author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. James Warren MOON, Jr., Appellant.
    No. A05-1047.
    Court of Appeals of Minnesota.
    July 18, 2006.

      John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN; and Donald F. Ryan, Crow Wing County Attorney, Brainerd, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; WRIGHT, Judge; and DIETZEN, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges his conviction of intentional second-degree murder and sentence of 306 months’ imprisonment, arguing that (1) the district court erred by failing to instruct the jury regarding accomplice testimony, and (2) the interests of justice require a reduction in his sentence. In his pro se supplemental brief, appellant argues that he received ineffective assistance of counsel, the prosecutor committed prejudicial misconduct, the search warrants for his car and residence were defective, and there was insufficient evidence to support the conviction. We affirm.

FACTS

On March 7, 2002, human remains were found in Kanabec County and identified through fingerprints as Billie Joe Moon. An autopsy concluded that the cause of death was a gunshot wound to the head. Investigators learned that the deceased had been reported missing and was last seen on February 16, 2002, after being dropped off at a bar in Brainerd where he met his brother, appellant James Warren Moon, Jr. (Moon).

On March 8, investigators interviewed Moon regarding his brother’s death. Moon stated that he and his brother had been together at the bar and that Moon later dropped off his brother in a parking lot. Upon request, Moon signed a written consent allowing the investigators to search his vehicle. When the investigators observed what appeared to be blood in the trunk, they decided to seal the vehicle and obtain a search warrant. The investigators executed a search warrant for Moon’s vehicle on March 9. The DNA profile of blood-stain samples obtained from Moon’s vehicle matched the DNA profile of the deceased.

Moon spoke with investigators again on March 10. At the outset, an investigator read Moon the Miranda warning. After a mid-morning break, Moon was placed under arrest and reminded of his Miranda rights. Moon eventually admitted that he shot his brother, stating, “I pulled the trigger.” Moon showed the investigators the secluded area where the shooting occurred and told the investigators where he had obtained the gun and the gun’s location. Based on the information Moon provided, the investigators obtained a search warrant for Moon’s residence, where they recovered the gun. Ballistics tests confirmed that a bullet found near the deceased’s remains was fired from the gun seized from Moon’s residence.

A grand jury indicted Moon for premeditated first-degree murder, a violation of Minn.Stat. § 609.185(1) (2000). Michael Long also was charged in connection with the murder. Long and Moon’s sister were living with Moon at the time of the shooting. Under a plea agreement, Long agreed to plead guilty to aiding a felon and to cooperate in the prosecution of Moon. During an investigative interview, Long stated that he gave Moon the gun on February 16 and subsequently met Moon in the secluded area after Moon called to request a car battery. Long admitted being present when the shooting occurred and helping Moon transport the body to Kanabec County.

On May 9, 2003, Moon moved to dismiss the charge for lack of probable cause and to suppress evidence and statements obtained in violation of the Fourth and Fifth Amendments to the United States Constitution. An omnibus hearing was held on June 25. Moon later moved to reopen the omnibus hearing because he was not satisfied that his attorney had addressed every issue. The district court granted the motion to reopen the omnibus hearing but limited the issues Moon could address at the hearing and permitted briefing on the remaining issues. The second omnibus hearing was held on January 14, 2004. The district court denied Moon’s motions to dismiss and to suppress and a subsequently filed motion to reopen the omnibus hearing.

At trial, Long testified that, after he handed Moon the gun, Moon held his brother down and placed the gun to his brother’s head. The gun then “went off.” Moon testified that he did not intend to kill his brother. Moon admitted holding his brother down and putting the gun to his brother’s head. But according to Moon, Long grabbed the gun. When Long handed the gun back to Moon, it “went off.” Moon testified that the gun was not in his “possession” or “direct control” when the shooting occurred.

The jury found Moon not guilty of first-degree murder, but guilty of second-degree murder, a lesser-included offense. See Minn.Stat. § 609.19, subd. 1(1) (2000) (causing the death of another with the intent to effect death). The district court imposed the presumptive guidelines sentence of 306 months’ imprisonment. This appeal followed.

ISSUES

I. Did the district court commit reversible error by failing to instruct the jury regarding accomplice testimony?
II. Do the interests of justice require a reduction in the sentence imposed?
III. Is appellant entitled to relief based on any of the issues raised in his pro se supplemental brief?

ANALYSIS

I.

The district court must give a jury instruction regarding accomplice testimony in a criminal trial during which a witness testifying against the defendant might reasonably be considered an accomplice to the crime. State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989). Under these circumstances, the district court’s duty to give the accomplice-testimony instruction exists regardless of whether the defense requests the instruction. State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002); Shoop, 441 N.W.2d at 479. This instruction cautions the jury that it cannot convict the defendant based on accomplice testimony unless the testimony is corroborated by other evidence that tends to establish that the defendant committed the charged offense. Minn.Stat. § 634.04 (2004); 10 Minnesota Practice, CRIMJIG 3.18 (1999).

This corroboration requirement addresses the questionable credibility of testimony by an individual who may be inclined to shift the responsibility for criminal conduct to another in order to benefit personally. State v. Azzone, 271 Minn. 166, 170, 135 N.W.2d 488, 493 (1965). Corroborative evidence that “merely shows the commission of the offense or the circumstances thereof’ provides an insufficient basis to credit accomplice testimony. MinmStat. § 634.04. Rather, corroborative evidence is sufficient to support a conviction based on accomplice testimony when it confirms the veracity of the accomplice’s testimony and indicates the defendant’s guilt in a substantial way. State v. Hooper, 620 N.W.2d 31, 39 (Minn.2000). Independent proof of each element of the crime, however, is not required. State v. Lemire, 315 N.W.2d 606, 610 (Minn.1982).

Moon argues that the district court committed reversible error when it failed to give the accomplice-testimony instruction, even though Moon did not request the instruction. Ordinarily, to obtain reversal for an unobjected-to error, a defendant must establish that the error was plain and affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); see Minn. R.Crim. P. 31.02

(providing that plain error affecting substantial rights may be considered although not argued to district court). The plain-error rule places a higher burden on a defendant seeking reversal after having failed to object or argue the matter before the district court. But this higher burden is not appropriate for a defendant who fails to request an instruction that the district court is obligated to give. Because it is the district court’s obligation to give the accomplice-testimony instruction whenever a witness against the defendant might reasonably be considered an accomplice, the erroneous omission of the instruction is properly reviewed under a harmless-error analysis, even when the defendant did not request the instruction or object to its omission. See State v. Lee, 683 N.W.2d 309, 316 (Minn.2004) (applying harmless-error analysis to erroneous omission of accomplice-testimony instruction without specifying whether defendant requested instruction).

An accomplice is one who could be indicted and convicted of the same crime as the defendant. Id. at 314. Here, the state does not dispute, and the record establishes, that Long was an accomplice. Thus, applying the harmless-error standard, we consider whether the district court’s “erroneous omission of the [accomplice-testimony] instruction might have prompted the jury, which is presumed to be reasonable, to reach a harsher verdict than it might have otherwise reached.... ” Shoop, 441 N.W.2d at 481. If so, Moon is entitled to a new trial. Id. “Alternatively, if we conclude beyond a reasonable doubt that the omission did not have a significant impact on the verdict, reversal is not warranted.” Id.

Moon maintains that the conviction should be reversed because it likely was based on the jury crediting Long’s testimony over Moon’s. But from our careful review of the record, we conclude that, even without Long’s testimony, there is more than sufficient evidence to convict Moon of intentional second-degree murder. An investigator testified that Moon admitted shooting his brother. Moon testified that he obtained a gun and ammunition, received instructions on how to operate the gun, drove his brother to a secluded area, held his brother down, and put a gun to his brother’s head. Moreover, the forensic evidence received at trial was consistent with an intentional shooting. This evidence established that the deceased suffered a contact wound, which indicates that the gun was touching or nearly touching the left temple when the shot was fired. The bullet exited the right temple and was found partially embedded in the ground, indicating that the gun was fired downward at approximately a 90-degree angle.

