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This opinion is nonprecedential except as provided by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
A20-0762

State of Minnesota,
Respondent,

vs.

Chase Michael Schwendeman,
Appellant.

Filed June 28, 2021
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Morrison County District Court
File No. 49-CR-19-369

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
The state charged appellant Chase Schwe ndeman with two counts of third-degree
assault, one count of domestic assault, and one count of malicious punishment of the
eleven-month-old son of his girlfriend after the baby became unconscious, lethargic, and

2
covered with multiple mysterious bruises in locations atypical for his age. A jury found
Schwendeman guilty of malici ous punishment, but acquitted him of the third-degree
assault and domestic abuse charges. Schwendeman contends his conviction was improper
due to the lack of a unanim ity instruction and that evid ence was insufficient to prove
malicious punishment. He also alleges, based on a letter from an anonymous juror claiming
outside interference in jury deliberations, th at the district court improperly denied his
request for a Schwartz hearing.1 Because the crime of malicious punishment does not
require a unanimity instruction and the evidence was sufficient, we affirm in part. But
because a juror raised an ade quate showing of juror misconduc t, we reverse in part and
remand for an evidentiary h earing to determine if the juror-alleged misconduct was
prejudicial.
FACTS
Appellant Chase Schwendeman and I.K. (m other) met and began dating in 2018.
Each had a child from a previous relationship. At the time of the incident, Schwendeman
had a daughter (daughter) who was nine years old and mother had a son (baby) who was
eleven months old. Several months before the incident, Schwendeman moved in with
mother, who lived with her parents, her sist er, and her sister’s two children. Due to
overcrowding, Schwendeman and mother decided to move into the unfinished basement of
the house.

1 Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. 1960).

3
The basement had no walls and only plyw ood for flooring. Schwendeman and
mother hung fabric to separate the basement into rooms. The basement was hot due to an
exposed furnace and wood-burni ng stove, and despite having a kitchene tte there was no
oven or running water. They would go upstairs to bathe and sometimes to cook and eat.
Daughter only stayed with the couple on weekends.
Schwendeman assumed primary caregivi ng responsibilities for baby starting in
November 2018 when his seasonal tree-trimming job ended. Around this time, other adults
in the home started to notice bruises on baby’s body, primarily on hi s forehead. Mother
attributed these bruises to baby ’s head butting the bars of hi s crib, as well as other minor
isolated falls. During this period, baby also started to struggle with eating. Baby would
vomit after eating and was gradually losing we ight. This continued despite mother’s
different attempts of feeding, including shifting to solid foods and back to only formula.
The Incident
Schwendeman and mother agreed that baby was “his normal, happy-go-lucky self”
the night before January 2, 2019. Schwende man, suffering from a headache, went to bed
early. According to mother, baby woke up several times in the night, where he was spotted
standing in his crib, which was not unusual for him. In Schwendeman’s recollection of the
morning of January 2, Schwendeman woke up at about 6:00 a.m. and went outside for a
cigarette. Mother—several months pregnant —stayed in bed due to morning sickness.
Schwendeman came back inside and, after noticing that baby was awake, took him out of
his crib, setting him on the floor. While Schwendeman was turned away from baby to feed
the cats, he heard an “out of the ordinary” th ud and turned back to baby. Baby was face

4
down on the floor—barely conscious yet hyperventilating. He was not crying, but instead
was pale and limp, and had a bleeding lip. Schwendeman called to mother, and they
quickly wrapped baby in a blanket and drove to the hospital.
Upon arrival at the hospital, the trea ting nurse performed emergency care. She
noted that baby had a “really floppy tone.” She also noticed bruises on his forehead, his
bloody lip, and his lack of reacting to his surroundings, including when multiple nurses
tried to insert an IV. When the nurse removed baby’s cl othing, she noticed additional
bruises on the back of his head, on his inner arm, on his thigh, on the back of his left hand,
and in his left ear. Concerned that baby’s injuries, his falling heart rate, and low core body
temperature were indicative of a head injury , a CT scan was ordered. But because the
hospital’s CT scanner was malfunctioning, ba by was airlifted to Children’s Minnesota
Hospital.
After baby arrived at Children’s Minnes ota Hospital, staff sought a consultation
from a pediatrician with expertise in abus e and trauma. Some of the bruises were
considered normal for a child but, according to the pediatrician, othe rs were concerning,
including the bruises on baby’s scalp, shoulder, under the armpit, surrounding his eyes and
ears, and on the front and back of his arms.
2 The hospital also requested a gastroenterology
consult after unusual findings on baby’s CT scan. The gastro enterologist discovered that

2 An X-ray showed that baby had a wrist fracture that was healing, but the pediatrician said
this type of injury was normal for mobile children, heals quickly, and is often difficult for
a caretaker to notice.

