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This opinion is nonprecedential except as provided by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
A24-0434

State of Minnesota,
Respondent,

vs.

Gerald Edward Bolster,
Appellant.

Filed March 3, 2025
Reversed and remanded
Cleary, Judge*

Dakota County District Court
File No. 19HA-CR-23-1744

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

Kathryn M. Keena, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for
appellant)

Considered and decided by Cochran, Presiding Judge; Larson, Judge; and Cleary,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
CLEARY, Judge
In this direct appeal from the final judgment of conviction for first-degree burglary,
appellant argues that he is entitled to a new trial because the district court violated his rights
under the Confrontation Clause by allowing the state to present testimonial statements from
non-testifying witnesses. We reverse and remand.
FACTS
Respondent State of Minnesota charged appellant Gerald Edward Bolster with two
counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (2022). At
Bolster’s first appearance, the district court issued a domestic-abuse-no-contact order
(DANCO) preventing Bolster from contacting one of the victims, B.B.
The state moved to admit the out- of-court statements of the victims, arguing that
Bolster forfeited his right to confrontation. The state claimed that Bolster contacted B.B.
several times from jail, in violation of the DANCO, and discussed his case.
At an evidentiary hearing on the state’s motion, the investigating officer identified
the two victims involved, B.B. and P.M., and explained law enforcement’s efforts to
contact the victims. The officer testified that she had been in contact with P.M., but P.M.
eventually stopped answering the officer’s calls. According to the officer, law enforcement
attempted to contact and serve a subpoena on P.M. several times.
The officer also testified that Bolster contacted B.B. several times from jail. In one
of the calls, B.B. acknowledged being subpoenaed to testify at Bolster’s trial and stated
that she did not intend on attending. In other calls, Bolster told B.B., “I don’t think you
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should [attend trial].” In another call, B.B. told Bolster that law enforcement is “really
trying to get” to P.M., and Bolster asked B.B. if she changed her mind and planned on
attending trial “because [P.M.] is scared.” Bolster also told B.B. that, if she did not go to
trial, he “will give [her] any space or anything else [she] need[s], anything [she] want[s],
and [she] won’t have any problems with [him].”
The district court found that: (1) “both alleged victims are unavailable, on having
evaded service and the other having chose[n] not to comply with a subpoena”;
(2) “Mr. Bolster engaged in wrongful conduct by encouraging a material witness to not
comply with a trial subpoena”; (3) “the state proved by a preponderance of evidence that
the witness’s unavailability arose from Mr. Bolster’s encouragement to ignore the
subpoena and his promises to her if she ignored it”; and (4) “the clear intent of Mr. Bolster
was to persuade the witness to ignore the subpoena and not attend trial.” The district court
found that the state proved that Bolster’s wrongful conduct procured the unavailability of
the witnesses and had therefore forfeited his right to confrontation.
The case proceeded to a jury trial. At trial, the recorded statements of B.B. and P.M.
were presented to the jury in lieu of their in- person testimony. The jury found Bolster
guilty of both counts of first-degree burglary. The district court accepted the jury’s verdicts
and entered convictions on both counts. The district court later imposed a single
aggravated sentence of 150 months’ imprisonment.
Bolster appeals.

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DECISION
Bolster argues that he is entitled to a new trial because the district court violated his
rights under the Confrontation Clause by allowing the state to present testimonial
statements from non-testifying witnesses.
Both the United States and Minnesota Constitutions guarantee criminal defendants
with the right to confront witnesses. U.S. Const. amend. VI; Minn. Const. art. I, § 6.
Whether admitting evidence violates a defendant’s confrontation right is a question of law
that we review de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
“The Confrontation Clause bars the admission of out-of-court statements unless the
witness is unavailable and the defendant had a prior opportunity to examine the witness.”
State v. Cox, 779 N.W.2d 844, 850 (Minn. 2010) (citing Crawford v. Washington, 541 U.S.
36, 38 (2004)). But the right is not absolute. State v. Tate, 985 N.W.2d 291, 297 (Minn.
2023). “There is a narrow exception to the confrontation right, referred to as forfeiture by
wrongdoing, which extinguishes confrontation claims on essentially equitable grounds.”
Cox, 779 N.W.2d at 850 (quotation omitted).
The forfeiture-by-wrongdoing exception requires the state to prove by a
preponderance of the evidence: “(1) that the declarant-witness is unavailable, (2) the
defendant engaged in wrongful conduct, (3) that the wrongful conduct procured the
unavailability of the witness and (4) that the defendant intended to procure the
unavailability of the witness.” Id. at 851.
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Bolster argues that the state failed to prove that B.B. and P.M. were unavailable for
trial, claiming that the state did not make reasonable efforts to procure their presence at
trial. We agree.
The state bears the burden of proving that a witness is unavailable. Id. at 852. “A
witness is not ‘unavailable’ for Confrontation Clause purposes ‘unless the prosecutorial
authorities have made a good-faith effort to obtain his presence at trial.’” Id. (quoting
Barber v. Page, 390 U.S. 719, 724-25 (1968)). The good-faith effort requirement does not
demand that the prosecution “exhaust every avenue of inquiry, no matter how
unpromising.” Hardy v. Cross , 565 U.S. 65, 71-72 (2011). “The prosecution must,
however, exhaust some avenues.” State v. Trifiletti, 6 N.W.3d 79, 91 (Minn. 2024). The
extent to which the state must go to ensure that a witness appears for trial “is a question of
reasonableness.” Cox, 779 N.W.2d at 852 (quotations omitted).
The state subpoenaed B.B. to testify at Bolster’s trial. Although B.B. told Bolster
that she did not plan on attending his trial, there is nothing in the record indicating that she
would have refused to testify had she been compelled to attend trial and called as a witness.
See id. (noting that the state did not establish that a subpoenaed witness would refuse to
testify if called as a witness). And at the start of trial, the state did not follow up with phone
calls or a check of her residence—she was, after all, in contempt of court for not appearing.
Based on this record, the state failed to establish that it exhausted reasonable efforts to
procure B.B.’s presence at trial such that she was unavailable to testify at Bolster’s trial for
Confrontation Clause purposes.
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P.M. was not under subpoena. The record shows that the state attempted to
subpoena P.M., but it is not clear how many times law enforcement attempted service, nor
is it clear whether the state was in contact with P.M. beyond its service efforts. This record
is also insufficient to show that the state exhausted sufficient efforts to procure P.M.’s
presence at Bolster’s trial.
Because the state failed to establish unavailability, the forfeiture-by -wrongdoing
exception did not apply and admitting the recorded statements of B.B. and P.M. violated
Bolster’s right to confrontation.
“Confrontation Clause violations are subject to a constitutional harmless-error -
impact analysis.” Id. at 853. “An error is harmless beyond a reasonable doubt if the guilty
verdict actually rendered was ‘surely unattributable’ to the error.” State v. Courtney, 696
N.W.2d 73, 80 (Minn. 2005) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).
The state does not claim that admitting the out-of-court statements of B.B. and P.M.
was harmless. Because the statements provide a first-hand account of the underlying
incident, we are not convinced that the guilty verdicts were “surely unattributable” to those
statements. The error in admitting the statements was therefore not harmless, and we
reverse Bolster’s convictions and remand for a new trial.
Reversed and remanded.