A24-0704

This opinion is nonprecedential except as provided by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
A24-0678
A24-0704

State of Minnesota,
Respondent,

vs.

Thomas John Forcier,
Appellant.

Filed January 13, 2025
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Benton County District Court
File Nos. 05-CR-22-1783, 05-CR-22-1782

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

Kathleen L. Reuter, Benton County Attorney, Natalie Schiferl, Assistant County
Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Laura G. Heinrich, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Frisch, Chief Judge;
and Schmidt, Judge.
2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In these consolidated appeals from judgments of conviction, appellant Thomas
John Forcier argues that he must be permitted to withdraw his Alford pleas1 to one count
of misdemeanor obscene or harassing telephone calls and one count of gross-
misdemeanor harassment because both pleas were inaccurate. Forcier argues that the
pleas were inaccurate because there is an insufficient factual basis to establish two
elements that are essential to each offense—specifically, that Forcier had the intent to
harass and that his conduct caused or would reasonably be expected to cause substantial
emotional distress.
We conclude that Forcier’s plea to misdemeanor obscene or harassing telephone
calls was inaccurate because the record fails to establish the element of substantial
emotional distress. But we conclude that his plea to gross-misdemeanor harassment was
accurate because the record establishes the elements of intent and substantial emotional
distress for that conviction. Accordingly, we affirm the conviction for gross-misdemeanor
harassment, but we reverse the conviction for misdemeanor obscene or harassing
telephone calls and remand for further proceedings.

1 An Alford plea allows a defendant to plead guilty while maintaining their innocence of
the charged offense. State v. Goulette, 258 N.W.2d 758, 760-61 (Minn. 1977) (discussing
North Carolina v. Alford, 400 U.S. 25, 38 (1970)).
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FACTS
In October 2022, respondent State of Minnesota filed complaints against Forcier in
two separate files, charging him with a total of seven counts. The charges stemmed from
text messages that Forcier sent to his sister over multiple days in September 2022.
At a hearing in November 2022, Forcier and the state informed the district court
that they had reached a plea agreement. Under the agreement, Forcier would enter Alford
pleas to one count in each complaint—specifically, one count of misdemeanor obscene or
harassing telephone calls in violation of Minnesota Statutes section 609.79, subdivision
1(1)(iii) (2022), and one count of gross -misdemeanor harassment in violation of
Minnesota Statutes section 609.749, subdivision 2(b)(3) ( 2022). In exchange, the state
would dismiss the remaining counts in both files. The plea agreement also included
agreed-upon sentences and other terms.
Forcier was sworn in to testify, and, following a colloquy, the district court found
that Forcier made a knowing, intelligent, and voluntary waiver of his rights. Defense
counsel then examine d Forcier to establish the factual basis for each plea—first, for his
plea to misdemeanor obscene or harassing telephone calls and, second, for his plea to
gross-misdemeanor harassment. After each colloquy, the district court determined that
the factual basis was sufficient for the respective plea.
At a subsequent sentencing hearing, the district court accepted Forcier’s Alford
pleas and sentenced Forcier in accordance with the plea agreement.
Forcier appeals.
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DECISION
Forcier argues that he should be permitted to withdraw his Alford pleas because
the record does not contain a sufficient factual basis to establish the elements of intent to
harass and substantial emotional distress.
“A defendant has no absolute right to withdraw a guilty plea after entering it.”
State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But a plea must be constitutionally
valid, and a defendant may challenge the constitutional validity of a guilty plea for the
first time on direct appeal. See Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989). A
defendant has the burden to show his plea was invalid. Raleigh, 778 N.W.2d at 94.
“Assessing the validity of a plea presents a question of law that [appellate courts] review
de novo.” Id.
“To be constitutionally valid, a guilty plea must be accurate, voluntary, and
intelligent.” Id. To be accurate, a plea must be supported by a proper factual basis. State
v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). Given the “inherent conflict” in an Alford
plea where a defendant pleads guilty while maintaining their innocence, an Alford plea
requires “careful scrutiny of the factual basis. ” State v. Theis, 742 N.W.2d 643, 648- 49
(Minn. 2007). An Alford plea is accurate when (1) the state establishes a “strong factual
basis” for the offense and (2) the defendant agrees that the evidence is sufficient to
support conviction beyond a reasonable doubt. Williams v. State, 760 N.W.2d 8, 12 -13
(Minn. App. 2009), rev. denied (Minn. Apr. 21, 2009). These two requirements “provide
the [district] court with a basis to independently conclude that there is a strong probability
5
that the defendant would be found guilty of the charge to which he pleaded guilty,
notwithstanding his claims of innocence.” Theis, 742 N.W.2d at 649 (emphasis omitted).
The supreme court has counseled that the best practice to ensure the accuracy of
an Alford plea “is for the factual basis to be based on evidence discussed with the
defendant on the record at the plea hearing.” Id. That discussion can take place through
interrogation of the defendant about the evidence that would likely be presented at trial,
the introduction of witness statements or other documents at the plea hearing, or
stipulations by the parties to factual statements in documents submitted to the district
court at the plea hearing. Id.
With these principles in mind, we turn to the factual basis for each of Forcier’s
pleas.
2
I. Forcier’s Alford plea to m isdemeanor obscene or harassing telephone calls
lacks a sufficient factual basis.

