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This opinion will be unpublished and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
A16-1894

State of Minnesota,
Respondent,

vs.

John Melvin Karnes,
Appellant.

Filed August 21, 2017
Affirmed
Smith, Tracy M., Judge

Mower County District Court
File No. 50-CR-16-1314

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

David Hoversten, Austin City Attorney, Michelle M. King, Assistant C ity Attorney,
Baudler, Maus, Forman & King, LLP, Austin, Minnesota (for respondent)

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

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant challenges his disorderly con duct conviction, arguing that (1) he was
convicted based on constitutionall y protected speech and expressive conduct in violation
of his First Amendment rights, (2) the district court plainly erred by failing to instruct the

2
jury that it could not convict ba sed on expressive conduct that is inextricably linked with
speech, and (3) the district court violated his right to counsel when it stated that he did not
have a right to counsel after he asserted his right to self-representation. We affirm.
FACTS
On June 21, 2016, P.C.D. was walking along Fourth Street SW in Austin,
Minnesota, with his children, J.C. and A.C. They began to cross the intersection at Second
Avenue SW. While they were in the intersection, they saw a vehicle that had been stopped
at a stop sign on Second Avenue accelerate toward them and then brake suddenly, narrowly
avoiding hitting them. The pedestrians moved out of the intersection and attempted to take
a picture of the vehicle’s license plate with their phones.
The driver, appellant John Karnes, pulle d over and exited his vehicle. Karnes
testified that he pulled over intending to apol ogize and explain that he had not seen the
pedestrians when he left the stop sign. J.C. testified that, as soon as Karnes pulled over,
Karnes appeared “furious” and asked why they took a picture of his car.
P.C.D. testified that Karnes said he was trying to hit them with his vehicle “because
we’re Mexicans and we shouldn’t be here.” P.C.D. also testified that Karnes said he was
going to contact Immigration and Customs En forcement (ICE) and said he wanted the
police to arrest the pedestrians for being in the United States illegally. Karnes testified that
he did mention ICE and suggest that the pe destrians were undocumented immigrants.
Karnes testified that he made those comm ents about immigrati on only because he was
upset, believing that P.C.D. might sue him for his driving conduct.

3
According to the testimony of P.C.D. and J.C., through out the June 21 encounter,
Karnes was shouting, screaming, jumping up and down, pacing, getting in P.C.D.’s face,
putting up his fist, and making ha nd gestures indicating that he was going to hit P.C.D.
D.W., a witness who lives near the intersecti on, was inside his ho use and heard Karnes
yelling. D.W. testified that he looked outside and saw Karnes “pacing back and forth” and
acting “pretty excitable,” so he decided to go outside because he “didn’t want [P.C.D.] to
get assaulted in front of his two kids.”
Karnes and J.C. both called the police. Karnes was charged with misdemeanor fifth-
degree assault.
A public defender was appointed, but Karnes later requested to waive counsel and
represent himself. At an August 31 hearing, the district court found Karnes’s waiver of
counsel knowing and voluntary and dismissed the public defender’s office from the matter.
Later in the same hearing, the state moved to amend the complain t to add misdemeanor
charges of disorderly conduct and careless driving. The district court allowed the addition
of those charges.
At a September 14 hearing on Karnes’s motion to dismiss for lack of probable cause,
the district court noted that it would “pr obably” appoint standby counsel to answer
questions Karnes might have during the trial.
1 The district court explained that standby
counsel would not try the case and that Karnes would still represent himself.

1 A court may appoint standby counsel, also called advisory counsel, to assist a defendant
who waives the right to counsel. See Minn. R. Crim. P. 5.04, subd. 2.

4
But at the pretrial hearing on September 16, the district court said it likely would
not be able to find standby counsel availabl e on such short notice. Karnes expressed
concern, stating that he thought “if [he] didn’t have an attorney present at court that day, at
least [he would] have an attorney to assist [him] with filing of different things.” The district
court responded, “No, you’ve waived counsel and fired your public defender, so you don’t
have a right to an attorney. I generally ap point standby counsel to answer any questions
during trial because I think it’s really compli cated.” Karnes replied, “[T]hat’s what I
mean.” Karnes explained that he was interest ed in “consult[ing] with an attorney” about
“different rules and different things like that.” Karnes stated that he believed he could try
the case himself without being represented by an attorney.
The district court ultimately found an av ailable attorney and appointed standby
counsel on September 21.
A jury trial was held from September 27 to 28. Karnes represented himself. The
jury found Karnes guilty of disorderly conduct and not gu ilty of assault and careless
driving.
Karnes appeals.
D E C I S I O N
I. The disorderly conduct conviction does not violate the First Amendment.
Karnes argues that the disorderly conduct conviction violates his First Amendment
rights because the conviction is based on his protected political speech about immigration
and on expressive conduct that was inextricably linked with that speech.

