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This opinion is nonprecedential except as provided by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
A23-1040

State of Minnesota,
Respondent,

vs.

John Joseph Hare,
Appellant.

Filed February 18, 2025
Affirmed in part, reversed in part, and remanded
Larson, Judge

Anoka County District Court
File No. 02-CR-22-1107

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

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney,
Anoka, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
In this direct appeal following a jury trial, appellant John Joseph Hare challenges
his convictions for second-degree intentional murder and second- degree unintentional
felony murder. Hare argues that: (1) Respondent State of Minnesota failed to prove his
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guilt beyond a reasonable doubt; (2) the district court abused its discretion when it admitted
some, but not all, of a series of voicemails; and (3) the district court incorrectly entered
convictions for both guilty verdicts. Hare raises additional arguments in a supplemental
brief. Because Hare’s warrant of commitment incorrectly reflects convictions for both
second-degree intentional murder and second-degree unintentional felony murder, we
reverse in part and remand. We otherwise affirm.
FACTS
On February 23, 2022, D.N. (the decedent) was discovered dead in his Coon Rapids
home. The state charged Hare, the decedent’s neighbor and friend, with second-degree
intentional murder, under Minn. Stat. §§ 609.19, subd. 1(1), .11, subd. 4 (2020), and
second-degree unintentional murder while committing a felony, under Minn. Stat.
§ 609.19, subd. 2(1) (2020). The facts below were elicited at a jury trial on these charges.
On the night of February 20, 2022, Hare placed thirteen calls to his ex-girlfriend,
H.C. (ex-girlfriend), and left a series of voicemails. A voicemail left at 10:01 p.m. recorded
Hare asking ex-girlfriend for help:
Call me back please. This is very, very important. I do
need your help. I need you to call me. In a very, very important
way. Please call me. Pineapple. Red Pineapple. 1 Mayday.
Mayday, mayday, mayday. Red Pineapple.

A voicemail left at 10:10 p.m. had a similar theme:
Hey, um, can you call me back please, as soon as
possible. It’s pretty important. Right, right now, please. Red

1 Ex-girlfriend testified that “pineapple” was a “safe word” that she and Hare used if they
needed an argument to stop. Ex-girlfriend also testified that she did not know what “red
pineapple” meant, but that “Red” was Hare’s nickname for her.
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Pineapple. Red Pineapple. It’s the biggest red pineapple you’ll
ever find. Red Pineapple. Right now. Red pineapple. I mean
this from the bottom of my heart, red pineapple. Please.

Another voicemail, left at 10:11 p.m., also recorded Hare asking ex -girlfriend for
help:
Hey, f--king call me, or I swear to God. F-- king call
me. What the f--k? I need your f--king help right now. Call
me. Mayday, mayday, mayday. F--king red pineapple. What
the f--k, dude. Call me, I’m f--king, I swear to God. I’ve got
a f--king red pineapple right here in front of me. Red f--king
pineapple.

A voicemail left at 10:15 p.m. contained a message from Hare to ex-girlfriend, as
well as background dialogue between Hare and the decedent:
HARE: Hey Red, um, look, I need your help. It’s really
important. Please call me. I’ve, I don’t know how to save this
person. He, I don’t know what to do (inaudible) d--n. [Ex-
girlfriend], this person is not doing good. Please call me. He
tried to commit suicide, I, I don’t know what to do.

[DECEDENT]: No, I didn’t.

HARE: Yeah, you did, you b--tard.

[DECEDENT]: No, I didn’t.

HARE: Hey, please call me. This guy’s f --king, what the
f--k’s wrong with you, dude? Why would you do that, and why
would you even call me to help you? You’re f--king tripping
man. F--k. Why would you do this to yourself?

Finally, a voicemail left at 10:23 p.m. record ed a conversation between Hare and
the decedent, apparently as the result of an accidental dial. In relevant part, the voicemail
contains the following dialogue:
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HARE: I don’t know what the f --k. How am I supposed to
help you? You’re f--king bleeding all over me (inaudible) f--k
man. You’re f--king, God d--nit. Don’t die on me, man.
F--k.

[DECEDENT]: I’m not dying. (Inaudible)

HARE: Yeah, you’re, you’re, you’re f--king leaking
everywhere. You even f--king bled on me dude. What the
f--k’s wrong with you? (Inaudible) you’re not supposed to
commit suicide. It’s against the f--king rules. Yeah, all the
sudden you’re f--king fine man. S--t. Get up, and let’s go. I’ll
take you to the hospital, man. What’s wrong with you?

[DECEDENT]: I’m not going to the hospital.

HARE: You have to go to the hospital; you’re f--king bleeding
everywhere. And you f--king tried committing suicide. What
the f--k’s wrong with you, you son of a b--ch? F--k. Man, get
up here. . . .

. . . .

HARE: [Decedent ] are you trying to breakdance or what?
D--nit. Alright. (Inaudible) Alright, um, hold on. F--k, now
we’re both f--king (inaudible). God d--nit. You want a shot of
vodka or something?

