author:
GILDEA, Justice. ANDERSON, PAUL H. Justice MEYER, Justice
      PAGE, Justice PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Grant Benjamin EVERSON, Appellant.
    No. A07-752.
    Supreme Court of Minnesota.
    May 29, 2008.

      Peter A.C. Ivy, Carver County Justice Center, Chaska, MN, Attorney General, St. Paul, MN, for Respondent.

      Steven P. Russett, Assistant State Public Defender, St. Paul, MN, for Appellant.
   OPINION

GILDEA, Justice.

Appellant Grant Benjamin Everson was convicted of aiding the first-degree premeditated murder of his mother and sentenced to life in prison. On direct appeal, he argues that the district court erred in allowing the jury to review recorded witness statements after it had begun deliberations. He also contends that the district court committed reversible error by allowing two nonjurors to be present with the jury while it reviewed this evidence. We affirm.

This action arises from the shooting death of appellant’s mother, Nancy Ever-son. The evidence during trial established that appellant, Grant Benjamin Everson (Everson) lived with his parents, Nancy and Thomas Everson, in Chaska, Minnesota at the time of the shooting. Everson attended Hennepin Technical College, but he was failing his classes. He was not employed and spent a great deal of time with his friends, Joel Beckrich and Christopher Fuhrman, at Beckrich and Fuhr-man’s apartment in Burnsville.

The day before the shooting, Friday, January 13, 2006, Everson told Beckrich and Fuhrman that he wanted to kill his parents. The next day, Nancy and Thomas Everson discussed with Everson and his girlfriend his failing performance at school and his conduct generally. After that discussion, Nancy Everson found her husband’s pistol hidden under a hat. Everson denied knowing how it got there. Thomas Everson hid the pistol in his bedroom closet. At about 10:30 p.m., Everson left the house to take his girlfriend home.

Everson arrived at Beckrich’s apartment with a shotgun case at approximately 11:45 the same night. Everson, Beckrich, and Fuhrman went upstairs, where Ever-son showed his friends the shotgun and they discussed how Everson and Beckrich would kill Everson’s parents. Everson and Beckrich decided to slit Nancy and Tom Everson’s throats with box cutters, and to use the shotgun if anything went wrong. Everson said that he was a beneficiary of his mother’s life insurance policy, and he agreed to give half the proceeds of that and anything else he obtained upon his parents’ death to Beckrich, who planned to move to Amsterdam to open a coffee/marijuana shop. Everson and Beckrich left the apartment at 2:30 a.m. on Sunday, dressed in two layers of clothing, carrying box cutters and the shotgun. They planned to dispose of the outer layer of clothing after the murders, in case there were any identifiable traces of the victims on the clothing. Both wore gloves, and they wiped down the shotgun before departing.

Everson and Beckrich parked some distance from the Everson home, walked to the house, and entered through the garage on the lower level. They used duct tape to seal their clothing around their wrists and ankles, and went upstairs to the mudroom where they put on ski masks. They entered the master bedroom, but stopped immediately when Nancy Everson moved in her bed. They stayed there, frozen, for a few minutes, and then backed out of the room and returned to the mudroom. They talked about not being able to go through with their plan. Then Everson apparently heard a noise, and he pointed the gun into the hallway and removed the safety. A light came on, and Nancy Everson came down the hall toward Everson, who pointed the gun at her and told her to sit down. She asked if they could talk, and when Everson did not respond, she went into the kitchen.

Everson told Beckrich to shoot her, because Everson could not, and the two went back and forth a few times about who would do it, with each insisting he could not. Then Everson pushed the gun into Beckrich’s hands; Beckrich took it and began walking down the hall toward the master bedroom. Nancy Everson went back into the hallway, and Everson told Beckrich to turn around because she was behind him. At this point, Beckrich and Nancy Everson were both in the hallway between the kitchen and the master bedroom. The gun safety was still off, and Beckrich held the gun pointed down. Beckrich said to Nancy Everson “head or chest.” She did not respond, and he asked again. She took a step towards Beckrich, and he raised the gun and aimed it above her head. She yelled at her son to get out of the house, and started to walk toward Beckrich. Beckrich fired a warning shot over her head. When she lunged at him, Beckrich fired a second shot at her head, and she fell over.

Beckrich went back to the Eversons’ bedroom, to find Tom Everson. He looked briefly in the room, saw no one, and then fled down the hall and out the garage. He and Everson met on the way back to their vehicle, and Beckrich discarded the gun. They also disposed of some of their clothing and the gun case.

Beckrich and Everson arrived back at Beckrich’s apartment at about 5:30 a.m., and told Fuhrman and another friend what had happened. They agreed on an alibi, that all had spent the night in the apartment. Everson left at about 7:00 a.m., intending to go home, and on the way he called Beckrich to discuss the alibi further. Everson was arrested before he arrived home.

At about 5:00 p.m. the same day, investigators went to Beckrich’s apartment to talk to Everson’s friends. Fuhrman told the investigators that Beckrich had shot Nancy Everson, after which Beckrich confessed. Beckrich’s conversation at his home with an investigator was recorded on audiotape and a transcript was made. In addition, Beckrich and Fuhrman gave statements that were recorded on videotape at the police station that night.

Everson was indicted on four counts: aiding the attempted first-degree premeditated murder of his father; aiding the attempted first-degree premeditated murder of his mother; aiding the first-degree premeditated murder of his mother; and aiding the second-degree murder of his mother. His jury trial was held in November 2006.

Beckrich and Fuhrman, who had reached plea agreements with the State, testified at Everson’s trial. Their recorded statements were played for the jury during their testimony, and the tapes were entered into evidence as exhibits without objection. Beckrich was also questioned about his audiotaped statement to investigators at his home. In that statement, he indicated that he shot Nancy Everson because he “would be free if she didn’t live.” Beckrich also told police that he did not intend to kill anyone and was only trying to warn Nancy Everson to stay away from him. On cross-examination Beckrich confirmed that he did not intend to kill Nancy, and when defense counsel asked if he fired “instinctually” when she lunged at him, Beckrich agreed.

The defense theory was that Everson was guilty only of aiding the attempted first-degree murder of his parents. Defense counsel argued that Everson and Beckrich abandoned their plan to murder Everson’s parents after leaving the bedroom. Counsel further argued that Nancy Everson’s death was the result of a “rash and indiscriminate” act committed by Beckrich, and that Everson therefore was not guilty of aiding a premeditated, intentional murder. Everson did not testify.

The afternoon of the first day of deliberations, the jurors asked for equipment to replay three recorded statements that had been admitted into evidence and sent to the jury room: an audio recording of Ev-erson made in the squad car after Ever-son’s arrest, and the recordings of Fuhr-man’s and Beckrich’s statements, made the night of their arrests. Defense counsel objected to allowing review of the statements, on the grounds that it would give undue weight to the recorded statements, over and above trial testimony. The court determined that the jury could review the recordings, but that the review would take place in the courtroom. At the request of defense counsel, the court decided that the recordings would be listened to in their entirety and only once.

Both parties also agreed that a court reporter did not need to be present during the jury’s review of the statements and that the jury’s review of the evidence was “a private proceeding.” Counsel for both sides stated their intention to be present during the jury’s review of the evidence. Because the recordings comprised almost three hours of evidence and it was already late in the day, the court gave the jury the option of reviewing the evidence that evening after the jury returned from dinner or the next morning. The jury chose to review the evidence in the morning, and the court then advised counsel that it had to handle another calendar that morning and so would not be able to be present during the jury’s review. The parties agreed that the judge did not need to be present for the review and that the court’s clerk, would be in the courtroom.

The next morning, counsel informed the court that they had decided that counsel should not be present for the jury’s review of the evidence, and the court agreed that that “would be best.” The record reflects that the parties agreed that Chris Weldon, an employee in the county attorney’s office, would “be doing the technical part of playing the recordings.” Mr. Weldon was instructed that he was not to make any comments to the jury, not to answer any questions from the jury, and to play the recordings only once.

Regarding Everson’s presence, defense counsel noted specifically that they “had some specific concerns about [Everson] being in [the courtroom] for such a long period of time while the tapes are playing.” Everson agreed on the record that he waived his right to be present.

Before replaying the exhibits for the jury, the court, in the presence of counsel and Everson, gave detailed instructions to the jury regarding the agreed upon review procedure described above. The jury was also told that they did not have to review all three of the recorded statements, but that once a statement had begun being played, the jury would need to listen to the entire statement. The court minutes re-fleet that the jury reviewed all three statements.

