author: HANSON, Justice. PAGE, Justice BLATZ, Chief Justice ANDERSON, Paul H., Justice

text:
    STATE of Minnesota, Respondent, v. Scot Perry CHRISTIAN, Appellant.
    No. CX-01-1459.
    Supreme Court of Minnesota.
    Feb. 13, 2003.
    Rehearing Denied March 11, 2003.

      Mike Hatch, Minnesota Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN; and Patrick A. Oman, Mower County Attorney, Austin, MN, for State of Minnesota.
    Mark D. Nyvold, St. Paul, MN, for Scot Perry Christian.
   OPINION

HANSON, Justice.

Appellant Scot Perry Christian was convicted of two counts of first-degree premeditated murder, two counts of first-degree felony murder, two counts of second-degree intentional murder, two counts of second-degree felony murder, one count of first-degree assault and one count of felon in possession of a pistol, stemming from a robbery carried out by appellant and several others. During the fourth day of jury voir dire, he asked to be allowed to represent himself. This request was initially granted, but the district court reconsidered its decision a day later. Based on the finding that appellant had made the request with the intent to delay trial, the district court denied it. Appellant seeks a new trial, arguing that the district court erred in terminating his self-representation and in joining his trial with that of two other defendants. He further argues that he was the victim of prosecutorial misconduct and ineffective assistance of counsel. We affirm.

Appellant, his brother David Christian, Vernon Powers and Janea Weinand planned and carried out an armed robbery at the Downtown Motel in Austin, Minnesota, on June 30, 2000. After Weinand knocked on the victims’ motel room door, appellant and Powers entered the room with guns, demanded money and ultimately fired their weapons. Of the five occupants of the room, two died from gunshot wounds; a third was hit but survived.

Weinand entered into a plea agreement with prosecutors. Over objection, the district court joined the trials of appellant, Powers and David Christian. While awaiting trial, appellant and Powers escaped from the Mower County Jail but were apprehended. Because of adverse local publicity surrounding the escape, venue was transferred to Dakota County. Jury selection for the joined trial of appellant, Powers and David Christian began on Monday, May 14.

On Friday, May 18, the fourth day of jury selection, appellant complained that his attorneys were not representing him adequately. “I truly believe if I have to I could do it myself,” appellant told the court. Appellant requested a continuance so that he could seek private counsel. The district court stated, “I will also point out to you that you do have the option of representing yourself, since you apparently brought that to the Court’s attention” and then granted appellant a continuance until the following Monday, May 21. Counsel for codefendant David Christian moved to sever appellant’s trial if appellant was allowed to represent himself because of the potential for prejudice to David Christian. The court deferred ruling on that motion.

On Monday, May 21, appellant asked for another continuance to obtain private counsel. In the alternative, he moved that he be allowed to represent himself. The court denied the continuance and then addressed appellant’s self-representation motion. The court told appellant:

I want you to be aware of two things; one of which is that any defendant has an absolute right to proceed pro se, so long as in the Court’s determination they enter an intelligent waiver of their right to counsel. An intelligent waiver does not mean saying [”]I want to represent myself,[”] it means that you have to demonstrate that you truly understand the ramifications of proceeding on your own, and that you also understand that given the status of this matter and the late date for the request that while your attorneys would be discharged, they would be reappointed as standby counsel. And, pursuant to the Rules of Criminal Procedure, in the event that this Court made a determination that the request to go pro se is a potential delay or disruption in this trial, if at any point your representation of yourself constituted a disruption of this trial or [if it] became obvious to the Court that it was solely for the purpose of delay or, in this particular instance, solely for the purpose of obtaining a severance by the device of representing yourself, the Court has the option of simply reappointing your attorneys and prohibiting you from representing yourself pro se.

Appellant said that he understood this. Appellant then answered several questions the court put to him regarding the scope of his right to self-representation and the relevant laws appellant would need to be familiar with while conducting his own defense. After the prosecution agreed that “the Court made the correct inquiries of [appellant] to determine whether he was making a knowing, voluntary [and] intelligent waiver of his right to counsel,” the district court granted appellant’s motion to represent himself.

David Christian immediately moved for severance, arguing that appellant’s “lack of legal knowledge and training” would have a “spill-over effect” which would prejudice David Christian. The court denied that motion. Appellant then filed five motions, among them a severance motion made on the same grounds as David Christian’s. In response to this severance motion, the court asked appellant whether his request to represent himself had anything to do with his desire to be tried separately. Appellant answered “[y]es and no” and reiterated the concerns earlier expressed by David Christian. The court essentially denied appellant’s motions but granted a continuance until the following afternoon, asking counsel to research the severance question further.

When trial resumed on Tuesday, May 22, all three codefendants requested that their trials be severed because of the risk of prejudice. After appellant spoke on his own behalf, the court informed him that, were the trials to be severed, he would be the first defendant tried that afternoon. When appellant said he was ready to proceed “[i]f I have to,” the court asked him if he would be ready to question jurors, make an opening statement and defend himself. Appellant stated that he was not ready to do those things.

The state then asked the court to reconsider appellant’s self-representation motion. The court agreed. It found that the purpose of the motion had been “to allow a delay” and rescinded its order allowing appellant to represent himself. As support for this finding, the court cited appellant’s prior “[y]es and no” statement regarding the relation between his self-representation motion and his severance motion, appellant’s admission that he was not prepared to proceed with trial immediately, the fact that appellant did not make the self-representation motion until the fourth day of jury selection and the fact that the case had “already * * * once been continued due to the efforts of the defendants.” After a recess, the court added that appellant’s motions for severance and for a continuance were further evidence of his dilatory intent. The court then denied all severance motions. Appellant never represented himself in the presence of the jury. The jury found appellant guilty of all charges.

Appellant asserts that the district court’s ruling ending his self-representation denied him his Sixth Amendment right to represent himself. He also argues that his severance motion was improperly rejected and that he was denied a fair trial as a result of prosecutorial misconduct and ineffective assistance of counsel.

I.

We first address appellant’s claim that the district court erred in rescinding his order granting Christian’s request to represent himself. In State v. Richards, we held that the deprivation of the right of self-representation is not subject to a harmless error analysis and overturned Richards’ conviction because the district court’s refusal to let Richards proceed pro se was “clearly erroneous.” 456 N.W.2d 260, 263-64 (Minn.1990) (hereinafter “Richards /”). We therefore apply the clearly erroneous standard in reviewing the district court’s denial of a self-representation motion.

Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has the right to defend himself in a state criminal proceeding. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). While that right is not explicitly mentioned in the Sixth Amendment, the United States Supreme Court has ruled that the Sixth Amendment right to the assistance of counsel implies a correlative right of self-representation:

Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Faretta, 422 U.S. at 819-20, 95 S.Ct. 2525 (footnote omitted).

Faretta is the last expression on this subject by the United States Supreme Court. As was predicted in the dissent of Justice Blackmun, the lower courts have struggled with the procedural questions that were left unanswered by Faretta:

Must every defendant be advised of his right to proceed pro se? If so, when must that notice be given? Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error? Must the trial court treat the pro se defendant differently than it would professional counsel?

Id. at 852, 95 S.Ct. 2525 (Blackmun, J., dissenting). Of these questions, the one that is presented here — “How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? ” — has not been definitively answered. While Faretta treats the right of self-representation as virtually absolute, subject only to the conditions necessary to a waiver of the right to assistance of counsel, the request for self-representation in Faretta was made weh before the beginning of jury selection. Thus, Faretta did not address the issue of whether the strength of the right of seE-representation is diminished by the passage of time.

We have said that a defendant’s request for seE-representation should be granted where it is “clear, unequivocal, and timely” and the defendant “knowingly and inteEi-gently waives his right to counsel.” Richards I, 456 N.W.2d at 263 (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525). But, Richards I, like Faretta, involved a motion for seE-representation that was made weeks before jury selection was to begin. Thus, Richards I likewise does not address the issue of whether the strength of the right of seE-representation is diminished by the passage of time. The argument that it might or should be diminished is based on the conflict between the defendant’s right of seE-representation and the authority of the district court to control trial proceedings. State v. Richards, 552 N.W.2d 197, 205 (Minn.1996) (hereinafter “Richards IV”). We have held that the district court may rescind the pro se status of a defendant who “ ‘deliberately engages in serious and obstructionist misconduct’ ” and have stated that the court cannot aEow a defendant to use the right of seE-representation to delay proceedings or to force a mistrial. Id. (quoting Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525).

In the absence of a definitive statement by the U.S. Supreme Court on the appropriate resolution of this conflict, we look for guidance to the decisions of the federal courts of appeal and especially to those of the Eighth Circuit Court of Appeals. The Eighth Circuit has held that a defendant’s right of seE-representation is “unqualified” only E it is demanded before trial. See, e.g., United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir.1986). After trial begins, the seE-representation right “is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himseE and the potential disruption and possible delay of proceedings already in progress.” Id. at 1155-56 (citing United States ex rel. Maldonado v. Denno, 348 F.2d 12,15 (2d Cir.1965)).

We are persuaded that this discretion to balance these conflicting interests is essential to the adequate protection of the right to assistance of counsel. We agree with the observation that the “ ‘right to counsel is, in a sense, the paramount right; E wrongly denied, the defendant is likely to be more seriously injured than E denied his right to proceed pro se.’” United States v. Betancourtt-Arretuche, 933 F.2d 89, 92 (1st Cir.1991) (quoting Tuitt v. Fair, 822 F.2d 166, 177 (1st Cir.1987)).