We conclude that Long’s testimony was more than sufficiently corroborated by the forensic evidence and by Moon’s testimony. At the outset of his testimony, Long acknowledged that he had been charged with a crime in connection with the shooting, that he had pleaded guilty to aiding a felon, and that he had agreed to give a statement to the investigators and to cooperate with the investigation and prosecution of Moon as part of his plea agreement. Long testified that Moon tripped his brother to get him on his back and then asked for the gun. According to Long, he handed the gun to Moon who then asked his brother if he would “leave [them] alone.” When Moon’s brother did not respond, Moon shot him. Moon did not testify that Long pulled the trigger; yet Moon also failed to explain during his testimony how the gun went off. Moon, however, had told the investigator during questioning that he pulled the trigger. When taken as a whole, the evidence, including Moon’s testimony, more than sufficiently corroborates Long’s testimony that Moon pulled the trigger. See State v. Adams, 295 N.W.2d 527, 533 (Minn.1980) (stating that inadequacies and admissions in defendant’s testimony may sufficiently corroborate accomplice testimony).

Finally, Moon’s argument that Long’s testimony regarding Moon’s intent warrants reversal is unavailing. Indeed, Long testified that he was not certain that the shooting was intentional. And Long’s testimony that, on an earlier occasion, Moon had pointed out the secluded location where he intended to take his brother was stricken with instructions to the jury to disregard it. We are satisfied that the jury disregarded the statement in light of Moon’s acquittal of premeditated first-degree murder.

Applying the harmless-error standard here, the record establishes beyond a reasonable doubt that the omission of the accomplice-testimony instruction did not have a significant impact on the verdict. Reversal on this basis, therefore, is not warranted.

II.

Moon seeks a reduction in his sentence from 306 months, the presumptive guidelines sentence for intentional second-degree murder, to 150 months, the presumptive guidelines sentence for unintentional second-degree murder (felony murder). Moon did not move the district court for a downward durational departure from the sentencing guidelines. On appeal, we “may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.” Minn.Stat. § 244.11, subd. 2(b) (2004).

Only in a “rare” case will we reverse a district court’s imposition of the presumptive guidelines sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). Indeed, the district court must impose the presumptive guidelines sentence unless “substantial and compelling circumstances” warrant a downward departure. Id.; Minn. Sent. Guidelines II.D. Even if a mitigating factor is present, the decision whether to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Oberg, 627 N.W.2d 721, 724 (Minn.App.2001), review denied (Minn. Aug. 22, 2001).

Moon argues that his sentence must be reduced in the interests of justice because both he and Long participated in the attack and their sentences are unjustifiably disparate. But Long’s sentence is not in the record before us. And even if the sentences are disparate, a defendant is not entitled to a sentence reduction simply because a codefendant received a lesser sentence. State v. Krebsbach, 524 N.W.2d 17, 19 (Minn.App.1994), review denied (Minn. Jan. 13, 1995).

Moon fails to present substantial and compelling circumstances supporting a downward departure. Moon was not a participant who merely aided the commission of the offense. See State v. Burton, 507 N.W.2d 842 (Minn.1993) (reducing a sentence because the jury could have concluded that defendant merely aided the assault). Rather, Moon orchestrated and committed the offense. Long had never met the deceased before the day of the shooting and was at the scene only because Moon called Long and asked him to bring a car battery. Long clearly participated in the events leading up to the shooting. But it was Moon who asked for the gun, both earlier in the day and immediately before the shooting; it was Moon who drove his brother to a secluded location; and it was Moon who shot his brother. Because Moon fails to establish that the district court abused its discretion, we will not interfere with the district court’s sentencing decision.

III.

Moon also raises a number of issues in his pro se supplemental brief.

A.

Moon first argues that each of his three attorneys provided ineffective assistance of counsel. Moon’s allegations on this issue are based on actions or inaction of his attorneys that we cannot evaluate on the record before us. Because we cannot determine the claims of ineffective assistance of counsel in this appeal, the claims are not barred and may be addressed in postcon-viction proceedings in which the record can be more fully developed. See Robinson v. State, mi N.W.2d 491, 494-95 (Minn.1997) (stating that claims for ineffective assistance of counsel may be raised in postcon-viction proceedings after direct appeal if additional fact-finding is required).

B.

Moon next argues that the district court erred when it excused a prospective juror for cause. On this issue, we consider whether the district court erred in concluding that the juror could not be impartial. State v. Logan, 535 N.W.2d 320, 323 (Minn.1995); see Minn. R.Crim. P. 26.02, subd. 5(1) (stating that prospective juror may be challenged for cause if state of mind indicates prospective juror cannot try the case impartially and without prejudice to challenging party’s substantial rights). We accord special deference to the district court’s determination of whether the prospective juror’s assertion of impartiality can be believed because the district court is in the best position to assess the prospective juror’s credibility and demeanor. Logan, 535 N.W.2d at 323. Moon did not object to the state’s motion to strike. Therefore, he can obtain relief only if the district court’s decision to excuse the prospective juror constitutes plain error that affected his substantial rights. Griller, 583 N.W.2d at 740.

The record establishes that the prospective juror stated that she had been a victim of sexual assault. She also stated that jury service would cause her to be late for work, to possibly suffer an economic hardship, and to have less than her normal amount of time for sleep because she worked the night shift. Although the prospective juror stated that none of this would affect her ability to serve, both the state and defense counsel expressed doubts. The prospective juror’s history of sexual assault was a concern to the attorneys because they anticipated that allegations that the deceased had sexually assaulted his sister would be raised at trial. Our review of the record leads us to conclude that there was an adequate basis for the state to challenge this prospective juror for cause and for the district court to disbelieve her claim that she could be impartial. Because Moon fails to establish that the district court erred by excusing the prospective juror or that striking the prospective juror affected his substantial rights, this argument fails.

C.

Moon next alleges that the prosecutor engaged in prejudicial misconduct and failed to disclose witness statements before trial. In reviewing claims of prosecutorial misconduct, we “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn.2003).

Even serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000). Generally, relief will be granted for discovery violations only if the defendant was prejudiced by the state’s conduct. State v. Adams, 555 N.W.2d 310, 311 (Minn.App.1996).

In a criminal prosecution, the state has a continuing obligation to disclose to the defense all matters within its possession or control that relate to the case. Minn. R.Crim. P. 9.01, subd. 1; Minn. R.Crim. P. 9.03, subd. 2; State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992). If a party fails to comply with a discovery rule, the district court may order disclosure, grant a continuance, or enter any order it deems just. Minn. R.Crim. P. 9.03, subd. 8. The district court has broad discretion to determine the appropriate remedy for a discovery violation after considering why disclosure was not made, the extent of prejudice to the opposing party, the feasibility of rectifying any prejudice with a continuance, and other relevant factors. State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979). We review a district court’s response to discovery violations in light of these factors, and we will not reverse absent a clear abuse of discretion. Id.

One of the statements at issue here was made by a Ms. Hamann. Because the district court suppressed the statement on evidentiary grounds, it was never introduced at trial. Thus, the alleged discovery violation as to the Hamann statement is moot. But Moon also argues that the state committed prosecutorial misconduct by failing to disclose Long’s statement that, on an earlier occasion, Moon had pointed out the location where he intended to take his brother. Moon objected to Long’s testimony regarding this matter and moved for dismissal. After a recess, the prosecutor produced an office memo that indicated that the state intended to disclose Long’s statement in a letter to the defense. But the prosecutor admitted that the letter likely was not sent. After finding that the prosecutor’s failure to disclose the statement in advance was not intentional, the district court denied Moon’s motion to dismiss.

Long’s testimony on this matter was stricken from the record. The district court then gave a curative instruction, which Moon approved, and granted a continuance. Moon fails to establish that the district court abused its discretion by handling the discovery violations in this manner.

Moon’s claims of prosecutorial misconduct also fail. There is no evidence in the record to support Moon’s allegation that the prosecutor intentionally withheld the witness statements and fabricated the office memo during the recess to mislead the district court. There also is no record support for Moon’s claim that the state used Long’s sentencing to induce him to testify falsely. And although Moon again argues that the jury relied on Long’s statement, we reject this contention because the jury acquitted Moon of premeditated murder and the second-degree murder conviction was supported by other strong evidence that the shooting was intentional. Because the prosecutor’s failure to disclose the two statements had no effect on the verdict, any misconduct was harmless beyond a reasonable doubt, and Moon is not entitled to a new trial.

D.

