This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0560
State of Minnesota, Respondent,
vs.
Nicholas Lee Hill, Appellant.
Filed February 9, 2026 Affirmed in part, reversed in part, and remanded Johnson, Judge Concurring in part, dissenting in part, Reyes, Judge
Hennepin County District Court File No. 27-CR-20-11630
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Robert I. Yount, Adam E. Petras, Assistant County Attorneys, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Hennepin County judge found Nicholas Lee Hill guilty of attempted first-degree
criminal sexual conduct after determining that the state had proved the elements of the offense and that Hill had not proved the defense of mental illness. We conclude that Hill
has not established that the district court engaged in an independent investigation of facts
outside the record when reconsidering its earlier denial of Hill’s pre-trial motion to
suppress evidence. We also conclude that the district court erred when making findings of
fact concerning the first phase of trial by considering statements Hill made during a mental
examination conducted pursuant to rule 20.02 of the rules of criminal procedure. We
further conclude that Hill is not entitled to relief for any of the reasons asserted in his pro
se supplemental brief. Accordingly, we affirm in part, reverse in part, and remand for
further proceedings.
FACTS
The incident that gives rise to this appeal has been thoroughly described in two prior
appellate opinions and need not be repeated here. See State v. Hill, 23 N.W.3d 824, 826-
27 (Minn. 2025) (Hill II); State v. Hill, 10 N.W.3d 317, 319-20 (Minn. App. 2024) (Hill I),
rev’d, 23 N.W.3d 824 (Minn. 2025). The facts relevant to the issues presently before the
court, which are primarily procedural in nature, were not described in the prior appellate
opinions and are described below, both in this section and in our discussion of the parties’
respective arguments. The procedural history is complicated by multiple factors, including
the fact that the district court conducted hearings on suppression issues after the
commencement of trial and began the second phase of trial without having made findings
of fact and conclusions of law with respect to the first phase.
2 Charges
In May 2020, the state charged Hill with attempted first-degree criminal sexual
conduct while armed with a dangerous weapon, in violation of Minn. Stat. § 609.17,
subd. 1 (2018), and Minn. Stat. § 609.342, subd. 1(d) (2018). The state later amended the
complaint by adding a charge of attempted first-degree criminal sexual conduct while using
force or coercion to cause personal injury, in violation of Minn. Stat. § 609.17, subd. 1
(2018), and Minn. Stat. § 609.342, subd. 1(e)(i) (Supp. 2019).
Pre-Trial Proceedings
In July 2020, while represented by a public defender, Hill moved to suppress
evidence of statements he made to an investigating officer two days after the incident. Hill
argued that he lacked the ability to knowingly waive his right against self-incrimination or
his right to the assistance of counsel because of “cognitive limitations” and because he
“was not in a coherent state of mind.” In September 2020, the district court denied the
motion. Based in part on its review of an audiorecording of the interview, the district court
determined that Hill was competent to waive his Miranda rights.
In April 2021, the district court ordered a mental examination of Hill pursuant to
rule 20.02 for the purpose of determining his mental state at the time of the incident. The
rule 20.02 examination was conducted by Elizabeth J. Barbo, Ph.D., L.P., who submitted
an 11-page report in June 2021. In her written report, Dr. Barbo determined that Hill
understood the nature of his actions and understood that his actions were wrong.
Accordingly, Dr. Barbo opined that Hill “was not laboring under a defect of reason, due to
mental illness or cognitive impairment that would have prevented him from knowing the
3 nature of the act constituting the offense, or that the act was wrong, and therefore he does
not qualify for a M’Naghten defense.” 1
In October 2021, Hill waived his right to counsel and chose to represent himself.
At a hearing in March 2022, Hill requested public funds to retain an expert witness who
might provide evidence relevant to whether his statements to the investigating officer were
unreliable on the ground that he was taking a particular prescription medication. Hill also
requested public funds for a second rule 20.02 examination so that he might develop
evidence relevant to his mental-illness defense. In addition, Hill asked the district court to
reconsider its September 2020 denial of his motion to suppress evidence of the statements
he made to the investigating officer. The district court granted Hill’s request for expert-
witness fees, conditioned on Hill’s identification of the proposed expert and documentation
that he was taking the prescription medication at the time of the incident. The district court
reserved ruling on Hill’s request for a second rule 20.02 examination and provisionally
denied Hill’s request for reconsideration of his motion to suppress evidence.
In May 2022, the district court authorized the expenditure of funds for Scott A.
Fischer, Ph.D. to conduct a second rule 20.02 examination. In August 2022, Dr. Fischer
submitted a six-page report, which indicates that he reviewed a videorecording (not an
1 Under Minnesota law, a person with a mental illness or cognitive impairment may be “excused from criminal liability” if “at the time of committing the alleged criminal act the person was laboring under such a defect of reason . . . as not to know the nature of the act, or that it was wrong.” Minn. Stat. § 611.026 (2018). The defense is known as the M’Naghten defense because it follows the rule of a historic English case. See State v. Roberts, 876 N.W.2d 863, 867 (Minn. 2016) (citing M’Naghten’s Case (1843) 8 Eng. Rep. 718, 722, 10 Cl. & Fin. 200, 210).
4 audiorecording) of the investigating officer’s interview of Hill. Dr. Fischer determined
that Hill “was experiencing symptoms of a psychotic disorder at the time of his alleged
offense.” Nonetheless, Dr. Fischer agreed with Dr. Barbo that Hill “does not meet criteria
for a M’Naghten defense” and opined that “available information does not suggest a level
of impairment so severe that he would not have understood that what he was doing or that
committing sexual assault would be wrong.”
