant

Filed June 5, 2017
Reversed and remanded
Worke, Judge

Cass County District Court
File No. 11-CR-15-2257

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

Christopher J. Strandlie, Cass County Attorney, Jeanine R. Brand, Assistant County
Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court erred when it accepted his guilty plea to the
offense of placing an emergency call and reporting a fictitious emergency, clai ming that

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the factual basis for his plea was not accurate. Because appellant did not “report” an
emergency, fictitious or otherwise, at the time of placing an emergency call, we reverse
and remand.
FACTS
On December 10, 2015, at approximately 11:34 p.m., law enforcement received
several 911 calls with an open line and nobody speaking. Officers responded to the address
from where the calls were made. When officers arrived at the residence, appellant Bobby
Joe Houle refused to open the door and kept his hand inside his coat. Houle pointed across
the street and whispered, “It’s across the street at [R.B.’s].” When asked why he called
911, Houle responded, “There are women tied up and getting raped over at [R.B.’s].” When
asked how he knew this, Houle stated that “everyone knows.” Houle told officers that his
girlfriend and children were at R.B.’s.
An officer went to R.B.’s. R.B. stated that Houle’s girlfriend and children were not
there and do not come ov er. R.B. denied anyone being tied up or raped, and officers
confirmed her statement. The officers again spoke to Houle who stated that he had text
messages about the rapes. Officers checked Houle’s phone and found no such messages.
Because of Houle’s behavior and not knowing what was going on inside the home,
an officer grabbed Houle to pull him outside. During a struggle, a box cutter fell from
Houle’s coat and officers found brass knuckles in hi s pocket. Houle was charged with
obstructing legal process, placing a fictitious emergency call, providing false information
to a police officer, and possessing a dangerous weapon.

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Houle agreed to plead guilty to placing a fictitious emergency call , a gross
misdemeanor, and possessing a dangerous weapon. The other two counts were dismissed.
After Houle agreed that he placed a 911 call, t he following exchange occurred between
Houle, the prosecutor, and the district court:
PROSECUTOR: Why are you pleading guilty today?
HOULE: Because I made a 911 call that was
fictitious.
PROSECUTOR: Okay. Would you agree that there was in
fact, that your report to law enforcement
that a woman was tied up and getting
raped was not true? Would you agree that
it wasn’t true? Make sense?
HOULE: That it wasn’t true?
PROSECUTOR: Right.
HOULE: I don’t understand what you’re asking.
PROSECUTOR: Okay. You reported that there was a
woman tied up and getting raped?
HOULE: No, I didn’t really. The cops just asked
me why, and I had told them I hea rd
somebody screaming.
THE COURT: Let’s do this. What do you recall about
December 10, 2015?
HOULE: I heard somebody screaming, so I called
the cops.
THE COURT: Okay. So you do remember calling law
enforcement?
HOULE: Yeah. I didn’t talk on the phone with
them, but I think I redialed a few times.

The district court did not accept Houle’s plea initially because the factual basis was
insufficient. T he matter was adjourned and resumed later that day , and the following
exchange occurred between Houle and his attorney:
ATTORNEY: [B]ack to December 10 of last year. Did
you make a series of 911 calls to the 911
dispatch?
HOULE: Yes.

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ATTORNEY: And would you agree that those calls were
made when there was not an emergency?
HOULE: Yes.
. . . .
ATTORNEY: Okay. Would you agree that you made
those calls fictitiously, or that there was
no good reason to make those calls?
HOULE: Yes.
ATTORNEY: What did you say . . . to the dispatch when
they answered each time you called?
HOULE: I didn’t talk to ’em.
ATTORNEY: So you made the calls but you didn’t say
anything?
HOULE: Yeah, I didn’t say anything.

The district court accepted Houle’s guilty pleas and sentenced Houle to one year in
jail, stayed for two years, for the gross -misdemeanor offense of placing a fictitious
emergency call, and 27 days in jail for possessing a dangerous weapon. This appeal
followed.
D E C I S I O N
Houle argues that the district court erred when it accept ed his guilty plea because
the factual basis supporting the plea was insufficient.
A defendant may appeal directly from a judgment of conviction and contend that
the record made at the time of the plea is inadequate. Brown v. State , 449 N.W.2d 180,
182 (Minn. 1989). A claim that the factual basis for a plea is insuffi cient is a challenge to
the validity of the plea. State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003). Whether a
guilty plea is valid is a question of law that this court reviews de novo. State v. Raleigh,
778 N.W.2d 90, 94 (Minn. 2010). The defendant has the burden to show that a plea is
invalid. Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012).