[DECEDENT]: No.

HARE: No. Alright, I don’t [know] what to do dude. I mean,
I can’t stay here with you, you’re gonna be an a--hole.

Ex-girlfriend eventually answered one of Hare’s calls. Hare told ex-girlfriend that
he had blood on him, wanted her to come help him, and was at the decedent’s home. When
ex-girlfriend arrived at the decedent’s home, the decedent was still alive, lying on the
kitchen floor with Hare standing above him. Ex-girlfriend testified that there was blood
“all over the floor, all over the counters. And [the decedent] was covered head to waist in
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blood. And [Hare] had blood all across him.” Ex-girlfriend could not see any wounds on
the decedent . Hare told ex -girlfriend that the decedent t ried to commit suicide. The
decedent responded, “No I didn’t. You kicked my a--.” Ex -girlfriend understood the
decedent to be referring to Hare. The situation scared ex-girlfriend, and she ran to her car.
Hare followed ex -girlfriend and entered her car. Hare asked ex -girlfriend to take
him home. Ex-girlfriend and Hare entered Hare’s home. Ex-girlfriend tried to leave, but
Hare stopped her. Ex-girlfriend asked Hare if she could get a drink of water and, when she
did, she ran to her car and drove away.
At around 11:30 p.m., Hare placed a video call to his daughter (daughter). Hare told
daughter that bad people were after him, and he needed help. Hare also told daughter that
“sometimes in life people gotta take out the f--king trash.” In response to daughter asking
if she could “know who’s gone,” Hare said, “[a]bsolutely not . . . [b] ecause they’re a bad
person.” Hare also talked to daughter’s mother (co-parent) and said, “bad people were
after him because something bad had happened” and “a bad man had died.”
On February 22, 2022, after leaving a duffle bag with a neighbor, Hare took a taxi
to the airport and boarded a flight to Denver. The following day, at around 10:00 a.m., the
decedent’s sister and brother-in-law arrived at the decedent’s home to check on him. The
decedent’s brother-in-law entered the home and saw the decedent dead, lying on the floor
with “blood everywhere.” He called 911.
Law enforcement arrived shortly thereafter. They found the decedent lying on his
back in the living room with blood on his body and face. Blood was on the floor around
the decedent, as well as on the floor in the kitchen and smeared on appliances. Detectives
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were called to the scene. They noted signs of a violent assault and a hammer on the floor
several feet from the decedent’s body. After obtaining a search warrant for the property,
the detectives processed the scene.
The detectives determined that the scene was not indicative of suicide. There were
no signs of forced entry, but there were signs of disturbance. Namely, there was a knocked-
over plant and a hole in the wall consistent with the impact of a body. Blood stains in a
“spatter” pattern were found on the ceiling, blinds, molding, and near the decedent’s body,
meaning that force was applied to the blood, and the blood moved through the air and
landed on a surface.
DNA tests were performed on the hammer found at the scene. That testing revealed
that the blood on the head of the hammer belonged to the decedent. The grip of the
hammer’s handle contained a mixture of DNA from three individuals. The major male
profile of the mixture matched the decedent. Hare was a possible contributor to the
mixture. However, the mixture was greater than one billion times more likely—the highest
level of support for inclusion— to have originated from the decedent, Hare, and an
unknown, unrelated individual, than from three unknown, unrelated individuals.
Two cell phones were discovered at the scene. Law enforcement quickly confirmed
that the decedent owned the first cell phone. After obtaining a search warrant authorizing
a forensic examination of the second cell phone, law enforcement unlocked the cell phone,
put it on airplane mode, and removed its SIM card. Law enforcement later performed a
“mock 911 call” to assist in identifying the owner of the second cell phone. The
investigation uncovered that Hare owned the second cell phone.
7
Law enforcement also executed a search warrant at Hare’s residence. Hare’s
washing machine contained several pairs of jeans with a strong smell of bleach. A stain
on one pair of jeans, as well as a substance on a light switch, tested presumptively positive
for blood.2 A swab of the blood found on the light switch at Hare’s home revealed DNA
belonging to three individuals. The major male profile of the mixture matched the
decedent, and Hare was a possible contributor to the mixture. However, the mixture was
greater than one billion times more likely to have originated from the decedent, Hare, and
an unknown, unrelated individual than from three unknown, unrelated individuals.
A medical examiner p erformed the decedent’s autopsy and determined that the
decedent had preexisting medical conditions, but they did not cause his death. Rather, the
decedent’s preexisting medical conditions did not “help him survive [his] injuries.” The
medical examiner determined the decedent’s manner of death was homicide, and his cause
of death was multiple blunt- and sharp-force injuries. A DNA test performed on the
decedent’s fingernail clippings revealed that they contained a male DNA profile matching
the decedent and no one else.
Hare was arrested in Nye County, Nevada. Law enforcement from Anoka County,
Minnesota, then traveled to the Nye County jail to investigate and execute a search warrant.
Law enforcement first spoke with Hare on February 28, 2022, and Hare invoked his right
to an attorney. Law enforcement immediately stopped asking Hare questions. Thereafter,