Approximately one hour after completing their review of the recordings, the jury returned guilty verdicts on all four counts. The jury further found, as aggravating factors, that Everson was the “ring leader or master mind” of the plan, and that he had “violated a position of trust” to enter the victims’ home. The court denied Ever-son’s motions for a judgment of acquittal and for a new trial, convicted Everson on all four counts, and sentenced him, on the conviction for aiding first-degree premeditated murder, to life in prison without the possibility of release. This direct appeal followed.

I.

We turn first to Everson’s argument that the district court abused its discretion in allowing the jury to review the three recorded statements during its deliberations. The decision to grant a jury’s request to review evidence is within the discretion of the district court, and we will not overturn it absent an abuse of that discretion. State v. Reed, 737 N.W.2d 572, 586 (Minn.2007).

When it retired to begin deliberations, the jury was given the three recorded statements as exhibits 45, 47 and 64. But the jury was not given any equipment to play the recordings. During deliberations, the jury submitted a note to the court asking for the equipment required for the playing of these three exhibits. When a jury makes a request such as this, the court “should” consider three factors:

(i) whether the material will aid the jury in proper consideration of the case;
(ii) whether any party will be unduly prejudiced by submission of the material; and
(iii) whether the material may be subjected to improper use by the jury.

State v. Kraushaar, 470 N.W.2d 509, 515 (Minn.1991); see also Minn. R.Crim. P. 26.03, subd. 19(2) 1 and 2 (setting forth appropriate procedures to address a jury’s request to review evidence and indicating that trial court has discretion to provide the jury with other relevant evidence).

The parties do not contend that the first and third factors are at issue, but Everson argues that the court erred because it did not consider the second factor and assess the potential for undue prejudice. Even though Everson did not object to the admission of the recorded statements into evidence as exhibits, Everson argued that the court should not allow the jury to hear the statements again during its deliberations. Specifically Everson contends the replaying of Beckrich’s statement was unduly prejudicial because it tended, more than Beckrich’s trial testimony, to show that the premeditated plan was not abandoned. In the recorded statement, Beck-rich said he shot the victim to “get off without any repercussions” and that he asked “head or chest” because he “would rather they choose whichever they would prefer.” But when cross-examined at trial, Beckrich explained that at the time of the shooting he no longer intended to kill Nancy Everson, was stalling for time in asking “head or chest,” and acted “impulsively” and “instinctually” when she lunged at him. The State characterized this portion of Beckrich’s trial testimony as “recast[ing] what happened.” The defense encouraged the jury to view Beckrich’s explanation on cross-examination as truthful, and to discount his videotaped statement.

In response to Everson’s objection, the court said that it was

conflicted in that the jury only gets to hear the testimony of witnesses once, however these exhibits were admitted in evidence, they did go back to the jury room. Obviously they can’t glean anything from a CD or a DVD, but quite frankly, it appears to me that the intent of the parties, knowingly or unknowingly, was that these were exhibits to be used by the jury and now that we’ve sent them back there I think they have the right to listen to them. So I intend to respond to the question * * * that the jury may listen to these audio or video recordings.

The court’s on-the-record analysis does not reflect that the court explicitly considered whether Everson would be “unduly prejudiced” by the jury’s hearing of Beckrich’s recorded statement a second time, or whether the court considered the other two factors referenced in Kraushaar. See 470 N.W.2d at 515. Absence of this analysis from the record makes appellate review difficult. Cf. State v. Haynes, 725 N.W.2d 524, 528 (Minn.2007) (reviewing district court’s analysis and holding that court did not abuse its discretion in allowing jury to re-examine requested statements).

Even if the district court erred here, however, that error would be subject to harmless error analysis. Kraushaar, 470 N.W.2d at 516. In Kraushaar we held that the error was harmless, in part, because replaying the tape merely “allowed the jury to rehear what it had already heard,” the videotape was consistent with and corroborated by other evidence in the trial, and it was extremely unlikely that replaying the tape prompted “the jury to convict where it otherwise would not have done so.” Id. We reach the same conclusion in this case.

The jury, in reviewing the recorded statements in their entirety one additional time, was simply rehearing what it had already heard in the same place it had already heard the evidence. The substance of the statements was consistent with other evidence in the trial. For example, in their trial testimony, Fuhrman and Beckrich gave testimony indicating that the murder of Nancy Everson was premeditated. Both Fuhrman and Beck-rich testified to a conversation on January 13, 2006, about Everson’s desire to kill his parents. Both testified to Everson’s making plans with Beckrich on the night of the murder to use box cutters, to use a shotgun as a backup, and to avoid leaving any traces. Both testified regarding plans to use the money to move to Amsterdam. And, specifically with respect to Beckrich, his testimony on direct examination was consistent with the story he related to police in the recorded statement. The jury was also reminded of the defense’s theory that the killing was not intentional because in his taped statement Beckrich told the police that he did not intend to kill anyone that night and that he had shot Nancy Everson “instinctively [or] instinctually” when she lunged at him.

Finally, there is no reasonable possibility that the jury’s rehearing of these statements caused it to convict “where it otherwise would not have done so.” Id. There was strong evidence from which the jury could infer that the premeditated plan to kill Everson’s parents was never abandoned: Everson and Beckrich did not leave the house immediately; Everson released the safety on the shotgun; Everson held the gun ready to shoot when his mother came out of the master bedroom; Everson pressed Beckrich to carry out the shooting; when Everson pushed the gun into his hands, Beckrich held it and went toward the master bedroom; Beckrich asked Nancy Everson whether she preferred a shot in the head or in the chest; Beckrich aimed at and shot Nancy in the head; and Beckrich returned to the master bedroom to shoot Tom Everson before fleeing the house. Given all of this evidence, it is “extremely unlikely” that review of the statements caused the jury “to convict where it otherwise would not have done so.” Id. at 516. For all of these reasons, we hold that any error in allowing the jury to review the statements was harmless.

II.

We turn next to Everson’s argument that he is entitled to a new trial because of the procedure used for the jury’s review of the three taped statements. The district court did not instruct the jury to suspend its deliberations before the review of the statements began, and, with Everson’s agreement, allowed a court clerk and an employee of the county attorney’s office to stay in the courtroom with the jury while it reviewed the statements. Everson points to the court’s instruction to the jury that the review of the statements was part of the jury’s secret deliberation, and argues that the presence of two nonju-ry members with the deliberating jury was structural error that deprived him of his due process right to a fair and impartial jury. As such, Everson argues his conviction must be reversed and a new trial awarded.

Errors that are structural “require automatic reversal because such errors ‘call into question the very accuracy and reliability of the trial process.’” State v. Brown, 732 N.W.2d 625, 630 (Minn.2007) (quoting State v. Osborne, 715 N.W.2d 436, 448 n. 8 (Minn.2006)); see also Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (indicating that “structural defects in the constitution of the trial mechanism * * * defy analysis by ‘harmless error’ standards”); McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.1998) (explaining that structural errors, “on the other hand, call into question the very accuracy and reliability of the trial process and thus are not amenable to harmless error analysis, but require automatic reversal”). These “errors always invalidate a conviction whether or not a timely objection to the error was made.” Brown, 732 N.W.2d at 630 (citing Sullivan v. Louisiana, 508 U.S. 275, 276-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).

Although we did not use the phrase “structural error,” we have held that a judge’s uninvited entry into the jury room during deliberations and in the absence of defendant and counsel requires automatic reversal because it “offends the integrity of the proceedings and risks influencing the jury’s decisional process in some degree, however difficult to define or impossible to measure.” State v. Mims, 306 Minn. 159, 169, 235 N.W.2d 381, 389 (1975). We reached a similar conclusion in Brown v. State, 682 N.W.2d 162, 167-68 (2004).

Relying on Mims and Brown (2004), Everson argues that the procedure used to allow the jury to view the taped statements a second time intruded on the sanctity of the jury room and therefore constituted structural error, which requires automatic reversal. We disagree.

In formulating the rule in Mims and in adhering to it in Brown (2004), we relied on the particular role of the judge: “the trial judge’s position in performing his role and function before submission of the case is a powerful one and makes him an imposing figure in the minds of the jurors. * * * [T]he average juror is very sensitive to any hint or suggestion by the judge.” Mims, 306 Minn. at 168, 235 N.W.2d at 387. When this “imposing figure” intrudes into the jury’s deliberative process, id. at 168, 235 N.W.2d at 387, “there is a significant interference with the orderly decisional process, and prejudice to the process results by the implication that the judge has the prerogative of entering the jury room and there exercising the same dominant authority he possesses in the courtroom.” Id. at 169, 235 N.W.2d at 388. The concern when the judge intrudes is that he or she can exert a “controlling influence,” and for this reason “a communication by the judge to the jury stands on a different basis from that of another person, and for a like reason the law should throw a higher degree of circumspection around such communications.” Id. at 166, 235 N.W.2d at 386 (quoting Danes v. Pearson, 6 Ind.App. 465, 33 N.E. 976, 978 (1893)).

