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This opinion is nonprecedential except as provided by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
A20-1624

State of Minnesota,
Respondent,

vs.

Gary Alonzo Jones,
Appellant.

Filed December 6, 2021
Reversed and remanded
Jesson, Judge

Ramsey County District Court
File No. 62-CR-18-6270

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Ab igail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Gary Jones fell into a gas statio n worker as she assisted Jones with a
purchase of 12-packs of pop. Jones claims th e fall (which was capture d, in part, on two
surveillance cameras) was accidental due to his disability. During the subsequent trial, the
2
jury viewed the surveillance videos, as well as body- camera footage in which officers
questioned Jones shortly after the fall. During the bodycam footage, one officer exclaimed
that the surveillance videos showed Jones “groping” the worker.
Jones was convicted of fifth-degree crim inal sexual conduct. He now appeals,
arguing that the inclusion of the body-camera footage showing the officer commenting on
the ultimate issue of his sexual intent was harm ful error, and that the fall was accidental,
so the evidence was not sufficient to show he fell with sexual intent. Although we conclude
the evidence was sufficient, because the admission of th e body-camera footage was
prejudicial, we reverse and remand.
FACTS
Jones was a regular customer at a gas sta tion and convenience store in White Bear
Lake. On August 27, 2018, D.L. was working as the overnight shift lead. Sometime after
11 p.m., Jones entered the store and tried to pur chase pop that was advertised as on sale.
But Jones mistook which brand was discounted and brought two 12-packs to the counter
that were not on sale. After being informed of his mistake, Jones (who has had over 25
procedures on his right leg, which is 3.5 inches shorter than his left leg due to a car accident)
asked for D.L.’s assistance in bringing the 12-packs back and exchanging them for the
on-sale pop.
But suddenly, Jones fell into D.L., with his arm reaching around her backside and
grabbing her buttocks. It is disputed whether Jones intentionally touched D.L. It is also
disputed whether Jones fell intentionally, or whether he fell accidentally because of his
disability.
3
After they both regained their footing, D.L. guided Jones to the pop display and
explained which 12-packs were on sale. Jones then told D.L. that “your husband is a lucky
man.” Jones checked out, left the store, and crossed the street to look at cars at a dealership.
Once he left the store, D.L. phoned her supervisor, who came to the gas station to
review the security videos. The supervisor then called the polic e. Law enforcement
officers came to the store, spoke with D.L., and reviewed the surveillance footage taken at
the gas station. After the supervisor noticed Jones’s car parked at the car dealership, the
officers crossed the street to question Jones about the encounter. Jones denied any contact
with D.L. and explained that he had a spinal cord injection earlier that day, as well as
showing his leg deformity. The officers arrested Jones. The state charged Jones with
fifth-degree criminal sexual conduct.1
The Trial
At trial, D.L. described Jones’s fall as though he “launched” at her. Further, she
stated that, as she tried to brace herself to prevent both of them from falling to the ground,
[h]e firmly grasped my butt, and then in pulling back,
he grazed up against my hip. And I don’t remember where his
hand went from there, but I do firmly remember him grabbing
my butt and then pulling it away and dragging his hand across
my body.

D.L. also noted that she did not think th e conduct was harassment until Jones’s “lucky
husband” comment, stating after “that statement, I knew it was an intentional fall.”

1 Minn. Stat. § 609.3451, subd. 1(1) (2018).
4
The officer who confronted Jones in the pa rking lot testified as well. During this
testimony, the state offered both the stor e surveillance videos—one from behind the
counter, and the other from the far end of th e store. Neither video showed the entire
encounter. The state also o ffered the body-camera footage of the officers questioning
Jones. The footage showed the officers confronting Jones at the car dealership. Crucially,
the footage captures the respo nding officer say to Jones “thi s is why I’m talking to you
‘cause I saw the surveillance video . . . it showed you groping her butt and your head was
in her breasts.”
Jones sought to block the body-camera f ootage with a pretrial motion in limine. 2
Jones argued that the statem ent from the officer was more prejudicial than probative
because—since the officers were not present for the underlyi ng interaction—D.L. more
appropriately should be testifying about what happened. But the district court approved
the exhibit, reasoning that “I think that the officer’s testim ony is rationally based on his
perception of the video and will be helpful fo r the jury’s understa nding of his testimony
regarding the investigation an d the decision to go forward with the investigation and
charges.”
Following the admission of th e body-camera footage, the district court gave a
limiting instruction to the jury, explaining that:
Now, within the video that just played, you heard a
statement by a police officer regarding his perception of what
the surveillance video showed . Those statements were
admitted for the sole purpose of assisting with your

