author: MEYER, Justice.

text:
    SAVE OUR CREEKS, Respondent, v. CITY OF BROOKLYN PARK, Minnesota, Appellant.
    No. A03-1794.
    Supreme Court of Minnesota.
    June 23, 2005.

      George C. Hoff, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for Appellant.
    Richard B. Bates, St. Paul, MN, for Respondent.
    Heard, considered, and decided by the court en banc.
   OPINION

MEYER, Justice.

This case concerns the legal validity of a complaint filed on behalf of a corporation but signed by a nonattorney. Respondent Save Our Creeks (SOC), a nonprofit corporation, filed a complaint against the City of Brooklyn Park (the City), seeking relief from the City’s denial of SOC’s petition for environmental review of certain proposed development projects. The complaint was signed by a nonattorney spokesperson for SOC. The district court permitted SOC to amend its complaint by adding an attorney’s signature and allowed the amendment to relate back to the date the original complaint was filed. The district court then certified to the court of appeals the question of whether a complaint filed and signed on behalf of a corporate entity by a nonattorney is a legal nullity. The court of appeals answered the certified question in the negative. We affirm the court of appeals.

On June 4, 2003, William Barton, a non-attorney, petitioned the Environmental Quality Board for environmental review of several proposed development projects in the City. The Environmental Quality Board referred the petition for environmental review to the City on June 10, 2003. The City denied the petition on July 14, 2003, finding that environmental review was unnecessary. On August 7, 2003, Barton brought a declaratory judgment action in district court as the “Representative for Plaintiff Save Our Creeks.” That same day, Barton filed articles of incorporation for SOC, establishing it as a nonprofit corporation. On August 13, 2003, the statutory window for district court review of the City’s denial of the petition closed.

On August 20, 2003, the City served a motion to dismiss the complaint based on SOC’s lack of representation by an attorney and failure to have an attorney sign its summons and complaint. On September 4, 2003, Brian Bates, a licensed attorney, filed a notice of appearance on behalf of SOC. The matter was heard before the district court on September 22, 2003, and the court allowed Bates to sign the complaint at that time.

On November 3, the district court denied the City’s motion to dismiss, allowing the attorney’s signature to relate back to the date of SOC’s original complaint. However, the district court certified to the court of appeals as important and doubtful the question of whether a complaint filed and signed on behalf of a corporate -entity by a nonattorney is a legal nullity.

The court of appeals answered the certified question in the negative. Save Our Greeks v. City of Brooklyn Park, 682 N.W.2d 639 (Minn.App.2004). The court of appeals set out the following test: a complaint signed by a nonattorney on behalf of a corporation may be amended to add an attorney’s signature when “the corporation acts without knowledge that its action was improper, the corporation diligently corrects its mistake by obtaining counsel; and the non-lawyer’s participation is minimal and results in no prejudice to the opposing party.” Id. at 645. In addition, the court held that the after-affixed attorney’s signature was an amendment, and related back to the date of the complaint under Minnesota Rule of Civil Procedure 15.03. Save Our Creeks, 682 N.W.2d at 648.

I.

The question certified to the court of appeals by the district court was “whether a complaint filed and signed on behalf of a corporate entity by a non-lawyer is a legal nullity.” A certified question is a question of law and is reviewed de novo. B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821 (Minn.2003).

It is well settled under Minnesota common law that a corporation must be represented by an attorney in legal proceedings. Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn. 1992); Cary & Co. v. F.E. Satterlee & Co., 166 Minn. 507, 509, 208 N.W. 408, 409 (1926) (“[T]he right of a party to a suit in court' to appear in person therein does not entitle him to appear for a corporation, even -if he owns all its capital stock, for the corporation is a distinct legal- entity.”). In Nicollet Restoration, we described the ethical and professional considerations that ground this rule:

A non-attorney agent of a corporation is not subject to the ethical standards of the bar and is not subject to court supervision or discipline. The agent knows but one master, the corporation, and owes no duty to the courts. In addition, a corporation is an artificial entity which can only act through agents. To permit a lay individual to appear on behalf of a corporation would be to permit that individual to practice law without a license.

486 N.W.2d at 754.

Both SOC and the City recognize this longstanding rule, but differ as to its proper application where a complaint is signed on behalf of a corporation by a nonattor-ney. The City argues that SOC’s complaint is a legal nullity and should be given no legal effect. SOC claims that the failure to affix an attorney’s signature to the complaint should be considered a “curable defect,” and when the defect is promptly cured, the action may proceed.

The court of appeals expressly adopted the curable defect approach. Save Our Creeks, 682 N.W.2d at 642. • The court gave several reasons for its conclusion. First, the court rejected the City’s claim that the requirement that a corporation be represented by counsel in legal proceedings is jurisdictional. Id. at 643. The court reasoned that the requirement “does not describe the classes of cases or persons within the district court’s adjudicatory authority” and thus the rule is not jurisdictional. Id. The court’s reasoning on this point is persuasive, and we adopt it.

Second, the court of appeals stated that viewing the lack of an attorney’s signature on the complaint as a curable, nonjurisdic-tional defect is consistent with recent rulings of the United States Supreme Court (1) holding that a pro se litigant’s failure to sign his notice of appeal as required by Fed.R.Civ.P. 11(a) was curable and that a late signature would relate back to the original filing date, Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001), and (2) allowing amendment of an employment discrimination charge to add statutorily-required verification after the filing deadline had passed, Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002). Save Our Creeks, 682 N.W.2d at 643-44. The court explained that as in federal court, Minnesota Rule of Civil Procedure 11, which is the source of the signature requirement, provides that unsigned documents should be stricken only if the omission of the signature is not corrected promptly. Save Our Creeks, 682 N.W.2d at 644.

Finally, the court of appeals considered whether the prohibition against corporations appearing without an attorney requires a particular sanction, such as dismissal, for its violation. Id. The court concluded that most courts in other jurisdictions allow such violations to be cured. Id.

The reasons given by the court of appeals in following the “curable defect” approach are well-reasoned and fully-supported. Further, the majority of jurisdictions that have considered the matter have followed the curable defect approach. See, e.g., Boydston v. Strole Dev. Co., 193 Ariz. 47, 969 P.2d 653, 656 (1998) (holding that a reasonable opportunity should be given to a corporation to cure a notice of appeal defective due to lack of an attorney signature); Hawkeye Bank & Trust, N.A. v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990) (holding that the trial court abused its discretion by rejecting a motion for continuance by a nonattorney representative of a corporation who wished to secure counsel); Old Hickory Eng. & Mach. Co., Inc. v. Henry, 937 S.W.2d 782, 786 (Tenn.1996) (where a statutory complaint was filed by a nonattorney on behalf of a corporation, holding that the complaint was not void but defective, and adopting the rule that prompt correction of a defective pleading cures the pleading); Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 979 P.2d 363, 369 (Utah Ct.App.1999) (rejecting the argument that a complaint signed by a non-attorney for a corporation was void so as to deprive the trial court of jurisdiction to consider a motion to amend the complaint). The rationale most of these decisions articulate is that the rules of civil procedure are intended to favor resolution of cases on the merits, and that dismissing a case on a technicality such as the lack of a signature does not advance this policy. We join the majority view and hold that a complaint signed and filed by a nonattorney on behalf of a corporate entity is not a legal nullity.

We next consider under what circumstances an amendment curing the lack of an attorney’s signature should be allowed. The court of appeals stated: “[I]n determining whether an amendment is appropriate, courts may properly rely on considerations of fault, diligence, and prejudice, similar to those applicable to motions to set aside a default judgment.” Save Our Creeks, 682 N.W.2d at 645 (citing Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247, 252 (Fla.Dist.Ct.App.1985) (in curable defect jurisdiction, delineating proper considerations for cure of defect)). The court of appeals concluded that amendments - should be permitted when “the corporation acts without knowledge that its action was improper, the corporation diligently corrects its mistake by obtaining counsel, and the nonlawyer’s participation is minimal and results in no prejudice to the opposing party.” Save Our Creeks, 682 N.W.2d at 645.

We believe that the court of - appeals’ test, while basically sound,, should be more narrowly crafted so -as to ensure that corporations always appear in court represented by an attorney. Therefore, we hold that an amendment -to add an attorney’s signature to a corporation’s complaint should be permitted when the following four elements are met: (1) the corporation acts without knowledge that its action was improper; (2) upon notice, the corporation diligently corrects its mistake by obtaining counsel, but in no event may it appear in court without an attorney; (3) the nonattorney’s participation in the action is minimal; and (4) the nonattorney’s participation results in no prejudice to the opposing party. We emphasize that as to the first prong, if a corporation knows or should know, that its action is improper, amendment will not be allowed.

II.

Because we hold that the lack of an attorney’s signature is a defect that can be cured by the addition of SOC’s.attorney’s signature, we must decide whether the amended complaint relates back .to the date of the original, complaint..

Minn. R. Civ. P. 15.03 states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning. the identity of the proper party,, the action would have been brought against . that party.