5
baby had a rare duodenal webbing, a congenital defect that prevented food from being fully
digested, and was the likely explanation for baby’s vomiting and trouble eating.
The Investigation
After returning home from the hospital the following week, two investigators—one
from Morrison County Social Services and one from the sheriff’s office—interviewed
Schwendeman and mother. They asked questions about Schwendeman’s knowledge of the
bruises and his views on corporal punishment . Later, Schwendeman and mother went to
the sheriff’s office after remembering a fall at a friend’s house to explain that it was likely
the source of baby’s wrist in jury. Throughout th e interviews, mother maintained that
Schwendeman was not abusive to baby.
Investigators also interviewed daughter. In that interview, daughter said that
Schwendeman would slap baby on the “butt and the lips” and make baby cry. She
explained that the lip slaps were the reason why “his lips are always numb,” and that she
witnessed Schwendeman slap baby’s lips “five or seven” times. Daughter also noted slaps
from Schwendeman to baby’s cheek and forehead. According to daughter, the slaps would
happen when Schwendeman was angry or frustrated, either because baby was not learning
how to walk or stand properly or when baby woke up in the middle of the night. Daughter
also heard Schwendeman say that he needed a break from baby or wished baby “could go
away.”
The state charged Schwendeman with thir d-degree assault (past pattern of child
abuse), third-degree assault (victim under four), domestic abuse, and malicious punishment
of a child. Minn. Stat. §§ 609.223, subds. 2- 3, .2242, subd. 4, .377, subds. 1-4 (2018).

6
The Trial
A six-day jury trial was held in D ecember 2019. Witne sses included mother,
daughter, Schwendeman, the pediatrician, and the gastroenterologist.
Mother testified that she did not agr ee with some of Schwendeman’s parenting
styles, particularly how he would “disciplin e” baby. She explained that Schwendeman
would “tap” baby’s hand as a way to redirect him from going places he should not, or if
baby was reaching for somethin g like a cell phone. But, sh e noted that she sometimes
participated, and baby did no t cry when his hand was “ta pped.” According to mother,
Schwendeman also “tapped” baby on the lips to get his attention once that was hard enough
to open up a healing wound and start bleeding. She described both the actions on the lips
and hands as lighter than a sl ap. Less than a month before the incident, mother heard
Schwendeman spank baby—which was loud enough to be heard upstairs by her parents—
and asked him not to spank baby again. She described Schwendeman as someone who
would get “frustrated,” not only when baby would not listen, but also when hearing noises
from the rest of the house. His remedy was to go outside and have a cigarette.
At trial, daughter’s testimony was more reserved compared to her recorded
interview, which was introduced at trial. In testimony, sh e explained that she watched
Schwendeman “tap” baby on the cheek to teach him “how to act normal.” Daughter said
that Schwendeman would yell when he was angry and say things “he doesn’t mean,” like
“I hate you,” directed at baby. When asked if Schwendeman “likes babies,” she answered
that he did “a little bit but not too much,” because he would get frustrated with them.

7
Schwendeman also testified. He explained that once baby was large enough to pull
himself up to furniture, he would frequently fall on his head. He also referred to other
instances where baby had been noticeably, but not majorly, hurt: being strapped in too hard
in a friend’s spare bassinet, falling down the stairs at a friend’s house that likely explained
the fractured wrist, and tumbling after da ughter pulled a blanket from under baby.
Schwendeman agreed that he used corporal punishment for his daughter, but reiterated that
other than the one spank and “lip tap,” there were no other concerning incidents with his
treatment of baby. As for daughter’s comments that he “hates babies,” he testified that
children sometimes “overdrama tize” situations. Schwende man maintained that on the
morning of January 2, he was looking away and feeding the cats when he heard a thud and
saw baby had fallen.
The pediatrician testified that the cause of baby’s injuries as described by
Schwendeman did not explain baby’s bruises. He noted that the bruises near his scalp and
eyes were rare in babies because it is not often how they fall. He was particularly concerned
with the injuries around baby’s ears, describing them as “a very unusual place for injury,”
and an area “where injury tends to be inf licted.” Another unusual injury was a torn
frenulum, which is the soft tissue that runs between the lips and the gums. The frenulum,
he testified, was not torn by teething. He added that the bruising around baby’s belly, arms,
and armpits were also atypical injuries. The pediatrician summed up baby as being “a child
who has a lot of bruises in a lot of concerning areas.”
The gastroenterologist expl ained that baby’s rare congenital abnormality, which
was effectively blocking his intestine to the size of a pinhole, meant that the contents in his

