author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Ronald Lewis GREER, Appellant.
    Nos. C9-99-1550, C7-00-2154.
    Supreme Court of Minnesota.
    Nov. 1, 2001.

      John M. Stuart, State Public Defender, Lawrence W. Pry, Asst. State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Atty. Gen., Thomas R. Ra-gatz, Asst. Dist. Atty., St. Paul, Amy Klo-buchar, Hennepin County Atty., David C. Brown, Asst. Hennepin County Atty., Minneapolis, for respondent.
   OPINION

PAGE, Justice.

Ronald Greer was convicted of first-degree murder in violation of Minn.Stat. § 609.185(1) (1998), and second-degree murder in violation of Minn.Stat. § 609.19(1) (2000), in connection with the July 26, 1998, shooting death of Kareem Brown. Greer raises four issues on this direct appeal: first, whether the trial court deprived him of the right to an impartial jury by limiting voir dire examination of six prospective jurors regarding their attitudes toward police officers; second, whether Greer was denied due process and the right to confront the witnesses against him by the trial court’s refusal to permit him to impeach a state’s witness with evidence of a prior conviction; third, whether his right to present a meaningful defense was violated by the trial court’s failure to permit him to testify regarding aspects of the circumstances surrounding his pretrial statements to the police; and, finally, whether Greer is entitled to a Schwartz hearing to determine the nature and effect of the trial court’s ex parte contacts with the jury during trial.

After reviewing each of the issues raised, we are satisfied that, as to the first three, Greer’s arguments are without merit. With respect to the fourth issue, because we lack a sufficient record to determine whether the trial court’s contacts with the jury were improper, we remand to the chief judge of the Fourth Judicial District for further proceedings.

Brown was shot to death shortly after midnight on July 26, 1998, in south Minneapolis. At trial, the state argued that the murder was committed in retaliation for Brown’s alleged theft of money and drugs from Greer. Greer’s principal defense was alibi. He contended that he was at the home of a friend when Brown was shot and that a man known as “E” was the killer.

A number of witnesses implicated Greer in Brown’s death. Aaron Jones, who knew Greer, testified that he saw Greer with a gun in his hand walking north through the alley between 15th Avenue (15th) and Bloomington Avenue (Bloomington) toward the place where Brown was eventually shot. Ten to twenty seconds later, A. Jones heard between six and nine gunshots coming from the direction in which Greer was headed. He then heard footsteps running south through the alley and the sound of someone opening a trash-can lid and throwing an object into it. A. Jones later picked Greer out of a photo lineup and testified that he was positive it was Greer he saw in the alley.

Somsonaouk Phraviseth testified that he saw two men arguing in the middle of Bloomington while he was waiting in his car at a red light at the intersection of Bloomington and Lake Street. He then saw one of the men fire at the other repeatedly with a dark semi-automatic handgun. The gunman then ran away through a vacant lot. Phraviseth described the gunman as a six-foot tall black male with a medium build, short curly hair, and a goatee, who was wearing dark blue baggy clothing.

Ira Bacon, who lived near the scene of the shooting, testified that he heard someone scurrying through bushes near his house just moments before hearing approximately three gunshots. Bacon then looked out his window onto Bloomington and saw a man fire a “couple more shots.” Bacon described the gunman as a five-foot, eight-inch tall black male with a medium build and short hair, who was wearing dark baggy clothes.

Marvin Jones and Frankie Richardson were in M. Jones’ apartment watching television when they heard gunshots. M. Jones testified that he then looked out the window onto the alley between 15th and Bloomington and saw a man he later identified as Greer jogging south through the alley with a gun. The man stopped at a trash can with a streetlight directly above it and raised the lid as if to put the gun inside. M. Jones described the gun as a Luger-style, with a long barrel. According to M. Jones, Greer then continued to run south through the alley. Richardson testified that she heard six or seven gunshots, went to the window, saw a man running south through the alley, and stopped looking when she saw the man pause at a trash can and lift the lid. She described the man as a black male, approximately five-feet-five or five-feet-six inches tall, wearing dark blue or black clothing.

When the police arrived at the scene of the shooting, M. Jones told them what he had witnessed. The police conducted a search of the trash cans in the alley and recovered a long-barreled, Ruger semi-automatic pistol from one of them. Shell casings found near Brown’s body were matched to that gun.

Greer was arrested in Detroit, Michigan, on August 11, 1998. Two Minneapolis police officers flew to Detroit and interviewed Greer there the following day. According to the officers, they attempted to tape-record this interview, but when they played the tape back it was blank. Conflicting evidence was offered as to what transpired during this interview. The officers testified that they told Greer that a gun had been found in a trash container and that they thought he was the killer. Greer testified that the officers told him they knew he was the killer, that they had his fingerprints on the murder weapon, and that a 70 year old woman had seen him in the alley the night Brown was shot. According to Greer’s testimony, the officers badgered him, calling him a “stone-cold killer” and a “cold-blooded murderer,” and kept repeating the evidence they allegedly had against him. He testified that the officers then explained that he would be released if he told them who the killer was. At this point, Greer contends, he told the officers that when Brown was killed he was at the Minneapolis home of a friend by the name of Geneva Benford.

During his testimony, Sergeant Chris Hauglid of the Minneapolis Police Department denied that Greer was told that the police had a witness who saw him running down the alley, denied telling Greer that they had his fingerprints on the gun, and denied telling him that he would be released if he told them who shot Brown. Hauglid also denied that Greer told them he was at Benford’s home at the time of the shooting.

Within minutes of the conclusion of this interview, Greer asked the officers to return because he “had a story to tell them.” During this second interview, which was tape-recorded, Greer told the officers that he was present at the scene of the shooting. He stated that an individual named “E” was the gunman, and that E was angry at Brown because Brown had stolen money from E. During this part of the interview, Greer gave a somewhat detailed description of how Brown’s shooting occurred.

Greer was interviewed a third time by the police on September 25, 1998, in Minneapolis. During this interview, also recorded on tape, he again implicated E as the gunman. He first indicated that he was at Benford’s home when Brown was shot and then changed his story, saying he was with E at the time of the shooting.

At trial, Greer testified that, following his arrest in Detroit, he was held overnight in a filthy, rat- and roach-infested cell with only two wooden boards on which to sleep. According to Greer, he told the officers who interviewed him that he was at the scene of the murder just so he could get out of jail. He testified that he was at Benford’s home when E shot Brown, that E shot Brown because some of E’s drugs had been stolen, and that 95% of what he told the officers on August 12 and September 25 was untrue.

Greer testified that he arrived at Ben-ford’s home about 9:30 or 10:00 p.m. on July 25, 1998, and that he was there playing video games all night with Benford’s son, Tad. Greer claimed that E and two other men arrived at Benford’s at about 1:30 a.m. on July 26 and told him Brown was dead. According to Greer, he did not inform the police that he was at Benford’s during his second interview in Detroit because he did not want to get her involved. At trial, Anthony Harper and Tad Benford corroborated Greer’s alibi. Testimony introduced through Claude Garry and Dante Bracey also implicated E in Brown’s murder.

