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This opinion will be unpublished and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
A19-1450

State of Minnesota,
Respondent,

vs.

Cody Lyle Bergendahl,
Appellant.

Filed September 21, 2020
Reversed and remanded
Johnson, Judge

Le Sueur County District Court
File No. 40-CR-17-786

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Brent Christian, Le Sueur County Attorney, Le Center, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and
Schellhas, Judge.

Retired judge of the Minnesota Court of Appeals, 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
JOHNSON, Judge
A Le Sueur County jury found Cody Lyle Bergendahl guilty of first-degree criminal
sexual conduct. On appeal, he seeks relief on three grounds. We conclude that the district
court erred by denying Bergendahl’s for-cause challenge of a prospective juror on the
ground that she was biased. Therefore, we reverse and remand for a new trial.
FACTS
In July 2017, t he state charged Bergendahl with first -degree criminal sexual
conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2016) , and first -degree
criminal s exual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(ii) . The
complaint alleged that Bergendahl and the alleged victim were friends because they had
been co-workers, that they spent an evening together with a couple who are friends of
Bergendahl, and that Bergendahl sexually penetrated the complainant ’s vagina with his
penis, without her consent, in a bedroom at Bergendahl’s friends’ home.
Before jury selection, a prospective juror, Juror 27, answered a questionnaire by
stating that her daughte r had been physically and emotional ly abused by a boyfriend.
During voir dire, the district court and Bergendahl’s attorney questioned Juror 27 about the
disclosure, which led to inconsistent and equivocal responses. The district court began by
asking Juror 27 whether her daughter ’s abuse “would affect your ability to be fair and
impartial in a situation like this? ” Juror 27 initially answered that it “might” and further
stated, “I would hope that I could be impartial to it all, but I can ’t say for sur e, either.”
Bergendahl’s attorney asked Juror 27 whether she “could be fair to both sides of the case.”

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Juror 27 answered, “I think that I could be, but I can ’t . . . say a hundred percent sure. ”
When asked whether she could “completely set aside the pa st about your daughter ,” she
answered, “Yep. Yep, that I could.” Bergendahl’s attorney asked whether her daughter ’s
experience “would affect how you would think about a case like this?” Juror 27 answered
by saying, “I hope not, but I . . . can’t say a hundred percent,” “I want to be impartial [and]
to listen to both sides and . . . come up with a fair judgment,” and “[t]here is part of me that
says, I might not be able to, yes, that I’m not sure.”
Bergendahl’s attorney asked the district court to excuse Juror 27. The district court
asked Juror 27 additional questions, concluding with the question, “In your heart of hearts,
do you think you can be fair?” Juror 27 answered, “I don’t know. I honestly don’t know.”
After Juror 27 left the courtroom, Bergendahl’s attorney renewed the for-cause challenge,
arguing that Juror 27 had ongoing doubts about her ability to be fair and impartial and that
Juror 27 ultimately had said that “she just didn ’t know .” The prosecutor opposed
Bergendahl’s challenge. The district court denied the challenge.
At trial, the state called seven witnesses and introduced 28 exhibits. Bergendahl
testified in his own defense and called as witnesses the two friends who were present on
the night of the incident. The jury found Bergendahl guilty.
Bergendahl filed two post-trial motions in which he made five arguments, including
the argument that Juror 27 was biased. The d istrict court denied both motions. With
respect to Bergendahl’s juror-bias argument, the district court rea soned that it “was not
convinced that [Juror 27 ’s] doubts were anything other than the doubts that every juror