8
stomach were unable to exit the stomach and intestine properly. In turn, this would create
a buildup of solid food in his stomach, cause him to vomit and, over time, lose weight from
malnutrition. The gastroenterologist was also asked about other possible side effects of
malnutrition caused by the abnormality, including a loss of energy, but she did not testify
to whether baby’s defect caused him to fall or explained the bruising on his body.
In closing arguments, both parties agreed that baby experienced a neurological event
on January 2, but disagreed on whether it wa s attributed to Schwendeman. The state
emphasized that Schwendeman was the only person present and the only witness to baby’s
injuries that day. The state also highlight ed statements from the pediatrician about the
atypical and unusual bruising and injuries that did not fit Schwendeman’s explanation of
the morning. And the prosecutor detailed acts that occurred before January 2, like spanks,
slaps, and strikes, to explain the elements of the domestic abuse and third-degree assault
charges. Schwendeman countered by arguing that the pediatrician insufficiently diagnosed
baby, including how he missed the rare stomach disorder and did not have an explanation
for baby’s neurological event. Schwendema n further emphasized that baby had trouble
digesting and was experiencing severe wei ght loss, and that the evidence neither
sufficiently explained baby’s neurological event nor supported the domestic abuse,
third-degree assault, and malicious punishment charges.
Jury Deliberations
Jury deliberations began on the morning of December 23, 2019. Less than an hour
later, the jury sent a note to the judge asking for clarification of Schwendeman’s testimony.

9
The judge stated that the answer would be provided to the jury by the “jury bailiff.”3 The
judge told the parties that the court would verbally direct the jury bailiff to “tell them they
need to refer back to the jury instructions.”
Later that afternoon, the jury sent a se cond note stating, “We feel we are at an
impasse.” Without guidance on what the jury was asking, the parties and the judge agreed
that the proper course was to instruct them to continue deliberating. The judge directed the
jury to “feel free to communicate with the bailiff as you have previously done.”
An hour and a half later, the jury sent a third note, stating, “Your Honor, we have a
‘hold-out.’ We have gone over the rules, reviewed the evidence, placed emotions ‘off the
table,’ made charts, diagrams, etc. It is [sic] gotten very heated. Advice?” Schwendeman
then moved for a mistrial. The prosecutor did not object. The court and the parties agreed
it would be proper to call in the jury and ask the foreperson if “further deliberations would
be beneficial or productive.” If the foreperson said no, the court said it would grant the
motion for a mistrial. The jury bailiff left the room, and upon return stated that the
foreperson asked for “a few more minutes.”
Shortly after that, the jury acquitted Schw endeman of the domestic abuse and two
third-degree assault charges, and returned a guilty verdict for malicious punishment.
Three days later, a juror sent a written note to the district court. The note stated: “I
have some concerns about the jury deliberations in the Schwendeman trial. I wanted to do

3 The official title of this individual is “deputy administrator.”

10
you the courtesy of talking to you about it first.” The court notified the parties of the juror’s
note, and Schwendeman moved for a new trial and a Schwartz hearing.
On January 15, 2020, the court heard arguments on Schwendeman’s motions. The
state opposed a Schwartz hearing. The court denied Schwendeman’s motions, finding that
there were “no allegations of jury misconduct,” and that the concerns were otherwise vague
and speculative.
But the juror once again contacted the co urt in February, this time describing the
jury deliberations in greater detail. According to his letter, the instructions from the judge
through the bailiff were only relayed to the foreperson, who then told the rest of the room.
In response to the third question to the judge, the bailiff allegedly told the foreperson that
the instruction from the judge was one word: “compromise.” The word was written on the
whiteboard, and the juror w ho wrote the letter—the last holdout on the malicious
punishment charge—was repeatedly asked to compromise and change his vote so they
could be done. The letter noted that the jury deliberations were the day before Christmas
Eve, and that “nobody wanted to take this home with them ov er Christmas.” In light of
this letter, Schwendeman again argued for a Schwartz hearing, but the district court denied
the request.
The district court entered the convictio n for malicious punishment, stayed the
imposition of the sentence, a nd placed Schwendeman on superv ised probation for five
years, including 60 days in jail.
Schwendeman appeals.