Moon next argues that the search warrants for his home and vehicle were defective and that the district court erred in denying his motion to suppress the evidence obtained. Moon contends that, because the warrants do not indicate the time the judge signed them, as required by the rules of criminal procedure, it is possible that the searches were conducted before the warrants were issued. See Minn. R.Crim. P. 36.05 (requiring judge to sign original warrant and enter exact time it was signed). Because Moon fails to provide any legal authority in support of his argument that the failure to include the time on the search warrants requires suppression of the evidence seized during the search, this argument is waived. See State v. Krosch, 642 N.W.2d 713, 719 (Minn.2002) (noting that claims unsupported by legal authority are deemed waived). Furthermore, contrary to Moon’s argument, there is no evidence that the searches were conducted before the search warrants were signed or that the officers failed to leave copies of the search warrants at the scene. This argument, therefore, lacks merit.

E.

Moon also contends that the district court erred by (1) denying his right to be present at all stages of the trial, including during the discussions regarding jury instructions; (2) denying the jury’s request to review certain evidence; and (3) improperly communicating with the jury. Under Minnesota law, a criminal defendant has the right to be present at “every stage of the trial.” Minn. R.Crim. P. 26.03, subd. 1(1). When the jury makes a request to review evidence, the jury “shall be conducted to the courtroom” regardless of the form or the substance of the district court’s response. State v. Charles, 634 N.W.2d 425, 433 (Minn.App.2001) (quoting Minn. R.Crim. P. 26.03, subd. 19(2)). All communications between the district court and the jury should take place in open court and in the defendant’s presence, unless the defendant has personally and voluntarily waived the right to be present after consulting with counsel and being informed of the right to be present. Id. at 432-38. The district court also should make a contemporaneous record of all communications with the attorneys regarding responses to jury questions or requests and, if waived, of the defendant’s waiver of his right to be present. Id. at 433. When a defendant is denied the right to be present at a stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was surely unattributable to the error. State v. Sessions, 621 N.W.2d 751, 756 (Minn.2001). To determine whether the error was harmless, we examine the strength of the evidence and the substance of the district court’s response. Id. We also take into account “what the defendant would have contributed to his defense if he had been present.” State v. Breaux, 620 N.W.2d 326, 333 (Minn.App.2001).

Moon argues that, on the advice of counsel, he was not present during the discussions regarding jury instructions, and he maintains that he was prejudiced by the decision to omit an instruction on first-degree manslaughter. It is the duty of the district court, not that of the prosecution or defense, to determine what lesser degrees of homicide to submit to the jury. State v. Leinweber, 303 Minn. 414, 421-22, 228 N.W.2d 120, 125 (1975). In doing so, the district court must determine “whether the evidence would reasonably support a conviction of the lesser degree” while also justifying an acquittal to the more serious charge. Id. at 422, 228 N.W.2d at 125-26. Declining to submit lesser-included offenses to the jury is reversible error unless the decision is a proper exercise of the district court’s discretion and the defendant suffers no prejudice. Id. at 422, 228 N.W.2d at 126.

To the extent that Moon’s allegations on this issue relate to his claims of ineffective assistance of counsel, we decline to address those claims for the reasons discussed above, and we defer those matters for resolution in postconviction proceedings. Moon claims that the attorneys and the district court worked on jury instructions late at night and early in the morning outside his presence. But there is no record of these proceedings, and we cannot speculate regarding any such off-the-record discussions. There is a record, however, of the successful argument by Moon’s attorney, over the state’s objection, for instructions on self-defense and on the lesser-included offenses of intentional second-degree murder, unintentional second-degree murder (felony murder), and second-degree manslaughter (culpable negligence).

Because Moon failed to request an instruction on first-degree manslaughter, he cannot obtain relief unless the district court’s failure to give the instruction constitutes plain error affecting substantial rights. Charles, 634 N.W.2d at 433. Moon fails to establish that the district court committed plain error. The district court instructed the jury on each lesser-included offense requested by the defense, and there was no evidence presented at trial to support an instruction for first-degree manslaughter under Minn.Stat. § 609.20 (2000). Accordingly, Moon is not entitled to relief on this issue.

We next consider Moon’s claim that the district court denied him the opportunity to be present at all stages of the trial. Moon maintains that on four occasions when the jury had questions, the attorneys discussed the matter with the district court in chambers without Moon. Moon was present by telephone when the district court read a note from the jury that asked, “Can we obtain some of the transcripts if needed?” Moon’s attorney argued that the jury should be instructed to rely on their recollection and notes. The state agreed, noting that the request was too vague for a specific response. The district court stated that it would direct the jury by note: “Please refer to jury instructions on page number five, notes taken by jurors. Specifically, it’s your recollection of the evidence that should control.”

Both attorneys stated on the record that the district court’s response was acceptable; Moon’s attorney noted for the record that Moon was satisfied as well. Moon now contends that he actually indicated that he “didn’t know what was proper to deal with this so whatever the laws state on this [he] will accept.” Moon also claims that his attorney continued to answer questions on Moon’s behalf, without his knowledge, after hanging up the telephone. But the record reflects only two additional statements by Moon’s attorney after Moon was no longer on the telephone, neither of which was substantive. Rather, Moon’s attorney stated for the record that he had consulted with Moon and that Moon was comfortable and satisfied with proceeding in the manner they did.

Moon also argues that the district court erred by denying the jurors’ requests to review the transcripts and a map and by failing to bring the jury into the courtroom to address these requests. It is within the district court’s discretion to determine whether to allow the jury to review testimony, and a district court’s refusal to honor unreasonable requests will be upheld. State v. Spaulding, 296 N.W.2d 870, 878 (Minn.1980).

In Spaulding, the Minnesota Supreme Court determined that it was prejudicial error under the circumstances presented to refuse the jury’s request to review transcripts. Id. But even Moon concedes that the jury in Spaulding made a request to review specific testimony, whereas the jury here only inquired generally about transcript review. See id. (holding that it was prejudicial error to refuse to honor jury’s request to review a small portion of the testimony in a close case). Indeed, Moon’s attorney opposed granting the jury’s request. And Moon consented to responding to the jury by note as proposed by the district court.

As to the jury’s request to review the map, the attorneys and the district court apparently drafted a note that informed the jury that the map was not evidence; rather, it was used only for illustrative purposes. The note also advised that all of the exhibits received in evidence were in the jury room. When Moon was asked whether he had reviewed the proposed response and agreed with it, he responded, ‘Tes, that’s fine.” The district court then sent the note to the jury. Under these circumstances, the district court’s denial of the jury’s requests to review these two items was not an abuse of discretion.

Moon also contends that there were instances when the jury was brought into the courtroom in his absence. He reasons that the jury likely assumed that he was not present because he was in custody, which resulted in an improper suggestion of guilt. In support of his argument, Moon refers to two pages that he claims incorrectly indicate he was present when he was not. But these are the transcript cover pages, which do not reflect actual court proceedings. The other pages in the record cited by Moon do not indicate who was present, other than the judge and the jury, and do not affirmatively state that Moon was not present. Thus, the record does not support Moon’s contention that he was not present when the district court noted for the record that all jurors were present and sent them to the deliberation room. Moreover, Moon fails to cite any legal authority in support of his proposition that his alleged absence for these brief encounters with the jury improperly suggested his guilt to the jury.

To the extent that the district court denied Moon the opportunity to be present at every stage of the proceedings and addressed the jury’s questions with notes rather than bringing the jury into the courtroom, the district court erred. But Moon was present by telephone on the occasion that is reflected in the record, a contemporaneous record was made of the proposed responses along with the district court’s decision before the response was submitted to the jury, and Moon agreed with the way the proceedings were handled. Furthermore, Moon fails to indicate how he would have contributed to his defense if he had been physically present. Because the verdict was surely unattributable to any error committed by the district court, such error is harmless, and Moon is not entitled to a new trial on this ground.

F.

Moon next argues that the district court erred in its instructions to the jury when the jury indicated it was unable to reach a unanimous decision. Relying on Charles and State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973), Moon argues that the district court (1) erred by sending a note to the jury in response to a question rather than responding in open court, and (2) improperly coerced the jury to reach a verdict.

