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This opinion will be unpublished and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
A17-0286

State of Minnesota,
Respondent,

vs.

Bobby Joe Houle,
Appellant.

Filed November 27, 2017
Affirmed
Reilly, Judge

Cass County District Court
File No. 11-CR-16-804

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

Barbara Harrington, Acting Cass County Atto rney, Benjamin T. Lindstrom, Assistant
County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from his convictions of domestic assault and threats of violence, appellant
Bobby Joe Houle, argues that his conviction of threats of violence must be reversed because

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the factual basis established during his guilty plea was insufficient to prove his guilt.
Because we conclude that the plea colloquy and petition, along with the record evidence
as a whole, established a sufficient factual ba sis for appellant’s guilty plea to the threats-
of-violence charge, we affirm.
FACTS
Appellant was charged with (1) domestic a ssault, (2) second-degree assault with a
dangerous weapon, (3) threats of violence, (4 ) obstructing legal process with force, and
(5) fleeing a peace officer for an incident that occurred th e morning of May 4, 2016,
involving a report by C.M.C. of domestic assault and suicidal threats.
Appellant challenged law enforcement’ s initial entry into his residence at a
contested omnibus hearing. At that hearing, three officers involved testified about the
events that led to th eir entry into the residence, and one officer’s body-camera video was
admitted into evidence. The o fficer testimony, body-camera video, 1 and criminal
complaint reveal the following.
The morning of May 4, 2016, law enforcem ent were dispatched to a residence in
Cass Lake on a report of domestic violence and a possible suicidal person. C.M.C. spoke
to officers while at a different location. She said that appellant, her boyfriend, assaulted
her while their two children were present. An officer observed a r ecent cut on C.M.C’s
forehead, bruising around her nose, and a “knot” on the left side of her eyebrow. C.M.C.

1 Only the portion of the body-camera video leading up to the entry of the residence was
considered by the district court for the purposes of appellant’s motion to suppress evidence.
On review, we also consider only that portion of the video.

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said that appellant hit her with closed fists, held her in a headlock with her head to the floor,
and threatened to further assault her. C.M.C. al so said that appellant threatened to kill
himself. She wanted the children back because they were still with appellant at the Cass
Lake residence that morning.
Officers attempted to make contact with appellant at the Cass Lake residence.
Officers knocked on the residence’s door an d windows a number of times, identifying
themselves, but no one came to the door. Of ficers observed window coverings moving
and a bathroom light tu rn on and off, but they could not see anyone inside. One officer
could hear children inside. Officers later tes tified at a hearing that they were concerned
that appellant had already harmed or would harm himself or the children.
Officers attempted to kick down the residence’s door, but were unsuccessful. They
ultimately entered the home through a window, and appellant ran into the bathroom and
locked the door. As one o fficer was attempting to enter the bathroom, appellant said,
“Don’t do it, I have a knife.” According to the criminal complaint, appellant stated that he
was willing to use the knife to protect himself from the officers.
After officers gained entry into the bath room, appellant retreated to the bathtub
behind a shower curtain. Officers observed appellant holding a knife to his neck. Officers
asked appellant to drop the knife. One offi cer used a Taser against appellant. When the
Taser failed to maintain contact, appellant cu t his wrists with the knife he was holding.
Appellant dropped the knife and was provided medical attention. He was taken to the
hospital, and after surgery he was transported to the jail.

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On October 6, 2016, without the district court’s ruling on his challenge to the
officers’ initial entry into the Cass Lake residence, appellant pleaded guilty to an amended
count 1, domestic assault as a gross misdemeanor, and to count 3, felony threats of
violence. At the plea hearing appellant signed a plea petition with the assistance of counsel.
He admitted to assaulting C.M.C. and recounte d the events leading up to locking himself
in the bathroom. The following is the plea colloquy for the threats-of-violence charge:
PROSECUTOR: And what kind of things did you say to the
officer that makes you guilty of the threats of violence charge?
APPELLANT: I told them I had a knife.
PROSECUTOR: Okay. And did you suggest that you might
use that knife against them?
APPELLANT: Yes, I did.
PROSECUTOR: Okay. And did you have a knife?
APPELLANT: Yes, I did.
PROSECUTOR: And you’d agree that threatening to use a
knife against somebody is essentially threatening to commit a
second-degree assault?
APPELLANT: Yes.
. . . .
PROSECUTOR: And you’d agree that under the
circumstances that was, at a minimum, in reckless disregard of
the risk that it might cause terror in someone?
APPELLANT: I do.

