This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-0767

State of Minnesota,

Respondent,

vs.

David Mendoza,

Appellant.

Filed April 4, 2016

Affirmed

Stauber, Judge

Hennepin County District Court

File No. 27-CR-14-8379

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, 

Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N

STAUBER, Judge

On appeal from his conviction of first-degree criminal sexual conduct, appellant 

argues that structural error occurred when the district court judge was present during jury 
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deliberations and its comments influenced the jury to reach a verdict. In the alternative, 

appellant argues that a Schwartz hearing is necessary to determine the nature of the 

communications between the jurors. We affirm. 

FACTS

In March 2014, appellant David Mendoza was charged with one count of firstdegree criminal sexual conduct and one count of second-degree criminal sexual conduct. 

At trial, the jury was shown a video-taped statement appellant made to police wherein he 

admitted to sexually penetrating his cousin. Later, during deliberations, the jury 

requested “to view the video again.” When the jury reconvened in the courtroom, the 

district court judge instructed the jury that transcripts of the video were available “to 

aid . . . in watching the video,” but that they would be collected when the video was over. 

The jury foreman then informed the district court judge that the jury only wanted to view 

a portion of the video. But after an off-the-record discussion, the district court judge told 

the jury that they were required by rule to watch the entire video. The jury then decided 

to discuss amongst themselves whether they wanted to watch the entire video.

Shortly after the jury left the courtroom, the deputy informed the district court

judge that the jury had reached a verdict. But before allowing the jurors back into the 

courtroom, the district court judge discussed with the parties whether to “make” the 

jurors watch the entire video again before rendering their verdict. During this discussion, 

counsel for appellant informed the district court judge that he “noticed . . . two of the 

jurors in the back row as they were seated down they picked up their copies of the 

transcript [and] started reviewing the first couple pages. One of the [jurors] pointed to his 
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copy of the transcript and . . . the other juror ended up nodding his head.” Trial counsel 

further stated that his “precise concern” is the jurors “utilizing” the transcript to “just 

answer their question.” 

The district court judge called the jury back into the courtroom and instructed the 

jury that “if you did look at the transcript, . . . to ignore whatever it is you read.” The 

district court judge further stated that if the jury had read any part of the transcript, the 

jury would need to view the video in its entirety. The jury foreman then suggested that 

the jury view the video, and after the video was played in its entirety, the jury retired to 

deliberate. 

The jury found appellant guilty of the charged offenses. Appellant was then 

sentenced to the presumptive guidelines sentence of 144 months in prison. This appeal 

followed.

D E C I S I O N

I. Alleged structural error

A defendant has a constitutional right to a trial by jury for any offense that is 

punishable by incarceration. State v. Fluker, 781 N.W.2d 397, 400 (Minn. App. 2010). 

A “cardinal principle” of the right to a jury trial is that “the deliberations of the jury shall 

remain private and secret in every case,” and that “[t]he presence of any person other than 

the jurors . . . impinges upon that privacy and secrecy.” State v. Crandall, 452 N.W.2d 

708, 710 (Minn. App. 1990) (quotation omitted). Consistent with these principles,

Minnesota Rule of Criminal Procedure 26.03, subdivision 20(2)(b), requires the district 

court to “instruct the jury to suspend deliberations during the review” of evidence. 
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Appellant claims that the two jurors were “deliberat[ing] together in open court” 

when one of the jurors pointed to his copy of the transcript and the other juror nodded his 

head. Appellant argues that the district court’s “presence” in the courtroom during these 

“deliberations,” coupled with its “invitation to the jury to reconsider whether they wanted 

to watch the video because of its length,” constituted structural error. Appellant further 

claims that this error was compounded by the district court’s failure to instruct the jury to 

suspend deliberations when they entered the courtroom. Thus, appellant contends that he 

is entitled to an automatic reversal and a new trial. 