2 Presumptive tests are an investigative tool that allow law enforcement to determine
whether a substance may contain blood. P resumptive tests are not confirmatory because
they also yield positive results for some animal blood.
8
Hare made a few remarks about his extradition and asked how to contact an attorney. On
March 1, 2022, while collecting DNA evidence from Hare pursuant to a warrant, Hare
spontaneously discussed the events of February 20, 2022 . Law enforcement immediately
told Hare that any discussion of the case would have to take place at another time, after
Hare’s rights had been explained and waived.
After the state charged Hare with second-degree intentional murder and second-
degree unintentional felony murder, Hare requested a contested omnibus hearing at which
he moved to suppress: (1) the statements he made at the Nye County jail on the basis that
he had not been properly Mirandized3 and had invoked his right to counsel and (2) evidence
obtained through the search of his cell phone on the ground that the search exceeded the
scope of the search warrant. The district court denied Hare’s motion.4
Prior to trial, both parties filed motions in limine. The state moved to introduce the
10:01 voicemail, 10:10 voicemail, 10:11 voicemail, and 10:15 voicemail. 5 Hare’s trial
counsel countered that, if the state admitted those voicemails, Minn. R. Evid. 106 and the
rule of completeness required the state to play the 10:23 voicemail as well. The district

3 To protect a defendant’s right against self-incrimination, law enforcement must
implement “procedural safeguards” prior to subjecting the defendant to custodial
interrogation. Miranda v. Arizona, 384 U.S. 436, 444 (1966). This includes informing the
defendant of the right to remain silent and have an attorney present. Id. at 478-79. Once
these procedural safeguards have been implemented, a defendant has been Mirandized.
4 The state introduced video and audio recording of the statements Hare made at the Nye
County jail at trial.
5 The state also moved to introduce a voicemail left on ex-girlfriend’s phone at 10:05 p.m.,
but the state did not play this voicemail at trial.
9
court disagreed and did not require the state to play the 10:23 voicemail under rule 106 or
the rule of completeness.6
At the end of trial, the jury found Hare guilty of both second-degree intentional
murder and second-degree unintentional murder while committing a felony, and the district
court entered convictions for both counts. The district court then sentenced Hare to
391 months in prison, with 419 days credit for time served, for the second-degree
intentional murder conviction. The disposition set forth on the warrant of commitment
reflects convictions for both counts.
Hare filed a notice of appeal, and we granted Hare’s motion to stay the appeal to
pursue postconviction relief. Hare thereafter filed a motion to supplement the record in
district court to include the 10:23 voicemail and its transcript. The district court granted
Hare’s motion. We then reinstated Hare’s appeal.
DECISION
Hare raises several challenges to his convictions. First, Hare argues the state
presented insufficient evidence to prove beyond a reasonable doubt that he caused the
decedent’s death. Second, Hare asserts that the district court abused its discretion when it
did not require the state to play the 10:23 voicemail under rule 106. Third, Hare contends
the district court failed to comply with Minnesota law when it entered convictions for both
second-degree intentional murder and second-degree unintentional felony murder. See