A. When Does “Trial” Begin?

If we are to follow the Wesley rule— that, after trial begins, the district court has discretion to balance the defendant’s right of seE-representation against the potential for disruption or delay — we must determine what activity constitutes the beginning of trial. Wesley did not address this precise question because the request in that case was made mid-trial, well after the beginning of trial under any definition. See 798F.2d at 1156.

The Minnesota Court of Appeals and the courts of some other states have held that a self-representation motion is untimely “ “where the request is not made a reasonable time before trial and there is no good cause justifying [its] lateness.’” State v. VanZee, 547 N.W.2d 387, 391 (Minn.App. 1996) (quoting Lyons v. State, 106 Nev. 438, 796 P.2d 210, 214 (1990)); People v. Windham, 19 Cal.3d 121, 137 CaLRptr. 8, 560 P.2d 1187, 1191-92 (1977); Russell v. State, 270 Ind. 55, 383 N.E.2d 309 (1978); accord Hamiel v. State, 92 Wis.2d 656, 285 N.W.2d 639, 648 (1979).

In contrast, some federal circuit courts have held that a request is timely if made before “meaningful trial proceedings,” defined to coincide with the attachment of jeopardy when the jury is sworn. See, e.g., Betancourt-Arretuche, 933 F.2d at 96; Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982); Chapman v. United States, 553 F.2d 886, 895 (5th Cir.1977); see also Larrabee v. Bartlett, 970 F.Supp. 102, 105 (N.D.N.Y.1997). But some of these courts have treated a motion as untimely, even if made before the jury is sworn, if it is made with dilatory intent. See, e.g., Fritz, 682 F.2d at 784 (“[A] motion to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay.”).

Although this latter line of cases suggests that “meaningful trial proceedings” do not occur until the jury is sworn, none of these cases actually involved a motion for self-representation that was made after jury selection had begun. Thus, their focus on jury empanelment is made in the abstract and, in our view, is based on an incomplete analysis. In fact, we have only found a single case dealing with a self-representation motion that was made during jury voir dire and that case held that “meaningful trial proceedings” commenced with the beginning of jury selection. See Robards v. Rees, 789 F.2d 379, 382 (6th Cir.1986) (holding a self-representation request untimely where made after voir dire had begun, but before the jury had been empaneled). The court ruled the motion untimely and recognized the discretion of the district court to deny it, stating that defendant Robards’ self-representation request, if granted,

would have impermissibly delayed the commencement of the trial. The clerk had called the roll of jurors before Ro-bards made his request for self-representation. Had the request been granted, the trial judge would have been obliged to postpone the commencement of the trial for an extended period of time in order to allow Robards a sufficient amount of time to prepare his defense. It was within the discretion of the trial judge to deny Robards’ request. His denial was not an abuse of discretion. Moreover, this Court believes that this denial by the state court was not tantamount to a constitutional violation.

Id. at 384.

We reached a similar conclusion in an analogous situation in State v. Worthy, 583 N.W.2d 270 (Minn.1998). In Worthy, two defendants expressed dissatisfaction with their court-appointed attorneys and moved for substitute counsel during jury voir dire. Id. at 274. We held that this motion was untimely, stating that it was made “on the morning of trial.” Id. at 278-79.

We conclude that, for the purpose of applying the Wesley standard, trial begins at the commencement of jury voir dire. Thus, when a self-representation motion is made after jury voir dire begins, the district court must exercise its discretion to balance “the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.” Wesley, 798 F.2d at 1155-56.

B. Did the District Court Abuse Its Discretion?

When it reconsidered its grant of appellant’s self-representation motion, the district court found that appellant had made the motion in order to delay his trial. In support, the court cited five facts: (1) appellant’s “[y]es and no” statement admitting to some connection between his self-representation request and his severance motions; (2) his statement that he was not ready to begin trial proceedings immediately; (3) the late date of appellant’s motion; (4) appellant’s escape from jail; and (5)the motions appellant had filed seeking severance and a continuance.

Appellant argues that the district court’s finding of dilatory intent was a mere pretext; he claims that the district court reconsidered his self-representation motion in order to avoid dealing with the severance motions from all three defendants. We view the situation differently.

First, we conclude that when the district court initially granted appellant’s motion, it applied the incorrect legal standard. It mistakenly assumed that appellant had “an absolute right to proceed pro se” and failed to recognize that the request was addressed to the court’s discretion because it was made after the beginning of trial. Consequently, we do not regard the district court’s initial order as establishing that appellant’s motion was timely, or as narrowing the district court’s discretion to that available after a timely motion is granted, which allows rescission only where the defendant engages in “serious and obstructionist misconduct.” Richards IV, 552 N.W.2d at 205.

Second, when the district court later reconsidered its initial order, it applied the correct legal standard by exercising its discretion to balance appellant’s right of self-representation against the potential for disruption and delay. Although the district court did not articulate the standard precisely as we do here, its approach reflected the essential elements of that standard and was not clearly erroneous. The court’s finding, that appellant’s motion had been made for the purpose of delay, was supported by the evidence and it supported the denial of appellant’s self-representation motion.

Third, because the district court applied the correct legal standard when it reconsidered its initial order, and expressly based its decision on intent to delay, which was within its discretion under that standard, we decline to speculate about whether the court’s decision was motivated by some other unexpressed rationale.

In summary, we choose to follow the rule in Wesley that self-representation motions made after the beginning of trial are addressed to the discretion of the district court to balance the defendant’s right of self-representation against the potential for disruption and delay. We hold that trial begins, for this purpose, when the jury selection process begins. On the facts before us, we conclude that the district court’s denial of the motion, based upon the finding of appellant’s intent to delay, was not clearly erroneous. Therefore, we affirm the district court’s denial of appellant’s self-representation motion.

II.

Appellant raises three further arguments: improper joinder, prosecutorial misconduct and ineffective assistance of counsel. None is convincing.

Appellant argues that he was prejudiced by having his trial joined with that of Vernon Powers. He relies on the fact that, in connection with a prior plea agreement, Powers made statements incriminating appellant. But Powers’ plea agreement was rescinded, his guilty plea was vacated and the jury never heard his statements implicating appellant. Powers’ trial testimony did not incriminate appellant. Therefore, Powers’ statements could not have caused the “substantial prejudice” to appellant that would be necessary to require a new trial. See State v. Hathaway, 379 N.W.2d 498, 502 (Minn.1985).

Appellant argues that he was denied a fair trial because of prosecutorial misconduct. He cites statements made by the prosecutors during voir dire and closing argument. Appellant also claims that the prosecutor engaged in an improper ex parte contact with a juror. Appellant has not established that any conduct of the prosecutor rose to the level of “inexcusable, serious and prejudicial” misconduct that would be required for us to disturb the district court’s discretion to govern attorney conduct during a trial. See State v. Henderson, 620 N.W.2d 688, 702-03 (Minn.2001).

Appellant argues that he was denied a fair trial because of ineffective assistance of counsel. We have held that an appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel because of the difficulty an appellate court has in determining the facts regarding the representation. State v. Gustafson, 610 N.W.2d 314, 321 (Minn.2000). The preferred procedure is to raise the issue of ineffective assistance in a petition for postconviction relief in the district court. Id. The record does not provide a sufficient basis to review appellant’s complaints, most of which require “additional facts to explain the attorney’s decisions.” Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn.1997). Therefore, we decline to reach the merits of the issue. Appellant’s right to pursue an ineffective assistance of counsel claim in a petition for postconviction relief is preserved.

Affirmed.

Dissenting, PAGE, J. and BLATZ, C.J., and PAUL H. ANDERSON, J.

PAGE, Justice

(dissenting).

I respectfully dissent. I disagree with the court’s conclusion that the trial court here did not abuse its discretion when it rescinded its order granting Christian’s self-representation motion. In reaching this conclusion, the court has answered the wrong question. The relevant question to be answered is whether, having granted Christian the right to represent himself, the trial court abused its discretion when it rescinded the order granting that right without finding that Christian had deliberately “engaged in serious and obstructionist misconduct.” See Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Minn. R.Crim. P. 5.02, subd. 2 (stating that the court may give advisory counsel full control over case if “(a) the defendant becomes so disruptive during the proceedings that such conduct is determined to constitute a waiver of the right of self representation or (b) the defendant requests advisory counsel to take over representation during the proceeding”).

Recognizing that the Sixth Amendment to the United States Constitution guarantees criminal defendants the right to an attorney, the United States Supreme Court held in Faretta that: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. * * * The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” Faretta, 422 U.S. at 819-20, 95 S.Ct. 2525. When deciding whether to grant a self-representation request, trial courts are required to determine (1) whether the request is clear, unequivocal, and timely and (2) whether the defendant knowingly and intelligently waives his right to counsel. Id. at 835, 95 S.Ct. 2525. If the trial court so finds, the right to self-representation must be granted.

