author: LANCASTER, Justice.

text:
    STATE of Minnesota, Respondent, v. Blair Christian WELTZIN, Petitioner, Appellant.
    No. C5-00-127.
    Supreme Court of Minnesota.
    July 26, 2001.

      Cynthia L. Evenson, Asst. Public Defender, Duluth, for appellant.
    Michael Hatch, Atty. Gen., St. Paul, Brian F. Brown, City Atty., Mary E. Asmus, Asst. City Atty., Duluth, for respondent.
   OPINION

LANCASTER, Justice.

A police officer cited appellant Blair Weltzin for underage consumption of alcohol in violation of a state statute, making his behavior a misdemeanor. See Minn. Stat. § 340A.503, subd. 1(a)(2) (2000). At a pretrial hearing, the state moved to amend the charge to a violation of an ordinance that also punished underage consumption but, unlike the statutory charge, did not authorize a penalty of incarceration. Over Weltzin’s objection, the district court allowed the amendment. After a bench trial, Weltzin was convicted of the ordinance violation. He appealed the court’s decision permitting the state to amend the charge from a statutory violation to an ordinance violation, claiming the district court could not do so without his consent. The court of appeals affirmed, concluding that the district court committed no error in permitting the amendment. We affirm.

On April 4, 1999, a police officer cited Weltzin for underage consumption of alcohol in violation of a state statute. See Minn.Stat. § 340A.503, subd. 1(a)(2). Section 340A.503, subd. 1(a)(2), makes it unlawful for anyone “under the age of 21 years to consume any alcoholic beverages.” Violation of this section is a misdemeanor, Minn.Stat. § 340A.703 (2000), and can be punished by up to 90 days in jail or by a fine of up to $1,000. Minn.Stat. § 609.03, subd. 3 (2000).

At arraignment on May 5, 1999, a “tab charge” was entered into the record because the state had not entered a complaint by the date of the arraignment. The charge was based on the April 4 citation and charged a violation of underage consumption. See Minn.Stat. § 340A.503, subd. 1(a)(2). Weltzin pled not guilty and a pretrial hearing was scheduled for May 27.

A tab charge is a brief statement of the offense charged. Minn. R.Crim. P. 1.04(c). It may be used to initiate a prosecution and is a substitute for a complaint. Minn. R.Crim. P. 4.02, subd. 5(3), cmt. (“This statement shall be a substitute for the complaint and is sufficient to initiate the proceedings * * A tab charge will be entered for misdemeanors and some designated gross misdemeanors if, by the time the defendant makes his or her first court appearance, no complaint is filed. Id., subd. 5(3).

At the May 27 pretrial hearing, the state moved to amend the charge against Welt-zin to a violation of a Duluth city ordinance that also prohibited underage consumption. A significant difference between the statute and the ordinance is that the ordinance provides for no possibility of jail time; rather the maximum possible penalty is a $700 fine. Compare Duluth, Minn., Code §§ 8-27(c) (1986), 1-7 (1984), with Minn.Stat. § 609.03, subd. 3. Weltzin opposed the state’s motion to amend, and the district court denied the motion, stating: “There being opposition, the Court will leave it as a misdemeanor charge * * The court’s statement suggests that it relied on Minn. R.Crim. P. 23.04 in deciding to deny the motion. Rule 23.04 governs the process of designating a misdemeanor as a petty misdemeanor, and provides:

If at or before the time of arraignment or trial on an alleged misdemeanor violation, the prosecuting attorney certifies to the court that in the prosecuting attorney’s opinion it is in the interests of justice that the defendant not be incarcerated if convicted, the alleged offense shall be treated as a petty misdemeanor if the defendant consents and the court approves.

After denying the state’s motion, the district court scheduled the jury trial for September 21. Shortly before the trial date, Weltzin’s attorney called the state’s attorney to request a continuance. During this conversation, the state’s attorney explained that she intended to renew the motion to amend the charge in light of a recent Minnesota Court of Appeals decision in which the court held that a Duluth ordinance violation was merely an ordinance violation, not equivalent to a misdemeanor or petty misdemeanor. See generally In re Welfare of D.D.B., 596 N.W.2d 666, 667 (Minn.App.1999).

The district court heard the renewed motion to amend the tab charge on September 23,1999. The state argued that, in light of the recent D.D.B. case, the Duluth ordinance was not within the purview of rule 23.04 and therefore the state did not need Weltzin’s consent to amend the charge. The state also explained that it sought to amend because Weltzin did not have a criminal record and it did not want to give him one in this case. Weltzin again opposed the motion, but this time the court granted it.

After a bench trial that took place on December 28, 1999, Weltzin was found guilty of underage consumption in violation of the Duluth ordinance and was ordered to pay a $100 fine and a library fee. Welt-zin appealed, asserting that the district court erred in permitting the tab charge amendment. He argued, among other things, that he was denied his constitutional right to a jury trial which, he asserted, attached at the moment he was cited and became “accused.”

The court of appeals affirmed the district court’s decision to permit the amendment, holding that Weltzin’s consent was not required to amend the charge because rule 23.04 was not implicated. State v. Weltzin, 618 N.W.2d 600, 605 (Minn.App.2000). The court also reviewed the various rules of criminal procedure with potential applicability to the case, id. at 603-04, and noted that, because the rules would have permitted the state to dismiss the tab charge and recharge the ordinance violation, the district court did not err in permitting the state to do by amendment what it could have done by dismissal. Id. at 606. The court of appeals further held that Weltzin was not denied the right to a jury trial. Id. at 605. We affirm.

Weltzin’s primary complaint to this court is that the district court should not have permitted the tab charge amendment in the absence of his consent. By doing so, Weltzin argues, the district court violated Minn. R.Crim. P. 23.04 and, more importantly, violated his right to a jury trial. We turn first to Weltzin’s rule-based arguments.

Weltzin asserts that Minn. R.Crim. P. 23.04 applies to his case because the Duluth ordinance is equivalent to a petty misdemeanor for purposes of rule 23, see Minn. R.Crim. P. 23.01, and because the policy reasons for requiring a defendant’s consent to amend a misdemeanor to a petty misdemeanor are present here. His argument is without merit. Rule 23.04 governs the designation of a misdemeanor as a petty misdemeanor. If the state designates a misdemeanor as a petty misdemeanor, it must prove the same elements because the nature of the offense and charge do not change. State v. Johnson, 514 N.W.2d 551, 555 (Minn.1994) (“The process of certification as a petty misdemeanor under section 609.131 did not change any elements of the substantive offense or create a new class of offense.”). What changes is that the offense is effectively decriminalized, Johnson, 514 N.W.2d at 553, and if found guilty under this petty misdemeanor designation, a defendant is not saddled with a criminal record and faces no threat of jail time. Here, the state moved to amend, not designate, the statutory charge to the ordinance charge. Contrary to Weltzin’s argument, these two charges are not identical. Although the statute and ordinance both prohibit underage consumption of alcohol, they provide for different affirmative defenses. Compare Duluth, Minn., Code § 8-27 (noting that it is an affirmative defense if only “nonintoxicating malt liquor,” defined as any liquid containing not more than 3.2 percent alcohol by weight, Duluth, Minn., Code § 8-13 (1995), “was consumed or possessed for the purpose of consumption and such consumption or possession was in the presence” of a parent or guardian), with Minn.Stat. § 340A.503, subd. 1(a)(2) (noting that it is an affirmative defense if the defendant “consumed the alcoholic beverage in the household of the defendant’s parent or guardian and with” their consent). As such, the statute and ordinance prohibit different conduct and one cannot be “designated” as the other. The state’s motion to amend, then, was just that — it was not akin to a motion to designate under rule 23.04. Therefore, we conclude that rule 23.04 is not implicated in Weltzin’s case and the district court did not err in permitting the amendment without Weltzin’s consent.

Weltzin contends that if rule 23.04 does not apply to this tab charge amendment, then no criminal procedure rule applies. More specifically, Weltzin argues that although more than one rule discusses how complaints can be amended, no rule expressly permits tab charges to be amended. It is true that many of the criminal procedure rules that permit complaints to be amended do not, by their express language, include and permit tab charge amendments. E.g., Minn. R.Crim. P. 3.04, subd. 2; Minn. R.Crim. P. 12.05 (“The complaint, if any, may be amended at the pretrial conference as prescribed by these rules.”). However, in that tab charges are effectively complaint substitutes, we see no reason to treat them differently from complaints for amendment purposes. See Minn. R.Crim. P. 4.02, subd. 5(3) (1998) (“This brief statement shall be a substitute for the complaint and is referred to as a tab charge in these rules.”); Minn. R.Crim. P. 4.02, subd. 5(3), cmt. (“This statement shall be a substitute for the complaint and is sufficient to initiate the proceedings * * *.”). This conclusion is further reinforced by Minn. R.Crim. P. 15.07, addressing plea agreements, which suggests that tab charges can be amended: “In either event, the plea may be entered without amendment of the indictment, complaint or tab charge.” Finally, as noted by the court of appeals, the rules do expressly permit tab charges like this one to be dismissed and recharged without leave of court. Weltzin, 618 N.W.2d at 606 (citing Minn. R.Crim. P. 30.01). In this case, the state could have accomplished the same result by simply dismissing and recharging. For these reasons, we conclude that the rules do not prohibit a tab charge amendment.

