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This opinion is nonprecedential except as provided by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
A21-0373

State of Minnesota,
Respondent,

vs.

Gerald Edward Bolster,
Appellant.

Filed April 25, 2022
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Dakota County District Court
File No. 19HA-CR-20-1828

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

Kathryn M. Keena, Dakota County Attorney, Jessica Bierwerth , Assis tant County
Attorney, Hastings, Minnesota (for respondent)

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

Considered and decided by Segal, Chief Judge; Slieter, Judge; and Rodenberg,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this direct appeal from a final judgment, appellant argues that (1) two of his
convictions for threats of violence must be reversed for insufficient evidence , (2) he is
entitled to a new trial on all charges because the district court committed reversible error
by denying his motion for a mistrial , and (3) his convictions for threats of violence and
child endangerment as to his two children arose out of a single behavioral incident and that
the child -endangerment sentence s thus must be vacated under Minn. Stat. § 609.035
(2018). Appellant also raises several claims in a pro se supplemental brief, including that
his speedy-trial rights were violated. We affirm in part, reverse in part, and remand.
FACTS
The facts here involve a 15-hour standoff between appellant Gerald Edward Bolster
and law enforcement that occurred in July 2020. Law enforcement w as called by the
manager of a mobile -home park about threatening behavior by Bolster who was at the
residence of his wife, B.B., and their four children at the mobile-home park.
Law enforcement responded and learned that the complaint was about Bolster and
discovered that there was a harassment restraining order (HRO) in effect that prohibited
Bolster from having contact with B.B. Two officers went to the residence and B.B.
answered the door. The officers asked her to step outside and bring her children with her .
After B.B. and two of the four children came outside, the officers asked the location of her
youngest son. B.B. then tried to go back into the ho me, but Bolster grabbed her, pushed
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her back outside, and shut the door. This left t wo of the children, a 13-year-old daughter
and a four-year-old son, inside the home with Bolster .
Law enforcement on the scene had body cameras and much of the incident was
captured on video and submitted into evidence at trial. Bolster can be heard , on body -
camera video, threatening to shoot the offi cers if they tried to enter the home, telling them
to come back with a court date, and refusing to let the two children leave the home. One
of the officers informed Bolster that he was under arrest for violating a no-contact order ,
that the officers were not going to leave, and again asked Bolster to release the two children
who were still inside. Based on their observations, the officers believed that Bolster may
have been holding a gun.
The officers requested assistance from the South Metro SWAT team and remained
at the property while they waited for assistance to arrive. At one point an officer heard
Bolster say that he was going to shoot the gas meter, located right outside the mobile home.
Bolster also threatened to “blow the gas” and yelled that he was going to gas the officers
out. And Bolster broke out a window and threw a lamp and a backpack at the gas meter,
among other objects. In addition, Bolster mentioned a “bomb,” which was overheard by
his daughter who was inside the home. The daughter texted a friend to say she was scared.
About 11 hours after the police first arrived, the daughter escaped with her cat through a
window in the rear of the mobile home. At about 2:15 in the morning, after almost 15
hours of trying to get Bolster to peaceably leave the house, the SWAT team entered the
house, took Bolster into custody , and located his son.
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Respondent State of Minnesota charged Bolster with three counts of threats of
violence (one related to threats against law enforcement and one count each related to his
two children who were inside the home during the standoff ), violation of the HRO, and
two counts of child endangerment. On July 29, 2020, Bolster made a speedy-trial demand.
The district court scheduled the trial for September 1 4, 2020, within the 60-day window,
but later found good cause to delay the trial because of the unavailability of Bolster’s
defense attorneys and the limited number of courtrooms available due to COVID -19
protocols.
The trial started on October 27, 2020 . The jury found Bolster guilty on all counts.
The district court entered convictions on all counts and sentenced Bolster to 60 months in
prison for making threats of violence against his son, 48 months in prison for making
threats of violence against his daughter, 28 months in prison for making threats of violence
against the police, and 365 days each for violating the HRO and the two counts of child
endangerment. This appeal follows.
DECISION
I. Bolster’s conviction for threats of violence against t he son is not supported by
sufficient evidence and must be reversed.