Minn. R'. Civ. P. 15.03 (2004). In its-decision, the' court of appeals considered the addition of Bates’ signature to be an amendnieht of the original complaint. Save Our Creeks, 682 N.W.2d at 646-47. The' court of appeals reasoned that the amended complaint clearly arose out of the same conduct, transaction, or occurrence as the original complaint, since the only change was the addition of one signature.Id. Since the court of appeals had already determined that the initial lack of an attorney signature created a defective complaint, rather than a nullity, and that the defect had been cured by adding Bates’ signature, the court concluded that the district court had properly allowed the amendment to relate back to the date of the initial complaint. Id. at 647. The court rejected the City’s argument that a lawsuit had not been properly commenced, stating that in Minnesota civil actions are commenced when a defendant is properly served with a summons and complaint and that a summons and complaint is sufficient to commence an action and confer jurisdiction over a defendant if the defendant is clearly put on notice of the cause of action. Id. (citing Haugland ex rel. Donovan v. Mapleview Lounge & Bottleshop, Inc., 666 N.W.2d 689, 694 (Minn.2003) (“The primary function of notice pleading is to give the adverse party fair notice of the theory on which the claim for relief is based.”)). Thus, the court of appeals concluded that the district court had jurisdiction over the parties and the subject matter, and that the complaint could be amended. Save Our Creeks, 682 N.W.2d at 647.

We affirm the court of appeals and answer the certified question in the negative. If a court has personal and subject matter jurisdiction over a case, it has the adjudicatory authority to permit a party to amend a defective pleading in order for the matter to go forward. Because the amendment to SOC’s complaint arose out of the conduct, transaction, or occurrence set forth in its original complaint, and because the original complaint gave the City full notice of the nature of the claim against it, we hold that SOC’s amended complaint relates back to the date of the original complaint, and that this case should proceed to determination on the merits.

Affirmed; certified question answered in the negative.

      . By statute, denials of petitions for environmental review may be reviewed through a declaratory judgment action commenced in district court within 30 days of the denial. Minn.Stat. § 116D.04, subd. 10 (2004).


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Pierre LEAKE, Appellant.
    No. A04-57.
    Supreme Court of Minnesota.
    June 23, 2005.

      Roy G. Spurbeck, Assistant State Public Defender, Minneapolis, MN, for Appellant; Appellant, pro se.
    Mike Hatch, Attorney General, St. Paul, MN; Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.

      . Cell phone records, introduced as exhibits at trial, confirm that a call was made at about 8:00 p.m. on the evening of March 21, 2003 from Leake's cell phone to Fisher's cell phone and that the call was not answered.

   OPINION

BLATZ, Chief Justice.

On September 22, 2003, a jury found appellant Pierre Leake guilty of first-degree premeditated murder in connection with the stabbing death of Megan Fisher. The trial court then convicted Leake of first-degree murder and sentenced him to life without the possibility of release. On appeal, Leake argues that the ewdence was insufficient to prove premeditation beyond a reasonable doubt and that his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In his pro se supplemental brief, Leake also argues that his conviction must be overturned because: (1) the verdicts of not guilty of second-degree intentional murder and guilty . of first-degree premeditated murder are legally inconsistent; (2) the prosecutor committed misconduct in closing argument; and (3) the grand jury and trial testimony were inconsistent. We affirm.

.On March 22, 2003, Angela Behling found her roommate, Megan Fisher, stabbed to death in Fisher’s bedroom. Fisher shared a two-bedroom Minneapolis apartment with Behling, whom she met while attending culinary school. The apartment building was a secure building that required visitors to be let in using an intercom system at the front door.

Within two days of Fisher’s murder, police arrested Leake. Evidence presented at trial indicated that Leake and Fisher met in the fall of either 2001 or 2002 and that they developed a romantic relationship. Behling testified that when Leake got together with Fisher, he would usually call Fisher late at night, come to the back door of the apartment building, and be let in by Fisher. Behling did. not always know that Leake had come to the apartment until Fisher told her the next day. Behling also testified that, to her knowledge, Fisher did not give Leake a key to the apartment.

In the weeks prior to her murder, Fisher expressed frustration to her mother and a friend, Jenna Nerdby, because Leake would be late for dates or not show up at all. She also complained to Behling that Leake was secretive and did not tell her anything about himself.

On March 14, 2003, Fisher went to a Minneapolis bar with some friends. Leake met Fisher at the bar so Fisher could sell him a drug scale. When Leake arrived, he and Fisher went outside. Fisher saw that another woman, Corrine Miller, was waiting in Leake’s car. Fisher, upset that Leake brought another woman with him to the bar, told Nerdby that she was “done •with this.” Nerdby testified at trial that when Fisher said she was “done with this,” Nerdby understood Fisher to mean done with everything to do with Leake — including their relationship. Consistent with Nerdby’s testimony, Behling testified that Fisher told her that same evening that she was done “talking to [Leake], done with everything to do with him.”

A few days before her murder, Fisher told her mother that Leake was calling her all the time and she no longer wanted to take phone calls from him. She also told her mother that Leake was “harassing me, bugging me” and that because she did not want to talk to Leake, she no longer answered her phone unless she knew the number that appeared on her caller identification.

On March 21, 2003, a friend joined Fisher at her apartment before they went to an office party at a bar. Around 8:00 p.m., Fisher’s cell phone rang and Leake’s name appeared on her cell phone’s caller identification. Fisher told her friend not to answer the phone, but did not say why.

When several other friends arrived, including Fisher’s roommate Behling, they all went to the office party. After arriving at the bar, Behling did not feel well so Fisher and another friend, Bob Thompson, drove Behling back to the apartment at about 12:20 a.m. Fisher and Thompson then left the apartment and met friends at another bar. Thompson took Fisher home around 1:10 a.m., and at about 1:40 a.m., Fisher called a friend in California, Jennifer DeRosa. DeRosa testified at trial that Fisher did not indicate that she was expecting company. At 2:00 a.m., Fisher called one of the friends she had been out with that night and left a message on the friend’s cell phone.

According to cell phone records, there was a call from Fisher’s cell phone to Leake’s cell phone at 1:27 a.m. on March 22. That call went to Leake’s voicemail. At 1:54 a.m., Leake’s voicemail was checked. A three-minute phone call was made from Leake’s cell phone to Fisher’s cell phone at 1:56 a.m. At 2:45 a.m., a one minute call was made from Leake’s phone — with the number blocked — to Fisher’s phone. This was the only call from Leake’s phone to Fisher’s phone in the previous four months in which the phone number was blocked.

A representative from the cell phone company testified at trial about how cell phone calls are transmitted, explaining that, in the absence of an unlikely event, cell phone calls “bounce off’ the closest transmission tower before being transmitted to the receiver. According to the phone company’s records, several calls from Leake’s cell phone, between 1:30 a.m. and 2:13 a.m. on March 22, 2003, bounced off the cell tower near his New Brighton apartment. The 2:45 a.m. call made from Leake’s cell phone bounced off a tower in Minneapolis located near Fisher’s apartment. Fisher’s 1:27 and 1:40 a.m. calls bounced off this same tower near her apartment.

Behling did not hear Fisher arrive home in the early morning hours of March 22, but around 3:45 a.m., Behling was awakened by a noise in the apartment. Before falling back to sleep, Behling surmised that Fisher was awake, which surprised her. When Behling woke up later that morning, she observed that Fisher’s door was closed and that the bath mat, three bathroom towels, and the hall rug — all of which had been in the apartment the night before — were missing. Behling also noticed that the deadbolt lock on the apartment door was not locked. Although Behl-ing found it strange that the door was unlocked and the rugs were missing, she thought that Fisher had decided to launder the rugs and had simply forgotten to lock the apartment door.

Behling took a shower and left the apartment at about 10:00 a.m., locking the door on her way out. Around 6:00 or 6:30 p.m., Behling returned to the apartment with plans to attend a wedding that evening with Fisher. When she opened the door to Fisher’s bedroom to find out when they were leaving, she discovered Fisher, lying on her bed, stabbed to death. Behl-ing called 911.

During their investigation, police and crime lab technicians searched the apartment and the surrounding area for evidence. Fisher’s cell phone and bathroom towels were never located, but the hallway rug with the bathmat rolled inside was found behind a dumpster in back of the apartment building. The duvet and mattress cover on Fisher’s bed contained several cuts and tears consistent with someone stabbing them.

On the day of the murder, Behling told police that the only knives she and Fisher kept in the apartment were two paring knives — one with a black handle and one with a red handle — but later remembered, and told the police, that she and Fisher had purchased knife sets for the culinary school they both attended. Behling testified at trial that she kept her knife set under her bed in her bedroom, where it was found covered in a layer of dust after the murder. Behling also testified that Fisher kept her set in the kitchen on top of a cupboard with a long serrated bread knife sitting on top. Behling said the serrated knife had been sitting on Fisher’s knife set in the kitchen for months before the murder and that she specifically remembered seeing it there “a few weeks” before the murder. The red-handled paring knife and the serrated bread knife were never recovered.

The police collected samples of “blood-like substances” from numerous places in the apartment. The Minnesota Bureau of Criminal Apprehension (BCA) tested those substances as well as a biological sample taken from underneath Fisher’s fingernail. At trial, a forensic scientist with the BCA testified that the samples taken from Fisher’s bedroom wall and from other items in her bedroom matched Fisher’s DNA profile. Samples taken from the bathroom door, hall closet doorknob, kitchen floor, hallway floor, bath mat, area rug, and end table all matched Leake’s DNA profile. The sample from underneath Fisher’s fingernail was a mixture consistent with a combination of DNA from Leake and Fisher. There was no predominant contributor to this mixture, and 99.9997% of the population could be excluded from having contributed to it.

