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This opinion is nonprecedential except as provided by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
A20-1532

State of Minnesota,
Respondent,

vs.

Cayla Jean Sandven,
Appellant.

Filed November 1, 2021
Affirmed
Bratvold, Judge

Kandiyohi County District Court
File No. 34-CR-19-211

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

Shane D. Baker, Kandiyohi County Attorney, Julianna Passe, Assistant County Attorney,
Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from a final judgment of conviction for violating a harassment
restraining order (HRO), appellant argues the evidence was insufficient to prove she knew
delivering a letter to her sister’s home would violate the HRO, the district court plainly
2
erred by omitting a mens rea element from the jury instructions, and the prosecutor
committed misconduct in closing arguments. Because the evidence is sufficient to sustain
appellant’s conviction, and because we determine the alleged errors in the jury instructions
and in the prosecuting attorney’s rebuttal argument fail to warrant a new trial, we affirm.
FACTS
Respondent State of Minnesota charged appellant Cayla Jean Sandven with one
count of violating a harassment restraining order under Minn. Stat. § 609.748, subd. 6(b)
(2018). The following summarizes the evidence presented during Sandven’s jury trial.
In April 2017, a district court conducted an evidentiary hearing and issued an HRO
against Sandven and on behalf of C.C. (sister). The HRO included factual findings that
Sandven “engaged in harassment” of sister by making “contin[uous ] and harassing and
profane texts” and calling sister “abusive and profane names.” The HRO also stated
Sandven’s harassment “has or is intended to have a substantial adverse effect on [sister’s]
safety, security, or privacy.”
The HRO provided that Sandven have “no direct or indirect contact with [sister],
including any visits to or phone calls to [sister], contact via electronic means such as email
or social networking sites.” The HRO stated that violation of this order “may be treated as
a misdemeanor, gross misdemeanor, or felony” level offense. The HRO also provided it
“shall remain in effect until March 17, 2019.” Before her jury trial, Sandven stipulated she
“knew of” the HRO at the time of the alleged violation.
In January 2019, sister reported a violation of the HRO to the Kandiyohi sheriff’s
office. Sister testified that Sandven “wrote up and dropped off [a letter] at the residence
3
where [sister] was living” with her parents in New London. 1 The letter, received as a trial
exhibit, was dated January 23, 2019, addressed to sister, signed by Sandven, and notarized.
The letter asserted sister’s child “verbally and physically abused” Sandven’s child while
they were at the New London family home and on the school bus. The letter also stated
sister had been negligent “in handling the situations of abuse,” and “a few incidents [were]
reported to the Kandiyohi Sherriff’s Department,” which did not provide “further
assistance to resolve [the] issues.” Sister was not at home when Sandven dropped off the
letter. When sister returned home, she saw the letter and “called the Sheriff’s Office.”
A deputy went to Sandven’s home and spoke with her for “about 20 minutes.”
Sandven had a copy of the letter, which she showed to the deputy and said was hers. The
deputy testified Sandven said, “she left [the letter] at . . . her parents’ residence.” Sandven
“appeared to be upset” and “kind of referring to things being unfair . . . at their parents’
house.” Sandven told the deputy that the HRO “was still valid.” In response to questions,
the deputy agreed Sandven said she “did it”; the deputy added that Sandven said she “didn’t
care.”
During cross-examination, Sandven’s attorney asked the deputy whether Sandven
said she was “aware she was violating” the HRO. The deputy responded Sandven “did not
say the word violation that I can recall.”

1 The HRO prohibited Sandven from “being within 200 feet of [sister’s] home,” but it listed
an address different from the New London home. Sister testified she moved in with her
parents. Sandven did not dispute knowing sister lived with their parents.
4
The jury found Sandven guilty of violating the HRO. The district court imposed a
sentence of 90 days, stayed the sentence for one year, and ordered Sandven to complete
30 hours of community service, have no contact with sister, and remain law-abiding.
Sandven appeals.
DECISION
Sandven raises three issues on appeal. First, she argues her conviction should be
reversed because the state failed to prove beyond a reasonable doubt that she knew her
conduct would violate the HRO. Second, in the alternative, Sandven argues she should
have a new trial because the district court plainly erred in the jury instructions by omitting
the mens rea element. Third, Sandven argues the prosecutor committed misconduct during
rebuttal argument, violating her substantial rights. We address each issue in turn.
I. The evidence is sufficient to sustain Sandven’s conviction for violating the
HRO.

