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This opinion is nonprecedential except as provided by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
A23-1134

State of Minnesota,
Respondent,

vs.

Patrick Jay Sullivan,
Appellant.

Filed January 27, 2025
Affirmed
Reilly, Judge*

Aitkin County District Court
File No. 01-CR-23-45

Keith Ellison, Attorney General, Jacob Campion, Thomas R. Ragatz, Assistant Attorneys
General, St. Paul, Minnesota; and

James Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Schmidt, Judge; and
Reilly, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
REILLY, Judge
In this reinstated direct appeal from the judgment of conviction for felony domestic
assault following a stay and remand for postconviction proceedings, appellant argues that
the postconviction court violated double jeopardy by engaging in further review of his case
after vacating his conviction for insufficient evidence, and by reinstating his conviction.
Appellant also contends that the evidence at trial was insufficient to sustain his conviction.1
Because we conclude that double jeopardy did not preclude the postconviction court from
reconsidering its first order or reinstating appellant’s conviction, and that the evidence at
trial was sufficient to sustain the conviction, we affirm.
FACTS
Respondent State of Minnesota charged appellant Patrick Jay Sullivan with felony
domestic assault pursuant to Minn. Stat. § 609.2242, subd. 4 (2022), and misdemeanor
mistreatment of an animal pursuant to Minn. Stat. § 343.21, subd. 7 (2022), alleging that
Sullivan had assaulted his mother, S.W., and abused his dog.
During a pretrial hearing the day before Sullivan’s jury trial, his trial counsel stated
that “we are going to be stipulating or do stipulate to the two convictions that are mentioned

1 At oral argument, the state asserted that the only issue on appeal is whether the
postconviction court violated double jeopardy by reinstating Sullivan’s conviction. But
because Sullivan’s postconviction petition originally raised sufficiency of the evidence as
the sole issue for review, and because Sullivan’s briefs can be fairly read as also
challenging sufficiency of the evidence, we consider both arguments.
3
in the complaint . . . so that those don’t need to be proven at trial nor introduced at trial.”2
The next day, the district court ruled that the state could present evidence of two prior
convictions for impeachment purposes during Sullivan’s testimony. The district court and
the parties then discussed stipulating to the prior convictions:
THE STATE: . . . I believe [defense counsel] had indicated
that his client intends to stipulate as to those prior convictions
for the purposes of the State’s meeting its burden. I would like
to put that on the record. And then my office can draft the
stipulation for the Court to read to the jury.
. . . .
DEFENSE COUNSEL: Well, I believe we just stipulated it
into the record, and I don’t suspect it’s going to be in the
instructions for finding a verdict. But I don’t know what else
to say. I have never had a written stipulation. We’ve always
just done it orally. If you think it’s necessary.

THE COURT: . . . [W]e’ve always just done it on the record
here. And I think there’s been a stipulation to that so that we
know that those convictions are out there. They can be used
for impeachment purposes based upon my ruling here. I don’t
know that we need any sort of separate stipulation.
. . . .
THE STATE: . . . I am accustomed in my practice to seeing
stipulations written, signed by both parties, and then read to the
jury at the close of the State’s case, as you know, an exhibit,
evidence because stipulations are evidence. That’s been my
practice what I’m accustomed to seeing, but, you know, when
in Rome. I’m happy to adjust.
. . . .
THE COURT: Okay. So I think we’re all on the same page
here. We won’t have to have a separate stipulation prepared.
They are not going to be part of the final instructions as they
have been stipulated to. They can be used for the impeachment
purposes, just as I ruled on here.