Dr. Mitchell Morey, a Hennepin County assistant medical examiner, also testified at trial. He determined that Fisher died from multiple sharp-force injuries. According to Morey, sharp-force injuries fall into two categories: (1) stab wounds, which are deeper than they are wide; and (2) incisional wounds, which are wider than they are deep. Fisher had at least 17 stab wounds and at least five incisional wounds. All of the wounds were consistent with having been inflicted by a knife. Fatal wounds cut through her spinal cord, vertebral arteries, jugular vein, and vena cava. Morey testified that at least some of the wounds were consistent with having been inflicted by a serrated blade. According to Morey, those wounds were consistent with a replica of the serrated knife -that was missing from Fisherls knife set. The medical examiner could not determine in what order the injuries occurred or which of three potentially fatal blows actually killed Fisher. Fisher had few defensive wounds.

At trial, Kathy Deutschlander, Leake’s ex-wife, also testified for the state. She was married to Leake at the time of the murder, but their marriage was dissolved prior to trial. Deutschlander testified that at 1:30 a.m. on the night of the murder, her two-year-old son woke her up because he wanted something to drink. When she went to get her son a glass of milk, she saw Leake playing video games in the living room of their New Brighton apartment. She spoke to him briefly, but did not notice any injury to his right hand. Deutschlander did not believe that Leake came' to bed that night, but heard him in the shower around 6:00 a.m. Later, she observed that after his shower he was wearing different clothes than he had worn the previous night and that he had a “bad cut” on his right hand. She also observed him talking to himself, reciting what sounded like a “to-do list,” and putting items, including towels, a t-shirt, and sweat pants into a garbage bag. Deutsch-lander saw him take the garbage bag outside and place it inside their Jeep. He then moved a different garbage bag from the trunk of their Oldsmobile to the Jeep. Deutschlander testified that, while watching him from the window of their apartment, she saw him drive the Jeep by the apartment dumpsters but she did not observe him dispose of the garbage bags.

Corrine Miller, Leake’s friend and companion the evening Leake met Fisher at the bar to get a drug scale, also testified at trial. Miller met Leake in November 2002 and they were in a relationship. She testified that Leake arrived at her house outside Stillwater around 6:30 a.m. on March 22. They had plans to meet to lift weights at 8:00 a.m., but she was not expecting him at her house before that time. When Leake arrived, he had a towel wrapped around his hand. He told her that he had cut his hand on a piece of glass while taking out the garbage. Before Miller left to run an errand, Leake asked if he could start a fire and she agreed. Miller thought Leake wanted to start the fire in the inside fireplace because it was cold, but when she returned from her errand, she discovered that Leake had started a fire in the backyard pit. While Miller was not sure what Leake was burning, she thought she saw fabric in the fire and “stuffing” or “fibers” all over the yard. Leake told Miller he was burning a teddy bear and trash, but when she asked about a bag of items that Leake had with him, he responded, “you sure ask a lot of questions.” She did not question him further.

Miller, who is a nurse, looked at the cut on Leake’s hand and suggested he go to a nearby hospital to see a doctor. At the hospital, Leake told the doctor, in the presence of Miller, that he had cut his hand on some broken glass while taking out the garbage. Leake was irritable after the hospital visit and told Miller he needed to go home to see his son. When Leake returned to his apartment, Deutschlander saw that Leake’s hand had stitches and was bandaged.

At about midnight on March 23, the police arrested Leake at his home and searched the apartment. In the early morning hours of March 24, and again later that day, police searched the garbage dumpsters around Leake’s apartment but did not find any broken glass or blood. Photographs of Leake’s right hand, taken by police, showed a linear cut with several stitches. Leake tras charged with premeditated first-degree murder in violation of MinmStat. § 609.185(a)(1) (2004), and intentional second-degree murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2004).

The jury returned a guilty verdict on the count of first-degree premeditated murder and a not guilty verdict on the count of second-degree intentional murder. At sentencing, the state presented evidence related to Leake’s 1998 conviction for third-degrée criminal sexual conduct. This evidence was critical to the determination of whether Leake had previously been convicted of a “heinous crime” under Minn.Stat. § 609.106 (2004), thereby requiring the trial court to sentence him to life imprisonment with no possibility of release. The court found that the prior offense qualified as a heinous crime. This appeal followed.

I.

We first address Leake’s contention that the evidence presented at trial was insufficient to prove the element of premeditation beyond a reasonable doubt. When reviewing a claim of evidentiary insufficiency, we view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict. State v. Chomnarith, 654 N.W.2d 660, 664 (Minn.2003). The verdict will not be overturned if, giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense. Id.

A person who “causes the death of a human being with premeditation and with intent to effect the death of the person” is guilty of first-degree murder. MinmStat. § 609.185(a)(1). Premeditation means “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn.Stat. § 609.18 (2004). “A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation.” State v. Cooper, 561 N.W.2d 175, 180 (Minn.1997). However, the state “must prove that, after the defendant formed the intent to kill, some appreciable time passed” during which the defendant considered, planned, prepared, or determined to commit the act. Id.

Premeditation is a state of mind and, thus, - generally proven through circumstantial evidence. Id. at 179. Circumstantial evidence is entitled to the same weight as any other evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis other than guilt. Chomnarith, 654 N.W.2d at 664. A conviction based on circumstantial evidence stands only when “the facts and circumstances disclosed by the circumstantial evidence form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980).

When reviewing the evidence offered as proof of premeditation, we have stated that the evidence as a whole may support a finding of premeditation even if no single piece of evidence, standing alone, would be sufficient. State v. Moore, 481 N.W.2d 355, 361 (Minn.1992). Specifically relevant to this case, we have held that the number of blows inflicted on the victim standing alone is not sufficient to support a finding of premeditation, State v. Swain, 269 N.W.2d 707, 714 (Minn.1978), but that numerous blows can indicate premeditation when supported by other evidence. See, e.g., State v. Smith, 367 N.W.2d 497, 501 (Minn.1985) (holding evidence of premeditation sufficient where the victim was tied up and stabbed at least 40 times, and the attack took place in more than one area of the house over an extended period of time); State v. Merrill, 274 N.W.2d 99, 112 (Minn.1978) (holding evidence of premeditation was sufficient where the defendant admitted hitting the victim with a candy dish, going to the kitchen in search of a knife, and then stabbing the victim 17 times in the bedroom).

In the instant case, the state argues that the totality of the circumstances supports a finding of premeditation. The evidence admitted at trial established that Fisher was stabbed at least 17 times. The majority of the wounds were on her upper back and the back of her neck. Fatal wounds cut through her spinal cord, vertebral arteries, jugular vein, and vena cava. Fisher’s almost total lack of defensive wounds suggests that she was restrained during the attack. In addition, the state argues that the evidence indicated that Leake either brought the knife used to stab Fisher to the apartment or took it from the apartment’s kitchen — two scenarios that the state argues support premeditation. In turn, Leake argues that the state did not prove he brought the knife with him to the apartment or that he obtained it from Fisher’s kitchen.

Reviewing the record before us, we conclude that sufficient proof of premeditation was supplied by the circumstantial evidence presented at trial. Of particular note, Behling testified that two knives were missing from the apartment — a red-handled paring knife and the serrated bread knife. She also testified that the serrated knife was kept in the kitchen and she had seen it there a few weeks before the murder. In addition, expert testimony was offered at trial that Fisher’s injuries were consistent with having been caused by a serrated knife. Based on this evidence, the jury could have concluded either: (1) that Leake went to the kitchen, got the serrated knife, and returned to the bedroom where he stabbed Fisher or (2) that Leake brought the knife used to inflict Fisher’s wounds from outside the apartment. Although the evidence is circumstantial, it is “consistent with the hypothesis that the accused is guilty” — i.e., that he procured a knife and brought it to Fisher’s bedroom where he stabbed her to death — and is “inconsistent with any rational hypothesis except that of guilt.” Chomnarith, 654 N.W.2d at 664; see also State v. Netland, 535 N.W.2d 328, 329-30 (Minn.1995) (holding that the defendant acted with premeditation when he forcibly entered the victims’ house, took knives from the victims’ kitchen, walked down the hall, and used the knives to stab the victims); Bangert v. State, 282 N.W.2d 540, 544 (Minn.1979) (holding evidence of premeditation sufficient where the defendant procured a rifle from the victims’ house, walked down the hallway to the bedroom, took aim, and fired three shots into the heads of the victims as they slept).

In addition, a defendant’s actions before and after the murder are relevant to the question of premeditation. State v. Lodermeier, 589 N.W.2d 396, 398 (Minn.1995). Here, the record reflects that just before the murder Leake disguised his telephone call to Fisher by blocking the number and that after the murder he disposed of evidence by putting it in garbage bags and burning it in a fire.

When analyzed separately, it is doubtful that we would conclude that any one piece of this evidence is sufficient to support a finding of premeditation. However, we do not have one piece of evidence before us on review, but rather the “totality of the circumstances.” Taking the evidence as a whole and viewing it in the light most favorable to the jury’s verdict, we hold that the evidence is sufficient to support the jury’s finding that Fisher’s murder was premeditated.

II.

We next address Leake’s challenge to the constitutionality of his sentence of life without the possibility of release under Minn.Stat. § 609.106 (2004). Under Minnesota law, a conviction of first-degree premeditated murder is punishable by a term of life -in prison. Minn.Stat. § 609.185(a) (2004). A person serving- a life term generally is eligible for supervised release after serving 30 years. Minn.Stat. § 244.05, subd. 4 (2004). However, a defendant convicted of first-degree premeditated murder who has a prior conviction for a “heinous crime” must be sen-fenced to life imprisonment without the possibility of • release. Minn.Stat.- §§ 609.106, subd. 2(3); 244.05, subd.-4. Heinous crimes include first-, second-, and third-degree criminal sexual conduct “if the offense was committed with force or violence.” Minn.Stat. § 609.106, subd. 1(3).

