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This opinion will be unpublished and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
A19-1046

State of Minnesota,
Respondent,

vs.

Cheryl Oby Albert,
Appellant.

Filed May 11, 2020
Affirmed
Ross, Judge

Benton County District Court
File No. 05-CR-17-1255

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Pr esiding Judge; Segal, Chief Judge; Ross,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A man was found in his apartment dead from a gunshot wound, and a police
investigation led the state to accuse an acq uaintance, Cheryl Albert, of killing him and

2
stealing from his home. A jury found Albert guilty of second-degree murder after hearing
among other things that she was sexually involved with the man, that she was with him the
night before he was found dead, that she told others that she “took somebody’s breath” and
feared going to prison, and that she fled the state. Albert challenges her conviction, arguing
that we must reverse and remand because the district court structurally erred by addressing
a jury question without her attorneys present and erred by failing to clarify a separate jury
question about the victim’s cause of death. We affirm because the district court’s error in
addressing a jury question without Albert’s counsel present was harmless rather than
structural and because the district court did not abuse its discretion by redirecting the jury
to its original instructions.
FACTS
A woman found her friend shot to death in his St. Cloud apartm ent in June 2015.
Police investigated the killing of the man, whom we will call John Victim, and concluded
that Cheryl Albert had shot and killed Vi ctim while she committe d a felony theft.
The state charged Albert w ith two counts of second-deg ree murder and one count
of third-degree murder. See Minn. Stat. §§ 609.19, subds . 1–2, .195 (2 014). The case
proceeded to a jury tr ial in 2019. This app eal raises questions about alleged irregularities
in the trial.
The State’s Case-in-Chief
The state presented testimony from Victim ’s friends and family, investigating
officers, forensic experts, and Albert’s as sociates. Because the issues on appeal focus

3
primarily on alleged errors occurring during jury deliberations, we merely summarize the
state’s evidence as follows.
In June 2015, Victim was living in a St. Cloud apartment and working as the
co-owner of a St. Cloud grocery store. He told others that he was involved in a relationship
with a woman nicknamed “Nigerian Princess,” “Naija Princess,” or “Princess,” all
referring to Albert. Victim told a friend that he and the woman liked to watch the film Fifty
Shades of Grey together. On the evening of June 8, 2015, Victim, his roommate, and the
other grocery-store co-owner were at Victim’s apartment. The roommate saw that Victim’s
phone was ringing, identifying “Nigerian Prince ss” as the caller. Victim ignored Albert’s
call along with two to three more, but he answered her call sometime after 10:00 p.m. The
roommate overheard part of the conversation and understood it to mean that Albert was
coming to Victim’s apartment. The roommate and co-owner left the apartment so Victim
and Albert could be alone.
Albert’s cell-phone records indicated that she placed many calls to Victim between
4:30 p.m. and midnight and that, while she was making plans to meet with Victim, she was
also communicating with a man named Lonnie Austin. She sent Aus tin a text message
saying, “Rocking the coin to sleep football st yle.” According to a police investigator, the
term “coin” refers to a targeted person, or someone from whom money or valuables could
be extracted, and the term “football” refers to the drug Xanax. A few minutes later Albert
sent Austin a text message from a different phone number, asking Austin if he wanted “to
meet my brother when I get back?” The text referred to her brother, Anene Okolie.

