A17-0191

This opinion will be unpublished and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
A17-0187
A17-0191

State of Minnesota,
Respondent,

vs.

Anthony Paul Hernandez,
Appellant.

Filed September 24, 2018
Affirmed
Jesson, Judge

Hennepin County District Court
File Nos. 27-CR-14-15983, 27-CR-14-16668

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Lof tus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Kirk, Judge ; and Smith, John,
Judge.*
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Anthony Paul Hernandez challenges his convictions of criminal-sexual
conduct committed against two sisters, arguing that the district court improperly joined the

2
victims’ cases. He also argues that the district court abused its discretion when it prevented
him from introducing evidence sug gesting that the victims may h ave experienced past
sexual abuse and denied a full Schwartz hearing to investigate potential juror misconduct.
We affirm.
FACTS
In 2013, appellant Anthony Paul Hernandez reconnected with a wo man he had
briefly dated earlier. The woman decided to move back to Minnesota from Tennessee with
two of her daughters, I.A. and K.Z. After returning, she and H ernandez moved into a
duplex together where the girls s hared a basement bedroom while Hernandez and the
woman slept in the living room on a pull-out sofa.
The girls’ mother worked full-time and often started her shifts early in the morning.
At the time, I.A. and K.Z. were 9 and 11 years old, respectivel y, and given their mother’s
irregular work schedule, they needed someone to get them ready for school and generally
care for their wellbeing when the ir mother was away at work. B ecause he worked only
part time, Hernandez often filled this role. For instance, if the girls overslept, he would
walk downstairs into their room t o wake them. He also helped t he girls get ready in the
mornings and sent them off on their walk to school.
In June 2014, a school social w orker received reports that Hernandez was touching
I.A. inappropriately. The social worker pulled I.A. out of cla ss to talk, and I.A. revealed
that Hernandez would go into her room at night, have K.Z. leave and go upstairs, close the
bedroom door, and then unbutton her top and touch I.A.’s breasts and chest. I.A. also said
that Hernandez touched her “private parts” under her clothes an d her buttocks over her

3
clothes. And she said that Hernandez sometimes made I.A. sit on his lap while he touched
her. The social worker called child protective services.
I.A. sat down for a forensic interview to investigate the alle gations. During the
interview, I.A. stated that Hernandez would sometimes touch her “boobs” and “butt” and
“put his private on [her] boob.” She also described that when this happened, her “boob”
would get “wet” and then Hernandez would wipe it off with a bla nket from her bed. I.A.
told the interviewer that Hernandez kissed her like “a grown up.”
After hearing this information, the state arrested Hernandez an d charged him with
first- and second-degree criminal sexual conduct. As part of the investigation, I.A.’s sister,
K.Z., was also interviewed. Dur ing K.Z.’s interview, she also described being sexually
abused by Hernandez, recalling three times when Hernandez pulle d her on top of him in
the living room and touched her “private parts.” After these r evelations, the state filed a
separate complaint against Hernandez for first-degree criminal sexual conduct against K.Z.
Before the cases went to trial, the state requested that the two cases be joined. The
district court granted the request over a defense objection, finding that the offenses against
both I.A. and K.Z. arose from a single behavioral incident. Be fore the trial began,
Hernandez filed a motion to admit evidence suggesting the victims had previously alleged
they were sexually abused before moving to Minnesota. Hernande z argued that without
admitting this information, the j ury would likely think that th e girls’ knowledge about
sexual matters came from him, when in fact, it could have origi nated elsewhere. The
district court denied Hernandez’s motion under Minnesota’s rape -shield law, which

4
generally prohibits introducing evidence of a victim’s sexual h istory. See Minn. Stat.
§ 609.347, subd. 3 (2016); Minn. R. Evid. 412.
The cases proceeded to a two-week jury trial. On the second da y of jury
deliberations, the district court received a note stating that the jurors had “a significant
majority vote but are unable to r each a unanimous opinion.” Th e note asked if the jury
could return a majority vote, but after discussion with the parties, the court responded that
the jury’s verdict needed to be unanimous. At noon that day an other jury note emerged
stating that the vote was 11-1 with “no reasonable possibility of resolution on a decision.”
As the court discussed this second note with the parties, a thi rd note appeared,
stating that the jury had reached a verdict. The jury found He rnandez guilty of first-and
second-degree criminal sexual c onduct against I.A. and second-d egree criminal sexual
conduct against K.Z. After the verdict was read, each juror was asked if this was his or her
verdict. Each juror responded, “Yes.”
About a month later, one of the jurors, D.G., met with the district court judge about
the case. D.G. said that at one point during deliberations, another juror told him, “I’m not
coming back tomorrow, even if I have to go to jail.” D.G. felt threatened by the comment,
although he admitted he did not ask what the comment meant and there was no physical
violence or an overt physical threat directed towards him. The district court informed the
parties of its meeting and D.G.’s comments.

