author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael F. SWENSEN, a Minnesota Attorney, Registration No. 216847.
    No. A07-1131.
    Supreme Court of Minnesota.
    Nov. 15, 2007.
    Opinion Modified Upon Rehearing Jan. 1, 2008.

      Michael G. Swensen, Long Lake, MN, for Respondent.
    Patrick R. Burns, Office of Lawyers Professional Responsibility, St. Paul, MN, for Office Of Lawyers Professional Responsibility.
   OPINION

PER CURIAM.

This attorney discipline case arises out of a petition filed by the Director of the Office of Lawyers Professional Responsibility against respondent Michael F. Swen-sen, who was admitted to practice law in Minnesota on May 10, 1991. By order filed on July 23, 2007, we deemed the allegations of the petition admitted. Based on those allegations, we conclude that respondent violated Minn. R. Prof. Conduct 8.4(c) and 1.8(a) and that his misconduct warrants disbarment.

The Mound Property

Respondent represented L.J. in various real estate transactions from 1999 to 2004. Respondent and his wife, attorney Patricia Ryerson, advised L.J. to purchase an investment property located in Mound, Minnesota. Respondent and Ryerson proposed to L.J. that they would renovate the property and split the profits with her upon resale. L.J. purchased the property on May 19, 1999, for $235,000, and she later spent $63,744.11 on repairs and supplies. L.J. requested that the property be resold as initially agreed, but respondent and Ryerson repeatedly assured her that they would obtain refinancing for the property and purchase her interest. Respondent and Ryerson rented out the property beginning in September 1999, the proceeds from which were to be used to pay the mortgage. Instead, respondent and Ryer-son converted the rental income to their own use.

The property was foreclosed in February 2003 and purchased by an assignee of the mortgagee at a sheriffs sale the following month. Respondent told L.J. that he and Ryerson had obtained refinancing for the property, and he and Ryerson asked her to attend a closing on September 23, 2003. It was at the September 23 closing that L.J. first learned that the property was in foreclosure, that the redemption period would expire on September 27, and that the proposed “refinancing” consisted of selling the property to Mark O’Brien. L.J. initially objected to the transaction, but respondent and Ryer-son convinced her that the sale was the only means of avoiding loss of her entire interest upon expiration of the redemption period. L.J. sold the property to Mark O’Brien on September 26, 2003. Although the stated purchase price was $345,000, O’Brien received a $69,000 “seller’s equity gift” to which L.J. neither knowingly nor willingly agreed. The September 26 sale netted $56,778.83, $45,000 of which was paid to L.J. and $11,778.33 of which was paid to VR Construction, a company belonging to Ryerson that had no legal interest in the property.

The Minneapolis Property

Respondent and Ryerson also advised L.J. in 1999 to purchase an investment property located in Minneapolis. The two attorneys proposed that L.J. fund the purchase and renovation of the property and that they renovate the property and obtain refinancing in order to purchase L.J.’s interest. Respondent and Ryerson told L.J. that the investment would reduce her overall tax burden. L.J. purchased the property for $910,000 on September 23, 1999, and she later contributed an additional $48,000 to pay for property improvements.

Ryerson directed L.J. to sign a blank quit claim deed to the Minneapolis property in January 2000, explaining that the deed would only be filed to convey L.J.’s interest if L.J. died. Ryerson later completed the blank deed, making it appear that L.J. had conveyed to Ryerson a one-half interest in the Minneapolis property. Respondent notarized L.J.’s signature although he did not actually witness her sign the deed. The deed was recorded on November 29, 2001, without L.J.’s knowledge or consent. Respondent and Ryerson rented out the Minneapolis property from December 1999 to January 2003, the proceeds from which were to be used to pay the mortgage.

In September 2001, respondent drafted a contract for deed conveying the Minneapolis property in its entirety from Ryer-son to respondent’s father for $1,200,000. The contract for deed bore the forged signature of respondent’s father. Respondent and Ryerson used the contract for deed to secure a mortgage loan on the property to respondent’s father, with respondent misrepresenting to the mortgagee that his father had made regular payments under the contract for deed. Although respondent’s father never authorized respondent to act on his behalf in relation to the Minneapolis property, respondent signed the mortgage documents purporting to be his father’s attorney-in-fact.

The second mortgagee foreclosed on the Minneapolis property in October 2002. When L.J. contacted Ryerson upon receipt of the foreclosure pleadings, Ryerson told L.J. that she and respondent had obtained refinancing and that there was no reason for concern. Respondent later informed L.J. that a buyer had been found and that her investment would be repaid out of the sale proceeds. On January 16, 2003, respondent directed L.J. to sign a quit claim deed transferring her interest in the property to Ryerson. On the same day, respondent and Ryerson conveyed the Minneapolis property by warranty deed to respondent’s father, using the mortgage loan obtained with the September 2001 contract for deed to fund the purchase. At closing, Ryerson received more than $955,000 as the “payoff’ on the contract for deed to respondent’s father. It has been deemed admitted that “the contract for deed was a sham transaction" used, together with the quit claim deeds, “to divest [L.J.] of her interest in the property.” Ryerson was issued checks totaling $132,388.07 in payment for her purported interest in the September 2001 contract for deed. Although L.J. had invested more than $197,000 in the property, respondent and Ryerson paid her none of the closing proceeds but instead converted the proceeds to their own use. Ryerson subsequently directed respondent’s father to sign a blank quit claim deed of the Minneapolis property, which Ryerson completed to transfer ownership of the property to Mark O’Brien, the same third party who had purchased the Mound property.

Ensuing Litigation and Disciplinary Action

L.J. brought an action against respondent, Ryerson, and Mark O’Brien in 2004, seeking recovery of the Mound and Minneapolis properties and damages for fraud and breach of fiduciary duties. As a result of a June 2005 settlement agreement among respondent, Ryerson, and L.J., respondent’s father reconveyed the Minneapolis property to L.J.

Charges of unprofessional conduct were issued against respondent on January 22, 2007, and a panel of the Lawyers Professional Responsibility Board found probable cause for public discipline. Pursuant to the panel’s direction, the Director filed a petition for disciplinary action dated May 24, 2007, and respondent admitted service of the petition on June 1. Respondent’s answer was due 20 days after service of the petition under Rule 13(a), Rules on Lawyers Professional Responsibility (RLPR). He failed to file an answer by the deadline, and the Director alleges that respondent was notified twice, once by telephone, that his answer was overdue. The Director moved for summary relief on July 20, and we granted the Director’s motion, ordering that the allegations in the petition be deemed admitted. See Rule 13(b), RLPR. On July 31, respondent filed an answer, in which he generally denied or disclaimed knowledge of most of the allegations in the petition, and also filed a motion for extension of time to answer. The Director opposed respondent’s motion. In our order of August 13, 2007, we construed respondent’s motion as a motion to vacate the order for summary relief, and we denied the motion.

I.

An attorney against whom a petition for disciplinary action has been filed has 20 days after service of the petition to file an answer. Rule 13(a), RLPR. If the attorney fails to file an answer within the 20-day period, the allegations in the petition “shall be deemed admitted.” Rule 13(b), RLPR. Respondent filed his motion to vacate and proposed answer after we had granted the Directors motion for summary relief and more than eight weeks after respondent was served with the petition. Neither respondent nor the Director cites any authority for vacating, over the objection of the Director, an order of this court deeming facts to be admitted as a result of a failure to answer in a timely manner. In addition to failing to offer a credible explanation for his delay, respondents proposed answer is effectively a general denial and provides no response to the detailed and disturbing facts alleged by the Director. Under these circumstances, we decline to vacate our order for summary relief, and we accept the facts as stated in the Directors petition as controlling.

II.

Because we have ordered that the allegations in the Directors petition be deemed admitted and there is no basis for vacation of that order, the only issue before us is the appropriate discipline to impose. Respondent requests that any discipline imposed be limited to no more than a two-year suspension. The Director recommends that the respondent be disbarred. We agree with the Director.

The purposes of imposing discipline for attorney misconduct are the protection of the public, the protection of the judicial system, and the deterrence of future misconduct by the disciplined attorney and other attorneys. In re De Rycke, 707 N.W.2d 370, 373 (Minn.2006). Punishment of the attorney is not a goal of the disciplinary process. In re Wyant, 533 N.W.2d 397, 401 (Minn.1995). We consider four factors in determining the appropriate disciplinary sanction: “ 1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct, 3) the harm to the public, and 4) the harm to the legal profession.’” De Rycke, 707 N.W.2d at 373-74 (quoting In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004)).