5
A person may be convicted of disorderly conduct if he or she “engages in offensive,
obscene, abusive, boisterous, or noisy conduct ,” while “knowing, or having reasonable
grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an
assault or breach of the peace.” Minn. Stat. § 609.72, subd. 1(3) (2014). Alternatively, a
person may be convicted of disorderly conduc t based on “offensive, obscene, or abusive
language tending reasonably to arouse alar m, anger, or resentment in others.” Id. If the
disorderly conduct conviction is based solely on language, the language used must be
“fighting words” not subject to First Amendment protection. In re Welfare of S.L.J., 263
N.W.2d 412, 419 (Minn. 1978). Fighting words are “words which by their very utterance
inflict injury or tend to incite an immediate breach of the peace.” State v. Crawley, 819
N.W.2d 94, 106 (Minn. 2012) (quotation omitted).
When reviewing whether a conviction of disorderly conduct violates the First
Amendment, we view the evidence in the light most favorable to the verdict but
independently determine, as a matter of law, whether the defendant’s language under the
circumstances falls outside of constitutional protection. In re W.A.H., 642 N.W.2d 41, 47
(Minn. App. 2002).
Acts of yelling and screaming, without re gard to their substantive content, are
treated as conduct rather th an language under the disord erly conduct statute. The
disorderly conduct st atute criminalizes conduct that is “boisterous” or “noisy,” but does
not mention boisterous or noisy language. Minn. Stat. § 609.72, subd. 1(3). In T.L.S., this
court concluded that there was probable cause to arrest the defendant for disorderly conduct
where she was “shrieking” and shouting in a high school, without using fighting words. In

6
re Welfare of T.L.S., 713 N.W.2d 877, 881 (Minn. App. 2006). We rejected the defendant’s
First Amendment argument, reasoning that the arrest was for boisterous and noisy conduct,
independent of the content of words shouted, and therefore it was immaterial whether the
words were fighting words. Id. We noted that “the diso rderly shouting of otherwise
protected speech or engaging in other ‘boisterous or noisy conduct’ may trigger
punishment under the statute without offending the First Amendment.” Id. (quoting Minn.
Stat. § 609.72, subd. 1(3)). In such a case, we reasoned, it is the “manner of delivery of
speech” that triggers punishment, not the constitutionally protected content of the speech.
Id.
The jury did not specify whether it based the guilty verdict on Karnes’s conduct or
his language. If the record su pports the conviction based on offensive, obscene, abusive,
boisterous, or noisy conduct, then we may affirm the conviction without considering
whether Karnes’s language constituted fighting words. See id. at 880 (noting that the S.L.J.
ruling on fighting words narrows only the “lan guage” portion of the disorderly conduct
statute and does not restrict convictions based on conduct).
The record contains sufficient evidence to support the conviction based on Karnes’s
conduct alone. P.C.D. testified that Karnes was getting “right in [P.C.D.’s] face,” gesturing
with his hands to indicate that he was “ going to beat [P.C.D.] up.” Officer Samuel
Schuweiler testified that, when he arrived on the scene, J.C. told him that Karnes was
pounding his fist into his hand in an intimidating gesture. J.C. testified that Karnes was
“putting up his fist” in P.C.D.’s face. P.C. D. testified that Karnes was “jumping and
screaming.” J.C. testified that Karnes was “moving back and forth” and “screaming,” “had

