Hennepin County State of Minnesota v. Tremaine Michael Bucholz Thissen, J. Concurring in part, dissenting in part, Hudson, C.J., McKeig, Moore, III, JJ

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STATE OF MINNESOTA
IN SUPREME COURT
A25-0518
Hennepin County
State of Minnesota,
Respondent,
vs.
Tremaine Michael Bucholz,
Appellant.
Thissen, J.
Concurring in part, dissenting in part,
Hudson, C.J., McKeig, Moore, III, JJ.
Filed: September 30, 2026
Office of Appellate Courts
________________________
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Senior Assistant County
Attorney, Minneapolis, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.
________________________
S Y L L A B U S
1. District courts should no longer apply the threshold-foundation first step for
alternative-perpetrator evidence adopted in our decision in State v. Hawkins, 260 N.W.2d
150 (Minn. 1977), which required a defendant to provide evidence having an inherent
tendency to connect an alleged alternative perpetrator with the commission of the crime
before admitting evidence that a person other than the defendant committed the charged

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crime. Instead, district courts should apply the Minnesota Rules of Evidence in
determining whether to admit alternative-perpetrator evidence.
2. The defendant is not entitled to a new trial where, despite the district court’s
ruling excluding alternative-perpetrator evidence, the jury heard significant evidence of
an alleged alternative perpetrator, had an opportunity to consider that party’s connection
to the offenses charged, and there was strong evidence of the defendant’s guilt, thus
rendering the district court’s ruling to exclude the evidence harmless beyond a reasonable
doubt.
3. The entry of a conviction for second-degree murder in the sentencing order
was clerical error and must be corrected.
Affirmed in part, reversed in part, and remanded to the district court.
O P I N I O N
THISSEN, Justice.
A jury found appellant Tremaine Michael Bucholz guilty—and the district court
convicted him—of first-degree murder during a drive-by shooting and second-degree
intentional murder for the shooting death of Stevi Rae Palacio. Bucholz seeks reversal of
his convictions on the ground that the district court erred in denying his pretrial motion to
identify another individual, D.J., as an alternative perpetrator. He also requests that, if we
do not reverse his convictions, we remand to the district court to correct the sentencing
order to remove the entry of conviction on the second-degree murder charge.
Minnesota courts apply “a two-step process to determine whether to admit
alternative-perpetrator evidence.” State v. Rooney, 23 N.W.3d 75, 82 (Minn. 2025). This

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is the so-called Hawkins test, named for our decision in State v. Hawkins, 260 N.W.2d
150, 159 (Minn. 1977):
First, a defendant must make a foundational proffer of ‘evidence having an
inherent tendency to connect [the third person] with the actual commission
of the crime.’ … Second, only if the district court determines this threshold
requirement has been met may the defendant introduce ‘evidence of a motive
of the third person to commit the crime, threats by the third person, or other
miscellaneous facts which would tend to prove the third person committed
the act’ if the ordinary rules of evidence are satisfied.
Rooney, 23 N.W.3d at 82 (quoting Hawkins, 260 N.W.2d at 159). Bucholz argues that we
should abandon the threshold-foundation first step of our test for determining whether
alternative-perpetrator evidence is admissible.
We accept Bucholz’s invitation. District courts, going forward, should not apply a
threshold-foundation inquiry that requires a defendant seeking to introduce any evidence
suggesting another person may have committed an offense to first prove an “inherent
tendency to connect such other person with the actual commission of the crime.”
Hawkins, 260 N.W.2d at 159 (citation omitted) (internal quotation marks omitted).
Instead, for cases tried on or after the date this opinion issues, district courts should
simply apply the Minnesota Rules of Evidence to determine whether to admit alternative-
perpetrator evidence. District courts should admit evidence that is relevant—“having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence,” Minn.
R. Evid. 401—to show another person may have committed an offense unless the
prejudicial impact of the evidence substantially outweighs its probative value, Minn. R.
Evid. 403, or because the evidence is otherwise inadmissible under the Rules of

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Evidence. In making this decision, we acknowledge that we are overruling our precedent
on the admissibility of alternative-perpetrator evidence. We also recognize the principle
of stare decisis that “require[s] a compelling reason” to overturn our past cases in the
interest of maintaining “stability in the law.” Cargill, Inc. v. Ace Am. Ins., 784 N.W.2d
341, 352 (Minn. 2010). We conclude, however, that judicial experience with the rule and
the practical value of a simpler rule justify the change.
We also conclude that the district court’s ruling that Bucholz did not satisfy the
Hawkins threshold-foundation step was harmless beyond a reasonable doubt in this case.
Accordingly, we affirm Bucholz’s conviction.
Finally, Bucholz separately argues that the district court erred in issuing a
sentencing order that entered convictions for both first- and second-degree murder. At
Bucholz’s sentencing hearing, the district court orally entered a conviction on only the
first-degree murder charge, but the written sentencing order mistakenly reflected that the
court had entered convictions on both counts. We agree that the conviction reflected in
the written order was a clerical error and remand to the district court to correct the
sentencing order and remove the judgment of conviction for second-degree murder.
FACTS
Derrick Lamon Johnson is a drug dealer who has sold cocaine and fentanyl.
Bucholz both consumed drugs from Johnson and helped Johnson sell drugs. Bucholz’s
mother (Mother) and sister (Sister) also bought drugs from Johnson and spent time with
Johnson in Johnson’s apartment.

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In the summer of 2023, Sister took a video of Johnson getting “super high out of
his mind” when she and three others were at his apartment. Sister testified that she
believed Johnson had overdosed because he was unresponsive. The next day, Johnson
told Sister and others that he discovered some of his drugs and money were missing.
Johnson suspected that Stevi Rae Palacio was among those responsible for the theft and
Johnson threatened to kill Palacio.
On August 8, 2023, several people were in Johnson’s apartment, including
Johnson, Bucholz, Sister, Mother, and Johnson’s son, D.J. D.J. is a known drug dealer
who participated in Johnson’s drug sales, and D.J. knew that Johnson believed Palacio
had stolen from him. Shortly before midnight, Johnson, D.J., and Bucholz left the
apartment together.
Starting about 11:53 p.m., multiple video cameras recorded a Chevy conversion
van circling the block near the intersection of North Thomas Avenue and Oak Park
Avenue in Minneapolis. Using license-plate-reader technology, officers later determined
that the van belonged to Johnson. At 11:54 p.m., video cameras captured the van as it
pulled into an alley that runs parallel to North Thomas Avenue. Video footage shows that
Bucholz exited the front passenger door and walked to the driver’s side of the van; the
driver exited at the same time, and both Bucholz and the driver walked toward the van’s
rear. A second video shows that the driver and passenger doors then opened and shut
again before the van continued down the alley toward North Thomas Avenue. The van in
the videos had distinct markings and damage.

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A doorbell camera subsequently captured video footage of the shooting itself. In
that video, Palacio walked alone along North Thomas Avenue about 20 seconds before
midnight. Johnson’s van turned onto North Thomas Avenue, driving toward Palacio. The
video shows that the van slowed and pulled parallel to Palacio, then a gunshot was fired
from the van’s front passenger window at almost exactly 12:00 a.m. Palacio ran. The van
moved in the opposite direction as someone inside continued to shoot at Palacio. The van
left the block a few seconds after midnight.
A neighbor called 911 after hearing the gunshots. Police responded and found
Palacio face down on the sidewalk without a pulse. Palacio was taken to the hospital by
ambulance and pronounced dead. An autopsy determined Palacio died from a gunshot
wound to her back.
Investigators later found Johnson’s van parked in the underground garage at his
apartment complex. Surveillance video from the garage elevator lobby showed that
Johnson and Bucholz entered the vestibule 5 minutes and 54 seconds after midnight the
night of the shooting.
Forensic testing identified Bucholz’s fingerprints on the van’s exterior passenger
door handle and the exterior and interior of the driver’s door. Johnson’s prints were on the
exterior driver’s door and the middle of the van’s three exterior windows on the driver’s
side. The van also displayed prints from two other individuals. DNA testing determined
Bucholz and Johnson were possible contributors to a mixture of DNA collected from the
van’s exterior front passenger door handle, gear shift, and steering wheel, and that

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Bucholz was a possible contributor to a DNA mixture collected from the interior front
passenger door handle.
At the scene where Palacio was shot, officers found one discharged 10-mm
cartridge casing. When processing Johnson’s van, officers observed a bullet hole in the
front passenger window. Officers also collected a discharged 10-mm cartridge casing
from the van’s undercarriage. A forensic examiner concluded that the casing in the van
was fired from the same gun as the casing from the scene. The police did not recover a
weapon.
Officers searched Bucholz’s cell phone and found a deleted video of Bucholz
holding a gun, as well as text messages sent before the murder that included a picture of
Bucholz holding a “Glock 20 Gen 4,” a gun that fires 10-mm bullets. The phone’s
internet history showed that, beginning at 8:15 the morning after the shooting, someone
used the phone to search for information about Palacio’s murder.
On September 5, 2023, officers arrested and interviewed Bucholz, who
acknowledged he was in the van with Johnson the night of the shooting but denied
involvement in the murder. Bucholz claimed he had been smoking with a friend at the
intersection of 15th and Girard at midnight before getting picked up and returning with
Johnson to Johnson’s apartment. Bucholz repeatedly asked if the officers had talked to
Johnson yet and suggested that there must be another person involved.
On September 8, 2023, the State charged Bucholz with two counts of second-
degree murder and one count of ineligible possession of a firearm. A month later, a grand
jury indicted Bucholz for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1),