Reconsideration of Motion to Suppress Evidence, First Segment
On August 15, 2022, the district court conducted an evidentiary hearing on Hill’s
request for reconsideration of his motion to suppress evidence. Dr. Fischer and Dr. Barbo
testified, but Hill did not complete his direct examination of Dr. Barbo before the district
court adjourned the hearing at 5:39 p.m.
At a scheduling hearing two days later, Hill asserted that Dr. Barbo had access to a
videorecording of the investigating officer’s interview of him before she completed her
written report. The district court stated that Hill was free to examine Dr. Barbo about that
issue. After further discussion, the district court noted that it did not have the
videorecording when it ruled on Hill’s suppression motion in September 2020. In
discussing the remainder of the evidentiary hearing, the district court commented, “I
assume somebody’s going to offer me that video,” but that if neither party did so, the
evidentiary record would consist of the two experts’ written reports. Later in the hearing,
the district court stated that it would consider the two written reports, “along with the video
itself if somebody offers it,” before ruling on the suppression issue.
5 The case was set for trial on Wednesday, September 7, 2022. When the parties
appeared on that date, Hill requested that the district court resume the evidentiary hearing
on his suppression motion so that he could complete his examination of Dr. Barbo. Hill
completed his direct examination, the prosecutor conducted cross-examination, and Hill
conducted re-direct examination. Hill said that he wished to examine another witness, who
was not in the courtroom. The district court stated its intention to begin the trial after lunch
and told Hill that, if he was able to arrange the appearance of the absent witness, “we’ll
take a break in the proceedings and have that testimony” for purposes of the suppression
issue.
Hill waived his right to a trial by jury. The prosecutor said that the state’s first
witness in the first phase of trial would be the alleged victim, C.L., who was not then at the
courthouse. The prosecutor expressed his intention to contact her to arrange for her
testimony after lunch.
When the district court called the matter for trial after lunch, the prosecutor stated
that C.L. was unavailable that afternoon because she was scheduled to be out of town on a
pre-planned vacation, which involved air travel, through the remainder of the week. The
prosecutor stated that he could call other first-phase witnesses the following morning. The
district court stated that it would receive testimony from the state’s first-phase witnesses
and then adjourn until Tuesday, September 13, 2022, when the state could call C.L. The
district court asked the prosecutor whom the state would call in the second phase of trial,
and the prosecutor said he would call only Dr. Barbo. The district court stated that it would
“take this all out of order” and would receive Dr. Barbo’s testimony relevant to Hill’s
6 mental-illness defense on Monday, September 12, 2022. The prosecutor expressed concern
that if the district court “hasn’t reached a verdict on the guilt phase, to start taking testimony
on the affirmative defense of not guilty by mental illness would be looked upon poorly and
possibly result in reversal, which we want to avoid at all costs.” The district court noted
the objection but did not alter its plan. Hill did not object.
First Phase of Trial, First Segment
The prosecutor gave an oral opening statement. Hill reserved his opening statement.
The district court adjourned for the day.
Reconsideration of Motion to Suppress Evidence, Second Segment
On the following morning, Thursday, September 8, 2022, Hill called as a witness a
psychiatric physician assistant for purposes of his suppression motion. There was no
objection, the district court granted the request, and the witness testified. Hill testified in
support of his suppression motion. The district court orally denied the suppression motion.
First Phase of Trial, Second Segment
The state then called its first witness in the first phase of trial, a former co-worker
of C.L. During a break in that witness’s testimony, Hill stated that he wanted to reopen the
record of the suppression issue the following week, when he hoped to procure the testimony
of the investigating officer who interviewed him two days after the incident. The district
court reserved ruling on the request. In discussing the relevance of the then-former
officer’s testimony, the district court stated, “I’ll note for the record that in making my
ruling denying the motion for reconsideration of my earlier ruling denying the motion to
7 suppress, that part of my factual basis was watching the video, listening to the video,
reading the transcript of the video, and forming my own impression.”
After trial resumed, the state offered the videorecording during the testimony of a
police officer. The exhibit was received without objection. The hour-long videorecording
includes the 20-minute interview as well as time before and after the interview in which
Hill is alone and talking to himself, but the prosecutor published only the 20-minute
interview while in the courtroom. After three of the state’s witnesses had completed their
testimony, the district court adjourned for the day.
Reconsideration of Motion to Suppress Evidence, Third Segment
The parties appeared again on the afternoon of Tuesday, September 13, 2022.
Consistent with Hill’s request on Thursday, September 8, 2022, the district court reopened
the record of the suppression motion. Hill called the former officer who had interviewed
him two days after the incident. At the conclusion of the former officer’s testimony, the
district court announced the conclusion of the reopened hearing on the suppression issue
and asked the state to call its next trial witness.
First Phase of Trial, Third Segment
The state called C.L. At the conclusion of her testimony, the state rested. Hill
waived his opening statement and rested. After further discussion, the district court stated:
“I’m not going to reach a verdict . . . one way or another today. I’m not going to do that
. . . until I receive the briefing on both of the issues, both the underlying case and the not
guilty by reason of mental illness case.” Neither party objected at that time.
8 Second Phase of Trial
The district court asked the parties about their plans for presenting evidence in the
second phase of trial. Hill stated his intention to call Dr. Fischer and one other witness.
When the district court asked about the timing of Dr. Fischer’s testimony, Hill stated that
he was in the hallway. In response, the district court stated, “Oh, well, let’s do that then.”
