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This opinion will be unpublished and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
A18-2091

State of Minnesota,
Respondent,

vs.

Gerald Duane Skolte,
Appellant.

Filed October 21, 2019
Affirmed
Connolly, Judge

Otter Tail County District Court
File No. 56-CR-18-2662

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

Rolf Nycklemoe, Fergus Falls City Attorney, Joseph R. Ellig, Assistant City Attorney,
Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and
Johnson, Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction of fifth -degree assault and disorderly conduct.
He argues that the district court committed plain error by allowing two officers to testify
as to their opinion that he was the aggressor in the fight, based on their viewing of a
surveillance video of the fight. Because the district court did not plainly err in permitting
the officers’ testimony, we affirm.
FACTS
Appellant Gerald Duane Skolte, an inmate at the Otter Tail County Detention
Facility, was involved in a fight with another inmate, K.H., in September 2018. K.H.
sustained injuries to his face as a result of the fight. K.H. testified at trial that a ppellant
suddenly attacked him after K.H. said, “It’s not your house,” when appellant became upset
about a table being moved.
Respondent State of Minnesota introduced further evidence that a ppellant had
initiated the fight through the testimony of two officers. First, correctional officer Mark
Olson responded after the fight began and separated the two men. He then determined who
had instigated the fight by reviewing the surveillance video. Based on his review, he
testified as to which inmate started the fight:
OLSON: Something happened and that [appellant] got
aggressive and started initiating a fight with [K.H.].
STATE: And when you say “initiating a fight,” h ow would
you describe [appellant ’s] actions in relation to [K.H.’s]
actions?
OLSON: [Appellant] was the aggressor in the situation. He
struck first with a backhanded swing and then initiated another

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right punch, right-handed punch, towards [K.H.’s] face. [K.H.]
threw his hands up in defense and was tr ying to get away, and
[appellant] followed him into the corner of the unit and
proceeded to attack him. [K.H.] then pushed [appellant] away
to get away in defense. And before we—and that is when we
entered the unit and was able to separate them.
STATE: And up until that point, Mr. Olson, you’re describing
what you viewed on the surveillance video; is that right?
OLSON: Correct.

Appellant did not object to this testimony at trial.
Police officer Dustin Kitzman testified that he went to the jail on a report of assault.
At the jail, he viewed the surveillance video and spoke with two correctional officers,
including Olson, and K.H. The state introduced the video into evidence and played it for
the jury, while Kitzman described what was happening. Afterwards, Kitzman explained to
the jury his decision to charge appellant with assault and disorderly conduct:
My determination was, after watching the video,
speaking with the corrections officers, that [appellant] was the
aggressor in the incident. [K.H.] was standing there, did not
make an y moves towards [appellant] prior to the incident.
[Appellant] approached [K.H.] and started swinging his fists
and hands. [K.H.] turned away and was tr ying to get away
from [appellant], but [appellant] kept approaching him, kept
moving towards him being the primary aggressor. And the
only thing I see from [K.H.] is [K.H.] trying to push [appellant]
away from him, which is him trying not to, not to get hit.
So in that—in viewing that, I viewed [appellant] as the
aggressor. That’s why I charged him with Assault and
Disorderly Conduct. The Assault was for the bodily harm of
all the scratch marks on the face and nose and the Disorderly
Conduct for his, for his conduct that morning.
Appellant did not object to this testimony at trial.

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The jury returned a verdict, finding appellant not guilty of fifth-degree assault—fear
(Minn. Stat. § 609.224, subd. 1(1) (2018)), guilty of fifth -degree assault—harm (Minn.
Stat. § 609.224, subd. 1(2) (2018)), and guilty of disorderly conduct —brawling (M inn.
Stat. § 609.72, subd. 1(1) (2018)). This appeal follows.
D E C I S I O N
Appellant argues that the officers’ testimony that he was the aggressor in the fight
was inadmissible expert testimony. Because he did not object to this testimony at trial, we
review the case under a plain-error standard. Minn. R. Crim. P. 31.02. There are three
requirements for a defendant to show plain error: (1) there must be an error, (2) the error
must be plain, and (3) the error must affect substantial rights. State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998). If the defendant satisfies those three prongs, then we will order a
new trial only if it is “necessary to ensure fairness and the integrity of judicial proceedings.”
Id. at 742. If we conclude that any prong is not sa tisfied, then we “need not consider the
other prongs.” State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
A witness may testify as a lay witness or an expert. A lay witness can testify in the
form of an opinion only when the opinions are “(a) rationally based on the perception of
the witness; (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue; and (3) not based on scientific, technical, or other
specialized knowledge.” Minn. R. Evid. 701. In contrast, an expert witness may testify in
the form of an opinion only when “scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue.” Minn.
R. Evid. 702. For both lay and exper t witnesses, opinion testimony “is not objectionable