The court dismisses the trial court’s initial order on the basis that Christian was granted pro se status because the trial court “mistakenly assumed that appellant had an ‘absolute right to proceed pro se.’ ” Under Faretta, the defendant does have an absolute right to proceed pro se as long as the court determines that the defendant’s request is knowing, voluntary, unequivocally asserted, and timely. From the record, there is no indication that the trial court did not consider and apply the Faret-ta factors in granting Christian the right to proceed pro se. Therefore, we cannot ignore the trial court’s initial order. Once granted, irrespective of whether the trial court later reconsiders granting pro se status, Faretta clearly states that the right to proceed pro se cannot be revoked unless the defendant engages in serious obstructionist behavior.

Christian’s trial, joined with those of his brother, David Christian, and Vernon Powers, commenced on May 14, 2001. On Friday, May 18, during the fourth day of jury selection, Christian asked the trial court for a continuance so that he could find a private attorney to represent him. Initially, the trial court indicated that it would not grant the continuance based on its conclusion that Christian’s public defenders appeared to be providing competent representation. The trial court went on to tell Christian:

[Y]ou do have the option of representing yourself, since you apparently brought that to the court’s attention. If you are serious about that, you should very definitely discuss it with your present counsel; or, if it becomes necessary, I will ask that the Third District appoint counsel for you to have the same discussion that they had with Mr. Vernon Powers.

After further discussion, the trial court asked Christian to state whether he wanted to represent himself. Christian responded that he was asking for a continuance to Monday, May 21, so that he could seek new counsel. Ultimately, the trial court granted Christian a continuance to May 21.

When trial reconvened on the 21st, Christian, having failed to find a private attorney to represent him, sought a further continuance. The trial court denied Christian’s request and then considered whether Christian would be permitted to proceed pro se. The trial court warned Christian that if at any point the trial court determined that the purpose of Christian’s request to proceed pro se was to delay or disrupt the trial or for the sole purpose of having his trial severed, the trial court would simply reappoint his trial counsel. The trial court then proceeded to question Christian extensively regarding his knowledge of the proceedings, the charges alleged against him, the defenses he would be able to raise, and the ramifications of his decision to proceed pro se. Christian answered the trial court’s questions, generally showing an understanding of the law and legal terms. When questioned if he was willing to risk proceeding pro se, Christian replied that he felt he had no choice under the circumstances. To ensure that Christian’s decision was informed, the trial court ordered a 15-minute recess to give Christian time to consult with his counsel. Upon returning, Christian explicitly stated that he wanted to proceed pro se. At that time, the state responded by stating, “Your Honor, [the] State believes that the Court made the correct inquiries of Mr. Christian to determine whether he was making a knowing, voluntary, intelligent waiver of his right to counsel in this case to proceed pro se. * * * The State is satisfied with the inquiry of the Court.” For the record, the trial court also noted that Christian had the opportunity to meet and confer with Joseph Buel-tel, the Chief Public Defender for the Third District, in addition to his two appointed counsel before deciding to assert his right to proceed pro se. The trial court concluded that Christian knowingly and intelligently waived his right to counsel and permitted him to proceed pro se. In doing so, the trial court made clear to Christian that he would not be allowed to represent himself if he became disruptive or if he specifically elected to re-retain his court-appointed counsel. The trial court then discharged Christian’s court-appointed counsel and immediately reappointed them as standby counsel.

Right after Christian was granted the right to proceed pro se, Mr. Yoss, the attorney for David Christian, brought a motion to sever Christian’s trial from the two represented defendants, citing Christian’s lack of legal experience and the serious nature of the charges. The trial court denied Voss’s motion, but indicated that the motion could be remade at any time during the trial if Christian’s self-representation resulted in substantial prejudice to the other defendants. Mr. Voss then requested a three-day continuance so that Christian could have time to review materials on how to conduct voir dire. When questioned why Voss was arguing on Christian’s behalf, Voss indicated that he was representing the interest of his client, David Christian, and was concerned about the effect a pro se defendant would have on his client. The request was denied.

During the course of these discussions, Christian submitted a number of written motions. Those motions included a motion that trial and research materials be made available to him and that he have access to a telephone for purposes of his self-representation, that he have access to a law library, that he receive certain discovery, that he be permitted to retain an expert, and that his trial be severed from the other defendants. The trial court addressed each one of these motions in turn, granting some and denying others, including the severance motion. In discussing Christian’s severance motion, the trial court specifically asked if Christian’s request to proceed pro se was at all related to his request for severance. Christian responded equivocally, but noted that he did not want to prejudice his codefendants. The state did not respond at that time to Christian’s statements and, ultimately denying the motion, the trial court treated Christian’s motion for severance much like severance motions that had been made previously by Christian’s codefendants. The trial court then addressed issues relating to a possible mistrial based on the trial court’s refusal to allow Christian to begin the jury selection process anew, along with questions of how Christian would be able to examine witnesses and present evidence while in leg restraints.

After the trial court completed its review of Christian’s motions, Voss renewed his request for a continuance until Thursday, May 24, 2001. The trial court agreed to continue the proceedings, but only until 1:30 the next afternoon. The trial court also requested that the parties be prepared to argue whether the trials should be severed and specifically requested that counsel examine whether reappointing counsel for Christian during the middle of trial would affect the trial’s “fundamental fairness.”

At the hearing the next afternoon, May 22, each of the defendants made motions to sever their trials on the basis that having a pro se defendant could potentially prejudice the trials of the two represented defendants. Voss addressed the trial court first, noting that, although there is no presumption in favor of severance in multi-defendant cases when one of the defendants proceeds pro se, he was requesting severance because he was concerned that Christian might engage in disruptive behavior that would negatively impact his client’s right to a fair trial. In his argument, Voss specifically noted that he was not concerned that Christian had been granted the right to proceed pro se. The state then proceeded to argue not whether the trials should have been severed, but rather whether Christian’s request to proceed pro se should have been granted at all. After hearing the arguments for both represented defendants, the following colloquy took place:

THE COURT: Mr. Scot Christian.
CHRISTIAN: I would just like in response to Mr. Orput’s letter, that I just received a few minutes ago, that I am playing games, I brought to the Court’s attention a while back about my dissatisfaction about my counsel, which at this time brought me to the decision, given my ultimatum, as I look at as either go pro se or continue with my previous counsel is a decision I have. I decided to go pro se.
THE COURT: Mr. Christian, we are talking about the issue of severance right now. Please confine yourself to that issue.
CHRISTIAN: And I just ask that my motion for severance was based on not prejudicing the other defendants. Anything I do in the court should reflect on me. And if I was severed out that’s what could happen. And that was my purpose for the motion to give these gentleman a fair trial and myself, too.
THE COURT: One question, Mr. Christian. Presuming that the Court severed the other two defendants, you would be the first one to go forward and we would proceed this afternoon. Are you ready to do so?
CHRISTIAN: If I have to, I have to.
THE COURT: Are you ready to do so? Are you ready to question jurors? Are you ready to make an opening statement? Are you prepared to defend yourself knowing that there will be no other attorneys representing your interests?
CHRISTIAN: No, I’m not.
THE COURT: Or any combined interest?
CHRISTIAN: No, I am not.
THE COURT: Very well, The Court will make an additional record at this point in time. First of all, do you have anything else that you wish to say on this particular issue, Mr. Christian?
CHRISTIAN: On the severance issue?
THE COURT: Yes.
CHRISTIAN: I just asked to be severed out.
THE COURT: Mr. Rank or Mr. Or-put?
MR. ORPUT: I would like to respond on behalf of the prosecution. We actually find ourselves in agreement with Mr. Voss and Mr. Swenson, not necessarily the severance issue, but on the issue that I think precedes that and that’s whether the defendant Scott Christian can go pro se. I think that is what triggered the whole argument about severance. And we agree with both counsel. They made their point — both attorneys — quite eloquently for the State and, in fact, I did hand the Court, as Mr. Swenson was speaking, the Walker case. And we would ask the Court right now preliminary to reconsider the defendant’s motion for pro se, as we have serious concerns about his ability, just like counsel do. We think, frankly— especially now that Mr. Voss advised Court that all it would take is for Scot Christian to act up in court he has pretty thoroughly advised of how he can get a mistrial. And that’s a concern of ours, as well. We have already got a week invested into this case. It may take another week, it may take two. There are no guarantees that Scot Christian won’t inadvertently or with intent cause a mistrial. That’s why we would ask you at first to reconsider his motion for pro se status. I think he made it clear himself, he is not prepared.

After further arguments from counsel, the trial court decided to rescind the order permitting Christian to proceed pro se. In doing so, the trial court noted that Christian’s dissatisfaction with his counsel over trial strategy might well have been the subject of an absolute right to proceed pro se had it been brought to the trial court’s attention earlier, but that now it appeared that Christian’s request was merely to delay the trial. Specifically, the trial court cited the following facts to support its decision: (1) Christian’s “[y]es and no” statement admitting to some connection between his self-representation request and his severance motions; (2) his statement that he was not ready to begin trial proceedings immediately; (3) the late date of Christian’s motion; (4) Christian’s escape from jail; and (5) the written motions Christian had filed seeking a continuance and severance and/or mistrial, which the trial court found were “substantial evidence of the intent” to request self-representation for the purposes of delay.

