State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0223

State of Minnesota,
Respondent,

vs.

Daniel Josphe Kriesel,
Appellant.

Filed February 1, 2021
Affirmed in part, reversed in part, and remanded
Worke, Judge

St. Louis County District Court
File No. 69DU-CR-19-2530

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

Mark S. Rubin, St. Louis County Attorney , Nathaniel T. Stumme, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Laura G. Heinrich, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his assault and domestic-assault convictions, arguing that the
district court failed to strike a biased juro r and erroneously admitted the victim’s out-of-

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court statements. Appellant also challenges the sufficiency of the evidence supporting his
first-degree-assault and domestic-assault co nvictions and presents several pro se
arguments. We affirm in part, reverse in part, and remand.
FACTS
The state charged appellant Daniel Josphe Kriesel with firs t- and third-degree
assault and felony domestic assault.
The case proceeded to a jury trial. On the second day of trial, the state informed the
district court that the victim was not going to tes tify. The district court ruled that two
officers’ body-camera videos that contained the victim’s statements identifying Kriesel as
the assailant were admissible.
The first responding officer testified that he received a dispatch on July 15, 2019, to
a disturbance. When he arri ved at the home, he heard yelli ng and requested backup. As
he was waiting for backup, “a woman covered in blood burst out of the front door and ran
out onto the porch.” The officer testified,
She was covered in blood. I could see visible injuries,
um, in between her eyes, . . . just above the bridge of her nose.
I could see her . . . forehead wa s laid open. Um, she looked
like she had puncture wounds about her torso. . . . Um, it just
looked horrible, . . . just injuries all about her.

A man then exited the front door of the house, and officers arrested him. Roughly
one minute after the officers placed handcuffs on the man, the first officer asked the victim
if the man was Kriesel; she replied that it wa s. Roughly 30 seconds after that, the officer
told the victim that her hand looked broken, to which she replied, “He stabbed me.” The
victim was sobbing and saying “ow” thr oughout the entire encount er. The prosecutor

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asked the first officer if there was anything in his report “that would indicate that anyone,
besides . . . Kriesel . . . was being accused of the assault,” and the officer answered, “No.”
An investigator who analyzed the scene te stified that he took pictures throughout
the house and collected blood samples. He also found “a piece of human tissue” that he
later identified as “[a] piece of [the victim ’s] ear.” The state published several of the
investigator’s pictures to the jury.
A second officer testified that she accompanied the victim to the hospital inside the
ambulance. The victim’s iden tification of Kriesel as the assailant from inside the
ambulance was presented to the jury in the officer’s body-camera video.
The jury found Kriesel guilty as charged. The district court entered judgments of
convictions on all three counts and sentenced Kriesel to 158 months in prison for his first-
degree assault conviction. This appeal followed.
DECISION
Juror bias
Kriesel first argues that the district cour t abused its discretion by denying his motion
to strike a biased juror.
Criminal defendants are constitutionally guar anteed the right to an impartial jury.
State v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015). “The bias of a single juror violates the
defendant’s right to a fair trial.” State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007). A
party may move to strike a juror for cause when it “satisfies the court that the juror cannot
try the case impartially and without prejudice to the substantial right s of the challenging