In this case, Leake had a prior conviction for third-degree criminal sexual conduct in violation of Minn.Stat. § 609.344, subd. 1(c) (2004). Third-degree criminal sexual conduct is defined, inter alia> as engaging in sexual penetration with another person if “the actor uses force or coercion to accomplish the penetration.” Id. (emphasis added). The statute does not distinguish between force and coercion, indicating that the presence of either — or both — satisfies the requirement. However, in order for a third-degree criminal sexual conduct conviction to qualify as a “heinous crime” under Minn.Stat. § 609.106, subd. 1(3), the crime must have been committed with “force or violence.” Thus, third-degree criminal sexual conduct convictions that involve coercion alone, with no use of force, do not qualify as a “heinous crime.” Accordingly, in this case, when sentencing the defendant for first-degree premeditated murder under the heinous crime statute, it must be determined whether the prior conviction for third-degree criminal sexual conduct was committed with force or violence — and not coercion alone.

In this case, after the. jury found Leake guilty of first-degree premeditated murder, the trial court held a post-trial eviden-tiary hearing in connection with sentencing and, while noting potential problems under Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), found that Leake’s prior conviction for third-degree criminal sexual conduct was committed with force or violence and therefore qualified as a heinous crime. The court based this conclusion on the victim’s testimony at the hearing and Leake’s admissions in connection with his guilty plea. Accordingly, Leake was sentenced under the heinous crime statute, Minn.Stat. § 609.106, subd. 2, to life in prison without release.

Leake argues that his sentence is unconstitutional under Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004), because the sentence was based on the trial court’s finding that Leake’s previous offense was committed with “force or violence.” In Leake’s view, the factual finding as to the manner of the previous offense — whether it was committed with “force or violence” as opposed to “coercion” — must be made by a jury. This presents a legal issue which we review de novo. See State v. Myers, 627 N.W.2d 58, 62 (Minn.2001).

In Apprendi, the defendant pleaded guilty to possession of a firearm for an unlawful purpose. 530 U.S. at 469-70, 120 S.Ct. 2348. He received an enhanced sentence based on a judge’s finding, by a preponderance of the evidence, that the crime was motivated by racial bias. Id. at 471, 120 S.Ct. 2348. The United States Supreme Court reversed, holding that: “Other than the fact of a prior conviction, any fact that increased the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,120 S.Ct. 2348.

After Apprendi, it was not clear what the Court meant by the term “statutory maximum.” In State v. Smith, we addressed whether the heinous crime statute, at issue here, violated the rule in Apprendi. 669 N.W.2d 19, 33 (Minn.2003). We concluded that the heinous crime statute set forth “a mandatory sentence that raised the minimum sentence from life in prison with the possibility of release after 30 years to life in prison without the possibility of release.” Id. at 33. Accordingly, we then stated that “[a] defendant sentenced to life without the possibility of parole has the same statutory maximum; i.e., the sentence ends at the end of the defendant’s life.” Id. Our analysis allowing the judge’s factual finding to stand when only the minimum — and not the maximum — sentence was implicated, was based, in part, on Harris v. United States, 536 U.S. 545, 567, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), where the United States Supreme Court held that Apprendi did not preclude a judge from making a factual determination affecting the minimum sentence. Smith, 669 N.W.2d at 33. Applying the Court’s reasoning in Appren-di and Harris, we held that “the constitutional protections articulated in Apprendi are not implicated in this case because only the minimum term of imprisonment is affected by a finding of a heinous crime and, therefore, the determination of a pri- or heinous crime may be found by the court.” Smith, 669 N.W.2d at 33.

Subsequent to our decision in Smith, in Blakely the Supreme Court addressed whether an upward sentencing departure under Washington’s sentencing guidelines violated the defendant’s Sixth Amendment right to a jury trial because the district court, rather than a jury, made findings to support the departure. 542 U.S. at-, 124 S.Ct. at 2534-36. The Supreme Court held that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after, finding additional facts, but the maximum he may impose without any additional findings.” Id. at -, 124 S.Ct. at 2537 (emphasis, in original). Thus, Blakely makes clear that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. (emphasis in original). In light of Blakely, Leake urges our court to reexamine our holding in Smith.

We agree with Leake that a judge’s finding that a prior conviction constitutes a “heinous crime” affects the “statutory maximum.” See Blakely, 542 U.S. at-, 124 S.Ct. at 2537. Based on the jury verdict alone, the statutory maximum sentence imposed for first-degree murder under Minn.Stat. § 609.185(a)(1) is life with the possibility of release. Minn.Stat. § 244.05, subd. 4. A sentence of life without the possibility of release is imposed on defendants convicted under' Minn.Stat. § 609.185(a)(1) only if “the court determines on the record at the time of sentencing that the person has one or more previous convictions for a heinous crime.” Minn.Stat. § 609.106, subd. 2(3). In Smith, because we concluded that the heinous crime statute did not affect the maximum sentence, we held.that Apprendi was not implicated. Having concluded here .that the statutory maximum, as clarified in Blakely, is affected by the determination that a defendant has a previous conviction qualifying as a heinous crime, w:e now overrule Smith to the extent it is inconsistent with this opinion and hold that the “statutory maximum” for first-degree murder under MiniLStat. § 609.185(a)(1) is life with the possibility of .release.

■We turn then to the application of Ap-prendi and Blakely to the heinous crime statute and the state’s argument that the heinous crime statute falls into the “prior conviction exception” — i.e., that a prior conviction can be used to enhance a sentence without the need for a jury finding of the fact of the prior conviction. Apprendi, 530 U.S. at 488-90, 120 S.Ct. 2348. In Apprendi, the Supreme Court held that “[o]ther than the fact of a,prior conviction, any- fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and, proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Blakely “applied] the rule * * * expressed in Apprendi” and defined the “statutory maximum” under,, that rulq. Blakely, 542 U.S. at -, 124 S.Ct. at 2536. Thus, it appears that, after Blakely, the prior conviction, exception .recognized in Apprendi retains vitality and it is constitutional for a defendant’s sentence to be increased based on a prior conviction without submitting the fact of the conviction to the jury.

■Our conclusion that a prior conviction permits an enhanced sentence without additional jury findings, however, does not end the inquiry in this case because, under Minnesota’s heinous crime statute, the fact of prior conviction alone is not always determinative. As discussed supra, a conviction for third-degree criminal sexual conduct includes the element of “force or coercion.” Minn.Stat. § 609.344, subd. 1(c). The plain language of the elements of the offense indicates that third-degree criminal sexual conduct can be committed by coercion alone, force alone, or both force and coercion. See Minn.Stat. § 645.16 (2004) (“Every law shall be construed, if possible, to give effect to all its provisions.”). Thus, given the language of subdivision 1(8) of the heinous crime statute, a judge cannot enhance a defendant’s sentence based on a prior conviction alone, unless it is clear, as required by Apprendi and Blakely, that the jury found or the defendant admitted that the prior crime was committed with “force or violence” as opposed to “force or coercion.”

What remains for our consideration then is the application of the rule to the facts of this case. Under both Ap-prendi and Blakely, a defendant’s admissions can be used to determine sentencing enhancements. Blakely, 542 U.S. at-, 124 S.Ct. at 2537 (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”) (emphasis altered from original). Here, Leake pleaded guilty to third-degree criminal sexual conduct. At the plea hearing, upon agreement of the parties, Leake’s statement to the police was admitted as the factual basis for his plea. In this statement, Leake admitted forcing the victim to have sex with him:

Q: And you physically pulled her back and forced her to have sex with you?
A: Yeah.
Q: In your opinion, she didn’t want to have sex, correct?
A: Correct.
Q: And then she started getting loud. Was she protesting it, was she telling you to, “Stop, leave me alone, I don’t want to do this?”
A: Yeah, she was saying she wants to leave, she doesn’t want any part of this. Q: Okay.
A: She was saying she wants to leave, she doesn’t want any part of this.
Q: Okay, and then you just put your weight on her, kind of held her tightly so she couldn’t squirm away, is that what you said?
A: Held her, yeah.

(Emphasis added.) In questioning Leake, the police specifically used the word “force,” and Leake agreed that he “forced” the victim to have sex with him. He also admitted to putting his “weight” on the victim and holding her. Leake’s admissions amount to the use of force as defined in Minn.Stat. § 609.341, subd. 3 (2004). See In re Welfare of D.L.K., 381 N.W.2d 435, 437-38 (Minn.1986) (holding that a juvenile’s sudden and painful grabbing and pinching of victim’s breast was sufficient use of force to support a conviction of fourth-degree criminal sexual conduct).

Leake’s admission to the use of force was made in the context of a plea and established the factual basis for an essential element of the offense charged — “force or coercion.” We therefore conclude that Leake’s admission that he used “force” in the commission of his prior offense was considered by the court in determining whether the prior offense qualifies as a heinous crime.

Our conclusion is supported by a recent United States Supreme Court case, which held that a court determining the character of a prior offense is “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005); see also United States v. Lucca, 377 F.3d 927, 934 (8th Cir.2004) (holding that an enhanced sentence based on facts contained in a guilty plea satisfies constitutional requirements of admission under Blakely); United States v. Saldivar-Trujillo, 380 F.3d 274, 279 (6th Cir.2004) (stating that Blakely does not affect the validity of a sentence where the sentence was imposed based solely upon facts admitted by defendant as part of his guilty plea); United States v. Monsalve, 388 F.3d 71, 73 (2d Cir.2004) (holding that a sentence based on an admission in a plea agreement is consistent with Blakely). Accordingly, on this record, we hold that Leake’s admission supports the court’s use of the conviction under the heinous crime statute. Applying this reasoning, we affirm Leake’s sentence of life imprisonment without the possibility of release under the heinous crime statute.