None of these facts support a finding that Christian was engaged in “serious and obstructionist misconduct,” as required by Faretta, to justify the rescission of his right to proceed pro se. See 422 U.S. at 834 n. 46, 95 S.Ct. 2525. At the outset, it must be noted that Christian’s motivation for seeking self-representation is not an appropriate basis upon which to revoke his request to represent himself, since the right to defend oneself is a personal right that is not to be questioned by the court if the court determines that the request is timely, not for the purpose of delay, and knowingly and intelligently asserted. See id. at 834, 95 S.Ct. 2525 (noting that because it is the defendant and not his attorneys or the state who will bear the consequence of a conviction it is the defendant “who must be free personally to decide whether in his particular case counsel is to his advantage”). Clearly, before initially permitting Christian to represent himself, the trial court had to have reached the conclusion that Christian’s request was timely, not made for the purpose of delay, and knowingly and voluntarily asserted. If, in fact, the trial court believed that Christian’s motion was made for purposes of delay, his right to self-representation should have been denied in the first instance. Having granted the motion, to the extent it concluded based on Christian’s written motions that Christian’s purpose was to delay the proceeding, the remedy was to deny the motions, not revoke his right to self-representation.

Nor is the fact that Christian stated that he was not ready to proceed to trial a basis for revoking his right to self-representation. The right to self-representation includes the right to conduct one’s defense to one’s own detriment. Id.; United States v. Flewitt, 874 F.2d 669, 674 (9th Cir.1989) (reversing a trial court decision to revoke pro se status because the defendants refused to prepare for trial). The Court in Faretta, although recognizing that the state had a strong argument that the help of counsel is essential to assure a defendant a fair trial, dismissed this argument because it would permit the state to impermissibly impose counsel on an unwilling defendant. 422 U.S. at 832-33, 95 S.Ct. 2525. Rather than forcing counsel on a defendant, the Court made clear that a defendant’s choice to represent himself must “be honored out of ‘that respect for the individual which is the lifeblood of law.’ ” Id. at 834, 95 S.Ct. 2525 (citation omitted). As long as Christian was complying with relevant substantive and procedural rules and was not being disruptive, the trial court’s revocation of his right to represent himself resulted in counsel being impermissibly forced on Christian. There is no indication from the record that Christian was not complying with relevant substantive and procedural rules. Being prepared is not a substantive or procedural requirement and there is no evidence to suggest that Christian was engaging in serious obstructionist behavior. In revoking Christian’s ability to represent himself, the trial court did nothing more than force Christian to accept counsel against his will, an action prohibited by Faretta.

Similarly, the trial court’s third and fourth reasons, the purported late date of Christian’s motion and Christian’s escape from jail, were not appropriate reasons for revoking Christian’s right of self-representation. With respect to the purported late date, that fact might be relevant if it was clear that it was Christian, and not the trial court, who during voir dire first raised the possibility of proceeding pro se and if the trial court had not already granted Christian the right to represent himself. Obviously, the date of Christian’s motion was a known and presumably considered fact when the trial court initially allowed Christian to proceed pro se. If the trial court believed that the request to proceed pro se was untimely, the trial court would not have raised the possibility of proceeding pro se, nor would it have granted Christian the right to do so. Like the purported late date, Christian’s escape from jail was also known and presumably considered before he was granted the right to self-representation.

Finally, the trial court relies on Christian’s motions for a continuance, severance, and/or a mistrial as evidence that his motion to proceed pro se was a sham. However, those motions were nothing more than Christian’s attempt to represent himself within the relevant substantive and procedural rules. As noted above, in bringing these motions he was neither disruptive nor disrespectful to the trial court. Thus, his right to self-representation should not have been revoked simply because he sought to represent himself. These motions were just three of a number of substantive motions that Christian presented to the trial court. Indeed, the underlying substance of his severance motion was no different than the motions submitted by his codefendants’ counsel. Christian argued all of the motions and the trial court granted some and denied others, including the motions for severance and/or mistrial and for a continuance. The trial court considered these motions as legitimate at the time they were submitted and did not warn Christian that he was doing anything improper or incorrect. The fact that the trial court did consider all of these motions suggests that the trial court’s subsequent reliance on submission of the continuance, severance, and mistrial motions as a basis for revoking Christian’s right to self-representation was pretextual.

From the record, it appears that what the trial court was really concerned about was, in the context of joined trials, the possibility that Christian’s self-representation might affect the other defendants’ right to a fair trial. Presumably, one concern was that Christian would do something to disrupt the trial, either intentionally or unintentionally, at some later point. However, as the Court clearly stated in Faretta, the possibility that a criminal defendant representing himself might use the courtroom to deliberately disrupt their trial does not justify the preemptive denial of the right to self-representation. The appropriate remedy for the “possibility” that Christian might engage in disruptive behavior is the termination of the defendant’s self-representation only once such behavior has occurred. Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525. If we permit courts to disallow self-representation in joined criminal trials merely on the possibility that the pro se defendant will engage in disruptive behavior, the defendant’s inherent right to self-representation will be lost in the name of efficiency. A defendant’s right to self-representation should not fall waste to the desire to maintain joined trials. If the trial court was so concerned about Christian’s possible behavior, the trials could have been severed. By revoking Christian’s right to represent himself solely on the possibility that he would be disruptive, this trial court did exactly what the Court in Faret-ta explicitly stated a court should not do. At the time the trial court granted Christian the right of self-representation, the state, his codefendants, and the trial court understood that Christian had knowingly and voluntarily waived his right to counsel, that it was timely, and not for the purposes of delay. It was only when subsequently faced with the complicated problem of whether having one pro se defendant required severance of the three joined trials that the trial court revoked the right. Taking the easy way out by revoking Christian’s right to represent himself was an impermissible solution to this problem. On these facts, the trial court, having once granted Christian the right to represent himself, abused its discretion when it subsequently revoked that right.

Therefore, I dissent.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Page.

ANDERSON, Paul H., Justice

(dissenting).

I join in the dissent of Justice Page.

      . Both parties interpret this statement as a reference to appellant's escape from the Mower County Jail.

      . Powers was convicted of premeditated first-degree murder and other crimes, and his convictions were affirmed by this court. State v. Powers, 654 N.W.2d 667, 671-72 (Minn.2003). David Christian was convicted of second-degree unintentional felony murder and of first-degree assault, and his convictions were affirmed by the court of appeals. State v. Christian, No. C5-01-1840, 2002 WL 31415382, at *3, *9 (Minn.App. Oct.29, 2002), rev. denied (Minn. Dec. 30, 2002).

      . The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI.

      . Similarly, the issue of when a motion for self-representation is "untimely,” so as to activate the district court’s discretion, has not been addressed by this court. In Richards I, we said that a self-representation motion may be denied if it is not timely filed, but the motion there was made weeks before jury selection. 456 N.W.2d at 263.

      . In other contexts, circuit courts have held that voir dire is "an integral component of trial,” United States v. Ford, 824 F.2d 1430, 1438 (5th Cir.1987), and "a delicate process whose outcome can be critical to the eventual trial," United States v. Dees, 125 F.3d 261, 268 (5th Cir.1997). The United States Supreme Court has held that voir dire is “a critical stage of the criminal proceeding” and that " ‘trial commences at least from the time when the work of empanelling the jury begins.’ ” Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (quoting Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)).

      . Appellant also claims that the district court improperly rejected his severance motion, but this argument is similarly flawed: the motion was predicated on appellant representing himself. When, the district court ended appellant’s self-representation, his severance motion was left with no basis.

      . While the trial court indicated that Christian "apparently brought [his right to proceed pro se] to the court's attention,” it is not at all clear from the record that he did so. The record suggests that the trial court may have raised the issue in the first instance. Notwithstanding this lack of clarity when discussing this issue, I will, for ease of discussion, refer to Christian's self-representation motion.

      . These questions continued over nine pages of transcript.

      . This response is not surprising given the complexity of the trial and the fact that Christian had less than 24 hours to prepare.

      . It is important to note that at this point Orput is mischaracterizing what Voss argued. It is quite clear from the record that Voss never stated or implied that Christian should not have been granted the right to proceed pro se. Rather, Voss argued that once Christian became a pro se defendant his trial needed to be severed from the other defendants.

      .Christian first voiced his dissatisfaction with trial counsel on January 13, 2001, and so it is unclear to me how the trial court could find that Christian's assertion of his right of self-representation was for the purposes of delay.

      . It should not go unstated that, to the extent the trial court’s reason for revoking Christian’s self-representation was that Christian, representing himself pro se, might intentionally act out in ways that would compromise the other defendants' rights, the potential for that conduct existed whether Christian was represented by counsel or proceeded pro se.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    CITY OF BARNUM, Respondent, v. Azzmi O. SABRI, Appellant.
    No. CX-02-581.
    Court of Appeals of Minnesota.
    March 4, 2003.

      Jordan S. Kushner, Minneapolis, MN, for appellant.
    Paul D. Reuvers, Kafi C. Linville, Iver-son Reuvers LLC, Bloomington, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge, STONEBURNER, Judge, and ANDERSON, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges the denial of his motion for relief from judgment, arguing that the district court erred by ruling that Minn. R. Civ. P. 60.02(e), which allows relief from a judgment if it is no longer equitable for the judgment to have prospective application, does not apply where a change in circumstances occurs due to voluntary actions by the moving party. Appellant also argues that the district court abused its discretion by denying the motion without (1) considering all of the evidence before concluding that a change in circumstances has not occurred and (2) addressing appellant’s alternative request for relief under Minn. R. Civ. P. 60.02(f). We reverse and remand.