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because it embraces an ultimate issue to be decided by the trier of fact.” Minn. R. Evid.
704.
We provided a detailed summary of the admissibility of opinion testimony in State
v. Patzold:
“[U]ltimate conclusion testimony which embraces legal
conclusions or terms of art” is not considered helpful to the
jury. State v. DeWald , 463 N.W.2d 741, 744 (Minn. 1990).
The district court may also exclude testimony on the ultimate
issue “when the tes timony would merely tell the jury what
result to reach.” State v. Moore, 699 N.W.2d 733, 740 (Minn.
2005) (quotation omitted). But the supreme court has allowed
police officers to express opinions concerning who killed a
victim when the conclusion “was f actual rather than legal and
was offered in response to leading questions,” and the officer
avoided legal terminology. DeWald, 463 N.W.2d at 744. We
have also held that a 911 operator’s lay opinion testimony that
the caller was being assaulted was admiss ible because it “was
‘rationally based’ on her perceptions and was helpful to the
jury.” State v. Washington, 725 N.W.2d 125, 137 (Minn. App.
2006), review denied (Mar. 20, 2007).
917 N.W.2d 798, 808 (Minn. App. 2018), review denied (Minn. Nov. 27, 2018).
Police officers, like other witnesses, may testify in the form of a lay opinion when
that opinion is rationally based on their perception. Such testimony is not an expert opinion
simply because the officers have specialized training or experience. State v. Ards, 816
N.W.2d 679, 682 -83 (Minn. App. 2012). We have held that officers’ testimony that an
assault occurred was a lay opinion, not an expert opinion, because it was rationally based
on the officers’ perceptions during their investigation of the incident. Patzold, 917 N.W.2d
at 808. The opinion testimony was helpful to the jury because the officers “testified about
the facts and evidence revealed by their investigation that indicated an assault,” and the

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jury “heard and saw this very same eviden ce.” Id. Similarly, a deputy could testify as to
his opinion that an assault had occurred based on his observations of the crime scene. State
v. Pak, 787 N.W.2d 623, 629 (Minn. App. 2010). The fact that the deputy was not present
at the time of the assault did not bar this lay opinion, since it was still based on the deputy’s
rational perception. Id.
Appellant assumes that Olson’s and Kitzman’s testimony that he was the aggressor
in the jailhouse fight was an expert opinion. This assumption is erroneous because Olson
and Kitzman provided lay opinions rationally based on their perceptions. As Ards makes
clear, a police officer’s testimony is not an expert opinion just because the officer has
specialized training and experience. Here, the state did not even attempt to designate Olson
or Kitzman as experts. Olson testified that he had no degree in law enforcement and merely
said how long he had worked for the Otter Tail County Detention Facility. Kitzman stated
that he had a peace officer’s license for Minnesota and said how long he had worked for
the police department and the jailhouse, but he did not testify as to any other qualifications.
More importantly, the officers’ opinions did not require specialized knowledge.
Rather, they were based on the o fficers’ perceptions. Appellant argues that the opinions
were inadmissible in part because the officers did not witness the fight firsthand and
reached their opinions only after watching the surveillance video. But the fact that the
officers did not witness the entire incident firsthand is irrelevant. See Patzold, 917 N.W.2d
at 808; Pak, 787 N.W.2d at 629. Olson and Kitzman provided their opinions that appellant
was the aggressor based on their investigations of the incident.

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Furthermore, the officers’ opinions were helpful to the jury. Like the officers in
Patzold, Olson and Kitzman provided more than their opinions; they also testified as to the
facts and evidence that led to those opinions, and the jury heard and saw all of this evidence.
Both officers relied heavily on the surveillance video, and Kitzman described what was
happening while the video played. Olson and Kitzman explained which evidence in the
video caused them to believe that a ppellant was the a ggressor. Olson testified that
appellant struck the first punch and continued to attack K.H., and th at K.H. tried to get
away from a ppellant to defend himself. Kitzman described how K.H. did not make any
moves before appellant approached him and started swinging his fists. Kitzman’s opinion
was also helpful in explaining his decision to charge appellant with assault and disorderly
conduct.
Therefore, Olson’s and Kitzman’s statements that appellant was the aggressor in the
fight were admissible lay opinions because they were rationally based on the officers’
perceptions, helpful to a clear understanding of the testimony, and not based on specialized
knowledge. Since the testimony was admissible, a ppellant has failed to satisfy the first
prong for plain error—that there was an error. Accordingly, we need not consider the other
prongs for plain error. Brown, 815 N.W.2d at 620.
Appellant raises several arguments in his pro se supplemental brief.1 He argues that
(1) the jury should have received an instruction that he acted in self -defense based o n
K.H.’s harassment during the preceding weeks, (2) he should have been allowed to ask

1 In his brief, appellant admits that he “lost it and back-handed” K.H.

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K.H. on cross -examination why he was in jail, (3) the court should have dismissed the
entire jury pool because one prospective juror claimed during jury selection that h e knew
K.H., (4) he was subject to double jeopardy because the jailhouse sentenced him to 60 -
days lockdown before the state charged him with assault, and (5) Olson lied on the stand
regarding the location of K.H.’s injuries. We have carefully considered a ll of these
arguments and find them to be without merit.
Affirmed.