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This opinion will be unpublished and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
A18-0039

State of Minnesota,
Respondent,

vs.

Michael Paul Valentine Jaros,
Appellant.

Filed November 13, 2018
Affirmed
Jesson, Judge

Otter Tail County District Court
File No. 56-CR-16-1830

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Melissa Sheridan, Eagan, Minnesota (for appellant)

Considered and decided by Worke , Presiding Judge; Reilly, Judg e ; a n d J e s s o n ,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Michael Jaros challenges his convictions of first-de gree criminal sexual
conduct and false imprisonment and sentences, arguing that he was deprived of a fair trial
when a detective improperly testified about pornographic images on Jaros’s phone, stating

2
that the images corroborated the complainant’s allegations. Ja ros also argues that his
false-imprisonment conviction mu s t b e r e v e r s e d b e c a u s e t h e c o n finement was merely
incidental to the commission of the criminal sexual conduct. We affirm.

FACTS
On a June evening in 2016, 22-year-old T.H. attended a street dance in Fergus Falls.
She ran into an older man, T.F, whom she had met the previous e vening at the VFW, and
started talking to him. Appellant Michael Jaros and his girlfriend, Stephanie HoldingEagle,
approached T.H. and T.F. and joi ned them at a picnic table. Th ey all talked and drank
alcohol and eventually drove toge ther to another bar. When T.H . asked HoldingEagle
whether she was involved with Jaros, HoldingEagle indicated the y were just friends, but
T.H. heard from other people at the bar that they were actually in a relationship.
At about 12:30 a.m., after T.F. went home, T.H. drove with Jaros in her car back to
Jaros’s house, where HoldingEagle joined them. They drank some more and played cards,
and T.H. engaged in mild flirting with Jaros. After an hour or so, T.H. said she wanted to
go home, but Jaros and HoldingEagle encouraged her instead to s tay and sleep on the
couch. T.H. testified that while she was lying on the couch, HoldingEagle rubbed against
her leg, but she said she was “not into women” and asked Jaros for help. She testified that
Jaros came over and pushed up against her, and HoldingEagle pulled off Jaros’s boxers to
reveal his penis.
T.H. then left and started to drive away in her car, but she testified that she returned
because she had left her cell phone in the house. She retrieved the phone and tried to leave

3
the house again, but Jaros grabb ed her by the arm and threw her on the couch. She told
him to get off, but he slapped her, pulled off her jeans and un derwear, and penetrated her
vagina. She testified when she tried to get up, he partially choked her and held her down,
which gave her bruises. According to T.H., whenever she tried to speak, he told her to call
him “sir,” and every time she answered a question “wrong” he sl apped her. Jaros told
HoldingEagle to perform oral sex on her, which occurred. He th en told T.H. to perform
oral sex on him, and when she refused, he penetrated her vagina again.
T.H. testified that Jaros then pulled her off the couch, remove d her t-shirt and bra,
held her by the arm, and pulled her into the bedroom. There, h e sexually penetrated her
vagina again and pinned her down with his hands and knees. She was scared and repeatedly
told him to stop. T.H. testified that at one point, Jaros asked HoldingEagle to bring him a
glass of water, which he drank. T.H. testified that she tried to leave about five times, but
he kept holding her down. Eventually he allowed her to leave. The whole episode from
the couch to the bedroom lasted from two to two-and-one-half hours.
As T.H. was leaving, she surreptitiously grabbed a piece of Jaros’s mail. She went
directly to a hospital, where a sexual-assault examination revealed injuries, including arm
and wrist bruises and internal vaginal tearing. Police were called, and Fergus Falls Police
Detective Matthew Shirkey interviewed T.H. at the hospital. Police located Jaros using the
mail that she took from the house, and T.H. identified Jaros an d HoldingEagle in a photo
lineup. Jaros admitted in a poli ce interview that T.H. had bee n at his home that evening
but denied that sexual intercourse occurred. DNA profiling showed that Jaros could not be
excluded as a source of material recovered from T.H.’s sexual-assault-kit swabs.

