State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0381

State of Minnesota,
Respondent,

vs.

Chad William Kasal,
Appellant.

Filed February 25, 2019
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-CR-17-1106

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant Ramsey County
Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chi ef Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Bjorkman, Judge; and
Klaphake, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that he is entitled to a new trial bec ause the dist rict court
communicated with the jury outside of open court without his consent or knowledge, and
without making a contemporaneous record of the communication. We affirm.
FACTS
On June 30, 2016, L.W .-A. went to a bar where she met an acquaintance and
appellant Chad William Kasal whom L.W.-A. did not know. After L.W.-A.’s acquaintance
left, she and Kasal remained at the bar together.
Later, L.W .-A. and Kasal left together. L.W.-A. felt a friendly connection with
Kasal. Kasal acco mpanied L.W .-A. when she walked her dogs and then went into her
condo with her. L.W.-A. and Kasal talked and listened to music before L.W.-A. stated that
she was tired and going to bed. Kasal followed L.W.-A. to her bedroom and got into bed
beside her. Kasal pressed up against L.W .-A. and she could feel his erection. She told
him, “No. No. This isn’t going to happen[,]” and “I don’t want to do this. This isn’t what
I want to do. Don’t. ” Kasal turned L.W.-A. onto her stomach and penetrated her anally
and vaginally.
L.W.-A. “froze” and thought “how much [she] didn’t want this to happen.” After
the assault, L.W.-A. got Kasal’s phone number in order to have some of his information ,
and told him to get out of her house. After Kasal left, L.W .-A. texted her brother, her
roommate, and a cousin, and eventually went to her brother’s house.

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The day after the assault, L.W .-A. went to the hospital. The sexual assault nurse
examiner (SANE) noted injuries to L.W .-A.’s vagina and anus that were indicative of
blunt-force trauma, and consistent with L.W .-A.’s account of a sexual assault. L.W.-A.
reported the assault to police a nd Kasal was charged with first- and third-degree criminal
sexual conduct.
At his jury trial, Kasal testified that L.W.-A. initiated romantic contact with him .
Kasal testified that L.W.-A. invited him upstairs, where she undressed and got into bed.
He testified that L.W.-A. initiated sex by getting on top of him. Kasal testified that L.W.-
A. became irritated because he had difficulty maintaining an erection. He testified that
“she jumped up out of bed and said we probably shouldn’t do this. You should probably
go.” Kasal stated they exchanged numbers and he left.
During the course of the jury’s deliberations, the district court and jury engaged
each other in five written communications.
Note one: [District court:] The Deputy has informed me
that you want a timeline. Please be more specific
re your request so I can answer more completely.

Note two: [Jury:] How late can we go to tonight?
[District court:] How about this: we will check
in with you at 6:30 to see how you are doing?
Also, we have ordered food for you and will have
it around 5:15 or so.

Note three: [District court:] How’s everybody doing? What
are you folks thinking re how late you might
want to work?
[Jury:] We are making progress; however, we
likely have a fair amount of discussion.
And as far as time it seems like people think until
8:30 could work.

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Thanks for pizza!
[District court:] Sounds Good!

Note four: [Jury:] Can we have ice?
[District court:] Best we can do!

Note five: [Jury:] If we were considering the possibility
that some of the penetration was consentual [sic]
and some was non -consentual [sic] do the
personal injuries have to occur during the non -
consentual [sic] intercourse in order for 1st
degree to apply?
[District court :] You are to refer to the final
instructions I have given you.

There is no indication in the record that the parties were notified of th e
communications, nor was anything placed on the record besides the eventual filing of the
notes. The jury found Kasal not guilty of first-degree criminal sexual conduct, but guilty
of third-degree criminal sexual conduct . The district court sentenced Kasal to 76 months
in prison. This appeal followed.
D E C I S I O N
Kasal argues that he is entitled to a new trial because the district court violated his
due-process rights by communicating with the jury outside his presence. “When an error
implicates a constitutional right, we will award a new trial unless the error is harmless
beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if the jury’s
verdict was surely unattributable to the error.” State v. Davis, 820 N.W.2d 525, 533 (Minn.
2012) (citation and quotation omitted).
“A defendant’s constitutional right to be present is grounded in the Confrontation
Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth

