A18-0489

This opinion will be unpublished and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
A18-0405
A18-0489

State of Minnesota,
Respondent,

vs.

Alan Jon Nagle,
Appellant.

Filed February 4, 2019
Affirmed
Florey, Judge

Winona County District Court
File Nos. 85-CR-16-2507; 85-CR-16-2508
85-CR-17-1543

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

Karin L. Sonneman, Win ona County Attorney, Stephanie E. Nuttall , Assistant County
Attorney, Winona, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Schellhas, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In these consolidated direct appeals from convictions and sente n c e s f o r s e c o n d -
degree assault, threatening violence with intent to terrorize, domestic assault, and violating
an order for protection (OFP), appellant argues that his convic tions must be reversed
because he was denied his right to a fair trial and impartial judge. We affirm.
FACTS
On December 9, 2016, appellant pointed a muzzleloading rifle at his wife, K.N., in
the presence of their two children. He was charged with one count of second-degree assault
with a dangerous weapon and one count of threatening violence w ith intent to terrorize.
One week after the rifle incident, appellant and K.N. got into an argument. During the
dispute, in a struggle over K.N.’s car keys, K.N.’s finger was cut. Appellant was charged
with one gross-misdemeanor count of domestic assault—fear, and one gross-misdemeanor
count of domestic assault—harm.
In February 2017, K.N. obtained an OFP which prohibited appella nt from
contacting K.N., except by text message for the limited purpose of setting up parenting
time with the children. In July 2017, while appellant’s other charges were pending, he sent
text messages to K.N. that were unrelated to parenting time, and he was charged with one
gross-misdemeanor count of violating an OFP.
The state dismissed the charge o f domestic assault—fear. Appe llant waived his
right to a jury trial, and the remaining charges were heard in a single court trial. Appellant
waived his right to an attorney and represented himself. After the trial, the district court

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found appellant guilty of all four charges. On the second-degr ee-assault conviction,
appellant was sentenced to 36 months’ imprisonment, and on the conviction of threatening
violence with intent to terrorize, he was given a concurrent sentence of 15 months. On the
domestic-assault conviction, he was sentenced to 180 days in ja il, and he received a 180-
day concurrent sentence for the OFP violation. This consolidated appeal followed.
D E C I S I O N
Appellant argues, for three reasons, that he was denied his ri ght to a fair trial and
impartial judge, and therefore a structural error occurred, ent itling him to a new trial. He
asserts that the district court inappropriately questioned witn esses, made a comment
indicating actual bias, and erred by considering as evidence ap pellant’s actions and
statements made in his capacity as self-represented litigant.
“The Due Process Clause requires that a defendant receive a fa i r t r i a l i n a f a i r
tribunal before a judge with no actual bias against the defendant or interest in the outcome
of his particular case.” State v. Crow , 730 N.W.2d 272, 282 (Minn. 2007) (quotation
omitted). We presume that judges approach cases with a neutral and objective disposition.
State v. Burrell, 743 N.W.2d 596, 603 (Minn. 2008). We consider the record as a whole
when addressing judicial-bias claims. State v. Morgan , 296 N.W.2d 397, 404 (Minn.
1980).
There are two distinct avenues for a defendant to challenge a judge’s impartiality
on appeal. First, a defendant m ay assert that the judge should have recused himself or
herself from the proceeding. See State v. Schlienz , 774 N.W.2d 361, 365 (Minn. 2009).
Even if there was no objection below or motion to remove the ju dge for cause, a judge’s

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failure to recuse may be reviewed for plain error. Id.; see also State v. Finch, 865 N.W.2d
696, 703 (Minn. 2015) (noting that the substantial right at iss ue is not the outcome of the
case, but rather the right to a fair hearing before an impartial judge).
Second, regardless of whether or not the judge had an obligatio n t o r e c u s e , a
defendant may assert that the judge’s conduct deprived the defendant of the constitutionally
derived right to a fair trial and impartial factfinder. See State v. Dorsey, 701 N.W.2d 238,
249 (Minn. 2005). This type of constitutional claim is subject to de novo review. Id.
Appellant relies upon this second avenue and asserts that the judicial partiality here resulted
in a structural error.
Structural errors are “defects in the constitution of the trial mechanism, which defy
analysis by harmless-error standa rds” because “[t]he entire con duct of the trial from
beginning to end is obviously affected.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111
S. Ct. 1246, 1265 (1991) (quotation omitted). The Supreme Court has recognized that it is
structural error for a defendant to be tried before a partial j udge. Id. Structural errors
require automatic reversal. State v. Dalbec , 800 N.W.2d 624, 627 (Minn. 2011). We
address in turn appellant’s three stated grounds for reversal.
I. The district court’s questioning of witnesses was neither erron eous nor
indicative of partiality.

Appellant acknowledges that a dis trict court may question witne sses to produce
more exact testimony or elicit relevant testimony, but he argue s that the district court
exceeded that power in this case by acting as an advocate for the state.

