author: PER CURIAM.

text:
    In re PANEL CASE NO. 17289.
    No. A03-0141.
    Supreme Court of Minnesota.
    Oct. 16, 2003.

      Pro se, John E. Mack, Mack & Daby P.A., New London, MN, for Appellant.
    Kenneth L. Jorgensen, Director Cassie Hanson, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Respondent.
   OPINION

PER CURIAM.

Appellant was issued an admonition by the Director of the Office of Professional Responsibility for submitting frivolous claims on his client’s behalf in violation of Minn. R. Prof. Conduct 3.1. An admonition is a private sanction for violations of lawyer ethical rules. A panel of the Lawyers Board on Professional Responsibility affirmed the admonition. Appellant appeals to this court to overturn that decision. We affirm the admonition.

Appellant was admitted to the practice of law in the State of Minnesota on October 17, 1969, and is currently engaged in the practice of law here. Appellant has a history of disciplinary actions. In 1985, he was admonished for a conflict of interest, failure to deposit client funds in his trust account, and failure to promptly deliver client property. In 1991, he was indefinitely suspended from the practice of law for numerous ethics violations, including misappropriating funds from his client trust account, improperly permitting non-lawyers to withdraw funds from the account, depositing personal funds into the trust account to avoid paying withholding taxes, falsely certifying that he kept proper trust books, and knowingly serving a client’s false answer to an interrogatory. In 1994, his suspension was continued because he failed to take reasonable remedial measures after learning that his client had testified falsely in a deposition. Appellant was reinstated to the practice of law in 1996. In 2000, he was again admonished, this time for making unsupported allegations against opposing counsel.

Because the admonition subject to review here is directly related to a civil action in which appellant served as counsel, a detailed factual summary of the civil case is in order. The admonition is the result of appellant’s conduct in a civil action in which he represented M.G.D., who alleged assault and defamation by H.L.B. The action arose out of a burglary incident at H.L.B.’s cabin.

On September 14, 1997, at approximately 5:00 a.m., M.G.D., who was then a minor, drove two male passengers to a cabin owned by H.L.B. The two passengers intended to break into the cabin, promising M.G.D. they would give him half of anything they took from it. M.G.D. waited in his car while the two passengers pried open a window screen and entered the cabin. Approximately two to three minutes later, the passengers came running out of the cabin toward the car. They told M.G.D. that alarms were going off and they should leave. According to M.G.D., the passengers did not have any property in their possession when they ran out of the cabin.

At the same time, H.L.B., who lived only-two miles away from the cabin, received a call from his alarm company alerting him that there was a possible break-in at the cabin. H.L.B. requested that the police be called and then drove to the cabin. Upon arriving at the cabin, H.L.B. saw M.G.D.’s ear parked in front of the cabin. H.L.B. stopped his car on the road, attempting to block the road with his car. H.L.B. then got out of his car, taking with him an uncased shotgun. The shotgun was loaded with shells used by H.L.B. for goose hunting.

H.L.B. confronted M.G.D. and his two passengers, who by this time had left the cabin and returned to the car. H.L.B. attempted to detain the suspected burglars until the police arrived, but M.G.D. started to drive his car around H.L.B., at which point H.L.B., who was only a few feet away from M.G.D., shot at the left rear tire of M.G.D.’s car. M.G.D. stopped his car and together with the two passengers got out of the car and started yelling at H.L.B. The four individuals yelled at each other for approximately 30 seconds. After H.L.B. told M.G.D. and the two passengers that the police were on their way, the two passengers ran away from the scene. M.G.D. remained at the scene with his car. A short time later, another car approached on the road. H.L.B., wishing to move his car so the other car could pass by, got into his car, set down his shotgun, and began to move his car to the side of the road. Upon seeing H.L.B. move his car, M.G.D. got into his car and sped away from the cabin. As M.G.D. drove away, H.L.B. fired at least two additional shotgun blasts at M.G.D.’s car. H.L.B. then got into his car and chased M.G.D., but soon gave up the chase.

Upon arriving at the scene, the police examined the cabin for missing items. The police concluded that certain items had been removed from an upstairs cabinet. H.L.B. told the police that a TV and VCR were missing, and subsequently provided receipts for the purchase of these items.

The next day, a local police officer responded to a call from M.G.D.’s parents’ residence, informing the officer that M.G.D. may have been involved in the incident. The officer questioned M.G.D. and examined his car. The officer observed that the left-rear hubcap was missing and concluded that it had probably been shot off by a shotgun blast. The officer also observed that there was a small hole on a valance on the rear of the car, possibly made by BB’s that had struck the car. This was the extent of the damage observed by the officer.

M.G.D. was charged with Liabilities for Crimes of Another-Second Degree Burglary, in violation of Minn.Stat. §§ 609.05 and 609.582, subd. 2(a) (2002). On April 2, 1998, M.G.D. pleaded guilty to the charge. In a claim for restitution, H.L.B. provided evidence that a TV and VCR were stolen from his cabin. However, M.G.D. continued to insist that neither he nor his passengers took anything from the cabin. In the restitution order, the district court ordered M.G.D. to pay $250 to H.L.B., representing approximately one-third of the value of the stolen property and damage suffered by H.L.B. as a result of the burglary, as well as the amount of H.L.B.’s deductible for insurance on his cabin. Based on the same incident, H.L.B. was charged with and pleaded guilty to possession of an uncased firearm. M.G.D.’s two passengers were never charged.

Later that same month, after paying the $250 in restitution, M.G.D. and his mother approached appellant to discuss the matter with him. Appellant agreed to represent M.G.D. in a civil action against H.L.B. M.G.D. told appellant that the shots fired by H.L.B. had hit the entire trunk area of his car. Appellant was given papers related to the case, and indicated to M.G.D. that there was no doubt he was guilty of burglary. Appellant did not view the car before submitting the complaint, though he claims he was told at this point that the car had been destroyed.

A few days after meeting with M.G.D., appellant commenced a civil action on M.G.D.’s behalf against H.L.B. Count I of the complaint alleged that [H.L.B.] assaulted M.G.D., stating in part: “In the course of said assault, defendant H.L.B. shot bullets into the vehicle well above the tire-line, including the entire back trunk of the car.” Count II of the complaint alleged defamation by H.L.B. and reads as follows:

I.

After the aforesaid incident, at various times and places, defendant claimed that plaintiff had stolen various items of his personal property.

II.

Defendant further made false statements to police and prosecutorial authorities, claiming that plaintiff had stolen property of great value from him, knowing that plaintiff had not stolen such item.

III.

Defendant abused process by making the aforesaid statements to the police and prosecutorial authorities.

IV.

Defendant maliciously caused plaintiff to be prosecuted by making the aforesaid statements to the police and prosecutorial authorities.

V.

As a result of such false and defamatory statements to police and prosecutorial authorities and others, plaintiff suffered a loss of reputation and has been forced to expend considerable sums of money to defend himself and clear his name, and has undergone stress and emotional suffering.

H.L.B. answered the complaint and filed a counterclaim against M.G.D. H.L.B. generally denied any liability, making reference to the guilty plea entered by M.G.D. for aiding and abetting burglary. At a pretrial conference in July 1999, the district court inquired about the merits of the defamation claim, but nevertheless the case proceeded to trial.

A jury trial was held December 14-15, 1999. Appellant attempted to submit as evidence pictures that he had recently taken of M.G.D.’s car. The district court refused to admit the pictures into evidence because of their late disclosure and because they had been taken over two years after the incident. The court noted that the photographs did not reveal any visible bullet holes or dents. Appellant presented no evidence in support of the defamation claim. At the close of evidence, appellant successfully sought to amend the complaint to drop the defamation claim and to add a claim of battery. The jury returned a verdict, finding that (1) H.L.B. did not assault M.G.D.; (2) H.L.B. did commit a battery on M.G.D.; (3) M.G.D. did not assault H.L.B.; and (4) M.G.D. did take or cause loss of property owned by H.L.B. or did aid and abet others in doing so. The jury found that $20 was fair and adequate compensation for the battery, and also awarded $250 to H.L.B., which the jury understood to be the amount already paid by M.G.D. in restitution. The court then ordered H.L.B. to pay M.G.D. $20.

Following the trial, appellant made motions on behalf of M.G.D. for a new trial and additur. H.L.B. then made a motion for sanctions under Rule 11 seeking reimbursement for attorney fees and costs. The district court denied M.G.D.’s motions, but awarded H.L.B. $300 in attorney fees as a sanction under Rule 11. The court stated that the imposition of sanctions was proper because the claim that H.L.B. shot bullets into “the entire back trunk” of M.G.D.’s car was “without evidentiary support.” The court noted that appellant had 20 months between the time of the original pleading and the time of trial in which to investigate the claims, yet appellant did not personally view the car until just before trial. The court also stated that sanctions were proper because (1) the defamation claim was without evidentiary support because truth is an absolute defense to defamation, and (2) H.L.B. had a right to report the burglary based on his personal observations of M.G.D.’s behavior and his observations that property was missing from his cabin. The court noted that the defamation claim could have been dismissed at either the July 1999 pretrial conference or the motion in limine hearing the day before the trial.