5
Hernandez appealed both of his convictions, and the appeals we re consolidated and
stayed pending a Schwartz hearing1 to investigate D.G.’s comments. The district court
granted what it described as a “limited” Schwartz hearing at which only D.G. would be
questioned. At the hearing, D.G. reiterated what the other juror said to him but stated that
he was not directly threatened. The court determined there had not been a prima facie
showing of misconduct and no other jurors would be called for questioning.
The stay was dissolved, but the appeal was stayed again for pos t-conviction
proceedings after D.G. contacted the Innocence Project of Minne sota. D.G. told the
Innocence Project that a female juror on the panel “took over deliberations” and that he felt
threatened by comments made by another juror “who wanted the process to be over.” The
Innocence Project compiled these comments into an affidavit and submitted it to the district
court. After the affidavit was submitted, Hernandez filed a po st-conviction motion to
reopen the Schwartz hearing. The district court deni ed the motion, and the appeal was
reinstated.
D E C I S I O N
Hernandez raises three issues on appeal: (I) the district court improperly joined the
victims’ offenses for trial; (II) the district court abused its discretion when it prevented him
from introducing evidence suggesting that the victims were sexually abused before moving
to Minnesota; and (III) the distr ict court abused its discretio n by denying a full Schwartz
hearing to investigate potential juror misconduct. We address each issue in turn.

1 The purpose of a Schwartz hearing is to investigate allegations of juror misconduct. State
v. Martin, 614 N.W.2d 214, 226 (Minn. 2000).

6
I. The district court did not err by joining Hernandez’s cases.

Before we reach the main issue concerning the joinder of Hernandez’s offenses, we
must address the threshold issue of what standard appellate courts apply when reviewing a
district court’s decision to join cases. Hernandez argues that an abuse-of-discretion
standard applies, whereas the state argues for de novo review.
In State v. Jackson, the supreme court reviewed a motion to sever offenses using the
abuse-of-discretion standard. 770 N.W.2d 470, 485 (Minn. 2009) . But three years prior,
in State v. Kendell, the supreme court held that “de novo review is the appropriate standard
for reviewing a district court’s denial of a motion for severance of offenses.” 723 N.W.2d
597, 607 (Minn. 2006). We discern that Kendell’s application of the de novo standard was
not overruled by Jackson. The supreme court in Kendell noted that until that time, it had
“not squarely addressed” what th e appropriate standard of revie w should be for a motion
to sever offenses. Id. The supreme court examined and traced caselaw involving same or
similar inquiries and then, synthesizing this history and analy sis, it explicitly held that de
novo is the appropriate standard of review. By contrast, the s upreme court in Jackson,
when the standard of review was not at issue, did not engage in such a detailed examination
and instead employed an abuse-of-d iscretion standard by relying on a case predating
Kendell, but without acknowledging Kendell’s analysis expressly adopting the de novo
standard. Given the supreme court’s detailed inquiry and its clear adoption of the de novo
standard, we defer to the opinion and reasoning in Kendell.
We now turn to Hernandez’s first issue: whether the district co urt properly joined
the two offenses. If a defenda nt’s behavior constitutes more t han one criminal offense,

7
each offense may be joined into one overall criminal case. Minn. R. Crim. P. 17.03, subd.
1. To determine if offenses are related, we ask whether the of fenses are connected as a
“single behavioral incident.” State v. Ross, 732 N.W.2d 274, 278 (Minn. 2007) (quoting
State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999)). For purposes of joinder, the phrase
“single behavioral incident” is a term of art that precedent distills down to three factors:
 how close in time the offenses took place;

 how close in place and proxi mity the offenses took place;
and

 whether the conduct involved in each offense was
motivated by an effort to obtain a single criminal objective.

