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State v. Flah

Court of Appeals of Minnesota

September 9, 2019

State of Minnesota, Respondent,
v.
Christian Dulue Flah, Appellant

          Benton County District Court File No. 05-CR-17-6

          Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Gina Schulz, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Rodenberg, Judge.

         SYLLABUS

         If a defendant is voluntarily absent from his or her jury trial and has not personally consented to or requested a no-adverse-inference jury instruction, a district court does not err by denying defense counsel's request for a no-adverse-inference jury instruction.

          OPINION

          SCHELLHAS, Judge

         Appellant argues that he is entitled to reversal of his conviction of first-degree criminal sexual conduct because, after he voluntarily absented himself from his jury trial without personally consenting to or requesting a no-adverse-inference jury instruction, the district court denied his counsel's request for the instruction. We affirm.

         FACTS

         Respondent State of Minnesota charged appellant Christian Flah with two counts of first-degree criminal sexual conduct (CSC) and one count of second-degree CSC against an 11-year-old child. The district court conducted a jury trial on the charges, and Flah rested without calling any witnesses or offering any evidence. On the second day of trial, Flah failed to appear. To afford Flah time to appear or otherewise communicate with his counsel, the court excused the jury and recessed to discuss jury instructions. The court subsequently noted on the record that Flah's counsel would prefer that the no-adverse-inference jury instruction "remain in the instructions" and expressed its concern that it did not know whether Flah wanted the instruction and whether including it would create a potential issue for appellate review. Flah's counsel offered no additional argument, and the court declined to give a no-adverse-inference jury instruction.

         The jury found Flah guilty of one count of first-degree CSC and one count of second-degree CSC. After officers found Flah and arrested him, the district court adjudicated him guilty of first-degree CSC and sentenced him to 144 months' imprisonment.

         This appeal follows.

         ISSUES

         I. Did Flah waive his right to challenge the district court's denial of his counsel's request for a ...


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