Bolster argues that the evidence is insufficient to sustain his convictions for making
threats of violence to his son and daughter. 1 Upon a claim of insufficient evidence, we
review the record to determine “whether the evidence, when viewed in the light most

1 Bolster does not challenge the sufficiency of the evidence for his conviction for threats
of violence against law enforcement. He also does not challenge the sufficiency of the
evidence for the child-endangerment convictions and his conviction for violating the HRO.
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favorable to the conviction, is sufficient to allow the jurors to reach their verdict.” State v.
Olhausen, 681 N.W.2d 21, 25 (Minn. 2004) .
We assume that the jury believed the state’s witnesses and
disbelieved any evidence to the contrary . We will not disturb
the verdict if the jury, while acting with proper regard for the
presumption of innocence and regard for the requirement of
proof beyond a reasonable doubt, could reasonably conclude
that the defendant was guilty of the charged offen se.

Id. at 25-26 (citations omitted).
When a conviction is based on circumstantial evidence, we use a two-step process
to assess the sufficiency of the evidence . State v. Silvernail, 831 N.W.2d 594, 598 (Minn.
2013). First, we identify the circumstances proved, assuming that the jury resolved any
factual disputes in a manner that is consistent with the jury’s verdict. Id. at 598 -99.
Second, this court independently examines the reasonableness of the inferences the jury
could dra w from those circumstances. Id. at 599. The circumstances proved must be
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010).
Under Minnesota law , “[w]hoever threatens, directly or indirectly, to commit a ny
crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk
of causing such terror” is guilty of making a threat of violence. Minn. Stat. § 609.713,
subd. 1 (2018). A “crime of violence” under the statute includes first -degree arson. See
id.; see also Minn. Stat. § 609.1095, subd. 1(d) (2018).
At trial, the state theorized that Bolster committed threats of violence against his
two children by using the word “bomb” and threatening to shoot the gas meter and thereby
6
blow up the residence . Bolster argues that the evidence is insufficient to prove that he
threatened to commit first -degree arson with the intent to terrorize or in reckless disregard
of the risk of c ausing terror to his children. A threat is “a declaration of an intention to
injure another or his property by some unlawful act.” State v. Schweppe, 237 N.W.2d 609,
613 (Minn. 1975). Under the reckless -disregard prong of the threats -of-violence statute ,
an individual need not have the specific intent of terrorizing another, but rather “recklessly
risks the danger that the statements would be taken as threats by another and that they
would cause extreme fear.” State v. Bjergum , 771 N.W.2d 53, 57 (Minn. App. 2009)
(quotation omitted), rev. denied (Minn. Nov. 17, 2009). Bolster argues that the evidence
is insufficient to prove that he made a threat of arson in reckless disregard of the risk of
terrorizing his children.
The circumstances proved here are as follows. Bolster was acting in an irate and
belligerent manner, various officers heard him threate n to “blow the gas”or shoot the gas
meter, and he threw multiple items at the gas meter. The officers and Bolster’s daughter
heard him mention a bomb. During the standoff , his daughter sent messages to her friend
that she was shaking and was not able to calm down. She eventually left through a window
on the backside of the home, not through the door, taking her cat with her. H er four-year-
old brother, however, remained in the residence and was found a “very short distance” from
Bolster when law enforcement eventually entered the residence. The residence was a
mobile home and not very large.
Based on these circumstances, the evidence is sufficient to sustain the conviction
for making threats of violence against Bolster’s daughter. While she testified that her father
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never threatened her, she could hear him yelling at law enforcement and distinctly heard
him use the word “bomb.” She also texted a friend that she was shaking and could not
calm down, and ultimately climbed through a window to get out of the residence. It is
reasonable to conclude that Bolster should have known that using the term “bomb” while
in a tense standoff with law enforc ement would cause extreme fear, and that he recklessly
disregarded that risk. The evidence also supports the reasonable inference that Bolster’s
daughter experienced fear as a result of his actions. We thus conclude that the
circumstances proved with regard to his daughter are consistent with guilt and inconsistent
with any rational hypothesis except that of guilt.
The evidence concerning threats of violence against Bolster’s four-year-old son is
not as clear. The state’s case relies on the argument that the residence was so small that
the only reasonable inference is that both children heard their father make threats and that
this caused them terror. But while Bolster’s daughter testified that she heard Bolster say
the word bomb, the state provided no such evidence to corroborate what the son heard.
While it is a rational and even likely hypothesis that, because of the close quarters, the son
heard the threats and was scared as a result, we cannot conclude that this is the only rational
hypothesis that can be drawn from the circumstances proved. Given the lack of evidence
as to son, it is not irrational to draw the inference that the son did not hear the threat s. As
a result, the evidence is insufficient to sustain Bolster’s conviction for making threats of
violence against the son and we reverse that conviction.

