author: PAUL H. ANDERSON, Justice.

text:
    Alonzo FERGUSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C9-01-1498.
    Supreme Court of Minnesota.
    June 13, 2002.

      Joseph Margulies, Margulies & Rich-man, pic, Minneapolis, MN, Attorneys for Appellant.
    Michael A. Hatch, Attorney General, St. Paul, MN, Amy Klobuehar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, Attorneys for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

In 1996, petitioner Alonzo Ferguson was convicted of first-degree premeditated murder and sentenced to life in prison. We affirmed his conviction on direct appeal. Ferguson later petitioned for post-conviction relief, but the postconviction court denied the petition without an evi-dentiary hearing. Ferguson appealed the postconviction decision and then moved this court to stay that appeal because of the discovery of new information about the possible false testimony of a witness. We granted Ferguson’s motion and Ferguson then filed an amended petition for postcon-viction relief. The postconviction court also denied the amended petition without an evidentiary hearing. Ferguson now appeals both denials of his petitions for post-conviction relief. We affirm in part and reverse in part.

The relevant facts giving rise to Ferguson’s conviction are as follows. In the early morning hours of September 24, 1994, several gunshots were fired through the dining room window of a south Minneapolis home. One of those shots hit Allen Wheatley, Jr., who died later that day. Allen Jr. was from Chicago, but was visiting relatives in Minneapolis that morning together with his father, Allen Wheatley, Sr., and his cousin, Jabar Wheatley. Several members of the Wheatley family lived in Minneapolis, including: Allen Jr.’s uncle, Vincent Wheatley; Allen Jr.’s uncle and aunt, Kenneth and Angela Wheatley; and Allen Jr.’s cousin, Prentice Wheatley.

The relatives gathered at Kenneth and Angela’s house and soon after they arrived, several of the men went for a walk. This group included the older brothers, Allen Sr., Kenneth, and Vincent, as well as the younger cousins, Allen Jr., Jabar, and Prentice. On their way back to Kenneth’s house, the group encountered Alonzo Ferguson, a friend of Prentice. Ferguson met up with Allen Jr., Jabar, and Prentice, and the three older men returned to Kenneth’s house where they went into the basement to continue visiting.

Meanwhile, on the street in front of Kenneth’s house, Ferguson and the cousins had a conversation regarding the color of the shirt worn by Allen Jr. Allen Jr.’s shirt was blue and Ferguson pointed out that some people in the area, like the Rolling 30s Bloods, reacted badly to people wearing blue. Allen Jr. became angry with Ferguson, apparently because he did not appreciate being told what he could or could not wear. Prentice then left. At this point, Allen Jr., Jabar, and Ferguson were outside in front of Kenneth’s house and Allen Jr. and Ferguson were arguing. Prentice came back and prevented a fist fight between Allen Jr. and Ferguson. Ferguson then left. Allen Jr., Jabar, and Prentice began to argue among themselves. Allen Jr. apparently was upset that Prentice had not intervened on his behalf during the conversation with Ferguson.

Hearing the cousins’ argument, Kenneth, Angela, Vincent, and Allen Sr. came to the door of the house and brought the cousins inside, where the argument continued. A few minutes later, Prentice left. Shortly after that, Kenneth and Vincent also left, having decided to drive to a convenience store. They went out to Jabar’s car and when they reached the car, Vincent saw a person whom he identified as Ferguson running beside the house. Vincent and Kenneth followed that person around the house, but, by then the person had disappeared. Vincent and Kenneth then drove off to the convenience store.

Just after Kenneth and Vincent drove off, they heard several gunshots. Because the shots sounded like they did not come from the direction of Kenneth’s house, the brothers continued on to the store. Meanwhile, back at Kenneth’s house, Angela, Allen Sr., Allen Jr., and Jabar were sitting around in the living room and talking. At some point, Allen Jr. got up to answer a phone call in the dining room, hung up, and was walking back toward the living room when several shots were fired through the dining room window. One of the shots hit Allen Jr. in the upper abdomen. No one saw the person or persons who fired the shots because the vertical blinds were closed, and everyone immediately fell to the floor when they heard the gunfire.

Ferguson was arrested two days after the shooting, but he denied any knowledge of the shooting and was released. Almost two years later, Johnny Edwards, a former Bloods gang member and also a distant relation of Ferguson, contacted the police. Edwards informed the police that, on the morning of the murder, Ferguson told Edwards that he was going to shoot Allen Jr. Edwards also told the police that Ferguson later confessed to Edwards that he had shot Allen Jr. With this additional information, Ferguson was re-arrested and charged with Allen Jr.’s murder. Ferguson was subsequently indicted for first-degree premeditated murder in violation of Minn.Stat. § 609.05 (2000), Minn.Stat. § 609.11 (2000), and Minn. Stat § 609.185, subd. 1 (1996). After a jury trial, Ferguson was convicted of first-degree murder and sentenced to life in prison.

Ferguson raised several issues on his direct appeal to this court, but his conviction was affirmed. Ferguson, 581 N.W.2d at 887. Ferguson then raised several issues in his petitions for postconviction relief, which the postconviction court denied without an evidentiary hearing. Because the issues Ferguson raises in his petitions for postconviction relief involve facts related to Edwards, it is important to review additional facts that are specifically related to Edwards.

The majority of the issues Ferguson raised in his petitions involve Edwards’ background, Edwards’ trial testimony, and subsequent factual developments. These developments begin approximately one year after Allen Jr.’s murder when police arrested Edwards for aggravated robbery. While in custody, Edwards contacted the police and told them he had information regarding several crimes, including Allen Jr.’s murder. Edwards then made a deal with prosecutors regarding his aggravated robbery charge in exchange for this information. He subsequently was released from custody.

In the months before he was to testify in Ferguson’s trial, the state gave Edwards various forms of financial assistance, including $1,600 for set-up costs; $40 for expenses when his wife kicked him out of the house; $2,000 for hotel bills; $4,700 for food and other room charges; and miscellaneous cab fare. The state also assisted Edwards in recovering $1,400 that was seized during a prior arrest. The state disclosed to Ferguson the total amount of this financial assistance and this total was known at the time of Ferguson’s trial. Ferguson’s counsel eventually obtained a detailed breakdown of the financial assistance, but it is unclear from the record at what point after the trial Ferguson’s counsel received this detailed breakdown.

Just before Ferguson’s trial was to begin in late 1996, Edwards was once again arrested, this time with several others, on probable cause for possession of a firearm. At the time of this arrest, Edwards allegedly told the police that they would be sorry for arresting him because he was helping them clean up the neighborhood. Because of the potential conflict of interest in the Hennepin County Attorney’s office, Edwards’ case was transferred to Ramsey County. Ultimately, Ramsey County declined to charge Edwards in connection with this arrest. Ferguson claims that Edwards was not charged because of the state’s ongoing efforts to protect Edwards’ credibility as a witness at Ferguson’s trial. After testifying at Ferguson’s trial, Edwards was convicted of felony first-degree assault and was incarcerated out of state.

Edwards’ father, John Turnipseed, visited Edwards in prison on April 29, 2000 and allegedly had a conversation with Edwards in which Edwards admitted that his testimony in Ferguson’s trial was a lie. Turnipseed then contacted Ferguson’s posteonviction counsel with this information. However, Ferguson had already petitioned for posteonviction relief and was appealing the denial of his petition. Because of this new information, Ferguson asked this court to stay his posteonviction appeal so that he could conduct further investigation into Turnipseed’s claims. We granted the stay.

After further investigation, Ferguson’s posteonviction counsel was unable to obtain an affidavit from Edwards, who refused to discuss the matter on advice of counsel. Eventually, Ferguson submitted an amended petition for posteonviction relief, together with a notarized statement from Turnipseed confirming Edwards’ alleged recantation. In his affidavit, Turnip-seed states that he spoke face to face with Edwards on April 29, 2000, during his monthly visit to Edwards in Kansas where Edwards is currently incarcerated. He states that Edwards told him that Edwards “had lied when he testified that Alonzo had confessed to him.” The amended petition was denied without an evidentiary hearing.

Ferguson now appeals from the denial of both petitions for posteonviction relief. He claims that Edwards has recanted his trial testimony and offers as proof Turnip-seed’s notarized statement. The record contains no evidence that Edwards was subpoenaed to testify on this issue or that he has exercised his Fifth Amendment rights. He claims that Edwards’ alleged recantation entitles him to either a new trial or at a minimum an evidentiary hearing.

I.

We review a posteonviction proceeding to determine only whether sufficient evidence exists to support the post-conviction court’s findings. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We will not disturb the posteonviction court’s decision unless the court abused its discretion. Id. A petitioner seeking post-conviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief. Minn.Stat. § 590.04, subd. 3 (2000). See also State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993). A three-prong test, known as the Larrison test, is applied to claims of newly-discovered evidence of falsified testimony. Dukes v. State, 621 N.W.2d 246, 257-58 (Minn.2001); Sutherlin v. State, 574 N.W.2d 428, 433 (Minn.1998). This test provides that in order to grant a new trial: (1) the court must be reasonably well-satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial. Sutherlin, 574 N.W.2d at 433. We will analyze and apply each prong separately below.

