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STATE OF MINNESOTA

IN SUPREME COURT

A18-1886

Hennepin County Hudson, J.
Concurring, Thissen, Lillehaug, JJ.
State of Minnesota,

Respondent,

vs. Filed: April 22, 2020
Office of Appellate Courts
James Andre Woodard,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
1. The district court did not abuse its discretion when it denied appellant’s motion
to present an alternative-perpetrator defense for lack of sufficient foundation.
2. The district court committed an error that was plain by instructing the jury on
the order in which to consider the charges against the appellant, but the error did not affect
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appellant’s substantial rights because there is no reasonable likelihood that the instruction
affected the jury’s verdict.
Affirmed.
O P I N I O N
HUDSON, Justice.
A Hennepin County jury found appellant James Andre Woodard guilty of
first-degree murder and the district court sentenced him to life in prison without the
possibility of release. Woodard appeals from the judgment of conviction and requests a
new trial on two grounds. First, Woodard contends that the district court erred in denying
his motion to present an alternative-perpetrator defense. Second, Woodard argues that the
district court plainly erred in instructing the jury on the order in which to consider the
charges against him. For the reasons addressed below, we affirm the district court.
FACTS
Thirty-two year old Divittin Hoskins was shot to death on July 28, 2017, while
socializing with friends and family in the parking lot by his sister’s townhome in North
Minneapolis. Police officers responded to the scene of the shooting, set up a perimeter
around the parking lot , and began to identify potential witnesses. Police learned that
Hoskins’s children and his niece witnessed the shooting. Officers went to the townhome
of L.H., Hoskins’s sister, to interview t he children. Inside the townhome, police spoke
with K.H. and D.H., two of Hoskins’s children, as well as his niece . K.H. described the
shooter as a fat black man with braided hair, wearing a gray hooded sweatshirt, a white
t-shirt, and jeans. D.H. told the officers that the shooter was wearing a gray hooded
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sweatshirt with black pants and a black hat. Hoskins’s niece said the shooter was a light-
skinned black man wearing a gray hooded sweatshirt and black pants.
The day after the shooting, on July 29, 2017, L.H. began asking questions in the
community about the murder and heard that Woodard may have been involved. She went
online to look at Woodard’s Facebook profile, and found a picture of Woodard as well as
a video of him. L.H. allowed the child witnesses to view the photo and the video of
Woodard, and two of them identified Woodard as the man who shot and killed Divittin
Hoskins. L.H. contacted one of the investigators, Sergeant Klund, to inform her of the
children’s statements. Sergeant Klund asked L.H. to bring the children to CornerHouse for
forensic interviews, to occur on August 2, 2017.
In addition to the eyewitnesses, the investigation into the shooting led officers to a
surveillance video of the parking lot where the murder occurred. The video shows the
shooter hiding along the side of a detached garage next to the parking lot. As the shooter
stands by the side of the garage, a man later identified as E.R. is seen socializing in the
parking lot and then walking over to talk to the shoo ter. After speaking with the shooter
for a moment, E.R. walks around from the side of the garage and through the parking lot,
stopping at the far end of the lot to look around. He then turns and walks back to the side
of the garage. At the same time, the shooter walks behind the garage out of view of the
camera. Both men disappear from view behind the garage for a moment, before E.R.
returns to the party. A few minutes after E.R. returns to the parking lot, the shooter
reappears from the back of the garage. He pulls out a gun, runs up to where Hoskins stands
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next to four children, and fires one shot into the back of Hoskins’s head at close range. The
shooter then turns around and flees.
Sergeant Klund interviewed E.R. for the first time on July 30, 2 017, two days after
the murder. E.R. acknowledged that he was in the parking lot at the time of the murder,
but claimed that his back was turned to Hoskins and he did not see the murder and had no
knowledge of the shooter’s identity. Even after Sergeant Klund showed E.R. stills from
the surveillance video that contradicted his story, E.R. refused to reveal the identity of the
shooter. Sergeant Klund read E.R. his Miranda rights and continued the interview. E.R.
then identified Woodard as the shooter after the police showed him a series of photographs
of people who police believed were at the scene.
