681 Properties, LLP, Appellant,

This opinion is nonprecedential except as provided by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
A22-1707

681 Properties, LLP,
Appellant,

vs.

Numerianus Mulokozi,
Respondent,

John Doe, Jane Doe,
Defendants.

Filed August 14, 2023
Affirmed
Reilly, Judge

Hennepin County District C ourt
File No. 27-CV-HC-22-5445

Christopher T. Kalla, Douglass E. Turner, Hanbery & Turner, P.A., Minneapolis,
Minnesota (for appellant)

Justin Prentice, Hennepin County Adult Representation Services , Minneapolis, Minnesota
(for respondent)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appealing from the dismissal of an eviction action, appellant -landlord argues the
district court erred by (1) excluding a criminal complaint from evidence, (2) declining to
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draw an adverse inference from respondent -tenant’s invocation of his Fifth Amendment
rights when questioned about allegedly criminal conduct in the apartment , and
(3) determining landlord failed to meet its burden by proving the grounds for eviction by a
preponderance of the evidence. Because landlord waived its evidentiary argument and the
district court did not abuse its discretion in declining to draw an adverse inference against
tenant, we affirm.
FACTS
Respondent-tenant Numer ianus Mulokozi rented an apartment from appellant -
landlord 681 Properties LLP in Brooklyn Park. In September 2022, landlord filed an
expedited eviction complaint against tenant alleging that tenant committed a vi olent sexual
assault against another person in his apartment on September 13. Landlord sought to evict
tenant for violating the parties’ residential lease agreement , which prohibited residents
from engaging in criminal activity and acts or threats of violence on the premises. Landlord
also asserted that tenant’s alleged criminal conduct violated a Minnesota statute which sets
forth a covenant between landlords and tenants in all lease agreements prohibiting both
parties from committing particular acts aga inst “a tenant or licensee or any authorized
occupant.” Minn. Stat. § 504B.171, subd. 1(b) (2022). Criminal sexual conduct is a
prohibited act under this statute. Minn. Stat. § 504B.206, subd. 1(a)(2) (2022).
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The district court held a bench trial before a referee.1 Tenant raised a motion in
limine to exclude from evidence landlord’s trial exhibit, a complaint charging tenant with
criminal sexual conduct, because landlord would not be calling any witnesses to testify to
the contents of the complaint. Landlord explained that it did not know the identity of the
victim and would not be calling any police officers to testify. The district court determined
the complaint was inadmissible because its substance was hearsay and hearsay -within -
hearsay. But the district court noted it would take judicial notice of the fact that charges
were filed against tenant.
Landlord called tenant as its first witness. Tenant testified he lived at the apartment
building in Brooklyn Park and that he was in his apartment on September 13 at 3:00 p.m.
For the entire remaining questioning, tenant asserted his Fifth Amendment right against
self-incrimination and refused to answer landlord’s questions about the alleged criminal
sexual conduct.
Q: Did you sexually assault somebody that afternoon at your
apartment, sir?
A: I would prefer to remain silent.
Q: Did you grab a victim – somebody’s arm and try to pull
their pants down?
A: I prefer to exercise my right to remain silent.

. . . .

Q: At one point, did you touch a person’s hand and force that
person’s hand onto your penis?
A: I exercise my right to remain silent.

1 Once the district court confirms a referee’s findings, the findings become the order of the
district court. Minn. Stat. § 484.70, subd. 7(c) (2022). We review such orders like any
other district court order.
4
The property manager of the apartment building also testified. The property
manager explained she was familiar with tenant based on a previous interaction about rent
and testified she believed he was a “very combative” man. After her interaction with tenant
about rent, tenant called the police about the property manager and sought a restraining
order against her. The property manager testified that she did not have any firsthand
knowledge of guests at tenant’s apartment. Landlord rested and tenant did not call any
witnesses. In its closing argument, landlord’s counsel asked the district court to find that
tenant engaged in criminal sexual conduct on September 13 at his apartment by a
preponderance of the evidence based on an adverse inference taken from tenant’s assertion
of his right against self -incrimination and the property manager’s opinion of tenant’s
character.
The district court dismissed the eviction action, declining to draw an adverse
inference against tenant and reasoning that landlord did not meet its burden to prove the
grounds for eviction because landlord “did not present any witness testimony or admissible
exhibits that identified tenant as having committed criminal sexual conduct or any other
criminal activity.”
Landlord appeals.
DECISION
I. Landlord waived its evidentiary arguments on the admissibility of the criminal
complaint by raising them for the first time on appeal.