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feels” and that the nature of Juror 27’s “strong and deep impressions ” were unclear. The
district court sentenced Bergendahl to 144 months of imprisonment. Bergendahl appeals.
D E C I S I O N
Bergendahl argues that he is entitled to appellate relief for three reasons. First, he
argues that he is entitled to a new trial on the ground that the district court erred by not
removing Juror 27 for c ause. Second, he argues that he is entitled to a new trial on the
ground that the prosecutor engaged in misconduct in closing argument by vouching for the
victim’s credibility. And third, he argues that he is entitled to a Schwartz hearing because,
in a post-trial evaluation form, a juror anonymously stated that she should not have been
selected for jury service because she previously had experienced sexual abuse. We begin
by considering Bergendahl’s first argument.
A defendant in a criminal case has a c onstitutional right to an impartial jury. U.S.
Const. amend. VI; Minn. Const. art. I, § 6. “Because the impartiality of the adjudicator
goes to the very integrity of the legal system, . . . the bias of a single juror violates the
defendant’s right to a f air trial. ” State v. Evans , 756 N.W.2d 854, 863 (Minn. 2008)
(quotations omitted). Furthermore, the presence of a biased fact finder is a structural error,
which requires automatic reversal. Id.
“A juror may be challenged for cause” on any of 11 grounds, including the ground
that “[t]he juror’s state of mind —in reference to the case or to either party—satisfies the
court that the juror cannot try the case impartially and without prejudice to the substantial
rights of the challenging part y.” Minn. R. Crim. P. 26.02, subd. 5(1) , 5(1)1. If a party
challenges a prospective juror on the ground of bias, “the challenging party must show that

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the juror exhibited strong and deep impressions that would prevent her from laying aside
her impression or opinion and rendering a verdict based on the evidence presented in
court.” State v. Munt, 8 31 N.W.2d 569, 577 (Minn. 2013) (quotations, citations, and
alterations omitted).
Determining whether the district court erred . . . is a
two-step process. We must first determine if the juror
expressed actual bias. To do so, we must view the juror’s voir
dire answers in context. If the juror expressed actual bias, we
must then determine whether the juror was properly
rehabilitated. We consider a juror to be rehabilitated if he or
she states unequivocally that he or she will follow the district
court’s instructions and will set aside any preconceived notions
and fairly evaluate the evidence.

State v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015) (quotation and citation omitted). An
appellate court applies an abuse -of-discretion standard of review to a district court ’s
decision not to strike a prospective juror for cause. See id.
The first question is whether Juror 27 expressed “strong and deep impressions that
would prevent her from laying aside her impression or opinion and rendering a verdict
based on the evidence presented in court. ” See Munt, 831 N.W.2d at 577. The transcript
of voir dire indicates that Juror 27 had certain impressions that caused her to doubt her
ability to be a fair and impartial juror. Some of her answers reflected less doubt than others,
but most of her answers indicated that her doubts were persistent and had not abated before
the district c ourt made its ruling on Bergendahl’s for -cause challenge . Bergendahl
emphasizes the last question put to Juror 27, “In your heart of hearts, do you think you can
be fair?,” and her answer: “I don’t know. I honestly don’t know.” Bergendahl’s argument
has merit because it appear s that Juror 27 was not confident that she could set aside the

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impressions and opinions she held because of her daughter’s prior abuse and make a
decision based solely on the evidence presented at trial.
The state argues that Juror 27 was not biased against persons accused of conduct
similar to the conduct alleged in this case. But the state has not cited any caselaw for the
proposition that a prospective juror’s bias must be directly related to the nature of the case
or the alleged criminal conduct, and we are unaware of any such caselaw . The caselaw
asks only whether the juror has “exhibited strong and deep impressions that would prevent
her from laying aside her impression or opinion and rendering a verdict based on the
evidence presented in court.” Id.
The state also argues that Juror 27 stated that she would set aside her daughter ’s
experience and do her best to be fair and impartial. But this argument is based on isolated
statements Juror 27 made in voir dire. As a whole, Juror 27’s answers to the questions
asked of her were equivocal, especially her last statement that she “honestly” did not know
whether she could be fair.
The state argues further that this court should defer to the district court ’s decision.
We acknow ledge that appellate courts generally give deference to a district court ’s
interpretation and assessment of a prospective juror ’s answers to voir dire questions. See
id. at 576. But such deference is not warranted in this case. As an initial matter, the district
court did not make a determination that Juror 27 was not credible. In the absence of such
a determination, we must assume Juror 27’s statements to be true. More importantly, t he
district court’s order denying Bergendahl’s post-trial motion reflects a misunderstanding
of Juror 27’s voir dire testimony. The order states that she answered “Yep” when asked