2 The motion in limine was for the whole video, but the arguments focus on the officer’s
statement to Jones that commented on the ultimate issue of guilt.
5
understanding of the officer’s testimony regarding why the
police were conducting the inves tigation and to give you the
proper context for the defendant’ s statement. You are not to
rely on [the officer’s] perception of what the surveillance video
showed. You must reach your own conclusions about the facts
of this case.

Following the state’s case, Jones testified that he suffers from leg and back injuries
caused by being hit by a car. These injuries required multipl e spinal cord injections,
including one on the day of the incident. He claimed that his contact with D.L. was an
accident and not sexual. Jones also said th at he meant nothing sexual from his “lucky
husband” comment, but instead was meant to show appreciation for D.L. helping him. He
explained that when he denied he had any contact with D.L. to the officers, it was because
he was anxious from how they “came fast” at him. Jones also claimed that the officer did
not give him the chance to explain the full details of what happened at the scene.
The jury found Jones guilty. The district court sentenced Jones to a 365-day
sentence to be stayed for two years, and two years of supervis ed probation including
attending a sex-offender program.
Jones appeals.
DECISION
I. The district court erroneously admitted prejudicial evidence.
First, Jones challenges the admission of the body-camera f ootage as constituting
harmful error. We review the district court’s evidentiary rulings for an abuse of discretion.
State v. Smith , 940 N.W.2d 497, 505 (Minn. 2020). The appellant bears the burden of
demonstrating both that the district court abused its discretion by admitting the evidence at
6
issue, and that he was prejudiced by the evidence. State v. Sanders, 775 N.W.2d 883, 887
(Minn. 2009).
Because Jones objected to the admission of the footag e at trial, we apply the
harmless-error standard. Id. Under this standard, an appe llant who alleges an error must
prove that there is “a reasonable possibility that the wrongfully admitted evidence
significantly affected the verdict.” State v. Matthews, 800 N.W.2d 629, 633 (Minn. 2011)
(emphasis added) (quotation omitted). We look to the following factors when determining
whether testimony significantly affected a verdict: (1) how the state presented the
testimony; (2) whether the state used the test imony in closing argument; (3) whether the
testimony was highly persuasive; and (4) whet her the defense effectively countered the
testimony (Matthews factors). Id. at 634. If an error is not harmless beyond a reasonable
doubt, we reverse and remand for a new trial. State v. Juarez, 572 N.W.2d 286, 291
(Minn. 1997).
With this standard of review in mind, we consider the evidentiary issue raised here.
Jones challenged the use of the body-camera f ootage in a motion in limine, and the court
denied the motion.3 Because motions in limine are considered objections for the purposes
of harmless-error review, we first turn to whether admitting the evidence constituted error.
Here, the evidence in question is the body-camera footage of the officer questioning Jones
across the street from the gas station—specifically the statement from the officer that “this

