State of Minnesota v. Tremaine Michael Bucholz

STATE OF MINNESOTA IN SUPREME COURT A25-0518 Hennepin County Thissen, J. Concurring in part, dissenting in part, State of Minnesota, Hudson, C.J., McKeig, Moore, III, JJ. Respondent, vs. Filed: September 30, 2026 Office of Appellate Courts Tremaine Michael Bucholz, Appellant. ________________________ Keith Ellison, Attorney General, Saint Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Senior Assistant County Attorney, Minneapolis, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant State Public Defender, Saint Paul, Minnesota, for appellant. ________________________ SYLLABUS 1. District courts should no longer apply the threshold-foundation first step for alternative-perpetrator evidence adopted in our decision in State v. Hawkins, 260 N.W.2d 150 (Minn. 1977), which required a defendant to provide evidence having an inherent tendency to connect an alleged alternative perpetrator with the commission of the crime before admitting evidence that a person other than the defendant committed the charged 1 crime. Instead, district courts should apply the Minnesota Rules of Evidence in determining whether to admit alternative-perpetrator evidence. 2. The defendant is not entitled to a new trial where, despite the district court’s ruling excluding alternative-perpetrator evidence, the jury heard significant evidence of an alleged alternative perpetrator, had an opportunity to consider that party’s connection to the offenses charged, and there was strong evidence of the defendant’s guilt, thus rendering the district court’s ruling to exclude the evidence harmless beyond a reasonable doubt. 3. The entry of a conviction for second-degree murder in the sentencing order was clerical error and must be corrected. Affirmed in part, reversed in part, and remanded to the district court. OPINION THISSEN, Justice. A jury found appellant Tremaine Michael Bucholz guilty—and the district court convicted him—of first-degree murder during a drive-by shooting and second-degree intentional murder for the shooting death of Stevi Rae Palacio. Bucholz seeks reversal of his convictions on the ground that the district court erred in denying his pretrial motion to identify another individual, D.J., as an alternative perpetrator. He also requests that, if we do not reverse his convictions, we remand to the district court to correct the sentencing order to remove the entry of conviction on the second-degree murder charge. Minnesota courts apply “a two-step process to determine whether to admit alternative-perpetrator evidence.” State v. Rooney, 23 N.W.3d 75, 82 (Minn. 2025). This 2 is the so-called Hawkins test, named for our decision in State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977): First, a defendant must make a foundational proffer of ‘evidence having an inherent tendency to connect [the third person] with the actual commission of the crime.’ … Second, only if the district court determines this threshold requirement has been met may the defendant introduce ‘evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts which would tend to prove the third person committed the act’ if the ordinary rules of evidence are satisfied. Rooney, 23 N.W.3d at 82 (quoting Hawkins, 260 N.W.2d at 159). Bucholz argues that we should abandon the threshold-foundation first step of our test for determining whether alternative-perpetrator evidence is admissible. We accept Bucholz’s invitation. District courts, going forward, should not apply a threshold-foundation inquiry that requires a defendant seeking to introduce any evidence suggesting another person may have committed an offense to first prove an “inherent tendency to connect such other person with the actual commission of the crime.” Hawkins, 260 N.W.2d at 159 (citation omitted) (internal quotation marks omitted). Instead, for cases tried on or after the date this opinion issues, district courts should simply apply the Minnesota Rules of Evidence to determine whether to admit alternative- perpetrator evidence. District courts should admit evidence that is relevant—“having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” Minn. R. Evid. 401—to show another person may have committed an offense unless the prejudicial impact of the evidence substantially outweighs its probative value, Minn. R. Evid. 403, or because the evidence is otherwise inadmissible under the Rules of 3 Evidence. In making this decision, we acknowledge that we are overruling our precedent on the admissibility of alternative-perpetrator evidence. We also recognize