Profit, 591 N.W.2d at 458 . Determining whether separate offenses may be considered a
single behavioral incident depends on the unique facts of each offense. State v. Hawkins,
511 N.W.2d 9, 13 (Minn. 1994). We analyze below each of the above factors to determine
whether Hernandez’s two cases rel ating to I.A. and K.Z. are par t of a single behavioral
incident. After weighing the factors we further examine whether, if the district court erred
in joinder, Hernandez suffers prejudice.
Time factor
The first factor looks at how much time passed between offense s. Here, Hernandez
moved in with the girls in March 2014. He began sexually abusing them that same month
until June 2014, approximately three months later. This fact falls somewhere in the middle
of the time-factor spectrum. O n one end of the spectrum are ca ses where offenses are
linked by only a few hours or overnight, which supports a determination that they were the
same behavioral incident. See, e.g., State v. Spears , 560 N.W.2d 723, 727 (Minn. App.

8
1997), review denied (Minn. May 28, 1997) (stating that, for sentencing purposes, multiple
counts of criminal sexual conduct committed over 45 minutes were connected in time and
amounted to a single behavioral incident). On the other end are cases where offenses occur
over a period of months, or even years—leading courts to conclu de that the time factor
cautions against joinder. For example, in State v. Suhon, the defendant sexually abused his
adopted daughter for ten years—a time period we determined was too protracted to amount
to a single behavioral inciden t. 742 N.W.2d 16, 24 (Minn. App. 2007), review denied
(Minn. Feb. 19, 2008).
As noted, the single-behavioral-i ncident analysis depends on th e unique facts of
each offense. The facts in this case demonstrate that after He rnandez moved in with the
girls and their mother in March 2014, he engaged in a consisten t pattern of sexual abuse
over a three-month period. This is far removed from both the ten years of abuse in Suhon
which we determined was too long and cases where the offenses are linked by mere hours.
Based on the record and the particularized facts of Hernandez’s case, we conclude the time
factor is neutral as we weigh whether the offenses are part of a single behavioral incident.
Place and proximity factor
The next factor in the single-behavioral-incident analysis exa mines where, and how
close to each other, the offenses occurred. Hernandez abused both I.A. and K.Z. in the part
o f a d u p l e x h e s h a r e d w i t h t h e i r m o t h e r . I . A . s t a t e d t h a t H e r nandez abused her in the
basement bedroom she shared with K.Z. The abuse often occurred in the mornings when
her mother was at work and after K.Z. had gone upstairs. K.Z. revealed that Hernandez

9
abused her on multiple occasions when she was alone with him on the pullout couch in the
living room.
While a generalized location, such as a house, is not always en ough to weigh in
favor of this factor, see Suhon, 742 N.W.2d at 24,2 given the close nature of the duplex, we
agree with the district court that I.A.’s and K.Z.’s abuse occu rred within the same
geographic location. As a result, we conclude that the place-a nd-proximity factor weighs
in favor of a determination that the offenses were part of a single behavioral incident.
Single-criminal-objective factor
The last consideration is whether Hernandez’s conduct was motiv ated by an effort
to obtain a single criminal objective. Profit, 591 N.W.2d at 458. In nearly every case
applying sexual-abuse offenses to the single-behavioral-incident analysis, courts describe
the underlying motivation as satisfying the defendant’s perverse sexual desires. See, e.g.,
Spears, 560 N.W.2d at 727 (noting that defendant’s abduction and sexual assault of victim
was motivated by his “perverse sexual needs”); State v. Herberg , 324 N.W.2d 346, 349
(Minn. 1982) (determining that criminal sexual conduct and kidn apping offenses were
motivated by defendant’s desire to “satisfy his perverse sexual needs”); Suhon, 742 N.W.2d
at 24 (stating that defendant’s motivation in sexually abusing his adopted daughter was
based on his “perverse sexual desires”).

2 In Suhon, the separate offenses occurred within the same home but they “happened in
many different rooms and at diffe rent times,” and we concluded this weighed against
determining that the offenses were linked in place and proximit y. Suhon, 742 N.W.2d at
24.