Unlike Mims and Brown (2004), the judge did not intrude on this jury or on the sanctity of the jury room. The two persons present with the jury during review of the statements, a court clerk and a nonlawyer employee of the county attorney’s office, had no authority over the proceedings, much less “dominant authority” in the courtroom. Brown, 682 N.W.2d at 168. They stand “on a different basis” from a judge. Mims, 306 Minn. at 166, 235 N.W.2d at 386. Moreover, their presence was limited to a period during which the jury was reviewing evidence in the courtroom. We conclude that the procedure used here, while perhaps inadvisable, is not comparable to an uninvited entry by the judge into the jury room. We therefore hold that structural error was not committed and automatic reversal is not warranted.

But the conclusion that structural error has not occurred does not end the analysis. We must still determine whether we should review any error in the procedures for plain error. A^ discussed above, Everson agreed to the procedures the court used in this case, and under the invited error doctrine, a party cannot assert on appeal an error that he invited or that could have been prevented in the district court. State v. Goelz, 743 N.W.2d 249, 258 (Minn.2007). The invited error doctrine does not apply, however, if an error meets all four parts of the plain error test. Id. The plain error rule gives this court discretion to review unobjected-to errors if (1) there is error, (2) the error is plain, and (3) the error affects substantial rights. Id. If the defendant establishes all three factors, we then consider a fourth: “whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.” Id. (quoting State v. Reed, 737 N.W.2d 572, 583 (Minn.2007)).

In this case, we need go no further than the third factor. Everson makes no argument regarding plain error and substantial rights, but asserts that the purported error “strikes at the very heart of juror independence and the integrity of the deci-sional process.” This assertion, without even any allegation of misconduct on the part of the nonjurors or the jurors, much less any evidence of the same, is not sufficient for Everson to prove that his substantial rights were affected. Moreover, as noted above, the evidence of Everson’s guilt was strong and the procedure at issue simply allowed the jury to rehear evidence it had already heard. We hold that Everson has not met his burden to show that the procedure constituted plain error. Consequently, the invited error doctrine prohibits further review.

III.

As an alternative to his request for a new trial based on the procedures used for the jury’s review of the recorded statements, Everson requests a Schwartz hearing to create a record of any communications that may have occurred between the jury and the nonjurors. In Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960), we crafted a procedure for inquiring into jury conduct that may have prevented a fair trial. Id. at 328, 104 N.W.2d at 303. To avoid the harassment of jurors by a defeated litigant, the matter is to be brought to the attention of the trial court, which may permit an examination of the jurors on the record in the presence of counsel. Id. at 328, 104 N.W.2d at 303. A defendant may move for a Schwartz hearing under Minn. R.Crim. P. 26.03, subd. 19(6), and to obtain a Schwartz hearing, the defense has the “burden of adducing ‘sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.’” See Opsahl v. State, 677 N.W.2d 414, 422 (Minn.2004) (quoting State v. Church, 577 N.W.2d 715, 720 (Minn.1998)); State v. Larson, 281 N.W.2d 481, 484 (Minn.1979).

Everson did not request a Schwartz hearing in the district court. Our review is normally limited to consideration of the issues presented to or decided by the district court. Minn. R. Civ.App. P. 103.04; Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 687 (Minn.1997). In addition, Everson has not made the required showing of evidence which, if unchallenged, would warrant a conclusion of jury misconduct. The record, which consists only of notes kept by the clerk who was present while the jury reviewed the three taped statements, indicates simply that the judge and attorneys left the courtroom, that two exhibits were played, followed by a 15-minute break, the beginning of a third exhibit, a 27-minute recess, and the conclusion of the third exhibit. There is no indication that the nonjurors, whose presence was agreed to by the defense, intruded upon the jury’s decision-making or communicated with the jury in any way beyond the process to which Everson and his counsel agreed. Accordingly, we hold that Everson has not met his burden to show that he is entitled to a Schwartz hearing.

Affirmed.

Concurring in part, dissenting in part, ANDERSON, PAUL H., J. Dissenting, MEYER and PAGE, JJ.

ANDERSON, PAUL H. Justice

(concurring in part and dissenting in part).

I concur in part and respectfully dissent in part. I agree with the majority that any error in allowing the jury to review the recorded witness statements that had been admitted into evidence was harmless. I also agree the procedural error in how the jury was permitted to review the evidence in the presence of an employee of the county attorney was not structural error and that this error can be reviewed under the plain error doctrine. But, I do not agree with the majority that on the information before us, we can conclude that there was no plain error. Further, while I agree with many of the concerns expressed by Justice Meyer in her dissent, I do not agree that on the record before us, we must grant a reversal. Rather, I would remand to the district court for a Schwartz hearing in order to create a proper record of any communications that may have occurred between the jury and the employee of the county attorney’s office who played the recordings for the jury. Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). I conclude that such a record is necessary for us to determine whether we can affirm Everson’s conviction or whether we must reverse and remand for a new trial.

MEYER, Justice

(dissenting).

I respectfully dissent. The majority today dilutes this court’s strict rule that an intrusion upon jury deliberations by an officer of the court is not subject to harmless error analysis. I would reaffirm our strict rule and hold that the presence of a representative from the county attorney’s office and a court clerk during secret jury deliberations is a defect in the trial proceedings that requires reversal.

Structural errors require automatic reversal, whether or not an objection was made, because they “call into question the very accuracy and reliability of the trial process.” State v. Brown, 732 N.W.2d 625, 630 (Minn.2007) (citing State v. Osborne, 715 N.W.2d 436, 448 n. 8 (Minn.2006)). Structural error affects the “framework within which the trial proceeds,” rather than being simply an “error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (Rehnquist, J., writing for the Court in part). Although we did not call it “structural error,” this court in State v. Mims, 306 Minn. 159, 235 N.W.2d 381 (1975), reversed a conviction when the judge made an uninvited entry into the jury room. Id. at 171, 235 N.W.2d at 389. The question of a new trial did not turn on whether the judge’s entry into the jury room was prejudicial to the defendant. Rather we reversed for a new trial based on the effect of the intrusion “upon the integrity of the proceedings and the independent role and function of a jury during its deliberations on its verdict.” Id. at 163, 235 N.W.2d at 384.

The majority, in an effort to distinguish this case from Mims by calling attention to the fact that the judge did not intrude on this jury, fails to consider that the intrusion of an employee of the county attorney’s office is potentially more egregious than that of a judge. Whereas the judge is neutral, the prosecutor’s office most certainly is not. The New York Court of Appeals, in distinguishing the presence in the jury room of a sign language interpreter from that of a court employee, said that

[cjertain outsiders, such as a bailiff or other court official, may inhibit or influence the jury by their mere presence. They may be perceived as having pertinent legal knowledge or as being aligned with the law enforcement community. In either case, their presence could have an adverse impact on the deliberations.

People v. Guzman, 76 N.Y.2d 1, 556 N.Y.S.2d 7, 555 N.E.2d 259, 263 (1990). Regardless of the specifics of Weldon’s conduct while he played the recordings for the deliberating jury, his very presence created the potential for prosecutorial influence on the jury’s decision-making. Weldon’s alignment with the law enforcement community was more than a mere perception; it was a fact known by the jury for whom he played the recordings. His presence with the deliberating jury, even though he is not a judge, is precisely the kind of error that “call[sj into question the very accuracy and reliability of the trial process.” See Brown, 732 N.W.2d at 630 (quoting Osborne, 715 N.W.2d at 448 n. 8).

Even a bailiff, as an officer of the court, is an official whose status has the potential to influence a jury. The United States Supreme Court has concluded that a bailiffs comments about a defendant’s case to jury members, even when a majority of jurors did not hear the comments, violated the defendant’s Sixth Amendment rights to an impartial jury and to be confronted with the witnesses against him. Parker v. Gladden, 385 U.S. 363, 365-66, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). The Court cautioned that “the official character of the bailiff — as an officer of the court as well as the State — beyond question carries great weight with a jury which he had been shepherding for eight days and nights.” 385 U.S. at 365, 87 S.Ct. 468.