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DECISION
I. A specific-unanimity inst ruction was not required.

First, Schwendeman argues that the district court failed to give a specific-unanimity
instruction to the jury for the crime of malicious punishment. Because Schwendeman did
not request a specific-unanimity instruction at trial, we review the jury instructions for plain
error. State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn. 2001). Under the plain-error
test, we examine the instructions to determin e whether there was (1) an error; (2) that
was plain; and (3) that affected appellant’s substantial rights. State v. Gunderson,
812 N.W.2d 156, 159 (Minn. App. 2012). If any requirement of the plain-error test is not
satisfied, we do not need to address the others. State v. Lilienthal, 889 N.W.2d 780, 785
(Minn. 2017). Appellants bear a heavy burde n to show that an error affected their
substantial rights, which is sa tisfied if the error was prejudi cial and affected the outcome
of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).
We begin our plain-error analysis by ex amining the law governing the unanimity
requirement. A jury’s verdict must be unanim ous in all criminal ca ses, meaning the jury
must agree that the state prove d each element of the offense. Minn. R. Crim. P. 26.01,
subd. 1(5); State v. Pendleton, 725 N.W.2d 717, 730-31 (Minn. 2007). But, while “the jury
must unanimously agree on which acts the defendant committed if each act itself
constitutes an element of the crime,” the jury is not required to unanimously agree on
“alternative means or ways in wh ich the crime can be committed.” State v. Stempf ,
627 N.W.2d 352, 354-55 (Minn. App. 2001) (quotation omitted).

12
Error
With that legal background in mind, we consider whether the district court plainly
erred when it instructed the jury. An error is plain if it “contravenes case law, a rule, or a
standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation
omitted). An alleged error does not contrave ne caselaw unless the issue is “conclusively
resolved.” State v. Jones , 753 N.W.2d 677, 689 (Minn. 2008). When reviewing jury
instructions, we recognize that “district cour ts are entitled to cons iderable latitude when
selecting language for jury instructions.” State v. Carridine , 812 N.W.2d 130, 144
(Minn. 2012). But a jury instruction cannot materially misstate the law. Id.
Looking next at the statute, the crime of malicious punishment of a child is defined
as “an intentional act or a series of intentional acts with respect to a child,” committed by
“a parent, legal guardian, or caretaker,” th at “evidences unreasonable force or cruel
discipline that is excessive under the circum stances.” Minn. Stat. § 609.377, subd. 1
(2018). Malicious punishment is either a gross misdemeanor or a felony, depending upon
the offender’s record of prior offenses, the nature and extent of any injury inflicted, and the
age of the child. Id., subds. 2–6 (2018). When the victim is under the age of four and the
malicious punishment causes bodily harm to th e head, eyes, or neck, or otherwise causes
multiple bruises to the body, the offense is a felony. Id., subd. 4.

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Here, the district court instructed the jury that in order to convict Schwendeman of
felony malicious punishment of a child, they would have to find beyond a reasonable doubt
that:
 Schwendeman “intentionally committed an act or series of acts,” on or about
January 2, 2019, that invo lved “unreasonable force or cruel discipline that is
excessive under the circumstances”;
 Schwendeman was baby’s caretaker; and
 Baby was a minor.
The court also stated that each juror had to agree on the guilty verdicts and that they
had to be unanimous. These instructions a lign with the crime of malicious punishment
under state statute. Id.
To convince us otherwise, Schwendeman argues that the jury had to—and should
have been instructed to—unanimously determine which specific acts caused the malicious
punishment. He asserts that the jury needed to decide which specific act presented—either
the spank loud enough to be heard upstairs, or the “lip tap” that caused bleeding—pointed
to malicious punishment. But this argumen t misinterprets the basis of the malicious
punishment charge. Those separate acts were presented to prove an element of third-degree
assault, but the malicious punishment charge was about an act or acts committed on the
morning of January 2 . Neither the spank nor the “lip tap” witnessed by baby’s family
members occurred on January 2.
Next, Schwendeman contends that Stempf stands for the proposition that a jury must
unanimously agree on which acts Schwendeman committed if each act itself constitutes an

