author: GILDEA, Justice.

text:
    STATE of Minnesota, Respondent, v. Marvin HAYNES, Jr., Appellant.
    No. A05-2444.
    Supreme Court of Minnesota.
    Jan. 4, 2007.

      Marie Wolf, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Michael A. Harch, Minnesota Attorney General, St. Paul, MN, Amy J. Klobuehar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

GILDEA, Justice.

After trial by jury in Hennepin County District Court, Marvin Haynes, Jr., was found guilty and convicted of first-degree murder and second-degree assault. He appeals to this court, claiming (1) he was denied a fair trial when the district court granted the jury’s request during deliberations to replay a tape-recorded statement; (2) the prosecutor committed misconduct; and (3) he was denied a fair trial because the district court allowed the state to ask him about his prior contact with the police. We affirm.

On May 16, 2004, C.M. was working at Jerry’s Flower Shop in Minneapolis. C.M.’s brother, H.S., was also at the shop that morning, when a person entered the store and asked for a flower arrangement for his mother’s birthday. The person pointed out a vase of flowers that he liked, but said that he wanted it a bit fuller and bigger. As C.M. was arranging the flowers, she looked up and saw a gun about twelve inches from her face.

The person said, “I’m not joking with you” and “I want the money.” H.S. approached from behind or from the side of C.M. and told the gunman that they did not have any money in the store and he did not even have any money in his billfold. The man moved the gun away from C.M. and she ran for the back door. As she fled, C.M. heard two shots. She ran toward a neighbor’s house and turned back to see the gunman quickly walking down the alley.

The neighbor called 911, and C.M. briefly spoke to the 911 operator. C.M. told the 911 operator that the shooter was an African-American male, in his early twenties, about 5'10" or 5'11", about 180 pounds, and had a thin build. When the police arrived at the scene, they found that H.S. had died from gunshot wounds.

C.M. was shown a lineup on May 17, 2004, and selected an individual whom she was 75 to 80 percent sure looked like the suspect. The individual she selected, however, was in South Dakota at the time of the murder. At a subsequent photo lineup, C.M. identified Haynes as the gunman. Later, C.M. “got right off the chair” and identified Haynes from a live lineup. She also identified Haynes in court as the person she saw in the flower shop on May 16 with the gun.

At trial, Haynes’s cousin, I.H., testified that he had given a statement to the police on May 28, 2004. In the statement, which was tape-recorded and played for the jury at trial, I.H. said that Haynes told him on May 16 that Haynes was going to “hit a lick.” I.H. understood this to mean that Haynes was going to commit a robbery. I.H. also told police that Haynes’s friend, D.B., had a gun. Finally, I.H. told the police that Haynes later called I.H. and told him that Haynes had used D.B.’s gun to shoot a white man on the corner “because he wouldn’t give up the money.”

I.H. also testified, however, that he did not remember whether he was with Haynes on the morning of May 16, 2004, and that his statement to the police on May 28 was not the truth. He further testified that he “just made up that because they threatened me with 15 years,” and that he committed perjury at the grand jury hearing when he testified in accordance with his May 28 statement. I.H. contradicted himself later during his testimony when he said that he remembered what happened on May 16, 2004, and that what he told police in his May 28 statement was the truth.

AT. also testified that he was with Haynes the morning of the murder and that Haynes said he was going to “hit a lick.” Another witness, J.C., testified that she had seen Haynes and a few of his friends the morning after the murder and that Haynes said “he had shot some old white man.” J.C. also testified that she saw Haynes at his house and that Haynes said he could not come out because the police were looking for him. Finally, J.W. testified that she had a conversation with Haynes in which Haynes bragged about shooting a man at the flower shop.

Haynes testified in his own defense. He testified that he “never shot anybody” and that he did not try to rob the flower shop. He also testified that he was not even on the block or in the neighborhood of the flower shop on May 16, and that he had previously told the police that he did not know where the flower shop was. He stated that on the night of May 15, he was at his girlfriend’s house until about two or three in the morning and then went home and slept on the couch until about three or four in the afternoon of May 16.

During deliberations, the jury asked the district court to replay the tape of the 911 call to police and I.H.’s taped statement to the police. The court complied with the requests by bringing the jury back into the courtroom and playing each tape once. A few hours after hearing the tapes, the jury came back with its verdict, finding Haynes guilty of first-degree murder and second-degree assault. The court convicted Haynes and sentenced him to life in prison on the murder count plus 36 months on the assault count.

I.

Haynes first claims that he was denied a fair trial because the district court granted the jury’s request to replay I.H.’s taped statement during deliberations. We review the district court’s ruling under an abuse-of-discretion standard. State v. Kraushaar, 470 N.W.2d 509, 515 (Minn.1991).

I.H.’s tape-recorded statement was an exhibit in the case that was played during trial and given to the jury. If a deliberating jury asks to review “certain testimony or other evidence,” a district court should conduct the jurors to the courtroom. Minn. R.Crim. P. 26.03, subd. 19(2)(1). The court “may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.” Id. The court also has the discretion to “have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.” Id., subd. 19(2)(2).

Haynes contends that the district court failed to adhere to this court’s ruling in Kraushaar, and that the district court did not adequately weigh the reasonableness of the jury’s request to replay I.H.’s statement against the prejudice to Haynes. We disagree.

In Kraushaar, a criminal sexual conduct case, a videotape was made of a pediatrician’s interview with the child victim. 470 N.W.2d at 510-511. The videotape was played for the jury during trial and was sent into the jury room along with the exhibits. The jury also received equipment necessary to review the videotape in the jury room. Id. at 511, 516. The defendant claimed that the court erred in permitting the jury to watch the videotape in the jury room. Id. at 514. We held that any error in the court’s decision to allow the jury to review the videotape in the jury room did not require reversal. Id. at 516.

The district court in this case followed the analysis we offered in Kraushaw. We said in Kraushaar that “it would have been preferable” for the court to have had the jury review the videotape in the courtroom, rather than allowing the jury to replay the videotape in the jury room. Id. The court in this case did precisely what we termed the “preferable” practice in Kraushaar.

The district court also assessed the issue of potential prejudice. The court considered whether the material “would aid the jury in proper consideration of the case” and whether “any party would be unduly prejudiced.” The court concluded that Haynes would not be unduly prejudiced by the replaying of I.H.’s statement, particularly because the jury also requested to rehear the 911 tape. As the court noted, the 911 tape was arguably more consistent with the defense’s version of the case. The court also considered whether the jury could have used the material improperly, but concluded that it could not do so if the tape was played only once in open court.

Haynes correctly notes that the district court had the discretion to require that the jury review other portions of I.H.’s testimony and to caution the jury to avoid placing too great an emphasis on the recorded testimony. But the court was not required to take such actions under our rules of criminal procedure. See Minn. R.Crim. P. 26.03, subd. 19(2)(2). The court’s analysis was consistent with our court rule and the guidance set out in Kraushaar. We hold that the district court did not abuse its discretion in replaying for the jury, once in open court, I.H.’s taped statement together with the tape of the 911 call.

II.

Haynes next claims that because of several instances of prosecutorial misconduct, he is entitled to a new trial. Our jurisprudence recognizes that district courts are in the best position to monitor the conduct of prosecutors and assess the impact, if any, of alleged misconduct. State v. Ramey, 721 N.W.2d 294, 298 (Minn.2006); see also State v. Steward, 645 N.W.2d 115, 121 (Minn.2002). We have said that to determine “whether a prosecutor engaged in prejudicial misconduct is largely within the discretion of the trial court and we will reverse only where the misconduct, viewed in light of the entire record, is of such serious and prejudicial nature that appellant’s constitutional right to a fair trial was impaired.” State v. Robinson, 604 N.W.2d 355, 361 (Minn.2000). Our review of the record leads us to conclude that the district court properly performed its monitoring function here and that reversal is not warranted on the basis of prosecutorial misconduct.

