In the Matter of the Welfare of: A. J. G.

This opinion will be unpublished and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
A18-1854

In the Matter of the Welfare of: A. J. G.

Filed July 8, 2019
Reversed and remanded
Smith, Tracy M., Judge

Dodge County District Court
File No. 20-JV-18-695

Goodhue County District Court
File No. 25-JV-18-2

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Pau, Minnesota (for appellant)

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

Paul J. Kiltinen, Dodge County Attorney, Mantorville, Minnesota; and

Stephen F. O’Keefe, Goodhue Count y Attorney, Erin L. Kuester, A ssistant County
Attorney, Red Wing, Minnesota (for respondent)

Considered and decided by Sche llhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant A.J.G. challenges his adjudication of juvenile delin quency, arguing that
the district court made a number of errors at trial. He also ch allenges the disposition,
arguing that the district court abused its discretion by not considering a stay of adjudication.
We conclude that the district court made a structural error at trial by independently

2
investigating a factual assertion made by A.J.G. and revealing the results of the
investigation to the parties. We therefore reverse and remand for a new trial.
FACTS
In August 2017, staff at a sc hool in Goodhue County reported to the police that the
concession building next to the school’s football field had been broken into overnight and
bottles of soda were stolen. Kenyon Police Chief Lee Sjolander responded to the report.
As part of the investigation, Sjolander took pictures of a hammer that had been recovered
near the concession building and posted the pictures on social media to induce information
from the public. A woman identified the hammer as belonging to her family and contacted
the police. She also said that she found numerous bottles of so da in her house. Sjolander
interviewed the woman and her juvenile son. The son, T.R.P., st ated that he and his two
friends, A.J.G. and D.M.C.J., played football at the field on t he date of the incident and
that they broke into the conce ssion building together. Sjolande r also spoke with A.J.G.
during the investigation. A.J.G. admitted that he played football with T.R.P. at the field but
denied breaking into the conce ssion building. Specifically, A.J .G. stated that he walked
away because he was on probation (Sjolander’s report added that A.J.G. said the probation
was in Rice County) and he did not want to get into more trouble.
A juvenile-delinquen cy petition was filed in Goodhue County, and a bench trial was
held in August 2018. At trial, A.J.G. denied knowing about a plan for a break-in and denied
telling Sjolander that he was on probation. A.J.G.’s probation status thus became an issue.
After many questions, A.J.G.’s position was that he was on probation in Dodge County but
not in Rice County. After closing arguments, the district court stated that it had further
questions for A.J.G. The following colloquy ensued with the district court:

3
Q: [A.J.G.], you have testified under oath that you did not tel l
. . . Sjolander you were on probation in Rice County; correct.
A: Yes.
Q: And that perhaps . . . you were placed on probation in
Dodge County, or you had a charge in Dodge County in
September of last year?
A: I think so. I don’t remember.
Q: Financial transaction card fraud. State lottery fraud.
A: Yes.
Q: Okay. What I want to ask you about is, were you also
charged with a theft charge in Rice County in July of last year?
A: I was. But I don’t think I was on probation for that. And I’ve
never told anybody about that. I was with friends at the time.
And I didn’t take anything. I was just with the wrong people
and got in trouble with them because I was with them.

None of the information from A.J .G.’s prior delinquency record was introduced by the
parties.
The district court issued an order finding A.J.G. guilty of tw o counts of burglary.
The case was then transferred from Goodhue County to Dodge County for disposition. At
the disposition hearing, A.J.G. asked the district court to con sider a stay of adjudication.
The Dodge County judge refused to consider the request, stating that it was “out of [her]
hands because the judge in Goodhue already adjudicated [A.L.G.] delinquent.” The judge
placed A.J.G. on probation.
This appeal follows.
D E C I S I O N
I.
A.J.G. argues that the district court made a structural error by investigating his
delinquency record on its own. Structural errors are “errors th at necessarily render a trial
fundamentally unfair or deprive defendants of basic protections without which a criminal
trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.”

4
State v. Flucker , 781 N.W.2d 397, 400-01 (Minn. App. 2010) (quoting Neder v. United
States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 1833 (1999)) (quotation marks omitted). When a
district court makes a structural error, the case should automa tically be reversed without
regard to the error’s effect on the outcome. Id. In other words, the prejudice analysis does
not apply to structural errors. Vi olation of the fundamental ri ght to a fair trial before an
impartial judge is a structural error. State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005);
see also Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 2057 (1987) (“We have
recognized that some constitutional rights [including the right to an impartial adjudicator]
are so basic to a fair trial that their infraction can never be treated as harmless error.”
(quotation omitted)).
I n Dorsey, the defendant was charged with felony possession of marijuana . 701
N.W.2d at 241. One of the issues at the bench trial was whether the defendant had
possessed a firearm in conjunction with the marijuana. Id. The police had found a handgun
between the cushions of a black leather couch near the marijuan a, but Dorsey argued that
the gun did not belong to him. Id. at 241-42. A defense witness testified that the handgun
found in the couch might belong to her late boyfriend because, after the boyfriend died,
she sold Dorsey two black leather couches that had been at the boyfriend’s place. Id. at
242-43. The defense witness then testified that her boyfriend died in May 1999. Id. at 243.
By happenstance, the district court judge recognized the name of the boyfriend from
one of her other cases and suspected that the boyfriend had died more recently than 1999.
Id. While continuing to preside over the trial, the judge had her clerk check when the
boyfriend had died through court records and learned that he had died in December 2001.
Id. T h e j u d g e r e v e a l e d h e r d i scovery to the attorneys. Id. at 243-44. The district court