I.

Greer first claims that he was deprived of his right to trial by an impartial jury when the trial court limited his counsel’s voir dire of six prospective jurors— Anderson, Stokesbary, Williams, Sweeney, Buckley, and Gilbertson — -as to their predisposition to believe that police officers are more credible than other witnesses. Of these, only Buckley and Gilbertson ultimately served on the jury. Of particular concern to Greer was the trial court’s refusal to allow his counsel to ask three of the prospective jurors- — -Sweeney, Buckley, and Gilbertson — -whether they believe police officers lie.

The United States and Minnesota Constitutions guarantee a criminal defendant the right to an impartial jury. U.S. Const, amends. VI, XIV; Minn. Const, art. 1, § 6; Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). This right includes the ability to conduct “an adequate voir dire to identify unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

Trial court decisions relating to the conduct of voir dire will not be overturned absent an abuse of discretion. State v. Chambers, 589 N.W.2d 466, 474 (Minn.1999). We agree with the commentary to Rule 26.02 of our Rules of Criminal Procedure, which states that trial courts have the responsibility to “restrict or prohibit questions [during voir dire] that are repetitious, irrelevant, or otherwise improper.” Minn. R.Crim. P. 26.02, cmt. However, it is an abuse of discretion for the trial court to frustrate the purposes of voir dire by preventing discovery of bases for challenge or inhibiting a defendant’s ability to make an informed exercise of peremptory challenges. State v. Owens, 373 N.W.2d 313, 315 (Minn.1985); see also Minn. R.Crim. P. 26.02, subd. 4(1).

The transcript of voir dire in this case indicates that all six prospective jurors were questioned about their predisposition to find police officers more credible than other witnesses. Anderson, for example, was asked twice whether he would give officers a “bump” in credibility, twice whether he would “dig in” to the testimony of police officers, twice whether he would favor the testimony of officers, whether officers are more believable than non-police, whether they can be mistaken, and whether they can be biased and have their own agenda. In response, Anderson indicated that officers can be mistaken or biased, that they are capable of not telling the truth, and that he would critically evaluate the testimony of an officer in the same manner as that of any other witness.

Greer’s counsel asked Stokesbary four times whether he would favor police officers, twice whether he would give the testimony of officers the benefit of the doubt, if officers “would always testify truthfully,” if it would be difficult to think that an officer did not testify truthfully, and if it would be “virtually impossible for [him] to conclude ⅞ * * that a police officer had testified falsely.” The trial court asked Stokesbary if officers could be mistaken as to what they saw or heard, whether they might have an “incomplete perception,” and whether they may not recall something properly. Stokesbary stated that he believed police officers might not tell the truth and that officers, like anyone else, can be mistaken. Furthermore, he acknowledged that he would evaluate the testimony of every witness, regardless of their identity or position in life, using the criteria supplied by the judge.

Williams was asked whether he would evaluate the testimony of a police officer and twice asked whether he would tend to favor the testimony of a police officer over that of a lay witness. In response, Williams explained his view that officers’ perceptions can be incorrect or influenced by preconceived notions. He went on to state that his evaluation of police officers’ credibility would be based on their testimony and his own observations and intuitions.

Greer’s counsel asked Sweeney if she would favor testimony given by an officer and if an officer could be “not telling the truth,” twice asked whether she would give officers a “bump” in believability, and twice asked whether an officer can be biased. Sweeney stated that police officers should not be treated differently than anyone else. She also indicated that officers can be biased and, like non-police, might not tell the truth.

Buckley was asked whether he would treat the testimony of an officer the same as that of a lay witness, twice whether he would give officers a “bump” in credibility, and three times whether he would “dig in” to their testimony. Buckley’s answers demonstrated that he would “absolutely” treat the testimony of an officer like that of any other witness, and that he would objectively evaluate and “dig in” to officers’ testimony to determine whether it was factually based.

Finally, with respect to Gilbertson, Greer’s counsel asked if he would treat an officer differently than other witnesses and if officers can make mistakes, be wrong, “or even not tell the truth in a specific situation.” Gilbertson stated that police officers are no different from anyone else, and that officers indeed can be wrong and make mistakes.

Greer argues that State v. Logan, 535 N.W.2d 320 (Minn.1995), supports his contention that his right to an impartial jury was violated. The issue in Logan was whether the trial court erred by not excusing for cause a juror who had expressed a pro-police bias during voir dire. Id. at 322-23. Here, there has been no such showing. Unlike the defendant in Logan, Greer did not move to excuse Buckley or Gilbertson for cause. Moreover, the record shows that neither Buckley nor Gil-bertson harbored a bias in favor of police officers. Again, Buckley stated that he would “absolutely” treat the testimony of a police officer the same as that of any other witness. And Gilbertson stated that he “would listen to [a police officer] like any other person,” and that officers are capable of being wrong and making mistakes.

Greer argues that the trial court’s rulings prevented him from discovering the basis for any possible challenge for cause. The record does not support this argument. Instead, it demonstrates that Greer’s counsel had the opportunity to and, in fact, did inquire extensively as to the state of mind of each of the six prospective jurors on the issue of whether they would find police officers more credible than other witnesses. Further, Greer’s counsel was able to ask a number of questions that explored the prospective jurors’ beliefs about police officers’ truthfulness and possible bias. Based on our review of the record, we are satisfied that Greer’s ability to conduct an adequate voir dire of these prospective jurors was not infringed and that the trial court did not frustrate the purposes of voir dire by preventing Greer from discovering bases for challenge or inhibiting him from making an informed exercise of peremptory challenges. Thus, we conclude that the trial court did not abuse its discretion during the voir dire of the six prospective jurors.

II.

We next address whether the trial court deprived Greer of due process of law and the right to confront the witnesses against him when it precluded Greer from impeaching one of the state’s witnesses, Deanna Strom, with evidence of her 1997 conviction for providing false information to the police in violation of Minn.Stat. § 609.506 (2000).

The right of an accused to confront the witnesses against him is guaranteed by the United States and Minnesota Constitutions. U.S. Const, amends. VI, XIV; Minn. Const, art. 1, § 6; Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The essence of confrontation is the opportunity to cross-examine opposing witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (quoting 5 John Henry Wigmore, Evidence § 1395 (3d ed.1940)); State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn.1995). At the same time, trial courts have broad discretion to control the scope of cross-examination. Davis, 415 U.S. at 316, 94 S.Ct. 1105; Lanz-Terry, 535 N.W.2d at 640-41.

To establish a violation of the Confrontation Clause, a defendant must show “that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Lanz-Terry, 535 N.W.2d at 640 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis, 415 U.S. at 318, 94 S.Ct. 1105; State v. Pride, 528 N.W.2d 862, 866 (Minn.1995) (plurality opinion)). “Bias,” this court has explained, “is a catchall term describing attitudes, feelings, or emotions of a witness that might affect * * * testimony, leading [the witness] to be more or less favorable to the position of a party for reasons other than the merits.” Id. (quoting 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 307, at 389 (2d ed.1994)). Thus, not everything a witness testifies to tends to show bias, and evidence that is only marginally useful for that purpose may be excluded. Id.