When considering a sufficiency -of-the-evidence challenge, appellate courts
“carefully examine the record to determine whether the facts and the legitimate inferences
drawn from them would permit the jury to reasonably conclude that the defendant was
guilty beyond a reasonable doubt.” State v. Boldman, 813 N.W.2d 102, 106 (Minn. 2012).
Appellate courts view the evidence “in the light most favorable to the verdict,” assuming
the jury disbelieved any contradictory evidence. Id. An appellate court may not overturn a
verdict if the jury could have reasonably found the defendant guilty of the charged offense.
Id.
5
A person commits a crime if she knows of and violates the terms of an HRO. See
Minn. Stat. § 609.748, subd. 6(a), (b). In a recent appeal involving a conviction for
violating an HRO, this court held “the state must prove that the defendant knew all the facts
that would cause him or her to be in violation of a harassment restrain ing order.” State v.
Andersen, 946 N.W.2d 627, 628 (Minn. App. 2020).
Sandven’s sufficiency challenge relies on a close analysis of Andersen, so we begin
by considering that opinion. In Anderse n, the HRO prohibited the appellant from being
within 100 feet of a protected person’s residence but it did not state where the protected
person resided. Id. at 628. Based on evidence that the appellant was “approximately 30 feet
away from” the protected person’s apartment, the state charged appellant with violating an
HRO. Id. at 630.
The district court convicted the appellant after a bench trial, issuing written findings
of fact stating (1) the appellant’s explanation for being in the area of the protected person’s
home was credible, (2) the state did not prove beyond a reasonable doubt that the appellant
knew where the protected person lived, and (3) “the evidence does not prove that
[appellant] had notice or knowledge of the location of [the protected person’s] residence.”
Id. at 630. An appeal followed. Because we determined “the state was required to prove
that [the appellant] knew that his presence in a particular location would subject him to
criminal liability,” and the district court found no record evidence to support this, we
reversed the conviction. Id. at 637–38.
Relying on Andersen, Sandven argues the state must prove Sandven’s mens rea such
that she “knew the facts that placed her in violation of the” HRO, but argues the
6
circumstantial evidence shows Sandven “honestly believed that her behavior did not violate
the order.” Sandven also argues “[a]ny theory that [she] possessed the necessary mens rea
must rest on circumstantial evidence.” The state disagrees, arguing direct evidence supports
the conviction and Sandven “fundamental[ ly] misunderstand[s]” Andersen to require
evidence of a defendant’s subjective belief.
We agree with the state that Andersen does not require the state to prove a defendant
“subjectively believed that the specific conduct she engaged in violated the order.”
Andersen did not discuss a defendant’s subjective belief. See 946 N.W.2d at 627–38. Still,
Andersen rests on the premise that “[m]ens rea is the element of a crime that requires ‘the
defendant know the facts that make [her] conduct illegal.’” Id. at 632 (quoting Staples v.
United States, 511 U.S. 600, 605 (1994)) (emphasis added). The state may prove Sandven
knew her conduct violated the HRO by offering direct or circumstantial evidence. See State
v. Gunderson, 812 N.W.2d 156, 161 (Minn. App. 2012) (“[P]roof of knowledge may be by
circumstantial evidence.”) (quoting State v. Al-Naseer, 734 N.W.2d 679, 688 (Minn. 2007)
(internal quotations omitted)).
The state is correct that this record includes some direct evidence of Sandven’s
knowledge or mens rea. For example, Sandven admitted to the deputy that she left the letter
for sister at her parent’s house where Sandven knew sister lived, she knew the HRO was
valid, and she told the deputy when questioned that she “did it” and “didn’t care.” See State