Appellant submitted an appeal on behalf of M.G.D. for the denial of his post-trial motions and the imposition of $300 in Rule 11 sanctions. The Minnesota Court of Appeals, in an unpublished decision, affirmed the district court’s denial of the post-trial motions, but reversed the court’s imposition of Rule 11 sanctions because appellant had not been provided sufficient notice based on specific conduct in order to impose sanctions. The court of appeals noted that before and during trial, the only indication that H.L.B. would seek sanctions from M.G.D. was a statement in his answer asking that the district court enter judgment “for all attorney and witness fees, statutory costs and disbursements incurred to defend this meritless cause of action.” The court of appeals concluded that “[t]he general request for sanctions did not further the deterrent purpose of sanctions because it did not specifically identify the litigation abuses that [H.L.B.] sought to end.”; thus, it did not provide adequate notice to permit Rule 11 sanctions. The court did, however, add:

We agree with the trial court’s determination that there were litigation abuses in this case that warranted sanctions. In particular, [M.G.D.] ’s allegation that [H.L.B.] shot bullets into the entire back trunk of the car appears to have no factual basis whatsoever, and [appellant] could have discovered this by simply looking at the car.

In June 2001, H.L.B. filed an ethics complaint against appellant with the Office of Lawyers Professional Responsibility. The Director issued a determination that discipline was not warranted under Rule 8(d)(1), Rules on Lawyers Professional Responsibility. The Director issued his determination without investigating the claim and one of the primary reasons given by the Director for concluding that an investigation was not warranted was that the Rule 11 sanctions had been reversed. H.L.B. appealed pursuant to Rule 8(e), RLPR, and the reviewing Board member directed that the matter be further investigated. After investigation, the Director issued an admonition against appellant for violations of Minn. R. Prof. Conduct 3.1.

The Director found that there was no evidentiary support for M.G.D.’s defamation claim and no support or effort to investigate the claim that H.L.B. shot bullets into “the entire back trunk” of M.G.D.’s car. Regarding the defamation claim, the Director stated:

Truth is an absolute defense to a defamation claim. Jadwin v. Minneapolis Star Tribune Co., 390 N.W.2d 437, 440 (Minn.Ct.App.1986). The record regarding the defamation claim is clear: [appellant]’s client pled guilty to second degree burglary before the complaint was signed and the lawsuit brought. [Appellant] was aware of the juvenile matter in which his client pleaded guilty and paid restitution to complainant, but nevertheless failed to withdraw the defamation claim until immediately before the case was submitted to the jury. This is a violation of Rule 3.1, MRPC.

The Director also found that the court of appeals reversed the imposition of sanctions under Rule 11 on “technical notice grounds” because appellant had not been provided with sufficient notice that sanctions might be issued.

Appellant appealed the admonition to a panel of the Lawyers Board on Professional Responsibility, as provided by Rules 8(d)(2)(iii) and 9(a), RLPR. The panel affirmed the admonition in February 2003. Appellant filed a notice of appeal with our court under Rule 9(m), RLPR, asking us to overturn that decision.

We review a decision to issue an admonition by determining whether the decision was clearly erroneous. In re Admonition issued to X.Y., 529 N.W.2d 688, 689-90 (Minn.1995). The purpose of attorney discipline is to provide protection to the public. In re Disciplinary Action Against Walker, 461 N.W.2d 219, 222 (Minn.1990). Discipline is imposed according to the facts of each case. In determining appropriate sanctions for misconduct, we weigh: (1) the nature of the misconduct, (2) the cumulative weight of the disciplinary violations, (3) the harm to the public, and (4) the harm to the legal profession. Id.

Rule 8(d)(2), RLPR, authorizes the Director to issue an admonition, the lowest level of discipline available, when a lawyer engages in isolated, nonserious violations of the disciplinary rules. In re Charges of Unprofessional Conduct against M.D.K., 534 N.W.2d 271, 272 (Minn.1995). We have affirmed admonitions based on minor violations of a single rule. See In re Panel File Number 99-5, 607 N.W.2d 429, 431 (Minn.2000) (affirming an admonition of a lawyer for violating Minn. R. Prof. Conduct 1.2(a) for failing to take a settlement offer to an opposing party which his client wanted presented); In re Charges of Unprofessional Conduct Against 97-29, 581 N.W.2d 347, 351 (Minn.1998) (affirming an admonition of a lawyer for soliciting business in violation of Minn. R. Prof. Conduct 7.3 when lawyer made a telephone call specifically soliciting). An admonition is issued in lieu of the Director’s presenting charges of unprofessional conduct to a panel. Rule 8(d)(2)(ii). The expectation is that the offending lawyer will “exhibit a renewed commitment to ethical behavior” in the future. In re Disciplinary Action Against Iliff, 487 N.W.2d 234, 236 (Minn.1992).

Appellant’s first argument is that the admonition should be overturned because it is not appropriate in this case based on principles of collateral estoppel. According to appellant, principles of collateral estoppel, while “not * * * directly relevant in the ethics context,” should prevent an admonition based on violations of Minn. R. Prof. Conduct 3.1 where sanctions under Rule 11 have been considered, but not imposed. Barring that, appellant argues that the notice requirement of Rule 11 should be read into Minn. R. Prof. Conduct 3.1.

Collateral estoppel “precludes parties from relitigating issues which are identical to issues previously litigated and which [are] necessary and essential to the former resulting judgment.” Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn.1990). But, as appellant admits, collateral estoppel is not directly relevant in this case because issues dealt with in civil litigation and legal ethics are not identical. Moreover, the contention that principles of collateral estoppel should apply ignores fundamental differences between the Rules of Civil Procedure and the Rules of Professional Conduct. “The purpose of attorney discipline is not to punish the attorney, but rather to protect the public, the courts, the legal profession, and the administration of justice.” In re Disciplinary Action Against Albrecht, 660 N.W.2d 790, 794 (Minn.2003) (citing In re Disciplinary Action Against W. Shaughnessy, 467 N.W.2d 620, 621-22 (Minn.1991)). Considerations for imposing ethical sanctions differ from considerations of Rule 11 sanctions. For example, when imposing sanctions for an ethical violation, we consider the lawyer’s disciplinary history, “especially when the [past] discipline is for misconduct similar to present violations because an attorney is expected to show ‘renewed commitment’ to professional ethics after being disciplined.” Id. (quoting In re Disciplinary Action Against Iliff, 487 N.W.2d at 236).

Appellant’s other contention, that the notice requirement of Rule 11 should be read into Minn. R. Prof. Conduct 3.1, also fails to recognize the difference between civil litigation penalties and ethical standards for professional misconduct. In Kellar v. Von Holtum, 605 N.W.2d 696, 701 (Minn.2000), we held that when a party does not give notice of intent to seek sanctions until after the appeals process has concluded, attorney fees cannot be awarded as a sanction under Rule 11. It was on this basis that the court of appeals reversed the district court’s imposition of sanctions under Rule 11. The Minnesota Rules of Professional Conduct do not provide for a notice requirement to Rule 3.1, however, and we decline to read such a requirement into the rule. The Rules of Professional Conduct serve a different purpose than Rule 11 civil litigation penalties; therefore, we conclude that appellant’s argument lacks merit.

Appellant next argues that the panel was clearly erroneous in affirming the admonition because he claims he had a good faith basis for the claims that “[H.L.B.] shot bullets into the car above the tire-line, including the entire back trunk of the car” and that H.L.B. “made false statements to the police and prosecu-torial authorities” which “maliciously caused” M.G.D. to be defamed. In reviewing allegations of professional misconduct, we analyze behavior using an objective standard “dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” In re Disciplinary Action Against Graham, 453 N.W.2d 313, 322 (Minn.1990.)

M.G.D. told appellant that his ear had been shot at least three times and that one of the blasts had struck the entire rear end of the car. Appellant possessed some of the police reports and statements to the police, which indicate damage only to the valance in the rear and damage to the hubcap on the left rear tire and provide no evidence that the trunk of the car was shot with “bullets.” The Director argues that appellant should have inspected the car for damages before making a statement in the complaint. Furthermore, the Director argues that appellant should have obtained, before submitting the complaint, whatever police reports, statements, and papers related to M.G.D.’s plea agreement that appellant did not have in his possession.