Haynes contends that the prosecutor committed misconduct by disobeying the district court’s order not to ask A.T. about his fear of Haynes. In October 2004, A.T. told police that Haynes said he was going to “hit a lick.” But A.T. had not related this comment from Haynes to the police when they interviewed A.T. on June 18. The prosecutor apparently sought to establish that the reason A.T. did not tell the police about Haynes’s comment during the June 18 interview was because A.T. was afraid of Haynes. The record indicates that the prosecutor sought direction from the court in a bench conference (the contents of which were not transcribed) before asking the allegedly improper question. Following the bench conference, the prosecutor asked A.T., “[a]nd you didn’t tell [the police officer] when you first met him on June 18th, 2004 because you were afraid of [Haynes], right?” The defense objected to the question as “leading,” and the district court sustained the objection. But the transcript reflects that A.T. had already answered “yeah” to the question. After A.T. was excused, the defense asked for a mistrial and argued that the prosecutor had violated the ruling the district court had made during the bench conference. The prosecutor stated that he thought the court had given him permission to ask the question, and acknowledged that he must have misunderstood the court’s ruling. Anticipating a claim of prosecutorial misconduct, the prosecutor then asked the court to make a finding as to whether the prosecutor intentionally violated the court’s order. The court indicated that its ruling may have been unclear, and found that the prosecutor did not deliberately violate the court’s order. The court also ruled that the question was not so prejudicial as to require a mistrial.

Our review of the record leads us to conclude that there was not prosecutorial misconduct related to this issue. The prosecutor properly sought guidance from the district court before proceeding into the area. See State v. McRae, 494 N.W.2d 252, 259 (Minn.1992) (“Any time a prosecutor desires to make an inquiry of doubtful propriety, the prosecutor should seek permission from the trial court in chambers before asking the question.”). The court specifically found that the prosecutor had not deliberately violated its ruling, and the record reflects that the prosecutor thought the court had given the prosecutor permission to pose the question. The incident was isolated, confined to one question, and was not the type of attack this court has held to constitute prosecutorial misconduct in the past. See State v. Harris, 521 N.W.2d 348, 352 (Minn.1994) (“The cumulative effect of these continuous references to witnesses’ fear was to create the inference that Harris was of bad character and had a propensity to commit crimes of violence.”). We conclude that the question posed to A.T. was not prosecutorial misconduct on this record.

Haynes also alleges that the prosecutor committed misconduct by improperly implying that the defense had a duty to produce witnesses. We have said that prosecutors commit misconduct if they attempt to shift the burden of proof to the defendant. State v. Coleman, 373 N.W.2d 777, 782 (Minn.1985). Haynes did not claim during trial that the line of questioning at issue improperly shifted the burden of proof. Accordingly, we review the claim of misconduct for plain error. Ramey, 721 N.W.2d at 299.

This claim of misconduct is based on the prosecution’s cross-examination of Haynes. Haynes testified that he was at home asleep at the time of the murder. The line of questioning at issue established that Haynes’s mother and sisters were home and could have seen him when he was sleeping on the couch. Ultimately, the prosecutor concluded the line of questions by asking: “It stands to reason that these four people saw you sleeping on the couch at the time when the murder at the flower shop took place, isn’t that right?” Haynes suggests that this was the same as commenting on his failure to call witnesses. But the prosecutor did not comment directly on Haynes’s failure to call a witness. The cross-examination at issue was isolated, accounting for only three of forty-five pages of the cross-examination, and the prosecutor made no reference during his closing argument to this portion of the cross-examination or to the absence of testimony from the people Haynes testified saw him sleeping at the time of the murder. See State v. Morton, 701 N.W.2d 225, 235 (Minn.2005) (concluding that misconduct was plain error where prosecutor asked improper “were they lying questions” and then “emphasized [the] impression” created by these questions during closing argument). Thus, we hold, on this record, that any misconduct related to these questions was not plain error.

III.

Haynes’s final argument is that he was denied a fair trial because the district court allowed the state to ask him about his prior contact with the police. We review this evidentiary ruling under an abuse-of-discretion standard. State v. Penkaty, 708 N.W.2d 185, 201 (Minn.2006).

On cross-examination, the state asked Haynes if he previously had lied to the police on two specific occasions. Haynes argues that the district court abused its discretion by allowing the state to attempt to impeach Haynes with these questions. Haynes notes that he was a juvenile during the relevant time periods and that Minn. R. Evid. 609(d) forbids the use of juvenile adjudications for the purpose of attacking the credibility of a witness. Accordingly, Haynes argues, “[i]f a juvenile adjudication is not admissible to impeach, then certainly a stop or arrest is not.”

Relevant legal authority does not support Haynes’s argument. Minnesota Rule of Evidence 608(b) states that specific instances of conduct of a witness may, in the discretion of the district court, be inquired into on cross-examination of the witness concerning the witness’s veracity. The rule explicitly acknowledges that such inquiries may be directed at the accused and there is no exception for juveniles in the rule. Minn. R. Evid. 608. The comment to the rule suggests, however, that in criminal cases, courts should be cautious about allowing such evidence to be admitted “if it tends to involve matters that might prejudice the jury.” Id. comm, cmt.' — -1977. The record indicates that the district court conducted a cautious examination of the potential for prejudice. The court considered the issue in advance and told counsel “that if the defendant testifies [the prosecution] could use the two instances of lying to the police because I felt that was something that was legitimate and that it demonstrated that he was not truthful with the police.” We hold that the court did not abuse its discretion in allowing this cross-examination.

The state also asked Haynes on cross-examination about being stopped on several occasions in the neighborhood of the flower shop. Haynes contends that this evidence should not have been admitted because it was irrelevant and highly prejudicial. But Haynes testified that he was not familiar with either the flower shop or the area in which the shop was located. Haynes’s responses to the state’s questions revealed that Haynes had talked to police several times in the area in which the shop was located. Accordingly, this testimony was relevant to Haynes’s credibility.

Haynes argues, however, that even if the evidence was relevant to his credibility, it should have been excluded because it was too prejudicial. Minnesota Rule of Evidence 403 allows a court to exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The district court considered the issue of unfair prejudice when it found that Haynes’s prior police contact would be admissible. The court said: “With regard to the contacts with law enforcement, * * * if [Haynes] denied being familiar with the area around the flower shop, then the prosecutor could put in several of those stops and the location of those stops to demonstrate where they occurred.” The record reflects that the prosecutor, consistent with the court’s ruling, asked Haynes a series of questions regarding his contacts with police in the area near the flower shop. After the prosecutor went through a few of these contacts, Haynes objected to further examination on this subject on the basis of Minn. R. Evid. 403. In response to this objection, the court told the prosecutor he could ask about two more incidents but “it would be getting too prejudicial to do any more” after that.

We conclude that the district court did not abuse its discretion in allowing the limited cross-examination. Haynes testified on direct examination that he had previous contact with the police. The state did not ask about the reasons for Haynes’s contacts with police. The jury was informed only that Haynes had previously spoken with the police at different locations in the neighborhood of the flower shop. Finally, the court carefully monitored the examination to avoid improper prejudice. For these reasons, we hold that the district court did not abuse its discretion by allowing the state to ask Haynes about these incidents.

Affirmed.

      . The district court instructed the deputy, however, that the jury was not to be given a tape player.

      . Haynes argued that he was younger and shorter than the person C.M. described during the 911 call.

      . He lodged only a foundation objection to one of the several questions he now says were prosecutorial misconduct.

      . We have examined Haynes’s other claims of misconduct and find them to be without merit on this record.

      . Haynes admitted that he gave false identifying information to the police on two occasions. The state gave the appropriate notice in this case that if Haynes testified it would seek to impeach him with evidence of these lies and with evidence of his contacts with police "in proximity of the flower shop." See State v. Fallin, 540 N.W.2d 518, 522 (Minn.1995) ("The proper approach [is] for the prosecutor to give pretrial notice, which [gives] the defendant an opportunity to request a hearing on the issue before making a decision as to whether or not to testify.”).

      . Haynes also contends that, in closing argument, the prosecution argued that the incidents of lying to police were a basis for conviction. The record does not support this claim. The prosecution made its comments about Haynes’s lies to the police in the context of discussing the "credibility or believa-bilify of the individual witnesses, including the defendant.”