“Generally, there are two types of error: structural error and trial error.” Colbert 

v. State, 870 N.W.2d 616, 624 (Minn. 2015). “[S]tructural errors are defects in the 

constitution of the trial mechanism” that “affect the entire trial from beginning to end and 

undermine the structural integrity of the criminal tribunal itself.” Id. (quotations 

omitted). Structural errors “defy analysis by ‘harmless-error’ standards” and therefore 

“require automatic reversal of a conviction.” State v. Kuhlmann, 806 N.W.2d 844, 851 

(Minn. 2011) (quotation omitted). Conversely, a trial error “may be quantitatively 

assessed in the context of the other evidence presented in order to determine whether it 

was harmless beyond a reasonable doubt.” Colbert, 870 N.W.2d at 624 (quotation 

omitted). “Most errors are trial errors, which are reviewed under a prejudicial-impact 

analysis to determine whether they require reversal and a new trial.” State v. Watkins, 

840 N.W.2d 21, 25–26 (Minn. 2013). “Structural errors resulting in automatic reversal 

occur only in a very limited class of cases.” Colbert, 870 N.W.2d at 624 (quotation 

omitted).
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Although it did not use the phrase “structural error,” the supreme court in State v.

Mims, held that a judge’s uninvited entry into the jury room during deliberations and in 

the absence of the defendant and counsel requires automatic reversal because it “offends 

the integrity of the proceedings and risks influencing the jury’s decisional process in

some degree, however difficult to define or impossible to measure.” 306 Minn. 159, 169, 

235 N.W.2d 381, 388 (1975). In that case, the jury had been deliberating for about four 

hours when the judge “entered the jury room,” and asked the jurors about the “prospects” 

of their “arriving at a verdict.” Id. at 160-61, 235 N.W.2d at 383. The judge “wanted to 

canvass the [prospects of a verdict] generally [with the jurors] and then talk with the 

attorneys and the defendant.” Id. In reversing, the supreme court stated that the trial 

judge is an “imposing figure,” and that when this “imposing figure” intrudes into the 

jury’s deliberative process, “there is a significant interference with the orderly decisional 

process, and prejudice to the process results by the implication that the judge has the 

prerogative of entering the jury room and there exercising the same dominant authority 

he possesses in the courtroom.” Id. at 168-69, 235 N.W.2d at 387-88. The court 

reasoned that the concern when the judge intrudes is that he or she can exert a 

“controlling influence,” and for this reason, “a communication by the judge to the jury 

stands on a different basis from that of another person, and for a like reason the law 

should throw a higher degree of circumspection around such communications.” Id. at 

166, 235 N.W.2d at 386 (quotation omitted). 

A similar conclusion was reached in State v. Brown, 682 N.W.2d 162, 167-68 

(Minn. 2004). In that case, the judge went into the jury room three times and questioned 
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the jury as to whether there was “realistically . . . any possibility” of the jury reaching a 

verdict that evening.” Id. at 165. In reversing the defendant’s conviction, the supreme 

court applied the “strict rule” from Mims. Id. at 168. The court reasoned that by going 

into the jury room after deliberations had begun, the judge inserted himself into the jury’s 

deliberative process. Id. at 167.

Appellant argues that because his case is similar to Brown and Mims, he is entitled 

to a new trial. Conversely, the state argues that this case is more like State v. Everson, 

749 N.W.2d 340 (Minn. 2008), and State v. Nissalke, 801 N.W.2d 82 (Minn. 2011), 

wherein the supreme court declined to apply the strict rule of Mims. 

In Everson, the district court responded to the jury’s request to replay tape 

recordings by allowing the jury, with the defendant’s consent, to listen to the recordings 

in the courtroom in the presence of only the court clerk and a non-lawyer employee of the 

county attorney’s office who operated the playback equipment. 749 N.W.2d at 344. In 

holding that structural error was not committed, the supreme court stated that “the 

procedure used here, while perhaps inadvisable, is not comparable to an uninvited entry 

by the judge into the jury room. Id. at 348 (recognizing that a court clerk and non-lawyer 

employee of the county attorney’s office stand “on a different basis” from a judge). 