2 Felony domestic assault requires proof that a defendant has “two or more previous
qualified domestic violence-related offense convictions” within ten years of the charged
offense. Minn. Stat. § 609.2242, subd. 4.
4
At trial, Sullivan testified in his own defense. On cross- examination, the state
impeached Sullivan with both prior convictions. The district court twice instructed the jury
to consider the prior convictions only for purposes of assessing Sullivan’s credibility. The
district court did not instruct the jury on the prior-conviction element of felony domestic
assault. The jury found Sullivan guilty of domestic assault and acquitted him of
misdemeanor mistreatment of an animal. The district court sentenced Sullivan to 21
months commitment. Sullivan appealed.
We granted Sullivan’s motion to stay his appeal to allow him to pursue
postconviction relief. Sullivan filed a postconviction petition to vacate his conviction,
arguing that the state “failed to prove [Sullivan] guilty beyond a reasonable doubt because
it failed to prove the prior-conviction element” of felony domestic assault.
On February 7, 2024, the postconviction court held a hearing on Sullivan’s petition.
Sullivan argued that because he never personally stipulated to the prior-conviction element,
and the state otherwise failed to prove that element beyond a reasonable doubt, his
conviction should be vacated. The state argued that vacating the conviction would be
unfair because the state had “requested a written stipulation and was rebuffed” by the
district court and defense counsel.
On February 29, 2024, the district court grant ed Sullivan’s postconviction petition
concluding that:
6. A review of the trial transcript shows that the
Defendant never stipulated to the prior convictions in writing
or orally. In addition, the jury never found the element of prior
convictions beyond a reasonable doubt.

5
7. All elements of a crime must be proven beyond a
reasonable doubt for a conviction to stand. In the case-at -bar,
one element is missing. Therefore, the Defendant’s petition to
vacate is GRANTED.

The district court set the case for a plea hearing. The state filed a notice of intent to
seek aggravated sentencing.
Sullivan then argued that because the postconviction court vacated his conviction
“due to insufficient evidence,” double jeopardy barred further prosecution. The district
court set a hearing on this motion. On the morning of that hearing, the state mo ved for
reconsideration of the order vacating Sullivan’s conviction, arguing that the
prior-conviction element had been proven when Sullivan “admitted to the convictions
while under oath.” In a memorandum filed two days later, the state argued that the
“stipulation was admitted in error” and thus amounted to a trial error subject to harmless-
error review. The state further argued that the error was harmless because “the jury was
otherwise exposed to the evidence required to meet the state’s burden.”
The postconviction court granted the state’s motion to reconsider and reinstated
Sullivan’s conviction determining that “the stipulation [was] received in error” and thus
subject to harmless-error analysis. The postconviction court concluded that the error was
“not prejudicial” because, among other reasons, the jury “was told of [Sullivan’s] prior
convictions during [his] cross-examination” and Sullivan admitted to the convictions under
oath.
We granted Sullivan’s motion to reinstate the appeal and this appeal follows.
6
DECISION
I. The postconviction court did not violate double jeopardy by reconsidering its
order vacating Sullivan’s conviction for insufficient evidence and reinstating
the conviction.