The district court accepted appellant’s guilty plea. On November 21, 2016,
appellant was sentenced to serve one year in local confinement.
Appellant now appeals the judgment of conviction.
D E C I S I O N
Appellant argues that the factual basis es tablished during his guilty plea to the
threats-of-violence charge was insufficient to prove his guilt. While appellant did not move
to withdraw his guilty plea before the district court, a defendant may appeal directly from

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a judgment of conviction contending that the record made at the time the plea was entered
is inadequate. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).
Assessing the validity of a guilty plea presents a question of law that appellate courts
review de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). To withdraw a guilty
plea after sentencing, a defendant must show withdrawal is necessary to correct a manifest
injustice. Id. at 94 (citing Minn. R. Crim. P. 15.05, subd. 1). A manifest injustice exists
when a court accepts an invalid guilty plea. State v. Theis, 742 N.W.2d 643, 646 (Minn.
2007). To be constitutionally valid, a guilty plea must be accurate, voluntary, and
intelligent. Raleigh, 778 N.W.2d at 94 (cita tion omitted). To sa tisfy the accuracy
requirement, a guilty plea must be established on a “proper factual basis.” State v. Ecker,
524 N.W.2d 712, 716 (Minn. 1994). The main purpose of the accuracy requirement is to
“protect a defendant from plea ding guilty to a more serious offense than he could be
convicted of were he to in sist on his right to trial.” State v. Trott , 338 N.W.2d 248, 251
(Minn. 1983).
The usual way a district c ourt establishes a proper factual basis is to ask the
defendant to express in his or her own words what happened. Trott, 338 N.W.2d at 251
(citation omitted). Defense counsel or the prosecutor may also inquire. Ecker, 524 N.W.2d
at 716. Upon questioning, the defendant’s statement will usually “suggest questions to the
court which then, with the assistance of couns el, can interrogate the defendant in further
detail.” Trott, 338 N.W.2d at 251. A district cour t “must be particularly attentive to
situations in which a defendant is pleading guilty and is asked onl y leading questions by
counsel.” Ecker, 524 N.W.2d at 716.

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As a preliminary matter, appellant asserts that his guilty plea cannot be supplemented
by evidence outside of the plea petition and colloquy to assess its validity. Appellant’s
assertion is not supported by caselaw. “[A] defendant may not withdraw his plea simply
because the court failed to elicit proper responses if the record contains sufficient evidence
to support the conviction.” Raleigh, 778 N.W.2d at 94 (citati on omitted). By pleading
guilty and “freely admit[ting]” the charges, a defendant “judicially admit[s] the allegations
contained in the complaint.” Trott, 338 N.W.2d at 252. A plea petition and colloquy may
be supplemented by such things as written statements by witnesses, transcripts of grand
jury proceedings, facts alleged in a criminal complaint, and photographs. Lussier v. State,
821 N.W.2d 581, 588 (Minn. 2012); Trott, 338 N.W.2d at 252; State v. Eller, 780 N.W.2d
375, 381 (Minn. App. 2010), review denied (Minn. June 15, 2010). In Lussier, the supreme
court upheld a district court ruling that there was an adequate factual basis for a guilty plea
to the crime of first-degree murder based on f acts in a grand-jury transcript admitted into
evidence without objection. 821 N.W.2d at 589. Part of the record before the district court
in Lussier was a body microphone recording from an officer that was played for the grand
jury. Id. at 584.
Appellant argues that the rule in Trott does not apply here because appellant was not
“carefully interrogated” by the district court judge, and only admitted to a statement that would
“suggest” that he “might” use a knife against the officers. Further, appellant argues that the
probable-cause standard for a criminal complain t is distinct from the higher standard in
establishing an adequate factual basis for a gui lty plea. But appellant misstates the standard:
if admissions to each detailed fact on each element of a crim e were the standard to allow

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examination of the outside record, then there w ould be no need to c onsult any such record
outside of the plea hearing. Further, appell ant’s argument regarding the probable-cause
standard is unavailing because the court in Trott held that courts may supplement the plea
hearing with a criminal complaint, which, by its nature, would only amount to probable cause
unless a defendant freely admits to the charges. 338 N.W.2d at 252.
Appellant is correct that courts cannot always look to the record evidence to
supplement a plea petition and colloquy. Cases suggest that a defendant must first willingly
make admissions to the basic elements of the crime. Lussier, 821 N.W.2d at 585; Trott,
338 N.W.2d at 252. For example, in one recent unpublished opinion, this court would not
consider a portion of the crim inal complaint when assessing the factual basis for a guilty
plea because the defendant failed to acknowledge certain allegations in the complaint. But
here, appellant did not equivocate or make cont radicting statements in conflict with the
record during the plea colloquy because he admitted to speaki ng words that constituted a
threat, and that his acts were reckless. Like in Trott, appellant “freely admitted” that he
committed each element of the crime. 338 N.W.2d at 252. A ccordingly, evidence in the
record may supplement the plea petition and colloquy.
An adequate factual basis establishes all of the elements of the crime. Barnslater v.
State, 805 N.W.2d 910, 914 (Minn. App. 2011). In order for appellant to be found guilty
of threats of violence, th e record must show that appellant (1) threatened, directly or
indirectly, to commit a crime of violence, and (2) acted either (a) with a purpose to terrorize
another, or (b) in reckless disregard of the risk of causing such terror. Minn. Stat. § 609.713,
subd. 1 (2016). A “threat” is a declaration of an intention to injure another by some unlawful

