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This opinion will be unpublished and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
A18-0395

State of Minnesota,
Respondent,

vs.

Jerrad Chad Juhl,
Appellant

Filed November 26, 2018
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Brown County District Court
File No. 08-CR-16-1184

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

Charles W. Hanson, Brown County Attorney, Breck Rolfsrud, Deput y County Attorney,
New Ulm, Minnesota (for respondent)

Jacob M. Birkholz, Michelle Olsen, Birkholz & Associates, LLC, Mankato, Minnesota (for
appellant)

Considered and decided by Rodenberg, Presiding Judge; Schellha s, Judge; and
Smith, John, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
RODENBERG, Judge
Appellant appeals from his convictions and sentences for five counts which include
the offenses of solicitation of a child to engage in sexual conduct, agreeing to hire a minor
for prostitution, and distributing material concerning sexual conduct to a child. He argues
that the district court erred by denying his request to present an entrapment defense at trial,
and that the district court erred when it sentenced him for mul tiple offenses arising from
the same course of conduct. We affirm in part, reverse in part, and remand.
FACTS
On December 5, 2016, as part of a sting operation, an undercover law enforcement
officer posted an advertisement in the “escort” section of Back page.com.1 T h e
advertisement read, “I am a playful girl waiting for u! Come relax. And relax all the stress
from ur day.” The posting indicated that the female was 20 years old and included a phone
number and a picture.
That evening, at approximately 5:52 p.m., appellant Jerrad Chad Juhl replied to the
advertisement in a text message, indicating that he “was very interested.” The undercover
law enforcement officer answered, and asked “are you as board as I am 2-nite?”2 Appellant
asked how old the female was, and she replied, “16 how old ru” and “do my age matter to

1 The undercover officer is male. He pretended during this “sti ng operation” that he was
an underage female. References to the officer in this opinion therefore identify the officer
using female pronouns.

2 The officer testified that the texts were designed to appear a s if they were written by a
teenager. We use the misspellings and usage mistakes as they appear in the record.

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you????” Appellant told the female that he was 43, and asked the female “are you ok with
that?”
Appellant eventually attempted to arrange for the two to meet for sex later that night.
The undercover officer told appellant that she was home alone b ecause her mom was at a
casino for the night. They discussed payment, and the officer asked appellant “do u think
$150 is that ok??” and told appellant that “i did this once b4 with a older guy he gave me
$300 he was nice.”
Appellant continued to make plans to meet the female, and he eventually suggested
that he could transfer money to a WalMart card to pay her. The officer told appellant that
this proposal was problematic because, “I would have to ride my bike” to WalMart in order
to get the money. The officer asked appellant if he had any “booze” and told appellant that
“i want to part some tonight, cant you come to see me?”
Appellant again asked how old the female was and texted, “Are y ou really 16 it
doesn’t matter if you actually younger.” The officer replied, “Almost 16 but I have done
this once b4 why wont u cum to see me now???” Despite knowing that the female was
“almost 16,” appellant did not stop the text-message conversation. Appellant said, “I can
transfer you money tonite” and th at, if the female would take a check, he could probably
go to her house that night. The officer texted that she had only a “savins account.”
Appellant and the officer agreed to meet at what appellant thought was the female’s
mother’s home. Law enforcement arrested appellant upon his arrival. Appellant had both
alcohol and a checkbook with him.

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The state charged appellant with six counts of prostitution-rel ated offenses under
Minn. Stat. §§ 609.324 and 609.352 (2016). Before trial, appellant gave notice of his intent
to assert entrapment as a defense at trial. At a pretrial hearing, appellant’s counsel sought
a pretrial ruling on the sufficiency of the evidence to support an entrapment defense at trial.
Appellant did not waive his jury- trial right. The district cou rt concluded after a hearing
that appellant’s evidence and ar guments were insufficient to al low the defense to go to a
jury. Appellant’s trial counsel requested reconsideration of t his ruling, which the district
court denied.
After a two-day trial, a jury found appellant guilty of (1) Pro stitution—Engages in
Prostitution, Hires, Offers, or A grees to Sex – Reasonably Beli eves Age 13 to 16, Minn.
Stat. § 609.324, subd. 1(b)(3); (2) Prostitution—Engages in Prostitution, Hires, Offers, or
Agrees to Sex – Reasonably Believes Under Age 18, Minn. Stat. § 609.324, subd. 1(c)(3);
(3) Solicitation of an Individual the Defendant Reasonably Beli eves to be a Child of 15
Years of Age or Younger to Engage in Sexual Conduct, Minn. Stat . § 609.352, subd. 2;
(4) Electronic Solicitation of an Individual the Defendant Reas onably Believes to be a
Child 15 Years of Age or Younger to Engage in Sexual Conduct, M inn. Stat. § 609.352,
subd. 2a(1); (5) Electronic Solicitation of an Individual the Defendant Reasonably Believes
to be a Child 15 years of Age or Younger to Engage in Sexual Co nduct – Distribute
Material, Language or Communication, Minn. Stat. § 609.352, subd. 2a(3).
Although appellant was not charged under Minn. Stat. § 609.494 (2016), the state
argued at sentencing that section 609.494, subdivision 4, allows for consecutive sentences,
and the district court convicted appellant of all five counts a nd sentenced all counts