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and first-degree intentional murder during a drive-by shooting, Minn. Stat.
§ 609.185(a)(3), as well as one count of ineligible possession of a firearm, Minn. Stat.
§ 624.713, subd. 1(2).
On September 15, 2023, officers spoke with D.C., then an inmate at the Anoka
County jail, who had contacted them. D.C. had previously sold fentanyl with Johnson and
Bucholz and shared that one time when he, Johnson, and Bucholz were together, Johnson
offered D.C. $10,000 to kill Palacio and another person he suspected of stealing from
him. After D.C. responded, “it’d have to be a hundred,” Bucholz instead offered, “I’ll do
it for free.”1 D.C. also told officers that he ran into Bucholz the day after the shooting and
Bucholz told him, “That bitch had to go,” and referenced “clapping her,” slang for
shooting. At trial, D.C. testified that Bucholz told him that he and Johnson “got her” and
that Bucholz missed, but Johnson grabbed the gun and was the one to shoot Palacio.
While in jail, Bucholz made statements on recorded phone calls, including, “I
can’t believe they got me when they got me. I thought they was gonna get my ass when I
came to fucking court,” and “[t]hey know they got [Johnson] but they’re trying to get me
too.” He also told his family that he planned to blame D.J. for Palacio’s murder.
Before trial, Bucholz filed notice of his intent to present an alternative-perpetrator
defense, naming D.J. as the alternative perpetrator. Bucholz submitted an offer of proof
with the following evidence: D.J. was not in custody when Palacio was killed, D.J. was

1 At trial, D.C. first testified that Bucholz was not present when Johnson offered to
pay D.C. to kill Palacio, but after reviewing his grand jury testimony, D.C. corrected
himself and said that Bucholz had been there and offered to kill Palacio for free.

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present at Johnson’s apartment the night of the shooting and left the apartment with
Johnson and Bucholz, phone records place D.J. near Johnson’s apartment the hour before
the shooting, D.J. was a known drug dealer who participated in Johnson’s drug sales, D.J.
knew that Johnson believed Palacio had stolen from him, and at the time of the offer of
proof D.J. was in federal custody for a charge involving a firearm.
The State opposed admitting evidence suggesting that D.J. shot Palacio. The State
informed the district court that it had conducted an investigation after receiving Bucholz’s
notice and asserted that it had found “no evidence of any connection” between D.J. and
either Palacio or the crime scene. The State highlighted that cell phone records show
D.J.’s phone was on a continuous 15-minute phone call beginning at 11:55 p.m.—when
the van was circling the block and someone inside shot Palacio—and at that time D.J.’s
phone was north of the area of the shooting. The State further noted that D.J.’s cell phone
continued to move north after the shooting.
The district court determined that Bucholz had not established an adequate
foundation to admit alternative-perpetrator evidence under the Hawkins test’s threshold-
foundation step and ordered that Bucholz could not introduce evidence connecting D.J. to
the shooting.
The State then asked that the district court preclude Bucholz “from testifying
about or offering evidence regarding any alleged alternative perpetrator(s) ….” The
district court deferred ruling until Bucholz decided whether to testify.
At trial, despite the district court order, both the State and Bucholz presented
testimony and evidence about D.J. and his connection, or lack thereof, to the shooting.

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During the State’s case, Mother, and Sister both testified that Johnson, D.J., and Bucholz
were in Johnson’s apartment the night of the shooting, and that all three left the apartment
shortly before midnight. Mother and Sister also testified that Johnson and Bucholz
returned to the apartment less than 10 minutes later, while D.J. returned after an hour or
two. The State introduced D.J.’s cell phone records which showed his phone was on a call
and north of the area of the crime at the time of the shooting.
After the State rested, Bucholz decided to testify. The district court reminded
counsel of its ruling excluding alternative-perpetrator evidence and noted its expectation
that “no alternative perpetrator evidence will be introduced during the presentation of the
defense’s case but also during Mr. Bucholz’s testimony.” The district court nonetheless
overruled objections from the State and permitted Bucholz to recount his version of
events, including testimony that placed D.J. at the scene.
Bucholz testified that he was in the van when Johnson saw Palacio walking down
North Thomas Avenue. Bucholz stated that he tried to dissuade Johnson from killing her.
He then testified that Johnson drove into the alley parallel to North Thomas Avenue and
told Bucholz, “Get the fuck out then, pussy.” Bucholz said both men exited the van—
Bucholz to leave the area, and Johnson to make sure Bucholz left. Bucholz stated that
after he exited he saw the van continue down the alley and he heard gunshots. Bucholz
testified that the van then pulled back up, with D.J. driving and Johnson in the passenger
seat, and stopped behind him. Bucholz said that when they arrived at Johnson’s
apartment, D.J. left in his truck while Bucholz and Johnson went back upstairs.

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In his testimony, Bucholz denied offering to kill Palacio and said he was not
truthful with police because Johnson had threatened to kill him and his family and
because the police did not yet have Johnson in custody. During cross-examination,
Bucholz acknowledged that in jail phone calls he told his family that he planned to blame
D.J. He said that in those calls he “kind of just threw [D.J.] at [the prosecutors] to see
how hard [the prosecutors are] going to work.”
In its closing argument, the State told the jury it should not consider D.J. a
potential perpetrator of Palacio’s murder. The prosecutor asserted that the surveillance
videos, forensic analysis, and evidence from the car showed that Johnson and Bucholz
were the only two involved in the murder. The prosecution also argued that while D.J.
may have left Johnson’s apartment with Bucholz and Johnson, a lack of forensic evidence
linking D.J. to the van or gun, along with D.J.’s phone activity and location, meant that it
was “impossible” for D.J. “to have been in that vehicle or to have participated in this
crime.” Finally, the prosecutor urged the jury to assess Bucholz’s credibility given his
statements from jail that he would blame D.J. as a tactic.
The defense raised D.J.’s potential connection to the murder in its closing
argument. Counsel argued that the State failed to investigate whether D.J. was also in the
van and failed to demonstrate that D.J. was the one using his phone during the shooting,
thereby leaving open the possibility that D.J., and not Bucholz, had participated in the
murder.
The jury found Bucholz not guilty of first-degree premeditated murder (count one)
and ineligible possession of a firearm (count three), but guilty of first-degree murder

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during a drive-by shooting (count two) and second-degree intentional murder (count
four). At sentencing, the State requested that the district court “recognize the guilty
verdict on the murder in the second degree – intentional – but not issue a conviction on
that count.” At the sentencing hearing, the district court, accepted the jury’s verdict on
first-degree intentional murder during a drive-by shooting and “recognize[d] that the jury
found Mr. Bucholz guilty of murder in the second degree” but only imposed a sentence
on first-degree intentional murder during a drive-by shooting. The written sentencing
order filed that same day, however, stated that Bucholz was convicted of both first-degree
intentional murder during a drive-by shooting and second-degree intentional murder.
Bucholz appealed directly to this court. Minn. Stat. § 632.14. He urges us to
reverse his convictions because the district court improperly excluded evidence that D.J.
killed Palacio. He also asks us to vacate his sentence for second-degree murder.
ANALYSIS
Bucholz urges us to reverse his convictions because the district court improperly
excluded evidence, and prevented argument, that another person—D.J.—killed Palacio.
In deciding to exclude Bucholz’s alternative-perpetrator evidence, the district court
applied the threshold-foundation first step of our two-step approach to determine whether
such evidence is admissible. Under the threshold-foundation step, a defendant cannot
present evidence that another person committed a charged offense unless “proper
foundation [is] laid for the admission of such evidence.” Hawkins, 260 N.W.2d at 159. To
establish such foundation, the defendant must offer evidence “having an inherent

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tendency to connect such other person with the actual commission of the crime.” Id.
(citation omitted) (internal quotation marks omitted).
Bucholz argues that we should abandon the threshold-foundation first step.
Preliminarily, we conclude that we may consider Bucholz’s argument even though he
failed to raise it in district court. Next, we consider whether we should continue to retain
the threshold-foundation step—including whether the reasons for abandoning a long-
standing evidentiary standard are sufficient to overcome the important principle of stare
decisis—and conclude that we should abandon it. Instead, district courts should apply the
familiar admissibility framework set forth in the Rules of Evidence.
Nonetheless, we explain that, to the extent the district court erred in applying the
threshold-foundation first step of the Hawkins test in Bucholz’s case, such error was
harmless beyond a reasonable doubt.
Lastly, we assess whether the district court erred in issuing a sentencing order that
entered convictions for both first- and second-degree murder. We conclude the sentencing
order is erroneous and remand to the district court to vacate the second-degree murder
conviction.
I.
A.
We begin by assessing whether Bucholz forfeited his argument that we should
abandon the threshold-foundation step in our alternative-perpetrator analysis. The State
argues that Bucholz forfeited the argument by failing to raise it in the district court and
highlights that we often do not consider arguments advanced for the first time on appeal.