I am also deeply concerned by the majority’s willingness to blur the lines between jury deliberations, which must be secret, and trial proceedings, which must be open to the public and in the presence of counsel and the defendant. It is undeniable that the jury was in deliberations while Weldon, an employee of the county attorney’s office, was present. The judge gave the following instructions regarding the playing of the statements:

First of all, the attorneys and Mr. Ever-son will not be present. This is your deliberation and your deliberations should be secret and up to you. So we will all be leaving the courtroom including myself and my reporter. Mr. Chris Weldon from the County Attorney’s Office will be playing the recordings for you. He has been instructed that he is not to communicate to you in any way. He’s not to make any comment if either Mr. Weldon or the clerk can advise you as to which exhibit you are about to hear, but that is all that they should say to you. If you make any statements during the time that Mr. Weldon is present, he’s instructed specifically not to make any comment to any of the attorneys or parties regarding any statements that you may make during your listening.
* * * *
Ladies and gentlemen of the jury, it will take us a couple of minutes to get all of this set up. I’ll ask that the bailiff take you back to the jury room for just a couple of minutes. While we do that, you can continue your deliberations and the bailiff will bring you back into the courtroom when they’re ready to start the playing of the recordings.

(Emphasis added.) Not only did the trial judge remind the jury that these were secret deliberations, but he also indicated that they could talk freely in front of Wei-don, who had been instructed not to comment on anything the jury said. The proceeding was not open to the public. The courtroom where the jury was deliberating, and where judge, counsel, and defendant were all absent, was the functional equivalent of a jury room.

More than once we have affirmed the secrecy of jury deliberations in no uncertain terms: “It has always been deemed essential to the integrity and efficiency of the jury system, that the jurors should retire and consult together in secret, * * * and that they should be permitted to conduct their deliberations in their own way free from any outside control or interference.” Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 493, 144 N.W.2d 540, 546 (1966) (quoting Hurlburt v. Leachman, 126 Minn. 180, 183, 148 N.W. 51, 52 (1914)). Here, the courtroom was transformed into a jury room by the judge’s instructions that the jury was free to continue its deliberations in the courtroom. The majority finds that the presence of nonjurors was “limited to a period during which the jury was reviewing evidence in the courtroom,” and thus avoids recognizing that these were secret jury deliberations. I cannot find in the “limited” nature of the nonju-rors’ presence justification for the violation of the sanctity of the jury room.

Nor can I find justification for closing the proceeding. The majority offers none. In reaffirming our “strict rule” in Mims, we said that “[i]t is fundamental that all proceedings in the trial of a criminal case shall be open and public and shall be conducted in the presence of defendant and counsel.” 306 Minn. at 167, 235 N.W.2d at 387 (emphasis added). A defendant has a constitutional right to a public trial, and though that right may give way when there is an “overriding interest that is likely to be prejudiced,” the court must consider alternatives to closure, make findings supporting the closure, and allow a closure limited to what is necessary to protect the interest. State v. Mahkuk, 736 N.W.2d 675, 684-85 (Minn.2007) (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). None of these requirements have been met in this case. Thus the majority creates, without pointing to any authority for doing so, a nebulous third category of proceedings, where the jury is deliberating but the presence of an employee of the prosecutor’s office poses no problem. Under this court’s precedent, the jury’s deliberations should have been suspended and the recordings should have been replayed in open court, in the presence of the judge, counsel, and the defendant.

The record in Mims suggested that the trial judge intruded upon the jury deliberations because he was trying to avoid inconveniencing court personnel. Mims, 306 Minn. at 163 n. 1, 235 N.W.2d at 384 n. 1. Similarly, the record in this case suggests that the trial judge and counsel developed the erroneous procedure to avoid inconveniencing the judge and the jury. I do not question the intentions or motives of the court and counsel in settling upon this procedure, but I am unwilling in the name of convenience and judicial efficiency to close my eyes to a procedure that “risks influencing the jury’s decisional process in some degree, however difficult to define or impossible to measure.” See id. at 169, 235 N.W.2d at 388.

There is no need for an employee of the prosecutor’s office or a court clerk to have contact with the jury, outside that occurring in open court. I would reaffirm our strict rule from Mims by holding that the presence of these two nonjurors with the deliberating jury for a period of nearly three hours was structural error necessitating a new trial.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Meyer.

PAGE, Justice

(dissenting).

I respectfully dissent. Like Justice Meyer, “I am unwilling in the name of convenience and judicial efficiency to close my eyes to a procedure that risks influencing the jury’s decisional process in some degree, however difficult to define or impossible to measure.” (Internal quotation marks and citation omitted.) Therefore, I join Justice Meyer in her dissent.

      . The video portion of Beckrich’s statement could not be played for technical reasons but the jury heard the audio portion. Likewise, when the jury reviewed the statement after retiring to deliberate, the video portion was not shown but the audio was played.

      . Apparently the only equipment available for playing the exhibits was the prosecutor’s laptop. Because the computer contained other information, someone had to be present with the jury to play the exhibits on the laptop.

      . Specifically, the court instructed the jury:
      [T]here are some groundrules that the Court, after consultation with the attorneys, will make regarding your listening to these exhibits. First of all, the attorneys and Mr. Everson will not be present. This is your deliberation and [your] deliberations should be secret and up to you. So we will all be leaving the courtroom including myself and my reporter. Mr. Chris Weldon from the County Attorney’s office will be playing the recordings for you. He has been instructed that he is not to communicate to you in any way. He’s not to make any comment if either Mr. Weldon or the clerk can advise you as to which exhibit you are about to hear, but that is all that they should say to you. If you make any statements during the time that Mr. Weldon is present, he’s instructed specifically not to make any comment to any of the attorneys or parties regarding any statements that you may make during your listening. You have asked me if you can take notes and you can certainly take notes during the time that you listen to these recordings.
      Once a recording is started, you are required to listen to the entire recording, and Mr. Weldon has been instructed not to stop and replay portions, but it can be played start to finish. Once you have listened to any recording that you wish to listen to, you can choose to listen to the other recordings. I believe you've asked about three recordings, but you don’t need to listen to all of them. You can listen to whichever ones you choose to listen to, but once you start a recording you need to listen to all of that recording, but you can then choose as to what other recordings you wish to listen to. You will be able to listen to various recordings at this time, however this will be the last opportunity for you to listen to these recordings. The transcripts that were given to you during the trial will be given to you again to assist you in listening to the recordings. They will give you the transcript for the particular recording that you’re listening to and at the end of playing that recording, they will collect that transcript and if you wish to listen to another, then that transcript will be given to you.
      At the end of these instructions, the court asked counsel whether they requested additional instructions be given and neither side did.

      . To distinguish this case from State v. Brown, 732 N.W.2d 625 (Minn.2007), cited earlier, we will refer to this case as Brown (2004).


source: Caselaw Access Project

author:
PAGE, Justice.
      GILDEA, Justice. ANDERSON, G. Barry, Justice DIETZEN, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Kelvin JACKSON, Appellant.
    No. A06-1001.
    Supreme Court of Minnesota.
    May 30, 2008.

      Lori Swanson, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for Respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Office of the State Public Defender, St. Paul, MN, for Appellant.
   OPINION

PAGE, Justice.

Appellant Kelvin Jackson was convicted of first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2006), following a jury trial in Ramsey County. The district court sentenced Jackson to an executed term of 210 months, a double durational upward departure from the high end of the range for the presumptive sentence under Minnesota’s Sentencing Guidelines. The court of appeals affirmed. Concluding the departure was impermissibly based on uncharged criminal conduct, we reverse and remand for resentencing.

On Sunday, November 6, 2005, at 8:45 p.m., Maplewood police were dispatched to a residence on a home invasion robbery and assault. Upon arrival, they found the homeowner, 67-year-old G.W., bleeding profusely from head wounds. G.W. told them that a man and a woman had forced their way into his home, assaulted him, and stolen his property. Earlier that day, around 9:30 a.m., a woman had come to G.W.’s residence, asking to use his phone because she had car trouble. G.W. allowed her to use the cordless phone in the kitchen, but when she walked into the living room, G.W. told her to return to the kitchen because his wife was sleeping. G.W. believed the woman involved in the nighttime robbery was the same woman who had used his phone in the morning.