10
Hernandez argues that satisfying one’s perverse desires is too broad a motivation to
weigh in favor of a single criminal objective. 3 We decline to address whether this
motivation is adequate for a joinder analysis in this case beca use a narrower criminal
objective is present. While Hernandez was arguably motivated t o s a t i s f y h i s p e r v e r s e
desires, he did so by leveraging his position as a caretaker fo r these two specific victims.
Only by exploiting this position was Hernandez able to achieve his single criminal
objective of abusing I.A. and K.Z.
The record reflects that Hernandez frequently took care of the girls. This included
waking the girls up, getting them out of bed, and making sure they were ready for school.
The record further demonstrates that Hernandez took advantage of these moments to abuse
the girls when he was most entru sted with caring for them. I.A . testified that sometimes,
when Hernandez would come down to wake the victims up in the mornings, he would seize
the opportunity to abuse her. I n her forensic interview, I.A. was asked where her mother
was when Hernandez abused her. I.A. responded, “[S]he’s usually at work.” When asked
what time of day the abuse usually occurred, I.A. answered that it usually occurred when

3 Previous cases with similar motivations at issue undertake a highly fact-sensitive analysis
in deciding if such motivation is adequate for a single criminal objective. See, e.g., Spears,
560 N.W.2d at 727 (stating that m otivation underlying multiple criminal-sexual-conduct
offenses was to satisfy defendant’s perverse sexual desires, wh ich was adequate to weigh
in favor of a single criminal objective); Herberg, 324 N.W.2d at 349 (determining multiple
sexual-assault offenses were motivated by a single criminal objective where the defendant
kidnapped and sexually tortured the victim); but see Suhon, 742 N.W.2d at 24 (concluding
defendant’s “motivation by perverse sexual desires” was too bro ad to qualify as a single
criminal objective (quotation omitted)); State v. Butterfield, 555 N.W.2d 526, 531 (Minn.
App. 1996) (stating that “a defe ndant’s desire to satisfy his p erverse sexual desires is too
broad a motivations [sic] to jus tify application of the single behavioral incident rule”),
review denied (Minn. Dec. 17, 1996).

11
her mother was away during “school time,” and the last time she remembered Hernandez
abusing her was when her mother was at work. K.Z. gave similar testimony at trial when
describing the abuse by Hernandez, testifying she believed her mother was at work when
Hernandez abused her in the living room. And when asked who took care of both victims
when their mother was at work, K.Z. said Hernandez was the pers on who looked after
them.
In sum, while their mother was away, Hernandez was trusted to t ake care of I.A.
and K.Z. But instead of caring for the girls, he used his trus t, position, and power to prey
on them. He exploited his caretaker role, satisfying his perverse needs, which supports our
conclusion that the single-criminal-objective factor is met.4
Weighing all three factors, we first observe that Hernandez abu sed the girls within
a three-month period. Next, we observe that Hernandez abused I.A. multiple times when
she was alone in her bedroom, a nd he abused K.Z. multiple times in the nearby family
room on the pullout couch. This leads us to conclude the offenses were linked in place and
proximity. Finally, we note that Hernandez was able to abuse t he girls by exploiting his
role as a caretaker, primarily by abusing the victims while their mother was at work, which
weighs in favor of the offenses being linked by a single crimin al objective. Based on the

4 We note our analysis on this point is similar to State v. Galloway, No. A13-1449, 2014
WL 3891812 (Minn. App. Aug. 11, 2014), review denied (Minn. Nov. 18, 2014). In
Galloway we acknowledged that “motivation by perverse sexual desires is too broad to
constitute a single criminal objective.” Id. at *2 (quoting Suhon, 742 N.W.2d at 24). But
we explained that the Galloway defendant used his authoritative role as the victims’
caretaker to take sexual advantage of the victims. Id. This caretaker role—entwined with
the unity of time and place factors and a similarity of offense s—lead us to conclude here
that the offenses arose from a single course of conduct. See id.