In Martin, the Minnesota Supreme Court held that a district court may not instruct the jury that it must reach a verdict. 297 Minn. at 368-69, 211 N.W.2d at 770. In doing so, the Martin court approved the use of the American Bar Association model jury instruction regarding deliberations, which is incorporated in Minnesota’s model jury instructions. Id. at 372-73, 211 N.W.2d at 772-73; see 10 Minnesota Practice, CRIMJIG 3.04 (1999) (providing unanimous verdict instruction). This instruction is intended to ensure that the district court maintains a neutral stance regarding jury deadlock and refrains from applying “any improper pressure on the jury to reach a verdict.” Schultz v. State, 290 N.W.2d 778, 780 (Minn.1980) (holding that district court did not coerce jury when, after deliberating for 12 hours, jury reported that it was deadlocked and district court asked jury to consider whether it was hopelessly deadlocked or whether it wished to adjourn and return to continue deliberations in the morning). In State v. Jones, the Minnesota Supreme Court opined that the jury must be properly instructed regarding its role and duty under CRIMJIG 3.04. 556 N.W.2d 903, 911 (Minn.1996). The district court may require a jury to continue deliberating, but it cannot require the jury to deliberate for an unreasonable length of time or suggest that deadlock is not an option. Id. at 911-12. Because the deliberations in Jones were not unreasonably excessive and the jury instructions were sufficient, instructing the jury on two occasions to keep deliberating did not exceed the district court’s discretion in trial management. Id. at 912.

Here, the district court read jury instruction 3.04, almost verbatim, before the jury began its deliberations. The jury deliberated on December 15, 2004, from 2:53 p.m. until 8:09 p.m., at which time the jurors were allowed to go home. On December 16, the jury deliberated from 9:15 a.m. until 12:17 p.m. when the jury sent a note asking, “In this case if the jury does not come to a unanimous decision what happens? Is there a retrial? Is there a mistrial?” The district court proposed as a response that it send a note referring the jury to the applicable instruction. Moon’s attorney indicated that was “sufficient” and agreed with the district court that responding directly to the inquiry would be inappropriate. The district court indicated the note would be delivered to the jury-

At 4:45 p.m., the jury was brought into the courtroom in response to a note stating, “We will not be able to come to a unanimous decision. What should we do?” The district court advised that it is not unusual for the deliberation process to be lengthy in a case of this nature and encouraged the jury to continue deliberating “in an honest effort to reach a unanimous verdict.” The district court stated the importance of the jury’s continuing efforts as the deliberations had not yet become lengthy. The district court asked the jury to continue deliberating that day or return the next morning to continue, stating that it would respect the jury’s decision. The jury opted to go home for the night at 4:50 p.m. The following day the jurors returned and deliberated until they reached a verdict at 4:10 p.m.

Although it was error for the district court to send a note in response to the jury’s first question, rather than answering the jury’s question in open court, Charles, 634 N.W.2d at 432-33, the error was harmless because the district court referred the jury to the appropriate instruction. Moreover, Moon was present and consented to that response. Moon’s contention that the district court coerced the jury is also without merit. The record reflects that the district court did not tell the jury that they must reach a verdict or suggest that deadlock was not an option. In light of the short length of time that the jury had been deliberating and the nature of the district court’s response, the instruction to continue deliberating was neither coercive nor an abuse of discretion.

G.

Moon also argues that his second-degree-murder conviction should be reversed because the state failed to prove every element of the offense beyond a reasonable doubt. See Minn.Stat. § 609.19, subd. 1(1) (2000) (causing the death of another with the intent to effect death). In considering a claim of insufficient evidence, our 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 jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We assume that the jury believed the evidence supporting the state’s theory of the case and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989).

We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could conclude that the defendant was guilty of the offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988). In reaching its verdict, “the jury may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.” State v. Cooper, 561 N.W.2d 175, 179 (Minn.1997). Rather, intent may be “generally proved circumstantially — by drawing inferences from the defendant’s words and actions in light of the totality of the circumstances.” Id.

Moon argues that, because he testified that he did not intend to shoot his brother and Long’s testimony was insufficient to establish intent, the state failed to prove the offense of intentional second-degree murder. Moon contends that Long’s admission that he incorrectly instructed Moon about how to operate the gun negates the determination that Moon intended to shoot his brother in the head. But even though neither Long nor Moon testified that Moon intended to shoot his brother, the jury was able to reasonably infer Moon’s intent from his admission that he held a gun to his brother’s head, his earlier statement to investigators that he pulled the trigger, and the forensic evidence that established the deceased suffered a contact wound inflicted at a 90-degree angle. Because the evidence was sufficient for the jury to infer that Moon intended to pull the trigger, the jury reasonably could conclude that Moon was guilty of intentional second-degree murder. Moon’s argument as to the insufficiency of the evidence, therefore, fails.

H.

Moon next argues that the district court erred in denying his motion to suppress his statements to investigators during a custodial interrogation on March 10, 2002. It was the state’s burden to prove that Moon knowingly and intelligently waived his Miranda rights and that he voluntarily gave the statement. State v. Robinson, 427 N.W.2d 217, 222 (Minn.1988) (citing Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966)). Unless other evidence indicates involuntariness or ineffective waiver, the state meets its burden when it establishes that the Miranda warning was given and that the defendant understood the rights he waived. State v. Andrews, 388 N.W.2d 723, 730 (Minn.1986).

Based on the evidence at the omnibus hearing, the district court concluded that (1) Moon was properly advised of and waived his Miranda rights, (2) the investigators did not coerce Moon, and (3) his statements were voluntary. On review, the district court’s findings of fact supporting the determination that a suspect validly waived his Miranda rights and voluntarily gave a statement will not be disturbed unless those findings are clearly erroneous. Robinson, 427 N.W.2d at 222. But we independently determine whether, under the totality of the facts and circumstances, the state proved that the suspect voluntarily, knowingly, and intelligently waived his rights. Id. Relevant circumstances include the suspect’s age, maturity, intelligence, education, experience, the length and legality of the detention and the nature of the interrogation, the adequacy of warnings, the deprivation of physical needs, and the denial of access to others. State v. Camacho, 561 N.W.2d 160, 168 (Minn.1997).

Because exclusion of an involuntary statement is intended to deter improper police interrogation, State v. Williams, 535 N.W.2d 277, 287 (Minn.1995), a finding of coercive police activity is a prerequisite to concluding that a statement was involuntary, State v. Riley, 568 N.W.2d 518, 525 (Minn.1997). Improper influence is established if the suspect’s will was overborne by police tactics, even if threats or intimidation did not occur. Id. Manipulative or overpowering police techniques that deprive a suspect of the ability to make an autonomous decision to speak, or that would make an innocent person confess, render a confession involuntary. State v. Ritt, 599 N.W.2d 802, 808 (Minn.1999).

If a suspect invokes the right to remain silent, interrogation must cease. Williams, 535 N.W.2d at 282. But “nothing short of an unambiguous or unequivocal invocation of the right to remain silent will be sufficient to implicate Miranda’s, protections.” Id. at 285. A police interrogator is “allowed to encourage [a] suspect[ ] to talk when the suspect has not clearly refused.” Id. at 287. And ordinarily, if a suspect has been fully advised of the Miranda warning before there is a break in the questioning, it is not necessary to repeat the Miranda warning in order to render a later statement voluntary. Andrews, 388 N.W.2d at 731. But if the absence of a second warning left the suspect unaware of the seriousness of the second interrogation and the decision to confess at that time was rendered involuntary by the lack of awareness, then the statement will be suppressed. Id. at 731-32 (determining that statement was voluntary even though earlier Miranda warning was not repeated before afternoon interview and suspect was emotionally distressed and crying).

Here, the record establishes that the interview began at 10:25 a.m. Moon was given a Miranda warning almost immediately thereafter. When asked if he understood the rights, Moon replied, ‘Yeah.” And when asked if he wished to speak with investigators, Moon replied, ‘Yeah.” During the interview, Moon began showing signs of stress and asked to see his children, but the investigators refused. The investigators took a break at 10:53 a.m. At approximately 11:00 a.m., Moon was arrested. After the arrest, Moon was advised: “[OJbviously you have Miranda Rights, and you have the right to remain silent. Ah, you have the right to talk to an attorney, ah, you can choose whether you want to talk to us or not.” Without asserting that he did not understand his rights, Moon complains of the investigators’ failure to repeat the entire Miranda warning. However, because Moon had received a complete Miranda warning less than an hour earlier, he was with the same investigators in the same room, and he was aware of the seriousness of the situation, the failure to give another Miranda warning does not warrant suppression of Moon’s statements.

Moon also argues that his waiver of rights was not voluntary. He asserts that he was exercising his right to remain silent when he stated that he would “rather not talk about this right now,” he was “not ready,” he would “take care of this tomorrow,” and he needed to see his children. But because Moon did not unequivocally ask to cease the interview, state a desire to remain silent, or discontinue answering questions, he failed to invoke his right to remain silent. Williams, 535 N.W.2d at 285.

