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This opinion will be unpublished and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
A19-0272

State of Minnesota,
Respondent,

vs.

Kent David Olson,
Appellant.

Filed November 18, 2019
Affirmed
Cleary, Chief Judge

Carlton County District Court
File No. 09-CR-18-52

Keith Ellison, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Lauri A. Ketola, Carlton County Attorney, Carlton, Minnesota (for respondent)

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

Considered and decided by Florey, Pres iding Judge; Cleary, Chief Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this direct appeal, appellant challenge s the sufficiency of the evidence for his
first-degree burglary conviction. He also argues that the di strict court erred by admitting
evidence that he fled police pr ior to the burglary, and by allowing impeachment of his
testimony about his prior felonies because he misstated how many he had and thereby
“opened the door.” Because the evidence wa s sufficient, and the di strict court did not
commit reversible error, we affirm.
FACTS
On January 4, 2018, at around 4:15 p.m., officers responded to a disturbance at a
home on 10th Street in Cloquet, Minnesota. Offi cer Kyle Voltzke approached the home
and saw appellant Kent David Olson in a nearby driveway. He tried to speak with
appellant, who told him that the residents needed help. When the officer went to check on
the residents, appellant fled east on foot. Of ficer Voltzke and other officers searched for
appellant, but failed to locate him.
An elderly couple, K.K. and D.K., lived several blocks east. Sometime after 5:00
p.m., D.K. left to play cards . At around 7:30 p.m., K.K. heard sounds coming from the
basement. She investigated, and a man wearing a ski mask grabbed her arm. He took her
cellphone and, during the encounter, brandish ed a knife. After about 20 minutes, he left
on foot. D.K. came home around 10:00 p.m., and K.K. told him what happened. They did
not call police that night. It was later discovered that D.K.’s buck knife was taken.

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The following morning, on January 5, Officer Voltzke arrested appellant at a casino.
He was wearing the same clothes that the officer saw him wearing the previous day, a black
ski mask rolled up onto his he ad like a hat, a black leather jacket, blue jeans, and black
boots. The stolen cellphone and buck knife were in his possession, though the officer was
unaware of the burglary at that time.
Meanwhile, on January 5, K.K. told her daughter what had happened, and the
daughter called law enforcement. Officer Corey Schneberger took a statement from K.K.,
who described the intruder as six-foot-three and wearing jeans, black boots, and a tannish-
green coat. Officers Schneber ger and Voltzke later discu ssed the possibility that the
burglary and earlier disturbance were connected. A third officer drafted a search warrant
for appellant’s jail property, and appellant’s black ski mask, as well as the stolen cellphone
and buck knife, were seized. The state charged appellant with first-degree burglary with a
dangerous weapon.
Before trial, the state moved to impeach appellant with two prior felony convictions.
The district court granted the motion. The state also moved to present evidence that
appellant was identified by officers responding to the disturbance on 10th Street. Appellant
did not object, so long as the disturbance was not referred to as a domestic assault. The
district court granted the motion, subject to the defense’s caveat.
At trial, K.K. testified th at, on January 4, she and her husband stayed in their home
most of the afternoon, but ventured outside around 2:00 or 3:00 p.m. She testified that the
intruder was wearing a black ski mask, but she could see his eyes. She described them as
“pale,” but it was difficult for her to tell und er the bright basement lights. She observed