Under Minnesota Statutes section 609.79 (2022), a person engages in obscene or
harassing telephone calls when the person (1) “by means of a telephone,” (2) “with the
intent to harass or intimidate any person at the called or notified number,” (3) “makes or
causes the telephone of another to repeatedly or continuously ring or receive electronic
notifications,” and (4) “thereby . . . causes or would reasonably be expected to cause

2 In a pro se supplemental brief, Forcier denies committing the crimes for which he was
convicted and suggests that his innocence weighs in favor of reversing his convictions.
The argument is unpersuasive. In an Alford plea, the defendant pleads guilty while
maintaining their innocence, meaning that a district court may accept an Alford plea even
if a defendant professes their innocence , so long as there is a strong factual basis of guilt.
See id. at 647. As a result, to the extent that Forcier asserts his innocence, that assertion
does not factor into this court’s consideration as to whether he is permitted to withdraw
his Alford pleas.
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substantial emotional distress as defined in section 609.749, subdivision 2, paragraph (a),
clause (4), to the other person.” Minn. Stat. § 609.79, subd. 1(1)(iii) . Forcier challenges
the factual basis for the second and fourth elements.
Because it is dispositive, we begin with the fourth element, regarding substantial
emotional distress. As a preliminary matter, t he state contends that substantial emotional
distress is not an element of the offense because it is not included as an element in the
model jury instructions for misdemeanor obscene or harassing telephone calls. The state
is correct that a substantial-emotional-distress element does not appear in the model jury
instructions for this offense. See 10 Minnesota Practice, CRIMJIG 15.14 (2024). But it is
well settled that the model jury instructions are not law and that, when there is a conflict
between the model jury instructions and the statute, the statute controls. State v. Taylor,
869 N.W.2d 1, 15 (Minn. 2015) (“Where there is a conflict between the Minnesota Jury
Instructions Guide, Criminal (CRIMJIG) and the statute or our case law, the latter two
control.” (citing State v. Koppi, 798 N.W.2d 358, 364 (Minn. 2011))); State v. Pierce,
792 N.W.2d 83, 86 (Minn. App. 2010) (noting that model jury instructions “are not the
law”). Here, the statute requires that the defendant’s conduct caused or would reasonably
have been expected to cause substantial emotional distress, see Minn. Stat. § 609.79,
subd. 1(1)(iii), and it is thus an element of the offense.
We turn to the factual basis for that element here. Minnesota Statutes section
609.79 borrows the definition of “substantial emotional distress” from the harassment
statute, which defines the term as
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mental distress, mental suffering, or mental anguish as
demonstrated by a victim’s response to an act including but
not limited to seeking psychotherapy as defined in section
604.20, losing sleep or appetite, being diagnosed with a
mental-health condition, experiencing suicidal ideation, or
having difficulty concentrating on tasks resulting in a loss of
productivity.