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party.” Minn. R. Crim. P. 26.02, subd. 5(1)(1). It is the moving party’s burden to establish
bias. State v. Munt, 831 N.W.2d 569, 577 (Minn. 2013).
“We give great deference to a district court’s findings of fact regarding juror
bias . . . and review a district court’s decisi on to seat a juror for abuse of discretion.”
Fraga, 864 N.W.2d at 623 (quotation omitted). Reviewing whether a district court erred
in not striking a juror involves a two-step process. Id. The first step is to view the juror’s
voir dire answers in context to determine whether the juror expressed actual bias. Id. The
next step is to determine if the juror was rehabilitated. Id.
Kriesel argues that a juror, J.B., expressed actual bias because she made it clear that
“she has an emotional response to viewing gr aphic evidence and that emotional response
would undermine her ability to presume . . . Kr iesel innocent or be fair to him.” To
establish bias, Kriesel must show that J.B. “exhibited strong and deep impressions that
would prevent her from lay[ing] aside [her] impression or opinion and render[ing] a verdict
based on the evidence presented in court.” See Munt, 831 N.W.2d at 577 (quotation
omitted).
Kriesel cites three portions in J.B.’s voi r dire testimony where he argues that she
expressed bias. First, when th e prosecutor asked J.B. if sh e could set aside her emotions
and still presume Kriesel’s innocence, she resp onded, “That’s a tough one. Um, . . . I
maybe could. . . . I don’t know. I can’t give you a –.” Next, when J.B. was asked if the
graphic nature of the evidence would make her jump to conclusions, she responded “That’s
the tough part. I – I can’t sa y for sure.” Finally, when J. B. was asked whether she could

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hold off on making a final judgment until the end of trial, she responded, “I would try really
hard.”
In Fraga, the supreme court distinguished voir dire responses that expressed actual
bias from statements that were probative of bias. 864 N.W.2d at 625. The supreme court
noted that a juror expressed actual bias when he answered whether he could be impartial
by stating, “Besides the fact I know about the case, I don’t, no. I think it would be hard.”
Id. (emphasis omitted). The juror’s caveat i ndicated actual bias, while his equivocal
statements like, “I think it would be hard” and his statements about his friends and family
using the word “sickening” when discussing the case with him were “probative of bias.”
Id.
J.B. stated several times that she coul d avoid forming an opinion too quickly or
being swayed by violence. These statements, while equivoc al, were stated without any
caveat. Thus, Kriesel has shown statements th at are probative of bias, but no statement
that expressed actual bias.
Kriesel relies on State v. Bergendahl , a recent nonprecedentia l opinion from this
court. No. A19-1450, 2020 WL 5626091 (Minn. App. Sept. 21, 2020). In Bergendahl, a
juror, who has a daughter who was physically and emotionally abused by a boyfriend, was
asked whether she could be impartial and set aside her bias in a criminal-sexual-conduct
case, and the juror responded, “[t]here is part of me that says , I might not be able to, yes,
that I’m not sure.” Id. at *1. The juror made several other equivocal statements. Id. In
concluding that the district court erred in not granting the defendant’s motion to strike, this
court stated, “As a whole, [the juror]’s an swers to the questions asked of her were

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equivocal, especially her last statement that she ‘honestly’ did not know whether she could
be fair.” Id. at *3. But Bergendahl is distinguishable from this matter for two reasons.
First, the facts in Bergendahl required this court to interp ret the juror’s answers because
the district court did not make findings of fact and misund erstood some of the jurors’
answers. Id. Second, the juror in Bergendahl made stronger statements, including that she
“honestly” did not know whether she thought she could be fair. Id. at *1.
Kriesel bears the burden of showing that J.B. was biased, and he has not provided
any caselaw that states equivocal statements alone demonstrate actual bias. Because we
determine that J.B. did not express actual bias, we need not analyze whether she was
rehabilitated.
First body-camera video
Kriesel next argues that the district cour t violated his rights under the Confrontation
Clause by admitting the first body-camera video after finding that its contents were
nontestimonial.
Whether the admission of evidence violates a de fendant’s rights under the
Confrontation Clause is a question of law that we review de novo. State v. Wright , 726
N.W.2d 464, 472 (Minn. 2007). The Confro ntation Clause states , “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him . . . .” U.S. Const. amend VI. This clause has been interpreted to prohibit the
“admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior o pportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004).

