author: PER CURIAM.

text:
    2003 SD 49
    In the Interest of D.M., R.M., III, and T.B.C., Minor Children and Concerning R.M., Jr. and S.B.C.-M., Parents and Respondents. In the Interest of B.B.C., Minor Child, and Concerning L.M.L. and S.B.C.-M., Parents and Respondents.
    Nos. 22563, 22564, 22565.
    Supreme Court of South Dakota.
    Considered on Briefs April 16, 2003.’
    Decided April 30, 2003.
    Rehearing Granted June 9, 2003.

      Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, Hot Springs, South Dakota, Attorneys for appellant S.B.C.-M.
    Lynn A. Moran, Custer, South Dakota, Attorney for appellant R.M., Jr.
   PER CURIAM.

[¶ 1.] This is an appeal regarding the termination of parental rights concerning four minor children. The children are Native American and the provisions of the Indian Child Welfare Act (ICWA) are applicable.

FACTS

[¶ 2.] S.B.C.-M. (Mother) is the maternal parent of B.B.C., D.M., R.M. and T.B.C. R.M. (Father) is the paternal parent of three of the children; D.M., R.M. and T.B.C. Father and Mother were married but are now divorced. L.M.L. is the paternal parent of B.B.C. L.M.L. did not participate in the proceeding below and does not appeal the termination of his parental rights. At the time this proceeding commenced, B.B.C. was age eleven; D.M. was age three; R.M was age two and T.B.C. was age eight months.

[¶ 3.] On January 1, 2001, Mother was transported by ambulance to the emergency room after she was found unconscious in her home. It was determined Mother may have suffered a seizure that evening. Mother had previously undergone surgery in 1999 for a brain aneurysm and was medicating for pain stemming from her condition. As a result of that surgery mother suffers physical effects including short term memory loss, speech problems, slight paralysis in the left arm, severe headaches and seizures on occasion.

[¶ 4.] Earlier that evening Father arrived at Mother’s apartment intoxicated. Mother left with Father and contacted a niece to care for the children. Mother believed that she was going to experience a seizure that day. Mother later returned to the apartment “very, very drunk” and was angry. She accidentally hit one of the children in the nose causing him to bleed. Mother then took her pain medications and mixed them with beer by pouring the beer into her pill bottle. Mother threw an ashtray at niece and niece left.

[¶ 5.] Mother called her pastor and told him that she was going to commit suicide. Law enforcement responded to the scene after reports of a possible assault. Upon arrival at the scene the officers were informed of the suicide call. Mother was discovered lying unconscious on the floor of the children’s bedroom. The children were temporarily placed with the niece until Father sobered up. DSS was informed of the incident.

[¶ 6.] Two days later, DSS received a report of possible abuse and bruising on one of the children. A social worker and law enforcement agent went to Father’s residence to conduct a welfare check on the children that morning. Father smelled of alcohol and he admitted he had been drinking. One of the children had been sleeping on a bed with no obstructions to prevent rolling off. Upon investigation, the majority of the bruises turned out to be birth marks except for a bruise on the forehead that occurred when the child fell off the bed. The social worker observed that the children were very dirty and messy. Mother was contacted in the hospital and a decision was made to take the children into protective custody. Mother believed Father was a danger to the children when he was drinking. The concerns at that time were Father’s drinking, lack of supervision, appropriateness of care and concerns related to Mother’s physical and mental condition.

[¶ 7.] Subsequently, the Department received a report that B.B.C., who was not present on that night, was now in Mother’s care. B.B.C. was believed to have been born with fetal alcohol syndrome and was then sent to live with an aunt. He later spent some time in the Black Hills Children’s Home. Thereafter, B.B.C. was sent to live with his grandfather until Mother determined he was not properly caring for B.B.C. After verifying B.B.C. was with Mother the social worker encouraged Mother to return him to grandfather’s care. She did not. As a result, B.B.C. was removed from Mother’s care.

[¶ 8.] Mother and Father were both allowed visitation with the children. Mother filed a motion with the trial court requesting that Father be prohibited from visiting the children when Mother was present and requested Father only be allowed supervised visitation. That request was granted. The trial court also allowed increased and unsupervised visits for Mother. Following an extended visit with Mother, a social worker, upon her arrival at the house, was informed by one of the children Father was hiding in the closet. Father was discovered in his boxer shorts. This violated both the terms of the court’s order and the Family Service Agreement (FSA) that Mother signed three days prior.

[¶ 9.] The FSA’s in this matter provided that Mother was required to complete and follow a chemical dependency evaluation; attend all meetings of Parents as Teachers; attend all visits with children; attend immediate and ongoing counseling; attend parenting classes and find a suitable adult to live with her and the children to help her parent. This last requirement was instituted after a psychological evaluation was conducted on Mother by Dr. Per-renoud. Dr. Perrenoud recommended that Mother not parent as a single parent due to her medical condition. He stated that she needed a “committed form of skilled social support available to her.” This consisted of another competent parental figure living with Mother and the children on a full time basis, providing daily and regular contact.

[¶ 10.] Father’s FSA required that he abstain from alcohol and drugs; complete and follow the recommendations of a chemical dependency evaluation; complete parenting classes; attend AA meetings and provide verification; complete an alcohol treatment program and also complete a parenting assessment. Despite these requirements, Father continued to drink and was observed intoxicated on four separate occasions. He was also arrested once for DUI during the pendency of this proceeding. Additionally, he admitted to drinking a case of beer the night before the disposi-tional hearing.

[¶ 11.] Mother either failed to complete the requirements of her FSA or delayed completion until the latter part of this proceeding. In addition, there was a concern that she had become addicted to her pain medications. Father also had difficulty completing the requirements of his FSA. A psychological evaluation conducted on Father indicated that he suffered from narcissism and had difficulty placing the needs of the children over his own. Father failed to attend his required counseling. Though at certain points Father made improvements toward sobriety, he did have relapses and lost his last job because of his drinking. Though this case spanned nineteen months, it was noted that Mother and Father only progressed to the point normally expected within five to six months. The counselor for the children also expressed concerns over Mother and Father’s continued parenting given their difficulties and the special needs of these children. The trial court terminated parental rights. Mother and Father appeal.

