STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1770

State of Minnesota,

Respondent,

vs.

Gary Lee Burnett,

Appellant.

Filed July 20, 2015

Affirmed

Schellhas, Judge

Mille Lacs County District Court

File No. 48-CR-13-274

Lori Swanson, Attorney General, Robert Plesha, Assistant Attorney General, St. Paul, 

Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant 

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

Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Minge, 

Judge.

*

S Y L L A B U S

A false statement is “material,” within the meaning of Minn. Stat. § 609.48, subd. 

1 (2010), if the statement has a natural tendency to influence, or is capable of influencing, 

the decision of the decision-making body to which it is made.

 

*

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

O P I N I O N

SCHELLHAS, Judge

Appellant seeks reversal of his perjury conviction, arguing that the state failed to 

prove beyond a reasonable doubt that his false statements were material. We affirm.

FACTS

In September 2010, respondent State of Minnesota charged appellant Gary Lee 

Burnett with four counts of criminal sexual conduct, alleging that Burnett had engaged in 

sexual penetration and/or sexual contact with a six-year-old victim. The charges were 

tried to a jury in February 2012. The state relied on the victim’s accounts of abuse, 

apparently presenting no corroborating physical evidence or eyewitness testimony. 

Burnett testified in his own defense and denied any sexual contact with the victim. He 

also claimed “[f]our and [a] half proud years” of service in the United States Army, 

which purportedly included overseas deployment, serious injury, receipt of two Purple 

Hearts, and medical discharge. The trial resulted in a hung jury, after which law

enforcement learned that Burnett had never served in the military. At a retrial of the 

criminal-sexual-conduct charges in November 2012, Burnett did not testify, and a jury 

found him guilty of three of the four counts. 

At his sentencing hearing, Burnett admitted that he had lied about serving in the 

military. In February 2013, the state charged Burnett with felony perjury under Minn. 

Stat. § 609.48, subd. 1(1) (2010) (false statement in action, hearing, or proceeding). The 

parties agreed to submit the case to the district court on stipulated facts under Minn. R. 
3

Crim. P. 26.01, subd. 3. The court received the September 2010 complaint, which 

charged Burnett with criminal sexual conduct, for the limited purpose of showing “what 

the allegations were, what the nature of the charges were, and what the issues were at 

trial”; a transcript of Burnett’s testimony at his first criminal-sexual-conduct trial; and a 

transcript of Burnett’s sentencing hearing on his criminal-sexual-conduct convictions. 

The only contested issue was whether Burnett’s false statements were “material” within 

the meaning of Minn. Stat. § 609.48, subd. 1 (2010). The court found that the state had 

proved the materiality of Burnett’s false statements beyond a reasonable doubt, 

adjudicated Burnett guilty of perjury, and sentenced him to 33 months’ imprisonment, 

stayed for 7 years.

This appeal follows.

ISSUE

Does sufficient evidence support the district court’s finding that Burnett’s false 

statements were “material” within the meaning of section 609.48, subdivision 1?

ANALYSIS

The United States Constitution “indisputably entitles a criminal defendant to a jury 

determination that he is guilty of every element of the crime with which he is charged, 

beyond a reasonable doubt.” State v. Her, 862 N.W.2d 692, 695 (Minn. 2015) (quotations 

omitted); see also Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013) (stating that 

Sixth Amendment jury-trial right, “in conjunction with the Due Process Clause, requires 

that each element of a crime be proved to the jury beyond a reasonable doubt” (citing 

United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995))). Accordingly, 
4

when materiality is an element of a false-statement crime, the state must prove beyond a 

reasonable doubt that the false statement was material. Gaudin, 515 U.S. at 518–19, 522–

23, 115 S. Ct. at 2318, 2320.

In Minnesota, materiality is an element of the crime of perjury. See Minn. Stat. 

§ 609.48, subd. 1 (providing that perjurious statement must be both false and material). 