As for the defamation claim, appellant relies on the legal distinction between burglary and theft as the basis for his argument that H.L.B. maliciously caused M.G.D. to be defamed. Second-degree burglary, to which M.G.D. pleaded guilty, is defined as entering a dwelling “without consent and with intent to commit a crime” or “commit[ting] a crime while in the building, either directly or as an accomplice ⅜ * ⅜.” Minn.Stat. § 609.582, subd. 2(a) (2002). M.G.D.’s plea of guilty to second-degree burglary was not an admission that he had stolen H.L.B.’s personal property. Despite pleading guilty and paying $250 in restitution, M.G.D. has consistently claimed that he was not involved in stealing any property. The district court heard these arguments and found that the TV and VCR “were not in the car driven by [M.G.D.].” Nonetheless, the district court ordered M.G.D. to pay H.L.B. $250 for stolen and damaged property. Given the restitution order, M.G.D. could not plausibly claim that H.L.B. maliciously caused him to be defamed by discussing the incident with the authorities.

After considering all of appellant’s arguments, we conclude that the Director’s admonition should be affirmed. Our standard of review in this matter is to set aside the Director’s decision only if it is clearly erroneous. In re Admonition issued to X.Y., 529 N.W.2d at 689-90. Here, the Director found that there was no eviden-tiary support for M.G.D.’s defamation claim and no support or effort to investigate the claim that H.L.B. shot “bullets” into “the entire back trunk” of M.G.D.’s car. Based upon this record, we cannot conclude that the Director’s decision to issue an admonition was clear error. Further, appellant’s history of stepping over similar ethical boundary lines supports the issuance of an admonition. In affirming the Director’s decision, we do so based on the facts before us in this case and note that nothing in our opinion should be construed to prevent lawyers from making a “good faith argument for an extension, modification or reversal of existing law,” as Minn. R. Prof. Conduct 8.1 specifically allows. Lawyers need, and are permitted, reasonable latitude in pleading' their causes of action and fleshing them out before the court.

For all the reasons above, we affirm the admonition.

Affirmed.

      . Rule 8(e), RLPR, provides, "If the complainant is not satisfied with the Director’s disposition * * * the complainant may appeal the matter by notifying the Director in writing within fourteen days” that the complainant wishes to have the matter reviewed by a Board member. "The reviewing Board member may: * ⅜ * (2) direct that further investigation be undertaken; * *

      . Rule 3.1 of the Minnesota Rules on Professional Conduct provides, in relevant part, "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

      . Appellant argues that a subjective standard should be applied to the application of Minn. R. Prof. Conduct 3.1. We decline to adopt such an exception. Appellant cites In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir.2003), for the proposition that a subjective standard should be used. In re Pennie & Edmonds holds that a subjective bad faith standard applies to the imposition of Rule 11 sanctions under the Federal Rules of Evidence in a case in which a judge, sua sponte, initiated a post-trial Rule 11 sanction proceeding such that the challenged lawyer did not have the safe harbor to withdraw the challenged document. In In re Graham, however, we held that the standard for reviewing a charge that a lawyer had made false allegations against a judge in violation of Minn. R. Prof. Conduct 8.2 "must reflect that level of competence, of sense of responsibility to the legal system, of understanding of legal rights and of legal procedures to be used only for legitimate purposes and not to harass or intimidate others, that is essential to the character of an attorney practicing in Minnesota.” 453 N.W.2d 313, 322 (Minn.1990). Moreover, both this court and the federal courts generally apply an objective standard of behavior in applying Rule 11 sanctions. See Uselman v. Uselman, 464 N.W.2d 130, 142-43 (Minn.1990); Bus. Guides, Inc. v. Chromatic Comm. Enters., Inc., 498 U.S. 533, 544-47, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    Roy W. HABECK, Trustee for the heirs and next-of-kin of Adam R. Habeck, decedent, Respondent, v. Stephen OUVERSON, Defendant, Mille Lacs County Agricultural Society, et al., Appellants.
    No. C1-02-2154.
    Court of Appeals of Minnesota.
    Oct. 14, 2003.

      Howard P. Helgen, Helgen & Helgen, P.A., Coon Rapids, MN, for respondent.
    Stephen G. Andersen, Mark Jared Gir-ouard, Ratwik Roszak & Maloney, Minneapolis, MN, for appedants.
    Considered and decided by KLAPHAKE, Presiding Judge; TOUSSAINT, Chief Judge; and SHUMAKER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This wrongful-death action stems from a child’s death by a tractor-trader used to transport county fair visitors within the county fairgrounds. Appellants, the county fair board and the tractor-trader driver, challenge the district court’s denial of their immunity defense under the recreational-use immunity statute, Minn.Stat. § 466.03, subd. 6e (2002). Because we conclude the fair-board-sponsored transportation of fair visitors within the fairgrounds is a recreational service, we reverse and remand.

FACTS

The Mdle Lacs County Fair, which takes place on the Mide Lacs County Fairgrounds, is organized by appellant Mdle Lacs County Agricultural Society (the Fair Board). In 1997, to transport fair visitors within the fair grounds, Stephen Ouverson, a Fair Board member, added benches to his trader and pulled it behind his tractor. The front section of the trader contained wooden benches and was intended for adult riders, whde the rear section contained hay bales and was intended for children. Between the two sections were a rear axle and wheels, which were beneath wheel covers. The Fair Board used the tractor-trader again at the 1998 fair.

On August 8, 1998, appellant Roland Keena, the fair’s groundskeeper, agreed to drive the tractor-trader. Although no one witnessed the incident itself, at some point late that afternoon, the tractor-trader’s rear wheels ran over six-year-old Adam Habeck. He died from massive head injuries. An investigation concluded that Adam had apparently fallen from the wagon. The medical examiner and the county attorney determined that the death was accidental, and the county attorney found no indication that the chdd was pushed from the wagon or that the driver was driving negligently or carelessly.

Respondent Roy W. Habeck, acting as trustee for Adam’s heirs and next-of-kin, sued the Fair Board, Ouverson and Keena. Habeck alleged that the Fair Board had negligently supervised visitors who rode on the tractor-trailer, that Ouverson had negligently designed the tractor-trailer, and that Keena had negligently operated the tractor-trailer.

All parties moved for summary judgment. The Fair Board, Ouverson, and Keena argued that they were protected from liability under the recreational-use immunity statute, Minn.Stat. § 466.03, subd. 6e (2002), and as an uncompensated board member, Ouverson also argued that he was entitled to immunity under Minn. Stat. § 38.013 (2002).

On September 27, 2002, the district court granted summary judgment to Ou-verson but denied summary judgment to the Fair Board and Keena. The Fair Board and Keena requested reconsideration by the district court and filed a notice of appeal to this court. The district court granted the request for reconsideration, and this court consequently dismissed the pending appeal, returning jurisdiction to the district court. After the district court affirmed its prior decision in all respects, this court reinstated the Fair Board and Keena’s appeal on the issue of the district court’s denial of the recreational-use immunity-based motion for summary judgment. Respondent’s notice of review, pertaining only to his claims against Ouverson, was not reinstated.

ISSUE

Are a county fair board and groundskeeper entitled to recreational-use immunity where a fair visitor is fatally injured by a tractor-trailer used to transport visitors within the fairgrounds?

ANALYSIS

On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A summary judgment order denying an immunity defense is immediately appealable because immunity from suit is lost if a case is erroneously allowed to go to trial. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832-33 (Minn.1995). Whether a municipality is protected by statutory immunity is a question of law, which an appellate court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn.1996).

A municipality, which includes a county agricultural society and its agents, is generally liable for its torts. Minn.Stat. §§ 466.01, subds. 1, 6, .02 (2002). But such liability does not apply to

[a]ny claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, ... if the claim arises from a loss incurred by a user of park and recreation property or services.

Minn.Stat. § 466.03, subd. 6e (2002). This exception to liability, referred to as recreational-use immunity, if applicable, does not completely absolve state agencies from liability, but it “enables them to treat visitors, in the tort context, as trespassers rather than licensees or invitees.” Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 213 (Minn.App.2001) (citation omitted), review denied (Minn. Dec. 11, 2001). The party asserting an immunity defense bears the burden to demonstrate that it is entitled to that immunity. Bloss v. Univ. of Minn. Bd. of Regents, 590 N.W.2d 661, 664 (Minn.App.1999).