Dr. Fischer was sworn and testified. The parties agreed that Dr. Fischer’s testimony
in the suppression hearing and his written report would be incorporated into the evidentiary
record of the second phase of trial and that the parties could ask additional questions. Hill
waived his right to testify in the second phase of trial. The district court adjourned for the
day at approximately 4:30 p.m.
The second phase of trial resumed two days later, on Thursday, September 15, 2022.
Hill rested. The state called Dr. Barbo. The district court accepted Dr. Barbo’s written
report and prior testimony from the suppression hearing as part of the evidentiary record
of the second phase of trial and allowed the parties to ask additional questions. The state
rested. The district court requested that the parties submit written closing arguments
addressing the issues in both the first and second phases of trial.
Findings of Fact and Conclusions of Law
In October 2022, the district court filed a 17-page order in which it found that the
state had not proved the elements of the first charged offense (attempted first-degree
criminal sexual conduct while armed with a dangerous weapon), that the state had proved
the elements of the second charged offense (attempted first-degree criminal sexual conduct
9 while using force or coercion to cause personal injury), and that Hill had not proved his
mental-illness defense.
Post-Trial Motions and Sentencing
In December 2022, Hill filed two post-trial motions in which he made numerous
requests for a new trial or dismissal. In January 2023, the district court filed a 20-page
order denying Hill’s request for a new trial and a 15-page order denying Hill’s request for
a dismissal on speedy-trial grounds. The district court imposed a sentence of 180 months
of imprisonment.
Appeal
Hill timely filed a notice of appeal. His appellate attorney made three arguments on
his behalf. This court granted relief on Hill’s first argument and reversed his conviction,
concluding that the state failed to “present evidence independent of Hill’s confession that
reasonably tends to prove that he intended to commit the underlying crime of first-degree
criminal sexual conduct.” Hill I, 10 N.W.3d at 327-28. Because we reversed outright for
insufficient evidence, we did not consider Hill’s other arguments. Id. at 321.
The supreme court granted further review and, after briefing and oral arguments,
reversed this court’s opinion on the ground that “the State satisfied its burden of
establishing the corpus delicti for attempted first-degree criminal sexual conduct, as
required by section 634.03” of the Minnesota Statutes. Hill II, 23 N.W.3d at 837. The
supreme court remanded the appeal to this court for consideration and resolution of Hill’s
remaining appellate arguments. Id.
10 This court reinstated the appeal and requested supplemental briefs, which have been
filed. We now consider and resolve the two other issues raised by Hill’s appellate attorney
as well as the issues raised by Hill in a pro se supplemental brief.
DECISION
I. Motion to Suppress
Hill argues that, when reconsidering his motion to suppress evidence, the district
court erred by “independently obtaining, examining, and relying on evidence that was not
offered or received in evidence in order to deny Hill’s motion to suppress.” The evidence
to which Hill refers is the videorecording of the investigating officer’s interview of him
two days after the incident.
A criminal defendant has a constitutional right to due process, which includes the
right to an impartial judge. State v. Duol, 25 N.W.3d 135, 141 (Minn. 2025) (citing U.S.
Const. amend. XIV and Minn. Const. art. I, § 7). This right “requires that conclusions
reached by the trier of fact be based upon the facts in evidence . . . and prohibits the trier
of fact from reaching conclusions based on evidence sought or obtained beyond that
adduced in court.” State v. Dorsey, 701 N.W.2d 238, 249-50 (Minn. 2005). Accordingly,
the supreme court has adopted a “bright-line rule that prohibits the trier of fact from
conducting deliberate independent investigations of extra-record facts and then considering
those facts.” Duol, 25 N.W.3d at 142 (quotations omitted). This rule applies at all stages
of a criminal case. Id. at 142-43. A violation of this right is a structural error, which
requires reversal without regard to whether an appellant can establish prejudice. Dorsey,
701 N.W.2d at 253.
11 Notwithstanding the foregoing, the supreme court has stated, “Although a trier of
fact has a duty to decide the case based on the evidence presented at trial, not all violations
of that duty transform an impartial trier of fact into a partial trier of fact.” State v. Lopez,
988 N.W.2d 107, 117-18 (Minn. 2023). In Lopez, the supreme court distinguished Dorsey
on two grounds: first, that the judge in Lopez “did not ‘openly question’ the veracity of
Lopez’s factual assertions during his testimony” and, second, that “the record does not
support a reasonable inference that the court conducted an independent investigation.” Id.
at 120-21.
To determine whether the district court in this case was partial or impartial, we begin
with the fact that the district court granted Hill’s request for reconsideration of its earlier
denial of Hill’s motion to suppress evidence. The district court also granted Hill’s request
for expert-witness fees, which allowed Hill to retain Dr. Fischer, who prepared a written
report, which Hill offered during the reopened suppression hearing. Dr. Fischer’s report
states that he reviewed a videorecording of the investigating officer’s interview of Hill,
which factored into his opinion that Hill “was experiencing symptoms of a psychotic
disorder at the time of his alleged offense.” At the reopened suppression hearing, Dr.
Fischer testified that he believed that Dr. Barbo, with whom he disagreed in part, had not
reviewed the videorecording. When Dr. Barbo testified at the evidentiary hearing, Hill
questioned her about the videorecording. Thus, the videorecording was an important part
of Hill’s request for reconsideration. The district court could not fully reconsider the
suppression issue without viewing the videorecording.
12 Hill’s argument is based on the premise that the district court “independently
obtain[ed]” the videorecording. In Dorsey, it was undisputed that the district court had
“independently investigated a fact not introduced into evidence.” 701 N.W.2d at 250.
