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This opinion will be unpublished and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
A19-0085

State of Minnesota,
Respondent,

vs.

Brock William Fredin,
Appellant.

Filed April 27, 2020
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-17-3156

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

Lyndsey M. Olson, St. Paul City Attorney, Judith A. Hanson, Assi stant City Attorney,
St. Paul, Minnesota (for respondent)

Brock Fredin, Baldwin, Wisconsin (pro se appellant)

Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from a final judgment of conviction for violating a harassment
restraining order (HRO), appellant argues that the district court prejudicially erred by
instructing the jury to draw no inference from his decision not to testify. He also

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argues that the HRO-violation statute, Mi nn. Stat. § 609.748, subd. 6(b) (2014), is
unconstitutional, the district court erred when it denied his request for a “First Amendment”
jury instruction, and the district court abus ed its discretion during sentencing. First, we
conclude that the district court erred in givi ng the “no-inference” jury instruction without
obtaining appellant’s personal consent on the record, but the error was not plain and there
is no reasonable likelihood the no-inference in struction significantly affected appellant’s
substantial rights. Next, we determine that appellant forfeited his as-applied constitutional
challenge to the HRO-violation statute, the district court did not err by denying appellant’s
requested jury instruction, and the district court did not abuse its discretion during
sentencing. Thus, we affirm.
FACTS
Appellant Brock William Fredin met G.M. through an internet dating website in late
August or early September 2015 . Fredin and G.M. went on dates about twice a week for
the next two months. In November 2015, G.M. became concerned about Fredin’s behavior
and told him that she no longer wanted to date him exclusively. Fredin’s behavior worsened
and G.M. petitioned for an HRO, which the district court granted on January 28, 2016. The
HRO prohibited Fredin from having “direct or indirect contact” with G.M. A Ramsey
County sheriff served the HRO on Fredin on February 2, 20 16. This court affirmed the
HRO on appeal. See Miller v. Fredin, A16-0613 (Minn. App. Jan. 23, 2017).
On February 9, 2016, G.M. returned to the same dating website where she first met
Fredin. She read a notice from the dating website stating that Fredin had viewed her profile
that day. The notice included a preview of Fredin’s profile, which said, “To a lost love:

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Incredibly sorry [G .M.]. Sorry for what happened.” Fredin’s profile also apologized and
said that he wanted to speak to G.M. again. G.M. sent Fredin messages through the dating
website, asking him to remove her name and leave her alone. Fredin did not respond but
edited his profile several times so that, in the final version, Fredin stated that G.M. was
“abusive” and speculated that G.M. had post-traumatic stress disorder.
G.M. reported Fredin’s conduct to the St. Paul Police Depart ment and Sergeant
McCabe investigated. One year later, on February 28, 2017, Fredin called McCabe to talk
about the investigation. McCabe recorded the exchange, during which Fredin said, “Let’s
be honest. I was harassing [G.M.]”
The state charged Fredin by complaint on May 2, 2017, and later amended the
complaint, alleging that Fredin had co mmitted stalking by mail under Minn. Stat.
§ 609.749, subd. 2(6) (2014) (count one), a nd had violated an HRO under Minn. Stat.
§ 609.748, subd. 6(b) (count two). Before tria l, Fredin, represented by an attorney, asked
the district court to give a jury instruction stating, “The defendant asserts a defense to the
crime of stalking. . . . It is a defense to this charge if the defendant’s acts were performed
and are authorized, required, or protected” by law. The dist rict court denied Fredin’s
request.
During a four-day jury tria l in July 2018, G.M. and McCabe testified to the
facts summarized above. The district court received three notes from the jury during
deliberations. First, the jury stated that it agreed on the HRO-violation charge but was “at
an impasse” on the stalking charge. Second, the jury asked about an element of the stalking
charge. Third, a juror asked whether she could call her husband about a personal matter.

