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This opinion will be unpublished and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
A17-1051

State of Minnesota,
Respondent,

vs.

Kurt Lee Villa,
Appellant.

Filed June 18, 2018
Affirmed
Johnson, Judge

Cottonwood County District Court
File No. 17-CR-15-283

Lori Swanson, Attorney General, Edwin Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

Nick Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)

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

Considered and decided by Kirk, 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 Cottonwood County jury found Kurt Lee Villa guilty of third-degree assault based
on evidence that he punched another man in the face three times . We conclude that the
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prosecutor did not commit misconduct in closing argument and that Villa’s right to a
speedy trial was not violated. Therefore, we affirm.
FACTS
Villa has an antagonistic relationship with J.S., who lives with Villa’s former
girlfriend, N.K., and with two children of Villa and N.K. On the evening of July 7, 2015,
Villa encountered J.S. on a sidewalk in the city of Westbrook. The two men exchanged
words before Villa threw J.S. to the ground and punched him in the face three times. J.S.
suffered a broken orbital eye socket.
The state charged Villa with first-degree assault, in violation of Minn. Stat.
§ 609.221, subd. 1 (2014), and third-degree assault, in violation of Minn. Stat. § 609.223,
subd. 1 (2014). In August 2015, Villa gave notice of his intent to assert the defense of self-
defense. See Minn. R. Crim. P. 9.02, subd. 1(5)(a). Before trial, the state filed a motion in
limine to admit evidence of two prior incidents in which Villa had threatened J.S. The state
sought to introduce the two prior incidents to show the antagonistic relationship between
Villa and J.S. and to show that Villa had a motive and an intent to cause harm to J.S. The
district court agreed with the state’s rationale and granted the motion.
The case was tried to a jury o ver two days in February 2017. J.S. testified that, on
the evening of the incident , he was standing on the sidewalk outside the V.F.W. hall,
smoking a cigarette. He had consumed one alcoholic drink. He saw Villa put some things
in Villa’s parked car and then walk toward him. J.S. and Villa had a conversation, which
J.S. ha d difficulty remembering, except that he remembered telling Villa that Villa’s
children were happier living with J.S. J.S. testified that he and Villa then scuffled, that he
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had his right arm around Villa’s neck in a choke hold, and that he was lying on the ground
while bleeding . He suffered a broken bone around his nose a nd eyes, and he still
experiences double-vision.
J.S. also testified about two prior interactions with Villa. On September 29, 2014,
Villa visited J.S.’s house and asked to talk to him. Villa accused J.S. of ruining his family
and said that he would “mess [him] up.” There was no physical altercation. Approximately
a month later, on October 24, 2014, J.S. was standing outside the V.F.W. hall when Villa
approached him. Villa yelled at J.S. and threatened to “mess [him] up.” Again, there was
no physical altercation.
Alan Wahl, the city’s police chief, testified that he responded to a report of a fight
outside the V.F.W. hall but that he arrived after both J .S. and Villa had left . Chief Wahl
went to a nearby e mergency room to speak with J.S. He observed that J.S.’s face was
swollen and discolored, that he had a cut below his right eye , and that he was incoherent.
Chief Wahl then went to a residence where Villa was visiting a friend. Villa did not appear
to have any injuries. Villa agreed to accompany Chief Wahl to the police station to make
a statement, which was recorded and played for the jury at trial. In his statement to Chief
Wahl, Villa said that J.S. taunted him from across the street, saying “come and get me.”
Villa told Chief Wahl that he and J.S. argued for approximately five minutes before J.S.
kicked Villa in the knee. Villa stated that he then took J.S. to the ground, struck him three
times, and walked away. Villa did not tell Chief Wahl that he struck J.S. in self-defense.
In the defense case, Villa testified that he went to a grocery store that is near the
V.F.W. hall. He saw J.S. standing outside the V.F.W. hall. Villa parked his car and walked
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into the grocery store while J.S. yelled at him . When Villa left the grocery store, J.S.
continued yelling at him . Villa yelled back at him, and then J.S. approached him. J.S.
taunted Villa by saying that Villa did not see his children anymore because J.S. was raising
them. Villa told J.S. that he should either go back to his bar stool or fight. The two men
argued for approximately five minutes before J.S. kicked Villa in his right knee and then
squeezed Villa’s throat. Villa used a wrestling move to take J.S. down to the sidewalk and
then punched him three times in the face. Villa testified that he did not intend to hurt J.S.
but intended only to cause J.S. to remove his hands from Villa’s throat. Villa then returned
to his car and drove to a friend’s house, where they intended to prepare and eat a meal.
When cross-examining Villa, the prosecutor confirmed that Villa did not mention
to Chief Wahl that he punched J .S. in an effort to cause J.S. to remove his hands from
Villa’s throat. During closing arguments, the prosecutor urged the jury to consider the fact
that Villa did not tell Chief Wahl that he was defending himself when he punched J.S. The
prosecutor also argued that the prior incidents between J.S. and Villa demonstrated that
Villa was motivated to cause harm to J.S. and that his pre -existing state of mind is
inconsistent with his theory of self -defense. The district court instruct ed the jury on the
defense of self-defense, stating that the defense “is available only to those who act honestly
and in good faith.”
The jury found Villa not guilty of first -degree assault and guilty of third -degree
assault. The district court imposed a sentence of 90 days in jail, with 60 days stayed. Villa
appeals.
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D E C I S I O N
I. Claim of Prosecutorial Misconduct
Villa argues that the prosecutor committed misconduct in two ways. First, Villa
argues that the prosecutor committed misconduct by eliciting inadmissible evidence that
Villa did not tell Chief Wahl that he punched J .S. in self-defense and by commenting on
that evidence in her closing argument. Second, Villa argues that the prosecutor committed
misconduct by urging the jury to consider the two prior incidents for a different purpose
than that for which they were admitted.
Villa did not object to these alleged errors at trial. Accordingly, this court applies
“a modified plain-error test.” State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To
prevail under the modified plain-error test, Villa must establish that there is an error and
that the error is plain. State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). An error is
plain if it “contravenes case law, a rule, or a standard of conduct.” Id. If Villa were to
establish a plain error , the state would have the burden of showing that the error did not
affect Villa’s substantial rights, i.e., “that there is no reasonable likelihood that the absence
of the misconduct in question would have had a significant effect on the verdict of the
jury.” Id. (quotations omitted).
A. Comment on Post-Arrest Silence
The first part of Villa’s argument is based on the prosecutor’s cross-examination of
Villa concerning the fact that he did not tell Chief Wahl that J .S. choked him and that he
punched J.S. in self-defense. The prosecutor asked Villa , “You never went back and told
Chief Wahl that you had remembered more additional information?” Villa responded ,
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“No, I did not.” In her closing argument, the prosecutor highlighted this evidence in the
following way:
[T]his choking business. . . . It was not told to Al Wahl on the
night of July 7th. It was not told to anybody in the meantime.
Why did [he] not talk to the police? He said it wouldn’t be
beneficial to him. Again, I don’t believe this shows good faith
or force reasonably necessary.