We now turn to Weltzin’s claim that by allowing the state to amend the charge from a statutory offense to an ordinance violation, the district court denied his right to a jury trial. Under federal constitutional law, the right to a jury trial generally does not attach unless the charged crime is punishable by incarceration for more than six months. See Lewis v. United States, 518 U.S. 322, 326, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). In Minnesota, the right to a jury trial is broader, extending to all prosecutions for which the maximum authorized penalty is incarceration. Minn. R.Crim. P. 26.01, subd. l(l)(a). This includes prosecutions for ordinance violations punishable by incarceration. Id., see City of St. Paul v. Whidby, 295 Minn. 129, 136, 144, 203 N.W.2d 823, 827, 832 (1972) (holding that in all proceedings for municipal ordinance violations that could result in incarceration, defendants must enjoy the presumption of innocence, and stating that “[t]he fact that certain acts are proscribed by ordinances enacted by a municipal corporation in its legislative capacity rather than by state criminal statutes makes them no less criminal in nature.”).

This right to a jury trial derives from Minn. Const, art. I, § 6, which states that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury * * Because a “crime” is defined as “conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine,” Minn.Stat. § 609.02, subd. 1 (2000), an ordinance violation could necessitate a jury trial depending on the possible penalty attached. The offense for which Weltzin was charged by amendment, however, was not punishable by incarceration.

Weltzin essentially argues that when he was charged initially with an offense that carried the potential for incarceration, his right to a jury trial “attached” and remained with him throughout the proceedings regardless of dismissal or amendment. He does not accurately cite any authority for the proposition that the right to a jury permanently “attaches” the moment a defendant becomes accused, and we could find none. While Weltzin may have expected to have a jury trial when he was charged with an incarceration offense in April 1999, the possibility of incarceration disappeared in September 1999 when the charge was amended. With the disappearance of the risk of incarceration, he lost the right to have a jury, rather than a judge, determine the facts at his December trial.

In summary, we hold that rule 23.04 of the Minnesota Rules of Criminal Procedure was not implicated when the district court permitted the state to amend a tab charge of underage consumption in violation of Minn.Stat. § 340A.503, subd. 1(a)(2), to a charge of underage consumption in violation of Duluth, Minn., Code § 8-27(c), and therefore the district court did not err in permitting the amendment over Weltzin’s objection.

Affirmed.

      . At the time Weltzin was charged, $700 was the maximum possible fine for a misdemean- or. Minn.Stat. § 609.03, subd. 3 (1998). Since then, the fine limit for a misdemeanor has been raised to $1,000. Minn.Stat. § 609.03, subd. 3 (2000).

      . "As used in these rules, the term 'tab charge’ is a brief statement of the offense charged including a reference to the statute, rule, regulation, ordinance, or other provision of law which the defendant is alleged to have violated which the clerk shall enter upon the records.” Minn. R.Crim. P. 1.04(c).

      .Minnesota Rules of Criminal Procedure 4.02, subd. 5(3), provides in part:
      If there is no complaint made and filed by the time of the defendant’s first appearance in court as required by this rule for a misdemeanor charge or a gross misdemeanor charge for those offenses designated under Rule 1.04(b), the clerk shall enter upon the records a tab charge as defined in Rule 1.04(c) of these rules. However, in a misdemeanor case, if the judge orders, or if requested by the person charged or defense counsel, a complaint shall be made and filed.
      In this case, Weltzin apparently made no request for a complaint and the judge did not order one. Therefore, this prosecution was initiated based solely on the tab charge.

      . The Duluth ordinance prohibits any person under 21 from having any alcoholic beverage present in his or her body as evidenced "by observable symptoms or chemical tests.” Duluth, Minn., Code § 8-27(c).
      See http://www.ci.duluth.mn.us/city/clerk/ codemain.html, for Duluth ordinances.

      . In light of our disposition, we do not address this issue.

        . According to Weltzin, the consent requirement of rule 23.04 exists, at least in part, to protect defendants' constitutional right to a jury trial.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the WELFARE OF M.P.Y.
    No. C7-99-2017.
    Supreme Court of Minnesota.
    July 26, 2001.

      Michael F. Crommett, Asst. State Public Defender, Minneapolis, for appellant.
    Michael Hatch, Atty. Gen., St. Paul, Amy Klobuchar, Hennepin County Atty., David C. Brown, Asst. County Atty., Minneapolis, for respondent.
   OPINION

LANCASTER, Justice.

Appellant, 16-year-old M.P.Y., was charged with two counts of first-degree aggravated robbery in an extended jurisdiction juvenile (EJJ) delinquency prosecution. A jury convicted him of both counts, and he was sentenced to two concurrent sentences of 48 months. The sentencing judge ordered that M.P.Y. be placed in Glen Mills Academy. Pursuant to the rules of juvenile procedure, M.P.Y.⅛ 48-month adult sentence was stayed contingent upon cooperation with the conditions of placement at Glen Mills, compliance with the EJJ probation terms upon release from Glen Mills, and continued law abiding behavior. See Minn. R. Juv. P. 19.08.

M.P.Y. appealed, arguing, among other things, ineffective assistance of counsel and improper preclusion of his alibi testimony. The court of appeals declined to reach the claim of ineffective assistance of counsel, and affirmed the trial court’s decision to preclude M.P.Y.’s alibi testimony. We granted review on both of these issues.

On October 16, 1998, shortly before 9:00 p.m., two men robbed a Tom Thumb convenience store located on the corner of Cedar and 37th Street in Minneapolis. A cashier and a manager were working at the store at the time of the robbery. The cashier was behind the register and the manager was filling a cooler when the robbery ensued. Both assailants wore dark clothes, dark hats, and had bandanas covering their faces. One assailant went behind the counter and demanded that the cashier open the cash register, while the other assailant stood at the door, pointing a silver handgun at the cashier. When the manager came out of the cooler, the assailant by the register said “[wjatch him. Watch him.” The cashier opened the register and the assailant took the money out of the register and put it in a black garbage bag. The cashier stated that there was less than $200 in the register, but he did not know the exact amount. Both assailants then ran out the door, and the manager called the police. The manager testified that the suspects ran north through an alley when they left the store. As they ran out the door, the suspects dropped several $1 bills. A videotape from a surveillance camera confirmed these events.

The manager described one of the assailants as tall and thin and the other as shorter and heavier. The taller assailant was the one standing at the door with the gun. M.P.Y. fit the description of the taller assailant. The manager also described the suspects as Hispanic, based on their skin color and the hair that was visible under their caps. Investigators were not able to recover any fingerprints that matched the suspects.

A description of the robbery and the suspects was dispatched over Minneapolis police radios just before 9:00 p.m. An investigator found a black plastic bag and ten $1 bills in the alley just north of the store. Another officer found a dark jacket, two bandanas, a silver pellet gun, a pair of brown gloves, a black stocking cap, a black pullover and some crumpled up $1 bills just northwest of the convenience store. Two additional officers in a squad car headed north from the Tom Thumb and then west to begin looking for suspects. At about 9:10 or 9:15 p.m., the two officers in the squad car saw two males, one taller and thinner and the other shorter and stockier, coming out of an alleyway wearing dark clothing. When the two pedestrians saw the police, they put their heads down as if they did not want to be seen. The officers pulled over and ordered the suspects to the ground at gunpoint. The suspect identified as M.P.Y. removed and threw to the ground a black knit cap that he was wearing.

Both suspects were breathing heavily and sweating although it was a cool evening. One of the officers described the suspects as appearing very nervous, looking at each other when the officers asked them questions. The second suspect had $117 in small bills wadded up in his pocket. Both suspects were arrested for aggravated robbery. After booking the suspects, a cylinder fitting the pellet gun found earlier was found in the second suspect’s pocket.

M.P.Y. was charged with two counts of first-degree aggravated robbery. His case was certified for an EJJ proceeding and was tried to a jury in Hennepin County District Court. The state requested notice of defenses and details of witnesses to any defense of alibi nearly a month before trial.

At the beginning of trial, M.P.Y.⅛ counsel gave a very brief opening statement. In it he said, “[o]n the night of October 16th * * ⅜ [M.P.Y.] was hanging out with a buddy of his * ⅜ ⅜. They went to visit an aunt at approximately 33rd and 16th street. * ⅜ * And that’s where they were on the evening hours between about 8 and 9 o’clock.” At the end of defense’s opening statement, the prosecution requested to approach the bench and a discussion was held off the record. Based on a later reference to this discussion, it appears the discussion involved an objection to an alibi reference in the opening statement. The court did not issue any corrective instruction.

