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This opinion will be unpublished and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
A19-1161

State of Minnesota,
Respondent,

vs.

Juanel Anthony Mikulak,
Appellant.

Filed June 29, 2020
Affirmed
Reyes, Judge

Dakota County District Court
File No. 19HA-CR-18-2343

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

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appell ate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his conviction of domestic assault, arguing that (1) respondent
State of Minnesota deprived him of his right to a fair trial by withholding evidence; (2) the
district court deprived him of his right to a unanimous verdict by merging domestic assault

2
and attempted domestic assault; (3) the district c ourt plainly erred by not instructing the
jury of the statutory elements of attempted domestic assault; (4) the district court violated
his Sixth Amendment right to a jury trial by basing s entencing on a domestic assault; and
(5) the cumulative effect of the errors deprived him of his right to a fair trial. We affirm.
FACTS
On September 14, 2018, the state charged appellant Juanel Anthony Mikulak with
one count of felony domestic assault in violation of Minn. Stat. § 609.2242, subds. 1(2), 4
(2016).1 The state later amended the complaint to add two counts of stalking.
A five-day jury trial began on March 4, 2019. The victim, S.R., testified that she
knew appellant briefly as a teenager but lost touch until they reconnected at a party in June
2018. They started dating, and appellant moved in with S.R. around mid-July. Appellant
became abusive near the end of July. Most of his disputes with S.R. were fits of jealousy.
On the evening of September 11, 2018, appellant woke from their couch when S.R.
sat down. Appellant thought he saw their male, part-time roommate running up the stairs
and became jealous and angry. Appellant chased S.R., and S.R. “bit back a little” by calling
him “a b***h.” S.R. testified that this led to “[a]n eruption of fists. It was punches all up
and down my body, I was curled up in the fetal position on my left.” She repeatedly yelled
at him to stop. Appellant then reached for her chest to perform a “five -fingered death
punch,” but he stopped and sat down. She counted the punches to explain to him how he
went “too far” this time but “stopped counting at twenty-five.”

1 The state charged appellant under subdivision 1(2), which is enhanced to a felony under
subdivision 4 because of his past felony convictions.

3
An hour or so after the altercation, the couple drove down the road to see a friend
and “probably to pick up drugs.” Appellant got mad at S.R. on the drive back, told her to
get out of the car , and kept her phone . She then walked home. After not showing up to
work because she overslept , her employers called the police to conduct a welfare check.
S.R. did not report the assault to the officers who checked on her wellbeing, but she later
confessed to a friend who questioned her about the sweatshirt and pants she wore on a 95-
degree day to cover her bruises . S.R. called th e police after disclosing the assault to her
friend. The state submitted photographs taken by the police that showed bruising on S.R.’s
body.
The jury found appellant guilty of domestic assault and not guilty of the two counts
of stalking. After trial, appellant filed a “Renewed Motion for Discovery per Brady and
Request for Review per Paradee”2 discovery request after testimony from an officer
indicated that the officer made several appearances at the house after the date of the
incident. The state produced 58 pages of police records. One report stated:
[S.R.] originally told o fficers that nobody [should] be in the
residence so officers searched and located [a male]. He was
taken into custody. [S.R.] then changed her story stating she
allowed him in the residence, bringing him to the residence,
earlier in the day. She no longer wanted him at the residence
so officers transported him to the [Mall of America]. [S.R.] was
advised not to lie to the police as she tied up a significant
amount of resources for this when she actually brought the
male to the residence.

2 See Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194 , 1196-97 (1963) (establishing
that “the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).

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At the sentencing hearing, appellant brought an oral Brady motion for a new trial based on
the undisclosed police records. The state argued that appellant did not adequately provide
notice for the motion. The district court stated, “The Court will respectfully deny the
motion at this time on procedural grounds, and also on the merits. We’ll leave that to th e
Court of Appeals.” This appeal follows.
D E C I S I O N
I. The state did not deny appellant’s right to a fair trial by withholding
exculpatory evidence that the victim subsequently lied to police.