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appellant’s eyes in the courtroom and described them as darker in color than those of the
intruder. She described the intruder as tall, Caucasian, and wearin g beige-green, solid-
colored, “fatigue-type clothes,” black pants, and black boots.
K.K. testified that she asked the intruder why he was there, a nd he responded that
he was cold and needed a ride. He said that he had been in the basement all afternoon. She
gave him a blue jacket to wear, but told him she did not have a car. The man accused her
of lying because he saw a car in her driveway when he arrived. She told him her husband
had taken the car. The man showed her a knife, and told her not to lie and that he could
hurt her. At the time of the incident, she believed the man was in his late 20s or early 30s.
Appellant testified that he is 47 years old, just under six feet tall, and has hazel eyes.
He testified that on January 4 and 5, he was wearing a black ski mask, a hoodie, a black
leather jacket, blue jeans, and black boots. He wore a ski mask because “[i]t was 30
below.” He was not from Cloquet, and on January 4, he drove to the home on 10th Street.
His car broke down and would not start. He admitted to running from Officer Voltzke. He
testified that he hid for an hour and a half to two hours before walking back the way he had
come. He hid another hour and a half beneath a truck and then returned to the residence
on 10th Street, but was told to leave. He again hid beneath the truck for approximately one
half hour, and he then walked several blocks before encountering “Justin.”
Appellant testified that he bought the ce llphone and buck knife on the evening of
January 4 from Justin, a man he had never met. Appellant “was walking down the street”
and “saw two vehicles pulled up to each other with the hoods open,” and Justin “was trying
to start his vehicle.” Appellant testified that he asked Justin for a ride to the casino. He

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testified that he saw a knife on Justin’s dash and asked to buy it. Justin told him that he
also had a cellphone for sale , and appellant paid Justin $20 for the knife, $20 for the
cellphone, and $10 for the ride.
The jury convicted appellant, and the dist rict court sentenced him to 108 months’
imprisonment. This appeal followed.
D E C I S I O N
I. The circumstantial evidence supports the conviction.
Appellant argues that the evidence was in sufficient because the record supports a
reasonable hypothesis that someone else committed the burglary. In considering a claim
of insufficient evidence, we conduct a thorough analysis of the record to determine whether
the evidence, when viewed in the light most favorable to the conviction, was sufficient to
permit the guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume
“the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State
v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
The parties agree that a circumstantial-evidence standard of review applies. Under
that heightened standard, we first identif y the circumstances pr oved, deferring “to the
jury’s acceptance of the proof of these circumstances and rejection of evidence in the record
that conflicted with the circumst ances proved by the [s]tate.” State v. Robertson , 884
N.W.2d 864, 871 (Minn. 2016) (quotation omitted). Second, we “independently examine
the reasonableness of all inferences that mi ght be drawn from the circumstances proved,
including inferences consistent with a hypothesis other than guilt.” Id. (quotation omitted).
“In order to sustain a conviction based on circumstantial evidence, the reasonable

6
inferences that can be drawn from the circumstances proved as a whole must be consistent
with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis
except that of guilt.” Id. (quotation omitted).
Appellant was convicted of violating Minn. Stat. § 609. 582, subd. 1(b) (2016),
which imposes criminal liability if a person enters a building without consent and possesses
a dangerous weapon while inside, so long as the person entered with intent to commit a
crime or actually committed a crime while inside.
Here, the circumstances proved are: (1) appellant was not from Cloquet; (2) on
January 4, a very cold day, he arrived in a car, which broke down; (3) approximately three
hours before the crime, Officer Voltzke saw hi m in the area of the crime, fleeing east on
foot towards the site of the crime; (4) appellant was seen wearing a black ski mask rolled
up onto his head like a hat, a black leather jacket, blue jeans, and black boots; (5) law
enforcement attempted to loca te him but were unsuccessful; (6) at around 7:30 p.m., a
white man wearing a black ski mask, jeans, and black boots grabbed K.K. in her home;
(7) the intruder stole her cellphone and a buck knife; (8) he threatened her with a knife;
(9) he told her he was cold and needed a ride; (10) he told her he had been in her basement
all afternoon; (11) he left on foot just before 8:00 p.m.; and (12) appellant was arrested the
following day, and he possessed a black ski mask and the stolen cellphone and buck knife.
The circumstances proved are consistent with appellant’s guilt. It is reasonable to
infer that appellant fled law enforcement, hid in K.K. and D.K.’s basement, and later
donned his black ski mask, grabbed K.K., stole her cellphone, and threatened her with the
buck knife.

