author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Raymond Maurice WADDELL, Appellant.
    No. C4-01-1330.
    Supreme Court of Minnesota.
    Jan. 30, 2003.

      Mark S. Wernick, Minneapolis, MN, for Appellant.
    Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Saint Paul, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Raymond Waddell was convicted of one count of murder in the first degree, Minn.Stat. § 609.185 (2000). In this direct appeal, Waddell contends that the vehicle stop that resulted in his arrest and eventual conviction was improper. Additionally, Waddell asserts that he was held in violation of the “prompt appearance” rule, Minn. R.Crim. P. 4.02, subd. 5, and that such a violation warrants suppression of his statements made while in custody. We affirm.

On the evening of December 7, 2000, Vickie Mollenhoff was working as a cashier at the Minni-Market, located in Saint Paul’s East Side. The owner, Daniel Su, was also present in the store. Waddell, Anthony Williams, and Jerry Carroll, who had recently failed in their efforts to sell purported methamphetamine, decided to rob the Minni-Market. Waddell placed a gun in the pocket of a light-colored hooded sweatshirt and entered the market with Williams.

Waddell and Williams picked up some candy and went to the register. Mollen-hoff rang up the items. As she did so, Waddell pulled out the gun, pointed it at Mollenhoff, and demanded money. When she was unable to open the register, Wad-dell shot Mollenhoff in the face, killing her. Meanwhile, another Minni Market customer had hidden herself in the restroom and contacted the Saint Paul Police Department with a cellular phone to report the shooting. The first police officers on the scene obtained a description of the suspects from that customer. A surveillance video of the store was also available to the officers.

Immediately prior to the shooting, Steven Mudek had driven through the parking lot of the Minni-Market en route to his mother’s home. He saw two or three black males sitting outside next to a station wagon. When Mudek left his mother’s home a few minutes later, he saw the police at the Minni-Market. He then stopped and told police about the men he had seen and described their vehicle as a dark 1985-1989 General Motors J-model station wagon.

Police dispatches from the evening of December 7 informed officers that there was a shooting at the Minni-Market, and that two suspects were involved. One suspect was described as approximately 6 feet tall, 200 pounds, wearing a black ski mask and a black sweatshirt. The other was described as thin, wearing low-cut baggy corduroys. Later dispatched updates included a description of the vehicle: a dark blue or black station wagon — possibly a Chevrolet Celebrity — with three black males inside. The suspect descriptions were also updated. Police were now told that the suspects were two black males, armed and dangerous, both in their 20s, and that the smaller one was 5 feet, 2 inches tall, with a “scraggly beard.”

Two-and-one-half hours after the shooting, approximately 6-8 miles from the Minni-Market, Officer David Strecker was on patrol in the Frogtown area of Saint Paul when he saw a “darker colored real dirty station wagon similar to a Chevy Celebrity.” The vehicle contained four black males in their 20s. Strecker, after discussion with his partner, believed it to be the vehicle involved in the Minni-Mar-ket shooting, activated his lights and stopped the vehicle. The vehicle stopped was a 1987 Pontiac 6000 station wagon, which has a body type similar to a Chevrolet Celebrity. News of the stop was broadcasted immediately, and other squad cars arrived at the scene. Officers approached the vehicle with guns drawn, but at their side. Waddell, who was sitting in the passenger seat, and the other three occupants were removed from the vehicle, frisked for weapons, and placed in separate squad cars. No weapons were found on any of the occupants.

While the occupants were being frisked by police officers, Officer Tracy Henry searched the vehicle for weapons. Reaching between the passenger seat and the center console, she felt a hard object with something soft covering it. The hard object turned out to be the seat rails, covered with a black neoprene ski mask. The officer removed the ski mask and left it on the passenger seat.

While the vehicle search was taking place, Officer Peter Semenkewitz telephoned Sergeant Richard Munoz, a homicide investigator working on the case, and gave him a description of the vehicle occupants. Semenkewitz also described the ski mask, and Munoz, who had seen the surveillance video of the robbery, realized that the description matched the exact type of ski mask worn by the suspects. In the meantime, other officers at the scene had decided to release the occupants of the vehicle, including Waddell. Waddell returned to the stopped vehicle and again sat in the passenger seat.

Sergeant Munoz then instructed Officer Semenkewitz to remove Waddell and locate the ski mask. When Waddell exited the vehicle, the ski mask was no longer on the passenger seat. Waddell was searched again, but the ski mask was not located on him. The mask was finally found in the center console, hidden under some papers. Via telephone, Munoz told Semenkewitz that all the occupants should be brought to the police station. A large hooded sweatshirt, matching the description of the clothing worn by the larger suspect, was found in the vehicle.

Waddell was brought to the police station late on Thursday, December 7, 2000, where he was held until brought to court for his first appearance on Tuesday, December 12, 2000. He was interviewed four times prior to being formally charged. The first interview occurred a few hours after the arrest. Waddell was given Miranda warnings, and he agreed to speak with the officers. During the interview, Waddell stated he was at his sister’s home at the time of the shooting. He denied owning the sweatshirt or the ski mask.

Prior to Waddell’s second interview, during which he continued to deny involvement in the crime, the state applied to the district court for an extension of time in which to present Waddell in court for his first appearance. The state claimed that such an extension was necessary to reformat a surveillance videotape, take physical measurements at the scene, further analyze physical evidence at the scene, obtain and execute search warrants, and interview witnesses without interference. On Friday, December 8, 2000, the court granted the extension until “no later than 1:30 p.m., Tuesday, December 12, 2000.”

A third interview occurred during the evening of Sunday, December 10. Prior to this interview, a search warrant had been executed at the apartment of Anthony Williams, Waddell’s companion at the Min-ni-Market. The search recovered the gun believed to have been used in the robbery, ammunition, and other evidence. When interviewed, Waddell continued to deny involvement in the crime and ownership of both the sweatshirt and the ski mask. Waddell was then returned to jail, which also housed Williams.

On December 11 at 1:30 p.m., Waddell initiated a fourth interview with police. During the interview, Waddell admitted to the crime and detailed his involvement. Subsequently, Waddell was charged with murder in the first degree.

At the district court level, Waddell challenged the stop and subsequent search of the vehicle. Specifically, Waddell argued that the police did not have reasonable articulable suspicion to stop the vehicle in which he was a passenger, and that the evidence obtained on December 7 and all statements made by Waddell should be suppressed. The district court found that, based on the totality of the circumstances, the officers had reasonable and articulable suspicion of criminal activity sufficient to justify the stop and denied the motion to suppress. Waddell also moved to suppress his confession on the basis that the state violated the prompt appearance rule, Minn. R.Crim. P. 4.02, subd. 5(1). The district court denied that motion as well. After a jury trial, Waddell was found guilty and was convicted of first-degree murder.

I.

