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This opinion will be unpublished and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
A18-1899

State of Minnesota,
Respondent,

vs.

Markus Wilton Eskew,
Appellant.

Filed November 18, 2019
Affirmed
Cochran, Judge

Ramsey County District Court
File Nos. 62-CR-18-465, 62-CR-18-732, 62-CR-18-1482

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

John Choi, Ramsey County At torney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota; and

Lyndsey Olson, St. Paul City Attorney, Mari a DeWolf, Assistant City Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Connolly, 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
COCHRAN, Judge
Appellant Markus Wilton Es kew pleaded guilty to one count of interfering with an
emergency call and two counts of violating a domestic abuse no contact order (DANCO).
In this appeal, Eskew contends that his guilty plea to the emergency call charge was invalid
and that the district court exceeded its aut hority in issuing the DANCO. Because we
conclude that Eskew’s guilty plea was valid and that the district court did not err in issuing
the DANCO, we affirm.
FACTS
The state filed a complaint charging appellant Markus Wilton Eskew with
interfering with an emergency call under Minn. Stat. § 609.78, subd. 2(1) (2016). The
complaint related to an incident that occurred in January 2018. The complaint alleged that
Eskew got into an argument with his significant other (A.R .H.) while driving in a car.
A.R.H. was the driver and Eskew was the passenger. According to A.R.H., Eskew had
accused her of being unfaithful to him. A.R.H. reported to police that Es kew was angry
and that she was afraid he would assault her. She told police that as the argument
continued, Eskew became violent. She then took out her cell phone and told Eskew that
she was calling 911 because she was afraid. Eskew grabbed A.R.H.’s phone out of her
hand and held on to her waist to pull on her, hindering her ability to communicate with
emergency services. A.R.H. managed to get her cell phone back and communicate with
the 911 operator when the operator called back.

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Eskew pleaded guilty at the first appearance. In laying a factual basis for the plea,
Eskew testified that he got into a “dispute” with A.R.H. He admitted that A.R.H. said she
was going to call the police, and that he begge d A.R.H. not to call. He then grabbed
A.R.H.’s phone from out of her hands. Eskew admitted that there was a struggle over the
phone, and that he materially interfered with A.R.H.’s ability to call the police. The district
court accepted the guilty plea and set a sentenci ng date. The district court also issued a
DANCO prohibiting Eskew from having contact with A.R.H.
Eskew violated the DANCO twice before sentencing. The state charged him for
both violations. Eskew admitted to both violations and pleaded guilty to the two charges.
At a consolidated sentencing hearing, the district court sentenced Eskew to 365 days in jail
for the interfering with emergency call charge , 30 months in prison for the first DANCO
violation, and 33 months in prison for the second DANCO violation.
Eskew appeals.
D E C I S I O N
Eskew contends that he should be allo wed to withdraw his guilty plea to the
interfering with an emergency call charge, arguing that his plea was invalid. He also argues
that the district court did not have the authority to issue the DANCO because the emergency
call charge lacked probable cause. The state responds that Eskew’s challenge to his guilty
plea is not properly before this court because Eskew did not first file a motion to withdraw
his plea pursuant to Minn. R. Crim. P. 15.05. The state also maintains that Eskew’s guilty
plea was valid and that the district court acted within its authority when it issued a DANCO
after Eskew pleaded guilty to interfering with an emergency call.

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As a preliminary matter, we reject the state’s argument that Eskew was required to
file a motion to withdraw hi s guilty plea before challenging the validity of the plea on
appeal. Although Minn. R. Crim. P. 15.05 provides that a defendant may seek to withdraw
his plea “upon a timely motion,” Minnesota appellate precedent makes clear that a
defendant may directly appeal from a judgme nt of conviction arguing that his guilty plea
is invalid. See Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989) (“A defendant is free
to simply appeal directly from a judgment of conviction and contend that the record made
at the time of the plea was entered is inadequate in one or more of these respects [i.e., that
the plea was not valid because it was not accurate, voluntary, or intelligent].”);
State v. Johnson, 867 N.W.2d 210, 214 (Minn. App. 2015), review denied (Minn.
Sept. 29, 2015).1 Accordingly, we review the mer its of Eskew’s arguments. We first
address whether Eskew is entitled to withdraw his guilty plea and then turn to his argument
regarding the DANCO.
I. Eskew is not entitled to withdraw hi s guilty plea because his plea was valid.