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Both Jaros and HoldingEagle were charged with first-degree crim inal sexual
c o n d u c t a n d f a l s e i m p r i s o n m e n t . The district court consolidate d their jury trials under
Minnesota Rule of Criminal Procedure 17.03, subdivision 2. 1 At trial, Shirkey testified
that as part of a search authorized by warrants, a forensic analysis of Jaros’s cell phone was
performed. The phone contained no calls, text messages, photos, or videos of the incident.
But Shirkey testified that it contained a number of pornographic photographs “that showed
violence towards women or violent a c t s o f a s e x u a l n a t u r e o c c u rring, some of which
corroborated [T.H.’s] story about what had happened.” He testi fied that the images had
captions placed on the photographs that “showed either a dominance or a violence towards
women, speaking angrily, being in a dominant position over them ,” which in his opinion
“corroborat[ed T.H.’s] statement about being told to call [Jaros] ‘sir.’” He observed that a
number of the photographs “talked about a male having sex with a female and then it being
another female’s job to clean things up afterwards. Which corroborated the penile vaginal
intercourse and then [HoldingEagle] performing oral sex on her.” He testified that he noted
these photographs in a report.
The defense did not initially object to these remarks. But at the end of Shirkey’s
direct testimony, during a recess, defense counsel told the cou rt that the state had not
provided the defense with Shirkey’s report until earlier that day. The defense moved for a

1 The jury found HoldingEagle no t guilty of criminal sexual con duct and guilty of false
imprisonment.

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mistrial, arguing that the report had not been timely provided, and Shirkey’s testimony was
fatally prejudicial to the defense.2
The district court reviewed Shirk ey’s report and denied the mot ion for a mistrial.
The district court found that, although there was a discovery violation, it was not purposeful
and did not rise to the level of a constitutional violation. T he court provided immediate
cautionary instructions to the ju ry. The judge instructed the jury that Shirkey did not
qualify as an expert, that the basis of Shirkey’s opinion was n ot evidence and should be
ignored, and that the jury was not to consider character testim ony regarding the
photographs as bearing on whether the defendant acted in conformity with that character.
The district court also directed the state not to refer to the photographs or Shirkey’s opinion
going forward or in closing argument.
Jaros testified in his defense that he kissed T.H. at one of the bars that evening and
believed that she was interested in him. He testified that T.H. showed him bruises on her
arm and told him that a man had tried to drag her out of a bar the previous evening. He
testified that he and T.H. had sex at his home, but that it was consensual. He stated that
when he began referring to HoldingEagle as his girlfriend, T.H. became angry, stopped
having sex with him, and left.

2 The prosecutor told the court that the underlying data had bee n provided; she believed
that Shirkey’s report had been i ncluded in a supplemental discl osure; and there had been
no initial objection to the tes timony. Defense counsel stated she had not seen the report,
and the photographs did not include Shirkey’s commentary.

6
HoldingEagle testified that she and Jaros had an open relations hip. She denied
performing oral sex on T.H. She testified that when T.H. was having sex with Jaros, T.H.
said once that it hurt, but that T.H. wanted to continue sexual activity until she discovered
that HoldingEagle and Jaros were in a relationship. HoldingEagle testified that when T.H.
left the house the first time, she saw T.H. talking on her cell phone in the car, and T.H.
returned because she wanted to.
When cross-examining Ho ldingEagle, the prosecutor stated, “So h e’s telling you
what to do; he’s telling you to clean up, that kind of thing . . . .” This language was similar
to Shirkey’s testimony based on the report. HoldingEagle replied that he wasn’t telling her
to “clean up anything.”
Before deliberations, the district court instructed the jurors that if the court had
asked them to disregard something they had seen or heard, they m u s t d o s o . W h i l e
deliberating, the jury sent back a question: “What from Detective Shirkey or his testimony
are we not to take into consider ation?” The district court res ponded, “Detective Shirkey
testified to conclusions he drew from viewing images on Mr. Jaros’s phone. These images
were not entered into evidence, and you should disregard any co nclusion he expressed
based on viewing them.”
The jury found Jaros guilty of both counts. The district court imposed a guidelines
sentence of 144 months for first-degree criminal sexual conduct and a concurrent sentence
of 15 months for false imprisonment.
This appeal follows.

