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This opinion will be unpublished and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
A20-0385

State of Minnesota,
Respondent,

vs.

Stephen Frenz,
Appellant.

Filed December 21, 2020
Affirmed
Kalitowski, Judge*

Hennepin County District Court
File No. 27-CR-19-77

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Robert D. Richman, St. Louis Park, Minnesota (for appellant)

Considered and decided by Hooten, Pres iding Judge; Slieter, Judge; and Kalitowski,
Judge.

* Retired judge of the Minnesota Court of Ap peals, 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
KALITOWSKI, Judge
Appellant challenges his perjury conviction, arguing that (1) in sufficient evidence
supports the conviction because the state fail ed to prove he was u nder oath, and (2) the
district court abused its discretion in instructing the jury as to the oath element. We affirm.
FACTS
Appellant Stephen Fr enz owned and managed multiple apartment buildings in
Minneapolis. In early 2016, a group of te nants in one of the buildings formed a
neighborhood organization that initiated a tenants’ remedies action against Frenz and two
of his companies. Frenz moved for summary judgment, arguing that the organization did
not have standing because it lacked authorization from a majority of occupied units in the
building. He supported the motion with a not arized affidavit, in which he, “being duly
sworn,” stated:
1. I am a Defendant in the above-captioned matter. I have
personal knowledge of the facts attested to in this Affidavit.

2. At the time the above-captioned Complaint was filed on
January 20, 2016, eleven units were occupied at the Property[.]

3. As of today, only ten units are occupied at the Property
given that [F.D.] an d [M.I.] moved out of the Property on
February 29, 2016.

4. [M.A.-R.] moved out of the Property on November 2,
2015.

The notary’s signature indicated that the affi davit was “[s]ubscribed and sworn to before
[him].” The organization presented evidence calling the veracity of the affidavit into doubt,

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and Frenz withdrew it. He substituted a vers ion with paragraphs 2 and 3 redacted and
withdrew his standing challenge.
Respondent State of Minnesota subsequently charged Frenz with perjury. At trial,
the state presented evidence that Frenz knew his sworn affidavit contained false statements
material to the tenants’ remedies action. Frenz countered with the notary’s testimony that
he would not have administered Frenz an oath because it was not his practice to do so. The
jury found Frenz guilty. Frenz appeals.
D E C I S I O N
I. Sufficient evidence supports Frenz’s perjury conviction.
When a defendant challenges the sufficiency of the evidence to sustain a conviction,
this court analyzes the record “to determine whether the evidence, when viewed in a light
most favorable to the convicti on, was sufficient to permit the jurors to reach the verdict
which they did.” State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005) (quoting State v.
Fields, 679 N.W.2d 341, 348 (Minn. 2004)). We assume the jury believed the state’s
witnesses and disbelieved any contrary evidence. State v. Olhausen, 681 N.W.2d 21, 25
(Minn. 2004).
Perjury is defined, in relevant part, as ma king “a false material statement” that the
declarant did “not believ[e] . . . to be true” in “any writing which is required or authorized
by law to be under oath.” Minn. Stat. § 609.48, subd. 1 (2014). The state must prove “that
a formal oath [was] administered by a court-designated individual.” State v. Mertz , 801
N.W.2d 219, 222 (Minn. App. 2011). But the oath need not take any particular form so
long as the party taking the oath “go[es] through some . . . formality” indicating that he