On appeal, Sullivan argues that the postconviction court violated double jeopardy
by engaging in further review of his case after vacating his conviction for insufficient
evidence, and by reinstating his conviction. We review constitutional issues of double
jeopardy de novo. State v. Large, 607 N.W.2d 774, 778 (Minn. 2000).
The Fifth Amendment of the United States Constitution and article I, section 7 of
the Minnesota Constitution both contain double-jeopardy clauses that “protect a criminal
defendant from a second prosecution for the same offense after an acquittal on the merits.”
State v. Pass, 832 N.W.2d 836, 840 (Minn. 2013) (quotation omitted). That protection
attaches regardless of whether the source of the acquittal is a jury verdict or a judicial
determination. Smith v. Massachusetts, 543 U.S. 462, 466-67 (2005) (“[W]e have long
held that the Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of
a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by
jury verdict.”).
A district court renders “an acquittal on the merits when ‘the ruling of the judge,
whatever its label, actually represents a resolution in defendant’s favor, correct or not, of
some or all of the factual elements of the offenses charged.’” Large, 607 N.W.2d at 779
(quoting United States v. Scott, 437 U.S. 82, 97, 98 (1978)). To determine whether a
district court’s decision “represents a resolution in the defendant’s favor of some or all of
the factual elements of the offense charged, we consider both the form and the substance
7
of the [district] court’s ruling.” State v. Sahr, 812 N.W.2d 83, 90 (Minn. 2012). A district
court’s finding of insufficient evidence to convict on one or more elements of a criminal
offense “amounts to an acquittal on the merits because such a finding involves a factual
determination about the defendant’s guilt or innocence.” Id. (citing Sanabria v. United
States, 437 U.S. 54, 59, 68-69 (1978)). “A verdict of acquittal on the merits deprives the
state of an opportunity to appeal and deprives us of jurisdiction to review the lower court’s
ruling.” Large, 607 N.W.2d at 779. And an acquittal on the merits rendered by a reviewing
court precludes a second prosecution to the same extent as an acquittal declared by a district
court. See Burks v. United States, 437 U.S. 1, 17-18 (1978) (holding that “the Double
Jeopardy Clause precludes a second trial once the reviewing court has found the evidence
legally insufficient”).
Sullivan argues that because the postconviction court’s first order vacated his
conviction for insufficient evidence, that order constituted an acquittal on the merits,
barring further review his case. We disagree. While an acquittal on the merits generally
bars further review, the United States Supreme Court has recognized an exception
permitting reexamination of guilt where “a judge rules in favor of the defendant after a
verdict of guilty has been entered by the trier of fact.” United States v. Wilson, 420 U.S.
332, 352-53 (1975). “When a jury returns a verdict of guilty and a trial judge (or an
appellate court) sets aside that verdict and enters a judgment of acquittal, the Double
Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of
guilty.” Smith, 543 U.S. at 467; see also Minn. R. Crim. P. 28.04, subd. 1(3), (5) (providing
8
that the state may appeal “from an order granting postconviction relief” and “from a
judgment of acquittal by the district court entered after the jury returns a verdict of guilty”).
The jury found Sullivan guilty of felony domestic assault and judgment of
conviction was entered. Therefore, even accepting Sullivan’s contention that the
postconviction court’s first order was an acquittal on the merits, that order did not preclude
an appeal by the state or a “reexamination of guilt” by the postconviction court. See Smith,
543 U.S. at 467; Wilson, 420 U.S. at 352-53.3 The state’s motion to reconsider sought a
different ruling on the postconviction court’s legal determination vacating Sullivan’s
conviction. The state’s motion did not amount to a second trial or reprosecution of the
case. Similarly, the postconviction court was free to reexamine its legal determination of
the prior-conviction element and “reinstate the jury verdict of guilty” without violating
double jeopardy. See Smith, 543 U.S. at 467; see also Evans v. Michigan, 568 U.S. 313,
329-30 n.9 (2013) (“If a court grants a motion to acquit after the jury has convicted, there
is no double jeopardy barrier to an appeal by the government from the court’s acquittal,
because reversal would result in reinstatement of the jury verdict of guilt, not a new trial.”).
Sullivan relies on Smith to support his argu ment that the postconviction court’s
reconsideration of its first order violated double jeopardy. In Smith, the trial court acquitted
the defendant of one of the three charged offenses midway through a jury trial. Id. at 464.