Two days later, after presenting four witnesses, the prosecutor made a record of his earlier objection to any alibi testimony while the jury was out of the courtroom. The prosecutor noted that, as of the beginning of trial, the state had not received any witness list or “notice of a defense.” In response to the state’s objection, defense counsel stated that he only intended to call the defendant as a witness. In his argument before the judge, the prosecutor specifically recalled telling defense counsel that if the defendant was going to present an alibi defense, the state was entitled to notice, and the defense did not dispute this statement. Counsel for M.P.Y. did not respond to the request for notice. The prosecutor argued that because he had not been given notice as required under Minn. R.Crim. P. 9.02, subd. 1(3), and thus had been precluded from investigating the alibi, the defendant should not be allowed to offer testimony regarding where he was at the time of the robbery. The state referred to the part of defendant’s opening statement that said that the defendant was at an aunt’s house between 8 and 9 o’clock (the time of the robbery), and argued that this was an alibi.

Defense counsel replied that it was not his intention to call any alibi witness. Rather, he intended to explain the route M.P.Y. was taking when he was arrested, and this required the defendant to explain that he had been coming from an aunt’s house. Defense counsel admitted that he made a mistake and did not know that this was an alibi. He also argued that he did not see how the state would be prejudiced by the lack of notice, because no other witness would be called to corroborate the defendant’s testimony. The trial court ruled that this was clearly an attempt to offer an alibi and that any testimony regarding where M.P.Y. was immediately preceding or at the time of the crime would not be allowed. The court reasoned that the state was not given the opportunity to investigate the alleged alibi and that it would be “unprepared to counter [the] testimony.” The defendant did not make an offer of proof as to the substance of the alibi testimony.

Later, as M.P.Y. was testifying, he was asked whether and how he knew about the money found in his companion’s pocket. He responded that he knew about the money “[b]ecause we went to a cash — get his check cashed by his aunt.” The state objected and the judge sustained the objection and ordered that the answer be stricken. At the same time, appellant said, “[o]h, yeah, I can’t say that,” indicating that he had been instructed not to testify as to where he was before he was arrested. Appellant further testified that he was not involved in the robbery and that he was “nowhere near” the Tom Thumb that night.

The jury found M.P.Y. guilty of two counts of aggravated robbery in the first degree, and he was sentenced to two concurrent terms of 48 months, the presumptive sentence. Pursuant to the rules of juvenile procedure, the 48-month adult sentence was stayed conditioned on M.P.Y.’s compliance with the terms of his placement at Glen Mills Academy, lawful behavior for the duration of the sentence, and compliance with the terms of his EJJ probation upon release from Glen Mills. See Minn. R. Juv. P. 19.08.

Before we can reach the substantive issue of this case, we must first address the issue of forfeiture, because appellant did not make an offer of proof when his testimony was not allowed. “We have held that a party fails to preserve for appeal a ruling excluding evidence when that party fails to make an offer of proof showing the nature of the evidence excluded.” State v. Wolf, 605 N.W.2d 381, 385 (Minn.2000). Minnesota Rules of Evidence 103(a)(2) states in relevant part that error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected and “the substance of the evidence was made known to the court by offer [of proof] or was apparent from the context within which questions were asked.” In this case, the ruling at issue affects a substantial right of the appellant, his right to testify on his own behalf and his right to present a defense. Both the United States Supreme Court and this court have held that the defendant’s right to testify in his own defense is protected by the Fourteenth Amendment Due Process Clause. Rock v. Arkansas, 483 U.S. 44, 49, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); State v. Ihnot, 575 N.W.2d 581, 587 (Minn.1998).

M.P.Y.’s claim also meets the second prong of Minnesota Rules of Evidence 103(a)(2). Although no offer of proof was made, the substance of the precluded testimony was apparent. M.P.Y.’s defense attorney stated in his opening statement that appellant was at an aunt’s house between 8 and 9 o’clock, the time of the robbery. The defense attorney stated that he “intended to offer * ⅜ * the route [his] client was taking when he was arrested: Where he was coming from. Where he was going to. Thus, how he landed at the specific spot at which he was arrested.” Because the statements of the defense attorney revealed the substance of M.P.Y.’s intended testimony in this case, a formal offer of proof was not necessary to preserve the issue for appeal.

M.P.Y. argues that it was an abuse of discretion for the trial court to preclude his alibi testimony. We review evidentiary rulings under an abuse of discretion standard. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). If the exclusion of evidence violated the defendant’s constitutional right to present a defense, we will reverse the conviction unless the error is found to be harmless beyond a reasonable doubt. Id. Appellant argues that the trial court’s decision to preclude his alibi testimony violated his right to present a defense.

Minnesota Rules of Juvenile Procedure 10.05, subd. 1(C)(1), states in part that upon the prosecuting attorney’s request, the child’s counsel must disclose in writing any defense, other than denial, including alibi. Subdivision 1(C)(4) states in part that if the child intends to offer evidence of an alibi, the child’s counsel shall inform the prosecutor of the specific place or places where the child contends he was when the alleged delinquent act occurred. It is not disputed that appellant’s trial counsel failed to give the required notice regarding M.P.Y.’s alibi. Therefore, the issue for us to determine is whether it was an abuse of the trial court’s discretion to preclude the alibi testimony as a sanction for violation of the notice provision.

Minnesota Rules of Juvenile Procedure 10.06, subd. 7(A), sets forth the sanctions for violating the rules of discovery. If it comes to the attention of the court that either party violated the discovery rules, “the court may upon motion, order discovery or inspection, grant a continuance, or enter such order as it deems just in the circumstances.” Minn. R. Juv. P. 10.06, subd. 7(A).

Although we have held that preclusion of witness testimony is a valid sanction for discovery violations, this case presents us with a more difficult question because it is the defendant’s testimony that was precluded. As we stated earlier, the Fourteenth Amendment protects a defendant’s right to testify in his own defense. See Rock, 483 U.S. at 49, 51, 107 S.Ct. 2704; Ihnot, 575 N.W.2d at 587.

The United States Supreme Court held in Rock that although a defendant has a right to testify on his own behalf, his testimony can be limited to “accommodate other legitimate interests in the criminal trial process.” 488 U.S. at 55, 107 S.Ct. 2704. However, “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 56, 107 S.Ct. 2704.

Because a defendant has a constitutional right to testify on his own behalf, safeguards exist to ensure that this right is not violated. For example, the right to testify is personal and cannot be waived by counsel. State v. Rosillo, 281 N.W.2d 877, 878 (Minn.1979). Additionally, the waiver of the right to testify must be voluntary and knowing. State v. Walen, 563 N.W.2d 742, 751 (Minn.1997). Although it is not required in this state, it is also common for a trial court to confirm with the defendant on the record that his waiver of the right to testify is knowing and voluntary. See id. at 751-52.

Because we are careful to protect a defendant’s right to testify, we are particularly cautious in reviewing a court’s decision to preclude a defendant’s testimony. See Rock, 483 U.S. at 57-58, 107 S.Ct. 2704 (applying a heightened constitutional analysis where the court excluded a defendant’s, rather than a witness’s, testimony). In this case, the district court’s decision to preclude the defendant’s testimony cannot be arbitrary or disproportionate to the purpose the sanction was meant to serve. See id. at 58, 107 S.Ct. 2704. If we find that the district court’s decision was an abuse of discretion because it did not meet this standard, we must reverse the conviction unless we conclude that the error was harmless beyond a reasonable doubt. See Kelly, 435 N.W.2d at 813.

The United States Supreme Court has upheld the preclusion of witness testimony as a sanction where a party willfully violated a discovery rule to gain a tactical advantage. Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). In Taylor it was not the defendant, however, who was precluded from testifying. Id. at 406, 108 S.Ct. 646. In that case, on the second day of trial, the defendant moved to amend his witness list, adding two witnesses who allegedly witnessed the incident that led to the attempted murder with which the defendant was charged. Id. at 403, 108 S.Ct. 646. The defendant’s counsel claimed that he had just been informed about the witnesses. Id. After further inquiry and an offer of proof involving the full testimony of a witness, the trial court found that there was a willful violation of the discovery rules and did not allow the testimony. Id. at 406, 108 S.Ct. 646. Upon review, the Court held that there are situations where preclusion of testimony is a proper sanction for discovery violations. See id. at 415, 108 S.Ct. 646. In Taylor, the Court found that there was willful misconduct deserving of the “severest sanction.” Id. at 417, 108 S.Ct. 646.

In upholding a Florida notice of alibi statute, the Supreme Court also held that, “[gjiven the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.” Williams v. Florida, 399 U.S. 78, 81, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In that case, the appellant argued that the notice of alibi requirement violated his Fifth Amendment right against self incrimination. Id. at 82, 90 S.Ct. 1893. The Supreme Court rejected the argument and held that the notice of alibi statute was a valid discovery rule. See id. at 85-86, 90 S.Ct. 1893.

We have previously examined preclusion of alibi witness testimony as a sanction for violating the discovery rules. In State v. Lindsey, we upheld a trial court’s decision to preclude the testimony of a defense witness and to strike another’s partial testimony because the witnesses had not been disclosed to the state. 284 N.W.2d 368, 372, 373 (Minn.1979). We recognized the essential role that pretrial discovery plays in the criminal justice system, noting that it “avoids surprise, discourages false defenses, and aids in the detection of perjury by witnesses.” Id. at 372-73. We stated that imposing sanctions for violations of the discovery rules is a matter particularly suited to the discretion of the trial court. Id. at 373. In exercising this discretion, the trial court “should take into account: (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.” Id.