Based on the eyewitness identifications made by E.R. and the children, police took
Woodard into custody on August 1, 2017. On August 3, 2017, E.R. was charged with the
offense of first-degree murder under an aiding and abetting theory of liability and the
offense of aiding an offender after the fact. E.R. later entered into a plea agreement1 that
dismissed the second- degree murder charge in exchange for his testi mony against
Woodard.
Police continued to investigate the Hoskins murder into September 2017. Sergeant
Klund spoke with G.P., an acquaintance of Woodard and a friend of the Hoskins family,
on September 20, 2017. G.P. told Sergeant Klund that he was at the home of a man named
T.R. two days before the murder, where he witnessed T.R. give Woodard a handgun.

1 As part of the plea agreement, E.R. pleaded guilty to the offense of aiding an
offender after the fact and received a downward durational sentencing departure.
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Pre-trial motions and preparation continued through the end of 2017 and the spring
of 2018. Woodard filed a motion to introduce alternative-perpetrator evidence on July 5,
2018. The accompanying memorandum identified T.R. as the alleged alternative
perpetrator. Woodard’s proffer identified several potential pieces of evidence as
foundation for the motion, including: (1) a photo of T.R. that showed that he is a light-
skinned black man of similar build to the shooter; (2) at the time of the Hoskins murder,
T.R. lived two-and-a- half blocks from the location of the shooting; (3) T.R. might have
had a motive to kill Hoskins based on T.R.’s friendship with a man referred to as Fernando
because it was rumored that Hoskins’s brother was involved in a shooting of Fernando;
(4) a witness saw T.R. give Woodard a gun two days before the murder; and (5) T.R. was
suddenly absent from Minneapolis after the Hoskins murder. The district court denied
Woodard’s motion to present an alternative-perpetrator defense on the grounds that
Woodard had not presented evidence that inherently connected T.R. to the murder of
Hoskins.
After the State and Woodard presented their cases to the jury, the court instructed it
on the elements of first-degree murder and the lesser-included offense of second-degree
murder. The court also instructed the jury that it should “only consider murder in the
second degree if there’s a not guilty finding on murder in the first degree.” The jury
returned a verdict of guilty on the first-degree murder charge. The district court sentenced
Woodard to life in prison without the possibility of release.
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ANALYSIS
I.
We first address the district court’s ruling on Woodard’s motion to present
alternative-perpetrator evidence. We review a district court’s denial of a motion to present
alternative-perpetrator evidence for an abuse of discretion. Huff v. State, 698 N.W.2d 430,
435 (Minn. 2005).
A defendant’s constitutional right to a fair opportunity to defend against criminal
charges “includes the right to present evidence that a third party (an ‘alternative
perpetrator’) committed the crime for which the defendant was charged.” Troxel v. State,
875 N.W.2d 302, 307 (Minn. 2016). This right, however, “is not absolute.” State v.
Jenkins, 782 N.W.2d 211, 224 (Minn. 2010). A defendant’s motion to present alternative-
perpetrator evidence is still subject to the foundation and admissibility requirements
outlined in State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977).
We said in Hawkins that district courts should follow a two-step process to
determine whether to admit alternative-perpetrator evidence upon a defendant’s motion.
260 N.W.2d at 159. First, the district court considers whether the defendant laid the proper
foundation to admit alternative-perpetrator evidence by analyzing whether the proffered
evidence has “an inherent tendency” to connect the alleged alternative perpetrator with the
“actual commission of the crime.” Id. (citation omitted) (internal quotation marks omitted).
“This requirement avoids the use of bare suspicion and safeguards the third person from
indiscriminate use of past differences with the deceased.” Id. In considering whether the
defendant has established the required foundation, a court must focus on “the evidence, not
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the assertions, contained in the proffer.” State v. Nissalke, 801 N.W.2d 82, 102
(Minn. 2011) (citation omitted) (internal quotation marks omitted).