As the United States Supreme Court has explained,

the cross-examiner has traditionally been allowed to impeach, ie., discredit, the witness. One way of discrediting .the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.

Davis, 415 U.S. at 316, 94 S.Ct. 1105; see Lanz-Terry, 535 N.W.2d at 640.

We conclude that, while evidence of Strom’s conviction for providing false information to the police might call into question her general credibility as a witness, it is not the kind of evidence that is likely to reveal the existence of any bias, prejudice, or ulterior motive for testifying against Greer in this particular case. Moreover, as discussed below, the trial court permitted Greer’s counsel to cross-examine Strom directly on the subject of bias. Therefore, on the facts presented here, the trial court’s exclusion of evidence of Strom’s conviction did not rise to the level of a constitutional violation.

The trial court’s ruling, however, was a violation of Rule 609(a)(2) of the rules of evidence. Under that rule, evidence of a witness’s conviction is admissible for impeachment purposes if the crime “involved dishonesty or false statement, regardless of the punishment.” Minn. R. Evid. 609(a)(2). Here, there is no question that the crime underlying Strom’s prior conviction involved dishonesty or false statement.

In State v. Sims, 526 N.W.2d 201 (Minn.1994), we clarified that Rule 609(a)(2) does not provide trial courts with discretion to exclude evidence of a prior conviction on the basis that its prejudicial effect outweighs its probative value. Sims, 526 N.W.2d at 201; see also Green v. Bock Laundry Mach. Co., 490 U.S. 504, 525-26, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). We see no other basis on which to exclude the evidence. Thus, the trial court violated Rule 609(a)(2) when it excluded evidence of Strom’s prior conviction.

Erroneous exclusion of defense evidence is subject to harmless error analysis. State v. Post, 512 N.W.2d 99, 102 (Minn.1994). Thus, we must be satisfied beyond a reasonable doubt that an average jury (i.e., a reasonable jury) would have reached the same verdict “if the evidence had been admitted and the damaging potential of the evidence fully realized.” Id.

We conclude that the trial court’s error in excluding the evidence of Strom’s conviction for providing false information to the police was harmless beyond a reasonable doubt. The essence of Strom’s trial testimony was that A. Jones told her that he had information related to Brown’s death within a week of the killing. Within days of hearing this, Strom informed the police that A. Jones had knowledge regarding Brown’s murder. The police then contacted A. Jones as part of their investigation. Strom’s testimony was in part corroborated by that of Paula Morrison, who testified that A. Jones told her he had witnessed something within a week of Brown’s death.

Further, although the jury was not informed of Strom’s conviction itself, it did learn of the facts underlying the conviction. During cross-examination, Greer’s counsel elicited the fact that Strom had supplied the police with a false name and date of birth. The following exchange then took place:

Q: And that was a lie when you did that?
A: That was called false information, yes.

In addition, Strom was cross-examined directly on the issue of bias. She admitted to receiving payments from the police in connection with her testimony in Greer’s case and other cases, and discussed the circumstances surrounding the prosecuting attorney’s involvement in the dismissal of a loitering charge against her.

Thus, Strom’s cross-examination revealed the facts underlying her prior conviction, as well as information suggesting an ulterior motive for her testimony. That cross-examination, along with the fact that Strom’s testimony was merely corroborative of A. Jones’ testimony and not based on any personal knowledge of Brown’s murder, and the fact that her testimony was in part itself corroborated by Morrison, make it clear that, had the excluded evidence been fully realized, the outcome of Greer’s trial could not have been different.

III.

The third issue Greer raises is whether the trial court’s limitations on his direct testimony violated his constitutional right to present a meaningful defense. Both the United States and Minnesota Constitutions guarantee criminal defendants the right to present a meaningful defense. U.S. Const, amends. VI, XIV; Minn. Const, art. I, § 7; Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); State v. Greenleaf, 591 N.W.2d 488, 504 (Minn.1999). That right, however, is not unlimited. State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000). Evidence “that is ‘repetitive * * *, only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues’ ” may be excluded. Crane, 476 U.S. at 689-90, 106 S.Ct. 2142. Our review of this evidentiary issue is for an abuse of discretion, State v. Henderson, 620 N.W.2d 688, 698 (Minn.2001), and any error is subject to harmless error analysis, Crane, 476 U.S. at 691, 106 S.Ct. 2142, Post, 512 N.W.2d at 102.

Greer claims that he was denied the opportunity to testify about the totality of the circumstances surrounding his pretrial statements to the police. He contends that those circumstances bear on the credibility of those statements. In Crane, the United States Supreme Court explained that,

the physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence. * * * And, as with any other part of the prosecutor’s case, a confession may be shown to be * * * unworthy of belief. Indeed, stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?

476 U.S. at 689, 106 S.Ct. 2142 (citation omitted).

Here, Greer’s counsel wanted to question him about “the amount of force used by police during his arrest; his understanding of what was happening to his friends at his home during the arrest; his prior experiences with Detroit police; the conditions of his incarceration; and what he understood about the focus of the investigation.” By this evidence, Greer hoped to show his state of mind at the time of his statements. The trial court ruled that his state of mind was not relevant, but that Greer could testify about what he saw and perceived at the time he was arrested.

Greer was able to present some evidence regarding the circumstances surrounding his pretrial statements and his state of mind at the time. He testified, for instance, that at the time of his arrest “the police had their guns drawn,” that he saw them “grab [his girlfriend] from her truck,” and that an officer “put his feet in [his] back” and handcuffed him while he was lying on the ground. He also described to the jury the condition of his Detroit jail cell and his inability to fall asleep the night before his interviews with two Minneapolis police officers.

In addition, he testified on the issue of his state of mind during the interviews and explained his inotivation for making the statements. .He told the jury that he placed himself at the scene of the crime during the second interview in Detroit “[t]o kind of make [himself] into an eyewitness so [he] could get out of jail.” Greer also described his state of mind during the September 25, 1998, interview in Minneapolis, explaining:

I was at first, I was deciding should I tell them the truth or should I tell them the story just so I can get out of here. * * * I’m sitting there thinking and it comes to mind, well, I know exactly what they want. So I tell them what they want so maybe they will let me out which they didn’t.

At the same time, Greer was not permitted to testify that shortly after his arrest he heard a police report indicating that there were shots fired at the building where his friends lived. The trial court also excluded Greer’s testimony on the subject of his past experiences with the Detroit police, which included a friend being shot at by a police officer.

Based on our careful review of the record, we conclude that Greer was not deprived of his constitutional right to present a meaningful defense. In fact, Greer was able to directly attack the credibility of his pretrial statements by describing for the jury why he admitted to being at the scene. See id. The portions of Greer’s testimony excluded by the trial court were, by contrast, only marginally relevant to that issue. Although other trial courts might have chosen to admit the excluded testimony, we cannot say that the trial court here abused its broad discretion in not doing so.

IV.

The final issue presented is whether Greer is entitled to a Schwartz hearing under Minn. R.Crim. P. 26.03, subd. 19(6), to uncover the nature and effect of ex parte contacts the trial court is alleged to have had with the jury.