7
“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.” Wright, 726 N.W.2d at 472
(quotation omitted). C onversely, statements are testim onial “when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.” Id. (quotation omitted).
Kriesel challenges two of the victim’s st atements in the first officer’s body-camera
video, arguing that they are testimonial because they were made after Kriesel was arrested
and after the emergency was re solved. The first statement was made about one minute
after Kriesel ran out of the house. The o fficer asked the victim whether the man was
Kriesel, and she responded affirmatively. The next statement came roughly 30 seconds
after:
VICTIM: Ow, ow, ow, ow, ow (crying).
[OFFICER]: Let me see your ha nd. Your hand looks broken,
okay.
VICTIM: He stabbed me.
[OFFICER]: He stabbed you?
VICTIM: He stabbed me and (inaudible) in the head.

Both statements are nontestimonial because there was an ongoing emergency. The
house and premises were not yet secured, and both statemen ts took place less than two
minutes after the officers handcuffed Kriesel. The district court did not violate Kriesel’s
rights under the Confrontation Clause by admitting the first body-camera video.

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Second body-camera video
Kriesel argues that the district court abus ed its discretion by admitting the second
body-camera video because it was hearsay. Wh ile the district court determined that the
video was admissible under several exceptions to the hearsay rule, it ruled that the video
“comes in most strongly” under the excited-utterance exception.1
Hearsay is an out-of-court statement offere d for the truth of the matter asserted, and
it is generally inadmissible at trial. Minn. R. Evid. 801(c), 802. However, there are
exceptions that allow for the admissibility of out-of-court statemen ts because of other
indicia of reliability. Minn. R. Evid. 803, 8 04. “A determination that a statement meets
the foundational requirements of a hearsa y exception is reviewed for an abuse of
discretion.” Holt v. State, 772 N.W.2d 470, 483 (Minn. 20 09). An appellant who claims
that the district court erred has the burden of showing that the district court erred and the
resulting prejudice. Id.
Minn. R. Evid. 803(2) states that “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event
or condition” is an exception to the hearsay ru le. An excited utterance must meet three
requirements: (1) “there must be a startling event or condition,” (2) “the statement must
relate to the startling event or condition,” and (3) “the declarant must be under a sufficient

1 The district court also stated that it “comes in most strongly” under the then existing state
of mind or physical condition exception. Minn. R. Evid. 803(3) allows for the admissibility
of statements “of the declarant’s then existing state of mind, emotion, sensation, or physical
condition . . . but not including a statement of memory or belief to prove the fact
remembered or believed.” But this rule only applies when “the state of mind is relevant to
the issues in the lawsuit.” Minn. R. Evid. 803(3) cmt. This exception does not apply.

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aura of excitement caused by the event or condition to insu re the trustworthiness of the
statement.” State v. Daniels , 380 N.W.2d 777, 782 (Minn. 1986). “The lapse of time
between the startling event and the out-of-court statement is not always determinative.”
State v. Hogetvedt, 623 N.W.2d 909, 913 (Minn. App. 2001), review denied (Minn. May
29, 2001).
The second body-camera video captured the victim’s statements made when she
was in the ambulance and the am bulance was still at the crim e scene. Kriesel challenges
the following statement that th e victim made approximately 90 seconds after the officer
entered the ambulance:
EMT: So – how did you get those facial injuries here, [victim]?
VICTIM: [Kriesel].
EMT: But how?
VICTIM: He punched me.
EMT: Punched you?
VICTIM: And he started stabbing me.
EMT: Okay. Did he punch you with a fist or [with] something
else?
VICTIM: He used his fist. He used his feet. He used this metal
lamp or glass lamp and he used a (inaudible) to the house and
then he used himself.

EMTs were placing initial bandages on the vic tim, and she was consta ntly yelling “ow.”
The video does not show the second officer ta lking to or engaging with the victim during
the statement.
This statement clearly meets the first tw o excited-utterance requirements: it arose
from both a startling event and condition, and relates to that event and condition. The issue
is whether the victim was “unde r a sufficient aura of excite ment caused by the event or
condition to insure the trustworthiness of the statement.” See Daniels, 380 N.W.2d at 782.