1. First Prong: Reasonably Well Satisfied That Trial Testimony Was False

The posteonviction court concluded that it was not well satisfied that Edwards’ trial testimony was false based on the current record. Specifically, the court first assumed that if there were a hearing, Tur-nipseed would testify consistent with his notarized statement. The court then analyzed the substance of Turnipseed’s hypothetical testimony and concluded that Tur-nipseed’s testimony would be hearsay and inadmissible to prove the truth of the assertion that Edwards’ trial testimony was false. The court went on to note that Edwards had already refused to make a statement and that there was no record evidence that, in an evidentiary hearing, Edwards would do anything other than deny that he lied or invoke his right to remain silent. Therefore, the court concluded that, absent a direct and clear statement from Edwards recanting his testimony, an evidentiary hearing would serve no useful purpose.

Ferguson disagrees with the post-conviction court’s characterization of Tur-nipseed’s testimony as inadmissible hearsay. Ferguson argues that Turnipseed’s testimony is admissible as a statement against penal interest. Under the rules of evidence, the statement against penal interest hearsay exception is only available when the hearsay declarant is “unavailable.” Minn. R. Evid. 804(b)(3); see also Minn. R. Evid. 804(a) (identifying five circumstances in which a witness is considered “unavailable”). Here, Edwards is not unavailable within the meaning of the rules of evidence based either on his incarceration or his refusal to give a statement to Ferguson’s attorney on advice of counsel. See Minn. R. Evid. 804(a). Nonetheless, if Edwards were asked to testify whether he committed perjury, he could exercise his Fifth Amendment rights. If he exercised his Fifth Amendment rights and refused to testify, Turnipseed’s testimony would then become admissible because a hearsay de-clarant — Edwards—is unavailable within the meaning of the rules of evidence if he exercises his right to remain silent. See, e.g., State v. Ford, 539 N.W.2d 214, 227 (Minn.1995); State v. Anderson, 284 N.W.2d 360, 361 (Minn.1979).

Ferguson has supported his allegation that Edwards lied at trial with a notarized statement from Turnipseed. Presently, this statement and any such testimony at a hearing are inadmissible hearsay. However, if an evidentiary hearing were held and Edwards was subpoenaed to testify regarding his recantation, there are several likely outcomes, two of which would result in admissible evidence that Edwards lied at Ferguson’s trial. First, Edwards might invoke his Fifth Amendment right to remain silent, becoming “unavailable” so that Turnipseed’s testimony falls under the hearsay exception for statements against penal interest. Edwards might also admit that he lied at Ferguson’s trial and' formally recant his testimony under oath. However, there is also the potential that Edwards would testify to some other effect, such as he lied to his father, or his father was lying. Testimony such as this would not result in evidence that Edwards lied at Ferguson’s trial because Turnip-seed’s statement would remain inadmissible hearsay. Nevertheless, two of the three possibilities result in admissible evidence that is relevant to whether Edwards’ testimony in Ferguson’s trial was false, either of which may satisfy the court that Edwards’ testimony was false.

2. Second Prong: Difference in Jury’s Conclusion Without False Testimony

Whether we are satisfied that Edwards’ trial testimony was false is only the first prong in the three-prong Larrison test for newly-discovered evidence of false testimony. Ferguson also must show that, without the false testimony, the jury might have reached a different conclusion. Sutherlin, 574 N.W.2d at 438. Under this second prong of the Larrison test, we must answer the question whether, without Edwards’ allegedly false testimony, the jury might have reached a different conclusion. Caldwell, 322 N.W.2d at 585. This second prong is less stringent than what is required for new trials based on new evidence that does not involve falsified testimony; that standard requires that a jury probably would have reached a different result in another trial. Id. Here, Ferguson claims that Edwards’ testimony was the lynchpin in a wholly circumstantial case.

A review of the record shows that Edwards’ testimony was a substantial part of the state’s case against Ferguson. First, Edwards testified that on the morning of the shooting, he saw that Ferguson had a gun and that Ferguson told him that he was going to kill Allen Jr. Second, Edwards testified that later that same day Ferguson told Edwards that he had seen Allen Jr.’s shadow in the window and that he shot him. Without this testimony, the only other evidence tying Ferguson to the crime was that: (1) Ferguson and Allen Jr. had a confrontation 20 to 30 minutes before the shooting; and (2) Vincent Wheat-ley testified that he saw Ferguson on the side of the house minutes before the shooting. Given that the state’s case against Ferguson without Edwards’ testimony consists of a confrontation with Allen Jr. before the shooting and an identification of Ferguson near the house before the shooting, it is quite possible, maybe even probable, that the jury might have reached a different verdict.

3. Third Prong: Surprised by False Testimony

Under the third prong of the Larrison test, Ferguson must show that he was surprised by the false testimony at trial or did not know of the falsity until after trial. Sutherlin, 574 N.W.2d at 433. It is undisputed that Ferguson learned of Edwards’ alleged recantation after trial. In fact, it was not until after Ferguson appealed from the denial of his first petition for postconviction relief that he learned, through Turnipseed, of Edwards’ alleged recantation. Edwards’ testimony was that Ferguson had confessed to him. If no such conversation took place, Ferguson knew of the falsity of Edwards’ testimony from the time of Edwards’ testimony at trial, if not before.

If the third prong is applied literally, the test for granting a new trial could never be satisfied in situations in which a witness later recants his testimony regarding matters within the personal knowledge of the defendant. Accordingly, some federal courts that have adopted the Larrison test have questioned whether the third prong should be an absolute requirement for granting a new trial. United States v. Willis, 257 F.3d 636, 648 (6th Cir.2001); United States v. Leibowitz, 919 F.2d 482, 484-85 (7th Cir.1990); Gordon v. United States, 178 F.2d 896, 900 (6th Cir.1949). For example, Judge Posner writing for the Seventh Circuit — the first circuit to adopt the Larrison test — noted that the absolute requirement of the third prong was dictum. Leibowitz, 919 F.2d at 485 (discussing Larrison, 24 F.2d at 87-88). Judge Posner acknowledged that surprise was relevant, but concluded that it should not be an absolute condition precedent to granting a new trial, especially in cases where

the principal (though not the only) evidence of guilt is the testimony of an accomplice or eyewitness, the only resource of the defendant in unmasking the falsity, even with all the advance warning in the world, may be cross-examination, which — much mythology to the contrary notwithstanding — is not an infallible he detector.

Leibowitz, 919 F.2d at 484. Judge Posner also noted that he had “found only one case in which the absence of surprise alone barred acceptance of an otherwise truthful-seeming recantation.” M

We agree with Judge Posner’s conclusion that Larrison’s third prong should not be an absolute condition precedent to granting a new trial. We find support for this conclusion in our case law. In Minnesota, failure to meet the third prong has never been relied upon to deny a new trial. Instead, new trials generally have been denied based upon failure to satisfy the first and second prongs. See, e.g., State v. Erdman, 422 N.W.2d 511, 512 (Minn.1988) (denying new trial based on first prong); Morgan v. State, 384 N.W.2d 458, 460 (Minn.1986) (denying new trial based on second prong). Whether the defendant was surprised or discovered the false testimony after trial can be a relevant concern when determining whether to grant a new trial. To ignore this factor would serve to encourage defendants to “sit” on false testimony at trial or fail to investigate the veracity of a witness and bring it to the court’s attention only in postconviction proceedings in the hope of getting a new trial. Nevertheless, we see no reason why, when it is asserted that the defendant must have known that the testimony was false, this factor alone should be a basis to deny the defendant a new trial when there is an alleged recantation by the state’s primary witness to an alleged confession by the defendant.

In cases such as this involving an alleged confession and in situations where eyewitnesses or accomplices allegedly present false testimony, surprise regarding the falsity of the testimony is never a possibility because a defendant would have personal knowledge of the circumstances. As a result, under the traditional Larrison test, such defendants would be unable to satisfy the test for a new trial based on a witness’s recantation of false testimony. Therefore, we conclude that the third prong of the Larrison test, that a petitioner be taken by surprise at trial or not have known of the falsity of the testimony until after trial, is not an absolute condition precedent to a court granting a new trial based on falsified testimony.

II.

Having clarified the Larrison test for claims of newly-discovered evidence of falsified testimony, we next address Ferguson’s claim that he is entitled to a new trial or at a minimum a postconviction evidentiary hearing because Edwards provided false testimony. For us to grant Ferguson a new trial, he must establish, by a fair preponderance of the evidence, facts that would entitle him to a new trial under the Larrison test. Minn.Stat. § 590.04, subd. 3 (2000); see also Rainer, 502 N.W.2d at 787. He has not done so based on the facts before us. A court could not be reasonably well-satisfied that Edwards’ trial testimony was false based on Turnipseed’s statement alone. Therefore, we conclude that Ferguson has not established that he is entitled to a new trial.

Ferguson is, however, entitled to an evidentiary hearing on a significantly lesser showing than what is required for us to grant him a new trial. Our standard of review for the denial of a postconviction evidentiary hearing allows us to reverse a postconviction court only for an abuse of discretion. Russell, 562 N.W.2d at 672. An evidentiary hearing is required “whenever material facts are in dispute that * * * must be resolved in order to determine the issues raised on the merits.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). Allegations in a postconviction petition must be “more than argumentative assertions without factual support.” Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). But any doubts whether an evidentiary hearing is necessary should be resolved in favor of the party requesting the hearing. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967). Additionally, evi-dentiary hearings are particularly appropriate when postconviction allegations attack evidence that was very important to the state’s wholly circumstantial case. See State v. Rhodes, 627 N.W.2d 74, 88 (Minn. 2001). Thus, in order to prevail on his request for a hearing, Ferguson must allege facts that would, if proved by a fair preponderance of the evidence, entitle him to relief. Roby v. State, 531 N.W.2d 482, 483 (Minn.1995).