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The jury returned verdicts finding Fredin guilty of both counts. At sentencing, the district
court entered a judgment of conviction for the stalking-by-mail charge and sentenced
Fredin to serve 365 days in jail and pay fines and court costs. The district court found that
the HRO-violation count was a lesser-included offense and did not enter a judgment of
conviction or sentence Fredin for that count.
Fredin appealed. After Fredin’s appellate attorney filed his opening brief, the
supreme court invalidated the stalking-by-mail statute, Minn. Stat. § 609.749, subd. 2(6),
as unconstitutionally overbroad under the First Amendment. See In re Welfare of A.J.B. ,
929 N.W.2d 840, 864 (Minn. 2019). This court granted Fredin’s motion to stay his appeal
and remand for resentencing because of A.J.B. The district court vacated Fredin’s
conviction and sentence for stalking-by-mail and entered a judgment of conviction for the
HRO violation. The district court sentenced Fredin to serve 90 days in jail with credit for
90 days already served. This court dissolved th e stay and allowed this appeal to proceed.
Fredin discharged his appellate attorney and continued by representing himself on appeal.1
D E C I S I O N
I. The district court did not plainly err by reading a no-inference instruction to
the jury.
After the state rested, Fredin waived his right to testify and the district court asked
whether Fredin requested a no-inference jury instruction.

1 Fredin’s opening brief rais ed two issues: sufficiency of the evidence to support his
stalking-by-mail conviction and the district court’s error in giving the no-inference
instruction. Because the district court vacated Fredin’s conviction for stalking by mail, we
do not consider the first issue in this appeal.

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THE COURT: I also want to put on the record that the
defendant wishes to insert the JIGS surr ounding his right not
to testify. [Fredin’s attorney], if you could put that on the
record?

[FREDIN’S ATTORNEY]: Th ank you, Your Honor. Our
understanding is that we have the option to either include that
instruction or not, and I woul d like that jury instruction
included, titled “Defendant’s Right Not to Testify.”
The district court circulated a no-inference instruction to both parties in the court’s
proposed jury instructions. The district court ultimately read the no-inference instruction
to the jury before closing arguments and Fredin made no objection.
Because Fredin did not object to the no-inference instruction during trial, we review
this issue for plain error, which has three re quirements: the appellant must prove (1) an
error, (2) the error was plain, and (3) th e error affected his substantial rights. State v.
Darris, 648 N.W.2d 232, 240 (Minn. 2002). If a ppellant satisfies all three requirements,
we consider whether a new trial is necessary “to ensure the fairness and integrity of judicial
proceedings.” State v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006).
We begin by considering whether the district court erred. The district court read the
no-inference instruction to the jury:
The State must convince you by evidence beyond a reasonable
doubt that the defendant is gu ilty of the crime charged. The
defendant, Mr. Fredin, has no obligation to prove innocence.
The defendant has the right not to testify. This right is
guaranteed by both th e federal and state constitutions. You
should not draw any inference from the fact that Mr. Fredin has
not testified in this case.

See 10 Minnesota Practice, CRIMJIG 3.17 (2018).

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This instruction is grounded on a criminal defendant’s right to not testify at trial.
U.S. Const. amend. V; Mi nn. Const. art. 1, § 7; see also State v. Borg , 806 N.W.2d 535,
542 (Minn. 2011). Whether to give the no- inference instruction is a defendant’s
prerogative. “If the defendant chooses not to testify, the trial court may instruct the jury not
to draw any adverse inference from the fa ct that the defendant has not testified only if the
defendant requests the court to do so.” Gomez, 721 N.W.2d at 880 (emphasis in original);
see Minn. Stat. § 611.11 (2018). If the defense reque sts the instruction, “the trial court or
defense counsel should make a record of the defendant’s clear consent and insistence that
the instruction be given.” McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002). It is error
for a district court to give a no-inference instruction without a defendant’s consent.
Darris, 648 N.W.2d at 240.
Shortly after Fredin personally waived his right to testify on the record in response
to questions from his attorney, the district court said that it “want[ed] to put on the record
that the defendant wishe[d] to insert the JIGS surrounding his right not to testify.” Fredin’s
attorney said they chose “the option” to have the no-infere nce instruction. Neither the
district court nor Fredin’s attorney made a record of Fredin’s e xpress consent to the
no-inference instruction. By failing to make a record of Fredin’s personal consent to read
the instruction to the jury, the district court erred. See Gomez , 721 N.W.2d at 881
(concluding that district court plainly erre d by giving no-inference instruction without a
record of defendant’s personal consent).
The second element of the plain-error te st requires the error to be “plain.” Id. at
880-81. An error is “plain” if it is “clear” or “obvious” to th e court at the time of appeal.