FACTS

Appellant Azzmi Sabri owns a dome-shaped building in Barnum, Minnesota. Beginning in 1996, respondent City of Barnum (the city) sent notices to Sabri regarding the deteriorating condition of the building. Specifically, Sabri was issued citations for violating Barnum City Ordinances 81 and 82, because his building had been abandoned and neglected. With its broken windows, unsafe deck, and general lack of security, the building presented a public safety risk to children from the area. Sabri did not respond, and the property’s condition continued to deteriorate.

On March 4, 1998, the city issued an order, pursuant to Minn.Stat. § 463.17 (1996), directing Sabri to repair the building within 60 days. In April 1998, Sabri denied the allegations and claimed that the order failed to state any cause of action. Sabri also did not make any repairs.

On July 7, 2000, the city moved the district court for summary enforcement of the March 4,1998, order requiring repairs. A hearing was set for August 17, 2000, but the record lacks evidence that Sabri and his attorney were notified of the hearing. Neither Sabri nor his attorney appeared at the August 17, 2000, hearing. Following the hearing, the district court granted the city’s motion and entered judgment against Sabri on August 22, 2000. Finding that Sabri failed to correct the hazardous conditions on his property in response to the city’s order and that the building continued to be a hazard to public safety, the district court authorized the city to raze the building. The record shows that copies of the order were sent to Sabri and his attorney. Sabri did not appeal this judgment.

At its November 13, 2000, meeting, the city council voted to move forward with plans for demolition and to provide Sabri a list of requirements, which, if met, would halt plans to raze the building. Sabri was required to obtain the services of a civil engineer, complete the necessary repairs within 60 days, provide the city with the list of repairs and estimated costs, and post a performance bond. The list was sent to Sabri’s counsel on November 22, 2000. The city contends that Sabri did not comply with these requirements.

On September 22, 2001, Sabri learned that the demolition of his building was imminent. On September 25, 2001, Sabri moved to vacate all orders and judgments on the ground that he was never properly served with a complaint or notice of the proceedings in this matter. Sabri also sought a temporary restraining order and injunction, challenging the city’s right to destroy the building and maintaining that repairs to the property had been made. The district court rejected Sabri’s claim of insufficient notice, because he was represented by counsel when the court heard the city’s summary enforcement motion on August 17, 2000. The district court denied Sabri’s motion for a temporary injunction as moot, because the city agreed to postpone the demolition until Sabri could be heard -at the city council meeting on October 8, 2001.

At the meeting, Sabri presented his arguments against razing the building. Dennis Johnson, the owner of the company that built the dome-shaped building, addressed the design and explained that Sa-bri’s property was structurally sound and only needed nonstructural repairs. Sabri, a civil engineer and owner of a construction company, also testified that the building was in sound structural condition. Sa-bri’s brother testified about the numerous repairs that he had made to the building, submitting receipts and photographs showing the repairs. The city council scheduled another meeting to consider the matter further.

At its October 15, 2001, city council meeting, the city presented testimony from Robert Lorvick, the zoning officer who initiated the proceedings against Sa-bri. Lorvick testified that Sabri’s building remained a safety hazard. The city council voted to raze the building.

On October 18, 2001, Sabri moved for relief from judgment, pursuant to Minn. R. Civ. P. 60.02(e) and (f). Sabri submitted affidavits providing his professional opinion about the structural condition of the building and his brother’s account of repairs made to the building, tapes of the city council hearings, and pamphlets describing dome-shaped structures. Sabri also presented affidavits of two Barnum residents who were interested in leasing Sabri’s building for their antique store. In its opposition to Sabri’s motion, the city submitted Lorvick’s affidavit, stating that Sabri’s building remained a safety hazard.

After concluding that relief from judgment may not be granted where the moving party brings about the change in circumstances prompting the requested relief, the district court determined that Sabri failed to show that he was entitled to relief under Minn. R. Civ. P. 60.02(e), and denied Sabri’s motion. The district court did not explicitly address Sabri’s request for relief under Minn. R. Civ. P. 60.02(f). This appeal followed.

ISSUES

I. Does Minn. R. Civ. P. 60.02(e) allow relief when the changed circumstances prompting the request for relief resulted from the voluntary actions of the moving party?

II. Did the district court abuse its discretion by failing to consider all of the evidence of changed circumstances?

III. Did the district court abuse its discretion by failing to consider the application of Minn. R. Civ. P. 60.02(f)?

ANALYSIS

I.

Sabri first challenges the district court’s determination that relief under Minn. R. Civ. P. 60.02(e) is not available to a moving party who voluntarily brings about the change in circumstances. Questions of civil procedure present issues of law, which we review de novo. Wilkie v. Allied Van Lines, Inc., 398 N.W.2d 607, 610 (Minn.App.1986).

Minn. R. Civ. P. 60.02(e) provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representatives from a final judgment (other than a marriage dissolution decree), order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons: * * *
(e) The judgment has been satisfied, released, or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application [.]

(Emphasis added.) Rule 60.02(e) represents the historic power of the court of equity to modify its decree in light of changed circumstances. Jacobson v. County of Goodhue, 539 N.W.2d 623, 625 (Minn.App.1995) (citing System Fed’n No. 91 v. Wright, 364 U.S. 642, 645-46, 81 S.Ct. 368, 370-71, 5 L.Ed.2d 349 (1961) (construing federal equivalent of Minn. R. Civ. P. 60.02(e))), review denied (Minn. Jan. 12, 1996); see also 2A David F. Herr & Roger S. Haydock, Minnesota Practice § 60.24 (1998) (discussing Minn. R. Civ. P. 60.02(e)). Rule 60.02(e) is directly applicable to injunctions “where conditions have changed” and can apply to “any judgment that has prospective effect.” Herr & Hay-dock, supra, § 60.24.

Here, while the August 22, 2000, judgment is not an injunction, it has a similar prospective effect of authorizing the city to raze Sabri’s building because of its unsafe condition. Rule 60.02(e), therefore, is not inapplicable simply because the district court did not issue an injunction. The burden of proof in a proceeding under Rule 60.02 is on the party seeking relief. See generally, Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn.1988) (reversing district court’s denial of motion for relief under what is now Minn. R. Civ. P. 60.02(a) because party seeking relief “satisfied her burden”). In the absence of changes in the relevant decisional or statutory law, it was Sabri’s burden to establish that the operative facts have changed so that it is no longer equitable that his building be razed.

The district court, however, held that relief under Rule 60.02(e) may not be granted unless the change in circumstances is unforeseeable and beyond the reach of the parties. But the cases cited by the district court are inapposite because they involve attempts to vacate a consent decree. See Benjamin v. Malcolm, 156 F.R.D. 561, 565-66 (S.D.N.Y.1994) (denying city’s request to vacate prior consent decree to employ food production company because city decided to employ another company to revitalize local economy); see also Phila. Welfare Rights Org. v. Shapp, 602 F.2d 1114, 1119-20 (3d Cir.1979) (explaining strict standard for reopening consent judgment applies because of its similarities to contract voluntarily undertaken), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980). A consent decree, while prospective in its effect, is the product of a negotiated agreement similar a contract. Phila. Welfare Rights Org., 602 F.2d at 1119-20; Elsen v. State Farmers Mut. Ins. Co., 219 Minn. 315, 319, 17 N.W.2d 652, 655 (1945) (describing consent decree as “mere agreement of the parties under sanction of the court” to be interpreted as agreement). A consent decree is not a judicial determination of the rights of the parties and does not represent the judgment of the court, but merely records a preexisting agreement of parties. Hentschel v. Smith, 278 Minn. 86, 94, 158 N.W.2d 199, 205 (1967).

The judgment at issue here is readily distinguishable, because it is a judicial determination of the parties’ rights. The parties do not cite, nor do we find, any state or federal legal authority for the proposition that Rule 60.02(e) is inapplicable where a party voluntarily corrects the condition that gave rise to the judgment, as Sabri claims to have done here. On the contrary, this court, based on the federal interpretation of Fed.R.Civ.P. 60(b)(5), has adopted an interpretation of Rule 60.02(e) that provides the district court with “broad equitable discretion to modify a judgment in light of changed circumstances.” Jacobson, 539 N.W.2d at 625 (emphasis added). We, therefore, reverse the district court’s determination that Minn. R. Civ. P. 60.02(e) is per se inapplicable where the party seeking relief has created the change in circumstances based on which relief is sought.

II.

Sabri also argues that the district court should consider all of the evidence of a change in circumstances. To prevail under Minn. R. Civ. P. 60.02(e), a moving party must show that a present challenge to an underlying order would have merit. See In re Welfare of B.J.J., 476 N.W.2d 525, 527 (Minn.App.1991).

The August 22, 2000, judgment authorized the city to destroy Sabri’s building under Minnesota’s hazardous-building statute, which authorizes the destruction of private property without compensation when a property owner fails to take steps to make needed repairs. Minn.Stat. §§ 463.15-.261 (2000); Village of Zumbrota v. Johnson, 280 Minn. 390, 394, 161 N.W.2d 626, 628-29 (1968); Ukkonen v. City of Minneapolis, 280 Minn. 494, 499-500, 160 N.W.2d 249, 252-53 (1968). The propriety of the district court’s judgment at the time it was rendered in August 2000 is not disputed. But the issue presented by Sabri’s Rule 60.02(e) motion is whether repairs to the property resulted in changed conditions such that prospective application of the judgment authorizing demolition of the property is no longer equitable. See Minn. R. Civ. P. 60.02(e); Jacobson, 539 N.W.2d at 625.