Ferguson has alleged that Edwards lied at trial which, if proved, would satisfy the first two prongs of the Larrison test. More particularly, Ferguson has provided a potentially admissible notarized statement by Turnipseed that Edwards lied at trial and has asserted that Edwards’ testimony was so essential to the state’s case against him that without the false testimony the jury might have reached a different conclusion. Ferguson has also alleged facts that indicate that the third prong of the Larrison test is not particularly relevant to his situation and that it should not bar his claim. As we concluded above, the absence of surprise will no longer bar a claim for relief. Further, the state’s case against Ferguson was wholly circumstantial. Edwards’ testimony was pivotal to Ferguson’s conviction; thus, he has alleged material facts that, if proved by a fair preponderance of the evidence, would satisfy the Larrison test for a new trial. Therefore, we hold that the postconviction court abused its discretion when it denied Ferguson’s request for an evidentiary hearing. Accordingly, we reverse and remand for an evidentiary hearing on the issue of whether Ferguson is entitled to a new trial on the grounds that Edwards recanted his trial testimony.

III.

Ferguson also claims that he is entitled to a new trial or an evidentiary hearing because he has newly-discovered evidence that Vincent Wheatley testified falsely at trial. Specifically, Ferguson argues that he has an affidavit from Prentice Wheatley stating that on several occasions after the murder but before trial Vincent told Prentice that Vincent could not identify the person whom Vincent had seen running from the house just before the murder, and that Vincent had not seen the person’s face. However, this “affidavit” is unsigned. In contrast, Vincent testified at trial that he recognized Ferguson as the person running beside the house just before the murder.

The postconviction court applied a four-part test to determine whether a new trial was required upon this discovery of new evidence. The court applied the test for newly-discovered evidence found in Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997), which requires that (1) the evidence was not known to the defendant or his counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (8) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence would probably produce an acquittal or a more favorable result. The court concluded that Ferguson was not entitled to a hearing or a new trial because Ferguson could not meet the third part of the test. Specifically, the court noted that even if Prentice signed an affidavit or testified at a new trial, his testimony would only be offered as impeachment against Vincent — failing to satisfy the third part of the test.

However, as we noted previously, the proper test to apply when evaluating a claim for a new trial based on newly-discovered evidence of falsified testimony is the three-prong Larrison test. Dukes, 621 N.W.2d at 257-58; see also Sutherlin, 574 N.W.2d at 433 (making the distinction between the three-prong test and the four-part test). When there are factual disputes on a claim and the postconviction court erred when it applied the four-part test instead of the Larrison test, it is appropriate to remand for application of the Larrison test. Dukes, 621 N.W.2d at 258.

However, remanding the Prentice/Vincent claim may be unhelpful given the weakness of the new evidence under the Larrison test. More specifically, with respect to the first prong, it appears unlikely that a postconviction court could be well-satisfied that Vincent’s testimony was false because there is no factual support or evidence for Ferguson’s claims. Ferguson has not submitted an affidavit or even a notarized statement. Additionally, unlike Turnipseed’s statement, the Prentice/Vincent claim does not present the possibility of a witness recanting his testimony; instead, there is only a possibility that another witness would testify that Vincent was lying and had changed his story. It is questionable whether Prentice would sign an affidavit or testify at a hearing or new trial given that he was (1) the murder victim’s first cousin, (2) unwilling to sign an affidavit for purposes of the motion for postconviction relief, and (3) subpoenaed to testify at Ferguson’s trial but never responded. To obtain an evidentiary hearing on a postconviction petition, petitioners must present facts in support of their claims — “more than argumentative assertions without factual support.” Beltowski, 289 Minn, at 217,183 N.W.2d at 564.

Whether the second prong — possibility that the jury would return a different verdict — would be satisfied is also questionable. Unlike Edwards’ testimony, which consisted of Ferguson’s statement of intent to commit murder and his later confession, Vincent’s testimony only puts Ferguson near the scene of the crime at the right time. Thus, it appears that Ferguson’s conviction rests much less on Vincent’s testimony than on that of Edwards. We would ordinarily conclude that a remand for an evidentiary hearing regarding Vincent’s testimony would serve no useful purpose because Ferguson appears unable to make a prima facie case under the Larrison test. However, because the postconviction court applied the incorrect legal standard and because we are remanding for an evidentiary hearing regarding Edwards’ testimony, we conclude that the postconviction court should also hold an evidentiary hearing regarding the allegedly false testimony of Vincent Wheatley.

rv.

In addition to his claims of falsified trial testimony, Ferguson raised several other claims in his petition for post-conviction relief, including claims that the state used false and misleading testimony and that the state failed to disclose material and exculpatory evidence in violation of the Fourteenth Amendment. Specifically, Ferguson claims that Edwards lied under oath about (1) Edwards’ membership in the Bloods gang; (2) carrying a gun; (3) Edwards’ continuing criminal activity; (4) Edwards’ arrest in 1996; and (4) the benefits Edwards was receiving for his cooperation with the state. Ferguson also claims that the state failed to disclose (1) the specific amounts and actual breakdown of the total financial assistance it provided to Edwards, and (2) the state’s “ongoing efforts to protect Edwards from criminal prosecution for the possession of a firearm” stemming from Edwards’ 1996 arrest.

Once a direct appeal has been taken, we will not consider any issue raised in that appeal or any claims known at that time but not raised. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Such claims are also barred by this rule if the petitioner knew or should have known about the issue at the time of appeal. Black v. State, 560 N.W.2d 83, 85 (Minn.1997). Several of Ferguson’s claims are without merit because they involve allegedly false testimony given in other proceedings. The majority of Ferguson’s other claims are barred by Knaffla because Ferguson either knew or should have known of these claims at the time of his direct appeal. Finally, with respect to Ferguson’s claim that Edwards lied about the benefits he received for his cooperation and with respect to Ferguson’s claim that the state failed to disclose exculpatory evidence, Ferguson has failed to meet his burden. In particular, Ferguson did not provide the postconviction court with any evidence that he learned of the latter claims after his direct appeal. Accordingly, we hold that the postconviction court did not abuse its discretion when it concluded that Ferguson was not entitled to postconviction relief with respect to these claims.

V.

Finally, Ferguson argues that his appellate counsel provided ineffective assistance to the extent that we decline to address any issues based on Knaffla. Essentially, Ferguson argues that if we determine that any issues are barred from consideration at this time because they were known but not raised at the time of Ferguson’s direct appeal, then his appellate counsel provided ineffective assistance by failing to raise the issues on direct appeal.

Ferguson raises this ineffective assistance of appellate counsel claim in his brief to this court. However, Ferguson did not raise this issue in either of his two petitions for postconviction relief. We generally will not consider arguments made for the first time on appeal. State v. Kremer, 307 Minn. 309, 313, 239 N.W.2d 476, 478 (1976). This procedural bar applies even in postconviction proceedings raising constitutional issues of criminal procedure. Id. In our discretion, we may consider issues raised for the first time on appeal when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989).

Because our standard of review of a postconviction court’s decision is limited to whether there is record support for its findings, proper review of Ferguson’s ineffective assistance of counsel claim is impossible because the postconviction court made no findings on this issue. Further, review of this issue does not appear to be in the interests of justice because Ferguson can raise this issue in another petition for postconviction relief and allow the post-conviction court to first address the issue. Finally, given the general rule that we will not consider issues raised for the first time on appeal, the state did not address the ineffective assistance of counsel issue on its merits. Accordingly, we will not address Ferguson’s claim at this time.

Affirmed in part and reversed in part. Remanded to the postconviction court for further proceedings in accordance with this opinion.

      . A complete factual summary can be found in Ferguson's direct appeal, State v. Ferguson, 581 N.W.2d 824 (Minn.1998).

      . We originally adopted this three-prong test in State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn.1982). The test is commonly referred to as the Larrison test, after a Seventh Circuit case. Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928).

      . The posteonviction court cited Caldwell, 322 N.W.2d at 584-85, the first case from this court adopting the three-prong test for newly-discovered evidence of falsified testimony. However, the court did not discuss or apply the second and third prongs, presumably because the first was not met.

      . Under federal law, when a recanting witness takes the stand at the motion hearing and invokes his right to remain silent, motions for a new trial are denied. Wright and Miller, Federal Practice and Procedure, § 577.1 at 348 (1982) (citing Newman v. United States, 238 F.2d 861 (5th Cir.1956)). However, we have before us not only whether Ferguson is entitled to a new trial, but whether he is entitled to an evidentiary hearing. Accordingly, we do not need to decide whether a new trial should be granted solely on these grounds.

      . Nevertheless, several years after Posner’s opinion in Leibowitz, another panel from the Seventh Circuit discussed and applied the three-prong test as if the third prong were a necessary requirement. United States v. Austin, 103 F.3d 606, 609-10 (7th Cir.1997).

