This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Victor Garcia,




Filed April 13, 2004

Klaphake, Judge


Clay County District Court

File No. K5-02-1733



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Lisa Borgen, Clay County Attorney, 807 11th Street North, Moorhead, MN  56560; and


Donna J. Wolfson, Special Assistant Clay County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Victor Garcia, who was convicted of aiding and abetting second-degree assault, argues that the evidence was insufficient to sustain his conviction and that the district court committed prejudicial error by entering the jury room during deliberations and having ex parte communications with the jury. 

            Because the facts on the record, and the inferences that reasonably can be drawn from those facts, would permit a jury to reasonably conclude that appellant was guilty beyond a reasonable doubt, we affirm. We further conclude that although the district court erred by entering the jury room and communicating ex parte during deliberations, that error was harmless beyond a reasonable doubt.


            1.         Sufficiency of the Evidence

            An appellate court reviews a claim of insufficiency of the evidence to determine whether, given the facts in the record and the reasonable inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty beyond a reasonable doubt of the charged offense.  State v. Darris, 648 N.W.2d 232, 236 (Minn. 2002).  Evidence is viewed in a light most favorable to the state and the reviewing court can assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  Id. 

            Appellant was convicted of aiding and abetting Frankie Garcia in committing second-degree assault.  To convict a person of aiding and abetting in the commission of a crime, the state must show that the defendant played some knowing role in the commission of a crime by another and took no steps to thwart it.  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995).  A knowing role can include aiding, advising, hiring, counseling, conspiring with, or procuring another to commit a crime.  Minn. Stat. § 609.05, subd. 1 (2002).  Something more than mere presence, knowledge, inaction, or passive acquiescence is required.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).

            This court must first review whether Frankie Garcia’s actions are equivalent to second-degree assault.  Second-degree assault is an assault with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1 (2002).  “Assault” is defined as “[a]n act done with intent to cause fear in another of immediate bodily harm or death.”  Minn. Stat. § 609.02, subd. 10(1) (2002).  “Dangerous weapon” is defined as “any device designed as a weapon and capable of producing death or great bodily harm . . . or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm . . .. ”  Minn. Stat. § 609.02, subd. 6 (2002).  “When determining whether an object, even an inherently dangerous object, is a dangerous weapon, the court must examine not only the nature of the object itself, but also the manner in which it was used.”  State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997).

            The victim of the assault testified that Frankie Garcia brandished a shiny object and that appellant said to the victim, “Frankie is going to cut you up.”  Investigating officers found a knife belonging to Frankie Garcia at the scene.  The victim testified that he was afraid and fled from the confrontation.  Brandishing a knife, when the action creates fear in the intended victim, can constitute second-degree assault.  State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987).  This evidence is sufficient to support a second-degree assault conviction. 

            Appellant was more than a mere bystander to Frankie Garcia’s activities.  The presumed basis for the threatened assault was an attempt to collect money that the victim owed to appellant.  Appellant participated in the other activities occurring at the scene, including initially wielding a baseball bat and spraying a fire extinguisher.  Witnesses testified that appellant made some sort of threat that he would “pop” or “strap” the victim.  The victim also testified that appellant threw a hammer at him; although this testimony was contradicted by other witnesses, the jury could well have believed the victim and discounted the others’ testimony. See Darris, 648 N.W.2d at 236. In short, appellant was more than a passive bystander.  Reviewing the evidence in a light most favorable to the verdict, there is sufficient evidence to sustain the conviction.

            2.         Judicial Misconduct

            A defendant has a fundamental right to be present at all stages of a jury trial, including any communication between judge and jury after the case is submitted and deliberations have begun.  State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994).  It is clear error for the district court to communicate with the jury without notifying the defendant and in the defendant’s absence.  Id.  Relying on State v. Mims, 306 Minn. 159, 235 N.W.2d 381 (1975), appellant argues that such ex parte communication requires automatic reversal.  Mims strongly states that a trial judge must avoid ex parte communication and intrusion into the jury room.  Id. at 169-70, 235 N.W.2d at 388.  Even Mims, however, makes an exception for matters relating to physical comforts.  Id. at 170, 235 N.W.2d at 388.

            Since Mims, both the supreme court and this court have stated that such ex parte communication is error.  See, e.g., State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001); State v. Petrich, 494 N.W.2d 298, 299-300 (Minn. App. 1992), review denied (Minn. Feb. 23, 1993).  But, unlike Mims, both courts have used a harmless error analysis to determine whether this type of error requires reversal.  Sessions, 621 N.W.2d at 756; Petrich, 494 N.W.2d at 300.  This court has explained:

The supreme court has also articulated a more particular standard where the alleged error is the defendant’s exclusion from a judge-jury communication.  Under this standard, we examine the context of the judge-jury communication and the strength of the evidence against the defendant.  Where a district court’s communications with a jury are neutral and nonsubstantive and could not have played a significant role in the verdict the error is harmless beyond a reasonable doubt.


State v. Hendry, 636 N.W.2d 158, 167 (Minn. App. 2001), review denied (Minn. Jan. 29, 2002) (quotation & citation omitted). 

            In Sessions, the supreme court suggested that a defendant may consent to an ex parte communication.  Sessions, 621 N.W.2d at 756 (“Where the rules explicitly require proceedings in open court, and, without defendant’s consent, those proceedings are not conducted there, the defendant and society generally lose confidence in the integrity of the proceeding.”) (emphasis added)).  Here, appellant was consulted and agreed to the trial judge’s first communication with the jury about sequestration.

            Although it is not clear whether appellant and his counsel were present when the judge decided to ask the jury if they wanted to retire for the night, the transcript of that contact is available.  The jury asked for a little more time because they were making progress and for a dictionary, which the court refused to provide.  There was no discussion of substantive law nor did the court attempt to persuade the jury to continue or cut off their deliberations.  See State v. Peterson, 530 N.W.2d 843, 846 (Minn. App. 1995) (“Judges are not required to spell out to jurors that a deadlock is a permissible result.  But judges cannot tell juries they must reach a verdict.”)  

            To determine whether this contact was harmless error, the reviewing court looks at the strength of the evidence and the substance of the ex parte communication.  Sessions, 621 N.W.2d at 756-57.  Although the evidence here is somewhat more equivocal than in Sessions, the record reasonably supports the jury’s verdict.  The fact that the jury acquitted appellant on four of the charges, deadlocked on two, and convicted him on one tends to negate the suggestion that the court’s entry into the jury room had any particular effect on their deliberations.  According to the transcript, the judge carefully avoided issuing or repeating instructions.  Under these circumstances, we conclude that the judge’s communication did not play a significant role in the verdict and thus was not reversible error.