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This opinion will be unpublished and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
A19-2034

State of Minnesota,
Respondent,

vs.

Michael Allen Boisjolie,
Appellant.

Filed November 30, 2020
Affirmed
Larkin, Judge

Carver County District Court
File No. 10-CR-19-640

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

Mark A. Metz, Carver County Attorney, Angella M. Erickson, Assistant County Attorney,
Chaska, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.

2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
A jury found appellant guilty of violating a domestic -abuse no -contact order
(DANCO). Appellant contends that the evidence was insufficient to sustain the resulting
conviction. We affirm.
FACTS
The state charged appellant Michael Allen Boisjo lie with a felony-level DANCO
violation, alleging that he violated the DANCO within ten years of two or more qualifying
convictions. According to the complaint, Boisjolie violated the DANCO by contacting the
protected party, T.J., by phone from jail.
The case was tried to a jury . Boisjolie stipulated to the existence of his prior
qualifying convictions. A bailiff testified about his duties, which included serving
individuals with DANCOs in court. He testified that he “normally” explained the DANCO
to the person being served by identifying “the protected party” and asking whether the
person “understood what the judge had ordered.” The bailiff testified that the person being
served received “a copy” of the DANCO.
The bailiff testified that he served Boisjolie o n Apri l 3, 2019. A copy of the
DANCO served on Boisjolie was admitted into ev idence. It was initialed and indicated
that it was served on April 3, 2019. The bailiff identified the initials as his own. The
DANCO prohibited Boisjolie from contacting T.J. and expressly prohibited contact by
phone.

3
A sergeant testified that Boisjolie was in jail on April 4, 2019, and someone made a
call that day from the ja il using Boisjolie’s pin number . A recording of the call was
admitted into evidence.
T.J. testified that she was at home on April 4 with a friend, when the friend received
a call from Boisjo lie from jail. The friend “put [T.J. ] on the phone ,” and she spoke with
Boisjolie. T.J. identified her voice and Boisjolie’s voi ce on the recording. T.J. did not
report the DANCO violation because she did not want Boisjolie to get in trouble.
During the call from jail, Boisjolie initially sp oke with an unknown male. The
unknown male ask ed Boisjolie if he want ed to speak to a “f riend of ours,” and Boisjolie
said that he did. Boisjolie then spoke with T.J. He told her that he wanted to see her “real
bad” and discussed the possibility of staying at her house. T.J. respond ed, “I don’t think
it’s a good idea that you stay here,” a nd told him repeatedly that he will “go back.”
Boisjolie then agreed that he could not stay at T.J.’s house.
The jury returned a guilty verdict. The district court sentenced Boisjolie to serve 39
months in prison. This appeal followed.
D E C I S I O N
In considering a challenge to the sufficiency of the evidence to sustain a conviction,
we carefully analyze the record to determine whether the evidence, viewed in a light most
favorable to the conviction, was sufficient to permit the jury to reach its v erdict. State v.
Webb, 440 N.W.2d 426, 430 (Minn. 1989). We “assume that the jury believed the state’s
witnesses and disbelieved contrary evidence.” State v. Brocks, 587 N.W.2d 37, 42 (Minn.
1998). We will not disturb a guilty verdict if the jury, acti ng with due regard for the

4
presumption of innocence and requirement of proof beyond a reasonable doubt, could
reasonably have concluded that the state proved the defendant’s guilt. Bernhardt v. State,
684 N.W.2d 465, 476-77 (Minn. 2004).
When the state relies on circumstantial evidence to prove an element of an offense,
we apply a heightened standard of review. See State v. Harris , 895 N.W.2d 592, 601 -03
(Minn. 2017) (applying circumstantial-evidence standard to individual element of criminal
offense that was proved by circumstantial evidence). Circumstantial evidence is “evidence
from which the factfinder can infer whether the facts in dispute existed or did not exist.”
Id. at 599 (quotation omitted). “In contrast, direct evidence is evidence that is based on
personal knowledge or observation and that, if true, proves a fact without inference or
presumption.” Id. (quotation omitted).
A person is guilty of violating a DANCO if the person “knows of the existence” of
the DANCO “issued against the person” and violates the order. Minn. Stat. § 629.75, subd.
2(b) (2018). The offense is a felony if committed “within ten years of the first of two or
more previous qualified domestic violence-related offense convictions.” Id., subd. 2(d)(1)
(2018). Knowledge may be proved by circumstantial evidence “ that an individual was
served with ” a protective order with terms “clearly and unambiguously prohibit [ing]
certain conduct.” State v. Gunderson, 812 N.W.2d 156, 161 (Minn. App. 2012).
The sole issue in dispute is whether the state proved that Boisjolie knew of the
existence of the DANCO when he contacted T.J. The parties agree that the circumstantial-
evidence standard of review is applicable. Under that standard, we use a two-step process.
Harris, 895 N.W.2d at 601. First, we identify the circumstances proved , “disregard[ing]

