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This opinion will be unpublished and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
A17-1792

State of Minnesota,
Respondent,

vs.

Marshall Andrew Reed,
Appellant.

Filed November 19, 2018
Affirmed in part and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-16-18053

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Ba rts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Ju dge; 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
On direct appeal from a judgmen t of conviction and sentence fo r attempted fifth-
degree criminal sexual conduct, appellant Marshall Andrew Reed argues that the district

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court erred in refusing to instruct the jury on the defense of abandonment and in imposing
ten years of conditional release as part of his sentence. Becau se Reed failed to meet his
burden of production for the abandonment instruction, we affirm his conviction. As to
Reed’s appeal from his sentence, because the warrant of commitment erroneously includes
a conditional-release term, we remand for correction.
FACTS
Early one morning in April 2016, 19-year-old M.R. was on the l ight rail, going to
work at the Mall of America. She was sitting in a window seat with the window on her left.
There was one seat between her and the aisle, and it was unoccupied.
Reed was sitting a few seats behind M.R. He later got up, wal ked a few steps
forward to look at the map, and then sat next to M.R. in the seat between her and the aisle.
After Reed sat next to her, M.R. started to feel brushing on he r leg and rib cage that she
described to be a “rubbing” and a “sexual touch.” She first thought it was Reed’s backpack
on his lap that was touching her but quickly realized that Reed ’s right hand was reaching
across his body and under the backpack to touch her. She could see Reed’s fingers out of
the corner of her eye. The touching did not involve heavy pressure and was not a squeezing
or a pinching; what M.R. felt was “dragging fingers.”
M.R. was sitting in the back-end area of the car where sixteen seats were grouped
together. In that area, there were eight other passengers besid es Reed. Although the
touching went on for several mi nutes, M.R. did not ask anyone f or help because she was
“scared” and “frozen.” She was so “frozen and stuck in [her] he ad” that she did not react
in any way to the touching except “checking [her] phone and trying to readjust [her]self.”

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As Reed’s hand moved up toward her breast, however, M.R. pushed Reed with her elbow
and told him to stop. Reed did n ot touch M.R. thereafter but co ntinued to sit next to her.
M.R. subsequently could see him touching himself briefly in the crotch area.
The light rail arrived at the airport, and five passengers who were sitting near M.R.
got off. M.R. was worried that she was going to be left alone with Reed in the light rail car
until she got to her destination. A few minutes later, when the light rail stopped at another
station, she stepped off the light rail car onto the platform and got into the car behind. She
finally got to work and called the police.
Reed was tried for the charge of attempted fifth-degree criminal sexual conduct. At
trial, the jury viewed the surveillance video from the light rail car during M.R.’s testimony.
M.R. identified herself and Reed in the video. She testified that there was not good camera
“angling in the train.” The cameras did not provide a clear lin e of sight to the front right
side of M.R.’s body where the touching and the elbow-pushing to ok place. And M.R. did
not clearly manifest her emotional distress on the video. Howev er, during her testimony,
M.R. explained to the jury what was happening moment to moment behind the obstruction
in the camera’s line of sight. And, from the back angle, M.R.’s hand can be seen moving
at the moment M.R. testified that she pushed Reed away with her elbow.
Before making her closing argument, defense counsel asked the court to instruct the
jury on the defense of abandonment. The court denied the request. After repeated viewings
of the surveillance video, the jury returned a guilty verdict. At sentencing, the district court
sentenced Reed to 35 months’ imprisonment and there was no ment ion of conditional

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release. But the later-issued warrant of commitment stated that “[c]onditional release after
confinement has been set at 10 years.”
On appeal, Reed seeks reversal of his conviction or, alternati vely, remand to remove
the conditional-release term.
D E C I S I O N
I. The district court did not abuse its discretion in refusing to instruct the jury on
the defense of abandonment.

Declining to give “a requested j ury instruction lies in the discretion of the trial court
and will not be reversed absent an abuse of that discretion.” State v. Palubicki, 700 N.W.2d
476, 487 (Minn. 2005). On appeal, a defendant seeking reversal bears the burden of
showing that the district court abused its discretion. See State v. Nunn, 561 N.W.2d 902,
907 (Minn. 1997). And, to be entitled to a new trial, the defendant must also establish that
the district court’s abuse of discretion prejudiced the outcome of his trial. Id.
To receive a jury instruction on an affirmative defense, “[a] defendant must meet a
burden of production by making a prima facie showing that [his] defense applies.” State v.
Moser, 884 N.W.2d 890, 905 (Minn. App. 2016). In determining whether the prima facie
showing has been made, “the evid ence is viewed in the light mos t favorable to the party
requesting the instruction.” State v. Edwards , 717 N.W.2d 405, 410 (Minn. 2006). If a
defendant meets his burden with supporting evidence, “[the] tri al court’s refusal to give a
jury instruction constitutes an abuse of discretion.” Turnage v. State, 708 N.W.2d 535, 546
(Minn. 2006).

