This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Jackie Gondrez,



Filed October 4, 2005

Randall, Judge


Benton County District Court

File No. K3-03-390


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


Robert J. Raupp, Benton County Attorney, Kathleen L. Reuter, Assistant County Attorney, Courts Facility, Post Office Box 189, Foley, MN 56329 (for respondent)


Mary M. McMahon, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            Appellant Jackie Gondrez challenges her conviction for gross misdemeanor mistreatment of a confined person and disorderly conduct by a caregiver.  Appellant argues that the district court abused its discretion by precluding one of her witnesses prior to trial; that the prosecutor engaged in misconduct; and that the evidence was insufficient to support the conviction.  We conclude the evidence is insufficient as a matter of law to support the conviction.  Reversed.


In February 2004, the state charged appellant with one count of mistreatment of a confined person, in violation of Minn. Stat. § 609.23 (2002), and one count of disorderly conduct by a caregiver, in violation of Minn. Stat. § 609.72, subd. 3 (2002).  The complaint alleged that appellant, a caregiver at a nursing home, had intentionally caused a male resident and a female resident, ages 76 and 82, respectively (both suffering from dementia), to see each other naked in the facility's bathing room and had made inappropriate and suggestive comments while doing so. 

Appellant pleaded not guilty.  Before trial, she submitted a list of possible witnesses that included Arnold Rosenthal, the director of the Minnesota Department of Health's Office of Health Facility Complaints (OHFC), which reviews reports of misconduct by health-facility employees to determine whether a full investigation and disciplinary administrative proceedings are warranted.  Minn. Stat. § 144A.52, .53 (2004).  The state moved to exclude Rosenthal's testimony.  At the hearing on the state's motion, Rosenthal stated that, if called, he would testify that the OHFC had decided not to pursue an investigation into appellant's alleged misconduct.  The district court granted the state's motion, reasoning that Rosenthal's testimony concerning the OHFC's administrative process was not relevant to the criminal charge, was likely to confuse the jury as to the applicable burden of proof, and was more prejudicial than probative. 

            At the jury trial, the state called Heidi Olson, who testified that on the date of the alleged misconduct, she was observing appellant and another caregiver perform their employment duties in the facility's Alzheimer's wing as part of Olson's nursing-assistant training; that wing houses approximately 30 residents supervised by three nursing assistants.  Olson testified that on the evening in question, appellant was responsible for bathing specified residents in one of the facility's tub rooms, which contain a shower stall and a bathtub.  Olson testified that after the other caregiver brought a female resident into the tub room and began undressing her, appellant brought a male resident in and began undressing him.  The man was bathed while standing in the shower stall approximately two feet from the bathtub where the woman was being bathed.  Olson gave conflicting testimony concerning whether the privacy curtain separating the bath from the shower was closed, partially closed, or open while the residents were being undressed, bathed, and dried. 

            Olson testified that the female resident appeared "really upset" during the bath; Olson attributed this behavior both to the fact that the woman "didn't like to be bathed, and [because] she knew there was a male in the bathroom."  But Olson also testified that the woman never specifically said she was upset about the male resident observing her naked and that the woman never actually said any words during or after the bath.  Olson subsequently stated that the woman "was yelling out the whole time because she was upset . . . [a]bout being in the tub."  Olson also testified that since the incident giving rise to the charges against appellant, she has observed that it is "fairly typical" for the woman to cry out as caregivers attempt to get her into the tub.  Olson testified that as appellant and the other caregiver were drying off the two residents, appellant made two suggestive comments to the man in reference to the woman.

Lynn Johnson, the nursing operations director at the facility, testified for the state.  On cross-examination, defense counsel asked Johnson whether violations of patient privacy necessarily constitute abuse; Johnson answered, "Not necessarily."  On redirect, the state, referring to defense counsel's question about privacy and abuse, asked Johnson whether, in her opinion, appellant's actions constituted abuse; Johnson answered, "Yes."  Defense counsel did not object to this question. 