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Appellant asserts that another person committed the burglary. But mere conjecture
is insufficient. “An alternativ e theory does not justify a new trial if that theory is not
plausible or supported by the evidence.” State v. Lahue , 585 N.W.2d 785, 789 (Minn.
1998). Appellant was found with the stolen ite ms, and he testified at trial that he bought
them from Justin, but this is implausible for several reasons. It is illogical that Justin would
burglarize K.K. and D.K.’s hom e seeking warmth and transportation, and hide in the
basement all afternoon, if he had a vehicle ne arby that was repairable on the street. It is
not reasonable that appellant hi d outside in frigid weather for approximately four hours
before obtaining a ride from Justin. It is im plausible that Justin would leave the stolen
buck knife sitting on his dash, easily visible, and it is equally unlikely that Justin obtained
the stolen items from an intermediary. Appellant’s alternative theory defies logic.
Appellant points to alleged discrepancies to support his alternative theory. K.K.
testified that appellant’s eyes, as observed in the courtroom, were darker than those of the
intruder. But she also testified that it was difficult for her to see the intruder’s eyes under
the basement lights. A factfinder could have reasonably concluded that any discrepancy
was due to the lighting in the basement, the lighting in the courtroom, or a combination.
As for the intruder’s jacket, appellant was seen by Officer Voltzke, both before and
after the burglary, wearing a black leather jacket, but K.K. described the intruder as wearing
a tan-green jacket. Again, a factfinder could have rejected K.K.’s testimony regarding the
intruder’s jacket or reasonably concluded that appellant found a tan-green jacket prior to
being seen by K.K., and discarded that jacket, as well as the blue jacket given to him by
K.K., prior to his arrest at the casino.

8
Appellant points to the fact that K.K. testified the intruder was wearing black pants
and Officer Voltzke testified th at appellant was wearing jeans as another inconsistency.
But there was evidence that K. K. previously described the intruder as wearing jeans.
“When there is a conflict in the evidence, we must defer to the jury’s factual determinations
and reject evidence that is inconsistent with the verdict.” Robertson, 884 N.W.2d at 872.
Lastly, based on K.K.’s age and the circumstances under which she observed the intruder,
the jury could reasonably reject any inconsistencies regarding height and age.
The reasonable inferences drawn from the circumstances proved are consistent with
appellant’s guilt and inconsistent with any ra tional hypothesis except that of guilt. The
circumstantial evidence was sufficient.
II. The district court did not plainly err by admitting evidence that appellant fled
law enforcement prior to the burglary.

Appellant argues that the district court erred by admitting prior-bad-acts evidence,
specifically, his flight from police prior to th e burglary. The state argues that appellant
failed to raise a proper objection under Minn. R. Evid. 404(b), and therefore this court
should review under a plain-error standard. Failure to object to prior-bad-acts evidence
generally constitutes a forfeiture of the issue for purposes of appeal, unless the defendant
can show plain error. State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005).
At trial, appellant objected to eviden ce of flight because it would give “an
implication or presumption of guilt for conduct that’s not related to this case,” but appellant
failed to expressly reference character evidence or Minn. R. Evid. 404, and to support his
argument, he cited only Alberty v. United States , which involved a ju ry instruction that

