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This opinion will be unpublished and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
A19-0200

State of Minnesota,
Respondent,

vs.

Christopher Michael Wendt,
Appellant.

Filed November 30, 2020
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-21713

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

Michael O. Freeman, Hennepin County Attorn ey, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Adam T. Johnson, David R. Lundgren, Lundgren & Johnson, P.S.C., Minneapolis,
Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Christopher Michael Wendt wa s traveling south on Highway 169 with
methamphetamine in his system when he crossed the shoulder of the highway and crashed

2
into a parked car, killing its occupant. Wendt argues that his conviction for criminal
vehicular homicide must be reversed becau se: (1) the prosecutor committed misconduct;
(2) the district court erred by instructin g the jury that it could only consider the
lesser-included offense if it determined Wendt was not guilty of the greater offense; (3) the
district court judge who presided over the jury trial was biased; and (4) if not individually,
then the cumulative effect of thes e errors affected his right to a fair trial. Alternatively,
Wendt argues that the district court la cked authority to impose a five-year
conditional-release term. Because Wendt’s conviction was supp orted by overwhelming
evidence and the district court judge’s impartiality could not reasonably be questioned, we
affirm. But we reverse the district court’ s imposition of a five-year conditional-release
period and remand for resentencing.
FACTS
On July 12, 2017, appellant Christopher Michael Wendt was driving his Ford pickup
truck southbound on Highway 16 9 in Bloomington when he veered off the highway and
smashed into a Camaro parked on the westbound shoulder of the highway, killing its driver,
T.K. The accident occurred shortly after 6:00 p.m. The weather was 76 degrees with clear
skies.
Wendt told a responding officer that he “looked over his shoulder for a brief second,
looked in his mirror for a brie f second and ended up hitting th e vehicle in front of him.”
Wendt also indicated that “he may have drifted a little bit.” Wendt told another officer that
“he looked over his left shoulder, and when he looked forward, he noticed he was on the
shoulder.”

3
The officers then observed that after speaking with the medics, Wendt was “passed
out in the weeds, sleeping.” This behavior caused the officers to suspect that Wendt was
under the influence of a controlled substance. The officers also noted that Wendt displayed
“[n]o emotions whatsoever” after the accident. A sample of Wendt’s blood taken after the
accident revealed the presence of methamphe tamine and amphetamine in his system.
Wendt was then charged with criminal vehicular homicide.1
Wendt’s trial proceeded for fo ur days in November 2018. Evidence presented at
trial showed that just before impact, Wendt’s truck was travelling at 62-69 miles per hour
while the Camaro was in park with its power off. After impact, the Camaro accelerated to
a speed of 41-46 miles per hour. The damage to the truck indicated that it was primarily a
frontal collision. The Camaro was crushed forward like an accordion, with its rear wheels
driven up into the passenger compartment. The truck left a skid mark on the front-lower-
driver’s-side portion of the Camaro as it drove over the car.
Two people who witnessed the crash testif ied at trial. E.R. was approximately
100 feet behind the pickup truck at the time of the collision. E.R. testified that she did not
see the pickup truck swerve, hit its brakes, or make any attempt to avoid the collision.
N.B., the other witness to the crash, testified that she was traveling parallel to the pickup
truck about a half length behind it when, out of the corner of her eye, she saw it drive over
the top of the Camaro, go into the air, and flip over.

1 Minn. Stat. § 609.2112, subd. 1(a)(6) (2016).

4
N.B. stated that the pickup truck did no t attempt to brake, and instead “literally
drove over the top of the [Camaro. ]” When asked if she origin ally told a trooper that the
Camaro was in the far right lane, she clarified that she “didn’t notice the Camaro until I got
out of my car,” and “[t]hat’s because that’s where the [Camaro] was when it was smashed
because it still was in the far right lane at that moment.”
The accident reconstructioni st provided the following testimony regarding the
precise location of where the crash occurred:
Q: [Is there] [a]ny evidence from which you can conclude that
the end of that Camaro . . . was sticking out into the
roadway at the time of the collision?