Villa contends that the prosecutor should not have urged the jury to consider the fact
that he did not tell Chief Wahl that he punched J.S. in self-defense. Villa relies exclusively
on caselaw based on the right against self -incrimination after being arrested; he does not
contend that the prosecutor’s cross -examination and closing argument infringed his right
against self-incrimination before being arrested. See State v. Borg, 806 N.W.2d 535, 541-
43 (Minn. 2011).
Whether t he state may introduce evidence concerning a defendant’s post -arrest
silence depends on whether the defendant previously received a Miranda warning. See
Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602 (1966). If a defendant received a
Miranda warning, the state may not introduce evidence that the defendant thereafter
refrained from providing any particular information to investigators. Doyle v. Ohio, 426
U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976); State v. Dobbins, 725 N.W.2d 492, 509 (Minn.
2006); State v. Billups, 264 N.W.2d 137, 138-39 (Minn. 1978). But if a defendant had not
received a Miranda warning, or if the record is silent as to whether the defendant had
received a Miranda warning, then the state is not prohibited from introducing evidence that
the defendant refrained from providing information to investigators. Fletcher v. Weir, 455
7
U.S. 603, 603-07, 102 S. Ct. 1309, 1310-12 (1982); State v. Morrison , 351 N.W.2d 359,
361-62 (Minn. 1984).
In this case, there is nothing in the trial record as to whether Villa received a
Miranda warning before he gave his statement to Chief Wahl or at any other time before
trial. In the absence of such evidence, we must assume that the state w as not restrained
from questioning Villa about his omission of information when he provided a statement to
Chief Wahl and that the prosecutor was not prohibited from commenting on such evidence
in her closing argument. See Fletcher, 455 U.S. at 605-07, 102 S. Ct. at 1311-12; Morrison,
351 N.W.2d at 362.
Thus, the prosecutor did not commit misconduct by eliciting inadmissible evidence
that Villa did not tell Chief Wahl that he punched J.S. in self -defense or by commenting
on that evidence in her closing argument.
B. Argument on Prior Bad Acts
The second part of Villa’s argument is based on the following excerpt from the
prosecutor’s closing argument:
He had had previous incidents with [J.S.]. . . . All of these
incidents have a common theme in that the Def endant went to
[J.S.]. The Defendant said – yup, he left both of the times. So,
clearly he knew how to leave. One of them occurred at the
V.F.W. He left then and he could have left. He could have
retreated. He could have avoided the danger by just getting in
his car and quote to use his words “going about his business.”
He made that conscious choice. . . . Honesty. Good faith.
Those prior examples show the Defendant did not use either of
those in this case.