A defendant does not have an absolute right to withdraw a guilty plea.
State v. Mikulak, 903 N.W.2d 600, 603 (Minn. 2017). But a court must allow a defendant
to do so if “withdrawal is n ecessary to correct a manifest in justice.” Minn. R. Crim. P.
15.05, subd. 1. “A manifest injustice exists if a guilty plea is not valid.” State v. Raleigh,
778 N.W.2d 90, 94 (Minn. 2010 ). “To be constituti onally valid, a guilty plea must be

1 We note that the state’s reliance on State v. Klug , 839 N.W.2d 723, 729 (Minn.
App. 2013), to support its position that a defendant must move for plea withdrawal before
seeking withdrawal on direct appeal is misplaced. We did not hold in Klug that a criminal
defendant must move for plea withdrawal before seeking withdrawal on direct appeal.

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accurate, voluntary, and intelligent.” Id. “If a guilty plea fails to meet any of these three
requirements, the plea is invalid.” Johnson, 867 N.W.2d at 214. Whether a plea is valid
is a question of law that appellate courts review de novo. Raleigh, 778 N.W.2d at 94.
Eskew challenges the accuracy of his plea. “The accuracy requi rement protects a
defendant from pleading guilty to a more serious offense th an that for which he could be
convicted if he insisted on his right to trial. To be accurate, a plea must be established on
a proper factual basis.” Id. (citations omitted). “The factual basis must establish sufficient
facts on the record to support a conclusion that defendant’s conduct falls within the charge
to which he desires to plead guilty.” Munger v. State , 749 N.W.2d 335, 337-38
(Minn. 2008) (quotation omitted).
Typically, the factual basis for the plea is established when the defendant describes
the crime in his own words. Lussier v. State, 821 N.W.2d 581, 589 (Minn. 2012). “Still,
a defendant may not withdraw his plea simply because the court failed to elicit proper
responses if the record contains sufficien t evidence to support the conviction.” Raleigh,
778 N.W.2d at 94. A plea colloquy may be s upplemented by other parts of the district
court record, including the complaint. Lussier, 821 N.W.2d at 589 (citing State v. Trott,
338 N.W.2d 248, 252 (Minn. 1983) (permitti ng use of the whole record, including the
complaint and photographs)).
Eskew argues that his guilty plea was in accurate because ther e are not sufficient
facts in the record to establish an essential element of interfering with an emergency call—
that an emergency existed at th e time the defendant interfered with the call. A person is
guilty of interference with an emergency call if he “intentionally di srupts, impedes, or

6
interferes with an emergency call or who inte ntionally prevents or hinders another from
placing an emergency call.” Minn. Stat. § 609.78, subd. 2( 1). “Emergency call” means
“(1) a 911 call; (2) any call for emergency me dical or ambulance service; or (3) any call
for assistance from a police or fire department or for other assistance needed in an
emergency to avoid serious harm to person or property, and an emergency exists.”
Minn. Stat. § 609.78, subd. 3(a)(1)-(3) (2016). “A call is not an emergency call unless ‘an
emergency exists.’” State v. Hersi , 763 N.W.2d 339, 343 (M inn. App. 2009) (quoting
Minn. Stat. § 609.78, subd. 3 (2006)).
The interference with an emergency call statute does not define “emergency.” See
Minn. Stat. § 609.78. In State v. Brandes, this court considered the dictionary definition
of “emergency” for guidance. 781 N.W.2d 60 3, 606 (Minn. App. 2010). We concluded
that “emergency” means “‘[a] serious situation or occurrenc e that happens unexpectedly
and demands immediate action,’ or ‘[a] condition of urgent need for action or assistance.’”
Id. (quoting The American Heritage College Dictionary 449 (3d ed. 2000)). This court
noted that an “emergency” does not always incl ude “violence, a threat of violence, or the
existence of a separate, underlying criminal offense . . . . Depending on the circumstances,
an argument may constitute a serious event that demands immediate action.” Id.
Eskew argues that his plea is inaccurate because, at the plea hearing, he admitted
only that he had a “dispute” with A.R.H. before she attempted to call 911. He argues that
the word “dispute” encompasses a broad range of non-emergency scenarios and that there
is not sufficient evidence in the record to establish that an emergency existed. We disagree.
According to the complaint, Eskew became violent when arguing with A.R.H. in the car.