Indeed, the district court in Dorsey fully disclosed the nature, scope, and results of its
independent investigation on the record. Id. at 243-44. In this case, however, there is no
record of an independent investigation and no indication in the record that the district court
took the initiative of seeking out the videorecording. Hill asserts, “The only apparent
explanation is that the judge somehow independently obtained a copy of the video . . . .”
Hill’s use of the word “somehow” confirms that the manner in which the district court
obtained the videorecording is unknown. It is possible that the district court did not actively
seek out the videorecording but, rather, was the passive recipient of it. The record reflects
only that the videorecording was offered by the state and admitted as an exhibit in the first
phase of trial. This is not a case in which a district court’s deliberate and independent
conduct is the only reasonable explanation of how the district court came into possession
of evidence that was not offered by a party. Cf. Duol, 25 N.W.3d at 142 (noting state’s
concession that, given “amount and specificity” of “extra-record material included in the
district court’s order, it logically follows that the district court inquired into this
information”). Rather, this case is like Lopez in that “the record does not support a
reasonable inference that the court conducted an independent investigation.” 988 N.W.2d
at 120.
In addition, it is notable that the district court’s investigation in Dorsey sought and
yielded information that was not previously known to the parties. Dorsey, 701 N.W.2d at
13 243-44. In this case, however, the videorecording was well known to and was possessed
by both parties. In addition, the videorecording had been reviewed by two expert
witnesses, who testified about the videorecording during the suppression hearing. When
the district court noted that neither party had yet formally offered the videorecording,
neither party raised any concerns about its admissibility. In his post-hearing memorandum,
Hill referred to the videorecording.
Furthermore, the district court’s review of the videorecording could be construed as
an accommodation for a self-represented litigant who struggled to deal with the difficulties
of trial. It often is said that “pro se litigants are generally held to the same standards as
attorneys and must comply with court rules.” Fitzgerald v. Fitzgerald, 629 N.W.2d 115,
119 (Minn. App. 2001). But it also is true that “some latitude and consideration is provided
by all courts to” pro se litigants. Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366,
367 (Minn. App. 1983). This court has held that a district court may commit error if it does
not fulfill its “duty to ensure fairness to a pro se litigant by allowing reasonable
accommodation so long as there is no prejudice to the adverse party.” Kasson State Bank
v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987). We recently applied that principle
in concluding that a district court erred by not assisting a self-represented litigant who had
prepared exhibits, submitted them to the court in advance, and used them during an
evidentiary hearing but never formally offered them. Jackson v. Daniel, No. A20-1366,
2021 WL 4259151, *3 (Minn. App. Sept. 20, 2021). In this case, the district court avoided
that pitfall by ensuring that the evidence on which Hill intended to rely in the reopened
14 suppression hearing actually was considered by the court, even though neither party
formally offered it.
We generally presume that “a judge has discharged his or her judicial duties
properly.” McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998). Hill has not rebutted
that presumption. Thus, based on our review of the entire record and the unique
circumstances of this case, we conclude that Hill has not established that the district court
erred by conducting an independent investigation into the videorecording for the purpose
of Hill’s motion to suppress evidence.
II. Trial
Hill also argues that the district court erred by not complying with rule 20.02 during
the court trial. Specifically, Hill contends that the district court erred in two “interlinked”
ways: first, by “holding the mental-illness stage of the trial before deciding whether Hill
was guilty of the offense” and, second, by “using statements Hill made during a rule 20
exam to find him guilty.”
If a defendant has asserted a mental-illness defense, the district court may order a
mental examination. Minn. R. Crim. P. 20.02, subd. 1. If the defendant relies on both a
mental-illness defense and a defense of not guilty, “the court must separate the two
defenses.” Minn. R. Crim. P. 20.02, subd. 7(a). Specifically, “[t]he defense of not guilty
must be heard and determined first,” and “[t]he defense of mental illness or cognitive
impairment must be heard and determined second.” Id.; see also Minn. R. Crim. P. 20.02,
subd. 7(c). In addition, “the statements the defendant made for the purpose of the mental
examination and any evidence derived from the statements are admissible against the
15 defendant only at the mental illness or cognitive impairment stage of the trial.” Minn. R.
Crim. P. 20.02, subd. 6(2) (emphasis added).
We consider the second part of Hill’s argument before the first part.
A. Consideration of Rule 20.02 Examination
1. Whether District Court Erred
As stated above, Hill contends that the district court erred by “using statements Hill
made during a rule 20 exam to find him guilty.” The parties agree that Dr. Barbo’s
testimony concerning statements Hill made during her rule 20 examination was admitted
in the second phase of trial, which was concerned only with Hill’s mental-illness defense,
but was not admitted in the first phase, which was concerned with whether the state had
proved the elements of the charged offenses.
Nonetheless, in its October 2022 post-trial order, the district court relied on Dr.
Barbo’s testimony in making findings of fact relevant to Hill’s not-guilty defense. The
district court found that Hill intended to commit sexual penetration without C.L.’s consent.
In making that finding, the district court relied primarily on the confession Hill made during
the investigating officer’s interview of him two days after the incident. In addition, the
district court explained its finding as follows:
It is also telling that Defendant changed his story of what happened during the apartment tour in his description of the events to Dr. Barbo—over a year after the incident and after he had been charged. Defendant admitted to Dr. Barbo that he “pulled a knife” on C.L. and knocked her to the ground, but he denied any sexual intent in his actions. He also said he initially went to the apartment complex to look at an apartment for his father. He further claimed that it was C.L. who first acted aggressively toward him. This story does not align with C.L.’s
16 credible testimony, nor Defendant’s original admissions to police. Defendant’s attempts to reframe the story as an accidental physical assault on an “aggressive” C.L. tends to further show Defendant’s consciousness of guilt.