We have previously held that “[e]vidence of motive alone does not have the inherent
tendency to connect a third party to the commission of the crime.” Troxel, 875 N.W.2d at
309 (quoting State v. Larson, 787 N.W.2d 592, 598 (Minn. 2010)). Similarly, “[m]ere
presence at the scene of the crime does not, by itself, create an inherent tendency to connect
a person alleged to be the alternative perpetrator to the commission of the charged crime.”
State v. Atkinson, 774 N.W.2d 584, 590 (Minn. 2009). On the other hand, we have held
that the foundational requirement was satisfied when the alternative perpetrator made a
statement that “was, in essence, an admission . . . that he was involved in [the victim’s]
murder.” State v. Vance, 714 N.W.2d 428, 439 (Minn. 2006).
If the defense does not lay the proper Hawkins foundation, the court need not move
to the second step of the process outlined in Hawkins. See State v. Palubicki, 700 N.W.2d
476, 485 (Minn. 2005) (“If the defendant fails to lay a proper foundation, the alternative-
perpetrator evidence is not admissible and the trial court need not consider any of the
alternative perpetrator evidence further.”). But if the defense does lay sufficient
foundation, the court must move to the second step and consider the admissibility of the
alternative-perpetrator evidence. Jenkins, 782 N.W.2d at 224.
Under the second Hawkins step, a court considers whether the evidence in question
is admissible under the “ordinary rules of evidence.” Jenkins, 782 N.W.2d at 224; see also
State v. Jones , 678 N.W.2d 1, 17 (Minn. 2004) (explaining that the district court should
evaluate reverse-Spreigl evidence of “prior crimes, wrongs, or bad acts” by an alternative
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perpetrator under the heightened clear and convincing admissibility standard, but noting
that not all alternative-perpetrator evidence is reverse-Spreigl evidence). If so, “evidence
of the motive of a third person to commit the cri me, threats by the third person, or other
miscellaneous facts which would tend to prove the third person committed the act” may be
presented to the jury. Hawkins, 260 N.W.2d at 159 (footnotes omitted) (citations omitted).
Woodard argues that the district court abused its discretion by ruling that his proffer
did not satisfy the first, foundational step of the Hawkins process. As foundation for his
alternative-perpetrator motion, Woodard offered the following: (1) T.R. and the shooter
were both thin, light- skinned black me n; (2) at the time of the murder, T.R. lived
approximately two- and-a-half blocks from the parking lot where Hoskins was shot;
(3) T.R. may have had a motive to kill Hoskins because T.R. had a close relationship with
the victim of a prior shooting and Hoskins’s brother was allegedly connected to the
incident; (4) a witness saw T.R. give a gun to Woodard two days before the murder;
(5) T.R. was not seen at his home after the Hoskins murder.
As explained above, “our task is to determine whether the evidence, not the
assertions, contained in the proffer” establish an inherent connection between the alleged
alternative perpetrator and the commission of the crime. Jenkins, 782 N.W.2d at 228; see
also Nissalke , 801 N.W.2d at 102 (“Nissalke’s bare assertions as to what could have
happened are not evidence and do not have an ‘inherent tendency’ to connect B.F. or E.L.
to the crime.”). In this case, it was not an abuse of discretion for the district court to
conclude that Woodard failed to satisfy the first step of the process outlined in Hawkins
because the evidence, as opposed to the assertions, contained in Woodard’s proffer failed
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to establish an inherent connection between the alleged alternative perpetrator and the
commission of the crime.
Woodard’s evidence of T.R.’s physical appearance establishes that T.R. bears
similarities to the description of the shooter, but the description of the shooter is lacking in
specificity (a thin, light-skinned black man) such that any number of people would match
the description. And while Woodard asserted that T.R. could have committed the murder
because he lived near the scene, Woodard did not present any evidence showing that T.R.
was at home or otherwise near the parking lot on the day of the murder. See, e.g., State v.