3 “Once the court makes a definitive ruling on the record admitting . . . evidence, either at
or before trial, a party need not renew an objection . . . to preserve a claim of error.” Minn.
R. Evid. 103(a).
7
is why I’m talking to you ‘cause I saw the su rveillance video . . . it showed you groping
her butt and your head was in her breasts.” We generally do not allow ultimate-conclusion
testimony which embraces legal conclusions. Minn. R. Evid. 704. Because the officer (by
using the word “groping”) was commenting on the ultimate legal c onclusion of whether
Jones intentionally touched D.L., admission of this statement constitutes error.
But this does not end our analysis. Unde r harmless-error review, we look to the
Matthews factors to determine whet her the error was indeed ha rmless, starting with how
the state presented the video. The body-cam era footage was played for the jury and was
described as a “statement by a police offi cer regarding his perc eption of what the
surveillance video showed.” The district court included a limiting instruction on the video.
While we are to believe the jury followed thos e instructions, the footage was played right
before Jones’s testimony, with the exception of a short cross examination of the officer.
State v. Vang , 774 N.W.2d 566, 578 (M inn. 2009). Jones was the only witness for the
defense.
Then, considering the state’s use of the testimony in the closing argument, we note
that the footage was played again in clos ing arguments, this time without a limiting
instruction. Thus, the footage was one of the last things that the jury saw before breaking
into deliberations. In contra st, the surveillance videos, which showed the interaction
between Jones and D.L., were not played duri ng closing, highlighting the importance of
the body-camera footage to the state’s case.
Looking next at whether the testimony wa s highly persuasive, the officer in the
video comments on the ultimate issue of Jone s’s criminal trial: whether Jones acted with
8
sexual intent.4 And while the officer stated “I saw the surveillance video,” the surveillance
videos are not clear. They do not show Jone s’s head in D.L.’s breasts as the officer
describes in the body-camera footage. Consid ering the weight that juries give to the
testimony of law enforcement o fficials, the officer’s statements have a high persuasive
value. See, e.g., State v. Hogetvedt, 623 N.W.2d 909, 915 (Minn. App. 2001) (stating that,
“[g]iven [the officer]’s status as a police officer,” his opinion as to guilt “may have unduly
influenced the jury”), rev. denied (Minn. May 29, 2001).
And, evaluating whether the defense e ffectively countered the testimony, the
defense did not counter the body-camera footage explicitly, but instead only attempted to
counter the underlying ultimate issue of Jones’s intent. J ones’s testimony also did not
refute the officer’s perception that Jones grop ed D.L., so the prejud icial aspect of the
evidence was not effectively countered.
Considering all four factors, because of the significant inclusion of the video in a
case with a limited factual record, and the highl y persuasive value placed on the officer’s
testimony—in this case, commenting on the ultimate issue in a video emphasized in closing
arguments—it is likely that the verdict was si gnificantly affected by the playing of the
body-camera footage.

4 Both parties dispute the applicability of State v. Clement, A14-1646, 2015 WL 4393559,
at *5 (Minn. App. July 20, 2015), rev. denied (Minn. Oct. 20, 2015) . But not only is
Clement nonprecedential and of limited value to this court, the case is also factually distinct
as the evidence was viewed under the plain-error standard, not the harmless-error standard
applicable here.
9
Still, the state argues that the body-cam fo otage was harmless because the district
court included a limiting instruction. But this instruction was not repeated the second time
the footage was played for the jury in closing arguments.5 Given this specific case—which
relies on few facts upon which reasonable mi nds could disagree—the inclusion of the
body-camera footage was not harmless beyond a reasonable doubt and requires a new trial.
Juarez, 572 N.W.2d at 291.
II. There is sufficient evidence that Jones acted with sexual intent.
Jones further argues that there was insufficient circumstantial evidence that he acted
with sexual intent during his fa ll into D.L. We address this argument because if, indeed,
there is insufficient evidence, we would vacate rather than remand for a new trial.
Because intent and premeditation are states of mind, they ar e generally proved
circumstantially by drawing inferences from the defendant’s words and actions in light of
the totality of the circumstances. State v. Cooper , 561 N.W.2d 175, 179 (Minn. 1997).
Under the circumstantial-evidence standard, we apply a two-step analysis. State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012).
The first step is to identif y the circumstances proved. State v. Andersen ,
784 N.W.2d 320, 329 (Minn. 2010). In identifying the circumstances proved, we defer “to
the jury’s acceptance of the proof of these circumstances and rejection of evidence in the
record that conflicted with the circumstances proved by the state.” Id. (quotation omitted).