Landlord argues that the district court erroneously refused to admit the criminal
complaint under the business record hearsay exception, Minn. R. Evid. 803(6), and as a
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self-authenticating document , Minn. R. Evid. 901. The district court has “broad discretion”
to rule on evidentiary matters, and we generally will not reverse “absent an abuse of that
discretion.” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015). But we need not
decide whether the district court abused its discretion as this issue is not properly before
this court. Landlord raises these evidentiary arguments for the first time on appeal. Thiele
v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider
only the issues that the record shows were presented and considered” by the fact -finder “in
deciding the matter before it.”). Before trial, tenant made a motion in limine to exclude
the criminal complaint arguing that it contained hearsay and hearsay -within-hearsay. In
response, landlord argued the district court should determine the criminal complaint was
admissible because the document “provide[d] some context for the case” and a “good faith
basis for the questions” landlord planned to ask tenant. Landlord did not argue that any
hearsay exceptions, like the business records exception, or other evidentiary rules applied
to render the complaint admissible. Because these arguments were not presented to and
considered by the district court , we decline to consider them.
2 See id.

2 Landlord also argues the district court erroneously failed to grant summary judgment for
landlord because tenant’s refusal to answer landlord’s questions did not amount to a denial
of the allegations against him and “leaves the court with no genuine dispute as to the
allegations of the eviction com plaint.” This argument contains multiple flaws. First,
landlord never moved the district court for summary judgment and the district court did
not consider this argument. See Thiele, 425 N.W.2d at 582. Second, tenant denied the
allegation he committed criminal sexual conduct in his apartment two times—at his first
appearance and in his answer to the eviction complaint. We are unconvinced that summary
judgment was warranted, sua sponte or otherwise, when a genuine issue of material fact
remained concerning whether tenant engaged in the alleged criminal activity. See Minn.
R. Civ. P. 56.01 (“The court shall grant summary judgment if the movant shows that there
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II. The district court did not abuse its discretion by declining to draw an adverse
inference against tenant and did not err by determining landlord failed to
meet its burden of proof.

Landlord argues that tenant’s assertion of his right against self -incrimination and
failure to deny the allegations against him warrant ed an adverse inference . Landlord
asserts that, had the district court not failed to draw an adverse inference, the district court
would have concluded as a matter of law that tenant committed the alleged criminal act in
violation of his lease agreement and Minnesota law. As a result, we undertake a two -step
analysis. First, we consider the district court’s decision to not draw an adverse inference
against tenant. Second, we consider whether the district court erred in determining landlord
failed to meet its burden to prove the grounds for eviction by a preponderance of the
evidence. Nationwide Hous. Corp. v. Skoglund, 906 N.W.2d 900, 904 (Minn. App. 2018),
rev. denied (Minn. Mar. 28, 2018).
Adverse Inference
The Fifth Amendment right against self -incrimination may be invoked if the
testimony or information sought would tend to incriminate the witness. Minn. State Bar
Ass’n v. Divorce Assistance Ass’n, Inc., 248 N.W.2d 733, 737 (Minn. 1976). This right
can be invoked in civil as well as criminal proceedings. Parker v. Hennepin Cnty. Dist.
Court, Fourth Judicial Dist., 285 N.W.2d 81, 82- 83 (Minn. 1979). In a civil case, a
factfinder may draw an adverse inference from a party or witness’s invocation of the right.
Wartnick v. Moss & Barnett , 490 N.W.2d 108, 111 n.1 (Minn. 1992); see also

