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This opinion will be unpublished and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
A19-0418

State of Minnesota,
Respondent,

vs.

Justin Arthur Barron,
Appellant.

Filed February 3, 2020
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Dakota County District Court
File No. 19HA-CR-18-1927

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

James C. Backstrom, Dakota County Attorney , Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this direct appeal from a judgment of conviction for threats of violence and two
counts of felony domestic assault, appellant Justin Arthur Barron argues that (1) the district

2
court denied him due process of law by failing to deliver sufficient oral instructions to the
jury in the final charge; and (2) the district court erred in entering convictions for two
counts of domestic assault. We affirm on the issue of the jury instructions, but reverse and
remand with instructions to vacate one of the domestic-assault convictions.
FACTS
In July 2018, the state charged appellant Justin Arthur Barron with one count of
threats of violence under Minn. Stat § 609.7 13, subd. 1 (2016), one count of domestic
assault by strangulation under Minn. Stat. § 609.2247, subd . 2 (2016), and two counts of
felony domestic assault under Minn. Stat. § 609.2242, subd. 4 (2016) (one count under the
theory that Barron intentionally caused fear of harm and one count under the theory that
Barron intentionally inflicted or attempted to inflict bodily harm). The complaint described
an incident in which Barron physically assaulted a woman he had been living with by
hitting her, dragging her on the ground, and choking her. Barr on also allegedly told the
victim that he was going to kill her, and the victim feared that she was going to die.
The case proceeded to trial. At the start of trial, the district court gave each juror a
written copy of the preliminary jury instructions and also read the instructions aloud to the
jury. The district court orally instructed the jury as to the elements of each offense. After
providing the elements of each offense, the district court inst ructed the jury that it could
not convict Barron of an offense unless it found that each element of the offense had been
proven beyond a reasonable doubt . The district court instruct ed the jury that Barron was
presumed innocent, and that the burden of proving guilt beyond a reasonable doubt was on
the state.

3
While giving closing instructions to the jury , the district court orally restated the
instructions regarding the presumption of i nnocence and the definition of proof beyond a
reasonable doubt. The district court did not orally restate the elements of the four charged
offenses. Instead, the district court told the jury to re fer to the written preliminary
instructions that the district court read aloud at the beginning of trial. The district court
reminded the jury where it could find the elements of each offense within the preliminary
instructions. Barron did not object to the district court’s final instructions. The jury found
Barron guilty of threats of viol ence and both counts of domestic assault. The jury found
Barron not guilty of domestic assault by strangulation.
The district court sentenced Barron to 39 months in prison for the threats of violence
count. The district court indicated that it would not sentence Barron on the two domestic
assault counts. The warrant of commitment shows that the district court formally convicted
Barron of all three offenses for which he was found guilty.
Barron appeals.
D E C I S I O N
Barron raises two issues on appeal: (1 ) whether the district court’s closing
instructions deprived Barron of due process of law and require a new trial; and (2) whether
the district court erred by formally convicting Barron of both domestic-assault counts. We
address each issue in turn.
I. The district court’s final instructions do not constitute reversible error.
Relying almost exclusively on State v. Peterson , 673 N.W.2d 482, 485-86
(Minn. 2004), Barron argues that the district c ourt’s oral instructions in its final charge

4
deprived him of due process of law. He maintains that the district court’s decision to omit
the elements of the charged o ffenses and omit the requirement that each element must be
proved beyond a reasonable d oubt from its final oral charge was a structural error in the
trial requiring a remand for a new trial. The st ate contends that the district court’s oral
closing instructions complied with Peterson and that, when the unobjected-to jury
instructions are reviewed for plain error, there is no basis to reverse Barron’s convictions.
A district court has “considerable latit ude” in selecting the language for its jury
instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). A
district court abuses its discretion, however, if its jury instructions “confuse, mislead, or
materially misstate the law.” State v. Taylor, 869 N.W.2d 1, 14-15 (Minn. 2015) (quotation
omitted). We review jury inst ructions “in their entirety to determine whether they fairly
and adequately explained the law of the case.” State v. Flores , 418 N.W.2d 150, 155
(Minn. 1988). We will not reverse for an err oneous omission of a jury instruction if the
error is harmless. State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004).
Ordinarily, we do not consider an allege d error in jury inst ructions unless the
instructions were objected to at trial. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).
But an appellate court may review unobje cted-to instructions for plain error. See id. ;
State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). “T o establish plain error, an appellant
must show that a district court’s ruling (1) was error, (2) that the error was plain, and
(3) that the error affected appellant’s substantial rights.” Ihle, 640 N.W.2d at 916.
And while courts are generally afforded am ple discretion in their jury instruction,
“[a] constitutional defect in a jury instruction defining reasonable doubt requires automatic

