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This opinion is nonprecedential except as provided by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
A23-0305

State of Minnesota,
Respondent,

vs.

Daryl Craig Kivi,
Appellant.

Filed March 18, 2024
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-21-13773

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

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

Considered and decided by Frisch, Presiding Judge; Johnson, Judge; and Larkin,
Judge.

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NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Hennepin County jury found Darryl Craig Kivi1 guilty of three counts of criminal
sexual conduct based on evidence that he sexually abused three of his minor step-
granddaughters between 2007 and 2012. We conclude that the district court did not err by
denying Kivi’s motion to strike a juror for bias. We also conclude that the district court
did not err by denying Kivi’s mid-trial motion for a mistrial. Therefore, we affirm.
FACTS
Kivi was married to D.R. for 30 years, from 1985 to 2015 . D.R. has three
granddaughters who are children of D.R.’s children from a prior marriage: J.T., R.H.-S.,
and J.L. The three granddaughters visited the home of D.R. and Kivi in the city of
Greenfield on multiple occasions.
In February 2020, 20- year-old J.T. re ported to a police officer that she had been
sexually abused by Kivi when she was between 10 and 12 years old. In May 2021, 19-
year-old R.H.-S. reported to a police officer that she also had been sexually abused by Kivi
when she was between five and six years old. Soon thereafter, 14-year -old J.L. reported
that she too had been sexually abused by Kivi when she was between three and six years
old.

1Our case caption indicates that appellant’s first name is Daryl, which conforms to
the district court’s sentencing order and the notice of appeal. See Minn. R. Civ. App. P.
143.01. At trial, however, Kivi testified that his first name is spelled Darryl. Thus, we use
that spelling for purposes of this opinion.
3
In July 2021, the state charged Kivi with one count of first- degree criminal sexual
conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2008), based on J.T.’s
accusations, and two counts of second-degree criminal sexual conduct, in violation of
Minn. Stat. § 609.343, subd. 1(a) (2006 & 2008), based on the accusations of R.H.-S. and
J.L.
The matter was tried to a jury on six days in October 202 2. The state called 12
witnesses in its case- in-chief: J.T., R.H.- S., J.L., their mothers, D.R., J.T.’s former
boyfriend, J.L.’s former therapist, and three police officers. Kivi testified in his own
defense. The jury found Kivi guilty on all three counts. The district court imposed
concurrent prison sentences of 216, 36, and 48 months. Kivi appeals.
DECISION
I. Motion to Strike Juror
Kivi first argues that the district court erred by denying his motion to strike Juror 17
for cause.
A defendant in a criminal case has a constitutional right to an impartial jury. U.S.
Const. amend. VI; Minn. Const. art. I, § 6. “Because the impartiality of the adjudicator
goes to the very integrity of the legal system, . . . the bias of a single juror violates the
defendant’s right to a fair trial.” State v. Evans, 756 N.W.2d 854, 863 (Minn. 2008)
(quotations omitted). The presence of a biased factfinder is a structural error, which
requires automatic reversal. Id.
In a criminal case, a party may challenge a prospective juror for cause on any of 11
grounds, including the ground that “[t]he juror’s state of mind—in reference to the case or
4
to either party—satisfies the court that the juror cannot try the case impartially and without
prejudice to the substantial rights of the challenging party.” Minn. R. Crim. P. 26.02,
subd. 5(1), 5(1)1. A district court may remove a juror if the juror “expresse[s] a ‘state of
mind’ demonstrating ‘actual bias’ towards the case or either party.” State v. Munt, 831
N.W.2d 569, 577 (Minn. 2013) (quoting State v. Brown, 732 N.W.2d 625, 629 n.2 (Minn.
2007)).
On appeal, an appellate court asks two questions. “First, we must determine
whether the juror expressed actual bias by reviewing the juror’s voir dire answers in
context.” State v. Ulrich, No. A22-1340, ____ N.W.3d ____, ____, 2024 WL 696752, at
*4 (Minn. Feb. 21, 2024). A juror expresses actual bias if “the juror exhibit[s] strong and
deep impressions that would prevent her from laying aside her impression or opinion and
rendering a verdict based on the evidence presented in court.” Munt , 831 N.W.2d at 577
(quotations and alterations omitted). Second, if a juror has expressed actual bias, we must
determine “whether the juror was properly rehabilitated. ” Ulrich, No. A22 -1340, ____
N.W.3d at ____, 2024 WL 696752, at *4. A juror is rehabilitated “if he or she states
unequivocally that he or she will follow the district court’s instructions and will set aside
any preconceived notions and fairly evaluate the evidence.” State v. Fraga, 864 N.W.2d
615, 623 (Minn. 2015) (quotation omitted).
Appellate courts apply an abuse-of-discretion standard of review to a district court’s
denial of a for-cause challenge. Id. Appellate review of a district court’s determination of
juror impartiality is “especially deferential,” Munt, 831 N.W.2d at 576, because “a district
court is best positioned to judge a juror’s demeanor, as opposed to an appellate court’s
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review of a cold record,” Ulrich, No. A22-1340, ____ N.W.3d at ____, 2024 WL 696752,
at *4.
In this case, the district court assembled a venire panel of 30 persons. The district
court began voir dire by questioning all prospective jurors as a group. The district court
and counsel later questioned several prospective jurors individually, outside the presence
of other prospective jurors. Juror 17 was among the prospective jurors who were
questioned individually.
Juror 17 had disclosed in a written answer to a jury questionnaire that her mother
had been raped. In response to questions asked by Kivi’s trial attorney, Juror 17 revealed
that, in the late 1950s, her grandfather had raped her mother over the course of three years,
beginning when her mother was 13 years old. Juror 17 said it was “devastating” and that
she was “shocked” upon discovering this information in her early 20s. Juror 17 indicated
that she was unsure of the effect that the facts of this case would have on her.
Juror 17 also made statements indicating that she would render a verdict based on
the evidence. For example, she stated, “I feel like everybody is entitled to due process, and
you do have to know facts. Those are right now accusations.” When asked whether her
initial reaction to the charges would affect her perception of the case, she said, “I would
have to hear the facts to—to be biased—to not have a bias in it, basically. . . . I’d like to
think of myself to give anybody the benefit of the doubt first and hear facts first.” When
asked whether she would have difficulty controlling her emotions, she said, “Oh, no. I can
control my emotions because . . . at work, I tell people it’s strictly business. It’s not
6
personal. . . . But it is facts. You have to stick to the facts.” When asked additional
questions about the impact that the evidence might have on her, she stated,
I don’t know what the accusations are; right? We haven ’t
heard anything. I don’t know this person. I don’t know the
case. I don’t know the four, three or four—is it the same child?
Is it different children? I don’t know, right?