Under the first factor, the defense attorney in this case admitted that the reason he did not disclose M.P.Y.’s alibi defense was because he made a mistake. However, a defense attorney has an obligation to understand the basic rules of discovery. Counsel for M.P.Y. should have understood his duty to disclose M.P.Y.’s alibi testimony from a simple reading of Minn. R. Juv. P. 10.05, subd. 1(C)(1). In Taylor, the Supreme Court upheld preclusion of witness testimony as a sanction where there was willful discovery misconduct. 400 U.S. at 402, 91 S.Ct. 431. This court has gone as far as to uphold the preclusion of witness testimony where there was not necessarily bad faith, but where there was an unjustified disregard of the discovery obligation. See Lindsey, 284 N.W.2d at 373. In the case at hand, it appears that there was an unjustified disregard of the discovery obligation. In Taylor, when reviewing the reason why disclosure was not made, the Supreme Court also considered the simplicity of compliance with the discovery rule that was at issue. 484 U.S. at 415, 108 S.Ct. 646. We also find the simplicity of complying with rule 10.05, an elementary discovery rule, a relevant factor in our analysis.

As to the second factor listed in Lindsey, M.P.Y. argues that it is questionable whether the state suffered any prejudice from the nondisclosure because the state, in order to prove guilt beyond a reasonable doubt, had the burden of proving that appellant was at the scene of the robbery. The state responds that testimony by M.P.Y. that he was somewhere else at the time of the crime could raise some question or doubt in the jury’s mind. The trial court pointed out the state would have no opportunity to counter the alibi testimony if it was allowed. If the state had the opportunity to investigate the alibi and cross-examine or otherwise impeach the defendant, the danger of doubt borne of unfair surprise could be eliminated. Therefore, although the state has the burden of proving the defendant was present at the scene of the crime, the state can still be prejudiced by being denied the opportunity to investigate an alibi.

One of the purposes of the disclosure of alibi rule is to avoid the type of surprise that was present here. See Lindsey, 284 N.W.2d at 372-73. This type of discovery rule increases the information available to both parties and enhances the fairness of trial. Id. Another purpose is to minimize the costs of criminal litigation. Id. These purposes are thwarted if the state has to assume that it can be faced with surprise alibi testimony at trial, and engage in virtually endless pretrial investigation in order to be prepared for each possible alibi.

This leads us to the third factor we consider — the feasibility of rectifying the prejudice by ordering a continuance. There is no evidence in the record that the trial court considered a continuance or that the state requested one. In fact, the record is devoid of any indication that the state made any effort to investigate the alibi. As explained earlier, we carefully guard the rights of a criminal defendant. Thus, in accordance with Lindsey, the trial court was required to consider the feasibility of ordering a continuance to rectify any prejudice suffered by the state. 284 N.W.2d at 373. We conclude that the trial court abused its discretion by denying M.P.Y. the right to testify on his own behalf without first considering whether a continuance would rectify any prejudice that the state might suffer as a result of the defense attorney’s omission.

It is not clear in this case why it was not feasible to rectify any prejudice by ordering a continuance. Even a continuance of one day might have allowed the state to investigate any alleged alibi. Further, the possibility of M.P.Y. offering alibi testimony was apparent as early as the opening argument when the state made its objection. If for some reason the trial court thought that a continuance was not a feasible solution, this should have been stated on the record so it would be evident that a continuance was at least considered. In the absence of a record identifying compliance with the Lindsey factors, we cannot be confident that the sanction was not disproportionate to the purpose it was meant to serve. We conclude, therefore, that the preclusion of M.P.Y.’s testimony was an abuse of discretion.

Although we conclude that it was unconstitutional to preclude M.P.Y.’s testimony, we will not remand this case for a new trial if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When constitutional errors are involved, the state has the burden of proving that the error did not contribute to the jury’s verdict. State v. Conklin, 444 N.W.2d 268, 275 (Minn.1989). “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.” State v. Jones, 556 N.W.2d 903, 910 (Minn.1996).

At trial, M.P.Y. was allowed to testify that he was not involved in the robbery of the Tom Thumb, nor was he anywhere near the Tom Thumb on the night of the robbery. However, M.P.Y. was not allowed to testify that he was at an aunt’s house between 8 and 9 o’clock when his companion cashed a check. Such testimony would have provided the jury with a reason why M.P.Y.’s companion had the money that was found in his pocket. We are not convinced beyond a reasonable doubt that the preclusion of this testimony did not have any impact on the jury’s verdict of guilty. Additionally, the evidence in this case was circumstantial, and a reasonable jury might not be convinced of guilt beyond a reasonable doubt in light of M.P.Y.’s precluded testimony. Furthermore, the defendant’s credibility was damaged because the state and the court did not address the statement regarding an alibi as soon as it was made in the defendant’s opening statement. After the opening statement was complete, the state presumably objected off the record to the lack of notice of an alibi defense, but the judge did not issue any curative instruction. When M.P.Y. appears to have tried to testify that he was at an aunt’s house, he was interrupted with an objection and responded, “[o]h, yeah, I can’t say that.” For these reasons, we cannot say that the guilty verdict was surely unattributable to the district court’s error and, therefore, we cannot conclude that the district court’s error was harmless beyond a reasonable doubt. We hold that the exclusion of M.P.Y.’s testimony was error and the error was not harmless beyond a reasonable doubt. We reverse the court of appeals’ decision and remand this case to the district court for a new trial. Because we are remanding this case for a new trial, it is not necessary for us to address appellant’s ineffective assistance of counsel claim.

Reversed and remanded.

      . Counsel’s actual statement was "[t]his somewhat, I would say, a mistake of thinking on my part. * ⅜ ⅛ My thinking has been that known to an alibi [sic], if it does, then my thinking is incorrect.” In any case, M.P.Y. argued in his brief that defense counsel's failure to disclose the alibi testimony was due to his ignorance of the fact that the defendant's own testimony as to where he was at the time of the crime was considered an alibi.

      . In district court, the parties and the court analyzed the issue under Minnesota Rules of Criminal Procedure 9.02, subd. l(3)(a). The court of appeals addressed the juvenile rule. Both rules require a defendant to give notice of an alibi defense and notice of specifically where the defendant was at the time of the crime.


author: RUSSELL A. ANDERSON, Justice.

text:
    Michael A. WEED, Relator, v. COUNTY OF FILLMORE, Respondent.
    No. C6-01-48.
    Supreme Court of Minnesota.
    July 26, 2001.

      Matthew J. Opat, Chatfield, for respondent.
    Michael A. Weed, Spring Valley, pro se.
   OPINION

RUSSELL A. ANDERSON, Justice.

Relator Michael A. Weed appeals from the tax court judgment that his one-acre agricultural homestead in respondent County of Fillmore (the county) has an estimated market value of $8,000 as of January 2, 1999. We consider whether the evidence reasonably supports the tax court’s decision and we affirm.

In 1975, relator purchased for $1,000 an old house on three acres of land along the south branch of the Root River in Forest-ville Township in Fillmore County. The house, which relator restored and eventually made his home, is serviced by a well and septic system. According to relator, the septic system is 25 years old and “the well is 20 feet deep and provides very limited amounts of occasionally polluted water.” Relator testified that access to the property is by permanent easement. According to relator, in 1983 Forestville Township vacated a township road that provided access to his property. In exchange for a permanent access easement over neighboring land, he agreed not to sue the township for any loss of value to his property resulting from vacation of the township road. Relator currently accesses his property by a bridge which he built over the river.

For tax purposes, two of relator’s three acres are classified agricultural and one acre, the home site, is classified agricultural homestead. The land of an agricultural homestead must be valued separately from the dwelling. Relator does not contest the assessor’s valuation of his two agricultural acres at $450 each or the assessor’s valuation of relator’s house at $2,600. Relator does contest, however, the $8,000 valuation of the agricultural homestead land. According to respondent, relator’s total taxes for the year 2000 were less than $100 on the entire parcel.

After the township board and the county board of equalization denied relator’s request to reduce the assessor’s estimated market value from $8,000 to $300 for the agricultural homestead land, relator petitioned the tax court for relief. Following trial, the tax court concluded that, as of January 2, 1999, the subject property’s estimated market value was $8,000. The tax court explained that in reaching its determination of estimated market value, it relied heavily upon the sales approach. The tax court explained the procedures necessary to verify the reliability of the sales approach: research of the sales data, verification of the data “as accurate and representative of arm’s-length transactions,” selection of relevant sales for comparison, comparison of the sales with the subject property, adjustment of the price for various elements of comparison, and reconciliation of multiple indications of value into a single value or range of value.

The county supported its valuation of the subject property with a formal appraisal report, received into evidence at trial, and testimony from two assessors. The tax court concluded that the report and testimony were reliable. The tax court explained that the six sales relied upon by the county in its report were of properties appropriately comparable to the subject property because of dates of sale, condition, and location. All six of the properties were classified, like the subject property, as agricultural homestead sites and all had wells and septic systems.