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State v. Ihle , 640 N.W.2d 910, 917 (Minn. 2002) (quot ations omitted). A district court’s
erroneous reading of a no-inference instruction is usually considered plain error unless the
record establishes that the de fendant agreed with his or he r attorney’s request for the
instruction. Compare Gomez, 721 N.W.2d at 881 (concluding that district court committed
plain error by giving no-inference instruc tion because the record did not establish
defendant’s consent), with State v. Clifton , 701 N.W.2d 793, 798 (Minn. 2005) (“Our
independent review of the record satisfies us that [defendant] and his attorney agreed to the
instruction.”).
The record contains no explicit statements by Fredin consenting to the no-inference
instruction. Still, we conclude that Fredin’s implicit consent to the no-inference instruction
is evident for several reasons. First, the district court asked about Fredin’s position on the
no-inference instruction shortly after he pers onally waived his right to testify and the
district court stated that it “want[ed] to put on the record that the defendant wishes to insert
the JIGS surrounding his right not to testify. ” (Emphasis added.) Fred in’s attorney then
said, “Our understanding is that we have the option to either in clude that jury instruction
or not, and I would like that jury instru ction included.” (Emphasis added.) The record
shows that, after this exchange, the district court gave Fredin a copy of the proposed jury
instructions, including the no-inference instru ction. Fredin did not object at any point
before or after the no-inference instruction wa s given. Based on this record, we conclude
that Fredin and his attorney discussed the no-inference instruction, Fredin understood that
he had the option to have the instruction read to the jury, and Fredin chose to have the
instruction read to the jury. We conclude that the district court did not plainly err by reading

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the no-inference instruction without first maki ng a record of Fredin’s explicit personal
consent.
Clifton supports our analysis. There, as here, the defendant waived his right to testify
and the district court read the no-inference instruction after the defendant’s attorney
requested it, but without first making a record of the defendant’s express personal consent.
701 N.W.2d at 798. On appeal, the supreme c ourt determined that the record showed the
defendant and his attorney had discussed the instruction and did not object when given the
opportunity to do so after the district court read the instruction. Id. The supreme court also
determined that the district court did not plainly err by reading the no-inference instruction
because the defendant and his attorn ey agreed to the instruction. Id. We reach the same
conclusion in this case.
Even assuming the district court’s error was plain, the third requirement of the
plain-error test requires Fredin to show “there is a reasonable likelihood that the giving of
the instruction would have had a signifi cant effect on the jury’s verdict.” Gomez,
721 N.W.2d at 881-82 (quotation omitted). Unless the facts of the case suggest otherwise,
we have held that “the giving of [the no-inference] jury instruction [is] harmless.” Darris,
648 N.W.2d at 240.
Fredin argues that he has shown prejudicial error because the jury struggled to reach
a verdict. We disagree. The jury’s notes to the district court during deliberations show that
it reached a verdict on the HRO-violation ch arge, which is the onl y issue on appeal, and
asked a question only about the stalking-by-ma il charge. We conclude that there is no