3 At oral argument, Sullivan conceded that the state would have been permitted to appeal
the postconviction court’s first order vacating the conviction but maintained that double
jeopardy barred the postconviction court from reconsidering its own order. Sullivan’s
proposed distinction does not withstand scrutiny. If double jeopardy applies then all courts,
including appellate courts, would be precluded from taking further action.
9
Before closing arguments, at the prosecutor’s request, the trial court reversed the acquittal
and the jury convicted the defendant on all three counts. Id. at 465-66. The Supreme Court
held that reconsideration of the midtrial acquittal violated double jeopardy and that such
an acquittal must be treated as final. Id. at 473. But Smith is distinguishable because both
the acquittal and reconsideration in Smith occurred during trial, before the entry of a
judgment of conviction. Here, by contrast, the jury found Sullivan guilty and the district
court entered a judgment of conviction. And as Smith instructs, when a jury returns a guilty
verdict and a reviewing court subsequently sets aside the verdict and enters a judgment of
acquittal, double jeopardy does not preclude reexamination of guilt. Id. at 467.
Sullivan also relies on Large, where the Minnesota Supreme Court held that double
jeopardy precludes further review of a case after a verdict of acquittal on the merits. 607
N.W.2d at 779. But Large is distinguishable on the same grounds as Smith. In Large, a
jury acquitted the defendant on three of four charged offenses and deadlocked on the fourth.
Id. at 776. The district court then dismissed the fourth charge because acquittal on the third
charge left insufficient evidence to convict on the fourth charge. Id. at 778, 779-80. Thus,
as in Smith, the jury never returned a guilty verdict, and no judgment of conviction was
ever entered. The district court entered a judgment of acquittal in the first instance and
thus the state was precluded from appealing the acquittal.
Sullivan also relies on Burks for the proposition that when a reviewing court
reverses a conviction for insufficient evidence, double jeopardy “precludes a second trial”
and “the only ‘just’ remedy available for [the reviewing] court is the direction of a
judgment of acquittal.” 437 U.S. at 18. In Burks, the Court of Appeals for the Sixth Circuit
10
reversed a conviction for insufficient evidence and remanded to the district court “for a
determination of whether a directed verdict of acquittal should be entered or a new trial
ordered.” Id. at 4 (quotation omitted). The United States Supreme Court held that the
Sixth Circuit’s remand order violated double jeopardy because it allowed for the possibility
of a second trial, despite a determination that the evidence at the original trial was legally
insufficient. Id. at 18. But while Burks precludes a second prosecution in such
circumstances, it does not explicitly preclude any further review of a case upon a reviewing
court’s finding of insufficient evidence. Presumably, if the prosecution had appealed the
Sixth Circuit’s legal determination of the sufficiency of the evidence, such an appeal would
not have been precluded by double jeopardy. See Wilson, 420 U.S. at 352-53 (“[W]hen a
judge rules in favor of the defendant after a verdict of guilty has been entered by the trier
of fact, the Government may appeal from that ruling without running afoul of the Double
Jeopardy Clause.”). Thus, Burks is not on point for purposes of determining whether the
prosecution here was permitted to appeal the postconviction court’s first order, or whether
the postconviction court erred in reconsidering its decision to vacate the conviction. That
inquiry is controlled by the Supreme Court’s decisions in Smith and Wilson, which permit
reexamination of guilt after a reviewing court vacates a conviction for insufficient
evidence. We therefore conclude that the postconviction court did not violate double
jeopardy by considering the state’s motion for reconsideration and reinstating Sullivan’s
conviction.
11
II. The evidence was sufficient to sustain Sullivan’s conviction.

Sullivan argues that the evidence presented at trial was insufficient to sustain his
conviction.4 In reviewing a claim of insufficient evidence, we “undertake a painstaking
analysis of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to permit the jurors to reach the verdict which
they did.” State v. Loveless, 987 N.W.2d 224, 246 (Minn. 2023) (quotation omitted). “And
we will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” State v. Ortega, 813
N.W.2d 86, 100 (Minn. 2012).
Sullivan argues that because he did not properly stipulate to his prior convictions,
the state failed to prove the prior-conviction element of felony domestic abuse, “and thus
the evidence supporting Sullivan’s conviction was insufficient.” “ A criminal defendant
has a right to a jury trial that includes the right to a jury determination that the defendant is
guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”
Kuhlmann, 806 N.W.2d at 848 (citation and quotation omitted). A defendant seeking to