Minn. Stat. § 609.749, subd. 2(a)(4) (2022).
During questioning by his counsel, Forcier agreed that he had had a chance to read
the complaint, police reports, and other documents submitted in the case. He also agreed
that, if the case went to trial, the state would call certain witnesses, including his sister, to
testify. He agreed that his sister would testify that Forcier sent several text messages to
her on September 14 and 20, 2022, the dates listed in the complaint. As to the content of
the messages, Forcier testified:
Q: And you acknowledge that she would testify that some of
those text messages indicated that you were calling her a
stupid b-tch, that you want your items back and for her not to
f-ck with you, isn’t that correct?
A: Yes.
Q: And including calling her a thief, a guilty thief, several
times, isn’t that correct?
A: That is correct, yes.

Forcier agreed that, if his sister “testified consistently” with that description, there was “a
sufficient likelihood applying the standard of reasonable doubt that the jury would
convict [him].”
Forcier contends that this factual basis is insufficient because there was no
discussion about the element of substantial emotional distress. We agree that the factual
basis is insufficient with respect to that element. During the colloquy on this charge, there
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was no description of any anticipated evidence that would be offered to show that
Forcier’s sister in fact suffered substantial emotional distress in response to the text
messages. Nor was there any discussion about whether the evidence would be sufficient
to prove that the described text messages would reasonably cause substantial emotional
distress. Further, the content of the messages—while profane and angry—does not
provide a strong basis for such a determination. The limited colloquy with Forcier was
thus insufficient to provide the strong factual basis that is required for an Alford plea. See
Theis, 742 N.W.2d at 648-49; Williams, 760 N.W.2d at 12-13. Accordingly, Forcier must
be permitted to withdraw his Alford plea to misdemeanor obscene or harassing telephone
calls.
II. Forcier’s Alford plea to gross-misdemeanor harassment is accurate.

Under Minnesota Statutes section 609.749, subdivision 2(c)(4) (2022), “[a] person
commits harassment . . . if the person[] repeatedly makes telephone calls, sends text
messages, or induces a victim to make telephone calls to the actor, whether or not
conversation ensues.” The offense is a gross misdemeanor if the person committing
harassment does so “with the intent to kill, injure, harass, or intimidate another person”
and “causes or would reasonably be expected to cause substantial emotional distress to
the other person.” Minn. Stat. § 609.749, subd. 2(b)(3). Forcier do es not challenge the
factual basis for harassment under Minnesota Statutes section 609.749, subdivision
2(c)(4). But he argues that the record does not establish a strong factual basis for the
elements of intent to harass and substantial emotional distress required for gross-
misdemeanor harassment.
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A. Intent to Harass
Under Minnesota’s criminal code, when criminal intent is an element of a crime,
the phrase “with intent to” means that “the actor either has a purpose to do the thing or
cause the result specified or believes that the act, if successful, will cause that result.”
Minn. Stat. § 609.02, subd. 9(4) (2022). Intent can be inferred from the totality of
circumstances. State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989).
The factual basis for this plea was established through the following examination
of Forcier regarding the text messages at issue:
Q: And you understand that [your sister] would testify to
receiving several text messages, including messages on
September 23rd . . . that say, “Try me b- tch and you will be
with your daughter soon,” isn’t that correct?
A: Yes, correct.
Q: And you understand that she would testify that she
received additional text messages including that, “You will
not get away with this” and . . . saying that, “I will f-cking kill
you, and if you do not give me my things and my money,” do
you understand that?
A: Yes.
Q: And you sent another text calling her a worthless b-tch,
isn’t that correct?
A: Yes.
Q: So you would agree that she would testify and there were
pages of text messages, but she would testify that she felt
harassed by –. . . those text messages, isn’t that correct?
A: Yes.
Q: And you would agree that she would testify that those text
messages . . . actually caused her substantial emotional
distress, isn’t that correct?
A: If that’s what she says, yes.
. . . .
Q: . . . [Y]ou would agree that there is a substantial
likelihood that the jury after hearing this testimony would
find you guilty.
A: Likely, yes.
10