ANALYSIS

ISSUE ONE

[¶ 12.] Did the trial court err in denying the motion to transfer jurisdiction to the Rosebud Sioux Tribe?

[¶ 13.] Notice of these proceedings was given to the Rosebud Sioux Tribe (Tribe) and the Tribe filed a notice of intervention on January 26, 2001. The Tribe moved to intervene on August 9, 2001. The motion to intervene was granted August 10, 2001. On July 29, 2002, a month after the commencement of the dis-positional proceedings and nearly one-year after the tribe moved to intervene, the Tribe filed a motion to transfer and the tribal court entered an order indicating it would accept the transfer.

[¶ 14.] On July 31, 2002, the trial court indicated that it would consider the motion at a later hearing and directed counsel to prepare memoranda on that issue. At that hearing, no representative for the Tribe appeared. The trial court then determined:

Now I don’t think it is necessary to take any testimony in this matter, and I think it’s simply a matter of looking in the record in this matter to determine that the proceedings here were in advanced stage when the petition to transfer was received, and that of course was one of the exceptions or what’s called good cause for not making the transfer. I am certainly not making the transfer at this time in this case based upon that reason. There was no request by counsel to present witnesses or introduce further evidence on this issue.

[¶ 15.] “Transfer to the jurisdiction of the tribe is mandatory in the absence of good cause to the contrary.” In re M.C., 504 N.W.2d 598, 601 (S.D.1993). This Court recently determined that good cause existed not to transfer a case when the tribe had notice of the proceedings but the case had already been pending for fourteen months before the tribe filed its motion to transfer. In re S.G.V.E., 2001 SD 105, ¶ 28, 634 N.W.2d 88, 93. In that case, the final disposition phase had already been entered and an order issued before the motion to transfer was made. Id. Therefore, this Court determined that good cause existed for denying the transfer based on the timing of the motion. Id. It was not an abuse of discretion for the trial court to deny the transfer. Id. See also In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (holding petition to transfer untimely when received on the morning of the hearing). That reasoning is applicable here.

[¶ 16.] The parties were presented with an opportunity to argue their positions on this issue to the trial court. There is nothing in the record to indicate that any further evidentiary hearings were even requested. The record demonstrates that the trial court considered the factors establishing good cause and determined that this matter was at an advanced stage of the proceeding. This is an explicit exception to the transfer requirement. See In re M.C., 504 N.W.2d at 601. The disposi-tional phase was already in progress when the motion was made. On these facts, the trial court did not err in denying the transfer.

ISSUE TWO

[¶ 17.] Did the trial court abuse its discretion in determining the State’s expert witness was qualified under ICWA?

[¶ 18.] ICWA provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 USC § 1912(f). Parents contend that expert testimony, of the caliber mandated by ICWA, was lacking in this case.

[¶ 19.] Qualification of experts and admission of their testimony are matters that fall within the trial court’s sound discretion. In re J.L.H., 316 N.W.2d 650, 651 (S.D.1982). A trial court’s rulings in this area will be disturbed on appeal only if its discretion was clearly abused. In re J.L.H., 316 N.W.2d at 651.

[¶ 20.] Pauli-Tarrell’s testimony revealed that she possessed the following qualifications: she managed the child protection program for five counties in South Dakota, including an area encompassing the Pine Ridge Indian Reservation; she had been employed by DSS for approximately fifteen years; she had prior experience in handling delinquent youth; she worked with tribal court and tribal agencies; she worked with Native American clients of the child protection program; she had attended several trainings relating to issues of family violence and child services for Native American families; she had attended trainings on ICWA and had previously been qualified as an ICWA expert. Based on these qualifications, the trial court did not abuse its discretion in determining the witness was a qualified expert under ICWA.

ISSUE THREE

[¶ 21.] Did the trial court err in finding the requirements of ICWA were met before terminating parental rights?

A. Active Efforts

[¶ 22.] ICWA requires the State to show that it made efforts to prevent the breakup of the Indian family. In this regard, ICWA provides:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

25 USC § 1912(d).

[¶ 23.] With regard to this requirement, the record demonstrates that DSS engaged in “active efforts” designed to prevent the break-up of this Indian family. Though we do not reiterate them all here again, the facts, as previously set forth, demonstrate that DSS offered a wide range of services to these parents and attempted to work toward reunification of the family over a considerable period of time. That the efforts were not successful does not mean they were not made.

B. Continued Custody Would Likely Result In Serious Emotional Or Physical Damage To The Children.

[¶ 24.] [C]hild custody proceedings involving the termination of parental rights to an Indian child are subject to specific minimum federal procedures and standards. ICWA provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 USC § 1912(f). Thus, the burden of proof that must be shown is “evidence beyond a reasonable doubt.” Id.

[¶ 25.] The trial court found beyond a reasonable doubt that serious emotional or physical harm to the children would result from continued custody with parents. The trial court entered the following findings beyond a reasonable doubt:

1. Father has a chronic history of alcoholism.
2. Father’s rehabilitation would be a long-term effort with significant probability that it would not be successful.
3. Father received a DUI during the pendency of this proceeding and drank the night before the disposi-tional hearing.
4. Father failed to complete inpatient treatment as required.
5. Father has failed to consistently attend aftercare.
6. Father lost his last job and apartment as a result of his drinking.
7. Father failed to provide proof of AA attendance as ordered.
8. Father has not enrolled in individual counseling.
9. Father has cancelled or not shown for 27 visits with his children.
10. Mother has not completed the Community Transitions program.
11. Mother has failed to obtain individual counseling as required by her chemical dependency evaluation.
12. Mother has failed to participate and meet with Parents as Teachers.
13. Mother has not identified anyone, other than Father, to be a support to her as a parent, a requirement recognized by both the State’s and her own witness.
14. Mother has failed to complete parenting classes.
15. Mother has failed to maintain a level of consistency with her medication and has gone to the emergency room on a number of occasions.
16. Mother has failed to appear for 30 visits with her children.

These findings are amply supported by the record and not clearly erroneous. Based on these findings, the trial court did not err in determining continued custody is likely to result in serious emotional or physical damage beyond a reasonable doubt.