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r e c o r d a n d v i e w e d t h r o u g h t h e p r i s m o f d e n o v o r e v i e w , w e c o n c lude that Hernandez
abused the girls as part of a single behavioral incident. For this reason, we determine that
the district court correctly joined I.A. and K.Z.’s offenses.
Prejudice
Nonetheless, we further conclude that, even if the district cou r t h a d i m p r o p e r l y
joined the cases, Hernandez suffered no prejudice as a result o f the joinder. If a district
court joins cases in error, we must determine whether the error was prejudicial. Ross, 732
N.W.2d at 280. The supreme court has held that the improper joinder of two offenses was
not prejudicial when evidence of either of the offenses could have been admitted as Spreigl
evidence at the trial of the other offense. State v. Conaway , 319 N.W.2d 35, 42 (Minn.
1982).
Here, evidence of Hernandez’s conduct committed against one sis ter would have
been admissible as Spreigl evidence in the trial of his offense committed against the other
sister. Generally, evidence of a defendant’s other crimes, wro ngs, or bad acts are not
admissible to show bad character. State v. Spreigl, 139 N.W.2d 167, 169 (Minn. 1965).
But such evidence may be admitted to show opportunity, motive, intent, preparation, plan,
identity, knowledge, or absence of mistake or accident. Minn. R. Evid. 404(b); Profit, 591
N.W.2d at 461. The admission of Spreigl evidence requires, among other conditions, clear
and convincing evidence of the defendant’s participation in the prior act; that the evidence
is material and relevant to the state’s case, and that its prob ative value is not outweighed
by its prejudicial effect to the defense. State v. Ness , 707 N.W.2d 676, 685-86 (Minn.

13
2006). To analyze whether prej udice resulted from improper joi nder we examine these
conditions. Profit, 591 N.W.2d at 460-61.
These conditions were met with r espect to Hernandez’s conduct committed against
I.A. and K.Z. Both victims’ allegations of sexual abuse were s upported by the police
investigation and CornerHouse in terviews, meeting the clear-and -convincing standard.
See Ness, 707 N.W.2d at 686. The evidence is relevant and material to the state’s case
because it tends to show a common scheme or plan of abuse in th e victims’ home and a
single criminal objective of exploiting Hernandez’s role as caretaker to both children. And
evidence is only unfairly prejudicial if it is used “to persuad e by illegitimate means.”
Profit, 591 N.W.2d at 461 (quotation omitted). Here, the evidence of Hernandez’s conduct
with each victim was not offered to persuade the jury by improper means. Therefore, we
conclude that, even if the distr ict court erred by joining the offenses committed against
each victim for trial, that error was not prejudicial because evidence of each offense would
have been admissible at the trial relating to Hernandez’s conduct against the other victim.
II. Excluding evidence of the vic tims’ alleged previous sexual abuse did not violate
Hernandez’s right to present a defense.

Hernandez next challenges the district court’s exclusion of evidence that the victims
were sexually abused before moving to Minnesota. Hernandez argues this evidence would
suggest an alternative source for the victims’ knowledge about sexual matters that the jury
would otherwise assume originated from him. His inability to present this evidence at trial,
Hernandez asserts, violated his right to present a complete defense.

14
Like all criminal defendants, Hernandez had the right to present a complete defense.
State v. Penkaty , 708 N.W.2d 185, 201 (Minn. 2006). But Hernandez’s interest i n
presenting the victims’ alleged pr evious sexual abuse in pursui t of that defense falls
squarely within the confines of Mi nnesota’s rape-shield law, wh ich generally prevents
introducing evidence at trial concerning a victim’s sexual hist ory. Minn. Stat. § 609.347,
subd. 3; see Minn. R. Evid. 412. In some circumstances the rape-shield rule contemplates
an exception for a criminal def endant’s constitutional right to p r e s e n t a d e f e n s e ; t h i s
includes presenting evidence tha t may establish an alternative source for a victim’s
knowledge of sex in cases where a jury is likely to assume that knowledge came from the
defendant’s alleged sexual abuse. State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986).
The test for deciding if this evidence is admissible is to balance its probative value against
the potential for causing the victim unfair prejudice. Id. And this court has noted that
except in special circu mstances, evidence of a victim’s prior s exual history will not
demonstrate relevance under this test. State v. Crims, 540 N.W.2d 860, 868 (Minn. App.
1995), review denied (Minn. Jan. 23, 1996).
Hernandez’s argument concerns an evidentiary ruling and applica tion of the rape-
shield law, and we review the district court’s denial of his request to introduce this evidence
for an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). An abuse
of discretion occurs when a court’s decision is based on an incorrect view of the law or is
against logic and the facts in the record. Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011).
Hernandez sought to introduce child-protection documents from Tennessee, which
alleged that one of the girls’ uncles physically and sexually abused them before they moved

