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This opinion will be unpublished and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
A18-0530

State of Minnesota,
Respondent,

vs.

James Earl Bailey,
Appellant.

Filed February 11, 2019
Affirmed
Worke, Judge

Wabasha County District Court
File No. 79-CR-17-476

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Karrie Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief 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 challenges his conviction of violation of a domestic -abuse no -contact
order (DANCO), arguing that the district court erred in denying his m otion for judgment
of acquittal, and plainly erred in instructing the jury. We affirm.
FACTS
In April 2016, appellant James Earl Bailey was charged with burglary and domestic
assault. The district court issued a pretrial DANCO preventing Bailey from having contact
with the victim, his ex -girlfriend T.S. In June 2016, Bailey pleaded guilty to domestic
assault and the state dismissed the burglary charges. In July 2016, the district court placed
Bailey on probation and issued a postconviction DANCO that prevented Bailey from
having contact with T.S. The postconviction DANCO expired on July 26, 2021 . The
district court advised Bailey that he could face new charges if he violated the
postconviction DANCO.
On June 21, 2016, Bailey was charged with three counts of violation of the pretrial
DANCO. On October 31, 2016, Bailey pleaded guilty to gross -misdemeanor violation of
the pretrial DANCO. In imposing sentence, the di strict court order ed Bailey to comply
with all no-contact orders. Bailey’s attorney asked: “Does the DANCO on this file
terminate now, or does it continue?” The district court stated: “I think usually they
terminate with conclusion of the case, unless . . . something else is requested.” The
prosecutor stated: “ That’s not a term that we’re reques ting going forward.” The district
court replied: “Okay, all right. That’s all for now then.”

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In May 2017, Bailey was charged with felony violation of the postconviction
DANCO. At Bailey’s jury trial, Deputy Speedling testified that on May 28, 2017, he was
dispatched to a residence of T.S.’s because an ex-boyfriend was trying to gain entry. While
Deputy Speedling was at the residence , he saw Baile y drive by and flagged him down.
Deputy Speedling talked to T.S. and Bailey. When Deputy Speedling learned of the
DANCO, he arrested Bailey for violating it.
Deputy Speedling’s recorded interview with Bailey was played for the jury. Bailey
stated that he and T.S. had been li ving together and broke up the day he was arrested.
Bailey told Deputy Speedling that he knew that he was not in trouble because he believed
that the DANCO had been vacated after his October 2016 court appearance.
Bailey’s probation officer (PO) testified that he met Bailey in early October 2016,
and has met with him at least a dozen times since. T he PO went over the probation
conditions with Bailey, one of which specifically prohibited him from having contact with
T.S. and mandated his compliance with the postconviction DANCO. The PO testified that
Bailey never expressed that he wanted the DANCO removed, or said anything that left him
with the impression that Bailey did not think that the DANCO existed.
After the state rested, Bailey moved for judgment of acquittal, arguing that there
was no evidence corroborating his confession. Before addressing Bailey’s motion, t he
district court inquired whether a stipulation regarding prior qualified offenses was put on
the record. Bailey’s attorney replied: “We are stipulating here.” The district court denied
Bailey’s motion for judgment of acquittal. Bailey then stipulated that the state proved the
prior qualified offenses that would make this offense a felony.

4
Bailey did not testify but he offered transcripts from the July and October 2016
hearings. In closing argument, Bailey’s attorney stated that Bailey admitted to having
contact with T.S., but believed that the DANCO was vacated. Bailey’s attorney stated that
if the jury was convinced that th e state proved that Bailey knew that the DANCO existed
on May 28, 2017, its verdict would be guilty. The jury found Bailey guilty of violation of
the DANCO, and the district court sentenced him to 30 mo nths in prison. This appeal
followed.
D E C I S I O N
Judgment of acquittal
Bailey first argues that the district court erred by denying his m otion for judgment
of acquittal. “At the close of evidence for either party, the defendant may move for . . . a
judgment of acquittal . . . if the evidence is insufficient to sustain a conviction.” Minn. R.
Crim. P. 26.03, subd. 18(1)(a). We review the district court’s decision on a motion for a
judgment of acquittal de novo. State v. McCormick , 835 N.W.2d 498, 506 (Minn. App.
2013), review denied (Minn. Oct. 15, 2013). Our analysis requires us to examine whether
the evidence and inferences drawn therefrom, viewed favorably to the state, are sufficient
to present a fact question to the jury. Id.
Corroboration
Bailey argues that the state failed to corroborate his confession. A defendant’ s
confession is insufficient to warrant a conviction without evidence that the charged offense
was committed. Minn. Stat. § 634.03 (2016 ). A confession is a statement that explicitly
or implicitly admits guilt. State v. Vaughn, 361 N.W.2d 54, 56 (Minn. 1985).