is no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.”).
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Recommendation for Discharge of Kelvie , 384 N.W.2d 901, 906 (Minn. App. 1986)
(“Drawing adverse inferences from [respondent’s] refusal to testify in a civil matter is
permitted but not mandatory.”). Given the discretionary nature of the district court ’s
decision whether to draw an adverse inference, we review the district court’s exercise of
discretion for abuse. See Wartnick, 490 N.W.2d at 111 n.1.
An adverse inference based on an individual’s refusal to testify cannot by itself
establish that a party committed an offense. Comm ’r of Revenue v. Fort, 479 N.W.2d 43,
50 (Minn. 1992) (holding that adverse use of a party’s Fifth Amendment invocation “would
penalize her for an exercise of her constitutional right” when the invocation was the only
basis for concluding she committed an offense ). Independent probative evidence must
exist of a fact beyond a party’s refusal to answer for an adverse inference to be proper. See
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“[T]he Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they refuse to testify in response to
probative evidence offered against them.” ).
On this record, landlord did not set forth independent probative evidence that tenant
engaged in criminal sexual conduct in his apartment to warrant an adverse inference . The
criminal complaint was excluded from evidence and the district court only took judicial
notice that tenant was charged. Neither the victim nor any law enforcement officer testified
about the criminal charges or their underlying circumstances. The property manager only
testified that she believed tenant to be a “combative” man and she felt uncomfortable in his
presence. As observed by the district court, the property manager’s testimony “does not
make it more or less likely that [t]enant sexually assaulted someone else.” We agree with
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the district court’s further determination that the record lacked any probative “witness
testimony or admissible exhibits that identified [t]enant as having committed criminal
sexual conduct or any other criminal activity.”
Landlord cites to Peak v. Handicabs Intern., Inc. for the proposition that the mere
existence of a cri minal complaint is sufficient independent evidence to permit the district
court to draw an adverse inference against tenant. No. C4-01-114, 2001 WL 881215, at *2
(Minn. App. Aug. 7, 2001). Peak is a nonprecedential opinion and is “not binding
authority.” Minn. R. Civ. App. P. 136.01, subd. 1. Further, landlord misconstrues its
holding. In Peak, this court determined there was no basis for drawing an adverse inference
after the assertion of the right against self -incrimination when the “record [was] dev oid of
evidence bearing on whether Peak actually committed the act with which he was charged.”
Peak, 2001 WL 881215, at *2. Listing the many ways in which the record was deficient,
this court observed
the record contains no testimony from or affidavit of the
arresting officer, any witness, or the victim of the alleged
assault. And . . . there is in the record no copy of the criminal
complaint, of a police report, or of any other document relevant
to the charge against Peak. Therefore, there was no basis for
drawing an adverse inference against Peak because there was
no evidence offered against him.

Id. Contrary to landlord’s assertion, Peak does not hold the existence of a criminal
complaint is independent evidence that supports an adverse inference ag ainst tenant. In
fact, Peak supports the district court’s decision not to draw an adverse inference in this
case, given the lack of independent probative evidence to suggest tenant committed the
alleged criminal sexual conduct in his apartment. We conclu de the district court did not
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abuse its discretion in declining to draw an adverse inference from t enant’s refusal to
answer questions about the allegations and his assertion of his right against self -
incrimination.
Burden of Proof
We turn to whether the d istrict court erred by determining landlord failed to meet
its burden of proof and dismissing the eviction action. We review the district court’s factual
findings for clear error, Cimarron Vill. v. Washington, 659 N.W.2d 811, 817 (Minn. App.
2003), and legal conclusions de novo, Skoglund, 906 N.W.2d at 907. Here too, we agree
with the district court’s conclusion that landlord did not advance any probative evidence
that tenant committed the alleged criminal se xual conduct in his apartment in violation of
the lease agreement and Minn. Stat. § 504B.171, subd. 1(b). See Vermillion State Bank v.
Tennis Sanitation, LLC , 969 N.W.2d 610, 626 (Minn. 2022) ( noting “it must be more
probable that the fact exists than tha t the contrary exists” to satisfy the preponderance -of-
the-evidence standard). The only evidence of tenant’s conduct offered by landlord was the
testimony of the property manager. The property manager’s testimony that tenant was
“combative” during a rent dispute was not probative of landlord’s allegations. Thus, t he
district court did not err in concluding landlord failed to prove its stated grounds for
eviction by a preponderance of the evidence.
Affirmed.