the principle of stare decisis that “require[s] a compelling reason” to overturn our past cases in the interest of maintaining “stability in the law.” Cargill, Inc. v. Ace Am. Ins., 784 N.W.2d 341, 352 (Minn. 2010). We conclude, however, that judicial experience with the rule and the practical value of a simpler rule justify the change. We also conclude that the district court’s ruling that Bucholz did not satisfy the Hawkins threshold-foundation step was harmless beyond a reasonable doubt in this case. Accordingly, we affirm Bucholz’s conviction. Finally, Bucholz separately argues that the district court erred in issuing a sentencing order that entered convictions for both first- and second-degree murder. At Bucholz’s sentencing hearing, the district court orally entered a conviction on only the first-degree murder charge, but the written sentencing order mistakenly reflected that the court had entered convictions on both counts. We agree that the conviction reflected in the written order was a clerical error and remand to the district court to correct the sentencing order and remove the judgment of conviction for second-degree murder. FACTS Derrick Lamon Johnson is a drug dealer who has sold cocaine and fentanyl. Bucholz both consumed drugs from Johnson and helped Johnson sell drugs. Bucholz’s mother (Mother) and sister (Sister) also bought drugs from Johnson and spent time with Johnson in Johnson’s apartment. 4  In the summer of 2023, Sister took a video of Johnson getting “super high out of his mind” when she and three others were at his apartment. Sister testified that she believed Johnson had overdosed because he was unresponsive. The next day, Johnson told Sister and others that he discovered some of his drugs and money were missing. Johnson suspected that Stevi Rae Palacio was among those responsible for the theft and Johnson threatened to kill Palacio. On August 8, 2023, several people were in Johnson’s apartment, including Johnson, Bucholz, Sister, Mother, and Johnson’s son, D.J. D.J. is a known drug dealer who participated in Johnson’s drug sales, and D.J. knew that Johnson believed Palacio had stolen from him. Shortly before midnight, Johnson, D.J., and Bucholz left the apartment together. Starting about 11:53 p.m., multiple video cameras recorded a Chevy conversion van circling the block near the intersection of North Thomas Avenue and Oak Park Avenue in Minneapolis. Using license-plate-reader technology, officers later determined that the van belonged to Johnson. At 11:54 p.m., video cameras captured the van as it pulled into an alley that runs parallel to North Thomas Avenue. Video footage shows that Bucholz exited the front passenger door and walked to the driver’s side of the van; the driver exited at the same time, and both Bucholz and the driver walked toward the van’s rear. A second video shows that the driver and passenger doors then opened and shut again before the van continued down the alley toward North Thomas Avenue. The van in the videos had distinct markings and damage. 5  A doorbell camera subsequently captured video footage of the shooting itself. In that video, Palacio walked alone along North Thomas Avenue about 20 seconds before midnight. Johnson’s van turned onto North Thomas Avenue, driving toward Palacio. The video shows that the van slowed and pulled parallel to Palacio, then a gunshot was fired from the van’s front passenger window at almost exactly 12:00 a.m. Palacio ran. The van moved in the opposite direction as someone inside continued to shoot at Palacio. The van left the block a few seconds after midnight. A neighbor called 911 after hearing the gunshots. Police responded and found Palacio face down on the sidewalk without a pulse. Palacio was taken to the hospital by ambulance and pronounced dead. An autopsy determined Palacio died from a gunshot wound to her back. Investigators later found Johnson’s van parked in the underground garage at his apartment complex. Surveillance video from the garage elevator lobby showed that Johnson and Bucholz entered the vestibule 5 minutes and 54 seconds after midnight the night of the shooting. Forensic testing identified Bucholz’s fingerprints on the van’s exterior passenger door handle and the exterior and interior of the driver’s door. Johnson’s prints were on the exterior driver’s door and the middle of the van’s three exterior windows on the driver’s side. The van also displayed prints from two other individuals. DNA testing determined Bucholz and Johnson were possible contributors to a mixture of DNA collected from the