4
Victim took a phone call from a friend shortly after midnight and said that he was
busy. Beginning at 12:47 a.m., Albert began making a series of 19 phone calls, some to
Austin and some to Okolie.
A friend of Victim’s went to Victim’s apartment at 10:00 a.m. and found the
ground-level sliding door open. She entered and saw that the television was on, displaying
the menu screen for the film Fifty Shades of Grey. Then she found Victim naked and dead,
lying on the ground in his bedroom doorway with a zip tie on one wrist. The friend
telephoned the co-owner of Victim’s busine ss, who came to the apartment and called
police.
Police found a bullet casing and blood near Victim’s body. An autopsy and forensic
examination revealed that a single gunshot in the chest kille d Victim and that Xanax was
in his system. Investigators found two partly full beverage glasses on Victim’s bedroom
nightstand, one containing a cigarette butt. Al bert’s fingerprints were on the glasses, as
well as DNA material that excluded all but a class of 0.000008 per cent of the world’s
population. Albert is in that class. Albert ’s DNA was on the cigarette butt. Albert’s DNA
was not on the shell casing.
Valuables were missing from Victim’s apartment. These included Victim’s laptop
computer, cell phone, and a jewe lry box that Victim used to store many wristwatches.
Victim’s cell-phone carrier traced his cell phone to a general area along Highway 23, where
police searched and found some of Victim’s belongings, including the jewelry box. The
box contained DNA material that excluded a ll but a class of 0.000008 percent of the
world’s population. Albert is in that class.

5
Two days after the killing, Albert telephoned her close friend and told her that she
“took somebody’s breath.” Albert told anot her woman that she “got daddy a bunch of
watches” but “would be goin g to prison for life and [wou ld] not see her child.” Police
officers, looking for Austin as part of an unrelated investigation, stopped a truck associated
with Austin and found several of Victim’s missing watches, documents referencing Albert,
and the cell phone Albert used to call Austin on June 8 and that also contained Victim’s
contact information.
Also within days after the killing, Albert arranged to travel to Louisville, Kentucky.
She contacted her friend S.J., wh o lived in Kentucky, to obtain her address. S.J. claimed
to the jury that she could not remember the details of her involvement in the investigation
of Victim’s death. The prosecu tor showed S.J. a transcript of her statement to Louisville
police, and S.J. repeatedly claimed she coul d not recall her statements to police. The
prosecutor asked S.J. to testify about her statement to Louisville police, prying line by line,
to which S.J. answered each time acknowledgi ng only, “[T]hat’s what [the transcript]
says.” The jury learned the substance of S. J.’s prior statements: Albert had called her
crying, said she stole a box of watches from somebody, and admitted that either “one [of]
her shooters came in” or “she shot him twice.” At the end of the state’s direct examination
of S.J., because S.J. had refused to restate at trial the substance of her prior statements, the
district court gave the following cautionary instruction to the jury:
The evidence that has just been received concerning a
statement that [S.J.] is allege d to have made sometime before
testifying here today is admitte d only for the light that it may
cast on the truth of [S.J.’s] testimony at this trial. You must not

6
consider the statement as eviden ce of the facts referred to in
the statement.
On July 6, 2015, Kentucky police approach ed Albert to arrest her on an unrelated
outstanding warrant. Albert spontaneously blurted that she “didn’t kill anybody.” She also
expressed supposed shock at learning from Kent ucky police that Vic tim had been killed,
but her cell-phone records esta blished that she had previous ly been conducting internet
searches about the killing, including a KS TP-TV story about Victim, “Community
Remembers St. Cloud Store Owner Found Fa tally Shot.” During police interrogation,
Albert told officers that on June 8 she had been watching Fifty Shades of Grey with Victim
when he received a phone call, which prompted Victim to end her visit and drop her off in
“the Cities.” She claimed later that Victim had dropped her off at a Greyhound bus stop.
Jury Instructions
The district court instructed the jury on the elements of second-degree murder with
intent to kill, second-degree murder wh ile committing felony theft (and corresponding
instructions regarding felony theft), and, as a lesser-included offense, third-degree murder.
Relevant in this appeal were the district cour t’s instructions on causation, which as to all
three crimes advised the jury that the causation element required the state to prove beyond
a reasonable doubt “that the defendant caused the death of [Victim].” The district court
also instructed the jury generally, “Evidenc e of any prior inconsistent statement should
only be considered to test the believability and weight of the witness’s testimony.”