On appeal, Waddell raises three issues. Waddell asserts that the police did not have reasonable articulable suspicion to stop the vehicle in which he was a passenger. Specifically, Waddell contends that the descriptions of the vehicle and its occupants that the arresting officers received over the dispatch were far too general to warrant even an investigatory stop of the Pontiac 6000. On that basis, Waddell further asserts that all evidence seized from the vehicle should have been suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 484, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The trial court’s determination of reasonable suspicion as it relates to limited investigatory stops conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is reviewed de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn.1999). Because the facts of this case are not in dispute, appellate review simply requires that we “analyze the testimony of the officers and determine whether, as a matter of law, his observations provided an adequate basis for the stop.” Berge v. Comm. of Public Safety, 374 N.W.2d 730, 732 (Minn.1985).

Both the United States and Minnesota Constitutions prohibit unreasonable searches and seizures by the government of “persons, houses, papers and effects.” U.S. Const, amend. IV; Minn. Const, art. I, § 10. Those searches conducted outside the judicial process are per se unreasonable, save for a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In contrast, however, brief investigatory stops are permissible if the officer can be said to have had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A brief investigatory stop requires only reasonable suspicion of criminal activity, a lesser quantum of proof than probable cause. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Munson, 594 N.W.2d at 136. Our court applied the principles of a Terry stop to automobiles in State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975).

Reasonable, articulable suspicion requires a showing that the stop was “not the product of mere whim, caprice, or idle curiosity.” State v. Pike, 551 N.W.2d 919, 921 (Minn.1996). Here, police officers received dispatch information that contained the following facts:

-The body type of the car [a station wagon, possibly a Chevrolet Celebrity] -The color of the station wagon [dark blue or black]
-The number, gender, race, and age of the occupants [three black males in their mid-20s]
-The significant height discrepancy between the two suspects who entered the Minni-Market.

The vehicle stopped was gray in color and encrusted with winter road salt. It contained four black males who appeared to be the approximate age of the suspects. There was a significant discrepancy in size between Waddell and another occupant, but the state concedes that this height disparity was not evident until the occupants were removed from the vehicle.

At the Rasmussen hearing, one officer testified that, in his experience, it was unusual to see a group of young people in a station wagon, and this, combined with the information contained in the dispatches, made him suspicious. Officers also testified that they had not stopped any other station wagons that evening, although they later testified that at trial that they had seen other vehicles of that body type. Testimony at the hearing also established that the Pontiac 6000 station wagon was similar in body style to that of a Chevrolet Celebrity. Dispatches indicated that the vehicle was dark blue or black, when in fact the vehicle was gray. However, pictures submitted at the Rasmussen hearing made clear that the vehicle’s silver-gray color was considerably obscured by road salt.

Given that considerable discretion will be given to an officer’s decision to conduct an investigatory stop, the decision to stop a vehicle very similar in body style but slightly lighter in color cannot be considered mere caprice or whim. See State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001). Further, the vehicle’s occupants matched the suspect descriptions in all respects — age, gender, race. To be sure, there were four occupants of the vehicle rather than three, but, as it was not inconceivable that the original occupants could have picked up an additional passenger in the hours following the crime, the officers did not behave unreasonably in choosing to stop the vehicle. Therefore, we hold that the police officers had reasonable, articula-ble suspicion that the occupants of the vehicle had been involved in the Minni-Market robbery, and lawfully stopped the vehicle.

II.

We then turn to the issue of whether the subsequent search of the vehicle was proper. A protective search of the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses a reasonable belief, based on specific and articulable facts, that the suspect is dangerous and may gain immediate control of a weapon. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). See also State v. Gilchrist, 299 N.W.2d 913, 916 (Minn.1980) (holding that search of area under front passenger seat of a validly stopped vehicle was justified for officer safety). If, while conducting a legitimate protective search of the interior of the vehicle the officer discovers other evidence of a crime, the Fourth Amendment does not require its suppression. Long, 463 U.S. at 1050, 103 S.Ct. 3469.

On the facts before us, we conclude that the protective search of the vehicle and the seizure of the ski mask were justified. When the officers made the stop, they knew that one of the Minni-Market robbers had shot the cashier, and they had an objectively reasonable basis for believing that the occupants of the vehicle were armed or had immediate access to a weapon. Officer Henry conducted an appropriately limited search of the vehicle’s interi- or. When during the search the officer felt a hard object between the seat and center console, it was reasonable for her to remove its soft covering in order to determine whether the object was a weapon. Although it was not immediately apparent to Officer Henry that the ski mask was evidence in the robbery, that became apparent once the officers learned that the ski mask matched the description of the one used in the robbery. Accordingly, we hold that the district court did not err in admitting the ski mask into evidence at trial.

III.

Waddell contends that he was held in violation of the prompt appearance rule, Minn. R.Crim. P. 4.02, subd. 5(1), which- provides that an arrestee shall be brought before a judge or judicial officer “without unnecessary delay, and in any event, not more than 36 hours after the arrest.” The 36-hour time period is calculated exclusive of the day of arrest, Sundays, and legal holidays. In “exceptional cases,” the state may seek relief from Rule 4.02 pursuant to Minn. R.Crim. P. 34.02. See Minn. R.Crim. P. 4.02 subd. 5(1) comment.

The prompt appearance requirement has long existed in statutes and court rules. See, e.g., Minn.Stat. § 629.14 (2000) (requiring that arrested person be taken before a judge “with all practicable speed”). In 1943, the United States Supreme Court first explained the importance of such rules:

For this procedural requirement checks resort to those reprehensible practices known as the “third degree” which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement.

McNabb v. United States, 318 U.S. 332, 344, 63 S.Ct. 608, 87 L.Ed. 819 (1943); see also Mallory v. United States, 354 U.S. 449, 455, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (holding delay in arraignment “must not be of a nature to give opportunity for the extraction of a confession”). In both McNabb and Mallory, the Court applied the exclusionary rule in suppressing confessions obtained in violation of the federal rule requiring that defendants be promptly taken before a judicial officer. McNabb, 318 U.S. at 341-42, 63 S.Ct. 608; Mallory, 354 U.S. at 455-56, 77 S.Ct. 1356; see also Fed.R.Crim.P. 5(a) (requiring a person arrested without a warrant to be brought before a magistrate “without unnecessary delay”). While the Court was concerned that the lengthy detention before being brought to court could result in a coerced confession, it nonetheless held that exclusion of such statements from evidence was not constitutionally required. McNabb, 318 U.S. at 340, 63 S.Ct. 608. Thus, the state courts were not bound by the McNabb/Mallory exclusionary rule. Gallegos v. Nebraska, 342 U.S. 55, 63-64, 72 S.Ct. 141, 96 L.Ed. 86 (1951).

Our court has also recognized the importance of a prompt appearance rule. In State v. Wiberg, 296 N.W.2d 388, 392 (Minn.1980), we noted that the rationale of such a rule is to:

[Ajvoid the coercive nature of custodial surroundings by preventing secret interrogation and the resultant pressure to confess. In addition, prompt arraignment insures that an arrested person will be fully advised of his rights by a judicial officer soon after his arrest.