The relevant portion of the statute extends immunity only to the operation and maintenance of property “that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services.” Minn.Stat. § 466.03, subd. 6e. Minnesota courts interpreting the statute have found that places such as lakes, parks, and artificial ponds are properties covered by the statute. See, e.g., Johnson v. Washington County, 518 N.W.2d 594, 597 (Minn.1994) (concluding immunity existed where lifeguards provided recreational services as part of operation of park); Stiele ex rel. Gladieux v. City of Crystal, 646 N.W.2d 251, 253-54 (Minn.App.2002) (noting that it was undisputed that city park was covered property); Lloyd v. City of St. Paul, 538 N.W.2d 921, 923 (Minn.App.1995) (concluding immunity existed where paddle-boat operator at city park negligently operated boat), review denied (Minn. Dec. 20, 1995); Zacharias v. Minn. Dep’t of Natural Resources, 506 N.W.2d 313, 315-16 (Minn.App.1993) (deciding that artificially created swimming pond in state park falls within immunity provision), review denied (Minn. Nov. 16, 1993). While the statute contains no explicit limitation on what may be considered a recreational area, the plain meaning of the statute encompasses the county-owned land and county-approved use of the property for an activity recreational in nature and attended by the public or paying customers, like the county fairgrounds. See Merchlewitz v. Midwest 4 Wheel Drive Ass’n, 587 N.W.2d 652, 656 (Minn.App.1999) (determining immunity covered city-approved event on city-owned property); see also Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 519 (Minn.App.1998) (determining that tennis courts were “recreational area” because they were operated and maintained by city).

A. Loss Incurred by User of Tractor-Trailer

Appellants argue that the district court erred in its conclusion that recreational-use immunity does not cover injuries from personalty such as a tractor-trailer, but that it addresses only claims regarding the real property itself and items “intricately connected to realty.” The court focused on the word “property” in the statutory phrase limiting liability to claims arising “from a loss incurred by a user of park and recreation property or services.” Minn.Stat. § 466.03, subd. 6e. The district court relied on several foreign cases when it narrowly defined the term “property” to mean “real estate itself, or fixtures or appurtenances intrinsically associated with real estate” and excluded the tractor-trailer. Similarly, respondent cites foreign case law construing other states’ immunity statutes. We decline to follow these authorities to construe Minnesota’s recreational-use immunity statute.

The Minnesota statute specifically covers claims arising from a “loss incurred by a user of park and recreation property or services.” Id. Minnesota case law provides no support for the district court’s narrow interpretation of the statutes. Recreational-use immunity under subdivision 6e covers claims arising from alleged negligence based on the provision of recreational services and unrelated to the condition of the recreational property. See, e.g., Lloyd, 538 N.W.2d at 923 (immunity where operator tipped paddleboat, injuring passenger); Zacharias, 506 N.W.2d at 315-16 (immunity for claims of negligent supervision where boy drowned in artificially created pond). The negligent operation of the paddleboat in Lloyd and the negligent supervision in Zacharias, as in the alleged negligent operation of the tractor-trailer, were not prefaced on the defective condition of the real property, but the recreational services provided. Therefore, the district court erred in its conclusion that the recreational-use immunity statute does not provide immunity to the Fair Board and its agent for losses arising out of the use of a tractor-trailer for transportation at a county fair.

B. Appropriate Trespasser Standard

Immunity through the recreational-use statute does not completely absolve the Fair Board and its agent from liability. Liability for its treatment of visitors, however, falls under trespasser liability, rather than licensee or invitee liability. Fear, 634 N.W.2d at 213. In denying summary judgment, the district court did not reach the issue of which standard of trespass was applicable: the general standard under Restatement (Second) of Torts § 335 (1965), or the more rigorous child-trespasser standard under Restatement (Second) of Torts § 339 (1965).

The Fair Board argues that section 339 does not apply here because the claim involves the operation of machinery rather than the land itself and because “childproofing” the fairgrounds would be impracticable. Minnesota courts have long recognized section 339 as the successor to the attractive-nuisance doctrine to abolish the “idea of invitation * * ⅜ as condition precedent to liability in the case of young children injured.” Gimmestad v. Rose Bros., 194 Minn. 531, 536-37, 261 N.W. 194, 196 (1935) (interpreting predecessor to section 339). With facts similar to those here, the Minnesota Supreme Court affirmed a jury verdict that the child-trespasser standard applied where a child fell off of the tongue of a wagon and was run over by the wagon’s wheel. Middaugh v. Waseca Canning Co., 203 Minn. 456, 458, 281 N.W. 818, 819 (1938). More recently, this court held that the child-trespasser standard was appropriate where children were allowed to play on snow piles outside their school during recess. Fear, 634 N.W.2d at 214.

We believe that the facts here are also properly analyzed under section 339. Children were allowed to play on the rear portion of the trailer, near the wheels, and that portion was designed for use by children. It is true that the child-trespasser standard is not appropriate in situations that “may reasonably be expected to be understood and appreciated by any child of an age to be allowed at large.” Sirek ex rel. Beaumaster v. State, Dep’t of Natural Resources, 496 N.W.2d 807, 811 (Minn.1993) (quoting Restatement (Second) of Torts § 339 cmt. j (1965)). But here, although Adam’s parents were on the fairgrounds, they were not with him when he fell off the tractor-trailer. Further, the dangers of sitting near the rear wheels of a trailer would not be readily apparent to a six-year-old child, especially when the rear portion of the trailer was intended for, and primarily used by, children. Accordingly, application of the child-trespasser standard is appropriate.

DECISION

Because the district court erred in its conclusion that the recreational-use immunity statute does not cover the fair-board-sponsored transportation of county fair visitors within the fairgrounds as a recreational service, we reverse and remand. On remand, the district court shall apply the child-trespasser standard in determining whether the appellants are liable.

Reversed and remanded.

      . The text of Restatement (Second) of Torts § 339 is as follows:
      A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
      (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
      (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
      (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
      (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
      (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.


author: PETERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Mark Thomas HAWANCHAK, Appellant.
    No. CX-02-2217.
    Court of Appeals of Minnesota.
    Oct. 21, 2003.
    Mike Hatch, Attorney General, St. Paul, MN; and William L. Bernard, Michael J. Mayer, Grannis & Hauge, Eagan, MN, for respondent.
    John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; PETERSON, Judge; and MINGE, Judge.
   OPINION

PETERSON, Judge.

In this appeal from disorderly conduct and fifth-degree-assault convictions, appellant Mark Thomas Hawanchak argues that the district court violated his right to counsel when, without obtaining a waiver of his right to counsel, the court required him to represent himself at trial. Appellant also argues that the district court violated his right to counsel when it denied his request for appointed counsel. We reverse and remand for a new trial.

FACTS

Appellant was charged with three counts of fifth-degree assault and one count of disorderly conduct, all misdemeanor charges, stemming from an incident that occurred on May 11, 2002. When appellant was arraigned, he was informed of his constitutional rights, including his right to be represented by counsel.

The week before trial, appellant applied for court-appointed counsel. Appellant reported that he was recently unemployed; had $8,000 in assets; and monthly expenses of $2,500. Appellant stated on the application form that he had “tried to hire two attorneys and could not afford either.”

On December 6, 2002, the district court granted appellant’s request for the services of a public defender, subject to a determination of whether appellant would be required to reimburse the state for part of the cost of his defense. Appellant’s application and the district court order were apparently misplaced, and on December 9, 2002, the first day of trial, appellant submitted a second application that was substantially the same as the first, but reported additional assets and liabilities. Appellant reported that he owned real estate valued at $109,000; had a mortgage in the amount of $150,000; and owned two vehicles valued at $20,000 each.

Before the trial began, the district court instructed appellant about trial procedure, and appellant asked about his court-appointed counsel:

[APPELLANT]: Can I — I would like an opportunity to find out what happened to my public defender[.] ...
THE COURT: What are you asking for?
[APPELLANT]: I filed for a public defender.
THE COURT: I’ve got the application right here.
[APPELLANT]: No, no, no.
THE COURT: Well, there’s one that came in today.
[APPELLANT]: Right. That’s because they lost the one that I put in last week and stuff....
THE COURT: Okay. It doesn’t make any difference that they took your application last week. Let’s talk about this application.
[APPELLANT]: Okay. Would you grant me a public defender?
THE COURT: Well, when was your last date of employment?
[APPELLANT]: The 24th of last month.
THE COURT: Are you receiving unemployment compensation?
[APPELLANT]: I haven’t received anything yet.
THE COURT: Have you applied?
[APPELLANT]: I have applied, and I haven’t gotten anything. There’s been no income coming in.
THE COURT: What was your occupation?
[APPELLANT]: Telephone installer.
THE COURT: Oh, that’s right. You told me that. How much did you earn? How much did you earn in the first 11 months of this year?
[APPELLANT]: 69,000.
THE COURT: You do not qualify for the appointment of a public defender. You have to meet the federal — essentially the federal poverty guidelines, and that means considerably less income than what you’ve earned. You don’t qualify and you have assets.
[APPELLANT]: I have liabilities, too.
THE COURT: Right. But I — all I’m telling you is you don’t qualify.

Appellant moved for a continuance to prepare his case, and the district court denied the motion. The record contains no written or other waiver of counsel by appellant.