It is obvious that the statements referenced in this finding are statements that Hill
made to Dr. Barbo during her rule 20.02 examination. But those statements, as well as
“any evidence derived from the statements,” are inadmissible in the first phase of trial. See
Minn. R. Crim. P. 20.02, subd. 6(2). By expressly relying on evidence of statements Hill
made to Dr. Barbo during her rule 20.02 examination to make findings of fact on Hill’s
not-guilty defense, the district court violated rule 20.02 and the caselaw interpreting that
rule. See State v. Lefthand, 488 N.W.2d 799, 800-02 (Minn. 1992); State v. Villalobos, 613
N.W.2d 766, 769-70 (Minn. App. 2000), rev. denied (Minn. Sept. 13, 2000).
2. Whether Error is Reversible Error
Having determined that the district court erred, we must determine whether the error
is a reversible error or a harmless error. See Minn. R. Crim. P. 31.01. 2
In general, an error is a reversible error only if “there is a reasonable possibility that
the error significantly affected the verdict.” State v. Bigbear, 10 N.W.3d 48, 55 (Minn.
2024). Most often, the harmless-error test is applied to errors occurring during a jury trial,
in which the defendant’s guilt is determined by a general verdict, which does not reveal the
2 The state argues that this court should apply the plain-error test to this part of Hill’s second argument. The argument is without merit. Before the district court filed its order making findings of fact and conclusions of law, Hill did not know that the district court would consider statements he made during a rule 20.02 examination for the purpose of determining his not-guilty defense, in violation of rule 20.02, subdivision 6(2). Accordingly, Hill had no opportunity and, thus, no obligation to object. Hill did not forfeit this argument.
17 evidence on which jurors relied. In this case, however, Hill’s guilt was determined in a
court trial in which the district court made written findings of fact and conclusions of law.
In some cases involving a procedural error in a court trial, the appellate court rather
easily can conclude that the error did not affect the verdict because the district court said
so. For example, in State v. Holliday, 745 N.W.2d 556 (Minn. 2008), the supreme court
concluded that the alleged error of admitting inadmissible hearsay evidence would be a
harmless error because the district court “indicated that [the challenged] evidence did not
affect its verdict” and “did not include in its findings of fact any information found solely
in” the challenged evidence. Id. at 568.
On the other hand, in some cases involving a procedural error in a court trial, the
appellate court rather easily can conclude that the error did affect the verdict. For example,
in State v. Spann, 986 N.W.2d 205 (Minn. 2023), the district court erred by expressly
invoking a legal doctrine that, as a matter of law, did not apply. Id. at 215-16. The supreme
court reasoned, “Given that the district court expressly stated that the basis for its finding
of Spann’s intent was its erroneous application of the transferred intent doctrine, we cannot
conclude that the verdict was surely unattributable to the district court’s error.” Id. at 216
(quotation omitted).
This case is unlike Holliday because the district court in this case did not disclaim
any reliance on statements Hill made to Dr. Barbo during her rule 20.02 examination. This
case is like Spann because the impact of the district court’s error is apparent on the face of
the order. The district court expressly referred to and relied on statements Hill made to Dr.
Barbo during her rule 20.02 examination—evidence that is admissible only in the second
18 phase of trial—when making findings of fact and conclusions of law concerning an issue
that needed to be determined in the first phase of trial. We must conclude that there is, at
the very least, “a reasonable possibility that the error significantly affected the verdict.”
See Bigbear, 10 N.W.3d at 55. Thus, the error is not a harmless error.
3. Appellate Remedy
Having determined that the district court committed reversible error, we must
determine the appropriate appellate remedy.
In his principal brief, Hill argued both that this court should reverse and remand for
a new trial and that we should “reverse his conviction and remand for further proceedings
consistent with this court’s opinion,” but he did not cite any authority for any particular
appellate remedy. The state initially argued only that this court should affirm with respect
to this issue, without making an alternative argument concerning the appropriate appellate
remedy in the event of reversible error. We requested supplemental memoranda
concerning the appropriate appellate remedy in the event that we concluded that the district
court erred by considering evidence of statements Hill made during a rule 20.02
examination for the purpose of determining his not-guilty defense. The parties have filed
supplemental memoranda, which are helpful.
In the only two precedential opinions involving the same type of error, the appellate
courts reversed and remanded for a new trial. Lefthand, 488 N.W.2d at 802; Villalobos,
613 N.W.2d at 770. But in each of those cases, the defendant’s guilt was determined by a
jury, apparently with a general verdict. Lefthand, 488 N.W.2d at 800; Villalobos, 613
N.W.2d at 768. A general verdict does not reveal to an appellate court the evidence on
19 which jurors relied. Consequently, the proper remedy in Lefthand and Villalobos was a
new trial. But Lefthand and Villalobos do not necessarily determine the remedy in this
case, which arises from a court trial, after which the district court filed an order with written
findings of facts and conclusions of law that explain the reasons for the court’s verdict and
the evidence on which the verdict is based.
In Spann, the supreme court reasoned that, in prior cases in which district courts
“misapplied the intent element in a bench trial,” the supreme court “reversed the conviction
and remanded to the district court to reconsider its verdict on the existing record.” 986
N.W.2d at 216 (citing State v. Al-Naseer, 734 N.W.2d 679, 689 (Minn. 2007), and State v.