Minnesota Rule of Professional Conduct 8.4(c) states that “[i]t is professional misconduct for a lawyer to * * * engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” We conclude that respondent violated Rule 8.4(c) by converting to his own use rental payments from the Mound property that were supposed to be paid toward L.J.’s mortgage, converting sale proceeds from the Minneapolis property that were due L.J., and inducing L.J. to transfer her property interest in the Minneapolis property to Ryerson by misrepresenting to L.J. that the property was being sold and that her investment would be returned from the sale proceeds. This conduct is akin to the misappropriation of client funds, which “usually merits the sanction of disbarment unless the attorney presents clear and convincing evidence of substantial mitigating circumstances which show that the attorney did not intentionally convert the funds.” In re Swerine, 513 N.W.2d 463, 466 (Minn.1994).

We conclude that respondent also violated Rule 8.4(c) by misrepresenting to L.J. that he and Ryerson had obtained refinancing for the Mound property, misrepresenting to the mortgagee of the Minneapolis property that his father had made payments under the contract for deed, fraudulently drafting the contract for deed for the Minneapolis property, falsely notarizing L.J.’s signature on the quit claim deed to the Minneapolis property, and signing the Minneapolis property mortgage documents as his father’s attorney-in-fact without authorization to do so. See, e.g., In re Samborski, 644 N.W.2d 402, 407 (Minn.2002) (disbarring attorney where “[i]n addition to misappropriating client funds, [the attorney] made misrepresentations and gave false documents to clients to conceal the misappropriation”). As in In re Graham, in which we disbarred an attorney for misconduct that included the fabrication of documents, “[t]he nature of respondent’s misconduct is rooted in dishonesty and deceit.” 503 N.W.2d 476, 479 (Minn.1993).

We further conclude that respondent violated Minn. R. Prof. Conduct 1.8(a) by engaging in business transactions with L.J., his client, on unreasonable and undisclosed terms, without advising her in writing to seek independent legal counsel, and without obtaining her written consent to the transactions. Violations of Rule 1.8(a) “merit serious disciplinary sanctions.” In re Olsen, 487 N.W.2d 871, 874 (Minn.1992). In Wyant, for example, we disbarred an attorney for borrowing over $1.4 million from clients for his own benefit and for the benefit of his law firm and a corporation of which he was a part owner. 533 N.W.2d at 398, 402. The financial condition of the borrowers rendered the loans unreasonable, and the attorney failed to disclose his adverse interests, advise his clients to seek independent counsel, or obtain written consent to the conflicts of interests. Id. at 398-99. Moreover, in In re Pearson we indefinitely suspended an attorney for, inter alia, “entering into a business transaction with a client without disclosing conflicting and/or differing interests.” 352 N.W.2d 415, 419 (Minn.1984).

Viewed in its totality, respondents misconduct is similar to that of the attorney in In re Peterson, 456 N.W.2d 89 (Minn.1990). In Peterson, we disbarred an attorney who induced his client, a 20-year-old who had sustained serious head injuries, to lend $100,000 to the attorneys real estate company. Id. at 90-91, 93. The attorneys conflict of interest was not disclosed, the terms of the transaction were unreasonable, and the attorney did not discuss the arrangements with the clients parents. Id. at 90. The attorney also made false representations to third parties and forged the signatures of bank officers on a document. Id. at 91-92. As in Peterson, “the nature and cumulative weight” of respondents misconduct lead us to conclude that disbarment is warranted. Id. at 93.

We reject respondent’s attempt to blame Ryerson for his wrongdoing. In Wyant, the attorney disclaimed responsibility for the loans his clients made to his law firm and to his corporation, blaming his business partner for the improprieties. 533 N.W.2d at 398-99. We found the attorney’s “attempt to shift the blame to his partner * * * unpersuasive,” emphasizing that the fact that the attorney’s partner “was more directly involved in the solicitation and execution of the loans * * * does not absolve [the attorney] for his own involvement.” Id. at 401. We noted that the attorney “was present at some point in some of the discussions * * * regarding the loans” and was aware that the terms of the loans were unfair and that the necessary disclosures had not been made. Id. at 398^100. Similarly, under respondent’s theory, even if Ryerson is more culpable than respondent, that greater culpability does not absolve respondent of responsibility for his misdeeds committed in concert with her. Even apart from his cooperation with Ryerson, however, respondent himself made misrepresentations to L.J. and to the mortgagee of the Minneapolis property, falsely notarized L.J.’s signature, and obligated his father under a mortgage without authorization. In the aggregate, respondent’s violations of the rules of professional conduct clearly warrant disbarment.

III.

An attorney’s “failure to answer the petition with any mitigating circumstances bars our consideration of such issues.” In re Ladd, 463 N.W.2d 281, 283 (Minn.1990). Respondent did note at oral argument that he has never previously been subject to disciplinary action, and lack of disciplinary history can be a mitigating factor in a disciplinary proceeding. See, e.g., In re Hanvik, 609 N.W.2d 235, 241 (Minn.2000). But even if we were to take respondents claim into account, “lack of previous discipline alone will not mitigate severe misconduct.” In re Pugh, 710 N.W.2d 285, 289 (Minn.2006).

Therefore, we order that respondent Michael F. Swensen be, and hereby is, disbarred.

      . A separate petition for disciplinary action was filed against Ryerson on July 17, 2007. We express no opinion here as to whether Ryerson’s actions violate the rules of professional conduct.

      . The petition filed by the Director suggests, but does not specifically state, that the mortgage loan used to fund the purchase was the loan obtained with the contract for deed.

      . This case is distinguishable from In re Wood, in which we granted an attorney’s request to file an answer after we had ordered that the allegations in the petition be deemed admitted, because in Wood the Director did not oppose the attorney's request. In re Wood, 716 N.W.2d 341, 344 (Minn.2006).

      . Minnesota Rule of Professional Conduct 1.8(a) provides:
      (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:
      (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
      (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
      (3)the client gives informed consent, in a document signed by the client separate from the transaction documents, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

      . We recognize that client vulnerability, which was a factor in the Peterson analysis, is not present here. See Peterson, 456 N.W.2d at 90-91, 93. But this difference is not disposi-tive, as the absence of client vulnerability in this case does not excuse respondent’s grievous misconduct.

      . We also note that many of the allegations, now deemed admitted, against respondent involve serious misconduct that is in no way dependent on the existence of an attorney-client relationship. "We have held in the past that a lawyers ethical obligations are not limited to actions occurring in the practice of law, but extend to business dealings unconnected with the practice of law.” In re Pugh, 710 N.W.2d 285, 289 (Minn.2006).


source: Caselaw Access Project

author: MEYER, Justice. AJSTDERSON, RUSSELL A., Chief Justice PAGE, Justice GILDEA, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Dirk Lionel GOELZ, Appellant.
    No. A06-2424.
    Supreme Court of Minnesota.
    Dec. 27, 2007.

      David John Risk, Caplan Law Firm, PA, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, Peter Reed Marker, Asst. Attorney General, St. Paul, MN, David Jon Torgelson, Renville County Attorney, Olivia, MN, for Respondent.
   OPINION

MEYER, Justice.

A Renville County jury found appellant Dirk Lionel Goelz guilty of first-degree domestic abuse murder and first-degree manslaughter (heat-of-passion) for the shooting death of his girlfriend, Kerri Robinson. The district court entered judgment on the domestic abuse murder conviction and sentenced Goelz to life in prison. In this direct appeal we are asked to determine the admissibility of certain evidence to prove the existence of a “past pattern of domestic abuse” under Minn. Stat. § 609.185(a)(6) (2006). Goelz argues that: (1) the district court abused its discretion by admitting evidence of Goelz’s ex-wife obtaining an order for protection (OFP) and Goelz’s violation of that order; (2) the district court committed plain error by admitting evidence of Goelz’s “faked suicide”; and (3) the district court erred in refusing to dismiss ■ the indictment. We affirm Goelz’s conviction.