6 The state also moved to exclude the 10:23 voicemail as self-serving hearsay. The district
court deferred ruling on that motion. At trial, Hare did not seek to admit the
10:23 voicemail.
10
Minn. Stat. § 609.04 (2020). And, finally, Hare raises a number of issues in his pro se
supplemental brief, including ineffective assistance of counsel, prosecutorial misconduct,
unlawful search of his cell phone, and failure to properly administer Miranda warnings.
We address each argument in turn below.
I.
Hare argues the state presented insufficient evidence to support his convictions. The
state bears the burden “of proving beyond a reasonable doubt every element of a charged
offense in a criminal trial.” State v. Pakhnyuk, 926 N.W.2d 914, 919 (Minn. 2019). To be
found guilty of second-degree intentional murder, the state must prove that Hare:
(1) “cause[d] the death of a human being” and (2) did so “with intent to effect the death of
that person or another, but without premeditation.” Minn. Stat. § 609.19, subd. 1(1). To
be found guilty of second-degree unintentional felony murder, the state must prove that
Hare: (1) “cause[d] the death of a human being” and (2) did so “without intent to effect
the death of any person, while committing or attempting to commit a felony offense other
than criminal sexual conduct in the first or second degree with force or violence or a drive-
by shooting.” Minn. Stat. § 609.19, subd. 2(1). Here, Hare contends the state did not
present sufficient evidence to prove the first element of either crime—that he caused the
decedent’s death.
“When evaluating the sufficiency of the evidence, appellate courts carefully
examine the record to determine whether the facts and the legitimate inferences drawn from
them would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Griffin, 887 N.W.2d
11
257, 263 (Minn. 2016) (quotation omitted). “The evidence must be viewed in the light
most favorable to the verdict, and it must be assumed that the fact-finder disbelieved any
evidence that conflicted with the verdict.” Id. “The verdict will not be overturned if the
fact-finder, upon application of the presumption of innocence and the State’ s burden of
proving an offense beyond a reasonable doubt, could reasonably have found the defendant
guilty of the charged offense.” Id.
We must first determine whether the evidence used to sustain the verdict was direct
or circumstantial. See State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). Direct evidence
is “based on personal knowledge or observation and . . . if true, proves a fact without
inference or presumption.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted). Circumstantial evidence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist.” Id. (quotation omitted).
Hare does not address the appropriate standard of review, but the state
acknowledges that it relied on circumstantial evidence to prove that Hare caused the
decedent’s death. Indeed, most of the evidence the state presented required the jury to
make inferences from the facts. See Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017)
(“When the direct evidence of guilt on a particular element is not alone sufficient to sustain
the verdict, however, we apply a heightened two-step standard, which we have called the
circumstantial-evidence standard of review.”). Therefore, we apply the circumstantial-
evidence test.
When applying the circumstantial-evidence test, we conduct a heightened two-step
inquiry. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). First, we identify the
12
circumstances proved. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). In doing
so, “we defer to the jury’s acceptance of the proof of these circumstances” and “assume
that the jury believed the State’s witnesses and disbelieved the defense witnesses.” Id. at
598-99 (quotations omitted). Second, we determine if the circumstances proved, viewed
“as a whole,” are “consistent with guilt and inconsistent with any rational hypothesis except
that of guilt.” Id. at 599 (quotation omitted). In this step, we do not defer “to the fact
finder’s choice between reasonable inferences.” State v. Andersen, 784 N.W.2d 320, 329-
30 (Minn. 2010) (quotation omitted). “Circumstantial evidence must form a complete
chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant
as to exclude beyond a reasonable doubt any reasonable inference other than guilt.” State
v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted).
Beginning with the first step, the state proved the following circumstances at trial:
(1) Hare left ex-girlfriend a series of voicemails on the night of February 20, 2022,
including one wherein Hare describes being with someone he did not “know how to save”
and the decedent is heard in the background denying that he attempted suicide; (2) ex-
girlfriend observed decedent alive, lying on the kitchen floor “covered head to waist in
blood,” with Hare standing above him ; (3) Hare told ex -girlfriend that the decedent
attempted suicide, to which the decedent responded that he did not attempt suicide and that
Hare had “kicked his a --”; (4) Hare left the decedent’s home with ex-girlfriend when the
decedent was still alive; (5) Hare told daughter on the night of February 20, 2022, that bad
people were after him and that he needed help; (6) Hare told daughter that “sometimes in
life people gotta take out the f--king trash”; (7) in response to daughter asking if she could
13
“know who’s gone,” Hare said, “[a] bsolutely not . . . [b]ecause they’re a bad person” ;
(8) Hare thereafter told co-parent that “bad people were after him because something bad
had happened” and “a bad man had died”; (9) Hare flew to Denver on February 22, 2022;
(10) after the decedent was found dead in his home on February 23, 2022, law enforcement
arrived at the scene; (11) law enforcement did not believe the scene was indicative of
suicide; (12) law enforcement observed signs of disturbance at the scene , but not forced
entry; (13) law enforcement identified blood- spatter patterns at the scene on the ceiling,
blinds, molding, and n ear the decedent’s body, indicating force had been applied to the
blood and the blood moved through the air; (14) law enforcement discovered a hammer at
the scene; (15) blood on the head of the hammer belonged to the decedent; (16) the DNA
mixture on the grip of the hammer’s handle was greater than one billion times more likely
to have originated from the decedent, Hare, and an unknown, unrelated individual, than
from three unknown, unrelated individuals; (17) when law enforcement executed a search
warrant at Hare’s home, they discovered blood on a light switch where the DNA mixture
was greater than one billion times more likely to have originated from the decedent, Hare,
and an unknown, unrelated individual than from three unknown, unrelated individuals ;
(18) law enforcement also found several pairs of jeans smelling of bleach in Hare’s
washing machine, one of which had a stain that tested presumptively positive for blood;
and (19) the medical examiner determined that the decedent’s manner of death was
homicide caused by multiple blunt- and sharp-force injuries.
Moving to the second step, we discern that the circumstances proved, viewed as a
whole, are consistent with the rational hypothesis that Hare caused the decedent’s death.
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The decedent’s manner of death, Hare’s presence at the decedent’s home while the
decedent was suffering from his injuries, the DNA evidence, the blood-spatter evidence,
the voicemail wherein the decedent states he did not attempt suicide, the decedent’s
statement to ex -girlfriend that Hare “kicked his a--,” Hare’s statements to ex-girlfriend,
daughter, and co -parent, and Hare fleeing Minnesota immediately after the decedent’s
death all support the rational hypothesis that Hare caused the decedent’s death.
Hare does not contest that the circumstances proved are consistent with the rational
hypothesis that he caused the decedent’s death. Instead, he contends the circumstances
proved are consistent with a rational hypothesis except that of guilt—specifically, that
something else caused the decedent’s death. To support his argument, Hare emphasizes
that the decedent was alive when he left the decedent’s home, the decedent had preexisting
medical conditions that contributed to his death, and Hare’s DNA was not found under the
decedent’s fingernails. We are not persuaded.
The autopsy indicated that multiple blunt- and sharp -force injuries caused the
decedent’s death. And the medical examiner who performed the autopsy specifically
opined that the decedent’s preexisting medical conditions did not cause his death but rather
did not “help him survive [his] injuries.” And while Hare’s DNA was not found under the
decedent’s fingernails, DNA testing revealed Hare’s DNA on the grip of the hammer found
in the decedent’s home to the highest level of support for inclusion. Therefore, the
circumstances proved are inconsistent with a rational hypothesis that something other than
Hare caused the decedent’s death.
15
For these reasons, we conclude that the evidence presented at trial was sufficient to
prove Hare caused the decedent’s death beyond a reasonable doubt.
II.
Hare argues that the district court abused its discretion when it did not require the
state to play the 10:23 voicemail under rule 106.7 We review objected-to evidentiary
rulings for an abuse of discretion. State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006).
“A district court abuses its discretion when its decision is based on an erroneous view of
the law or is against logic and the facts in the record.” State v. Tapper, 993 N.W.2d 432,
437 (Minn. 2023) (quotation omitted).
Under rule 106, “[w]hen a writing or recorded statement or part thereof is introduced
by a party, an adverse party may require the introduction at that time of any other part or
any other writing or recorded statement which ought in fairness to be considered
contemporaneously with it.” The Minnesota Supreme Court has outlined a two-factor
analysis (the Dolo factors) for applying rule 106:
Rule 106 applies when the proposed additional material
(1) relates to the facts offered in an excerpt of a recorded
statement or writing and (2) is necessary to correct a
misleading or distorted impression of the facts created by the