v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (stating defendant’s comment “was direct
evidence of her mens rea”). But because the record also contains circumstantial evidence
and a defendant’s state of mind is “generally proven through circumstantial evidence,” see
7
State v. Leake, 699 N.W.2d 312, 319 (Minn. 2005), we consider whether the circumstantial
evidence is sufficient to sustain Sandven’s conviction.
We apply “heightened scrutiny” to our review of the circumstantial evidence against
Sandven. See State v Al -Naseer, 788 N.W.2d 469, 473 (Minn. 2010). First, we “identify
the circumstances proved” with deference to the jury’s factual determinations; second, we
“examine independently” the reasonableness of any inference drawn from those
determinations. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). If there is “any
rational hypothesis” inconsistent with appellant’s guilt, or consistent with appellant’s
innocence, we must reverse the conviction. Id.
The state proved these circumstances: A valid HRO prohibited Sandven from
having “direct or indirect contact” with sister, including no visits, phone calls, or contact
via electronic means, such as email or social networking websites. Sandven signed a letter
to sister, had the letter notarized, and left it at sister’s current residence. Sandven gave a
copy of the letter to a deputy, told the deputy she knew the HRO was “still valid” and that
she “did it” and she “didn’t care.”
Sandven does not dispute these proven circumstances are consistent with her guilt.
Instead, she argues the circumstances “support a reasonable inference that [she] did not
know that her conduct of delivering a notarized document to her parents’ residence would
subject her to criminal liability.” Sandven offers two alternative inferences, which she
contends are inconsistent with her knowing “the facts” that caused her to violate the order.
First, Sandven argues the HRO was confusing and “[i]t was rational for Ms.
Sandven to believe that the order permitted her to prepare and deliver a formal written
8
affidavit” because the order did not list a notarized letter as one of the prohibited methods
of contact. We acknowledge t he HRO states Sandven “shall have no direct or indirect
contact” with sister, and then “includ[es]” examples of prohibited contact and does not
mention a letter. Still, we are not persuaded by Sandven’s argument. While the HRO does
not expressly “include” letters as a prohibited form of contact, the word “include” is not a
limiting term. Rather, “include” suggests a non-exclusive list. See LaMont v. Indep. Sch.
Dist. No. 728, 814 N.W.2d 14, 19 (Minn. 2012) (“The word ‘includes’ is not exhaustive or
exclusive.”). It is also irrational for Sandven to believe the HRO permitted her to deliver a
letter to sister’s home because the HRO explicitly prohibited “direct or indirect contact”
and specifically identified no email contact.
Second, Sandven argues her “conduct strongly suggests that she honestly believed
that her behavior did not violate the order” because she notarized the letter, showed the
letter to the deputy, and did not conceal her conduct. We disagree because this hypothesis
ignores other proven circumstances. Sandven told the deputy the HRO was “still valid,”
agreed she delivered the letter, and told the deputy she “didn’t care.” Taking together all
the proven circumstances, it is irrational to infer Sandven did not know the facts that caused
her to violate the HRO.
We therefore conclude no reasonable alternative hypothesis based on the proven
circumstances is inconsistent with Sandven’s guilt. The state proved beyond a reasonable
doubt Sandven knew all the facts that caused her to violate the HRO. Thus, the record is
sufficient to sustain her conviction.
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II. Any error in the jury instructions did not prejudice Sandven.