“Material” is not defined in the criminal code. See Minn. Stat. §§ 609.00–.912 (2010). 

But the perjury statute makes clear that a false statement need not have any effect to be 

material and that the declarant’s state of mind is irrelevant to his statement’s materiality. 

See Minn. Stat. § 609.48, subd. 2 (2010) (providing that “[i]t is not a defense to a 

violation of this section that . . . the declarant did not know that the statement was 

material or believed it to be immaterial” or that “the statement was not used or, if used, 

did not affect the proceeding for which it was made”). The parties have not identified, 

and we have not found, any Minnesota authority that defines “material,” as used in 

section 609.48, subdivision 1.

In 1927, the Minnesota Supreme Court stated that a then-effective Minnesota 

statute “provides that it is no defense [to perjury] that the accused did not know the 

materiality of his false testimony, or that it did not in fact affect the proceeding in which 

it was made; it is sufficient that it was material and might have affected the proceeding.” 

State v. Larson, 171 Minn. 246, 247–48, 213 N.W. 900, 900 (1927) (emphasis added). 

Federal courts have held that “a false statement is material if it has ‘a natural tendency to 

influence, or [is] capable of influencing, the decision of the decisionmaking body to 

which it was addressed.’” Neder v. United States, 527 U.S. 1, 16, 119 S. Ct. 1827, 1837 
5

(1999) (alteration in original) (quoting Gaudin, 515 U.S. at 509, 115 S. Ct. at 2313); 

accord United States v. Rastegar, 472 F.3d 1032, 1036–37 (8th Cir. 2007). And other 

state courts have adopted similar definitions of materiality in the perjury context. See, 

e.g., Commonwealth v. Cohen, 921 N.E.2d 906, 931 (Mass. 2010) (“[A] statement is 

‘material’ if it tends in reasonable degree to affect some aspect or result of the inquiry.” 

(quotation omitted)); People v. Hadid, 993 N.Y.S.2d 754, 757 (N.Y. App. Div. 2014) 

(“The test of materiality is whether the false testimony was capable of influencing the 

tribunal on the issue before it.” (quotations and citation omitted)); State v. Lanning, 832 

N.E.2d 143, 149 (Ohio Ct. App. 2005) (“[I]n the context of a grand-jury proceeding, a 

false statement is material if it has the natural effect or tendency to impede, influence or 

dissuade the grand jury from pursuing its investigation.” (quotations omitted)). 

“[A]lthough we are not bound to follow precedent from other states or federal courts, 

these authorities can be persuasive.” State v. McClenton, 781 N.W.2d 181, 191 (Minn. 

App. 2010), review denied (Minn. June 29, 2010). 

We conclude that a false statement is “material” within the meaning of 

section 609.48, subdivision 1, if the statement has a natural tendency to influence, or is 

capable of influencing, the decision of the decision-making body to which it is made. We 

therefore must reverse Burnett’s perjury conviction absent sufficient evidence that his 

false claim of exemplary military service was capable of influencing the jury’s verdict on 

the criminal-sexual-conduct charges.
6

To evaluate the sufficiency of the evidence, appellate courts use the same standard 

of review in bench trials as in jury trials. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 

2011). Under that standard of review, appellate courts

carefully examine the record to determine whether the facts 

and the legitimate inferences drawn from them would permit 

the [fact-finder] to reasonably conclude that the defendant 

was guilty beyond a reasonable doubt of the offense of which 

he was convicted. . . . The verdict will not be overturned if the 

fact-finder, upon application of the presumption of innocence 

and the State’s burden of proving an offense beyond a 

reasonable doubt, could reasonably have found the defendant 

guilty of the charged offense.

State v. Fox, ___ N.W.2d ___, ___, 2015 WL 1810482, at *12 (Minn. Apr. 22, 2015).