7
his fist up” and “would come close up to [P.C.D.].” D.W. testified that Karnes was so loud,
D.W. heard Karnes yelling from inside his house with the windows closed and felt that he
should go outside in case Karnes was going to hit P.C.D. Officer Aaron Juenger testified
that Karnes “was pretty excite d” and needed to be calmed do wn when police arrived. In
the squad video, Karnes is seen yelling, throwing his arms in the air, jumping, and pacing
while he explains his position to the officers. Karnes testified that he “get[s] animated.”
Karnes argues that the conviction cannot be based on his conduct because it was
expressive conduct inextricab ly intertwined with his prot ected anti-immigr ant speech.
Karnes analogizes his case to State v. Peter, in which this court reversed disorderly conduct
convictions where the defendants were charged with disorderly conduct for conducting an
animal-rights protest outside of a fur and leather store. 798 N.W.2d 552, 553, 556 (Minn.
App. 2011). In Peter, the defendants were arrested for walking back and forth in front of
the store, holding signs, chanting, and yelling about the fur industry and animal rights. Id.
at 553. This court concluded that the defendants’ conduct, including the manner and
delivery of their speech, was protected because it was “inextricably intertwined with” the
protected content of their speech. Id. at 556. This court distinguished Peter from T.L.S.,
reasoning that the shouting in T.L.S. was “non-expressive conduct unrelated to any
substantive message.” Id. In Peter, the acts of shouting and walking back and forth in
front of the fur store were essential to the protest; the purpose of the conduct was to convey
the anti-fur message in front of the store the defendants were criticizing. But in this case,
Karnes’s acts of yelling, pacing, jumping, getting in P.C.D.’s face, and making threatening

8
hand gestures were non-expre ssive conduct unrelated to conveying the anti-immigrant
message that emerged a few times during the personal dispute.
Karnes also compares his case to State v. Machholz , in which the supreme court
concluded that a harassment st atute was unconstitutionally ove rbroad as applied to the
defendant, who was charged with felony harassment for riding a horse through a crowd at
a gay-pride event while uttering anti-gay statements. 574 N.W.2d 415, 421 (Minn. 1998).
The supreme court concluded that, “[a]lthough in some instances it is possible to separate
protected speech from unprotected conduct,” in that case, the defendant’s conduct of riding
his horse through the crowd and knocki ng over a sign announcing the event was
inextricably linked to his anti-gay message. Id.
The inquiry into whether conduct is sufficiently expressive to merit First
Amendment protection looks at whether there was an intent to convey a particular message
and whether, under the circumstances, the likelihood was great that the message would be
understood by those who viewed it. Id. at 419-20. In determining that the conduct was
inextricably intertwined with the speech in Machholz, the supreme court noted that it was
“difficult to believe that [the defendant] would have been charged under this statute had he
simply ridden through the crowd without saying a word.” Id. at 421.
In contrast to Machholz, it is not difficult to believe that Karnes would have been
charged with disorderly conduct for shou ting loudly enough to be heard inside a
neighboring house, getting in P.C.D.’s face, pacing, jumping up and down, and pounding
his fist into his hand, even if he had not ma de remarks about immigrants or his suspicion
that the pedestrians were in th e country illega lly. Unlike in Peter and Machholz, the

9
evidence in this case does not suggest that Karnes intended to convey a particular political
message or engaged in conduct likely to be understood as standing for that message.
Rather, after narrowly avoiding a car accident, Karnes thought he might be sued, became
angry with the situation, and, while expressing that anger, made disparaging comments that
happened to be related to a matter of public concern. Karnes himself explained the situation
this way at trial. At trial, Karnes did not mention free-speech rights or an attempt to convey
a message. Rather, he dismi ssed his behavior as getting “an imated” because he thought
P.C.D. was going to “take advantage” and sue him. On this record, we cannot conclude
that Karnes was engaged in expressive conduct inextricably linked with speech warranting
First Amendment protection under Peter or Machholz.
The record supports the disorderly conduct conviction based on Karnes’s offensive,
obscene, abusive, boisterous, or noisy conduct. See Minn. Stat. § 609.72, subd. 1(3).
Because the conviction does not rely on language, we need not address whether Karnes’s
language constituted fighting words. See T.L.S., 713 N.W.2d at 880. We conclude that the
disorderly conduct conviction is not in violation of Karnes’s First Amendment rights.
II. The district court did not plainly err by not instructing the jury that it could
not convict based on expressive conduct inextricably intertwined with speech.
Karnes argues for the first time on appeal that the di strict court should have
instructed the jury that a conviction of disorderly conduct “may not be based on expressive
conduct that is inextr icably intertwined with constituti onally expressive speech.” We
review an error that was not objected to at trial under the plain-error standard. State v.
Strommen, 648 N.W.2d 681, 686 (Minn. 2002). Under the plain-error standard, the
defendant must show “(1) error; (2) that was plain; and (3) that affected substantial rights.”