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First Jury Question and Albert’s Absentee Attorneys
The jury began deliberating at 4:12 p.m. on the last day of trial, and the district court
instructed Albert’s attorneys, “[I]f there are any questions wh ile the jury is deliberating,
we will contact you. If you leave the building, please leave a phone number . . . so that we
can call you and have you come back.” The jury soon posed a question, the district court
telephoned counsel, and defense counsel failed to answer their phones. At 5:17 p.m.,
hearing nothing from Albert’s counsel, the district court spoke with Albert and the
prosecutor directly to address the jury question.
Ms. Albert, we tried to get ahold of your attorneys, and
they didn’t return the call. I don’t know if they’re out eating or
where they are, but they haven’ t come back. So rather than
keep the jury waiting, I think I’m just going to have to proceed
so that we can give them a response.

The question that the jury [h as] asked is, “Do we need
to disregard [Witness S.J.’s] testimony or just a specific
statement?”

And I can only interpret this to be a reference to [the
prosecutor’s] cross-examination in which he elicited or offered
evidence of a prior statement th at [S.J.] made to police in
which, as I recall at the time, sh e stated that she did not recall
making -- did not recall whether she said it or not.
The prosecutor stated his understanding that the district court had already explained
that S.J.’s statements were not substan tive evidence but inst ead constituted only
impeachment evidence under Mi nnesota Rule of Evidence 613. The district court
confirmed the prosecutor’s understanding, and, because it previously advised the jury not
to consider S.J.’s prior statements “for any s ubstantive effect,” it indicated its intent to

8
convey in writing a substantially similar instruction to the jury. The district court and Albert
had the following exchange:
THE COURT: And, Ms. Albert, again, I’m going to -- this is
all going to be in writing, so your attorneys
can review it. But I -- I don’t think we can wait
any longer for their reappearance.

ALBERT: Excuse me, Your Honor. Are you saying that
what she said on the stand is not going to
be -- basically, the jury should disregard it, is
what you’re saying?
THE COURT: No, ma’am. What I’m instructing the jury is
that they can consider what she testified to on
the stand, but they should not consider what
she allegedly told police at some other date as
substantive evidence.

ALBERT: So, in other words, they should consider what
she said and disregard anything prior to what
she said on the stand?
THE COURT: Essentially, yes.

The district court gave the jury its written answer:
In response to your questi on at approximately 5:00 p.m.,
6-2-19, the evidence that was received concerning a statement
that [S.J.] is alleged to have made sometime before testifying
in court was admitted only for the light it may cast on the truth
of her testimony in court. Yo u must not consider the prior
statement of [S.J.] as evidence of the facts refe rred to in the
statement.
Later that evening, after the jury returned to its delibera ting and Albert’s attorneys had
reappeared, the district court asked Albert’s attorneys whether they had any objection to
its written instruction. Counsel said that they had seen the jury’s question and the court’s
answer and had no objection.

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Second Jury Question on Causation
At about 6:00 p.m., the district court addr essed a second jury question: “Does Ms.
Albert have to be the shoote r to cause [Victim’s] death or not to be convicted of second
degree?” The district court indicated it would refer the jury back to its original instructions,
which the jury had in written form. Albert’s counsel asked the district court to answer
simply, “yes,” because “the death is caused by shooting.” He argued, “The cause of death
was by shooting, and the confusion I think th ey’re having is that there could be any
other -- if [Albert] could have caused his de ath without the shooting.” The district court
concluded, “I think going farther would be me substituting my factual impression for them.
I think that’s a factual determination that they need to make given the law.”
The district court gave the jury a writte n instruction referring to its original
instructions. The jury found Albert guilty of second-degree intentional murder and
second-degree murder while committing a felony theft. The district court adjudicated one
conviction for second-degree intentional murder and sentenced Albert to 306 months in
prison.
Albert appeals from her conviction.
D E C I S I O N
Albert asks us to grant her a new trial, ar guing first that the district court committed
a structural error by addressing a jury question in her attorneys’ absence, and second that
the district court abused its discretion by failing to offer a clarifying instruction on
causation. For the following reas ons, we reject Albert’s asser tion that she is entitled to a
new trial.