On January 30, 2006, Goelz shot and killed his girlfriend, Kerri Robinson, with a shotgun in Goelz’s home. Kerri and two of her children had been living with Goelz since September 2005. Kerri planned to move that day from Goelz’s house to another house she had rented. That afternoon Kerri was waiting at Goelz’s house for her son to return home from school. According to Goelz, he and Kerri became involved in an argument and she threatened to publicly accuse him of molesting a teenage girl three days earlier while Kerri and Goelz were attending a party. At this point, Goelz retrieved a shotgun from his bedroom, loaded it with three shells, left the bedroom, and fired the gun at Kerri as she stood at the steps leading to the basement. As Kerri retreated into the basement, Goelz followed her and fired the gun two more times. Goelz then left the basement, went upstairs, and attempted to take his own life with the shotgun, but was unsuccessful. Kerri died as a result of gunshot wounds.

Goelz then drove to his brother’s house and told him that he had shot Kerri. After a brief conversation, in which Goelz told his brother he planned to commit suicide, Goelz grabbed a handgun that his brother had on the counter in his kitchen, left the house, and drove away. His vehicle ran out of gas near the home of his friends, Jim and Paula Busack. He walked to their house and told them that he had shot Kerri. The Busacks convinced Goelz to turn himself over to the authorities, and Paula Busack then drove Goelz to the Renville County Law Enforcement Center. Paula went in and told the authorities about the shooting. While outside, Goelz shot himself once in the chest with the handgun he had taken from his brother’s house. Police officers apprehended Goelz shortly thereafter.

On January 31, 2006, the State charged Goelz with intentional murder in the second degree in violation of Minn.Stat. § 609.19, subd. 1(1) (2006). The State em-panelled a grand jury in March 2006. The grand jury indicted Goelz for murder in the first degree (premeditated) under Minn.Stat. § 609.185(a)(1) (2006), murder in the first degree (domestic abuse) under Minn.Stat. § 609.185(a)(6), and murder in the second degree (intentional) under Minn.Stat. §§ 609.19, subd. 1(1), and 609.11, subd. 5(a) (2006).

At trial, the State offered evidence that Goelz had committed acts of domestic abuse against Kerri, Kerri’s 15-year-old daughter, Cassandra Robinson, and his ex-wife, Denise Goelz. The evidence of domestic abuse against Kerri and Cassandra consisted of the following testimony. Cassandra testified that in the winter of 2005 Goelz and Kerri began arguing in the front seat of Goelz’s pickup truck while driving Cassandra home from her friend’s house. Cassandra saw Goelz “punch” Kerri in her arm, after which both Cassandra and Kerri got out of the vehicle and walked to a nearby house. Goelz testified he nudged Kerri with his elbow as a reaction to being slapped and that he did not “punch” her.

Cassandra testified that at a party celebrating Kerri’s birthday in mid-January 2006, Goelz threatened to kill Kerri. Upon hearing Goelz threaten to kill her mother, Cassandra verbally confronted him. Cassandra testified that when she walked away from that argument, Goelz hit her in the back of the head. Two other guests at the party, Benjamin O’Brien and Cindy Weber, testified that they overheard someone get slapped during the argument between Cassandra and Goelz. Though Cassandra testified she was not hurt, she said she was frightened because of Goelz’s earlier threat to kill. Goelz denied striking Cassandra.

Leann McMurtrey, a friend of Kerri’s, testified to overhearing Goelz threaten to kill Kerri during a telephone conversation between Leann and Kerri. McMurtrey also overheard Goelz threaten to “beat [Kerri] and [her] kids to a bloody pulp” if Kerri called the police. Goelz denied ever threatening Kerri.

There was also evidence that Goelz committed acts of domestic abuse against his ex-wife, Denise Goelz. The couple was married from 1997 through 1999. Denise testified that in 1998, shortly after their marriage, Goelz hit Denise with his hand, leaving bruises on her face and arms. Goelz denied this incident.

Denise testified that in the winter of 1999, during an argument in the couple’s kitchen, Goelz threw her to the ground, choked her, and threatened to kill her. During the same incident, Denise testified that Goelz threatened to shoot her and her children. Goelz denied that he was the aggressor and claimed that he placed his arm around Denise’s neck to protect himself because Denise was threatening him with a knife. Following this incident, Denise obtained an OFP. At the hearing on the OFP, no testimony was given because Goelz agreed to the order. The OFP did not prevent contact between Goelz and Denise, but ordered Goelz to commit no acts of domestic abuse against Denise or her children and to attend anger management courses. At Goelz’s murder trial, the district court admitted the OFP over Goelz’s objection.

Denise testified to a third incident of domestic abuse occurring in March 1999 when Goelz hit her in the face with his fist, causing a bruise. Denise briefly testified that when this happened Goelz was charged with a crime for violating the OFP. Goelz denied striking Denise or violating the OFP.

The State offered evidence, without objection, that Goelz had faked a suicide attempt during his marriage to Denise. Denise testified that once during the marriage Goelz went outside to his truck with a gun, shot the gun into the air, and then slumped over the steering wheel unhurt. Goelz testified that the incident followed an argument he had with Denise. At the time he felt like committing suicide, but could not bring himself to do it. On cross-examination Goelz explained, “I imagine I wanted her to feel bad because she made me feel bad.”

Goelz did not deny having killed Kerri. He testified that Kerri’s threat to make public an untrue story that he molested a teenage girl provoked him, and that he lost control of his actions. Goelz testified that while he was retrieving the gun and firing it at Kerri, he “went delirious” and “had no control.” Again, Goelz denied each of the incidents of a past pattern of domestic abuse.

On September 29, 2006, the jury convicted Goelz of first-degree manslaughter (heat-of-passion) in violation of Minn.Stat. § 609.20(1) (2006), and first-degree murder (domestic abuse) in violation of Minn.Stat. § 609.185(a)(6). The district court entered judgment on the domestic abuse murder conviction, and sentenced Goelz to life in prison.

On appeal Goelz argues (1) that the district court abused its discretion by admitting testimony about the OFP, its violation, and the order itself; (2) that admitting the “faked suicide” evidence was plain error; and (3) that the district court erred in denying his motion to dismiss the indictment.

I.

Goelz objected to the introduction of the OFP. “Rulings on evidentiary matters rest within the sound discretion of the trial court, and we will not reverse such evidentiary rulings absent a clear abuse of discretion.” State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004) (quoting State v. Roman Nose, 667 N.W.2d 386, 392 (Minn.2003)).

A.

Goelz argues that allowing the OfT evidence at trial was an abuse of discretion because neither issuance of an OFP nor violation of the OFP is an enumerated offense that makes up domestic abuse under section 609.185(c)(1) (2006). The State concedes that whether an OFP exists or is violated is not conclusive evidence of an incident of domestic abuse, because the fact that a court issued an OFP is not an enumerated offense under the plain language of section 609.185. Nevertheless, the State argues that the OFP evidence becomes relevant because it supported Denise Goelz’s testimony that appellant assaulted and threatened her. In other words, the fact that an OFP was issued after the assault supports the existence of an incident of domestic abuse.

A victim of domestic abuse may file a petition for an OFP under Minn.Stat. § 518B.01, subd. 4 (2006). “Domestic abuse” is defined as

(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats, within the meaning of section 609.713, subdivision 1; or criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344, 609.345, or 609.3451; or interference with an emergency call within the meaning of section 609.78, subdivision 2.

Id. subd. 2(a) (2006). Under section 518B.01, subd. 2(a), these actions are domestic abuse when “committed against a family or household member by a family or household member” as subdivision 2(b) defines “family or household member.” Id. subd. 2 (2006). Accompanying the petition for an OFP, a victim of domestic abuse must file an affidavit, made under oath, describing the acts of domestic abuse committed. Id. subd. 4(b) (“A petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.”).

Domestic abuse murder requires the State to prove that the defendant “engaged in a past pattern of domestic abuse upon the victim or upon another family or household member.” Minn.Stat. § 609.185(a)(6). For the purposes of domestic abuse murder, the definition of “domestic abuse” includes acts that constitute a violation of a limited number of criminal statutes prohibiting such conduct as assault, criminal sexual conduct, and terror-istic threats. See Minn.Stat. § 609.185(c)(1) (2006). The statute does not require proof of domestic abuse convictions. State v. Cross, 577 N.W.2d 721, 727 (Minn.1998). The State must prove the existence of the past pattern of domestic abuse beyond a reasonable doubt, but the individual acts need not be established by proof beyond a reasonable doubt. Sanchez-Diaz, 683 N.W.2d at 832.

