This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Timothy P. Schmalenberg,


Filed July 24, 2007


Stoneburner, Judge


Winona County District Court

File No. K005500


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


Charles E. MacLean, Winona County Attorney, Nancy L. Bostrack, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for respondent)


John M. Stuart, Minnesota Public Defender, Benjamin J. Butler, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant asserts that his conviction of third-degree controlled-substance crime must be reversed because a structural error occurred at trial and because the evidence is insufficient to support the conviction.  We affirm.



            Appellant Timothy Paul Schmalenberg and another person sold cocaine to a police informant in November 2004.  Schmalenberg was charged with one count of third-degree controlled-substance crime—sale.  Schmalenberg pleaded not guilty, and the matter was tried to a jury.

            Before the state had rested its case at trial, the district court told counsel that it had received a note from a juror addressed to the judge, that said:

In my notes I show the crime was committed on November 2, 2004.  The BCA expert . . . testified that she processed the evidence on November 18, 2005.  Could you please verify that over one year elapsed between the plus six arrest and the plus six investigation.”[1]


            The district court noted that the references to “plus six” appeared to be some sort of shorthand the juror was using that the district court did not understand.  The district court told counsel that it was not going to respond to the note, but wanted to alert counsel that it had received the communication.  Subsequently, the prosecutor, without objection, elicited testimony from the city’s evidence technician that the city’s delay in sending evidence to the BCA was caused by the city’s backlog of cases.  The prosecutor did not mention the delay in closing argument.  Defense counsel briefly mentioned the delay in closing argument.         

            The jury found Schmalenberg guilty, and he was sentenced to 57 months in prison.  This appeal followed.



I.          Juror’s question

            Schmalenberg first argues that allowing the prosecutor to elicit testimony in response to the juror’s question constituted structural error requiring reversal of his conviction and a new trial.  “[S]tructural errors are defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards.”  State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005) (quotation and quotation marks omitted).  Two examples of structural errors are the deprivation of the right to counsel and the presence of a partial judge.  Id. (citing Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1264-65 (1991)).  “Structural errors require reversal, for without the basic protections of the right to counsel and the right to an impartial judge, ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’” 253 (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265).

            In State v. Costello, the supreme court exercised its supervisory power to hold that “no court shall permit juror questioning during criminal trials.”  646 N.W.2d 204, 214 (Minn. 2002).  Although Costello does not explicitly state that allowing juror questioning constitutes a structural error, it held that because it is not possible to quantify the effects of such an error, the harmless-error analysis is inappropriate when such error occurs.  Id. at 215.  Costello was granted a new trial, and the supreme court stated that the holding in Costello “applies . . . prospectively to similar cases where the issue has been preserved.”  Id.

            The instant case is distinguishable from Costello in two important respects.  First, in this case, the judge did not invite jurors to question witnesses, and second, in this case, Schmalenberg failed to object or seek a curative instruction.

            In Costello, the district court’s preliminary instructions informed the jury that it would be allowed to submit questions for the witnesses, outlined the process for submitting questions, and informed the jury that the district court would decide whether or not a particular question would be asked.  Id. at 205-06.  In this case, however, the district court’s preliminary instructions included the following:

Please remember now what you should not do during this trial.  You are not investigators.  You are not to go out and do any looking.  You are not to ask people about this case and above all you must not talk to anyone who is involved, the lawyers or the witnesses. . . . Keep your own counsel until such time as the case is finally submitted to you and your fellow jurors . . ..


We consider this distinction important because in Costello, the supreme court was particularly concerned that:

                        To the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case.  Therefore, with such encouragement, there is an increased risk that jurors will inevitably . . . draw conclusions or settle on a given legal theory before the parties have completed their presentations, and before the court has instructed the jury on the law of the case. 211 (quotations and citations omitted).  In this case, the jurors were instructed not to ask questions, minimizing the risk of jury partiality that was present in Costello.

            Schmalenberg argues that despite this difference, allowing the question to be asked in his case assisted the prosecution, also a concern raised by the supreme court in Costello.

                        In addition to our concern about the impact that juror questioning will have on juror impartiality, we also are concerned that the practice may affect the burden of proof and production . . . . Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors . . . .Because the practice of juror questioning can actively assist the state in meeting its burden, the jurors’ role may be compromised. 211-12.  But in Costello,the supreme court stated that “a court rule allowing juror questions” creates error that “must be analyzed differently than in cases where jurors spontaneously ask to question witnesses.” 215.  The supreme court distinguished Costello from State v. Crawford,96 Minn. 95, 98-100, 104 N.W. 822, 823-24 (1905), which analyzes the effect on a murder conviction of a juror’s unobjected-to spontaneous questioning of a witness permitted by the trial court.  Costello, 646 N.W.2d at 207.