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I
Albert is correct that the district court violated her constituti onal right to counsel
when it addressed a jury questi on without her attorneys present. But she is incorrect that
this was a structural error necessitating a ne w trial regardless of whether the error caused
her no prejudice. There being no resulting prejudice, the error was harmless.
The district court violated Albert’s right to counsel.
Albert argues that the district court viol ated her right to counsel when it addressed
a jury question without her attorneys pr esent. The United States and Minnesota
Constitutions afford criminal defendants the ri ght to the assistance of defense counsel.
U.S. Const. amend. VI; Minn. Const. art. I, § 6. The purpose of the ri ght to counsel is to
protect a layperson lacking the skill and knowledge necessary to defend herself.
Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991). The right to trial
counsel extends into every critical stage of the proceeding, which are those trial-like
confrontations where an attorney could assist the defendant with legal problems or in
“meeting [her] adversary.” State v. Maddox , 825 N.W.2d 140, 144 (Minn. App. 2013)
(quoting Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16, 128 S. Ct. 2578, 2591 n.16
(2008)). The district court’s communications with a jury are critical stages of a trial.
State v. Nissalke, 801 N.W.2d 82, 98 (Minn. 2011). We review de novo whether the district
court violated a defendant’s right to counsel. State v. Slette , 585 N.W.2d 407, 409
(Minn. App. 1998).
Our de novo review leads us to conclude that the district court impermissibly
discussed and responded to a jury question without Albert ’s attorneys present. The

11
discussion about and response to the jury’s question constituted a critical stage in Albert’s
trial because she was asked to address a legal problem that could have been addressed by
her attorneys. See Maddox , 825 N.W.2d at 143; Nissalke, 801 N.W.2d at 98. We are
unconvinced by the state’s asse rtion that, rather than err, the district court “reasonably
sought to promptly answer th e jury’s question” after Albert’s attorneys failed to answer
their phones. The state fails to develop the assertion into any actual argument or to cite any
authority supporting its implicit assertion that the district court may, without violating a
defendant’s Sixth Amendment right to counsel, proceed at a critical stage in the absence of
counsel merely because it shoul d produce a timely response or because defense counsel
were solely responsible for its absence. The assertion lacks any apparent merit. Because
we conclude that the district court violated Albert’s right to counsel by addressing a jury
question without her attorneys pr esent, we turn to whether th e error was structural or is
instead subject to harmless-error review.
The error was not structural.
Albert argues that deprivin g her of counsel constituted a structural error requiring
automatic reversal and remand. We generally review constitutional errors for harmless
error, considering the error in the context of its effe ct on the jury’s verdict. See State v.
Sanders, 775 N.W.2d 883, 887 (Minn. 2009). But certain types of “structural” errors defy
harmless-error analysis because they consist of a defect in the trial mechanism itself.
State v. Dalbec , 800 N.W.2d 624, 627 (Minn. 2011) (quoting Arizona v. Fulminante ,
499 U.S. 279, 309–10, 111 S. Ct. 1246, 1265 (1991)). Structural errors do not require proof
of prejudice. State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997). We must determine

