of Appellate Courts Dakota County Chutich, J.
Ellison, Attorney General, Saint Paul, Minnesota; and James
C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth,
Anna Light, Assistant Dakota County Attorneys, Hastings,
Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Richard
Schmitz, Assistant State Public Defender, Saint Paul,
Minnesota, for appellant.
district court judge did not err in continuing to preside
over appellant's jury trial after appellant's
counsel, during an ex parte conversation, made a comment that
suggested that appellant might commit perjury.
Appellant failed to establish that he was prejudiced by his
counsel's disclosure of client communications during an
ex parte conversation with the district court judge who
presided over appellant's jury trial.
Appellant failed to establish that alleged errors in the jury
instructions affected his substantial rights.
Appellant's sentence to life imprisonment without the
possibility of release for his conviction for first-degree
premeditated murder of an unborn child was not authorized by
Minnesota Statutes section 609.106 (2018).
in part, reversed in part, and remanded.
Vern Jason Mouelle was found guilty by a jury of first-degree
premeditated murder and first-degree premeditated murder of
an unborn child. In this direct appeal, Mouelle asserts four
claims. He first contends that structural error occurred when
the district court judge presided over Mouelle's jury
trial after hearing a comment by defense counsel during an ex
parte conversation that suggested that Mouelle might commit
perjury. Mouelle next argues that his right to effective
assistance of counsel under the Sixth Amendment to the United
States Constitution was violated when defense counsel
disclosed client communications during the ex parte
conversation with the district court judge. Mouelle further
claims that the district court committed plain error in its
jury instructions. Finally, he contends that the sentence to
life imprisonment without the possibility of release for his
conviction of first-degree murder of an unborn child was not
authorized by Minnesota Statutes section 609.106 (2018).
the State contests the first three claims, it concedes that
Mouelle's sentence for his conviction of first-degree
murder of an unborn child is not authorized by Minnesota
Statutes section 609.106. For the reasons explained below, we
affirm Mouelle's convictions, reverse his sentence for
first-degree murder of an unborn child, and remand to the
district court for further sentencing proceedings consistent
with this opinion.
about 3 p.m. on January 24, 2017, Senicha Lessman was found
by her mother, bloody and unconscious on the floor of her
bedroom. Lessman's mother immediately called 911, removed
a bloody cloth that had been lodged in Lessman's throat,
and attempted resuscitation. Emergency responders arrived and
made additional efforts to save Lessman's life, but they
were unsuccessful. Lessman, age 25, was 32 weeks pregnant.
She and her unborn child were pronounced dead at the scene.
had been stabbed in the neck. The stab severed her external
carotid artery and punctured her airway. The medical examiner
determined Lessman's cause of death to be "complex
homicidal violence" as a result of the blood-loss from
the stab wound and asphyxiation from the cloth lodged in her
airway. The cause of death for the unborn child was
determined to be the death of the mother, Lessman.
Eagan Police Department investigation immediately focused on
Mouelle, the unborn child's father, because his vehicle
had been seen parked in front of the Lessmans' home that
same afternoon. The police searched Mouelle's vehicle
that evening and found numerous items from the crime scene.
These items included Lessman's mobile phone, her bloody
pajama shirt and pants, Lessman's Minnesota Vikings
blanket, a blood-stained towel, a green wastebasket, and a
bathtub drain plug. Police also found empty packaging and a
store receipt for the folding knife used to stab Lessman. The
knife itself was found in a drawer in Mouelle's bedroom
the next morning.
searches of Mouelle's mobile phone revealed numerous
internet searches in December 2016 related to kidnapping,
missing persons, and police investigation techniques. On the
day of the murder, numerous other internet searches were
made, including searches for: "How long would it take to
die if one of your external jugular vein[s] was slit";
"How much time does it take to knock someone out with a
rear naked choke"; "Can you kill a person with a
rear naked choke"; "How do police find and use
fingerprints to catch criminals"; and "DNA forensic
testing and use of DNA rape kits in cases of rape and sexual
assault." Mouelle's fingerprints and DNA were found
on items at the crime scene, and his DNA matched bodily
fluids gathered from the autopsy conducted on Lessman's
text messages during Lessman's pregnancy showed that he
did not want her to keep the baby. He frequently implored
Lessman to consider an abortion and questioned her readiness
for motherhood. In text messages to a friend, Mouelle
declared, "I ain't having a baby with no autism
bitch," and "They will not get me on child
the police investigation, a grand jury indicted Mouelle for
several offenses, including first-degree premeditated murder
and first-degree premeditated murder of an unborn child.
See Minn. Stat. §§ 609.185(a)(1),
609.2661(1) (2018) (respectively). Pleading not guilty,
Mouelle was tried by a jury in December 2017.
before opening statements, an ex parte conversation occurred
between Mouelle's trial counsel ("Counsel") and
the district court judge in chambers in the presence of the
court reporter. During the conversation, Counsel informed
the court that if Mouelle chose to testify, Counsel was
"going to have to . . . do as well as [he could] under
Whiteside." Counsel also told the court that he and
Mouelle could not agree on whether Counsel should give an
opening statement before the State presented its evidence. In
describing the disagreement, Counsel quoted parts of a
conversation that he had with Mouelle. Based on the ongoing
disagreement, Counsel explained that he would request a short
recess after the prosecutor's opening statement. The
judge said, "I'm not going to comment any further
about your conversations with your client as they are
privileged. We will take a recess after the prosecution's
opening statement . . . and you can let me know if you're
State gave its opening statement and, as promised, the court
took a brief recess. Counsel then gave an opening statement.
After the State rested its case, Mouelle chose to testify.
Counsel presented Mouelle's testimony in the traditional
admitted that he was present when Lessman was killed, but
testified that a secret boyfriend named "Anthony"
was the culprit. He explained that Anthony and Lessman had
been seeing each other, upsetting Mouelle. Mouelle admitted
buying the knife and conducting the incriminating internet
searches, but claimed that he was preparing to confront
Anthony that day. When Anthony showed up at the Lessmans'
house that afternoon, Mouelle left Anthony and Lessman inside
to go to his car. Mouelle said that Anthony came out of the
house to tell him that he had cut Lessman and that he ...