At Greer’s sentencing hearing and in affidavits supporting his post-trial motions, Greer’s counsel asserted that the trial court judge was seen “repeatedly” entering the jury room “during the trial.” The affidavits also make reference to a statement made by the trial court judge during voir dire that it was his practice to enter the jury room to advise jurors regarding scheduling matters.

In a post-trial motion, Greer requested that the trial court judge recuse from deciding whether to grant' a hearing on the issue of his ex parte contacts with the jury. The motion sought a hearing on this matter before the chief judge of the district. The same day, Greer filed a motion for a new trial with the chief judge. This motion requested that a Schwartz hearing be conducted by the chief judge to determine the nature and extent of the ex parte contacts between the trial judge and the jury. The chief judge denied Greer’s motion and ordered that the “Motion for New Trial shall be heard and determined by the [trial court judge] unless and until he re-cuses himself or is otherwise removed for cause from presiding in this case.”

Greer then brought a second motion before the chief judge, this time seeking to have the trial court judge removed. In support of this motion, Greer argued that the trial court judge possessed personal knowledge of disputed evidentiary facts and that his impartiality might reasonably be questioned. The motion was denied by the chief judge. That same day, the trial court judge denied all of Greer’s remaining post-trial motions.

The purpose of a Schwartz hearing is to determine whether a jury verdict is the product of misconduct. Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn.1977). If a defendant learns, either during deliberations or after the verdict is reached, that a court official has had ex parte contacts with the jury, the defendant should move for a Schwartz hearing pursuant to Minn. R.Crim. P. 26.03, subd. 19(6). See State v. Erickson, 610 N.W.2d 335, 338-39 (Minn.2000).

If, on the other hand, a defendant becomes aware of such exposure during the trial proceeding itself, then the proper course of action is to bring the matter to the attention of the trial court at once in the form of a motion for a hearing under Minn. R.Crim. P. 26.03, subd. 9. See State v. Cox, 322 N.W.2d 555, 558 (Minn.1982). Rule 26.03, subd. 9, provides:

If it is determined that material disseminated outside the trial proceedings raises serious questions of possible prejudice, the court may on its initiative and shall on motion of either party question each juror, out of the presence of the others, about the juror’s exposure to that material. The examination shall take place in the presence of counsel, and a verbatim record of the examination shall be kept.

Id.

In this case, there is no dispute that Greer’s counsel was aware of the trial court judge’s ex parte contacts with the jury at the time they were occurring. Yet counsel made no objection and no record was made. As a result, the opportunity for inquiry pursuant to Rule 26.03, subd. 9, was lost.

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

Remanded for further proceedings in accordance with this opinion.

STRINGER, J., took no part in the consideration or decision of this case.

      . The juror in Logan stated that he would favor the testimony of an officer over that of a lay witness, that he did not think officers lie under oath, and that it would be "virtually impossible” for him to conclude that an officer testified falsely. 535 N.W.2d at 322.

      . The trial court's reason for excluding the prior conviction was that Greer failed to give the state notice. The record indicates that defense counsel informed the trial court of its intention to impeach Strom with evidence of a prior conviction at a May 4, 1999, pretrial hearing one day after defense counsel became aware of the conviction. The trial court concluded the pretrial hearing without considering the matter or making a ruling at that time. The trial commenced immediately following the pretrial hearing and Strom testified that same day.

      . We again caution trial courts of the danger of engaging in ex parte contacts of any kind with the jury during trial proceedings. While we have distinguished communications relating to aspects of a pending case from nonsub-stantive contacts and mere pleasantries, State v. Kelley, 517 N.W.2d 905, 908 (Minn.1994) (noting that a judge should not communicate with jurors outside the presence of the parties "on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like)”), see also Cox, 322 N.W.2d at 558 (holding that a rebuttable presumption of prejudice attaches when a court official has ex parte contacts with the jury on the merits of a criminal case), we note that even innocuous contacts, if made outside the presence of the parties, have the potential to cast suspicion on the fairness and integrity of the trial process.


source: Caselaw Access Project

author: HANSON, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Karen Joy DALOS, Appellant.
    No. C6-01-261.
    Court of Appeals of Minnesota.
    Nov. 6, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Michael D. Fritz, Assistant Becker County Attorney, Detroit Lakes, MN, (for respondent).
    Richard E. E dinger, Aaland Law Office, Fargo, ND, (for appellant).
    Considered and decided by HANSON, Presiding Judge, RANDALL, Judge, and STONEBURNER, Judge.
   OPINION

HANSON, Judge.

On appeal from a DWI conviction, appellant contests the district court’s denial of her motion to suppress evidence. Appellant argues that the district court erred in ruling that the trooper had a reasonable articulable suspicion to stop appellant based on the time of day and her driving behavior, where appellant was driving below the speed limit and was weaving within her own lane. We affirm.

FACTS

Early one morning a highway trooper noticed a vehicle weaving within its lane. It was shortly after 2:00 a.m., and the vehicle was traveling at 45 miles per hour in a 55 mile per hour speed zone. The trooper stopped the vehicle because he suspected the driver was intoxicated. The trooper issued a citation to the driver, appellant Karen Joy Dalos, for DWI.

Dalos filed a motion to suppress all evidence obtained against her after the stop, arguing that the stop was illegal. At the suppression hearing the trooper testified as follows:

I stopped [Dalos] based on my observations number one, the vehicle’s speed was well below the posted speed limit and number two, the [vehicle] was weaving noticeably within the traffic lane * * *. Based on my training and experience, these two things are very good indicators, particularly given the time of day, of a driver who may be under the influence of alcohol or something else.

The district court denied Dalos’ motion to suppress, and ruled that the trooper had a reasonable articulable suspicion to stop Dalos based on her driving behavior, the time of day, and the trooper’s experience with alcohol-impaired drivers.

Dalos filed a Lothenbach stipulation, preserving her right to appeal the district court’s denial of her motion to suppress. The district court tried and convicted Da-los based on the stipulated facts, and this appeal followed.

ISSUE

Did the district court err by denying Dalos’ motion to suppress evidence based on its finding that the trooper had a reasonable articulable suspicion that Dalos was violating the law when he stopped Dalos?

ANALYSIS

When an appellate court reviews a district court’s order on a motion to suppress evidence, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

The factual basis required to support a traffic stop for a routine traffic check is minimal, but the stop must not be the product of “mere whim, caprice, or idle curiosity.” State v. Johnson, 257 N.W.2d 308, 309 (Minn.1977). Instead, it must be based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant [the] intrusion.” State v. Pike, 551 N.W.2d 919, 921-22 (Minn.1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). The officer’s assessment is based on all the circumstances and the officer “draws inferences and makes deductions * * * that might well elude an untrained person.” Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn.1987) (citation omitted). These circumstances include the officer’s general knowledge and experience, the officer’s personal observations, the nature of the offense suspected, the time, the location, and anything else that is relevant. Id.