Mauer, 741 N.W.2d 107, 116 (Minn. 2007)). The supreme court concluded in Spann that
“the proper remedy” was “to reverse Spann’s assault-fear conviction and remand to the
district court to reconsider its verdict on that count on the existing record.” Id. The remedy
ordered in Spann is consistent with the general proposition that “[r]emedies should be
appropriate to the violation, and a retrial is not required if a remand will remedy the
violation.” State v. Manska, 19 N.W.3d 196, 204 (Minn. 2025) (quotation omitted).
In this case, Hill is entitled to a determination of his not-guilty defense without
consideration of the statements he made during Dr. Barbo’s rule 20.02 examination. Hill’s
rights may be vindicated by a remand to the district court with instructions “to reconsider
its verdict on the existing record.” See Spann, 986 N.W.2d at 216. The proper “existing
record” is the evidentiary record created during the first phase of trial, which does not
include any evidence of statements Hill made during Dr. Barbo’s rule 20.02 examination.
Ordering reconsideration of Hill’s not-guilty defense without consideration of inadmissible
20 evidence is analogous to ordering reconsideration of a defendant’s guilt without
consideration of an inapplicable legal doctrine. See id.
Thus, given the facts and circumstances of this case, “the proper remedy” for the
district court’s error of considering Hill’s statements during Dr. Barbo’s rule 20.02
examination when making findings and conclusions on his not-guilty defense is a remand
to the district court with instructions to reconsider Hill’s not-guilty defense without
consideration of statements he made during Dr. Barbo’s rule 20.02 examination or any
evidence derived from those statements. See id.
B. Bifurcation
As stated above, Hill contends that the district court erred by “holding the mental-
illness stage of the trial before deciding whether Hill was guilty of the offense.” 3
Hill did not object at trial when the district court stated its intention to proceed with
the second phase of trial without having determined the merits of his not-guilty defense in
the first phase. Accordingly, we review for plain error. See Minn. R. Crim. P. 31.02.
Under the plain-error test, an appellant is entitled to relief on an issue to which no objection
3 One panel member, who dissents with respect to part II of the opinion of the court, asserts that Hill is not entitled to make the argument discussed in part II.B. on the ground that Hill “was not entitled to a bifurcated trial” for two reasons: first, he “filed an untimely notice of the defense of not guilty by reason of mental illness” and, second, “he did not present prima facie evidence of mental illness.” See infra D2-D3. But the state does not make either of those arguments. To the contrary, the state’s position is that “the district court properly bifurcated appellant’s trial.” Given that the district court actually bifurcated the trial, the district court was obligated to comply with the rules of criminal procedure governing bifurcated trials in cases in which a defendant asserts both a not-guilty defense and a mental-illness defense. In any event, the court also reverses and remands for the reasons stated in part II.A. and orders the same remedy for the errors in parts II.A. and II.B. Thus, the error identified in part II.B. is not essential to the court’s ultimate disposition.
21 was made at trial only if (1) there is an error, (2) the error is plain, and (3) the error affects
the appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If
these three requirements are satisfied, the appellant also must satisfy a fourth requirement:
that the error “seriously affects the fairness and integrity of the judicial proceedings.” State
v. Little, 851 N.W.2d 878, 884 (Minn. 2014); see also Pulczinski v. State, 972 N.W.2d 347,
356 (Minn. 2022). If any requirement of the plain-error test is not satisfied, this court need
not consider the other requirements. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012). 4
1. Whether District Court Committed Reversible Error
All four requirements of the plain-error test are satisfied. First, the district court
erred when it conducted the second phase of trial without having determined the issues
tried in the first phase. Second, the district court’s error is plain because it is obviously
contrary to the text of rule 20.02, subdivision 7, paragraphs (a) and (c). Third, the district
court’s error affected Hill’s substantial rights because the district court’s error caused the
district court to erroneously consider evidence of statements that Hill made during Dr.
Barbo’s rule 20.02 examination when determining Hill’s not-guilty defense. See supra
II.A.1. Fourth, the district court’s error seriously affected the fairness and integrity of the
trial because it frustrated important policies underlying rule 20.02. As the supreme court
explained in Lefthand, rule 20.02 “secur[es] the defendant’s Fifth Amendment right against
We acknowledge Hill’s argument that this error is a structural error. “Only a small 4
number of errors have been found to be structural errors.” State v. Kuhlmann, 806 N.W.2d 844, 851 (Minn. 2011). Hill does not cite any opinion in which an appellate court has concluded that a district court’s failure to bifurcate a trial pursuant to rule 20.02, subdivision 7, is a structural error.
22 self-incrimination” and, in addition, encourages defendants’ cooperation with rule 20.02
examinations. 488 N.W.2d at 801. The latter purpose is important because “a defendant’s
true mental condition would not be discovered in many instances unless the psychiatrist
can engage in a candid conversation with the defendant.” Id. Thus, the district court’s
error in not bifurcating Hill’s trial is a reversible error.
2. Appellate Remedy
Given that the district court’s error is a reversible error, we must determine the
proper appellate remedy. Hill was prejudiced by the district court’s failure to bifurcate the
trial in the same way and to the same extent that he was prejudiced by the district court’s
erroneous consideration of statements he made during Dr. Barbo’s rule 20.02 examination.