10
Id. If those three elements are present, we may correct the error only if it “seriously affects
the fairness, integrity, or public re putation of judicial proceedings.” Id. (quotation
omitted). An error is plain if it is “clear or obvious at the time of appeal.” State v. Sanchez-
Sanchez, 879 N.W.2d 324, 330 (Minn. 2016) (quotation omitted). An error is clear or
obvious “when it contravenes a rule, case law, or a standard of conduct, or when it
disregards well-established and lo ngstanding legal principles.” State v. Brown , 792
N.W.2d 815, 823 (Minn. 2011).
District courts have “considerable latitude ” in the selection of language for jury
instructions. State v. Ihle , 640 N.W.2d 910, 916 (Minn. 20 02). A jury instruction is
erroneous if it materially misstates the law. Id.
Here, the district court’s jury instructi on on disorderly conduct stated, in relevant
part:
First, the Defendant engage d in offensive, obscene,
abusive, boisterous, or noisy conduct, or in offensive, obscene,
or abusive language tending reasonably to arouse alarm, anger,
or resentment in others.
If you find that the Defenda nt’s conduct consisted only
of offensive, obscene, or abusive language, you must also find
that the words used were fighting words.
“Fighting words” are word s that constitute personally
offensive epithets that when spoken to the ordinary person
under the particular circumstances of the case, are as a matter
of common knowledge inherently likely to provoke a violent
reaction or incite an immediate breach of the peace by those to
whom such words are addressed.
This instruction, drawn from 10 Minnesota Practice , CRIMJIG 13.121 (2014), does not
convey any limitation on convictions based on expressive conduct linked with protected
speech.

11
We need not decide whether the lack of instruction on expr essive conduct was
erroneous, because even if it was an error, it was not plain. First, we are not aware of any
case requiring the instruction Karnes now requests. See State v. Milton, 821 N.W.2d 789,
807 (Minn. 2012) (concluding that omission of instruction was not plain error because no
prior case had clearly required that instruction).
Furthermore, the facts of this case do not meaningfully resemble the facts of Peter
or Machholz. In each of those cases, the defendant s were engaged in deliberate protests
involving conduct directed at co nveying a particular message. See Peter, 798 N.W.2d at
556 (involving a planned animal-rights protest); Machholz, 574 N.W.2d at 420 (involving
anti-gay protest at a gay-pride event). In cont rast, here, Karnes explained at trial that his
“animated” behavior and his comments about im migration were merely the results of his
anger at the thought that P.C.D. might sue him. Karnes’s conduct was neither intended to
convey a particular message nor reasonably lik ely to convey that message to people who
saw it. See Machholz, 574 N.W.2d at 419-20. On these facts, the lack of a jury instruction
on expressive conduct does not contravene case law or established legal principles within
the meaning of the plain-error standard. Brown, 792 N.W.2d at 823.
Finally, neither party presented argumen t about free-speech rights at trial, 2 and
Karnes offered no evidence that he intended to convey a particular message through his

2 The language on fighting words was included in the jury instruction without discussion.
A comment to the jury-instruction guide states that the district court “must include” the
fighting-words portion in all disorderly conduct cases where the defendant’s conduct
consists of words alone, and “should” include it if the defendant is accused of both physical
acts and words. 10 Minnesota Practice, CRIMJIG 13.121 cmt.