Larson, 787 N.W.2d 592, 598 (Minn. 2010) (holding that the district court did not abuse
its discretion in denying the defendant’s motion to present an alternative-perpetrator
defense where the defendant did not proffer evidence showing the alleged alternative
perpetrator was “at or near the murder scene” or “had the opportunity ” to murder the
victim).
Woodard’s argument about motive is similarly speculative. The defense argued that
T.R. had a motive to kill Hoskins based on T.R.’s relationship with Fernando and T.R.’s
presence at the prior shooting, but defense counsel did not proffer any evidence of T.R.’s
desire to seek revenge against Hoskins. See Troxel, 875 N.W.2d at 309 (finding a third
party’s “purported motive” unconvincing in the absence of “any overt indication of
violence, threats, anger, jealousy, or frustration”).
The witness statement that T.R. gave Woodard a gun in the days before the crime
could suggest involvement on T.R.’s part, but it does not link T.R. to the actual commission
of the murder because it puts the potential murder weapon in Woodard’s hand, rather than
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in T.R.’s hand. See Palubicki, 700 N.W.2d at 486–87 (concluding that evidence of
potential accomplice liability did not have an inherent tendency to connect an alleged
alternative perpetrator to the actual murder).
The defense’s use of a witness statement concerning T.R.’s whereabouts in the
period following the murder also relies on an assertion in an effort to link T.R. to the actual
commission of the crime. Specifically, defense counsel cited the witness’s statement that
he had not seen T.R. since the shooting, as well as a “rumor” that the murderer had fled the
state. We rejected a similar argument in State v. Jenkins. In that case, the appellant argued
that the district court abused its discretion in denying a motion to present alternative-
perpetrator evidence for lack of foundation based in part on a claim that the alleged
alternative perpetrator “fled” the state following the crime. Jenkins, 782 N.W.2d at 228.
Not only did the evidence fail to show that the third party fled, rather than leaving for a
legitimate reason, we also noted that the third party’s whereabouts after the fact did not
link the third party to the actual commission of the crime. Id. The same is true here, except
that there is no evidence that T.R. actually left the state after the crime, only a witness’s
statement that he had not seen T.R. since two days before the murder and a rumor that the
murderer had fled after the shooting.
For these reasons, the district court did not abuse its discretion in holding that
Woodard’s proffered evidence in support of his motion to present alternative-perpetrator
evidence did not satisfy the Hawkins foundational requirement. Excluding the speculation
regarding T.R.’s whereabouts on the day of the crime, and setting aside the bare assertions
regarding T.R.’s motive and his alleged flight from the state, the evidence proffered by
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Woodard, even when considered cumulatively, did not have the inherent tendency to
connect T.R. to the actual commission of the murder of Hoskins.2
II.
We next address whether the district court erred when instructing the jury on the
order in which to consider the charges against Woodard. We review the district court’s
instructions for plain error because Woodard did not object to the instructions at trial. See
Minn. R. Crim. P. 31.02 (“Plain error affecting a substantial right can be considered by the
court . . . on appeal even if it was not brought to the trial court’s attention.”). Under the
plain-error standard, Woodard must demonstrate (1) that the district court’s instructions
were in error; (2) that the error is plain; and (3) that the error affected his substantial rights.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If he satisfies this burden, we must
then determine whether we “should address the error to ensure fairness and the integrity of
the judicial proceedings.” Id.
We held in State v. Prtine that a district court must not suggest the order in which
the jury should consider the charges against a defendant. 784 N.W.2d 303, 316
(Minn. 2010). The district court in Prtine told “the jury that it should proceed ‘down the

2 Woodard also argues that the district court placed too much weight on whether the
proffer established T.R.’s presence at the scene of the crime. We disagree. Although the
district court discussed at length Woodard’s failure to place T.R. at the scene, it did not rest
its ruling solely on the question of presence at the scene.