4 The parties disagree on the framing of this issue. Sullivan argues that because he is raising
a sufficiency of the evidence claim, we should apply our traditional sufficiency standard of
review. The state argues that the sufficiency issue results from a trial error: Sullivan’s
invalid waiver of his right to a jury trial on elements of the charged offense—and therefore
we should review for harmless error. See State v. Kuhlmann, 806 N.W.2d 844, 851-52
(Minn. 2011) (holding that district court’s “failure to obtain [the defendant’s] personal
waiver of his right to a jury trial on the previous-conviction elements of the charged
offenses” was trial error subject to harmless-error review). For purposes of this appeal, we
assume without deciding that a sufficiency standard of review is the proper framework for
analyzing Sullivan’s claim that the evidence was insufficient to sustain his conviction.
12
“remove[] unduly prejudicial evidence from the jury’s consideration” may stipulate to one
or more elements of a charged offense. State v. Wright, 679 N.W.2d 186, 191 (Minn. App.
2004), rev. denied (Minn. June 29, 2004); see also Minn. R. Crim. P. 26.01, subd. 3
(providing the procedure for such stipulations). But for a stipulation to be valid, the
defendant must first personally waive their rights to a jury trial —either orally or in
writing—on the stipulated element. Kuhlmann, 806 N.W.2d at 850 ; see also Minn. R.
Crim. P. 26.01, subd. 1(2)(a) (“The defendant, with the approval of the court, may waive a
jury trial on the issue of guilt provided the defendant does so personally, in writing or on
the record in open court.”). But when a defendant’s attorney stipulates to an element of an
offense without the defendant personally waiving his rights, that stipulation does not
function as a valid waiver. Kuhlmann, 806 N.W.2d at 849 (“The fact that defense counsel
may stipulate to a previous-conviction element demonstrates nothing regarding the
defendant’s personal waiver of a right to a jury trial on that element.”) . And when a
defendant does not validly waive their right to a jury trial on an element of an offense, the
state maintains its burden to prove that element to the jury beyond a reasonable doubt.
See id. at 848.
Despite Sullivan’s attorney stating that he was stipulating to the prior convictions
and later maintaining that he had done so, the record reflects that Sullivan never personally
waived his right to a jury trial either orally or in writing. Thus, trial counsel’s stipulation
was not sufficient to accomplish a valid waiver of Sullivan’s right to a jury trial on each
element of the charged offense. See id. at 850. Absent such waiver, the state was still
13
required to prove to the jury each element of felony domestic assault, including the
prior-conviction element, beyond a reasonable doubt. See id.
Sullivan argues that because he did not personally stipulate to the prior-conviction
element and because the state presented no substantive evidence of two previous qualifying
convictions with the last ten years, the state did not meet its burden to prove all elements
of felony domestic assault beyond a reasonable doubt. Sullivan acknowledges that the jury
heard about the prior convictions when he admitted to them during the state’s cross-
examination but maintains that because the prior convictions were admitted only for
impeachment purposes —and not as substantive evidence— the impeachment testimony
cannot be considered for sufficiency purposes as evidence establishing the prior-conviction
element. We disagree.
Generally, “past-crimes evidence is only relevant to attack a witness’s credibility or
character for truthfulness and may be used only to impeach a witness.” State v. Swaney ,
787 N.W.2d 541, 562 (Minn. 2010) (citing Minn. R. Evid. 609(a)). Even so, when
considering sufficiency of the evidence, a reviewing court looks at all the evidence
admitted at trial, regardless of whether that evidence was properly before the jury. See
Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988) (“a reviewing court must consider all of the
evidence admitted by the trial court” to determine whether “there was insufficient evidence
to support a judgment of conviction”) (emphasis added); State v. Cox, 779 N.W.2d 844,
853 (Minn. 2010) (concluding that “[a] reviewing court considers all of the evidence
admitted by the trial court, whether erroneously admitted or not,” to determine whether the
evidence was legally sufficient); State v. Kraushaar, 470 N.W.2d 509, 513 n.3 (Minn.
14
1991) (“In reviewing sufficiency of evidence, courts should include any erroneously
admitted evidence.”). We therefore include Sullivan’s admissions to his prior convictions
in our consideration of whether the evidence was legally sufficient to sustain Sullivan’s
conviction, regardless of the purpose for which they were admitted. See Lockhart, 488
U.S. at 40-41.
5
Sullivan testified during trial that he had been convicted of third-degree assault in
2015 and sentenced on a conviction for fourth-degree criminal sexual conduct in 2017.
Sullivan’s admissions constitute proof of two previous qualifying convictions within the
last ten years sufficient to establish the prior-conviction element of felony domestic abuse.
And the parties do not dispute that the evidence presented at trial otherwise established the
remaining elements of felony domestic abuse. We therefore co nclude that viewed in the
light most favorable to the conviction, the evidence admitted at trial was sufficient for a
jury to reasonably conclude that Sullivan was guilty of felony domestic abuse. See Ortega,
813 N.W.2d at 100.
Affirmed.

5 Although the prior convictions were admitted for impeachment purposes, they were also
admissible as substantive evidence under Minn. R. Evid. 803(22). And the supreme court
has held that in some cases, when evidence admitted for impeachment purposes is
independently admissible as substantive evidence, the “defendant has no legitimate cause
to complain.” See State v. Ortlepp, 363 N.W.2d 39, 43-44 (Minn. 1985) (holding that a
prior inconsistent statement introduced for impeachment purposes could be properly
considered as substantive evidence because the statement was independently admissible as
substantive evidence).