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While an ordinary argument may not rise to the level of an “emergency” as contemplated
by the statute, we conclude that an argument th at turns violent is sufficient to constitute a
“serious situation” that “demands immediat e action” and a “condition of urgent need for
action or assistance,” satisfying the emergency element. See Brandes, 781 N.W.2d at 606
(concluding that evidence that appellant “argued vociferously” with a victim over an
extended period of time and refused to leave despite being told to do so, causing the victim
to fear the appellant, and then was observed fighting with another person was sufficient to
prove that an emergency existed).
Eskew maintains that the f acts in the complaint are too general and conclusory to
supplement his testimony and establish the emergency element, arguing that the allegations
in the complaint require an “act ive imagination to conclude that an emergency prompted
[A.R.H.] to call 911.” Again, we disagree. A. R.H.’s statements that she was afraid that
Eskew would assault her and that Eskew then “became violent,” support the conclusion
that the dispute between the two escalated beyond a “non-emergency scenario.” Moreover,
A.R.H. stated that Eskew held onto her wais t to pull on her, and the 911 operator heard
sounds of a struggle when A.R.H. initially called her. The complaint establishes that
Eskew engaged in an angry argument with A.R.H., causing her to fear an assault, and that
Eskew then became violent, pr ompting A.R.H. to call 911 because she was afraid. We
conclude that there are sufficient facts in the record to establish that an emergency existed
when Eskew interfered with A.R.H.’s 911 call and that, consequently, Eskew’s guilty plea
was accurate and valid.

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II. The district court did not exceed its authority in issuing a DANCO after
accepting Eskew’s guilty plea.

Eskew also argues that we should reverse his convictions for violating the DANCO
because the district court exceeded its authority by issuing the DANCO without probable
cause. A district court may issue a DANCO order in a criminal proceeding for interfering
with an emergency call if the crime was committed against a family or household member.
See Minn. Stat. § 629.75, subd. 1 (2016) (providing that a court may issue a DANCO order
when the defendant is charged with domestic abuse as defined in Minn. Stat. § 518B.01,
subd. 2); Minn. Stat. § 518B.01, subd. 2(a )(3) (2016) (defining “domestic abuse” as
including interfering with an emergency call un der Minn. Stat. § 609.78, subd. 2, if it is
committed against a family or household member). The statute restricts the district court’s
authority to issue a DANCO to cases in which:
(1) the court has made a preliminary finding that there is
probable cause to believe that the defendant has committed [a
crime that would authorize th e issuance of the DANCO],
(2) the court has considered whether a no contact order is
necessary for the safety of the victim or other persons, and
(3) the court has issued a written order setting forth the
conditions of release.

State v. Ness , 834 N.W.2d 177, 185 (Minn. 2013). These protections ensure that a
defendant is afforded his or her right to du e process under the Minnesota and the federal
constitutions. Id. at 184-85.
Eskew’s argument that the district court issued the DANCO without probable cause
is identical to his argument that his guilty plea was invalid—that there was not probable
cause to believe that an emer gency existed at the time he in terfered with the 911 call and

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therefore there was not probable cause to support the issuance of the DANCO. The district
court issued the DANCO only after accepting Eskew’s guilty plea. And the district court
had previously made a probable cause determination when it signed the complaint charging
Eskew with interfering with an emergency call. As discusse d above, we conclude that
there are sufficient facts in the record to support Eskew’s guilty plea and to establish that
an emergency existed when he interfered with A.R.H.’s emergency call. Consequently,
we find no merit to this argument.
Because there are sufficient facts in the record to support Eskew’s guilty plea to
interfering with an emergency call, and because the district court acted within its authority
in issuing a DANCO, we affi rm Eskew’s convictions for in terfering with an emergency
call and violating a DANCO.
Affirmed.