The August 22, 2000, judgment was issued pursuant to the district court’s determination that the dilapidated condition of Sabri’s building created a hazard to public safety and health. Evidence of the dilapidated condition was uncontested, because neither Sabri nor his counsel appeared at the August 17, 2000, hearing. In contrast, the evidence of changed circumstances was controverted. In support of his motion for relief from judgment, Sabri presented evidence of repairs made to comply with the city’s proposed alternative to executing the judgment and razing the building. Sabri also presented evidence of the improved condition of the building, including photographs and receipts of the numerous repairs made since August 2000. The city countered that the condition of the building remained the same, relying on Lor-vick’s October 15, 2001, inspection of the building.

In denying Sabri’s motion, the district court relied exclusively on the unanimous vote of the city council taken after the city council’s hearing and 'site visit on October 15, 2001. Finding the city council’s vote dispositive of the motion for relief from judgment, the district court reasoned that, because the August 22, 2000, judgment was based upon the city council’s determination that the building should be razed, resolution of the motion for relief from judgment should be based on the city’s determination that circumstances have not changed. Rather than conducting an independent review of the evidence presented by both parties to determine whether the evidence presented by Sabri would support a meritorious challenge to the August 22, 2000, judgment, the district court simply ratified the city council’s decision. In doing so, it did not fulfill its responsibility to determine independently whether Rule 60.02(e) had been satisfied.

Under Rule 60.02(e), the main objective is to determine whether changed circumstances exist and, if so, whether they render it inequitable for the judgment to have prospective application. See e.g., Jacobson, 539 N.W.2d at 626 (court’s prior order was no longer equitable in light of a changed legal precedent). Whether it is equitable for a judgment to continue to have prospective application must be determined on a case-by-case basis and requires courts to strike a

delicate balance between the sanctity of final judgments * * * and the incessant command of a court’s conscience that justice be done in light of all the facts.

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988) (emphasis in original). As a result of its determination that Minn. R. Civ. P. 60.02(e) did not apply in this case, the district court did not determine (1) whether Sabri had actually corrected the conditions that were the basis of the judgment authorizing the city to raze Sabri’s building and, if so, (2) whether, based on all of the facts of this case, it no longer would be equitable to give the judgment prospective application. See Jacobson, 539 N.W.2d at 625. We, therefore, remand for the district court to determine (1) whether Sabri has corrected the conditions that were the basis for the judgment and, if so, (2) whether, based on all of the facts of this case, it is no longer equitable for the August 22, 2000, judgment to have prospective application.

III.

Sabri next argues that the district court erred by failing to consider the application of Minn. R. Civ. P. 60.02(f). Sabri cited Rules 60.02(e) and (f) as bases for relief. Although the district court did not specifically address Rule 60.02(f), this omission was not erroneous in light of our ruling that the facts of this case must be analyzed under Rule 60.02(e).

Relief may be granted under Rule 60.02(f) for “any other reason justifying relief from the operation of the judgment.” Anderson v. Anderson, 288 Minn. 514, 518, 179 N.W.2d 718, 722 (1970). Clause (f) of Rule 60.02 is a residual clause, designed to afford relief only under exceptional circumstances not addressed by clauses (a) through (e). Id.; Sommers v. Thomas, 251 Minn. 461, 467, 88 N.W.2d 191, 196 (1958). Because relief could be granted under Minn. R. Civ. P. 60.02(e) if it is satisfied, clause (f) of Rule 60.02 does not apply.

DECISION

The district court may grant a motion for relief from judgment under Minn. R. Civ. P. 60.02(e) where the change in circumstances results from the actions of the movant, if the prospective application of the judgment no longer is equitable in light of all the facts. We, therefore, reverse and remand to the district court with instructions to conduct an independent review of the evidence and make findings addressing whether the completed repairs constitute a change in circumstances that renders the judgment authorizing the city to raze Sabri’s building inequitable.

Reversed and remanded.

      . In an affidavit, Sabri's brother stated that he made repairs to the building before September 2001 and that the city interfered with ongoing repairs to the property by telling the workers to stop because the building was to be destroyed.

      . Sabri also filed a writ of certiorari with this court, challenging the city council's decision. The writ was denied as moot, because the city agreed to postpone the demolition pending the resolution of the motion for relief from judgment in district court. See Sabri v. Barnum, No. C4-01-1795 (Minn.App. Oct. 25, 2001) (order).

      . "Three traditional reasons for ordering the modification or vacation of an injunction are (1) changes in operative facts, (2) changes in the relevant decisional law, and (3) changes in any applicable statutory law.” Jacobson, 539 N.W.2d at 626 n. 3 (quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2961, at 402-03 (2d ed.1995)) (footnotes omitted).

      . We note that the city did not act on the original order for over two years. Instead, the city allowed Sabri to make repairs as an alternative to razing the building. Thus, the city created the incentive for Sabri to bring about the change in circumstances that he claims as the basis for relief from judgment. We render no opinion, however, as to whether Sabri has succeeded in eliminating the hazardous conditions.


author: KAPSNER, Justice.

text:
    2003 ND 32
    D.D.I., INC., Danov Corporation, and Estuary Corporation, Florida corporations, Plaintiffs and Appellees, v. STATE of North Dakota, by and through its Tax Commissioner, Rick CLAYBURGH, Defendant and Appellant.
    No. 20020241.
    Supreme Court of North Dakota.
    March 5, 2003.

      William P. Pearce (appeared), Pearce & Durick, Bismarck, ND, Richard A. Hus-seini (argued), Geoffrey Schultz (appeared), James Edward Maloney (on brief), Maryanne Lyons (on brief), Baker Botts L.L.P., Gerard Desrochers (on brief), Houston, TX, for plaintiffs and ap-pellees.
    Donnita A. Wald (argued), Special Assistant Attorney General and Robert W. Wirtz (appeared), Special Assistant Attorney General, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] The State of North Dakota, by and through its Tax Commissioner (“Commissioner”), appealed from a judgment declaring the dividends received deduction in N.D.C.C. § 57-38-01.3(l)(g) unconstitutional and enjoining collection of the Commissioner’s assessments of corporate income tax against D.D.I., Inc., Danov Corporation, and Estuary Corporation (collectively referred to as “taxpayers”). We hold the dividends received deduction is not a valid compensatory tax and violates the Commerce Clause. We affirm.

I

[¶ 2] The taxpayers are Florida corporations engaged in managing assets, including oil and gas properties in North Dakota, and they pay North Dakota corporate income taxes on their net income from business done by them in North Dakota. The taxpayers also receive dividend income from other corporations conducting business either wholly or primarily outside of North Dakota. D.D.I. and Estuary initially excluded the dividends received from those other corporations in the calculation of their North Dakota corporate income tax for tax years 1989 through 1997, and Danov excluded those dividends for tax years 1989 through 1995. The Commissioner determined those dividends were business income subject to apportionment, and to the extent the Commissioner determined the dividends were includable in the taxpayers’ North Dakota apportioned income, the Commissioner applied the dividends received deduction under N.D.C.C. § 57-38-01.3(l)(g), which authorizes adjustments to a corporation’s taxable income and provides:

1. The taxable income of a corporation as computed pursuant to the provisions of the Internal Revenue Code of 1954, as amended, must be:
g. Reduced by dividends or income received by any person from stock or interest in any corporation, the income of which has been assessed and paid by a corporation under this chapter or sections 57-35.3-01 through 57-35.3-12, received by the taxpayer and included in the gross income within the income year if such corporation has reported the name and address of each person owning stock and the amount of dividends or income paid each such person during the year, but when only part of the income of any corporation has been assessed and income tax paid under this chapter or sections 57-35.3-01 through 57-35.3-12, only a corresponding part of the dividends or income received therefrom may be deducted.

[¶ 3] The taxpayers brought this declaratory judgment action against the Commissioner, claiming the dividends received deduction violated the Commerce Clause. The trial court concluded the dividends received deduction violated the “negative” or “dormant” aspect of the Commerce Clause because the deduction was similar to a North Carolina “intangibles tax” held unconstitutional in Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996). The Commissioner appealed.

II

[¶ 4] The Commerce Clause, U.S. Const, art. I, § 8, cl. 3, grants Congress the power “[t]o regulate commerce ... among the several States.” Although the Commerce Clause is phrased as a grant of power to Congress, it has long been understood to have a “negative” or “dormant” aspect that denies states the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce. Fulton, 516 U.S. at 330, 116 S.Ct. 848; Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). The Commerce Clause grants Congress plenary authority over interstate commerce to avoid the economic balkanization that had plagued relations among the colonies and later among the states under the Articles of Confederation. Oregon Waste, at 98, 114 S.Ct. 1345. The “negative” or “dormant” aspect of the Commerce Clause prohibits economic protectionism designed to benefit in-state economic interests by burdening out-of-state competitors. Fulton, at 330,116 S.Ct. 848.

