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This opinion will be unpublished and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
A16-1097

State of Minnesota,
Respondent,

vs.

Douglas Frederick Gratz,
Appellant.

Filed April 17, 2017
Affirmed
Johnson, Judge

Watonwan County District Court
File No. 83-CR-16-47

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Stephen Lindee, Watonwan County Attorney, St. James, Minnesota (for respondent)

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

Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Watonwan County jury found Douglas Frederick Gratz guilty of stalking, making
threats of violence , and obstructing legal process. He argues that the evidence is
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insufficient to support his conviction of stalking, that the district court erred by not
instructing the jury on the defense of voluntary intoxication, and that the prosecutor
committed misconduct in closing argument. We affirm.
FACTS
On January 25, 2016, Gratz visited the offices of Watonwan County Human
Services while visibly intoxicated. When he arrived in the lobby, he asked to speak with
his financial-services worker, M.L. When informed that M.L. was not in her office, Gratz
became agitated and verbally abusive. A few minutes later, when M.L . appeared behind
the counter, Gratz pounded on the glass above the counter with a closed fist and asked
whether the glass was bulletproof. He was combative and belligerent and accused M.L. of
stealing his money. He said to her, among other things, “go f**k yourself.”
The receptionist called law enforcement. Gratz made additional vulgar statements
and left the building. Two law-enforcement officers found him approximately five to ten
minutes later. While they drove him to the law enforcement center , Gratz said several
times that he would kill one of the officers.
Two days later, the state charged Gratz with five offenses: (1) felony stalking, in
violation of Minn. Stat. § 609.749, subds. 2(1), 4(b) (2014), based on his conduct toward
the employees of Watonwan County Human Services ; (2) making a threat of violence, in
violation of Minn. Stat. § 609.713, subd. 1 (Supp. 2015), based on his conduct toward the
employees of Watonwan County Human Services ; (3) making a threat of violence, in
violation of Minn. Stat. § 609.713, subd. 1, based on his conduct toward a police officer in
the squad car ; (4) gross-misdemeanor assault in the fourth degree , in vi olation of Minn.
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Stat. § 609.2231, subd. 1 (2014), based on his conduct toward a police officer while being
arrested; and (5) gross-misdemeanor obstructing legal process, in violation of Minn. Stat.
§ 609.50, subd. 1(2) (2014), based on his conduct toward a police officer in the squad car.
Before trial, the state voluntarily dismissed count 4.
The case was tried in one day in March 2016. The state called six witnesses: four
employees of Watonwan County Human Services, who testified about Gratz’s conduct and
statements while in the lobby of their offices, and two law -enforcement officers, who
testified about Gratz’s conduct and statements while in the squad car. Gratz did not testify.
The jury found Gratz guilty on all four counts. Gratz filed a post-trial motion for judgment
of acquittal on counts 1 and 2, which the district court denied.
The district court imposed concurrent sentences of 45 months of imprisonment on
count 1, 30 months of imprisonment on count 3, and 365 days of jail time on count 5. The
district court did not impose a sentence on count 2. Gratz appeals.
D E C I S I O N
I. Sufficiency of the Evidence of Stalking
Gratz first argues that the evidence is insufficient to support his conviction on count
1, in which the state alleged that he engaged in stalking at the offices of Watonwan County
Human Services.1

1Gratz also argues that the evidence is insufficient to support his conviction on count
2, in which the state alleged that he made threats of vi olence against employees of
Watonwan County Human Services. But the district court did not impos e a sentence on
count 2. A defendant may pursue a direct appeal “from any adverse final judgment.” Minn.
R. Crim. P. 28.02, subd. 2(1). “A final judgment within the meaning of these rules occurs
when the district court enters a judgment of conviction and imposes or stays a sentence.”
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Stalking is defined by statute to mean “engag[ing] in conduct which the actor knows
or has reason to know would cause the victim under the circumstances to feel frightened,
threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of
the victim.” Minn. Stat. § 609.749, subd. 1 (2014). There are seven different ways a person
may commit stalking. Minn. Stat. § 609.749, subd. 2 (2014). In this case, the state alleged
that Gratz committed stalking by “directly or indirectly . . . manifest[ing] a purpose or
intent to injure the person, property, or rights of another by the commission of an unlawful
act.” Minn. Stat. § 609.749, subd. 2(1). The unlawful act that is the predicate offense must
be unlawful for reasons that are independent of the stalking offense. See State v. Pegelow,
809 N.W.2d 245, 251 (Minn. App. 2012) (applying prior version of harassment and
stalking statute, Minn. Stat. § 609.749, subds. 1-2(a) (2008)).
When reviewing whether there is sufficient evidence to support a conviction, this
court undertakes a “painstaking analysis of the record to determine whether the evidence,
when viewed in the light most favorable to the conviction, was sufficient” to suppor t the