Moon argues that his state of mind and the investigators’ tactics of blaming the victim, minimizing the situation, and denying him access to others by terminating his phone call and not allowing him to see his children rendered his statement involuntary. Although Moon was emotional and cried through much of the interview, his responses indicate that his emotions did not impair his ability to understand questions or respond intelligently. Moreover, the investigators explained to Moon their need to avoid any appearance of coercion when denying his offer to take them to the scene of the shooting if he could see his children first. On these facts, Moon’s claim that his statement was not voluntarily given is unavailing.

Finally, Moon argues that, in violation of his Fourth Amendment right to be free from unreasonable search and seizure, he was denied freedom of movement without probable cause in order to secure his statement. This issue is deemed waived due to Moon’s failure to fully brief the issue and provide legal authority in support of his claim. Krosch, 642 N.W.2d at 719. Nonetheless, we have reviewed the claim and conclude it is without merit.

Moon argues that, at the beginning of his interview, he was not allowed to see his children; but he admits that, shortly thereafter, he was allowed to go outside for a break. An investigator testified that the decision to arrest Moon already had been made and that Moon was arrested right after the break. The district court found that the investigators had probable cause to arrest Moon without a warrant. See State v. Merrill, 274 N.W.2d 99, 108-09 (Minn.1978) (stating that warrantless felony arrest is valid if officers have factual information from reliable sources sufficient to reasonably believe suspect committed a felony). The investigators knew that Moon was the last person seen with his brother, witnesses reported that they had heated arguments over the phone and a physical confrontation on the day Moon’s brother disappeared, the body had been found, and blood had been found in Moon’s vehicle. Even if the arrest occurred at the beginning of the interview, the arrest would have been supported by probable cause.

Our review of the record establishes that the investigators did not improperly detain or manipulate Moon to get him to cooperate. The investigators allowed him to smoke cigarettes and offered beverage and restroom breaks. There is no evidence to support Moon’s claim that the investigators engaged in coercive police tactics that overpowered Moon’s will such that his statement regarding the shooting was not voluntarily made. Because Moon was advised of his rights and voluntarily waived them before giving his statement, the district court did not err in denying the motion to suppress.

DECISION

Although the district court erred by failing to give an accomplice-testimony instruction, under a harmless-error analysis, appellant is not entitled to a new trial because the record establishes beyond a reasonable doubt that the error did not have a significant impact on the verdict. Appellant fails to demonstrate that substantial and compelling circumstances warrant a sentence reduction. And appellant has not established that he is entitled to relief based on the issues raised in his pro se supplemental brief.

Affirmed.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    John E. JASKOWIAK, Relator, v. CM CONSTRUCTION COMPANY, INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A05-2248.
    Court of Appeals of Minnesota.
    July 18, 2006.

      John E. Jaskowiak, Backus, MN, pro se relator.
    CM Construction Company, Inc., Burns-ville, MN, for respondent.
    Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Department.
    Considered and decided by LANSING, Presiding Judge; RANDALL, Judge; and WILLIS, Judge.
   OPINION

WILLIS, Judge.

Relator brings this certiorari appeal from the determination of an unemployment-law judge (ULJ) that relator did not show good cause for not participating in the evidentiary hearing and that he is disqualified from receiving unemployment benefits. Because the record shows that relator did not receive the notice required by statute regarding a failure to participate in the initial evidentiary hearing and the showing necessary to obtain an additional evidentiary hearing, we reverse and remand.

FACTS

Pro se relator John Jaskowiak worked for respondent CM Construction as a construction laborer before he quit his employment and applied for unemployment benefits. The department initially determined that Jaskowiak was qualified to receive benefits because the employment was unsuitable, as that term is used in unemployment law. The employer appealed, and the matter was heard by a ULJ.

When Jaskowiak did not answer the telephone for the evidentiary hearing with the ULJ, the hearing proceeded without him. The ULJ determined that the work was suitable and that Jaskowiak’s quit disqualified him from receiving benefits.

The ULJ’s written decision was mailed to the parties. At the foot of that decision is a paragraph captioned “REQUEST FOR RECONSIDERATION.” The paragraph describes the parties’ rights to request reconsideration by appealing the ULJ’s decision (online, by fax, or by mail within 30 calendar days). The paragraph also informs the parties that under Minn. Stat. § 268.105, subd. 2, the decision will be final if no request for reconsideration is filed.

Jaskowiak timely requested reconsideration of the ULJ’s decision. It appears that he filed the request online, providing basic personal information and the following “explanation”:

I missed the first hearing by an honest mistake, the reason I quit cm was because my house had burned down last march and I did not have insurance and the only way I could afford to rebuild is if I did all the labor myself which I would not have been able to do this summer, working all the way down in the cities, other wise I would have gladly continued to work for cm construction. I have much to add to this but it says keep it brief thank you john jaskowiak.

The ULJ affirmed his decision, determining that Jaskowiak had not shown good cause to not participate in the hearing and that an additional evidentiary hearing, therefore, was not required.

ISSUE

Did the department’s notice regarding requests for reconsideration inform Jas-kowiak of the requirement, under Minn. Stat. § 268.105, subd. 2(d) (Supp.2005), of an additional evidentiary hearing if Jas-kowiak could show good cause for failing to participate in the initial evidentiary hearing?

ANALYSIS

In our review of the ULJ’s decision, we determine whether Jaskowiak’s substantial rights were prejudiced because the findings, inferences, conclusion, or decision are affected by error of law or unsupported by substantial evidence. See MinmStat. § 268.105, subd. 7(d) (Supp. 2005) (listing the bases on which this court may reverse or modify an ULJ’s decision). We conclude that Jaskowiak’s substantial rights were prejudiced because he was not informed, as required by statute, that, because he failed to participate in the eviden-tiary hearing, an additional evidentiary hearing must be held if Jaskowiak could show good cause for his failure to participate.

The former unemployment-benefits law provided parties with the right to appeal the ULJ’s decision to a senior unemployment-review judge. MinmStat. § 268.105, subd. 2 (2004). The law now provides that parties may request reconsideration only by the ULJ of his or her own decision. MinmStat. § 268.105, subd. 2 (Supp.2005). A subsection of the new provision regarding requests for reconsideration specifieally addresses the failure to participate in the evidentiary hearing before the ULJ. It states that an additional evidentiary hearing is required when a party did not participate in the hearing but “had good cause for failing to do so.” Id., subd. 2(d). The subsection also provides: “In the notice of the request for reconsideration, the party who failed to participate shall be informed of the requirement, and provided the opportunity, to show good cause for failing to participate.” Id. And the subsection defines “good cause.” Id.

When a statute provides “the manner, form, and time of notice, the notice must conform to the prescribed provisions.” Anderson v. Moberg Rodlund Sheet Metal Co., 316 N.W.2d 286, 288 (Minn.1982) (quotation omitted). Whether the notice here conforms to the provisions of section 268.105 is a question of statutory construction, which this court reviews de novo. See Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn.2003) (evaluating whether notice requirement in federal regulation was met).

Section 268.105 places the burden on the department, in its “notice of the request for reconsideration,” to “inform” parties of the requirement of an additional evidentia-ry hearing if a party shows good cause for failing to participate in the evidentiary hearing. The department must also provide an opportunity for a party to show such good cause.

Here, the paragraph in the ULJ’s decision captioned “REQUEST FOR RECONSIDERATION” does not mention the failure to participate in the evidentiary hearing, the necessity of an additional evi-dentiary hearing if good cause is shown for failure to participate, or the definition of “good cause.” It contains a citation to the statutory provision regarding requests for reconsideration, but such a general citation, alone, does not “inform” the parties of the subsection’s specific requirements. Because the notice did not inform Jaskow-iak of the requirement of an additional evidentiary hearing if he could show good cause for failing to participate in the evi-dentiary hearing, it did not satisfy the statute.

DECISION

Because the record shows that Jaskow-iak’s substantial rights were prejudiced by inadequate notice of his rights after he failed to participate in the evidentiary hearing, we reverse the decision of the ULJ and remand for the department to provide Jaskowiak with the notice required by Minn.Stat. § 268.105, subd. 2(d) (Supp. 2005), and the opportunity to show good cause for his failure to participate.

Reversed and remanded.

