This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Tony William Fratzke,



Filed December 14, 2004


Gordon W. Shumaker, Judge


McLeod County District Court

File No. K2-02-997




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


Michael K. Junge, McLeod County Attorney, Mark Metz, Assistant McLeod County Attorney, 830 East Eleventh Street, Suite 112, Glencoe, MN 55336 (for respondent)


Jennifer E. Speas, Speas Law Firm, P.A., 310 Fourth Avenue South, Suite 1050, Minneapolis, MN 55415 (for appellant)




            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Tony Fratzke appeals from his conviction of third-degree and fifth-degree assault, arguing that improper contact between the bailiff and the jury during jury deliberations significantly prejudiced the verdict.  Appellant also argues that there was insufficient evidence to support his conviction of third-degree assault and that the district court abused its discretion in admitting into evidence the former testimony of an unavailable witness.  We affirm.


This case arises out of an altercation involving appellant Tony Fratzke, Matt Stumpf, and Amber Warner.  Many of the facts are sharply in dispute, but trial testimony supports a version that implicates Fratzke in assaults upon Stumpf and Warner.

These individuals, among others, were at the Gopher Campground, a private membership club in Hutchinson, on August 9 and 10, 2002.  At about 3:00 a.m. on August 10, Fratzke and Matt Stumpf argued.  At the end of the argument, Stumpf walked away from Fratzke and began talking to a friend.

A few minutes later, someone threw a beer can and hit Stumpf in the head.  Fratzke’s brother, Jason, admitted throwing the can and then challenged Stumpf.  The two argued, and the argument escalated into a physical confrontation during which Amber Warner intervened.  Jason Fratzke then punched Matt Stumpf in the face.  Tony Fratzke stood next to his brother during the confrontation and yelled at Matt Stumpf.

Stumpf and Warner then began to walk away from the area but Tony Fratzke, his brother, and another followed them.  Stumpf used his cell phone to call 9-1-1.  As he was speaking, Jason Fratzke tackled him, knocked him down and began to kick him.  Warner grabbed Jason Fratzke, and Tony Fratzke pulled her back, threw her to the ground and held her down while Jason kicked her and Stumpf.

Matt Stumpf suffered serious bodily injuries and required surgical repair.  Amber Warner sustained bruises to her neck, stomach, and arm.

The state charged Tony Fratzke with aiding and abetting another to assault Matt Stumpf and Amber Warner.  Fratzke had two trials on the assault charges.  The first ended with a hung jury and a mistrial.  The second resulted in verdicts of guilty on counts of third-degree and fifth-degree assault.

During the first trial, Jeremy Cochran, a friend of Stumpf and Warner who was involved in the altercation with the Fratzkes, testified that Tony Fratzke assaulted both Stumpf and Warner.  Cochran was not available for the retrial, and the district court allowed his previous testimony to be read to the jury.

While the jury deliberated after the second trial, one juror asked the bailiff for police reports and trial transcripts.  Without informing the court of this request, the bailiff told the juror to rely on the evidence that had been produced.

After the jury returned its verdict, the court learned of the bailiff’s contact and informed counsel.  Defense counsel moved for a new trial.  The court held a Schwartz hearing and denied the motion.

Fratzke appeals, alleging as error the receipt of Cochran’s previous trial testimony and the denial of a new trial after the bailiff’s improper contact with the jury was revealed.  He also challenges the sufficiency of the evidence to support a conviction of third-degree assault.


1.         Bailiff Contact and Schwartz Hearing

            The district court denied Fratzke’s motion for a new trial after the court held a Schwartz hearing regarding the bailiff’s contact with a juror.  We review the denial of a new trial for an abuse of discretion and errors of law.  Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990).

            Any private communication between a bailiff and a juror about the merits of a criminal case is presumptively prejudicial.  Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954).  Arguably, the communication by the bailiff was not about the merits of the case but rather concerned a procedural issue.

At the Schwartz hearing, the bailiff testified that, during deliberations, a male juror asked the bailiff for police reports and trial transcripts.  Based on her prior experience of hearing how judges have responded to such requests, the bailiff simply told the juror that the jury had to work with the evidence they had.  The juror responded, “That’s what we thought.”  Even though this exchange was not specifically about the merits of the case, there is no dispute that the bailiff’s conduct was improper and, thus, we will apply the presumption of prejudice.  However, that prejudice would seem to be inherently diminished because of the procedural nature of the contact.  It perhaps can be safely assumed that if the police reports were admitted into evidence, the jury would already have them.  And if the request was for “trial transcripts” rather than specific testimony, it is certain the court would have denied the request.  Nevertheless, we continue our scrutiny of the improper contact and the state’s effort to rebut the presumption of prejudice.

            “The burden on the prosecution to rebut the presumption is met only by showing beyond a reasonable doubt that the asserted error did not contribute to the verdict obtained.”  State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982).  Cox outlined the inquiry to be employed in assessing the effect of an outside influence on a jury and its verdict:

The relevant factors to be considered by this court, in an independent evaluation of the verdict, are the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of the evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.


Id. at 559.