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    Timothy Michael ERICKSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-1113.
    Supreme Court of Minnesota.
    Jan. 4, 2007.

      Timothy Michael Erickson, Bayport, MN, Appellant Pro Se.
    Kathleen A. Heaney, Sherburne County Attorney, Arden J. Fritz, Assistant Sher-burne County Attorney, Sherburn County Government Center, Elk River, MN, Lori Swanson, Minnesota Attorney General, Thomas R. Ragatz, Assistant Minnesota Attorney General, Saint Paul, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant Timothy Michael Erickson was convicted in Sherburne County District Court of first-degree murder and sentenced to life in prison. On direct appeal to this court, Erickson challenged his conviction, raising arguments concerning his claims of intoxication at the time of the offense, his mental illness defense, and the admissibility of his confession to police. State v. Erickson, 449 N.W.2d 707, 707-08 (Minn.1989). After reviewing the record, we affirmed Erickson’s conviction. Id. at 708. Sixteen years later, Erickson filed this pro se petition for postconviction relief with the district court, seeking an eviden-tiary hearing and ultimately a new trial. The postconviction court denied the petition without an evidentiary hearing, concluding that the claims were: (1) procedurally barred; (2) time barred; and (3) without merit. Erickson appeals the denial of his postconviction petition. We affirm the postconviction court.

Erickson’s petition for postconviction relief lists several issues and dozens of “facts” under each issue. His petition can fairly be reorganized under five general grounds for relief: (1) denial of a fair trial; (2) prosecutorial misconduct; (3) judicial misconduct; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel.

A petitioner seeking posteonviction relief has the burden of establishing by “a fair preponderance of the evidence” that the facts warrant relief. Roby v. State, 531 N.W.2d 482, 483 (Minn.1995); Minn.Stat. § 590.04, subd. 3 (2004). If “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief,” a petitioner is not entitled to an evidentiary hearing. Minn.Stat. § 590.04, subd. 1 (2004). Further, allegations in a petition for postconviction relief must be “ ‘more than argumentative assertions without factual support.’ ” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). When reviewing a postconviction court’s decision, we review legal matters, including claims of ineffective assistance of counsel, de novo. Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006); Opsahl v. State, 677 N.W.2d 414, 420 (Minn.2004) (“Because claims of ineffective assistance of counsel involve mixed questions of law and fact, our review of decisions by the postconviction court is de novo”).

I.

In his reply brief Erickson concedes that many of the issues he raised in his brief to this court “should have been raised during trial and or during the appeal process.” We agree and conclude that Erickson’s claims of denial of a fair trial, prosecutorial misconduct, and judicial misconduct are procedurally barred under our postconviction case law. We have said that “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). “There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review.” Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005). A court may apply the second exception “if fairness requires it and the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal.” Id. (quoting Fox v. State, 474 N.W.2d 821, 825 (Minn.1991)). When a petitioner fails to argue either exception to Knaffla, a postconviction court may decline to apply either exception. White v. State, 711 N.W.2d 106, 110 (Minn.2006); see also Perry v. State, 705 N.W.2d 572, 575 (Minn.2005) (noting that although the defendant did not argue either Knaffla exception in his brief, the court could address the exception in the interests of judicial economy).

Erickson’s claims of denial of a fair trial, prosecutorial misconduct, and judicial misconduct were known and could have been raised on direct appeal. The postconvietion petition demonstrates that the eviden-tiary source for these claims is the transcript of the pretrial and trial proceedings. Further, Erickson does not argue for, and these claims do not fit, either Knaffla exception — they are not novel because the legal basis to bring them was available on direct appeal. See Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). The petition does not suggest that fairness requires consideration of these claims in the interests of justice, nor does it explain why Erickson’s failure to raise these issues for 16 years should not be classified as deliberate or inexcusable. Accordingly, the postconviction court acted within its discretion in denying Erickson’s postconviction claims of denial of a fair trial, prosecu-torial misconduct, and judicial misconduct without a hearing.

II.

Erickson argues that his trial counsel was ineffective because counsel (1) failed to confer with Erickson before waiving probable cause arguments pertaining to Erickson’s arrest; (2) denied Erickson his right to attend chamber conferences; (3) had conflicts of interest; and (4) failed to follow Erickson’s instructions regarding trial strategy.

The Knaffla rule bars postcon-viction claims of ineffective assistance of trial counsel after direct appeal except when the merits of the claim “cannot be determined from the district court record and requires additional evidence, such as that involving attorney-client communications.” Torres v. State, 688 N.W.2d 569, 572 (Minn.2004).

[T]he issue * * ⅜ is whether any information beyond the briefs and trial court record is needed to resolve [defendant’s] ineffective assistance of trial counsel claim. If so, [defendant] is entitled to an evidentiary hearing to develop a proper record. If not, his ineffective assistance of trial counsel claim was properly barred under Knaffla by the postconviction court.

Carney v. State, 692 N.W.2d 888, 891 (Minn.2005).

Many of Erickson’s other ineffective assistance of trial counsel claims, including the right to be present at pretrial conferences, attorney conflicts of interest, and counsel’s failure to follow Erickson’s instructions, are based on the trial record and are Knaffla-barred. Erickson’s claims are not novel because they were available to Erickson during his direct appeal. And Erickson has not provided any reasons justifying application of the fairness exception. See Azure v. State, 700 N.W.2d 443, 449 (Minn.2005) (holding that the fairness exception did not apply because the defendant “did not offer any reason in his post-conviction petition for not raising the ineffective assistance of trial counsel claims on direct appeal”).

The single claim that arguably cannot be determined solely on the trial record is the argument that counsel waived Erickson’s right to contest probable cause for his arrest and for search of his person without conferring with Erickson, thus depriving him of due process.

The U.S. Supreme Court has “recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Similarly, we have said that an evidentiary hearing is warranted on a postconviction claim that counsel failed to consult with the defendant on a matter of trial strategy only where the matter involved a fundamental right. See Dukes, 621 N.W.2d at 255 (holding a claim that an attorney’s admission of the defendant’s guilt without the defendant’s acquiescence warranted an evidentiary hearing); Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997) (holding a claim that counsel failed to communicate plea offers to the defendant warranted an evidentiary hearing); see also State v. Osborne, 715 N.W.2d 436, 442 (Minn.2006) (explaining that a defendant cannot waive his or her fundamental rights to a jury trial or to counsel by silence). But we have not extended these decisions to require proof of consultation with a defendant, or an affirmative waiver by a defendant, before counsel can waive probable cause arguments at an omnibus hearing.

Erickson was present at the hearing when defense counsel announced that he was not contesting probable cause at that time. Counsel specifically stated that he was reserving the right to challenge probable cause after reviewing the grand jury transcripts and counsel did later challenge the admissibility of Erickson’s confession and the evidence seized in the search of Erickson’s room. Given these circumstances, Erickson’s postconviction petition failed to present sufficient facts to warrant an evidentiary hearing. See, e.g., Townsend, 582 N.W.2d at 229 (stating that an evidentiary hearing is warranted only where the petition alleges facts which, if proven, would show that counsel’s representation fell below a standard of reasonableness and, but for the inadequacies of counsel’s representation, the results would have been different).

We hold that the district court did not abuse its discretion in denying Erickson’s postconviction claims of ineffective assistance of trial counsel without an evidentia-ry hearing.

III.

Erickson also argues that he received ineffective assistance of appellate counsel. He suggests two grounds: (1) that his counsel “did not introduce material” that he should have introduced during the direct appeal; and (2) that his counsel refused to continue to represent him after completion of his direct appeal. This claim is not procedurally barred under Knaffla because it could not have been raised on direct appeal. But Erickson has not alleged sufficient facts in support of the claim to warrant an evidentiary hearing.

As to the first aspect of this claim, Erickson suggests that appellate counsel was ineffective because he failed to argue on direct appeal that his trial counsel was ineffective. An evidentiary hearing on such a claim “is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990). Erickson failed to allege facts which, if proven, would show that the outcome of his appeal might have been different had appellate counsel argued on direct appeal the ineffective assistance of trial counsel. See id. (stating that “generalized allegations of incompetence [of counsel] are not reason for an evidentiary hearing”). Additionally, Erickson failed to include any offer of proof with his petition and mistakenly suggested that the offer would be presented at the evidentiary hearing. Erickson’s right to an evidentia-ry hearing depended on him first making an adequate offer of proof.