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“consciously asserts or affirms the truth of the fact to which he gives testimony.” State v.
Day, 121 N.W. 611, 613 (Minn. 1909); see Minn. Stat. § 609.48, subd. 2 (2014)
(prohibiting perjury defense that “the oath or affirmation was taken or administered in an
irregular manner”). An oath may be in writing, with a notary’s signature and official stamp
certifying that the document was “[s]ubscribed and sworn.” Minn. Stat. § 358.09 (2014).
When the signatures on an affi davit are proved “it is presum ed that it was actually sworn
to by the person whose signature is subscrib ed as affiant,” although the presumption may
be rebutted by contrary evidence. State v. Madigan, 59 N.W. 490, 492 (Minn. 1894).
Frenz argues that the evidence cannot support a finding that he was under oath when
he signed the affidavit because the notary gave uncontradicted testimony that he did not
administer an oath. But the jury was not obligated to accept that testimony. The jury
determines the weight and credibility of each witness’s testimony. State v. Bliss , 457
N.W.2d 385, 390 (Minn. 1990). It is “not required to accept uncontradicted testimony if
the surrounding facts and circumstances a fford reasonable grounds for doubting its
credibility.” Am. Bank of St. Paul v. City of Minneapolis , 802 N.W.2d 781, 789 (Minn.
App. 2011) (quotation omitted). The jury had ample reason to doubt the notary’s
testimony.
The notary acknowledged during his testim ony that he worked for Frenz for 15
years; their long-term relationship provided him an incentive to give testimony favorable
to Frenz’s defense. And his denial that he administered Frenz an oath is inconsistent with
the other evidence. Both the notary and Frenz indicated on the affidavit that Frenz was
“sworn.” Frenz is a frequent litigant who has similarly signed ma ny other affidavits,

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indicating that he understood he was consciously asserting the truth of the statements
attested to in the affidavit. That assertion that he was “sworn” and attesting to the truth of
the affidavit’s contents is further demonstrat ed by his submission of the affidavit to the
court as admissible evidence in support of his motion for summary judgment. See Minn.
R. Civ. P. 56.03(d) (providing that an affidavit supporting summary judgment set out facts
“that would be admissible in evidence”); Minn. R. Evid. 603 (requiring that every witness
declare he will “testify truthf ully”). On this record, we conclude sufficient evidence
supports the jury’s determination that Frenz was under oath when he knowingly made false
material statements in his affidavit.
II. The district court did not abuse its discretion in instructing the jury.

This court reviews a district court’s jury instructions for an abuse of discretion.
State v. Huber , 877 N.W.2d 519, 522 (Mi nn. 2016). We consider the instructions as a
whole to determine whether they fairly and adequately explain the law, without misstating
the law. Id.
Frenz argues that the district court misstat ed the law because it failed to inform the
jury that a formal oath is required. We disagree. The district court told the jury, consistent
with the standardized instructions for perjury, that the state was required to prove that “the
defendant made the alleged statement under oa th” and “the defendant knew that he was
under oath.” See 10A Minnesota Practice , CRIMJIG 22.04 (2015). The court also
provided the jury guid ance in determining whether the st ate proved these elements. It
explained that “sworn means to be placed under oath.” See Minn. R. Gen. Prac. 15(a)
(requiring that an affidavit be “signed, sworn, and notarized”). It recited the standard form

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of an oath that a notary is expected to administer, see Minn. Stat. § 358.07(10) (2014), but
also explained that a written oath may be indi cated by the notary’s inclusion of particular
language on the affidavit, see Minn. Stat. § 358.09. And it recited the principle that an
irregular oath is not a defense to perjury, see Minn. Stat. § 609.48, subd. 2, without
implying that the absence of an oath could be overlooked as a mere irregularity. These
instructions accurately explain the law regarding affidavits and oaths.
Frenz also contends that the district c ourt abused its discretion by declining to
instruct the jury that “an oath is given to awaken the witness’s conscience and impress his
mind with the duty to tell the truth.” Such an instruction would have been consistent with
the language of Minn. R. Evid. 603. But neither that rule nor any other authority requires
the district court to provide the jury that specific language. The district court did not abuse
its discretion by employing alternative language that amply conveyed the role of an oath
in committing the affiant to telling the truth. Based on our careful review of the record, we
conclude the district court’s instructions fairly and accurately explained the law of perjury
in a manner appropriate for the jury to weigh the charge before it.
Affirmed.