            The district court conducted a Schwartz hearing to determine the likely effect, if any, of the misconduct on the verdict.  Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).  All twelve jurors testified.  They had differing recollections of the nature of the request.  Most thought it had to do with testimony.  None recalled any request for police reports, and none recalled which juror had the contact with the bailiff.

            In its thorough and thoughtful memorandum on this issue, the court analyzed the Cox factors and adequately distinguished Fratzke’s principal authority, State v. Jurek, 376 N.W.2d 233 (Minn. App. 1985).  The court concluded that, although all jurors had been exposed to the improper conduct directly or indirectly, Fratzke was not prejudiced by the contact.  The court discussed four bases for its conclusions: (1) The transcript the court surmised the jury wanted contained the testimony of Jeremy Cochran, a witness who testified at the first but not the second trial.  The court noted that his testimony was more favorable to the state and that it was possible that the testimony would not have been re-read to the jury, despite the request.  (2) Considering the charges of which Fratzke was convicted, Cochran’s testimony would not likely have affected the verdicts.  (3) The weight of the evidence against Fratzke was strong.  (4) At the Schwartz hearing none of the jurors stated that the inability to obtain the Cochran transcript “caused any frustration on their part or influenced their verdicts in any manner.”

            We hold that the presumption of prejudice was rebutted beyond a reasonable doubt and that the court did not abuse its discretion or commit an error of law in denying the motion for a new trial.

2.         Sufficiency of the Evidence

            Fratzke argues that the evidence is insufficient to support his conviction of assault in the third degree.  In considering that argument, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow the jury to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must also assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This principle is even more significant when the resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

            The jury found Fratzke guilty of aiding and abetting an assault in the third degree against Matt Stumpf.  A person aids and abets another in committing a crime when that person plays some knowing role in the commission of the crime and takes no steps to thwart it. State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995).  A knowing role can include aiding, advising, or conspiring with another to commit a crime.  Minn. Stat. § 609.05, subd. 1 (2002).

            Although there were various conflicts in the testimony, Matt Stumpf, Amber Warner, and Jeremy Cochran testified consistently that, as Stumpf was talking on his cell phone, Jason Fratzke tackled him and began to punch and kick him.  When Warner intervened to attempt to help and protect Stumpf, Tony Fratzke pulled her away and threw her to the ground.  This made it possible for Jason Fratzke to continue his assault.  By knowingly helping Jason Fratzke to continue assaulting and seriously injuring Stumpf, Tony Fratzke aided and abetted his brother in committing that crime.  The evidence was sufficient to support Tony Fratzke’s conviction of third-degree assault.

3.         Admission of Former Trial Testimony

            Finally, Fratzke argues that the district court abused its discretion in allowing Jeremy Cochran’s former trial testimony to be read into evidence and that admission of the testimony violated the Confrontation Clause.  Specifically, Cochran’s former testimony did not have “particularized guarantees of trustworthiness” as required in State v. Aubid, 591 N.W.2d. 472, 479 (Minn. 1999).  Fratzke also stresses that the testimony fails to meet the necessary factors for assessing reliability under the catchall exception to the hearsay rules outlined in State v. Stallings, 478 N.W.2d 491, 495 (Minn. 1991).

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The appellant has the burden of demonstrating an abuse of discretion and consequent prejudice.  Id.  Our review of evidentiary issues is for an abuse of discretion, and any error is subject to harmless-error analysis.  State v. Greer, 635 N.W.2d 82, 91 (Minn. 2001). 

The Confrontation Clause of the Sixth Amendment guarantees a defendant’s right “to be confronted with the witnesses against him.”  U.S. Const. amend. VI.  In Crawford v. Washington, the United States Supreme Court recently reviewed the admission of testimonial hearsay statements in criminal trials.  124 S. Ct. 1354 (2004).  The Court stated that the right to confront one’s accuser is not substantive, but rather is procedurally guaranteed to a criminal defendant.  Id. at 1370.  The Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”  Id.  The Court held that, “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required:  unavailability and a prior opportunity for cross-examination.”  Id. at 1374.

In State v. Wright, we held that the Confrontation Clause analysis now turns on whether a statement is “testimonial” in nature.  686 N.W.2d 295, 301 (Minn. App. 2004). If the statement is testimonial, the prosecution is prohibited from using it against a criminal defendant unless the declarant is available to testify or there was a previous opportunity for cross-examination.  Id.  This rule applies regardless of whether the statement falls within any recognized hearsay exception or has indicia of reliability.  Id.  Although the United States Supreme Court failed to give a concrete definition of “testimonial” statements, it did include prior testimony at a hearing, trial, or grand jury proceeding.  Crawford, 124 S. Ct. at 1374. 

Jeremy Cochran testified at Fratzke’s first trial.  He was under oath and Fratzke’s defense counsel cross-examined him thoroughly as to his account of the altercations involving Fratzke, Stumpf, and Warner.  Cochran’s reliability was assessed through cross-examination.  The district court found Cochran to have been unavailable for the second trial and allowed his testimony from the first trial to be read into evidence under Minn. R. Evid. 804(b)(1), the hearsay exception for former testimony.  Fratzke’s Confrontation Clause guarantee, as interpreted by Crawford, was ensured through the procedure the district court used.  There was no error in the admission of Cochran’s prior testimony.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.