            The supreme court in Crawford, considered whether the juror questioning so violated the substantial rights of the accused “as to make it reasonably clear that a fair trial was not had.”  Crawford,96 Minn. at 103, 104 N.W. at 825 (quotation omitted).  The supreme court concluded that the questioning did not constitute error or result in an unfair trial, and upheld Crawford’s conviction.  Id.  We conclude that the Crawford analysis, rather than the Costello analysis, is more applicable to the case before us.

            Furthermore, Costello applies prospectively only to “similar cases where the issue has been preserved.” 215.  Here, Schmalenberg failed to preserve the issue with a valid objection and did not ask for a curative instruction, therefore Costello does not apply. 

            For an appellate court to grant relief for “an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If all three prongs of this test are satisfied, the court may “remedy the error to ensure fairness and the integrity of the judicial proceedings.”  State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). 

            An error is “plain” if it is clear or obvious.  Id. at 917.  The error must be plain at the time of the appeal.  Id. In this case, the district court neither solicited the juror’s question nor intended to respond to the question.  The district court merely communicated the juror’s question to the attorneys, which was not improper.  See State v. Moon,717 N.W.2d 429, 441-42 (Minn. App. 2006) (stating that “[a]ll communications between the district court and the jury should take place in open court and in the defendant’s presence, unless the defendant has personally and voluntarily waived the right to be present”), review denied (Minn. Sept. 19, 2006).  We conclude that the district court’s disclosure of the juror’s question to the attorneys and failure to sua sponte preclude either party from eliciting the information sought by the juror, do not constitute plain error.

            Because we have not found plain error, we need not reach the third prong of the plain-error test, which examines whether “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741.  Even if we were to reach this prong, however, we would conclude that, in this case, any error was not prejudicial.  Error is prejudicial if there is a “reasonable likelihood” that the error “had a significant effect” on the jury’s verdict.  Id.(quotation omitted).  “[A] defendant is entitled to a fair trial, not an error-free trial.”  State v. Clark,722 N.W.2d 460, 469 (Minn. 2006). 

            The issue at trial was whether Schmalenberg illegally sold a controlled substance to Johnson.  Prompted by the juror’s request for clarification that more than a year elapsed before the substance that Schmalenberg gave to Johnson was sent to BCA for further testing, the prosecutor asked Officer Evans why there was such a delay.  The juror’s question, while not entirely clear, appeared to want verification that a significant amount of time elapsed between the city’s having obtained the controlled substance and its submission to the BCA for testing.  Neither the question nor the answer involved any element of the charge against Schmalenberg, and neither party used the information elicited to argue about any element of the crime.  Schmalenberg has not identified any way that the information prejudiced the verdict.

II.        Sufficiency of the evidence

            Schmalenberg also argues that his conviction must be reversed because the state did not present enough credible evidence for a jury to establish his guilt beyond a reasonable doubt.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when 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).  The reviewing court must 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).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  

            Schmalenberg asserts that the testimony of “a paid informant of highly questionable reliability due to his financial motivations and [his] prior drug use,” was insufficient to support Schmalenberg’s conviction because there was no corroborating evidence to show that the cocaine that the informant gave to the police came from Schmalenberg rather than the unidentified person who was with Schmalenberg. 

            “[A] conviction may rest on the testimony of a single credible witness.”  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).  The credibility of a witness “is peculiarly within the competence of the jury whose common experience affords sufficient basis for assessment of credibility.”  State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984).

            The jury found the informant’s testimony to be credible.  The informant testified that when he arrived at the location of the buy, Schmalenberg said he was “going to get some stuff” and asked the informant if he wanted anything.  The informant testified that he gave Schmalenberg $50, and Schmalenberg and another man left.  The informant testified that Schmalenberg and his companion returned 15-20 minutes later with the cocaine, they split the cocaine into separate packages, and Schmalenberg gave the cocaine to the informant.  Investigator Gagnon testified that the informant’s version of the events was consistent with his observations from outside the home and his identification of the voices on the audio tape.  The informant’s testimony was also corroborated by the audio recording, which was played for the jury. 

            Schmalenberg asks this court to adopt a per se rule that the testimony of a paid police informant must be corroborated.  But it is not the role of this court to make such changes in the law.  See Northfield Ins. Co. v. St. Paul Surplus Lines Ins. Co., 545 N.W.2d 57, 62 (Minn. App. 1996) (stating that “[t]he Minnesota Supreme Court is the appropriate forum to address a question regarding the extension of existing law”) (quotation omitted), review denied (Minn. June 19, 1996).

            Given this court’s deference to the jury’s credibility determinations and viewing the facts in the light most favorable to the verdict, we conclude that the evidence was sufficient to support the conviction. 

            Schmalenberg’s pro se supplemental brief did not raise any additional arguments of merit.


[1] The note is not in the district court file. Wording of the note was placed on the record by the district court in its discussion with counsel.  It is not clear from the record whether the note contained the words “plus six” or symbols “+6”.