We also note that arraignment is typically the point at which financial eligibility for an appointed attorney is determined and counsel is appointed. Minn. R.Crim. P. 13.02 (providing for appointment of counsel at arraignment), 5.01(b) (requiring judge to advise defendant at arraignment of right to counsel at all subsequent proceedings, including police line-ups and interrogations), 5.02(1-2) (notifying defendant of right to counsel and appointing public defender if necessary). Thus, the prompt appearance rule also serves the purpose of ensuring that a defendant receives counsel at the important post-arrest stages of a criminal prosecution.

While the importance of a prompt appearance rule has been recognized by the court, we do not automatically exclude confessions made after violation of the rule. Wiberg, 296 N.W.2d at 393. Rather, the courts evaluate whether and to what extent a delay in bringing the defendant before a judicial officer was prejudicial. See, e.g., Meyer v. State, 316 N.W.2d 545, 546-47 (Minn.1982); State v. Nelson, 285 Minn. 304, 310, 173 N.W.2d 349, 353 (1969). Nonetheless, as we stated in Wiberg, our decision not to automatically exclude such statements should in no way be considered approval of the practice, and delay in arraignment should “weigh heavily” in any decision whether to suppress evidence. 296 N.W.2d at 393.

In deciding whether evidence should be suppressed, we apply the nonexclusive factors developed in Wiberg, including: 1) the reliability of the evidence; 2) whether the delay was intentional; 3) whether the delay compounded the effects of other police misconduct; and 4) the length of the delay. 296 N.W.2d at 393.

With the important interests reflected in the prompt appearance rule and the Wi-berg factors in mind, we turn to the facts of this case. It is undisputed that Waddell was held for approximately 86 hours prior to confessing, and 109 hours before being presented to a judge or judicial officer. Prior to the expiration of the 36-hour period, the state sought and obtained an extension of the time for Waddell’s first appearance by asserting that additional time was necessary to reformat a surveillance videotape, take physical measurements at the scene, further analyze physical evidence at the scene, obtain and execute search warrants, and interview witnesses without interference. At the same time, less than 24 hours after the arrest and well within the 36-hour period, the state went before a judge with sufficient information to obtain a judicial determination of probable cause to detain.

We conclude that the state has provided insufficient reasons as to why Waddell could not have been presented within 36 hours following his arrest. Reformatting the convenience store videotape and taking measurements at the crime scene were not necessary to charging Waddell. The need to analyze physical evidence such as fingerprints, was similarly not necessary to charge Waddell. The state also claimed that it needed to execute search warrants and conduct witness interviews without interference. However, one other suspect was in custody, there were eyewitnesses who would be able to place the car and perhaps Waddell at the crime scene, and there was no indication that witnesses would be threatened or the execution of search warrants hampered in some fashion after arraignment. Particularly in light of the fact that probable cause to detain Waddell was established on the facts known by Friday, December 8, we must conclude that the reasons given to the district court in support of the extension of time were insufficient. Therefore, the failure to bring Waddell before the court within 36 hours violated Rule 4.02, subd. 5.

Although separate from our analysis above, we are troubled by the fact that even though the state obtained an extension, Waddell was not brought before a judge or judicial officer after obtaining his confession on Monday, December 11. Wi-berg makes clear that “although the time factor is a key element in whether a delay is unnecessary, it is also important for a court to consider how the time was used.” 296 N.W.2d at 392. Here, the burden remained upon the state to bring Waddell before a judge or judicial officer as soon as possible, regardless of the extension obtained.

We turn now to whether Wad-dell’s confession, obtained well after 36 hours, should have been suppressed. In making this determination, we apply the Wiberg factors, keeping in mind the purposes of the prompt appearance rule. Here, as in Wiberg, Waddell was given a full Miranda warning and waived his right to remain silent before making his statement. Indeed, Waddell initiated the fourth interview with police, which was recorded and during which he confessed. The voluntary nature of the interrogation suggests the statement is reliable, meeting the first Wiberg factor.

The second Wiberg factor is whether the delay was intentional. 296 N.W.2d at 393. While the state consciously chose not to bring Waddell for arraignment within 36 hours, the state cannot be considered to have flouted the prompt appearance rule where the matter of the extension for arraignment was presented to the court. Thus, the delay was not intentional in the sense meant by the second Wiberg factor. Third, given our holding that the stop of the vehicle was not illegal, the delay did not compound any previous police misconduct. Therefore, the third Wiberg factor is not met.

With respect to the fourth Wiberg factor, the length of the delay is indeed troubling. Waddell was held a full 50 hours past the outer limits of the time in which he should have been presented to a judge or judicial officer for arraignment. Nonetheless, we are cognizant of the fact that Waddell was repeatedly advised of his rights to remain silent and to an attorney, yet initiated the interrogation at issue. Thus, on these facts, the apparent lack of a coerced confession that formed the genesis of the prompt appearance and McNabb/Mallory rules ameliorates some of our concern. We remain aware, however, that a defendant subject to extended detention without appearance before a judge or judicial officer may come to believe that the only way to get an attorney appointed or to move his case along is to confess. We therefore emphasize the importance of prompt appearance, not only to guard against coerced confessions but to ensure the prompt appointment of counsel. While the facts presented take us to the outside edges of Minn. R.Crim. P. 4.02 subd. 5(1), we cannot conclude on the record before us that the failure to promptly arraign Waddell warrants exclusion of his confession. Thus, we hold that the confession was properly admitted and Waddell’s conviction is affirmed.

Affirmed.

      . It is undisputed that Waddell did not own the vehicle in which he was stopped. The district court found that Waddell had no legitimate expectation of privacy in the area or items searched, and hence no standing to challenge the stop. On appeal, this reasoning is urged upon the court. In so arguing, the state contends that in State v. Brown, 345 N.W.2d 233 (Minn.1984), this court adopted the holding of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas, the United States Supreme Court held that an automobile passenger who failed to assert a possessory or property interest in the areas searched and the property seized could not properly challenge the search. 439 U.S. at 130-31, 149-50, 99 S.Ct. 421. Because we hold that the stop and subsequent investigatory search were proper, we need not address this issue.

        . The prompt appearance requirement should be distinguished from the separate requirement that there be a prompt determination of probable cause to hold the defendant. See Gerstein v. Pugh, 420 U.S. 103, 126, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Minn. R.Crim. P. 4.03 (requiring that probable cause determination must be made within 48 hours of arrest). Waddell does not claim error with respect to a probable cause determination, as it was made by a judge on Friday, December 8, 2000, at 3:21 p.m., well within the 48-hour requirement.