With regard to the second aspect of this claim, Erickson had no right to counsel after the completion of his direct appeal. This court has held that the Minnesota Constitution only guarantees the right to counsel for one appeal: either by direct appeal or, if the defendant did not pursue a direct appeal, by the defendant’s first postconviction petition. Deegan v. State, 711 N.W.2d 89, 98 (Minn.2006); see also Minn.Stat. § 611.14(2) (2004) (stating that a person has a right to representation in a postconviction proceeding if he “has not already had a direct appeal of the conviction”). Erickson had appellate counsel in his direct appeal and thus did not have a right to counsel upon the completion of that appeal.

We hold that the district court did not abuse its discretion in denying without an evidentiary hearing Erickson’s claim of ineffective assistance of appellate counsel.

Affirmed.

      . In addition to the Knaffla bar, the state contends that all of Erickson’s claims should be time barred because he waited 16 years after his direct appeal to request postconviction relief. We agree that Erickson has not provided any compelling justification for his delay, but we need not reach this issue because we hold that Erickson's claims are Knaffla barred.

      . Also, the Minnesota Rules of Professional Conduct state that "[i]n a criminal case, the lawyer shall abide by the client's decision ⅜ ⅜ * as to a plea to be entered, whether to waive a jury trial and whether the client will testify.” Minn. R. Prof. Conduct 1.2(a). But "a lawyer will not be expected to describe trial or negotiation strategy in detail.” Id. at 1.4 cmt. 5.


author: MINGE, Judge.

text:
    Charles E. MEADS, Appellant, v. BEST OIL COMPANY d/b/a the Little Stores, et al., Respondents.
    No. A06-966.
    Court of Appeals of Minnesota.
    Dec. 19, 2006.
    Review Denied Feb. 20, 2007.

      Charles B. Bateman, Nicole R. Weinand, Reyelts, Leighton, Bateman, Hylden & Sturdevant, Ltd., Duluth, MN, for appellant.
    Thomas F. Andrew, Brown, Andrew & Signorelli, P.A., Duluth, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge; MINGE, Judge; and HUDSON, Judge.
   OPINION

MINGE, Judge.

Appellant challenges the district court’s grant of summary judgment denying his claim against respondents for discriminatory refusal to hire. Appellant asserts the district court erred in determining that (1) there was no genuine issue of material fact whether respondent’s justification for not hiring appellant was pretextual; and (2) relief for employment discrimination was barred by respondent’s discovery during litigation that appellant failed to disclose a criminal conviction on his employment application. Because we conclude that there is a material fact dispute over whether respondent’s justification was pretextual and because discovery during litigation of omissions on an employment application does not bar appellant’s employment discrimination claim but may limit his remedies, we reverse.

FACTS

Respondent Best Oil Company owns and operates a chain of convenience stores in the Duluth area that includes the West End Little Store (Little Store). On October 25, 2004, appellant Charles Meads, an African-American man, applied for a cashier position at the Little Store. There were three applicants for two open cashier positions. The other two applicants, who were Caucasian, were hired instead of appellant.

Before he applied for a job as a cashier at the Little Store, appellant was a regular customer there. He lived across the street and was in the store one or two times a day on average. Appellant asked Aaron Potopinski, a store employee, if the Little Store was hiring. Potopinski told appellant that there was a job opening and that appellant could use him as a reference. Appellant submitted an employment application and included his work history with two references. Appellant later called respondent Linda Witta, the manager of the Little Store, to follow up on his application. Witta scheduled an interview.

Best Oil had no formal criteria for the cashier position and no set interview procedure. Witta, who had recently been appointed manager, conducted most of the Little Store interviews. Witta was given a list of suggested interview questions, but she was not required to follow the list. Witta described her interviews as short, informal, and primarily designed to evaluate the applicant’s personality. Witta also stated that she does not rely heavily on an applicant’s work history and does not call an applicant’s references or former employers.

Both appellant and Witta recall very little about their interview, but the record indicates that appellant performed acceptably. But Witta testified in her deposition that she had worked at the store for several years, that she recognized appellant as a customer from the store, and that based on her prior interaction with appellant, she did not consider him personable.

Cheryl Sievers, who had previously held Witta’s position as the manager of the Little Store, was ultimately responsible for making the hiring decision, but made the decision in consultation with Witta. In her deposition, Sievers said that appellant was not hired primarily because of statements by Witta and another employee that appellant was rude while in the store as a customer.

Sievers also testified that appellant’s girlfriend, LaVon McEwen, had told Siev-ers that she (McEwen) was afraid of appellant, and that on one occasion, when they were arguing, McEwen’s son stood up for McEwen and appellant struck McEwen’s son or attempted to do so. Sievers also said that other employees told her the police had been to appellant’s apartment, and that McEwen had come across the street to call 911 due to problems with appellant. McEwen signed an affidavit in which she denied calling police on account of appellant’s actions, denied that appellant ever had an altercation with her son, and denied telling Little Store employees that any such event took place.

Appellant testified at his deposition that he did not have an abusive relationship with McEwen or her son, and that during the time he lived with McEwen, the police were never called to the apartment. Appellant also testified that although he had been in the Little Store many times, he did not remember encountering Sievers, that he could only remember being waited on by or encountering Witta a couple of times, and that their contact was too limited to evaluate his personality. Finally, appellant added that he had gotten along well with store employees, and that Aaron Po-topinski had encouraged him to apply for the cashier opening. Potopinski testified in his deposition that he encouraged appellant to apply because, in his experience, appellant was polite, talkative, and personable.

After being turned down for the job and learning that two Caucasian people had been hired, appellant filed a complaint with the City of Duluth Human Rights Office. The human rights office investigated appellant’s complaint, found probable cause to believe respondent did not hire appellant due to an unfair discriminatory employment practice, and filed suit on behalf of appellant against respondent, alleging it had engaged in an unfair discriminatory practice in violation of Chapter 29C, Section 7 of the Duluth City Code.

During discovery, respondent learned for the first time that appellant had been convicted in Indiana of aiding in a burglary 12 years earlier. The job application asks each applicant whether he or she has ever been convicted of a crime, other than minor traffic violations. On his application, appellant checked the box labeled “no.” The application also states that a prior criminal conviction does not constitute an automatic bar to employment and will be considered as it relates to the job in question. At the bottom of the form, the applicant is asked to certify that the information provided in the application is true, and informs the applicant that if an applicant is employed and the information provided in the application is later found to be false, the applicant may be dismissed. In addition to the employment application warning about false information, respondent’s employee handbook provides:

The Little Stores relies upon the accuracy of information contained in the employment application, as well as the accuracy of other data presented throughout the hiring process and your employment. Any misrepresentations, falsifications, or material omissions in any of this information or data may result in your termination of employment.

In her deposition, Sievers said that a conviction for theft or burglary disqualifies applicants for cashier positions.

Following discovery, respondent brought a motion for summary judgment. The district court concluded that: (1) respondent’s evaluation of appellant’s personality was a legitimate business justification for not hiring him and that appellant did not establish a material fact dispute over whether this justification was a pretext; and (2) appellant’s claim was barred as a matter of law by appellant’s materially false job application. The district court granted summary judgment and dismissed appellant’s claim. This appeal followed.

ISSUES
I. Is there a disputed issue of material fact whether respondent’s decision not to hire appellant was based on a legitimate, nondiscriminatory reason or whether the reason was pretextual?
II. Is appellant’s employment discrimination action barred by his failure to disclose a criminal conviction on his employment application, which was discovered after respondent decided not to hire him?

ANALYSIS

I. Pretext

The first issue is whether the district court properly granted summary judgment for respondent and found no material fact issue with respect to whether respondent’s justification for its hiring decision was pre-textual.