9
unfairly stressed the inferences of guilt to be drawn from flight. 162 U.S. 499, 508, 16 S.
Ct. 864, 867 (1896).
The district court did not view the issue as whether to admit prior-bad-acts evidence.
The court deemed Alberty inapplicable, and relying on State v. Givens , 356 N.W.2d 58
(Minn. App. 1984), review denied (Minn. Jan. 2, 1985), concluded that the flight evidence
was admissible. After the ruling, appellant was given the opportunity to offer additional
argument, but he provided none. Because appellant failed to present a prior-bad-acts
argument, and because the distri ct court did not engage in a prior-bad-acts analysis, the
issue is subject to plain-error review. See Minn. R. Evid. 103(a)(1) (requiring an objection
to be specific, unless the ground is apparent from the context).
Under a plain-error analysis, appellant must establish (1) error, (2) that is plain, and
(3) that affects his substantial rights. State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016).
If all three of these requirements are met, we must determine “whether reversal is required
to ensure the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
omitted). “An error is plain if it is clear or obvious, which is typically established if the
error contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d
782, 787 (Minn. 2017) (quotations omitted).
There is a danger in admitting evidence of a defendant’s prior bad acts because “the
jury may convict because of those other crimes or misconduct, not because the defendant’s
guilt of the charged crime is proved.” State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).
Because a defendant has a constitutional right to a fair trial, such evidence should generally

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be excluded. Id. A prosecutor must give notice of intent to offer evidence of a defendant’s
prior crimes or bad acts. Minn. R. Evid. 404(b)(2).
The district court correctly determined th at evidence of a defendant fleeing is
admissible and probative of the defe ndant’s consciousness of guilt. Givens, 356 N.W.2d
at 63. But appellant ran prior to the charged crime, ma king the applicability of Givens
questionable. Regardless of Givens, the state argued at trial that the evidence of appellant’s
flight provided a “motivation and explanation” for appellant to break into K.K. and D.K.’s
residence and was “central to the fact pattern of this case.” On appeal, the state asserts that
the evidence was admissible as immedi ate-episode evidence . We agree. See State v.
Robinson, 699 N.W.2d 790, 799 (Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006)
(declining to reverse district court’s admissi on of statement even though reasoning was
erroneous because statement was admissible on other grounds); see also State v. Grunig,
660 N.W.2d 134, 137 (M inn. 2003) (permitting the state to raise alternative argument on
appeal when the record permitted review, there was legal support for the argument, and the
alternative ground did not expand the relief).
The general rule against admitting other-crime evidence does not preclude the state
from proving all relevant facts and circumst ances which tend to establish any of the
elements of the offense for wh ich the accused is charged, even thou gh such facts and
circumstances may prove or tend to prove that the defendant also committed other crimes.
State v. Wofford , 114 N.W.2d 267, 271 (M inn. 1962). Immediate-episode evidence is a
narrow exception to the general character-evidence rule. State v. Riddley, 776 N.W.2d 419,
425 (Minn. 2009). Such evidence “is admiss ible where two or more offenses are linked

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together in point of time or circumstances so that one cannot be fully shown without
proving the other, or where evidence of other crimes constitutes part of the res gestae.” Id.
(quotation omitted). In order for evidence to be properly admissible as immediate-episode
evidence, the supreme court has “emphasize[d] the need for a close causal and temporal
connection between the prior bad act and the charged crime.” Id. at 426.
Here, there was a close causal and tempor al connection between appellant fleeing
and the subsequent burglary. The fleeing provided motivation for, and gave context to, the
burglary. See State v. Martin, 197 N.W.2d 219, 226-27 (Minn. 1972) (holding that district
court properly admitted testimony regarding earlier robberies committed by the defendant
because the defendant’s desire to conceal the earlier robberies motivated the charged
murder). The district court’s decision to adm it evidence that appellant fled from Officer
Voltzke toward the site of the burglary was not plain error.
III. The district court abused its discretion by permitting impeachment under the
opening-the-door doctrine, but reversal is unwarranted.

During appellant’s direct examination, hi s attorney asked if he had any felony
convictions. Appellant responded, “Yes.” The attorney asked how many, and appellant
responded, “Two.” Outside the presence of the jury, the prosecutor asserted that
appellant’s testimony was inaccurate becau se he had “at least five prior felony
convictions.”1 The prosecutor asked to impeach a ppellant with his additional felony
convictions. The district court permitted the impeachment.