. . . .

Regardless that I would have a reaction, my judgment would
come, again, based off of fact. I’m a very factual person. I
deal in facts every day, and facts beat opinions 5,000 percent.

After Juror 17 left the courtroom, Kivi’s attorney moved to strike her for cause. In
response, the prosecutor opposed the motion for the following reasons:
Judge, I do not believe [Juror 17] is an appropriate for-
cause strike. She seems very confident and definitive that these
are charges. Everybody’s entitled to due process. People
accuse people of a lot of things, and she would have to hear all
the facts and gives anyone the benefit of the doubt. She seemed
very adamant in her ability to set aside her emotions and very
candid in the reality of she doesn’t know how she’s going to
react when she hears the testimony but that she wants to hear
all of the facts regardless of any emotion that may come from
any testimony or evidence presented and that —again, quoting
[Juror 17]—that she would give anyone the benefit of the
doubt. So I think that she can be fair and unbiased in this case
and would ask that she remain.

The district court stated, “I agree with that summation, and I’m going to deny the motion
for cause.”
On appeal, Kivi contends that, although Juror 17’s statements are not “express
statements of bias,” they are “probative of bias.” Kivi emphasizes Juror 17’s “candid and
repeated acknowledgment of the effect that her mother ’s experience had on her and that
7
she did not know how she might react to hearing the evidence.” Juror 17 did express
uncertainty about how she would react emotionally to the evidence. But she was clear in
making a distinction between her emotional reactions and her evaluation of the evidence,
thereby demonstrating that she would “render[] a verdict based on the evidence presented
in court.” See Munt, 831 N.W.2d at 577 (quotation omitted).
Kivi also contends that Juror 17 demonstrated bias by stating that she would need
to hear the facts of the case to determine whether she would be biased. He points to Juror
17’s statement that she “would have to hear the facts to—to be biased—to not have a bias
in it, basically.” That statement is somewhat unclear, but we do not believe it reflects actual
bias. As the United States Supreme Court has explained, it is “not unusual on voir dire
examination” for prospective jurors to make ambiguous or contradictory statements.
Patton v. Yount, 467 U.S. 1025, 1039 (1984).
[U]nlike witnesses, prospective jurors have had no briefing by
lawyers prior to taking the stand. Jurors thus cannot be
expected invariably to express themselves carefully or even
consistently. Every trial judge understands this, and under our
system it is that judge who is best situated to determine
competency to serve impartially. The trial judge properly may
choose to believe those statements that were the most fully
articulated or that appeared to have been least influenced by
leading.

Id. Shortly after the statement identified by Kivi, Juror 17 stated that she would like to
“give anybody the benefit of the doubt first and hear facts first.” When read in context
with Juror 17’s other statements, the statement identified by Kivi does not indicate actual
bias.
8
Thus, Juror 17 did not express actual bias. Accordingly, the district court did not
err by denying Kivi’s motion to strike Juror 17 for cause.
II. Motion for Mistrial
Kivi also argues that the district court erred by denying his mid-trial motion for a
mistrial.
Kivi moved for a mistrial after the state had rested its case. The motion was based
on a claim that the state possibly had expo sed jurors to inadmissible evidence by not
properly redacting a transcript of an audio-recording. During trial, the state played for the
jury an audio-recording of a statement that J.T. had given to police in February 2020. The
state provided a transcript to the district court and to each juror as a listening aid. While
the recording was played, the district court noticed that the transcript included a reference
by J.T. to the existence of child pornography on Kivi’s computer. The district court
previously had ruled that such evidence would not be admitted. The district court saw that
reference before the jurors heard it, stopped the recording and asked counsel to approach
for a bench conference, which was not reported. The district court then collected the
transcripts and gave the jury the following instruction:
Members of the jury, to the extent that any of you was
a fast reader and read forward in the transcript that you have in
your presence, you are not to do that. And we failed to tell you
that in advance. But, to the extent that you read anything after
you heard a recording, you’re to disregard it, and you’re to
strike it from your memory altogether, and you may not rely
upon it in arriving at your decision in this case.