The police investigation led to Jackson, who resided in an apartment building a short distance from G.W.’s residence. Two officers went to Jackson’s residence, arriving approximately three hours after the robbery, and made contact with Jackson and his girlfriend Rachel West. After a short conversation, the officers left. Because Jackson and West resembled the description of the robbery suspects, the officers searched the area between the apartment building and G.W.’s residence. During the search, the officers found G.W.’s wallet and identification papers in the apartment building dumpster. After calling for additional officers, the decision was made to arrest Jackson and West. When the officers entered Jackson’s apartment, West was clutching $100 in cash. Meanwhile, G.W. was transported by ambulance to the hospital where he was treated for a fracture of the left orbital floor and full-thickness lacerations to the scalp. While in the hospital, G.W. suffered a heart attack.

Jackson was initially charged with one count of first-degree aggravated robbery (armed with a dangerous weapon), Minn. Stat. § 609.245, subd. 1 (2006), and a second count of first-degree aggravated robbery (inflicts bodily harm upon another), id. Shortly before trial, the complaint was amended to add second-degree aggravated robbery, Minn.Stat. § 609.245, subd. 2 (2006); and for the heart attack, first-degree assault, Minn.Stat. § 609.221, subd. 1 (2006).

At trial, G.W. described the robbery and assault. He had been home alone watching TV when he answered a knock on the door. He recognized the woman he had seen earlier that day, and, as he opened the door, a man “rushed in and cracked” him on the eye with what he thought was a handgun. According to G.W., the man struck him on the head several more times as he fell to the floor, landing on his stomach. The man then pinned him to the floor, took his wallet, and directed the woman to take various items from his home to their car. When they were finished, the man told him to “stay there for ten minutes” and threatened to come back and shoot him if he failed to comply. G.W. made an in-court identification of Jackson as the assailant. Also, at trial, a medical consultant involved in G.W.’s care at the hospital testified that G.W.’s head injuries fit within the legal definition of substantial bodily harm.

At the close of the State’s case, the district court granted Jackson’s motion for judgment of acquittal of the first-degree assault charge. The jury subsequently found Jackson guilty of the remaining charges. After the guilt phase of the trial concluded, for purposes of sentencing, the jury was instructed to answer three questions submitted by special verdict form: (1) did the aggravated robbery occur in G.W.’s home; (2) did G.W. sustain multiple blows to the head; and (3) did G.W. sustain an orbital fracture. After a short deliberation, the jury returned with affirmative answers to all three questions. At sentencing, the district court imposed an executed sentence of 210 months for first-degree robbery (armed with a dangerous weapon). The sentence was a double du-rational departure from the high end of the presumptive sentencing guidelines range. Specifically, the court based the departure on the severity of the victim’s injuries and the invasion of the victim’s zone of privacy.

Jackson appealed, challenging an evidentiary ruling, the sufficiency of the evidence in support of the conviction, and the propriety of the enhanced sentence. The court of appeals affirmed. State v. Jackson, No. A06-1001, 2007 WL 2245594 (Minn.App. Aug.7, 2007). We granted review of the sentencing issue.

I.

Jackson argues that the sentencing departure was improperly based on uncharged offenses of third-degree assault and burglary. Generally, we review a district court’s decision to depart from the presumptive guidelines sentence for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003). If the district court’s reasons for departure are “improper or inadequate” and there is insufficient evidence in the record to justify the departure, the departure will be reversed. Id. Questions of law are reviewed de novo. State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002). Under Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the jury determines the facts that support the departure.

The purpose of the Minnesota Sentencing Guidelines is to “establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.” Misquadace, 644 N.W.2d at 68 (quoting Minn. Sent. Guidelines I). Accordingly, the “primary relevant sentencing criteria” are the “offense of conviction and the offender’s criminal history.” Id.

To maintain uniformity and proportionality, departures from the presumptive guidelines sentence are discouraged. Misquadace, 644 N.W.2d at 68; see Minn. Sent. Guidelines I. The grounds provided by the guidelines for departure, “while nonexclusive, are intended to apply to a small number of cases, and each departure must be based on the offense of conviction rather than charges that were dropped or never alleged.” Misquadace, 644 N.W.2d at 68; see also Minn. Sent. Guidelines II.A.01, cmt., II.D.103, cmt.; Dale G. Parent & Richard S. Frase, Why Minnesota Will Weather Blakely’s Blast, 18 Fed. Sent’g Rep. 12, 2005 WL 4001178, at *5 (2005) (noting that early case law reinforced the guidelines commission’s key policy choices, including that “judges could not enhance a sentence based on offenses for which the defendant had not been charged or for which charges had been dropped”). Departures must comport with the guidelines criteria, which cannot be waived even by plea agreement. Misquadace, 644 N.W.2d at 72 (holding that departures from the guidelines “must be supported by substantial and compelling circumstances, and that a plea agreement — standing alone — is not a sufficient basis to depart from the sentencing guidelines”).

In Jackson’s case, judgment was entered and the enhanced sentence imposed on the conviction for aggravated robbery while armed with a dangerous weapon. The departure from the presumptive guidelines sentence was based on the nature of the victim’s injuries and commission of the crime in the victim’s zone of privacy, his home. Regarding the nature of the injuries, the State presented expert evidence that the orbital fracture amounted to substantial bodily harm; and the jury was asked to find, and did find, that the victim sustained an orbital fracture. The infliction of substantial bodily harm is third-degree assault. Minn.Stat. § 609.223 (2006). A departure cannot be based on uncharged criminal conduct. Misquadace, 644 N.W.2d at 68; State v. Simon, 520 N.W.2d 393, 394 (Minn.1994) (explaining that a departure from the presumptive sentence for assault with a dangerous weapon cannot be based on an uncharged assault with a dangerous weapon accompanied by infliction of substantial bodily harm). In addition, Minn.Stat. § 609.035 (2006) prohibits cumulative punishment for conduct that constitutes more than one offense. A departure would also have been improper had the offense been charged. State v. Norregaard, 384 N.W.2d 449, 450 (Minn.1986) (holding that separate sentences for aggravated robbery and third-degree assault were barred by Minn.Stat. § 609.035 (1984)).

With regard to the zone of privacy, the nonconsensual entry into a dwelling with intent to commit a crime when a person (not an accomplice) is present is first-degree burglary. Minn.Stat. § 609.582, subd. 1(a) (2006). The fact that the offense takes place in a dwelling elevates the crime to a higher grade than it would otherwise be. Compare id., subd. 2(a)(1) (burglary of a dwelling), with id., subd. 3 (burglary of a building). The crime of burglary “carries with it some special risks to life and is not therefore purely a property offense.” State v. Hodges, 386 N.W.2d 709, 711 (Minn.1986). Burglary is a serious crime, and punishment is allowed for both the burglary and the crime committed in the dwelling. Minn. Stat., § 609.585 (2006). Jackson’s aggravated robbery was a severity level VIII offense, and the parties agree that he had a criminal history score of 4. The presumptive sentence was 88 months, with a presumptive sentencing range of 75-105 months. By application of the rules that set the criminal history score at zero for consecutive sentences, Minn. Sent. Guidelines ILF., the presumptive range for the burglary, a severity level VIII offense, was 41-57 months. The maximum available duration without any departure for the robbery and burglary, hypothetically speaking, was therefore 162 months. This is not meant as a comment on charging decisions, which are solely within the discretion of the prosecution, but rather as an observation that the guidelines do not contemplate enhanced sentences based on uncharged criminal conduct that would be far greater than what would otherwise be permitted based on charged criminal conduct. We therefore hold that Jackson’s enhanced sentence was based upon impermissible departure factors.

II.

Pre-Blakely, when the reasons stated on the record for a departure were improper or inadequate, we independently examined the record to determine whether there was sufficient evidence “ ‘to justify departure’ for legitimate reasons.” State v. Jones, 745 N.W.2d 845, 851 (Minn.2008) (citation omitted). Post-Blakely, unless waived by the defendant, the fact-finding function is performed by the jury. Id. Accordingly, we reverse Jackson’s enhanced sentence and remand for imposition of the presumptive sentence or, unless waived by Jackson, the empanelling of a resentencing jury to determine the existence of facts in support of legitimate aggravating factors for enhanced sentencing, including sentencing as a career or dangerous offender under Minn.Stat. § 609.1095 (2006) as indicated in the pre-sentence investigation report. Minn. Sent. Guidelines II.D.b.(8) and (9); see State v. Henderson, 706 N.W.2d 758, 762 (Minn.2005) (holding that enhanced sentencing under the career offender statute required jury findings). As a matter of judicial policy in Minnesota, “a court cannot ‘impose on a defendant who has secured a new trial a sentence more onerous than the one he initially received.’” Hankerson v. State, 723 N.W.2d 232, 241 (Minn.2006) (quoting State v. Holmes, 281 Minn. 294, 296, 161 N.W.2d 650, 652 (1968)). Accordingly, on remand, the State cannot seek and the court cannot impose a sentence in excess of 210 months.