Appellant argues that the state violated his right to a fair trial under the Brady
doctrine by not disclosing police reports that were unfavorable to its case. We analyze the
procedural grounds and merits of appellant’s Brady motion in turn.
A. Procedural grounds
Appellant argues that this court should ignore his procedural errors because he could
have filed a postconviction petition, but he did not think it would be beneficial because the
district court already reject ed the motion on the merits. The state argues that the di strict
court correctly denied the motion because (1) the state had no notice; (2) appellant did not
make the motion in writing; and (3) appellant missed the required timeline for a motion for
a new trial.
“Notice of a motion for a new trial must be served within 15 days after a verdict or
finding of guilty.” Minn. R. Crim. P. 26.04, subd. 1(3). “On appeal from a judgment, the
court may review any order or ruling of the district court or any other matter, as the interests

5
of justice may require.” Minn. R. Crim. P. 28.01, subd. 11. “We review the interpretation
of procedural rules de novo.” State v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn. 2011).
The state disclosed the police reports on April 11, 2018, more than a month after
trial and 18 days before the sentencing hearing. Because appellant timely raised the motion
in relation to the state’s late disclosure of evidence , appellant could still raise the Brady
violation in a postconviction petition and appeal to this court, the district court decided the
issue, and the parties have sufficiently briefed this issue, we will review it on its merits.
B. Merits
The state is under a continuing obligation to disclose unfavorable evidence in
criminal cases. Brady, 373 U.S. at 87, 83 S. Ct. at 1196 -97. A Brady violation occurs
when (1) the evidence is favorable to the defendant; (2 ) the state withheld the evidence ,
“intentionally or otherwise ;” and (3) the evidence is material because its absence would
“have caused prejudice to the defendant .” Zornes v. State, 903 N.W.2d 411, 417 (Minn.
2017). Appellate courts review alleged Brady violations de novo. Id.
The state concedes the first two prongs but argues that the suppressed evidence is
not material and did not prejudice appellant. We view materiality in light of all of the trial
evidence. Id. “Evidence is material under Brady if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Id. at 418 (quotation omitted). Useful evidence is not enough ; rather, it
has to “undermine confidence in the outcome.” Id. An appellant who successfully
impeaches a witness at trial without the suppressed evidence has not been prejudiced. State
v. Miller, 754 N.W.2d 686, 706 (Minn. 2008).

6
Victim credibility is typically a critical component in domestic-assault trials. Here,
the state noted in closing arguments not only that S.R.’s testimony is direct evidence and
enough to support appellant’s conviction, but that her testimony is corroborated by her
prior statements an d the pictures of her bruises. Appellant did not impeach S.R. with
inconsistent statements , b ut he nonetheless effectively impeach ed her on cross -
examination. Appellant challenged S.R.’s credibility by referencing her drug use, fluid
living situation with changing roommates, and use of medication for irritability,
depression, and mood swings. The jury heard enough about S.R. to weigh her character
for truthfulness. The withheld evidence is not enough to undermine our confidence in the
outcome, and it did not prejudice appellant.
II. The district court did not deny appellant’s constitutional right to a unanimous
verdict.

Next, appellant argues that district court deni ed his constitutional right to a
unanimous verdict by not instructing the jury to de termine whether he committed either
domestic assault or attempted domestic assault. We disagree.
District courts have broad discretion “in choosing the language of jury instructions.”
State v. Milton , 821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted). But a d istrict
court abuses its discretion if its jury instructions “confuse, mislead, or materially misstate
the law.” State v. Taylor , 869 N.W.2d 1, 14 -15 (Minn. 201 5) (quotation omitted).
Appellant did not object to the jury instructions at trial. “Failure to object to jury
instructions at trial generally results in a forfeiture of the right to appeal on that error.”
State v. Cyrette, 636 N.W.2d 343, 346 (Minn. Ap p. 2001), review denied (Minn. Feb. 19,