Dalos argues that neither her vehicle’s reduced speed nor her vehicle’s swerving within its own lane was sufficient to provide the highway trooper with a reasonable articulable suspicion to justify the traffic stop. Because we conclude that weaving within one’s own lane continuously is enough, by itself, to provide a reasonable articulable suspicion, we affirm.

Dalos argues that weaving within one’s own lane of traffic does not create a sufficient basis to justify a traffic stop, relying on this court’s decision in State v. Brechler, 412 N.W.2d 367 (Minn.App.1987). In Brechler, the officer observed a vehicle swerve once within its own lane. Id. at 369. This court held that a single swerve was insufficient to establish a reasonable articulable suspicion. Id. Dalos suggests that “swerving” is more violent than “weaving,” and if “swerving” does not form a sufficient basis to justify a stop, “weaving” likewise cannot.

However, this court’s focus in Brechler was not on the level of violence the officer observed in the vehicle’s movement; it was instead on the fact that the officer observed only one such movement. Here, the trooper observed Dalos’ vehicle weave continuously for a distance of approximately .5 miles. We hold that continuous weaving within one’s own lane is sufficient by itself to create a reasonable articulable suspicion of criminal activity to support a traffic stop.

DECISION

Because the highway trooper observed Dalos’ vehicle weaving continuously, the trooper had a reasonable articulable suspicion justifying a traffic stop. The district court did not err when it denied Dalos’ motion to suppress the evidence obtained as a result of that stop.

Affirmed.


author: STONEBURNER, Judge.

text:
    Daniel Mark SHERN, Petitioner-Appellant, v. STATE of Minnesota, Respondent.
    No. C7-01-494.
    Court of Appeals of Minnesota.
    Nov. 6, 2001.

      Charles Chinquist, Fargo, ND, for appellant.
    Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, and David Olin, Pennington County Attorney, Alan G. Rogalla, Assistant County Attorney, Thief River Falls, for respondent.
    Considered and decided by HANSON, Presiding Judge, RANDALL, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant petitioned for post-conviction relief, arguing that a five-year period of conditional release that the district court imposed seven months after his sentence was executed was void because the correction was made without prior notice and in violation of Minn. R.Crim. P. 27.03, subd. 2, which requires that a defendant be present at the time of sentencing. After briefs were submitted in this appeal, the supreme court held that Minn. R.Crim. P. 27.03, subd. 2 deals only with the original sentencing hearing, not with modifications to a sentence, and that whether a defendant should have a hearing on the imposition of conditional release to correct a sentence is left to the discretion of the sentencing court. State v. Calmes, 632 N.W.2d 641, 650 (Minn.2001).

We hold that the district court should have given notice of its intent to correct appellant’s sentence so that appellant could have requested a hearing, but because appellant has not presented any facts or claims that would have made denial of a hearing an abuse of discretion, he was not prejudiced by lack of notice and the district court did not err by denying his petition for post-conviction relief.

FACTS

Appellant Daniel Mark Shern pleaded guilty to the charge of criminal sexual conduct in the second degree. Minn.Stat. § 609.343, subds. 1(a), 2 (2000). Pursuant to a plea agreement, the district court stayed imposition of sentence and placed appellant on 25 years probation with conditions. Appellant violated the conditions of probation, on several occasions. At his fourth revocation hearing, appellant’s sentence was executed but the district court failed to include the nonwaivable, mandatory five-year period of conditional release required when a court sentences a person to prison for violation of Minn.Stat. § 609.343, subd. 5 (2000).

Approximately seven months after the sentence was executed, the district court, without notice to appellant or hearing, amended appellant’s sentence to include the five-year conditional-release period. Appellant contends that he first learned of the correction'when he was required to sign a supervised-release agreement upon his release from confinement. Over two- and-a-half years later, appellant petitioned for postconviction relief, arguing that the order amending his sentence to add the period of conditional release was void because it was entered without prior notice, outside the presence of appellant and without giving appellant the opportunity to be heard. The district court denied the petition and this appeal followed.

ISSUE

Was defendant entitled to notice and an opportunity to be present when his sentence was corrected to add a nonwaivable, mandatory period of conditional release?

ANALYSIS

In general, a postconviction court’s decision will not be disturbed absent an abuse of discretion. State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993). “[T]he scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id.

The supreme court recently held that the determination of whether a defendant should have a hearing on the imposition of conditional release to correct a sentence is left to the discretion of the sentencing court. Calmes, 632 N.W.2d at 650. Appellant concedes that the supreme court has specifically rejected his argument that Minn. R.Crim. P. 27.03, subd. 2 requires that a defendant must be present before such a correction is valid. In Calmes, the supreme court notes that a hearing would be appropriate if there are questions about the validity of a plea agreement in light of such a correction, questions about the length of the conditional-release term, or if a convicted defendant claims to have developed a reasonable crystallized expectation of finality in a sentence that did not include a mandatory and nonwaivable condition. Calmes, 632 N.W.2d at 650.

Appellant concedes that the five-year period of conditional release was a mandatory and nonwaivable part of his sentence. He does not argue that the correction affected the validity of his plea agreement, or that he has the necessary “crystallized expectation of finality” to challenge the correction. Appellant has not alleged any factors that make denial of a hearing prior to correction of his sentence an abuse of the district court’s discretion.

The postconviction court did not address appellant’s claim that he was entitled to prior notice of the sentencing court’s intent to correct the sentence. The supreme court did not address the issue of notice in Calmes or its predecessors and did not set out the procedure by which a defendant can notify the sentencing court of factors which would make a hearing appropriate prior to correcting a sentence to add an omitted, nonwaivable, mandatory period of conditional release. The county attorney, with admirable candor, conceded at oral argument that some type of notice to the convicted defendant should be required to ensure due process.

We hold that a convicted defendant is entitled to notice and an opportunity to request a hearing and notify the sentencing court of any factors that would make a hearing appropriate prior to correction of a sentence to add a nonwaivable, mandatory period of conditional release. Whether or not to grant the hearing rests within the discretion of the sentencing court. Id. Because appellant has not presented any factors that make denial of a hearing an abuse of discretion, appellant, in this case, was not prejudiced by the lack of notice and the district court did not abuse its discretion in denying his petition for postconviction relief.

DECISION

A convicted defendant is entitled to notice prior to correction of a sentence for a criminal sexual conduct conviction to add an omitted, nonwaivable, mandatory period of conditional release and an opportunity to present factors to the sentencing court that would make a hearing appropriate prior to the correction. Whether to grant or deny the requested hearing rests in the sentencing court’s discretion. Because appellant was not prejudiced by lack of notice in this case, the district court did not abuse its discretion in denying his petition for postconviction relief.

Affirmed.


text:
    In re the Marriage of Lori K. WILLIAMS, n/k/a Lori K. Fischer, Petitioner, Respondent, v. Donald J. WILLIAMS, Appellant.
    No. C5-01-705.
    Court of Appeals of Minnesota.
    Nov. 6, 2001.

      Patricia A. O’Gorman, Patricia A. O’Gor-man, P.A., Cottage Grove, MN, (for respondent).
    Daniel M. Fiskum, Olson, Usset & Wein-garden, P.L.L.P., Minneapolis, MN, (for appellant).
    Considered and decided by HANSON, Presiding Judge, RANDALL, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HANSON, Judge.