To be clear, under the first step of the process outlined in Hawkins, direct evidence
of an alternative perpetrator’s presence at the scene of the crime is not a necessary
component of foundation. There may be cases where overwhelming circumstantial
evidence of motive, opportunity, and method of murder has an inherent tendency to connect
an alternative perpetrator to the scene of the crime even in the absence of direct evidence
of presence at or near the scene. This, however, is not one of those cases.
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line’ until it arrived at a guilty verdict.” Id. at 317. We noted that “[c]onsideration of both
the greater-[] and lesser-included crimes is important because it may cause the jury to
evaluate the evidence differently with regard to an essential element.” Id. at 316.
Here, the district court told the jury to “only consider murder in the second degree
if there’s a not guilty finding on murder in the first degree.” In doing so, the district court
committed an error that is plain. We are therefore left with the question of whether the
instruction affected Woodard’s substantial rights.
An erroneous jury instruction affects a defendant’s substantial rights if “ ‘there is a
reasonable likelihood that giving the instruction in question had a significant effect on the
jury verdict.’ ” State v. Johnson, 915 N.W.2d 740, 746 (Minn. 2018) (quoting State v.
Gomez, 721 N.W.2d 871, 880 (Minn. 2006)). A jury instruction that erroneously directs
the jury to consider the more serious charge first does not have a significant effect on the
verdict if no rational jury w ould have acquitted the defendant of the more serious charge
based on the evidence at trial. See Prtine, 784 N.W.2d at 317 (holding that a defendant
was not prejudiced by a district court’s jury instruction where there was “uncontroverted
evidence” of the predicate felony and intent to kill supporting the first-degree murder guilty
verdict); Griller, 583 N.W.2d at 741–42 (summarizing the evidence and concluding that it
was unlikely that the jury would accept the defendant’s defense-of-dwelling defense); State
v. Dimmick, 586 N.W.2d 127, 130 (Minn. 1998) (“On the facts presented by this case, we
can find no rational basis for the jury to have concluded that Dimmick did not intend to kill
Tigner.”).
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Woodard was charged with first-degree premeditated murder and second-degree
intentional murder. The critical difference between the jury instructions for these charges
is the element of premeditation. See State v. Goodloe, 718 N.W.2d 413, 423 (Minn. 2006)
(“The element of premeditation differentiates first-degree premeditated murder from
second-degree intentional murder.”).
Unlike most cases where “intent and premeditation are not easily susceptible to
direct proof,” State v. Dahlin, 695 N.W.2d 588, 601 (Minn. 2005), the surveillance video
of the parking lot shows a shooter lying in wait for Hoskins. The footage of the shooter
hiding behind the garage before running up to shoot Hoskins in the back of the head at
close range clearly establishes premeditation. See, e.g., State v. Gray, 456 N.W.2d 251,
259 (Minn. 1990) (“The jury could reasonably have found this to be an execution-type
killing, which is a clear example of premeditated murder.”). Moreover, Woodard’s defense
was not that the shooter acted without premeditation, but instead that he was not the
shooter. Based on this record, no rational jury could have found Woodard not guilty of
first-degree premeditated murder but guilty of second-degree intentional murder. Because
there is no reasonable likelihood that the instruction affected the jury’s verdict, we
conclude that Woodard failed to satisfy his burden on the third requirement of the
plain-error standard.
CONCLUSION
For the foregoing reasons, we affirm the judgment of conviction.
Affirmed.
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C O N C U R R E N C E
THISSEN, Justice (concurring).
Based on our precedent, I concur in the well-reasoned decision we reach today. The
court applies our law fairly and sensibly.
I write separately to raise concerns with our alternative-perpetrator-evidence
jurisprudence. Our jurisprudence is overcomplicated, requiring district courts to apply a
vague threshold test before alternative- perpetrator evidence is introduced. I am not
convinced that anyone knows exactly how to determine what constellation of acts has an
“inherent tendency” to connect a person to a crime. We certainly have provided no precise
contours of the “inherent tendency” principle since we first articulated it—in dicta—over
40 years ago. See State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977).