Sandven alternatively argues the jury instructions were plainly erroneous and
warrant a new trial. Because Sandven’s attorney did not object to the jury instructions
during trial, we review for plain error. See State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). Under this stan dard, the appellant bears the burden of establishing (1) an error
occurred, (2) the error was plain, and (3) the error affected appellant’s substantial rights.
Id.
Here, the district court instructed the jury:
Under Minnesota law, whoever violates a harassment
restraining order and knows of the order is guilty of a crime.
The elements of violation of a harassment restraining
order are: first, there was an existing court order restraining
Defendant from harassing [sister]. Second, the Defendant
violated a term or condition of the order. Third, the Defendant
knew of the order. Here, the parties agree that Defendant knew
of the order. Therefore, you must consider this element to have
been proven beyond a reasonable doubt. Fourth, the
Defendant’s act took place on or about January 23, 2019, in
Kandiyohi County.

(Emphasis added.) This instruction follows the statutory language, see Minn. Stat.
§ 609.748, subd. 6(b), and mirrors the pattern jury instruction. See 10 Minn. Practice,
CRIMJIG 13.65 (2020).2 Because Sandven stipulated she “knew of the restraining order,”

2 We note the current pattern jury instruction for violating an HRO includes a cautionary
note: “this model jury instruction is under review by the CRIMJIGS committee in light of
the decision in State v. Andersen, 946 N.W.2d 627 (Minn. Ct. App. 2020).” We also note,
“the CRIMJIGs are not precedential or binding.” See Gunderson, 812 N.W.2d at 162
(quotation omitted).
10
which is the third element, the district court instructed the jury that they “must consider
this [third] element to have been proven beyond a reasonable doubt.”
Sandven argues, “the district c ourt failed to instruct the jury that it must find the
evidence proved beyond a reasonable doubt that Ms. Sandven acted with the necessary
mens rea” as explained in Anderson. The state argues the instructions were not plainly
erroneous, and even if they were, they did not affect Sandven’s substantial rights.
An error is plain if it is clear or obvious, usually where the error contravenes case
law, a rule, or a standard of conduct. State v. Matthews, 779 N.W.2d 543, 549 –50 (Minn.
2010). We agree with Sandven that Anderson, which was issued about four months before
Sandven’s trial, used the term “mens rea element” throughout the opinion. See Anderson,
946 N.W.2d at 632–33. But Anderson involved a court trial and examined the sufficiency
of evidence to support a conviction for violating an HRO. Id. at 630 (summarizing the
district court’s written findings after a bench trial and stating appellant “argues that the
evidence is insufficient to sustain his conviction”). Andersen did not discuss or consider
jury instructions, nor did Anderson articulate a clear or obvious rule of law for instructing
the jury. In short, Sandven argues that, although the challenged jury instruction followed
the statutory language and mirrored the pattern instruction for the charged offense, it was
plainly erroneous.3

3 Sandven cites State v. Irby, 957 N.W.2d 111, 121 (Minn. App. 2021) rev. granted (Minn.
May 26, 2021), and Gunderson, 812 N.W.2d at 162. We distinguish both cases from
Sandven’s case. In Irby, this court determined a jury instruction was plain error because it
did not follow 1984 caselaw on the knowledge element of the offense. 957 N.W.2d at 121
(citing State v. Ibarra, 355 N.W.2d 125, 129 (Minn. 1984). In Gunderson, we held a jury
instruction was plain error because it did not track the plain language of the charging
11
But we need not decide whether the jury instructions were plainly erroneous because
Sandven’s substantial rights were not affected . To show an error affected an appellant’s
substantial rights, appellant must bear the “heavy burden” of showing a “reasonable
likelihood” the error affected the jury’s verdict. Griller, 583 N.W.2d at 741. “An erroneous
jury instruction will not ordinarily have a significant effect on the jury’s verdict if there is
considerable evidence of the defendant’s guilt.” State v. Kelley, 855 N.W.2d 269, 283–84
(Minn. 2014). As discussed above, there was considerable evidence that Sandven knew of
all the facts causing her to violate the HRO. Thus, even if the jury instructions were plainly
erroneous, the error did not affect Sandven’s substantial rights.
III. The prosecuting attorney’s misconduct did not affect Sandven’s substantial
rights.