5
evidence that is inconsistent with the jury’s verdict.” Id. Next, we “determine whether the
circumstances proved are consistent with guilt and inconsistent with any ra tional
hypothesis other than guilt.” Loving v. State , 891 N.W.2d 638, 643 (Minn. 2017)
(quotation omitted). We do not defer to the jury’s choice between reasonable inferences.
State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013). But we will reverse a conviction
based on circumstantial evidence only if there is a reasonable inference other than guilt.
Loving, 891 N.W.2d at 643.
Here, the circumstances proved are that the bailiff served Boisjolie wi th the
DANCO the day before the alleged violation. The bailiff “normally” explained DANCOs
when serving them. The DANCO prohibited Boisjolie from contacting T.J. by phone.
Boisjolie contacted T.J. by phone. During the call, Boisjolie discussed the possibility of
staying with T.J., but he ultimately agreed with her that it was a bad idea because he would
“go back.” In sum, Boisjolie received the DANCO, and his statements during the phone
call indicate d that he understood the repercussions of violating the order. These
circumstances are consistent with B oisjolie’s knowledge of the existence of the DANCO
and his guilt.
Boisjolie argues that “[i]t is not reasonable to infer from the circumstances proved
that [he] knew of the existence of the DANCO wh en he violated it” because “the state
offered no evidenc e about the circumstances under which the DANCO was issued and
‘served,’ and no evidence that [he] understood or knew the order served upon him was a
‘DANCO.’”

6
“To successfully challenge a conviction ba sed upon circumstantial evidence, a
defendant must point to evidence in the record that is consistent with a rational theory other
than guilt.” State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002). A defendant may not rely
on mere conjecture or speculation, but must instead point to specific evidence that supports
his theory. State v. Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010); State v. Tscheu, 758
N.W.2d 849, 858 (Minn. 2008). “[A] defendant is not relying on conjecture or speculation
when the defendant . . . points to evidence in the record that is consi stent with a rational
theory other than guilt.” Al-Naseer, 788 N.W.2d at 480 (quotation omitted).
Boisjolie does not point to evidence in the record that is consistent with his theory
of innocence. Instead, he points to the lack of evidence regarding whether the DANCO
“was issued in accordance with statutory procedures,” and “how or where the DANCO was
issued, whether Boisjolie was present when it was issued, or what, if anything B oisjolie
was told about the DANCO when it was issued.” Boisjolie points out that “there was no
evidence that [he] acknowledged receiving the DANCO and un derstanding what it was.”
Boisjolie concludes that the absence of evidence “is wholly consistent” with his innocence.
Boisjolie’s complete reliance on an absence of evide nce to establish a rational
theory other than guilt is unavailing. Cf. Harris, 895 N.W.2d at 602-03 (concluding there
was a rational hypothesis of innocence based on record evidence in addition to an absence
of evidence). The caselaw is clear: a defenda nt must point to evidence in the record that
is consistent with a rational theory other than guilt. Taylor, 650 N.W.2d at 206. Boisjolie’s
approach relies on conjecture or speculation and is therefore unavailing. See Al-Naseer,
788 N.W.2d at 480 (stating that a defendant may not rely on speculation).

7
Because t he circumstances proved are consistent with Boisjolie’s guilt and
inconsistent with any rational hypothesis other than guilt, we affirm.
Affirmed.