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consecutively. It granted a downward dispositional departure o n count five, Minn. Stat.
§ 609.352, subd. 2a(3), Distribut e via Electronic Communication Material that
Relates/Describes Sexual Conduct to a Child, because the distri ct court considered
appellant to be particularly amenable to probation.
This appeal followed.
D E C I S I O N
I. The district court erred by fa iling to obtain a jury-trial waiver from appellant,
but the district court’s error was harmless beyond a reasonable doubt.

Appellant argues that the distric t court erred by denying him t he opportunity to
present the entrapment defense to a jury without obtaining a waiver of appellant’s right to
a jury trial.
Appellate courts review district court rulings on evidentiary issues for an abuse of
discretion. State v. Atkinson, 774 N.W.2d 584, 589 (Minn. 2009). If the appellate court
concludes that the district court erred, then it must determine w h e t h e r t h e e r r o r w a s
harmless. Id. “If a district court’s evidentiary ruling is determined to be erroneous, and
the error reaches the level of a constitutional error, such as denying the defendant the right
to present a defense, our standard of review is whether the exc lusion of evidence was
harmless beyond a reasonable doubt.” State v. Smith, 876 N.W.2d 310, 331 (Minn. 2016)
(quoting State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotation omitted)). “A
conviction will stand if the constitutional error committed was harmless beyond a
reasonable doubt.” Atkinson, 774 N.W.2d at 589. Here, because appellant did not waive
his right to present the entrapment defense to a jury, and because the right to a jury trial is

6
a constitutional right, we review any error to determine whether it was harmless beyond a
reasonable doubt.
Criminal defendants have “a constitutional right to a meaningf ul opportunity to
present a complete defense.” Loving v. State , 891 N.W.2d 638, 646 (Minn. 2017)
(quotation omitted). But, a defendant’s right to present a complete defense is not absolute.
Atkinson, 774 N.W.2d at 589. “Courts may limit the scope of a defendan t’s arguments to
ensure that the defendant does not confuse the jury with misleading inferences.” Id.
A defendant asserting the entrapment defense has the option of presenting the issue
to the jury as a factual issue or to the court as a matter of law. State v. Balduc, 514 N.W.2d
607, 611 (Minn. App. 1994). The e ntrapment defense is a predis position-based defense
which the jury must decide unless the defendant waives his jury-trial right and requests the
district court to serve as the trier of fact on the entrapment issues. State v. Ford , 276
N.W.2d 178, 179 (Minn. 1979).
If the defendant chooses to have the court decide the issue, the defendant must waive
his right to a jury trial on that issue as provided in Minn. R. Crim. P. 26.01, subd. 1(2).
Minn. R. Crim. P. 9.02, subd. 1(6)(b). A defendant waiving his right to a jury trial must
do so personally, in writing, or on the record in open court, after being advised by the court
of the right to trial by jury. Minn. R. Crim. P. 26.01, subd. 1(2)(a). The court deciding the
issue must make findings of fact and conclusions of law on the record supporting its
decision. Minn. R. Crim. P. 9.02, subd. 1(6)(c).
The record here is unusual in that appellant’s trial counsel m oved the district court
for a determination of the suffi ciency of the ev idence to suppo rt an entrapment defense,

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but did not waive appellant’s right to a jury trial. Trial cou nsel seems to have wanted the
district court to determine whether it would give an entrapment instruction to the jury at
trial based on the available evidence. This seems to have been a tactical decision designed
to determine, before the case was tried, whether the district c ourt would instruct the jury
concerning an entrapment defense. But, while appellant was pre sent at the omnibus
hearing, neither appellant nor his counsel waived a jury trial on the entrapment issue.
The district court accommodated appellant’s request—presumably made for tactical
reasons—to determine before the jury trial whether the evidence supporting his entrapment
defense was going to be sufficient to warrant an entrapment ins truction. Appellant made
no further offer of proof, and did not argue entrapment to the jury. But by not obtaining a
jury trial waiver from appellant, the district court erred under Minn. R. Crim P. 26.01. The
district court’s order prohibited appellant from raising the defense at trial.
Nevertheless, and based on our careful review of the record, w e conclude that the
district court’s error was harmless beyond a reasonable doubt.
Appellant argues on appeal that he produced sufficient evidence to support the
entrapment defense because the state purposefully used the Back page.com advertisement
to lure unsuspecting people to commit a crime. Minnesota’s entrapment law has two parts.
State v. Grilli, 230 N.W.2d 445, 456 (Minn. 1975). First, a defendant has the burden to
establish, by a fair preponderan ce of the evidence, that law en forcement induced his
actions. Id. To establish inducement, a defendant must show that the state did something
more than merely solicit the commission of a crime. State v. Olkon, 299 N.W.2d 89, 107
(Minn. 1980). This first element can be satisfied by showing p ersuasion, badgering, or