      . Several courts and commentators have questioned the continued vitality of the McNabb/Mallory rule requiring suppression of statements made after violation of the prompt appearance rule, on the basis that since McNabb and Mallory the Supreme Court has enacted other safeguards against coerced confessions, such as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See People v. Cipriano, 431 Mich. 315, 429 N.W.2d 781 (1988) (stating that concerns that troubled the McNabb court were addressed and remedied by subsequent changes in constitutional doctrines); see also Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.3 (2nd ed.1999); O’Neal v. United States, 411 F.2d 131, 136 (5th Cir. 1969). We note that in Minnesota, criminal defendants are further protected against coerced confessions by the recording requirement for custodial interrogations that we adopted in State v. Scales, 518 N.W.2d 587 (Minn. 1994).

      . In Wiberg, the defendant was arrested midweek and was confined for 35 hours prior to arraignment. Just before arraignment, she was questioned and admitted ownership of a handbag containing a stolen handgun. 296 N.W.2d at 392. In the absence of any explanation for the delay in arraignment, we concluded that the delay — a delay of less than 36 hours — was unnecessary and therefore violated Rule 4.02. 296 N.W.2d at 392.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    In re CONSERVATORSHIP OF Mary Larkin SMITH.
    No. C9-02-667.
    Court of Appeals of Minnesota.
    Jan. 21, 2003.

      Martin V. Aydelott, Denis E. Grande, Mackall, Crounse & Moore, P.L.C., Minneapolis, for appellant Mary Larkin Smith.
    Mary R. Vasaly, Kai H. Richter, Maslon, Edelman, Borman & Brand, Minneapolis, for respondent Mary Riley.
    James Crist, Steinhagen & Crist, Minneapolis, for respondent Mary McKendrick.
    ■ Considered and decided by G. BARRY ANDERSON, Presiding Judge, STONEBURNER, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

On appeal from a judgment in a conser-vatorship proceeding, appellant argues that the district court’s order appointing a conservator should be reversed, or, in the alternative, that a new trial should be granted, because the district court (1) erred by applying the Minnesota Rules of Civil Procedure and permitting pretrial discovery and (2) abused its discretion by excluding appellant’s witnesses from testifying as a sanction for untimely disclosing their identity. We affirm.

FACTS

Appellant-conservatee Mary Larkin Smith (conservatee), who was 89 years old when this action commenced, had experienced a gradual decline in cognitive abilities for approximately ten years. Diagnosed with Alzheimer’s disease, conser-vatee resided in her home with 24-hour care.

Conservatee has two adult children, Mary Elizabeth Riley (Riley) and Bill Smith (Smith). Riley and Smith have an acrimonious sibling relationship and disagree on matters regarding conservatee. In her health-care directive prepared in November 1999, conservatee nominated her treating physician, Dr. David B. Plimpton, to be her -health-care agent because naming one of her children was “not a workable option.”

Since 1999, Smith has been actively involved in overseeing conservatee’s health and living arrangements. With respect to conservatee’s health, he maintained that she possessed “full mental capacity.” From January through April 2000, Smith repeatedly prevented conservatee from attending appointments with a neurologist to evaluate her deteriorating cognitive status. When conservatee was hospitalized in July 2000, Smith had her discharged against medical advice. After advising conserva-tee’s doctors that he wanted to discontinue all of her medication, Smith refused to give conservatee medication in direct contravention of her prescribed medical regimen. He opposed 24-hour care for conservatee at her home and prevented family members from participating with conservatee in making medical decisions.

At the same time, Smith became actively involved in conservatee’s financial affairs. He hired an attorney in April 2000 to make changes to conservatee’s will, trust agreement, and health-care directive. As a result, Smith obtained power of attorney over conservatee’s affairs. After firing Dr. Plimpton, Smith also became conservatee’s health-care agent and conservator, should the need ever arise.

Concerned about conservatee’s health and the state of her assets, Riley filed a petition for the appointment of an independent, non-family conservator on January 19, 2001. The parties agreed on a schedule, which the district court incorporated in its scheduling order, directing the discovery process and setting a deadline for witness disclosure. Riley served conserva-tee with interrogatories and a request to identify conservatee’s witnesses. Conser-vatee objected to the discovery process by filing a number of motions with the district court. Conservatee specifically argued that, because she was not a defendant in a lawsuit, the' civil discovery rules were inapplicable to her. The district court rejected conservatee’s argument, and, on December 13, 2001, issued an order compelling discovery. Well after the original court-ordered deadline and two weeks before the hearing, conservatee served responses to the written discovery requests and identified eight witnesses for the hearing.

On the third day of the hearing, conser-vatee filed her formal witness list. The list included three witnesses not previously disclosed by conservatee during discovery. Conservatee stated that, because the period between the district court’s discovery order and the discovery deadline was so short, she inadvertently omitted the three witnesses from the list. The newly identified witnesses were both conservatee’s former and current estate attorneys and her corporate trustee, who were expected to testify regarding conservatee’s mental capacity at the time she executed amendments to her will and trust agreements in April 2000. Riley objected to the testimony of the previously undisclosed witnesses. The district court sustained the objection and allowed conservatee to call only those eight witnesses who were identified in her discovery responses. Consequently, testimony from conservatee’s estate attorneys and corporate trustee was not permitted.

Following the four-day hearing, the district court concluded that conservatee was incapacitated and in need of a conservator under Minn.Stat. § 525.54 (2000). After making extensive factual findings, the district court determined that it would not be in conservatee’s best interests for Smith to serve as her conservator because his fiscal irresponsibility exposed conservatee’s estate to possible mismanagement and because he failed to show a commitment to conservatee’s welfare. Accordingly, the district court granted Riley’s petition and appointed an independent, non-family conservator of conservatee’s person and estate.

On March 14, 2002, conservatee filed a motion to dismiss Riley’s petition, or, in the alternative, for a new trial, arguing that the exclusion of conservatee’s witnesses at trial was erroneous and prejudicial. The district court denied the motion. This appeal followed.

ISSUES

I. Are conservatorship proceedings under Minn.Stat. §§ 525.539-.6199 (2000) governed by the Minnesota Rules of Civil Procedure?

II. Did the district court abuse its discretion by excluding conservatee’s witnesses from testifying when (a) the identity of the witnesses was not revealed by the conservatee until the third day of trial, in violation of the district court’s order compelling disclosure and of the applicable rules of civil procedure and (b) when the excluded testimony was irrelevant?

ANALYSIS

I.

The district court’s conclusions of law, including the interpretation of statutes and rules, are reviewed de novo. Minnesotans for Responsible Recreation v. Dep’t of Natural Res., 651 N.W.2d 533, 538 (Minn.App.2002). Conservatee challenges the district court’s application of the Minnesota Rules of Civil Procedure to this conservatorship proceeding. Conser-vatee argues that the rules of civil procedure do not apply to a conservatorship because they govern suits of a civil nature, not conservatorship proceedings, which are nonadversarial. To prevail, conservatee’s argument requires us to determine at the outset whether a conservatorship proceeding is a civil action.