We have not yet addressed the admissibility of an OFP issued under Minn.Stat. § 518B.01 to prove a past pattern of domestic abuse, where the petitioner who was granted the OFP is not the murder victim and is therefore available to testify at trial. Our prior decisions in this area have considered hearsay and confrontation objections to the introduction of murder victims’ affidavits filed in support of an OFP. See State v. Grabe, 531 N.W.2d 484, 489-90 (Minn.1995) (determining, under the pre-Crawford standard, that affidavits in support of murder victim’s OFP were sufficiently trustworthy to avoid violation of the Confrontation Clause); State v. Bradford, 618 N.W.2d 782, 797-98 (Minn.2000) (concluding that the record provided too little information to determine whether affidavits in support of an OFP were sufficiently trustworthy to satisfy hearsay rules, but that any error made in the admission of the affidavits at trial was harmless). Unlike in Grabe and Bradford, the State did not offer the affidavit Denise made in support of the OFP. Rather, Denise testified at trial about the acts of domestic abuse underlying the OFP. There was no objection to her testimony, but there was vigorous objection to admission of the order itself.

Goelz argues that the district court abused its discretion by admitting evidence of an OFP because neither issuance of an OFP nor violation of the OFP is an enumerated offense that makes up domestic abuse under section 609.185(c)(1). The State agrees that an OFP is not, by itself, conclusive evidence of an incident of domestic abuse because the issuance of an OFP or violation of an OFP is not an enumerated offense under the definition of domestic abuse. Nevertheless, the State argues that the OFP evidence was relevant on other grounds — it supported and corroborated Denise Goelz’s testimony that appellant assaulted and threatened her. In other words, the fact that an OFP was issued after the assault lends credibility to the testimony of Denise Goelz and, therefore, is relevant to prove the existence of an incident of domestic abuse.

We have carefully examined the contents of the order and make the following observations. The order contains none of the allegations Denise made in her affidavit. The order contains no findings that domestic abuse occurred. The order contains an unchecked box where the issuing court could have indicated that “[a]cts of domestic abuse have occurred” and then several blank lines for a narrative description of the acts of domestic abuse. Instead, the issuing court checked a box next to which is the following sentence: “Respondent [Goelz] does not object to an Order for Protection and understands that the order will be enforced as if there was an admission or finding of domestic abuse.” (Emphasis added.) Because Goelz did not object to the order, no testimony was given. The court checked two other boxes ordering Goelz to “not commit acts of domestic abuse against [Denise] or the children]” and to participate in an anger management program.

The evidentiary value of the order was weak. It describes none of Denise’s allegations that, if provided, would tend to be probative on Denise’s veracity; i.e., if her testimony at Goelz’s trial “matched” her allegations in the OFP, then the OFP would lend credibility to her story. It contains no findings by the court of any act of domestic abuse by Goelz. Importantly, it contains no admissions by Goelz that he engaged in any act of domestic abuse.

The potential for the jury to be improperly influenced by the order is considerable. The State argued in closing that the acts of domestic abuse toward Denise were established because “[s]he obtained an Order For Protection. She went to court * * The implication in the argument is that because the order issued, the allegations were true. In fact the order does nothing more than acknowledge that Goelz chose to resolve the dispute by agreement. On these facts, we conclude that the probative value of the OFP was so weak and the potential for the OFP to improperly influence the jury was so great that it was an abuse of discretion to admit the order. We hold that evidence of the OFP was inadmissible to corroborate Denise’s testimony about the underlying assaults and threats because the order contained none of Denise’s allegations, Goelz did not admit to those allegations, and the order itself indicated only that he did not object to the order and agreed to its enforcement.

B.

We next consider whether the error in admitting the OFP was harmless. We must consider whether “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Asfeld, 662 N.W.2d 534, 544 (Minn.2003) (quoting State v. Stewart, 643 N.W.2d 281, 298 (Minn.2002), and citing cases indicating that this standard applies where the error does not affect a defendant’s constitutional rights).

Goelz argues that the error in admitting the OFP was not harmless because the evidence of a pattern of domestic abuse was “overwhelmingly weak,” the district court’s limiting instructions drew special attention to the OFP evidence, and the State argued the evidence to the jury in closing. The State argues that the other evidence of domestic abuse was stronger than Goelz suggests and notes that the State “briefly referenced” the OFP in closing argument.

We conclude that the district court’s error in admitting the OFP did not significantly affect the verdict for the following reasons. First, the district court instructed the jury that they were to consider the evidence admitted through Denise only for the question of whether there was a past pattern of domestic abuse and that the appellant was not being tried for and could not be convicted of any offense other than those charged. Goelz argues that by reminding the jury of the limiting instruction upon the introduction of the OFP, the district court keyed the jury’s attention to a specific piece of evidence that was inadmissible to prove a past pattern of domestic abuse. But the court’s instruction and its reminder to the jury were both addressed to all the evidence admitted through Denise. Such a limiting instruction is aimed at reducing potentially unfair prejudice in domestic abuse murder cases. See State v. Laine, 715 N.W.2d 425, 433 (Minn.2006) (rejecting argument that a similar past pattern of domestic abuse instruction cautioning jurors that a defendant may not be tried or convicted for any offense other than those charged impliedly eliminated the presumption of innocence).

Second, Goelz’s characterization of the other evidence of a pattern of domestic abuse as “overwhelmingly weak” is an overstatement. Goelz argues that the State “produced no evidence of violent assaults.” Although the evidence of domestic abuse against the murder victim, Kerri, was limited to the elbow-jabbing incident in Goelz’s truck and several threats on Kerri’s life, a past pattern of domestic abuse can be established by incidents that involve individuals other than the murder victim. See Minn.Stat. § 518B.01, subd. 2 (defining “family or household members” to include a former spouse); Asfeld, 662 N.W.2d at 541 (“[I]n stating that the past pattern of abuse must have been committed ‘upon the victim or upon another family or household member,’ the legislature creates a parallel between the victim as one ‘family or household member’ and the prior subject of abuse as another ‘family or household member.’ ”). Contrary to Goelz’s assertion that there was no evidence of violent acts, the State presented evidence that Goelz committed acts of domestic abuse against Cassandra, Denise, and Kerri, all of whom meet the statutory definition of family or household member.

Third, in comparison to the presentation of Goelz’s acts of domestic abuse, the evidence of the OFP’s existence and the fact that it was violated made up a small portion of the State’s evidence establishing a past pattern of domestic abuse. And finally, the State made only limited reference to the OFP evidence in closing when it argued that the fact Denise obtained an OFP corroborated her testimony because she sought outside intervention. The balance of the State’s closing argument regarding a past pattern of domestic abuse focused on the testimony about Goelz’s acts of assaulting and threatening Denise, Cassandra, and Kerri. For these reasons, we hold that there is no reasonable possibility that the introduction of the OFP significantly affected the verdict, and thus its admittance was harmless error.

II.

We turn now to Goelz’s argument that the district court committed plain error when it admitted evidence of his “faked suicide.”

Not only did Goelz fail to object to this testimony, he affirmatively developed and expanded the evidence of his faked suicide during his own testimony. Although defense counsel’s opening statement did not refer to the faked suicide incident, his opening statement did refer to Goelz’s alleged attempted to kill himself immediately following the murder in this case.

The invited error doctrine prevents a party from asserting an error on appeal that he invited or could have prevented in the court below. Krenik v. Westerman, 201 Minn. 255, 262, 275 N.W. 849, 852 (1937). This court has held that a defendant cannot on appeal raise his own trial strategy as a basis for reversal. State v. Helenbolt, 334 N.W.2d 400, 407 (Minn.1983). The invited error doctrine, however, does not apply to plain errors. State v. Goodloe, 718 N.W.2d 413, 424 (Minn.2006) (citing State v. Gisege, 561 N.W.2d 152, 158 n. 5 (Minn.1997)). To establish a plain error a defendant must demonstrate that (1) there was an error, (2) it was plain, and (3) it affected substantial rights. State v. Reed, 737 N.W.2d 572, 583 (Minn.2007). The defendant generally bears the burden of persuasion with respect to the third factor. Id. at 583-84. If a defendant fails to establish that the claimed error affected his substantial rights, we need not consider the other factors. State v. Manley, 664 N.W.2d 275, 283 (Minn.2003). On the other hand, if a defendant establishes all three factors, we then consider the fourth factor: whether the error should be addressed “to ensure fairness.and the integrity of the judicial proceedings.” Reed, 737 N.W.2d at 583 (quoting State v. Griller, 583 N.W.2d 736, 740 (Minn.1998)).