A: No, sir. Based off my physic al scene measurements of the
evidence that was available to me at the time of the crash,
in correlation with the shap e of the vehicle and the
measurements that I have from the manufacturer, I don’t
have any evidence it was sticking into the traffic lane.

Q: Is there any evidence th at you have from which you
conclude that the F-350 wa s not on the shoulder of
southbound 169?

A: No, sir, that’s where the collision took place.
Based on the data retrieved from the pickup tr uck’s airbag sensor, there was no evidence
that Wendt ever applied his br akes in the five seconds pre ceding the crash. The sensor
further indicated that at the time of the crash, Wendt was steering slightly to the left, and
there was no indication of either “an avoidance or panic reaction-type situation.”
2

2 The evidence presented at tr ial included testimony from other witnesses not included in
our summary of Wendt’s trial.

5
At the close of evidence, the district c ourt granted Wendt’s request to instruct the
jury on the lesser-included offense of fourth-degree driving while impaired (DWI). Minn.
Stat. § 169A.20, subd. 1(7) (2016). The ju ry found Wendt guilty of criminal vehicular
homicide but did not return a verdict on the le sser-included offense. The district court
sentenced Wendt to 48 months in prison, with a five-year conditional-release period.
Wendt filed a direct appeal and we granted his request to stay the appeal so he could
pursue postconviction proceedings in district c ourt. After holding an evidentiary hearing
on Wendt’s allegation of judici al misconduct, the district court denied his postconviction
petition in its entirety, and we dissolved the stay and reinstated his direct appeal.
D E C I S I O N
With the exception of Wendt’s claim that the district court imposed an incorrect
conditional-release period, he raised all of th e errors asserted on direct appeal in his
postconviction petition. “When a defendant initially files a direct appeal and then moves
for a stay to pursue postco nviction relief, we review the postconviction court’s decisions
using the same standard that we apply on direct appeal.” State v. Beecroft ,
813 N.W.2d 814, 836 (Minn. 2 012). With this in mind, we first address Wendt’s claim
that he is entitled to a new trial on the basis of prosecutorial misconduct. We then address
in turn Wendt’s claims that the district cour t erroneously instructed the jury, the district
court judge was biased, the cumulative nature of the errors entitle him to a new trial, and
the district court imposed an incorrect period of conditional release.

6
I. The prosecutor did not commit reversible misconduct.
Wendt identifies one instan ce of objected-to prosecutorial misconduct and six
instances of unobjected-to prosecutorial misconduct which he asserts entitle him to a new
trial. We begin by addressing the alleged in stance of misconduct objected to during trial,
and then proceed to address Wendt’s unobjected-to claims.
Objected-to Testimony Regarding Wendt’s Behavior
Wendt asserts the prosecutor comm itted misconduct by eliciting clearly
inadmissible testimony. Wendt objected to the testimony on relevance grounds.
Objected-to prosecutorial misconduct is reviewed for harmless error. State v. Hunt ,
615 N.W.2d 294, 302 (Minn. 2000). Prosecutorial misconduct “results from violations of
clear or established standards of conduct, e.g., rules, laws, orders by a district court, or
clear commands in this state’s case law.” State v. Fields , 730 N.W.2d 777,
782 (Minn. 2007).
Wendt’s trial focused on whether Wendt’s negligent driving caused him to collide
with the parked Camaro, killing T.K. To assess the merits of Wendt’s claims, it is useful
to keep the three elements of criminal vehicular homicide front and center. As the district
court instructed the jury, to convict Wendt, the state must prove that: (1) T.K. was killed;
(2) Wendt caused T.K.’s death by negligently operating his truck while any amount of
methamphetamine was present in his system; and (3) Wendt’s act took place in Hennepin
County on or about July 12, 2017. Minn. Stat. § 609.2112, subd. 1(a)(6).