Our current alternative-perpetrator rule treats people accused of a crime differently
than those attempting to prove the accusation. The threshold inquiry prevents an accused
person from introducing relevant (if circumstantial) evidence that another person
committed the crime. For instance, in the absence of threshold evidence placing the
alternative perpetrator at the scene of a crime, we have held that even substantial
circumstantial evidence that another person committed the crime is insufficient to place an
alternative-perpetrator theory before the jury. See, e.g., State v. Flores, 595 N.W.2d 860,
868–69 (Minn. 1999) (affirming exclusion of evidence that the victim owed the alternative
perpetrator money, that alternative perpetrator had threatened a person who had failed to
pay debts, that the alternative perpetrator’s business card was at the crime scene, and that
the alternative perpetrator was at the victim’s house on the day of the crime, because no
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evidence placed the alternative perpetrator at the crime scene at the time of the murder);
State v. Williams, 593 N.W.2d 227, 232–34 (Minn. 1999) (affirming exclusion of evidence
that alternative perpetrator had threatened a friend of the victim’s, had an order for
protection issued against him by one of the victims, had been in court for vandalizing the
victim’s house just days before the murder, and had been seen peering in the window of
the victim’s home before the murder, because no evidence placed the alternative
perpetrator at the crime scene). At the same time, we have also said that alternative-
perpetrator evidence may be excluded even with proof that a person was present when the
crime was committed. See State v. Atkinson, 774 N.W.2d 584, 591–92 (Minn. 2009).
We do not impose so high a burden on the State. Not only can the prosecution
introduce evidence that the accused committed a crime, but it also can seek to convict a
person and send him to prison for the rest of his life based solely on circumstantial evidence
of motive and opportunity. To convict, the State need not offer any proof that the accused
was at the crime scene. See, e.g., State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005)
(affirming a first-degree murder conviction based on evidence that the defendant had a
motive to commit the murder, had access to a murder weapon, and had a key to the victim’s
residence, despite the fact that there was no evidence connecting the defendant to the scene
at the time of the crime). This asymmetry seems particularly unfair because the accused
rarely has the resources—and very rarely resources that can match those of the State—
required to adequately investigate and prove that someone else committed the crime.
It is illogical—and simply unfair—to impose these differing burdens of proof on the
State and the defense. That is especially true in a system where an accused is meant to be
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presumed innocent. Wigmore identified precisely this problem when criticizing alternative
perpetrator rules like ours:
The question that arises, from the point of view of the rules of
evidence, is whether, in evidencing the doing of an act by a third person as a
fact of disproof, any unusual requirements should be made concerning the
strength of the evidence before it can be admitted. Thus, to prove A guilty
of murder, evidence of his threats (i.e., a design) to commit it are always
admissible; now, if the fact to be proved is that B committed the murder (as
inconsistent with A’s guilt), why should not B’s threats be admitted, without
further restriction, as A’s are? It is true that evidence of B’s threats alone
would not go far toward proving B’s commission; but it is not a question of
absolute proof, nor even of strong probability, but only of raising a
reasonable doubt about A’s commission, and for this purpose the slightest
likelihood of B’s commission may suffice or at least assist. The evidence of
B’s threats, to be sure, may, in a given instance, be too slight to be worth
considering, but it seems unsound as a general rule to hold that mere threats,
or mere evidentiary facts of any one sort, are to be rejected if unaccompanied
by additional facts pointing toward B as the doer.

1A John Henry Wigmore, Evidence in Trials at Common Law § 139, at 1724 (Tillers rev.
ed. 1983) (citation omitted).