Testifying in his own defense, Goelz explained that he did not fake a suicide, but rather that he sincerely felt like committing suicide but could not carry through with it. This testimony followed direct examination by Goelz’s attorney about Goelz’s experience as a member of the Army Reserves serving in Iraq and the effect of that experience on his mental well-being. Then, in its closing argument, the defense highlighted the effect of Goelz’s military experience on his state of mind and mentioned his faked suicide as part of the “surrounding circumstances” of the manner in which Kerri was killed. This questioning and the closing argument formed an affirmative trial strategy for a heat-of-passion defense. Thus, the defense chose not to object to the testimony about the faked suicide, affirmatively developed testimony about it on direct examination, and then argued in closing that it supported a manslaughter defense.

The admission of the faked suicide evidence does not fall within the plain error exception to the invited error doctrine, because based on this record, Goelz has failed to establish that his substantial rights were violated by the admission of the faked suicide evidence. We conclude that Goelz waived any error relating to the admission of the faked suicide attempt because he invited this error and he failed to establish that the error fell within the plain error exception to the invited error doctrine.

III.

Finally, we address Goelz’s argument that the presentation of inadmissi-Me evidence to the grand jury required dismissal of the indictment.

[A]n indictment returned by a legally constituted and unbiased grand jury, * ⅜ * if valid on its face, is enough to call for trial of the charge on its merits. The general rule that emerges is that a presumption of regularity attaches to the indictment, and it is a rare case where an indictment will be invalidated.

State v. Inthavong, 402 N.W.2d 799 (Minn.1987) (citations and quotation marks omitted). “An indictment shall be based on evidence that would be admissible at trial,” Minn. R.Crim. P. 18.06, subd. 1, but “[r]e-ception of inadmissible evidence shall not be grounds for dismissal of an indictment if there is sufficient admissible evidence to support the indictment.” Minn. R.Crim. P. 18.06, subd. 2. The already heavy burden a criminal defendant bears in seeking to overturn an indictment is “made even heavier when * * * the defendant has been found guilty beyond a reasonable doubt following a fair trial.” State v. Greenleaf, 591 N.W.2d 488, 498 (Minn.1999).

Goelz argues: (1) that the State presented inadmissible evidence of the OFP; (2) that the State presented inadmissible character evidence through Kerri’s mother, Janice Robinson; (3) that the admissible evidence presented to the grand jury on a past pattern of domestic abuse was weak; and (4) that the State’s attorney gave improper instructions to the grand jury. The State argues: (1) that OFP evidence was admissible, and if not that there was sufficient admissible evidence to support a probable cause determination on the domestic abuse murder charge; (2) that Janice Robinson’s testimony was not inadmissible character evidence; and (3) that any deficiency in the grand jury instructions was not so egregious as to have compromised the grand jury process.

Janice Robinson testified during the grand jury proceedings that on some occasions when she called her daughter she could hear Goelz screaming at Kerri. She also stated that Goelz had no feelings and did not like Kerri’s children. She testified that Goelz had been convicted of driving while intoxicated and that Kerri told her that she and Goelz were having significant relationship problems. Even if we assume that this evidence was inadmissible, there remained ample evidence at the grand jury proceedings to support the probable cause determination that Goelz engaged in a past pattern of domestic abuse. The other evidence of a past pattern of domestic abuse presented to the grand jury mirrored that testified to at trial by Cassandra, Denise, Benjamin O’Brien, Cindy Weber, and Leann McMur-trey. We also note that because it was harmless error to admit the OFP evidence at trial, presenting that evidence to the grand jury did not compromise the probable cause determination. At trial the evidence established for a petit jury that the State had proved beyond a reasonable doubt a past pattern of domestic abuse. Based on the record of the grand jury proceedings, we cannot say that Goelz has met the even heavier burden required to overturn an indictment after a defendant has been convicted beyond a reasonable doubt at a fair trial. See Greenleaf 591 N.W.2d at 498.

We now turn to Goelz’s argument that the State’s attorney gave improper instructions to the grand jury. Instructions to a grand jury are not required to contain the same level of detail as those delivered to a petit jury in a criminal trial, and erroneous instructions will only invalidate an indictment upon a showing that the jury instructions were “so egregiously misleading or deficient that the fundamental integrity of the indictment process itself is compromised.” Inthavong, 402 N.W.2d at 802. The State instructed the jury on the definition of hearsay, but did not mention hearsay’s general inadmissibility other than to say that hearsay was not admissible except in limited circumstances. The State also failed to provide an instruction on the general inadmissibility of character evidence. Goelz fails to demonstrate how these instructions were “so egregiously misleading or deficient that the fundamental integrity of the indictment process itself [was] compromised.” See id.

The State also read to the grand jury the jury instruction for the domestic abuse murder statute contained in 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 11.15 (5th ed.2007). It is not clear how reading this instruction to a grand jury would be a misstatement of the law, let alone compromise the integrity of the grand jury proceedings. We hold that Goelz has failed to meet the heavy burden required to overturn a grand jury indictment after his conviction beyond a reasonable doubt. We also hold that Goelz has failed to demonstrate how the State’s instructions on the inadmissibility of hearsay, the lack of an instruction on the inadmissibility of character evidence, and the reading of the CRIMJIG 11.15 instruction for domestic abuse murder compromised the integrity of the grand jury process.

Affirmed.

AJSTDERSON, RUSSELL A., Chief Justice

(concurring).

I concur in the affirmance of Goelz’s conviction but write separately because I believe the OFP was admissible to impeach Goelz’s claims of self-defense and peaceful character and to repair the credibility of the impeached State witness. At trial, Goelz’s former spouse testified about incidents of domestic abuse that occurred during their marriage. She described one incident during an argument, after they had been drinking, when she was in the kitchen cooking. Goelz threw the food around the kitchen, tackled her as she was trying to flee, and choked her. He said he was going to kill her, snap her neck, and shoot her and her children and anyone who had ever crossed his path. She testified that this incident led to the OFP that ordered Goelz to participate in an anger management program.

In testifying on his own behalf, Goelz denied the incidents of domestic abuse described by his former spouse during direct examination. With regard to the OFP incident, he said that they were in the kitchen arguing when she started throwing glasses around. He testified that she grabbed a knife from the kitchen sink, waved it around and stabbed a stereo speaker. After that, he “grabbed a hold of her, kind of like around her neck and tried to subdue her to take the knife away from her so [he] didn’t get stabbed.” He testified that he agreed to the OFP, telling the judge “that’s fine.” Goelz called several character witnesses who testified as to his peaceful and truthful disposition and also as to the abusive and untruthful disposition of his former spouse.

I believe the foregoing permitted admission of the OFP to show that it was Goelz’s former spouse who was the petitioner on that document and that it was Goelz, and not his former spouse, who had the anger management issues. See 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:85 (3d ed.2007) (explaining impeachment by contradiction). Exclusion of the OFP, in my view, would have left the jury with an incomplete and perhaps even distorted picture of what had occurred. Further, the OFP evidence had a bearing on a matter of substance. That incident was part of a pattern of domestic violence that ultimately ended in the death of Goelz’s girlfriend, with Goelz shooting her as she retreated to the basement, following her downstairs and shooting her again as she crouched under the pool table.

As for the admission of the evidence in the State’s case-in-chief, I believe that was not inappropriate. Ordinarily impeachment is accomplished on cross-examination or in rebuttal. But courts also “disfavor the deliberate tactic of ‘lying in the weeds’ in anticipation of an ambush, and it is within a trial court’s discretion to exclude rebuttal if it concludes that the prosecution has acted unfairly.” United States v. Calvert, 523 F.2d 895, 912 (8th Cir.1975). Here, in his opening statement, defense counsel outlined Goelz’s defense, including evidence expected to rebut the State’s OFP evidence. Under these circumstances, I do not believe the admission of the OFP through the State’s witness amounted to improper bolstering. While I do share the concern that past-acts evidence warrants careful regulation under Minn. R. Evid. 403, given the defense in this trial, I would conclude that the admission of the OFP was not an abuse of discretion.

PAGE, Justice

(concurring).

I join in the concurrence of Chief Justice RUSSELL A. ANDERSON.

GILDEA, Justice

(concurring).

I join in the concurrence of Chief Justice RUSSELL A. ANDERSON.

      . We need not address the admissibility of Denise's brief testimony that Goelz subsequently violated the OFP because we conclude that any error that may exist in allowing that testimony was harmless. It is also worth noting that Goelz did not specifically object to this testimony at trial.


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Michael James MARTIN, Appellant.
    No. A06-2460.
    Supreme Court of Minnesota.
    Jan. 3, 2008.