van’s exterior front passenger door handle, gear shift, and steering wheel, and that 6 Bucholz was a possible contributor to a DNA mixture collected from the interior front passenger door handle. At the scene where Palacio was shot, officers found one discharged 10-mm cartridge casing. When processing Johnson’s van, officers observed a bullet hole in the front passenger window. Officers also collected a discharged 10-mm cartridge casing from the van’s undercarriage. A forensic examiner concluded that the casing in the van was fired from the same gun as the casing from the scene. The police did not recover a weapon. Officers searched Bucholz’s cell phone and found a deleted video of Bucholz holding a gun, as well as text messages sent before the murder that included a picture of Bucholz holding a “Glock 20 Gen 4,” a gun that fires 10-mm bullets. The phone’s internet history showed that, beginning at 8:15 the morning after the shooting, someone used the phone to search for information about Palacio’s murder. On September 5, 2023, officers arrested and interviewed Bucholz, who acknowledged he was in the van with Johnson the night of the shooting but denied involvement in the murder. Bucholz claimed he had been smoking with a friend at the intersection of 15th and Girard at midnight before getting picked up and returning with Johnson to Johnson’s apartment. Bucholz repeatedly asked if the officers had talked to Johnson yet and suggested that there must be another person involved. On September 8, 2023, the State charged Bucholz with two counts of second- degree murder and one count of ineligible possession of a firearm. A month later, a grand jury indicted Bucholz for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1), 7 and first-degree intentional murder during a drive-by shooting, Minn. Stat. § 609.185(a)(3), as well as one count of ineligible possession of a firearm, Minn. Stat. § 624.713, subd. 1(2). On September 15, 2023, officers spoke with D.C., then an inmate at the Anoka County jail, who had contacted them. D.C. had previously sold fentanyl with Johnson and Bucholz and shared that one time when he, Johnson, and Bucholz were together, Johnson offered D.C. $10,000 to kill Palacio and another person he suspected of stealing from him. After D.C. responded, “it’d have to be a hundred,” Bucholz instead offered, “I’ll do it for free.”1 D.C. also told officers that he ran into Bucholz the day after the shooting and Bucholz told him, “That bitch had to go,” and referenced “clapping her,” slang for shooting. At trial, D.C. testified that Bucholz told him that he and Johnson “got her” and that Bucholz missed, but Johnson grabbed the gun and was the one to shoot Palacio. While in jail, Bucholz made statements on recorded phone calls, including, “I can’t believe they got me when they got me. I thought they was gonna get my ass when I came to fucking court,” and “[t]hey know they got [Johnson] but they’re trying to get me too.” He also told his family that he planned to blame D.J. for Palacio’s murder. Before trial, Bucholz filed notice of his intent to present an alternative-perpetrator defense, naming D.J. as the alternative perpetrator. Bucholz submitted an offer of proof with the following evidence: D.J. was not in custody when Palacio was killed, D.J. was 1 At trial, D.C. first testified that Bucholz was not present when Johnson offered to pay D.C. to kill Palacio, but after reviewing his grand jury testimony, D.C. corrected himself and said that Bucholz had been there and offered to kill Palacio for free. 8 present at Johnson’s apartment the night of the shooting and left the apartment with Johnson and Bucholz, phone records place D.J. near Johnson’s apartment the hour before the shooting, D.J. was a known drug dealer who participated in Johnson’s drug sales, D.J. knew that Johnson believed Palacio had stolen from him, and at the time of the offer of proof D.J. was in federal custody for a charge involving a firearm. The State opposed admitting evidence suggesting that D.J. shot Palacio. The State informed the district court that it had conducted an investigation after receiving Bucholz’s notice and asserted that it had found “no evidence of any connection” between D.J. and either Palacio or the crime scene. The State highlighted that cell phone records show D.J.’s phone was on a continuous 15-minute phone call beginning at 11:55 p.m.