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Amendment.” Ford v. S tate, 690 N.W.2d 706, 712 (Minn. 2005) . “In jury
communications, Sixth Amendment rights are not at issue because there are no witnesses
to confront.” Id. The due process right at issue is the defendant’s right to be present at all
critical stages of tri al. Id. This right is not violated , however, “when [the district court]
communicates in writing with the j ury about a housekeeping matter. ” Id. at 713. Kasal
concedes that portions of the communications regarding dinner and ice constitute
housekeeping matters and do not implicate his due-process right to be present.
Kasal asserts, however, that portions of the communications were substantive—as
opposed to housekeeping—resulting in prejudice. Before analyzing the impact of any
potential error upon the jury’s verdict, we first must determine whether the district court’s
communications with the jury regarding the timeline for deliberation s implicate Kasal’s
right to be present.
Communications regarding timeline for deliberations
Kasal argues that any communication pertaining to the timeline for deliberations is
substantive, and implicates his right to be presen t. The defendant must be present “for
every stage of the trial ,” including: “ any jury questio ns dealing with evidence or law. ”
Minn. R. Crim. P. 26.03, subd. 1(1)(f). Reversible error occurs when communications
from the district court to the jury can be construed to give the impression that the jury must
reach a verdict. See State v. Hendry , 636 N.W.2d 158, 167 (Minn. App. 2001) (“In the
absence of the attorn eys and the defendant . . . an instruction that the jury must reach a
verdict is coercive.”), review denied (Minn. Jan. 29, 2002); see also Peterson v. State, 672
N.W.2d 612, 616 (Minn. App. 2003) (“The response to ‘keep working’ cou ld well be

6
interpreted to mean that t he jury must reach a verdict.”) , review denied (Minn. Mar. 16,
2004).
The communications regarding the timeline for deliberation are analogous to the
communications in Hendry, which constitute housekeeping matters and d o not implicate
Kasal’s due-process right to be present. In Hendry, the jury asked, “[i]f we do not reach a
consensus by the end of the day, what happens?’ 636 N.W.2d at 166. This court concluded
that this was a housekeeping question, because it did not “implicate factual or legal
questions to be decided by the jury during its deliberations .” Id. This court further
explained:
[w]hen a jury is deadlocked, and is subsequently instructed that
it may not deadlock and that it must reach a verdict, this may
constitute reversible error . . . Here, however, the jury asked a
vague question about the district court’s sequestration
procedures; it did not indicate that it was deadlocked or that it
could not reach a verdict by the end of the day.

Id. at 166 n.6 (citation omitted).
The district court’s response is, however, critical. In Hendry, the district court did
not respond to the jur y’s question , and this court determined that the question itself
constituted housekeeping. Id. at 166. In Peterson, the jury asked: “[w]hat happens if we
can’t decide? What if we can’t all agree?” 672 N.W.2d at 615. The district court’s reply
to “[k]eep working. That’s all I can say now. Keep working” was construed by this court
to be a substantive instruction. Id at 616.
Here, there is nothing in the communications that pertains to a potential deadlock,
or what the jury is to do in the event of a deadlock. Note one is a request from the district

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court for the jury to make a specific request regarding their question about timing. In note
two the jury asked: “[h]ow late can we go to tonight?” The district court responded: “[h]ow
about this; we will check in with you at 6:30 to see how you are doing?” Finally, in note
three the district court asked : “[h]ow’s everybody doing? What are you folks thinking re
how late yo u might want to work?” The jury responded : “we are maki ng progress;
however, we likely have a fair amount of discussion. And as far as time it seems like people
think until 8:30 could work.”
As in Hendry, the communications pertain exclusively to the district court’s
sequestration procedure and seek only to clarify when the jury will break for the evening.
There is no communication regarding a deadlock . The jury merely informed the district
court that it would deliberate until 8:30, w hich the district court approved. While “any
doubt regarding whether a communication relates to a housekeeping or substantive matter
should be resolved in favor of [the] defendant’s presence,” Ford, 690 N.W.2d at 713, the
communications here regarding the timeline for deliberations fall squarely within Hendry’s
definition of housekeeping and do not implicate Kasal’s due-process right to be present.
Request for instruction on the law
The district court erred by responding in writing outside of open court , without
notice to the parti es, and outside Kasal’s presence to the jury’s request for additional
instruction on the law in note five. See Minn. R. Crim. P. 26.03, subd. 1(1)(f) (the defendant
must be present for “any jury questions dealing with evidence or law”); see also Id., subd.
20(3) (“If the jury asks for additional instruction on the law during deliberation, the court