7 Hare also argues that the district court abused its discretion when it excluded the
10:23 voicemail because the rule of completeness required its admission. Rule 106 is
“more limited than the rule of completeness, ” which applies to conversations. Dolo v.
State, 942 N.W.2d 357, 364 n.5 (Minn. 2020) (citing State v. Mills, 562 N.W.2d 276, 286
n.8 (Minn. 1997)). But the rule of completeness does not create “an absolute right to have
an entire conversation admitted into evidence.” Id. Rather, it allows for the admission of
the remainder of a conversation “if it bears upon the admission of the admitted excerpt.”
Id. (quotation omitted). Here, because the 10:23 voicemail is a separate conversation
between Hare and the decedent, rather than part of the conversations recorded by the other
voicemails, the rule of completeness does not require its admission.
16
admitted excerpt or writing. That is, the substance of the
admitted excerpt or writing must so inaccurately or unfairly
distort the evidentiary facts that it requires immediate
correction of its content by admitting the additional material.

Dolo, 942 N.W.2d at 365 (citation omitted). “Rule 106 . . . addresses the timing of when
certain additional material is admitted. The rule does not govern its admissibility—in fact,
the additional material must be independently admissible.” Id. at 364.
We conclude the district court did not abuse its discretion when it denied Hare’s
motion to require the state to play the 10:23 voicemail because Hare has not shown the
10:23 voicemail satisfies the second Dolo factor. Here, the other voicemails contained
messages from Hare to ex-girlfriend asking ex-girlfriend for help. In contrast, the
10:23 voicemail recorded a conversation between Hare and the decedent. Thus, we
conclude that admitting the 10:23 voicemail was not necessary to correct the content of the
admitted voicemails, as a message documenting a separate conversation between Hare and
the decedent does not shed light on the content of the messages from Hare asking ex-
girlfriend for help.
Hare disagrees, first arguing the 10:23 voicemail was necessary because “the state
repeatedly characterized [the decedent’s] statements on the voicemails as ‘dying
declarations.’” But the record shows the state used the phrase “dying declarations” only
once during trial and, when it did, the statement appears to reference the decedent’s in-
person statement to ex-girlfriend that Hare “kicked [his] a--.”
Hare also argues that the district court focused improperly on what it believed to be
Hare’s motive in seeking admission of the 10:23 voicemail, rather than the content of the
17
voicemail, in making its rule 106 determination. Again, the record belies Hare’s argument.
While the state suggested to the district court that Hare had purposefully recorded this
conversation to “lay[] out a potential defense,” the district court did not acknowledge this
argument in making its decision. The district court, instead, focused on the difference in
content between the 10:23 voicemail (which recorded a separate conversation between
Hare and the decedent) and the admitted voicemails (which recorded Hare asking ex-
girlfriend for help).
For these reasons, we conclude the district court did not abuse its discretion when it
denied Hare’s motion to admit the 10:23 voicemail under rule 106.
Further, even if the district court had abused its discretion, we conclude that any
error was harmless beyond a reasonable doubt. See State v. Zumberge, 888 N.W.2d 688,
694 (Minn. 2017). “An error in excluding evidence is harmless only if [we are] satisfied
beyond a reasonable doubt that if the evidence had been admitted and the damaging
potential of the evidence had been fully realized, a reasonable jury would have reached the
same verdict.” State v. Olsen, 824 N.W.2d 334, 340 (Minn. App. 2012) (quotation
omitted), rev. denied (Minn. Feb. 27, 2013). There are three reasons we conclude the jury
would have reached the same verdict even if the 10:23 voicemail had been admitted.
First, the statements in the 10:23 voicemail that could be construed to support Hare’s
innocence also appear in the admitted voicemails. For example, in the 10:23 voicemail,
Hare states that the decedent tried to commit suicide. But Hare makes a similar statement
in the 10:15 voicemail.
18
Second, while Hare characterizes the 10:23 voicemail as illustrating that he was a
concerned friend, we do not agree with this characterization. While the decedent is
obviously suffering from the injuries he sustained, Hare talks to him in a harsh tone and
insults him on more than one occasion. Hare also criticizes the decedent for getting blood
on Hare, threatens to leave the scene, asks the decedent if “[he’s] trying to breakdance or
what,” and offers the decedent a shot of vodka. None of these statements portray Hare as
concerned or seeking to help the decedent.
Third, other evidence introduced at trial undercuts any exculpatory effect the
10:23 voicemail may have had. The decedent’s manner of death, Hare’s presence at the
decedent’s home while the decedent was suffering from his injuries, the DNA evidence,
the blood -spatter evidence, Hare’s statements to ex-girlfriend, daughter, and co-parent,
Hare leaving the decedent without calling emergency services, and Hare fleeing Minnesota
immediately after the decedent’s death all contradict any remedial impact Hare’s
expressions of concern may have had. And the suggestion that the decedent injured himself
is disproved by the autopsy.
For these reasons, we conclude that, even if the district court abused its discretion
when it excluded the 10:23 voicemail, the exclusion was harmless beyond a reasonable
doubt.
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III.
Both parties agree that the district court erred when it entered convictions for both
guilty verdicts. We review this issue de novo. State v. Bonkowske, 957 N.W.2d 437, 443
(Minn. App. 2021).
Under Minn. Stat. § 609.04, subd. 1, a criminal defendant “may be convicted of
either the crime charged or an included offense, but not both.” Section 609.04 also “bars