Following trial, the jury convicted appellant of disorderly conduct and one count of fifth-degree assault. The district court stayed imposition of sentence, placed appellant on probation for one year, declined to impose jail time as a condition of probation, and waived the mandatory minimum fine.

ISSUE

Did the district court violate appellant’s right to counsel when, without obtaining a written waiver of appellant’s right to counsel or making a record evidencing a refusal of counsel, the court required appellant to represent himself at trial?

ANALYSIS

The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to an attorney. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963). In Minnesota, an accused has a right to assistance of counsel in a misdemeanor prosecution whenever a conviction may lead to incarceration. State v. Nordstrom, 331 N.W.2d 901, 905 (Minn.1983).

The right to an attorney may be waived if the waiver is competent and intelligent. State v. Worthy, 583 N.W.2d 270, 275 (Minn.1998). “It is the duty of the trial court to ensure a knowing and intelligent waiver of the right to counsel.” State v. Krejci, 458 N.W.2d 407, 412 (Minn.1990). Minn.Stat. § 611.19 (2002) requires that “[w]here counsel is waived by a defendant, the waiver shall in all instances be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel.” See also Minn. R.Crim. P. 5.02 cmt. (“Minnesota law requires that a waiver of counsel be in writing unless the defendant refuses to sign the written waiver form. In that case a record of the waiver is permitted.”); Worthy, 583 N.W.2d at 274, 276 (holding trial court did not err in determining that defendants validly waived right to counsel when, on first day of trial, defendants fired attorneys who had been representing them for more than a month, and where defendants had prior experience in criminal justice system, and defendants were told that if they rejected their attorneys, they would have to proceed pro se); Krejci, 458 N.W.2d at 412-13 (holding defendant validly waived right to counsel where defendant’s interaction with 12 judges, conversations with two public defenders, and refusal to accept representation from public defender’s office, indicated that defendant was aware of consequences of proceeding pro se, and trial court and counsel explained to defendant nature of charges and possible punishments).

Appellant argues that the district court violated his right to counsel when it required him to represent himself at trial without obtaining a knowing and intelligent waiver of his right to counsel. We agree. The record does not contain a written waiver of counsel signed by appellant, and the district court did not make a record that demonstrates that appellant refused counsel. This is not a case like Worthy or Krejci, in which the defendants refused to accept the services of appointed counsel. Worthy, 583 N.W.2d at 276; Krejci, 458 N.W.2d at 412-13. Instead, the record indicates that on two occasions, appellant requested the services of the public defender.

The state argues that because appellant (1) was aware of his right to counsel, (2) could afford private counsel, and (3) moved for a continuance to prepare his case rather than to hire private counsel, the record demonstrates that appellant chose to defend himself after the district court denied him court-appointed counsel. But this argument fails to recognize that any waiver of the right to counsel must be a knowing and intelligent waiver. Even if appellant chose to defend himself, it was the duty of the district court to ensure that appellant’s waiver of counsel was knowing and intelligent. Burt v. State, 256 N.W.2d 633, 635 (Minn.1977). The record does not indicate that the district court made this determination. Where there is no record of a defendant’s waiver of counsel, it is impossible to determine upon appellate review whether a waiver was knowing and intelligent. State v. Edwards, 361 N.W.2d 90, 91 (Minn.App.1985). In such instances, the defendant is entitled to a new trial. Id.

The state also argues that because the district court took careful steps to ensure that appellant received a fair trial, his conviction should be affirmed. But, a denial of the right to counsel does not require a showing of prejudice to obtain reversal. State v. Camacho, 561 N.W.2d 160, 171 (Minn.1997).

Because we have concluded that appellant is entitled to a new trial because the district court violated his right to counsel, we will not address appellant’s argument that the district court erred when it denied his request for appointed counsel.

DECISION

Appellant is entitled to a new trial because his right to counsel was violated when, without obtaining a written waiver of counsel or making a record evidencing a refusal of counsel, the district court required appellant to represent himself at trial.

Reversed and remanded.

      . The state asserts that appellant’s home is valued at $150,000 with a mortgage of $109,000, but this is not what is reflected on the application.


text:
    STATE of Minnesota, Respondent, v. Larry Roosevelt NOBLE, Appellant.
    No. CX-02-1990.
    Court of Appeals of Minnesota.
    Oct. 21, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and STONEBURNER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from his conviction and sentence for felon in possession of a firearm, attempted second-degree murder, and attempted second-degree murder of an unborn child, appellant argues that the trial court erred in refusing to instruct the jury that in order to find him guilty of attempted second-degree murder of an unborn child, appellant must have specifically intended to kill the unborn child. Appellant also contends that because the unborn child was not directly harmed by the gunshot, transferred intent does not apply here. Finally, appellant argues that the court abused its discretion in imposing consecutive sentences for the two attempted-murder convictions because the resulting 28-year sentence exaggerated the criminality of appellant’s conduct in firing a single shot that did not directly harm the nonviable unborn child. Because the district court did not abuse its discretion in instructing the jury and in imposing consecutive sentences, we affirm.

FACTS

Appellant Larry Roosevelt Noble and A.W. were romantically involved, and had two children together. At the same time, Noble was likewise involved with another woman, K.L. Noble’s relationship with K.L. was a source of tension in his relationship with A.W. Noble was aware that A.W. was pregnant with his child. On March 27, 2002, Noble was at AW.’s residence in North Minneapolis. They had an argument regarding Noble’s relationship with K.L., and A.W. told Noble to remove his clothes from her apartment. Noble went outside toward AW.’s vehicle, which he had been driving.

There is some dispute as to what happened next. A.W. testified that she followed Noble to get her wallet out of the vehicle and to finish the conversation about their relationship. She said that Noble became increasingly agitated, told her “I’m going to kill you, b — ch,” and moved toward a bag where he kept two handguns. Fearful that Noble was going to shoot her, A.W. gathered her belongings and got out of the vehicle. She ran a few steps before she was shot in the back and collapsed in the snow.

Noble denies shooting A.W. in the back. He contends that she got into the back seat of the vehicle, was holding a gun that belonged to her, and told him that she was going to kill him. Noble argues that he struggled with her for the gun, heard the gun go off, saw A.W. get out of the vehicle, and drove away without realizing that A.W. had been shot.

A.W. was taken to the hospital, where she told doctors that she was just over one month pregnant with Noble’s child. The unborn child was apparently unharmed by the gunshot, but A.W. required surgery to repair her internal injuries. A.W. was advised that the anesthesia used during surgery could cause a miscarriage or birth defects. A.W. elected to proceed with the surgery. A.W. recovered from her injuries, but after considering the risks posed to the unborn child, she elected to terminate the pregnancy about one month after she was shot.

Noble was charged with attempted second-degree murder in violation of Minn. Stat. §§ 609.19, subd. 1(1), .17 (2000) and as a felon in possession of a pistol in violation of MinmStat. § 624.713, subd. 1(b) (2000). The complaint was later amended to add an additional count of attempted second-degree murder of an unborn child in violation of Minn.Stat. §§ 609.2662(1), .17 (2000).

At trial, a jury convicted Noble of all charges. The trial court sentenced Noble to 60 months for the offense of felon in possession of a pistol and then imposed consecutive sentences of 183 and 153 months for the attempted-murder offenses, ordering that the 60-month sentence run concurrently with the attempted-murder sentences. Noble challenges the trial court’s jury instruction for second-degree murder of an unborn child and the court’s imposition of consecutive sentences.

ISSUES
1. Did the trial court abuse its discretion by refusing to modify the standard jury instruction regarding attempted second-degree murder of an unborn child?
2. Where one attempted second-degree murder victim was a nonviable unborn child, did the sentencing court abuse its discretion in imposing permissive consecutive sentences?

ANALYSIS

I.

A trial court has broad discretion in determining the propriety of a specific jury instruction. State v. Daniels, 361 N.W.2d 819, 831 (Minn.1985). That determination will not be reversed absent an abuse of discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn.1989). When reviewing a jury charge, an appellate court must view the instructions in their entirety “to determine whether they fairly and adequately explained the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn.1988) (citation omitted). In doing so, a “reviewing court must assume that the jurors were intelligent and practical people.” State v. Weaver, 386 N.W.2d 413, 418 (Minn.App.1986) (citation omitted), review denied (Minn. June 19,1986).

The trial court instructed the jury on the elements of attempted second-degree intentional murder of an unborn child, in part, as follows:

The statutes of Minnesota define the crime of murder of an unborn child in the second degree as follows: Whoever, with intent to cause the death of an unborn child or another, but without premeditation, causes the death of an unborn child is guilty of a crime.
The elements of an attempt to commit murder of an unborn child in the second degree are: First, the defendant acted with intent to effect the death of the unborn child or another person.

(Emphasis added). These instructions were drawn from 10 Minnesota Practice, CRIMJIG 11.33 & 11.34 (1999), which in turn are based on the language of Minn. Stat. § 609.2662(1) (2000).