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See State v. Davis, 735 N.W.2d 674, 681 (Minn. 2007) (declining to consider whether to
alter our approach to admitting evidence—specifically, impeachment by prior criminal
convictions under Minnesota Rule of Evidence 609—because the defendant did not make
the argument in district court).
We conclude that in this case it is appropriate to consider Bucholz’s argument that
we should eliminate the threshold-foundation step in our alternative-perpetrator analysis.
Most importantly, we perceive no unfairness to the State if we consider the issue.
Bucholz presents us with a purely legal issue that both parties have fully and effectively
briefed. See State v. Thompson, 937 N.W.2d 418, 421 n.2 (Minn. 2020). Further, based on
our precedent, the district court had no power to grant Bucholz the relief he seeks,
meaning Bucholz’s failure to raise the issue before the district court does not implicate
the concern that we have deprived that court of the opportunity to avoid error had the
issue been raised before it. See Pulczinski v. State, 972 N.W.2d 347, 358 (Minn. 2022)
(citing Weaver v. Massachusetts, 582 U.S. 286, 302 (2017) (stating that a purpose of our
forfeiture jurisprudence is to encourage parties “to raise errors before the district court
when the district court can cure any potential error and avoid any resulting harm”)).
Finally, whether to change our evidentiary rules on admitting alternative-perpetrator
evidence is a question of statewide importance and is likely to recur. See Rooney,
23 N.W.3d at 85 (Thissen, J., concurring) (suggesting that we revisit our approach to
admitting alternative-perpetrator evidence in an appropriate case); State v. Woodard,
942 N.W.2d 137, 145–48 (Minn. 2020) (Thissen, J., concurring) (same); cf. Snell v. Walz,
6 N.W.3d 458, 467 n.8 (Minn. 2024) (agreeing that appellant “forfeited his ‘antecedent

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evidentiary showing’ argument by raising it for the first time on appeal,” but concluding
that “we consider the argument nevertheless in the interest of justice, given our stated
imperative to decide this issue now ….”). And as we discuss next, this question falls
within our inherent “authority to regulate and supervise the rules that govern the
admission of evidence in the lower courts.” See State v. Hill, 871 N.W.2d 900, 905 n.4,
909 (Minn. 2015) (citations omitted) (internal quotation marks omitted) (deciding issue
implicating this inherent authority even though the appellant “did not raise this argument
in the district court”).
B.
We turn to whether we should abandon the threshold-foundation step in our
alternative-perpetrator analysis.
1.
We begin with the observation that the first step of our two-step approach to
admitting alternative-perpetrator evidence—the threshold-foundation inquiry—is an
evidentiary rule. We have inherent authority to determine the rules governing what
evidence is admissible in Minnesota state courts. State v. McNeilly, 6 N.W.3d 161, 193–
97 (Minn. 2024) (stating that we have the “authority to regulate and supervise the rules
that govern the admission of evidence in the lower courts”); State v. Gianakos,
644 N.W.2d 409, 415 (Minn. 2002) (exercising authority over evidentiary rules to adopt a
new rule in a court decision); State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983)
(explaining that we have authority over the rules governing evidence admission). We
adopted the threshold-foundation inquiry in our decision in Hawkins. 260 N.W.2d at 159.

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We similarly have supervisory authority to change that rule here. See McNeilly, 6 N.W.3d
at 193–97 (exercising our authority to regulate and supervise the rules that govern
admitting evidence in the lower courts to establish prospective rules for admitting
evidence obtained during searches of attorney offices); State v. Zinski, 927 N.W.2d 272,
278 (Minn. 2019) (exercising our supervisory powers over admitting evidence to
establish a prospective rule for admitting relationship evidence under Minnesota Statutes
section 634.20); State v. Scales, 518 N.W.2d 587, 592–93 (Minn. 1994) (exercising our
supervisory power to establish prospective parameters for admitting evidence obtained in
police interrogations).
For the detailed reasons we outline below, and in accordance with our authority to
regulate and supervise the rules that govern admitting evidence in Minnesota district
courts, we conclude that district courts should no longer apply the threshold-foundation
first step for alternative-perpetrator evidence adopted in our decision in Hawkins. Instead,
district courts should assess whether evidence that a person other than the defendant
committed a crime is admissible under the Rules of Evidence in the same way as other
evidence.
2.
The purpose of alternative-perpetrator evidence—evidence supporting an
argument that a person other than the defendant committed a crime—is to defend against
criminal charges by creating a reasonable doubt about the defendant’s guilt. State v.
Ferguson, 804 N.W.2d 586, 591 (Minn. 2011). Evidence and argument that another
person committed the crime is not an affirmative defense and is not admitted to establish

17
the other person’s guilt. Id. “The due process clauses of both the Minnesota Constitution
and the United States Constitution guarantee a defendant’s right to a fair opportunity to
defend against criminal charges.” Troxel v. State, 875 N.W.2d 302, 307 (Minn. 2016)
(citing, among other sources, U.S. Const. amend. XIV and Minn. Const. art. I, § 6). “A
defendant’s constitutional right to a fair opportunity to defend against criminal charges
includes the right to present evidence that a third party (an ‘alternative perpetrator’)
committed the crime for which the defendant was charged.” Woodard, 942 N.W.2d at 141
(citation omitted) (internal quotation marks omitted). This right, however, is not absolute,
and district courts may limit the defendant’s evidence through evidentiary rules. State v.
Jenkins, 782 N.W.2d 211, 224 (Minn. 2010).
Like all other evidence, alternative-perpetrator evidence is not admissible if it does
not satisfy “the ordinary rules of evidence.” Rooney, 23 N.W.3d at 82; State v. Heller,
12 N.W.3d 452, 469 (Minn. 2024) (stating that “alternative-perpetrator evidence must be
admissible under the normal rules of evidence before it may be introduced at trial”).
Under our decision in Hawkins—a case tried four years before the Minnesota Rules of
Evidence went into effect on July 1, 1977—the proponent of alternative-perpetrator
evidence must also clear an additional hurdle: evidence that another person committed an
offense must be excluded before ever considering the other rules of evidence unless
“proper foundation [is] laid for the admission of such evidence … to avoid the
consideration of matters collateral to the crime.” 260 N.W.2d at 159–60 (holding that the
threshold-foundation step was satisfied because the alleged alternative perpetrator’s trial

18
testimony connected him to the crime).2 Evidence tending to show another person
committed a crime is inadmissible “unless coupled with other evidence having an
inherent tendency to connect such other person with the actual commission of the crime.”
Id. at 159 (citation omitted) (internal quotation marks omitted).
We have not precisely identified the contours of the “inherent tendency”
foundational principle since we first articulated it. In many ways, it has become an
analysis-stopping phrase. We do know that it requires something more than ordinary rules
applied to other types of evidence. Rules 401 and 402 generally require proof that a piece
of evidence has a tendency to make the existence of a fact that a person other than the

2 In Hawkins, a murder case, the defendant argued that another person, John
Czuchry, who was at the crime scene when the murder occurred and who testified at trial,
committed the murder. 260 N.W.2d at 155–56. The defendant sought to introduce
evidence that, before the crime, Czuchry and the victim talked about stolen guns one of
them possessed and that Czuchry, who was intoxicated on the night of the murder,
became physically violent when intoxicated. Id. at 158. This evidence of “possible past
illegal dealings between Czuchry and the victim,” and “collateral acts of violence by
Czuchry,” id. at 160, is what we would today refer to as reverse-Spreigl evidence. See
State v. Gutierrez, 667 N.W.2d 426, 436 (Minn. 2003) (defining reverse-Spreigl evidence
as proof of past crimes or bad acts committed by a third party offered by a criminal
defendant to cast doubt on their own guilt by suggesting someone else committed the
crime). Under Minnesota Rule of Evidence 404(b), such evidence is not admissible (even
if it satisfies the Hawkins threshold requirement) “to prove the character of a person in
order to show action in conformity therewith [but may] be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” In addition, such evidence is inadmissible unless the
defendant establishes “(1) by clear and convincing evidence that the third party
participated in” the prior crime, wrong, or act; “(2) that the reverse-Spreigl incident is
relevant and material to [the] defendant’s case; and (3) that the probative value of the
reverse-Spreigl evidence outweighs its potential for unfair prejudice.” Gutierrez,
667 N.W.2d at 437 (alteration in original) (citation omitted) (internal quotation marks
omitted); see also Heller, 12 N.W.3d at 469–70 (applying the Rules of Evidence and
reverse-Spreigl analysis in an alleged-alternative-perpetrator case).

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defendant committed the criminal act more probable or less probable than it would be
without the evidence—subject, of course, to limitations on admitting evidence that poses
a danger of unfair prejudice, confusing the issues, or misleading the jury, or that may
result in undue delay, waste of time, or needless presentation of cumulative evidence,
Minn. R. Evid. 403; evidence of other crimes, acts, or wrongs introduced to prove the
character of a person in order to show action in conformity therewith, Minn. R.
Evid. 404(b); evidence that is inadmissible hearsay, Minn. R. Evid. 802; and other
evidentiary rules. The effective result of the Hawkins test’s threshold-foundation step for
alternative-perpetrator evidence seems to be that a defendant must produce direct
evidence connecting the alleged alternative perpetrator to a crime before the defendant is
allowed to introduce circumstantial evidence that also suggests that the alleged
alternative perpetrator may have committed the crime—an additional step not required to
introduce other forms of evidence.3 See infra at 24–25.