Sandven also seeks a new trial by challenging the prosecuting attorney’s arguments
during rebuttal as prosecutorial misconduct. Because Sandven did not object to the
prosecuting attorney’s arguments, we review for plain error. See State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006). In this context, if appellant shows a plain error
occurred, then the “burden . . . shift[s] to the state to demonstrate lack of prejudice; that is,
the misconduct did not affect substantial rights.” Id. Sandven challenges three of the
prosecuting attorney’s arguments, which we address in turn.

statute. 812 N.W.2d at 160 (citing Minn. Stat. § 609.748, subd. 6 ). Here, the challenged
instruction did not contradict established caselaw and it followed the charging statute.
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A. Criticizing Sandven’s failure to elicit testimony

Sandven argues, “[t]he prosecutor engaged in misconduct by shifting the burden of
proof and criticizing the defense for not introducing evidence to support its claim that Ms.
Sandven did not act with the necessary mens rea.” Sandven points to the prosecuting
attorney’s argument that Sandven’s attorney was “arguing that Ms. Sandven might have
thought that this was a business communication.” The prosecuting attorney continued:
There’s no evidence this was a business communication. . . .
[Sister] was here. She testified. If she and Ms. Sandven were
in some kind of business together, [Sandven’s attorney]
could’ve asked her questions about that, could’ve let you know
oh this is the business they’re in together, but that didn’t
happen because it’s not true, because it’s not there; there’s no
evidence of that.

Sandven concludes, “[b]y commenting on the defense’s failure to question a witness and
introduce evidence, the prosecutor engaged in misconduct.”
It is true that a prosecuting attorney may not comment on a defendant’s failure to
call a witness . State v. Mayhorn, 720 N.W.2d 776, 787 (Minn. 2006). But a prosecuting
attorney may respond to arguments made by the defense and highlight the evidence, or lack
thereof, supporting the defense’s theories without shifting the burden of proof. State v.
McDaniel, 777 N.W.2d 739, 750 (Minn. 2010); see State v. Tayari- Garrett, 841 N.W.2d
644, 652 (Minn. App. 2014) (“Having opened the door to the prosecutor’s argument,
appellant can hardly complain now.”).
Sandven’s attorney opened the door in closing by arguing that Sandven “honestly
believed that these were viable business communications and that it was allowed.” The
13
prosecuting attorney’s rebuttal argument highlighted the lack of evidence to support the
defense attorney’s argument. Thus, this argument was not plainly erroneous.
B. Shifting the burden of proof to Sandven

Sandven argues the prosecuting attorney impermissibly “lessened the state’s
burden” during rebuttal. Sandven highlights the following part of the prosecuting
attorney’s argument:
What [the deputy] said is that at no time did Ms. Sandven
specifically state [“]I intentionally violated the order.[”] That’s
not proof beyond a reasonable doubt. That’s etched in stone
proof. That’s a full admission so don’t be confused by someone
saying because you didn’t get a full admission it’s not proof
beyond a reasonable doubt. That’s well beyond any reasonable
doubt. No one expects full admissions. That’s unreasonable.
That’s not a reasonable position to take at trial.