Finally, our two-step alternative-perpetrator analysis runs hard up against—if not
beyond—constitutional limits. The United States Constitution “guarantees criminal
defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation omitted) (internal quotation marks omitted); see also
State v. Jones, 678 N.W.2d 1, 15–16 (Minn. 2004) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973)). Consequently, an evidentiary rule that infringes on the right to
present a complete defense cannot be arbitrary or disproportionate to the purposes the rule
is designed to serve. Holmes v. South Carolina, 547 U.S. 319, 324–25 (2006).
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In Holmes, the United States Supreme Court struck down as unconstitutional a
South Carolina evidentiary rule that allowed South Carolina courts to consider the strength
of the prosecution’s evidence in assessing whether a defendant’s evidence of third-party
guilt was admissible. Id. at 323–34, 331. The purported purpose of the rule was to focus
criminal trials on “central issues by excluding evidence that ha[d] only a very weak logical
connection” to those issues. Id. at 330. The Supreme Court ruled that consideration of the
strength of the State’s case did not rationally serve that underlying purpose. Id. The
Supreme Court also noted that the rule asymmetrically applied to exclude only evidence
offered by the accused person, but not to similar evidence offered by the State. Id. at
330−31; see also United States v. Scheffer, 523 U.S. 303, 316 n.12 (1998) (noting that the
evidence rule struck down in Washington v. Texas, 388 U.S. 14 (1967), as a violation of
the constitutional right to present a defense, was problematic because it burdened only the
defense and not the prosecution). Likewise, Minnesota’s alternative-perpetrator
jurisprudence, especially as it has evolved over the decades, treats the admissibility of
similar evidence differently depending on whether it is offered b y the State or by the
accused.
I also doubt if requiring defendants to jump through a preliminary “inherent
tendency” hoop helps courts exclude irrelevant evidence or evidence whose probative
value is outweighed by unfair prejudice, confusion of the issues, or potential to mislead,
any more effectively than application of a more straightforward and common analysis
under Minnesota Rules of Evidence 401 and 403. See generally David McCord, “But
Perry Mason Made it Look So Easy!”: The Admissibility of Evidence Offered by a Criminal
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Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L. Rev. 917 (1996) (providing
a broad overview of alternative-perpetrator evidence and the issues with the “direct
connection doctrine” in evidence law). On the other hand, analyzing alternative-
perpetrator evidence under Rules 401 and 403 has the advantage of being simpler for courts
and parties and fairer to the accused.
In an appropriate case, I would encourage our court to consider jettisoning the
4-decades-old Hawkins test and replace it with the traditional analysis under Rules 401 and
403 that courts apply as a matter of everyday routine. Indeed, since our decision in
Hawkins, several courts have adopted, and several commentators have proposed, just such
a rule for alternative- perpetrator evidence. See, e.g., State v. Gibson, 44 P.3d 1001,
1003−04 (Ariz. 2002) (rejecting the “inherent tendency test” and holding that Arizona
Rules of Evidence 401 and 403 “set forth the proper test” for alternative-perpetrator
evidence); State v. Kerchusky, 67 P.3d 1283, 1286–87 (Idaho Ct. App. 2003) (applying
Idaho Rule of Evidence 403), abrogated on other grounds by State v. Galvan, 326 P.3d
1029, 1033 n.5 (Idaho Ct. App. 2014); People v. Primo, 753 N.E.2d 164, 167 –68 (N.Y.
2001) (rejecting “clear link” test of earlier cases in favor of the “general balancing analysis
that governs the admissibility of all evidence”); John H. Blume et al., Every Juror Wants
a Story: Narrative Relevance, Third Party Guilt and the Right to Present a Defense, 44
Am. Crim. L. Rev. 1069 (2007) (discussing a group of state courts that have adopted the
“401/403” approach); Robert Hayes, Enough is Enough: The Law Court’s Decision to
Functionally Raise the “Reasonable Connection” Relevancy Standard in State v. Mitchell, 63 Me. L. Rev. 531 (2011).
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Accordingly, I respectfully concur.

LILLEHAUG, Justice (concurring).
I join in the concurrence of Justice Thissen.