14
element of the crime. 627 N.W.2d at 355. Stempf involved a case where the state presented
two different factual scenarios as alternatives that the jury needed to decide but in error
failed to determine, triggering a retrial. Id. at 357, 359. This is not an analogous situation.
Here, the state presented onl y one factual scenario—tha t Schwendeman maliciously
punished baby through an unwitnessed act in the early morning of January 2.
Therefore, because the malicious punishment charge was based on Schwendeman’s
actions the morning of January 2, not the previous episodes of “discipline,” the court did
not contravene law or commit legal error when it instructed the jury on the elements of
malicious punishment. And be cause the district court did not err, we need not address
Schwendeman’s argument that the error was pl ain or affected his substantial rights.
Lilienthal, 889 N.W.2d at 785.
II. Sufficient evidence su pports the malicious punishment conviction.
Schwendeman further asserts that the evid ence at trial was not sufficient to prove
malicious punishment beyond a reasonable doubt. Specifica lly, he contends that the
circumstances proved support a reasonable infe rence that baby’s rare gastrointestinal
condition caused him to fall on January 2.
To evaluate the sufficiency of the evidence, appellate courts “carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them”
would allow the jury to reasonably conclu de that the defendant was guilty beyond a
reasonable doubt of the convicted offense. State v. Waiters , 929 N.W.2d 895, 900
(Minn. 2019) (quotation omitted). But we review the evidence in the light most favorable

15
to the conviction and must assume the jury disbelieved any evidence contrary to the verdict.
State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012).
When the state relies en tirely on circumstantial evidence—as it does here—we
apply a two-step test to evaluate the sufficiency of the evidence. 4 State v. Moore ,
846 N.W.2d 83, 88 (Minn. 2014). First, we identify the circumstances proved, and
disregard any evidence inconsistent with the verdict. State v. Harris, 895 N.W.2d 592, 600
(Minn. 2017). Second, we examine reasonabl e inferences that might be drawn from the
circumstances proved. State v. Bahtuoh, 840 N.W.2d 804, 810-11 (Minn. 2013). We will
not overturn a conviction based on circumstantial evidence on the basis of mere conjecture.
State v. Tscheu, 758 N.W.2d 849, 859 (Minn. 2008).
We accordingly begin the anal ysis by identifying the circ umstances that the state
proved:
 Baby was in normal health when he went to bed;
 Schwendeman had a history of being frustrated with baby, including when baby
would wake him up;
 Baby woke up several times in the night but appeared normal;

4 We apply a heightened standa rd of review when the state’ s evidence on one or more
elements of a charged offense consists solely of circumstantial evidence. State v. Porte,
832 N.W.2d 303, 309 (Minn. App. 2013). Circumstantial evidence is “evidence from
which the factfinder can infer whether the facts in dispute existed or did not exist.”
State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). Direct evidence,
by contrast, is evidence that is “based on personal knowledge or obs ervation and that, if
true, proves a fact without inference or presumption.” Id. (quotation omitted).

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 Several family members witnessed Sc hwendeman spanking and striking baby
on multiple parts of his body, including his lip and forehead, before the incident;
 Schwendeman woke up at around 6:00 a.m. on the morning of January 2;
 Schwendeman was the only person present after taking baby out of the crib that
morning;
 Baby became limp and unresponsive shortly thereafter;
 The treating nurses and the pediatrician noted baby bleeding from his lip,
multiple bruises on his forehead and other parts of his body; and
 The treating nurse and the pediatrician separately agreed that Schwendeman’s
story of baby falling on the morning of January 2 did not account for all of baby’s
injuries incurred on that day.
Having identified the circumstances proved , we next determine whether, when
viewed as a whole, they permit a reasonable inference of guilt and are inconsistent with
any rational hypothesis other than guilt. Bahtuoh, 840 N.W.2d at 810. Here, the reasonable
inference from the circumstance s proven is that Schwende man, who had a history of
punishment and frustration toward baby, committed some act that caused baby’s
unconsciousness. And, baby’s sustained inju ries, including abnormal bruising, were not
due to a fall or sudden unconsciousness connected to his rare congenital digestion issue.
To convince us otherwise, Schwendeman points to his own theory based on the
inference of what was proved. Schwendeman contends that the baby’s rare gastrointestinal
condition, undiagnosed until after the events of January 2, caused him to fall and become