12
the nature of the error, a legal issue that we decide de novo. See Dalbec, 800 N.W.2d at
627 (addressing a question on an undisputed factual record).
Albert reasons that because she was denied counsel once during a critical stage of
her trial, the error was automatically structural. We have said that “[t]he denial of the right
to counsel is a structural error.” Maddox, 825 N.W.2d at 147 (quotation omitted). The state
seeks to qualify the denial of counsel as structural only when there is a “complete denial of
counsel,” see Neder v. United States , 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999), and it
therefore argues that there was no structural error given Albert’s attorneys’ short absence.
A nuance in the caselaw concerning when and why certain errors are structural leads us to
reject Albert’s position as overly formulaic.
To explain why the circumstances here do not amount to structural error, we focus
first on the nature of structural error. Struct ural errors necessarily implicate fundamental
fairness in the proceeding. They are those affecting the framework in which the trial
proceeds and that call the trial’s reliability and fairness into question. Dalbec, 800 N.W.2d
at 627. The Supreme Court has characterized e rrors as structural when they impair a
procedure as a whole. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 263–64, 106 S. Ct. 617,
623 (1986) (holding that “discrimination in the grand jury underm ines the structural
integrity of the criminal tribunal itself”); Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437,
445 (1927) (holding that the district cour t judge’s interest in the action required
disqualification and reversal).
Regarding the right to counsel specifica lly, the Court has described a series of
counsel-related structural errors “that are so likely to prejudice the accused that the cost of

13
litigating their effect in a particular case is unjustified.” United States v. Cronic, 466 U.S.
648, 658, 104 S. Ct. 2039, 2046 (198 4). The Court identified the “complete denial of
counsel” at a critical stage as the “[m]os t obvious” counsel-related structural error. Id. at
659, 104 S. Ct. at 2047. This sort of broad denial of the ri ght to counsel is the type of
structural defect that needs no proof of prejudice.
This concern for fundamental fairness in proceedings explains why courts classify
certain errors as structural without considering actual prejudice. In Gideon v. Wainwright,
for instance, the Court premised its recognition of the right to court-appointed counsel in
part by recognizing that the right to counsel was fundamental and essential to the fairness
of trials. 372 U.S. 335, 344, 83 S. Ct. 792, 796 (1963). In Cronic, the Supreme Court
elaborated as to why the complete denial of counsel was structural, explaining, “The
presumption that counsel’s assistance is essen tial requires us to conclude that a trial is
unfair if the accused is denied counsel at a cr itical stage of [the] trial.” 466 U.S. at 659,
104 S. Ct. at 2047. In Maddox, we extended the right to counsel to restitution hearings and
remanded because the record did not reveal whether Maddox waived his right to counsel,
implying that, had he been denied his ri ght, the error would have been structural.
825 N.W.2d at 146–47.
By contrast, the troublesome trial moment in this case does not stir even a theoretical
concern over fundamental fairness. Albert’s attorneys had already advocated for and twice
agreed to the substance of the instruction that the district court repeated to the jurors after
they posed their question. And Albert’s co unsel then endorsed the district court’s
instruction as the appropriat e response, establishing that their absence was certainly

14
inconsequential to the district court’s deci sion. Specifically, Albert’s attorneys filed
proposed jury instructions requesting that the district court a dvise the jury, when
appropriate, as follows: “The evidence that has just been received concerning a statement
that [the witness] is alleged to have made sometime before testifying here is admitted only
for the light it may cast on the truth of [the witness]’s testimony at this trial. You must not
consider the statement as evidence of the fact s referred to in the st atement.” The district
court followed the prosecutor’s examination of S.J. with a jury instruction not to consider
her prior statements “as evidence of the facts referred to in th e statement[s].” It gave this
instruction with Albert’s counsel present without objection. And again without objection,
during its final instructions to the jury the district court explained, “Evidence of any prior
inconsistent statement should only be considered to test the believability and weight of the
witness’s testimony.” These circumstances do not resemble any which the Supreme Court,
or any other court to our knowledge, has designated a structural error.
Consistent with our view that this case is dissimilar to any of the customary
structural-error circumstances is our unde rstanding of whether these circumstances
amounted to a “complete” denial of counsel during a critical trial stage. Here we are
persuaded by the reasoning of Sweeney v. United States, where the Eighth Circuit Court of
Appeals held that an attorney’s three-minute absence during the state’s direct examination
of a witness was not a “complete” denial of counsel amounting to a structural error.
766 F.3d 857, 861 (8th Cir. 2014). This conc lusion informs us that deciding whether a
complete denial of counsel has occurred depe nds in part on whethe r the defense counsel
was absent for the duration of the critica l stage. And the situation here is like Sweeney in