[¶ 5] In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 288-89, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), the United States Supreme Court rejected a formalistic approach to Commerce Clause challenges to state taxes. See generally 1 Jerome R. Hellerstein and Walter Hellerstein, State Taxation ¶ 4.11[1] (3rd ed.2001). The Court recognized that entities engaged in interstate commerce were not immune from state taxation and said “ ‘ “[i]t was not the purpose of the commerce clause to reheve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business.” Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 82 L.Ed. 823 (1938).’ ” Complete Auto, at 288, 97 S.Ct. 1076 (quoting Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 108, 95 S.Ct. 1538, 44 L.Ed.2d 1 (1975)). The Court articulated a four-part test under which a state tax would be sustained against a Commerce Clause challenge if (1) the tax was applied to an activity with a substantial nexus with the taxing state, (2) the tax was fairly apportioned, (3) the tax did not discriminate against interstate commerce, and (4) the tax was fairly related to the services provided by the state. Complete Auto, at 279, 287, 97 S.Ct. 1076.

[¶ 6] Here, the dispositive issue under that four-part test is whether the dividends received deduction discriminates against interstate commerce. In Oregon Waste, 511 U.S. at 99, 114 S.Ct. 1345, the Court defined “discrimination” to mean “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” See also Fulton, 516 U.S. at 331, 116 S.Ct. 848 (quoting Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992) for principle that statute is discriminatory if it “tax[es] a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State”). State laws that facially discriminate against interstate commerce are subject to the “strictest scrutiny” and are “virtually per se invalid.” Fulton, at 331, 344, 116 S.Ct. 848; Oregon Waste, at 99-101,114 S.Ct. 1345.

[¶ 7] The Commissioner concedes the dividends received deduction facially discriminates against interstate commerce. A facially discriminatory tax may survive Commerce Clause scrutiny if the tax is a “compensatory” or “complementary” tax that requires interstate commerce bear a burden already born by intrastate commerce. Fulton, 516 U.S. at 331-33, 116 S.Ct. 848. The compensatory or complementary tax doctrine assures that “‘[w]hen the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates. The one pays upon one activity or incident, and the other upon another, but the sum is the same when the reckoning is closed.’ ” Fulton, at 332, 116 S.Ct. 848 (quoting Henneford v. Silas Mason Co., 300 U.S. 577, 584, 57 S.Ct. 524, 81 L.Ed. 814 (1937)). In Fulton, at 332-33, 116 S.Ct. 848, the Court enunciated three requirements for a valid compensatory tax:

First, “a State must, as a threshold matter, ‘identify] ... the [intrastate tax] burden for which the State is attempting to compensate.’ ” Oregon Waste, supra, at 103[, 114 S.Ct. 1345] (quoting Maryland v. Louisiana, 451 U.S. 725, 758[, 101 S.Ct. 2114, 68 L.Ed.2d 576] (1981)). Second, “the tax on interstate commerce must be shown roughly to approximate — but not exceed — the amount of the tax on intrastate commerce.” Oregon Waste, 511 U.S. at 103[, 114 S.Ct. 1345]. “Finally, the events on which the interstate and intrastate taxes are imposed must be ‘substantially equivalent’; that is, they must be sufficiently similar in substance to serve as mutually exclusive ‘proxies]’ for each other.” Ibid. (quoting Armco Inc. v. Hardesty, supra, at 643[, 104 S.Ct. 2620]).

[¶ 8] The Commissioner argues the dividends received deduction must be presumed constitutional because statutes enjoy a strong presumption of constitutionality in North Dakota, see MCI Telecomms. v. Heitkamp, 523 N.W.2d 548, 552 (N.D.1994), and the taxpayers have failed to prove beyond a reasonable doubt the dividends received deduction is unconstitutional. Although there is a presumption that statutes are constitutional, facially discriminatory restrictions on interstate commerce are subject to the strictest scrutiny and are virtually per se invalid, and the State must establish the requirements for a valid compensatory tax. Fulton, 516 U.S. at 332, 344, 116 S.Ct. 848; Oregon Waste, 511 U.S. at 99-101, 114 S.Ct. 1345.

[¶ 9] The Commissioner argues the dividends received deduction is a valid compensatory tax. The Commissioner argues the “intangibles tax” found unconstitutional in Fulton and the dividends received deduction in this case are not similar. We reject the Commissioner’s arguments.

[¶ 10] In Fulton, 516 U.S. at 328, 116 S.Ct. 848, the Supreme Court described North Carolina’s “intangibles tax” on the fair market value of corporate stock owned by North Carolina residents:

[A] corporation doing all of its business within the State would pay corporate income tax on 100% of its income, and the taxable percentage deduction allowed to resident owners of that corporation’s stock under the intangibles tax would likewise be 100%. Stock in a corporation doing no business in North Carolina, on the other hand, would be taxable on 100% of its value. For the intermediate cases, holders of stock were able to look up the taxable percentage for a large number of corporations as determined and published annually by the North Carolina Secretary of Revenue (Secretary). In 1990, for example, the Secretary determined the appropriate taxable percentage of IBM stock to be 95%, meaning that IBM did 5% of its business in North Carolina, with its stock held by North Carolina residents being taxable on 95% of its value.

[¶ 11] In Fulton, 516 U.S. at 334-36, 116 S.Ct. 848, North Carolina argued the “intangibles tax,” with its taxable percentage deduction, compensated for the burden of the general corporate income tax paid by corporations doing business in North Carolina. Because North Carolina had no general sovereign interest in taxing income earned out of state, however, North Carolina was required to identify some instate activity or benefit to justify the compensatory levy. Id. at 334, 116 S.Ct. 848. The Supreme Court rejected North Carolina’s argument that it could impose a compensatory tax on foreign corporations because they availed themselves of North Carolina’s capital markets. Id. at 335-36, 116 S.Ct. 848. The Court said “ ‘[permitting discriminatory taxes on interstate commerce to compensate for charges purportedly included in general forms of intrastate taxation would allow a state to tax interstate commerce more heavily than instate commerce anytime the entities involved in interstate commerce happened to use facilities supported by general tax funds.’ ” Id. at 335, 116 S.Ct. 848 (quoting Oregon Waste, 511 U.S. at 105 n. 8, 114 S.Ct. 1345). North Carolina failed to show the corporate income tax supported the maintenance of the capital market; it therefore failed to justify the use of the intangibles tax as replacement support for the market. Fulton, at 336, 116 S.Ct. 848.

[¶ 12] The Supreme Court rejected North Carolina’s claim that its intangibles tax was roughly approximate to, but did not exceed, the intrastate corporate income tax. Fulton, 516 U.S. at 336-38, 116 S.Ct. 848. The Court said the quantitative assessments necessary for the compensatory tax doctrine were difficult to apply to general forms of taxation:

When a corporation doing business in a State pays its general corporate income tax, it pays for a wide range of things: construction and maintenance of a transportation network, institutions that educate the work force, local police and fire protection, and so on. The Secretary’s justification for the intangibles tax, however, rests on only one of the many services funded by the corporate income tax, the maintenance of a capital market for the shares of both foreign and domestic corporations. To the extent that corporations do their business outside North Carolina, after all, they get little else from the State. Even, then, if we suppressed our suspicion that North Carolina actually funds its capital market through its blue sky fees, not its general corporate taxation, the relevant comparison for our analysis has to be between the size of the intangibles tax and that of the corporate income taxes component that purportedly funds the capital market.

Id. at 337-38, 116 S.Ct. 848.

[¶ 13] The Supreme Court also rejected North Carolina’s claim that its intangibles tax and its general corporate income tax fell on substantially equivalent events. Fulton, 516 U.S. at 338-44, 116 S.Ct. 848. The Court said it had found that equivalence only in the sales/use tax combination at issue in Silas Mason, but recent cases had demonstrated an extreme reluctance to recognize new compensatory categories. Fulton, at 338, 116 S.Ct. 848. The Court said the intangibles tax and general corporate income tax were different in a number of respects, including the parties ostensibly taxed, and those taxes did not satisfy the objective of the equivalent-event requirement to enable in-state and out-of-state businesses to compete on an equal footing. Id. at 340,116 S.Ct. 848.

[¶ 14] Here, N.D.C.C. § 57-38-01.3(l)(g) authorizes a dividends received deduction to a dividend recipient to the extent the dividend payor’s income was subject to North Dakota corporate income tax, but does not grant a dividends received deduction to a dividend recipient if the dividend payor’s income was not subject to North Dakota corporate income tax. The Commissioner argues the intrastate tax burden for which the dividends received deduction attempts to compensate is the North Dakota corporate income tax paid by a North Dakota corporation that distributes the already taxed corporate profits as a dividend. The Commissioner argues the dividends received deduction compensates for the tax already paid on North Dakota income by the North Dakota corporation paying that dividend. The Commissioner argues “[o]nly one level of North Dakota income tax should be imposed on North Dakota income. The [dividends received deduction] insures that, in the end, there is only one level of North Dakota income tax on North Dakota income. Interstate commerce, i.e., the dividend from [an out-of-state corporation] to [taxpayers] bears the same burden ... already borne by intrastate commerce, i.e., the dividend from [a North Dakota corporation] to [taxpayers].” The Commissioner offers the following comparative tax hypothetical, with a ten percent tax rate on North Dakota corporate income and on dividends:

North Dakota Corporation Out-of-State Corporation
Dividend Received by Taxpayers $100 $100
North Dakota Corporate Income Tax on Profits out of which Dividend is Paid $10 $0
Dividends Received Deduction $100 $0
Taxable Dividend O o r-H o
North Dakota Corporate Income Tax on Receipt of Dividend $0 $10
Total North Dakota Tax Paid By Dividend Payor Corporation and by Taxpayers $10 $10

[¶ 15] Although avoiding double taxation of North Dakota income is a permissible goal, the Commissioner has not identified any specific in-state activity or benefit received by the taxpayers to justify the compensatory levy on their dividends received from out-of-state corporations. The State of North Dakota does not have a general sovereign interest in taxing income earned out-of-state and must identify some specific in-state activity or benefit to justify a compensatory levy. Fulton, 516 U.S. at 334, 116 S.Ct. 848. The Commissioner has failed to establish such an in-state benefit to the taxpayers.