      . Posner cites United States v. Dworkin, 116 F.R.D. 29 (E.D.Va.1987), and refers to it as "a doozy.” In Dworkin, the defendant alleged that his own purposely false testimony was false and required a new trial. Id. at 30-31.


source: Caselaw Access Project

author: LANCASTER, Justice. RUSSELL A. ANDERSON, Justice GILBERT, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Peter Allen COLVIN, Petitioner, Appellant.
    No. C4-00-1365.
    Supreme Court of Minnesota.
    June 13, 2002.

      Lawrence Hammerling, Deputy State Public Defender, Davi Axelson, Asst. State Public Defender, Minneapolis for appellant.
    Mike Hatch, Attorney General, Robert A. Stanich, Asst. Attorney General, St. Paul, Raymond F. Schmitz, Olmsted County Attorney, Rochester, for respondent.
   OPINION

LANCASTER, Justice.

This appeal presents the question of whether a criminal defendant’s violation of an order for protection (OFP) is sufficient to establish first-degree burglary, absent the commission of or intent to commit a crime other than a violation of the order for protection.

Peter Allen Colvin (Colvin) was charged by complaint with one count of first-degree burglary. The charge arose from Colvin’s February 25, 1999, illegal entry into the home of his ex-wife, Michelle Colvin. Colvin moved to dismiss the charge, arguing that the violation of an OFP could not form the basis of a burglary charge because burglary required commission of or intent to commit a crime other than illegal entry. The district court denied the motion. The burglary charge was subsequently submitted to the district court on stipulated facts, and the court found Colvin guilty of first-degree burglary. The court of appeals affirmed Colvin’s conviction, concluding that because the OFP violation, unlike trespass, is not entirely encompassed by the illegal entry, an OFP violation alone can satisfy the intent to commit an independent crime requirement of burglary. We reverse.

Michelle Colvin applied for and obtained an emergency (ex parte) OFP pursuant to Minn.Stat. § 518B.01 (2000), against her ex-husband, Peter Colvin, on October 14, 1998. The order, which was valid for one year and was served on Colvin on the date obtained, provided that “Respondent [Col-vin] must not enter Petitioner’s [Michelle Colvin’s] residence located at [address] or any future residence. Respondent must not enter or stay at Petitioner’s residence for any reason, even if invited to do so.” The order also provided that Colvin could not commit acts of domestic abuse against Michelle Colvin, have any contact with her, or enter or call her workplace.

On February 25, 1999, Michelle Colvin telephoned the Rochester Police Department to report a violation of the OFP. According to the police report, a fifteen-year-old girl, A.M.E., who was staying with Michelle Colvin, returned to their home in Rochester that evening at 6:10 p.m. A.M.E. found Colvin inside the residence, watching television and drinking a beer. A.M.E. asked Colvin to leave, and he complied. She then telephoned Michelle Colvin at work and left a message about Colvin’s presence in the home. The police officer responding to Michelle Col-vin’s call later that evening found no sign of forced entry. Michelle Colvin reported to the officer that she believed Colvin entered the residence through a window in the dining area because the blinds were disturbed and because that window would not lock.

As a result of the events of February 25, 1999, Colvin was charged with first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a) (2000), and violation of an OFP in violation of Minn.Stat. § 518B.01, subd. 14(d)(1). Because Colvin had been convicted of two prior order for protection violations in the past five years, this OFP violation was charged at the felony level. Colvin brought a motion to dismiss the burglary charge, arguing that violation of an OFP could not form the basis of a burglary charge because burglary required commission of or intent to commit a crime other than illegal entry. At the July 29, 1999, pretrial hearing on Colvin’s motion, the parties stipulated to the facts as represented in the police report and complaint and further agreed that there was no allegation that Colvin committed or attempted to commit any crime independent of the OFP violation.

After the district court denied Colvin’s motion on September 29, 1999, the parties reached a plea agreement that included dismissal of the OFP violation and resolution of other unrelated charges. Under that agreement, the burglary charge was submitted to the court on the same stipulated facts as agreed to in the pretrial hearing. On April 10, 2000, the district court found Colvin guilty of first-degree burglary. The court made written findings of guilt, specifically finding: That Col-vin entered a building; that he did so without consent; that the building was a residence; -that another person, not an accomplice, was present in the building during some of the time Colvin was present; and that in entering the building Colvin intended to commit and did commit the crime of violating the valid October 14, 1998, OFP.

Colvin appealed, arguing that intent to violate an OFP cannot satisfy the element of intent to commit a crime while in the building. The court of appeals affirmed the district court, holding that violation of an OFP, unlike trespass, satisfies the independent crime element of first-degree burglary. Colvin additionally argued that the evidence in the stipulated facts was insufficient to prove intent to violate the OFP. The court of appeals rejected this argument as well.

On appeal to this court, Colvin raises only the question of whether intent to violate an OFP is sufficient to establish burglary, absent the commission of or intent to commit a crime other than the OFP violation.

Construction of a criminal statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). A statute must be construed according to its plain language. Minn.Stat. § 645.16 (2000). If ambiguous, the intent of the legislature controls. Id. A rule of strict construction applies to penal statutes, and all reasonable doubt concerning legislative intent should be resolved in favor of the defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (citing State v. Haas, 280 Minn. 197, 200-01, 159 N.W.2d 118, 121 (1968)). If construction of a statute is uncertain, a statute may not be interpreted to create criminal offenses that the legislature did not contemplate. State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985). “The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of ‘judicial construction.’ ” Id. at 628 (quoting State v. Mims, 26 Minn. 191, 192, 2 N.W. 492, 492 (1879)); see also Haas, 280 Minn, at 201, 159 N.W.2d at 121.

Colvin was charged with first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a). Subdivision 1 provides:

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar is in the building.

For a burglary conviction to stand, the state must prove that a defendant intended to commit some independent crime other than trespass. State v. Larson, 358 N.W.2d 668, 670 (Minn.1984).

It is undisputed that if the state had established the commission of or intent to commit another offense in the course of the OFP violation, assault or terroristic threats, for example, the independent crime element of burglary would be established. See, e.g., State v. Van Meveren, 290 N.W.2d 631, 632 (Minn.1980) (discussing case in which defendant had “assaul-tive intent”). But this case comes before us on stipulated facts, and it has been stipulated that there is no allegation that Colvin committed or attempted to commit a crime other than violation of the OFP.

Violation of an OFP, however, can be accomplished in many ways. It is the nature of the OFP violation that will determine whether the OFP violation constitutes an independent crime under the burglary statute. For example, the OFP in this case prohibited Colvin from: (1) committing acts of domestic abuse against his ex-wife; (2) having any contact with his ex-wife; (3) entering her residence; and (4) entering or calling her workplace. If Col-vin had acted in contravention of either the first, second, or fourth provision, his conduct would not resemble trespass, while violation of the no-entry provision clearly does bear such a resemblance.

The state argues that Colvin committed two violations of the OFP — by entering his ex-wife’s residence, he violated the no-entry prohibition in the order, and evidence of this conduct satisfied the illegal entry element of burglary. Second, by intending to contact his ex-wife in violation of the order’s prohibition against “any contact” with his ex-wife, Colvin violated the order a second time. Evidence of this second method of violating the OFP, the state contends, satisfies the intent to commit an independent crime element of burglary.

We disagree, because the district court’s findings and the stipulated facts fail to support the state’s allegation that Colvin intended to contact his ex-wife in violation of the OFP. The district court in its written findings of guilt specifically found that the independent crime committed by Col-vin was violation of the no-entry part of the OFP. The district court stated: “In entering the building, [Colvin] intended to and did commit a crime — specifically violation of the October 14, 1998 Order for Protection which excluded [Colvin] from that building * * The district court made no other finding related to the no-contact provision of the order. Further, nothing in the stipulated facts — comprised of the police report, the complaint, and the parties’ agreement at the pretrial hearing that there was no allegation that Colvin committed or attempted to commit any crime independent of the OFP violation— establishes that Colvin intended to contact Michelle. In fact, because the parties agreed that “there is no allegation that any crime independent of the OFP violation was committed or attempted to be committed” by Colvin, and because this statement refers to a single method of violating the OFP, this suggests that only one OFP violation method was contemplated during the district court proceedings. (Emphasis added.)

On appeal, this court will accept the district court’s findings of fact unless those findings are clearly erroneous. State v. Robledo-Kinney, 615 N.W.2d 25, 32 (Minn.2000). Findings of fact are not clearly erroneous if there is reasonable evidence to support them. Adler v. State, 284 Minn. 31, 36, 169 N.W.2d 233, 237 (1969). Our review of the stipulated facts leads us to conclude that the district court’s factual findings with regard to the nature of Colvin’s violation of the OFP are not clearly erroneous. Because the district court found that Colvin violated the no-entry provision of the OFP, but made no other finding of additional OFP violations, we conclude that Colvin was not charged with violation of the no-contact provision of the OFP. Thus, the state’s argument that Colvin’s intention to violate the no-contact provision of the order was the basis for satisfying the independent crime element of burglary is unsupported by the record.