Rule 2 establishes that there is one form of action known as a “civil action.” Minn. R. Civ. P. 2. A civil action “includes every proceeding before a competent court in the due course of proper administration of justice that is to result in any determination.” Leek v. Am. Express Prop. Cas., 591 N.W.2d 507, 510 (Minn. App.1999) (citation omitted), review denied (Minn. July 7, 1999). Contrary to conser-vatee’s argument, the definition of a civil action does not exclude proceedings that are hot adversarial. A conservatorship proceeding is a proceeding under chapter 525, seeking a determination by the district court of the capacity of the proposed conservatee to care for himself or herself. See Minn.Stat. §§ 525.539, subds. 3, 5, .54, subds. 1-3 (2000). Thus, applying the definition articulated in Leek, a conservator-ship proceeding is a civil action.

The Minnesota Rules of Civil Procedure

govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.

Minn. R. Civ. P. 1. Rule 81.01 identifies, through Appendix A, a nonexclusive list of statutory actions to which the rules are not applicable. See Peterson v. Peterson, 308 Minn. 297, 304 n. 3, 242 N.W.2d 88, 93 n. 3 (1976) (stating Appepdix A is “of course, not exclusive”). Conservatorship proceedings are not listed in Appendix A as one of the proceedings not governed by the rules of civil procedure.

Conservatorship proceedings are governed by the probate-practice provisions of chapters 524 and 525 of Minnesota Statutes. By statute, absent an inconsistency with the provisions of these chapters, probate proceedings are “governed insofar as practicable by the rules of civil procedure.” Minn.Stat. § 524.1-304 (2000).

A statute governing a civil proceeding that provides that the proceeding shall be conducted in the same manner as in a civil action or uses other language of similar import adopts the rules of civil procedure by reference, unless there is a specific provision in the statute itself that is inconsistent with the rules. Nationwide Corp. v. N.W. Nat’l Life Ins. Co., 251 Minn. 255, 266, 87 N.W.2d 671, 680 (1958) (citing In re Estate of Iofredo, 241 Minn. 335, 63 N.W.2d 19 (1954)). Such is the case with Minn.Stat. §§ 524.1-304, the statute governing conservatorship proceedings. Section 525.551, subdivisions 1-7 (2000), outlines the rules for a conserva-torship hearing, such as attendance, notice, and the conservatee’s right to summon and cross-examine witnesses. But it is silent as to pretrial discovery. Neither this provision nor any other in chapters 524 and 525 involved here specifically excludes any part of the conservatorship process from the rules of civil procedure. Similarly, the statutory probate provisions relevant to this action, including those relating to con-servatorships, are not inconsistent with civil discovery rules. A conservatorship proceeding, which is an action of a civil nature, therefore, is governed by the Minnesota Rules of Civil Procedure.

Conservatee relies on the Minnesota Supreme Court’s decision in In re Prokosch’s Guardianship, 128 Minn. 324, 151 N.W. 130 (1915), to argue that the nonadver-sarial nature of conservatorship proceedings exempts them from the rules of civil procedure. The supreme court observed in Prokosch that the appointment of a guardian for an allegedly incompetent person, arising from the state’s “character of parens patriae,” was a special proceeding authorized by statute that was not adversarial in nature. Id. at 327,151 N.W. at 132 (emphasis original). Based on this observation, conservatee contends that, because the conservatorship proceeding is not an adversarial proceeding, she had no obligation to follow the rules of discovery found in rules 26-37 of the Minnesota Rules of Civil Procedure. But Prokosch does not support conservatee’s claimed immunity from discovery.

As an initial matter, the guardianship action in Prokosch took place in 1915, well before the adoption of the Minnesota Rules of Civil Procedure in 1952. The holding in Prokosch, therefore, cannot stand for the proposition that the current rules of civil procedure do not apply to conservatorship proceedings. See Shelly Oil Co. v. Comm’n of Taxation, 269 Minn. 351, 371, 131 N.W.2d 632, 645 (1964) (stating “‘[a]lways the language used in an opinion must be read in the light of the issues presented’ ”) (quoting Sinclair v. United States, 279 U.S. 749, 767, 49 S.Ct. 471, 477, 73 L.Ed. 938 (1929)). Second, and most importantly, the Prokosch court did not exclude guardianship proceedings from the existing rules of procedure. Id. at 328, 151 N.W. at 132. On the contrary, the court specifically stated that the manner and method of determining the facts in a guardianship proceeding should rest in the sound judgment and discretion of the court, “controlled of course by the general rules of judicial procedure.” Id. (emphasis added). Consistent with its pronouncement, the supreme court held that cross-examination of an allegedly incompetent party was necessary for the determination of the main issue in the case — the mental condition and capacity of Mrs. Pro-kosch to manage her affairs. Id. at 327-28, 151 N.W. at 132. The general rules of judicial procedure referred to in Prokosh were the predecessors to the Minnesota Rules of Civil Procedure. See supra notes 2 & 3. Prokosch’s acknowledgement of the nonadversarial nature of guardianship proceedings does not exempt them from governance by procedural rules designed to ensure the orderly resolution of issues before the court. Prokosch, 128 Minn. at 327-28, 151 N.W. at 132; In re Strom’s Guardianship, 205 Minn. 399, 402-03, 286 N.W. 245, 247 (1939).

In this case, an inquiry into the state of conservatee’s health, her cognitive ability, and Smith’s management of her affairs was crucial to the district court’s determination of whether continued appointment of Smith as conservator was in the best interests of conservatee. See Minn.Stat. § 525.61, subd. 3 (2000) (when considering removal of conservator, district court must determine whether continued appointment of conservator is in best interests of con-servatee). By filing her petition to remove Smith and appoint an independent conservator, Riley had the burden of proving, by clear and convincing evidence, the facts alleged in the petition. Minn.Stat. § 525.551, subd. 3 (2000). Adherence to the rules of civil procedure enables all parties to conduct discovery, thereby allowing for an orderly, expeditious, and effective means of developing the record for the district court’s determination of the best interests of conservatee.

In reaching our holding that con-servatorship proceedings are governed by the Minnesota Rules of Civil Procedure, we reiterate the Prokosch court’s sensitivity to the potential for abuse in conserva-torship and guardianship actions. The primary purpose of conservatorship proceedings is not to resolve a controversy between parties but to protect “that class of citizens who are incapable of fully protecting themselves.” Prokosch, 128 Minn, at 327, 151 N.W. at 132. As in this case, district courts must examine the private affairs of proposed conservatees and their families. Because conservatorship proceedings may be extremely intrusive for the proposed conservatee and against his or her wishes, the district court’s exercise of its sound judgment and broad discretion is warranted in appropriately monitoring the discovery process on a case-by-case basis to safeguard against the proposed conservatee becoming the victim of endless litigation, an overwhelming discovery process, and bitter family feuds.