—when the van was circling the block and someone inside shot Palacio—and at that time D.J.’s phone was north of the area of the shooting. The State further noted that D.J.’s cell phone continued to move north after the shooting. The district court determined that Bucholz had not established an adequate foundation to admit alternative-perpetrator evidence under the Hawkins test’s threshold- foundation step and ordered that Bucholz could not introduce evidence connecting D.J. to the shooting. The State then asked that the district court preclude Bucholz “from testifying about or offering evidence regarding any alleged alternative perpetrator(s) ….” The district court deferred ruling until Bucholz decided whether to testify. At trial, despite the district court order, both the State and Bucholz presented testimony and evidence about D.J. and his connection, or lack thereof, to the shooting. 9 During the State’s case, Mother, and Sister both testified that Johnson, D.J., and Bucholz were in Johnson’s apartment the night of the shooting, and that all three left the apartment shortly before midnight. Mother and Sister also testified that Johnson and Bucholz returned to the apartment less than 10 minutes later, while D.J. returned after an hour or two. The State introduced D.J.’s cell phone records which showed his phone was on a call and north of the area of the crime at the time of the shooting. After the State rested, Bucholz decided to testify. The district court reminded counsel of its ruling excluding alternative-perpetrator evidence and noted its expectation that “no alternative perpetrator evidence will be introduced during the presentation of the defense’s case but also during Mr. Bucholz’s testimony.” The district court nonetheless overruled objections from the State and permitted Bucholz to recount his version of events, including testimony that placed D.J. at the scene. Bucholz testified that he was in the van when Johnson saw Palacio walking down North Thomas Avenue. Bucholz stated that he tried to dissuade Johnson from killing her. He then testified that Johnson drove into the alley parallel to North Thomas Avenue and told Bucholz, “Get the fuck out then, pussy.” Bucholz said both men exited the van— Bucholz to leave the area, and Johnson to make sure Bucholz left. Bucholz stated that after he exited he saw the van continue down the alley and he heard gunshots. Bucholz testified that the van then pulled back up, with D.J. driving and Johnson in the passenger seat, and stopped behind him. Bucholz said that when they arrived at Johnson’s apartment, D.J. left in his truck while Bucholz and Johnson went back upstairs. 10  In his testimony, Bucholz denied offering to kill Palacio and said he was not truthful with police because Johnson had threatened to kill him and his family and because the police did not yet have Johnson in custody. During cross-examination, Bucholz acknowledged that in jail phone calls he told his family that he planned to blame D.J. He said that in those calls he “kind of just threw [D.J.] at [the prosecutors] to see how hard [the prosecutors are] going to work.” In its closing argument, the State told the jury it should not consider D.J. a potential perpetrator of Palacio’s murder. The prosecutor asserted that the surveillance videos, forensic analysis, and evidence from the car showed that Johnson and Bucholz were the only two involved in the murder. The prosecution also argued that while D.J. may have left Johnson’s apartment with Bucholz and Johnson, a lack of forensic evidence linking D.J. to the van or gun, along with D.J.’s phone activity and location, meant that it was “impossible” for D.J. “to have been in that vehicle or to have participated in this crime.” Finally, the prosecutor urged the jury to assess Bucholz’s credibility given his statements from jail that he would blame D.J. as a tactic. The defense raised D.J.’s potential connection to the murder in its closing argument. Counsel argued that the State failed to investigate whether D.J. was also in the van and failed to demonstrate that D.J. was the one using his phone during the shooting, thereby leaving open the possibility that D.J., and not Bucholz, had participated in the murder. The jury found Bucholz not guilty of first-degree premeditated murder (count one) and ineligible possession of a firearm (count three), but guilty of first-degree murder 11 during a drive-by shooting (count two) and second-degree intentional murder (count four). At sentencing, the State requested that the district court “recognize the guilty verdict on the murder in the second degree – intentional – but not issue a conviction on that count.” At the sentencing hearing, the district court, accepted the