By contrast, relator offered his written summary of the sales of 84 properties but acknowledged that not all of the sales were relevant. The tax court sustained the county’s objection to receipt of the relator’s written summary of 84 sales but relator was allowed to select from his summary and to testify about four sales of property he considered most comparable to the subject property. The tax court received certificates of real estate value for each of the four sales upon which relator relied. When the tax court issued its decision, it explained that the four sales upon which relator relied were properties that did not have wells and septic systems and had not been adjusted for size. The tax court also explained that there was no evidence that the sales were arm’s-length transactions. The tax court determined that the sales upon which relator relied were not comparable to the subject property and the tax court could not rely on them to determine a value for the subject property.

Relator appeals to this court arguing that the tax court erred by considering use and classification of the subject property to determine its value. Relator contends that the tax court instead should have admitted into evidence relator’s written summary of 84 property sales for land only and should have considered evidence of the four sales of property relator considered most comparable to the subject property. Relator further argues that the well and septic system are attached to the house and thus, for tax purposes, should be considered only in the separate valuation of the house. He argues that if the well and septic system are determined to be attached to the land, the assessor failed to take into account the age and condition of the well and septic system when he appraised the subject property. Relator further argues that the value of the subject property should have been reduced because of his limited access to it from a public road. Relator argues that the tax court should have concluded that the subject property had a value of $300, not $8,000.

For tax purposes, property is to be valued at its market value, defined as “the usual selling price * * * which could be obtained at a private sale or an auction sale, if it is determined by the assessor that the price from the auction sale represents an arms length transaction.” Minn. Stat. § 272.03, subd. 8 (2000). Relator carries the burden of proof of demonstrating that his property has been unfairly and inequitably assessed. Short v. County of Hennepin {In re Objection to Real Prop. Taxes), 353 N.W.2d 525, 530 (Minn.1984). The tax court is the exclusive and final authority for the determination of questions of law and fact arising under the tax laws of this state, subject to review by this court. Minn.Stat. § 271.01, subd. 5 (2000). We review the tax court’s legal decisions de novo. Marquette Bank, 589 N.W.2d at 304. Because determining the value of property is an inexact science, we defer to the tax court’s decision unless the tax court clearly overvalued or undervalued the property or completely failed to explain its reasoning. Equitable Life Assurance Soc’y v. County of Ramsey, 530 N.W.2d 544, 552 (Minn.1995). We will sustain the tax court’s property valuation unless the decision is clearly erroneous, meaning “that the evidence as a whole does not reasonably support the decision.” Marquette Bank, 589 N.W.2d at 305. We must have a “definite and firm conviction that a mistake has been committed” before reversing a tax court decision valuing property. Evans v. County of Hennepin, 548 N.W.2d 277, 278 (Minn.1996).

We first consider relator’s argument that the tax court erred by considering the use and classification of the subject property to determine its value. Relator ignores the legislative mandate that for tax purposes, agricultural property and agricultural homestead property are to be classified and valued separately and that the land and dwelling of an agricultural homestead are to be valued separately. See Minn.Stat. § 273.13, sub'd. 23; Minn.Stat. § 273.11, subd. 1. Not only does relator ignore the legislative mandate, he ignores the reality that agricultural homestead land has greater value than bare agricultural land, confirmed by the county’s formal appraisal report and the testimony of its assessors.

Relying on our decision in Wagner v. Comm’r of Taxation, 258 Minn. 330, 104 N.W.2d 26 (1960), relator argues that a property’s value does not depend on its present use or classification but only on its highest and best use. Relator contends that since certificates of real estate value do not include separate values for an agricultural homestead acre, agricultural acres, or buildings, the only way to determine the value of an acre for agricultural homestead land is to compare it with sales of agricultural acres. Relator argues that the tax court should have admitted into evidence relator’s summary, derived from certificates of real estate value, of 84 “land-only” properties to determine the value of the subject property.

Relator’s reliance on Wagner is misplaced. In Wagner, a dairy farm bounded by the city limits of Bemidji on the south and Lake Bemidji on the east was classified agricultural. Wagner, 258 Minn, at 331-32, 104 N.W.2d at 27. The township assessor assessed the property as rural with a value of $1,730 but the county assessor changed the classification to urban, increasing the property’s total valuation to $17,877. Id. at 332, 104 N.W.2d at 27. The property owner applied for abatement and the county board reclassified the land as rural and valued the property at $13, 646. Id. at 332, 104 N.W.2d at 27-28. The property owner appealed. Id. At trial, real estate experts testified that the land had a higher and better use as residential property. Id. The trial court defined the property as “rural in character” but determined that the value of the land was not less than that fixed by the county assessor. Id. On appeal to this court, we affirmed the trial court. Id. at 334, 104 N.W.2d at 29.

We did not reject use and classification as the measure of a property’s value but held that all factors must be considered including use and classification. Id. at 333, 104 N.W.2d at 28. Demand for the Wagner property for residential purposes was a factor that increased its value. Id. Relator urges us to reject the subject property’s use and classification altogether and measure the property as agricultural rather than as agricultural homestead, a higher and better use which the legislature equates with the residential classification. Minn.Stat. § 273.13, subd. 23. Neither Wagner nor Minn.Stat. § 273.13, subd. 23, support relator’s argument. We hold that a property’s use and classification may be considered in the valuation of property.

In further support of his argument that the tax court should not consider a property’s use and classification, relator contends that the tax court should have received into evidence relator’s summary of 84 “land only” property sales to determine the value of the subject property and that the tax court should not have received into evidence the county’s formal appraisal report. We will not disturb a tax court’s evidentiary rulings absent legal error or abuse of discretion. Marquette Bank, 589 N.W.2d at 307. Relator acknowledges that not all of the 84 property sales in his summary were relevant. Relator’s summary does not indicate which sales, if any, are of agricultural homesteads. Moreover, relator was permitted to select from his summary and give testimony about four sales of property he considered most comparable to the subject property, although none had wells or septic systems. By contrast, the county’s formal appraisal report included sales of agricultural homesteads which had been adjusted for differences between those properties and the subject property. We conclude that the tax court did not abuse its discretion by not receiving into evidence relator’s summary and receiving into evidence the county’s formal appraisal report.

Relator next argues that the tax court erred by including the property’s well and septic system in the value of the land. Relator contends that the well and septic system should be included in the value of the house since the well and septic system are annexed to and integrated with the house by pipes. The county responds that the well and septic system are part of the land, that removing them would damage the land and that removing them from the house requires only the severing of pipes. The county assessor testified that the county consistently includes the well and septic system in its valuation of agricultural homestead land.

Buildings as real property include the structure and improvements annexed to them, integrated with them, and of permanent benefit. Minn.Stat. § 272.03, subd. 1(b) (2000). On the other hand, land as real property includes those things annexed to the land, on the land, and in the land. Minn.Stat. § 272.03, subd. 1(a) (2000). These definitions imply a direct connection to the building or to the land. The well and septic system are connected to the house only indirectly by pipes but are placed directly in and are surrounded by the land. Because the well and septic system have a direct connection to the land, the value of the well and septic system are appropriately considered part of the land for purposes of property valúation. The tax court explained that the properties in the county’s formal appraisal report with wells and septic systems were comparable to the subject property.

In the alternative, relator argues that if the well and septic system are valued with the land, the tax court ignored their age and dilapidated condition. Relator offered no evidence quantifying the value of his well and septic system or comparing the condition of his well and septic system to the conditions of wells and septic systems on comparable properties. Relator has failed to carry his burden of proving that his property has been unfairly and inequitably assessed because of the condition of his well and septic system.

Relator also contends that limited access to his property decreases the value of the subject property. While the record regarding access is unclear, it appears that access to the property is by way of a permanent easement over neighboring property and over the bridge that respondent built.

We have recognized that the lack of access to a public road affects a property’s value. Beer v. Minn. Power & Light Co., 400 N.W.2d 732, 735 (Minn.1987). Relator failed to quantify any decrease in property value attributable to the limited access or to compare the limited access of his property with comparable properties. Moreover, relator testified that he agreed to refrain from suing the township for any reduction in his property value in exchange for the permanent easement he was given when the township vacated the road. Relator has failed to prove that his property has been unfairly and inequitably assessed because of limited access.

In summary, we conclude that the county’s formal appraisal report of comparable sales of nearby agricultural homestead parcels with wells and septic systems, and the assessors’ testimony as to how the county accounted and adjusted for differences between the comparable properties and relator’s property, reasonably support the tax court’s decision. We hold that the tax court did not abuse its discretion by not admitting relator’s written summary of 84 sales, the evidence reasonably supports the tax court’s decision, and relator has failed to prove that the tax court’s decision was clearly erroneous.

Affirmed.

      . "In every year, on January 2, the assessor shall also assess all real property that may have become subject to taxation since the last previous assessment * * Minn.Stat. § 273.17, subd. 1 (2000). Taxes based upon January 2 assessments are payable the following year. See Minn.Stat. § 275.065, subd. 1(a) (2000).