15
back to Minnesota. These records state that the girls were “inappropriately touched,” with
the only specific allegation being that their uncle “put his feet on [K.Z.’s] legs and started
to move them up and down and told her that he wanted her to know what it would feel like
when a guy messes with her.” The records also suggest that the girls could have been
abused by another uncle in Arkansas. And finally, Hernandez wa nted to introduce
evidence that their step-cousin forced K.Z. to perform oral sex on him when she was seven
years old.
But the district court found this evidence about past abuse too speculative. The
court also believed the victims were old enough for the jury to assume that their sexual
knowledge could have come from other sources besides Hernandez. It observed that the
victims were 9 and 11 years old when Hernandez’s abuse occurred and that they would be
11 and 13 years old by the time of trial. This was “old enough to likely be familiar with
the correct terminology for genitalia,” the court reasoned, and concluded that “a jury will
likely not infer the only source of the alleged victims’ knowledge was the alleged contact
between them and Mr. Hernandez.”
We note a similar issue occurred in Benedict, where the defendant sexually abused
his five-year-old neighbor. 397 N.W.2d at 338. There, the state called an expert witness,
who testified that the victim had an unusual amount of sexual knowledge for someone his
age, and the expert concluded it “was the result of the boy having been given an education
by somebody.” Id. a t 3 4 0 . T h e d e f e n d a n t a t t e m p t e d t o i n t r o d u c e e v i d e n c e t h a t t h is
knowledge came from the victim’s family; the district court bar red that use but gave the
defense some “leeway” in its que stioning to show that the knowl edge came from another

16
source. Id. at 341. The supreme court affirmed, writing that the district court did not abuse
its discretion because the evidence had “weak probative value” compared with its potential
“for causing unfair prejudice” to the victim. Id.
Hernandez argues that our previous decision in State v. Goldenstein, 505 N.W.2d
332 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993), supports his contention that
the district court abused its discretion. In Goldenstein, we reversed multiple criminal-
sexual-conduct convictions becau se the district court improperl y excluded evidence that
the victims made prior, unsubstantiated accusations of abuse ag ainst a social worker.
505 N.W.2d at 340. Importantly, we noted there was no physica l evidence of abuse, so
the credibility of the victims’ statements was a critical linchpin in the defense’s case. This
was not true in Hernandez’s case where DNA in Hernandez’s underwear was linked to one
of the victims. In this respect, Hernandez’s case does not hinge solely on the credibility of
the victims.
Given the analysis in Benedict, and the girls’ ages in this case, the district court did
not abuse its discretion by excluding this evidence. The district court reasonably concluded
that the victims were old enough to have more sexual knowledge than Hernandez argues,
and that the evidence was specula tive and lacked sufficient val ue relative to its invasion
into the victims’ privacy. And like in Benedict, the district court gave Hernandez some
leeway to explore this topic if the state opened the door during direct examination.
Because the jury was unlikely to assume that Hernandez was the only source of the
girls’ sexual knowledge, and because the evidence had low proba tive value, we conclude

17
that the district court did not abuse its discretion by preventing Hernandez from introducing
this information at trial.
III. The district court did not abuse its discretion in its inv estigation of possible
juror misconduct.

The final issue concerns the district court’s limited Schwartz hearing. Hernandez
argues the hearing was improper because the district court did not question the one juror
who allegedly threatened another juror during deliberations. District courts have discretion
to conduct a Schwartz hearing in whatever manner they see fit. State v. Greer, 662 N.W.2d
121, 124 (Minn. 2003). This discretion includes determining ho w many jurors to call to
testify. See id. at 123-24 (affirming a district court’s decision to call six of the twelve
jurors); see also State v. Olkon, 299 N.W.2d 89, 109 (Minn. 1980) (stating that the district
court “did not abuse its discretion in determining to call six jurors, four of whom were
referred to in the allegations of misconduct”). Ultimately, the abuse-of-discretion standard
requires us to examine whether the district court correctly applied the law and if the court’s
decision was based on facts in the record. Riley, 792 N.W.2d at 833.
To investigate if any juror misconduct occurred during Hernand ez’s trial, the district
court held a limited Schwartz hearing, at which only one juror, D.G., testified. The district
court drafted four questions ahead of time and read them to D.G. verbatim. They were:
After you began deliberations i n this case it was about 1:30
p.m. on October 10th, the jury returned its verdicts at 1:21 p.m.
on October 11th the next day. During your deliberations was
there any physical violence against you to reach a verdict?