3 Our case law makes clear that “circumstantial evidence is entitled to the same
weight as direct evidence,” Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004), and
district court judges regularly instruct juries that facts “may be proven by either direct or
circumstantial evidence, or by both,” and “[t]he law does not prefer one form of evidence
over the other.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction
Guides, Criminal, CRIMJIG 3.02 (7th ed. 2025). In requiring a threshold foundation for
alternative perpetrator evidence, the Hawkins test seems to undervalue alternative-
perpetrator circumstantial evidence as compared to other evidence. See Keith A. Findley
& Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases,
2006 Wis. L. Rev. 291, 361 (2006) (observing that the evidence at issue in the threshold-
foundation step is typically circumstantial evidence, “given that direct evidence, by
definition, should satisfy the direct connection [requirement to connect an alleged
alternative perpetrator to a crime before a defendant may introduce evidence that such
person committed the offense,]” even though “circumstantial evidence can support the
inferences necessary to establish proof beyond a reasonable doubt”).

20
It is unclear why alternative-perpetrator evidence should be subject to a threshold-
foundation requirement that does not apply to other evidence used for similar purposes.
Professor Wigmore raised the same question when criticizing alternative-perpetrator rules
like ours:
The question that arises, from the point of view of the rules of evidence, is
whether, in evidencing the doing of an act by a third person as a fact of
disproof, any unusual requirements should be made concerning the strength
of the evidence before it can be admitted. Thus, to prove A guilty of murder,
evidence of his threats (i.e., a design) to commit it are always admissible;
now, if the fact to be proved is that B committed the murder (as inconsistent
with A’s guilt), why should not B’s threats be admitted, without further
restriction, as A’s are? It is true that evidence of B’s threats alone would not
go far toward proving B’s commission; but it is not a question of absolute
proof, nor even of strong probability, but only of raising a reasonable doubt
about A’s commission, and for this purpose the slightest likelihood of B’s
commission may suffice or at least assist. The evidence of B’s threats, to be
sure, may, in a given instance, be too slight to be worth considering, but it
seems unsound as a general rule to hold that mere threats, or mere evidentiary
facts of any one sort, are to be rejected if unaccompanied by additional facts
pointing toward B as the doer.
1A John Henry Wigmore, Evidence in Trials at Common Law § 139, at 1724 (Tillers rev.
ed. 1983) (citation omitted). Essentially, unlike the case-by-case approach we typically
take to assessing whether a piece of evidence is admissible, the threshold-foundation step
in our alternative-perpetrator-evidence analysis imposes a mechanical, general
prohibition on a specific type of evidence. See Keith A. Findley & Michael S. Scott, The
Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 360
(2006) (stating that “[t]he direct connection doctrine reverses the Rule 403 burden and
presumption” and that “[t]hird-party perpetrator evidence is, in effect, presumptively

21
inadmissible unless the defendant can show a direct connection to the charged crime, and
that burden, as we have seen, is not insubstantial”).
We have offered a handful of policy reasons for imposing a higher foundational
requirement for alternative-perpetrator evidence. First, we justified the threshold-
foundation step as necessary to safeguard alleged alternative perpetrators from
accusations based on bare suspicion and indiscriminate use of past differences with the
deceased. This is a curious rationale. See David S. Schwartz & Chelsey B. Metcalf,
Disfavored Treatment of Third-Party Guilt Evidence, 2016 Wis. L. Rev. 337, 394 (2016)
(observing that “very few courts ever mention the protection of third parties or their
reputations as a justification for any of the direct connection [foundational threshold for
alternative-perpetrator] doctrines”). The Rules of Evidence exclude allegations based on
bare suspicion and indiscriminate use of past differences. Under Rule 403, any
circumstantial evidence that is purely speculative—does not rise to more than bare
suspicion—is inadmissible. State v. Henderson, 620 N.W.2d 688, 699 (Minn. 2001); see
Findley & Scott, Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L.
Rev. at 361 (explaining that courts reject evidence in the alternative-perpetrator context
as speculative where it is not truly speculative). Rule 403 therefore already prohibits truly
speculative evidence and can serve to protect an alleged alternative perpetrator’s
reputation from baseless accusation. Further, Rules 403 and 404 provide that a court may
exclude evidence used to harass a witness. State v. Lanz-Terry, 535 N.W.2d 635, 639
(Minn. 1995). Thus, it is unclear why evidence otherwise admissible under the Rules of
Evidence should be excluded simply to protect a person from allegations of wrongdoing.

22
We do not do this for other types of evidence. Moreover, refusing to admit otherwise-
relevant evidence due to concerns about its effect on a person’s reputation is particularly
problematic when weighing this interest against a defendant’s liberty interests and
constitutional right to present a complete defense. Schwartz & Metcalf, Disfavored
Treatment of Third Party Guilt Evidence, 2016 Wis. L. Rev. at 394–95 (noting that
alternative-perpetrator foundation tests have the perverse effect of allowing in evidence
that is damaging to an alleged alternative perpetrator’s reputation while excluding less-
damaging evidence); cf. State v. Foster, 20 N.W.3d 6, 25 (Minn. 2025) (stating that courts
may apply the ordinary rules of evidence to exclude alleged alternative perpetrators who
plan to invoke their right against self-incrimination from testifying even though
excluding the evidence may limit a defendant’s constitutional right to present a complete
defense).
Our other stated policy reason for imposing a higher foundational requirement for
alternative-perpetrator evidence is to avoid presenting “matters collateral to the crime” to
a jury. Hawkins, 260 N.W.2d at 159. Embedded in this policy justification is the notion
that circumstantial evidence that has a tendency to show another person may have
committed a crime is collateral to the crime—even though it is otherwise admissible.4 We

4 Here, it is worth a reminder that Hawkins was tried nearly four years before we
adopted the Rules of Evidence, thus the Hawkins court did not have available—or need to
consider—the Rules of Evidence in reaching its decision. Accordingly, the context in
which we stated a new rule for alternative-perpetrator evidence is meaningfully different
after several decades of cases developing the meaning and application of the Rules of
Evidence.

23
find it hard to conceive how such evidence may be considered “collateral to the crime” in
any meaningful sense.
It has become clear over time that the threshold-foundation rule “treats people
accused of a crime differently than those attempting to prove the accusation.” Woodard,
942 N.W.2d at 145 (Thissen, J., concurring). The State need not meet a threshold-
foundation standard separate from the Rules of Evidence to introduce evidence that a
defendant committed a crime; it may rely completely on circumstantial evidence of
motive and opportunity—without introducing any direct evidence that the defendant was
at a crime scene or connected to the crime. For instance, in State v. DeRosier, 695 N.W.2d
97, 108 (Minn. 2005), we affirmed a first-degree murder conviction based on evidence
that the defendant had a motive to commit the murder, had access to a murder weapon,
and had a key to the victim’s residence, even though no direct evidence connected the
defendant to the scene at the time of the murder.
In contrast, in some cases we have held that, absent evidence of a direct
connection between another person and the crime, a defendant cannot introduce
substantial circumstantial evidence alleging that an alternative perpetrator committed the
crime. For instance, in State v. Flores, 595 N.W.2d 860, 868–69 (Minn. 1999), we
affirmed the district court in excluding evidence that an alleged alternative perpetrator
was at the victim’s house shortly after the last time he was seen alive, the alleged
alternative perpetrator’s business card was found in a bag of bloody clothes the defendant
possessed, the victim owed the alleged alternative perpetrator money for drugs, and the
alleged alternative perpetrator had threatened to kill another person who owed him

24
money for drugs within a month of the victim’s death. We held that this was not
“sufficient evidence connecting [the alleged alternative perpetrator] to the crime.” Id. at
869. In State v. Williams, 593 N.W.2d 227, 232–34 (Minn. 1999), we affirmed the district
court’s decision to exclude evidence that the victim’s granddaughter had previously
received an order for protection against the alleged alternative perpetrator (the
granddaughter’s former boyfriend) and that the alleged alternative perpetrator had
previously harassed the victim, broken into the victim’s home, vandalized the victim’s
property, threatened one of the granddaughter’s friends, and made phone calls to the
victim’s house on the day of the murder. We determined that because the defendant
“offered no evidence placing [the alleged alternative perpetrator] at or near [the victim]’s
house on the night of the murder,” “evidence of the prior incriminating acts alone is not
sufficient to establish the required Hawkins foundation.” Id. at 234. In other words, to
make its case against a criminal defendant, the State would have been allowed to present
the jury with evidence, like that excluded in the alternative perpetrator context in Flores
and Williams and such evidence would have been sufficient to uphold a conviction.5
The accused rarely has the resources—let alone resources equivalent to the
State’s—to adequately investigate the possibility that another person committed the crime
with which they are charged. Therefore, it is somewhat unfair, both logically and
practically—especially after we have adopted the Rules of Evidence, which include

5 The concurrence-dissent asserts that the evidence in Flores and Williams
connecting the alleged alternative perpetrators to the crimes charged was weak. Even if
that is true, if the evidence is relevant and otherwise admissible, a fact-finder should be
able to consider that evidence in rendering its verdict.