When we review a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). There is no genuine issue of material fact when “ ‘the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.’ ” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). When determining whether there are any genuine issues of material fact “the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

The Duluth City Code prohibits the commission of an unfair discriminatory employment practice. Duluth, Minn., City Code ch. 29C, § 8(a) (2004). The code defines an unfair discriminatory practice by expressly incorporating the definition codified in the Minnesota Human Rights Act (MHRA). Duluth, Minn., City Code ch. 29C, § 7 (2004). Accordingly, we construe the relevant portions of the Duluth City Code to conform with the MHRA and Minnesota caselaw interpreting the MHRA.

The MHRA provides, “[e]xcept when based on a bona fide occupational qualification, it is an unfair employment practice for an employer, because of race ... to (a) refuse to hire ... a person seeking employment.” MinmStat. § 363A.08, subd. 2 (2004). Under the MHRA, a plaintiff may prove discriminatory intent by direct evidence or by circumstantial evidence in accordance with the three-part McDonnell Douglas burden-shifting test. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn.2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). Under the McDonnell Douglas test, the plaintiff alleging a discriminatory employment practice must first make out a prima facie case of discrimination. Id. To establish a prima facie case, the plaintiff must show that she “(1) is a member of [a] protected class; (2) was qualified for the position [for which she applied]; and (3) was replaced by a non-member of the protected class.” Id. (quotation omitted). If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the hiring decision. Hoover, 632 N.W.2d at 542. Once the employer provides a nondiscriminatory reason for its decision, the employee must establish that the proffered reason is a pretext for discrimination. Id.

The plaintiff may meet the burden of showing pretext “either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn.1986) (quotation omitted). But “[t]o prove pretext, the employee must do more than show that the employment action was ill-advised or unwise, but rather must show that the employer has offered a phony excuse.” Henderson v. Ford Motor Co., 403 F.3d 1026, 1034 (8th Cir.2005) (quotation marks omitted).

The determination of whether the plaintiff has met her burden of showing pretext must be evaluated in light of the nondiscriminatory reason offered by the employer. The purpose of part two of the McDonnell Douglas test is not only to rebut the plaintiffs prima facie case of discrimination, but also to “frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” State v. Scientific Computers, Inc., 393 N.W.2d 200, 203 (Minn.App.1986) (quotations omitted). Because subjective justifications are based primarily on the decision maker’s mental impressions, attitudes, and opinions, an employer’s subjective hiring justification makes it especially difficult for a plaintiff to produce evidence to create a material fact issue regarding pretext even if the hiring decision was discriminatory. Moreover, subjective justifications have “the potential to favor applicants who are most like those doing the selecting,” and the propensity to conceal discrimination. Kaster v. Indep. Sch. Dist. No. 625, 284 N.W.2d 362, 366 (1979). Because the plaintiffs burden to show pretext is more difficult when the employer’s justification for its hiring decision is subjective, we consider an employer’s lack of objective hiring criteria when determining whether there is a material fact issue in regard to pretext. Scientific Computers, Inc., 393 N.W.2d at 204.

Here, respondent’s justification for choosing not to hire appellant was subjective. Respondent’s decision not to hire appellant was largely based on Witta’s perception that appellant was not personable. She testified that her impression was not based on her interview with appellant, in which appellant performed adequately, but instead was based on one instance in which appellant was allegedly rude to Witta while he was a customer in the Little Store. Whether Witta had a legitimate, nondiscriminatory reason to reach this conclusion and make her decision was disputed. In his deposition, appellant testified he had had little contact with Witta while he was a customer in the store. Also, employee Potopinski had a distinctly different perception of appellant’s personality. Potopinski even recommended that appellant apply for the job and offered to serve as a reference for appellant.

In addition to the subjective reason offered by respondent, we note that respondent had an informal hiring process. Its employee handbook indicates that “[p]er-sons hired are selected solely on the basis of ... ability, aptitude, experience, education, and desire.” However, respondent gave little, if any, weight to an applicant’s work history or references, a practice that adds to the subjective nature of respondent’s hiring procedure. Kaster, 284 N.W.2d at 366. Further, manager Sievers testified that the most important factor in respondent’s hiring decisions is the way the interviewer feels about an applicant’s personality.

In reaching her decision not to hire appellant, Sievers consulted with Witta. Sievers’s participation brought into consideration a disputed domestic-violence incident. Sievers reported that she and other employees had been told of or observed indications of domestic-violence incidents. But appellant denies such allegations. Further, McEwen, the alleged victim of these incidents, submitted an affidavit denying that she ever told Little Store employees she had domestic problems with appellant, or that appellant had been abusive towards her son. McEwen also denies having ever called the police regarding an incident with appellant. If the Little Store staff was mistaken about such incidents involving appellant, respondent’s claim that the incidents were a legitimate business reason for not hiring appellant is in dispute.

We do not question that it is important for respondent’s convenience store cashiers to be personable, and we recognize the subjectivity inherent in hiring decisions for employment positions that require such skills. But the question before us is not whether these are appropriate considerations or whether respondent met that standard. Rather, the question is whether, on this record, respondent’s subjective hiring decision is adequate to support a motion for summary judgment. We do not conclude Witta or Sievers’s reason for not hiring appellant was a pretext for racial discrimination. We only conclude that given the factual dispute over the extent of Witta’s contact with appellant, employee Potopinski’s positive impression of appellant, the dispute over whether Sievers or the employees were mistaken about domestic abuse, the highly subjective nature of the hiring process, the lack of any objective evaluation of appellant’s fitness for the position, and our obligation to view the evidence in the light most favorable to appellant, that there is a genuine issue of material fact whether respondent’s proffered justification for choosing not to hire appellant was a pretext for racial discrimination. We conclude that summary judgment was error.

II. After-acquired Evidence

The second issue is whether evidence of appellant’s 12-year-old criminal conviction, discovered after respondent decided not to hire appellant, bars his discrimination claim as a matter of law.

Twelve years ago, we addressed the effect of after-acquired evidence of employee wrongdoing on a plaintiffs discrimination claim in Frey v. Ramsey County Cmty. Human Servs., 517 N.W.2d 591 (Minn.App.1994). In Frey, the appellant filed a discrimination suit against Ramsey County for discriminatory refusal to renew a contract for emergency foster care services. Id. at 594. After the county chose not to renew Frey’s contract, the county gained extensive information documenting the extent of Frey’s disability. Id. at 594-95. This information included medical reports disclosing her psychological inability to handle stress or care for children and a determination of disability by the Social Security Administration. Id. at 595. This information confirmed the county’s initial conclusion that Frey was incapable of providing emergency shelter care for children at the time she entered into the original contract with Ramsey County. Id. at 600-01. After analyzing decisions from other jurisdictions, including conflicting federal circuit court cases, Frey held that after-acquired evidence of plaintiffs disability barred her discrimination claim as a matter of law. Id.

Although Frey announced that as a general rule the act of employee dishonesty in failing to disclose relevant information may bar a claim of discriminatory refusal to hire, Frey dealt with a different factual situation than we face here. More importantly, the legal landscape changed shortly after the Frey decision. The uncertainty in the federal courts ended the next year when the United States Supreme Court addressed the same issue in McKennon v. Nashville Banner Publ’g. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). In McKennon a discharged employee sued her employer under the Age Discrimination in Employment Act (ADEA). Id. at 355, 115 S.Ct. at 883. After McKennon was discharged, her employer acquired evidence of misconduct that would have led to McKennon’s termination had it been acquired sooner. Id. In a unanimous opinion, the Court held that after-acquired evidence of employee wrongdoing does not bar relief for employment discrimination. Id. at 357-58, 115 S.Ct. at 883-84.