8
pressure by the state. Id. If a defendant cannot show that the state induced his actions ,
then the state does not need to prove the second element, that the defendant was
predisposed to commit the crime. Grilli, 230 N.W.2d at 456.
Appellant asserts that he produc ed sufficient ev idence at the pretrial hearing to
satisfy the first part of the Grilli test because law enforcement induced him to commit the
crime.3 The record does not support appellant’s argument. The text-m essage exchange
between the undercover officer and appellant shows that the off icer told appellant two
times during the conversation th at the person with whom appella nt was exchanging text
messages was not yet 16 years old. Appellant assured her that, even if she was younger,
“it doesn’t matter” to him and told her, “We will figure this out if you want too.” Disclosure
t h a t h e w a s t e x t i n g w i t h s o m e o n e u n d e r t h e a g e o f 1 6 d i d n o t s top appellant, and he
continued the text-message conve rsation and continued making ar rangements to pay the
15-year-old for sex. Appellant’s continued texts to the officer included graphic details of
what he would like to do to the female. When officers were arr esting another individual
and the texting in reply to ap pellant temporarily stopped, appellant continued to text, and
sent a number of messages saying that he was still willing to see the female if she was still
willing.
Appellant argues that “almost 16” could mean that the female was 17 or 18 and that
the pictures sent by the officer m ade the female’s age unclear. During the text-message

3 Appellant produced no evidence and made no argument at trial c oncerning entrapment.
Because of the unusual procedural posture of appellant’s pretrial request, we do not regard
the absence of evidence or argument concerning entrapment at tr ial to amount to a
forfeiture of the issue.

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conversation, the officer clearly indicated that the female was not yet 16. “Almost 16”
means 15, not 17. The undercover officer purposefully used lan guage that teenaged
children use in text messaging to convey that the female was a teen. The officer misspelled
words and used abbreviations for words such as that she “dont have a lic yet.”
The text-message exchange shows that the female told appellant she was not yet 16
years old and that, rather than ending the conversation once he knew that information,
appellant continued to make arra ngements to hire the purported 15-year-old to engage in
prostitution. Had appellant produced this same evidence at trial, and had the district court
then declined to give an entrapme nt instruction to the jury, th at would not have been
erroneous. The record utterly fails to demonstrate any pressur ing or badgering by the
undercover officer. It is clear beyond doubt that appellant was willing to engage a 15-year-
old child for sex without any pressure from the officer. Therefore, the district court’s error
was harmless beyond a reasonable doubt.
II. Appellant was not charged under Minn. Stat. § 609.494, and the exception to
multiple sentences provided by that section has no application here.

The jury found appellant guilty of five prostitution and solici tation crimes arising
from his text-message conversation with the undercover officer. Appellant argues that the
district court erred in sentenci ng him consecutively on all fiv e convictions because they
arose out of the same behavioral incident.4

4 Appellant does not argue on appeal that only one conviction was proper under Minn. Stat.
§ 609.04 (2016). Section 609.04 bars a district court from entering two convictions for one
act when a single act violates multiple provisions of a statute. State v. Spears, 560 N.W.2d
723, 726 (Minn. App. 1997), review denied (Minn. May 28, 1997); see also State v. Levie,
695 N.W.2d 619, 626 (Minn. App. 2005) (noting that it is to appellant’s benefit to have his

10
The district court determined that appellant could be sentenced for each offense, and
appellant received separate sentences for each count. 5 At sentencing, the district court
indicated that it intended to “Hernandize” the offenses.6 As each offense was sentenced, it
was included in the criminal history of the next offense being sentenced. As a result of
how the district court sentenced and computed criminal history score, appellant’s fifth-
sentenced conviction, distribution of electronic communication relating to sexual conduct
with a child, became a presumptive commitment to the commissioner of corrections. The

convictions vacated pursuant to Minn. Stat. § 609.04 because “under Minn. Stat. § 609.035,
relief can lead to sentencing on only one count, but the other convictions would remain on
the books and become part of appellant’s record”). We therefore do not address any section
609.04 issues. See State v. Patzold , 917 N.W.2d 798, 809 n.4 (Minn. App. 2018)
(“Appellant does not argue on appeal that only one domestic-assault conviction was proper
under Minn. Stat. § 609.04 (2016). We therefore do not consider that question.”), pet. for
review filed (Minn. Oct. 9, 2018).