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II. The district court did not abuse its discretion by denying the motion for a
mistrial.

Bolster’s next argument concerns testimony from one of the detectives explaining
that the detective was involved in the case because he “monitor[ed] jail calls made by
Gerald Bolster from the Dakota County jail.” Bolster’s trial counsel objected, and the
district court immediately instructed the jury to disregard the statement. The district c ourt
later gave a more detailed instruction that they should not consider the location of the phone
calls and reminded the jury of the presumption of innocence. Bolster’s trial counsel made
a motion for a mistrial, which the district court denied. Bolster argues that the district court
abused its discretion by denying the mistrial motion.
A mistrial may be granted only if “there is a reasonable probability that the outcome
of the trial would [have been ] different” had the incident resulting in the motion not
occurred. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (quotation omitted). This
court reviews the denial of a motion for a mistrial for abuse of discretion. State v.
Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). We consider the entire trial, including the
mitigating effects of a curative instruction, when determining whether inadmissible
evidence affected the outcome of the trial. See Manthey, 711 N.W.2d at 506-07.
Bolster argues that the improper testimony that he was in jail was highly prejudicial,
that the curative measures were insufficient to prevent prejudice, and that he is therefore
entitled to a new trial. We are not persuaded. The district court here immediately instructed
the jury to disregard the reference to jail and la ter reminded the jury that Bolster is to be
presumed innocent, that being arrested in the normal process of law should not be
9
considered by the jury as proof of guilt, and that the burden to prove guilt was on the state,
not on Bolster to prove his innocence.
Moreover, the jury was already aware from other testimony that Bolster had been
arrested at the end of the standoff. And, as the state notes, the evidence that Bolster was in
jail was ultimately going to come in through another witness . The state p ut some of the
recorded jail calls into evidence and , to lay foundation for admission of the calls, the
witness was permitted to testify that the phone calls were recorded in jail. Given that the
jury was ultimately going to hear that the phone calls were recorded in jail , we cannot
conclude that the detective’s testimony affected the outcome of the trial.
III. The threats-of-violence and chi ld-endangerment offenses arose out of a single
behavioral incident, and the sentence for child endangerment of the daughter
must be vacated.