III.

Next, we turn to the issue, raised in Leake’s pro se supplemental brief, regarding whether the verdicts of not guilty of second-degree intentional murder and guilty of first-degree premeditated murder are legally inconsistent. The question of whether verdicts are legally inconsistent is a question of law, which we review de novo. See State v. Blom, 682 N.W.2d 578, 624 (Minn.2004).

Nothing in the constitution requires consistent verdicts. United States v. Powell, 469 U.S. 57, 64-66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (reaffirming the Court’s holding in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that consistency in verdicts is not required). In accord with Powell and Dunn, this court has stated that

The general rule is that a defendant who is found guilty of one count of a two count indictment or complaint is not entitled to a new trial or a dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.

State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn.1978).

Leake, however, relies on language in our decision in State v. Moore, 438 N.W.2d 101 (Minn.1989) (Moore I), to argue that the verdicts in this case are legally inconsistent. In Moore I we held that the jury’s verdicts finding the defendant guilty of both first- and second-degree murder were not legally inconsistent. 438 N.W.2d at 108. In so holding, we suggested that verdicts are legally inconsistent if “a necessary element of each offense * * * was subject to conflicting findings.” Id.-, see also State v. Netland, 535 N.W.2d 328, 331 (Minn.1995). Leake argues that in this case the verdicts are legally inconsistent because the element of intent is subject to conflicting findings due to the acquittal on the second-degree intentional murder count and the conviction on the first-degree premeditated murder count. Although the language in Moore I on its face could support Leake’s argument, all of the cases in which this court has applied the Moore I rule have involved situations where the defendant alleged inconsistencies between multiple guilty verdicts. See State v. Crowsbreast, 629 N.W.2d 433, 439-40 (Minn.2001); State v. Bradford, 618 N.W.2d 782, 800 (Minn.2000); State v. Cole, 542 N.W.2d 43, 50-51 (Minn.1996); State v. Moore, 458 N.W.2d 90, 93-95 (Minn.1990) (Moore II, unrelated to Moore I). For example, in Moore II, we held that the verdicts of guilty of first-degree premeditated murder and guilty of second-degree manslaughter were legally inconsistent because the defendant could not have caused the death of his wife with premeditation and intent and at the same time cause her death through negligence or reckless conduct. 458 N.W.2d at 94.

We recognize that the language of Moore I does not explicitly limit its holding to situations where a defendant is convicted on multiple counts which contain conflicting elements. Nonetheless, Moore I relies on our decision in Juelfs which states that a defendant is not entitled to a new trial if the verdicts returned are logically inconsistent. The Juelfs rule has consistently been applied by the Minnesota Court of Appeals when a defendant is convicted of one offense and acquitted of another. See, e.g., State v. Brown, 455 N.W.2d 65, 70 (Minn.App.), rev. denied (Minn. July 6, 1990); State v. Newman, 408 N.W.2d 894, 898 (Minn.App.), rev. denied (Minn. Aug. 19, 1987); Nelson v. State, 407 N.W.2d 729, 731 (Minn.App.), rev. denied (Minn. Aug. 12, 1987). Further, the majority of states do not reverse inconsistent verdicts when there is one acquittal and one conviction. See W.E. Shipley, Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d 259 § 3 at 274 (1968 & Supp. 2004); Eric L. Muller, The Hobgoblin of Little Minds ? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771, 787 (1998). Because the instant case involves only logical inconsistencies — between a verdict of acquittal on one count and a verdict of guilty on another count— we hold that the verdicts are not legally inconsistent and Leake is not entitled to a new trial.

IV.

Leake next alleges in his pro se supplemental brief that the prosecutor committed misconduct in the closing argument and that such misconduct requires reversal of his conviction. The statements about which appellant complains include: (1) the prosecutor’s statement describing what he imagined Fisher said in her voice mail message to appellant and the conversation between appellant and Fisher on the night of the murder; (2) statements referring to appellant’s alleged objectification of women; and (3) the prosecutor’s theory that appellant “tortured” Fisher by stabbing the duvet and mattress cover before killing her. Leake did not object to these statements at trial or request cautionary instructions.

When reviewing claims of prosecutorial misconduct arising out of closing arguments, we consider the closing argument as a whole rather than focusing on particular “phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993). If a defendant fails to object to alleged prosecutorial misconduct at trial or to seek .cautionary instructions, we review the defendant’s claim to determine if plain error occurred. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); see also State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). Plain error requires: (1) error; (2) that is plain; and (3) that affects substantial rights. Griller, 583 N.W.2d at 740. The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case. Id. at 741. We have defined plain error as prejudicial if there is “a reasonable likelihood” that the error “had a significant effect” on the jury’s verdict. Id. If all three prongs are met, we then assess whether we should address the error to ensure fairness and the integrity of the judicial proceedings. Id. at 740.

The first set of statements appellant objects to on appeal concern the early morning phone calls between appellant’s and Fisher’s phones. Testimony at trial showed that on March 22, 2003, Fisher left appellant a voice mail, that when appellant called her back they talked for three minutes and that appellant blocked his number when he called again later. There is no evidence in the record relating to the substance of either the voice mail or the phone calls. The prosecutor, while speculating as to the substance of these conversations, specifically told the jury that “I can’t tell you exactly what it was that she said,” but went on to say:

[W]hatever she said to him, he did not like * * *. We know that because of the way he reacted * * * because ⅝ * * he travels all the way from - his apartment to Megan’s apartment. We know that he has traveled there because the cell tower records indicated that the call, that 2:45 call, bounces off the tower right next to Megan’s apartment.

Later, the prosecutor said:

Megan called and left [appellant] a message at 1:27 saying “no more.” He calls her after getting his voice mail, he calls her at 1:56 and asks her to reconsider. She says no so he shows up at- her doorstep at 2:45 and he has to disguise his call so he blocks his cell phone number.

We have previously stated that counsel must not speculate in closing argument about events occurring at the time of the killing absent a factual basis in the record. State v. Bradford, 618 N.W.2d 782, 799 (Minn.2000). We conclude that the prosecutor’s speculation about the substance of the voice mail message and the conversation between Fisher and Leake was improper. We nonetheless conclude that the prosecutor’s statements do not satisfy the third prong of the plain error test — that the error affect substantial rights — because there is no reasonable likelihood that the error had a significant effect on the jury’s verdict.

Appellant next objects on appeal to several comments the prosecutor made about appellant’s “objectification” of women, which appellant argues were prejudicial:

Couple that with the evidence about this individual’s attitudes or perceptions about women.
This is not ah individual that holds a woman in high esteem. This is an individual that looks at women as objects. So when Megan Fisher tells him no, this is not something that he can handle very well, that he takes easily because this is an obj'éct, telling him, a big man, that he can’t ■ do something. He’s not -listening to that, not from a woman. He doesn’t take that from a woman.
* * * *
[T]hat conversation was not satisfactory to him, * * * not the. way he wanted to treat this object that everyone else called Megan Fisher * *

While character attacks- during closing arguments are improper, State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994), parties are permitted- to argue reasonable inferences from the facts presented at trial. State v. Wahlberg, 296 N.W.2d 408, 419 (Minn.1980). Here, the jury heard testimpny that appellant was married and was involved with at least two other women. While the prosecutor’s arguments could be interpreted as going beyond the mere facts, we conclude that these comments were not prejudicial and therefore did not affect appellant’s substantial rights.

The last series of remarks to which appellant objects on appeal relate to the prosecutor’s comments regarding testimony1 at trial that there were rips and tears in Megan’s duvet and mattress cover. In closing argument, the prosecutor said:

What he is doing, -ladies- and gentlemen, is he’s playing with Megan Fisher, the -way a cat plays with a mouse before that cat kills that mouse. He knows from his conversations that Megan wishes to1 reject his advances, no longer .wants to play booty call with him. He doesn’t take rejection real well so as he’s holding her down, he is stabbing the bed behind her and he is torturing her.

Even if these statements go beyond arguing reasonable inferences from the testimony at trial, we conclude that they do hot satisfy the third prong of the-plain error test.

V.

The final issue Leake raises in his pro se supplemental brief relates to alleged inconsistencies between the evidence presented before the grand jury and the evidence produced at trial. Because a presumption of regularity attaches to an indictment, a defendant bears a heavy burden when seeking to overturn an indictment, particularly after the defendant has been found guilty beyond a reasonable doubt. State v. Lynch, 590 N.W.2d 75, 79 (Minn.1999). Having carefully reviewed the record, we'conclude that Leake has not met this burden.

Affirmed.

      . During the investigation, the police took Fisher’s knife set to the culinary school and the director told them that a long serrated bread knife was missing from the set. The police then obtained a replica of the missing knife, which was introduced into evidence at trial.

      . Fisher’s brother testified at trial that Fisher had many stuffed animals in her bedroom.

      . Police later searched Leake's Oldsmobile and collected several samples of blood-like substances. The samples taken from the Oldsmobile matched Leake’s DNA profile but the testing of the. samples either excluded Fisher or failed to identify her as a contributor.

      . In addition to the evidence about the number of wounds, opportunity, and lack of defensive wounds, the state cites evidence of a strained relationship as additional support for .finding premeditation. Specifically, the state refers to the fact that Fisher’s mother and ' friends testified that Fisher was frustrated with her relationship with Leake, said she was "done with this," and was avoiding his calls. While evidence of a strained relationship can be relevant to premeditation, see State v. Moore, 481 N.W.2d 355, 362 (Minn. 1992), we. think the relationship evidence in this case provides, at best, minimal support for a finding of premeditation and thus we do not rely on the relationship evidence in our discussion of premeditation.