8
act. State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975). A threat need not
be explicit, and the test is “whether the communication in its context would have a reasonable
tendency to create apprehensi on that its originator will act according to its tenor.” Id.
(quotation omitted).
The facts in the reco rd as a whole, in addition to the plea petition and colloquy, are
sufficient to conclude that appellant’s plea was accurate. In accordance with the requirement
in Trott, the prosecutor asked appellant an open-ended question: “[W]hat kind of things did
you say to the officer that ma kes you guilty of the threats of violence?” 338 N.W.2d at
251. Appellant said in his own words, “I told them I had a knife.” This suggested further
follow-up questions, and the prosecutor asked th e leading question: “[D]id you suggest that
you might use that knife against them?” Appellant replied in the affirmative.
Although the additional questions were lead ing, the factual basis is sufficient to
establish the first element of threats of violence when the plea petition and colloquy are viewed
in the context of the whole record. Before pleading guilty to threats of violence, appellant had
just pleaded guilty to domestic assault. He st ated that he assaulted his girlfriend on the same
day as the threats-of-violence charge. The criminal complaint, the contested omnibus-hearing
transcript, and the body-camera video admitted in to evidence during that hearing, show that
prior to the incident, appellant caused physical injuries to C.M.C.’s face, had threatened
suicide, and locked himself in his house with two children. Under these circumstances,
appellant’s statement “Don’t do it, I have a knife,” is a communication that would have a
tendency to create a reasonable apprehension that appellant would act and use the knife against
the police officers if they entered the bathroom.

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Appellant relies on State v. Olson, where this court held that offensive expressions
of hope that someone would kill a police officer were not eno ugh to establis h the threat
element in a threats-of-violen ce charge. 887 N.W.2d 692, 698-99 (Minn. App. 2016).
Olson was drunk, had recently h it his head, and expressed a hope that someone “puts a
slug” in an officer’s head. Id. at 695-96. Appellant argues that this case is like Olson
because he was suffering from a mental-health crisis and on ly admitted that his words
“suggested” that he “might” use the knife agai nst the officers. But, as the state argues,
unlike Olson, appellant was not merely hoping that a third person in the future might harm
the officers. Instead, appellant ’s statement “I have a knife,” was an implied threat that
appellant himself would harm the office rs if they entered the bathroom. Olson is
inapposite.
The second element—an intent to terroriz e or an action in re ckless disregard of
terrorizing—was established at the plea hearing solely by appellant answering in the
affirmative the prosecutor’s conclusory and leading question about whether appellant acted “in
reckless disregard of the risk that [his actions ] might cause terror in someone.” While the
prosecutor used leading questions, when the plea colloquy here is viewed in the context of the
whole record, there is an adequate factual basis to show that appellant acted with recklessness.
While the element of recklessness “requires deliberate action in disregard of a known,
substantial risk,” the crime requires no specific intent. State v. Bjergum, 771 N.W.2d 53, 57
(Minn. App. 2009), review denied (Minn. Nov. 17, 2009). Appella nt’s actions of assaulting
his girlfriend, threatening suicide, not answering the door to the house when his two children
were inside, and then running into the bathroom and stating he had a knife when police tried

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to enter, all created a substantial risk that he would cause terror in the officers, and appellant
disregarded this risk.
Appellant relies on several cases that are distinguishable. First, appellant relies on
Raleigh, where the supreme court st rongly discouraged the use of leading questions when
establishing a factual basis for a plea. 778 N.W.2d at 95. But in Raleigh, the supreme court,
nevertheless, found the guilty plea was accurate when the defendant affirmatively answered a
long leading question establishing the premeditation element in a murder charge. Id. at 95-96.
Second, appellant relies on Ecker, 524 N.W.2d at 717, for th e proposition that leading
questions invalidated the plea. But in Ecker, the issue about the accuracy of the plea arose
because of a lapse in the defe ndant’s memory, and the supreme court noted that even though
Ecker claimed he could not remember shooting the victim, Ecker believed the state’s evidence
was overwhelming and that he would be convicted. Id. Third, appellant also relies on Shorter
v. State , where the supreme court allowed the defend ant to withdraw his plea to correct a
manifest injustice because the c ourt had misgivings about the dist rict court’s acceptance of a
plea when the defense counsel asked only lead ing questions during th e plea hearing. 511
N.W.2d 743, 746 (Minn. 1994). However, in Shorter, the defendant did not admit to specific
facts making up essential elements of the crime and only acknowledged the fact that the alleged
victim made certain claims. Id. at 744-75.
Appellant also cites to two unpublished opini ons from this court where the factual basis
for a guilty plea was found insufficient. Unpublished opinions, although not binding
precedent, may have pe rsuasive authority. State v. Zais, 790 N.W.2d 853, 861 (Minn. App.
2010), aff’d, 805 N.W.2d 32 (Min n. 2011). Nonetheless, we ha ve reviewed those cases and

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conclude that they are distingui shable because appellant used his own words to describe the
conduct that made him guilty.
In sum, while the plea colloquy in this cas e contained leading questions, the record—
which includes the criminal complaint, the witness testimony during the contested omnibus
hearing, and the body-camera video—“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 pled guilty.” Lussier, 821 N.W.2d at 588- 89. Accordingly, the
factual basis for appellant’s guilty plea was sufficient.
Affirmed.