      Samuel A. McCloud, Carson J. Heefner, McCloud & Heefner, P.A., Shakopee, MN, for Appellant.

      Lori Swanson, Attorney General, St. Paul, MN, Kari L. Myrold, Interim Carver County Attorney, Mary E. Shimshak, Assistant County Attorney, Chaska, MN, for Respondent.
    Bradford S. Delapena, Special Assistant State Public Defender, Minneapolis, MN, for amicus curiae State Public Defender.
    Kathleen Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Elk River, MN, for amicus curiae Minnesota County Attorneys Association.
   OPINION

PAGE, Justice.

Appellant Michael James Martin was charged with fifth-degree possession of a controlled substance. At his first appearance, the district court set conditions of pretrial release requiring that Martin submit to a baseline urinalysis drug test in addition to random drug testing. In the alternative, the court set bail, without non-monetary conditions, of $5,000 cash or a $50,000 bond. When asked why bail in that amount was necessary, the court indicated that the amount had nothing to do with assuring that Martin made future court appearances. On appeal, the court of appeals affirmed, concluding that neither the bail amount nor the conditions of release were an abuse of discretion. On appeal to this court, Martin argues that: (1) bail and conditioned release may be imposed only for the purpose of assuring that a defendant will make future court appearances; and (2) bad set to coerce a defendant to accept conditioned release is unconstitutionally excessive. For the reasons discussed below, we reverse and remand.

On August 11, 2006, around 1:00 a.m., a homeowner called 911, stating that a stranger had knocked on her door asking for help. Responding police officers found Martin in the homeowner’s yard on the ground, rolling around, slapping his chest and stomach, and saying that bugs were crawling on him. His clothing was disheveled and dirty, and he complained that his nose was dry. He also tried to drink from a sprinkler. There was drug paraphernalia and more than $2,000 in cash spread over the homeowner’s yard. Martin indicated that he had been using cocaine the past few days. The police believed Martin was suffering from a drug overdose and had him taken to a hospital.

A month later, Martin was served with a summons and complaint charging him with fifth-degree possession of a controlled substance and drug paraphernalia. Approximately two months after the incident, Martin appeared at his first appearance with counsel. At that hearing, the State requested that the court set conditions for release, including the condition that Martin be required to take a baseline drug test and be subject to random drug testing. Martin’s defense counsel objected, arguing that Martin could “bail out” of the conditions. The district court disagreed, indicating that bail would be set at $1,000,000. When asked about the amount of bail the court responded, “I want to set conditions.” Defense counsel then requested bail without conditions, at which point the following discussion took place:

THE COURT: Okay, 5,000 cash, 50,000 bond, make all future Court appearances.
[DEFENSE COUNSEL]: Could the Court put on the record why it feel[s] 5,000 cash is necessary.
THE COURT: Because I would normally require him to submit to a base line UA so we know if he’s not using.
[DEFENSE COUNSEL]: So this has got nothing to do with him appearing in Court?
THE COURT: No, I have a different read on the constitution than Jack Nord-by does much as I respect him and his view on it.
[DEFENSE COUNSEL]: So I understand it, it has nothing to do with him appearing in Court. It’s just that you want to do the base line.
THE COURT: That is correct.
THE CLERK: He has to do the base line today?
THE COURT: No, just post 5,000 cash or 50,000 bond.
[DEFENSE COUNSEL]: Or he can still have his conditional release, is that correct?
THE COURT: Yes, or he can provide a base line UA and he is released on his own recognizance on the condition that he be subject to random testing in the event anybody believes he’s using and makes all future court appearances.

I.

The Minnesota Constitution provides that “[a]ll persons before conviction shall be bailable by sufficient sureties,” with one exception not applicable here. Minn. Const, art. I, § 7. It also prohibits excessive bail. Minn. Const, art. 1, § 5 (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”). We have said that “the general purpose of bail is to ensure an accused’s appearance and submission to the judgment of the court.” State v. Brooks, 604 N.W.2d 345, 350 (Minn.2000).

The relevant part of Rule 6.02 of the Minnesota Rules of Criminal Procedure provides that

a person so charged shall be ordered released * * * unless the court, judge or judicial officer determines, in the exercise of discretion, that such a release will be inimical of public safety or will not reasonably assure the appearance of the person as required. When such a determination is made, the court, judge or judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or hearing, or when otherwise required, or, if no single condition gives that assurance, any combination of the following conditions:
(a) Place the person in the care and supervision of a designated person or organization agreeing to supervise the person;
(b) Place restrictions on the travel, association or place of abode during the period of release;
(c) Require the execution of an appearance bond in an amount set by the court with sufficient solvent sureties, or the deposit of cash or other sufficient security in lieu thereof; or
(d) Impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.
* * * *
In any event, the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release either by posting cash or by sufficient sureties.

Minn. R.Crim. P. 6.02, subd. 1 (emphasis added). The rule also lists factors for the court to consider in determining which conditions of release will reasonably assure appearance, including

the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, length of residence in the community, record of convictions, record of appearance at court proceedings or flight to avoid prosecution, and the safety of any other person or of the community.

Minn. R.Crim. P. 6.02, subd. 2.

In Brooks, we considered whether cash-only bail violated the Minnesota Constitution and held that: (1) the general purpose of bail is to make sure the defendant appears in court and submits to the court’s judgment; (2) our state constitution aims to protect the defendant rather than the courts and limits the government’s power to detain a defendant before trial; and (3) cash-only bail failed to meet the constitution’s guarantee of bail by sufficient sureties. 604 N.W.2d at 349-50, 354. We left open the question of whether pretrial conditioned release is constitutional. Id. at 353-54.

Martin’s arguments may be fairly read as implying that Rule 6.02’s conditional release provisions are constitutionally infirm because, like cash-only bail, the conditional release provisions set out in the rule do not provide for bail by sufficient sureties and because the rule permits conditions to be imposed for purposes other than to assure the defendant’s appearance at future court proceedings. We assume without deciding that Martin is correct that the sole purpose of bail and conditions of release is to assure the defendant’s appearance in court. Although Rule 6.02 permits the court to consider factors other than whether a defendant is likely to appear at future court proceedings when deciding what conditions to impose, the rule also provides that, “[i]n any event, the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release either by posting cash or by sufficient sureties.” Minn. R.Crim. P. 6.02, subd. 1. Thus, the rule assures that defendants will be given the alternate choice of the right to bail by sufficient sureties if release on nonmone-tary conditions is ordered. Unlike the cash-only bail in Brooks, which takes away the defendant’s choice of “alternative forms of sufficient surety,” 604 N.W.2d at 354, conditioned release under the rule may be offered only as an alternative to money bail without conditions. Therefore, we conclude that Minn. R.Crim. P. 6.02, read as a whole, does not violate the Minnesota Constitution.

II.

Martin also contends that the district court erred when it imposed conditions for his release that are impermissible under Rule 6.02. Martin argues that the language of the rule provides that bail or release conditions may be imposed only for the purpose of assuring a defendant’s appearance at future court proceedings. According to Martin, conditioning release on compliance with drug testing does not serve that purpose. The State contends that the rule allows the court to set bail or impose conditioned release to either assure appearance or protect public safety.

“The amount of bail to be fixed in a particular case rests within the discretion of the trial court and its determination will not be reversed unless there is a clear abuse of that discretion.” State v. Huber, 275 Minn. 475, 478, 148 N.W.2d 137, 140 (1967). We construe rules of procedure de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

Under Rule 6.02, a defendant must be released during the pretrial stage on his or her own recognizance, on an order to appear, or on execution of an unsecured appearance bond unless the district court determines “that such a release will be inimical of public safety or will not reasonably assure the appearance of the person as required.” Minn. R.Crim. P. 6.02, subd. 1. If the court makes either of those determinations, the court may impose conditions “which will reasonably assure the appearance of the person.” Id. The rule further provides that one of the determining factors as to which conditions will reasonably assure such appearance is “the safety of any other person or of the community.” Minn. R.Crim. P. 6.02, subd. 2. Thus, the rule, by its express terms, permits public safety concerns to be considered in determining whether the conditions imposed will assure the defendant’s appearance at future court proceedings. Therefore, the district court did not abuse its discretion when it considered public safety as a factor in setting conditions for Martin’s pretrial release.