Likewise, the dissent’s venture into factfinding based on a default OFP order and petition in this case is improper. This case is before us on stipulated facts and admittedly cryptic district court findings. However, as an appellate court those findings are our only foundation. Appellate courts have no more .business finding facts after a court trial than after a jury trial. Just as we must defer to a jury’s findings, we are bound by the district court determination that Colvin’s intent, “[i]n entering the building,” was to violate the OFP, “which excluded Defendant from that building.” The dissent erroneously states that we conclude that Colvin’s sole intent was to enter the home. We made no such independent factual conclusion. Accordingly, the narrow issue presented is whether Colvin’s violation of the no-entry provision of the OFP is sufficient to establish the independent crime element of burglary-

In Larson, this court held that trespass cannot serve as the crime committed or intended to be committed to establish burglary. 358 N.W.2d at 670. We explained: “To allow an intent to commit a trespass to satisfy the requirement of intent to commit a crime would mean that a mere trespasser who had no intent other than to enter or remain in a building without the consent of the owner could be convicted of burglary.” Id. The court concluded that the state is required to “do more than establish an intent to commit the crime of trespass” to fall within the parameters of the burglary statute. Id.

Colvin argues that the OFP violation he committed was so similar to trespass that the same result is required here as in Larson. The only identifiable criminal act in both cases was the illegal entry, and in neither case is there evidence of intent to commit a crime other than illegal entry. Colvin acknowledges that the cases differ in that Colvin’s entry was made illegal not simply because of the prohibition against trespass, but by operation of the valid October 14, 1998, order for protection. But Colvin contends that the OFP simply establishes the illegal entry element of burglary, not the element of intent to commit a crime independent of the illegal entry.

The court of appeals found that violation of an OFP can satisfy the independent crime element of burglary because, unlike trespass, an OFP violation is not “completely encompassed” by the unconsented entry. State v. Colvin, 629 N.W.2d 135, 138 (Minn.App.2001). Under the court of appeals analysis, the state is required to prove the existence of an OFP covering the residence entered, and defendant’s awareness of the OFP. Id. Because “every burglary involves a trespass, but, not every burglary involves a violation of an order for protection,” the court of appeals held that intent to violate an OFP satisfies the independent crime requirement of first-degree burglary. Id.

We conclude that violation of a no-entry provision of an OFP, like trespass, is excluded from the crimes that can be the bases for the independent crime element of burglary. Both offenses are designed to protect the interests that are invaded by the unauthorized entry that the burglar makes. Thus both trespass and violation of the no-entry provision of an OFP satisfy the illegal entry element of burglary. Further, both offenses are complete upon entry. But we conclude that the same entry is insufficient to satisfy both the illegal entry element of the burglary statute and the independent-crime requirement.

Freed from the district court findings, the dissent paints a picture of an intruder who is more than a mere trespasser to support the conclusion that a burglary charge is appropriate. In addition to failing to give proper deference to the district court’s findings, the dissent misses the point. To hold that a burglary charge here was not supported by the district court’s findings is not to say that Colvin is a mere trespasser. Colvin may well have violated the OFP in ways other than mere entry; we simply have no district court findings to support that conclusion. More importantly, given our holding in Larson, a court adjudicating a burglary charge based on a violation of an OFP must determine that the OFP violation constituted something more than mere entry into the home in order to support the burglary charge.

In other contexts where a statute includes elements that cannot lawfully support a conviction, the conviction is invalid unless it can be conclusively shown that the improper elements did not lead to the conviction. For example, in State v. Ihle, 640 N.W.2d 910 (Minn.2002), we recognized that a conviction could not be based on jury instructions that did not reflect our narrow construction of the obstruction of legal process statute — a construction that required more than simply words. Id. at 915. We upheld the conviction in Ihle because, through a special verdict, the jury found the offense was committed with force or violence or the threat thereof. Id. at 916-17.

Just as we required in Ihle a special verdict from the factfinder that obstruction included more than words, based on our decision in Larson a factfinder must determine that violation of an OFP involved more than a mere entry into the home to support a burglary conviction. Thus, contrary to the assertion of the dissent, we in no way hold that all violations of an OFP are the same as a trespass. We simply hold that all the factfinder found in this case was an illegal entry.

While our holding here extends the Larson court’s pragmatic recognition that the illegal entry that is inevitably committed during the course of a burglary cannot also be the independent crime committed while in the building, we pause to note that we are troubled by the Larson court’s subsequent analysis. In Larson the defendant was charged with trespass and burglary in connection with his illegal entry into his ex-wife’s residence. 358 N.W.2d at 670. The court referred to a “family relationship” between the defendant and his ex-wife, and stated that while an intent to commit a crime could be inferred merely by the presence of a stranger inside a residence, the family relationship in Larson (as well as defendant’s prior unconsented entries in which he had committed no additional criminal conduct beyond trespass) weighed against inferring intent to commit an additional crime. Id. We expressly reject the view articulated therein. An ex-husband generally has no interest in his ex-wife’s property, and therefore no greater right to an unconsented entry than a stranger. Cf. State v. Evenson, 554 N.W.2d 409, 411-12 (Minn.App.), rev. denied (Minn. Oct. 29, 1996) (holding that grant of an OFP deprived a husband of lawful possession of the marital home, notwithstanding ownership interest in the residence).

However, in this case we are not called to determine what intent can be inferred by Colvin’s presence in his ex-wife’s residence because the case comes before us on stipulated facts. Under the stipulated facts it is clear that there is no allegation that Colvin committed or intended to commit a crime other than a violation of the OFP.

Finally, we note that the legislature has created a statutory scheme to address the serious problem of domestic abuse. Minn. Stat. ch. 518B (2000). Among other remedies, the statutes address the significant danger inherent in domestic abuse by ratcheting up the penalties for repeat violations. See Minn.Stat. § 518B.01, subd. 14(c), (d). Unlike the crime of trespass, repeat violations of orders for protection are designated as felonies. Id., subd. 14(d). A defendant convicted of violating three orders for protection in five years— such as the defendant here — is guilty of a felony level offense carrying a presumptive prison sentence. Id. Had the defendant been convicted of simple trespass for a third time, the crime would be a misdemeanor. Minn.Stat. § 609.605 (2000). Such disparate treatment of domestic abuse based on unauthorized entry as compared to trespass underscores the legislature’s intent to treat domestic abuse seriously and severely. If the legislature chooses to sanction violation of an OFP based solely on entering a home similarly to first-degree burglary — with a presumptive sentence of 48 months for a first-time offender — it can do so by amending the appropriate statutes.

In summary, we hold that because the stipulated facts establish that there is no allegation that Colvin committed or intended to commit a crime other than the OFP violation, and because the district court specifically found that Colvin’s OFP violation was a violation of the prohibition against entry onto his ex-wife’s residence, Colvin’s unconsented entry in violation of the OFP cannot be the basis for a burglary charge.

Reversed.

RUSSELL A. ANDERSON, Justice

(dissenting).

I respectfully dissent. I disagree with the majority’s conclusion that entry into a home with intent to violate an order for protection (OFP) is the equivalent of entry into a home with intent to trespass. I also disagree with the majority’s characterization of the district court’s written findings of fact. By improperly focusing on two short phrases in the district court’s findings, the court not only ignores the fundamental finding of the court that the felony underlying the burglary was violation of the OFP and not a mere trespass, but fails to appreciate the significant difference between entry into a home and entry into a home where a person protected by an OFP resides.

The entirety of the district court’s findings in this case is as follows:

1. On February 25, 1999, Defendant entered the building located at [address];
2. He did so without consent;
3. In entering the building, he intended to and did commit a crime — specifically violation of the October 14, 1998 Order for Protection which excluded Defendant from that building;
4. The building was a dwelling, and;
5. Another person, not an accomplice, was present in the building during some of the time that Defendant was in the building.

(Emphasis added.) The majority focuses exclusively on the phrases, “In entering the budding,” and “which excluded Defendant from that budding” to conclude that the district court found that the independent crime committed was a violation of the “no-entry part of the order for protection.” However, the district court stated that the specific violation was simply violation of the OFP, not the “no-entry part” of the order.

The majority strains to construe the district court order as finding a violation of only the “no-entry” aspect of the OFP so that it can characterize Colvin as a mere trespasser. In Larson, we stated: “[t]o allow an intent to commit a trespass to satisfy the requirement of intent to commit a crime would mean that a mere trespasser who had no intent other than to enter or remain in a budding without the consent of the owner could be convicted of burglary.” State v. Larson, 358 N.W.2d 668, 670 (Minn.1984). The majority’s characterization of Colvin as a mere trespasser is not supported by the record nor is it supported by our previous case law, which permits circumstantial evidence to determine an intruder’s intent.

The record in this case belies the majority’s characterization of Colvin as a mere trespasser. This mere trespasser had twice previously broken into Michelle Colvin’s home, stealing money and personal belongings. This mere trespasser had threatened violence against Michelle and their children. This mere trespasser appeared at Michelle’s home every day for a 30-day period, intoxicated. This mere trespasser brought drugs and alcohol to Michelle’s home. This mere trespasser brought his friends to the home, which resulted in an allegation of inappropriate contact with the children. About this mere trespasser, Michelle stated, “I am afraid.”