In McKennon the Court began by describing the broad policy of the ADEA: “The ADEA ... is part of an ongoing congressional effort to eradicate discrimination in the workplace [and] reflects a societal condemnation of invidious bias in employment decisions.” Id. at 357, 115 S.Ct. at 884. As the Court observed, Congress designed the ADEA and Title VII’s remedial measures “to serve as a spur or catalyst to cause employers to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of discrimination.” Id. at 358, 115 S.Ct. at 884 (quotations omitted). It pointed out that deterrence of discriminatory employment practices and compensation for injuries caused by unlawful discrimination are two primary objects of these statutes. Id. The Court reasoned that allowing after-acquired evidence to bar relief for discrimination does not further either objective. Rather, because “[t]he objectives of the ADEA are furthered even when a single employee establishes that an employer has discriminated against him or her,” the Court held that after-acquired evidence cannot operate to bar all relief. Id., 115 S.Ct. at 885. The Court also considered whether the equitable rule of unclean hands is available as a defense when there is after-acquired evidence of the employee’s wrongdoing and concluded that the rule “has not been applied where Congress authorizes broad equitable relief to serve important national policies.” Id. at 360, 115 S.Ct. at 885.

Still, the Court recognized that employers have an important interest in, and discretion over, the selection of their workforce. The Court held that an employee’s misconduct, while not barring relief, does limit the employee’s available remedy. The Court concluded that,

as a general rule in cases of this type, neither reinstatement nor frontpay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.

Id. at 361-62,115 S.Ct. at 886.

In Frey, we recognized the policy considerations the Court described in McKennon, but relied on federal caselaw that has since been superseded to conclude that after-acquired evidence of employee misconduct bars employment-discrimination claims. Frey, 517 N.W.2d at 596-99. We do not question the narrow result in Frey. On its facts, it is far different from the case before us. Frey dealt with emergency foster care for the immediate safety of children and compelling evidence of the immediate inability of a person to provide foster care. Id. at 594-95. Here, we are dealing with a 12-year-old conviction and no evidence of a clear and present impact on the employee’s ability to do the work. The broad language and analysis in Frey is not consistent with our result, but that discussion in Frey has been eclipsed by McKennon, and we follow McKennon. Although McKennon is a federal case, it was decided by the United States Supreme Court, and Minnesota courts have regularly construed the MHRA in accordance with Title VII, Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn.App.1999), review denied (Minn. Oct. 21, 1999), or, if anything, more favorably to the applicant. See, e.g., Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 625-26 (Minn.1988). Certainly there is an advantage to consistency between the application of state and local government anti-discrimination laws and their federal counterparts. Such consistency minimizes forum shopping and provides a larger body of caselaw to guide employers in planning. Because we accept McKennon’s rationale, we conclude that evidence of employee wrongdoing, acquired after the employer’s hiring or firing decision, does not bar discrimination claims as a matter of law.

Consistent with McKennon, we recognize that evidence of employee wrongdoing is relevant to the specific remedy ordered under the MHRA. Like Title VII, the MHRA prohibits discriminatory employment practices. See Minn.Stat. § 363A.08. But the law “does not constrain employers from exercising significant ... discretion!] in the course of the hiring, promoting, and discharging of their employees.” McKennon, 513 U.S. at 361, 115 S.Ct. at 886. Accordingly, where an employer meets its burden to establish “that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge,” reinstatement and frontpay are not proper remedies. Id. at 362-63, 115 S.Ct. at 886-87. However, we do not bar other remedies, including recovery of backpay, which should be calculated “from the date of the unlawful [discriminatory employment practice] to the date the new information was discovered.” Id. at 362, 115 S.Ct. at 886.

Here, the impact of appellant’s burglary record on respondent’s employment or termination decision is not free from question. The conviction was 12 years old. Appellant has held several jobs since then. The conviction was for “aiding” in a burglary. It is not clear what appellant’s actual role might have been or how such an older conviction would be considered by respondent in making a decision to not hire or to discharge. Cf. Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1295, 1298-99 (8th Cir.1975) (holding that the employer’s policy of rejecting applicants with criminal convictions was discriminatory because statistically, black applicants were disqualified at a rate of two and one-half times that of the white applicants and because the employer could not justify the policy as a business necessity). We do not suggest that respondent cannot establish reasonable rules regarding the criminal history of its employees who handle money. We recognize that the employer may reasonably require that an employee be bondable. At the same time, we are aware that employers have been encouraged to give job opportunities to persons with a criminal record. See Minnesota Criminal Rehabilitation Act, Minn.Stat. § 364.01 (2004) (stating that employment opportunities are “essential to rehabilitation [of criminal offenders] and the resumption of the responsibilities of citizenship.”). We simply note that the nature, extent, and reasonableness of respondent’s policy are matters to be determined on remand.

Applying McKennon’s framework here, we conclude the district court erred by holding that after-acquired evidence of appellant’s 12-year-old conviction barred appellant’s discrimination claim as a matter of law.

DECISION

We reverse summary judgment dismissing appellant’s claim of employment discrimination and remand for trial on whether respondent’s refusal to hire was based on a legitimate, nondiscriminatory reason or whether respondent’s reason was pre-textual and, if the failure to hire was discriminatory, the appropriate remedy. Although appellant’s failure to disclose his burglary conviction does not bar his claim, it may affect the range of remedies.

Reversed and remanded.

      . Appellant's complaint names both Best Oil and Linda Witta as defendants in the action. But appellant’s arguments here are based almost exclusively on Best Oil’s hiring decision and Witta’s participation in that decision. Appellant does not substantiate a claim against Witta in her individual capacity, and because the issue was not raised by the parties, we do not address whether Witta may be sued in her individual capacity under Minn. Stat. § 363A.08, subd. 2 (2004). Here, for ease of reference, we refer to respondents Best Oil and Witta as respondent, in the singular.


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 4
    STATE of North Dakota, Plaintiff and Appellee v. Brian Q. GOEBEL, Defendant and Appellant.
    No. 20060147.
    Supreme Court of North Dakota.
    Jan. 11, 2007.

      Terry W. Elhard, State’s Attorney, Ashley, ND, for plaintiff and appellee.
    Loren C. McCray, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Brian Q. Goebel appealed from a criminal judgment entered after a jury found him guilty of two counts of gross sexual imposition. Goebel argues that the district court erroneously denied his motion to suppress incriminating statements, that the charges were time barred by the statute of limitations, and that the evidence was insufficient to support his conviction. We affirm.

I

[¶ 2] In June 2005, Goebel was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly having sexual contact with his nephew and his niece, J.G. and D.G., when they were both less than fifteen years old. At trial, J.G. testified that during a visit to his grandparents’ house when he was six or seven years old, Goebel engaged in sexual contact with him. Specifically, J.G. stated that he was taking a bath when Goebel entered the bathroom and removed him from the tub. According to J.G.’s testimony, Goebel then touched J.G.’s penis with his hands and mouth. Additionally, J.G. testified that later that same evening Goe-bel took him down to the basement and forced him to engage in anal sex.

[¶ 3] At trial, the State also presented evidence that Goebel had engaged in two separate instances of sexual contact with D.G. when she was about seven or eight years old. D.G. testified that the first instance occurred in the basement of her grandparents’ house, where Goebel forced her to engage in vaginal intercourse. According to D.G., the second instance occurred around Christmas time while her family was watching television at her grandparents’ house. In particular, she testified that Goebel reached into her pants and digitally penetrated her vagina while they sat together covered by a blanket on the couch.

[¶ 4] On appeal from the judgment of conviction, Goebel raises three major issues. First, he argues the district court erroneously denied his motion to suppress incriminating statements he made during an interview with law enforcement. Second, he claims the two charges against him were barred by the statute of limitations and should have been dismissed. Third, Goebel contends the evidence presented by the State was insufficient to support his conviction. We consider each of these arguments in turn.

II

[¶ 5] Several months before trial, Goe-bel moved to suppress all statements he made during an interview with law enforcement on May 10, 2005. At the suppression hearing, the district court heard testimony about the circumstances of that interview. Prior to the interview, law enforcement officers had been in contact with J.G. and D.G. regarding their allegations that Goebel had sexually abused them as children. On May 10, 2005, in the course of investigating these allegations, McIntosh County Sheriff Paul Peters drove to Goebel’s place of employment and asked him to come to the Wishek Police Department. Shortly thereafter, Goebel drove in his own vehicle to the police station, where Sheriff Peters and Special Agent Calvin Dupree of the North Dakota Bureau of Criminal Investigation were waiting for him.