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D E C I S I O N
I. The district court did not abuse its discretion by denying Jaro s’s motion for a
mistrial.

Jaros first argues that he was deprived his constitutional righ t to a fair trial with an
impartial jury when the district court declined to declare a mi strial based on improper
opinion testimony relating to the photographs on his phone. At the outset, we note that the
parties disagree on the proper standard for reviewing the distr ict court’s decision not to
declare a mistrial based on Shirkey’s testimony about the photo graphs. We first discern
the proper standard and then review the district court’s decision under that standard.
The United States and Minnesota Constitutions guarantee the right to a trial by an
impartial jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The Minnesota Supreme
Court has set forth a test that, in certain situations, require s examining whether a
defendant’s constitutional rights to a fair trial have been implicated by a jury’s exposure to
unfairly prejudicial material. See State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982) (stating
that exposing a jury “to potentially prejudicial material creates a problem of constitutional
magnitude because it deprives a d efendant of the right to an im partial jury”). Whether a
criminal defendant has been denied a fair trial presents a cons titutional question that this
court reviews de novo. State v. Dorsey, 701 N.W.2d 238, 249 (Minn. 2005). Generally,
however, this court reviews the district court’s denial of a motion for a mistrial for an abuse
of discretion. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). The state argues that
this general standard, rather than the standard for constitutio nal error enunciated in Cox,
controls in this case.

8
To determine “the appropriate standard of review,” we examine Cox a n d i t s
subsequent application. In Cox, the supreme court addressed whether the district court
abused its discretion by determining that a defendant could still obtain a fair trial despite a
remark in the presence of jurors by a sheriff acting as bailiff that he believed, when the
state rested its case, that it was “all over.” Cox, 322 N.W.2d at 557-58; see also Zimmerman
v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977) (addressing purpose of a Schwartz
hearing, which is held when a losing party raises an issue of jury misconduct). The supreme
court enunciated four factors to apply in determining whether a defendant’s right to a fair
trial was denied: the source and nature of the prejudicial matters, the number of jurors that
were exposed to the influence, the weight of the evidence that is properly before the jury,
and the likelihood that curative measures were effective to red uce the prejudice.
Cox, 322 N.W.2d at 557-58.
Jaros argues that the district court erred by failing to apply the Cox factors in this
case, citing this court’s opinion in State v. Hogetvedt, 623 N.W.2d 909, 914 (Minn. App.
2001), review denied ( Mi nn. Ma y 2 9, 20 0 1 ) . I n Hogetvedt, this court applied the Cox
factors and concluded that a def endant was denied his constitut ional right to an impartial
jury when a police officer, disregarding the district court’s express instructions, testified as
to his personal opinion that the defendant was guilty. Id. at 915-16.
B u t b a s e d o n a r e v i e w o f M i n n e s o t a S u p r e m e C o u r t c a s e s , w e d i s cern that the
supreme court intended the Cox factors to apply only when “outside influences” are
brought to bear on a jury, not when a witness testifies imprope rly, as in this case.
Cox, 322 N.W.2d at 559. For instance, in State v. Erickson, 610 N.W.2d 335 (Minn. 2000),