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whether she could be fair and impartial. In reality, that was Juror 27’s answer to a different
question. When asked whether she could be fair, Juror 27 generally expressed doubts and
ultimately stated, “I honestly don’t know.” The district court did not mention Juror 27’s
final answer in its legal analysis. It appears that the district court based its post-trial ruling
on a misunderstanding of what Juror 27 said.
In addition, the district court’s ruling is inconsistent with supreme court caselaw. In
Fraga, the supreme court concluded that the district court erred because the prospective
juror “expressed actual bias,” in part by stating, in response to questions about whether he
could be fair and impartial, “I think it would be hard.” 864 N.W.2d at 623-25. In State v.
Logan, 535 N.W.2d 320 (Minn. 1995), the supreme court concluded that the district court
erred because the prospective juror stated that he would tend to favor the testimony of a
police officer but he would “be objective, . . . as best I could. ” Id. at 324. The supreme
court acknowledged that “trial courts must have considerable discretion in ruling on such
challenges” but nonetheless “conclude[d] that the trial court erred in rejecting defense
counsel’s challenge . . . because the juror did not ‘swear that he could set aside any opinion
he might hold and decide the case on the evidence, ’ but only that he would try.” Id.
(quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S. Ct. 2885, 2891 (1984)). Similarly,
in State v. Prtine , 784 N.W.2d 303 ( Minn. 2010), the supreme court concluded that the
district court erred because the prospective juror stated that she would tend t o favor the
testimony of a police officer and qualified those statements only by stating that “she would
‘try and be fair’ and ‘would weigh the facts.’” Id. at 309-11. These supreme court opinions
illustrate that, despite a deferential standard of review, an appellate court must find error if

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a transcript reveals statements by a prospective juror that indicate a bias and if the
prospective juror has not stated that he or she will set aside the bias and make a decision
based on the evidence. See Munt, 831 N.W.2d at 577. We are unaware of any caselaw in
which statements similar to Juror 27’s statements were deemed not to be an expression of
bias. Thus, we conclude that Juror 27 was biased.
The state argues in the alternative that Juror 27 was rehabilit ated. A prospective
juror who has expressed bias may be deemed rehabilitated if the person has stated
“unequivocally” that he or she will follow the district court’s instructions and “fairly
evaluate the evidence .” Logan, 535 N.W.2d at 323. But a prospe ctive juror is not
rehabilitated if he or she merely will “‘try,’ ‘do their best, ’ ‘think they could, ’ ‘think it
would be hard,’ or ‘guess’ they could set aside their bias.” Ries v. State, 889 N.W.2d 308,
314 (Minn. App. 2016) (quoting Fraga, 864 N.W.2d at 625), aff’d, 920 N.W.2d 620 (Minn.
2018). In this case, Juror 27’s answers were generally equivocal, and her last answer was
especially equivocal. She did not make an “unequivocal” statement that she would set
aside her preconceptions and be fair. Logan, 535 N.W.2d at 323. Thus, Juror 27 was not
rehabilitated.
In sum, the district court erred by denying Bergendahl’s for-cause challenge to Juror
27 and by denying Bergendahl’s post-trial motion for a new trial based on Juror 27’s bias.
Therefore, we reverse and remand for a new trial. See Fraga, 864 N.W.2d at 625-26, 627.
In light of that conclusion and remedy, we need not consider Bergendahl’s second and third
arguments.
Reversed and remanded.