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The Minnesota Rules of Evidence permit district courts to quest ion witnesses.
Minn. R. Evid. 614(b). The comments to the rule note that ques tioning should be
undertaken with caution, especially in a jury trial, and a spec ific objection must be made
to preserve a challenge for appeal. Minn. R. Evid. 614 1977 co mm. cmt.; State v. Olisa,
290 N.W.2d 439, 440 (Minn. 1980 ). Such questioning is generall y proper when done to
clarify testimony. See Teachout v. Wilson , 376 N.W.2d 460, 465 (Minn. App. 1985),
review denied (Minn. Dec. 30, 1985).
Appellant points to brief excha nges between the district court and appellant’s son
and daughter, both of whom testif ied, in which the district cou rt primarily inquired about
whether the boy had ever pointed a gun at his sister. These exchanges were not indicative
of bias. Appellant meandered in his questioning throughout the trial, but his general theory
of the case was that his son had been hiding the muzzleloader at the home and had pointed
the weapon at the daughter, and on December 9, appellant was simply trying to secure the
weapon. The district court’s questions were in line with appel l a n t ’ s o w n l i n e o f
questioning, clarified the children’s testimony, and expedited the process by eliciting
pointed answers. Appellant also points to a brief exchange between the district court and
appellant’s adult daughter, C.N., in which the district court i nterrupted appellant’s cross-
examination to inquire whether C.N. was afraid of appellant and upset with appellant.
These limited questions were re levant to the credibility of C.N .’s testimony and do not
indicate bias.
Appellant points to an exchange between the district court and one of the
investigating officers, in which the district court asked the o fficer whether there had been

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any reports of appellant threatening to kill himself, and speci fically, reports of appellant
threatening suicide with a gun. The officer noted that there was an incident where appellant
claimed an overdose, but the officer was unsure if this was a s uicide attempt. Prior to the
district court’s questions, appellant effectively raised the issue by asking the officer, “Are
you aware if [N.K.] has previously in reports said that I’ve po inted guns at my head
before?” and “Have you been on other calls dealing with me and her?” and “Do you know
of any reports that [appellant] poi nted a gun at anyone else? Ever?” The district court’s
questions were in line with appellant’s own questions, clarified the officer’s testimony, and
expedited the process.
Lastly, appellant points to several exchanges between himself and the district court.
For example, appellant testified about the muzzleloader, stating that December 9 was “the
first time [he had] seen that gun in [his] life,” and he then t estified about a 2013 incident
when the son pointed a gun at another individual. The district court questioned appellant
about the relevance of the 2013 incident. We discern no error.
Given that this was a court trial, and there was no danger of t he appearance of
partiality to a jury, the district court’s questions and statem ents, which were centered on
eliciting relevant and clarifying testimony and expediting the trial, do not establish error.
Additionally, the questions were generally in line with appella nt’s own questions and
theory of the case and do not demonstrate bias.

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II. The district court’s comment, which occurred after the close of testimony, does
not overcome the presumption of judicial impartiality.

Appellant next argues that the district court made a comment de monstrating actual
bias. After the close of testimony, the following exchange occ urred between the district
court and the prosecutor:
THE COURT: When was the last time there was a claim
of an incident between [appellant] and [K.N.] or the children,
do you know?
PROSECUTOR: That I’m aware of? Other than the OFP
violations, um, it would be the December 16. I’m not sure what
the last of the reported OFP violations was.
THE COURT: How long [does] the OFP last? Have
there been any incidents as far as you know since the OFP? I
mean, since the OFP charge?
PROSECUTOR: Yes.
T H E C O U R T : O k a y . O f c o u r s e t h e r e h a s . U m ,
. . . . Well, let me go back to my question here. Here’s my—
here’s something I want you to keep in mind, [appellant]. Not
only am I hearing this case and going to decide the guilt phase,
but in the event I do find you guilty, I’m going to have to decide
what the sentence is going to be.

The offhand comment, “[o]f cour se there has,” was inappropriat e. “To remain
impartial, the judge should avoi d the appearance of impropriety and should act to assure
that parties have no reason to t hink their case is not being fa irly judged.” State v. Munt,
831 N.W.2d 569, 580 (Minn. 2013) (quotation omitted). However, despite the comment,
the presumption of impartiality has not been overcome. The com ment occurred after the
close of evidence during an informal exchange, and shortly afte r the comment, the judge
indicated quite clearly that he had yet to make a guilt determination. The record as a whole
indicates that the district court was impartial, fair, and reas onable in accommodating
appellant’s defense. Morgan, 296 N.W.2d at 404.

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III. The district court did not improperly consider appellant’s pro-se conduct, and
even if the district court did err, the error was not structural error.

Lastly, appellant argues that the district court erred by consi dering as evidence
appellant’s actions and statement s while representing himself. He offers two examples.
First, after appellant requested that the district court stop K .N. from “mak[ing] faces at
[him],” the district court stated as follows:
[Appellant], what I will say is I have seen you very animated
throughout this trial, and so I’m not—I think that faces between
you and [K.N.] are going to be considered when we get to my
deciding on the credibility of the witnesses. That includes your
behavior throughout this whole thing. I’ll just let you know
that.