7
Wendt points to the following exchange (which he co mplains is irrelevant) during
the testimony of an investig ator, regarding Wendt’s behavi or when he arrived at the
hospital following the crash:
Q: When you and the other tro opers and the defendant went
into the hospital, what was [t he] hospital staff’s reaction?
What did they try to do?

A: So they—he got admitted. . . . [W]e’re getting him checked
out for any injuries. The hosp ital staff . . . wanted to put
him in a C-collar to protect hi s spine. He was becoming
argumentative with staff and irritable and trying to control
the situation.

Q: What do you mean “trying to control the situation”?

A: He was just being very demanding. He threatened to walk
out of the hospital. We were trying to calm him down. He
just didn’t seem to really care what was going on. I had to
remind him that he killed someone, and just his attitude, he
just really didn’t care.

Q: After you reminded him, did he ask about the deceased’s
family or anything?

[Wendt’s attorney]: Objection; relevance, Your Honor.

[District Court]: Overruled.

A: No, he really didn’t mention anything. He wanted me to
call his family, his wife, and I ended up calling his mom for
him to let them know he was at the hospital.

This testimony regarding Wendt ’s behavior following the acci dent was relevant to the
responding officers’ suspic ion that Wendt was under the influence of a controlled
substance. As a result, eliciting the testimony does not amount to prosecutorial
misconduct.

8
Nor did the testimony of multiple witnesses about Wendt’s nonresponsive behavior
immediately following the accident amount to prosecutorial misconduct.
Trooper Solberg testified that Wendt displayed “no emotions whatsoever,” leading
him to suspect that Wendt was und er the influence, particularly after he fell asleep in the
grass after his initial contact w ith the first responders. And Trooper Wayne testified that
“extreme sleepiness,” which Wendt exhibited shortly after the accident, is a symptom that
the effects of methamphetamine are beginning to wear off. Finally, th e forensic scientist
testified that methamphetamine can cause a person to become “confused, irritable,
paranoid, and increasingly fatigued.”
In light of this testimony, Wendt’s lack of emotion immediately after the accident
(as well as his behavior at the hospital) was relevant to whether he was under the influence
of methamphetamine at the time of the accident. Therefore, the prosecutor did not commit
misconduct by eliciting the testimony.
Plain Error
Wendt identifies six instances of asserted prosecutorial misconduct that were not
objected to during trial. When a defendant fails to object during trial, prosecutorial
misconduct is reviewed under a m odified plain-error standard. State v. Ramey ,
721 N.W.2d 294, 302 (Minn. 2006). Wendt bear s the burden of estab lishing error that is
plain, but upon doing so the bur den shifts to the state to prove that there is no reasonable
likelihood that the absence of the misconduct would have had a signi ficant effect on the
jury’s verdict. Id.

9
Wendt identifies the followi ng unobjected-to instances of alleged prosecutorial
misconduct:
(1) the prosecutor characteri zed Wendt as being on a
methamphetamine “binge”;

(2) the prosecutor aligned hims elf with the jury by using the
pronoun “we” once during his closing argument;

(3) the prosecutor noted that evidence of Wendt’s
methamphetamine use was uncontradicted;

(4) the prosecutor disparaged the defense during his closing
argument;

(5) the prosecutor appealed to the passions of the jury by
stating “[Wendt] used his turn signal. Congratulations.
We’ll share that with [T.K.’s widow].
3 I’m sure that brings
her a lot of solace that the guy had his turn signal on when
he ran over and killed another human being.”; and

(6) the prosecutor misstated the law regarding the
lesser-included-offense instruction.