II.

We next review the district court’s decision to exclude three of conser-vatee’s witnesses because she failed to disclose their identities before commencement of the hearing. Generally, the district court has the duty to supervise and control trials conducted before it. Jensen v. Dikel, 244 Minn. 71, 80, 69 N.W.2d 108, 115 (1955); cf. In re Strom, 286 N.W. at 247 (“We are and should be guided by the fact that much must be left, especially in [guardianship proceedings], to the sound judgment and discretion of the trial court. It has the advantage, not possessed here, of being confronted with the witnesses, the alleged incompetent person, and the circumstances surrounding the entire proceedings.”). The question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). We view the record in the light most favorable to the district court’s ruling. Kielsa v. St. John’s Lutheran Hosp. Ass’n, 287 Minn. 187, 192, 177 N.W.2d 420, 423 (1970). The burden of showing that the district court abused its discretion lies with con-servatee. Id. at 193, 177 N.W.2d at 424. A party is not entitled to a new trial unless an erroneous evidentiary ruling resulted in prejudicial error. Kroning, 567 N.W.2d at 46. Thus, our analysis turns on whether the district court’s exclusion of testimony about conservatee’s mental state when she signed various estate documents resulted in prejudicial error.

In this conservatorship proceeding, the issue before the district court was whether Smith’s continued appointment as conservator was in the best interests of conservatee. Minn.Stat. § 525.61, subd. 3. Conservatee’s proposed three witnesses, both conservatee’s former and current estate attorneys and her corporate trustee, were expected to testify regarding conser-vatee’s competence and demeanor when she executed the estate documents. But whether conservatee was competent to sign these documents in April 2000 was not the issue before the district court. Rather, the issue was whether removal of Smith as conservator in 2001 was in con-servatee’s best interests. The proposed testimony was not probative of the controverted issue; thus, it was irrelevant and inadmissible. See Minn. R. Evid. 401 (defining ‘relevant evidence’ as tending to make existence of a fact of consequence to the determination more or less probable), 402 (evidence that is not relevant is not admissible). The district court did not err.

During the course of the four-day hearing, the district court received testimony from 16 witnesses and numerous exhibits. Based on this evidence, the district court made extensive findings with respect to Smith’s management of conservatee’s health and assets. These findings clearly demonstrate that Smith failed to act in conservatee’s best interests when he fired her physician, cancelled numerous appointments to evaluate her health and cognitive condition, refused to dispense her medication, fired most of her caregivers and hired new ones, and restricted conserva-tee’s interaction with her family. The testimony of conservatee’s estate counsel and corporate trustee as proffered was not relevant to the determination of whether Smith was managing conservatee’s health and assets in her best interests.

Exclusion of witnesses arguably is a harsh penalty for conservatee’s failure to adhere to the stipulated discovery process, the district court’s scheduling order, and its subsequent order compelling discovery and witness disclosure. There may have been other available sanctions, such as a continuance to permit preparation for the previously undisclosed witnesses. But the availability of other sanctions does not render the exclusion of testimony an abuse of discretion. We conclude that the district court did not abuse its discretion in excluding the three witnesses. Absent an abuse of discretion, we will not substitute our judgment for that of the district court. Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn.1979). And in light of the proffered testimony of the witnesses, no error or prejudice resulted from their exclusion.

DECISION

The district court did not err in applying the discovery rules of the Minnesota Rules of Civil Procedure to the conservatorship proceeding. The conservatorship statute, MinmStat. §§ 525.539-.6199 (2000), does not establish a discovery procedure; therefore, application of the Minnesota Rules of Civil Procedure was not inconsistent with the conservatorship statutory provisions. The district court did not abuse its discretion by excluding conservatee’s witnesses.

Affirmed.

      . For our analysis, conservatorship and guardianship proceedings are not distinguishable. Under the statutory scheme, the powers and duties of the guardian and conservator establish the difference between guardianship and conservatorship. See 6 Steven J. Kirsch, Minnesota Practice § 37.6 (1990). A guardian is granted all of the powers enumerated in Minn.Stat. § 525.56, subds. 3, 4 (including establishing a place of abode, providing for care, comfort, and maintenance needs, and making medical decisions). Minn.Stat. § 525.551, subd. 5 (2002). A conservator is granted fewer than all of the powers enumerated in section 525.56, subdivisions 3, 4. Id. The legal status of the incapacitated person also differs based on the nature of the appointment. “Appointment of a guardian is evidence of the incompetency of the incapacitated person. Appointment of a conservator is not evidence of incompetency.” Minn.Stat. § 525.54, subd. 5 (2002).

      . Beginning in 1858, Minnesota civil proceedings were based on statutory procedures patterned upon New York's Field Code. See 1 David F. Herr & Roger S. Haydock, Minnesota Practice, Preface (2000). In 1915, rules governing civil actions, witnesses, and evidence were promulgated in chapters 77 and 92 of the General Statutes of Minnesota (1913). The adoption of the Federal Rules of Civil Procedure in 1938 initiated a civil-procedure movement among the states. The Minnesota legislature in 1947 enacted chapter 498 of the Minnesota Statutes, which authorized the Minnesota Supreme Court to create and adopt its own procedural rules. The Minnesota Rules of Civil Procedure were adopted by the Minnesota Supreme Court in 1952 and have since been amended periodically. Adoption of the rules initiated the transition from code practice to rule practice in Minnesota. See 1 Herr & Haydock, supra, Preface (2000).

      . At that time, separate probate courts with powers similar to those of the district courts, with respect to witness examination, court decorum, issuing commissions to take depositions, and making orders, had jurisdiction over the appointment of a guardian for an incompetent person. Minn. Gen.Stat. §§ 7433, 7211 (1913). Instead of separate rules of practice for probate courts, probate proceedings were governed by the general rules applicable to district courts, which were outlined in chapters 77 and 92 of the 1913 Minnesota General Statutes, which set forth the rules for civil actions, witnesses, and evidence.


author: STONEBURNER, Judge. G. BARRY ANDERSON, Judge

text:
    CHENOWETH, et al., Petitioners, Appellants, v. CITY OF NEW BRIGHTON, Respondent.
    No. C0-02-945.
    Court of Appeals of Minnesota.
    Jan. 28, 2003.

      Eric J. Magnuson, Timothy J. Nolan, Peter Gray, Rider, Bennett, Egan & Arun-del, L.L.P., Minneapolis, for appellants.
    George C. Hoff, Kimberly B. Kozar, Hoff, Barry & Kuderer, P.A., Eden Prairie, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, G. BARRY ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

STONEBURNER, Judge.

Joseph and Vickie Chenoweth, and Creative Growth, Inc., a Minnesota corporation, d/b/a Chenoweth Floral and Greenhouses, appeal the denial of their petition for a writ of mandamus to compel the City of New Brighton to initiate condemnation proceedings to compensate them for damage to their property caused by city-facilitated private development on adjacent property. Because the city’s involvement in the development does not constitute state action for purposes of stating a claim for inverse condemnation, we affirm.