More recently, in Nissalke, the district court entered the jury room to deliver 

corrected verdict forms and the trial exhibits a few minutes after the sworn bailiffs 

escorted the jury from the courtroom to the jury room. 801 N.W.2d at 94-95. Although 

the district court informed the jury that he would be coming in with the corrected verdict 

forms, neither the defendant nor his counsel were present during the district court’s brief 
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appearance in the jury room. Id. In rejecting the defendant’s argument that under Mims, 

the district court’s entry into the jury room constituted an error requiring automatic 

reversal, the supreme court stated that “[t]he Mims rule . . . is triggered only when the 

jury is into the deliberative process.” Id. at 92, 96. The court held that

under the unique circumstances presented here, where the 

district court’s entry into the jury room occurred a few minutes 

after the jury left the courtroom and the record does not 

establish that the jury had begun formal deliberations, the entry 

does not undermine the traditional safeguards preventing 

intrusions during deliberations or the independence of the 

jury’s final, collective, decisional process. 

Id. at 98. 

We conclude that this case is akin to Nissalke and Everson, and distinguishable 

from the circumstances in Brown and Mims because the district court judge did not insert 

himself into the decision-making process. Unlike Mims and Brown, the district court

judge did not enter the jury room, nor did he communicate with the jury in the absence of 

appellant and counsel. Instead, the proceedings were conducted in open court where the 

jury knew that the judge, appellant, and counsel would be present, and observed their 

presence in the courtroom. Moreover, the district court judge’s comment about the 

length of the video was irrelevant to the deliberation process. The jury had already 

viewed the video once, and knew its length. And the jury ultimately viewed the video a 

second time before retiring for final deliberations. 

Finally, despite appellant’s argument to the contrary, the district court judge

instructed the jury before they retired to deliberate to “converse among itself only in the 

jury room and only after the entire jury has assembled.” The jury was also instructed to 
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“avoid any conversations about the case outside that jury room.” And after the jury asked 

to review the video and had returned to the courtroom, the district court judge cautioned 

the jury that they could not keep the transcript and that it could only be used to “aid you 

in watching the video.” The district court judge further reminded the jury to “remember 

from my instructions you only talk to each other in the jury room.” Therefore, because 

the jury was properly instructed, and the district court judge did not insert himself into the 

decision-making process, appellant cannot establish structural error.1 

II. Schwartz hearing 

Appellant argues that if this court “is not inclined to reverse [his] conviction for 

structural error, then [his case] should be remanded for a Schwartz hearing.” “The 

purpose of a Schwartz hearing is to determine whether a jury verdict is the product of 

misconduct,” such as improper contact between the district court and the jury. State v. 

Greer, 635 N.W.2d 82, 92 (Minn. 2001). Such a hearing allows the defendant to 

question jurors under oath to determine whether any jury misconduct occurred or whether 

any outside influence improperly affected the verdict. Schwartz v. Minneapolis Suburban 

Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). Before a motion for a 

Schwartz hearing will be granted, the defendant must establish a prima facia case of jury 

misconduct. State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979). “To establish a prima 

facie case, a defendant must submit sufficient evidence which, standing alone and 

unchallenged, would warrant the conclusion of jury misconduct.” Id. But a Schwartz

 

1 We note that appellant makes no claim that his trial was prejudiced.
9

hearing is inappropriate where the claim of misconduct is “wholly speculative and . . . not 

based on any evidence reasonably suggesting that misconduct had occurred.” State v. 

Mings, 289 N.W.2d 497, 498 (Minn. 1980).

Appellant did not request a Schwartz hearing in district court. Because review is 

normally limited to consideration of the issues presented to or decided by the district 

court, appellant has waived the issue. See Everson, 749 N.W.2d at 349. Moreover, to 

obtain a Schwartz hearing, “a defendant must show actual misconduct resulting in 

prejudice or present a claim of outside influence or extraneous information.” State v. 

Bauer, 471 N.W.2d 363, 367 (Minn. App. 1991), review denied (Minn. July 24, 1991). 

Here, appellant failed to establish prejudice and he does not allege that facts came to light 

after the return of the verdict that indicate outside influence. Moreover, the record 

reflects that the jury was properly instructed. Thus, appellant cannot meet his burden to 

show that he is entitled to a Schwartz hearing.

Affirmed.