In addition, the majority ignores the case law, acknowledged in Larson, that permits the consideration of circumstantial evidence to determine the intent of an unlawful intruder; that is the consideration of circumstantial evidence to determine if one is a “mere trespasser.” See, e.g., State v. Mills, 289 Minn. 528, 529, 185 N.W.2d 276, 277 (1971) (holding that “proof of intent to commit a crime must necessarily rest on a permissible inference reasonably to be drawn from all of the facts and circumstances proved” when apprehension of the suspect occurred before anything in the building was taken or disturbed); State v. Crosby, 277 Minn. 22, 25, 151 N.W.2d 297, 300 (1967) (“[PJroof of intent to commit a crime in connection with proof of burglary is always one that must rest on a permissible inference from the facts proved.”); see also Larson, 358 N.W.2d at 670; State v. Propotnik, 280 Minn. 556, 557, 158 N.W.2d 861, 862 (1968); State v. Witte, 280 Minn. 116, 118-19, 158 N.W.2d 266, 268 (1968). When consideration is given to the circumstantial evidence in this case — that is Colvin’s history of domestic violence towards Michelle — a perfectly reasonable inference from Colvin’s occupation of Michelle’s home was that Colvin intended contact with Michelle and their children, and that Colvin intended to cause Michelle and the children fear of harm. The court is unwilling to consider the circumstantial evidence, provided by the very order that Colvin violated, that Colvin intended to do more than merely enter into the home without consent. The court’s analysis that Colvin is a mere trespasser is contrary to both the law and the facts.

The majority finds support for its conclusion in the stipulation that there was no allegation that Colvin committed or attempted to commit any crime independent of the OFP violation. However, while actual conduct can be indicative of intent, what is relevant to a burglary charge is the intruder’s intent at the time of entry, not whether Colvin committed or attempted to commit a crime independent of the OFP violation once inside the home. Minn.Stat. § 609.582, subd. 1 (2000). The intent that the district court found was the simple intent to violate the OFP, not the intent that the majority surmises, the intent to enter into the home. While the record is sparse, one can easily surmise that Colvin’s intent was to have contact with Michelle and the children and to cause fear of harm. In State v. Crosby, we affirmed a burglary conviction that relied upon circumstantial evidence of intent, stating:

[W]hether they found what they expected to find in the building does not detract from the fact that they had an intent to commit a felony or gross misdemeanor; and if that intent existed it is sufficient, even though they did not actually find in the building what they expected to take.

277 Minn, at 26, 151 N.W.2d at 300. Our holding in Crosby applies with equal force here. It is irrelevant that Colvin did not find Michelle when he unlawfully entered her home, staying for two hours while drinking a beer and watching TV. His intent, as found by the district court, was to violate the OFP, which, in addition to prohibiting entry into the home, prohibited Colvin from causing fear of harm to Michelle and prohibited contact with her “in any other way.”

The effect of the majority’s ruling is to erase any distinction between a court-prohibited entry into a home by a person with a court-identified propensity to harm or cause fear of harm to the home-owner and a mere trespass into a building by a stranger. The two, one an offense against a person and the other an offense against property, certainly are not the same and should not be merged indiscriminately, as the majority does today.

In addition, the effect of the majority’s analysis — parsing out what aspect of an OFP has been violated — requires the state to allege and the factfinder to find in burglary cases exactly what aspect of the OFP the intruder intended to violate upon entry. In other contexts, we do not require a jury to agree unanimously on exactly how a law was violated, but only to agree on the “bottom line” — that the particular violation alleged was proved beyond a reasonable doubt. See State v. Ihle, 640 N.W.2d 910, 918 (Minn.2002); State v. Crowsbreast, 629 N.W.2d 433, 439 (Minn. 2001). The majority analysis subverts this principle by requiring a jury to agree on which aspect of an OFP an intruder intended to violate where burglary is charged. This result appears to inject unnecessary complexity into a relatively simple charge.

I suspect the majority’s true concern, a valid one, is whether a burglary charge, a severity level 6 offense, should be charged when the perhaps more accurate characterization of the offense is felony violation of the order for protection, a severity level 4 offense. However, if the state has misused its charging authority given the facts in this case, that action should be addressed directly rather than through a strained interpretation of the district court’s straightforward ruling. The effect of the court’s ruling will be to discourage the state from charging similar offenses as burglaries, perhaps contrary to legislative intent.

In sum, the majority analysis, which parses out and requires proof of the particular aspect of the OFP an intruder intended to violate upon entry in order to determine whether a burglary charge will stand, is simply unworkable. Moreover, it is unnecessary in this case, given that the district court found that the felony underlying the burglary charge was violation of the order for protection and not the “no-entry part” of the OFP, and given that Colvin was much more than a mere trespasser.

I would affirm.

GILBERT, Justice

(dissenting).

I join in the dissent of Justice Russell A. Anderson.

      . This is not to say that the state’s proof of each offense is complete upon showing evidence of the illegal entry because, as the court of appeals noted, as to the OFP violation, the state must also prove that a valid OFP existed, and that defendant knew of it.

      . In the OFP that Colvin violated, the district court concluded that the petition, referred to in the order, alleges "an immediate danger of domestic abuse.” Colvin did not request a hearing to refute the petition. The district court ordered Colvin not to "commit acts of domestic abuse against” Michelle. The court explained that Colvin was to stay away from the home and was not to enter the home, even if invited. Colvin was not to harm "or cause fear of harm” to Michelle or the children. According to the order, Colvin was not to have "any contact” with Michelle or the children through other persons, by telephone, letter, "or in any other way.” Colvin was ordered to reimburse Michelle the sum of $900 "for breakage [and] theft of money.” The order advised Colvin that the Violence Against Women Act, 18 U.S.C. § 2265 (2000), made the order enforceable in all 50 states, Washington D.C., tribal lands, and U.S. Territories, and further, that Colvin must comply with the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 922(g)(8) (2000), concerning the shipping, transporting, possession, or receiving of firearms and ammunition.

      . Indeed, one wonders why Colvin did not leave the home after not finding Michelle if, as the majority concludes, his sole intent was to enter the home.


author: /s/Alan C. Page Associate Justice.

text:
    John C. DILLEMUTH, Respondent, v. OWATONNA TOOL COMPANY and Reliance Group/Crawford & Company, Relators, and Special Compensation Fund.
    No. C7-02-165.
    Supreme Court of Minnesota.
    June 18, 2002.
    Kay Nord Hunt, Richard L. Plagens, Christopher R. Grote, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, Relator’s Attorney(s).
    Ross L. Leuning, Walbran, Furness & Leuning, Owatonna, MN, Respondent’s Attorney(s).
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 7, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice.


author: GILBERT, Justice.

text:
    STATE of Minnesota, Respondent, v. Lue LEE, Appellant.
    No. C7-01-1046.
    Supreme Court of Minnesota.
    June 20, 2002.

      John M. Stuart, Minnesota State Public Defender, Jodie L. Carlson (# 218637), Assistant State Public Defender, Minneapolis, MN-, for Appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig (# 65730), Assistant Ramsey County Attorney, Saint Paul, MN, for Respondent.
   OPINION

GILBERT, Justice.

This case involves several alleged erroneous evidentiary rulings and alleged misconduct by the prosecutor. Appellant Lue Lee’s estranged wife, Xia Vang, was murdered by a single shotgun blast to her head on November 25, 2000. Steven Yang was indicted for first-degree murder for firing the fatal shot and appellant was indicted for first-degree murder for allegedly aiding and abetting Yang. A jury found appellant guilty of first-degree murder and the trial court imposed a mandatory life sentence. This appeal followed. We affirm.

At about noon on November 25, 2000, appellant was with his estranged wife Xia Vang and their daughter in Mounds Park when a masked gunman approached and shot Vang in the head one time with a shotgun. Appellant dialed 911 and Saint Paul police officer Carl Schwartz responded to the call. Upon arriving at the park, Schwartz observed a female body lying near the monument in the park whose “head was blown off’ and noticed that her brain was lying on the seat of the monument. Schwartz also saw appellant crouched behind the monument, crying and holding his daughter tightly.

Schwartz asked appellant what happened. Appellant stated that he met Vang and their daughter in the park to take photographs for their daughter’s second birthday. Appellant said that he was taking a photograph when a dark blue or black Toyota pulled up and someone wearing a black ski mask, black shirt, black shorts and white tennis shoes and carrying a shotgun ran towards them. Appellant ducked behind the monument with his daughter and heard a shot fired. He then called 911.

Other officers arrived at Mounds Park shortly after Schwartz’s arrival. These officers videotaped and took still photographs of the scene and of Vang’s body. The officers also found a piece of shotgun wadding near Vang’s body. It was later determined that Vang’s death was caused by a single shot from a sawed-off shotgun fired at her head from about 3-4 feet away.

Appellant and his daughter were transported to the Saint Paul Police Homicide Unit about an hour after the shooting. Once there, Sergeant Joseph Younghans began interviewing appellant, who was not under arrest. This interview lasted approximately 6 hours. During the interview appellant said that he and Vang had been separated for about 6-7 months and that he was behind on his child support payments. Appellant again explained that he was in Mounds Park with Vang and their daughter to take pictures for their daughter’s second birthday and that he did not know who shot Vang. Younghans questioned appellant about a domestic assault on Vang that occurred on July 3, 1999, specifically asking Lee if it was an “assault five.” Appellant denied that the incident was an “assault five” but later admitted that he had beaten Vang on two occasions and that he had threatened to kill her.