      . See Minn.Stat. § 273.13, subd. 23 (2000). The agricultural homestead is "agricultural land including any improvements that is homesteaded." Id., subd. 23(a); see also Minn.Stat. § 273.124, subd. 1(a) (2000) ("Agricultural land * * ⅜ that is occupied and used as a homestead by its owner ⅜ * * is an agricultural homestead.”). Section 273.13, subdivision 23(a), equates the market value of the house, garage, and immediately surrounding acre of an agricultural homestead with the class rate for residential homesteads under Minn.Stat. § 273.13, subd. 22(a) (2000).

      . By statute, the house is valued separately from the land on which it sits. Minn.Stat. § 273.11, subd. 1 (2000); Minn.Stat. § 273.13, subd. 23 ("The assessor shall determine and list separately on the records the market value of the homestead dwelling and the one acre of land on which that dwelling is located.”).

      . A town board typically is the governing body that reviews and approves property assessments. Minn.Stat. § 274.01, subd. 1 (2000). A property owner who disagrees with the assessment and does not receive satisfaction from the township board of review may appeal to the county board of equalization, which reviews and equalizes the assessment of property of the county. Minn.Stat. § 274.13 (2000). A dissatisfied property owner then may appeal to the Tax Court, which, but for appeal to this court, is the exclusive and final authority for the determination of questions of law and fact arising under the tax laws of this state. Minn.Stat. § 271.01, subd. 5 (2000).

      .We recognize three traditional approaches to determining the market value of real estate. The sales approach, comparing prices paid for comparable properties sold in market transactions; the cost approach, comparing the cost of building a new property with the same utility as the subject property; and "the income approach, predicated on the capitalization of the income the property is expected to generate.” Marquette Bank Nat’l Ass'n v. County of Hennepin, 589 N.W.2d 301, 306 (Minn.1999). "[W]e afford the tax court broad discretion in deciding which valuation approach to use.” Id.

      . Although the tax court determined that the estimated market value of the subject property is $8,000, the tax court observed that the comparable sales relied upon by the county supported a valuation between $8,900 and $20,000.

      . If real estate is sold for more than $1,000, a certificate of real estate value must be filed with the auditor’s office in the county in which the property is located when the deed or document is presented for filing. Minn. Stat. § 272.115, subd. 1 (2000). The certificate must include the sale price, classification to which the property belongs, and any financing terms and conditions of the sale necessary to determine the actual, present value of the sale price for purposes of a sales ratio study. Id.

      . The county contends that the condition of the well and septic system were considered in determining the property's value, yet the assessor states in his appraisal report that he did not know the condition of relator's well and septic system but treated them as though they were in the same condition as the wells and septic systems of the county's comparable properties.

      . The county provided no evidence regarding relator's access issue.


author: Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST James M. BURSETH, an Attorney at Law of the State of Minnesota.
    No. CX-00-2004.
    Supreme Court of Minnesota.
    July 26, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for revocation of probation and for further disciplinary action alleging that respondent James M. Burseth has committed professional misconduct warranting public discipline, namely, violating the terms of his private probation by failing to abstain from nonprescription, mood-altering drugs in violation of Minn. R. Prof. Conduct 8.4(d).

Respondent admits his conduct violated the Rules of Professional Conduct; waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR); and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and public probation through the later of January 14, 2002, or until respondent has produced 6 consecutive months of valid (nondiluted) negative urinalysis test results. The stipulation also recommends as appropriate discipline that Respondent shall also comply with all other terms of his January 14, 2000, private probation.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent James M. Burseth is publicly reprimanded and placed on public probation until the later of January 14, 2002, or until respondent has produced 6 consecutive months of valid (non-diluted) negative urinalysis test results. Respondent shall comply with all other terms of his January 14, 2000, private probation while on public probation and shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT

Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Timothy Jay ZAK, an Attorney at Law of the State of Minnesota.
    No. C3-98-1923.
    Supreme Court of Minnesota.
    July 26, 2001.
   ORDER

On August 31, 1999, this Court reinstated respondent Timothy Jay Zak to the practice of law following a 3-month suspension and placed him on supervised probation for 2 years. In re Reinstatement of Zak, 598 N.W.2d 692 (Minn.1999).

The Director of the Office of Lawyers Professional Responsibility and respondent have entered into a stipulation wherein they jointly recommend that it would be appropriate to immediately discharge respondent from his supervised probation because respondent no longer maintains a law practice and his probation is an undue burden on his ability to register as a financial advisor in other states.

This court has independently reviewed the record and agrees that the jointly recommended discharge is appropriate.

IT IS HEREBY ORDERED that respondent Timothy Jay Zak is hereby discharged from supervised probation.

BY THE COURT

Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST David GRONBECK, an Attorney at Law of the State of Minnesota.
    No. C4-94-1162.
    Supreme Court of Minnesota.
    July 26, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent David Gronbeck, committed professional misconduct warranting public discipline, namely, failing to timely file an appeal on behalf of his clients in a class action matter, failing to keep his clients advised of the status of that matter, failing to timely provide an accounting and refund of funds received from the class action clients, and failing to cooperate with the disciplinary proceedings, in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.15(c), 1.16(d), and 8.1(a)(3), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and two years probation and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR. The parties recommend that respondent’s probation be subject to the following conditions:

a.Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Misconduct.
c. Respondent shall maintain within his office systems for regular and timely review of client files to ensure that deadlines are being met and that matters are proceeding with the required diligence. Such systems shall include procedures to ensure that clients are kept regularly informed of the progress of their matters, responses to telephone inquiries are promptly made, and appropriate ac-countings are provided to clients. Respondent shall provide an outline of such procedures to the Director within thirty days following the adoption of this stipulation by the Minnesota Supreme Court.
d. Respondent shall maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Amended Opinion No. 9. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director upon request throughout the term of this probation.

IT IS HEREBY ORDERED that respondent David Gronbeck is publicly reprimanded and placed on probation for a period of two years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT

Paul H. Anderson Associate Justice


author: RANDALL, Judge

text:
    STATE of Minnesota, Respondent, v. Robert Lee VALENTINE, Appellant.
    No. C0-00-1198.
    Court of Appeals of Minnesota.
    June 5, 2001.
    Review Denied Aug. 22, 2001.

      Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis (for respondent).
    Bradford Colbert, Assistant State Public Defender, St. Paul (for appellant).
    Robert L. Valentine, Bayport (pro se appellant).
    Considered and decided by SHUMAKER, Presiding Judge, RANDALL and PETERSON, Judges.
   OPINION

RANDALL, Judge

Appellant challenges his conviction and sentence for attempted first-degree murder and attempted second-degree murder, arguing that the district court abused its discretion by not admitting evidence offered by appellant that (1) others had motive to shoot the victim because he was not well-liked at work and (2) appellant had a strong Cajun accent. Appellant also argues that the district court erred by determining that the victim’s injuries constituted substantial and compelling factors to justify an upward-durational departure from the presumptive sentence for attempted first-degree murder. Appellant also raises a number of arguments in his pro se supplemental brief. We affirm the conviction, but we reverse the upward departure, and remand for'resentencing.

FACTS

On the morning of November 23, 1999, J.D. left his house and walked to his car in his driveway. A man came out from behind a tree in J.D.’s yard and, as he approached J.D., stated, “Do you remember me? I’m the guy who’s gonna shoot you.” The man then shot J.D. once in the chest and once in the face. J.D. was able to make his way back to his house, where he asked his wife to call 911 and then collapsed. At the scene, two spent casings, two fired lead bullets, and one unfired round of PMC-brand nine-millimeter ammunition were recovered. As a result of the shooting, J.D. lost a lung, lost vision in his right eye, and has partial paralysis in his left leg.

While J.D. was in the hospital, police detectives spoke to him several times. On the first visit, J.D. indicated that he knew the shooter and that the shooter was black. The detectives contacted J.D.’s employer and learned of three black males who had been fired within the last year of the shooting, one of whom was appellant Robert Lee Valentine. Appellant had been fired on December 31, 1998, because he took a vacation over Christmas despite being told that his request for time off had been denied. As a result of the detectives’ visits with J.D. in the hospital, they learned that the shooter once worked with J.D. as an unarmed security guard and that the shooter had been involved in a dispute with his employer over time off at Christmas.

Based on J.D.’s description, the detectives created a photographic display, which included appellant’s picture. At first, J.D. identified appellant from the display, but indicated that he was not sure of his identification because he had blurry vision out of his good eye. The next day, when J.D.’s vision had cleared, he positively identified appellant from the display. The detectives then obtained a search warrant for appellant’s apartment. They found a nine-millimeter pistol, a clip containing ten rounds of PMC-brand nine-millimeter ammunition, and a box of nine-millimeter ammunition with two rounds missing, matching the brand of the two rounds found at the scene. When appellant was arrested, he was driving a silver pick-up truck with a blanket behind the seat and a toolbox extending across the bed of the truck.