A question not raised by Martin, yet one that is difficult to ignore, is whether, on the facts presented, the district court abused its discretion when it imposed the drug-testing requirements on Martin as a condition of his pretrial release. We think it is a close question. On the one hand, based on the overdose incident giving rise to the charges against Martin, the court had some reason to be concerned about Martin’s, as well as the community’s, safety. Martin was found by the police in someone’s yard rolling around on the ground saying that bugs were crawling on him and attempting to drink from a sprinkler. Clearly, this conduct is a factor that would support a district court’s imposition of a drug-testing requirement as a condition of pretrial release. On the other hand, the facts before the court at the time of Martin’s first appearance call into question whether Martin should have been released on his own recognizance or on an unsecured appearance bond. At the time of the overdose incident, the police were evidently not so concerned about Martin’s risk to public safety that they felt the need to place him under arrest. Indeed, it was a month before he was charged by summons and complaint and it was another month before Martin was required to make his first appearance, which he did voluntarily. The fact that a month elapsed between Martin’s overdose incident and the issuance of the complaint and the fact that another month elapsed between the time the complaint was issued and his first appearance weighs against the district court’s concerns about Martin being a public safety risk. Moreover, the fact that Martin appeared at the hearing for his first appearance weighs against concerns that Martin would not appear as required at future court appearances or submit himself to the judgment of the court. Also, weighing against the need for imposing conditions for release is the fact that, except for the overdose incident, there is no indication in the record that Martin had a criminal history and the fact that there is nothing in the record suggesting that he engaged in any other illegal conduct between the overdose incident and his first appearance.

Some legal commentators argue that drug use by itself correlates to the likelihood that a defendant will not make future appearances, e.g., Richard B. Abell, Pretrial Drug Testing: Expanding Rights and Protecting Public Safety, 57 Geo. Wash. L.Rev. 943, 944 n. 6 (1989), a premise that the court of appeals seems to have accepted. See State v. Dillon, 529 N.W.2d 387, 395 (Minn.App.1995) (“Use of unlawful substances jeopardizes the assurance of defendant’s appearance in court.”). But applying that logic, drug offenders would seldom, if ever, be released on their own recognizance. Such a blanket policy is inconsistent with Rule 6.02, and we decline to adopt it. Because Rule 6.02, subdivision 2, requires the district court to “take into account the nature and circumstances of the offense charged” when determining the reasonable likelihood of the defendant’s appearance, the “use of unlawful substances” is more appropriately considered on a case-by-case basis as a factor under the rule. Here, it appears that the basis for imposing the condition that Martin comply with drug testing was the fact that imposing such a condition was the district court’s standard practice. Such a practice violates the rule.

As noted previously, the question of whether the district court abused its discretion in not releasing Martin on his own recognizance or on an appearance bond is a close one. It is also a question we need not decide here. Because we conclude that the district court set Martin’s conditions of release based on its standard practice without considering the particular facts before it, we remand to the district court to reconsider what, if any, conditions of release are necessary to assure Martin’s appearance at future court appearances and submission to the judgment of the court.

III.

Finally, we address Martin’s claim that the money bail set in his case was constitutionally excessive. We read Martin’s brief to argue that the bail is excessive because there is no evidence that he would not appear or submit to the judgment of the court as ordered. He also contends that bail was excessive as it was imposed simply to provide an incentive for him to accept the conditioned release terms offered by the district court. We review the amount of bail set in a particular case for an abuse of discretion. State v. Huber, 275 Minn. 475, 478, 148 N.W.2d 137, 140 (1967).

Here, the district court’s statements on the record can be fairly read to indicate that the only purpose for setting monetary bail as it did was to encourage Martin to submit to drug testing. No other reason was given. Rule 6.02, however, does not authorize the setting of monetary bail for such a purpose. Because the record indicates that the district court set bail as it did solely to encourage Martin to accept conditioned release, we conclude that the district court violated Rule 6.02’s requirement that bail be set without other conditions. By doing so, the district court abused its discretion. Having concluded that the district court violated Rule 6.02, we need not reach Martin’s claim that his bail was constitutionally excessive.

For the above-stated reasons, we reverse the court of appeals and remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded.


author: MEYER, Justice.

text:
    VOICESTREAM MINNEAPOLIS, INC., d/b/a T-Mobile, a Delaware corporation, Respondent, v. RPC PROPERTIES, INC., Appellant.
    No. A06-394.
    Supreme Court of Minnesota.
    Jan. 10, 2008.

      Lawrence H. Crosby, . Jay D. Olson, Crosby & Associates, St. Paul, MN, for Appellant.
    Tamara O’Neill Moreland, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, for Respondent.
   OPINION

MEYER, Justice.

Appellant RPC Properties, Inc. (RPC) brought a motion seeking enforcement of a settlement agreement with VoieeStream Minneapolis, Inc., d/b/a T-Mobile (T-Mobile). Although the district court granted RPC’s request for enforcement and for attorney fees related to the motion, it remained silent as to RPC’s request for damages allegedly arising out of T-Mobile’s delay in performing under the settlement agreement. RPC appealed, asking for an explicit ruling on damages, and the court of appeals concluded that silence was equivalent to a denial of the request. VoiceStream, Minneapolis, Inc. v. RPC Props., Inc., 2007 WL 509621, at *2 (Minn.App. Feb.20, 2007). We reverse and remand to the district court.

In November 2000, appellant RPC and respondent T-Mobile contracted to allow T-Mobile to place its transmission equipment on the roof of a building owned by RPC. In 2004 RPC demanded that T-Mobile remove its equipment, and in response T-Mobile filed a complaint in which it claimed that RPC had breached the parties’ lease contract. T-Mobile asked for a declaratory judgment determining the parties’ rights and interests under the contract and requested injunctive relief to prevent RPC from terminating the lease or removing T-Mobile’s equipment. In October 2004, the district court granted T-Mobile’s motion for a temporary injunction prohibiting RPC from evicting T-Mobile and removing its property.

In April 2005, the parties entered into a settlement agreement that required T-Mobile to pay RPC a sum of money, to remove and relocate its equipment on RPC’s roof, to coordinate with RPC for selection of a roofing contractor to supervise this work, and to pay the costs related to the supervision. After the performance and repairs required under the agreement, the parties were “to enter into a Release that will release T-Mobile of any claim for damage to the entire roof of the Building up to and including the date of the Release.” The parties were to execute a “Stipulation of Dismissal with Prejudice” at the same time. The agreement did not specify a date for completion of performance.

As of early September 2005, T-Mobile had not yet performed this work, and RPC brought a motion to enforce the settlement agreement. RPC requested three forms of relief: (1) an order that T-Mobile remove and relocate its equipment within five days; (2) “monetary damages, to be established in a subsequent evidentiary hearing,” for the breach of the settlement agreement; and (3) other relief including attorney, fees and costs.

A hearing on the motion was held on September 22, 2005. By that time, T-Mobile had almost completed the work. RPC noted this and asked “for a hearing where we can have witnesses and documentary testimony on account of the damages that RPC has suffered when T-Mobile simply didn’t move.” The district court said: “So what you’re really asking for at this point is an opportunity to present to the Court any damages that may have been incurred as a result of the delay?”

In its September 29, 2005, order, the district court found that the parties intended that performance be completed within a reasonable time and that a five-month delay in performance under the settlement agreement was not reasonable. The motion to enforce the settlement was granted, as was the request for attorney fees and costs of bringing the motion. The order did not mention the request for damages. The court asked RPC to submit an affidavit setting forth the attorney fees and costs for the motion. RPC submitted affidavits relating to attorney fees and costs as well as to damages, to which T-Mobile objected by letter to the district court. RPC submitted another affidavit asking the court to decide whether a hearing to determine damages would be held. T-Mobile objected by affidavit. RPC renewed by affidavit its request that the court “clarify its position as to whether [RPC] has the right to present evidence as to the damages caused by the delay on the part of T-Mobile.” T-Mobile again objected by affidavit.

On December 14, 2005, the district court issued an order awarding RPC attorney fees and costs in the amount of $2,550 “for work regarding breach of settlement agreement in this case,” but again did not address damages. On appeal by RPC, the court of appeals determined that failure to rule on the request for damages was equivalent to a denial of the request. VoiceStream, 2007 WL 509621, at *2.