25
several safeguards against allowing juries to consider matters collateral to the crime—to
impose a unique and higher evidentiary burden on a criminal defendant than we impose
on similar evidence the State proffers.
The State argues that this asymmetric treatment of the State and defendants is
justified because the State has an independent obligation to establish that charges against
a defendant are supported by probable cause. The argument compares apples to oranges,
misunderstanding the purpose of alternative-perpetrator evidence. The probable-cause
question is whether there is a reasonable probability that the State can prove every
element of a crime—“facts appearing in the record, including reliable hearsay, [that]
would preclude the granting of a motion for a directed verdict of acquittal if proved at
trial.” State v. Lopez, 778 N.W.2d 700, 703–04 (Minn. 2010) (citation omitted) (internal
quotation marks omitted); State v. Letourneau, 23 N.W.3d 386, 396 (Minn. 2025).6 If
such facts do exist, then the State may introduce whatever admissible evidence it chooses
to prove its case. Defendants have no such duty to prove anything—they may, in fact,
offer no defense beyond asserting that the State has not proved its case beyond a
reasonable doubt. This lack of fit in the State’s probable-cause argument reflects the
larger conceptual problem with our threshold-foundation step: it tends to improperly shift
the focus of admissibility—from whether evidence a defendant offers has a tendency to
negate the defendant’s guilt to how effectively that evidence establishes an alleged
alternative perpetrator’s guilt. Moreover, under the alternative-perpetrator threshold-

6 As we discussed in State v. Florence, 239 N.W.2d 892, 903–04 (Minn. 1976), the
process for making this determination depends on the type of evidence presented.

26
foundational step, a defendant must provide some direct connection between the alleged
alternative perpetrator and the crime before they can introduce any evidence that another
person may have committed the crime—something the State need not do to establish
probable cause or, indeed, to convict the defendant.7 See DeRosier, 695 N.W.2d at 108
(stating that a jury may find a defendant guilty beyond a reasonable doubt based on
circumstantial evidence, which means that the State can establish probable cause based
on circumstantial evidence alone).
3.
Rather than requiring district courts to undertake the threshold-foundation step in
assessing whether alternative-perpetrator evidence is admissible, we conclude that courts
should assess evidence that a person other than the defendant committed a crime under
the Rules of Evidence. Such evidence is admissible if it is relevant, Minn. R. Evid. 401
and 402, and if the probative value of the evidence is not “substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Minn. R. Evid. 403. In addition, to the extent such evidence is evidence of
another crime, wrong, or act—so-called reverse-Spreigl evidence—the defendant must
satisfy Rule 404. And, of course, evidence that is inadmissible under other evidentiary

7 The concurrence-dissent notes that in Woodard, 942 N.W.2d at 144 n.2, we stated
that cases may exist in which overwhelming circumstantial evidence of motive,
opportunity, and method of murder would satisfy the Hawkins test. No such case has
emerged in the decades since we first announced the inherent-tendency requirement. That
is the critical point.

27
rules, like the hearsay rules, should be excluded. See, e.g., Bobo v. State, 969 N.W.2d
829, 836 n.6 (Minn. 2022) (excluding evidence that another person confessed to a crime
as inadmissible hearsay); see also State v. Young, __ N.W.3d __, Nos. A23-1606, A25-
0334, 2026 WL 2855624 (Minn. 2026) (affirming the exclusion of evidence related to an
alternative perpetrator under the ordinary Rules of Evidence); State v. Johnson,
___ N.W.3d ___, No. A25-0709, 2026 WL 2727733 (Minn. 2026) (same).8
In addition, we direct that a defendant must provide written notice to the
prosecutor that the defendant intends to introduce evidence at trial suggesting that another
person committed the crime and that such notice be provided in the same manner as the
defendant would provide notice of the other issues identified in Minnesota Rule of
Criminal Procedure 9.02.9

8 The concurrence-dissent relies in part on Foster, 20 N.W.3d 6. In that case, we
held that a district court has “discretion to allow the defendant to call the alternative
perpetrator as a trial witness, even when it is known that the alternative perpetrator will
invoke the right against self-incrimination.” Id. at 26. We further stated that “in
exercising its discretion, the district court must determine whether the alternative
perpetrator’s invocation of the right against self-incrimination comports with the ordinary
rules of evidence.” Id. In reaching that decision, we observed that the threshold-
foundation step provides a guardrail that limits defendants from subpoenaing “any known
person of disrepute and forc[ing] him or her to” invoke the right against self-
incrimination. Id. at 25 (citation omitted) (internal quotation marks omitted). We went on
to observe that a district court has the discretion to prevent such a witness from testifying
under the ordinary rules of evidence, including weighing probative value against the risk
of unfair prejudice to the State. Id. Our point in this opinion is that applying the Rules of
Evidence as written provides the protection we sought to impose when we announced the
threshold-foundational step prior to the rules being adopted.
9 Contemporaneous with this decision, we are adopting by separate order
amendments to Rule of Criminal Procedure 9.02 clarifying that if a defendant intends to
argue at trial that another person committed an offense with which the defendant is
charged in order to create reasonable doubt about the defendant’s guilt, the defendant

28
As we have explained and further address below, we conclude that our decision
will improve the fairness of judicial proceedings, Fagin v. State, 933 N.W.2d 774, 780
(Minn. 2019), and make judicial proceedings simpler, more efficient, and more
understandable for all involved.
C.
We acknowledge that our holding overturns Hawkins and its progeny. We are
“extremely reluctant to overrule our precedent” and will do so only for “compelling
reason[s].” State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009) (quoting State v. Lee,
706 N.W.2d 491, 494 (Minn. 2005)). At the same time, the Minnesota Supreme Court is
not an infallible institution and stare decisis is not an inflexible rule that prevents courts
from learning from experience. Stare decisis is legal policy, and respect for precedent
does not bind the court to “unsound principles.” Oanes v. Allstate Ins., 617 N.W.2d 401,
406 (Minn. 2000). We have noted that “stare decisis does not apply with the same
strictness in some fields of law as in others,” State ex rel. Foster v. Naftalin, 74 N.W.2d
249, 267 (Minn. 1956), adhering most strictly when rights may have vested in reliance on
court decisions. Johnson v. Chi., Burlington & Quincy R.R., 66 N.W.2d 763, 771 (Minn.
1954). Among other things, we have been willing to reconsider our past decisions when a
rule contradicts principles of equity and when a rule originated in a historical context and
no longer accomplishes its purported aims. See Cargill, 784 N.W.2d at 352. We recognize
our authority and responsibility to establish rules governing admissible evidence at trial,

must inform the prosecutor in writing and must identify the evidence they plan to
introduce.

29
Gianakos, 644 N.W.2d at 415; Willis, 332 N.W.2d at 184, and we have amended the
Rules of Evidence many times.
We conclude there are compelling reasons to eliminate the threshold-foundation
step for alternative-perpetrator evidence. As explained above, some of the justifications
for the threshold-foundation step no longer withstand scrutiny. Supra at Part I.B.2. As
critically, we adopted the threshold-foundation step in a different historical context—
before implementing the Rules of Evidence. To the extent the policy reasons we offered
to justify the threshold-foundation step for alternative-perpetrator evidence were valid at
the time, they are no longer necessary. Rules 401, 402, 403, and 404 now address the
policy concerns underlying the threshold-foundation step—ensuring that a jury does not
hear or consider matters truly collateral to crimes, such as speculative assertions based on
“bare suspicion” and indiscriminately raising past differences with victims. Hawkins,
260 N.W.2d at 159. For example, matters truly collateral to a crime are not relevant, and
therefore are inadmissible under Rule 402. Further, the Rules of Evidence afford district
courts discretion to exclude relevant evidence, including speculative evidence that raises
only the specter of bare suspicion, where the potential for confusing the issues or
misleading the jury substantially outweighs the probative value of the relevant evidence.
Minn. R. Evid. 403; Henderson, 620 N.W.2d at 699. The Rules of Evidence empower
district courts to exclude evidence of other crimes, wrongs, or acts of persons other than
defendants offered to show that such a person committed a crime because their character
inclined them to do so. Minn. R. Evid. 404(b); Heller, 12 N.W.3d at 469–70 (stating that
limitations on admitting bad acts evidence applies equally to the State’s attempts to

30
introduce such evidence about a defendant and a defendant’s attempts to introduce such
evidence about an alleged alternative perpetrator). In short, the Rules of Evidence now
provide sufficient guardrails to prevent admitting “matters collateral to a crime” or
evidence based on “bare suspicion” and “indiscriminate use of past differences with the
deceased.” And the Rules of Evidence apply equitably to similar evidence whether the
State or a defendant offers it.
We are also persuaded to move away from the threshold-foundation step for
alternative-perpetrator evidence for practical reasons. We conclude that asking judges to
apply the familiar Rules of Evidence rather than the threshold-foundation step’s unique
and somewhat vague “inherent tendency” standard will be easier for courts and litigants
alike, reducing confusion and the potential for error.
We further observe that the Hawkins test’s threshold-foundation step is an
evidentiary rule. That fact, of course, does not mean that stare decisis is inapplicable to
our precedents establishing evidentiary rules and procedures. See State v. Harris,
895 N.W.2d 592, 598 n.3 (Minn. 2017) (quoting Naftalin, 74 N.W.2d at 267, for the
proposition that stare decisis “is not inapplicable in any field [of law]”). But we have
recognized that stare decisis applies more strictly in some fields of law than in others. Id.
The policy of stare decisis is strongest “in cases involving property and contract rights,
where reliance interests are involved …; the opposite is true in cases … involving
procedural and evidentiary rules.” Payne v. Tennessee, 501 U.S. 808, 828 (1991); see
Johnson, 66 N.W.2d at 770 (stating, in a case involving the doctrine of forum non
conveniens, that “[w]here no rights have vested in reliance upon former decisions, the