17
unconscious. But this is only a reasonable infe rence if one ignores several proved facts.
The medical experts determined that a simple fall would not explain baby’s injuries, and
that the unconsciousness he suffered on Janu ary 2 was due to a neurological injury, not
gastrointestinal issues. The gastroenterologist did not come close to concluding in her
testimony that baby’s congenital issue could have led to a neurological issue or even a fall.
The gastroenterologist only testified that the congenital issue explained baby’s weight loss.
Nor did the state try to prove that baby’s we ight loss and eating issues were caused by
abuse. Without testimony tying the congenital defect to the explanation of the previous
atypical bruises or the injuries incurred the morning of January 2, this theory does not rise
above the level of conjecture.
Therefore, because the state’ s inference is consistent with the elements of malicious
punishment, and there is no other rational explanation in light of the circumstances proved,
the evidence was sufficient to support a conviction of malicious punishment.
III. The district court erred in denying a Schwartz hearing due to juror misconduct.

Finally, Schwendeman argues that this pane l should remand for the district court to
hold a Schwartz hearing in light of evidence from a juror of improper contact with the jury.
Where there is evidence of jury miscon duct, the district court may, in its
discretion, order a hearing. State v. Church, 577 N.W.2d 715, 721 (Minn. 1998); Schwartz,
104 N.W.2d at 303. Traditionally, jurors may not testify to any ma tters or statements
occurring during deliberations or to their ef fect upon the jurors’ minds or emotions in
reaching a verdict. Minn. R. Evid. 606(b); State v. Kelley , 517 N.W.2d 905, 910
(Minn. 1994). However, jurors may testif y to whether (1) extr aneous prejudicial

18
information was improperly brought to their attention; (2) any outside influence was
improperly brought to bear upon any juror; or (3) any threats of violence or violent acts
were brought to bear on jurors, from any source, to reach a verdict. Minn. R. Evid. 606(b).
A juror’s second thoughts about a verdict after trial ordinarily do not allow a new trial.
State v. Fitzgerald , 382 N.W.2d 892, 896 (Minn. App. 1986), review denied (Minn.
Apr. 24, 1986).
Before a Schwartz hearing must be ordered, the defendant must establish a prima
facie case of jury miscondu ct, evidence which “standing alone and unchallenged would
warrant the conclusion of jury misconduct.” State v. Starkey , 516 N.W.2d 918, 928
(Minn. 1994) (quotation omitte d). It is not an abuse of discretion to deny a Schwartz
hearing where the basis for seeking the hearing is “wholly speculative” and would intrude
on the jury’s deliberative process. State v. Martin , 614 N.W.2d 214, 226 (Minn. 2000).
The moving party has the burden of demons trating sufficient facts suggesting jury
misconduct to justify a hearing. Kelley, 517 N.W.2d at 910.
Here, in the second letter from the juro r, the accusations of juror misconduct are
apparent. Not only is there a question of wh ere the “compromise” ju ry instruction even
came from—considering the court did not use the word “compromise” on the record—it is
also clear from the letter that the “compromise” instruction may have affected the results
of the vote. “Compromise” was written on the jury room whiteboard, the letter stated, and
the remaining hold-out juror wa s repeatedly asked to change his vote. These facts were
not “wholly speculative.” If someone other than the court is giving instructions to the jury,

19
particularly if it is meant to speed up procee dings the day before Christmas Eve, that is a
prima facie showing worthy of a Schwartz hearing.
Because Schwendeman established a pr ima facie showing of juror misconduct
based on the juror’s letter, the dist rict court erred in not holding a Schwartz hearing.
Starkey, 516 N.W.2d at 928.
In sum, because the district court’s jury instructions did not require a unanimity
instruction, and there is no other rational explanation for baby’s unconsciousness and
injuries in light of the circum stances proved, we affirm in pa rt. But, because the district
court erred in not holding a Schwartz hearing, we remand for the limited purpose of
conducting a Schwartz hearing to determine what was said to the jury by whom, and if so,
whether the instruction to compromise was prejudicial.
Affirmed in part, reversed in part, and remanded.