(Emphasis added.) This statement may be troubling because “[m]isstatements of the burden
of proof are highly improper and would, if demonstrated, constitute prosecutorial
misconduct.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). By arguing the state’s
burden of proof is not “etched in stone proof” and admissions are “well beyond any
reasonable doubt,” the prosecuting attorney may have minimized the state’s burden of
proof.
The state, however, claims this rebuttal argument responded to Sandven’s attorney’s
closing argument. “The prosecutor has the right to fairly meet the arguments of the
defendant.” State v. Martin, 773 N.W.2d 89, 106 (Minn. 2009). For example, in State v.
Simon, the supreme court considered whether a prosecuting attorney’s statement that the
defense attorney took “every opportunity to dirty up [the business-victim] by accusing and
14
insinuating that they were violating some rule or regulation” rose to the level of
misconduct. 745 N.W.2d 830, 844 (Minn. 2008). The supreme court reasoned, “[a]
prosecutor is allowed to argue that there is no merit to a particular defense or argument.”
Id. Because the prosecution’s statement “was designed to draw the jury’s attention to [the
appellant’s] attempt to distract from the criminal issues at trial, ” the supreme court
determined no misconduct occurred. Id.
Sandven's attorney argued in closing that Sandven “never once admitted to
knowingly violating the restraining order” during her conversation with the deputy. Thus,
whether the prosecuting attorney’s rebuttal argument was plainly erroneous is a close
question because it both comments on the burden of proof and responds to a defense
argument.
But we need not determine whether the rebuttal argument was plainly erroneous if
the argument did not have a “significant effect on the jury’s verdict.” State v. Davis,
735 N.W.2d 674, 681–82 (Minn. 2007). In making this determination, appellate courts
“consider the strength of the evidence against the defendant, the pervasiveness of the
improper suggestions, and whether the defendant had an opportunity to (or made efforts
to) rebut the improper suggestions.” Id. at 682.
Here, the state’s case is strong: Sandven wrote a letter to sister, notarized it, and left
it at her parent’s house, where she knew sister lived. The deputy testified Sandven stated
that “she had left [the letter] at the residence that would have been [sister’s] residence.”
The deputy also testified Sandven stated she knew of the HRO against her and the HRO
was “still valid, ” Sandven said she “did it” and “didn’t care.” And the prosecuting
15
attorney’s improper argument was not pervasive—the challenged comments comprise only
two sentences from a seven-page closing argument. The challenged statement occurred
during rebuttal, however, so the defense attorney had no opportunity to respond.
Finally, we consider whether the jury instruction mitigated any prejudicial effect.
See, e.g., State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (concluding
prosecuting attorney’s attempts to shift the burden of proof are often harmless when “the
district court clearly and thoroughly instructed the jury regarding the burden of proof”).
Here, the district court instructed the jury, “[i]t is your duty to decide the questions of fact
in this case”; “[t]he burden of proving guilt is on the State. The Defendant does not have
to prove innocence,” and “[y]ou are the sole judges of whether a witness is to be believed
and of the weight to be given a witness’s testimony.” And the prosecuting attorney repeated
the state’s burden to prove guilt beyond a reasonable doubt in its initial and rebuttal closing
argument. See State v. Tate, 682 N.W.2d 16 9, 178–79 (Minn. App. 2004) (concluding
prosecuting attorney’s misstatement of the burden of proof was error, but was harmless
because “taken as a whole, [the statements] do not indicate that the burden of proof was
shifted”).
Because the state’s evidence against Sandven was strong and correct statements of
law during the prosecuting attorney’s argument, along with the jury instructions, mitigated
any prejudicial effect, we determine the prosecuting attorney’s rebuttal argument about the
burden of proof did not have a substantial effect on the jury’s verdict.
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C. Contending Sandven’s argument is “unreasonable”

Sandven contends—pointing to the same passage of rebuttal argument quoted
above—the prosecuting attorney committed misconduct by arguing, “[n]o one expects full
admissions. That’s unreasonable. That’s not a reasonable position to take at trial.”
Sandven relies on State v. Strommen where the supreme court determined the
prosecuting attorney committed plain error by arguing, “ [w]hen we have difficult cases
like this, sometimes the only way to deal with it is just to weigh the story in each hand and
decide which one is most reasonable, which one makes the most sense.” 648 N.W.2d 681,
685 (Minn. 2002). The supreme court explained this argument “was a misstatement of the
state’s burden to prove each element of the crime beyond a reasonable doubt.” Id. at 690.
We conclude Strommen is not analogous to the challenged argument. The
prosecuting attorney did not ask the jury to weigh the two theories of the case to determine
which one was most reasonable. Rather, the prosecuting attorney’s argument responded to
Sandven’s argument that she never admitted violating the HRO. Because a prosecuting
attorney may argue there is no merit to a particular defense argument, Martin, 773 N.W.2d
at 106, we conclude the challenged argument was not plainly erroneous.
In sum, the record evidence is sufficient to prove Sandven “knew all the facts that
would cause . . . her to be in violation of the harassment restraining order.” See Anderson,
946 N.W.2d at 628. We need not decide whether the district court’s jury instructions were
plainly erroneous because they did not prejudice Sandven. And similarly, the state met its
burden to prove either that no misconduct occurred during rebuttal or that alleged instances
17
of prosecutorial misconduct did not affect Sandven’s substantial rights. We therefore
affirm.
Affirmed.