III.

In the interests of judicial economy, we address Jackson’s argument that a 210-month sentence is disproportionate. This argument implicates our decision in State v. Evans, in which we concluded that, generally, upward durational departures should not exceed double the presumptive sentence length. 311 N.W.2d 481, 483 (Minn.1981). Evans was a sentencing appeal related to convictions of aggravated robbery involving different elderly victims and different incidents in November 1980. Id. at 482. The defendant’s criminal history score was zero, the presumptive sentence under the sentencing guidelines in effect at the time of the offenses for aggravated robbery with a criminal history score of zero was 24 months in prison, and consecutive sentencing was not a departure. Id. Thus, the guidelines permitted a 48-month sentence without departure. Id. The trial court sentenced the defendant to consecutive terms of 15 years each, or a total of 30 years. Id. This court reduced the sentence to 96 months, adopting the standard- that “generally in a case in which an upward departure in sentence length is justified, the upper limit will be double the presumptive sentence length.” Id. at 483. We also stated, however, that in “unusually compelling” cases “an even greater degree of departure will be justified.” Id.

Jackson argues that the guidelines sentencing system has changed considerably over the past 27 years, increasing dramatically the presumptive duration of sentences for serious offenses. He calls attention to the presumptive sentencing ranges that now extend 20 percent above the presumptive fixed sentence. His brief includes charts comparing the 1981 presumptive durations and ranges for serious offenses with the 2007 presumptive durations and ranges for the same offenses to illustrate the exponential increase in sentence durations by application of the Evans rule. He suggests that the Evans rule is no longer necessary given the wide presumptive sentencing ranges that cover a broader range of criminal conduct than the minimum to constitute the offense. In the alternative, Jackson proposes modifications to the rule, such as limiting any departure to twice the presumptive fixed duration or calculating the departure with a criminal history of zero to avoid “double counting” the offender’s criminal record.

We understand that in 2005 the legislature substantially broadened the sentencing ranges. When the guidelines were developed, statutory authority was granted for a 15 percent sentencing range. Minn. Sent. Guidelines Comm’n, Report to the Legislature at 6 (Jan.2005). The Commission chose a narrower range. Id. The 2005 legislation required a sentencing range of 35 percent: 20 percent above the presumptive fixed sentence and 15 percent below the presumptive fixed sentence. Act of Aug. 1, 2005, ch. 136, art. 16, § 1, 2005 Minn. Laws 901, 1113 (codified at Minn. Stat. § 244.09, subd. 5(2) (2006)). For example, a severity level IX offense with a zero criminal history score now has a sentencing range of 29 months (74 to 103), and the same offense with a criminal history of 6 or more has a range of 54 months (135 to 189). “[P]reviously, all cells at level IX had a width [of 10] months.” Parent & Frase, supra, 2005 WL 4001178, at *8. The intent of the legislation was to reduce aggravated durational departures. Id.

If a jury finds facts that support a departure from the presumptive sentence, the court may exercise discretion to depart but is not required to depart. Minn. Sent. Guidelines II.D.; see State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981) (“It would be a rare case which would warrant reversal of the refusal to depart.”). Departures from the presumptive sentence are justified only when substantial and compelling circumstances are present in the record. State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002); Minn. Sent. Guidelines II.D. To achieve uniformity and proportionality,' whether sentences above the broadened presumptive maximum merit stricter scrutiny is an open question. Appellate courts do have the authority to modify a sentence on many grounds, including that the sentence is inconsistent with statutory requirements, Minn.Stat. § 244.11, subd. 2(b) (2006), or that modification is “in the interest of ‘fairness and uniformity.’” State v. Bertsch, 707 N.W.2d 660, 668 (Minn.2006) (quoting State v. Vazquez, 330 N.W.2d 110, 112 (Minn.1983)).

As for the Evans doubling rule, it may be that the rule is in need of serious reevaluation, but we question whether this court is, at this time, the proper forum for doing so. This is especially true in light of the fact that the Guidelines Commission has collected and analyzed information on actual sentencing practices over the more than 25 years the guidelines have been in effect and makes recommendations to the legislature on various aspects of sentencing. Minn.Stat. § 244.09, subd. 6 (2006). We believe, in the first instance, that the continued efficacy of the Evans departure rule, if any, is a question more properly addressed by the Commission.

Reversed and remanded.

GILDEA, Justice.

The majority interprets Minnesota’s sentencing system in a manner that effectively eliminates the well-established aggravating sentencing factors of particular cruelty and zone of privacy. The majority’s interpretation is inconsistent with our precedent and it has significant and adverse effects on the criminal justice system. I respectfully dissent.

This action arises from the brutal beating and robbery of a 67-year victim, G.W., in his home. The record reflects that on November 6, 2005, a young woman came to G.W.’s home in the morning hours, claiming car trouble and asking to use his telephone. G.W. agreed to help the woman, took her into his home, and let her use the telephone. After using the phone, the young woman left, only to return again that evening.

When G.W. saw the same young woman at his door, he opened it only to be met by Jackson, who “rushed in and cracked [G.W.] on the left eye” with what appeared to be a handgun. Jackson proceeded to hit G.W. on the right side of the forehead and the jaw, and then more times on the head. After G.W. fell to the floor, Jackson knelt on his back, took his wallet, and directed that the woman retrieve guns that G.W. kept in his home.

As a result of the beating, G.W. suffered a severe laceration on the right side of his head and the orbital socket of his left eye was “blown out,” meaning that Jackson fractured G.W.’s eye socket as well as the bones directly underneath his left eye. When the police arrived, they found G.W. bleeding profusely from the wound on his head, and he had to be taken to the hospital by ambulance.

Based on the jury’s factual findings that Jackson inflicted multiple blows to G.W.’s head, fractured the orbital socket around his left eye, and committed the robbery inside G.W.’s home, the district court imposed an aggravated sentencing departure of 210 months. At the sentencing hearing, the court articulated that it was imposing an aggravated departure because “the crime was committed within [G.W.’s] zone of privacy” and because of “the injuries inflicted.” The majority holds that the district court erred. I disagree. The abuse of discretion standard controls our review of a district court’s decision to impose a sentencing departure. Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003). A sentencing departure must be justified by “substantial and compelling circumstances” in the record that make the facts in the case different from the presumptive sentence, and we have held that it is generally proper for courts to consider that the defendant committed the offense in a particularly serious way in imposing an upward departure. Id. Because the upward departure was not an abuse of discretion, I would uphold the sentence.

I.

The district court’s decision to depart upward on a sentence for aggravated robbery in the first degree, committed with a dangerous weapon, based on the severe injuries inflicted and invasion of the victim’s zone of privacy is consistent with our rule that “it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced.” State v. Cox, 343 N.W.2d 641, 643-44 (Minn.1984) (holding that the gratuitous infliction of serious injuries that exceeded the level of injury required to prove the offense warranted an upward departure); see also Taylor, 670 N.W.2d at 588 (noting that a sentencing departure may be based on multiple acts of uncharged sexual penetration, which were part of the offense for which the defendant was charged and convicted); State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983) (explaining that a court may rely on the facts underlying a particular offense as a basis for concluding that the offense of which the defendant was convicted was committed in “a particularly serious or cruel way”); State v. Rott, 313 N.W.2d 574, 575 (Minn.1981) (explaining that the district court could base its upward durational sentencing departure on uncharged offenses that the defendant admitted committing); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that the district court could base its upward durational sentencing departure on conduct which indicated that the victim had been treated with particular cruelty).

Notwithstanding the precedent discussed above, the majority holds that it was improper for the district court to consider Jackson’s decision to commit the robbery (the offense of conviction) in a manner that inflicted gratuitous pain on the victim and in a way that invaded the victim’s zone of privacy because this conduct supports the uncharged offenses of third-degree assault and burglary. I disagree.

In my view, the departure in this case is consistent with the double upward departure we affirmed in State v. Winchell, 363 N.W.2d 747 (Minn.1985). In that case, the defendant pleaded guilty to aggravated robbery in exchange for the dismissal of other charges, including burglary and assault with a dangerous weapon. Id. at 748. The district court imposed a double upward departure based in part on the fact that the defendant “ ‘gratuitously inflicted particular cruelty on the victims during the course’ ” of the robbery, and the fact that the robbery “‘was committed in the privacy and security of the victim’s own home.’” Id. at 749. We did not prohibit the court from departing even though the aggravating factors also supported other crimes. To the contrary, we affirmed the sentence because the departure was based on the “facts relating to the conduct underlying the offense to which the defendant pleaded guilty.” Id. at 750. The majority does not articulate any sound basis for a decision to depart from this precedent. I would follow our precedent and affirm.