We are asked to decide whether a district court must explicitly grant or deny a claim for damages arising out of a breach of settlement agreement. T-Mobile argues that the record clearly shows the district court considered RPC’s request and implicitly denied it by not granting it. RPC concedes that the Minnesota Rules of Civil Procedure do not specifically address the issue in this case, but contends that it is a fair request to ask a court to make a decision regarding the requested relief. This case thus presents a purely legal question, which we review de novo. See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

RPC proceeded by motion in the original lawsuit to enforce the settlement agreement and did not elect to file a separate action for breach of contract. A district court is not required to make written or recorded oral findings of fact and conclusions of law in decisions on motions. Minn. R. Civ. P. 52.01. This does not, however, address the issue of whether silence can itself be a decision. The court of appeals relied on our precedent in Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194 (Minn.1986), in concluding that the district court by its silence denied RPC’s request. VoiceStream, 2007 WL 509621, at *2. In Hughes, the district court granted a motion requesting attorney fees, but said nothing about the accompanying request for a multiplier of 1.5. 389 N.W.2d at 200. We concluded, based on the wording of the petition and the order, that the district court had considered and denied the request. Id. In Johnson v. Johnson, we held that although the better practice was to prepare written findings of fact, they were not “technically required” when a district court decided pursuant to motions not to modify child support. 304 Minn. 583, 584, 232 N.W.2d 204, 205-06 (1975). In Sanvik v. Maher, we held that when the affirmative defense of laches had been pleaded, the absence of a finding of laches in the trial court’s findings of fact, conclusions of law, and order for judgment was equivalent to a finding that laches did not exist. 280 Minn. 113, 115, 158 N.W.2d 206, 208 (1968).

Herr and Haydock have indicated that decisions on motions “which amount to a decision on the merits” do not require findings of fact and conclusions of law unless they also resolve factual issues. 2 David F. Herr & Roger S. Haydock, Minnesota Practice—Civil Rules Ann. § 52.4 (4th ed.2004). Discussing the fact that Rule 52(a) specifically does not require findings of fact and conclusions of law when decisions are made on motions, Wright and Miller have said that “regardless of what the rule in terms requires, whenever decision of a matter requires the court to resolve conflicting versions of the facts, findings are desirable and ought to be made.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2575 (2d ed.1995). They cite, among others, to an Eighth Circuit case, Ackra Direct Marketing Corp. v. Fingerhut Corp., in which the court indicated that it could “remand when the lack of findings by the district court would substantially hinder our review.” 86 F.3d 852, 857 (8th Cir.1996); see 9A Wright & Miller, supra, § 2575 n. 15 (Supp.2007).

As we said in Johnson, the better practice is for the district court explicitly to rule on a motion, perhaps even more so when, as here, the moving party has repeatedly requested an evidentiary hearing and a factual determination by the court. We believe it is important to consider the nature of the motion in this case — is there something in the nature of a motion to enforce a settlement agreement and the procedural posture of this case that should inform the rule of law we adopt?

The motion in this case sought to enforce a settlement agreement. Settlement of claims is encouraged as a matter of public policy. E.g., Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 205 (Minn.1986). An agreement entered into as compromise and settlement of a dispute is contractual in nature. Mr. Steak, Inc. v. Sandquist Steaks, Inc., 309 Minn. 408, 410, 245 N.W.2d 837, 838 (1976); Jallen v. Agre, 264 Minn. 369, 373, 119 N.W.2d 739, 743 (1963). As such, a settlement agreement “can be enforced by an ordinary action for breach of contract.” Mr. Steak, 309 Minn. at 410, 245 N.W.2d at 838. Generally speaking, settlement agreements can also be enforced by motion in the original lawsuit. Ryan v. Ryan, 292 Minn. 52, 52-53, 193 N.W.2d 295, 296-97 (1971); see Eliseuson v. Frayseth, 290 Minn. 282, 288, 187 N.W.2d 685, 688 (1971) (concluding that the trial court has discretion to vacate a settlement through independent action or motion).

As a general rule, the enforcement of a settlement agreement requires a hearing if the issues are sharply conflicting and there are questions of fact for the fact finder to decide. 15A C.J.S. Compromise and Settlement §§ 70, 74 (2002). “Trial courts have[ ] ‘the inherent power to summarily enforce a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.’ ” Lewis v. Benjamin Moore & Co., 574 N.W.2d 887, 888 (S.D.1998) (emphasis omitted) (quoting Gatz v. Sw. Bank of Omaha, 836 F.2d 1089, 1095 (8th Cir.1988)). If material facts are disputed, an evidentiary hearing is required. Id.

If, instead of proceeding by motion in the original lawsuit, RPC had brought a separate action for breach of the settlement agreement, either party could have moved for summary judgment. If summary judgment had been granted for either party, the district court would not have been required to make findings of fact or conclusions of law, Minn. R. Civ. P. 52.01, but the entry of judgment would at least have been an explicit ruling on RPC’s request. If the case had not been fully disposed of by a grant of summary judgment, the district court would have had to “ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted” and then “make an order specifying the facts that appear without substantial controversy.” Minn. R. Civ. P. 56.04. Again, this would have resulted in an explicit ruling such as RPC requests. If summary judgment had been denied to either party, the case would have gone to trial, and RPC would have had the opportunity to present its evidence. Under any scenario, the district court could not have, by its silence, granted summary judgment to either party in the breach of contract action.

Another way to enforce a settlement agreement is to move for permission to amend the pleadings based on a breach of the settlement agreement. See Minn. R. Civ. P. 15.01. Leave to amend should be freely granted unless it results in prejudice to the other party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The district court has wide discretion in the matter, and its actions will be reversed only for a clear abuse of discretion. Id. The court may deny the motion when the additional claim could not survive summary judgment. See M.H. v. Caritas Family Servs., 488 N.W.2d 282, 290 (Minn.1992) (upholding denial of motion to amend when no facts supported new claim). The court of appeals has required a district court to rule on a motion to amend. TCF Bank & Sav., F.A. v. Marshall Truss Sys., Inc., 466 N.W.2d 49, 54 (Minn.App.1991), rev. denied (Minn. Feb. 19, 1991), overruled on other grounds by Lloyd F. Smith Co. v. Den-Tal-Ez, Inc., 491 N.W.2d 11, 17 (Minn.1992); see Gilbride v. Trunnelle, 620 N.W.2d 244, 249 (Iowa 2000) (applying a summary judgment standard when ruling on an amendment to the pleadings to assert settlement as an additional claim in the original lawsuit). In this case, RPC could have sought an explicit ruling on a motion for permission to amend the pleadings. If the new claim could withstand summary judgment, a district court would have permitted the amended pleading. A denial would have been explicit and reviewable for an abuse of discretion.

In sum, if RPC had either moved for permission to amend the pleadings or brought a separate breach of contract action, the district court could not have, by silence, denied RPC’s claim for damages caused by the breach of contract. The question in the case is thus brought into focus: should RPC’s procedural rights be different because it proceeded by motion to enforce the settlement agreement rather than by the alternatives of amending the pleadings or bringing a separate breach of contract action?

We believe fairness requires the court to explicitly rule under the facts of this case. In light of the important public policy of encouraging (and enforcing) settlement of claims, we hold that a district court shall treat a motion to enforce a settlement agreement as it would a motion for summary judgment, and explicitly grant or deny each claim. The district court in this case must either grant a hearing on consequential damages or explicitly deny the claim for damages and indicate that no material facts are in controversy. We leave it to the district court to determine whether T-Mobile’s unreasonable delay in performance under the settlement agreement caused any damages.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

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

      . Sanvik cites to Alsdorf v. Svoboda, 239 Minn. 1, 57 N.W.2d 824 (1953), as does T-Mobile in its brief. Sanvik, 280 Minn. at 115, 158 N.W.2d at 208. Alsdorf is distinguishable because in that case there were findings, although they were not as detailed as the defendants would have liked. See Alsdorf, 239 Minn. at 10, 57 N.W.2d at 830. The district court also denied a motion for amended findings. Id. at 11, 57 N.W.2d at 830. We said that "[w]here the court denies a motion for amended findings of fact, that is equivalent to making findings negativing the facts asked to be found.” Id., 57 N.W.2d at 830.

      . Wright & Miller also cite to Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158 (9th Cir.2003). 9A Wright & Miller, supra, § 2575 n. 2 (Supp. 2007). In that case, regarding a motion for summary judgment, the court said that Rule 52(a) "does not relieve a court of the burden of stating its reasons somewhere in the record when its ‘underlying holdings would otherwise be ambiguous or inascertainable.' " Holly D., 339 F.3d at 1180 (quoting Couveau v. Am. Airlines, 218 F.3d 1078, 1081 n. 3 (9th Cir.2000)).