jury’s verdict on first-degree intentional murder during a drive-by shooting and “recognize[d] that the jury found Mr. Bucholz guilty of murder in the second degree” but only imposed a sentence on first-degree intentional murder during a drive-by shooting. The written sentencing order filed that same day, however, stated that Bucholz was convicted of both first-degree intentional murder during a drive-by shooting and second-degree intentional murder. Bucholz appealed directly to this court. Minn. Stat. § 632.14. He urges us to reverse his convictions because the district court improperly excluded evidence that D.J. killed Palacio. He also asks us to vacate his sentence for second-degree murder. ANALYSIS Bucholz urges us to reverse his convictions because the district court improperly excluded evidence, and prevented argument, that another person—D.J.—killed Palacio. In deciding to exclude Bucholz’s alternative-perpetrator evidence, the district court applied the threshold-foundation first step of our two-step approach to determine whether such evidence is admissible. Under the threshold-foundation step, a defendant cannot present evidence that another person committed a charged offense unless “proper foundation [is] laid for the admission of such evidence.” Hawkins, 260 N.W.2d at 159. To establish such foundation, the defendant must offer evidence “having an inherent 12 tendency to connect such other person with the actual commission of the crime.” Id. (citation omitted) (internal quotation marks omitted). Bucholz argues that we should abandon the threshold-foundation first step. Preliminarily, we conclude that we may consider Bucholz’s argument even though he failed to raise it in district court. Next, we consider whether we should continue to retain the threshold-foundation step—including whether the reasons for abandoning a long- standing evidentiary standard are sufficient to overcome the important principle of stare decisis—and conclude that we should abandon it. Instead, district courts should apply the familiar admissibility framework set forth in the Rules of Evidence. Nonetheless, we explain that, to the extent the district court erred in applying the threshold-foundation first step of the Hawkins test in Bucholz’s case, such error was harmless beyond a reasonable doubt. Lastly, we assess whether the district court erred in issuing a sentencing order that entered convictions for both first- and second-degree murder. We conclude the sentencing order is erroneous and remand to the district court to vacate the second-degree murder conviction. I. A. We begin by assessing whether Bucholz forfeited his argument that we should abandon the threshold-foundation step in our alternative-perpetrator analysis. The State argues that Bucholz forfeited the argument by failing to raise it in the district court and highlights that we often do not consider arguments advanced for the first time on appeal. 13 See State v. Davis, 735 N.W.2d 674, 681 (Minn. 2007) (declining to consider whether to alter our approach to admitting evidence—specifically, impeachment by prior criminal convictions under Minnesota Rule of Evidence 609—because the defendant did not make the argument in district court). We conclude that in this case it is appropriate to consider Bucholz’s argument that we should eliminate the threshold-foundation step in our alternative-perpetrator analysis. Most importantly, we perceive no unfairness to the State if we consider the issue. Bucholz presents us with a purely legal issue that both parties have fully and effectively briefed. See State v. Thompson, 937 N.W.2d 418, 421 n.2 (Minn. 2020). Further, based on our precedent, the district court had no power to grant Bucholz the relief he seeks, meaning Bucholz’s failure to raise the issue before the district court does not implicate the concern that we have deprived that court of the opportunity to avoid error had the issue been raised before it. See Pulczinski v. State, 972 N.W.2d 347, 358 (Minn. 2022) (citing Weaver v. Massachusetts, 582 U.S. 286, 302 (2017) (stating that a purpose of our forfeiture jurisprudence is to encourage parties “to raise errors before the district court when the district court can cure any potential error and avoid any resulting harm”)). Finally, whether to change our evidentiary rules on admitting alternative-perpetrator evidence is a question of statewide importance and is likely to recur. See Rooney, 23 N.W.3d at 85 (Thissen, J., concurring) (suggesting that we revisit our approach to admitting alternative-perpetrator evidence in