Appellant testified that between 4:50 and 5:00 on the afternoon of the day the alleged abuse occurred, she was informed by her supervisor that three residents needed to be bathed and ready for dinner by 5:30.  She stated that baths are generally supposed to last at least 15 minutes and that the facility's schedule is such that if the baths could not be completed by 5:30 on the day in question, the residents would have had to wait at least another week for their next bath.  Appellant testified that she, another caregiver, and Heidi Olson brought the female resident into the shower room first and began undressing her for her bath, at which point the woman became upset.  Appellant testified that she had previously bathed the woman "plenty of times [and] knew she didn't like to go in the tub . . . she didn't like anything basically to do with tubs."  Appellant stated that during her baths, the woman typically cried and "constantly sa[id] that she didn't want to be in there." 

Appellant testified that once the female resident was in the tub, she went to get the male resident, whom she brought into the shower room and undressed him out of view of the woman.  She stated that she decided to bring the male into the shower room with the woman because the wing's other shower room was occupied and because she was primarily concerned that all the patients scheduled for bathing be bathed.  Appellant testified that she placed the male resident under the shower and pulled a privacy curtain around him.  She also stated that after the shower, as both residents were being dried, both she and the other caregiver were standing between the two residents, who were never able to see each other naked. Appellant denied making any suggestive statements.  The jury found appellant guilty as charged.  This appeal follows.



Appellant contends that she was denied due process and a fair trial when the district court excluded Arnold Rosenthal's testimony.  A district court's evidentiary rulings, including those concerning the admissibility of an expert opinion, rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

Appellant first challenges the district court's conclusion that Rosenthal was a fact witness because his testimony would focus solely on his first-hand account of the OHFC's decision not to pursue an administrative investigation of appellant's actions.  She contends that Rosenthal was called to give his expert opinion about whether her alleged misconduct constituted statutory abuse.  The record is clear that Rosenthal only analyzed appellant's actions for the purpose of determining whether an administrative investigation was warranted and that he did not have access to all of the evidence available to the criminal investigators.  Rosenthal specifically stated to the court that he had not been retained as an expert independent of his official position.  The district court's conclusion that Rosenthal was presented as a fact witness as to the actions taken by his agency is supported by the record.  Appellant argues that Rosenthal is qualified to give expert testimony, citing his professional training and experience.  But the issue is not whether Rosenthal could provide expert testimony under different circumstances; it is whether his testimony as offered here was factual or expert.  We conclude it was fact testimony. 

The district court determined that even were Rosenthal's testimony of more than "slight relevance" to the criminal proceeding, its probative value would be "greatly outweighed" by its potential for unfair prejudice, confusion of issues, or misleading the jury.  See Minn. R. Evid. 403.  As to relevance, the agency's decision not to pursue an administrative investigation is not significant to the ultimate issue here:  whether appellant committed the charged criminal actsMinn. R. Evid. 401 (defining relevant evidence).  Rosenthal’s standards for proceeding with an administrative investigation would be so far removed from the burden on the state in a criminal case to prove each essential element of the crime charged by proof beyond a reasonable doubt that we cannot conclude the district court erred when it found admission of this testimony could confuse the issue and possibly mislead the jury.

The agency’s determination not to pursue the matter is not a bar to the state attempting to bring a criminal charge.  There are widely different policy considerations underlying those two different spheres.


            Appellant argues that the prosecutor committed misconduct by offering expert testimony on the same subject as that addressed in the precluded Rosenthal testimony.  Specifically, appellant contends that the state impermissibly elicited expert testimony from Lynn Johnson, the facility's nursing operations director, by asking Johnson's opinion, on redirect examination, as to whether appellant's alleged conduct constituted abuse.  We disagree.    