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Villa argues that the prosecutor shoul d not have urged the jury to consider the two
prior incidents to find that Villa did not act in self-defense because the two incidents were
admitted for a different purpose, which was to show Villa’s motive and intent. In response,
the state argues, first, that the prosecutor did not urge the jury to use the evidence for an
improper purpose and, second, that the purpose for which the evidence was admitted is
directly relevant to Villa’s defense of self-defense.
Villa cites State v. Johnson , 616 N.W.2d 7 20 (Minn. 2000), in support of his
argument. In Johnson, the supreme court stated that “it is unprofessional conduct for a
prosecutor to ‘knowingly and for the purpose of bringing inadmissible matter to the
attention of the judge or jury to . . . make other impermissible comments or arguments.’”
Id. at 729 (quoting American Bar Ass’n Standards for Criminal Justice 3 -5.6(b) (2d ed.
1980)). The supreme court added that, if “evidence admissible for one purpose but not for
another [purpose] is admitt ed, the court upon request must instruct the jury that the
evidence is limited to its proper purpose.” Id. (citing Minn. R. Evid. 105). In this case, the
district court gave such an instruction.
To prevail, Villa must show that the evidence of the two p rior incidents was
inadmissible for the purpose for which the prosecutor used it in closing argument. See id.
at 728-30. Evidence of a defendant’s prior bad acts is not admissible to prove that the
defendant acted in conformity with the prior bad acts or has a propensity to act in such a
way. Minn. R. Evid. 404(b); State v. Smith, 749 N.W.2d 88, 92 (Minn. App. 2008). But
evidence of a defendant’s prior bad acts may be admissible for other purposes, such as to
prove motive, opportunity, or intent. Minn. R. Evid. 404(b).
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In this case, the prosecutor’s argument did not seek to persuade the jury that Villa’s
actions on July 7, 2015, conformed to his actions on the prior occasions or that he had a
propensity to act as he acted on the prior occasions. To the contrary, the prosecutor sought
to contrast the prior incidents with the July 7, 2015 incident and to show that Villa acted
differently on this occasion than he had in the past. In so doing, the prosecutor did not
attempt to use the prior -bad-acts evidence for an inadmissible purpose. The prosecutor’s
purpose was essentially the same as the purpose for which the prior-bad-acts evidence was
originally offered—to show that Villa was motivated to cause harm to J.S. and intended to
do so, which may be inconsistent with his defense of self-defense.
Thus, the prosecutor did not commit misconduct by urging the jury to consider the
two prior incidents for a different purpose than that for which they were admitted.
II. Right to Speedy Trial