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The district court admitted the statement because, “Clearly, at this time, [the victim] is still
in a state of distress. She is sobbing, not speaking clearly, but, again, describing what she’d
experienced.”
We agree with the district court. The victim suffered severe injuries, and her
statement was made relatively close to the even t. The victim also answered nonleading
questions when she made the statement. Finally, the EMTs were applying the initial
bandages when the victim volunteered Kriesel’ s name, and the victim was clearly still in
pain. The district court did not abuse its discretion by admitting the second body-camera
video under the excited-utterance exception.
Medical records
Kriesel next argues that the district c ourt erred by admitting the victim’s medical
records for treatment after the incident under the medical-diagnosis exception.
A hearsay statement is admissible if it is “made for purposes of medical diagnosis
or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception of general characte r of the cause or external source thereof
insofar as reasonably pertinen t to diagnosis or treatment. ” Minn. R. Evid. 803(4).
“[S]tatements explaining the cause of an injury are admissible under the medical diagnosis
exception, [but] statements attributing fault, including statements identifying the accused
perpetrator, are ordinarily not admissible.” State v. Robinson, 718 N.W.2d 400, 404 (Minn.
2006).
Kriesel argues that the district court abused its discretion by admitting the medical
records because the exception requires a medical expert witness to introduce the evidence.

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Kriesel relies on Robinson for this assertion. We disagr ee with his interpretation of
Robinson. In Robinson, the supreme court was asked to broaden the medical-diagnosis
exception to allow identifyi ng information for victims of domestic abuse. Id. at 404-05.
When the supreme court stated that there was no medical expert to testify, it was discussing
the scope of the treatment required for victims of domestic abuse and whether the identity
of the perpetrator would be helpful for the medical professional in these situations. Id. at
406. Robinson does not support the proposition that a medical professional is needed
before any medical records ca n be admitted under the excep tion. Kriesel has not shown
how the district court abused its discretion by admitting the victim’s medical records under
the medical-diagnosis exception.
Sufficiency of the evidence
Finally, Kriesel challenges the suffici ency of the eviden ce supporting his
convictions for first-degree assault and domestic assault.
When reviewing a challenge to the sufficien cy of the evidence, this court reviews
the record “to determine whet her the evidence, direct and circumstantial, viewed most
favorably to support a finding of guilt is sufficient to perm it the jury to reach that
conclusion.” Francis v. State , 729 N.W.2d 584, 589 (Minn. 2007) (quotation omitted).
Appellate courts will not overturn a verdict if a jury, “upon application of the presumption
of innocence and the [s]tate’s burden of proving an offe nse beyond a reasonable doubt,
could reasonably have found the defendant guilty of the charged offense.” State v. Griffin,
887 N.W.2d 257, 263 (Minn. 2016). “We do no t retry the facts; we assume the jury

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believed the state’s witnesses and disb elieved the defendant’s witnesses.” State v. Thao,
649 N.W.2d 414, 420 (Minn. 2002).
First-degree assault
First, Kriesel argues that the state did not offer sufficient evid ence to support his
conviction for first-degree assa ult because it “failed to pr ove beyond a reasonable doubt
that the [victim] had a serious permanent disfigurement.”
A person who “assaults another and inflic ts great bodily harm” is guilty of first-
degree assault. Minn. Stat. § 609.221, subd. 1 (2018). “‘Great bodily harm’ means bodily
injury which creates a high probability of death, or whic h causes serious permanent
disfigurement, or which causes a permanent or protracted loss of impairment of the
function of any bodily member or organ or other serious bodily harm.” Minn. Stat.
§ 609.02, subd. 8 (2018).
The state asserted that the victim suffered serious permanent disfigurement because
she was missing a piece of her ear. Kriesel argues that the state failed to show permanent
disfigurement because it did not provide evidence about the victim’s injuries at any point
after the incident.
An investigator testified that he collected a piece of human ear that was “about an
inch-and-a-half to 2-inches long and about a quarter of an inch wide.” He also testified
that this piece of ear was still in collection at the police department on the date of trial. The
victim complained multiple ti mes to the EMT that her ear hurt. The medical records
indicate “bit . . . left ear” in the history of present illness, and that doctors used a skin graft
from the victim’s right thigh for her ear and face. The state also submitted several pictures