Appellant was charged with attempted first-degree murder and attempted second-degree murder. At trial, a certified firearms examiner testified regarding tests performed on the bullets found at appellant’s apartment and the gun that was recovered. The examiner testified that, after test firing, the gun did not leave enough marks on the bullets to provide a positive match to the bullets found at the scene. But, the marks on the shell casings did positively match the marks on the shell casings that were recovered. J.D.’s neighbor testified that, on the day before the shooting, he saw a silver pick-up truck with tinted windows, a blanket on the seat, and something resembling a topper on the back parked on the lawn on the side of his house. While the neighbor was looking at the truck, a black male shouted at him. The neighbor did not recall hearing the man speak with an accent.

Appellant had a number of witnesses testify to his character as a peaceful man. In addition, appellant sought to introduce evidence that others had a motive to shoot J.D. because he was not well liked at work. Appellant also sought to provide a voice exemplar to the jury to demonstrate that he had a strong Cajun accent. The district court ruled that if he did provide a voice exemplar, then he would be subject to cross-examination. Because appellant chose not to take the stand, the district court ruled appellant’s voice exemplar inadmissible. The district court did allow appellant to then recall five witnesses to testify regarding his accent.

After the jury returned a guilty verdict on both counts, the district court departed upward from the presumptive sentence for the attempted first-degree murder conviction, based on the serious injuries to J.D. Appellant was sentenced to 240 months, an upward departure of 60 months from the 180 month presumptive sentence. This appeal from the conviction and sentence followed.

ISSUES

I. Did the district court err by not admitting evidence offered by appellant that the victim was not well liked at work?

II. Did the district court err by not admitting a voice exemplar offered by appellant to demonstrate that he had a strong Cajun accent unless appellant would first consent to waiving his Fifth Amendment privilege against self-incrimination?

III. Did the district court err by determining that there were substantial and compelling aggravating factors present to justify an upward-durational departure from the presumptive sentence for attempted first-degree murder?

IV. Did appellant raise any meritorious claims in his pro se supplemental brief?

ANALYSIS

I. Motive of Third Persons

The district court has broad discretion in evidentiary rulings, and a reviewing court will reverse only for an abuse of that discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn.1997). Although defendants have a right to present a complete defense, that right is not unlimited. State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000).

Appellant argues that the district court erred by not allowing him to introduce evidence that J.D. was “difficult to get along with and was caustic toward others, that he had a bad temper and would occasionally” verbally act out toward coworkers. Appellant sought to introduce this evidence to show that other persons had a motive to shoot J.D. The district court ruled that the evidence was inadmissible under Minn. R. Evid. 404. The court concluded that appellant might be able to offer evidence that a specific coworker had animosity toward J.D., but evidence that “others” did not get along with J.D. would be too vague to be admissible.

“[A] defendant may seek to introduce evidence that a third person * * * committed the crime of which defendant is accused.” Woodruff v. State, 608 N.W.2d 881, 885 (Minn.2000) (citation omitted). Evidence of this nature is generally referred to as reverse-Spreigl evidence, and such evidence may include a third person’s motive to commit the crime. Id. But absent proof of facts to connect a third person with the crime, evidence that tends to incriminate another is inadmissible. State v. Hawkins, 260 N.W.2d 150, 159 (Minn.1977). Before reverse-Spreigl evidence is admitted, the defendant must show

(1) by clear and convincing evidence that the third party participated in the reverse-Spreigl incident; (2) that the revers e-Spreigl incident is relevant and material to defendant’s case; and (3) that the probative value of the reverse-Spreigl evidence outweighs its potential for unfair prejudice.

Woodruff, 608 N.W.2d at 885 (citation omitted).

Appellant’s argument is not persuasive. Appellant did not identify any particular person who had a motive to shoot J.D. Instead, appellant argued that several coworkers “may have had” a motive to shoot J.D. because of J.D.’s attitude at work. Appellant could not offer any proof that would connect any one coworker to the actual crime. The district court did not err by rejecting appellant’s offer to put witnesses on the stand who would testify generally that other coworkers “did not like J.D.” Those statements, offered as reverse-Spreigl evidence, lack the specificity to bolster the assertion past pure speculation that a general dislike for someone could lead to attempted murder.

II. Voice Exemplar

Appellant sought to conduct a voice demonstration for the jury to show that he had a strong Cajun accent. He intended to use a voice exemplar to support his argument that he was not the man J.D.’s neighbor saw on the night before the shooting because J.D.’s neighbor testified that he did not hear the man speak with an accent. The district court ruled that if appellant provided a voice exemplar directly to the jury, his Fifth Amendment privilege was waived and he would subject himself to cross-examination. Because appellant refused to waive his privilege against self-incrimination, the court ruled that he could not introduce a voice exemplar. Appellant argues that the district court’s ruling was erroneous and so prejudiced his defense that his conviction should be reversed.

The specific issue of whether a defendant opens himself to cross-examination if he attempts to introduce a voice exemplar has not been addressed by Minnesota caselaw. We start our analysis by noting that the United States Supreme Court has described a voice exemplar as demonstrative, not testimonial, evidence. United States v. Dionisio, 410 U.S. 1, 6-7, 93 S.Ct. 764, 767-68, 35 L.Ed.2d 67 (1973).

A review of other jurisdictions’ caselaw reveals differing theories on how to approach the issue. For example, some jurisdictions have focused on the relevancy and probative value of the voice exemplar. The district court in United States v. Esdaille, 769 F.2d 104 (2d. Cir.1985), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985) relied on Fed.R.Evid. 403 and ruled that defendant’s proposed voice exemplar had “little probative value because it was inherently suspect.” Id. at 106, 769 F.2d 104. The reviewing court affirmed, holding that the district court did not abuse its discretion. Id. at 108, 769 F.2d 104. We note that Esdaille has limited application to the facts of this case because the decision rested on the “generic” issue of relevancy rather than the defendant’s constitutional privilege.

Other courts have focused on the constitutional privileges afforded to criminal defendants. In State v. Tillett, 351 So.2d 1153 (La.1977), the defendant wanted to introduce a voice exemplar to demonstrate that he did not have a Spanish accent. The district court ruled that in order for the defendant to introduce this evidence, he had to subject himself to cross-examination. Id. at 1155. The Louisiana Supreme Court reversed outright, holding that a defendant may introduce a voice exemplar for the purpose of revealing a physical characteristic without waiving his Fifth Amendment privilege. Id. at 1157. The court reasoned that Louisiana allows the state to compel defendants to exhibit a variety of physical characteristics, such as the presence of scars, bruises, and tattoos; how they open cigarette packs; and how they would say certain words, all without infringing on the defendants’ privilege against self-incrimination. Id. at 1156. Thus, the Louisiana court believed that it was inherently unfair to compel a defendant to help incriminate himself with demonstrative evidence (yet not be able to claim the benefit of the Fifth Amendment privilege against self-incrimination) and then turn around and tell the defendant that his demonstrative evidence did implicate the Fifth Amendment, and, thus, he would have to waive his Fifth Amendment privilege to get it into evidence. The Louisiana Supreme Court stated:

Since the state could have compelled defendant to display the quality of his voice without infringing on his fifth amendment privilege, his offering to make such a demonstration could not have constituted a waiver of his privilege against self-incrimination.

Id. The court added:

Once a defendant knowingly and intelligently waives his privilege, he is of course subject to cross-examination on the whole case like any other witness. However, defendant Tillett’s request to reveal a physical characteristic would not have been testimony in his behalf, but merely a voice recital for the purpose of revealing a physical characteristic as evidence in the case. Therefore, his proposal to demonstrate his [lack of accent] did not waive his fifth amendment [privilege] and make him liable to cross-examination. It has long been held that one of the essential ingredients of due process is reciprocity, and we hold that if the state can compel a criminal defendant to demonstrate his physical characteristics before the jury without infringing on his fifth amendment [privilege], a defendant’s offer of such a demonstration does not constitute a waiver of that same [privilege].

Id. at 1157 (emphasis added) (citations omitted).

The Tillett court concluded that the district court’s error severely prejudiced appellant’s case. The court reasoned that the state’s entire case

was based upon identification, and one of the two people who identified the accused * * * said that he did so on the basis of his forehead, his eyes, and his Spanish accent.

Id. The court found that the district court’s “refusal to allow defendant to demonstrate his voice to the jury for [its] determination as to its qualities [constituted] reversible error.” Id.

In our case, as in Tillett, the district court determined that if appellant offered a voice exemplar, he would be subject to cross-examination. We find the Louisiana Supreme Court’s rationale in Tillett persuasive and adopt its reasoning. We conclude the district court here committed plain error by refusing to allow appellant’s voice exemplar into evidence unless appellant waived his right against self-incrimination.

It is settled that the prosecution can compel a defendant to produce a voice exemplar without violating the defendant’s Fifth Amendment privilege. See Dionisio, 410 U.S. at 5-7, 93 S.Ct. at 767-68 (upholding grand-jury subpoena compelling submission of voice exemplar); United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 1929-30, 18 L.Ed.2d 1149 (1967) (requiring defendant to utter words used by bank robber did not violate defendant’s Fifth-Amendment privilege). Thus, as the Louisiana Supreme Court noted in a strong opinion, a defendant should be afforded the same opportunity. Like the Tillett court, we conclude that if the prosecution can compel a defendant to produce a voice exemplar without infringing on his privilege against self-incrimination, then the due process principle of reciprocity demands that a defendant should be allowed the same opportunity without waiving his Fifth-Amendment privilege.