In a pro se supplemental brief, Villa argues that he was denied his constitutional
right to a speedy trial. Villa did not file a motion in the district court to dismiss the charges
on this ground, so we do not have the benefit of the district court’s analysis of the issue.
The supreme court has not decided whether an offender may argue on direct appeal that
his right to a speedy trial was violated if he did not file a motion for dismissal in the district
court. See State v. Walter, 289 Minn. 309, 312, 184 N.W.2d 426, 429 (1971); State ex rel.
McGregor v. Rigg, 260 Minn. 141, 147, 109 N.W.2d 310, 314-15 (1961). This court has
considered such arguments for the first time on appeal. See e.g., State v. Johnson , 811
N.W.2d 136, 141-45 (Minn. App. 2012) , review denied (Minn. Mar. 28, 2012) ; State v.
Smith, 749 N.W.2d 88, 91, 97 -98 (Minn. App. 2008); State v. Carlson, 369 N.W.2d 326,
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328 (Minn. App. 1985), review denied (Minn. Jul y 26, 1985). Thus, we will consider
Villa’s speedy-trial argument.
The United States and Minnesota constitutions provide that, in all criminal
prosecutions, “the accused shall enjoy the right to a speedy and public trial.” U.S. Const.
amend. VI; see also Minn. Const. art. I, § 6. In determining whether a delay has deprived
a defendant of the right to a speedy trial, Minnesota courts generally apply the four -part
balancing test of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972). See State v. Taylor,
869 N.W.2d 1, 19 (Minn. 2015); State v. Windish , 590 N.W.2d 311, 315 (Minn. 1999).
The four factors are (1) the length of the delay, (2) the reason for the delay, (3) whether the
defendant asserted his right to a speedy trial, and (4) whether the delay pr ejudiced the
defendant. Barker, 407 U.S. at 530-33, 92 S. Ct. at 2192-93. The four factors must be
considered together in light of the relevant circumstances, and no one factor is dispositive
or necessary to a finding that a defendant has been deprived of the right to a spee dy trial.
Id. at 533, 92 S. Ct. at 2193; Windish, 590 N.W.2d at 315.
First, Villa’s trial began on February 16, 2017, approximately 18 months after he
initially was charged. See State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986) (stating that
“delay in speedy-trial cases is calculated from the point at which . . . a person is arrested
and held to answer a criminal charge”). A “delay of seven months is long enough to trigger
the consideration of the other Barker factors.” Id.
Second, the record indicates that the state and the district court often had valid
reasons for postponing the trial and that Villa generally either caused or acquiesced to the
postponements. The record does not indicate a reason for every postponement, in part
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because Villa did not file a speedy-trial motion in the district court. When the state initially
charged Villa in July 2015 , trial was scheduled for January 28, 2016. At a pre -trial
conference in mid-January 2016, the state informed the district court that it was amending
the complaint, and the state asked the district court to postpone the trial so that it could
develop additional evidence concerning J.S.’s injuries. Villa did not object. Accordingly,
the district court rescheduled the trial to April 29, 2016. In February 2016, the district court
rescheduled the trial to August 29, 2016, for reasons that do not appear on t he record. In
April 2016, in response to Villa’s speedy -trial demand, the district court moved the trial
forward to May 12, 2016. After Villa withdrew his speedy-trial demand in April, the
district court moved the trial back again to December 22, 2016. In May 2016, the district
court moved the trial forward again to August 11, 2016, for reasons that do not appear in
the record. In July 2016, the district court rescheduled the trial for September 29, 2016 ,
because both the prosecutor and Villa’s attorney were scheduled to try a different case in
August 2016 . At a hearing on September 29, 2016, the state requested a continuance
because of confusion as to whether Villa would stipulat e to certain facts, which would
affect the state’s witness list . As a res ult, the district court rescheduled the trial for
November 17, 2016. In November 2016, the district court rescheduled the trial for
February 16, 2017, at Villa’s request. To the extent that the record does not reveal a reason
for postponement s, we presum e that valid reasons existed because Villa did not file a
motion for dismissal in the district court. In addition, d elays that are attributable to the
defendant do not support a conclusion that the right to a speedy trial has been violated. See
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State v. Mahr, 701 N.W.2d 286, 292 (Minn. App. 2005) , review denied (Minn. Oct. 26,
2005). Thus, this factor weighs against Villa.
Third, Villa demanded a speedy trial three times , but he withdrew the first two
requests within a month, and the trial actually occurred approximately a month after his
last request. Villa first demanded a speedy trial on March 28, 2016, but waived the demand
on April 26, 2016. Villa also demanded a speedy trial on October 19, 2016, but withdrew
it on November 21, 2016. Villa demanded a speedy trial again on January 3, 2017, and the
trial began approximately six weeks later. Thus, this factor weig hs against Villa. See
Windish, 590 N.W.2d at 318 (stating that court must assess “the frequency and intensity of
a defendant’s assertion of a speedy trial demand”).
Fourth, there is no evidence in the record that the length of time between the initial
charge and the trial prejudiced Villa. A defendant has three interests in a speedy trial :
(1) preventing oppressive pre-trial incarceration, (2) minimizing the accused’s anxiety and
concern, and (3) limiting the possibility that the defense will be impaired. Barker, 407
U.S. at 532, 92 S. Ct. at 2193. Villa was not detained between his first appearance and the
trial. He asserts in his brief that he suffered “sleepless nights, constant stress, pressure, and
even vomiting blood” as a result of his stress awaiting trial . But he has not identified any
way in which his defense was impaired by the 18-month period between charging and trial.
Thus, this factor weighs against Villa.
After considering each of the four factors, we conclude that Villa’s right to a speedy
trial was not violated.
Affirmed.