While Younghans was questioning appellant, other police officers continued to investigate in and around Mounds Park. The officers eventually located a Toyota Camry near the park, which the officers believed might have been involved in the crime. The car was running, the rear window had been smashed, and inside the officers found a water bottle, a screwdriver, and a Motorola walkie-talkie. The officers also obtained a search warrant for appellant’s apartment, where they found a screwdriver similar to the one found in the Toyota.

All of this information was relayed to Younghans. He asked appellant if he ever communicated with a walkie-talkie. Appellant indicated that he used walkie-talk-ies with his roommate and then produced a Motorola walkie-talkie from his pants pocket. Thereafter, Younghans suspected that appellant was involved in Vang’s murder and continued to question him about the walkie-talkies. The walkie-talkie from the Toyota was brought to the police station while Younghans was still questioning appellant and Younghans was able to determine that both walkie-talkies were the same make, model, and color, were both set on the same channel, and were able to communicate with each other. Despite repeated questioning, appellant continued to deny any involvement in Vang’s murder.

The police again questioned appellant the following day, after they arrested and interviewed two other suspects in Vang’s murder, Thao Vue and Steven Yang. Youn-ghans told appellant how both Vue and Yang implicated appellant in Vang’s murder but appellant continued to deny any involvement. However, appellant eventually told Younghans that he and Yang had planned to scare Vang at the park by having Yang rob appellant and Vang. Appellant also said that he and Yang stole the Toyota and that the plan was for appellant to signal Yang with the walkie-talkie as to when Yang should come “scare” Vang. Appellant told Younghans that Vue’s role was to help as a driver.

Appellant was indicted for first-degree murder in violation of Minn.Stat. §§ 609.185(1), 609.11 and 609.05 (2000) for allegedly aiding and abetting in Vang’s murder.. Yang was also indicted for first-degree murder. Vue pleaded guilty to second-degree murder in exchange for his testimony at appellant’s and Yang’s trials.

At appellant’s trial, Vue testified that appellant asked him to help kill Vang on more than one occasion. According to Vue’s testimony, a day or two before Vang’s murder Yang used a screwdriver to steal a Toyota Camry to be used in the murder. Appellant drove the stolen car to the Mounds Park area and Vue and Yang followed in appellant’s car. The stolen car was then left near Mounds Park. According to Vue, appellant planned to meet Vang and their daughter on November 25, 2000 and then have his plan to kill Vang carried out.

Vue testified that he left his house with appellant and Yang on the morning of November 25, 2000 and went to Thai Thao’s house. On their way to Thao’s house appellant called Vang and told her to bring their daughter to Mounds Park. After arriving at the house, appellant obtained permission to borrow Yong Thao’s car. Appellant left the house in his car, stopping to buy some toys and balloons for his daughter and then at a gas station, while Vue and Yang followed in Yong Thao’s car. From the gas station appellant headed to Mounds Park, while Vue and Yang continued to follow. According to Vue, appellant planned to meet Vang and their daughter in Mounds Park and hit the panic button on his walkie-talkie to signal Yang when it was clear to enter the park and kill Vang. Vue further testified that appellant purchased batteries for the walkie-talkies a day before the murder.

Several other witnesses testified for the state. Za Thao, Vang’s mother, testified through an interpreter that she was at a Hmong New Year celebration when she learned that “Lue killed my daughter.” When the prosecutor asked what kind of person Vang was she stated that her daughter “obey me all the time and she helped me all the way ‘til Lue killed her.’ ” The prosecutor also showed Za Thao a picture of Vang and her daughter, asking if she recognized it. She responded, “This is my daughter Xia that Lue killed.” Appellant did not object to any of this testimony.

Kia Vang, Xia Vang’s sister, testified that during appellant’s relationship with Xia, appellant would push, punch, and kick Xia, even when she was pregnant. She also testified about an incident in July 1999 where Xia ended up being taken to Regions Hospital by ambulance as a result of a cut on her head from appellant throwing a phone at her. Appellant did not object to these particular statements. The state also introduced two photographs of Xia Vang taken after the July 1999 assault.

Two men who were housed with appellant in the adult detention center after his arrest also testified. Zang Xiong testified that appellant admitted that he had planned the murder with Yang and Vue and that he had Vang killed because he did not want to pay $600 per month in child support. Xdong further testified that appellant described how he signaled Yang with the walkie-talkie. The second man, Elronza Williams, testified that appellant initially told him that he was being framed for Vang’s murder but later confessed that he planned to kill Vang, signaled Yang with a walkie-talkie, and wanted the crime to look like a robbery. Williams also testified that appellant told him that it was his gun that was used in the shooting.

The state introduced several exhibits at trial. Specifically, the state offered several letters written by appellant while in jail implicating him in Vang’s murder and indicating that he was trying to get Vue to back up his story. The state also introduced, over appellant’s objections, five photographs of Vang at the crime scene, five autopsy photographs showing Vang’s disfigured head, two autopsy photographs of Vang’s hand showing that parts of two fingers were missing as a result of the shotgun blast, and a videotape taken of the crime scene.

Appellant did not call any witnesses but did request and receive an instruction for unintentional second-degree murder while committing or attempting to commit second-degree assault. The jury returned a guilty verdict on the count of first-degree murder. This appeal followed.

Appellant alleges that he was denied his fundamental right to a fair trial because of several evidentiary rulings by the trial court and pervasive misconduct by the prosecutor. Specifically, appellant alleges that the trial court erred by allowing evidence of other crimes and by admitting shocking and cumulative visual evidence showing Xia Vang’s fatal head wound. Furthermore, appellant alleges that the prosecutor engaged in misconduct by persisting to ask questions after the trial court sustained appellant’s objection, by failing to adequately prepare a witness, and by making improper statements during the state’s closing argument.

I.

Evidentiary and procedural rulings generally rest within the discretion of the trial court and this court will not reverse absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990). A defendant claiming the trial court erred in admitting evidence bears the burden of proving the admission was erroneous and prejudicial. State v. Rhodes, 627 N.W.2d 74, 84 (Minn.2001). In determining whether an error warrants reversal, the test is whether it is likely that the errors substantially influenced the jury to convict. Glaze, 452 N.W.2d at 660 (quotation and citation omitted). “We are also mindful that ‘[c]onstitutional error is not reversible error, however, if it is found harmless beyond a reasonable doubt.’ ” Id. (quoting State v. Larson, 889 N.W.2d 872, 875 (Minn.1986)).

Evidence of past abuse

Appellant first claims that the trial court erroneously admitted relationship evidence without following the proper protective procedures. Some of the admitted evidence contested by the appellant relates to what may have been a prior crime, i.e., Younghans’ testimony about an “assault five”- on July 3, 1999 and Kia Vang’s testimony about this assault. Other evidence alleged to be improperly admitted did not relate to this assault, i.e., Kia Vang’s testimony that she had, on more than one occasion, seen appellant push, punch, and kick Xia Vang. Relying on State v. Langley, 354 N.W.2d 389 (Minn.1984), the trial court ruled at the beginning of the trial that evidence related to appellant’s prior acts of violence against Xia Vang were relevant but could be subject to a foundation objection during trial.

Evidence that pertains to the relationship between a defendant and a homicide victim may be admissible in criminal prosecutions even if it refers to other crimes. Langley, 354 N.W.2d at 397; State v. Salas, 306 N.W.2d 832, 836 (Minn.1981). Relationship evidence related to a defendant’s past abuse of a victim is not admissible to prove character in order to show that defendant acted in conformity with that character, but may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Williams, 593 N.W.2d 227, 236 (Minn.1999) (quotation and citation omitted); Minn. R. Evid. 404(b). For such abuse evidence to be admissible, the state must provide clear and convincing evidence that the defendant committed the prior abuse and must show that the probative value of the evidence is not outweighed by its potential for unfair prejudice. State v. Buggs, 581 N.W.2d 329, 336 (Minn.1998); Minn. R. Evid. 403. As with other evidentiary rulings, we generally defer to the trial court’s discretion in admitting such evidence and will reverse only upon a showing of clear abuse of discretion. Buggs, 581 N.W.2d at 336.

As discussed above, Kia Vang took the stand and testified about seeing appellant push, punch, and kick Xia Vang on more than one occasion as well as appellant’s assault of Xia Vang on July 3, 1999. Appellant did not object to this testimony or to the admission of the two photographs taken on July 3,1999 showing how Xia Vang looked as a result of appellant’s assaultive behavior. Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis unless the admission of evidence constituted plain error and affected the defendant’s substantial rights. State v. Vick, 632 N.W.2d 676, 684-85 (Minn.2001). In order to show substantial rights were affected, the defendant bears a “heavy burden” of persuasion to show that “the error was prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn.1998). Even if the defendant meets this burden, we must still decide whether we should address the issue in order to “ensure fairness and the integrity of the judicial proceedings.” Id. at 740. Furthermore, a defendant’s contentions that a trial court’s cautionary instruction was inadequate or that a cautionary instruction should have been given at the time the evidence was received are deemed forfeited on appeal if not raised before the trial court. See State v. Ford, 322 N.W.2d 611, 615 (Minn.1982).