ISSUE FOUR

[¶ 26.] Did the trial court err in determining termination was the least restrictive alternative in the best interests of the children.

[¶ 27.] Mother contends that the least restrictive alternative would be allowing her continued custody with supervision by DSS. We have always recognized that the needs of the children are paramount and that their best interests must prevail. In re A.H., 421 N.W.2d 71, 75 (S.D.1988). Parental rights may be terminated if it is in the best interests of the children and is also the least restrictive alternative available. SDCL 26-8A-26. The best interests of the children are viewed from the children’s, not the parents’, perspective. In re E.D.J., 499 N.W.2d 130, 135 (S.D.1993).

[¶28.] The parents assert that they have made tremendous strides which support the imposition of other alternatives in lieu of termination. The trial court’s findings, however, contradict that assessment. These children are desperately in need of safety, certainty and stability in their lives. The parents did not reach a point where they could adequately provide for the children during the nineteen months this matter was pending and it is uncertain if they ever will. Further delay in the search for permanency is not in the best interests of these children.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, participating.

      . Dr. Perrenoud was not the only doctor recommending this. Dr. Mulder from the Pine Ridge Indian Health Services also opined "In my limited opinion I do not believe [Mother] is capable of child-care and child protection in emergencies.” Mother’s own witness, Dr. Simpson, also recognized this as an essential requirement. Mother's pastor also acknowledged a need for assistance.

      . The children all suffer from traits associated with reactive attachment disorder. B.B.C. also suffers from attention deficit disorder and a learning disability.

      . The dispositional hearings were conducted on four occasions. Father was absent twice, Mother was absent once.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Brandon SAYLES, Appellant.
    No. 02-0541.
    Supreme Court of Iowa.
    May 7, 2003.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano and John Judisch, Assistant County Attorneys, for appellee.
   TERNUS, Justice.

The defendant, Brandon Sayles, asserts the district court erred in admitting computer-generated animated slides depicting shaken baby syndrome as evidence in his trial for child endangerment. We conclude the trial court did not abuse its discretion in admitting this demonstrative evidence. We also find no merit in the defendant’s claim he was entitled to a judgment of acquittal based on an alleged insufficiency of the evidence. Accordingly, we affirm the judgment of conviction and sentence entered upon the charge of child endangerment causing serious injury.

I. Background Facts and Proceedings.

This case arose from the tragic abuse of a two-month-old baby, Adaym Sayles, who was brought to the hospital on Monday, August 20, 2001, suffering from seizures, difficulty breathing, and lethargy. The attending pediatric physician, Dr. Karen Gerdes, determined Adaym had recently been intentionally vigorously shaken, causing bleeding in the brain and in the lining of the back of the eyes. This intentional trauma, labeled shaken baby syndrome by Dr. Gerdes, resulted in permanent injuries to Adaym, including blindness and weakness in his right side.

The defendant, Adaym’s father, was charged with child endangerment causing serious injury. See Iowa Code § 726.6(1), (2) (2001). A jury found him guilty of this charge and the court sentenced him to ten years imprisonment. This appeal followed.

On appeal, Sayles raises two issues. First, he claims the court should have granted his motion for judgment of acquittal based on the insufficiency of the evidence showing he was the perpetrator of the abuse suffered by his son. Second, he asserts the court abused its discretion in admitting computer-generated animated slides showing the mechanism of injury to children hurt by violent shaking. We first address his sufficiency-of-the-evidence claim.

II. Sufficiency of the Evidence to Identify the Defendant as the Perpetrator.

A. Scope of review. We will affirm the denial of a motion for judgment of acquittal if substantial evidence in the record supports each element of the offense challenged by the defendant. State v. Anderson, 618 N.W.2d 369, 372 (Iowa 2000); State v. Westeen, 591 N.W.2d 203, 206 (Iowa 1999). “Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002). In making this assessment, we consider all the evidence, and we view it in the light most favorable to the State. See State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999).

B. Parties’ contentions. “The State must prove every fact necessary to constitute the crime with which the defendant is charged.” Webb, 648 N.W.2d at 76. Here, the jury was instructed that the prosecution had to prove, among other things, that the defendant “knowingly acted in a manner creating a substantial risk to Adaym Sayles’ physical, mental, emotional health or safety” or “intentionally used unreasonable force, torture or cruelty that resulted in physical injury to Adaym' Sayles.” The defendant does not dispute that his son was the victim of shaken baby syndrome, but he does claim the evidence cannot support a finding that he inflicted that abuse.

Specifically, Sayles argues that Adaym was not in his exclusive care during the time period when the infant’s injuries most likely occurred. The defendant claims that at least four other persons had care and control of the child during some portion of this window of time and, therefore, the State has failed to prove beyond a reasonable doubt that he is responsible for Adaym’s injuries. The State responds that its witnesses systematically eliminated any other-person as the culprit.

In evaluating the legitimacy of the parties’ arguments, we note that direct and circumstantial evidence are equally probative. See Iowa R.App. P. 6.14(6)(p). In fact, it is possible for a verdict to rest on circumstantial evidence alone. State v. Moses, 320 N.W.2d 581, 586 (Iowa 1982).

C. Evidence introduced at trial. Turning to the record in this case, we summarize the evidence presented to the jury. Adaym had been ill with a virus in the week prior to his hospitalization on Monday, August 20, 2001. His mother, Amanda Sayles, had taken him to the doctor on Tuesday, August 14, and the doctor who examined Adaym characterized the child as a “normal, happy, healthy, two-month-old baby” suffering the early effects of a viral infection. A day care worker who cared for Adaym on Friday, August 17, testified the baby appeared tired and a little more fussy than normal that day, but she had no concerns about his condition. He was described as playful on Friday, and there was no evidence the child was injured at day care that week.

Adaym and his brother and sister stayed overnight with their maternal grandparents on Friday night. Although Adaym was up quite a bit during the night, he usually did not sleep through the night even when feeling well. On Saturday morning, Adaym was in the care of his uncle, Amanda’s brother, for about an hour and a half, while the grandparents were occupied with other activities. During this time, the child took his bottle without difficulty and lay in his rocker, content and looking around the room while his uncle and siblings watched television. Adaym’s grandparents and his uncle testified that Adaym was not injured while in their care. Although Adaym was sometimes fussy dining this time, he was generally alert and active.

