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This opinion is nonprecedential except as provided by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
A22-1581

State of Minnesota,
Respondent,

vs.

Calvin Edward Bartz,
Appellant.

Filed September 5, 2023
Affirmed in part, reversed in part, and remanded
Ross, Judge

Carlton County District Court
File No. 09-CR-21-1729

Keith Ellison, Attorney General, Jacob Campion, Assistant Attorney General, St. Paul,
Minnesota; and

Lauri Ketola, Carlton County Attorney, Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A jury found Calvin Bartz guilty on two counts of second-degree criminal sexual
conduct because he molested his nine-year-old daughter. Bartz moved the district court for
a downward dispositional departure from the presumptive sentence under the sentencing
2
guidelines. The district court denied the motion, entered convictions on both counts, and
sentenced Bartz on one. Bartz cites three alleged errors on appeal: improper burden shifting
by the prosecutor; improper denial of his departure motion; and the improper entry of two
convictions. Because the prosecutor did not improperly shift the burden of proof to Bartz
and the district court did not abuse its discretion by denying Bartz’s motion for a downward
dispositional sentencing departure, we affirm in part. But because the district court wrongly
entered convictions on both counts, we reverse in part and remand for the district court to
correct the warrant of commitment.
FACTS
Calvin Bartz’s nine-year-old daughter disclosed to her mother that when Bartz had
parenting time at his home, he would touch her “private parts” under her clothes. The girl
told a child-advocacy forensic interviewer that Bartz, whom she stayed with on weekends,
had been touching her genitals “for a while.” She said that the abuse occurred in a similar
way each time. Bartz would sit on his living-room armchair and tell her, “[C]ome sit with
me.” He had her sit on his lap. While the two watched television, Bartz would reach under
her clothes and touch her.
Carlton County investigators Russell French and Jessica Laney questioned Bartz for
thirty minutes at his home and recorded the interview with a body-worn camera. Bartz
maintained his innocence and offered no explanation as to why his daughter would accuse
him of sexually abusing her.
The state charged Bartz with two counts of second-degree criminal sexual conduct
under Minnesota S tatutes section 609.343, subdivisions 1(g) and 1(h)(iii) (2020).
3
Investigator French testified about his investigation, and the recorded interview was
admitted as evidence. On cross-examination, defense counsel asked the investigator about
Bartz’s responses during the interview, specifically: “[I]n this interview he consistently
denied any sexual activity with his daughter, beginning to end, correct?” and “[H]e denied
to you consistently throughout that he ever touched his daughter in a sexual way, correct?”
The prosecutor, on redirect, also asked about Bartz’s responses during the interview. The
prosecutor asked a series of questions: “[I]f somebody is innocent, do they deny that, deny
an allegation?” “[H]as it also been your experience that people who are guilty deny the
allegations?” “[D]id he ever ask you what his daughter said he did to her?” “ Did he ever
ask if his daughter was okay?” Bartz’s attorney objected to each question, and the district
court sustained the objections.
The prosecutor referred to the interview in her closing argument: “Investigator
French went to great lengths to try to give [Bartz] an opportunity to provide an explanation,
to somehow make sense of this outside of it being intentional and sexual.” Bartz’s attorney
objected, and the court sustained the objection, reiterating to the jury that Bartz bore no
burden of proof. The prosecutor twice returned to this theme. Summarizing the video, the
prosecutor remarked, “You got to watch the interview. . . . You saw his body language.
You saw how he responded to questions. You saw what he didn’t -- how he didn’t respond
to questions. Didn’t ask questions about what [his daughter] said, because he knew.”
Bartz’s attorney successfully objected. The prosecutor began to ask the jury, “The
Defendant, when asked why would she – why would she say this, his response was – ”
Bartz’s attorney interrupted her with an objection, which again the district court sustained.
4
The jury found Bartz guilty on both counts. Bartz moved for a downward
dispositional sentencing departure from the presumptive sentence under the guidelines.
The district court denied his motion. The district court sentenced Bartz on only count two—
the charge under subdivision 1(h)(iii)—to an executed 108-month prison term.
Bartz appeals.
DECISION
Bartz raises three arguments on appeal. First, he maintains that the prosecutor
engaged in misconduct by referencing the police interview and highlighting Bartz’s failure
to challenge or explain his daughter’s allegation that he touched her genitals. Second, Bartz
contends that the district court abused its discretion by denying his request for a downward
dispositional departure at sentencing. And third, Bartz argues that the district court
erroneously entered two convictions for the same conduct. Only Bartz’s third contention
prevails.
I
Bartz argues that the prosecutor engaged in misconduct when she questioned the
police officer about and referenced during closing arguments his failure to ask about his
daughter’s wellbeing or explain the allegations during his conversation with police. When