The majority’s decision to depart from our precedent also effectively eliminates long-standing and well-accepted departure factors. I turn to these factors, particular cruelty and zone of privacy, next.

A. Particular Cruelty

The Guidelines provide that there may be departures from presumptive sentences where “there exist identifiable, substantial, and compelling circumstances.” Minn. Sent Guidelines II.D. While the list of aggravating factors does not purport to be exhaustive, importantly for purposes of this case, one factor specifically listed as a basis for upward departure is where “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.b(2). It is well established that gratuitous infliction of pain qualifies as “particular cruelty.” State v. Smith, 541 N.W.2d 584, 590 (Minn.1996) (upholding an upward sentencing departure where the manner in which the defendant committed the robbery included punching the victim into unconsciousness and then kicking him as he lay on the ground); State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981). Consequently, the district court did not abuse its discretion when it concluded that Jackson’s gratuitous infliction of pain justified an upward durational sentencing departure, because this conduct demonstrated that Jackson committed the robbery in a particularly cruel way.

Relying on State v. Misquadace, 644 N.W.2d 65 (Minn.2002), the majority asserts that “[a] departure cannot be based on uncharged criminal conduct.” But consideration of evidence pointing to the defendant’s guilt of some other uncharged offense is only improper if that evidence “does not support the conclusion that the defendant committed the offense in question in a particularly serious way.” Cox, 343 N.W.2d at 643.

Moreover, Misquadace does not support the majority’s result. In Misquadace, the issue was whether a plea agreement, standing alone, could provide a substantial and compelling justification for departure. 644 N.W.2d at 69. Citing Minn. Sent. Guidelines cmt. II.A.01 (stating that “the offense of conviction is the standard from which to determine severity” and that “departures from the guidelines should not be permitted for elements of offender behavior not within the statutory definition of the offense of conviction” because “serious legal and ethical questions would be raised if punishment were to be determined on the basis of alleged, but unproven, behavior, and prosecutors and defenders would be less accountable in plea negotiation”), we explained that departures must be based on the offense of conviction. Id. at 68. We further explained that “[t]he question presented to the sentencing court when considering a departure is whether the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.” Id. (citing Cox, 343 N.W.2d at 643). Ultimately, we concluded that a plea agreement standing alone could not be used to depart because it does not demonstrate that the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question. Id. at 71.

Nothing we said in Misquadace called into question the well-established principle set forth above that the district court is permitted to depart based on the way in which the offense is committed. In addition, the concerns regarding plea negotiations at issue in Misquadace and “alleged, but unproven, behavior” articulated in Minn. Sent. Guidelines cmt. II.A.01 are not implicated in this case because Jackson did not plead guilty and the sentencing jury found that the State proved the aggravating sentencing factors beyond a reasonable doubt.

The majority also relies on State v. Norregaard, 384 N.W.2d 449, 450 (Minn.1986), and asserts that had the State charged Jackson with third-degree assault, it would have been improper for the district court to consider Jackson’s decision to gratuitously inflict substantial bodily harm on the victim. But by holding that it is improper for a district court to consider the beating Jackson inflicted on G.W. when such conduct is either uncharged, as in this case, or charged, as in Norregaard, the majority has effectively eliminated the aggravating factor of particular cruelty, which is expressly recognized in Minn. Sent. Guidelines II.D.b(2).

Every time a defendant commits the offense of conviction in a manner that gratuitously inflicts bodily harm, the State can arguably charge the defendant with some form of assault. Minn.Stat. §§ 609.221-24 (2006). According to the majority, if the State fails to charge the defendant with assault, the sentencing court cannot consider the defendant’s gratuitous infliction of physical injury. Yet, if the State charges and convicts the defendant of assault, the majority asserts that our decision in Norregaard and Minn.Stat. § 609.035 (2006) prohibit the sentencing court from imposing punishment based on the assault conviction because it arose out of the same behavioral incident. Thus, there is no way under the majority’s new rule for a district court to factor a violent beating into a sentencing decision. In my view, this new rule writes the “particular cruelty” factor out of the Guidelines. But in the absence of a constitutional challenge, we have no authority to rewrite the Guidelines. See State v. Shattuck, 704 N.W.2d 131, 146 (Minn.2005) (severing Guidelines provision that was determined to be unconstitutional).

Moreover, Norregaard does not compel the rule the majority writes today, and I would not interpret Norregaard in a manner that effectively rewrites the Guidelines. In Norregaard, the State charged the defendant with both aggravated robbery, Minn.Stat. § 609.245 (2006) (robbery accompanied by infliction of “bodily harm”), and third-degree assault, Minn.Stat. § 609.223 (2006) (assault involving infliction of “substantial bodily harm”). 384 N.W.2d at 449. After convicting the defendant of both offenses, the district court imposed two separate sentences. Id. We held that imposition of two separate sentences violated the statutory prohibition against multiple punishments contained in MinmStat. § 609.035 (2006) because “petitioner was convicted of the more serious form of robbery and received additional punishment for the robbery because it was a robbery accompanied by the infliction of bodily harm.” Norregaard, 384 N.W.2d at 450; see also State v. Williams, 608 N.W.2d 837, 841 (Minn.2000) (explaining that Minn.Stat. § 609.035 protects defendants from multiple sentences for conduct arising out of the same behavioral incident).

The result in Norregaard was dictated not by the Guidelines, but by section 609.035. 384 N.W.2d at 450. In this case, by contrast, the legislative decision reflected in section 609.035 — that an offender may not be sentenced for separate crimes that arise out of the same behavioral incident — is not at issue. Jackson did not receive two sentences. He received one sentence based on the way in which he committed one crime, aggravated robbery.

The majority’s conclusion that section 609.035 prohibits the beating from being used to aggravate the sentence of aggravated robbery would mean that the legislature intended that statute to nullify the particular cruelty departure provision in the Guidelines. The legislature did not provide for the nullification of the particular cruelty departure ground in the text of section 609.035. And our implication of such a nullification would be inconsistent with our obligation to give effect to all legislative enactments. See Owens v. Federated Mut. Implement & Hardware Ins., 328 N.W.2d 162, 164 (Minn.1983); see also Minn.Stat. § 645.26, subd. 1 (2006) (“When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both.”). Rather than reading section 609.035 to nullify the “particular cruelty” aggravating factor, I would read the statute according to its plain terms as prohibiting multiple punishments, i.e., multiple sentences, for separate crimes committed as part of the same behavior incident. Such an interpretation gives effect to both the statute and the departure provision in the Guidelines.

B. Zone of Privacy

The majority’s analysis of the zone of privacy factor is also flawed. It is well established that departures from the presumptive sentence are appropriate where a defendant invades the zone of privacy that surrounds the victim’s home. See State v. Blanche, 696 N.W.2d 351, 379 (Minn.2005); Winchell, 363 N.W.2d at 750. But every time a defendant commits a crime within a victim’s zone of privacy, the State can arguably charge the defendant with burglary. Minn.Stat. § 609.582 (2006). While the majority contends that it is not treading onto the prosecutor’s discretion in charging, it seems to me that is precisely where the majority is going. And, as the court of appeals wisely noted, it is not for courts “to supplant the prosecutor’s charging function,” in the absence of evidence of “deliberate discrimination.” State v. Jackson, 2007 WL 2245594, at *7 (Minn.App. Aug.7, 2007) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Herme, 298 N.W.2d 454, 455 (Minn.1980)).

The majority also seems to conclude that a departure is not appropriate based on the invasion of the zone of privacy because “punishment is allowed for both the burglary and the crime committed in the dwelling,” and because the aggravated sentence imposed in this case is greater than the sentence that could have been imposed had Jackson been sentenced on both burglary and aggravated robbery. The majority argues “that the guidelines do not contemplate enhanced sentences based on uncharged criminal conduct that would be far greater than what would otherwise be permitted based on charged criminal conduct.” Had Jackson been given consecutive sentences, assuming he was charged and convicted with aggravated robbery and burglary, the presumptive sentence would have been 162 months. Because 210 months is apparently “far greater” than 162 months, the majority seemingly concludes that the district court erred. But the 162-month sentence is not an aggravated sentence; it is the presumptive sentence. The majority’s analysis does not take into account that even in the hypothetical it poses the State could seek a departure based on the way in which the crimes were committed. Thus, in my view, it is not proper to conclude that an aggravated sentence is unlawful because it exceeds the presumptive sentence. If that were the law, there would no such thing as an aggravated sentence, and again this would write provisions out of the Guidelines, something that it is not within the province of this court to do.