9
reasonable likelihood that the district court’s reading of the no-inference jury instruction
had a significant effect on the jury’s verdict.
In sum, we conclude that the district court erred when it read the no-inference
instruction without first obtai ning Fredin’s personal consen t on the record, but he has no
right to a new trial because the error was not plain and, even if it was, it did not affect his
substantial rights.
II. Fredin forfeited his as-applied challe nge to the constitutionality of the
HRO-violation statute, Minn. Stat. § 609.748, subd. 6(b).
Fredin did not raise the constitutionality of Minn. Stat. § 609.748, subd. 6(b), during
district court proceedings. Ra ther, Fredin’s motion requesti ng a specific jury instruction
stated that he was “not here challenging the HRO statute.” “We ordinarily do not consider
issues raised for the first time on appeal, ev en . . . the constitutionality of a statute.” State
v. Williams, 794 N.W.2d 867, 874 (Minn. 2011). We may do so “when the interests of
justice require their consideration and when doing so would not work an unfair surprise on
a party.” Id.
Fredin does not argue that the interests of justice require us to consider his
constitutional challenge. Even so , Fredin’s explicit decision not to raise a constitutional
challenge in district court weighs against our review of the issue. See id. at 874-75
(concluding the interests of justice did not require consideration of constitutional challenge
raised for first time on appeal because the ch allenge could have been raised in district
court).

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Fredin’s challenge to Minn. Stat. § 609.748, subd. 6(b), is also inadequately briefed.
He does not articulate why the statute is unconstitutionally vague or overbroad. See
State v. Merrill , 450 N.W.2d 318, 321 (Minn. 1990) (requiring party challenging
constitutionality of statute to prove constitu tional defect beyond a reasonable doubt); see
also State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (noting that inadequately
briefed issues are not properly before an appellate court), review denied (Minn. Aug. 5,
1997). Thus, we decline to review the constitutionality of Minn. Stat. § 609.748, subd. 6(b).
In the portion of his brief arguing the constitutionality of the HRO-violation statute,
Fredin also argues that insufficient evidence supports his conviction for violating the HRO.
When reviewing a challenge to the sufficiency of the evidence , we review the record to
determine whether the evidence, when viewed in the light most favorable to the conviction,
is sufficient to allow the jurors to reach the verdict that they did. State v. Horst, 880 N.W.2d
24, 40 (Minn. 2016). We will affirm if the jury reasonably could have found the defendant
guilty of the crime charged. State v. Vasko, 889 N.W.2d 551, 558 (Minn. 2017). To uphold
Fredin’s conviction for violating the HRO, th e state’s evidence must establish beyond a
reasonable doubt that he knew of the HRO and violated one of its provisions. Minn. Stat.
§ 609.748, subd. 6(b).
The record establishes that the HRO pr ohibited Fredin from having “direct or
indirect contact” with G.M., Fredin knew of th e HRO because it was served on him in
February 2016, Fredin posted a message to G.M. in his profile on a dating website, and
Fredin edited his message twice in response to G.M.’s requests to remove it. We conclude
that the record evidence reasonably permitted the jury to find that Fredin violated the HRO

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by having “direct or indirect contact” with G.M.; thus, sufficient evidence supports
Fredin’s conviction for violating the HRO.
III. The district court did not err by denying Fredin’s requested jury instruction.
A district court has “considerable latitude” to select language for jury instructions.
State v. Gatson , 801 N.W.2d 134, 147 (Mi nn. 2011). Jury instru ctions must, in their
entirety, “fairly and adequately explain[] the law of the case.” State v. Flores, 418 N.W.2d
150, 155 (Minn. 1988). We review a district court’s decision to give or deny a requested
jury instruction for an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).
Fredin asked the district cour t to read an instru ction for “a defense to the crime of
stalking,” as provided in the pattern jury instructions. See 10 Minnesota Practice ,
CRIMJIG 13.66 (2018). The district court refused the instruction, but, as explained above,
the district court later vacated Fredin’s st alking-by-mail conviction on remand from this
court. Fredin’s claim that the district court erred by denying his re quested instruction is
therefore moot. See Obermoller v. Fed. Land Bank of St. Paul , 409 N.W.2d 229, 230-31
(Minn. App. 1987) (defining an issue as moot when a determination of the issue “would
make no difference in respect of the controversy on the merits” (quotation omitted)), review
denied (Minn. Sept. 18, 1987); see also State v. Fraga, 864 N.W.2d 615, 626 (Minn. 2015)
(“Fraga’s third issue, that the district cour t erred in denying his motion for a change of
venue, is now moot because the conviction is reversed.”). Also, Fredin does not articulate
how the district court’s refusal to read an instruction for “a defense to the crime of stalking”
affected the jury’s verdict on the HRO-violation charge or otherwise caused him prejudice.
Because Fredin’s challenge to this jury instruction is moot and lacks any claim of