9
the supreme court held that the state met its burden under Cox to establish that a verdict
was not tainted by the bailiff’s improper conduct of exposing a deliberating jury to a
diagram that was not admitted into evidence. Erickson, 610 N.W.2d at 339. In State v.
Richards, 552 N.W.2d 197, 209-10 (Minn. 1996), the supreme court, citing Cox, held that
a brief conversation between the defendant and a friend of a juror’s husband did not deprive
the defendant of a fair trial. And in State v. Wilford, 408 N.W.2d 577, 581 (Minn. 1987),
the supreme court concluded that when two men were talking in an elevator in the presence
of jurors and said it “[did not] look too good” for the defendant, defendant’s right to a fair
trial was not violated under Cox. We endorsed this limited application of the Cox factors
in a case involving a Schwartz hearing. See State v. Hanke, 712 N.W.2d 211, 214 (Minn.
App. 2006) (citing Cox and explaining that “[t]he supreme court has set forth a four-p art
test to weigh whether prejudicial communications between jurors and a court official merit
a new trial”).
Based on our review, we conclude that the district court did no t err by declining to
apply the Cox factors when denying a mistrial in this case. For instance, on e of the Cox
factors directs consideration of how many jurors heard the ques tioned material, which is
inapplicable when the prejudicial remarks are presented in testimony before the entire jury.
Cox, 322 N.W.at 559. Here, the improper material was Shirkey’s te stimony from his
report, rather than any outside influence brought to bear on th e jurors. Therefore, the

10
district court did not err by failing to apply the Cox factors relating to constitutional error
when it denied Jaros’s motion for a mistrial.3
Even if the district court properly declined to apply the Cox factors, we must still
examine whether the district court abused its discretion by denying the motion for a mistrial
under the correct standard for assessing non-constitutional trial defects. When, as here, the
defendant moves for a mistrial, the correct legal standard directs the district court to grant
a mistrial “if there is a reasonable probability in light of th e entirety of the trial including
the mitigating effects of a cura tive instruction, that the outc ome of the trial would have
been different had the incident resulting in the motion not occurred.” State v. Griffin, 887
N.W.2d 257, 262 (Minn. 2016). W e note that, here, the district court improperly applied
the standard of manifest necessity, which has been applied when a district court granted a
mistrial sua sponte against the defendant’s wishes. See State v. Long , 562 N.W.2d 292,
296 (Minn. 1997) (noting that in such a situation, the district court examines whether a
“manifest necessity” existed—in other words, an error had occurred that was so significant
that it could not be cured with an intervention less drastic than granting a mistrial).
Nonetheless, even if a district court has applied the wrong standard, if its ruling was
warranted under the proper standard and no prejudice results, reversal is not required. State
v. Fox, 868 N.W.2d 206, 215 n.1 (Minn. 2015). We therefore assess th e district court’s

3 We further note that, even if we were to determine that the Cox factors did apply here,
the facts in this case do not ris e to the level of the “egregio us” conduct of the officer in
Hogetvedt, who testified as to the ultimate issue of the defendant’s guilt in direct disregard
of the district court’s cautionary instruction. Hogetvedt, 623 N.W.2d at 915.

11
ruling by examining whether its decision is supported under the correct standard. See
Griffin, 887 N.W.2d at 262.
Applying that standard, we concl ude that the district court did n o t a b u s e i t s
discretion by denying the motion for a mistrial, because there is no reasonable probability
that the outcome of the trial would have differed if the jury h a d n o t h e a r d S h i r k e y ’ s
improper testimony. See id . We acknowledge that Shirkey’s testimony referring to
pornographic photos found on Jaros’s cell phone, specifically t he captions referencing
sexual violence, was propensity evidence, which had a strong po tential to influence the
jury to improperly convict him on the basis of bad character. See Minn. R. Evid. 404(a)
(providing that generally, character evidence is not admissible to prove that a person acted
in conformity with that character).
Nonetheless, the state’s case against Jaros was strong. Immedi ately after the
incident, T.H. went directly to the hospital for an examination , which showed injuries
consistent with sexual assault and largely inconsistent with Ja ros’s theory of consensual
sex. She testified consistently w ith her statement to police, which she gave within hours
after the incident. Although Jaros challenged her credibility, he placed his own credibility
at issue when he acknowledged th at he had initially denied to p olice that he had sex with
T.H. In addition, the district court gave instructions to the jury to disregard the evidence
on two separate occasions. Although the prosecutor referred once to “cleaning up,” which
was noted in Shirkey’s testimony, the reference was brief and n ot repeated. And during
deliberations, at the jury’s request, the district court clarif ied which portion of Shirkey’s
testimony jurors were to disregard. The law presumes that jurors follow instructions. State