reviewing claims of objected-to prosecutorial misconduct, we first evaluate whether
misconduct occurred and then assess for harmlessness, determining whether the
misconduct prejudiced the appellant. See State v. Carridine, 812 N.W.2d 130, 150 (Minn.
2012). Because we are certain that Bartz has failed to establish that the prosecutor engaged
in misconduct, we address only the first prong.
5
The primary concern in cases of prosecutorial misconduct is that the prosecutor’s
misconduct may deprive the defendant of his right to a fair trial. State v. Ramey, 721
N.W.2d 294, 300 (Minn. 2006). Because the state bears the burden of proving a defendant’s
guilt beyond a reasonable doubt, a prosecutor engages in misconduct when she shifts the
state’s burden of proof to the defendant. State v. Nissalke , 801 N.W.2d 82, 106 (Minn.
2011). Contrary to Bartz’s contention, that burden shifting did not occur here. During her
closing argument, the prosecutor repeatedly reminded the jury—five times —that it is the
state that bears the burden of proof. And although a prosecutor does engage in misconduct
by commenting on a defendant’s failure to testify or present evidence at trial, see State v.
Hoppe, 641 N.W.2d 315, 321 (Minn. App. 2002), rev. denied (Minn. May 14, 2002), Bartz
presents no authority supporting his contention that a prosecutor acts improperly by
referencing a defendant’s pretrial failure to respond to allegations during a voluntary,
noncustodial police interview. The cases Bartz relies on highlight the distinction between
the prosecutor’s conduct here and instances when prosecutors engaged in misconduct by
shifting the burden of proof. In State v. Coleman, the prosecutor remarked in closing that
only the state, and “not the defense,” presented any evidence at trial. 373 N.W.2d 777, 782
(Minn. 1985). Similarly in State v. Porter, the prosecutor made direct and indirect
references to Porter’s failure to present a defense, testify, or impeach the state’s witness.
526 N.W.2d 359, 364–65 (Minn. 1995). And in State v. Hoppe the prosecutor highlighted
the defendant’s failure to rebut the state’s evidence. 641 N.W.2d at 321. In each of these
cases the prosecutor highlighted the defense’s failure to present evidence at trial. In
6
contrast, the prosecutor here commented on Bartz’s pretrial failure to dispute the
allegations against him when questioned by officers.
The more apposite cases are those that directly address whether a defendant
voluntarily interviewed by police in a noncustodial setting has a constitutional right to
remain silent that is violated when the state relies on the defendant’s silence to prove his
guilt. This is because Bartz implicitly argues that a defendant’s right to remain silent vests
before he is taken into custody and advised of his right to remain silent under Miranda.
Neither the Minnesota Supreme Court nor the United States Supreme Court has so held.
The state supreme court in fact rejected the proposition in State v. Borg, 806 N.W.2d
535 (Minn. 2011). The Borg defendant failed to respond to a letter from police seeking to
arrange to interview him with his counsel present regarding a criminal investigation, and
the state sought to produce evidence of this failure during its case in chief. 806 N .W.2d at
539–40. The Borg court was not persuaded by Borg’s constitutional argument against the
state’s use of his silence. It held that “the Fifth Amendment . . . does not prohibit the State
from introducing evidence during the State’s case in chief regarding a defendant’s silence
unless the government compelled the defendant to speak or to remain silent.” Id. at 537.
The United States Supreme Court essentially rejected the idea two years later in
Salinas v. Texas, 570 U.S. 178 (2013). The Salinas Court faced the question of whether a
defendant’s silence in response to precustodial, pre-Miranda police questioning is
admissible in the prosecutor’s case in chief as evidence of the defendant’s guilt. Salinas,
570 U.S. at 183. In a three-opinion decision, the three-Justice plurality concluded that the
defendant had no Fifth Amendment right-to-silence claim because he never expressly
7
invoked the right. Id. And two other Justices more broadly rejected the defendant’s claim
that the prosecutor had acted improperly, reasoning that, regardless of whether the
defendant attempted to invoke his right to remain silent, the prosecutor’s trial references to
the defendant’s silence could not implicate the right. Id. at 192 (Thomas, J., concurring).
Applying the Borg and Salinas rationale by analogy here, because Bartz was not in custody
and voluntarily participated in the police interview, his constitutional right to remain silent
was not implicated and the prosecutor did not commit misconduct by referencing Bartz’s
silence during trial.
For these reasons we hold that the prosecutor did not engage in misconduct by
commenting on Bartz’s silence. The references did not improperly shift the burden of proof
or otherwise involve Bartz’s constitutional right to silence. We need not address the state’s
alternative argument, which is that the references were harmless even if they were error.
II
Bartz alternatively argues that the district court abused its discretion by denying his
motion for a downward dispositional departure. District courts must presume that the
sentence designated by the sentencing guidelines is the appropriate sentence. Minn. Sent’g
Guidelines 2.D.1 (2020); State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). A district court