      . Because this case does not require that we decide whether Blakely announced a new rule, we do not reach the issue and nothing in this opinion should be interpreted to foretell our decision on the subject.

      . We recognize that the state contends that Leake waived his "Blakely/Apprendi claim” because he did not object on Apprendi grounds at the time of sentencing. But, the sentencing court applied our decision in Smith in which we concluded that the heinous crime statute was not implicated by Ap-prendi. Because we hold here that Blakely overrules our decision in Smith, we decline to hold that Leake waived his claim.

      . Force is defined as "the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.” Minn.Stat. § 609.341, subd. 3.

      . In so doing, we note that in the instant case the sentencing court’s reliance on the testimony of the victim of the prior offense in reaching its determination that the crime was committed with "force or violence’’ was error as it does not meet the requirements of Blakely, 542 U.S. at-, 124 S.Ct. at 2537.

      .. The elements of first-degree premeditated murder are (1) causing the death of another, (2) with premeditation, and (3) with intent. Minn.Stat. § 609.185(a)(1) (2004). The elements of second-degree intentional murder are (1) causing the death of another (2) with intent. Minn.Stat. § 609.19, subd. 1(1) (2004). The element of premeditation distinguishes first-degree murder from second-degree murder.

      . Only a few states continue to require consistency in this situation. See Muller, 111 Harv. L. Rev. at 787 & n. 79 (citing cases). Recently, Illinois overruled an earlier decision which required consistency and held that when a defendant is convicted on one count and acquitted on another, consistency is not required. People v. Jones, 207 Ill.2d 122, 278 Ill.Dec. 45, 797 N.E.2d 640, 644-49 (2003).


author: RANDALL, Judge.

text:
    In the Matter of the WELFARE OF C.J.W.J., Child.
    No. A04-1200.
    Court of Appeals of Minnesota.
    June 21, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Donald F. 'Ryan, Crow Wing County Attorney,- Candace Prigge, Assistant County Attorney, Crow Wing County Attorney’s Office, Brainerd, MN, for respondent State of Minnesota.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, MN, for appellant C.J.W.J.

      Considered and decided by RANDALL, Presiding Judge, TOUSSAINT, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

RANDALL, Judge.

On appeal from an order adjudicating him delinquent on one count of second-degree assault, appellant argues that (1) he was denied the effective assistance of counsel, because counsel failed to advise him on the record that he had a right to testify and he did not waive his right to do so; and (2) the evidence is insufficient to sustain the adjudication because the adjudication was based on testimony that was inconsistent on several points, including the location of the knife he allegedly.used to commit the assault. We affirm.

FACTS

Appellant C.J.W.J. was charged with two counts of second-degree assault in Crow Wing County for allegedly assaulting Leah Grembowski and Rory Buchite on August 22, 2003. Appellant pleaded not guilty, and a court trial was held on the matter.

At trial, Grembowski testified as to the following events. On the night of the alleged assault, she and her roommate Krista Wickwire had been out with their friend Justin Russell. The three arrived at Grembowski’s apartment at about 1:30 a.m., the same time as her other two roommates Rory Buchite and Serena Greger-son, and four or five individuals, one of whom Grembowski identified as appellant. According to Grembowski, one of the individuals, William, had been saying some things to Gregerson, Buchite’s girlfriend, and Buchite was upset about the comments. Grembowski testified that after arguing in Buchite’s bedroom, Buchite and William settled their differences and shook hands.

After Buchite and William resolved the dispute, Buchite and Gregerson went into the bathroom to talk. But according to Grembowski, tensions escalated when Floyd and William followed Buchite and Gregerson into the bathroom. Grembow-ski testified that she then observed appellant go into the kitchen and grab a knife. Grembowski, who was standing in front of the bathroom, told appellant to put the knife away, but appellant pointed the knife at her and replied, “that was his brother in the bathroom, and that he would kill [Grembowski] and [Grembowski’s baby], and anyone else who stood in his way.” Grembowski testified that Wickwire also tried to persuade appellant to put the knife away, but he refused.

Following the confrontation in the hallway, appellant grabbed an empty gallon jug of liquor and went into the bathroom where the fight had started. Grembowski testified that as she walked downstairs to call the police, she observed appellant swinging the knife and the gallon jug at Buchite, who was on the floor between the toilet and the bathtub. According to Grembowski, she was able to observe the fight from the bottom of the stairs because “the window at the bottom of the stairs goes directly up.” Grembowski then went outside to tell Russell about the fight. But when Grembowski asked Russell why he was not trying to break up the fight, Russell replied that “there was nothing that they could do.”

Grembowski testified that she asked a neighbor to call the police, and then yelled back in the apartment that the police were coming. As everybody filed out of the apartment, Grembowski observed appellant still holding the knife. Although police found a knife in the yard the next day, Grembowski testified that it was not the knife that appellant had allegedly used in the assault. Grembowski further testified that after the fight, Buchite had multiple stab wounds on his head and was still bleeding when he returned from the hospital.

Wickwire also testified as to the events and circumstance surrounding the alleged assault. According to Wickwire, she had been out with Grembowski and Russell on the night of the incident. When they arrived at the apartment, they met up with Buchite, Gregerson, and four other individuals whom she did not know. Wickwire identified appellant as one of the four individuals. According to Wickwire, the four individuals had been drinking from a gallon glass jug of Jack Daniels, and appeared to be very intoxicated.

Wickwire testified that after the group went into, the apartment, Buchite and William had an argument in Buchite’s bedroom. Although Buchite was upset because William had been flirting with; his girlfriend, the two settled the issue. But after Buchite and Gregerson went, into the bathroom to talk, William followed them into the bathroom. Wickwire, who was standing outside of the bathroom, saw appellant come down the hall with some type of butcher knife. According to Wickwire, she and Grembowski told appellant to put the knife away, but appellant pointed the knife at Grembowski and replied: “I’ll kill you and your baby if I have to. Shut up and leave me alone.” Wickwire then tried to grab appellant’s hand, but appellant put the knife up to her throat and said: “I’ll kill you, too, if I have to. Leave me alone.”

After appellant threatened her with the knife, Wickwire turned and saw William punch Buchite. Appellant then grabbed the glass jug, ran into the bathroom, and started swinging the jug at Buchite. Although she turned to look away, Wickwire testified that she heard the jug make contact with Buchite. Wickwire then observed Buchite push Gregerson into the bathtub to get her out of the way. According to Wickwire, Buchite was pinned down between the toilet and the bathtub, and “[appellant]-seemed to repeatedly stab at the top of [Buchite’s] head, and there was blood just shooting and spraying everywhere.” Wickwire then ran downstairs to call the police, which prompted appellant and his friends to leave the apartment. Wickwire later observed Buchite’s injuries, and testified that Buchite had several gashes on his head from the knife, a large bump from where the glass bottle hit him, and a bruise on his face from where William punched him.

Gregerson also testified as to the events of the alleged assault. According to Gre-gerson, appellant and his friends had been hitting on her throughout the evening, which upset Buchite. Eventually, she and Buchite went into the bathroom to talk. However, some of appellant’s friends followed them into the bathroom and would not leave when asked. Gregerson testified that tensions escalated, and William punched Buchite. Gregerson then went into the shower to hide. Gregerson testified that as she jumped into the shower, she thought she saw appellant with an empty jug of alcohol and a knife, but she was not sure because she “was really freaked out.” Once she got in the shower, she could hear the assault, but she could not see anything.

On cross-examination, Gregerson recalled seeing a knife in the bathroom sink because the maintenance man had been using it to fix the toilet. In contrast to Wickwire and Grembowski’s testimony, Gregerson testified .that she “assumed” that appellant had gotten the knife from the bathroom sink. Gregerson further testified that although she did not see appellant strike Buchite with the knife, she saw appellant hit Buchite with the gallon jug. Buchite did not testify at trial.

The district court found appellant guilty of the charged offenses, and the case was transferred to Beltrami County for disposition. Following a dispositional hearing, the district court adjudicated appellant delinquent. A 60-day out-of-home placement as a condition of supervised probation was imposed, but the placement was stayed pending appeal. The stayed placement was subsequently executed after appellant committed a new offense.

ISSUES

1. Was appellant denied the effective assistance of counsel because counsel failed to advise him on the record that he had the right to testify?
2. Was the evidence sufficient - as' a matter of law to sustain appellant’s convictions of second-degree assault?

ANALYSIS

I. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his attorney’s representation “ ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). A strong presumption exists that counsel’s performance “falls within the wide range of reasonable professional assistance.” Pierson v. State, 637 N.W.2d 571, 579 (Minn.2002) (quotation omitted).

. Appellant argues that he was denied the effective assistance of counsel because there is no evidence in the record concerning whether appellant wanted to testify at trial, whether he voluntarily waived the right to testify at trial, or whether he even knew he had the right to testify. “The defendant’s right to testify-in his or her own defense is protected by both the [Fourteenth] Amendment Due Process Clause of the Federal Constitution and Minnesota state law.” State v. Ihnot, 575 N.W.2d 581, 587 (Minn.1998). The waiver of the right to testify must be voluntary and knowing. State v. Walen, 563 N.W.2d 742, 751 (Minn.1997). Although not required in Minnesota, it is common for a trial court to confirm with the defendant on the record that his waiver of the right to testify is knowing and voluntary. In re Welfare of M.P.Y., 630 N.W.2d 411, 416 (Minn.2001). But when the record is silent as to the waiver of the right to testify, the reviewing court “must presume that the decision not to testify was made by defendant voluntarily and intelligently.” State v. Smith, 299 N.W.2d 504, 506 (Minn.1980).