an appropriate case); State v. Woodard, 942 N.W.2d 137, 145–48 (Minn. 2020) (Thissen, J., concurring) (same); cf. Snell v. Walz, 6 N.W.3d 458, 467 n.8 (Minn. 2024) (agreeing that appellant “forfeited his ‘antecedent 14 evidentiary showing’ argument by raising it for the first time on appeal,” but concluding that “we consider the argument nevertheless in the interest of justice, given our stated imperative to decide this issue now ….”). And as we discuss next, this question falls within our inherent “authority to regulate and supervise the rules that govern the admission of evidence in the lower courts.” See State v. Hill, 871 N.W.2d 900, 905 n.4, 909 (Minn. 2015) (citations omitted) (internal quotation marks omitted) (deciding issue implicating this inherent authority even though the appellant “did not raise this argument in the district court”). B. We turn to whether we should abandon the threshold-foundation step in our alternative-perpetrator analysis. 1. We begin with the observation that the first step of our two-step approach to admitting alternative-perpetrator evidence—the threshold-foundation inquiry—is an evidentiary rule. We have inherent authority to determine the rules governing what evidence is admissible in Minnesota state courts. State v. McNeilly, 6 N.W.3d 161, 193– 97 (Minn. 2024) (stating that we have the “authority to regulate and supervise the rules that govern the admission of evidence in the lower courts”); State v. Gianakos, 644 N.W.2d 409, 415 (Minn. 2002) (exercising authority over evidentiary rules to adopt a new rule in a court decision); State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983) (explaining that we have authority over the rules governing evidence admission). We adopted the threshold-foundation inquiry in our decision in Hawkins. 260 N.W.2d at 159. 15 We similarly have supervisory authority to change that rule here. See McNeilly, 6 N.W.3d at 193–97 (exercising our authority to regulate and supervise the rules that govern admitting evidence in the lower courts to establish prospective rules for admitting evidence obtained during searches of attorney offices); State v. Zinski, 927 N.W.2d 272, 278 (Minn. 2019) (exercising our supervisory powers over admitting evidence to establish a prospective rule for admitting relationship evidence under Minnesota Statutes section 634.20); State v. Scales, 518 N.W.2d 587, 592–93 (Minn. 1994) (exercising our supervisory power to establish prospective parameters for admitting evidence obtained in police interrogations). For the detailed reasons we outline below, and in accordance with our authority to regulate and supervise the rules that govern admitting evidence in Minnesota district courts, we conclude that district courts should no longer apply the threshold-foundation first step for alternative-perpetrator evidence adopted in our decision in Hawkins. Instead, district courts should assess whether evidence that a person other than the defendant committed a crime is admissible under the Rules of Evidence in the same way as other evidence. 2. The purpose of alternative-perpetrator evidence—evidence supporting an argument that a person other than the defendant committed a crime—is to defend against criminal charges by creating a reasonable doubt about the defendant’s guilt. State v. Ferguson, 804 N.W.2d 586, 591 (Minn. 2011). Evidence and argument that another person committed the crime is not an affirmative defense and is not admitted to establish 16 the other person’s guilt. Id. “The due process clauses of both the Minnesota Constitution and the United States Constitution guarantee a defendant’s right to a fair opportunity to defend against criminal charges.” Troxel v. State, 875 N.W.2d 302, 307 (Minn. 2016) (citing, among other sources, U.S. Const. amend. XIV and Minn. Const. art. I, § 6). “A defendant’s constitutional right to a fair opportunity to defend against criminal charges includes the right to present evidence that a third party (an ‘alternative perpetrator’) committed the crime for which the defendant was charged.” Woodard, 942 N.W.2d at 141 (citation omitted) (internal quotation marks omitted). This right, however, is not absolute, and district courts may limit the defendant’s evidence through evidentiary rules. State v. Jenkins, 782 N.W.2d 211, 224 (Minn. 2010). Like all other evidence, alternative-perpetrator evidence is not admissible if it does not satisfy “the ordinary rules of evidence.” Rooney, 23 N.W.3d at 82; State v. Heller, 12 N.W.3d 452, 469 (Minn. 2024) (stating that “alternative-perpetrator evidence must be admissible under the normal rules of evidence before it may be introduced at trial”). Under our decision in Hawkins—a case tried four years before the Minnesota Rules of Evidence went into effect on July 1, 1977—the proponent of alternative-perpetrator evidence must also clear an additional hurdle: evidence that another person committed an offense must be excluded before ever considering the other rules of evidence unless “proper foundation [is] laid for the admission of such evidence … to avoid the consideration of matters collateral to the crime.” 