While the state does not contest that the examples of conduct during the state’s
closing argument were plain error, the stat e nevertheless asserts that there was no
reasonable likelihood that the ve rdict was attributable to the errors. For the reasons set
forth below, we determine that the state has met its burden of proving that there is no
reasonable likelihood that any of the alleged instances of misconduct had a significant

3 It is inappropriate for a pr osecutor to intentionally miss tate evidence during closing
argument. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). It is inappropriate for the
prosecutor to use the pronoun “we” as a mean s of describing the defendant as being from
a different world than the prosecutor and jury. State v. Mayhorn , 720 N.W.2d 776, 790
(Minn. 2006). “A prosecutor must not appeal to the passions of the jury.” Id. at 786–87.

10
effect on the jury’s verdict. Therefore, we do not address whether each instance of alleged
misconduct constituted plain error.
As previously explained, the only elemen t of criminal vehicular homicide at issue
during trial was whether Wendt’s negligen t driving caused T.K.’s death while
methamphetamine was in his system. Wendt a sserts that the state has not met its burden
because the evidence presented at trial did not clearly establish his negligence, and thus it
is possible that the jury co nvicted him of criminal vehicular homicide based on the
instances of prosecutorial misconduct.
We disagree. Wendt neglects to point to any evidence upon which the jury could
have found that he was not negligent. In his brief, Wendt contends that “[d]ivergent
eyewitness accounts and reconstruction evidence placed the issue of [Wendt’s] negligence
and his causal contribution to the accident squarely within the realm of contested
controversy.” Yet, Wendt does not identify specific testimony or evidence to support these
assertions.
We turn first to the two witnesses referred to by Wendt, N.B. and E.R. While N.B.
acknowledged initially telling an officer that T.K.’s Camaro was “in the far right lane,” (as
opposed to the shou lder) she clarified that she was not able to see the Camaro while she
was driving. N.B. added that she did not know what Wendt had run over until she pulled
over and saw that it was the Camaro, and only observed that it was in the far right lane
because “that’s where the [Camaro] was when it was smashed because it still was in the
far right lane at that moment.” In short, N.B. did not tes tify that the Camaro was in the
lane of travel when Wendt crashed into it.

11
Similarly, E.R. testified in response to the question: “do you know which lane of
travel the collision took place in?” with the answer: “I assume it was the far right lane, but
I’m not sure.” By her own acknowledgment, she did not observe where the accident
occurred.
The uncertainty of this general testimony sta nds in stark contrast with that of the
accident reconstructionist. This witness unequivocally testified that the collision occurred
on the shoulder of the road, and that there wa s no evidence that the Camaro was sticking
out into the lane of travel. It is theref ore unclear what “reconstruction evidence” Wendt
refers to when claiming that “reconstructi on evidence placed the issue of [Wendt’s]
negligence and his causal contribution to th e accident squarely within the realm of
contested controversy.”4
Finally, in analyzing whethe r prosecutorial misconduct si gnificantly impacted the
jury’s verdict, we turn to Wendt’s own words. In his statements to the responding officers
Wendt admitted that “he may have drifted a little bit.” Wendt also admitted that he took
his eyes off the road, and “when he looked forward, he noticed he wa s on the shoulder.”

4 It is possible Wendt is relying on the testimony of Trooper Velazquez, who was
questioned on cross-examination regarding a diagram he made of the accident in his crash
report. But Trooper Velazque z did not present reconstruc tion evidence. Rather, he
testified in his capacity as the first officer responding to the accident. Trooper Velazquez
acknowledged that based upon his drawing, T.K .’s Camaro was “slightly in the lane of
travel,” and that “the part of [T.K.’s Camaro] that’s slightly in the lane of travel, that’s
where Mr. Wendt’s vehicle came into contac t with it.” Howeve r, Trooper Velazquez
repeatedly stated that the drawing was not to scale, and testified that it was “very much a
rough sketch.” Trooper Velazquez further testified that he did not take any measurements
at the scene, and did not make “any efforts to find the point of impact between those two
vehicles.” Thus, Trooper Velazquez’s rough sketch contained in his initial accident report
did not constitute “reconstruction evidence” of what occurred at the point of impact.