Appellant acknowledges the presumption that without any evidence to the contrary, his waiver of the right to testify was voluntarily and intelligently given, but appellant asserts that because he is a juvenile, the presumption is not reasonable. We understand appellant’s point. However, recently this court decided In re Welfare of in which the juvenile argued that he did not waive his right to testify in his defense. 674 N.W.2d 208, 214 (Minn.App.2004). In affirming the juvenile’s conviction, this court stated that because the record was silent regarding whether appellant waived his right to testify, the juvenile was presumed to have personally waived his right to testify. Id.

Although this court affirmed the juvenile’s conviction, we did caution: “[t]he district court should spend as much or more time with a juvenile than with an adult, satisfying itself that any waiver of an essential right is proper and that the juvenile understands the consequences of the waiver.” Id. at 213-14. We repeat this cautionary instruction. With adult defendants, and even more so with juveniles, even after the attorney has laid the proper record, district courts should get the defendant’s personal acquiescence to the waiver on the record (in camera or open court; whatever the district court decides).

'[10] Nevertheless, the issue here was not raised before the district court, and the record is silent with respect to whether appellant waived his right to testify. Under these circumstances, appellant is presumed to" have personally waived his right to testify. Smith, 299 N.W.2d at 506; In re M.E.M., 674 N.W.2d at 214. Accordingly, we conclude that appellant was not denied the effective assistance of counsel.

II. Sufficiency of the Evidence

Appellant also contends that the evidence was insufficient as a matter of law to sustain his adjudication for second-degree assault. In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record-to determine whether the evidence, when viewed in the light most favorable to the conviction,” is sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Appellant was adjudicated delinquent for committing second-degree assault under Minn.Stat. § 609.222, subd. 1 (2002). This statute provides: “Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.” Minn. Stat. § 609.222, subd. 1.

Appellant argues that it was unreasonable for the district court to find him guilty of the charged offenses because many of the state’s witnesses presented inconsistent testimony. Specifically, appellant asserts that Gregerson’s testimony concerning the location of the knife directly conflicts with Wickwire and Grembow-ski’s testimony. Appellant points out that Wickwire and Grembowski testified that appellant obtained the knife from the kitchen, but Gregerson testified that appellant retrieved the knife from the bathroom sink. Appellant also asserts that Russell’s trial testimony, in which he testified that Wickwire did not say anything to him about an incident involving a knife, and did not indicate any signs of distress or fear, completely contradicts Wickwire’s testimony. Thus, appellant argues that his con-vietion should be reversed because the testimonial inconsistencies are significant and completely discredits the believability of the witnesses.

Appellant’s argument overemphasizes the importance of some testimonial inconsistencies. Although Gregerson’s testimony concerning the knife is inconsistent with Wickwire and Grembowski’s testimony, Gregerson testified that she merely “assumed” that appellant had gotten the knife from the sink because a knife had been in the bathroom sink earlier in the day. Gregerson did not testify at trial that she actually saw appellant obtain the knife from the bathroom sink. Moreover, Gregerson testified that she was really did not see much of the alleged assault, and that she was “really freaked out,” over the assault. Thus, Gregerson’s testimonial value was minimal at best.

In contrast, both Wickwire and Grembowski testified that appellant pointed the knife at Grembowski and threatened her and her unborn child. Wickwire also testified that “[appellant] seemed to repeatedly stab at the top of [Buchite’s] head, and there was blood just shooting and spraying everywhere.” In addition, Grembowski testified that although she was walking down the stairs, she was able to observe appellant swinging the knife and the gallon jug at Buchite, who was on the floor between the toilet and the bathtub. If believed by the fact-finder, this testimony is easily enough to prove the elements of second-degree assault. See Minn.Stat. § 609.222, subd. 1 (stating that a person is guilty of second-degree assault if he or she assaults another with a dangerous weapon). Even with minor contradictory testimony, appellate courts defer to the fact-finder’s determinations regarding the weight and credibility of individual witnesses. See State v. Miles, 585 N.W.2d 368, 372 (Minn.1998). When viewed in the light most favorable to the adjudication, we conclude the evidence was sufficient for the district court to reach the verdict that it did.

DECISION

Because the record is silent with respect to whether appellant waived his right to testify, appellant is presumed to have personally waived his right to testify. The evidence is sufficient to support the adjudication of guilt.

Affirmed.

      . Grembowski explained on cross-examination that appellant would have known that she was pregnant because Grembowski told Buchite she was pregnant and that she wanted people to leave the apartment.


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Travis Clayton JOHNSON, Appellant.
    No. A04-838.
    Court of Appeals of Minnesota.
    July 5, 2005.

      Mike Hatch, Attorney General, St, Paul, MN; and Gregory A. Widseth, Polk County Attorney, Crookston, MN, for respondent. -
    Steven M. Light, Fargo, ND, for appellant.
    Considered and decided by LANSING, Presiding Judge; STONEBURNER, Judge; and MINGE, Judge.
   OPINION

LANSING, Judge.

In this appeal from convictions of first-degree burglary and fifth-degree assault, Travis Johnson challenges the district court’s jury instructions and its determination that a defendant may be cross-examined about his probationary status and the conditions of his probation. Because we conclude that the district court properly instructed the jury and did not abuse its discretion by allowing the state to cross-examine Johnson about his probation, we affirm.

FACTS

In April 2004, a jury found Travis Johnson guilty of first-degree burglary and fifth-degree assault. The evidence at trial showed that on February 3, 2004, while on probation, 29-year-old Travis Johnson went to a bar and consumed alcohol. • While standing outside the bar, he saw 67-year-old Donald Johnson walking to his car and asked to talk to him about a disagreement between the two men that occurred several years earlier. Donald Johnson testified that he continued walking. Travis Johnson then walked up to' him and hit him. After a bartender interrupted the altercation, Donald Johnson drove home.

When he pulled into his garage, Donald Johnson saw a pickup truck pull up behind him. Initially, he thought that his friend Larry Stortroen had followed him home. After he got out of the car, however, he saw Travis Johnson standing in the garage. The men started arguing and an altercation ensued. Donald Johnson testified that Travis Johnson pushed him to the ground, climbed on top of him, and started punching him.

On direct examination, Travis Johnson testified that he had been at the same bar as Donald Johnson and had an argument with him outside the bar but did not punch him at that time. He then followed Donald Johnson home, entered his garage, and asked for an apology. Donald Johnson grabbed him by the throat and hit him. After about forty-five seconds, Travis Johnson hit Donald Johnson to force him to release his throat hold. When Larry Stortroen arrived, Donald Johnson let go of Travis Johnson and Travis Johnson left.

On cross-examination, the prosecutor questioned Travis Johnson about his probationary status and the conditions of his probation. Travis Johnson admitted that he was on probation and that, as a condition of probation, he was required to be law-abiding and to refrain from drinking alcohol and going to bars. He also stated that. he did not know if he had “time hanging over [his] head” if he violated the conditions of his probation. The court immediately cautioned the jury that evidence of Travis Johnson’s probation had been offered for the limited purpose of assisting them in determining whether he had committed the crimes with which he was charged and that he was not on trial for, and could not be convicted of, any offense other than the offense charged in the complaint. The court specifically instructed the jury that it could not convict Travis Johnson on the basis of his probation violation.

. The jury found Travis Johnson guilty as charged, and the district court sentenced him to the presumptive sentence. This appeal from the judgment of conviction follows. ...

ISSUES

I. Did the district court abuse its discretion by allowing the state to cross-examine Travis Johnson about his probationary status and the conditions of his probation?

II. Did the district court commit reversible error in instructing the jury on first-degree burglary?

III. Did the district court abuse its discretion by refusing to instruct the jury on the lesser-included offense of fourth-degree burglary?

ANALYSIS

I

Travis Johnson argues that the district court abused its discretion by allowing the state to cross-examine him about his probationary status and the conditions of his probation.to reveal a possible motive to lie. Johnson claims that because he admitted on direct examination that he had been drinking at a bar, the state did not have a legitimate reason on cross-examinar tion to inquire into his probationary status.

Rulings on evidentiary matters rest within the district court’s sound discretion. State v. Moua, 678 N.W.2d 29, 37 (Minn.2004). This court will not reverse an evi-dentiary ruling absent evidence that the district court abused its discretion and that the evidentiary ruling substantially influenced the jury’s decision. Id.

Whether a defendant who has not raised his probationary status on direct examination may be questioned about it on cross-examination has not been previously addressed by Minnesota appellate courts. Cf. State v. Palmer, 206 Minn. 185, 191-92, 288. N.W. 160, 164 (1939) (holding that district court did not err in allowing, state to cross-examine defendant about failure to comply with conditions of probation after defendant testified on direct examination that he had complied). But the Supreme Court has held that a witness may be cross-examined about his probationary status to establish that the witness had an incentive to cooperate and curry favor with the state as a result of his status. Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111-12, 39 L.Ed.2d 347 (1974) (allowing state to cross-examine juvenile witness about probationary status despite juvenile’s interest in privacy of his delinquency record). Other courts have held that when defendants take the witness stand in their own behalf, they take on the role of a witness and become subject to cross-examination to the same extent as any other witness. See, e.g., Simon v. United States, 123 F.2d 80, 85 (4th Cir.1941); United States v. Waldon, 114 F.2d 982, 984 (7th Cir.1940).