In this child-support modification proceeding, appellant husband argues that the district court improperly modified child support to include 30% of all future sub-chapter S corporation (SSC) distributions. Respondent wife argues the district court improperly denied her request to find husband in arrears for failure to pay 30% of past SSC distributions and improperly declined to convert husband’s child-support obligation from a percentage of income to a specific dollar amount. We reverse and remand.

FACTS

The marriage of appellant-husband Donald J. Williams and respondent-wife Lori K. Williams, n/k/a Lori K. Fischer, was dissolved on February 11, 1993. Each party was represented by counsel, and the decree was based on their Marital Termination Agreement. The district court ordered husband to pay child support of “thirty percent (30%) of [his] net weekly income (as defined in Minn.Stat. § 518.551, Subd. 5).” The decree provided that if husband failed or refused to meet his child-support obligations, wife could seek “automatic wage withholding” of a specified dollar amount, without notice or hearing.

After the dissolution, husband continued to work for the same employer but also became a ten-percent shareholder in his employer, which had incorporated and elected subchapter S status for tax purposes. In 1999, husband received $8,070 as a SSC distribution, but he did not notify wife or pay 30% of that distribution to her as child support. Husband also received income-tax refunds for several years, but did not pay 30% of the refunds to wife.

Wife moved to amend the decree to (1) specify that the 30% child-support obligation applied to SSC distributions; (2) determine that husband was in arrears on child support because of his failure to pay 30% of the 1999 SSC distribution and of the tax refunds he had received, and because husband had over-withheld from child support for wife’s VISA credit-card debt; and (3) modify child support by converting from a percentage to a specific dollar amount. Husband did not oppose the modification of child support to a specific dollar amount, but disagreed as to the appropriate amount.

The district court found that husband was not in arrears and rejected wife’s request to modify child support to a specific dollar amount, determining that wife had failed to establish a substantial change in circumstances. Specifically, the court concluded that the one-time SSC distribution was not a substantial change in circumstances; that there was no allegation that the tax refunds were the result of over-withholding taxes to avoid child support; and that the amounts over-withheld for the VISA debt were not child support. Implicit in the court’s ruling was the conclusion that the SSC distribution was not part of husband’s “net weekly income,” and thus was not subject to the 30% obligation under the terms of the unmodified decree.

Wife moved for amended findings or a new trial. The district court granted the motion in part, modifying child support to require husband to pay 30% of the net amount received on all future SSC distributions from his employer. Husband appealed, arguing that the district court erred in modifying child support without a finding that there had been a substantial change in circumstances. Wife filed a notice of review, arguing that the district court erred in not finding husband in arrears and in not modifying child support from a percentage to a specified dollar amount.

ISSUES

1. Did the district court err by modifying child support to require husband to pay 30% of his future SSC distributions?

2. Did the district court err by denying wife’s motion for a finding' of arrears and for a modification of child support from a percentage to a specific dollar amount?

ANALYSIS

The district court sought a middle ground by holding that husband was not in arrears for the past SSC distribution but would be obliged to pay child support on any future distributions. But in doing so, the district court necessarily applied inconsistent definitions of “income” under Minn. Stat. § 518.551, subd. 5 (2000), concluding that the SSC distribution was not “income” for purposes of arrears, but was “income” for purposes of future child-support obligations. Because the question of whether SSC distributions should be treated as income is one of fact, we must remand the matter to the district court to determine that question and then to apply that determination consistently, both for purposes of arrears and of future child support. If husband is in arrears, the district court must implement wage withholding under the child-support default provision in the decree, which will require altering child support from a percentage to a specific dollar amount.

Wife’s second ground for claiming that husband is in arrears involves his failure to pay child support from income-tax refunds. Because the district court properly determined that there was no allegation (and thus no evidence) that husband had over-withheld for the purpose of avoiding his child-support obligation, we affirm as to that issue.

Finally, wife’s alternative ground for modification of child support from a percentage to a specific dollar amount was based on Minn.Stat. § 518.64, subd. 2(b)(4) (2000), which provides a rebuttable presumption that there has been a substantial change in circumstances where child support is in the form of a percentage. Because the district court did not discuss this presumption, we must remand this issue to the district court to consider the effect of the statutory presumption.

I

Husband argues that the district court erred by using an incorrect definition of “net weekly income” in modifying child support to require that he pay 30% of all future SSC distributions. Husband notes that the decree specifically awarded each party the sole right to investments in their name and argues that distributions from those investments, including the SSC distributions from investment in his employer’s stock, are not income for child support purposes. Wife argues that the district court erred by using a different definition to conclude that past SSC distribution was not considered “net weekly income.” She argues that the past SSC distribution was income and, thus husband should be found in arrears.

The district court’s decision determining husband’s income for purposes of child support should be affirmed so long as it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn.App.1987). For purposes of determining child-support obligations, income is generally defined as

any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers’ compensation, unemployment benefits, annuity, military and naval retirement, pension and disability payments.

Minn.Stat. § 518.54, subd. 6 (2000). This dissolution decree, however, provides that husband’s “net weekly income” is to be defined as in Minn.Stat. § 518.551, subd. 5, which authorizes the district court to

also order the obligor to pay child support in the form of a percentage share of the obligor’s net bonuses, commissions, or other forms of compensation * * *.

Minn.Stat. § 518.551, subd. 5(a). The district court concluded that future SSC distributions would be considered “other compensation” for purposes of determining future child support, but did not treat the past SSC distribution as “other compensation” for purposes of determining arrears.

There is no definitive treatment of SSC distributions for child-support purposes in Minnesota caselaw. While recognizing the potential for the employee-shareholder to manipulate SSC income to avoid or reduce child-support obligations, our cases have essentially treated the question as one of fact. Compare Roth v. Roth, 406 N.W.2d 77, 79 (Minn.App.1987) (finding error where the district court failed to include profits from SSC in which obligor was sole officer and shareholder), with Marx v. Marx, 409 N.W.2d 526, 529 (Minn.App.1987) (affirming district court’s decision to exclude losses from three SSCs in which obligor was involved).

Because the district court made contradictory conclusions regarding the past and future SSC distributions, its decision had no reasonable basis in fact and is reversed and remanded for reconsideration. Ultimately, the district court must determine whether the SSC distribution should be included in husband’s “net weekly income,” as that term is used in this decree. This requires a determination whether such distributions should be considered other compensation; that is, whether husband’s SSC distributions are more akin to added compensation for his contributions of labor or to an investment return on his contribution of capital.

If the district court determines that the SSC distributions are part of husband’s “other compensation,” it must apply that determination consistently. It must find husband in arrears and consider any future SSC distributions as income in calculating his child-support obligation. The child-support default provisions of the 1993 decree would then require that the district court provide for automatic withholding, which in turn would require it to also modify child support from a percentage to a specific dollar amount. If, however, the district court determines that the SSC distributions are not part of husband’s “other compensation,” it must apply that determination consistently. It must find that husband is not in arrears and exclude future SSC distributions from income in calculating husband’s future child support obligations.