12
Thus, by his own admissions, Wendt negligently operated his truck by crossing the lane of
travel onto the shoulder, where he collided with the parked Camaro, killing T.K.
In sum, the evidence pres ented at trial indicated that Wendt was traveling
62-69 miles per hour just before the collis ion, never applied hi s brakes, and never
attempted either “an avoidance or panic reac tion-type situation.” The witnesses to the
accident similarly testified that Wendt never braked or swerved, but instead “literally drove
over the top of the [Camaro,]” causing his truck to fly into the air and roll over.
While this is not a challenge to the suffici ency of the evidence, there is no basis in
the record upon which one coul d say that the jury’s guilty verdict was attributable to
anything other than the evidence presented at trial. And the sole disputed issue at trial was
whether Wendt’s negligent operation of his tr uck caused T.K.’s death. Overwhelming
evidence, including Wendt’s own admissions, established th at Wendt was negligently
driving on the shoulder of the highway when he crashed into T.K., killing him. Therefore,
even if Wendt can establish plain error—as the state essentially concedes on three points—
the state has met its burden of establishing that the verdict was not attributable to any
instance of prosecutorial misconduct.
II. The district court’s jury instruction did not prejudice Wendt.
Wendt asserts that the district court erroneously instructed the jury on the order and
manner in which to consider the two offenses. Wendt did not object to the instructions he
asserts were given in error. When there is no objection to jury instructions at trial, we have
discretion to consider a claim of error on a ppeal if there was “plain error affecting
substantial rights or an error of fundame ntal law in the jury instructions.”

13
State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted); s ee
State v. Milton, 821 N.W.2d 789, 808–09 (Minn. 2012). Under a plain-error standard, the
defendant generally bears the burden of showin g that the error affect ed their substantial
rights. State v. Reed, 737 N.W.2d 572, 583–84 (Minn. 2007).
With this standard in mind, we turn to the instructions regarding the jury’s
consideration of the charged offense of criminal vehicular homicide and the lesser-included
offense of fourth-degree DWI. The district court instructed the jury as follows:
If you find beyond a reasonable doubt that the defendant has
committed each element of the lesser crime, but you have a
reasonable doubt about any different element of the greater
crime, the defendant is gu ilty of the lesser crime. If you find
the defendant guilty of the greater crime, you don’t even
consider the lesser crime.

(Emphasis added.) After explaining the verd ict forms to the jurors, the district court
instructed them that “[i]f you find Mr. Wendt not guilty of criminal vehicular homicide,
then you will consider the lesser crime.”
5
The if-then structure of this sentence err oneously provided the jury with a specific
order in which to consider the offenses. See State v. Prtine , 784 N.W.2d 303, 317
(Minn. 2010) (stating that the district court’s response to a jury question that they should
proceed “down the line” until a guilty verdict is reached an d then not consider any
remaining charges constituted plain error, but did not affect Prtine’s substantial rights); see
also State v. Woodard, 942 N.W.2d 137, 144 (Minn. 2020 ) (stating that a district court

5 Earlier, the district court did however instru ct the jury that “[t]he order in which the
instruction is given is of no significance. You are free to consider the issues in any order
that you wish.”