About noon on Saturday, August 18, the children were returned to Amanda’s care. Although Adaym was fussy all day, Amanda was not overly worried; she thought he might still have had a slight fever. That night — Saturday night — Adaym was “up all night,” even though he would typically sleep for five or six hours at a time.

On Sunday, Amanda cared for the baby until she went to work. She fed Adaym a bottle at 2:15 p.m., just before leaving. She recalled the baby “wasn’t fussy,” appeared “satisfied,” and smiled at her. Adaym and his siblings were left in the care of the defendant while Amanda was at work.

Amanda returned home around 11:30 p.m. She was surprised to find Adaym in his crib since he usually slept in his baby swing. The defendant asked his wife to “please not wake the baby” because he had just gotten Adaym to sleep. Despite the defendant’s request, Amanda went into the bedroom, picked up the baby, and began talking to him. She immediately noticed something was wrong. Adaym “looked sick” and was very limp. Amanda asked her husband “what happened,” and he told her the baby had been like that all night. According to Amanda, Adaym was significantly worse than he was when she left for work.

Amanda took the baby out to the living room to check him over. He was “whiney like something hurt.” She attempted to give him Motrin®, but he spit it out. Eventually the baby took some milk. Sayles went to bed, but Amanda kept Adaym with her on the sofa all night.

Amanda testified the baby did not wake up all night. In the morning, he still was not acting normally and would not eat. Amanda called the visiting nurse, reporting to her that the baby had “some jerking on his right side.” Suspecting seizures, the nurse said she would come over. While the nurse was en route, Amanda called the family doctor. His records show this call was placed about noon on Monday, August 20, 2001. The records state the child’s mother reported the baby had some twitching in his hands, that she was concerned about seizures, and that the twitching had started on Sunday evening. When the visiting nurse arrived, she determined the baby was having seizures, and so Amanda called 911. According to the nurse, Amanda told her the baby had not eaten since 3:00 a.m., and had been having seizure-like activity “since yesterday.”

By the time the paramedics arrived, the child was laying limply on the couch. The paramedic reported the parents told him the baby had been sick that week with a viral infection, had been acting and eating normally on Sunday evening, and had seizures on Monday morning prior to the 911 call. The parents also told the paramedics that the baby had not fallen or sustained any trauma.

Adaym was transported by ambulance to the hospital. Amanda rode in the ambulance and carried the baby into the hospital herself. By this time Adaym was having difficulty breathing and was put on a ventilator. He continued to have seizures, requiring an increasing amount of medication to control them. A CAT scan of his brain revealed several hemorrhages. Although the medical personnel were able to save Adaym’s life, he sustained permanent injuries, as indicated earlier, including blindness and weakness in his right side.

Several medical witnesses testified at trial. The treating physician, Dr. Gerdes, believed the baby had been subjected to abusive head trauma, otherwise known as shaken baby syndrome. With the help of computer-generated animation, she explained that when an infant is shaken vigorously its head is whipped back and forth, causing bleeding in the brain, damage to the nerves of the brain, swelling of the brain, and bruising and bleeding in the back of the eyes. Adaym had all of these injuries.

Dr. Gerdes further testified that an infant sustaining the injuries exhibited by Adaym “would become symptomatic immediately upon being shaken.” He might have been sleepy or lethargic; he could have started having seizures; he could even have lost consciousness for a while. It was her opinion that the baby was shaken on Sunday night, shortly before the parents “noted him having the seizure at 11 o’clock at night.” Although she conceded on cross-examination that in some cases symptoms may not begin for twenty-four hours and that parents may not recognize seizures, she said that in view of the severity of Adaym’s injuries, if he had been injured at noon on Sunday, he would most likely have died by noon on Monday. In her opinion, the shaking that caused Adaym’s injuries was very severe and life threatening in nature and the baby’s seizures would have begun almost immediately. She said the injuries could not be attributed to an accident.

A neuroradiologist who testified for the State said the injuries he saw on the CAT scan and a subsequent MRI would most likely have been inflicted within the last twenty-four to thirty-six hours prior to the tests. Although he admitted there was a “chance” they occurred up to seventy-two hours prior to testing, he asserted clinical information would be necessary to more accurately pin down the time of injury.

A hospital pediatric social worker and the emergency room nurse testified Adaym’s parents told them they had noticed some twitching on Sunday night. The nurse recalled the defendant stating more than once during their conversation that he hoped one of the other children had not done something to the baby.

Two ophthalmologists who treated Adaym also testified. One of these doctors told the jury the retinal bleeding he observed was as extensive as he had ever seen. Both ophthalmologists agreed that the infant’s injuries were caused by violent shaking and, based on the severity of the bleeding, Adaym would not have behaved normally after the shaking and would have immediately been blind or had very great difficulty seeing. One ophthalmologist, Dr. Jean Spencer, testified the baby’s injuries could have happened very shortly before he was brought to the hospital or up to twenty-four to forty-eight hours earlier. She stated if the baby appeared to have vision and was visually responsive on the prior day, that would suggest the injury had not yet occurred.

Dr. Spencer also testified she spoke with the parents after she had examined the baby at the hospital. She told the parents that the baby’s condition was very severe and she was concerned that he would be blind. Adaym’s mother, Amanda, was tearful and concerned; in contrast, the defendant did not focus on the baby’s condition, but volunteered that he did not shake his child.

A police officer that interviewed the parents at the hospital also testified at trial. He said the defendant told him Adaym was “fine” when Amanda left for work, although the baby was fussy and tired. The defendant further stated the first time he saw Adaym “tremoring” was after Amanda returned home, although it could have been the week before. When asked by the officer if he knew how the baby might have been injured, the defendant offered that the child “may have fallen off a bed or a couch or that his siblings ... could have hit him over the head with a toy or could have pushed him too hard in his swing.”