multiple convictions under different sections of a criminal statute for acts committed during
a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). The
proper procedure for district courts “when the defendant is convicted on more than one
charge for the same act is for the [district] court to adjudicate formally and impose sentence
on one count only,” retaining the guilty verdicts on remaining charges, but not formally
adjudicating them. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). “When [the]
official judgment order states that a party has been convicted of or sentenced for more than
one included offense,” we reverse and remand with instructions to vacate the erroneous
conviction. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999); State v. Crockson, 854
N.W.2d 244, 248 (Minn. App. 2014), rev. denied (Minn. Dec. 16, 2014).
We agree with the parties that Hare’s guilty verdicts for second-degree intentional
murder, under Minn. Stat. § 609.19, subd. 1(1), and second-degree unintentional murder
while committing a felony, under Minn. Stat. § 609.19, subd. 2(1), are multiple guilty
verdicts under different subdivisions of the same statute for acts committed during a single
behavioral incident. See Jackson , 363 N.W.2d at 760. Thus, the district court did not
follow the proper LaTourelle procedure when it convicted Hare of both second-degree
20
murder counts. Accordingly, we reverse and remand for the district court to vacate the
conviction for second-degree unintentional felony murder, leaving the underlying guilty
verdict intact, and to issue a new warrant of commitment consistent with this opinion.
IV.
Hare raises a number of challenges in his supplemental brief. He argues: (1) he
received ineffective assistance of counsel; (2) the prosecutor engaged in misconduct;
(3) law enforcement exceeded the scope of the warrant to search his cell phone; and (4) law
enforcement failed to properly Mirandize him. We address each argument in turn.
A. Ineffective Assistance of Trial Counsel
Hare argues that he received ineffective assistance of counsel because his trial
counsel: (1) did not introduce the 10:23 voicemail; (2) did not cross examine ex-girlfriend;
(3) did not call a witness who told law enforcement she heard fighting in the decedent’s
home; (4) did not introduce pictures of Hare taken after his arrest showing that he was
uninjured; and (5) failed to specify with particularity the grounds for suppression in the
motion to suppress. We review these claims de novo. Dobbins v. State, 788 N.W.2d 719,
728 (Minn. 2010).
A criminal defendant has a constitutional right to the effective assistance of counsel.
Fort v. State , 861 N.W.2d 674, 677 (Minn. 2015). A reviewing court evaluates an
ineffective-assistance-of-counsel claim using the two-part test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984). State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn.
App. 2017) (citing Andersen v. State , 830 N.W.2d 1, 10 (Minn. 2013)). “To prove
ineffective assistance of counsel, a defendant must show that (1) his attorney’s performance
21
fell below an objective standard of reasonableness, and (2) a reasonable probability exists
that the outcome would have been different, but for counsel’s errors.” State v. Mosley, 895
N.W.2d 585, 591 (Minn. 2017) (quotations omitted); see also Strickland, 466 U.S. at 687-
88, 692. “[T]here is a strong presumption that counsel’s performance was reasonable, and
[appellate courts] do[] not review matters of trial strategy or the particular tactics used by
counsel.” State v. Hokanson, 821 N.W.2d 340, 358 (Minn. 2012). Trial strategy includes
choosing which witnesses to call and what information to present to the jury. Allwine v.
State, 994 N.W.2d 528, 538-39 (Minn. 2023).
We conclude that Hare’s first four criticisms of his trial counsel all fall within the
purview of nonreviewable trial strategy. And the record belies Hare’s fifth contention.
While it is true that the prosecutor at one time threatened to move for denial of the motion
to suppress on the basis that trial counsel did not specify the grounds for suppression, the
record demonstrates that, in response to that correspondence, trial counsel filed an amended
motion to remedy the deficiency. Therefore, trial counsel’s performance did not fall below
an objective standard of reasonableness.
For these reasons, we conclude Hare did not receive ineffective assistance of trial
counsel.
B. Prosecutorial Misconduct
Hare argues that he is entitled to a new trial because the prosecutor engaged in
misconduct when he: (1) refused to play the 10:23 voicemail during the trial; (2) withheld
22
Brady evidence;8 and (3) provided evidence to defense counsel after trial had started. “The
overarching concern regarding prosecutorial misconduct” is that it may deprive a defendant
of a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). A prosecutor engages
in misconduct by violating “clear or established standards of conduct” such as “rules, laws,
orders by a district court, or clear commands in this state’s case law.” State v. McCray,
753 N.W.2d 746, 751 (Minn. 2008) (quoting State v. Fields, 730 N.W.2d 777, 782 (Minn.
2007)).
When a defendant does not object to alleged prosecutorial misconduct, we apply a
modified plain-error standard of review. Ramey, 721 N.W.2d at 302. Under this standard,
the defendant bears the burden to show an “(1) error, (2) that is plain.” Id. A plain error
is one that is “clear or obvious,” meaning it “contravenes case law, a rule, or a standard of
conduct.” Id. (quotation omitted). If the defendant does so, the burden shifts to the state
to prove the error did not affect the defendant’s substantial rights, meaning “there is no
reasonable likelihood that the absence of the misconduct . . . would have had a significant
effect on the verdict of the jury.” Id. (quotation omitted). “To evaluate the effect on
substantial rights, we consider various factors, including the pervasiveness of improper
suggestions and the strength of evidence against the defendant.” State v. Parker , 901
N.W.2d 917, 926 (Minn. 2017) (quotation omitted). If the state cannot satisfy this burden,