5
reversal of a conviction.” Peterson, 673 N.W.2d at 487. Reve rsal is required “in such a
case because the instructional error consists of a misdescription of the burden of proof,
which vitiates all the jury’s findings, leavin g the reviewing court only to speculate on its
own as to what a reasonable jury would have done.” Id. (quotations omitted). In Peterson,
the supreme court held that a district court’s failure to orally inst ruct the jury on the
presumption of innocence and the definition of reasonable doubt in its closing instructions
deprives the defendant of due process becaus e it “obscure[s] and d ilute[s]” the state’s
burden of proof. Id. The fact that the district court accurately delivers the instructions in
its oral preliminary instructi ons and provides the ju ry with the instruc tions in writing for
use during deliberations does not remedy the error. See id. at 486. Under Peterson, such
an error is subject to reversal regardless of whether the defendant suffered any prejudice as
a result of the instructions. Id. at 487.
The parties disagree over whether the alle ged error in this case is subject to
plain-error review or if it is an error of the magnitude described in Peterson, requiring a
new trial regardless of any prejudice claimed by Barron. We conclude that plain-error
review is appropriate.
In Peterson, the supreme court placed great emphasis on the district court’s failure
to deliver oral closing instructions on the presumption of innocence and the reasonable
doubt standard of proof. Id. at 486-87. The supreme court indicated that the district court,
“in the final charge to the jury , has an obligation to clearly in struct the jurors on exactly
what it is that they must decide.” Id. at 485; see also Minn. R. Crim. P. 26.03, subd. 19(6)
(“The court must instruct the jury on all matt ers of law necessary to render a verdict and

6
must instruct the jury that they are the exclusive judges of the facts.”). Because the
presumption of innocence is a “bedrock axiomatic and elementary principle whose
enforcement lies at the foundation of the administration of our criminal law,” and because
the reasonable-doubt standard “provides c oncrete substance for the presumption of
innocence,” the district court must orally deliver instructions on these principles in its final
charge. Peterson, 673 N.W.2d at 486-87 (quota tions omitted). Providing written
instructions on these principles to the jury, even if the instructions were delivered orally in
preliminary instructions, is not sufficient to satisfy the defendant’s right to due process. Id.
Moreover, by focusing only on instructing the jury on the elements of the offense and not
providing instructions on the burden of proof, the district court in Peterson “impermissibly
elevat[ed] some of the instructions over others.” Id. at 487. Instructions that “obscure[] or
dilute[]” the state’s burden of proof or the presumption of innocence, such as the
instructions delivered in Peterson, deprive the defendant of due process and entitle the
defendant to a new trial. Id.
We conclude that the district court’s inst ructions in this case did not obscure or
dilute the state’s burden of proof and theref ore did not deprive Barron of due process.
Unlike in Peterson, the district court here orally reiterated both the presumption of
innocence and the definition of pr oof beyond a reasonable doubt in its final charge to the
jury. And, while the district court did not deliver final oral instructions on the elements of
each charged offense, it read th e elements of each offense to the jury in its preliminary
instructions, provided the jury with written instructions that contained the elements of each
offense, and orally instructed the jury in its final charge on where the jury could find the

7
elements of each offense in the written preliminary instructions. The district court also told
the jury in its oral preliminar y instructions that in order to convict on a given charge, it
must find that each element of the offense was proved bey ond a reasonable doubt. The
district court’s instructions accurately de fined the presumption of innocence and the
proof-beyond-a-reasonable-doubt standard.
We also note that Barron’s reliance on Peterson to argue that the failure to orally
instruct the jury on each element of the offense in the final charge is a structural error, not
subject to harmless-error review, is greatly diminished by a more recent supreme court
decision—State v. Watkins, 840 N.W.2d 21 (Minn. 2013). In Watkins, the supreme court
held that a district court’s failu re to instruct the ju ry on an element of an offense entirely
was trial error subject to harmless-error an alysis. 840 N.W.2d at 26-27. We cannot
conclude that the district court’s failure to de liver oral instructions on the elements of the
charged offenses is a structural error requiring reversal if the total omission of instructions
on an element of the offense is merely a trial error.
Having determined that our ordinary standa rd of review applies, we review the
district court’s unobjected-to jury instructions for plain error. To establish plain error, the
appellant must demonstrate that (1) the distri ct court erred, (2) the error was plain, and
(3) the error “affected appellant’s substantial rights.” Ihle, 640 N.W.2d at 916. Only where
all three prongs are met will an appellate cour t consider whether reversal is necessary to
“ensure fairness and the integrity of the judicial proceedings.” Id.
Barron argues that the district court’s fina l oral instructions to the jury constituted
error because the instructions failed to identify the elements of each offense and failed to