A pediatric forensic pathologist testifying on the defendant’s behalf agreed with the prosecution’s witnesses that Adaym suffered from shaken baby syndrome. She conceded the injuries suffered by the child could not have resulted from a short fall, being hit on the head with a toy by another child, or being pushed too hard in a swing. Based upon her examination of the medical records, the defendant’s expert witness concluded Adaym’s injuries were not life threatening, and that the seizure medication administered at the hospital contributed to his breathing difficulties and lethargy. As a result, she thought it was difficult to pinpoint exactly when the child’s injuries were inflicted and, in her opinion, it was possible they had occurred up to seventy-two hours pri- or to the child being brought to the hospital.

D. Analysis. As noted earlier, the defendant claims at least four other persons cared for Adaym during the critical time period and they were just as likely responsible for the baby’s injuries as was the defendant. It is true there was evidence setting the time of Adaym’s injuries up to seventy-two hours prior to noon on Monday, thereby placing Adaym in the care of his maternal grandparents, uncle and mother, as well as the defendant, during the critical time period. It is not true, however, that the evidence showed one of these other individuals was just as likely as the defendant to be the perpetrator.

There was substantial evidence from those who saw the baby in the days before his hospitalization that he was alert, albeit fussy, until Amanda noticed a marked change in his condition when she returned from work on Sunday night. Even the defendant himself told the investigating officer that the baby was “fine” when Amanda left for work. At least three doctors who cared for the infant testified that he would not have been fine if the shaking incident had already occurred. Rather, the child would have immediately exhibited symptoms of shaken baby syndrome. The circumstantial evidence clearly points to the injury occurring while Amanda was at work and the baby was exclusively in the defendant’s care. Added to the medical evidence are the defendant’s unsolicited denial of responsibility and suggestion of innocuous causes as the source of Adaym’s injuries. This conduct also points to the defendant as the culprit. See State v. Turner, 630 N.W.2d 601, 609 (Iowa 2001) (stating defendant’s volunteered statements indicating other people might be responsible for criminal act may indicate a “consciousness of guilt”); State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (stating a defendant’s conduct subsequent to a crime can be an implied admission “when such conduct indicates a consciousness of guilt”).

Viewing the evidence in a light most favorable to the State, we think there was substantial evidence from which a fact finder could conclude beyond a reasonable doubt that the defendant inflicted the severe injuries sustained by his son. As a result, we hold the trial court did not err in refusing to grant the defendant’s motion for judgment of acquittal.

III. Admissibility of Computer-Generated Animated Slides of Shaken Baby Syndrome.

A. Challenged evidence. Prior to trial, the State revealed it intended to use a computer presentation containing some animated slides for demonstrative purposes during the testimony of Dr. Gerdes. At a hearing on the defendant’s motion in li-mine to exclude this evidence, the State explained that the slides had been prepared by the National Center on Shaken Baby Syndrome; they would be used by Dr. Gerdes to assist her “in explaining [her] testimony to the jury”; and the audio narration prepared by the Center would not be played. The defendant objected on two grounds: (1) lack of foundation, specifically, authentication; and (2) the unfair prejudice of the evidence outweighed its probative value. The court made a preliminary ruling it would allow the State to show eight of the nineteen slides.

The defendant renewed his objections to the evidence at trial, focusing specifically on the slide depicting how a shaken baby injury occurs. This particular slide contained an animated baby being shaken by adult arms; the animation lasted approximately eight seconds.

Dr. Gerdes testified at trial that the slides accurately and fairly depicted the mechanism of shaken baby syndrome and the effects of such shaking. Based on her testimony, the court concluded the slides were properly authenticated. It then turned to the defendant’s second objection, carefully considering the prejudicial impact of the slides as well as their probative value. The court decided that with a cautionary instruction the slides were not unfairly prejudicial and ruled that they would be admitted. Prior to the slides being shown to the jury, the court gave the following instruction:

Ladies and Gentlemen, we’re going to watch an exhibit, portions of which are animated, and I want you to understand this is not meant to be a recreation of any events in this case. It’s merely a computer picture which is designed to help you understand this witnesses] opinions and to reinforce their point.
I want you to understand that the computer-generated animation here is not an exact recreation of what may or may not have happened to the child at issue in this case. It is merely an illustration so that you may better understand the concepts we are discussing here and the testimony of this witness.

Dr. Gerdes then explained to the jury what the slides illustrated. With respect to the slide found most objectionable by the defendant, the witness stated:

What they’re trying to demonstrate here is that infants are usually shaken by placing the hands around their upper arms or around their chest and then they’re shaken very vigorously so that the head gets basically whipped forward and backwards, whipped forward enough that the chin actually touches the chest and then backwards enough that the back of the head actually touches the very back of their back, their backbone.

The doctor then described what the other slides depicted with respect to the physical changes that occur in the blood vessels and nerves located in the brain and eyes of a child who has been shaken in this manner.

At the close of the evidence and prior to submitting the case to the jury, the court gave another cautionary instruction that was substantially the same as the oral instruction given prior to Dr. Gerdes’s testimony and the playing of the slide presentation. The jury did not view this exhibit during its deliberations. It is upon this record that we examine the defendant’s claim the court abused its discretion in admitting this demonstrative evidence.

B. Scope of review. “Admission or exclusion of demonstrative evidence rests largely within the trial court’s discretion.” State v. Thornton, 498 N.W.2d 670, 674 (Iowa 1993). Therefore, our review is for an abuse of discretion. Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882, 885 (Iowa 1994).

“An abuse of discretion occurs when the trial court exercises its discretion ‘on grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ ‘A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.’ ” State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (citations omitted). “Even if an abuse of discretion is found, reversal is not required unless prejudice is shown.” State v. Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003).

C. Foundation. We first consider the defendant’s contention that the prosecution did not establish a proper foundation for admission of the slides. The requirements for authentication of an exhibit are contained in Iowa Rule of Evidence 5.901, which provides in pertinent part:

a. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
b. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

Iowa R. Evid. 5.901. This court has stated that a witness who authenticates demonstrative evidence “ ‘need only know about the facts represented or the scene or objects photographed, and once this knowledge is shown he can say whether the [exhibit] correctly and adequately portrays these facts.’ ” Hutchison, 514 N.W.2d at 890 (quoting 2 John W. Strong, McCor mick on Evidence § 214, at 13-14 (4th ed.1992)).