14
committed plain error when it inst ructed the jury to “only c onsider murder in the second
degree if there’s a not guilty finding on murder in the first degree”). Because the district
court instructed the ju ry to consider the offenses in a specific order, and to reach the
lesser-included offense only if they found Wendt not guilty of criminal vehicular homicide,
the district court plainly erred in its instruction to the jury.
But our inquiry does not end with identifying an error. Rather, we turn to determine
whether Wendt met his burden of establishing that the error affected his substantial rights.
The erroneous instruction affected Wendt’s s ubstantial rights if “there is a reasonable
likelihood that giving the in struction in question had a significant effect on the jury
verdict.” Woodard, 942 N.W.2d at 144 (quotations om itted). “A jury instruction that
erroneously directs the jury to consider th e more serious charge first does not have a
significant effect on the verdict if no rational jury would have acquitted the defendant on
the more serious charge based on the evidence at trial.” Id. at 144–45 (emphasis added).
During oral argument, the st ate and Wendt agreed that this “no rational jury”
analysis replicates the prejudice standard used in our plain-error review of the
unobjected-to instances of prosecutorial misconduct. And, as discussed above, Wendt does
not identify evidence presented at trial that would have allowed the jury to determine that
T.K.’s death was caused by anything other th an Wendt’s negligent driving. The closing
arguments made by the state and Wendt focu sed entirely on whether T.K.’s death was
caused by Wendt’s negligent driving, or whether T.K. hi mself was negligent in allegedly

15
parking his Camaro within the lane of travel. 6 Therefore, the only determination left for
the jury’s consideration was whether wh ile driving with a controlled substance—
methamphetamine—in his body, Wendt negligently caused the death of T.K. As discussed
in detail above, there is no basis in the evidence presented at trial for a rational jury to have
concluded otherwise. Therefore, the err oneous instructions did not affect Wendt’s
substantial rights.
To attempt to persuade us otherwise, Wendt argues that the mere decision by the
district court to give the lesser-included-offe nse instruction means that a rational basis to
acquit is implicated by definition. See State v. Dahlin, 695 N.W.2d 588, 596 (Minn. 2005)
(“In determining whether a lesser-included offense instruction should be given, trial courts
must consider only whether a rational basis ex ists in the evidence to acquit of the greater
charge and convict of the lesse r-without considering the stre ngth of the evidence or the
credibility of the witnesses.”). While Wendt is correct from a purely logical perspective—
that the mere decision to give a lesser-included-offense instruction means by implication a
rational basis existed to acquit on the charge d offense—to adopt his position would be to
invalidate the analytic framework set forth in Woodard and preceding caselaw. That
framework is especially important here, where the lesser-included-offense was not

6 As pointed out by the postconviction court, Wendt’s counsel appe ared to concede the
elements of fourth-degree DWI. As provided to th e jury, the elements of fourth-degree
DWI were: (1) Wendt drove; (2) with a controlled substance in his body. Consideration of
the lesser-included offense had no bearing on the charged offense, as both charges required
the jury to find that Wendt dr ove with a controlled substance in his body, which Wendt’s
counsel conceded.

16
disputed at trial, and the only issue to be determined by the jury was whether Wendt’s
negligence caused T.K.’s death.
III. The district court’s conduct did not violate Wendt’s right to due process.
Wendt next argues that the district cour t judge’s facial expressions during trial
conveyed a sense of partiality and thus violated his constitutional right to due process. A
district court judge must not preside over a trial if they are disqualified under the Code of
Judicial Conduct. Minn. R. Crim. P. 26.03, subd. 14(3). A district court judge “shall
disqualify himself or herself in any proceeding in which th e judge’s impartiality might
reasonably be questioned.” Minn. Code Jud. Conduct Rule 2.11(A).
We review de novo a judicial office r’s authority to conduct a trial. State v. Irby ,
848 N.W.2d 515, 517–18 (Minn. 2014). “A judge is disqualified for a lack of impartiality
under Rule 2.11(A) if a reasonable examiner , from the perspective of an objective
layperson with full knowledge of the facts and circumstances, would question the judge’s
impartiality.” Troxel v. State , 875 N.W.2d 302, 314 (Minn. 2016) (emphasis added)
(quotations omitted). To revi ew this question of whether a reasonable examiner would
question the judge’s impartiality, we turn fi rst to the testimony at the postconviction
hearing, and then consider the transcript of the trial as a whole. We make our assessment
presuming that the judge disc harged its duties properly. State v. Munt , 831 N.W.2d 569,
580 (Minn. 2013).
At the postconviction hear ing, Wendt’s wife, mother, mother-in-law, and trial
attorneys all testified to their observations of the district court judge’s nonverbal behavior
during trial. As the postconv iction court noted, these witne sses testified that the judge