8
specify that each element must be proved be yond a reasonable doubt. Even assuming,
without deciding, that the district court’s final charge to the jury constituted error and that
the error was plain, we conclude that Barron has not demonstrated that any such error in
the instructions affected his substantial rights.
Appellate courts presume that the jury fo llowed the district court’s instructions.
State v. Griffin , 887 N.W.2d 257, 262 (Minn. 2016). In its preliminary written and oral
instructions, the district court instructed the jury on the elements of each offense, instructed
the jury that it may only find Barron guilty if it finds that the state proved each element of
an offense beyond a reasonable doubt, and ga ve the jury accurate instructions on the
presumption of innocence and th e state’s burden of proof bey ond a reasonable doubt. In
its closing instructions, the di strict court orally reiterated the instructions regarding the
presumption of innocence and th e definition of the burden of proof beyond a reasonable
doubt. And, while the district court did not orally restate the elements of the four charged
offenses or restate that each element must be proved beyond a reasonable doubt, the district
court referred the jury back to the written preliminary instructions that included these
specific instructions. Barron offers no argument as to how the jury may have not followed
these instructions.
Moreover, the jury’s verdicts demonstrate that they understood that they were
required to consider whether each element of an offense was proved beyond a reasonable
doubt because the jury fou nd Barron guilty of domestic assault-harm under Minn.
Stat. § 609.2242, subd. 4, but found Barron not guilty of domestic assault by strangulation
under Minn. Stat. § 609.2247, subd. 2. The on ly difference in the el ements of these two

9
offenses is that for the strangulation charge, the state must prove that the assault happened
by strangulation. Compare Minn. Stat. § 609.2242, subd . 1 (2016) (defining domestic
assault as an assault against a family or household member) with Minn. Stat. § 609.2247,
subd. 2 (defining domestic assault by strangul ation as an assault against a family or
household member done by stran gulation). To reach these ve rdicts, the jury necessarily
found that the state had proved beyond a reasonable doubt that Barron assaulted the victim
by inflicting or attempting to inflict bodily ha rm, but found that the state had not proved
beyond a reasonable doubt that Barron committed the assault by strangulation.
Because Barron has not demonstrated a plai n error that affected his substantial
rights, we discern no basis to reverse all of Barron’s conv ictions and remand for a new
trial.
II. The district court erred by formally convicting Barron of two counts of
domestic assault under Minn. Stat. § 609.2242, subd. 4.

The district court formally convicted Barron of both counts of domestic assault (fear
and harm) under Minn. Stat. § 609.2242, subd. 4, and of the threats-of-violence count, but
only pronounced a sentence on the threats-of-v iolence count. The parties agree that the
district court erred by enteri ng convictions for both domestic -assault charges in violation
of Minn. Stat. § 609.04 (2016). We also conc lude that multiple convictions under Minn.
Stat. § 609.2242, subd. 4, violates Minn. Stat. § 609.04 in this case.
Section 609.04 provides that a person may be convicted “of either the crime charged
or an included offense, but not both.” Application of Minn. Stat. § 609.04 is a question of
law, which this court reviews de novo. State v. Chavarria-Cruz , 839 N.W.2d 515, 522

10
(Minn. 2013). This statute “bars multiple convictions under different sections of a criminal
statute for acts committed during a si ngle behavioral incident.” State v. Jackson ,
363 N.W.2d 758, 760 (Minn. 1985); see also State v. Smith , 299 N.W.2d 504, 506
(Minn. 1980) (noting that Minn. Stat. § 609.04 prevents “convicting a defendant twice for
the same offense (or of one offense and a necessarily included offense) on the basis of the
same act” (quotation omitted)).
Here, both counts of domestic assault alle ged conduct—intentionally causing fear
of harm and intentionally inflicting or atte mpting to inflict bodily harm—occurring over
the course of a single incident against the vi ctim. The crimes are undoubtedly part of a
single behavioral incident. See State v. Jones , 848 N.W.2d 528, 533 (Minn. 2014)
(explaining that offenses are part of a single behavioral inci dent “if the offenses occurred
at substantially the same time and place and were motivated by a single criminal
objective”). The convictions are under the same section of the same criminal statute. Thus,
entering convictions for both counts of domestic assault violates Minn. Stat. § 609.04. We
remand to the district court to vacate one of the domestic-assault convictions and correct
the warrant of commitment, leaving the jury’s finding of guilt on the vacated count in place.
On remand, the district court must follow the procedure first outlined by the supreme court
in State v. LaTourelle:
We hold that the proper procedure to be followed by the
trial court when the defendant is convicted on more than one
charge for the same act is for th e court to adjudicate formally
and impose sentence on one co unt only. Th e remaining
conviction(s) should not be formally adjudicated at this time.
If the adjudicated conviction is later vacated for a reason not
relevant to the remaining unadj udicated conviction(s), one of

11
the remaining adjudicated convic tions can then be formally
adjudicated and sentence imposed, with credit, of course, given
for the time already served on the vacated sentence.

343 N.W.2d 277, 284 (Minn. 1984).
Affirmed in part, reversed in part, and remanded.