Appellant neither objected to Kia Vang’s testimony nor requested a cautionary instruction at the time her relationship testimony was offered. Therefore, the question before us as to Kia Vang’s testimony is not whether the trial court abused its discretion in allowing Kia Vang’s testimony but whether the trial court plainly erred in such a way that affected appellant’s substantial rights. See Vick, 632 N.W.2d at 685; see also State v. Mills, 562 N.W.2d 276, 284 n. 6 (Minn.1997) (recognizing that the defendant’s objection that testimony was improper was waived on appeal because he failed to object at trial); Ford, 322 N.W.2d at 615 (recognizing that a defendant’s contention that a cautionary instruction should have been given at the time the evidence was received is deemed forfeited if not raised before the trial court).

Appellant claims that the trial court erred because it did not determine whether the testimony offered by Kia Vang was clear and convincing. However, Kia Vang’s testimony that she had, on more than one occasion, seen appellant push, punch, and kick Xia Vang is eyewitness testimony, thereby satisfying the clear and convincing prong. See Williams, 593 N.W.2d at 236. Furthermore, the pictures of Xia Vang after the July 3, 1999 assault corroborated Kia Vang’s testimony about this assault. This again is clear and convincing evidence that an assault occurred. For these reasons, we hold that the trial court did not commit plain error by admitting Kia Vang’s relationship testimony.

Appellant also argues that the trial court erred in allowing Younghans to testify that appellant had denied being involved in an “assault five” with Xia Vang but had nevertheless admitted to beating Vang on two separate occasions and threatening to kill her. While appellant did object to Younghans’ testimony, his objection was overruled. Younghans’ testimony was clearly relevant to show the history of the relationship between appellant and Vang and any statements about appellant beating his wife and threatening to kill her were appellant’s own admissions and were therefore admissible. See Minn. R. Evid. 801(d)(2). While appellant asserts that the court failed to consider whether the probative value of the relationship evidence outweighed its prejudicial effect, the record indicates that the amount of relationship evidence admitted was minimal and not excessively explicit or inflammatory. See Buggs, 581 N.W.2d at 336. Furthermore, the court provided a cautionary instruction at the end of the trial regarding the testimony about the July 3, 1999 incident, telling the jury, “whatever you find about the events of July 3, 1999, should not be used to convict the defendant.” Under these facts, we hold that the trial court did not clearly abuse its discretion by allowing Youn-ghans’ testimony to be admitted at trial.

Admission of photographs and crime scene videotape

We next consider appellant’s argument regarding the admission of the crime scene videotape and photographs from both the crime scene and autopsy. The admission of photographs is in the discretion of the trial court. State v. Robinson, 539 N.W.2d 231, 239 (Minn.1995). We established the standard for admissibility of photographs in State v. DeZeler, 230 Minn. 39, 41 N.W.2d 313 (1950), which held:

Photographs are admissible as competent evidence where they accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description of objects and conditions, provided they are relevant to some material issue; and they are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice.

DeZeler, 230 Minn, at 46-47, 41 N.W.2d at 319 (emphasis in original). We have recognized that photographs that clearly illustrate the crime scene and/or wounds to the victim are relevant even where the defendant is not challenging the elements of premeditation and intent because the state still has the burden of proving these elements to convict of murder in the first degree. State v. Jobe, 486 N.W.2d 407, 417 (Minn.1992). At the same time, we have indicated that:

A photograph or videotape should not be admitted if it is only subtly different from other photographic or video evidence. And such exhibits should be limited to a reasonable quantity. The purpose of visual evidence is to inform jurors, not shock and overwhelm them.

State v. Hummel, 483 N.W.2d 68, 74 (Minn.1992).

Here, appellant argues that one or two photographs showing the position of Vang’s body lying in the snow and one autopsy photo showing the clean head wound would have been sufficient to assist the jury in understanding the testimony describing the death scene and to show the severity of Vang’s wounds. The state sought to introduce seven of the thirty autopsy photographs at the pretrial hearing, contending that these were helpful and necessary for the medical examiner’s testimony. The judge questioned the prosecutor about each of these seven photographs and why they were necessary. Five of the photographs were of Vang’s disfigured head and two were of her hand. Ultimately, the court allowed these seven photographs to be admitted at trial.

The state also sought to introduce several photographs taken at the crime scene. The court allowed five photographs of Vang at the scene to be admitted but did not allow several others, finding that some of the pictures “cross[ed] that line that I am trying to keep the balance with.” The record indicates that the court examined each photograph in an attempt to “draw a line which creates a passion of prejudice and that which is actually useful to proving the principles in the line here.” As for the video, the court indicated that it would give some latitude in allowing its use because the videotape showed the crime scene but also indicated that it did not want the video to be stopped while it was being shown to display the still photographs. Instead of two or three photographs of Vang’s head and/or body, which appellant argues would have been acceptable, the state was able to introduce ten such photographs (five from the crime scene and five from the autopsy), as well as two autopsy photographs of Vang’s hand and the crime scene videotape.

The record indicates that the crime scene photographs and videotape were used to assist in the testimony about the crime scene and the autopsy photographs were used to assist the medical examiner’s testimony about the cause of death. The record shows that the trial court carefully reviewed each photograph before admitting it, required an explanation from the state as to the probative value of each photograph, and explicitly indicated an intent to balance their probative value against their potential for creating unfair prejudice. Given these facts, we hold the trial court did not abuse its discretion by admitting the photographs and videotape. See State v. Friend, 493 N.W.2d 540, 544 (Minn.1992).

II.

Next, appellant contends that the prosecutor committed misconduct by (1) persisting in asking witnesses to express their opinion about appellant’s demeanor after the shooting after the trial court sustained appellant’s objections, (2) allowing Za Thao to volunteer inadmissible opinion testimony about appellant killing Vang, and (3) making several inappropriate comments during closing argument. However, appellant only objected to the prosecutor’s questioning of witnesses about appellant’s demeanor after the shooting — failing to object either to Za Thao’s testimony or to comments made during closing argument.

When a defendant fails to object to a prosecutor’s statement, the defendant typically forfeits his right to have the issue considered on appeal. State v. Sanders, 598 N.W.2d 650, 656 (Minn.1999). While certain cases may warrant a new trial due to prosecutorial misconduct even where the defendant failed to object at trial, we may decline to consider an appellant’s prosecutorial misconduct claim altogether when there is substantial evidence against the defendant ensuring that the alleged misconduct was harmless beyond a reasonable doubt. State v. McDonough, 631 N.W.2d 373, 389 (Minn.2001). Given the facts of this case and the fact that appellant did.not object to the prosecutor’s questioning of Za Thao or to his closing argument, we decline to address appellant’s prosecutorial misconduct claims as to these issues.

Appellant did object to the testimony regarding his demeanor after the shooting and these objections were sustained. Appellant claims that despite this ruling the prosecutor continued to ask witnesses to express their opinion about appellant’s demeanor following the shooting. Appellant argues that this was misconduct because such questions were asked to create the inference that appellant was of bad character and the type of person who would be involved in plotting a murder.

It is prosecutorial misconduct for the prosecutor to persist in asking questions that the trial court has ruled improper or to elicit evidence ruled inadmissible. See State v. Harris, 521 N.W.2d 348, 354 (Minn.1994). The general standard for determining whether a new trial is warranted due to prosecutorial misconduct is “whether the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980).

While the record indicates that the prosecutor continued to ask witnesses about appellant’s demeanor after appellant’s objections to such questioning had been sustained, these objections were sustained on foundation grounds. The trial court never ruled that the questions were improper or were asked in an attempt to elicit inadmissible evidence. Nothing in the record indicates that the prosecutor’s questions were so inexcusable or prejudicial that appellant’s right to a fair trial was denied. Accordingly, we hold that the prosecutor did not commit misconduct in his questioning of any of the witnesses about appellant’s demeanor after the murder.

For the foregoing reasons, we hold that appellant is not entitled to a new trial and affirm his conviction.

Affirmed.

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

      . Presumably, Younghans was referring to a misdemeanor assault in the fifth degree, which is defined as either committing an act with intent to cause fear in another of immediate bodily harm or death or intentionally inflicting or attempting to inflict bodily harm upon another. Minn.Stat. § 609.224, subd. 1 (2000).

      . Yang was tried and convicted for his role in Vang's murder approximately 3 weeks after appellant’s conviction. We affirmed Yang’s conviction in State v. Yang, 644 N.W.2d 808 (Minn. 2002).

      . Vue testified that there was two different plans to kill Vang. First, appellant and Yang planned to carjack Vang and her roommate when they returned home from a club, take them to Wisconsin, and then kill them. Vue was to follow in appellant's car and then drive appellant and Yang back to Saint Paul after Vang and her roommate were murdered. According to Vue, this plan was aborted when Vang parked her car in the front of the house and returned with three other people instead of just her roommate. Vue drove off, fearing too many witnesses. The second plan was carried out on November 25, 2000.

      . Appellant argues that he asserted at trial that the photographs and videotape were irrelevant because he did not dispute that Vang died instantaneously as a result of a shotgun wound to her head. However, appellant's counsel conceded before trial that appellant could not simply stipulate away the state's right to introduce relevant evidence at trial. Accordingly, appellant’s contention that the photographs and videotape were irrelevant because appellant stipulated to how Vang died contradicts appellant's own recognition at the pretrial hearing that he could not simply stipulate away the state's right to introduce relevant evidence. While appellant did object, his objections at trial were based solely on their duplicative and prejudicial nature.