We now turn to Bolster’s argument that the district court erred by sentencing him
for both threats of violence a nd child endangerment because the offenses were committed
as part of a single behavioral incident. Under Minn. Stat. § 609.035, subd. 1, “if a person’s
conduct constitutes more than one offense under the laws of this state, the person may be
punished for only one of the offenses.” The statute prohibits multiple sentences, including
concurrent ones, for offenses that were committed as part of a single behavioral incident.
State v. Ferguson, 808 N.W.2d 586, 589 (Minn. 2012).
The district court’s decision whether multiple offenses were committed as part of a
single behavioral incident under Minn. Stat. § 609.035 , subd. 1, entails factual
determinations that will be reversed only if clearly erroneous. State v. O’Meara , 755
N.W.2d 29, 37 (Minn. App. 2008). When the facts are not in dispute, the de termination
10
whether multiple offenses are part of a single behavioral incident presents a question of
law that is reviewed de novo. Ferguson, 808 N.W.2d at 590.
In determining whether offenses were committed as a part of a single behavioral
incident, the court considers “whether the offenses (1) arose from a continuous and
uninterrupted course of conduct; (2) occurred at substantially the same time and place; and
(3) manifested an indivisible state of mind.” State v. Heath, 685 N.W.2d 48, 61 (Minn.
App. 2004), rev. denied (Minn. Nov. 16, 2004).
We conclude that the offenses here were committed as part of a single behavioral
incident. The state is correct tha t the threats -of-violence convictions are predicated on
specific threats of arson while the child -endangerment convictions are predicated on
Bolster’s actions throughout the 15-hour standoff. But both charges ultimately considered
the effects of Bolster’s actions on the physical and emotional health of his children during
the uninterrupted, although prolonged, standoff. In addition, the prosecutor specifically
referenced the threats of arson when addressing the child-endangerment charges in closing
arguments. Because we reverse the threats-of-violence conviction as it relates to the son,
the sentence imposed for the child-endangerment conviction as to the son is not duplicative
and remains. But the sentence for child endangerment of the daughter occurred during the
same behavioral incident that led to the threats -of-violence conviction and, under Minn.
Stat. § 609.035, only one sentence is permitted . Thus, the child-endangerment sentence as
it relates to the daughter must be vacated.
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IV. Bolster’s pro se claims lack merit.
Finally, Bolster filed a pro se supplemental brief in which he makes several
allegations relating to his arrest and subsequent trial. He asserts that he did not threaten
anyone or possess any weapons, that he did not know about the HRO, that he did not have
adequate counsel, that the district court judge was prejudiced against him, that his mental -
health issues, including the fact that he was taking illegal drugs while incarcerated, were
not adequately addressed durin g trial, that his daughter was coached on what to say by a
victim advocate, and that his speedy -trial rights were violated. The only assertion that is
accompanied by legal argument or authority is that his speedy -trial rights were violated,
and the other issues are therefore forfeited. See State v. Anders en, 871 N.W.2d 910, 915
(Minn. 2015) ( declining to consider arguments based on mere assertion and unsupported
by argument or authority on appeal).
The United States and Minnesota Constitutions afford cr iminal defendants the right
to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6 . Under Minn. R. Crim.
P. 11.09, a trial must start within 60 days of a speedy -trial demand “unless the court finds
good cause for a later trial date. ” And a d efendant must be released if the trial does not
start within 120 days of the speedy -trial demand “[u]nless exigent circumstances exist.”
Minn. R. Crim. P. 11.09. If a defendant has been deprived of his constitutional right to a
speedy trial, the criminal case against him must be dismissed. State v. Osorio, 891 N.W.2d
620, 627 (Minn. 2017). This court reviews a claimed speedy-trial violation de novo. State
v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015).
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“[T]o determine whether a speedy -trial violation has occurred, we apply the
four-factor balancing test set forth by the Supreme Court of the United States in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972).” Osorio, 891 N.W.2d at 627 . The
four factors are: “(1) the length of the delay; ( 2) the reason for the delay; (3) whether the
defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced
the defendant.” Id. (quotations omitted). “None of these factors is either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they
are related factors and must be considered together with such other cir cumstances as may
be relevant.” Taylor, 869 N.W.2d at 19 (quotation omitted ). It is “a difficult and sensitive
balancing process” in which the court considers “the conduct of both the State and the
defendant.” Osorio, 891 N.W.2d at 628 (quotations omitted).
Bolster experienced a 30 -day delay after the speedy -trial deadline because of the
continuance. The delay was caused by a combination of the limited availability of
courtrooms due to the COVID -19 pandemic protocols and the unavailability of Bolster’s
defense counsel. Bolster expressed his dissatisfaction by stating that he did not believe
that the pandemic constituted good cause for a delay, but never made a motion to dismiss.
In a recent precedential opinion, this court determined that a 17-day delay caused by public-
safety concerns related to the COVID -19 pandemic did not violate the appellant’s speedy -
trial rights. State v. Jackson, 968 N.W.2d 55 , 63 (Minn. App. 2021) , rev. granted (Minn.
Jan. 18, 2022). This court observed that neither the defendant nor the state was responsible
for the delay, and that “[t]he delay was justif ied by the pandemic.” Id.
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Here, the delay was caused by public -safety concerns related to the COVID -19
pandemic and the unavailability of defense counsel on the original trial date. We discern
no prejudice to Bolster given that the trial was continued in part to accommodate the
schedule of defense counsel. And he was ultimately tried just 30 days outside the 60 -day
window, which is well before the 120-day deadline on which a defendant must be released.
Finally, he was tried just four months after the offense occurred, which makes it unlikely
he suffered any prejudice from a witness losing a memory or witness unavailability. See
Taylor, 869 N.W.2d at 20 (stating prejudice may be shown by “memory loss by witnesses
or witness unavailability ”). We thus conclude that the delay did not violate Bolster’s
speedy-trial rights.
Affirmed in part, reversed in part, and remanded.