[¶ 6] The interview took place in the one-room office of the police department, which is in the city hall building. The only door to the office was closed, but not locked, during the interview. Sheriff Peters testified that the door was closed because he did not want the other city employees working in the building to hear the interview. Goebel and the two officers sat in chairs facing each other, with Goebel sitting in the chair closest to the door. Sheriff Peters testified that after he introduced Goebel and Agent Dupree, he informed Goebel that he would not be placed under arrest and would be able to leave that day, regardless of the outcome of the interview. However, Goebel testified the officers never told him that he could leave.

[¶ 7] Agent Dupree began the interview by informing Goebel that J.G. and D.G. had made allegations of sexual abuse. At that point, Agent Dupree verbally informed Goebel of his Miranda rights and provided him with a written copy of the rights as well. Goebel then signed a waiver of rights form. At the hearing, Goebel testified that he remembered being read his Miranda rights and signing something, but that he did not know what he was signing. There was conflicting testimony at the suppression hearing about whether Goebel ever asked for an attorney during the interview. Sheriff Peters and Agent Dupree both testified that Goebel never asked for an attorney, and if he had, the interview would have ceased immediately. On the other hand, Goebel testified that he asked for an attorney sometime during the interview.

[¶ 8] After Goebel signed the Miranda waiver, Agent Dupree questioned him for about an hour and fifteen minutes. Although Goebel initially denied the allegations, he eventually admitted that he had some sexual contact with J.G. and D.G. After about an hour of questioning, Agent Dupree tape-recorded the last fifteen minutes of the interview. At the suppression hearing, Agent Dupree testified that he does not use a tape recorder at the beginning of an interview because he wants the subject to speak freely. Rather, Agent Dupree stated that he uses the tape recorder to take a taped statement from the subject near the end of an interview.

[¶ 9] After hearing all the testimony, the district court denied Goebel’s motion to suppress the statements he made during the interview. The district court found that Goebel was free to leave and therefore not in custody during the interview. Additionally, the district court found that Goebel was read his Miranda rights, that he signed a waiver of lights form, and that he did not ask for an attorney.

[¶ 10] Goebel contends his incriminating statements should have been suppressed on three different grounds. He claims that the statements were obtained in violation of his Fifth Amendment right against self-incrimination, that his confession was involuntary, and that the North Dakota Constitution gives criminal defendants the right to have their custodial interrogations electronically recorded.

[¶ 11] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Woinarowicz, 2006 ND 179, ¶20, 720 N.W.2d 635 (citations omitted). Generally, a district court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the district court’s findings, and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

A

[¶ 12] Goebel argues the statements he made during the interview were obtained in violation of his Fifth Amendment right against self-incrimination. Goebel claims he was in custody during the interview, and therefore he was entitled to Miranda warnings. Additionally, Goebel argues his Miranda rights were violated because he asked for an attorney during the interview, but the officers did not cease questioning him at that point.

[¶ 13] A law enforcement officer is required to give Miranda warnings only when a person is subject to custodial interrogation. State v. Genre, 2006 ND 77, ¶23, 712 N.W.2d 624. A person is “in custody” if there is a formal arrest or restraint on his freedom of movement to the degree associated with a formal arrest. Id. In this case, we need not decide whether Goebel was in custody for Miranda purposes. It is undisputed that Goebel was informed of his Miranda rights both verbally and in writing prior to the start of the interview. It is also undisputed that Goebel signed a waiver of rights form at that time. Therefore, even if he was in custody during the interview, the officers complied with the requirements of the Fifth Amendment in that respect.

[¶ 14] Furthermore, we conclude Goebel’s claim that he exercised his Fifth Amendment privilege during the interview by asking for an attorney is without merit. While it is well established that if a person asks for an attorney during custodial interrogation, the interrogation must cease until an attorney is present, see State v. Greybull, 1998 ND 102, ¶ 15, 579 N.W.2d 161 (citing Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), here, the district court specifically found that Goebel did not invoke his right to counsel during the interview based on the testimony of Sheriff Peters and Agent Dupree. There is sufficient competent evidence supporting the district court’s findings. The district court did not err in concluding that Goebel’s Fifth Amendment rights were not violated and denying the motion to suppress on that ground.

B

[¶ 15] Goebel also contends the district court erroneously denied his motion to suppress because his confession was involuntary. In support of this claim, Goebel points in particular to his low intelligence level and “bad motives” on the part of law enforcement.

[¶ 16] When a confession is challenged on due process grounds, the ultimate inquiry is whether the confession was voluntary. State v. Norrid, 2000 ND 112, ¶ 18, 611 N.W.2d 866. A confession is voluntary if it is a product of the defendant’s free choice rather than a product of coercion. Id. To assess voluntariness, we look at the totality of the circumstances. State v. Helmenstein, 2000 ND 223, ¶ 18, 620 N.W.2d 581. Our inquiry focuses on two elements: (1) the characteristics and conditions of the accused at the time of the confession, including age, sex, race, education level, physical and mental condition, and prior experience with police; and (2) the details of the setting in which the confession was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused’s powers of resistance or self-control. State v. Syvertson, 1999 ND 134, ¶ 20, 597 N.W.2d 652.

[¶ 17] Voluntariness of a confession depends upon questions of fact to be resolved by the district court. Helmenstein, 2000 ND 223, ¶ 18, 620 N.W.2d 581. Because the district court is in a superior position to judge credibility and weight, we show great deference to the district court’s determination of voluntariness. Id. We will reverse only if the district court’s decision is contrary to the manifest weight of the evidence. State v. Sailer, 500 N.W.2d 886, 888 (N.D.1993) (citations omitted).

[¶ 18] In this case, the record supports the district court’s conclusion that Goebel’s confession was voluntary. Goebel is forty-two years old and a high school graduate. He holds a steady job at a dairy farm and owns two homes in Wish-ek. He was previously incarcerated for six months and therefore has experience with law enforcement. Although there is some evidence that Goebel has a low intelligence level and cannot read or write well, this alone is not enough to render his confession involuntary.

[¶ 19] Furthermore, the setting in which Goebel’s confession was obtained supports the district court’s conclusion that the confession was voluntary. Goebel drove himself to the police station at the request of law enforcement. He was interviewed in the one-room police department with the door closed, but not locked. Goebel and the two officers sat in chairs facing each other, with Goebel seated nearest to the door. Agent Dupree interviewed Goebel for about an hour and fifteen minutes in the middle of the day. The district court found that Goebel was free to leave during the interview. There is no evidence that the officers used improper questioning tactics or in any way coerced Goebel into confessing. Goebel claims Agent Dupree’s failure to record the first hour of the interview shows that law enforcement had bad motives and a bad attitude toward him. However, Agent Dupree testified it is his common practice to use the tape recorder to take a taped statement at the end of an interview. Goebel has not pointed to any evidence showing improper conduct on the part of law enforcement during the interview.

[¶ 20] The district court’s finding that Goebel’s confession was voluntary is supported by sufficient competent evidence, and the district court’s denial of Goebel’s motion to suppress is not against the manifest weight of the evidence. Therefore, we conclude the district court did not err when it refused to suppress Goebel’s confession on voluntariness grounds.

C

[¶ 21] Goebel’s final contention that the district court erroneously denied his motion to suppress is premised on the argument that Article I, Section 12 of the North Dakota Constitution gives criminal defendants the right to have their custodial interrogations electronically recorded. Article I, Section 12 of the North Dakota Constitution provides:

In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

Goebel claims that we should require law enforcement to electronically record all custodial interrogations in North Dakota under this section of our Constitution, but he does not specify the particular provision under which we could find such a requirement. Goebel has not pointed to anything in the language or history of the North Dakota Constitution to support this argument. Although he cites to two state courts which have required recording of custodial interrogations, these cases were decided on state law bases. See Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) (finding this requirement in the Due Process Clause of the Alaska Constitution); State v. Scales, 518 N.W.2d 587, 592 (Minn.1994) (imposing this requirement under the Minnesota Supreme Court’s supervisory power to ensure the fair administration of justice in that state). While electronic recording of all interrogations may be good practice, Goebel has not persuaded us that such a right exists under our Constitution, nor has he persuaded us that we should, after the fact, exercise supervisory power to reverse his conviction. Therefore, we decline to hold that criminal defendants have a right to electronic recording of all custodial interrogations under Article I, Section 12 of the North Dakota Constitution.