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To be valid, a guilty plea must be accurate, voluntary, and intelligent. Brown, 449
N.W.2d at 182. “The accuracy requirement protects a defendant from pleading guilty to a
more serious offense than that for which he could be convicted if he insisted on his right to
trial. To be accurate, a plea must be established on a proper factual basis. ” Raleigh, 778
N.W.2d at 94 (citations omitted). “[T]here must be sufficient facts on the record to support
a conclusion that [the] defendant’s conduct falls within the charge to which he . . . plead[ed]
guilty.” Iverson, 664 N.W.2d at 349 (quotation omitted). “The factual-basis requirement
is satisfied if the record contains a showing that there is credible evidence available which
would support a jury verdict that [the] defendant is guilty of at least as great a crime as that
to which he [pleaded] guilty.” State v. Genereux, 272 N.W.2d 33, 34 (Minn. 1978). If the
defendant makes statements that negate an essential element of the offense, the factual
basis for the plea is inadequate. Iverson, 664 N.W.2d at 350.
Here, Houle pleaded guilty to the offense of placing an emergency call and reporting
a fictitious emergency with the intent of prompting an emergency response. See Minn.
Stat. § 609.78, subd. 2(2) (2014). The elements of the offense include: (1) placing an
emergency call and (2) r eporting a fictitious emer gency with (3) intent of prompting a
response from law enforcement. Id.; 10A Minnesota Practice , CRIMJIG 21.35 (2015 )
(“[W]hoever places an emergency call and reports a fictitious emergency with the intent of
prompting an emergency response by law enforce ment, fire, or emergency medical
personnel . . . is guilty of a crime.”).
Houle agreed that he placed a 911 call “with the intention of getting law enforcement
to respond.” Houle asserts, however, that the factual basis does not establish that he

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reported a “fictitious” emergency. At oral argument, Houle alternatively argued that his
guilty plea failed to establish the reporting element of the offense. Houle did not raise this
issue in his principal brief. See State v. Petersen, 799 N.W.2d 653, 660 (Minn. App. 2011)
(stating that an argument that is not raised in a principal brief on appeal is waived), review
denied (Minn. Sept. 28, 2011); see also State v. Morse, 878 N.W.2d 499, 502 (Minn. 2016)
(stating that court of appeals erred when it addressed c onstitutionality issue not argued on
appeal); State v. Tracy, 667 N.W.2d 141, 145 (Minn. App. 2003) (stating that party may
not raise issues at oral argument that were not previously raised). However, we have the
latitude to address any matter as the interest of justice may require. Minn. R. Civ. App. P.
103.04; see also State v. Vasko , 889 N.W.2d 551, 556 (Minn. 2017) (indicating that an
appellate court may interpret a statute to determine what it requires even if not raised by
appellant because “the mea ning of a criminal statute is intertwined with the issue of
whether . . . the defendant violated the statute”).
Under Minn. Stat. § 609.78, subd. 2(2), a person is guilty of a gross misdemeanor if
he “places an emergency call and reports a fictitious emergency with the intent of
prompting an emergency response .” In interpreting a statute, “words and phrases are
construed according to rules of grammar and according to their common and approved
usage.” Minn. Stat. § 645.08(1) (2016). “[P]laces an emergency call and reports a fictitious
emergency” requires two acts: (1) placing an emergency call and (2) reporting a f ictitious
emergency. The word “and” means: “[t]ogether with; in addition to, as well as.” The
American Heritage College Dictionary , 50 (3rd ed. 2000). In this context, the word
“report” means: “[t]o relate or tell about.” Id. at 1158. Thus, to be guil ty of this offense,

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a person must place an emergency call and (together with; in addition to; as well as) report
(relate or tell about) a fictitious emergency.
Houle placed an emergency call , but he did not report an emergency because he
hung up without speaking. According to the complaint, the phone would hang up and then
911 would receive another call. Houle stated at his plea hearing that he did not talk to the
dispatcher and redialed a few times.
The state argued at oral argument that Houle’s f ailure to report at the time the call
was made does not mitigate his criminal conduct because 911 will respond to every call
regardless of whether the person on the other end of the call speaks. We appreciate the
state’s argument and recognize that the st atute does criminalize Houle’s conduct but as a
misdemeanor rather than the gross -misdemeanor offense to which he pleaded guilty. See
Minn. Stat. § 609.78, subd. 1(6) (2014) (stating that an individual is guilty of a
misdemeanor if he makes an emergency call knowing that no emergency exists and remains
silent); see also Raleigh, 778 N.W.2d at 94 (stating that the accuracy requirement of a valid
guilty plea “protects a defendant from pleading guilty to a more serious offense than that
for which he could be convicted”).
Accordingly, because the factual basis for Houle’s guilty plea does not establish the
element of the offense that he “report” a fictitious emergency at the time of placing the
emergency call, his guilty plea is not accurate or valid. We reverse and remand this matter

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to the district court to allow Houle to withdraw his guilty plea and for proceedings
consistent with this opinion.1
Reversed and remanded.

1 See State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (stating that retrial is appropriate
unless a conviction is overturned on appeal on the basis of insufficient evidence, and that
prosecuting the defendant under an amended complaint does not violate double jeopardy).