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Bailey was charged with felony violation of a DANCO, in violation of Minn. Stat.
§ 629.75, subd. 2(d)(1) (2016). Elements of the offense include, an existing DANCO, the
defendant’s knowledge of the DANCO, and the defendant’s violation of the DANCO. 10
Minnesota Practice, CRIMJIG 13.56 (2015).
Bailey’s statement to Deputy Speedling was not a confession because it was largely
exculpatory. Bailey stated that he believed that the DANCO was vacated. Bailey
expressed his belief that he did not do anything wrong. Bailey did not admit that there was
an existing DANCO or that he knew of the DANCO; rather, he stated that he believed that
the DANCO did not exist on the date of the offense.
Bailey admitted having contact with T.S. But Deputy Speedling corroborated this
statement. Deputy Speedling testified that T.S. complained that an ex-boyfriend was trying
to gain entry to her residence . This evidence could lead a jury to believe that Bailey
violated the DANCO by having contact with T.S. The district court did not err by denying
Bailey’s motion for judgment of acquittal , because the only portion of Bailey’s statement
that amounted to a confession was corroborated with independent evidence.
Stipulation
Bailey also argues, for the first time on appeal, that the district court erred in denying
his motion for judgment of acquittal because the state failed to prove the requisite qualified
offenses. Bailey claims that the district court failed to rule on his motion prior to moving
to the next stage of the trial. See Minn. R. Crim. P. 26.03, subd. 18(2) (stating when a
defendant moves for judgment of acquittal at the close of the state’s case, the district court

6
must rule on the motion, rather than reserve a ruling, which it may do if the motion follows
the defendant’s case).
Bailey moved for judgment of acquittal, asserting that his confession was not
corroborated. H e did not base his mo tion on the state’s failure to prove the qualified
offenses. The district court denied Bailey’s motion, concluding that there was sufficient
independent evidence from which the jury could infer the trustwor thiness of Bailey’s
statement. T he district court then reopened the record to put Bailey’ s stipulation on the
record. Because Bailey did not move for judgment of acquittal based on the state’s failure
to prove the qualified offenses, the dist rict court was not required to rule on that claim.
Thus, Bailey’s issue on appeal should be reframed as a challenge to the district court sua
sponte reopening the record to put Bailey’s stipulation on the record.
While the state did not move to reopen its case , “[i]n the interests of justice, the
court may allow any party to reopen that party’s case to offer additional evidence.” Minn.
R. Crim. P. 26.03, subd. 12(g). Appellate courts review the district cou rt’s reopening of a
case after the party has rested for an abuse of discretion. State v. Caine, 746 N.W.2d 339,
352-53 (Minn. 2008). A district court abuses its discretion when its decision is based o n
an “erroneous view of the law or is against logic and the facts in the record.” Riley v. State,
792 N.W.2d 831, 833 (Minn. 2011).
After the district court denied Bailey’s motion for judgment of acquittal, and then
inquired about the fact that there was no stipulation on the record prior to th e close of the
state’s case, Bailey’s attorney stated that Bailey would stipulate that the state proved the
qualified offenses. Bailey agreed that his 2016 domestic-assault conviction and 2016

7
DANCO-violation conviction enhanced the current offense to a felony. Bailey waived his
right to a jury trial and his right to have the state prove that those convictions exist . The
district court accepted Bailey’s admission and found that he has the requisite qualified
offenses before inquiring: “With that the state rests?” And the state rested.
At no time did Bailey object. In fact, immediately after the district court raise d the
issue, Bailey’s attorney stated that Bailey was stipulating. And the stipulation benefitted
Bailey because it prevented the jury from hearing evidence about the prior convictions. It
was logical for the district court to reopen the record soon afte r the state rested and before
Bailey offered evidence.
Jury instructions
Bailey challenges the dis trict court’s jury instructions, but he did not object in
district court. Generally, an appellate court will not consider an alleged error in jury
instructions unless an objection was made at trial. State v. Cross , 577 N.W.2d 721, 726
(Minn. 1998). However, this court has discretion to consider an alleged error absent an
objection if there is plain error affecting the appellant’s substantial rights. State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998). Under these circumstances, Bailey must show that
there was (1) an error; (2) that is plain; and (3) that affects substantial rights. See id.
In this plain-error context, an error is a “[d]eviation from a legal rule [] unless the
rule has been waived.” State v. Kelley , 855 N.W.2d 269, 274 (Minn. 2014) (quotation
omitted). “An error is plain if it was clear or obvious.” State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006) (quotations omitted). A clear or obvious error “contravenes caselaw, a
rule, or a standard of conduct.” Id. Plain error affects substantial rights when it was