8 Brady evidence refers to material evidence that is favorable to the defendant. Brady v.
Maryland, 373 U.S. 83, 87 (1963). The state’s failure to disclose Brady evidence violates
the defendant’s constitutional right to due process. Id.
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we determine whether to address the error “to ensure fairness and the integrity of the
judicial proceedings.” Ramey, 721 N.W.2d at 298 (quotation omitted).
Beginning with the 10:23 voicemail, the prosecutor’s decision not to play it was in
accord with the district court’s decision to deny Hare’s motion under rule 106 and the rule
of completeness. Because conduct in accord with a district court order is not misconduct,
see Fields, 730 N.W.2d at 782 (stating that “misconduct results from violations of . . .
orders by a district court”), we do not discern that the prosecutor erred.
With regard to the alleged Brady evidence, Hare contends the prosecutor withheld
audio from the “mock 911 call.” The record belies Hare’s claim. A law-enforcement
officer testified at trial that, after obtaining a search warrant to forensically process Hare’s
cell phone, he placed the “mock 911 call” from the cell phone to determine the number
associated with it. This testimony does not suggest that any audio exists from this call and,
in fact, it seems unlikely that audio of this call exists since the call’s only purpose was to
identify the number associated with the cell phone. Thus, we do not discern the prosecutor
erred because nothing in the record suggests that audio from the call exists.
As for the materials disclosed during trial, Hare notes that the prosecutor disclosed
discovery materials after trial began and asserts that his trial counsel did not have adequate
time to review the materials. We conclude that, even if this was an error, the late disclosure
of the materials did not affect Hare’s substantial rights. The record shows that the late-
disclosed materials were received on February 6-7, 2023. On February 6, 2023, the district
court ruled on the parties’ motions in limine. Voir dire took place from February 7, 2023,
through February 10, 2023. And nothing in the record shows that Hare’s trial counsel
24
indicated he did not have time to review the materials during the voir dire process before
the state called its first witness on February 13, 2023.
For these reasons, we conclude Hare is not entitled to a new trial on the basis of
prosecutorial misconduct.
C. Cell Phone
Hare argues law enforcement conducted an unlawful search of his cell phone when
they unlocked the cell phone, put the cell phone on airplane mode, removed the SIM card,
and, later, placed the “mock 911 call.”9 Hare’s trial counsel did not move to suppress the
search of Hare’s cell phone on these grounds; thus, these issues are raised for the first time
on appeal. We “generally will not decide issues which were not raised before the district
court, including constitutional questions of criminal procedure.” Roby v. State, 547
N.W.2d 354, 357 (Minn. 1996). But when , as here, the issue is raised in a criminal
appellant’s supplemental brief, we may choose to consider it. See Dale v. State , 535
N.W.2d 619, 624 (Minn. 1995).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. If a search or seizure is
unlawful, any evidence obtained as a result must be suppressed. State v. Bradley, 908
N.W.2d 366, 369 (Minn. App. 2018). “A search pursuant to a warrant may not exceed the
scope of that warrant.” State v. Soua Thao Yang, 352 N.W.2d 127, 129 (Minn. App. 1984).
“The test for determining whether a search has exceeded the scope of the warrant is one of