12
conduct. Given the lack of case law requiri ng an instruction on expressive conduct, the
lack of discussion about free speech at trial, and the dissimilarity of this case from the
protest cases on which Karnes now relies, we conclude that the need for an instruction on
expressive conduct, if any, is not clear or obvious in this case. Id. Therefore, the lack of
such an instruction is not a plain error. See id.; Strommen, 648 N.W.2d at 686.
III. The district court did not viol ate Karnes’s right to counsel.
Karnes argues that the district court violat ed his right to counsel when it stated at
the September 16 pretrial hearing, “[Y]ou’ ve waived counsel a nd fired your public
defender, so you don’t have a right to an attorney.” Karnes asserts that he had a “qualified
right” to an attorney at that time and that the district court should have engaged in a
balancing test to determine whether Karnes sh ould be permitted to relinquish his right to
self-representation and reassert his right to counsel.
After asserting the right to self-representation, a defendant does not have an absolute
right to relinquish self-representation and reassert the right to counsel. State v. Richards,
552 N.W.2d 197, 206 (Minn. 1996). Rather, a court has discretion to deny a defendant’s
request to relinquish his right to self-represen tation and have an atto rney take over based
on the consideration of factors such as th e progress of the trial, the readiness of standby
counsel to proceed, the possible disruption of the proceedings, the reasonableness of the
defendant’s request, and any extraordinary circumstances. See id. at 206-07. We review
a district court’s denial of a defendant’s request to relinquish his right to self-representation
for an abuse of discretion. Id. at 206.

13
The district court did not abuse its di scretion by not consider ing whether Karnes
should be allowed to relinquish his right to self-representation because Karnes never asked
to relinquish self-representation. The distri ct court made the statement at issue while
discussing the role of standby counsel. Karnes expressed concern when the district court
said it might not appoint standby counsel, stating that he had expected that, even if he
represented himself at trial, an attorney would be available be fore trial to assist him with
matters such as filing. The district court responded, “No, you’ve waived counsel and fired
your public defender, so you don’t have a right to an attorney. I generally appoint standby
counsel to answer any questio ns during trial because I thin k it’s really complicated.”
Karnes responded, “[T]hat’s what I mean.” Karnes explained that he intended to represent
himself, but that he wanted the opportunity to consult with an attorney before trial to “give
[him] some pointers” on “what to expect.” Th e district court explained that the role of
standby counsel is to help a pr o-se defendant with questions th at arise during trial, not to
help with pretrial filing or research. Karnes accepted this and reiterated that he was “acting
pro se” and did not need an attorney to try the case.
Although the September 16 conversation rev eals some confusion about the role of
standby counsel, Karnes neve r relinquished his right to self-representation and never
attempted to reassert his right to appointed counsel. Therefore, even if the district court’s
statement that Karnes had no right to coun sel was not entirely accurate because, under
certain circumstances, the district court may have had discretion to consider appointing
counsel if Karnes had requested it, any error was harmless because Karnes never asked to
be represented by counsel after he asserted his right to self-representation.

14
Karnes also argues that the district court should have sought a renewal of his waiver
of counsel after the state amended the complaint to add two charges during the hearing on
Karnes’s request to represent himself. Generally, a defendant who has knowingly,
intelligently, and voluntarily wa ived the right to counsel ne ed not renew the waiver of
counsel at subsequent proceedings in the same matter. State v. Rhoads, 813 N.W.2d 880,
887 (Minn. 2012). However, a “substantial change in circumstances” after the initial
waiver of counsel might necessitate renewal of the waiver. Id. For example, a renewal of
a waiver of counsel is required if, after the waiver, the state amends the charges in a way
that doubles the maximum possible punishment. Id. at 888. Whether a district court was
required to obtain a renewed waiver of counsel is a question of law that we review de novo.
See id. at 887.
In this case, the additional charges did not double—or even increase—the possible
punishment. Karnes was initia lly charged with misdemeanor fifth-degree assault, which
carries a maximum penalty of 90 days in jail, a $1,000 fine, or both. See Minn. Stat.
§ 609.224, subd. 1(1) (2014) (defining misdemeanor fifth-degree assault); see also Minn.
Stat. § 609.03(3) (2014) (setting the maximu m penalty for a misdemeanor unless stated
otherwise). The charges added later are both misdemeanors having the same maximum
penalty as the first charge. Minn. Stat. §§ 609.72, subd. 1, 169.13, subd. 2 (2014) (defining
the offenses as misdemeanors); id. § 609.03(3) (setting pena lty for misdemeanors).
Generally, if an offender is convicted of multiple current offenses, the sentences are to be
served concurrently. See Minn. Sent. Guidelines 2.F (2 015). Because the additional
charges did not increase the ma ximum sentence, this case is not factually analogous to

15
Rhoads. 813 N.W.2d at 887. An d the added charges did not otherwise “substantially
change” the circumstances, because they arose out of the same incident and were based on
the same facts that were alleged in the original complaint. See id. at 887-88. Therefore, a
renewal of the waiver of counsel was not required.
Affirmed.