This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Donald R. Mulder

Filed September 2, 1997


Schumacher, Judge

Freeborn County District Court

File No. K295289

Hubert H. Humphrey III, Attorney General, Jonathan C. Audette, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for respondent)

Joel C. Golden, 1100 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for appellant)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.



Donald R. Mulder appeals from convictions of various illegal gambling crimes and possession of a handgun in a motor vehicle, arguing he was denied due process and the right to a speedy trial when his trial was delayed for more than two years. Mulder also argues the trial court erred in not granting a new trial when one of the state's exhibits malfunctioned during jury deliberations. We affirm.


On February 13, 1993, Freeborn County law enforcement officers and agents from the Gambling Enforcement Division of the Minnesota Department of Public Safety conducted an undercover investigation into Mulder's alleged activities in providing an illegal gambling device to a rural bar.

The officers enlisted the help of the bar owner to tape a conversation with Mulder in which money was exchanged for keeping the "Lucky-8 Line" slot machine in the bar. The officers watched Mulder drive from the bar with the machine in his car. After stopping Mulder, the officers found a loaded handgun. The officers could also plainly see the slot machine. A search of the car turned up $110,948 in cash. On March 10, 1993, Mulder was charged with misdemeanors for: (1) participating in the income of a gambling place; (2) illegally providing a gambling device; and (3) possession of a handgun in a motor vehicle.

On March 17, 1993, the county prosecutor dismissed the charges for the stated reason that there was an ongoing federal investigation into Mulder's activities. The prosecutor stated for the record that the dismissal was without prejudice and that charges could be brought in the future once investigation was complete.

From March 1993 to March 1995, the federal authorities investigated Mulder's activities, but brought no charges. Mulder eventually forfeited the seized cash to the federal government and IRS for unpaid back taxes.

On March 28, 1995, the county prosecutor refiled the same charges for the February 13, 1993 incident against Mulder. Mulder was also charged with one new misdemeanor: collecting the proceeds of a gambling device.

During trial, the slot machine was admitted into evidence. Several witnesses, including the bar owner, testified about how the machine functioned. Photographs of the machine were also admitted. Special Agent John Overland gave the jury a full demonstration of how the machine worked.

In closing arguments, both the prosecutor and Mulder's defense counsel urged the jury to play the machine. After the jury commenced deliberations, the court was informed the machine was not working. The trial court allowed Agent Overland, Mulder, and Mulder's counsel into the jury deliberation room to check whether the machine was properly set up and whether it would accept a bill through the changer. Agent Overland checked the machine and determined it did not work. The trial court then instructed the jury to continue deliberations without a functioning machine.

The jury found Mulder guilty on all four counts. Mulder's motion for a new trial was denied, and he appeals.


1. Mulder argues his right to a speedy trial was violated by the two-year delay in the filing of charges.

The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and by article 1, section 6 of the Minnesota Constitution. The Minnesota Rules of Criminal Procedure "prescribe[] a reasonable time period to effectuate the speedy trial right." State v. Kasper, 411 N.W.2d 182, 184 (Minn. 1987) (citing time limits for misdemeanors in Minn. R. Crim. P. 6.06). "A defendant shall be tried as soon as possible after entry of a not guilty plea." Minn. R. Crim. P. 6.06. If the defendant makes a demand for a speedy trial, the trial shall be within sixty days from the date of the demand. Id. The time period, however, does not begin to run earlier than the date of the not guilty plea. Id.

The record shows the initial charges were dismissed before Mulder entered a plea. Mulder also never made a demand for a speedy trial. Thus, Mulder's right to a speedy trial under the rules was not violated.

2. Mulder argues the delay violated his right to due process. To prove a due process violation based on a delay in proceedings, Mulder must show that the delay caused substantial prejudice to his right to a fair trial and was an intentional action by the state to gain a tactical advantage. State v. Huddock, 408 N.W.2d 218, 220-21 (Minn. App. 1987). The defendant must prove actual prejudice and cannot speculate on potential prejudice to the right to a fair trial. State v. Jurgens, 424 N.W.2d 546, 551 (Minn. App. 1988), review denied (Minn. July 6, 1988). Both tests must be established to prove a due process violation. State v. Hanson, 285 N.W.2d 487, 489 (Minn. 1979).

Mulder argues the delay was prejudicial because two defense witnesses, his son and sister-in-law, died during the delay. The record shows, however, that the two were not present for the incident in question. Mulder did not offer any credible evidence to show the two could have provided any relevant testimony for his defense.

Mulder claims that the state gained a tactical advantage by dismissing the charges because it allowed for more investigation and it dissolved the court's jurisdiction over the seized money, permitting the civil forfeiture action. The record shows, however, that the state did not conduct any further investigation on the charges after they were dismissed. The record shows that the charges were dismissed to allow for possible federal prosecution. There is no evidence in the record that the state gained any advantage from the federal forfeiture. Mulder has failed to show his due process rights were violated by the delay.

3. Mulder argues the trial court erred in denying his motion for a new trial on the ground that the trial court allowed the jury to continue deliberating after the slot machine malfunctioned.

The essential question for the jury was whether the machine was a game of chance or skill. See Minn. Stat. § 609.75, subd. 8(1) (1996) (defining a "video game of chance" as having "no substantial elements of skill involved"). Generally, the court may permit the jury to take exhibits into the jury room. Minn. R. Crim. P. 26.03, subd. 19(1).

If the jury, after retiring for deliberation, requests a review of certain * * * evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may * * * permit the jury to re-examine the requested materials admitted into evidence.

2. The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

Id., subd. 19(2). The trial court has broad discretion under the rule. State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983).

The record shows that a number of witnesses testified about how the machine operated and that Agent Overland demonstrated all the games on the machine to the jury. The jury observed how the machine operated and how each game was played. Based on this information, the jury could determine whether the machine involved games of skill or chance.[1] Mulder has failed to show how the jury's operation of the machine would have added anything to the testimony of the state's witnesses. It was within the trial court's discretion to allow the jury to continue deliberating without the functioning machine. Mulder has not shown any prejudice by the trial court's decision; therefore, any error by the trial court was harmless. Minn. R. Crim. P. 31.01; State v. Blasus, 445 N.W.2d 535, 540 (Minn. 1989).


[ ]1 Mulder argues the second game on the machine--a "hi-lo" card-type game--is a game of skill. Minn. Stat. § 609.75, subd. 8 (1996), specifically defines a game of "hi-lo" as a game of chance.