Id. “The record of a judgment of conviction must contain,” among other things, the
“sentence.” Minn. R. Crim. P. 27.03, subd. 8. Accordingly, if a defendant is found guilty
of an offense but the district court has neither imposed a sentence nor stayed imposition of
a sentence, the defendant has not been convicted of that offense and, accordingly, does not
have a right to pursue a direct appeal with respect to that offense. See State v. Hoelzel, 639
N.W.2d 605, 609-10 (Minn. 2002) (holding that verdict of guilt, without recorded judgment
of conviction, is not final, appealable judgment); State v. Ashland, 287 N.W.2d 649, 650
(Minn. 1979) (declining to address sufficiency -of-evidence argument with respect to
counts on which defendant was found guilty but not formally adjudicated or sentenced).
Thus, we will not consider Gratz’s sufficiency-of-the-evidence argument as it relates to
count 2. If Gratz were to be sentenced on count 2 in the future , he would have an
opportunity at that time to pursue a direct appeal from the adverse final judgment with
respect to that offense. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
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conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We
assume that “the jury believed the state’s witnesses and disbelieved any evidence to the
contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We
“will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at
100.
The parties agree that the conviction on count 1 rests on circumstantial evidence and
that we should apply the standard of review that is appropriate for circumstantial evidence.
When reviewing a conviction based on circumstantial evidence, this court applies a two -
step analysis to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83,
88 (Minn. 2014). First, we “identify the circumstances proved.” Id. (citing State v.
Andersen, 784 N.W.2d 320, 329 (Minn. 2010)). “In identifying the circumstances proved,
we assume that the jury resolved any factual disputes in a manner that is consistent with
the jury’s verdict.” Id. (citing Andersen, 784 N.W.2d at 329). Second, we “examine
independently the reasonableness of the inferences that might be drawn from the
circumstances proved” and “determine whether the circumstances proved are consistent
with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
(quotations omitted). We must consider th e evidence as a whole and not examine each
piece of evidence in isolation. State v. Taylor, 650 N.W.2d 190, 201 (Minn. 2002).
At the first step of the analysis, we must identify the circumstances the state proved
that might be relevant to whether Gratz manifested a direct or indirect intent to injure M.L.
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by the commission of an unlawful act. The following circumstances are relevant: Gratz
pounded on the glass separating him from M.L. and asked whether the glass was
bulletproof. Gratz accused M.L. of stealing his money. Gratz was combative, aggressive,
and belligerent. Gratz told M.L. she “could go f**k [her]self.” The persons behind the
glass testified that it was a “very serious ” situation and that they felt “scared” and
“concerned for [the] safety” of other persons in the area.
At the second step of the analysis, we “examine independently the reasonableness
of the inferences that might be drawn from the circumstances proved” and “determine
whether the circumstances proved are consistent with guilt.” Moore, 846 N.W.2d at 88
(quotations omitted). The state contends t hat the circumstances proved support an
inference that Gratz manifested a purpose or intent to injure M.L. by committing an assault.
The term “assault” is defined by statute to mean “(1) an act done with intent to cause fear
in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt
to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2014). We agree with
the state that a reasonable inference from the circumstances proved is that Gratz intended
either to cause fear in others of immediate bodily harm or death or to inflict or attempt to
inflict bodily harm on another.
We must also determine whether the circumstances proved are “ inconsistent with
any rational hypothesis except that of guilt” on the charge of stalking. Moore, 846 N.W.2d
at 88 (quotation omitted). Gratz contends that the circumstances proved are consistent with
a joke, a comment made solely due to intoxication, a comment made in a state of transitory
anger, or a comment that was meant to ass ure the persons behind the glass that they were
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safe. Each of these hypotheses is inconsistent with the circumstances proved, which
includes the fact that the persons behind the glass were fearful. Their fear is inconsistent
with a joke, a harmless drunk en comment, or a comment that is meant to assure them of
their safety. Accordingly, the circumstances proved are inconsistent with a rational
hypothesis that Gratz is not guilty.
Thus, the evidence is sufficient to support Gratz’s conviction of stalking.
II. Voluntary-Intoxication Instruction
Gratz next argues that the district court erred by denying his request for a jury
instruction on the defense of voluntary intoxication with respect to the stalking charge.
A defendant must satisfy three requirements in order to be entitled to a jury
instruction on voluntary intoxication: “(1) the defendant must be charged with a specific -
intent crime; (2) there must be evidence sufficient to support a jury finding, by a
preponderance of the evidence, that the defendant was intoxicated; and (3) the defendant
must offer intoxication as an explanation for his actions.” State v. Torres , 632 N.W.2d
609, 616 (Minn. 2001) ; see also State v. Wilson, 830 N.W.2d 849, 854 -57 (Minn. 2013).
We apply an abuse-of-discretion standard of review to a district court’s denial of a request
for a voluntary-intoxication instruction. Torres, 632 N.W.2d at 616.
Gratz initially requested a voluntary-intoxication jury instruction at the outset of
trial. The district court reserved ruling until the completion of the evidentiary phase of
trial. At the instructions conference, Gratz renewed his request for the instruction. The
district court denied the request on the ground that Gratz had not satisfie d the third
requirement because he had not “offered intoxication as an explanation for his actions.”
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Gratz contends that the district court erred in its analysis of the third requirement.
In response, the state argues that Gratz was not entitled to the instruction because he could
not satisfy either the first or the third requirement. With respect to the first requirement,
the state contends that stalking is not a specific-intent crime. The statute on which the state
relies provides as follows:
No proof of specific intent required. In a prosecution
under this section, the state is not required to prove that the
actor intended to cause the victim to feel frightened,
threatened, oppressed, persecuted, or intimidated, or except as
otherwise provided in subdivision 3, paragraph (a), clause (4),
or paragraph (b), that the actor intended to cause any other
result.