1 The two felonies admitted by the court were from 2003 and 2013. The state did not
originally seek to admit other prior felony convictions with older offense dates.

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Under Minn. R. Evid. 609, a district court may admit impeachment evidence that a
witness has been convicted of a felony if th e court determines that the probative value
outweighs the prejudicial effect . Appellant concedes that the district court properly
allowed impeachment with two of his prior felony convictions, but argues that the district
court abused its discretion by concluding he opened the door to additional impeachment.
The state argues that appellant failed to obj ect, and we are limited to plain-error
review. While appellant failed to make a spec ific objection under rule 609, appellant did
object as to whether the door had been opened, and we therefore review the district court’s
determination on the opening-the-door issue for an abuse of discretion. See State v. Tscheu,
758 N.W.2d 849, 861 (Minn. 2008).
Under the opening-the-door doctrine, which is based on principles of fairness and
common sense, there is no error in admitting otherwise inadmissible evidence for the state
if the defense first introd uces evidence that creates a right to respond. State v. Valtierra,
718 N.W.2d 425, 436 (Minn. 2006); see United States v. Gilmore, 553 F.3d 266, 272 (3d
Cir. 2009) (“[P]rior felony convictions more than ten years old may be used to impeach by
contradiction even if they do not satisfy [r]ule 609’s bala ncing and notice conditions.”).
The purpose of the doctrine is to ensure that one party does not gain an unfair advantage
by presenting the jury with an unrebutted, “distorted representation of reality.” Valtierra,
718 N.W.2d at 436.
The district court permitted impeachment with three additional felonies because
appellant testified that he only had two. But the prosecutor was only inte nding to offer
two, the jury was only going to hear about two, and appellant’s testimony was therefore in

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accord with the anticipated evidence and did not create an unfair advantage. See id. Under
these circumstances, the district court abused its discretion by relying on the opening-the-
door doctrine. A district cour t abuses its discretion when it illogically construes the law.
Nunn v. State, 868 N.W.2d 230, 232 (Minn. 2015); Browder v. State, 899 N.W.2d 525, 528
(Minn. App. 2017), review denied (Minn. Aug. 22, 2017).
Although the district court abused its di scretion, we see no basis for reversal.
Appellant must show prejudice. See State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016)
(stating that, if a district court abuses its discretion by admitting evidence, a reviewing
court must determine “whether there is a reasonable possibility th at the wrongfully
admitted evidence significantly affected the verdict”). Here, the additional impeachment
was brief and nonspecific. The prosecutor asked appellant whether his testimony about
having only two prior felonies was untrue, and appellant responded, “Yes.” The prosecutor
asked if appellant had “three other felony conv ictions,” and appellant responded, “Yes.”
During redirect, defense counsel was able to mitigate the damage:
DEFENSE COUNSEL: [W]hy did you say that you only had
two felony convictions?
APPELLANT: Because I was told that’s, um, all I had to
disclose today and that’s what was on the paperwork that was
given to me.
DEFENSE COUNSEL: Were you trying to be inaccurate with
that?
APPELLANT: No, not at all.

The prosecutor briefly commented on th e impeachment during closing argument,
stating that appellant “made a statement” and “he was impeached by me pointing out that
he had made an untrue statement.” But, defense counsel again mitigated the damage:

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[Appellant] testified that he had all these felonies. On [d]irect
[e]xam he did state he had two, but that was because that’s
what he was told that he had to say. That there were—they
were only talking about two. When asked if he had more, he
readily gave that information out. He wasn’t trying to hide.

In addition to the additional impeachment being brief, nonspeci fic, and mitigated
by the defense, the jury was already aware that appellant was a convicted felon. While we
recognize that appellant’s credibility was relevant, the circumstantial evidence, particularly
appellant’s connection to the area of the crime and his possession of the stolen items, was
strong. It is not reasonably likely that the additional impeachment affected the verdict.
Affirmed.