17
made facial expressions in reaction to testimony and arguments, which they interpreted as
negative toward Wendt. For example, Wendt’s wife testified that she observed the district
court judge “shake her head no . . . letting out sighs, glaring . . . throughout several
witnesses.” And Wendt’s mother testified that the district court judge would roll her eyes
in reaction to certain testimony.
The witnesses further explained that thes e observations were brought to defense
counsel, who requested a bench conference, during which counsel raised the concerns with
the district court judge. The judge provided a curative instruction to the jury telling them
to disregard her facial expressions. All of the witnesses (with the exception of Wendt’s
wife) testified to a significant reduction in the judge’s visible reactions following the bench
conference for the remainder of the trial.
Based upon this testimony, we conclude that while a reasonable examiner might
question the judge’s impartiality for snippets of time, considering the trial as a whole, that
an examiner would not do so. Here, the district court judge (according to all but one of the
defense witnesses) changed her expressions upon notice from counsel. And she provided
a curative instruction to the jury at that time. Further, a review of the district court judge’s
rulings throughout the trial re flects that she gave the de fense the lesser-included DWI
instruction it sought. She permitted the defense to recall a state’s witness after he had been
released. And, in her final instruction to the jury, the district court judge stated: “I have
not, by these instructions nor by any rule or expression during the trial, intended to indicate
my opinion regarding the facts or the outcome of this case. If I have said or done anything

18
that would seem to indicate such an opinion, you are to disregard it.” We presume that the
jury followed these instructions. State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005).
In sum, given the district court’s conduct based upon the trial as a whole, with these
jury instructions in mind, we conclude that a reasonable examiner would not question her
impartiality.7
IV. Cumulative errors do not require reversal.
Wendt argues that even if none of his a lleged individual errors are sufficient to
entitle him to a new trial, he should receive a new trial based on their cumulative effect.
See State v. Davis, 820 N.W.2d 525, 539 (Minn. 2012) (“In a close case, we may be inclined
to grant a defendant a new trial based on th e cumulative effect of errors that do not
individually require a new trial . . . .”).
We look to “the egregiousness of the erro rs and the strength of the [s]tate’s case”
when weighing a claim of cumulative error. State v. Williams , 908 N.W.2d 362, 366
(Minn. 2018). “Where the evidence of guilt is strong, and the case is not close factual[ly],
[appellate courts] are less inclined to order a new trial for cumulative error.” Id. (quotation
omitted). Here, as fully discussed above, th e evidence of Wendt’ s guilt was strong, and
the case was not factually close. Therefore, Wendt is not entitled to a new trial on the basis
of cumulative error.

7 Because in our de novo revi ew we have determined that the district court judge’s
impartiality might not reasonabl y be questioned, we do not reach the issue, raised by
Wendt, of whether structural-error analysis applies.

19
V. The district court lacked authority to impose a five-year conditional-release
period.

Finally, Wendt argues that the district court erred by imposing a five-year
conditional-release period. The state concedes , and we agree, that the district court
imposed a conditional-release period not supported by law. See Minn. Stat. § 609.095(a)
(2016) (stating that the legisl ature “has the exclusive auth ority to define crimes and
offenses and the range of the sentences or pun ishments for their violation”). The statute
allowing the possibility of a conditional-rele ase period applies to felony DWI. Minn.
Stat. §169A.276(d) (2016). However, th ere is no statute that authorizes a
conditional-release period for criminal vehicular homicide. Therefore, we reverse Wendt’s
sentence and remand the matter for resentencing.
Affirmed in part, reversed in part, and remanded.