Hill has not identified any additional form of prejudice. Consequently, the proper remedy
for the district court’s failure to bifurcate Hill’s trial is the same remedy ordered for the
district court’s erroneous consideration of statements he made during Dr. Barbo’s rule
20.02 examination: a remand to the district court with instructions to reconsider Hill’s not-
guilty defense without consideration of statements he made during Dr. Barbo’s rule 20.02
examination or any evidence derived from those statements. See Spann, 986 N.W.2d at
216. 5
In his second supplemental brief filed in October 2025, Hill argues that we should 5
reverse and remand for a new trial in accordance with this court’s nonprecedential opinion in State v. Perkins, No. C0-98-1720, 1999 WL 710626 (Minn. App. Sept. 14, 1999), rev. denied (Minn. Nov. 23, 1999). A careful reading of that opinion reveals that this court identified two errors: ineffective assistance of counsel and a violation of rule 20.02, subdivision 6(3). Id. at *2. We said that “a new trial is the remedy” in the paragraph discussing ineffective assistance of counsel. Id. In one sentence, we determined that the district court “also violated court rules pertaining to the use of statements made during
23 III. Pro Se Supplemental Brief
Hill has filed a 45-page pro se supplemental brief in which he asserts 14 arguments.
Hill’s primary pro se argument is that the district court erred by denying his post-
trial motion for dismissal on speedy-trial grounds. The district court thoroughly analyzed
this issue in its 15-page post-trial order. The district court noted that Hill first demanded a
speedy trial on June 28, 2022, and that trial began 71 days later on September 7, 2022. The
district court reasoned that Hill’s constitutional right to a speedy trial was not violated
because the district court found good cause to continue the trial by 15 days after Hill
belatedly asserted his mental-illness defense and because Hill requested or was responsible
for numerous other delays The district court did not err in that reasoning. See State v.
DeRosier, 695 N.W.2d 97, 109 (Minn. 2005) (stating that “there is no speedy trial
violation” if “overall delay in bringing a case to trial is the result of the defendant’s
actions”).
Hill’s 13 other pro se arguments refer to a variety of issues. In general, the
remaining arguments are not well developed, lack argument, lack citation to legal authority,
or lack citation to the record. We have carefully reviewed those pro se arguments, and we
do not “see any obvious prejudicial error.” See State v. Montano, 956 N.W.2d 643, 652
(Minn. 2021); see also State v. Bartylla, 755 N.W.2d 8, 22-23 (Minn. 2008) (affirming
with respect to pro se issues “because no prejudicial error is obvious on mere inspection”).
court-ordered mental examinations.” Id. In any event, Perkins is a nonprecedential opinion and, thus, is not binding. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
24 Thus, the district court did not err in any of the ways asserted in Hill’s pro se
supplemental brief.
Affirmed in part, reversed in part, and remanded.
25 REYES, Judge (concurring in part, dissenting in part)
I concur with the majority that, by viewing appellant Nicholas Lee Hill’s
interrogation video, the district court did not conduct a deliberate, independent
investigation. However, as I did in our prior precedential opinion in this case, I respectfully
dissent. See State v. Hill, 10 N.W.3d 317, 328-33 (Minn. App. 2024) (Hill I) (Reyes, J.,
dissenting), rev’d, 23 N.W.3d 824 (Minn. 2025) (Hill II).
I disagree with the majority’s conclusion that the district court erred by relying on
the Minn. R. Crim. P. 20.02 mental examination in its conclusions of law that appellant
had the requisite intent to commit a sexual assault necessary for attempted first-degree
criminal sexual conduct. I would apply the plain-error standard to review this issue. Under
this standard, appellant did not meet his burden to prove that the district court committed
an error that affected his substantial rights. Moreover, given the unusual circumstances
surrounding this court trial, during which the district court went out of its way to assist the
self-represented appellant, I am not persuaded that the public would question the fairness
and integrity of the proceedings necessitating a new trial.
As an initial matter, I disagree with the majority’s application of the harmless-error
standard of review to the issue of whether the district court erred by “using statements Hill
made during a rule 20 examination to find him guilty.” Appellant does not identify when
he raised the specific objections before the district court that he raises now on appeal. And
I am unaware of any cases in which an appellate court has applied harmless-error review
to a similar factual scenario.
D-1 “Under the plain-error doctrine, a defendant must establish (1) an error, (2) that is
plain, and (3) that affects the defendant’s substantial rights.” Pulczinski v. State, 972
N.W.2d 347, 356 (Minn. 2022). “An error is plain if it is clear or obvious,” which is
typically established “if the error contravenes case law, a rule, or a standard of conduct.”
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotation omitted). “When the
defendant satisfies these requirements, an appellate court may correct the error only when
it seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Pulczinski, 972 N.W.2d at 356. Applying the plain-error standard, appellant has not met
his burden to show that he is entitled to relief.
Appellant argues that the district court erred by failing to find him guilty before
proceeding to the second phase of the bifurcated court trial, which led to the more serious
and reversible error of it relying on appellant’s statements in the rule 20.02 examination to
find him guilty. 1 I disagree. Appellant has not shown any error in the manner in which
the district court conducted the bifurcated court trial because he was not entitled to a
bifurcated trial in the first instance. Appellant filed an untimely notice of the defense of
not guilty by reason of mental illness. He filed it just before the trial started instead of
before the omnibus hearing, as required by Minn. R. Crim. P. 9.02, subd. 1(5)(c). Because
he filed an untimely notice, the district court had no obligation to conduct a bifurcated trial.