31
rule [of stare decisis] is not so strictly followed”). Rules governing procedures and
evidence admission often “do[] not affect the way in which parties order their affairs,”
and changing an evidentiary rule does not “upset settled expectations on anyone’s part.”
Pearson v. Callahan, 555 U.S. 223, 233 (2009).
Further, we have recognized that we have inherent authority to determine the rules
governing which evidence is admissible at trial. Gianakos, 644 N.W.2d at 415; Willis,
332 N.W.2d at 184. Indeed, here we are overturning our own court-made rule governing
admitting evidence, established outside of—and prior to—the Rules of Evidence. See
Pearson, 555 U.S. at 233–34 (noting that stare decisis weighs heavily in the area of
statutory construction, but less heavily where a “rule is judge made and implicates an
important matter involving internal Judicial Branch operations”).
Finally, acknowledging that decisions from other jurisdictions do not bind us and
that jurisdictions handle alternative-perpetrator evidence admissibility in many different
ways, we have considered other states’ practices in deciding whether to overrule our
precedent. See Cargill, 784 N.W.2d at 352–53; see also Daniel v. City of Minneapolis,
923 N.W.2d 637, 652 (Minn. 2019) (overruling a precedent in part because the overruled
case did not “comport[] with the decisions of many other state supreme courts—most
issued after [the overruled decision]” (emphasis added)). We find support for our
decision to abandon the threshold-foundation step articulated in Hawkins in part because
the general trend in other jurisdictions that have directly confronted the question of
whether to adopt a foundational-threshold test instead of straightforward Rules of
Evidence application have opted for the latter. See, e.g., State v. Hernandez, 989 N.W.2d

32
525, 533–34 (S.D. 2023); State v. Kato, 465 P.3d 925, 940–41 (Haw. 2020); State v.
Meister, 220 P.3d 1055, 1059–60 (Idaho 2009); State v. Gibson, 44 P.3d 1001, 1003–04
(Ariz. 2002); People v. Primo, 753 N.E.2d 164, 168 (N.Y . 2001).
Accordingly, for the reasons we have explained, and in accordance with our
authority to regulate and supervise the rules that govern admitting evidence in Minnesota
district courts, we hold that, for cases tried on or after the date this opinion is released,
district courts should no longer apply the threshold-foundation first step for alternative-
perpetrator evidence adopted in our decision in Hawkins. Instead, district courts should
assess whether evidence that a person other than the defendant committed a crime is
admissible under the Rules of Evidence in the same way as other evidence.
II.
We now turn our attention to whether to grant Bucholz a new trial based on the
district court’s determination, under the first step of the Hawkins test, that Bucholz did
not lay sufficient foundation to introduce evidence that D.J. killed Palacio. For purposes
of this analysis, we will assume without deciding that the exclusion of evidence was error.
Even if it was error, we will not grant a new trial if the error was harmless. Troxel,
875 N.W.2d at 308. Because erroneously excluding evidence offered by a criminal
defendant can deprive the defendant of their constitutional right to present a complete
defense, we examine whether any erroneous exclusion of evidence here was harmless
beyond a reasonable doubt. See State v. Westrom, 6 N.W.3d 145, 155 (Minn. 2024).
“[E]xclusion of evidence is harmless beyond a reasonable doubt when, assuming the
potential damage of the excluded evidence were fully realized, a reasonable jury would

33
have reached the same verdict.” Id. (citation omitted) (internal quotation marks omitted).
We conclude that Bucholz is not entitled to a new trial because there is no possibility that
a reasonable jury’s verdict might have been different had the district court admitted all the
evidence—beyond that which the jury did receive—Bucholz sought to offer about D.J.
We have determined that a defendant is not entitled to a new trial based on a
district court’s initial exclusion of evidence that another person committed the crime
where the court did not fully enforce its decision and, as a result, the jury had an
opportunity to consider the third party’s connection to the crime. In State v. Atkinson,
774 N.W.2d 584, 592 n.1 (Minn. 2009), the defendant raised the possibility of an
alternative perpetrator in cross-examination by casting doubt on the identification of the
shooter, and the State, in its closing argument, discussed the possibility that the defendant
would argue that another person committed the crime. We concluded that, even though
the defense did not make an alternative-perpetrator argument in its closing, the jury had
“ample opportunity” to consider whether another person committed the crime. Id.
Likewise, in State v. Blom, 682 N.W.2d 578, 623 (Minn. 2004), we determined that the
district court’s exclusion of alternative-perpetrator evidence was harmless because
multiple witnesses testified to physical similarities between the alleged alternative
perpetrator and the defendant.
So too here. The jury heard much of the evidence about D.J.’s connection to
Palacio’s murder despite the district court’s initial order denying Bucholz’s request to
introduce evidence D.J. committed the crime. During the State’s case, Mother and Sister
both testified that D.J. was in Johnson’s apartment the night of the shooting and that D.J.

34
left the apartment with Johnson and Bucholz shortly before midnight. Bucholz himself
testified that D.J. drove the van during the shooting, sharing directly with the jury his
narrative placing D.J. at the crime scene. Further, during closing arguments, both the
State and Bucholz urged the jury to evaluate D.J.’s connection to the crime, with Bucholz
highlighting that the State failed to properly investigate D.J. as a suspect.
In addition, substantial evidence suggesting that D.J. was not at the scene of the
shooting also came out at trial. The State introduced evidence of calls made from D.J.’s
phone—the same phone that Bucholz relied on in his offer of proof to show that D.J. was
near Johnson’s apartment before the crime—from a different area than the scene of the
shooting at the time the shooting took place. Footage from video cameras in the
neighborhood and in the parking garage at Johnson’s apartment building does not show
that D.J. was present.
The same video footage does show Bucholz. Fingerprint and DNA evidence
connect Bucholz to the crime. And the jury was told of several statements Bucholz made
implicating himself in the murder. See State v. Trifiletti, 6 N.W.3d 79, 95 (Minn. 2024)
(stating that we may “consider the strength of evidence of the defendant’s guilt” to
reinforce a conclusion that an error was harmless).
We acknowledge that the jury did not hear evidence of D.J.’s involvement with
Johnson’s drug dealing or D.J.’s pending firearm offense charge. But Bucholz presented
far more alternative-perpetrator evidence to his jury than Atkinson did in his trial, and we
nonetheless found the effect of the error in Atkinson harmless because the slight
suggestion that an alternative perpetrator committed the crime gave the jury ample

35
opportunity to consider the possibility that someone other than the defendant had done so.
Atkinson, 774 N.W.2d at 592 n.1; Blom, 682 N.W.2d at 623. We conclude that admitting
these additional facts would not have changed the jury’s verdict.
Bucholz also suggests that the district court’s ruling under the threshold-
foundation first step precluding him from introducing alternative-perpetrator evidence
prevented his lawyer from zealously advocating at critical stages of trial by foreclosing
additional cross-examination, barring entry of additional evidence, and restricting
counsel’s ability to lead Bucholz in direct examination. But Bucholz does not offer
specifics about these claims. In light of the considerations above and the allowances for
alternative-perpetrator evidence the district court made after its ruling to exclude that
evidence, we are not convinced Bucholz’s assertions raise a reasonable doubt about
whether a reasonable jury would have reached the same verdict had the district court not
made its initial ruling.
In short, the record in this case shows beyond a reasonable doubt that there is no
possibility that the jury’s verdict might have been different had the district court admitted
all the evidence that Bucholz sought to offer about the alleged alternative perpetrator.
Bucholz is not entitled to a new trial.
III.
Lastly, the jury found Bucholz guilty of both first-degree murder during a drive-by
shooting and second-degree murder. A defendant “may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. “In
Minnesota, every lesser degree of murder is an included offense.” Westrom, 6 N.W.3d at

36
161 (citation omitted) (internal quotation marks omitted). A conviction occurs when a
court accepts and records a guilty verdict. Spann v. State, 740 N.W.2d 570, 573 (Minn.
2007).
The district court did not impose a conviction on the second-degree murder charge
at Bucholz’s sentencing hearing. But the written sentencing order lists Bucholz as
convicted of the second-degree count as well as the first-degree murder during a drive-by
shooting count.10 Bucholz requests that we remand this case to the district court to correct
the clerical error in the sentencing order that erroneously entered judgments of conviction
for both first-degree and second-degree murder. See Minn. R. Crim. P. 27.03, subd. 10
(providing that a court may correct clerical mistakes in an order at any time). The State
agrees that we can and should remand the case to the district court to make the correction.
Accordingly, we remand to the district court and direct it to correct Bucholz’s
sentencing order by eliminating any reference to entry of a conviction on the second-
degree murder charge. The jury verdict finding Bucholz guilty of second-degree
intentional murder, however, remains intact. State v. Hallmark, 927 N.W.2d 281, 299–300
(Minn. 2019).