7
2002). But we may review u nobjected-to jury instructions for plain error. State v.
Gunderson, 812 N.W.2d 156, 159 (Minn. 2012) (quotation omitted). “Under the plain -
error standard, we review the jury instruct ions to determine whether there was error, that
was plain, and that affected [appellant’s] substantial rights. ” Id. If these three elements
are met, then we can reverse if “required to ensure fairness and the integrity of the judicial
proceedings.” Id. (quotation omitted). Failure to properly instruct the jury on all elements
of the charged offense meets the first two prongs of the plain -error test. State v. Watkins,
840 N.W.2d 21, 28-29 (Minn. 2013).
Here, the district court convicted appellant under Minn. Stat. § 609.2242, subd. 4 ,
of committing a domestic assault within ten years of two or more previous qualifying
offenses. A person is guilty of domestic assault who, “against a family or household
member,” either “(1) commits an act with intent to cause fear in another of immediate
bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon
another.” Minn. Stat. § 609.2242, subd. 1 (2016) (emphasis added).
The district court’s jury instruction largely followed the model jury instructions, but
omitted the alternative way of committing assault by attempting to harm a nother. See 10
Minnesota Practice, CRIMJIG 13.48 (2019). The district court’s instruction changed the
introduction from the model sentence of “[f]irst the defendant intentionally inflicted or
attempted to inflict bodily harm” to “[f]irst the defendant assaulted S.R.” It defined assault
as “the intentional infliction of bodily harm upon another” and defined “bodily harm” as
“physical pain or injury, illness, or any impairment of a person’s physical condition.”

8
Appellant nonetheless argues that the district court committed plain error because
the verdict form stated that the jury found appellant guilty of “Domestic Assault
(Intentionally Inflict or Attempt to Inflict Bodily Harm).” (Emphasis added.) But the jury
instructions define the crime for the jury. See Milton, 821 N.W.2d at 805. We presume
that juries follow the district court’s instructions. See State v. Pendleton, 706 N.W.2d 500,
509 (Minn. 2005). Based on this jury instruction, t he jury found appellant guilty of
domestic assault by intentionally inflicting harm, not attempting to inflict harm. And under
section 609.2242, subd. 1 , intentionally inflicting harm is one way to commit domestic
assault. Furthermore, the evidence presented to the jury pertains to a completed domestic
assault. Appellant has not shown how the district co urt committed error. We therefore
need not examine the other elements of the plain -error test. See State v. Webster , 894
N.W.2d 782, 786 (Minn. 2017).
III. The district court did not commit plain error by not providing an instruction
for “attempt.”

Appellant also argues that the district court committed plain error by not including
a jury instruction for “attempt.” But the jury instruction defined domestic assault and did
not use the word “attempt.” Because the jury instruction did not use “attempt,” the district
court did not need to define it. Appellant has not shown how the district court erred.
IV. The district court did not violate appellant’s rights in sentencing because it
applied the correct statutory maximum sentence.

Appellant argues that the district court violated his Sixth Amendment right to a jury
trial by setting the statutory -maximum sentence based on a finding that appellant
committed domestic assault even though the jury did not distinguish between intentional

9
infliction of harm and an attempt to inflict harm . But the jury found appellant guilty of
domestic assault by intentionally inflicting harm consistent with Minn. Stat. § 609.2242,
subd. 4. This subdivision states that anyone who violates Minn. Stat. § 609.2242, subd. 1,
which includes infliction of harm or attempted infliction of harm, within ten years of two
other qualifying offenses “may be sentenced to imprisonment for not more than five years.”
The district court sentenced appellant to 60 months, the statutory maximu m for domestic
assault. Appellant’s argument fails.
V. The cumulative effect of the alleged errors did not deprive appellant of his right
to a fair trial.

Finally, appellant argues that the cumulative effect of the district court’s errors
together, if not enough on their own, requires reversal. “Cumulative error exists when the
cumulative effect of the errors and indiscretions, none of which alone might have been
enough to tip the scales, operate to the defendant’s prejudice by producing a biased jury.”
State v. Penkaty , 708 N.W.2d 185, 200 (Minn. 2006) (quotation omitted) . We have
analyzed appellant’s allegations of error by the district court and conclude that the district
court did not prejudice appellant through single or cumulative error.
Affirmed.