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prejudicial. Griller, 583 N. W.2d at 741. Prejudice is shown if there is a “reasonable
likelihood” that the error “had a significant effect” on the jury’s verdict. Id. The appellant
must satisfy each plain-error prong. Kelley, 855 N.W.2d at 273. If the appellant satisfies
all prongs , this court “may correct the error only if it seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d
433, 437 (Minn. 2001) (quotation omitted).
Bailey argues that the jury instructions failed to require the jury to find that he knew
that the DANCO was in effect on May 28, 2017. Jury instructions must define the crime
charged and explain the crime’s elements. State v. Ihle , 640 N.W.2d 910, 916 (Minn.
2002). But a district court has broad discretion in selecting jury instructions. State v.
Anderson, 789 N.W.2d 227, 239 (Minn. 2010). A district court abuses this broad discretion
if its jury instructions confuse, mislead, or materially misstate the law. State v. Vang, 774
N.W.2d 566, 581 (Minn. 2009).
Bailey was found guilty of violating a DANCO. See Minn. Stat. § 629.75, subd.
2(d)(1). An element of the offense is that Bailey knew that the DANCO existed. See 10
Minnesota Practice, CRIMJIG 13.56. Bailey requested that the district court include a jury
instruction for the phrase “to know,” requiring “only that the actor believes that the
specified fact exists.” See 10 Minnesota Practice, CRIMJIG 3.32 (2015). Although the
district court instructed the jury in accordance with the model jury instructions and
provided the additional inst ruction that Bailey requested, Bailey argues that the “statute
fails to identify at what point the defendant is required to know of the existence of the

9
order.” See Minn. St at. § 629.75, subd. 2(b) (stating that a person who knows of the
existence of a DANCO and violates it is guilty of a crime).
Bailey’s critique of the statute , however, r aises an issue regarding the statutory
language. Bailey did not raise an issue regarding statutory inter pretation; rather, he
challenges jury instructions. Thus, Bailey’s argument deviates from the issue raised, and
our focus is on the jury instructions, n ot the wording of the statute. Additionally, Bailey
attempts to find support in an unpublished case, but in that case, the district court declined
to include the instruction defining the word “knows.” We are not presented with that issue
because the district court here included that jury instruction.
Additionally, the jury heard evidence that Bailey did not believe that the DANCO
existed on May 28, 2017. Bailey told Deputy Speedling that he believed that the DANCO
was vacated following the October 201 6 hearing. The jury also read the transcript from
the October 2016 hearing, which shows that Bailey’s attorney asked if the “DANCO on
this file terminate[s] now, or does it continue?” The district court stated that they usually
terminate with the conclusion of the case , and the prosecutor stated that it was not a term
it requested. But the transcript also show that at the October 2016 hearing, Bailey pleaded
guilty to violation of the pretrial DANCO. The DANCO relevant here is the postconviction
DANCO issued in connection with Bailey’ s sentencing in July 2016 that did not expire
until July 26, 2021.
Bailey’s PO testified that Bailey’s compliance with the DANCO is a condition of
his probation, and that Bailey nev er asked to remove the DANCO. Bailey’s PO also
testified that Bailey never said anything that left him with the impression that Bailey did

10
not think that a DANCO existed. While Bailey asserted that he did not believe that the
DANCO existed on May 28, 2017, this evidence could lead a jury to conclude that Bailey
knew that the DANCO existed at the time of the violation.
Finally, in closing argument, Bailey’s attorney stated that Bailey believed that the
DANCO was vacated. Bailey’s attorney stated that if the jury was convinced that the state
met its burden of showing that Bailey knew that the DANCO existed on May 28, 2017, its
verdict would be guilty. This statement relates to whether Bailey knew that the DANCO
was in effect on May 28, 2017. Bailey has failed to establish plain error because the jury
instruction did not deviate from a legal rule, it did not contravene caselaw, and it was not
prejudicial and likely to affect the outcome of the case.
Affirmed.