At trial, Noble objected to the use of the phrases “or another” and “or another person,” claiming that the doctrine of transferred intent does not apply in the context of attempts. On appeal, Noble argues that the doctrine of transferred intent does not apply if the unintended “victim” does not suffer harm as a result of the defendant’s conduct. The state agrees that in a typical case of attempted second-degree intentional murder a defendant could not be convicted unless the unintended “victim” did, in fact, suffer some harm. The state argues, however, that the trial court’s instruction was not an abuse of discretion because a mother and her unborn child cannot be distinguished the way that intended and unintended victims can be distinguished in an ordinary case of transferred intent.

An attempt requires that the actor have specific intent to perform acts and attain a result which if accomplished would constitute the crime alleged. See State v. Zupetz, 322 N.W.2d 730, 735 (Minn.1982); State v. Schmitz, 559 N.W.2d 701, 704 (Minn.App.1997), review denied (Minn. Apr. 15, 1997). At trial, the prosecutor argued that Noble’s alleged intent to kill A.W. could be transferred to her unborn child; however, the prosecutor also argued that Noble had an independent intent to terminate the life of the fetus, and indeed had a motive to do so.

It is questionable whether the doctrine of transferred intent applies to attempted murder. Although the homicide statutes themselves incorporate the doctrine of transferred intent, an attempt requires a specific intent to commit a particular crime, and a substantial step toward its completion. See generally Minn.Stat. § 609.17, subd. 1 (defining “attempt”); State v. Sutherlin, 396 N.W.2d 238, 240 (Minn.1986) (noting that language in homicide statute requiring intent to effect death of the person “or another” incorporates the doctrine of transferred intent). But we need not decide that issue because a fetus is not a typical “unintended victim,” and because Noble’s conviction does not rest on an application of the doctrine of transferred intent.

The jury could have concluded that Nobles did not intend to terminate the life of A.W.’s unborn child. Nevertheless, the jury may infer that a person intends the natural and probable consequences of his actions. State v. Cooper, 561 N.W.2d 175, 179 (Minn.1997). A natural and probable consequence of the death of A.W. would have been the death of her one-month-old fetus. Thus, even if Nobles had not fired the bullet into A.W.’s lower back, the jury could have inferred that he intended the death of the fetus as a natural and probable consequence of the death of A.W. That finding would not have involved an application of the doctrine of transferred intent.

The jury could also have found, based on the path of the bullet, that Noble did have a specific intent to cause the death of AW.’s unborn child. The court’s instructions, which allowed the jury to convict if it found an intent to cause the death of either the unborn child or another, did not require the jury to rely on the doctrine of transferred intent. And the prosecutor explicitly argued that Noble could have had an intent to kill the unborn child, and even had a motive to do so. Defense counsel conceded that the jury’s verdict could be based on a finding that Nobles intended to kill A.W., or her unborn child, or both. Thus, the trial court’s instruction allowing the jury to apply the doctrine of transferred intent, was not necessarily prejudicial.

An error in instructing the jury is harmless if it can be said beyond a reasonable doubt that it had no significant impact on the verdict. State v. Kuhnau, 622 N.W.2d 552 (Minn.2001). Assuming the trial court’s instruction that allowed the jury to apply transferred intent was error, we conclude that it was harmless.

In reviewing a court’s instructions to the jury, this court must assume the jurors are “intelligent and practical people.” Weaver, 386 N.W.2d at 418. The jury here had ample evidence from which to conclude that Nobles specifically intended the death of the unborn child, either as a natural and probable consequence of the death of A.W., or as a result of being struck by the bullet. In order to find prejudice from the transferred-intent instruction, we would have to assume the jury instead chose to apply the abstract doctrine of transferred intent. If the case had been argued at trial as a case of transferred intent, that assumption might be reasonable. But, as noted above, neither party relied on the doctrine in arguing the case to the jury. And the jury was faced with compelling facts — a bullet striking the lower back of a woman pregnant with a one-month-old fetus that probably could not have survived her death' — making it unnecessary for it to address the legal abstraction of' transferred intent. A practical juror would have focused on the direct risk of death posed for the unborn child, not on the transfer of intent from one victim to another victim then living in the first victim’s body. Therefore, we conclude beyond a reasonable doubt that any error in instructing the jury on the element of intent had no significant impact on the verdict.

II.

Noble also appeals the sentencing court’s imposition of consecutive sentences for the attempted murder charges. A sentencing court is in the best position to evaluate an offender’s conduct and to weigh sentencing options. Hough, 585 N.W.2d at 397. Consecutive sentences are permissive for multiple current felony convictions for crimes against persons. Minn. Sent. Guidelines II.F.2. "When reviewing such a sentence, an appellate court will not disturb the sentencing court’s decision unless the sentence “unfairly exaggerates the criminality of the defendant’s conduct.” Hough, 585 N.W.2d at 397 (citation omitted). An appellant bears the burden of showing any unfair exaggeration. Id. at 398.

The sentencing court here imposed a presumptive 183-month sentence for the attempted second-degree murder of A.W. and a permissive consecutive 153-month sentence, which was also the presumptive duration, for the attempted second-degree murder of A.W.’s unborn child. With the concurrent 60-month sentence for felon in possession of a handgun, Noble’s aggregate sentence was 336 months.

Noble concedes that when sentencing multiple felony convictions for crimes against multiple victims, consecutive sentencing is permissive and may be imposed without departure. See Minn. Sentencing Guidelines II.F & cmt. II.F.04; see also Minn.Stat. § 609.2691 (2002) (“Notwithstanding section 609.04, a prosecution for or conviction under sections 609.2661 to 609.268 is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”). Because the consecutive sentence here was permissive, the sentencing court was not required to state aggravating factors or grounds for its decision. Minn. Sent. Guidelines II.F & cmt. II.F.04.

In making its decision, the court examined the imposition of consecutive sentences in State v. Yang, 533 N.W.2d 81, 87 (Minn.App.1995) (holding that consecutive sentences did not exaggerate appellant’s criminality), review denied (Minn. Aug. 30, 1995). In Yang, the court considered (1) defendant’s knowledge of victim’s pregnancy; (2) defendant’s close relationship to the victims, as the woman’s lover and unborn child’s father; (3) defendant’s intrusion into victim’s home; (4) viability of the unborn child; (5) vulnerability of the victims; (6) manner of the offense; and (7) defendant’s failure to seek help for victims. Id.

Although it was not required to state the basis for its decision, the sentencing court here cited several of the Yang factors when it imposed the consecutive sentence. It found that (1) Noble knew that A.W. was pregnant; (2) he shot her outside her home; (3) A.W. and the child were particularly vulnerable victims, given the disparity in size between her and Noble; and (4) Noble left A.W. to die on the boulevard.

Noble argues that because the unborn child was not viable, the consecutive sentences exaggerate the criminality of his conduct. See Merrill, 450 N.W.2d at 320 (“medical science generally considers a fetus viable at 28 weeks following conception”). Minnesota does not consider the viability of unborn victims as an element under the criminal statute. Minn.Stat. §§ 609.266-.268 (2000); Merrill, 450 N.W.2d at 322 (noting that the statute does not distinguish between viable and nonviable unborn children). The statute defines an “unborn child” as “the unborn offspring of a human being conceived, but not yet born.” Minn.Stat. § 609.266(a) (2000). Because all unborn children are treated equally under the statute, a sentencing court is not required to consider viability in sentencing. The sentencing guidelines evidence this fact by providing the same severity level for the murder of an unborn child as for other murders. Yang, 533 N.W.2d at 87; Minn. Sent. Guidelines IV & V. A state has an important and legitimate interest in protecting pregnant women, and it “has still another important and legitimate interest in protecting the potentiality of human life.” Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973) (emphasis in original). An argument regarding a sentencing court’s consideration of the viability of an unborn child is one better addressed to the legislature. Cf. Merrill, 450 N.W.2d at 324 (holding that arguments about criminality of causing death of nonviable unborn children “must be addressed to the legislature”). Consequently, we decline to accept appellant’s invitation to consider the “maturity” of unborn children where the statute makes no such distinction.

Noble finally argues that the trial court exaggerated the criminality of his conduct because the record contains no evidence that his bullet harmed the unborn child. But the natural and probable consequences of the bullet — A.W.’s surgery and accompanying anesthesia — resulted in serious risk of harm to the unborn child. Further, an unborn child need not be harmed for an actor to be convicted of attempted murder. See, e.g., State v. Gisege, 561 N.W.2d 152, 156 (Minn.1997) (holding that attempted second-degree murder does not require proof of bodily harm). Consequently, the sentencing court did not abuse its discretion or exaggerate the criminality of Noble’s conduct when it imposed permissive consecutive sentences.