At the conclusion of the state’s case-in -chief, Kivi moved for a mistrial on the
ground that “ there was mention of child pornography.” The prosecutor responded by
9
apologizing for not redacting the reference and by stating, “We did not get to that point in
the statement, thanks to Your Honor. The jury did not hear it.” The prosecutor further
stated that the audio-recording was stopped at the top of page eight of the transcript and
that the reference to child pornography was at the bottom of that page. Both the prosecutor
and Kivi’s attorney stated that it was unknown whether any juror read the reference to child
pornography at the bottom of page eight.
In ruling on the motion, the district court stated that it had been “reading ahead . . .
by one full page” when it noticed the reference to child pornography and interrupted the
playing of the audio-recording. The district court stated that it did not know whether any
jurors were reading ahead but that “juries are told to follow the law and the instructions of
the Court, and it’s been my experience that they do that.” For those reasons, the district
court denied the motion for a mistrial.
Kivi contends that this court should review the district court’s ruling by applying
the four-factor test set forth in Stat e v. Cox, 322 N.W.2d 555 (Minn. 1982). In that case,
during a break in trial, jurors heard a bailiff comment that “it is all over,” which indicated
that the bailiff believed that the defendant was guilty. Id. at 557-58. The supreme court
stated that “[s]tatements of a court official about the merits of a criminal case raise a
rebuttable presumption of prejudice” and that “[t]he burden on the prosecution to rebut the
presumption is met only by showing beyond a reasonable doubt that the asserted error did
not contribute to the verdict obtained.” Id. at 558.
The supreme court recently held that the Cox four-factor test does not apply if there
is no claim that “the jury was exposed to potentially prejudicial material outside of the trial
10
process.” State v. Jaros, 932 N.W.2d 466, 47 3 (Minn. 2019) (emphasis added). Instead,
if a mistrial motion is based on a jury’ s exposure to inadmissible evidence during the
evidentiary phase of trial, the relevant question is whether “there is a ‘reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict.’” Id.
at 472 (quoting State v. Matthews, 800 N.W.2d 629, 633 (Minn. 2011)). In answering that
question, an appellate court should consider “whether the State presented other evidence
on the issue,” “whether the district court issued cautionary instructions,” and “whether the
State relied on the inadmissible evidence to make its case during its closing argument.”
Id. at 474 (quotation omitted). The appellant bears the burde n of “establish[ing] a
reasonable possibility that the jury would have reached a different verdict had the
wrongfully admitted testimony not come in.” Id . at 472. An appellate court reviews a
district court’s denial of a motion for a mistrial for an abuse of discretion. State v. Manthey,
711 N.W.2d 498, 506 (Minn. 2006).
In this case, it is unknown whether jurors were exposed to inadmissible evidence.
The record is clear that the audio-recording ’s reference to child pornography was not
played aloud. Jurors could have been exposed to that reference only by reading that portion
of the transcript before they were collected. There is no indication in the record that any
juror did so. Because Kivi cannot establish that any juror read the pertinent portion of the
transcript, he cannot bear his burden of establishing that the jury would have reached a
different verdict but for the incompletely redacted transcript.
Even if we assume that jurors saw the reference to child pornography, Kivi could
not satisfy his burden of establishing that the jury otherwise would have acquitted him.
11
The district court instructed the jury to disregard anything they may have read that was not
played aloud, and we must presume that they followed that instruction. See State v. Benton,
858 N.W.2d 535, 541 (Minn. 2015). The state did not mention child pornography in
closing argument. The state presented ample evidence that Kivi committed the alleged
criminal acts through the testimony of J.T., R.H.-S., and J.L.
Furthermore, the possible reference to child pornography in this case is less
prejudicial than the inadmissible evidence in Jaros. In that case, a police officer testified
in detail about inadmissible pornographic photographs that were found on the defendant’s
cell phone, which included depictions of sexual conduct that resembled the state’s evidence
of the defendant’s alleged criminal sexual conduct. Jaros, 932 N.W.2d at 469-70.
Nonetheless, the supreme court concluded that there was no reasonable possibility that the
inadmissible evidence significantly affected the outcome of the trial and that the district
court did not err by denying the motion for a mistrial. Id. at 474-76.
Thus, we conclude that there is not a reasonable possibility that the jury would have
reached a different verdict but for the state’s failure to redact a transcript to exclude a
reference to Kivi’s possession of child pornography. Accordingly, the district court did
not err by denying Kivi’s motion for a mistrial.
Affirmed.