      . The parties did not raise this issue. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (providing that an issue not raised in parties' briefs is deemed waived). But under Minn. R. Civ.App. P. 103.04, we have discretion to address any issue as the interests of justice may require, and we exercise that discretion here to address the issue of the adequacy of the notice.


author: DIETZEN, Judge. HARTEN, Judge

text:
    STATE of Minnesota, Appellant, v. L.W.J., Respondent.
    No. A05-2071.
    Court of Appeals of Minnesota.
    July 18, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Douglas Johnson, Washington County Attorney, Richard D. Hodsdon, Assistant County Attorney, Stillwater, MN, for appellant.
    Lloyd J. Moosbrugger, St. Paul, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and HARTEN, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges the district court’s order granting respondent’s petition to expunge her criminal records, arguing that the district court lacked both statutory authority to expunge court records and inherent authority to expunge executive-branch records. Because we conclude that the district court lacked statutory authority under Minn.Stat. § 609A.03 to expunge respondent’s court records and lacked inherent authority to expunge executive-branch records, we reverse.

FACTS

In April 2002, appellant State of Minnesota charged respondent L.W.J. with gross-misdemeanor theft in violation of Minn.Stat. § 609.52, subd. 2(1) (2004), for stealing $450 worth of merchandise from an outlet store in Woodbury. Respondent subsequently pleaded guilty to an amended charge of misdemeanor theft and was sentenced to 60 days in jail. The 60-day sentence was suspended on the conditions that respondent successfully complete one year of probation, perform sentence-to-serve hours, pay a fíne and restitution, and remain law-abiding.

Following successful completion of the sentencing conditions, respondent filed a petition to expunge the records of her theft conviction under Minn.Stat. § 609A.03 (2004). In the petition, respondent stated,

I am seeking expungement for employment purposes. I know I have made mistakes but I am older and wise and have learned from those mistakes. I am a single mother and have two children who deserve a better life. Providing for my children would be easier if I was employed. When I applied for jobs at the Minnesota Department of Human Services and Minnesota Department of Health, I was informed in writing that I am disqualified due to my criminal record.

Respondent indicated that, “I have gotten my G.E.D., a nice place for my children to live, and have completed training as a certified nurse assistant with the Red Cross and passed the state test. I am looking forward to starting at St. Paul Tech in the fall.”

Appellant opposed the petition to expunge, arguing that the district court lacked statutory authority to expunge the records because respondent pleaded guilty and was convicted of the offense and the matter was not therefore resolved “in favor” of respondent. Appellant also argued that the district court lacked inherent authority to expunge executive-branch records.

At the expungement hearing, respondent, through counsel, argued that she had difficulties obtaining employment, that she had rehabilitated herself through education and training, and that the benefits of expungement would therefore outweigh the disadvantages to the public and the court.

Following the hearing, the district court, citing MinmStat. § 609A.03, subd. 5(a) (2004), found by clear and convincing evidence that expungement would “yield a benefit to [respondent] commensurate with the disadvantages to the public and public safety of: (1) sealing the record; and (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order.” The district court ordered expungement of all official records of respondent’s misdemeanor theft conviction, other than non-public Bureau of Criminal Apprehension records. This appeal followed.

ISSUES

I. Does the district court have statutory authority to expunge respondent’s criminal records?

II. Does the district court have inherent authority to expunge respondent’s executive-branch records?

ANALYSIS

I.

Appellant raises two arguments on appeal. First, appellánt argues that the district court lacked statutory authority to grant respondent’s petition to expunge because respondent’s guilty plea precluded a result “in favor” of respondent as required by statute. Although respondent did not file a brief, we decide the appeal on the merits. Minn. R. CivApp. P. 142.03.

Statutory interpretation is a question of law, which this court reviews de novo. State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003). Statutory language is to be interpreted according to its plain and ordinary meaning. Minn.Stat. § 645.08(1) (2004). Whether all proceedings were resolved in a petitioner’s favor is a question of law reviewed de novo. State v. Davisson, 624 N.W.2d 292, 295 (Minn.App.2001), review denied (Minn. May 15, 2001).

District courts have both statutory and inherent powers to grant expungement relief. Id. The district court’s statutory powers derive from MinmStat. §§ 609A.01-609A.03 (2004). Section 609A.02 provides that a petition to seal all records may be filed under section 609A.03, subdivision 3 (2004) upon three specific grounds: (1) following dismissal and discharge of certain controlled substance offenses; (2) in unique cases involving juveniles prosecuted as adults; and (3) more commonly, “if all pending actions or proceedings were resolved in favor of the petitioner.” Id. § 609A.02, subds. 1-3 (2004 & Supp.2005). Thus, the only statutory ground available to respondent was the subdivision requiring a resolution in her favor. See id., subd. 3 (Supp.2005). Whether a proceeding was resolved in favor of the petitioner “turns on whether there has been an admission or a finding of guilt.” State v. C.P.H., 707 N.W.2d 699, 703 (Minn.App.2006). Thus, statutory ex-pungement is permissible only when there has not been an admission or finding of guilt. State v. J.Y.M., 711 N.W.2d 139, 142 (Minn.App.2006). It is undisputed that respondent pleaded guilty to misdemeanor theft; the proceedings, therefore, clearly were not resolved in her favor, and the district court lacked statutory authority to expunge respondent’s criminal records. See id. (holding that the party’s guilty plea precluded determination that the proceedings were resolved in his favor and, therefore, the district court lacked authority to order expungement).

The district court, nonetheless, concluded that Minn.Stat. § 609A.03, subd. 5(a) (2004), provided a separate statutory basis for expungement. Section 609A.03, subdivision 5(a), provides:

Except as otherwise provided by paragraph (b), expungement of a criminal record is an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of: (1) sealing the record; and (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order.

(Emphasis added). Subdivision 5(b) provides that:

if the petitioner is petitioning for the sealing of a criminal record under section 609A.02, subdivision 3, the court shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.

Id., subd. 5(b) (2004).

For two reasons, we conclude that subdivision 5 does not provide a separate statutory ground for expungement. First, section 609A.02, which is entitled, “Grounds for Order,” expressly sets forth the three statutory grounds for expungement. Minn.Stat. § 609A.02, subds. 1-3. If the legislature had intended additional grounds for expungement, we believe that it would have included those grounds in section 609A.02.

Second, subdivision 5 does not explicitly set forth additional statutory grounds for expungement. And the “[e]x-cept as otherwise provided by paragraph (b)” language of subdivision 5(a) suggests that subdivisions 5(a) and 5(b) are complementary and must be read together. See Minn.Stat. § 645.16 (2004) (a statute should be interpreted to give effect to all of its provisions and construed as a whole). When read together, it is clear that subdivision 5(a) limits the application of subdivision 5(b) to petitions for expungement that involve proceedings resolved in favor of the petitioner. Thus, the balancing-of-interests test in subdivision 5(b) is applicable only when the petitioner establishes under section 609A.02, subdivision 3, that all proceedings were resolved in his or her favor.

In summary, a petition for ex-pungement may be filed under Minn.Stat. § 609A.02, subd. 3, if all proceedings were resolved “in favor” of the petitioner. If this ground is met, then the burden shifts to the agency or jurisdiction whose records would be affected by expungement to prove by clear and convincing evidence that the interests of the public in denying expungement outweigh the disadvantages to the petitioner. Id. § 609A.03, subd. 5(b). Conversely, if all proceedings were not resolved in a petitioner’s favor, a petition for expungement may not be filed, and the balancing test of Minn.Stat. § 609A.03, subd. 5, is inapplicable. Thus, because the proceedings were not resolved in respondent’s favor and Minn.Stat. § 609A.03, subd. 5, does not provide an additional ground for granting statutory expungement, we conclude that the district court lacked statutory authority to expunge respondent’s criminal records.

The district court also has inherent authority to expunge court records: (1) when the petitioner’s constitutional rights may be seriously infringed by retention of petitioner’s records; or (2) if constitutional rights are not involved, when the court finds “expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing, and monitoring an expungement order.” State v. Ambaye, 616 N.W.2d 256, 258 (Minn.2000). We conclude that, because respondent did not request relief under the district court’s inherent authority and the district court did not grant expungement under its inherent authority, the expungement of respondent’s court records cannot be upheld on the basis of the district court’s inherent authority.

II.

Second, appellant argues that because the district court lacked inherent authority to expunge criminal records maintained by executive-branch agencies, it abused its discretion by ordering ex-pungement of the records of law-enforcement agencies and the city, county, and state attorney’s offices.

It is well settled that

[e]xpungement becomes essential to the performance of the courts’ fundamental function of protecting legal rights only when a petitioner’s rights have been violated. Thus, absent evidence that executive agents abused their discretion in the performance of a governmental function, the judiciary may not interfere with the executive’s record-keeping function by ordering the expungement of its records.