Minn. Stat. § 609 .749, subd. 1a (2014). Because the exceptions in this paragraph are
inapplicable, the state is correct that stalking is not a specific-intent crime.
At a glance, t he quoted statute might appear to be in conflict with a case cited by
Gratz. In State v. Orsello , 554 N.W.2d 70 (Minn. 1996) , the supreme court stated “that
Minn. Stat. § 609.749 (1993), which defines the crime of stalking, requires specific intent.”
Id. at 76. But that statement in Orsello no longer is true because the legislature amended
section 609.749 in 1997 by adding the statutory text that is quoted above. 1997 Mi nn.
Laws ch. 96, § 7, at 700. Accordingly, stalking now is not a specific-intent crime, which
means that Gratz did not satisfy the first requirement of the Torres test. In light of that
conclusion, we need not consider whether Gratz satisfied the third requirement.
Thus, the district court did not err by denying Gratz’s request for a jury instruction
on the defense of voluntary intoxication.
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III. Prosecutorial Misconduct
Gratz last argues that the prosecutor committed misconduct by misstat ing the law
in his closing argument. Gratz ’s argument is based on the following excerpt, which we
have highlighted in the same manner in which Gratz highlighted it in his brief:
Now, I want to mention that in this threats of violence — and
actually in the stalking in struction — there are . . . . It’s kind
of a subdivision where they talk about the elements to second
degree assault, third degree assault, and second degree murder.
That’s essentially to help you understand what the crime of
violence is that he’s threatening. None of those elements need
to be proven as far as the, kind of the — or the underlying type
of crime. We are only talking about the threatening language,
and those are more of just a guideline for you to follow .
(Emphasis added.)

Gratz did not object to the prosecutor’s alleged misstatement when it occurred.
Accordingly, this court applies a modified plain-error test. State v. Carridine, 812 N.W.2d
130, 146 (Minn. 2012). To prevail, Gratz first must establish that there is an error and that
the error is plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If Gratz were to
satisfy that burden, the state would need to show that the error did not affect Gratz’s
substantial rights, i.e., that “there is no reasonable likelihood that the absen ce of the
misconduct in question would have had a significant effect on the verdict of the jury.” Id.
(quotations omitted). If we conclude that any requirement of th e plain-error test is not
satisfied, we need not consider the other requirements. State v. Brown, 815 N.W.2d 609,
620 (Minn. 2012). We will reverse a conviction on the grounds of prosecutorial
misconduct only if the misconduct, “when considered in light of the whole trial, impaired
the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
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Gratz contends that the prosecutor misstated the law because the state is required to
prove all elements of an offense beyond a reasonable doubt , but the prosecutor
characterized the jury instructions as mere guidelines . Gratz further contends that, with
respect to the stalking charge in count 1, the state must prove that Gratz manifested an
intention to commit the underlying act of second -degree assault and, with respect to the
threat-of-violence charge in count 3, the sta te must prove that Gratz threatened to commit
an act of violence. Gratz contends that the prosecutor’s misstatement might have caused
the jury to believe that the state did not need to prove the predicate offenses.
Gratz cannot establish that the prosecu tor engaged in misconduct that rises to the
level of plain error. The prosecutor organized his closing arguments by talking about the
four charges in numerical order and the elements of each charge in numerical order. The
excerpt quoted above is from the prosecutor’s argument concerning the first element of
count 2, which is the count for which there is no conviction. See supra at 4 n.1. The
prosecutor did not make a similar statement with respect to either count 1 or count 3. Even
so, the highlighted portion of the argument refers to the predicate offense, not the charged
offense. The prosecutor did make a passing reference to the stalking charge in count 1, but
the reference was very brief. When considered as a whole, the pr osecutor’s closing
argument did not plainly misstate the law in a way that might cause a jury to misunderstand
the elements of count 1 or count 3.
Thus, the prosecutor did not plainly commit misconduct in his closing argument.
Affirmed.