[¶ 16] The Commissioner’s comparative tax hypothetical ignores the corporate income tax that an out-of-state corporation’s state might impose on the out-of-state corporation’s profits, which effectively imposes a double layer of tax on the out-of-state income but not on the in-state income. The risk of multiple taxation may be considered in assessing a Commerce Clause claim, see Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 444, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980); 1 Hellerstein and Hellerstein, ¶ 4.08[l][a], and in considering whether a tax is discriminatory, the United States Supreme Court has applied the “internal consistency” doctrine. Armco Inc. v. Hardesty, 467 U.S. 638, 644, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984). See American Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266, 283, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987); Tyler Pipe Indust. Inc. v. Washington State Dep’t of Rev., 483 U.S. 232, 241, 107 S.Ct. 2810, 97 L.Ed.2d 199 (1987). See generally 1 Hellerstein and Hellerstein, ¶ 4.15[1]. The internal consistency doctrine requires that the imposition of a tax identical to a challenged tax in every state would add no burden to interstate commerce that intrastate commerce did not also bear, and looks at the structure of the challenged tax to see whether its identical application by every state would place interstate commerce at a disadvantage against intrastate commerce. Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 185, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995). The internal consistency test does not require other states to actually impose a similar tax to place a burden on interstate commerce; rather, a tax that exposes a taxpayer to a risk of multiple taxation is invalid under the Commerce Clause. See Scheiner, at 285, 107 S.Ct. 2829; Tyler Pipe, at 241, 107 S.Ct. 2810; Armco, at 644-45, 104 S.Ct. 2620. See also 1 Hellerstein and Hellerstein, at ¶ 4.15[l][a].

[¶ 17] Here, when the effect of the corporate income tax that an out-of-state corporation’s state might impose on the out-of-state corporation’s profits is considered, the dividends received deduction does not avoid double taxation for out-of-state corporate income and does not roughly approximate the tax on intrastate commerce under the Commissioner’s comparative tax hypothetical. We conclude the dividends received deduction does not satisfy the first two elements of the compensatory tax doctrine, and we need not address whether the interstate and intrastate taxes are imposed on substantially equivalent events. See Fulton, 516 U.S. at 340, 116 S.Ct. 848 (stating general corporate income tax and intangibles tax are different in a number of obvious aspects, including the parties ostensibly taxed). We conclude the dividends received deduction is -not a valid compensatory tax.

III

[¶ 18] Relying on Oregon Waste, 511 U.S. at 100-01, 114 S.Ct. 1345 and New Energy Co. v. Limbach, 486 U.S. 269, 278, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988), the Commissioner nevertheless argues the dividends received deduction is valid because it serves a legitimate local purpose of preventing double taxation which cannot be served by reasonable nondiscriminatory alternatives.

[¶ 19] However, Oregon Waste does not apply an alternative commerce clause test for compensatory tax cases. In Oregon Waste, 511 U.S. at 100-01, 114 S.Ct. 1345 (quoting Limbach, 486 U.S. at 278, 108 S.Ct. 1803), the Court said if a state regulation discriminates against interstate commerce, the regulation is analyzed under the “virtually per se rule of invalidity,” and the regulation must be invalidated unless the State can “ ‘sho[w] that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.’ ” The Court said justifications for discriminatory restrictions on commerce must pass the “strictest scrutiny”, the State’s burden of justification is so heavy that facial discrimination by itself may be a fatal defect, and the compensatory tax doctrine “is merely a specific way of justifying a facially discriminatory tax as achieving a legitimate local purpose that cannot be achieved through nondiscriminatory means.” Oregon Waste, 511 U.S. at 100-02, 114 S.Ct. 1345. Under Oregon Waste, the compensatory tax doctrine was the test applied for analyzing justification of a facially discriminatory tax. Moreover, although avoiding double taxation of North Dakota income is a legitimate legislative goal, “the purpose of, or justification for, a law has no bearing on whether it is facially discriminatory.” Oregon Waste, at 100, 114 S.Ct. 1345. We have concluded the method employed by the State of North Dakota impermissibly discriminates against interstate commerce. Taxpayers have asserted and the Commissioner does not dispute there are nondiscriminatory means to accomplish the goal of avoiding double taxation on North Dakota corporate income.

IV

[¶ 20] We conclude the dividends received deduction is not a valid compensatory tax and impermissibly discriminates against interstate commerce; therefore, N.D.C.C. § 57-38-01.3(l)(g) violates the Commerce Clause of the United States Constitution and is invalid. We affirm the district court judgment.

[¶ 21] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

      . The Commissioner has not separately raised or argued the appropriateness of the injunc-five relief granted by the district court. We, therefore, do not address the issue.

      . Having declared subsection (g) unconstitutional has no effect on the remainder of the statute. See N.D.C.C. § 1-02-20. See also Montana-Dakota Utils. Co. v. Johanneson, 153 N.W.2d 414, 424-25 (N.D.1967).


author: NEUMANN, Justice.

text:
    2003 ND 35
    CITY OF JAMESTOWN, Plaintiff and Appellee, v. Paul TAHRAN, Defendant and Appellant.
    No. 20020238.
    Supreme Court of North Dakota.
    March 5, 2003.
    Rehearing Denied March 26, 2003.

      Paul Tahran, pro se, Jamestown, ND, defendant and appellant.
    Leo A. Ryan, Assistant City Prosecutor, Jamestown, ND, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Paul Tahran appeals from the district court’s judgment affirming his municipal court conviction for storage of junk. We affirm.

[¶ 2] In June 2001, neighbors complained to the Jamestown Police Department about trash and junk on Paul Tah-ran’s property. An officer issued a notice to Tahran to clean up the trash and junk after discovering a vehicle without a license plate, railroad ties, hubcaps, and other items “strewn about” Tahran’s property. Tahran told the officer he would take care of the items. On December 15, 2001, an officer was again dispatched to Tahran’s residence because of similar complaints. Officers reported railroad ties, “parted-out” motorcycles, tires, hubcaps, and miscellaneous machinery and bicycle parts. Tahran told the officer he did not have time to take care of the items. On December 27, 2001, Paul Tahran was charged with storage of junk, a class B misdemeanor, by the City of Jamestown. Tahran pled not guilty in municipal court and was convicted of the violation. Tahran appealed to the district court. On August 22, 2002, the district court conducted a second trial and affirmed the municipal court’s conviction. Tahran appeals.

[¶ 3] Tahran argues he is not guilty of violating the City of Jamestown’s ordinance because a city alderman and or a building inspector told his father the family could continue to run their business from their residential property and use the property to store and sell the “junk” despite a zoning change because their property was “grandfathered in.”

[¶ 4] We will reverse a criminal conviction only if, after viewing the evidence and all evidentiary inferences favorable to the prosecution, no rational fact finder could have found the defendant guilty beyond a reasonable doubt. State v. Greybull, 1998 ND 102, ¶ 23, 579 N.W.2d 161. The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence. State v. Fraser, 2000 ND 53, ¶ 3, 608 N.W.2d 244.

[¶ 5] In the City of Jamestown, it is “unlawful for any person to store, or permit the storage or accumulation of trash, rubbish, junk, junk automobiles or abandoned vehicles on any private property in the city except within a completely enclosed building or upon the business premises of a duly licensed junk dealer.” Jamestown City Code § 17-12. The City of Jamestown defines “junk” as “[p]arts of machinery or motor vehicles, unused furniture, stoves, refrigerators or other appliances, remnants of wood, metal or any other castoff material of any kind, whether or not the same could be put to any reasonable use.” Jamestown City Code § 17-10. We note that in his brief and at oral argument, Tahran referred to Jamestown City Code § 17-12 as a zoning ordinance. The plain language of the ordinance, however, indicates it is a criminal ordinance generally applicable throughout the City of Jamestown, and not a zoning ordinance.

[¶ 6] In the present case, Tahran neither disputes the sufficiency of evidence presented by the City of Jamestown nor does he argue the items found on his property do not fall within Jamestown’s definition of “junk.” Tahran instead argues he did not violate the ordinance because his father was told by city officials the business was “grandfathered in” and the family could therefore continue to store and sell the items on their property. The record, however, reveals Tahran presented no evidence to support this argument. At the second trial, Tahran was given the opportunity to testify, but declined. He raised the “grandfathering” argument in his closing statement without evidentiary support. Reviewing the record evidence in a light most favorable to the City of Jamestown, we conclude a rational fact finder could find Tahran guilty of violating Jamestown’s storage of junk ordinance beyond a reasonable doubt.

[¶ 7] The district court’s judgment affirming the municipal court’s conviction of Paul Tahran for the storage of junk is affirmed.

[¶ 8] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

      . We do not hold today that a pre-existing nonconforming use is necessarily exempt from the application of a criminal statute of this nature; the fact that we address the argument does not mean we agree it is correct.