State v. T.M.B., 590 N.W.2d 809, 812 (Minn.App.1999), review denied (June 16, 1999); see also State v. Schultz, 676 N.W.2d 337, 343-44 (Minn.App.2004) (holding that, absent evidence of injustice resulting from an executive agent’s abuse of discretion, the district court oversteps its inherent authority when it orders the executive branch to seal records). Here, the record does not contain any evidence that executive agents abused their discretion; therefore, the district court lacked inherent authority to order expungement of respondent’s executive-branch records.

DECISION

Because the district court lacked statutory authority to expunge respondent’s court records and inherent authority to expunge executive-branch records, we reverse.

Reversed.

HARTEN, Judge

(concurring specialty)-

I concur in all respects with the court’s opinion. I write separately to highlight a statutory provision that requires attention for proper administration of the expungement law. Minn.Stat. § 609A.02, subd. 3 (Supp.2005), is the gatekeeper statute for the filing of expungement petitions. My remarks specifically target petitions seeking to expunge records of certain criminal proceedings not resulting in a conviction. Section 609A.02, subd. 3, provides in pertinent part:

A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information ... if all pending actions or proceedings were resolved in favor of the petitioner.

(Emphasis added). In order to file a petition, there must be a pre-filing showing that all pending actions or proceedings were resolved in favor of the petitioner. This requires some administrative oversight before a filing can be made and the jurisdiction of the court invoked. I point this out because this court has handled a number of appeals involving expungement petitions in which the proceedings sought to be expunged obviously were not resolved in favor of the petitioner. This results in a waste of judicial resources at both the trial and appellate level on cases that should never have been allowed to enter the system in the first place.

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


author: RANDALL, Judge.

text:
    In the Matter of the Vera LYONS MARITAL TRUST Created Under Article 4 of the Last Will and Testament of M. Arnold Lyons, Dated October 9, 1985. In the Matter of M. Arnold Lyons Family Trust Created Under Article 4 of the Last Will and Testament of M. Arnold Lyons, Dated October 8, 1985. In the Matter of the Vera Lyons Revocable Trust Created Under Agreement dated May 31, 1988.
    No. A05-1774.
    Court of Appeals of Minnesota.
    July 18, 2006.

      Richard J. Schieffer, Anderson Dove Fretland & Van Valkenburg, P.L.L.P., Minneapolis, MN, for appellants Andrew W. Buirge & William C. Buirge.
    Christopher T. Shaheen, Peter S. Hen-drixson, William J. Berens, Dorsey &
    Whitney L.L.P., Minneapolis, MN, for respondent Barbara Hobbs.
    Stephen R. Litman, Leonard, Street, and Deinard, Minneapolis, MN, for all trustees.
    Considered and decided by RANDALL, Presiding Judge, WILLIS, Judge, and PARKER, 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 reforming Vera Lyon’s will and revocable trust agreement that was based on a determination that Vera Lyons improperly exercised a special power of appointment over her deceased husband’s family trust in favor of her revocable trust, appellants argue that the district court erred by reforming the trust. Because the district court correctly held that Vera Lyon’s exercise of her special power of appointment was an invalid appointment, we affirm on that issue. But because the testamentary documents are unambiguous, the district court had no authority to reform the will, and, therefore, we reverse and remand on that issue.

FACTS

This case arises out of a dispute concerning the estates of M. Arnold Lyons (hereinafter Arnold) and his wife Vera Lyons (hereinafter Vera). Arnold and Vera’s marriage produced three children, Lisa Lyons, David Lyons, and respondent Barbara Hobbs (hereinafter respondent) all of whom survive. Appellants Andrew Buirge and William Buirge (hereinafter appellants) are adult sons of respondent and grandchildren of Arnold and Vera.

In October 1985, approximately two years prior to his death, Arnold executed a will that distributed the assets of his estate into two trusts, the marital trust and the family trust. The marital trust was created solely for the benefit of Arnold’s wife, Vera, and contains a general testamentary power of appointment exercisable by Vera with no limitation upon possible beneficiaries. Arnold’s will also granted Vera a special testamentary power of appointment over the family trust, which power is exercisable in favor of his children or their issue. The will provided that the family trust is not exercisable in favor of Vera, her estate, or her creditors. The will also defined Arnold’s “children” as “DAVID LYONS and LISA LYONS and shall not mean [respondent].” The will further stated that:

[respondent] is specifically excluded from the provisions of this will. All references in this will to “issue” of my children shall include the issue of DAVID LYONS and LISA LYONS but shall not include any issue of [respondent] except [appellants] and their issue for whom I have specifically provided in this will.

In May 1988, shortly after Arnold’s death, Vera executed a revocable trust agreement. Vera’s trust provided that upon her death, the balance of the trust estate “shall be divided by the Trustees into as many separate shares, as nearly equal in value as possible, as there are children of the Grantor then living.... ” Also in May 1988, Vera executed a will that devised the residue of her probate estate to Vera’s trust. At about the same time, Vera exercised her special power of appointment under the family trust and the general power of appointment under the marital trust to distribute the assets of these trusts to Vera’s trust. Vera’s exercise of her powers of appointment effectively mandated that the assets of the family trust and the marital trust be divided equally among her three children.

After Vera’s death in 2003, the trustees of the family trust, marital trust, and Vera’s trust petitioned for an order instructing them relating to the proper administration and distribution of the trusts and discharge of their duties. The trustees’ petition alleged that it was their belief that Vera’s exercise of the special power of appointment over Arnold’s family trust was invalid because it would ultimately result in the transfer of a beneficial interest in the family trust to respondent, a prohibited beneficiary. The trustees’ petition also alleged that it was their belief that a proper interpretation of the Arnold family trust would be to distribute the balance thereof as follows: one-third to Lisa Lyons, one-third to David Lyons, and one-third to appellants respectively. The petition further alleged the trustees’ belief that Vera’s revocable trust and Arnold’s marital trust should be distributed to Lisa Lyons, David Lyons, and respondent in equal shares in accordance with Vera’s testamentary plan.

In response to the trustees’ petition, respondent asked the district court to reform Vera’s will and trust to correct her invalid exercise of the special power of appointment and effectuate Vera’s clear intent to benefit all three of her children equally. The trustees took no position on the reformation issue, and during an October 2004 pretrial conference, the parties agreed that the matter could be submitted to the court for a decision on the merits based upon written submissions and arguments of the parties.

On December 7, 2004, respondent filed her memorandum in objection to the trustees’ petition. The matter was heard before a referee who subsequently submitted his recommended findings and order to the district court. The district court adopted the findings and issued an order reforming Vera’s will and Vera’s revocable trust. The district court found that there was “clear and convincing” evidence from Vera’s testamentary instruments that she intended to benefit all three of her children equally. The district court also found that Vera did not intend to exercise ineffectively her special power of appointment, and, thus, there was also a clear mistake of law. The district court concluded that because these two conditions had been satisfied, the court had the authority under Minnesota law and the various Restatements of the Law to reform the will and trust. The district court’s reformation of the will effectively distributed the assets of the family trust, the marital trust, and Vera’s trust equally among Lisa Lyons, David Lyons, and respondent.

In response to the district court’s order, appellants filed a notice of review and a motion seeking an evidentiary hearing. The district court denied the motion. This appeal followed.

ISSUE

Did the district court err in reforming Vera’s testamentary documents when both the will and the trust are unambiguous?

ANALYSIS

Appellants argue that because Vera’s exercise of her special power of appointment under the family trust was invalid, and because all of the testamentary documents are unambiguous, the district court erred by reforming Vera’s will and trust. This court reviews a “district court’s construction of an unambiguous instrument de novo.” In re Estate and Trust of Anderson, 654 N.W.2d 682, 687 (Minn.App.2002), review denied (Minn. Feb. 26, 2003).

It is undisputed that Vera’s exercise of her special power of appointment over the family trust was invalid. Thus, we affirm the district court’s determination on that issue. But it is also clear that the testamentary documents are unambiguous. Historically, where a will is unambiguous, the testator’s intent controls and the district court will attempt to effectuate the testator’s intent without the admission of extrinsic evidence. In re Estate of Cole, 621 N.W.2d 816, 818 (Minn.App.2001). Respondent argues that recent changes in probate law provide courts with the authority to reform unambiguous wills where there is clear and convincing evidence of the testator’s intent.