260 N.W.2d at 159–60 (holding that the threshold-foundation step was satisfied because the alleged alternative perpetrator’s trial 17 testimony connected him to the crime).2 Evidence tending to show another person committed a crime is inadmissible “unless coupled with other evidence having an inherent tendency to connect such other person with the actual commission of the crime.” Id. at 159 (citation omitted) (internal quotation marks omitted). We have not precisely identified the contours of the “inherent tendency” foundational principle since we first articulated it. In many ways, it has become an analysis-stopping phrase. We do know that it requires something more than ordinary rules applied to other types of evidence. Rules 401 and 402 generally require proof that a piece of evidence has a tendency to make the existence of a fact that a person other than the 2 In Hawkins, a murder case, the defendant argued that another person, John Czuchry, who was at the crime scene when the murder occurred and who testified at trial, committed the murder. 260 N.W.2d at 155–56. The defendant sought to introduce evidence that, before the crime, Czuchry and the victim talked about stolen guns one of them possessed and that Czuchry, who was intoxicated on the night of the murder, became physically violent when intoxicated. Id. at 158. This evidence of “possible past illegal dealings between Czuchry and the victim,” and “collateral acts of violence by Czuchry,” id. at 160, is what we would today refer to as reverse-Spreigl evidence. See State v. Gutierrez, 667 N.W.2d 426, 436 (Minn. 2003) (defining reverse-Spreigl evidence as proof of past crimes or bad acts committed by a third party offered by a criminal defendant to cast doubt on their own guilt by suggesting someone else committed the crime). Under Minnesota Rule of Evidence 404(b), such evidence is not admissible (even if it satisfies the Hawkins threshold requirement) “to prove the character of a person in order to show action in conformity therewith [but may] be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In addition, such evidence is inadmissible unless the defendant establishes “(1) by clear and convincing evidence that the third party participated in” the prior crime, wrong, or act; “(2) that the reverse-Spreigl incident is relevant and material to [the] defendant’s case; and (3) that the probative value of the reverse-Spreigl evidence outweighs its potential for unfair prejudice.” Gutierrez, 667 N.W.2d at 437 (alteration in original) (citation omitted) (internal quotation marks omitted); see also Heller, 12 N.W.3d at 469–70 (applying the Rules of Evidence and reverse-Spreigl analysis in an alleged-alternative-perpetrator case). 18 defendant committed the criminal act more probable or less probable than it would be without the evidence—subject, of course, to limitations on admitting evidence that poses a danger of unfair prejudice, confusing the issues, or misleading the jury, or that may result in undue delay, waste of time, or needless presentation of cumulative evidence, Minn. R. Evid. 403; evidence of other crimes, acts, or wrongs introduced to prove the character of a person in order to show action in conformity therewith, Minn. R. Evid. 404(b); evidence that is inadmissible hearsay, Minn. R. Evid. 802; and other evidentiary rules. The effective result of the Hawkins test’s threshold-foundation step for alternative-perpetrator evidence seems to be that a defendant must produce direct evidence connecting the alleged alternative perpetrator to a crime before the defendant is allowed to introduce circumstantial evidence that also suggests that the alleged alternative perpetrator may have committed the crime—an additional step not required to introduce other forms of evidence.3 See infra at 24–25. 3 Our case law makes clear that “circumstantial evidence is entitled to the same weight as direct evidence,” Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004), and district court judges regularly instruct juries that facts “may be proven by either direct or circumstantial evidence, or by both,” and “[t]he law does not prefer one form of evidence over the other.