During your deliberations was t here any physical violence
against any members of the jury panel in order to reach a
verdict?

18
Was there any threat of physical violence against you to reach
a verdict?

And was there any threat of physical violence against any
member of the jury to reach a verdict?

D.G. answered “no” to each question except the third, where he answered, “No, not direct.”
Hernandez’s attorney argued that this response implied there wa s an indirect threat. The
court asked D.G. if there was an indirect threat made by anothe r juror to him and asked
D.G. for that juror’s exact wording. D.G. answered, “[T]here was a – there was a woman
who said, ‘I’m not coming back here tomorrow to deliberate, I’d rather go to jail.’” The
district court determined this was not a threat, noting that D. G. did not reveal any new
information and the most reasona ble interpretation of this comm ent was that this juror
would “rather be held in contempt of court than return for another day of deliberations.”
We agree with the district court’s reasoning. The parties and the district court were
already aware of this comment prior to the Schwartz hearing. As a result, D.G.’s testimony
did not produce any new information showing a prima facie case of juror misconduct. See
State v. Church, 577 N.W.2d 715, 720 (Minn. 1998) (stating that standard for gra nting a
Schwartz hearing). We also agree that the comment to D.G. did not conta in a threat. A
threat, broadly speaking, requires “an intention to inflict pain, injury, evil, or punishment,”
or some “indication of impending danger or harm.” The American Heritage Dictionary of
the English Language 1813 (3d ed. 1992). The comment, “I’m not coming back here
tomorrow to deliberate, I’d rat her go to jail,” rings more of h yperbole and exaggeration
rather than a genuine intention to inflict harm on D.G. We agree with the district court that
the more reasonable understanding of the comment is as an expression of frustration on the

19
part of the juror herself. Framed in the context of a long deliberation process, the comment
is best seen as the juror potentially exposing herself to conte mpt of court for not showing
up the next day.
But Hernandez claims that the court’s decision to only call D.G . to testify at the
Schwartz hearing was an abuse of discretion. We note that the supreme court upheld a
district court’s decision to call just one juror in State v. Powers, where the juror had spoken
with the prosecutor over lunch. 654 N.W.2d 667, 678 (Minn. 2003). Hernandez attempts
to distinguish his case from Powers by pointing to the fact that the juror from his trial who
was at the heart of the misconduct—the juror who supposedly threatened D.G.—was never
called. We are not persuaded. The purpose of a Schwartz hearing is to investigate potential
juror misconduct. State v. Martin , 614 N.W.2d 214, 226 (Minn. 2000). How a court
investigates that misconduct falls within its discretion, which we will only reverse if the
district court misapplies the law or relies on facts not suppor ted by the record. Riley, 792
N.W.2d at 833. Neither occurred in this case. Further, D.G.’s comments to the Innocence
Project did not reveal any new allegations warranting further c onsideration by the district
court.5

5 To the extent that D.G.’s comments to the Innocence Project co ncerning a female juror
“who took over deliberations and would not allow other jurors t o express their opinions”
was new information, it did not warrant a new Schwartz hearing. The district court noted
that there was an eight-month laps e between Hernandez’s verdict and the day D.G.
approached the Innocence Project, and if there was a serious co ncern for the integrity of
the process, the court reasoned, D.G. would not have waited so long to report the
concerning comment.

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For the reasons discussed, we conclude the district court did not abuse its discretion
in holding a Schwartz hearing and calling a single juror to testify. The court was p robing
for evidence that juror misconduct occurred during Hernandez’s trial, yet the juror who
allegedly received this misconduc t failed to convince the court that there was any
misconduct. Lacking reasonable support for allegations of misc onduct, the court was
within its discretion to end its inquiry and conclude the Schwartz hearing without hearing
from additional jurors.
Affirmed.