15
that the fundamental interest at stake was eventually vindica ted; Sweeney’s attorney was
able to conduct extensive cross-exam ination despite his short absence, id. at 861, and
Albert’s attorneys were able to review the jury’s question and raise objections. By
immediately inquiring whether or not defense counsel concurred in the district court’s
answer once they reappeared in court, the dist rict court demonstrated that its answer was
only preliminary and that its final decision would depend on coun sels’ approval. This
effectively held the stage open . The episode eviden ced the district court’s willingness to
revisit the issue and, if necessary, tailor its instruction after hearing from Albert’s counsel.
The record compels us to infer that the district court di d not, by answering the jury, close
Albert’s opportunity to address the answer with the assistance of her counsel.
Albert would have us instead view the stage restrictively, beginning with the jury’s
question and ending with the district court’s response. We think this overlooks what
happened here, specifically th e district court’s holding th e issue open until Albert’s
attorneys considered and responded to it. It told Albert its in struction was “going to be in
writing, so [her] attorneys [could] review it.” It told her that she could “talk to [her]
attorneys about this.” And when her attorneys reappeared, the district court asked whether
her attorneys had reviewed the question and answer, and it then inquired whether they had
any objection. It seems to us that the stage ended only after Albert’s counsel confirmed that
they had reviewed the question and instruction and responded on Albert’s behalf.
We add that the error here is entirely unlike structural errors whose consequences
are often “unquantifiable and indeterminate.” See United States v. Gonzalez-Lopez ,
548 U.S. 140, 150, 126 S. Ct. 2557, 2564–65 (2006) (quotation omitted) (concluding that

16
harmless-error review would have been specu lative where the deprivation of counsel of
choice affected trial decisions and negotiati ons). This is not a situation in which a
harmless-error analysis would require a “speculative inquiry into what might have occurred
in an alternate universe.” See id. We know how Albert’s attorneys would have responded
to the district court’s proposed instruction, be cause in fact they resp onded to the district
court’s instruction: “We don’t have any objection.”
We hold that the error was not struct ural because it did not implicate the
fundamental fairness of the trial mechanism, because the district court held the issue open
for Albert’s attorneys’ review and consider ation, and because the error necessitates no
speculative inquiry on review. Having concluded the error was not structural, we consider
whether it constitutes a mere harmless error or instead requires reversal and remand.
The error was harmless beyond a reasonable doubt.
We have no difficulty discerning whethe r the error prejudiced Albert. It did not.
“An error is harmless beyond a reasonable d oubt if the jury’s verdict was surely
unattributable to the error.” Sanders, 775 N.W.2d at 887. The district court properly
instructed the jury to consider S.J.’s prior statements for their impeachment value and not
for their actual truth, an in struction complying with Minnesota Rule of Evidence 613.
Albert received the benefit of an instruction her attorneys sought, received, and impliedly
(and later actually) approved. Where the instruction was bot h proper and favorable to
Albert, the jury’s verdict was surely unattributable to the district court’s error.