FACTS

Appellants Joseph and Vickie Chenow-eth, and Creative Growth, Inc., a Minnesota corporation, d/b/a Chenoweth Floral and Greenhouses (Chenoweths), are the owners of real property located at 563 Old Highway 8, New Brighton, Ramsey County, state of Minnesota (parcel 563). For over 25 years, Chenoweths maintained their residence and have operated a flower business, as a nonconforming use, on parcel 563, which has been zoned “industrial” since 1972. Office and retail space, showrooms, greenhouses and the Chenoweths’ residence are located on parcel 563. Construction of a large warehouse on adjacent parcel 577 has significantly damaged Che-noweths’ business and otherwise interfered with their use and enjoyment of their property.

The City of New Brighton (the city) was substantially involved in facilitating the development that has damaged Chenoweths’ use and enjoyment of parcel 563. In its quest for development of the property surrounding and including parcel 563, the city established a development plan and tax-increment financing districts that include parcels 563 and 577, and entered into a Contract for Private Development (contract) with Industrial Equities Group, Inc., (IEG), for a three-phase development of the property surrounding parcel 563. Development of parcel 577 occurred pursuant to the third phase of development and required extensive assistance from the city to facilitate development. The city acquired the land through condemnation and sold it to IEG on very favorable terms. The city paid for certain site improvements and constructed necessary public improvements without assessing IEG for these costs. The contract between the city and IEG required construction of “an office/warehouse/manufacturing facility ⅜ * ⅜ containing not less than 40,000 square feet.” Pursuant to the contract, IEG had to submit construction plans to the city for approval and the city was required to approve the plans if they conformed to the contract and “all applicable federal, state and local laws, ordinances, rules and regulations.”

Chenoweths had numerous communications with representatives of the city and IEG and objected to plans that would interfere with operation of their greenhouses. The city ultimately approved, over Chenoweths’ objections, a plan for construction of a 30-foob-high, 200-foot-long warehouse, located approximately 15 feet to the south of Chenoweths’ main greenhouse. The loading dock area of the warehouse is approximately 25 feet from Chenoweths’ residence. Chenoweths requested that the city take their property as part of the development project, but the city declined despite contemplated future expansion onto parcel 563. The proposed warehouse was constructed and Chenoweths allege that the resulting blockage of sunlight and air circulation, use of artificial lights and other changes to parcel 577 have essentially destroyed their business and substantially interfered with their use and enjoyment of parcel 563. Chenoweths petitioned for a writ of mandamus to compel the city to initiate condemnation proceedings on parcel 563. In an initial hearing to determine whether Chenoweths’ petition stated a viable claim for inverse condemnation against the city, the distinct court construed the city’s motion to dismiss as a motion for summary judgment. The district court granted summary judgment to the city and dismissed Chenoweths’ petition. The district court determined that the facts, as alleged in the petition, constituted a ‘taking,’ noting that Chenoweths had “produced considerable evidence to show that the use of their property as a wholesale flower business has been substantially harmed.” The district court concluded, however, that as a matter of law, Chenoweths had not established a “taking by the state.” Additionally, the district court concluded that, because Chenoweths failed to show they were denied all reasonable economic use of their property, they had not established a taking sufficient to support their inverse condemnation claim. This appeal followed.

ISSUES

I. Was the private development of property adjacent to Chenoweths’ property so entwined with government action as to constitute state action necessary to a claim of inverse condemnation?

II. Do Chenoweths’ allegations of damage to their property constitute damage to a protected property interest?

ANALYSIS

Whether a taking has occurred is a question of law. Alevizos v. Metropolitan Airports Comm’n, 298 Minn. 471, 484, 216 N.W.2d 651, 660-61 (1974). On review, this court need not defer to the district court in reviewing questions of law because review is de novo. Fitger Brewing Co. v. State, 416 N.W.2d 200, 205 (Minn.App.1987), review denied (Minn. Feb. 23,1988).

The Minnesota Constitution requires “[p]rivate property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured.” Minn. Const, art. I, § 13. The Takings Clause in the Minnesota Constitution ensures

that the government cannot force ‘some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’

Zeman v. City of Minneapolis, 552 N.W.2d 548, 552 (Minn.1996) (citing Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (I960)). It is undisputed that the takings clause applies only to actions by the government that result in a compensable taking. The parties agree that a threshold issue in this case is whether the involvement of the city in this development project rises to the level of state action for purposes of the takings clause.

Case law establishes, and Chenow-eths concede, that creation of the tax-increment financing districts and even more extensive interaction through funding, referrals, and regulation does not convert a private project into state action. See Brennan v. Minneapolis Soc’y for the Blind, Inc., 282 N.W.2d 515 (Minn.1979); Judd Supply Co. v. Merchants and Manufacturers Ins. Co., 448 N.W.2d 895, 899 (Minn.App.1989); State v. Wicklund, 589 N.W.2d 793, 802 (Minn.1999) (holding, in a case involving first amendment rights, that neither the presence of public financing alone nor public financing coupled with invitation to public to come onto property converts privately owned property into public property for purposes of state action). But Chenoweths assert that there is sufficient state action to support their claim for inverse condemnation because (1) the city retained sufficient direction and control over the development to make it liable for the resulting damage; (2) “but for” the city’s substantial efforts, development of parcel 577 would not have occurred; and (3) the city approved a plan that violated Minn.Stat. § 561.01 (2002), Minnesota’s private nuisance statute, despite ability to reject plans that did not conform to all applicable laws.

Chenoweths rely on three cases to support their claim that the city retained sufficient control over the project to make it liable. We conclude that, although the cases support the undisputed proposition that a municipality can be liable for a taking even though the work that causes damage to adjoining property is done on property not owned by the municipality and is performed by a private entity, the cases do not support Chenoweths’ assertion that this particular city’s involvement in this particular project rises to the level of state action.

Dickerman v. City of Duluth, 88 Minn. 288, 92 N.W. 1119 (1903), Maguire v. Village of Crosby, 178 Minn. 144, 226 N.W. 398 (1929), and Foss v. City of Montevideo, 178 Minn. 430, 227 N.W. 357 (1929) all involve the municipality’s liability for damages caused by changes to a street grade. Dickerman holds that the 1896 amendment to article 1 § 13 of the state constitution abrogated the prior rule that an action will not lie against a municipality for consequential damages to property abutting a public street caused by change of an established grade. Dickerman, 88 Minn. at 293-94, 92 N.W. at 1120-21. The court also rejected the argument that the companies that did the work required by the grade change should be liable for any damages rather than the city.

This contention is also without merit. The city altered and raised the grade, and the companies built the viaduct, in conformity with the change. They acted for the city, and under its authority. Even if they could be held liable in damages, the primary liability for the injury is upon the city, and it is immaterial to plaintiff what the relations may be between it and the parties doing or directly causing the work to be done.