The defendant argues the foundation here was inadequate because the State did not have an eyewitness to or video of the actual shaking of Adaym so as to permit Dr. Gerdes to state that the slides were a fair demonstration of the shaking event in this case. Consequently, contends the defendant, the exhibit offered by the prosecution could not illustrate either the degree of force or the number of oscillations required to cause the injuries sustained by this child.

The defendant relies on our Hutchison decision, where this court upheld the trial court’s refusal to admit, for lack of authentication, a videotape that illustrated how a closed-head injury occurs and how it affects the brain. Id. In that case, the plaintiff claimed she sustained a closed-head injury in an automobile accident. Id. at 884. She offered the testimony of her expert witness, a physician, to authenticate the computer-animated videotape. Id. at 890. We gave the following explanation of our decision affirming the district court’s rejection of this evidence:

The tape did not purport to re-create Connie’s [the injured plaintiff] particular accident, yet plaintiffs hoped to use it to amplify without a factual foundation their theory that Connie’s accident caused her to suffer a closed-head injury. Moreover, although [the expert witness] purported that he could authenticate the tape, he did not observe the accident or know the speeds and force involved. We believe it was well within the discretion of the trial judge to exclude the tape, which “afforded manifold opportunities for fabrication and distortion.”

Id. (emphasis added) (citation omitted).

The defendant’s challenge here to the State’s authentication of the challenged slides, and to some extent our own decision in Hutchison, overlook the distinction between demonstrative evidence purporting to re-create an event and similar evidence that merely illustrates a witness’s testimony. See, e.g., Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir.1996); People v. Cauley, 32 P.3d 602, 606-07 (Colo.Ct.App. 2001). One court has helpfully described the distinction in this way:

Computer generated evidence is an increasingly common form of demonstrative evidence. If the purpose of the computer evidence is to illustrate and explain a witness’s testimony, courts usually refer to the evidence as an animation. In contrast, a simulation is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it, and courts generally require proof to show the validity of the science before the simulation evidence is admitted.

State v. Farner, 66 S.W.3d 188, 208 (Tenn. 2001); accord Pierce v. State, 718 So.2d 806, 808 (Fla.Dist.Ct.App.1997). Thus, the classification of a computer-generated exhibit as a simulation or an animation also affects the evidentiary foundation required for its admission. Commonwealth v. Serge, 58 Pa. D. & C. 4th 52, 70-71 (Ct. C.P.2001); Farner, 66 S.W.3d at 208.

With this distinction in mind, we turn now to the foundation offered by the State in this case. Through questioning of Dr. Gerdes, the prosecution established the doctor knew of the facts represented by the slide presentation and, in addition, was able to positively state that the slides correctly and adequately portrayed those facts. We agree with the district court that this testimony was adequate to authenticate the exhibit for use as illustrative evidence. Dr. Gerdes’s lack of knowledge of the exact force used to inflict Adaym’s injuries does not preclude authentication of the exhibit for this limited purpose.

C. Unfair prejudice. Although the defendant concedes the slide presentation was relevant evidence, he challenges its admission on the basis that it was unfairly prejudicial. Under our rules of evidence, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...Iowa R. Evid. 5.403. We recently defined the elements weighed in the balancing process required by this rule:

“ ‘[Probative value’ gauges the strength and force of’ the evidence “to make a consequential fact more or less probable.” Unfairly prejudicial evidence is evidence that
“appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.”

Rodriquez, 636 N.W.2d at 240 (citations omitted).

Although our discussion in Hutchison was couched in terms of authenticity, our focus was in reality on the risks and benefits of admitting such evidence. In that case, the trial court and our court on appeal were concerned with the problems arising when a posed or artificially reconstructed scene portrays only one party’s version of the relevant event. Hutchison, 514 N.W.2d .at 890. There, although the plaintiffs contended the videotape was not a re-creation of the accident, causation was a disputed issue and, more importantly, the court was justifiably concerned that the videotape would be used to “amplify without a factual foundation ” the plaintiffs’ theory of the case. Id. (emphasis added). In essence, we properly concluded the trial court did not abuse its discretion because any probative value of the evidence was outweighed by the danger of misleading the jury. See Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528, 538 (2000) (affirming trial court’s refusal to admit video animation of how accident occurred as demonstrative evidence, concluding the probative value did not outweigh “the danger of unfair prejudice and misleading the jury due to the inaccuracies” in the video compared to the proponent’s testimony).

Another case upon which the defendant relies rejected demonstrative evidence for similar reasons. In United States v. Gaskell, 985 F.2d. 1056 (11th Cir.1993), the appellate court reviewed the trial court’s allowance of a demonstration of shaken baby syndrome performed by a witness using a doll. 985 F.2d at 1060. In that case, the defendant claimed he inflicted injuries on a seven-month-old child “in a panicked attempt to revive her.” Id. at 1061. The court noted “the outcome of the trial hinged upon whether the jury believed that the degree of injury suffered” by the child could have resulted from the amount of force the defendant claimed he used. Id. The problem in the demonstration was that “due to differences in the weight of the doll’s head as well as the flexibility and length of the doll’s neck, a considerably greater degree of force was required in order to produce the head movement characteristic of shaken baby syndrome” than what would actually be required to inflict the child’s fatal injuries. Id. at 1060. Consequently, the demonstration did not afford a fair comparison and “tended to implant a.vision of [the defendant’s] actions in the jurors’ minds that was not supported by any factual basis.” Id. at 1061. Accordingly, the court concluded the slight probative value of the demonstration was overwhelmed by its unfairly prejudicial effects. Id. at 1060.

The present case is distinguishable from both Hutchison and Gaskell because the relevant factors in the present case are critically different. Here, there was no dispute about causation or the mechanism of injury; all parties agreed Adaym’s injuries were caused by a severe shaking. Consequently, unlike the cases cited by the defendant, there was no risk in the case before us that the jury would be misled into believing the injury occurred in a manner that was not factually supported by the record.