5 The district court convicted and sentenced appellant for (1) prostitution – hires, offers, or
agrees to hire; individual believes to be under the age of 16; penetration or contact under
Minn. Stat. § 609.324, subd. 1(b )(3); (2) prostitution-actor hi res or agrees to hire and
reasonably believes under 18 but a t least 16 under Minn. Stat. § 609.324, subd. 1(c)(3);
(3) solicit child to engage in sexual conduct – prohibited act under Minn. Stat. § 609.352,
subd. 2; (4) solicit child or be lieve to be a child through ele ctronic communication to
engage in sexual conduct under Minn. Stat. § 609.352, subd. 2a( 1); (5) distribute via
electronic communication material that relates/describes sexual conduct to a child under
Minn. Stat. § 609.352, subd. 2a(3).

6 “Hernandizing” is the colloquial term for the process describe d in the sentencing
guidelines of determining an off ender’s criminal history when m ultiple offenses are
sentenced on the same day before the same court. Minn. Sent. Guidelines II.B.1.e (2016).
See also State v. Hernandez, 311 N.W.2d 478 (Minn. 1981). Under that provision, multiple
offenses sentenced at the same time before the same court must be sentenced in the order
in which they occurred. As each offense is sentenced, it is included in the criminal history
of the next offense sentenced.

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district court, departing downward from the sentencing guidelin es, sentenced appellant to
a stay of imposition on that offense.
Minn. Stat. § 609.035 prohibits the imposition of multiple sent ences for offenses
arising from a single behavioral incident and “contemplates tha t a defendant will be
punished for the most serious of the offenses arising out of a single behavioral incident.”
State v. Kebaso , 713 N.W.2d 317, 322 (Minn. 20 06) (quotation omitted). “Wheth er an
offense is subject to multiple sentences under Minn. Stat. § 60 9.035 is a question of law,
which we review de novo.” State v. Ferguson , 808 N.W.2d 586, 590 (Minn. 2012).
“Whether a defendant’s offenses occurred as part of a single course of conduct is a mixed
question of law and fact.” State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). We review
the district court’s findings of historical fact under the clea rly erroneous standard, but we
review the district court’s application of the law to those fac ts de novo. State v. Sterling,
834 N.W.2d 162, 167-68 (Minn. 20 13). The state bears the burde n of proving by a
preponderance of the evidence that the conduct did not occur as part of a single behavioral
incident. State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000).
“Whether a defendant’s multiple offenses occurred during a sing le course of
conduct depends on the facts and circumstances of the case. Of fenses are part of a single
course of conduct if the offens es occurred at substantially the same time and place and
were motivated by a single criminal objective.” Jones, 848 N.W.2d at 533 (citation
omitted). An appellate court will review the facts and circums tances of each case. State
v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).

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Here, appellant’s actions were motivated by a single criminal objective, which was
to hire the minor female to have sex with him. Appellant went to Backpage.com, responded
to an advertisement for sex, and continued to arrange for and s olicit sex, even after he
believed that the female was 15. The record supports that appellant’s offenses arose from
a single course of conduct.
The state argues that multiple sen tences are permissible here b ecause Minn. Stat.
§ 609.494 is an exception to the general rule concerning punishment for multiple offenses
that are “part of the same conduct.” Minn. Stat. § 609.494, subd. 3. Minn. Stat. § 609.494
defines a criminal offense, when an actor “is an adult and solicits or conspires with a minor
to commit a crime or delinquent act or is an accomplice to a minor in the commission of a
crime or delinquent act.” Minn. Stat. § 609.494, subd. 1. A d efendant convicted under
Minn. Stat. § 609.494 may also b e sentenced for other offenses that arise out of the same
conduct. Minn. Stat. § 609.494, subd. 3.
The state argues that the distric t court’s consecutive sentenci ng is authorized by
section 609.494 because the legislature intended consecutive se ntences whenever minors
are involved. But appellant was not charged with or convicted of a violation of section
609.494. There is no need to discern the legislature’s intent because section 609.494 does
not apply. We therefore revers e appellant’s sentences and rema nd to the district court to
vacate appellant’s multiple sente nces and to sentence appellant only for the most serious
offense. See State v. St. John, 847 N.W.2d 704, 708 (Minn. App. 2014) (noting that section
609.035 contemplates that a de fendant will be punished for the most serious offense
because imposing up to the maximum punishment includes punishment for all offenses).

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Appellant makes other arguments concerning his sentence, but, because we reverse
his sentences and remand to the d istrict court, we do not addre ss those remaining
arguments.
Affirmed in part, reversed in part, and remanded.