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Reed sought a jury instruction on the affirmative defense of a bandonment.
Abandonment is defined by statute as “a defense to a charge of attempt that the crime was
not committed because the accuse d desisted voluntarily and in g ood faith and abandoned
the intention to commit the cr ime.” Minn. Stat. § 609.17, subd. 3 (2014). However, “[a]n
attempt is not voluntarily abandoned within the scope of § 609.17, subd. 3, if a defendant
refrains from carrying out his criminal act because of intervening circumstances.” State v.
Cox, 278 N.W.2d 62, 66 (Minn. 1979).
M.R. testified that she pushed her elbow against Reed and told him to stop before
he stopped touching her. Finding no evidence to the contrary, t he district court concluded
that the abandonment instruction was not supported by evidence because M.R.’s reaction
against the touching constituted an intervening circumstance. Reed disagrees, arguing that
the surveillance video is the supporting evidence of abandonment.
Reed puts forth the video as evidence that, contrary to M.R.’s testimony, the
intervening circumstance did not exist. He emphasizes what the video does not show. The
video does not show M.R.’s elbow being forcefully pushed agains t Reed or passengers
reacting to her saying “stop.” However, those facts do not establish that M.R. did not elbow
Reed or tell him to stop. First, the cameras were not positioned to capture everything—the
immediate area surrounding M.R.’s elbow was blocked from view. Second, M.R. testified
that she did not say stop “loud enough” for others to hear. Thi rd, the video affirmatively
shows M.R.’s hand moving at the time she testified that she elbowed Reed to stop.
To be entitled to the abandonment instruction, Reed must make a prima facie
showing that he discontinued touching M.R. voluntarily and in good faith. See Minn. Stat.

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§ 609.17, subd. 3. That the video in this case may not fully ca pture the intervening
circumstance testified to by M.R. does not make the video evidence that Reed voluntarily
and in good faith abandoned his intention to commit the crime. Cf. State v. Strommen, 648
N.W.2d 681, 683, 689-90 (Minn. 2002 ) (requiring that jury be ac curately instructed on
abandonment when store’s clerk testified that defendant had told co-robber who had been
trying to open the cash register, “Come on. Don’t be stupid,” and “I didn’t want this. I just
wanted liquor,” and when defendant obeyed the clerk’s request t hat he not come behind
counter). Because Reed did not me et his burden of production, t he district court did not
abuse its discretion in refusing to instruct the jury on the ab andonment defense. Because
the exclusion of the abandonment instruction was not an abuse o f discretion, there is no
need to conduct the prejudice analysis. We affirm Reed’s conviction.
II. Reed’s sentence does not i nclude conditional release.
Reed also argues that the distric t court erred in imposing ten years of conditional
release.1 When the district court orally p ronounced Reed’s sentence, the conditional-
release term was not included. But the warrant of commitment st ates that “[c]onditional
release after confinement has been set at 10 years.” “When an orally pronounced sentence
varies from a written sentencing o rder, the orally pronounced s entence controls.” State v.

1 The state agrees that the district court should not have imposed a conditional-release term.
But because this court has an obligation to decide cases in acc ordance with the law, we
nevertheless will independently review the issue. See State v. Hannuksela , 452 N.W.2d
668, 673 n.7 (Minn. 1990) (noting that it is the responsibility of appellate courts to decide
cases in accordance with the law , regardless of whether the par ties choose to contest an
issue).

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Staloch, 643 N.W.2d 329, 329 (Minn. App. 2002). Therefore, under Staloch, Reed’s
sentence does not include the conditional-release term.
Moreover, the district court was not authorized to impose the ten-year conditional-
release term in this case. Minn. Stat. § 609.3455 mandates cond itional release for certain
crimes:
[W]hen a court commits an offender to the custody of the
commissioner of corrections for a violation of section 609.342,
609.343, 609.344, 609.345, or 609.3453, the court shall
provide that, after the offender has been released from prison,
the commissioner shall place the offender on conditional
release for ten years.

Minn. Stat. § 609.3455, subd. 6 (2014). In State v. Noggle, the supreme court held that a
ten-year conditional-release term imposed for a crime not withi n the plain language of
section 609.3455 is unauthorized by law. 881 N.W.2d 545, 550 (M inn. 2016). Reed was
convicted of an attempted viol ation of section 609.3451. Violat ion of section 609.3451,
attempted or completed, is not l isted in the ten-year condition al-release provision. Minn.
Stat. § 609.3455, subd. 6. Ther efore, we remand for the correct ion of the warrant of
commitment.
Affirmed in part and remanded.