II

Wife also argues that husband is in arrears for failure to pay 30% of his income tax refunds. But wife does not challenge the district court’s conclusion that there was no allegation that husband was over-withholding income taxes for the purpose of decreasing his net weekly income and thus reducing his support obligation. Indeed, the record does not provide a factual basis for determining what caused the withheld amounts to be greater than the ultimate tax liability. Under these circumstances, the district court’s conclusions will be affirmed.

III

Even if the district court finds that the child-support default provision in the decree does not apply because the SSC distributions are other compensation, the district court must still consider wife’s alternate grounds to modify child support under Minn.Stat. § 518.64, subd. 2(b)(4).

Ordinarily, a district court may only modify child support if the moving party shows a substantial change in circumstances rendering the existing support award unreasonable and unfair. Id., subd. 2. A request to change a child-support obligation from a percentage to a specific dollar amount is a modification that requires the same showing. Allan v. Allan, 509 N.W.2d 593, 596 (Minn.App.1993). However, since 1997 there has been a statutory presumption that

there has been a substantial change in circumstances ⅜ * * and the terms of a current support order shall be rebutt-ably presumed to be unreasonable and unfair if:
(4) the existing support obligation is in the form of a statement of percentage and not a specific dollar amount.

Minn.Stat. § 518.64, subd. 2(b)(4). This provision reflects the statutory preference that child-support be in the form of a specific dollar amount. Minn.Stat. § 518.551, subd. 5(a) (“In other cases, the court shall determine and order child support in a specific dollar amount * * *.”).

This rebuttable presumption means that guideline child support is in the form of a specific dollar amount and any other form is a deviation from the guidelines. Such a deviation requires the district court to

make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and [to] specifically address the criteria in paragraph (c) and how the deviation serves the best interest of the child.

Minn.Stat. § 518.551, subd. 5(i).

Wife’s motion to modify child support triggered this rebuttable presumption because the original decree established the child-support obligation as a percentage. To rebut the presumption, the party seeking to maintain a percentage obligation must demonstrate that a percentage form serves the best interest of the children. Minn.Stat. § 518.551, subd. 5(i).

In its order entered April 30, 2001, the district court concluded that wife

failed to establish that a change in circumstances has occurred which makes the current order unreasonable and unfair. ⅜ ⅜ * The 1999 sub s distribution to [husband] is thus far a one-time disbursement, which in and of itself does not rise to the level of a substantial change in circumstances. Future distributions will be considered other compensation for calculating child support.

The order does not reflect that the district court considered the statutory presumption. Further, the record does not demonstrate that husband rebutted the presumption. In fact, both parties favored a specific dollar amount for child support, though they disagreed as to the amount. Accordingly, we remand this issue to the district court to reconsider the motion to modify child support, giving due regard to the statutory presumption favoring such modification.

DECISION

The district court’s conclusions on whether husband’s SSC distributions are part of his other compensation for purposes of child support were inconsistent and thus had no basis in fact. Also, the district court did not consider the statutory presumption of Minn.Stat. § 518.64, subd. 2(b)(4), when denying wife’s motion to modify husband’s child-support obligation. These decisions are reversed and remanded to the district court for reconsideration. The district court’s conclusion that husband’s child-support obligation did not apply to his income tax refunds is affirmed.

Affirmed in part, reversed in part and remanded.


author: MARING, Justice.

text:
    2001 ND 178
    Irene M. DVORAK, n/k/a Irene M. Howard, Plaintiff and Appellee, v. Larry H. DVORAK, Defendant and Appellant.
    No. 20000343.
    Supreme Court of North Dakota.
    Nov. 2, 2001.
    Rehearing Denied Dec. 20, 2001.

      Larry H. Dvorak, pro se, Dickinson, ND, defendant and appellant.
    Irene M. Howard (no appearance), pro se, Minot, ND, plaintiff and appellee.
   MARING, Justice.

[¶ 1] Larry H. Dvorak appeals from an order denying his “Motion for Reconsideration and Relief From and Vacation of Judgment.” We affirm.

I

[¶ 2] On April 24, 1997, Irene Howard, formerly known as Irene Dvorak, was granted a temporary protection order against her ex-husband, Larry Dvorak. The order was filed on April 25, 1997, and a hearing on the matter was held on May 2, 1997, before the Honorable Maurice R. Hunke. Irene Howard appeared at the hearing with her attorney, Joseph H. Ku-bik. Larry Dvorak appeared at the hearing with his attorney, Robert A. Keogh. Subsequent to this hearing, Judge Hunke issued a protection order against Larry Dvorak to be in effect for a period of two years from the date of May 2, 1997. Larry Dvorak was served with the order by mail on May 2, 1997, and the order was filed on May 5,1997.

[¶ 3] On April 13, 1999, Irene Howard filed a petition to extend the protection order for the life of Larry Dvorak. On May 3, 1999, Larry Dvorak was personally served with notice of a hearing on the petition to extend the protection order. The hearing was held on May 11, 1999, with the Honorable Allan L. Schmalenber-ger presiding. Irene Howard appeared with her attorney, Joseph H. Kubik. Larry Dvorak did not appear in person or otherwise. On May 12, 1999, Judge Schmalen-berger granted a protection order against Larry Dvorak for the duration of his life, or until further order of the court. The order was filed on May 13,1999.

[¶ 4] On February 10, 2000, Larry Dvorak filed a motion pursuant to N.D.R.Civ.P. 60(b) with the Dunn County District Court to vacate “a Domestic Violence Protection Order, Case No. 97R-05, dated May 12,1999 and on or about May 4, 1997.” Also on February 10, 2000, Dvorak filed a motion to change venue from the Southwest Judicial District to Ward County, North Dakota. On April 18, 2000, Judge Schmalenberger filed an order that changed venue from “Dunn County District Court to Ward County District Court.” On April 19, 2000, Dvorak’s motion to vacate was assigned to the Honorable Gary A. Holum of the Northwest Judicial District. Through a letter dated April 20, 2000, Judge Holum denied Dvorak’s motion stating, “[t]he defendant cites no reasons nor facts to indicate why this judgment should be set aside.”

[¶ 5] On April 24, 2000, Dvorak filed a motion for “Relief From and Vacation of Judgement”. and a “Brief in Support of Motion” with the Ward County District Court. Additionally, in a letter dated April 22, 2000, Dvorak requested Judge Holum to grant his motion and explained to him that the brief in support of the motion was not previously filed in Ward County because he had attempted to file it before Judge Schmalenberger granted his request for a change of venue. Judge Holum responded to Dvorak’s request in a letter dated April 26, 2000, in which he wrote, “I will review all documentation and will issue an amended order upon review.”

[¶ 6] In a letter dated June 19, 2000, Judge Holum explained to Dvorak that, if he desired the court to pursue his motion to vacate any further, “you will have to come forward with affidavits from the witnesses that you state will come forward and will testify.” Finding that Dvorak failed to meet his burden of proof, Judge Holum filed an “Order Dismissing Motion Seeking Relief and Vacation of Judgment” on August 25, 2000.