Second, while appellant was conduc ting cross-examination of K.N ., the district
court warned appellant against m aking admissions and stated tha t it would take into
account appellant’s statements when determining appellant’s credibility. Specifically, the
following exchange occurred:
APPELLANT: On December 5—okay. In reference to
the text message, you said, “What did I do to be in contempt of
court to you[?]” What is that in reference to? Excuse me, July
28.
K.N.: July 28 this year or the year—
APPELLANT: Correct. The 2017. The text message you
sent me. Supposedly sent me.
K.N.: That had something to do—I honestly
don’t know because you said that something about me being in
contempt of court, so I was asking you what—why I would be
in contempt of court.
APPELLANT: Your Honor—
K.N.: Because it’s ridiculous.
APPELLANT: —if you remembe r . . . I was forced to be
under subpoena . . . and [our d aughter] was also under
subpoena and failed to come to court.
PROSECUTOR: Objection, You r Honor. He’s testifying.

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THE COURT: So are you admitting that these are your
text messages?
APPELLANT: No, I’m not, Your Honor. I said—
THE COURT: Well, it sure sounds like it.
APPELLANT: I’m just reading off here—
THE COURT: It sure sounds like it. You got to be
careful what you say and what you ask.
APPELLANT: I said supposedly.
THE COURT: Yeah, I don’t care. If you’re admitting
that you know all about this, that’s an important admission.
You might want to be well-advised to be careful about making
such admissions. Now, the question is what does that have to
do with her testimony? I’m going to let you ask the question.
But if you—but I’m also taki ng into consideration the
s t a t e m e n t s y o u m a k e a n d h o w t h e y m a y a p p l y t o y o u r o w n
credibility, so let’s keep that in mind. Okay?

Appellant argues that by considering his conduct while acting a s self-represented litigant,
the district court, in effect, considered facts not in evidence.
As to the first instance offered by appellant, in which the district court stated that it
would consider appellant’s and K.N.’s behavior at trial, the district court never stated that
it would determine appellant’s c redibility based upon his behav ior, but merely “the
credibility of the witnesses.” T his implies that the district court was interested in the
evaluation of the behavior of witnesses on the stand, and that appellant’s conduct, which
might affect a witness’s behavior, would be taken into account in assessing that witness’s
credibility. The assessment of a witness’s credibility is excl usively the province of the
factfinder. Francis v. State , 729 N.W.2d 584, 589 (Minn. 2007). Moreover, not every
judicial error requires reversal. Dorsey, 701 N.W.2d at 252. “In cases involving trial
errors, we apply a harmless error test, which requires reversal unless the guilty verdict
rendered is surely unattributable to the error.” Id. (quotation omitted). Even if the judge

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erred by considering appellant’s conduct, such error was not indicative of bias and did not
rise to the level of structural error. Appellant’s conduct in the courtroom was never
referenced in the district court’s verdict order, and in a case whe r e t he di r ec t e vi de nc e
against appellant was quite str ong and included eyewitness test imony from multiple
witnesses, the verdicts are surely not attributable to the judge’s consideration of appellant’s
conduct in the courtroom. Cf. id. at 253 (concluding that a structural error occurred “when
the judge independently investigated a factual assertion made by a key defense witness and
revealed the results of her investigation to counsel”).
As to the second instance, when the district court stated that it would take into
account appellant’s admissions whe n determining appellant’s cre dibility, we discern no
error. Appellant was effectively testifying during cross-examination, or at a minimum, he
was on the verge of testifying, and therefore it was permissible and practical for the district
court to warn appellant that those admissions or statements could be damaging to his case
and the credibility of any subsequent testimony from him.
IV. Appellant’s pro se claims are unavailing.
Lastly, appellant filed a pro se supplemental brief, arguing th at his right to self-
representation was violated, and he is entitled to a new trial because of witness perjury.
Appellant’s other claims are unsupported by argument or legal authority and shall therefore
not be considered. See State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008).
Appellant asserts that the district court violated his right to self-representation
because the district court inform ed appellant that he would nee d to be represented.
However, the state correctly obs erves that, although the distri ct court initially denied

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appellant’s last-minute request to represent himself, the district court reversed its decision
and allowed appellant to proceed as a self-represented litigant . The state also correctly
notes that at the start of trial, the district court called a recess to allow appellant to go home
and retrieve materials that appellant had prepared, such as que stions and an opening
statement. Appellant’s argument that his right to self-represe ntation was violated is
unavailing.
Lastly, appellant claims that he should be granted a new trial because K.N.
committed perjury by testifying that she did not pawn a gold necklace. A new trial may be
granted because of perjured testimony when the testimony is fal se, without the testimony
the factfinder might have reached a different conclusion, and “ the party seeking the new
trial was taken by surprise when the false testimony was given and was unable to meet it
or did not know of its falsity until after the trial.” State v. Nicks , 831 N.W.2d 493, 511
(Minn. 2013) (quotation omitted). A new trial is not warranted because, even accepting
that K.N. perjured herself, none of the challenged testimony related to elements of the case,
and appellant was able to, and did, attack the veracity of K.N.’s testimony.
Affirmed.