In this case, the district court determined that Burnett’s false statements “were 

material in that they went directly to the issue of his credibility and were capable of 

influencing the jury’s decision regarding whether to believe . . . Burnett or the victim in a

case primarily dependent on credibility.” Burnett argues that “military service is not a 

relevant factor in determining [the] credibility” of his denial of having had sexual contact 

with the victim because a jury should not be influenced by a witness’s military service

unless that service is relevant to the witness’s “believability as to particular issues.” But 

the question before us is not whether Burnett’s claim of exemplary military service 

should have influenced the jury’s assessment of his credibility; the question is whether 

Burnett’s claim of exemplary military service had a natural tendency to influence, or was 

capable of influencing, the jury’s assessment of his credibility. See Neder, 527 U.S. at 16, 

119 S. Ct. at 1837 (stating that “a false statement is material if it has a natural tendency to 

influence, or is capable of influencing, the decision of the decisionmaking body to which 
7

it was addressed” (quotation omitted)); cf. Larson, 171 Minn. at 248, 213 N.W. at 901 

(stating that “whatever goes to the credit of a witness is material, and perjury may be 

founded upon it”). 

Burnett made his claim of exemplary military service during his direct 

examination as follows:

Q. [W]hat did you do after [graduating from high school]?

A. I enlisted in the United States Army.

Q. Okay and did you serve our country?

A. I did.

Q. And for how long?

A. Four and [a] half proud years.

Q. Okay and were you sent overseas?

A. I was.

Q. Were you wounded overseas?

A. I was, twice.

Q. Okay and did you earn any medals?

A. Yes, I was ordered two Purple Hearts, one for a gunshot 

wound to the chest and one for shrapnel and hearing 

impairment from an IED.

Q. Okay and the hearing aids you wear today, are those 

because of the IED?

A. Yes.

The transcript of this testimony—together with the complaint showing that the criminalsexual-conduct charges apparently were dependent entirely on the six-year-old victim’s 

statements—constitutes sufficient evidence that Burnett’s false claim of exemplary 

military service was capable of influencing the jury’s decision as to his guilt or innocence 

of criminal sexual conduct. See Fox, 2015 WL 1810482, at *12 (stating that evidence is 

sufficient to support conviction if “the facts and the legitimate inferences drawn from 

them would permit the [fact-finder] to reasonably conclude that the defendant was guilty 

beyond a reasonable doubt of the offense of which he was convicted”); see also Sears v. 
8

United States, 791 F. Supp. 950, 954 (N.D.N.Y. 1992) (“By testifying that he had 

received a combat infantry badge, two Vietnam[] campaign ribbons, a purple heart, and 

two bronze stars, had refused a silver star, and had been wounded while fighting on 

behalf of citizens such as the jurors, [defendant] painted a self-portrait of valor and 

courage which surely could have enhanced his image in the minds of the jurors. When the 

jury listened to his subsequent testimony, in which he disavowed possession and/or use of 

the gambling devices in question, the jury certainly could have considered his earlier 

testimony concerning his exemplary military record in deciding how much weight to 

afford his version of the facts.”); cf. United States v. Alvarez, 132 S. Ct. 2537, 2542–43 

(2012) (referring to military service as “the ‘supreme and noble duty of contributing to 

the defense of the rights and honor of the nation’” and stating that it is “a most valued 

national aspiration and purpose” for “the Nation [to] hold in its highest respect and 

esteem those who” perform that duty “with extraordinary honor” (quoting Selective Draft 

Law Cases, 245 U.S. 366, 390, 38 S. Ct. 159, 165 (1918))).

D E C I S I O N

Sufficient evidence supports the district court’s finding that Burnett’s false 

statements were material within the meaning of Minn. Stat. § 609.48, subd. 1 (2010), 

because the false statements had a natural tendency to influence, or were capable of 

influencing, the decision of the decision-making body to which Burnett made the 

statements. We therefore affirm Burnett’s perjury conviction.

Affirmed.