12
v. McCurry, 770 N.W.2d 553, 558-59 (Minn. App. 2009), review denied (Minn. Oct. 28,
2009).
The district court remains in the best position to evaluate whether any prejudice to
the defendant warrants a mistrial. State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App.
2001). On this record, we cannot conclude that a reasonable probability exists that, if jurors
had not heard Shirkey’s testimony, the result of the trial woul d have been different. See
Griffin, 887 N.W.2d at 262. Therefore, the district court’s decision to deny the defense
motion for a mistrial was not an abuse of discretion.
II. The evidence is sufficient to sustain Jaros’s conviction of false imprisonment.

Jaros also argues that the evide nce is insufficient to sustain his conviction of false
imprisonment. When reviewing a challenge to the sufficiency of the evidence, this court
is limited to ascertaining whether the fact-finder could have found, after giving due regard
to the presumption of innocence and the requirement of reasonab le doubt, that the
defendant was guilty of the charged offense. State v. Crow, 730 N.W.2d 272, 280 (Minn.
2007). We must determine if the evidence, taken in the light m ost favorable to the
conviction, was sufficient to p ermit the jury to convict. State v. Pendleton, 759 N.W.2d
900, 909 (Minn. 2009). In making this determination, we assume that the jury credited the
state’s witnesses and drew all reasonable inferences in favor of the state. State v. Jackson,
726 N.W.2d 454, 460 (Minn. 2007).
A conviction of false imprisonmen t requires that the defendant must have
“intentionally confine[d] or restrain[ed]” another person without authority and without that
person’s consent. Minn. Stat. § 6 0 9 . 2 5 5 , s u b d . 2 ( 2 0 1 4 ) . F o r t h e p u r p o s e o f f a l s e

13
imprisonment, confinement or restraint means depriving a person of freedom of going
where he or she wishes to go or preventing that person from lea ving a location. State v.
Dokken, 312 N.W.2d 106, 108 (Minn. 1981). Jaros argues that T.H. went willingly to his
house. But the jury could have determined that his false-imprisonment conviction does not
relate to her initial visit, but rather to the time period when she returned to Jaros’s house to
get her phone, and even more specifically, when she was pulled b y t h e a r m i n t o t h e
bedroom, where Jaros held her down and would not let her leave, despite her efforts to do
so. Therefore, we reject Jaros’s argument on this point.
Jaros also contends that the ev idence is insufficient to suppor t his
false-imprisonment conviction be cause the state failed to prove that his confinement of
T.H. was more than incidental to the criminal-sexual-conduct of fense. In making this
argument, he relies on two kidnapping cases, State v. Welch, 675 N.W.2d 615, 621 (Minn.
2004), which relies on State v. Smith, 669 N.W.2d 19, 32 (Minn. 2003) overruled on other
grounds by State v. Leake , 699 N.W.2d 312 (Minn. 2005). In Smith, the supreme court
held that “where the confinement or removal of the victim is co mpletely incidental to the
perpetration of a separate felony, it does not constitute kidna pping.” Smith, 669 N.W.2d
at 32. Thus, there was insuffici ent evidence of confinement to support a conviction of
first-degree murder while committing kidnapping when the only confinement that occurred
during the murder was the victim’s momentary confinement when a doorway was blocked
during the attack. Id. at 32-33. And in Welch, the supreme court held that the defendant’s
act of throwing the victim to the ground during a sexual assault was completely incidental
to the criminal sexual conduct and therefore did not support a conviction for kidnapping.