Support for allowing courts to reform unambiguous wills comes from the following reasoning in the Restatement:

When a donative document is unambiguous, evidence suggesting that the terms of the document vary from intention is inherently suspect but possibly correct. The law deals with situations of inherently suspicious but possibly correct evidence in either of two ways. One is to exclude the evidence altogether, in effect denying a remedy in cases in which the evidence is genuine and persuasive. The other is to consider the evidence, but guard against giving effect to fraudulent or mistaken evidence by imposing [the clear and convincing] standard of proof. In choosing between exclusion and high-safeguard allowance of extrinsic evidence, this Restatement adopts the latter. Only high-safeguard allowance of extrinsic evidence achieves the primary objective of giving effect to the donor’s intention.

Restatement (Third) of Prop.: Wills and Other Donative Transfers 12.1 cmt. b. The comments to the Restatement further observe that:

This section unifies the law of wills and will substitutes by applying to wills the standards that govern other dona-tive documents. Until recently, courts have not allowed reformation of wills. The denial of a reformation remedy for wills was predicated on observance of the Statute of Wills, which requires that wills be executed in accordance with certain formalities. Reforming a will, it was feared, would often require inserting language that was not executed in accordance with the statutory formalities. Section 11.2, however, authorizes inserting language to resolve ambiguities in accordance with the donor’s intention. As noted in § 11.2, Comment c, modern authority is moving away from insistence on strict compliance with the statutory formalities on the question of initial execution of wills.
The trend away from insisting on strict compliance with statutory formalities is based on a growing acceptance of the broader principle that mistake, whether in execution or in expression, should not be allowed to defeat intention. A common principle underlies the principle of this section, which authorizes reformation of unambiguous dona-tive documents (including wills) to correct mistakes, and the movement (1) to excuse defective execution under § 3.3 and (2) to authorize insertion of language to resolve ambiguities in donative documents under § 11.2.

Id. at cmt. c.

Respondent argues that the district court had authority to reform Vera’s testamentary documents because this court has adopted the reasoning set forth in the Restatement for reforming unambiguous donative instruments. To support her claim, respondent cites Magnuson where the donative instrument at issue was a deed by which the deceased father purported to leave his residential property to his children so that the children inherited as joint tenants rather than as tenants in common. Magnuson v. Diekmann, 689 N.W.2d 272, 274 (Minn.App.2004). Relying on the Restatement (Third) of Property: Wills and Other Donative Transfers, this court stated that:

A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.

Id. at 274-75 (quoting Restatement (Third) of Prop.: Wills and Other Donative Transfers 12.1 (2003)). The court also stated that: “Using the equitable remedy of reformation to correct a mistake is necessary to prevent unjustly enriching the mistaken beneficiary at the expense of the intended beneficiary.” Id. at 275 (quoting Restatement (Third) of Prop.: Wills and Other Donative Transfers 12.1 cmt. b). The court held that because there was clear and convincing evidence of the deceased father’s intention to leave his property to his children as joint tenants, reformation of the deed was appropriate. Id. at 276. Respondent acknowledges that the Magnuson case addressed a deed rather than a will, but argues that the court’s reasoning should be extended to apply to wills. We cannot come to respondent’s conclusion. Despite the similarities between wills and the donative instrument at issue in Magnuson, Minnesota caselaw specifically states that: “[a] deed creating by mistake a tenancy in common, where a joint tenancy was intended, will be reformed.” Papke v. Pearson, 203 Minn. 130, 137, 280 N.W. 183, 186 (1938). Minnesota law with respect to wills does not contain such an express instruction. Rather longstanding Minnesota law provides that when the language of a will is free from reasonable doubt, there is no room for construction or interpretation. In re Davidson’s Will, 223 Minn. 268, 274, 26 N.W.2d 223, 226 (1947). There is little support among other states to adopt the Restatement’s position on the reformation of wills. See, e.g., Bongaards v. Millen, 440 Mass. 10, 793 N.E.2d 335, 348 (2003) (declining to follow the Restatement as it applies to the reformation of wills); Flannery v. McNamara, 432 Mass. 665, 738 N.E.2d 739, 746 (2000) (declining to follow Restatement (Third) of Prop.: Wills and Other Donative Transfers 12.1 allowing reformation of unambiguous will); Noble v. Bruce, 349 Md. 730, 709 A.2d 1264, 1277 (1998) (recognizing the longstanding rule against the reformation of wills in Maryland); Brinker v. Wobaco Trust Ltd., 610 S.W.2d 160, 165 (Tex.Civ.App.1980) (reforming inter vivos trust to correct a well-proved mistake in drafting but adhering to the rule that a will is not subject to reformation).

Here, Arnold’s testamentary documents are unambiguous. Vera’s intent was clear — to circumvent Arnold’s intent — but her invalid exercise of the special power of appointment over the family trust prevented her from carrying out her intent. Respondent concedes that, which stops the inquiry as there is no authority for the Minnesota courts to reform an unambiguous will.

DECISION

The district court correctly held that Vera’s exercise of her special power of appointment under the family trust was invalid. But where the testamentary documents are unambiguous, the district court did not have authority to reform Vera’s will and trust. Accordingly we reverse and remand for an order in accordance with the distribution proposed by the trustees in their petition.

Affirmed in part, reversed in part, and remanded.


author: KAPSNER, Justice.

text:
    2006 ND 124
    Edward TARNAVSKY, Plaintiff and Appellant v. Morris TARNAVSKY and Vonne Tarnavsky, Defendants and Appellees.
    No. 20050457.
    Supreme Court of North Dakota.
    June 5, 2006.
    Greg W. Hennessy (on brief), Hennessy Law Office, P.C., Williston, N.D., for plaintiff and appellant.
    David A. Tschider (on brief), .Tschider & Smith, Bismarck, N.D., for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Edward Tarnavsky appealed from a district court order confirming a sheriffs sale of his property. We remand with instructions.

I

[¶ 2] Edward Tarnavsky and his brother, Morris Tarnavsky, have engaged in lengthy litigation over ownership and dissolution of their family farming and ranching operation. On September 26, 2002, the district court entered judgment awarding Morris over $308,000 from Edward. That judgment was affirmed on appeal. See Tarnavsky v. Tarnavsky, 2003 ND 110, 666 N.W.2d 444.

[¶ 3] Morris has made numerous attempts to collect on that judgment. Between the date of the judgment and June 2005, Morris had attempted to execute on the judgment five times. On June 13, 2005, a sixth notice of levy was served upon Edward seeking judicial sale of various real and personal property owned by Edward. Edward filed a claim of exemptions, and the district court allowed some of the claimed exemptions and rejected others.

[¶4] The sheriffs sale was held on September 7, 2005. Morris’s bid of $75,000 for all of the real and personal property offered for sale was the high bid. Edward claims that the sheriff erroneously sold exempt items, including portions of his homestead property and his vehicle, in violation of the court’s prior order allowing certain exemptions.

[¶ 5] On September 14, 2005, the district court issued its order confirming the sheriffs sale. Edward has appealed, arguing that the sheriffs sale was void. Edward contends the sheriffs sale was improperly held after the writ of execution had expired, that the sheriff failed to properly preserve Edward’s homestead exemption, and that there were numerous mathematical errors, including the failure to credit the full amount of the $75,000 bid against the outstanding judgment against Edward.

II

[¶ 6] On appeal, Morris does not dispute or challenge any of the factual or legal assertions, arguments, or issues raised by Edward. Rather, Morris has filed a one-page brief in which he expressly “acknowledge[s] the existence of errors in the sheriffs sale process and consents] to the remand of this matter with instruction that the order confirming sale be vacated.” Morris’s acknowledgment of errors in the sheriffs sale was unconditional, and he did not address nor attempt to preserve any of the issues or arguments raised by Edward. We therefore find it unnecessary to address, and we express no opinion on, the substantive issues raised by Edward on appeal.

[¶ 7] Morris’s unqualified concession that errors occurred in the sheriffs sale and his acquiescence in vacation of the order confirming the sheriffs sale constitute an admission that Edward is entitled to the relief he seeks on appeal. Accordingly, we remand with instructions that the district court enter an order declaring the September 7, 2005, sheriffs sale void and vacating the September 14, 2005, order confirming the sheriffs sale.

[¶ 8] DALE V. SANDSTROM, Acting C.J., WILLIAM F. HODNY, S.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

[¶ 9] The Honorable WILLIAM F. HODNY, S.J., sitting in place of VANDE WALLE, C.J., disqualified.