            First, the record is clear that the state only raised the issue of Johnson's opinion after the defense raised the topic on cross-examination.  By asking Johnson to give her opinion about whether the charged conduct constituted an invasion of privacy or abuse, defense counsel "open[ed] the door" to the prosecution's question about Johnson's opinion on redirect examination.  See State v. Edwards, 343 N.W.2d 269, 273 (Minn. 1984).  Second, defense counsel did not challenge Johnson's testimony during direct examination, attempt to establish whether she was being presented as an expert or, if she was, attempt to challenge her expert credentials.  Third, defense counsel admittedly did not object to the prosecution's question about Johnson's opinion when it was asked.  When a defendant fails to object at trial, she generally forfeits the right to have prosecutorial misconduct considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  An exception arises where "the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the defendant's right to a fair trial that the defendant's right to a remedy should not be forfeited."  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  

            That exception is not present here.  Appellant does not argue that she was prejudiced by the prosecutor's questions in themselves; instead, she argues that her "substantial rights" were affected "when the state was allowed to present [opinion] evidence that [she] was prohibited from introducing," referring to Rosenthal's precluded testimony, thereby denying her right "to present a full defense."  Her allegation of prosecutorial misconduct, then, is in fact a challenge to the district court's decision to preclude Rosenthal's testimony.  Because we have determined that the district court's decision to preclude Rosenthal's testimony was correct, we conclude that appellant's allegation of prosecutorial misconduct fails.


Appellant argues that her conviction should be reversed, claiming that the evidence presented at trial was insufficient to sustain the guilty verdict.  We agree.  When considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We "will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged."  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant argues the evidence was insufficient to support her conviction because the facts did not show that she acted with the requisite statutory intent as to either of the charges.  Minn. Stat. § 609.23 (2002) prohibits "intentionally" abusing a confined person.  Minn. Stat. § 609.72, subd. 3 (2002), prohibits engaging in "offensive, obscene, or abusive language" toward a vulnerable adult "knowing, or having reasonable grounds to know that it will, or will tend to, anger, alarm, or disturb" that adult.  " 'Intentionally' means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result."  Minn. Stat. § 609.02, subd. 9(3) (2004).  As for "knowing" conduct, as prohibited by Minn. Stat. § 609.72, subd. 3, " '[k]now' requires only that the actor believes that the specified fact exists."  Minn. Stat. § 609.02, subd. 9(2) (2004). 

            Because both of the charges against appellant concern specific-intent crimes, the state was required to prove that appellant acted with the intent to produce a specific result as to each charge.  State v. Orsello, 554 N.W.2d 70, 72 (Minn. 1996).  Intent may be proved by circumstantial evidence, including the defendant's conduct, the character of the assault, and the events occurring before and after the crime. Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).  Intent is inherently subjective, but may be inferred from the "surrounding circumstances." State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975).  We further observe that when analyzing specific-intent crimes, "[t]he intent of the actor, as contrasted with the effect upon the victim, becomes the focal point for inquiry."  State v. Ott, 291 Minn. 72, 75, 189 N.W.2d 377, 379 (1971).

After a careful review of the record, we conclude that the evidence presented at trial does not prove beyond a reasonable doubt that appellant acted with the intent or knowledge necessary to sustain her conviction of the charged crimes.  The evidence demonstrates that appellant was working under strict time and space constraints when she took the actions giving rise to the charges:  she was given less than 45 minutes to bathe the male and female resident (for at least 15 minutes each), dress them both, and bring them to dinner.  She discovered that only one bathing room was available, and knew that if she did not complete the assigned bathing that day, both residents would go another week without bathing.  It is undisputed that the female resident was intensely averse to bathing and that she typically resisted and objected throughout the process. 

Under these circumstances, we cannot reasonably conclude that appellant, by bringing both residents into the same bathing room, intentionally wanted to abuse them, or did so with the knowledge that her conduct would anger, alarm, or disturb them.   The record demonstrates that appellant acted to timely and efficiently fulfill her employment responsibilities under indisputably trying conditions.  Appellant's acts may not have sufficiently respected the residents' privacy, and her alleged statements to the residents, as reported by Heidi Olson, might have been inappropriate in tenor.  But, nonetheless, we are left with a firm conviction that the verdict of guilty is not supported by the record, even after giving due deference to the fact-finder.   The conviction must be set aside.