5 The district court’s reasoning for the inclusi on of the video was to allow the jury to see
the officer’s perception of the surveillance vide o. But the scope of the investigation was
not in dispute—the actuality of Jones’s sexual intent was, which is a fact question for the
jury, not an arresting officer.
10
As with direct evidence, we assume that the jury believed the state’s witnesses and
disbelieved the defense witnesses. State v. Tscheu , 758 N.W.2d 849, 858 (Minn. 2008).
Stated differently, in determ ining the circumstances proved, we consider only those
circumstances that are consistent with the verdict. State v. Hawes, 801 N.W.2d 659, 668-69
(Minn. 2011). This is because the jury is in the best position to evaluate the credibility of
the evidence even in cases based on circumstantial evidence. Id. at 670.
The second step is to “determine whether the circumstances proved are ‘consistent
with guilt and inconsistent with any rational hypothesis except that of guilt.’”
State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011) (quoting Andersen, 784 N.W.2d at
330). We review the circumst antial evidence not as isolated facts, but as a whole.
State v. Hurd, 819 N.W.2d 591, 599 (Minn. 2012). We give no deference to the fact
finder’s choice between reasonable inferences. Andersen, 784 N.W.2d at 329-30
(quotation omitted).
Here, we first consider the circumstances proved that are consistent with the guilty
verdict of fifth-degree criminal sexual conduc t: (1) Jones had a recent medical procedure
on his back; (2) Jones had a 3.5-inch difference in his leg length, which caused him to limp;
(3) Jones went to the gas station in White Bear Lake shortly after 11 p.m. on August 27,
2018; (4) D.L. came from behind the counter to assist Jones in his pop purchase; (5) Jones
fell into D.L.; (6) Jones’s right arm went arou nd D.L.’s back; (7) Jones “firmly grasped”
D.L.’s buttocks and dragged his hand across her body while he pu lled it away; (8) D.L.
helped Jones find the correct 12- pack of pop; (9) Jo nes told D.L. that she had a “lucky
11
husband” for how helpful she was to him; and (10) Jones told law enforcement across the
street from the gas station that he did not touch D.L.
Having described the circumstances proved, we turn to examin e whether they are
consistent with the guilty verdict of fifth- degree criminal sexual contact—specifically
whether Jones had sexual intent when he touched D.L.—and inconsistent with any rational
hypothesis except that of guilt. Because Jones admits that he made contact with D.L. when
he fell, we only need to look to the circumst ances that would establish his intent. Here,
D.L. testified that Jones “firmly grasped” he r buttocks. Assuming that the jury believed
D.L. and did not believe Jones when he claimed this was an innocent reaction to his fall,
this behavior is consistent with guilt.
To convince us otherwise, Jones argues that the state failed to eliminate the
inference that Jones fell acciden tly due to his disab ility, so Jones did not fall with sexual
intent. Whether it is reasonable that Jones fe ll or whether his fall was accidental is a red
herring. There is not sufficient evidence that the fall was inte ntional, but that is not the
issue here. Jones could have fallen without sexual intent and still, in the moment, decided
to grope D.L. What is important is what Jones’s hand was doing during the fall and why
it was doing that, and D.L. testified that J ones “firmly grasped” her buttocks—testimony
that under the circumstantial evidence standard we are to assume the jury believed. Jones
also makes other arguments about some of th e circumstances proved, such as the “lucky
husband” comment and Jones’s st atement to the police, and how those circumstances tie
12
to the likelihood that his fall was accidental.6 But these arguments again rely on focusing
on the intention of the fall and do not address the ultimat e issue on appeal: whether these
circumstances rule out the inference of sexua l intent when D.L. was touched. Because
Jones has the burden to demonstrate that the st ate failed to eliminate this inference, Jones
has not shown that there was a rational hypothesis of innocence.
Therefore, the evidence was sufficient that Jones was gu ilty of fifth-degree sexual
contact.
Reversed and remanded.

6 In arguing that Jones’s statements do not rule out an inference of an accidental fall, Jones
notes the “significance of a Black man being approached by police and being accused of a
crime.” The articles and other studies that Jones mentions detail a serious concern in the
criminal justice system. But even if the presence of police caused Jones to suffer anxiety,
for the same reasons explained above, this encounter does not affect the analysis of D.L.’s
description of the fall, which we are to assume the jury believed.