9 A SIM card, also known as a subscriber-identity module, is a card that is inserted into the
cell phone that enables a cell phone to connect to a cellular network.
25
reasonableness . . . .” Id. In determining whether law enforcement’s conduct in executing
a search warrant was reasonable, we look at the totality of the circumstances. State v.
Thisius, 281 N.W.2d 645, 645-46 (Minn. 1978).
Here, the search warrant authorized a forensic examination of Hare’s cell phone,
including but not limited to “[o]pen[ing] and document[ing] any text messages or call lists
. . . [w]i-[f]i network information . . . [and] [i]nternet [h]istory and usage.” After obtaining
the warrant, law enforcement unlocked the cell phone, put it on airplane mode, and
removed its SIM card to prevent alteration of the cell phone via an outside network signal.
These actions were simply the first steps in executing the search warrant—ensuring the
information subject to the warrant was preserved—and, therefore, were reasonably within
the warrant’s scope. The “mock 911 call” also occurred after the search warrant was
issued. The search warrant authorized a forensic examination “includ[ing] but not limited
to . . . [p]honebook and contacts to include phone numbers.” While the search warrant did
not specifically authorize the placement of a “mock 911 call,” law enforcement’s actions
appear to be reasonably within the scope of examining phone numbers to ascertain contact
information.
For these reasons, we conclude law enforcement did not conduct an unlawful search
of Hare’s cell phone.
D. Nye County Statements
Hare finally argues the district court erred when it denied his motion to suppress on
the ground that he was not read his Miranda rights prior to custodial interrogation. When
reviewing a district court’s pretrial decision on a motion to suppress, we review the district
26
court’s legal determinations de novo and its findings of fact for clear error. State v. Brown,
932 N.W.2d 283, 289 (Minn. 2019).
A criminal defendant must be informed of his right to remain silent and his right to
counsel prior to custodial interrogation. Miranda, 384 U.S. at 444; Horst, 880 N.W.2d
at 30. Failure to administer these Miranda warnings renders subsequent statements by the
defendant during custodial interrogation inadmissible. Horst, 880 N.W.2d at 30. Police
conduct constitutes custodial interrogation if the defendant was (1) in custody and
(2) subject to interrogation. See State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998). Here,
the state concedes that Hare was in custody, so the only question we must decide is whether
Hare was subject to interrogation. Interrogation is defined as “express questioning or any
words or actions on the part of the police . . . that . . . the police should know are reasonably
likely to elicit . . . an incriminating response.” State v. Heinonen , 909 N.W.2d 584, 589
(Minn. 2018) (quotations omitted).
The district court’s findings of fact on this question are not clearly erroneous,
because they comport with the evidence presented at the contested omnibus hearing. And
based on those findings, we conclude that no interrogation occurred. Hare told law
enforcement at the outset of their first conversation in the Nye County jail that he wanted
to speak to an attorney, and law enforcement immediately stopped asking questions. The
remainder of the interaction consisted of Hare making a few remarks about his extradition
and asking how to contact an attorney, and law enforcement’s responses were not likely to
elicit an incriminating response. The next day, Hare spontaneously discussed the case
while law enforcement collected DNA evidence. Law enforcement immediately told Hare
27
that any discussion of the case would have to take place at another time, after Hare’s rights
had been explained and waived. Hare’s spontaneous statements during this interaction
were initiated by him, and law enforcement was not required to interrupt him. See State v.
Jackson, 351 N.W.2d 352, 356 (Minn. 1984) (holding that police officer was not required
to interrupt suspect’s spontaneous and volunteered statements). Law enforcement did not
question Hare or otherwise say anything reasonably likely to elicit an incriminating
response. Therefore, Hare was not subject to interrogation.
For these reasons, we affirm the district court’s decision to deny the motion to
suppress.
Affirmed in part, reversed in part, and remanded.