1 I disagree with the majority that these are two separate errors. Even appellant acknowledges that these are two “interlinked” issues. Regardless of any alleged error in not properly conducting the bifurcated trial, assuming appellant was entitled to a bifurcated trial in the first instance, the question is whether appellant’s rule 20.02 statements were considered in determining his guilt. D-2 See Minn. R. Crim. P. 20.02, subd. 7(a) (mandating bifurcated trial only if notice has been
given under rule 9.02, subdivision 1(5)).
In addition to filing an untimely notice, appellant was not entitled to raise a mental-
illness defense because he did not present prima facie evidence of a mental illness. Before
the bifurcated trial process under Minn. R. Crim. P. 20.02 is required, “a defendant must
present prima facie evidence of mental illness.” State v. Martin, 591 N.W.2d 481, 487
(Minn. 1999). “[E]vidence submitted by the defendant to warrant a bifurcated trial must
be sufficient to establish, without consideration of any contradictory evidence, that
‘because of mental illness or cognitive impairment, the defendant, at the time of
committing the alleged criminal act, was laboring under such a defect of reason as not to
know the nature of the act or that it was wrong.’” State v. Hinckley, 5 N.W.3d 680, 686
(Minn. 2024) (quoting Minn. R. Crim. P. 20.02, subd. 4(b)). In other words, appellant had
to show that (1) he had a mental illness and (2) due to that mental illness, he did not know
the nature of his acts or that they were wrong. The state’s expert did not diagnose appellant
with a mental illness or cognitive impairment. Appellant’s expert concluded that appellant
was suffering from mental illness. However, both experts agreed that appellant did not
meet the standard necessary to satisfy the mental-illness defense because he knew the
nature of his act and that it was wrong. Because appellant filed an untimely notice, and he
did not make a prima facie showing that he was entitled to raise the mental-illness defense,
the district court did not plainly err because it had no obligation to conduct a bifurcated
trial.
D-3 I also disagree that the district court’s reference to appellant’s self-serving
statements made in the rule 20.02 examination in which he denied sexual intent and
accused the victim of being threatening significantly affected the verdict. To satisfy the
third prong of the plain-error test, appellant must show that “the error was prejudicial and
affected the outcome of the case.” 2 Matthews, 779 N.W.2d at 549. To determine whether
appellant can meet this burden, we consider several nonexclusive factors, including:
“(1) the manner in which the party presented the evidence, (2) whether the evidence was
highly persuasive, (3) whether the party who offered the evidence used it in closing
argument, and (4) whether the defense effectively countered the evidence.” State v.
Bigbear, 10 N.W.3d 48, 54 (Minn. 2024) (quotation omitted). Additionally, “[s]trong
evidence of guilt undermines the persuasive value of wrongly admitted evidence.” Id.
Some of the factors identified in Bigbear do not apply to the circumstances here—
a court trial in which the district court properly received evidence of appellant’s mental
condition at the mental-illness phase of the bifurcated trial, the parties submitted written
closing arguments, and the district court and not a party referenced appellant’s statements
in the mental examination in its conclusions of law finding him guilty. Additionally, unlike
a jury trial in which the factfinder’s decision-making is unknown, we know what evidence
the district court relied on in reaching its verdict. The district court relied on appellant’s
2 Because the third prong of the plain-error standard “is the equivalent of a harmless error analysis,” State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011), even if I applied the harmless-error standard, appellant’s argument would likewise fail. D-4 statement in his custodial interrogation that he “thought about raping her” to conclude that
he had the intent to commit sexual penetration without victim’s consent. His confession is
direct evidence of his intent. See State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (relying
on statement, “I want him dead,” as direct evidence of mens rea). The district court did
not rely on appellant’s inconsistent, self-serving statements in the rule 20.02 examination
to show his intent, an essential element of the crime of which he was convicted. See Minn.
Stat. § 609.17, subd. 1 (2018); Minn. Stat. § 609.342, subd. 1(e)(i) (Supp. 2019). Rather,
the court considered these statements merely as showing consciousness of guilt.
Additionally, the district court’s conclusions of law provided compelling reasoning for its
finding of intent and is well supported independent of its mention of the examination
statements. In light of this and the district court’s express reliance on appellant’s
confession as evidence of his intent, I am not persuaded that any alleged error in
considering his contrary statement in the rule 20.02 examination affected appellant’s
substantial rights.
Finally, this is not a case in which failing to correct this unobjected-to error “would
have an impact beyond the current case by causing the public to seriously question whether
our court system has integrity and generally offers accused persons a fair trial.” Pulczinski,
972 N.W.2d at 356. Quite the contrary. The record shows that the district court bent over
backwards to ensure that appellant, a self-represented litigant, had a fair trial by: appointing
advisory counsel; allowing appellant to relitigate the admissibility of his confession and
reopen the record to consider his arguments that his confession was involuntary because
he was suffering delusions; approving funds so he could retain an expert to support these
D-5 claims; continuing the trial to permit him to offer a mental-illness defense; and
accommodating the availability of his witnesses for his suppression hearing and for trial.
Based on the circumstances of this case, even if I were to assume that it was error for the
district court to consider appellant’s self-serving statement in the rule 20.02 examination
in the guilt-phase of the court trial, I am not persuaded that failing to correct this error
would cause the public to question seriously the fairness, integrity, or public reputation of
judicial proceedings. This requirement is difficult to satisfy, and I would conclude that
appellant fails to do so. Ramon v. State, 399 N.W.2d 138, 141 (Minn. App. 1987) (“Courts
exercise their power to notice plain error only in exceptional circumstances.” (emphasis
added)).
I would therefore affirm appellant’s conviction.
D-6