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This opinion will be unpublished and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
A16-1858

State of Minnesota,
Respondent,

vs.

Elton James Curtis,
Appellant.

Filed November 20, 2017
Affirmed
Ross, Judge

Cass County District Court
File No. 11-CR-14-2002

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Barbara J. Harrington, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna M. Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
While Elton Curtis faced trial for repeatedly sexually abusing his daughter, the
district court judge viewed in camera confidential records about the child to determine if
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they contained any information relevant to Curtis’s defense. The judge asked Curtis
whether he thought her reading the records presented a potential conflict of interest
precluding her from serving as the fact-finder at Curtis’s bench trial. Curtis maintained that
no conflict existed. He was convicted of multiple counts of criminal sexual conduct and
now argues that the judge was required to recuse herself. Because rule 26.03 of the Rules
of Criminal Procedure did not require the district court judge to sua sponte recuse herself,
we affirm.
FACTS
The state charged Elton Curtis with six counts of criminal sexual conduct after
Curtis’s teenage daughter, M.M., was hospitalized for suicidal behavior and reported that
Curtis had sexually assaulted her when she was seven years old. Many of M.M.’s county,
facility, and school records were confidential. Curtis filed a “Paradee motion,” asking the
district court to examine the confidential records in camera and disclose any that were
relevant to Curtis’s defense. See State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987)
(ruling that criminal-sexual-conduct defendants may seek in-camera examination of
confidential records and provide any relevant records to the parties). The district court
granted Curtis’s motion and examined the confidential records, turning some, but not all,
over to the parties.
Curtis informed the court that he intended to waive his right to a jury and proceed
to a bench trial. The district court judge commented about her in-camera examination of
M.M.’s records: “It does raise the question whether or not a Paradee review raises a
conflict for me to be the fact finder. I don’t think it’s a direct conflict, but it’s at least a
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potential one and is worth considering before we set the trial date.” Curtis responded that
the district court’s access to the confidential information did “[not] preclude the Court from
hearing a court trial.” The judge agreed that she was not precluded.
Curtis expressly waived his right to a jury trial the following month . The district
court confirmed that Curtis understood that waiving his right to a jury trial meant that the
judge alone would find whether he was guilty. The district court reconfirmed that Curtis
understood that the judge had seen the confidential records, and Curtis assured the court
that he had had ample opportunity to discuss with his attorney the advantages and
disadvantages of waiving his right to a jury trial.
The case proceeded to a bench trial, during which M.M. testified that Curtis forced
her to engage in vaginal or oral sex with him on three occasions when she was seven years
old. The state introduced a therapist’s letter revealing that Curtis had admitted during his
hospitalization for suicidal behavior that he had twice fondled M.M.’s breasts and vagina
when she was three years old. The district court found Curtis guilty of two counts of
criminal sexual conduct in the first degree and two counts in the second degree. It sentenced
him to 234 months in prison. Curtis appeals.
D E C I S I O N
Curtis challenges his conviction and seeks a new trial on the theory that the district
court judge had a duty to recuse herself after she saw M.M.’s confidential records. He
argues this for the first time on appeal, so we review the judge’s allegedly erroneous failure
to recuse only for plain error. See State v. Schlienz, 774 N.W.2d 361, 365 (Minn. 2009). In
a plain-error review, the appellant must establish that an error occurred, that the error was
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plain, and that the error affected his substantial rights. State v. Griller, 583 N.W.2d 736,
740 (Minn. 1998). If he meets each of these elements, we will decide whether reversal is
necessary to ensure the fairness and integrity of the judicial proceedings. Id. Curtis’s
challenge fails on the first element because he does not establish that his trial was infected
with any error.
The error here, Curtis contends, was the district court judge’s failure to remedy her
supposed partiality by recusing herself. A judge must disqualify herself from any
proceeding in which her “impartiality might reasonably be questioned.” Minn. C ode Jud.
Conduct Rule 2.11(A); Minn. R. Crim. P. 26.03, subd. 14(3) (prohibiting a judge from
presiding over a trial “if [that judge is] disqualified under the Code of Judicial Conduct”).
We review de novo whether a judge has violated the Code of Judicial Conduct. State v.
Dorsey, 701 N.W.2d 238, 246 (Minn. 2005). Curtis argues that procedural rule 26.03,
which incorporates judicial code 2.11(A), required the judge to recuse herself after she
conducted her records examination in response to Curtis’s Paradee motion. The argument
lacks force.
We begin on the presumption of judicial impartiality. That is, we presume, among
other things, that the district court judge “will set aside collateral knowledge and approach
cases with a neutral and objective disposition.” Dorsey, 701 N.W.2d at 248–49 (quotations
omitted). This presumption must exist because judges who administer bench trials often
examine and then reject evidence on the ground that it is unduly prejudicial to the
defendant. The presumption shoulders Curtis with the burden to point to evidence of the
judge’s favoritism or antagonism. See State v. Burrell, 743 N.W.2d 596, 603 (Minn. 2008).
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The judge’s exposure to records that she deemed irrelevant and in admissible—records
fairly described as collateral knowledge—therefore cannot by itself require her sua sponte
recusal. And as a practical matter we add that, if this were not so, any criminal-sexual-
misconduct defendant could effectively disqualify the presiding judge on the eve of trial
simply by bringing a Paradee motion and waiving his right to a jury. Curtis must point to
something more than the judge’s exposure to irrelevant records that she observed during
her Paradee records examination.
Curtis argues that the district court’s initial comments regarding her Paradee review
rebut the presumption of her impartiality. We reject the argument because we believe that
Curtis misreads the import of the judge’s comments. The context informs us that the judge
was contemplating the procedural and ethical rules when she raised the potential concern
about her presiding at a bench trial after having seen the confidential information not
disclosed to either party. If, as Curtis implies, the judge was suggesting that she could not
serve as an impartial fact finder because the information biased her against him, the judge
would have been bound to disqualify herself sua sponte under those rules. But the judge
did not disqualify herself, and she emphasized instead that this is not a case requiring her
“automatic preclusion.” In the judge’s own words, she was merely “rais[ing] the question”
of preclusion. In context, the comments inform us that the district court intended only to
invite the parties to address the legal question of recusal in this procedural setting. And the
record reveals that, at this invitation, both counsel assured the district court with analogies
to similar procedural situations that her recusal was unnecessary. We see no legal error.
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We are not persuaded otherwise by Curtis’s urging that the district court judge
“repeatedly” stated her supposed concerns about her alleged impartiality. Curtis cites to
one other portion of the record, the discussion when Curtis waived his right to a jury trial.
Again context defeats Curtis’s argument. The district court raised the matter this second
time only to test the validity of Curtis’s jury -trial waiver, not to declare that a bench trial
would be tainted by judicial partiality. A defendant’s waiver of his right to a jury trial must
be knowing, intelligent, and voluntary. State v. Kuhlmann, 806 N.W.2d 844, 848 (Minn.
2011). A defendant may waive his right to a jury only after being advised of the right and
after having had an opportunity to consult with counsel. Minn. R. Crim. P. 26.01, subd.
1(2)(a) (2016). In the portion of the record cited by Curtis, the district court sought to
confirm that Curtis had ample opportunity to consult with counsel about a bench trial
particularly in light of the district court’s viewing of confidential records. The district court
was simply confirm ing that Curtis’s waiver of his right to a jury trial was knowing,
intelligent, and voluntary.
We are satisfied that the district court judge did not call her impartiality into question
or exhibit any favoritism or antagonism toward either party . Curtis has failed to identify
any error by the district court’s presiding over his bench trial.
Affirmed.