II.

In the interests of judicial economy, the majority considers Jackson’s argument that this court should reconsider the Evans rule, which limits upward durational sentencing departures to twice the presumptive sentence unless there are “unusually compelling” circumstances. See State v. Evans, 311 N.W.2d 481, 483 (Minn.1981). After describing the legislature’s recent expansion of the presumptive sentencing ranges, the majority concludes that the Evans rule may be “in need of serious reevaluation,” but that the continuing efficacy of the rule is a question which should be addressed, in the first instance, by the Minnesota Sentencing Guidelines Commission. We created the Evans rule through the exercise of our supervisory powers. To suggest that the Commission has the authority to modify this rule raises serious separation of powers issues. Although I conclude that there is no need to reevaluate the Evans rule, it is clear that questions regarding the continuing efficacy of this rule should be answered by this court and this court alone.

ANDERSON, G. Barry, Justice

(dissenting).

I join in the dissent of Justice Gildea.

DIETZEN, Justice

(dissenting).

I join in the dissent of Justice Gildea.

      . Dale G. Parent served as the Executive Director of the Minnesota Sentencing Guidelines from its inception in September 1978 until May 1982. The guidelines went into effect in May 1980. Richard S. Frase is the Benjamin N. Berger Professor of Criminal Law at the University of Minnesota Law School. Parent & Frase, supra, 2005 WL 4001178, at *1.

      . Under the sentencing guidelines, sentences are determined by use of a grid system. Minn. Sent. Guidelines IV. The vertical axis on the grid tracks the severity of the offense, while the horizontal axis tracks the offender’s criminal history. To determine the proper sentence to be imposed in any given case, a sentencing court locates the cell on the grid that corresponds to the offense level and the offender’s criminal history. Not counting the cells applicable to relatively minor offenses, each cell on the grid contains three different numbers. The lowest number is the minimum guidelines sentence for that particular cell, the highest number is the maximum guidelines sentence, and the middle number is what might be referred to as the “presumptive fixed sentence.” Originally the presumptive sentencing range for an aggravated rob-beiy with a criminal history score of zero (which was the situation in Evans, 311 N.W.2d at 482) was 23-25 months. It is now 41-57 months. See Minn.Stat. § 244.09, subd. 5(2) (2006) (requiring Sentencing Commission to set presumptive fixed sentence as well as a sentencing range extending 20 percent above and 15 percent below that presumptive fixed sentence). All three numbers in any given cell constitute an acceptable sentence based solely on the offense at issue and the offender’s criminal history score-the lowest is not a downward departure, nor is the highest an upward departure. Minn. Sent. Guidelines IV. In Jackson's case, with a criminal history score of 4, the presumptive sentencing range, which was 60-70 months under the original formulation of the guidelines, is now 75-105 months.

      . The dissent asserts that our interpretation of the sentencing guidelines system eliminates aggravating sentencing factors of particular cruelty and zone of privacy. We believe the dissent reads the majority too broadly. The jury in this case was not asked to find particular cruelty beyond a reasonable doubt. See, e.g., Kevin S. Burke, State v. Dettman: The End of the Sentencing Revolution or Just the Beginning?, 33 Wm. Mitchell L.Rev. 1331, 1342-43 (2007) (noting issues in defining "cruelty” for sentencing juries). As for zone of privacy, cases referencing burglaries of dwellings have involved particular cruelty. E.g., State v. Winchell, 363 N.W.2d 747, 750 (Minn.1985) (affirming sentencing departure when robbery occurred in late-night home invasion, defendant and his accomplice bound the victims, defendant put three people in fear, a young child was present, defendant held a gun next to a victim’s head, and rape was discussed). Cf. State v. Blanche, 696 N.W.2d 351, 379 (Minn.2005) (affirming sentencing departure when, in an attempt to assassinate a rival gang member, ten bullets were indiscriminately fired in a residential area and a particularly vulnerable child was shot to death while playing on a friend’s front porch). We disagree with the dissent's claim that we have created a new rule. As we explained, one of the Guidelines Commission’s key policy choices was that an enhanced sentence could not be “based on offenses for which the defendant had not been charged.” Parent & Frase, supra, 2005 WL 4001178, at *5. We believe this policy choice is as significant following the 2005 legislation that substantially broadened the sentencing ranges as it was with the original sentencing ranges.

      . The majority contends that it is not creating a new rule and attempts to find support for this conclusion in a law review article's position about what the Guidelines provide. But the article the majority cites specifically departs from the rule the majority writes today by noting that courts "could depart on the basis of non-charged offenses if the defendant admitted them on the record.” Dale G. Parent & Richard S. Frase, Why Minnesota Will Weather Blakely’s Blast, 18 Fed. Sent’g Rep. 12, 2005 WL 4001178, at *5 (2005) (citing State v. Rott, 313 N.W.2d 574, 575 (Minn.1981), and State v. Garcia, 302 N.W.2d 643 (Minn.1981)). And perhaps more importantly, the article cites State v. Brusven, 327 N.W.2d 591 (Minn.1982), as one of the authorities for the assertion that judges could "not enhance a sentence based on offenses for which the defendant had not been charged or for which the charges had been dropped.” Parent & Frase, supra, 2005 WL 4001178, at *5. In Brusven, however, we acknowledged the rule of law I apply here and the one that the majority is now writing out of existence. Id. at 593 (disapproving of sentencing court's departure based not on offense of conviction but based on a separate offense that had been dismissed and distinguishing that situation from one where "the facts underlying a particular offense” support the conclusion "that the offense of which the defendant was convicted was committed in a particularly cruel way”).

      . The legislature may modify the Guidelines, but it has taken no action to cast doubt on the Guidelines' inclusion of the particular cruelty departure ground. See Minn.Stat. § 244.09, subd. 11 (2004) (noting that modifications to the Guidelines shall be submitted annually to the legislature and that such modifications "shall be effective * * * unless the legislature by law provides otherwise”).

      . Although the sentencing jury was not specifically asked if Jackson committed the offense with "particular cruelty,” the jury was asked to find facts about the injuries the victim suffered. The district court appropriately used those facts as the basis to depart. See State v. Cox, 343 N.W.2d 641, 645 (Minn.1984) (upholding departure where defendant’s "conduct was a form of gratuitous cruelty which was unjustified within the context of the crime”). The majority seemingly suggests that had the sentencing jury decided that Jackson had committed the aggravated robbery with “particular cruelty,” a departure would have been appropriate in this case. That cannot be so under the rule of law the majority writes today. Even if the question put to the sentencing jury had been phrased "Did Jackson commit the aggravated robbery with particular cruelty,” under the majority’s new rule of law, the district court would not have been able to depart because the underlying conduct at issue — the infliction of the injuries — would still have been conduct that could have been charged as an assault. The phrasing of the question does not dictate the result under the majority's new rule. The fact that the conduct, no matter what the jury calls that conduct, could have been charged as some other offense is why the majority holds that there could be no departure here.

      . The majority also cites State v. Simon, 520 N.W.2d 393 (Minn.1994), in support of its proposition that "[a] departure cannot be based on uncharged criminal conduct.” But in Simon, we were concerned with manipulation by the State. Specifically, we noted that the State could have charged the defendant with the "more serious” crime of assault resulting in substantial bodily harm, for which the maximum sentence was 10 years. Id. at 394. The State instead proceeded with a charge of assault with a dangerous weapon, which was punishable by up to 7 years in prison, and then after the defendant pleaded guilty, argued for departure based on the fact that substantial bodily harm was committed as part of the assault. Id. The manipulation at issue in Simon does not exist in this case. Here, the offense the majority contends could have been charged was assault in the third degree, which is a severity level IV offense punishable by up to 5 years in prison, and the offense that was charged and for which sentence was imposed, aggravated robbery in the first degree, was a severity level VIII offense punishable by up to 20 years in prison.

      . Jackson does not assert that the "particular cruelty” aggravating factor violates his constitutional rights.

      . Jackson was convicted of two counts of aggravated robbery, but consistent with section 609.035, the district court imposed sentence on only one count.

      . This reading is consistent with other provisions in the statute wherein exceptions are provided to the prohibition against multiple sentences. See Minn.Stat. § 609.035, subd. 2 (providing for consecutive sentences).

      . Jackson makes no claim that the charging decisions at issue in this case were discriminatory.