17
II
Albert also challenges the district court’s response to the jury’s second
mid-deliberation question, “Does Ms. Albert ha ve to be the shooter to cause [Victim’s]
death or not to be convicted of second degree?” She maintains that the district court erred
by refusing to answer “yes,” and by instead refe rring the jury to its original instructions.
The district court has broad discretion in selec ting its jury instructions, and we review its
instructions for an abuse of discretion. State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016).
Jury instructions may not misstate the law, and they must provide a fair and adequate
explanation of the law of the case. Id. The district court’s failure to give a clarifying
instruction despite clear jury confusion may sometimes constitute error. See, e.g., State v.
Shannon, 514 N.W.2d 790, 793 (Minn. 1994) (holdi ng that the district court’s failure to
correct the jury’s confusion over a mislea ding argument from the prosecutor was error).
Albert frames the error here as one of leaving the jury confused.
Albert argues specifically that the ju ry’s question demonstrated the jurors’
fundamental confusion about “whether Ms. Albert had to personally have caused
[Victim’s] death in order to be guilty.” (Emphasis added.) A di strict court “may, in [its]
discretion, give additional instructions in response to a jury’s question on any point of law.”
State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986). The jury’s question implicates either
of two related but separate issues. The char ged offenses and the lesser-included offense
each required proof beyond a reasonable doubt that Albert “caused” Victim’s death. See
Minn. Stat. §§ 609.19, subds. 1–2, .195. The jury’s question is ambiguous. The question of
whether “Albert ha[d] to be th e shooter to cause [Victim’s] death” might have concerned

18
the cause-in-fact of Victim’s death, presumably a gunshot wound, while it also might have
concerned the shooter’s identity , allegedly Albert. Albert’s construction of the question
overlooks the plausibility that the jury was asking the distri ct court to link two factual
issues: Albert’s identity as the shooter and th e shooting as the cause-in-fact of Victim’s
death.
Albert’s narrow reading highlights our defe rential abuse-of-discretion standard of
review, and it overlooks the fact that we review jury instructions “as a whole to determine
whether they fairly and ad equately explain the law.” Huber, 877 N.W.2d at 522. The
original instructions adequately explain the law, and Albert is wrong to claim that the jury
“did not request instruction on a factual matter.” If the district cour t had answered solely
“yes” to the jury’s question, as Albert urged it to do, the district court would have been
giving a compound instruction. The affirm ative answer, without more language, would
have properly clarified the state’s burden to prove that Albert, and not another person,
caused Victim’s death. But it also would have been instructing the jury as a matter of fact
that Victim’s cause of death was a gunshot wound. The cause-in-fact of Victim’s death was
a factual question representing an essential elem ent of the offense, and “[t]he court must
not comment on evidence.” Minn. R. Crim. P. 26.03, subd. 19(6).
In any event, Albert’s theory that th e jury fundamentally misunderstood the
instructions is implausible when we view the instructions in their entirety, as is proper. See
Huber, 877 N.W.2d at 522. The district court’s causation instruction was contextualized
by the mens rea portion of its instruction on second -degree intentiona l murder, which
provided, in part:

19
The third element of murder in the second degree is that
the defendant acted with the intent to kill [Victim]. To find the
defendant had an “intent to k ill,” you must find the defendant
acted with the purpose of causi ng death, or believed the act
would have that result.
The jury found that the state proved this el ement beyond a reasonable doubt. It therefore
determined that Albert intend ed to kill Victim either by “ act[ing]” with the purpose of
causing Victim’s death or believing her “act” would cause Victim’s death.
We reject Albert’s speculation that the jury would not have asked the question if it
believed that the prior instruc tions answered it. Albert assu mes that the jurors carefully
read, contextualized, considered, and discussed the instructions in their entirety. But both
rule and caselaw account for the reasonable po ssibility that some detail might escape the
deliberating jurors’ notice, and that referring the jurors back to their instructions might be
sufficient to resolve their question. See Minn. R. Crim. P. 26.03, subd. 20(3)(b) (allowing
the district court to reread original instructions); Murphy, 380 N.W.2d at 772 (recognizing
that the district court is allowed to “reread previous instructions”).
Because the given instructions fairly and accurately informed the jury of the state’s
burden of proving that Albert cau sed Victim’s death, it was not an abuse of discretion to
refuse to instruct the jury that Albert had to be the shooter to have caused Victim’s death.
Directing the jury to the district court’s prior instructions was proper and therefore was not
an abuse of discretion.
Affirmed.