Travis Johnson took on the role of a witness after he took the stand and, like the defendant in Davis, he became subject to cross-examination to the same extent as any other witness. Accordingly, the district court did not abuse its discretion by allowing the state to cross-examine Travis Johnson about his probationary status to show that he had a motive to lie. See Minn. R. Evid. 616 (stating that evidence of bias, prejudice, or interest for or against any party is admissible to test the credibility of a witness).

Travis Johnson claims that his admissions on direct examination made it unnecessary for the state to cross-examine him about his probationary status. Although Travis Johnson testified that he had been drinking at a bar, he did not mention that he was on probation or that he was required to remain law-abiding as a condition of probation. Subject to the limitations imposed by the rules of evidence, the state was entitled to elicit that evidence to make a record from which the jury could infer that Travis Johnson had a motive to lie about his failure to remain law-abiding — namely, to avoid a substantial jail sentence for violating the conditions of his probation. Because the prosecutor did not exceed the limitations of the rules of evidence, the district court properly allowed the state to cross-examine Travis Johnson about the conditions of his probation. See Minn. R. Evid. 401 (defining “relevant evidence” as evidence tending to make existence of fact, such as bias, more probable or less probable than it would be without the evidence); Minn. R. Evid. 403 (allowing exclusion of relevant evidence when probative value is substantially outweighed by danger of unfair prejudice); Minn. R. Evid. 608(b) (allowing inquiry into specific instances of misconduct for impeachment purposes if conduct probative of truthfulness or untruthfulness); Minn. R. Evid. 609 (limiting use of prior convictions for impeachment purposes).

II

Travis Johnson next argues that the district court’s burglary instruction constituted plain error because it misstated the law. We disagree.

The district court is allowed considerable latitude when selecting language for jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). The law requires only that “the charge as a whole convey to the jury a clear and correct understanding of the law of the case.” Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 421, 47 N.W.2d 180, 187 (1951). This court reviews jury instructions in their entirety to determine if they fairly and accurately reflect the law of the case. State v. Peou, 579 N.W.2d 471, 475 (Minn.1998); State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

Travis Johnson concedes that he did not object to the district court’s burglary instruction at trial. His conviction will therefore be reversed only if the instruction constitutes plain error. ' State v. Ihle, 640 N.W.2d 910, 916 (Minn.2002). To establish plain error, Travis Johnson must prove that there was error, the error was plain, and the error affected substantial rights. State v. Vick, 632 N.W.2d 676, 685 (Minn.2001). An instruction is' erroneous if it materially misstates the law. Ihle, 640 N.W.2d at 917. An.error is plain if it is “clearly contrary to the law at the time of appeal.” Johnson v. United, States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1548, 137 L.Ed.2d 718 (1997).

The statute under which Travis Johnson was charged provides in relevánt part: “Whoever enters a building without consent ... and commits a crime while in the building ... commits burglary in the first degree ... if ... the burglar assaults a person within the building or on the building’s appurtenant property.” Minn.Stat. § 609.582, subd. 1(c) (2002).

The district court instructed the jury that

The statutes of Minnesota provide that whoever enters a building without the consent of the person in lawful possession, and assaults another person within the building' or on the building’s appurtenant property, is guilty of a crime.
The elements of burglary in the first degree are[:][F]irst, defendant entered a building without the consent of the person in lawful possession.
Second, defendant assaulted a person within the building or on the building’s appurtenant property.
Third, defendant’s act took place on February 3, 2004, in Polk County, Minnesota.

Travis Johnson argues that the district court failed to instruct the jury, consistent with the relevant statute and 10A Minnesota Practice, CRIMJIG 17.04 (1999), that it was required to find either that he entered Donald Johnson’s garage with the intent to commit a crime (a theory the prosecution did not assert) or that he committed a crime while in the building (the instruction the court gave). According to Travis Johnson, by instructing the jury on only one of the two options set forth in CRIMJIG 17.04, the district court “gave the jury the impression that it could convict [him] without finding .that he either committed a crime while inside [Donald Johnson’s] garage or intended to commit a crime at the time of entry.”

Contrary to Travis Johnson’s argument, however, the district court’s instruction is consistent with CRIMJIG 17.04 and does not reasonably convey an impression that the jury could find Travis Johnson guilty of first-degree burglary without finding that he committed a crime in Donald Johnson’s garage. CRIMJIG 17.04 does not suggest that the jury must be instructed that it has the option of finding either that the defendant entered or remained in the building with the intent to commit a specific crime or that he committed a specific crime within the building, particularly when one of the options (in this case the first) is inconsistent with the state’s theory of the case and unsupported by the evidence. Indeed, such an instruction might have confused jurors and caused them to think that they were required to find intent at the time of entry.' Additionally, the court’s instruction clearly stated that to find Travis Johnson , guilty of first-degree burglary, the jury had to find beyond a reasonable doubt that the defendant assaulted a person within the building or on the building’s appurtenant property. The court’s Instruction could not, therefore, have misled the jury into thinking that it could find Travis Johnson guilty of first-degree burglary without finding that he committed a crime while inside the garage.

Travis Johnson argues that, based on his testimony that he hit the victim in self-defense, the jury could have found, with the correct instruction, that he committed an assault but not a crime. But it is unclear how the instruction Travis Johnson proposes could have resulted in a finding that he committed assault but not a crime, other than by misleading the jury.

Finally, Travis Johnson argues that the court failed to give the jury the CRIMJIG or statutory definition of the crime intended or actually committed. But the record shows that the district court defined the crime actually committed in its instruction on fifth-degree assault.

Because the district court’s instruction accurately stated the law, the district court did not commit reversible error in instructing the jury.

Ill

Travis Johnson next argues that the district court abused its discretion by refusing to instruct the jury on the lesser-included offense of fourth-degree burglary. We do not agree.

The decision to instruct the jury on a lesser-included offense is within the district court’s discretion. State v. Auchampach, 540 N.W.2d 808, 815 (Minn.1995). An instruction on a lesser-included offense is appropriate when (1) the lesser offense is necessarily an included offense, and (2) the evidence reasonably supports a conviction of the lesser offense but not a conviction of the greater offense. State v. Richardson, 670 N.W.2d 267, 283 (Minn. 2003); State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975). Stated differently, “the proof of the elements [that] differentiate the two crimes must be sufficiently in dispute so that a jury may consistently find the defendant innocent of the greater offense and guilty of the lesser offense.” State v. Adams, 295 N.W.2d 527, 532 (Minn.1980). The state does not dispute that fourth-degree burglary is a lesser-included offense of first-degree burglary; the only issue, therefore, is whether the evidence reasonably supports a conviction of fourth-degree burglary and at the same time does not support a conviction of first-degree burglary.

A person who enters a building without consent and assaults another person within the building commits first-degree burglary. MinmStat. § 609.582, subd. 1(c). By contrast, a person who enters a building without consent and commits a misdemeanor other than theft is guilty of fourth-degree burglary. Minn.Stat. § 609.582, subd. 4 (2002).- The district court declined to instruct on fourth-degree burglary, reasoning that no rational basis existed to convict Travis Johnson of fourth-degree burglary because his prior.. offenses enhanced the assault from a misdemeanor to a felony. Travis Johnson argues that a fourth-degree-burglary instruction was appropriate because, based on his testimony that he hit Donald Johnson to get him to release the hold on his throat, the jury could have found that he acted in self-defense and therefore lacked the intent to inflict bodily harm required for an assault conviction. Accordingly, Johnson argues, the jury could have found that he committed disorderly conduct (a misdemeanor) rather than assault.

But Travis Johnson did not raise the issue of self-defense at trial or provide notice prior to trial' of his intent to claim self-defense. See Minn. R.Crim. P. 9.02, subd. l(3)(a) (requiring defense to give notice of defenses, including self-defense, before omnibus hearing); State v. Gustafson, 610 N.W.2d 314, 320 (Minn.2000) (stating that self-defense is affirmative defense and defendant must give notice of intent to rely on self-defense). Johnson also did not request a self-defense instruction at trial. Thus, there is no basis for his claim that the jury could have found he acted in self-defense and therefore lacked the requisite intent to commit the assault on which the first-degree burglary charge was predicated.

Additionally, Travis Johnson has not demonstrated that, even if he had properly asserted self-defense, the evidence could reasonably support a conviction of disorderly conduct but not of assault. Disorderly conduct is defined by Minn.Stat. § 609.72, subd. 1(1) (2002), as brawling or fighting with knowledge that the conduct would tend to alarm, anger, or disturb others, or to provoke an assault or breach of the peace. This court has held that self-defense applies to a charge of disorderly conduct when the behavior that forms the basis of the offense presents the threat of bodily harm. State v. Soukup, 656 N.W.2d 424, 429 (Minn.App.2003), review denied, (Minn. Apr. 29, 2003). Travis Johnson admitted fighting with Donald Johnson. Therefore, even assuming Johnson had raised the defense, self-defense would apply equally to the greater and the lesser-included offense. As such, we conclude that the evidence would not have supported a conviction of fourth-degree burglary and, at the same time, an acquittal of first-degree burglary.

Travis Johnson failed to raise the self-defense issue and may not now claim on appeal that the jury could have found that he acted in self-defense for purposes of the assault but not for the disorderly conduct. The district court did not therefore abuse its discretion by refusing to instruct the jury on fourth-degree burglary.

DECISION

The district court properly instructed the jury and did not abuse its discretion by allowing the state to cross-examine Johnson about his probationary status and the conditions of his probation.

Affirmed.