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prejudicial error, we conclude that the district court did not err by denying Fredin’s
requested instruction.
IV. The district court did not abuse its discretion during sentencing.
Fredin’s arguments about sentencing are not entirely clear, but we identify three
alleged errors: (1) the judge was biased; (2) the district court imposed a one-year sentence
for the stalking-by-mail conviction, and (3) the district court “removed” Fredin’s attorney
against his consent. We consider each argument in turn.
First, Fredin’s claim of judicial bias rest s on his constitutional right to a fair trial,
which includes the right to an impartial judge. McKenzie v. State , 583 N.W.2d 744, 747
(Minn. 1998). Because Fredin did not raise judici al bias in district court, we review for
plain error. See State v. Schlienz, 774 N.W.2d 361, 365 (Minn. 2009) (applying plain-error
standard of review where defe ndant raised judicial bias for first time on appeal). When
reviewing judicial bias for plain error, we will not reverse unless the appellant shows actual
bias. See State v. Plantin , 682 N.W.2d 653, 66 3 (Minn. App. 2004) (“After a defendant
submits to trial before a judge without objecti ng to the judge on the basis of bias, we will
reverse the defendant’s convic tion only if the defendant can show actual bias in the
proceedings.”), review denied (Minn. Sept. 29, 2004).
We presume that a judge has properl y discharged her judicial duties. McKenzie,
583 N.W.2d at 747. The judge must be “fair to both sides” and “refrain from remarks which
might injure either of the parties to the litigation.” State v. Schlienz, 774 N.W.2d 361, 367
(Minn. 2009) (quotation omitted). “A judge sh all disqualify himself or herself in any

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proceeding in which the judge’s impartiality might reasonably be questioned . . . .” Minn.
Code. Jud. Conduct Rule 2.11(A).
Fredin argues that the district cour t judge was biased against him based on
comments during the October 2018 sentencing hearing in which the district court accepted
the jury’s finding of guilt on both charges and imposed an executed sentence for the
stalking-by-mail conviction. After a careful review of the sentencing transcript, we
disagree. A judge’s opinions formed “on the basis of facts introduced or events occurring
in the course of . . . current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they di splay a deep-seated favoritism or antagonism
that would make fair judgment impossible.” State v. Burrell, 743 N.W.2d 596, 603 (Minn.
2008) (quotation omitted). While th e district judge’s statements were harsh at times, her
statements relied on evidence introduced at trial and Fred in’s demeanor throughout the
proceedings, including his stat ements during the sentencing hearing. We do not discern
that the district judge’s comments showed “a deep-seated favoritism or antagonism that
would make fair judgment impossible.” See id. (quotation omitted). Fr edin has failed to
show actual bias warranting reversal. See Plantin, 682 N.W.2d at 663.
Second, Fredin argues that the district court abused its discretion when it imposed
an executed 365-day sentence fo r the stalking-by-mail convictio n. But the district court
later vacated Fredin’s stalking-by-mail co nviction, entered a conviction for the
HRO-violation charge, and sentenced Fredin to 90 days in jail with credit for 90 days that
he had already served. Fredin served no additional time for the HRO-violation conviction.
Fredin’s claim is therefore moot. See State v. Eller , 780 N.W.2d 375, 384 (Minn. App.

14
2010) (holding that even if district cour t erred during sentencing, the issue was moot
because defendant had alrea dy served the full sentence), review denied (Minn. June 15,
2010).
Third, Fredin argues that the district court erred by improperly “removing” his
attorney. The record does not support this argument. Fredin ’s trial attorney moved to
withdraw as counsel after the trial had concluded and before the sentencing hearing because
of “an irreconcilable breakdown in the attorn ey-client relationship.” The district court
granted the attorney’s motion to withdraw. Fredin ha d time to obtain—and did obtain—
new counsel for sentencing. Fr edin does not articulate how this violated his rights or
otherwise prejudiced him.
Affirmed.