The trial court recognized this distinguishing feature in deciding to admit the computer-generated exhibit here, noting in its ruling that the challenged evidence did not favor one party’s version of how the injury occurred. In addition to this critical fact, the trial court also properly considered the nature of the demonstration portrayed in the slide. The animation was not overly dramatic. It was clinical in nature and the computer-generated infant showed no facial expression and emitted no sound during the shaking. See People v. Hood, 53 Cal.App.4th 965, 62 Cal. Rptr.2d 137, 141 (1997) (concluding animation that was clinical and emotionless did not “prey on the emotions of the jury,” and its probative value was not outweighed by any prejudicial impact); Pierce, 718 So.2d at 810 (finding no abuse of discretion in admission of computer-generated animation of accident where no blood was shown, no sound was replicated, and mannequins used in demonstration had no facial expressions). Based on these considerations, the court reasonably concluded that any prejudice from the visual depiction of shaken baby syndrome was only that inherent in any unfavorable evidence and, consequently, such prejudice was not unfair. Turning to the other side of the equation — probative value, the court observed the animated slides would be helpful to the jury in understanding the witness’s explanation of how shaking could cause such severe injuries to an infant. See generally State v. Stewart, 643 N.W.2d 281, 294 (Minn.2002) (“Visual aids are relevant if they assist the jury in understanding a witness’s testimony.”). Finally, the court gave a cautionary instruction both before and after the evidence was shown to the jury informing the jurors that the exhibit did not purport to re-create the crime at issue in this case. Thus, not only did the court reasonably balance any unfair prejudice against the probative value of the evidence as required by rule 5.403, it minimized any prejudice by admonishing the jury not to make more of the evidence than what it professed to be — a mere illustration of the witness’s testimony.

In conclusion, we think the trial court properly applied the law and made reasonable judgments that enjoyed support in the record in ruling that the slide presentation was admissible. Therefore, the trial court did not abuse its discretion in allowing the jury to view this demonstrative evidence. See Cauley, 32 P.3d at 608 (finding no abuse of discretion in admission of video animation of how injuries are caused by shaking of baby).

Finding no reversible error, we affirm.

AFFIRMED.

      . The defendant also contends in his brief that the evidence was insufficient to establish that if he did cause Adaym’s injuries, he acted knowingly or intentionally in doing so. See Iowa Code § 726.6(1)(a), (b). Because he does not support this contention with any argument or citation of authority, we do not address this issue. See In re Detention of Garren, 620 N.W.2d 275, 285 (Iowa 2000) (stating failure to argue or cite authority in support of issue may be deemed a waiver of that issue); Iowa R.App. P. 6.14(1)(c) (same).


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Ronald Lewis GREER, Appellant.
    No. C9-02-1382.
    Supreme Court of Minnesota.
    May 29, 2003.
    Mike Hatch, Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant Couty Attorney, Minneapolis, for respondent.
    John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Minneapolis, for appellant Ronald Lewis Greer.
    Ronald Lewis Greer, Bayport, pro se.
   OPINION

HANSON, Justice.

Appellant Ronald Lewis Greer was convicted of first- and second-degree murder. State v. Greer, 635 N.W.2d 82, 84 (Minn. 2001). On his original appeal, we remanded the conviction to the chief judge of the judicial district to determine whether a Schwartz hearing was needed to inquire into ex parte contacts between the trial judge and the jury during Greer’s trial. Id. at 94. The chief judge ordered a Schwartz hearing, heard testimony from the trial judge and six of the twelve jurors, and denied Greer’s motion for a new trial. We affirm.

Greer was convicted of first- and second-degree murder in the July 26, 1998, shooting death of Kareem Brown. Greer, 635 N.W.2d at 84. Greer moved the trial judge for a new trial on several grounds. Id. at 84-85. Among these was his claim that the trial judge engaged in improper ex parte contacts with the jury during the trial. Id. at 85. Greer requested a Schwartz hearing and asked the trial judge to recuse himself from deciding whether to grant that hearing. Id. at 92. Greer also moved the chief judge of the judicial district to remove the trial judge from the post-trial motions, and particularly the motion for a Schwartz hearing. Id. at 92-93. After the chief judge denied Greer’s motion to have the trial judge removed, the trial judge denied Greer’s motion for a Schwartz hearing and denied his motion for a new trial. Id. at 93.

Greer appealed to this court on four issues, including the denial of a Schwartz hearing. Id. at 84-85. We rejected Greer’s first three arguments but remanded to the chief judge of the judicial district to decide whether the ex parte contacts between the judge and the jury warranted a Schwartz hearing. Id. at 85. We voiced our

serious concern * * * that when counsel did, in the context of a motion for a Schwartz hearing, raise the jury contact issue, the motion was decided by the same trial court judge alleged to have engaged in improper conduct. When a judge presides over a motion hearing to decide whether further inquiry is required into the propriety of the judge’s own conduct, it raises questions about the impartiality of the court’s decision. Because public trust and confidence in the judiciary depend on the integrity of the judicial decision-making process, we can ill afford to ignore this problem. We stress that nothing in the albeit sparse record indicates that the trial court’s consideration of Greer’s motion was not impartial. However, the mere appearance of partiality warrants concern. In light of this concern and the inadequacy of the record before us, we remand to the chief judge of the Fourth Judicial District for consideration of Greer’s motion seeking a Schwartz hearing on the issue of the trial court’s ex parte contacts with the jury.

Id. at 93-94.

On remand, Greer’s motion for a Schwartz hearing came before a new chief judge. At a hearing on the motion, the trial judge testified that he “may have briefly communicated with the jury regarding scheduling and exchanged some pleasantries.” All such contact, the trial judge testified, was “incidental.”

Greer submitted affidavits from two law clerks who asserted that the trial judge appeared “visibly angry at defense counsel” during Greer’s trial; that he told them he had “denied defense counsel’s challenges for cause because he was angry with them”; • and that, contrary to his common practice, he had not sent jury questionnaires to the attorneys. One clerk stated that “approximately two” of the questionnaires expressed the belief that “the Judge favored the State.”

Greer also submitted his own affidavit, in which he stated that he had seen the trial judge enter and exit the jury room on a regular basis. Greer described a specific instance in which he heard laughter emanating from the jury room and then saw the trial judge exit the room, “laughing and giggling.”

The chief judge granted Greer’s motion for a Schwartz hearing, and the hearing was held on April 30, 2002. The chief judge summoned six of the twelve jurors, chosen at random, and all six testified at the Schwartz hearing.