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of the victim’s injuries. This evidence—particularly the evidence of the piece of ear still
in collection—is sufficient to permit the jury to find that the victim suffered permanent
disfigurement.
Domestic assault
Kriesel also argues that the state prov ided insufficient evid ence to support his
domestic-assault conviction because there was no evidence that he was married to or lived
with the victim.
A person who “intentionally inf licts or attempts to inf lict bodily harm” against “a
family or household member” is guilty of domestic assault. Minn. Stat. § 609.2242, subd.
1(2) (2018). Family and household members include spouses and people who live together.
Minn. Stat. § 518B.01, subd. 2(b)(1), (4) (2018).
At trial, the only mentio n of Kriesel’s marriage with the victim came from the
prosecutor. The state argues that Kriesel’s argument “overlooks the fact that . . . Kriesel’s
counsel acknowledged . . . Kriesel’s relationship with [the victim] before trial began.” The
state is referring to a comment that Kriesel’s attorney made during a hearing on the state’s
motion to amend the complaint. He stated, “I don’t think that there was really any dispute
that . . . Kriesel and [the vi ctim] are husband and wife.” Bu t the parties did not stipulate
on this element of the charge, and the jury was instructed that, in order to find Kriesel guilty
of domestic assault, it had to find that th e victim was a family or household member.
Because the state provided no evidence for this element, we reverse Kriesel’s conviction
for felony domestic assault.

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Lesser-included offense
The district court entered judgments of conviction for first-degree assault and the
lesser-included offense of thir d-degree assault. “Minneso ta law generally prohibits a
person from being punished twice for conduct that is part of the same behavioral incident,
with certain exceptions.” State v. Holmes , 778 N.W.2d 336, 339 (Minn. 2010). If a
defendant is convicted of multiple crimes including a lesser degree of the same crime, the
district court should adjudicate and impose a sentence on only one count. State v.
LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
Although not raised by the parties, “it is the responsibility of appellate courts to
decide cases in accordance with law, and that responsibility is not to be diluted by counsel’s
oversights, lack of research, failure to specif y issues or to cite relevant authorities.” See
State v. Hannuksela , 452 N.W.2d 668, 673 n.7 (Minn. 1990) (quotation omitted). The
district court should have ad judicated only Kriesel’s convic tion for first-degree assault
because third-degree assault is a lesser-included offense, a nd the state alleged only one
instance of assault. We, therefore, revers e and remand for correction of the warrant of
commitment.
Pro se arguments
Kriesel makes three pro se arguments. Fi rst, he argues that his due-process rights
were violated because two jurors showed bias. The first juro r is J.B., which we analyzed
earlier in this opinion. He argues that a second juror was biased because the juror’s
daughter-in-law was the victim of domestic vi olence. Defense couns el did not move to
strike this juror. Arguments that are not rais ed and considered by the district court are

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forfeited on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Further, by
simply inferring that “[i]t se ems very unlikely any person c ould be impartial in such a
situation,” Kriesel has not met his burden in establishing bias.
Kriesel next argues that the prosecutor committed impermissible burden shifting in
his closing argument. But the most compelling portion of the transcript that Kriesel cites
came from a discussion outside the presence of the jury. The other sections of the transcript
do not show any impermissible burden shifting.
Finally, Kriesel argues that “great bodily harm” is unconstitutionally vague. But
this court has concluded that the statute is not unconstitutionally vague. See State v. Currie,
400 N.W.2d 361, 365-66 (Minn. App. 1987), review denied (Minn. 1987). Kriesel’s pro
se arguments are without merit.
Affirmed in part, reversed in part, and remanded.