Forcier argues that the number and content of the text messages discussed in this
colloquy did not rise to a level sufficient to establish an intent to harass. The state
contends the opposite. Both parties look to State v. Badiner, 412 N.W.2d 810 (Minn.
App. 1987), rev. denied (Minn. Dec. 18, 1987), for support.
In Badiner, we held that a defendant phoning his downstairs neighbor “two or
three times a week,” sometimes “several times during the day,” complaining about noise
was sufficient to establish a specific intent to harass. 3 412 N.W.2d at 811. Forcier argues
that, here, in contrast to Badiner, the evidence of the number of calls was minim al—he
points out that the word “several” was used and that it was not clear whether the content
described was from more than two messages. The state, on the other hand, argues that the
evidence is more than sufficient to establish an intent to harass under Badiner,
emphasizing the profane and threatening language in the multiple text messages.
We agree with the state. The plea colloquy establishes that the evidence would
show that Forcier sent multiple text messages that included derogatory language and
threats to his sister’s life. Although the precise number of text messages was not clearly
identified, their threatening nature allows a reasonable inference to be drawn that Forcier

3 Although Badiner discusses “intent to harass” as it is used in Minnesota Statutes section
609.79, the obscene or harassing telephone calls statute, we note that section 609.749,
which is the statute at issue here, uses “intent to harass” in the same way. Compare Minn.
Stat. § 609.79, subd. 1(1)(iii), with Minn. Stat. § 609.749, subd. 2(b), (c)(4) (2022).
Accordingly, we conclude that Badiner is helpful in determining whether the number and
content of the text messages that Forcier sent establish an intent to harass under section
609.749 (2022).
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intended his conduct to harass his sister. Thus, the plea colloquy establishes a strong
factual basis for the element of intent to harass.
B. Substantial Emotional Distress
Finally, we turn to the element of substantial emotional distress. As noted above,
the term “substantial emotional distress” is defined in the harassment statute as “mental
distress, mental suffering, or mental anguish as demonstrated by a victim’s response . . .
including but not limited to seeking psychotherapy . . . , losing sleep or appetite, . . . or
having difficulty concentrating,” among other responses. Minn. Stat. § 609.749,
subd. 2(a)(4).
Forcier contends that the element of substantial emotional distress was not
sufficiently established at the plea hearing because the evidence described was that his
sister would testify that the text messages caused her “substantial emotional distress” but
the plea colloquy did not include further detail demonstrating her substantial emotional
distress. We are not persuaded.
Forcier acknowledged that the state would present testimony from the victim that
his text messages in fact caused her substantial emotional distress. We are not convinced
that a more detailed explanation was required. Moreover, the content of the messages—
which included physical threats—provided an ample basis for the district court to
conclude that the messages “would reasonably be expected” to cause his sister substantial
emotional distress. See id., subd. 2(b)(3). For these reasons, a strong factual basis for the
element of substantial emotional distress is present.
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Because the plea colloquy sufficiently established the intent and substantial-
emotional-distress elements, Forcier’s Alford plea to gross-misdemeanor harassment was
accurate.
In sum, we affirm Forcier’s conviction for gross-misdemeanor harassment because
his Alford plea was valid. We reverse Forcier’s conviction for misdemeanor obscene or
harassing telephone calls because his Alford plea to that offense was not valid, and we
remand to the district court to permit Forcier to withdraw that plea.4
Affirmed in part, reversed in part, and remanded.

4 We offer no opinion as to the effect of a plea withdrawal on the plea agreement as a
whole, which covered multiple charges across two court files. See State v. Misquadace,
629 N.W.2d 487, 491 (Minn. App. 2001) (ruling that district court on remand could
consider motions to vacate or to modify plea agreement and reconsider its own decision
to accept plea agreement when challenged sentences were part of “package” plea
agreement), aff’d, 644 N.W.2d 65 (Minn. 2002).