One juror testified that he remembered one or two instances in which the trial judge asked if there was anything the jury needed, such as coffee. A second juror testified that the trial judge’s ex parte communications were “about process kinds of things and not about * * * specifics of the case.” A third juror testified that he remembered the trial judge explaining what “the role of the jury really was,” clarifying the information the jurors had read from a booklet they had received. A fourth juror stated that she had no recollection of any ex parte communications between the trial judge and the jury whatsoever. A fifth juror testified that the trial judge made introductory comments to the jurors regarding the jury space. A sixth juror remembered the trial judge telling the jury that “if we were done, we could go eat.”

None of the six jurors recalled any discussion with the trial judge regarding the reasons for procedural delays or the merits of the case. None remembered any episode of jury laughter similar to the one Greer described in his affidavit. All six agreed that ex parte comments from the trial judge had no influence on their verdict and that they had no reason to believe such comments had affected the verdicts of other jurors.

After the six jurors testified, defense counsel requested that the chief judge “bring in the remainder of the jurors for a second hearing.” The state opposed any further testimony because the court had already “called in a fair cross section of the jury.” The chief judge agreed to close the testimony and subsequently issued an order denying Greer’s motion for a new trial.

Greer appeals this ruling, arguing that the district court abused its discretion by refusing to summon and question all twelve jurors who deliberated at trial. He asks for another remand so that the district court can “finish the Schwartz hearing.” In his pro se brief, Greer also raises two new issues regarding his interrogation by police.

I.

In Schwartz v. Minneapolis Suburban Bus Co., we held that, in cases where jury impartiality was brought into question,

rather than permit or encourage the promiscuous interrogation of jurors by the defeated litigant, we think that the better practice would be to bring the matter to the attention of the trial court, and, if it appears that the facts justify so doing, the trial court may then summon the juror before him and permit an examination in the presence of counsel for all interested parties and the trial judge under proper safeguards. If that were done, a situation such as we have here could not arise. A record then could be made which could be presented to this court if any doubt existed about the correctness of the trial court’s ruling after such hearing.

258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). This procedure was later incorporated in Minn. R.Crim. P. 26.03, subd. 19(6), which provides:

Affidavits of jurors shall not be received in evidence to impeach their verdict. A defendant who has reason to believe that the verdict is subject to impeachment, shall move the court for a summary hearing. If the motion is granted the jurors shall be interrogated under oath and their testimony recorded. The admissibility of evidence at the hearing shall be governed by Rule 606(b) of the Minnesota Rules of Evidence.

We have held that the manner in which a district court conducts a Schwartz hearing is within that court’s discretion. State v. Olkon, 299 N.W.2d 89, 109 (Minn.1980). The state argues that Olkon decided the question at issue here, because it likewise involved the questioning of six of the twelve jurors in a Schwartz hearing. Id. at 108. The six were chosen as follows:

Two of the six were jurors named in the document filed with the Court (a letter from Mr. Matthews — a TV investigator — and an affidavit of the father of one of the jurors) reciting alleged anti-Semitic conduct. A third juror was one who was named in an affidavit filed concerning a lunch-time contact with his employer, and, because his presence was needed to question him on that event, was also to be one of the jurors to be questioned about the anti-Semitic allegation. A fourth was one of the oldest jurors who was selected by the Court because Mr. Matthews’ letter referred to “an older man” as a source of a statement indicating bias. The fifth juror was the foreperson of the jury, and the sixth was chosen at random from the remaining jurors to bring to 50% the jury representation at the hearing.
At the hearing, all of the six jurors called testified that they had not heard any anti-Semitic remarks during the deliberations. The juror who had had the contact with his employer testified that the contact had not influenced his decision-making. Therefore, the court denied defendant’s motion for a new trial because of juror misconduct.

Id. at 108-09 (quoting from the trial court) (internal quotation marks omitted). Olkon argued on appeal that the district court’s decision to call only six jurors was an abuse of discretion. We disagreed:

In this case, the trial court did not abuse its discretion in determining to call six jurors, four of whom were referred to in the allegations of misconduct. This is especially true in light of the fact that no juror misconduct was revealed by the testimony of the six jurors.

Id. at 109.

Appellant does not mention Olkon except to note the abuse of discretion standard it adopted for Schwartz hearings. His argument rests on (1) strong language in prior supreme court holdings discouraging ex parte contacts with jurors; (2) the fact that only six jurors were questioned and they “offered several different versions of events during the trial”; (3) the alleged egregiousness of the trial judge’s contacts with the jurors; and (4) “the absence of any evidence that the other [six] jurors were unable to testify.” In light of these facts, appellant argues, the chief judge’s refusal to call the remaining six jurors constitutes an abuse of discretion.

As a preliminary matter, we do not regard Olkon as controlling precedent on the broad question of whether a district court’s refusal to call more than six jurors in a Schwartz hearing is an abuse of discretion. The holding in Olkon was based on its facts. In Olkon, all four jurors potentially identified in the allegations of impropriety were called at the Schwartz hearing. Neither their testimony nor the testimony of two other jurors provided any evidence that the verdict was subject to impeachment. See id. at 109.

In general, we encourage district courts to make all reasonable efforts to hear from all of the jurors who took part in the verdict that is being reviewed in a Schwartz hearing. Nonetheless, under the circumstances of this case, we cannot say that the chief judge abused his discretion when he denied Greer’s motion to call the remaining six jurors. Because all of the alleged ex parte contacts were reported to have taken place in the presence of all the jurors, any one of the jurors was theoretically capable of describing the contacts. The six jurors who did testify gave no indication that the contacts were improper or that there were any grounds to impeach the verdict. We conclude that the district court’s conduct of the Schwartz hearing was not an abuse of discretion.

II.

In his pro se brief, Greer makes two additional arguments regarding statements he made during police interrogation. We have previously held that “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn.1976). We likewise hold that when a case returns to an appellate court after remand, the matters raised and resolved in the original appeal that resulted in the remand, and any claims that were known but not raised in the original appeal, will not be considered.

Affirmed.

      . A Schwartz hearing is used, in situations where jury impartiality has come into question, to permit examination of jurors on the record in the presence of counsel for all parties. Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).