5
eventually found that Dorsey possessed the handgun in conjunction with the marijuana. Id.
at 245. In reaching that determination, the judge noted that th e defense witness lacked
credibility in part because court records indicated that the boyfriend had died far later than
the date given by the witness. Id. The supreme court held that the district court judge’s
conduct constituted a structural error. Id. at 253. Specifically, the supreme court concluded
“that Dorsey was deprived of the ‘basic protection’ of an impartial judge and finder of fact
when the judge independently investigated a factual assertion m ade by a key defense
witness and revealed the results of her investigation to counsel.” Id.
I n t h i s c a s e , A . J . G . m a d e a f a ctual assertion that, at relevan t times, he was on
probation in Dodge County but not in Rice County. It is undispu ted that the district court
judge independently investigated that assertion and revealed the results of its investigation
by introducing the nature of the offenses previously charged against A.J.G., which was not
made known before, and questioning A.J.G. on whether he was on probation for those
offenses. In key ways—a judge’s independent investigation of a defense witness’s
assertion and revelation of the investigation’s result—this cas e is indistinguishable from
Dorsey. But the district court judge’s investigation in this case did not disprove any defense
testimony. The district court did not discover that A.J.G. was in fact on probation in Rice
County. The question therefore is whether a Dorsey-type error that does not disprove
defense testimony is still a structural error. We conclude that it is.
First, we note that, even if the district court’s investigatio n did not disprove A.J.G’s
factual assertion, it may not have been entirely innocuous. The district court learned of and
introduced the offenses previously charged against A.J.G.—finan cial transaction card
fraud, state lottery fraud, and theft. It is not clear whether the district judge, sitting as the

6
sole fact-finder, considered the previous charges in making its credibility decision
regarding A.J.G.’s testimony.
Second, even if the district court’s investigation was innocuo us, the holding of
Dorsey, as expressed by the supreme court, did not include an exception for an innocuous
investigation. The Dorsey court stated that the defendant w as deprived of the right to a n
impartial judge “when the judge independently investigated a factual assertion made by a
key defense witness and revealed the results of her investigation to counsel.” Id. It did not
state that the conclusion depends on whether the independent in vestigation verified or
contradicted the testimony. Id. (“[T]he judge’s investigation as a result of [knowing the
boyfriend’s approximate date of death] . . . has caused us to hold that Dorsey did not receive
a fair trial before an impartial finder of fact.”).
T h i r d , t h e Dorsey majority’s response to the disse nt in that case confirms the
emphasis on the act of investigation itself, not the motivation for it or the effect of it. The
dissent argued that “the judge’s verification of [the] date of death ‘was more akin to a
confirmatory follow-up of an immutable fact and not an independent investigation.’” Id. at
250-51. While acknowledging that “the dissent’s position may re sult in a less distasteful
outcome in the case at hand,” th e majority refused to adopt it because “it would
permanently compromise the bedrock principle in our criminal ju stice system”—“that
judges may not investigate or rely upon extra-record knowledge when sitting as the finder
of fact.” Id. at 251. The majority characteriz ed its position as “preserving the bright-line
rule that judges may not engage in independent investigations of facts in evidence.” Id.
Fourth, as a general principle, “[a]n error can count as struc tural even if the error
does not lead to fundamental unfairness in every case.” Weaver v. Massachusetts , 137

7
S. Ct. 1899, 1908 (2017 ). For example, denial of a defendant’s right to conduct his own
defense is a structural error ev en if the right, when exercised , “usually increases the
likelihood of a trial outcome unfavorable to the defendant.” Id. (quotation omitted). In this
case, because the district court’s investigation did not dispro ve A.J.G.’s testimony, it
arguably did not make A.J.G.’s trial substantively less fair. However, the same behavior in
another case may well disprove the factual assertion made by a defense witness. The fact
that the district court’s inves tigation did not contradict A.J. G.’s testimony does not, by
itself, make the error nonstructural.
Because the district court committed a structural error by ind ependently
investigating A.J.G.’s probation status and delinquency record and revealing the results of
its investigation, the adjudication of delinquency must be reversed.
II.
A.J.G. also argues that (1) the adjudication of delinquency mu st be reversed because
the district court assumed the role of the prosecution by quest ioning him too extensively
during trial, (2) the adjudication must be reversed because the district court improperly
reopened the case and elicited inadmissible testimony after the closing arguments, and
(3) the Dodge County judge abused its discretion by refusing to consider his request for a
stay of adjudication based on an incorrect understanding that t he Goodhue County judge
had already adjudicated A.J.G. to be delinquent. We need not ad dress these arguments
because we conclude that a structural error was made requiring reversal and remand for a
new trial.
Reversed and remanded.