DECISION

The district court acted within its broad discretion in instructing the jury that intent to effect the death of another person would satisfy the mental state requirement. In addition, the sentencing court did not abuse its discretion by declining to consider the lack of direct harm to, or the non-viability of, the unborn child when it imposed consecutive sentences.

Affirmed.


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Appellant, v. David Scott SIME, Respondent.
    No. A03-279.
    Court of Appeals of Minnesota.
    Oct. 21, 2003.
    Mike Hatch, Attorney General, St. Paul, MN; and Robin W. Finke, Swift County Attorney, Benson, MN, for appellant.

      Gregory R. Anderson, Timothy J. Si-monson, Anderson Larson Hanson & Saunders, P.L.L.P., Willmar, MN, for respondent.
    Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant State of Minnesota challenges the district court’s order dismissing a complaint alleging two counts of criminal sexual conduct in the second degree for lack of probable cause. Because we conclude that the district court (1) abused its discretion when, after granting a continuance of the probable-cause hearing to permit the state to present testimony from out-of-state witnesses on the issue of probable cause, it dismissed the case without holding the hearing and (2) erred when it determined that the child complainant was not competent to testify based on a general assessment of children her age, rather than an individualized assessment of the complainant’s capacity to tell the truth and ability to recall the events about which she will be questioned, we reverse and remand.

FACTS

In 2002, Karen Phelps and her then four-year-old daughter (H.P.) were returning to Michigan after attending a graduation party in Benson, Minnesota for the son of respondent David Sime. During the trip, H.P. asked her mother if she wanted to touch H.P.’s genitals. Phelps, who was startled by this question, directed the conversation away from this topic. During her bath the following day, H.P. stated that her nancy was dirty and needed to be washed. H.P. then disclosed that Sime had touched her genital area under her underwear, and he had made her touch his penis.

When Phelps contacted the Benson Police Department, she was encouraged to have H.P. evaluated by a psychologist. On June 7, 2002, H.P. was interviewed by a social worker in Michigan. During the interview, H.P. disclosed that Sime had put his hands in her underpants and touched her vaginal area on more than one occasion. H.P. described this contact as painful and stated that it made her want to cry. H.P. also indicated that Sime had put his hand over her mouth and ordered her not to tell anyone about the sexual contact. H.P. also described Sime rubbing his penis against her buttocks while she was wearing underwear and forcing her to touch his penis, which she described in both its erect and flaccid state.

H.P. was confused about some of the circumstances surrounding the sexual conduct. For example, she was unclear about whether, in addition to the assaults in the house, Sime assaulted her in a “clubhouse” on Sime’s property. H.P. also was unclear about whether one of her cousins was present during the sexual abuse.

The June 7 interview was not videotaped. During a subsequent attempt to interview H.P. on video, she refused to cooperate. Similarly, when a physician conducted a physical examination of H.P., H.P. initially declined to acknowledge any sexual abuse. The physical examination revealed no signs of sexual abuse.

Sime was charged with two counts of second-degree criminal sexual conduct, in violation of Minn. Stat § 609.343, subds. 1(a), 2, and subd. 1(g) (2000). The state sought to have HJP.’s out-of-court statements admitted into evidence pursuant to Minn.Stat. § 595.02, subd. 3 (2002), arguing that H.P. may not be competent to testify and that her statements to her mother and the social worker are admissible. The state also moved the district court to allow H.P. to testify outside of Sime’s presence. Sime opposed the state’s motions, sought permission to have his own psychological expert examine H.P., and moved to have the case dismissed for lack of probable cause. The district court held an omnibus hearing in February 2002, during which it granted a continuance to permit the state to produce witnesses to testify regarding the probable-cause issue. Shortly thereafter, Sime’s counsel sent the district court a letter reiterating its argument that probable cause did not exist. The state objected to this unsolicited contact with the district court while the hearing was pending.

Without resuming the hearing, the district court dismissed the complaint for lack of probable cause. The district court found that H.P. was incompetent to testify because of her age at the time of the alleged incident, the amount of time that would elapse between the incident and the trial, and the district court’s doubt as to the ability of any child of H.P.’s age to appreciate the obligations to testify truthfully and to accurately relate the details of the alleged abuse. The district court also ruled that H.P.’s out-of-court statements were inadmissible because they lacked reliability. Without H.P.’s statements in evidence, the district court determined that there was not probable cause to believe that Sime committed the charged offenses. This appeal followed.

ISSUES

I.After granting a continuance to permit the production of testimony on the contested issue of probable cause, did the district court err in dismissing the case prior to resuming the hearing?

II. Did the district court abuse its discretion when it determined, without examination, that a four-year-old complainant was incompetent to testify?

III. Did the district court err in concluding that the out-of-court statements of a four-year-old alleged victim of multiple sexual assaults were unreliable and, therefore, inadmissible?

IV. Did the district court err by accepting an unsolicited letter from counsel for Sime while awaiting the resumption of the omnibus hearing?

ANALYSIS

The state may appeal as of right to this court “from any pretrial order of the trial court, including probable cause dismissal orders based on questions of law.” Minn. R.Crim. P. 28.04, subd. 1(1). To prevail, the state must clearly show that the district court “erred in its judgment and ... the error will have a critical impact on the outcome of the trial.” State v. Hanson, 583 N.W.2d 4, 5 (Minn.App.1998), review denied (Minn. Oct. 29, 1998). Critical impact exists where the district court dismisses a complaint for lack of probable cause. Id. at 5-6.

I.

The state contends that the district court erred by continuing the omnibus hearing to permit the state to produce witnesses on the contested issue of probable cause and then dismissing the case before the resumption of the hearing. In its order, the district court offered no explanation for this action, which effectively served as a denial of the state’s motion for continuance.

District courts have broad discretion on matters of continuances. State v. Vance, 254 N.W.2d 353, 358 (Minn.1977). Such discretion must be exercised based on the facts and circumstances surrounding the request. Id. An unreasoned or arbitrary denial in the presence of a justifiable request for delay constitutes an abuse of discretion. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). For example, in State v. Stroud, we ruled that the district court abused its discretion by denying the state’s continuance request in order to obtain DNA test results where the state had acted diligently in submitting the sample to the FBI lab and the delay was beyond the state’s control. 459 N.W.2d 332, 335 (Minn.App.1990). Because the state had acted in good faith and the denial of the continuance made it impossible for the state to prove its case, we concluded that the district court had abused its discretion. Id.

Here, the district court granted the state’s request for a continuance of the omnibus hearing to produce the testimony of witnesses who reside in Michigan. In the absence of evidence in the record or an explicit finding that the state’s request was in bad faith or the result of a failure to act diligently, we can infer that the district court’s continuance was proper based on the facts and circumstances surrounding the state’s request. Under these circumstances, the district court’s sua sponte withdrawal of the continuance and closure of the hearing, without providing notice or any rationale for its action, constitutes an arbitrary action that prejudiced the state by preventing it from presenting additional evidence to support the charges. The district court’s dismissal of the charges prior to resuming the continued hearing precluded a decision based on a fully developed record on the probable-cause issue. As discussed below, the decision was based on determinations of the complainant’s competency and credibility that are unsupported by the record. We, therefore, reverse the district court’s dismissal and remand this matter to the district court for a hearing set within a reasonable amount of time to permit the state to produce its witnesses.

II.

The state next argues that the district court abused its discretion in determining that H.P. was not competent to testify. Before addressing the merits of the state’s argument, we first address Sime’s claim that the state is precluded from arguing that H.P. is competent. Sime contends that the state waived the issue of H.P.’s competency because the state asserted she was incompetent in both its oral and written arguments. A full and fair reading of the record, however, leads to a different conclusion. Although the state argued that H.P. may be incompetent when it moved the district court to admit her out-of-court statements pursuant to Minn.Stat. § 595.02, subd. 3 (2002), the record establishes that the state was arguing in the alternative to its position that H.P. was a competent witness. Thus, the issue of H.P.’s competency has not been waived.

“The determination of a witness’ competency is one peculiarly for the trial court to consider.” State v. Lau, 409 N.W.2d 275, 277 (Minn.App.1987). As such, it rests within the sound discretion of the district court. State v. Berry, 309 N.W.2d 777, 782 (Minn.1981).

Prior to 1987, children under the age of ten were presumed incompetent to testify unless their competency was otherwise demonstrated. State v. Scott, 501 N.W.2d 608, 613 (Minn.1993). The legislature subsequently amended Minn.Stat. § 595.02, subd. l(m) (2002), and created the presumption that children are competent to testify unless the district court specifically finds the contrary to be true. See Minn. Stat. § 595.02, subd. l(m); Scott, 501 N.W.2d at 613. “Where the court is in doubt as to the child’s competency, it is best to err on the side of determining the child to be competent.” State v. Lanam, 459 N.W.2d 656, 660 (Minn.1990).