[¶ 22] We conclude the district court did not err in denying Goebel’s motion to suppress the incriminating statements he made during the interview with law enforcement.

Ill

[¶ 23] Goebel claims the two charges based on the sexual abuse of J.G. and D.G. were barred by the statute of limitations and should have been dismissed.

[¶ 24] Prosecutions for the sexual abuse of child victims are subject to a particular statute of limitations and tolling provision, both of which are contained in N.D.C.C. ch. 29-04. Section 29-04-03.1, the statute of limitations, provides:

A prosecution for violation of sections 12.1-20-03 through 12.1-20-08 or of section 12.1-20-11 if the victim was under eighteen years of age at the time the offense was committed must be commenced in the proper court within seven years after the commission of the offense or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities.

Additionally, N.D.C.C. § 29-04-03.2 provides, “If the victim of a violation of chapter 12.1-20 is under the age of fifteen, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of fifteen.”

[¶ 25] We have previously construed these statutory provisions in State v. Davenport, 536 N.W.2d 686, 687-91 (N.D.1995), and State v. Buchholz, 2004 ND 77, ¶¶ 14-19, 678 N.W.2d 144. In Davenport, we considered § 29-04-03.1, the statute of limitations provision, and concluded that the “three-years-after-reporting language” was intended to extend the limitation period beyond seven years, if the victim failed to report the offense within the seven-year period. 536 N.W.2d at 690-91. Furthermore, the statute of limitations in § 29-04-03.1 and the tolling provision in § 29-04-03.2 must be read together. See Davenport, at 691. Therefore, if the victim is under the age of fifteen at the time of the offense, the statute of limitations does not begin to run until the victim reaches the age of fifteen, which extends the initial seven-year limitation period until the victim reaches the age of twenty-two. If the victim does not report the offense to law enforcement authorities within the seven-year period, but reports the offense sometime later, the limitation period runs for three years from the date the offense is reported.

[¶ 26] Moreover, in Davenport, we outlined the complex legislative history of the statute of limitations for sexual offenses against minors. 536 N.W.2d at 687. Section 29-04-03.1, the statute of limitations, was enacted in 1985 and amended in 1987 and 1993. Davenport, at 687. Section 29-04-03.2, the tolling provision, was enacted in 1987. Davenport, at 687. After considering legislative intent, we held that each extension of the statute of limitations applies retroactively “for existing offenses for which the statute of limitations had not expired under the prior law.” Buchholz, 2004 ND 77, ¶ 16, 678 N.W.2d 144 (citing Davenport, at 689). Therefore, if the statute of limitations for an offense had not yet expired when the limitation period was extended, the extended period applies. As a result, the current version of the statute of limitations, as amended in 1993, may apply to offenses which occurred prior to 1993.

[¶ 27] As to J.G., the State charged Goebel with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with J.G. sometime between 1988 and 1991. J.G. was born in 1982. At the hearing on the motion to dismiss, J.G. testified that the sexual contact occurred when he was about six or seven years old. However, the contact most likely occurred when J.G. was about eight years old, because J.G. described the contact as occurring at his grandparents’ house in Wishek, which they did not move into until December 1990. When he was eleven years old, J.G. reported the abuse to a therapist at the Children’s Home Society in Sioux Falls, South Dakota, but the report never went any further. J.G. first reported the offense to law enforcement authorities on January 31, 2005, at the age of twenty-two.

[¶ 28] When N.D.C.C. § 29-04-03.1 was amended in 1993, the statute of limitations against Goebel had not yet expired for the offenses committed sometime between 1988 and 1991. Therefore, under Davenport, the district court properly applied the current version of § 29-04-03.1 to the charge. Because J.G. was under the age of fifteen at the time of the offense, the statute of limitations did not begin to run until his fifteenth birthday in 1997. J.G. did not report the offense to law enforcement until January 31, 2005, which fell outside of the initial seven-year limitation period. Therefore, the prosecution had to be commenced within three years after January 31, 2005, when J.G. first reported the offense. Here, the State filed a criminal complaint against Goebel in June 2005, well within the three-year limitation period. Therefore, the district court did not err when it refused to dismiss the charge based on the sexual abuse of J.G.

[¶ 29] As to D.G., the State charged Goebel with gross sexual imposition under N.D.C.C. § 12.1 — 20—03(2)(a) for allegedly engaging in sexual contact with D.G. sometime between 1993 and 1996. D.G. was born in 1987. She testified that multiple instances of sexual contact occurred when she was seven and eight years old. In December 2002, when she was fifteen years old, D.G. reported the abuse to a counselor at St. Alexius Hospital in Bismarck. At this time, law enforcement authorities were informed of the report.

[¶ 30] If the offenses occurred in 1993, the earliest date alleged by the State, the statute of limitations against Goebel would not have expired at the time the limitation period was extended in 1993. Thus, the district court correctly applied the current version of § 29-04-03.1 to this charge. Because D.G. was under the age of fifteen at the time of the sexual abuse, the statute of limitations did not begin to run until her fifteenth birthday in 2002. The offense was reported to law enforcement authorities in December 2002, within the initial seven-year limitation period. The State filed a criminal complaint against Goebel in June 2005, when D.G. was eighteen years old. Because the prosecution was commenced within seven years as required by § 29-04-03.1, the district court did not err when it refused to dismiss the charge based on the sexual abuse of D.G.

IV

[¶ 31] Finally, Goebel argues his conviction should be reversed because the evidence presented at trial was insufficient to support the guilty verdicts on both counts. Goebel claims that J.G.’s testimony about the sexual contact could not have been true because J.G.’s grandparents did not own a home in Wishek when he was six or seven years old. Furthermore, Goebel contends that D.G.’s testimony was “unspecific and unbelievable.”

[¶ 32] The tasks of weighing the evidence and judging the credibility of witnesses belong to the jury. State v. Laib, 2005 ND 191, ¶ 6, 705 N.W.2d 815 (citation omitted). On appeal, we assume the jury believed the evidence supporting the verdict and disbelieved any contrary evidence. Id. A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty. State v. Krull, 2005 ND 63, ¶ 14, 693 N.W.2d 631.

[¶ 33] Our review of the sufficiency of the evidence to support a jury verdict is thus very limited. State v. Bell, 2002 ND 130, ¶ 25, 649 N.W.2d 243. We look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. Krull, 2005 ND 63, ¶ 14, 693 N.W.2d 631. After viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, we will only reverse a conviction if no rational fact finder could have found the defendant guilty beyond a reasonable doubt. State v. Barth, 2005 ND 134, ¶ 19, 702 N.W.2d 1; Bell, at ¶ 25.

[¶ 34] In this case, the State presented sufficient evidence to support Goe-bel’s conviction on two counts of gross sexual imposition. Both J.G. and D.G. testified at trial and implicated Goebel in detail. J.G. testified that the sexual contact occurred in about 1988 or 1989 when he was six or seven years old, which was prior to the time his grandparents owned the house in Wishek. However, it was reasonable for the jury to infer that the sexual abuse happened sometime after the house was purchased in December 1990, when J.G. was about eight years old. At trial, J.G. gave an accurate description of the inside of the house and stated that he had not been back there since the day after the incident. As to Goebel’s argument that D.G.’s testimony was unbelievable, the jury chose to believe her, and we will not preempt the jury’s credibility determination.

[¶ 35] Additionally, the State presented evidence regarding the law enforcement interview in which Goebel admitted he had sexual contact with J.G. and D.G. when they were children. A defendant’s inculpatory words are substantial evidence on which a rational jury can convict. Krull, 2005 ND 63, ¶ 15, 693 N.W.2d 631. Although Goebel denied the allegations at trial and testified that he made the admissions only because he was scared, the jury chose not to believe him. Viewing the evidence in the light most favorable to the verdict, we conclude a rational fact finder could have found Goebel guilty of two counts of gross sexual imposition beyond a reasonable doubt.

V

[¶ 36] We affirm the criminal judgment.

[¶ 37] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ, concur.