10 The parties disagree about whether a formal conviction was entered on the second-
degree murder count. Citing State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002),
the State asserts that the district court’s accurate oral sentence controls over the
sentencing order. Because we are remanding to the district court to correct the clerical
error in the written sentencing order, we need not and do not address that question.

37
CONCLUSION
For the foregoing reasons, we affirm in part, reverse in part, and remand to the
district court to correct Bucholz’s sentencing order by eliminating any entry of a
conviction on the second-degree murder charge.
Affirmed in part, reversed in part, and remanded to the district court.

C/D-1
C O N C U R R E N C E & D I S S E N T
HUDSON, Chief Justice (concurring in part and dissenting in part).
This case asks us to abandon the test that Minnesota courts have used for nearly
50 years to determine the admissibility of alternative-perpetrator evidence, as set forth in
State v. Hawkins, 260 N.W.2d 150 (Minn. 1977). Today, the court has done so, relying, in
part, on the importance of a defendant’s constitutional right to present a complete
defense. I, of course, acknowledge that right, but I also note that it is not absolute. And
thus, I strike a different balance between a defendant’s right to present a complete defense
and the institutional principles represented by stare decisis, especially given the continued
existence of the practical and prudential concerns that drove the creation of the
alternative-perpetrator test and the test’s continued workability. Because I see no
extraordinary need to overrule Hawkins, I would retain the alternative-perpetrator test.
Accordingly, I respectfully dissent from Parts I.B and I.C of the court’s decision.1
To justify overruling nearly 50 years of precedent, the court leans heavily on the
fact that the alternative-perpetrator test is a judicially-created evidentiary rule and that the
court has the inherent authority to determine the rules that govern the admissibility of
evidence at trial. State v. McNeilly, 6 N.W.3d 161, 193 (Minn. 2024) (“[W]e have the
inherent authority to regulate and supervise the rules that govern the admission of
evidence in the lower courts.”). All that is true. But just because we can use our inherent

1 I agree that it is appropriate to consider Bucholz’s argument, that Bucholz is not
entitled to a new trial, and that there was a clerical error in the sentencing order.
Accordingly, I join the court’s opinion in Parts I.A, II, and III.

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authority does not mean that it is prudent to do so. “[W]e have steadfastly held” that the
court’s supervisory powers over evidentiary rules are to be “invoked only in exceptional
circumstances.” State v. Hill, 871 N.W.2d 900, 909 (Minn. 2015) (citation omitted)
(internal quotation marks omitted). Before using that power, we have considered whether
the change conforms to or protects existing rules, Dobbins v. State, 845 N.W.2d 148, 156
(Minn. 2013), and whether a change will “ensure the fairness of judicial proceedings,”
Fagin v. State, 933 N.W.2d 774, 780 (Minn. 2019). We have declined to invoke our
inherent authority to change an evidentiary rule when it would be “simply too great a
departure” from longstanding practice. State v. Gianakos, 644 N.W.2d 409, 419 (Minn.
2002). For the reasons discussed below, I do not believe there is an existing unfairness in
judicial proceedings that needs to be corrected, and I do not see a need to deviate from
the test that courts have applied for almost 50 years. Accordingly, I see no exceptional
circumstance that justifies the exercise of our inherent authority here.
The institutional principle of stare decisis similarly cautions restraint absent a
compelling need for action. “The doctrine of stare decisis ‘directs us to adhere to our
former decisions in order to promote the stability of the law and the integrity of the
judicial process.’ ” State v. Lampkin, 994 N.W.2d 280, 288 (Minn. 2023) (emphasis
omitted) (quoting State v. Willis, 898 N.W.2d 642, 647 n.7 (Minn. 2017)). While stare
decisis “does not apply with the same strictness” in every area of law, there is also a
reason that we have noted that stare decisis “is not inapplicable in any field.” State v.
Harris, 895 N.W.2d 592, 598 n.3 (Minn. 2017) (citation omitted) (internal quotation
marks omitted). The decisions of this court shape expectations in the legal community.

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Stare decisis counsels us to pause and ensure there is a powerful motivation before
upsetting those expectations. Respect for precedent is critical to maintaining
predictability in the law, which is why we are “extremely reluctant” to overrule past cases
and require “a ‘compelling reason’ ” before we act, no matter the area of law. State v.
Martin, 773 N.W.2d 89, 98 (Minn. 2009) (quoting State v. Lee, 706 N.W.2d 491, 494
(Minn. 2005)). In addition to the above rationales, the court offers four other reasons to
justify overruling the Hawkins alternative-perpetrator test. None demonstrate a
compelling need for this court to act.
A.
First, the court contends that “some of the justifications” for the creation of the
Hawkins test “no longer withstand scrutiny.” Most notably, the court describes the need
to safeguard third parties from baseless accusations as “a curious rationale.” But this
justification carries equal, if not greater, force today. The Hawkins test prevents the
introduction of evidence of third-party guilt unless the defendant first provides evidence
that has “an inherent tendency to connect [the third party] with the actual commission of
the crime.” Hawkins, 260 N.W.2d at 159 (citation omitted) (internal quotation marks
omitted). This requirement protects third parties from “the use of bare suspicion and …
indiscriminate use of past differences with the deceased.” Id. The court notes that we do
not provide additional layers of protection to third parties in other types of evidence. But
alternative-perpetrator evidence is unique in that it “inculpates a third party as the
perpetrator of the crime charged.” State v. Curtis, 905 N.W.2d 609, 616 (Minn. 2018). It
is unlike other forms of evidence that a defendant could offer, such as alibi evidence, for

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example, and thus keeps the focus on the defendant rather than shifting the focus to
another person.
The risks of implicating a third party remain, and may, in fact, be heightened after
our recent decision in State v. Foster, 20 N.W.3d 6, 26 (Minn. 2025), in which we held
that a defendant is able, under certain circumstances, to call an alternative perpetrator as a
trial witness even when the defendant knows that the alternative perpetrator will invoke
the right against self-incrimination. To support our decision in Foster, we noted that the
Hawkins alternative-perpetrator test provided a critical “guardrail” and acted as an
“important principle” to ensure that defendants could not “call[] witnesses with no
connection to the case.” Id. at 25. Only defendants that already established that a third
party had a sufficiently close connection to the crime would be able to call that party to
the stand.2 Id. Thus, the Hawkins test ameliorated fears that a defendant would “subpoena
any known person of disrepute and force him or her to take the Fifth.” Id. (quoting State
v. Heard, 934 N.W.2d 433, 444 (Iowa 2019)). Removing the Hawkins guardrail while still
allowing defendants to call third parties as witnesses unnecessarily increases the risk that
an innocent person will be called into court, asked incriminating questions, and forced to

2 The court summarizes Foster as “stating that courts may apply the ordinary rules
of evidence to exclude alleged alternative perpetrators who plan to invoke their right
against self-incrimination from testifying even though excluding the evidence may limit a
defendant’s constitutional right to present a complete defense.” But the court ignores that
the Hawkins test shaped our reasoning in Foster. Our holding in Foster added the caveat
that only “[w]hen a defendant has satisfied the required test to present an alternative
perpetrator defense,” does a district court have “discretion” under “the ordinary rules of
evidence” to allow a defendant to call an alternative perpetrator as a witness. 20 N.W.3d
at 26 (emphasis added). We remove this safeguard with our decision today and ask the
Rules of Evidence to bear even more weight.

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invoke the constitutional right against self-incrimination based on “bare suspicion” or
“indiscriminate use of past differences.” Hawkins, 260 N.W.2d at 159.
B.
Second, I disagree that the Hawkins test results in unfair and asymmetrical
treatment of evidence offered by defendants as compared to evidence from the State. As
the State persuasively argues, by the point of a trial, a judge has already reviewed and
concluded that the State has provided facts “showing a reasonable probability that the
person committed the crime” to satisfy the probable-cause standard. State v. Lopez,
778 N.W.2d 700, 703 (Minn. 2010). Again, reflecting the unique inculpating power of
alternative-perpetrator evidence, there is reason to pause before allowing the defendant to
shift the jury’s attention to another person and potentially new and different facts after the
State has met its probable-cause burden.
The court also suggests that there is an unfair asymmetry in requiring a defendant
to provide evidence of a “direct connection” between the alternative perpetrator and the
crime when the State does not need to do the same. This misunderstands the Hawkins
test, which requires only that the evidence have an “inherent tendency” to connect the
alternative perpetrator and commission of the crime. Hawkins, 260 N.W.2d at 159. This
can be established without direct evidence. See State v. Woodard, 942 N.W.2d 137, 144
n.2 (Minn. 2020) (explaining direct evidence of an alternative perpetrator’s presence at
the crime scene was not required and noting “[t]here may be cases where overwhelming
circumstantial evidence of motive, opportunity, and method of murder” satisfies the
Hawkins test). The comparison of the two standards is not “apples to oranges,” as the