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Welch, 675 N.W.2d at 620. The supreme court noted that in such a ca se, a kidnapping
conviction would unfairly exagge rate the criminality of the def endant’s conduct. Id. at
621; see also State v. Swanson, 707 N.W.2d 645, 659-60 (Minn. 2006) (stating that “[i]f a
kidnapping is completely incident al to another offense and the imposition of a separate
conviction for kidnapping unfair ly exaggerates the criminality of a defendant’s conduct,
the kidnapping conviction and sentence may be vacated”).
Jaros argues that his conviction o f f a l s e i m p r i s o n m e n t u n d u l y exaggerated the
criminality of his conduct because T.H.’s false imprisonment was “completely incidental”
to the criminal sexual conduct offense. Smith, 669 N.W.2d at 33. We reject this argument
for two reasons. First, it is unclear whether the reasoning in Smith and Welch applies
equally to this case involving false imprisonment. The decisio ns in Smith and Welch
reflect, in part, a concern with the possibility of lengthy inc arcerations resulting from a
kidnapping conviction when other, more serious offenses are committed at the same time.
See Smith, 669 N.W.2d at 33 (noting that a person convicted of committin g first-degree
murder in the course of a kidnapping may be sentenced to life w ithout the possibility of
release); Welch, 675 N.W.2d at 621 (Hanson, J., concurring in part, dissenting in part)
(noting that consecutive sentencing in that case exaggerated the criminality of a kidnapping
conviction based on minimal confinement). This concern does no t exist with respect to a
conviction of false imprisonment, which is not subject to a len gthy sentence based on its
commission during another more serious crime. Here, Jaros received a lesser sentence on
his conviction of false imprisonm ent, concurrent to that on the first-degree
criminal-sexual-conduct offense.

15
Second, even if we were to determine that Smith and Welch m a y a p p l y t o a
false-imprisonment case, we disagree with Jaros that the conduct forming the basis of his
false-imprisonment conviction was “completely incidental” to his criminal-sexual-conduct
offense. The record shows that Jaros forcibly removed T.H. fro m the living room to the
bedroom of his home and pinned her down on the bed. He even co ntinued to hold T.H.
down while he drank a glass of water. She attempted to leave m ultiple times, and he did
not allow her to do so. Although this behavior facilitated Jar os’s sexual assault, it is not
merely incidental to the sexua l assault and constitutes “purpos eful behavior in its own
right.” See State v. Earl , 702 N.W.2d 711, 723 (Minn. 2005) (holding that the
“confinement or removal” of burglary victims by awakening them and moving them to
another room, “although [it] may have been necessary to commit the burglary, it was not
merely incidental,” but “purposeful behavior in its own right”). Under these circumstances,
the conduct forming false imprisonment was not completely incid ental to the criminal
sexual conduct, and this argument does not provide grounds for reversal.
In a pro se supplemental brie f, Jaros raises additional suffici ency-of-the-evidence
arguments. He challenges T.H’s credibility, arguing that, base d on the testimony of two
other witnesses, she may have been lying. Specifically, he notes that T.F. and another bar
patron who met T.H. at the VFW the evening before the assault b oth contradicted T.H.’s
testimony about where she went that night after leaving the VFW . He points to his own
testimony that T.H. originally told him and HoldingEagle that she had received bruises on
her arm from the other bar patron, who also changed his story a bout what happened after
leaving the VFW. Jaros further alleges that T.H. lied when she testified that he slapped her

16
on the face because no hospital or police reports contain that information, and no
photographic evidence showed marks on her face.
“Inconsistencies or conflicts between one witness and another d o not necessarily
constitute false testimony or serv e as a basis for reversal.” State v. Colbert, 716 N.W.2d
647, 653 (Minn. 2006). (quota tion omitted). In our review, we assume that the jury
disbelieved testimony that conflicts with the verdict. State v. Landa, 642 N.W.2d 720, 725
(Minn. 2002). And a jury is free to accept part of a witness’s testimony and reject another
part. Id. Resolution of inconsistencies between eyewitnesses’ testimony is the exclusive
function of the jury, who has the opportunity to observe witnes s demeanor and weigh
credibility. State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984). Here, the jury had ample
opportunity to weigh all of the e vidence, observe the witnesses , and resolve any
inconsistent testimony. Id. The evidence is sufficient to sustain Jaros’s conviction.
Affirmed.