Although we find error, the following facts taken from the record mitigate the seriousness of this error. J.D.’s neighbor testified that he saw a black male near J.D.’s house on the evening before the shooting and the man yelled something at him about his pick-up truck. Although the neighbor did not remember the man having an accent, the conversation between the two men was brief, and they were approximately 50 feet apart. There was no evidence that the neighbor had a lengthy face-to-face conversation where even someone not attuned to regional accents might have picked up on an accent. What a stranger hears when someone several feet away briefly shouts is not going to prove, or shed light on, the presence or the absence of an accent. Although the neighbor did not pick up on an accent when the man he saw briefly yelled at him, the neighbor was certain about his identification of the vehicle. The neighbor testified that he saw a silver pick-up truck with tinted windows, a blanket on the seat, and something resembling a topper on the back parked near his house. When appellant was arrested, he was driving a pick-up truck that closely matched the neighbor’s description.

Further, the error in disallowing appellant’s voice exemplar is lessened because the court did allow appellant to present evidence of his Cajun accent by recalling five witnesses to testify on the matter. The district court allowed appellant this option after it made its decision to keep out his voice exemplar. Essentially, appellant was able to introduce the same voice evidence in a different form. He was allowed to introduce solid evidence through various witnesses that he had a distinctive accent.

It is pure speculation that the jury could have reached a different verdict if it had been allowed to hear appellant’s offered voice exemplar. With the five witnesses appellant selected all testifying, the voice exemplar, although helpful, would simply have been cumulative. We conclude that the district court’s error in ruling that appellant would have to waive his Fifth Amendment privilege and testify if he wanted his voice exemplar to be heard by the jury did not constitute reversible error. See State v. Post, 512 N.W.2d 99, 102 (Minn.1994) (stating that error is harmless if reviewing court is satisfied beyond reasonable doubt that, even if potential of excluded evidence was fully realized, jury would have reached same verdict).

III. Upward Sentencing Departure

The analysis of appellant’s challenge to the upward departure must begin with a focus on appellant’s conduct. As set forth by the Minnesota Supreme Court, a sentencing court’s durational departure is justified if a defendant’s “conduct somehow may be said to be significantly more serious than typically involved in the commission of’ the charged offense. State v. Best, 449 N.W.2d 426, 427 (Minn.1989) (emphasis added). See also State v. Spain, 590 N.W.2d 85, 88-89 (Minn.1999) (stating sentencing court “should consider whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question” (emphasis added) (quotations omitted)); Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996) (stating court “should consider whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question” (emphasis added) (quotation omitted)); State v. Smith, 541 N.W.2d 584, 589 (Minn.1996) (stating district court must look to see “whether a defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question” (emphasis added) (citation omitted)); State v. Rasinski, 472 N.W.2d 645, 649 (Minn.1991) (stating decision to depart is based on “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question” (emphasis added) (quotation omitted)); State v. Carpenter, 459 N.W.2d 121, 127-8 (Minn.1990) (stating district court’s decision to depart must be based on its determination of “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime” (emphasis added) (quotation omitted)).

The supreme court stated:

It is inaccurate to say that the [district] court has broad discretion in deciding whether or not to depart. A more accurate statement is that the [district] court has broad discretion to depart only if aggravating or mitigating circumstances are present; if aggravating or mitigating circumstances are not present, the [district] court has no discretion to depart.

Best, 449 N.W.2d at 427. In addition, substantial and compelling circumstances must be evident in the record to support the district court’s departure from the presumptive guidelines. Rairdon, 557 N.W.2d at 326.

Appellant argues that the district court erred by departing from the presumptive sentence because there were no substantial and compelling circumstances to justify the departure. Appellant asserts that his conduct was not significantly more serious than that typically involved in attempted first-degree murder. We agree. The record shows the district court’s reason for departing upward from the presumptive sentence had nothing to do with appellant’s conduct. Rather, it simply had to do with the extent of the victim’s injuries. The injuries were severe. They included a lost lung, lost sight in his right eye, and partial paralysis in his left leg. But the injuries were sustained when appellant, in a typical fashion of someone attempting to kill someone, fired two shots in the direction of the victim and then turned and fled.

Attempted first-degree murder requires a defendant to take a “substantial step toward” causing the death “of a human being with premeditation and with intent to effect the death of the person.” Minn. Stat. § 609.17 (1998) (defining attempt); Minn.Stat. § 609.185(1) (1998) (defining first-degree murder). The statute makes no reference to the result of a defendant’s actions. None of the essential elements depend on how seriously the victim was injured, or whether the defendant was even injured at all. Looking at other criminal statutes, such as those for assault, it is evident that a legislature can include the degree of harm as part of the elements of a particular offense, if it chooses to do so. See Minn.Stat. § 609.221, subd. 1 (2000) (including great bodily harm as element for first-degree assault); Minn.Stat. § 609.222, subd. 2 (2000) (including substantial bodily harm as element for second-degree assault); Minn.Stat. § 609.223, subd. 1 (2000) (including substantial bodily harm as element for third-degree assault); Minn.Stat. § 609.2231, subds. 1, 2, 2a, 3, 5, 6 (2000) (including demonstrable bodily harm as element for fourth-degree assault). Here, the degree of harm to the victim is not part of the elements for attempted first-degree murder. This benefits the prosecution as well as a defendant. If the jury believed that the prosecution has proved each essential element of murder beyond a reasonable doubt, the prosecution could get an attempted first-degree murder conviction, whether appellant’s two shots completely missed J.D. or only produced minor flesh wounds.

Here, appellant fired two shots and fled. That is all. Nothing about his actions was atypical of conduct in other attempted first-degree murder cases. If appellant had walked over to J.D., fired a few more shots into his fallen body, kicked him, and continued to inflict more harm after J.D. was down and helpless, we would have a different case. Appellant’s conduct then would not have been typical, and then would have been significantly more egregious than the conduct (attempted first-degree murder) defined by the statute. See State v. Lee, 491 N.W.2d 895, 902 (Minn.1992) (affirming district court’s sentence departure for attempted murder where defendant broke knife off in victim’s spine and attacked victim while she was huddled over her child); State v. Herberg, 324 N.W.2d 346, 350 (Minn.1982) (affirming district court’s sentence departure for first-degree criminal-sexual conduct where defendant terrified victim, forced victim to submit to various types of penetration, and subjected victim to gross and vile physical abuse, which included cutting her vagina, forcing her to stick pin into one of her nipples, hitting her gratuitously, choking her, and forcing her to ingest excrement and urine); State v. McClay, 310 N.W.2d 683, 685 (Minn.1981) (affirming district court’s sentence departure for aggravated robbery where defendants put more people in fear, kidnapped one person, and assaulted several others during their escape).

We recognize that J.D.’s wounds were substantial. But substantial injuries can be expected when the jury finds that one human being, with premeditation and intent, makes a serious effort to kill another human being. Appellant’s conduct was not atypical for the crime he was charged with. On this record, it is undisputed that appellant did nothing more than fire two shots and flee. The accuracy of appellant’s aim is not the dividing line between a typical shooting and an untypical one. We are aware that the state relies on State v. Brown, 455 N.W.2d 65 (Minn.App.1990) to argue that the departure should be upheld because J.D. suffered serious and permanent injuries. We note that Brown appears to focus only on the injuries and not on the defendant’s conduct. We feel constrained, however, by the plain wording of the aforementioned cases which discuss the conduct of a defendant, and that is what we do here.

We conclude the district court abused its discretion by departing upward from the presumptive sentence based solely on the extent of the victim’s injuries, rather than examining appellant’s conduct. Appellant’s conduct is serious, but his conduct did nothing more than fulfill the essential elements of the statute defining attempted first-degree murder. There is nothing in the record to support any inference that appellant’s conduct was atypical of attempted first-degree murder. We reverse the upward departure and remand to the district court for resentencing.

IV. Pro Se Arguments

Appellant raises a variety of assertions in his pro se supplemental brief. Based on our review of each of his claims, we conclude that none of them are persuasive.

DECISION

First, we affirm the conviction. The district court correctly ruled that evidence involving appellant’s general assertion that J.D.’s coworkers did not like him was inadmissible.

Second, the district court erred in ruling that appellant could not introduce a voice exemplar without waiving his Fifth Amendment privilege and subjecting himself to cross-examination. But based on the other evidence against appellant, and appellant’s ability to put witnesses on the stand to testify about his accent, the district court did not commit reversible error.

Finally, the district court abused its discretion by departing upward from the presumptive sentence based on factors other than appellant’s conduct. We find there were no untypical factors, under the statute defining attempted first-degree murder, in appellant’s conduct in firing two shots and then running away.

Affirmed in part, reversed in part, and remanded.

      . The district court did not specify whether its ruling was based on Minn. R. Evid. 404(a) or (b). Although a victim’s pertinent character trait is admissible under Minn. R. Evid. 404(a), appellant's argument focuses on possible motivation of third persons to commit the charged crime. Accordingly, Minn. R. Evid. 404(b) seems to be more applicable.