may depart from the presumptive sentence directed by the guidelines only if substantial
and compelling reasons to depart are present. Minn. Sent’g Guidelines 2.D.1; Soto, 855
N.W.2d at 308. We afford great deference to a district court’s decision to sentence within
the guidelines range and will only reverse when the district court abuses its discretion, Soto,
855 N.W.2d at 307–08, meaning that the district court based its decision on “an erroneous
8
view of the law or [its decision] is against logic and the facts in the
record,” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted). The
record informs us that the district court imposed a sentence within its discretion.
Bartz argues that the district court abused its discretion by concluding that Bartz
was not particularly amenable to probation. A defendant’s “particular amenability” to
probation may support a district court’s decision to dispositionally depart from the
sentencing guidelines by imposing probation rather than a term of imprisonment. Soto, 855
N.W.2d at 308. In determining whether a defendant is particularly amenable to probation,
the sentencing court considers the defendant’s “age, his prior record, his remorse, his
cooperation, his attitude while in court, and the support of friends . . . or family.” State v.
Trog, 323 N.W.2d 28, 31 (Minn. 1982). Bartz alleges two legal errors.
Bartz maintains first that the district court erred as a matter of law by deeming his
stable life, consistent appearances in court, and family support irrelevant under Trog. Bartz
misconstrues the district court’s order. Although the district court stated that the fact that
Bartz had built a life was “irrelevant to [the court],” the district court’s analysis reflects its
reasoning that Bartz’s life-developing circumstances —while relevant—were not
compelling. Immediately after making its statement, the district court correctly articulated
and applied Trog’s particular-amenability standard. It observed that Bartz was cooperative
in court but indicated that his cooperation was not extraordinary. And regarding Bartz’s
support from friends and family, the district court observed that Bartz had no more support
at the time of sentencing than he had when he committed the offense. The district court did
not erroneously treat any Trog factor as irrelevant.
9
Bartz maintains second that the district court erred by treating remorse as a “strict
prerequisite” to departing downward dispositionally from a guidelines presumptive
sentence. While remorse is not a prerequisite to granting a downward dispositional
departure, it is a relevant factor for the district court’s consideration. Soto, 855 N.W.2d at
311. And the district court here treated remorse only as a factor. The district court observed
Bartz’s apparent lack of remorse in the context of its discussion of all the Trog factors.
Before acknowledging Bartz’s lack of remorse, the district court acknowledged his lack of
a criminal history. It then weighed the cooperation and community-support factors. Bartz
has not shown that the district court’s sentencing decision focused exclusively on his lack
of remorse.
We are mindful that, as Bartz emphasizes, some of the Trog factors—his prior
record, cooperation in court, and family support—are factors that might weigh in favor of
a dispositional departure. But even when grounds exist to depart from the presumptive
guidelines sentence, a district court is not required to depart. See State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006). And when the record shows that the district court
“carefully evaluated all the testimony and information presented” before imposing a
presumptive guidelines sentence, we will defer to the district court’s discretion. State v.
Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Here the district court
advised the parties that it had reviewed the submitted sentencing documents “very closely,”
including the presentence investigation, Bartz’s motion for a departure, the state’s
response, and the letters of Bartz’s supporters. The district court did not abuse its discretion
by denying his motion for a downward dispositional departure.
10
III
We address last the warrant of commitment. Bartz and the state agree that the district
court erred by entering convictions on both counts of second- degree criminal sexual
conduct because count one was an included offense. Courts may correct an illegal sentence
“at any time,” Minn. R. Crim. P. 27.03, subd. 9, and whether a sentence conforms to the
requirements of a statute or the sentencing guidelines is a question of law we review de
novo. State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). A defendant may be convicted
of “either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04,
subd. 1 (2020). An offense is an included offense if it is “a crime necessarily proved if the
crime charged were proved.” Id., subd. 1(4). Bartz was charged under Minnesota Statutes
section 609.343, subdivisions 1(g) and 1(h)(iii). The elements of these offenses overlap
except that subdivision 1(h)(iii) involves multiple acts of sexual abuse committed over
time. Because proving that the abuse occurred on multiple occasions under subdivision
1(h)(iii) also proves that the abuse occurred under subdivision 1(g), Bartz cannot be
convicted of both. We therefore reverse Bartz’s conviction on count one and remand to the
district court, which we instruct to vacate that conviction.
Affirmed in part, reversed in part, and remanded.