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court posits, but rather reflects the varying probative value of evidence at different stages
of a criminal investigation and trial and the different policy reasons underlying the
creation of two different evidentiary standards.
C.
Third, the court asserts that because Hawkins pre-dates the adoption of the Rules
of Evidence, it is now an unnecessary and duplicative evidentiary hurdle for defendants
to satisfy. But the fact that a particular rule arises from a different historical context,
alone, has never been enough to overcome principles of stare decisis. Specifically, we
have required a showing that the context had evolved such that the previous rule no
longer accomplished its aims and created unfairness for litigants. See Cargill, Inc. v. Ace
Am. Ins., 784 N.W.2d 341, 352–53 (Minn. 2010) (overruling after determining a prior
rule was “ill-suited for the complexity” of modern litigation and was no longer supported
by principles of equity, fairness, or logic).3 Thus, while the Rules of Evidence provide

3 There is also just as much need to protect third parties from unfounded accusations
in today’s digital age—when it is easier than ever to access information about others and
when false information reaches more people, more quickly than the truth—than in 1977
when the Hawkins test was created. See Soroush V osoughi, Deb Roy & Sinan Aral, The
Spread of True and False News Online, 359 Sci. 1146, 1148–49 (2018) (finding false
information spread to more people and more quickly than true information); Brendan
Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political
Misperceptions, 32 Pol. Behav. 303, 323 (2010) (finding corrections may strengthen
misperceptions among some audiences). This need is compounded by the new ability to
maliciously create fake videos that target another person, which can impact the target’s
reputation, cause trauma, and have legal ramifications. The judiciary has not grappled
with how to protect those falsely accused and implicated by these “deepfake” videos. See,
e.g., Rebecca A. Delfino, Deepfakes on Trial: A Call to Expand the Trial Judge’s
Gatekeeping Role to Protect Legal Proceedings from Technological Fakery, 74 Hastings
L.J. 293, 293–339 (2023) (explaining the harm deepfakes cause, how deepfakes have

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some guardrails against admitting irrelevant and collateral evidence, the Hawkins test can
still be a useful tool to shape a district court’s evaluation of the probative value of
evidence.
For example, the Hawkins test may prompt a court to consider whether the
proffered evidence supports a third party’s presence at the scene of a crime, motive,
identifying evidence, or opportunity to commit the crime—striking a balance between
evidence that may be relevant under Minn. R. Evid. 401, but nevertheless insufficient to
connect a third party to the actual commission of a crime. Similarly, the Hawkins test is a
tool that guides an evaluation of whether the proffered evidence of a third party’s guilt
has probative value, and whether that value is outweighed by the danger of misleading or
confusing the jury on the key issue of whether the current defendant is guilty of the
charged crime. Assessing the proffered evidence for whether it shows, for example, that a
third party was at the scene and had the motive and opportunity to commit the crime is
not specifically required under Minn. R. Evid. 403, which only more holistically
considers whether evidence would distract or mislead a jury. I see no reason to abandon a
test that aids a reviewing judge in evaluating evidence’s value and connection to the
case.4

already appeared in legal proceedings, and the inadequacy of the rules of evidence to
address the problems posed by deepfake evidence).
4 The court also asserts that Minn. R. Evid. 404 will work, in part, to exclude
evidence introduced for the purpose of harassment. Yet, as the court also acknowledges,
Rule 404 is more related to reverse-Spreigl evidence and the consideration of a witness’s
prior bad acts, which is not implicated here.

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Moreover, we are far from an outlier in our simultaneous use of an alternative-
perpetrator test and general rules of evidence. The court claims that the “general trend” is
to the contrary, without acknowledging that many other jurisdictions have recognized the
value provided by alternative-perpetrator threshold admissibility tests even after the
adoption of rules of evidence. See, e.g., State v. Abbitt, 891 S.E.2d 249, 258 (N.C. 2023)
(noting evidence offered to show a third party’s guilt “must do more than create mere
conjecture of another’s guilt in order to be relevant” and explaining how relevance is
shown (citation omitted) (internal quotation marks omitted)); People v. Turner, 476 P.3d
676, 698–99 (Cal. 2020) (explaining alternative-perpetrator evidence, “[l]ike all other
evidence” is subject to the rules of evidence and noting the state’s threshold test guides
standards of relevance and admissibility); State v. R.Y., 230 A.3d 292, 303–04 (N.J. 2020)
(reaffirming the state’s alternative-perpetrator test as confirming the relevance of
evidence before considering admissibility under the state’s rules of evidence); State v.
Wilson, 864 N.W.2d 52, 63–67, 70 (Wis. 2015) (reaffirming the validity of the state’s
alternative-perpetrator test and acknowledging the test helps ensure evidence meets
evidentiary criteria for admissibility); State v. Reese, 877 A.2d 1090, 1092–93 (Me. 2005)
(noting trial courts admit probative evidence, but highlighting that to be probative,
defendants must “reasonably establish the connection between the alternative perpetrator
and the crime through admissible evidence” (citation omitted) (internal quotation marks
omitted)). The practices of other states cannot alone be the basis for overruling precedent,

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Harris, 895 N.W.2d at 598–99, and other states’ practices provide even scanter
justification when our state is not an outlier.5
D.
Fourth and finally, I do not agree that the “inherent tendency” requirement of the
Hawkins test has become an “analysis-stopping phrase” that confounds courts. As the
State argues, the requirement to show an “inherent tendency” is no more amorphous than
other recognized standards like “reasonable articulable suspicion.” Moreover, concerns
that a test is hard to apply have been considered insufficiently compelling to overcome
stare decisis. See id. at 600 (upholding an evidentiary test after disputing that courts had
trouble applying the test and noting case law addressed concerns of confusion).
And there is no evidence to support the court’s argument that district courts
struggle to apply the Hawkins test, or have imposed more burdensome requirements over
time.6 The court cites State v. Flores, 595 N.W.2d 860 (Minn. 1999), and State v. Williams,
593 N.W.2d 227 (Minn. 1999), for this proposition, but both are inapposite.

5 The court also notes that “[w]e have not precisely identified the contours of the
‘inherent tendency’ foundational principle.” But an appropriate and more measured first
response to the court’s concerns is not to abandon the Hawkins test, but, as other courts
have done, provide additional guidance on how to apply the test and what evidence meets
the standard. See, e.g., Wilson, 864 N.W.2d at 64–67 (discussing each of the prongs of
Wisconsin’s alternative-perpetrator test “to provide additional guidance” after reaffirming
the use of the test).
6 The idea that courts struggle to apply the test is not borne out in case law. After
surveying cases from our court and the court of appeals reviewing a district court’s
application of the Hawkins test since 1977, I could identify only five cases that reversed
the district court’s decision based on a misapplication of the Hawkins test. See State v.
Carbo, 6 N.W.3d 114, 125–26 (Minn. 2024); State v. Ferguson, 804 N.W.2d 586, 592–93
(Minn. 2011); State v. Jones, 678 N.W.2d 1, 15–21 (Minn. 2004); State v. Bellaphant,

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In Flores, the alternative-perpetrator evidence was not rejected—as the court
suggests—because of the third party’s lack of “direct connection” to the crime. Instead,
we affirmed the trial court because we agreed that the defendant “failed to offer sufficient
evidence connecting [the third party] to the crime.” Flores, 595 N.W.2d at 869 (emphasis
added). We concluded the proffered evidence was insufficient because (1) the evidence
only placed the third party “in the vicinity” of the crime at a different time of day; (2) the
third party had “a strong alibi” during the crucial time of the events; (3) “there was no
scientific evidence to connect” the third party to the scene; (4) none of the “several
articles missing” from the victim’s home were with the third party; and (5) the potentially
incriminating details surrounding drug-related threats were not implicated in the case
because the murder was “inconsistent with a drug-related murder.” Id.
Similarly, in Williams, along with the third party’s lack of presence at the scene, we
concluded that there was “substantial affirmative evidence that [the third party] did not
commit the charged crimes”—including that the defendant “admitted to having committed
the charged crimes” and that the eyewitness to the crime identified the defendant.
Williams, 593 N.W.2d at 234. We affirmed the district court’s decision to suppress the
evidence in Williams “in light of the overwhelming” evidence of the defendant’s guilt. Id.
These cases show the Hawkins test operating as intended, not as posing a growing or

535 N.W.2d 667, 669–71 (Minn. App. 1995); State v. Erickson, No. A11-1418, 2012 WL
2873950, at *3–5 (Minn. App. July 16, 2012).

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insurmountable barrier for defendants.7 And even if these cases were examples of
erroneous results, two examples in nearly 50 years is not a sufficiently strong basis for
departure.
* * *
The Hawkins test has provided a workable framework to guide courts as they
determine whether to admit alternative-perpetrator evidence for nearly 50 years. The
concerns that drove the creation of the test are just as relevant today. Because I weigh
heavily the institutional values of stability and predictability in the law, I would not use
our inherent authority and disregard stare decisis to abandon the Hawkins alternative-
perpetrator test.
MCKEIG, Justice (concurring in part and dissenting in part).
I join in the concurrence and dissent of Chief Justice Hudson.
MOORE, III, Justice (concurring in part and dissenting in part).
I join in the concurrence and dissent of Chief Justice Hudson.

7 The court characterizes my argument as asserting only that the evidence in these
two cases was weak. Not so. Flores and Williams are examples of courts properly
applying the Hawkins test and concluding that the evidence offered did not meet the
“inherent tendency to connect” standard. The cases are not illustrative of the Hawkins test
being overly stringent or onerous to apply.