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 3.02 (7th ed. 2025). In requiring a threshold foundation for alternative perpetrator evidence, the Hawkins test seems to undervalue alternative- perpetrator circumstantial evidence as compared to other evidence. See Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 361 (2006) (observing that the evidence at issue in the threshold- foundation step is typically circumstantial evidence, “given that direct evidence, by definition, should satisfy the direct connection [requirement to connect an alleged alternative perpetrator to a crime before a defendant may introduce evidence that such person committed the offense,]” even though “circumstantial evidence can support the inferences necessary to establish proof beyond a reasonable doubt”). 19  It is unclear why alternative-perpetrator evidence should be subject to a threshold- foundation requirement that does not apply to other evidence used for similar purposes. Professor Wigmore raised the same question when criticizing alternative-perpetrator rules like ours: The question that arises, from the point of view of the rules of evidence, is whether, in evidencing the doing of an act by a third person as a fact of disproof, any unusual requirements should be made concerning the strength of the evidence before it can be admitted. Thus, to prove A guilty of murder, evidence of his threats (i.e., a design) to commit it are always admissible; now, if the fact to be proved is that B committed the murder (as inconsistent with A’s guilt), why should not B’s threats be admitted, without further restriction, as A’s are? It is true that evidence of B’s threats alone would not go far toward proving B’s commission; but it is not a question of absolute proof, nor even of strong probability, but only of raising a reasonable doubt about A’s commission, and for this purpose the slightest likelihood of B’s commission may suffice or at least assist. The evidence of B’s threats, to be sure, may, in a given instance, be too slight to be worth considering, but it seems unsound as a general rule to hold that mere threats, or mere evidentiary facts of any one sort, are to be rejected if unaccompanied by additional facts pointing toward B as the doer. 1A John Henry Wigmore, Evidence in Trials at Common Law § 139, at 1724 (Tillers rev. ed. 1983) (citation omitted). Essentially, unlike the case-by-case approach we typically take to assessing whether a piece of evidence is admissible, the threshold-foundation step in our alternative-perpetrator-evidence analysis imposes a mechanical, general prohibition on a specific type of evidence. See Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 360 (2006) (stating that “[t]he direct connection doctrine reverses the Rule 403 burden and presumption” and that “[t]hird-party perpetrator evidence is, in effect, presumptively 20 inadmissible unless the defendant can show a direct connection to the charged crime, and that burden, as we have seen, is not insubstantial”). We have offered a handful of policy reasons for imposing a higher foundational requirement for alternative-perpetrator evidence. First, we justified the threshold- foundation step as necessary to safeguard alleged alternative perpetrators from accusations based on bare suspicion and indiscriminate use of past differences with the deceased. This is a curious rationale. See David S. Schwartz & Chelsey B. Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, 2016 Wis. L. Rev. 337, 394 (2016) (observing that “very few courts ever mention the protection of third parties or their reputations as a justification for any of the direct connection [foundational threshold for alternative-perpetrator] doctrines”). The Rules of Evidence exclude allegations based on bare suspicion and indiscriminate use of past differences. Under Rule 403, any circumstantial evidence that is purely speculative—does not rise to more than bare suspicion—is inadmissible. State v. Henderson, 620 N.W.2d 688, 699 (Minn. 2001); see Findley & Scott, Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. at 361 (explaining that courts reject evidence in the alternative-perpetrator context as speculative where it is not truly speculative). Rule 403 therefore already prohibits truly speculative evidence and can serve to protect an alleged alternative perpetrator’s reputation from baseless accusation. Further,