[¶ 7] On September 15, 2000, Dvorak sent a “Motion for Reconsideration and Relief From and Vacation of Judgment,” a “Brief in Support of Motion,” an “Affidavit of Larry Dvorak,” and an audio tape of a telephone conversation Dvorak had with his son, Chris, to the Ward County District Court. These items were filed in Ward County District Court on October 9, 2000. On October 5, 2000, Judge Holum recused himself from the matter. On October 6, 2000, Dvorak’s motion was assigned to the Honorable Gerald Rustad, and an “Order of Re-Assignment” was filed on October 9, 2000. On October 18, 2000, Judge Rustad denied Dvorak’s “Motion for Reconsideration and Relief From and Vacation of Judgment.” An “Order” reflecting this denial was filed with the Ward County District Court on October 19, 2000, and Dvorak filed his notice of appeal from the Order on December 12, 2000.

II

[¶ 8] Dvorak raises eight arguments on appeal. Of these eight arguments, seven represent direct attacks on the protection order issued in 1997. Had Dvorak wished to utilize these arguments to challenge the validity of the 1997 protection order, he should have done so on direct appeal of that order. See State v. Dvorak, 2000 ND 6, ¶ 31, 604 N.W.2d 445 (“Dvorak had notice of the protection order, and his argument represents an impermissible collateral attack on the order. If Dvorak believes the protection order was invalid, his remedy was to have timely appealed that order.”) (citations omitted). Such arguments are not proper grounds for a motion for reconsideration. See Ellingson v. Knudson, 498 N.W.2d 814, 818 (N.D.1993) (holding that the trial court properly declined to consider an argument raised for the first time on a motion for reconsideration that could have been raised in earlier proceedings); see also Steven Baieker-McKee, William M. Jans-sen, and John B. Corr, Federal Civil Rules Handbook 800 (2001) (stating that motions for reconsideration “are not vehicles for relitigating old issues. Courts properly decline to consider new arguments or new evidence on reconsideration where those arguments or evidence were available earlier.”) (footnotes omitted). The only argument raised by Dvorak that has some bearing on his “Motion for Reconsideration and Relief From and Vacation of Judgment” is his argument that the protection orders issued against him should “be vacated due to fraud pursuant to Rule 60(b)(iii), N.D.R.Civ.P.”

[¶ 9] We have stated that motions for reconsideration may be treated like motions to alter or amend judgments under N.D.R.Civ.P. 59(j). See Woodworth v. Chillemi 1999 ND 43, ¶ 7, 590 N.W.2d 446. Additionally, we have also analyzed motions for reconsideration under N.D.R.Civ.P. 60(b) standards. See Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶¶ 8-10, 609 N.W.2d 90; Filler v. Bragg, 1997 ND 24, ¶ 8, 559 N.W.2d 225. Because Dvorak specifically asked the trial court to “ ‘VACATE’ the Domestic Violence Protection Order’s, Case No. 00-R-0171, (Dunn County No. 97R-05) dated on or about May 4⅜ 1997, and another on May 12, 1999,” and because he relies on Rule 60(b)(iii) in his argument to this Court, we will analyze Dvorak’s “Motion for Reconsideration and Relief From and Vacation of Judgment” under Rule 60(b) standards. See Filler, 1997 ND 24, ¶ 8, 559 N.W.2d 225 (“When looking at a pleading or motion, we will consider the motion’s substance rather than its title to determine the proper nature of the pleading.”); see also Baicker-McKee, Janssen, & Corr, supra, at 799-800 (stating that motions for reconsideration may be treated as Rule 59 motions or Rule 60(b) motions).

Ill

[¶ 10] Relief under Rule 60(b)(iii) “is extraordinary relief, to be granted only in exceptional circumstances.” Gajewski v. Bratcher, 240 N.W.2d 871, 889 (N.D.1976). Under Rule 60(b)(iii), the burden is on Dvorak “to establish, by clear and convincing evidence, that the adverse party obtained the judgment through fraud, misrepresentation, or misconduct.” Id. Additionally, Dvorak must also establish that “the conduct complained of must be such as to prevent the losing party from fully and fairly presenting its case.” Diaz v. Methodist Hospital, 46 F.3d 492, 496 (5th Cir.1995) (internal quotations omitted). A trial court’s decision on a motion to vacate a judgment under Rule 60 will not be reversed absent an abuse of discretion. See Follman, 2000 ND 72, ¶ 10, 609 N.W.2d 90. Furthermore, in reviewing the denial of a motion to vacate, the Court does not “determine if the trial court was substantively correct in entering the judgment from which relief is sought, but determined only if the trial court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established.” Crawford v. Crawford, 524 N.W.2d 833, 835 (N.D.1994).

[¶ 11] Dvorak contends that “a tape of a phone conversation Larry had with his son, Chris on July 30, 1997, two months after the protection order was signed,” shows that Irene Howard committed fraud when she stated the children were afraid of Dvorak in her application for the 1997 temporary protection order. “If unequivocal evidence establishes that a party willfully perjured himself, and thereby prevented the opposition from fully and fairly presenting its case,” a court may rely on Rule 60(b) (iii) to grant the innocent party relief. See Diaz, 46 F.3d at 497. At most, the taped phone conversation creates a factual dispute over whether Dvorak’s children were afraid of him as Ms. Howard alleged; however, it does not establish that Ms. Howard intentionally perjured herself. See id. (stating that a post-judgment affidavit that contradicted testimony given in a deposition may have created a factual dispute, but did not establish intentional perjury). Rule 60(b)(iii) “is not intended to correct those outcomes which may be factually incorrect, but rather to protect against a party prevailing by unfair means.” Diaz, 46 F.3d at 497.

[¶ 12] Even if we were to accept Dvorak’s assertion of fraud on the part of Ms. Howard as true, we would only grant Dvorak’s Rule 60(b)(iii) motion if Ms. Howard’s actions prevented Dvorak from fully and fairly presenting his case. See id. Dvorak was represented by counsel at the protection order hearing in 1997 and was in no way prevented from presenting evidence that would contradict Ms. Howard’s allegations at that time. Furthermore, Dvorak was personally served with notice of the hearing on the petition to extend the protection order, but failed to appear at the May 11, 1999, hearing and failed to present any evidence. Accordingly, the trial court did not abuse its discretion in denying Dvorak’s “Motion for Reconsideration and Relief From and Vacation of Judgment.” See Diaz, 46 F.3d at 497 (“When a party is capable of fully and fairly presenting her case notwithstanding ‘fraud, misrepresentation, or other misconduct,’ the trial court does not err when it denies a Rule 60(b)(3) motion.”); Martin v. Chemical Bank, 940 F.Supp. 56, 60 (S.D.N.Y.1996) (“Where allegations of fraud, however, are unsubstantiated and merely an effort to relitigate the case, relief under Rule 60(b) must be denied.”).

IV

[¶ 13] We conclude the trial court did not abuse its discretion in denying Dvorak’s “Motion for Reconsideration and Relief From and Vacation of Judgment,” and therefore, the order is affirmed.

[¶ 14] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.