The district court did not conduct a competency hearing with H.P. present prior to determining H.P.’s competency. Rather, the district court concluded that H.P. was not competent for the following reasons: (1) H.P. was four years old at the time of the alleged incident and a trial would occur over a year later; (2) it is “doubtful that a child at such a young age can understand the obligations of an oath, remember the events with any clarity and articulate those events!;]” (3) H.P. is “camera shy and shuts down when videotaped!;]” and (4) physical accommodations could not be made to permit H.P. to testify in a “secure atmosphere” outside the presence of Sime, while still allowing him to hear H.P.’s testimony.

Minn.Stat. § 595.02 requires the district court to engage in a two-part analysis when determining competency. State v. Struss, 404 N.W.2d 811, 814 (Minn.App.1987), review denied (Minn. June 9, 1987). The district court must first conclude that the child has (1) the capacity to tell the truth and (2) the ability to recall facts. Id. A competency determination is not the same as a credibility determination. Lanam, 459 N.W.2d at 660 (stating that “[t]he jury will judge the child’s credibility and decide the weight to assign the testimony”).

Typically, the determination of competency is made by conducting a preliminary examination of the proposed witness to ascertain whether the witness understands the obligation of the oath and is capable of narrating the events about which the witness will testify. Berry, 309 N.W.2d at 782. The witness’s ability to remember and relate events truthfully, however, should not be tested by questioning the witness about the details of the possible testimony. Scott, 501 N.W.2d at 613, 615.

[QJuestions at a competency hearing usually are limited to matters that are unrelated to the basic issues of the trial. Children often are asked their names, where they go to school, how old they are, whether they know who the judge is, whether they know what a lie is, and whether they know what happens when one tells a lie.

Id. at 615 (quoting Kentucky v. Stincer, 482 U.S. 730, 741-42, 107 S.Ct. 2658, 2665-66, 96 L.Ed.2d 631 (1987)).

Here, the district court abused its discretion by determining H.P. to be incompetent without ascertaining whether she understood the obligations of the oath and was capable of remembering and relating events about which she would testify. Although the parties have not cited, and we have not found, any legal authority that explicitly requires the district court to examine the proposed witness personally, this is the customary procedure. Berry, 309 N.W.2d at 782. On the record before us, we need not decide the broader question of whether a personal examination of the prospective witness is required in every case.

Much of the district court’s analysis of H.P.’s competency focused on the logistical challenge of accommodating the state’s request to present H.P.’s testimony outside the presence of Sime. Whether and how to accommodate this request, however, are issues distinct from H.P.’s ability to understand the obligation to testify truthfully and to restate the events about which she would testify. As to these critical determinations, the district court generalized that it was “doubtful” any child of H.P.’s age could testify competently. The conclusion, reached by the district court without holding a competency hearing at which it could perform the requisite inquiry, is contrary to both precedent and the record in its current state. See State v. Brovold, 477 N.W.2d 775, 778-79 (Minn.App.1991) (holding that a three-year-old child was competent to testify), review denied (Minn. Jan. 19, 1992); State v. Ross, 451 N.W.2d 281, 286 (Minn.App.1990) (holding that, notwithstanding troubling answers given during the competency examination, a four-year-old child was competent to testify because she gave correct responses to simple questions), review denied (Minn. Apr. 13,1990); Lau, 409 N.W.2d at 278 (holding that a five-year-old child was competent to testify). The evidence in the record suggests that indeed H.P. could meet the competency requirements set out in Lanam, Scott, and Brovold. The social worker who examined H.P. reported that H.P. was able to “tell truth from lie.” Although during the physical examination H.P. did not readily acknowledge that sexual abuse had occurred, this fact relates to her credibility, not to her competency. See Lanam, 459 N.W.2d at 660 (distinguishing a competency determination from a credibility determination).

We are mindful that, given H.P.’s hesitance to talk while being videotaped, she may not be competent to testify at trial. See State v. Oslund, 469 N.W.2d 489, 493 (Minn.App.1991) (child who was unresponsive to even very simple questions was not competent to testify), review denied (Minn. July 24, 1991). But this conclusion cannot be reached without performing the requisite inquiry to determine H.P.’s competency. Scott, 501 N.W.2d at 615. We, therefore, reverse the district court’s determination of H.P.’s incompetency and remand with instructions to conduct a hearing and make specific findings as to H.P.’s ability to (1) understand the obligation of the oath to testify truthfully and (2) recall and relate the events about which she will be called to testify.

III.

The state next argues that the district court erred in ruling that H.P.’s disclosure of sexual abuse to her mother and a social worker are unreliable and, therefore, inadmissible under Minn.Stat. § 595.02, subd. 3. Evidentiary rulings are within the sound discretion of the district court, and we will not disturb them in the absence of a clear abuse of discretion. State v. Cole, 594 N.W.2d 197, 198 (Minn.App.1999). The out-of-court statements of a child under the age of ten regarding sexual abuse are admissible if

(a) the court ... finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and (b) the child ... either: (i) testifies at the proceedings; or (ii) is unavailable as a witness and there is corroborative evidence of the act[.]

Minn.Stat. § 595.02, subd. 3. The proponent of the statement bears the burden of proving reliability. Scott, 501 N.W.2d at 618.

The totality of the circumstances surrounding the making of the statement must be considered when determining whether a child’s out-of-court statements are reliable. Oslund, 469 N.W.2d at 493. Relevant circumstances to consider in determining whether a statement has “particularized guarantees of trustworthiness” are “(1) spontaneity and consistent repetition; (2) use of terminology unexpected of a child of similar age; (3) statements elicited without leading questions; and (4) lack of motive to fabricate.” Id. at 493-94 (citing Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)). Other factors, such as the declarant’s knowledge, “the proximity in time between the statement and the events described,” and whether the person to whom the child made the statement had a preconceived idea of what the child would say, also may be considered. State v. Conklin, 444 N.W.2d 268, 276 (Minn.1989); Lanam, 459 N.W.2d at 661.

Consideration of the totality of circumstances for each proffered statement is critical to the district court’s analysis of the statements’ admissibility. Oslund, 469 N.W.2d at 493. The record contains documentary evidence of H.P.’s statements. But it does not fully establish the circumstances under which the statements were made. Upon review, we conclude that the district court’s ruling on the admissibility of the statements was premature without the testimony of the witnesses as to the context and circumstances of H.P.’s statements. This testimony will enable the district court to consider such factors as the manner in which H.P. was questioned, whether leading questions were utilized to elicit H.P.’s statements, whether there was consistent repetition of the events, H.P.’s manner and emotional state when making the statements, and the degree of certainty with which each statement was made.

We note further that the need for corroborating evidence to render the statements admissible under Minn.Stat. § 595.02, subd. 3(b), depends on whether H.P. testifies at trial, which is contingent on the district court’s determination of H.P.’s competency on remand. Accordingly, because the record was not developed sufficiently to permit proper review of the admissibility of H.P.’s out-of-court statements, we reverse and remand for consideration of the relevant factors after a hearing on this matter.

IV.

It is the district court’s duty to ensure integrity at all stages of a criminal prosecution. Pederson v. State, 649 N.W.2d 161, 164 (Minn.2002). To ensure public confidence in the criminal justice system, the district court must avoid even the appearance of impropriety. Id. at 164-65. But when evaluating arguments as to the impartiality of the judge, we consider whether the district court’s conduct prejudiced the outcome. McKenzie v. State, 583 N.W.2d 744, 747 (Minn.1998).

The state contends that the district court improperly accepted an unsolicited letter from Sime’s counsel and subsequently reversed its decision to continue the omnibus hearing and dismissed the case. The state argues that the mere receipt of Sime’s letter casts doubt on the neutrality of the district court and warrants a reversal. As an initial matter, we note that the letter, while unsolicited, was not an ex parte contact. Nothing precluded the state from responding to the issues raised in the letter. Moreover, our rulings here, which we have reached without consideration of the state’s claim of partiality, render this argument moot.

It is, nevertheless, noteworthy that the state offers no proof of actual prejudice. Thus, the record is devoid of any basis for concluding that the district court erred when it received Sime’s unsolicited letter.

DECISION

After granting a continuance to permit the production of testimony on the contested issue of probable cause, the district court erred when it dismissed the complaint prior to resuming the hearing. The district court abused its discretion when it determined that H.P. was incompetent to testify without an examination of the four-year-old child’s ability to understand the obligation of the oath and to relate the events about which she would be called to testify. Based on the current state of the record, the district court’s ruling on the admissibility of H.P.’s out-of-court statements was premature without the testimony of the witnesses as to the context and circumstances in which H.P.’s statements were made.

Reversed and remanded.

      . H.P. used the term "nancy”, which her mother understood to mean H.P.'s vaginal area.