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must give notice to the parties. The court’s response must be given in the courtroom.”) .
The state, however, maintains that the error was harmless.
“Even if a defendan t is wrongfully denied the right to be present at every stage of
trial, a new trial is warranted only if the error was not harmless.” State v. Sessions , 621
N.W.2d 751, 756 (Minn. 2001) (citing State v. Schifsky, 69 N.W.2d 89, 96 (Minn. 1955)).
“When cons idering whether the erroneous exclusion of a defendant from judge -jury
communications constitutes harmless error, we consider the strength of the evidence, and
substance of the judge’s response.” Id. (citations omitted).
The evidence was suff iciently st rong to support Kasal ’s conviction. Due to the
conflicting testimony provided by L.W. -A. and Kasal , the jury had to make credibility
determinations. “The assessment of a witness’s credibility is exclusively the province of
the jury.” State v. McCray, 753 N.W.2d 746, 754 (Minn. 2008) (quotation omitted). The
jury’s verdict shows that it found L.W.-A. to be more credible.
While not required, L.W.-A.’s account was corroborated . See Minn. Stat. §
609.347, subd. 1 (2014) (stating A criminal -sexual-conduct victim’s testimony does not
need to be corroborated). Her brother testified that she appeared to be in a state of shock
the morning following the incident. Also, the nurse testified that she observed injuries on
L.W.-A.’s body consistent with sexual assault. The nurse also testified that L.W.-A.’s
reaction to “freeze” during the assault was consistent with the behavior of victims of sexual
assault. Finally, the jury heard evidence of text messages between L.W.-A. and Kasal in
which L.W.-A. stated: “I told you no” and “[t]hat wasn’t consented and you f - - king know
it.” Kasal’s only response was “U [sic] need help.” Because the evidence sufficiently

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supports the jury’s verdict, the district court’s erroneous communication with the jury was
harmless.
The substance of the district court’s response also supports a conclusion of harmless
error. In note five the jury asked a complicated question of law. The district court’s sole
response was: “You are to refer to the fina l instructions I have given you.” No additional
instructions or clarifications were given to the jury, nor were the original instructions reread
or provided in any new form.
The district court’s response directing the jury back to the original instructions is
not prejudicial and therefore the error was harmless. See Sessions, 621 N.W.2d at 756-57
(stating that the defendant was not prejudiced because the district court did not provide
new instructions in response to a jury question); see also Schifsky, 69 N.W.2d at 98 (stating
that the defendant was not prejudiced because the district court only repeated part of an
original instruction).
Failure to make a contemporaneous record
Kasal argues that the district co urt’s failure to make a contemporaneous record in
open court of its communications with the jury, without notice to the parties, by itself
constitutes reversible error. “If no constitutional right was implicated, we will reverse only
if the district court ’s error substantially influence [d] the jury’s decision.” State v. Vang ,
774 N.W.2d 566, 576 (Minn. 2009) (quotation omitted).
Regardless of whether a communication with a deliberating jury is of a
housekeeping or substantive matter, the district court should make a contemporaneous
record. State v. Martin , 723 N.W .2d 613, 625 -626 (Minn. 2006) (explaining that the

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expected practice is for a district court to convene the parties and make a contemporaneous
record of all communications so that the record is clear for appeal).
While it constituted error for the district court to answer the jury’s questions without
making a contemporaneous record in open court with not ice to the parties , based on the
above analysis such error is harmless. The evidence presented sufficiently supports Kasal’s
conviction, and the substance of the district court’s responses shows that the error was
harmless. While this court does not approve the actions of the district court, the verdict
was not attributable to the error, and therefore Kasal’s conviction is affirmed.
Affirmed.