Id. 88 Minn, at 294, 92 N.W. 1119. Ma-guire involved the issue of whether the village could be liable for damages caused by a change of grade where the grade change was attributable to the state, but the village approved the construction plans. In concluding that the village was liable, the court depended on language in the applicable highway act that clearly gave the village control of the plan of construction and grade of streets within the corporate limits of the village. Ma-guire, 178 Minn, at 147-149, 226 N.W. at 399-400. Foss follows the holding in Ma-guire. Foss 178 Minn. at 431, 227 N.W. at 358. State action was dearly involved in each case. Whatever persuasiveness the reasoning in these cases may have is diminished by the many later cases holding that a government’s financial and regulatory control over development does not transform a private project into state action. Nothing in Maguire or Foss can be used to support the proposition that a municipality’s approval of private development plans that meet all legal requirements transforms a private action into a state action for purposes of an inverse condemnation claim. The supreme court has acknowledged that

[i]t is conceivable * * * that state action could be found in a project having no public funding at all, and conversely, a project funded entirely by public financing may not sufficiently entangle the “power, property and prestige” of the government to create state action.

Wicklund, 589 N.W.2d at 802. In Judd, the court examined the issue of whether a development project was a public work for which the city was required to provide a bond. We held that the district court committed a fundamental error in concluding that the project was a traditional public work because of the city’s involvement. We noted that:

Private development is not. transformed into “public work” simply because it receives public financial assistance.
Minnesota Statutes chapter 469, entitled Economic Development, indicates that substantial government involvement is authorized and expected to develop private industrial and/or commercial projects. The City’s promotion of, assistance with, involvement in and supervision of the Dickenson project is contemplated and required by these statutes.
The City is not liable for any damages arising out of this project.

Judd, 448 N.W.2d at 897, 898, 899. We think that the reasoning in Judd is applicable to the case before us. There is nothing unique or unusual about the city’s involvement in this project. We are sympathetic to the plight of Chenoweths. Development can drastically change the character of adjoining property and may even give rise to a private cause of action against the developer. Transformation of a government-promoted private development into state action merely because a municipality retains the right to reject plans that do not conform to a development contract or violate applicable laws, however, is an invitation we are compelled to decline, in light of existing case law.

Chenoweths cite no authority for their assertion that state action rests on a “but for” test. Case law rejecting claims that financial assistance to private development constitutes state action for constitutional protections clearly negates any such assertion.

Finally, Chenoweths assert that because the IEG plan approved by the city violated Minnesota’s private nuisance statute, the plan violated “applicable federal, State, and local laws,” and should not have been approved under the contract. But we conclude that there was no contract violation because the nuisance statute is not an “applicable” law as contemplated by the contract. The city approved plans that met all of the city’s zoning requirements and all of the contract requirements and that did not violate any applicable laws or ordinances. Chenoweths’ argument that approval of development plans by a city makes a city potentially liable for a com-pensable taking is without support in the law.

We conclude that the city’s provision of tax-increment financing and contracting with IEG for development with financial incentives provided by the city policies did not so entwine the conduct of the private developer with the city as to give rise to state action necessary to support a claim for inverse condemnation.

The city also argues that Chenow-eths have failed to allege a compensable talcing. The parties agree that whether or not the damages suffered by Chenoweths amount to a compensable taking is properly analyzed under the test for a direct taking set out in Alevizos v. Metropolitan Airports Comm’n, 298 Minn. 471, 487, 216 N.W.2d 651, 662 (1974).

In this two-part test, the owner must be able to show a direct and substantial invasion of his property rights of

such a magnitude he is deprived of the practical enjoyment of the property and that such invasion results in a definite and measurable diminution of the market value of the property.

Id. The parties dispute whether Chenow-eths have made such a showing. The district court concluded that Chenoweths have alleged sufficient facts that, if determined to be true, constitute a “taking” under this standard. The district court also concludes, apparently in the alternative, that because Chenoweths have not shown that the property has not been denied all reasonable economic use, they have not established a taking, citing Orfield v. Housing and Redevelopment Authority, 305 Minn. 336, 232 N.W.2d 923, 927 (1975). Orfield involved the standard used for a regulatory taking, and is not relevant to this case. The parties agree that cases involving a regulatory taking have no application to this case. The district court was correct in applying the Alevizos test and erred by applying the test for regulatory taking.

The city, however, argues that Chenow-eths have failed to establish that they have been deprived of a recognized property interest, even under the Alevizos test, and assert that Chenoweths misinterpret and broaden the holding of Alevizos beyond the clear intent of that holding. The city argues that Chenoweths’ claim amounts to a claim for blocking sunlight and air circulation, which, in Minnesota, have never been found to be protected property rights. Haeussler v. Braun, 314 N.W.2d 4 (Minn.1981).

Because we have concluded that there is no state action to support Chenoweths’ petition for a writ to compel the city to condemn their property, we decline to reach the issue of whether or not they have sufficiently stated damage to a protected property right sufficient to support an inverse condemnation claim under the Alevizos principles.

Finally, Chenoweths argue that equity demands inverse condemnation in this case. Because the facts do not support the assertion that there is sufficient state action to invoke the doctrine of eminent domain, equity cannot compel such an invocation.

DECISION

Establishment of a development plan and tax-increment financing districts, contracting with a developer for specific improvements on land to be developed, and approving construction plans in accordance with the contract and applicable law, does not constitute state action sufficient to support a petition for mandamus compelling condemnation for damage caused by the development to adjoining property.

Affirmed.

G. BARRY ANDERSON, Judge

(concurring specially).

I concur in the result reached in this case, largely on the basis of Brennan v. Minneapolis Soc’y for the Blind, Inc., 282 N.W.2d 515, 524-25 (Minn.1979) and State v. Wicklund, 576 N.W.2d 758, 757 (Minn. App.1998), aff'd, 589 N.W.2d 793 (Minn. 1999). In particular, despite the mighty labor on the part of appellants’ counsel, I am not persuaded that the city here exercised the type, duration, and level of control over the development of the adjacent parcel so as to require the extraordinary remedy of inverse condemnation. Perhaps, as a matter of fundamental property rights, appellants’ position should be the law; but at the end of the day, neither Minnesota statutes, nor decisions of the Minnesota Supreme Court, given the fairly routine development agreement at issue here, permits the use of the doctrine of inverse condemnation. See Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating “[i]f there is to be a change in the statute, it must come from the legislature”) (citations omitted); see Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (asserting “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987); cf. State ex rel. Coduti v. Hauser, 219 Minn. 297, 303, 17 N.W.2d 504, 507-08 (1945) (declaring the legislature is free to “ignore logic and perpetrate injustice as long as it does not” violate constitution and that, absent ambiguity in the relevant statute, any remedy must be by amendment of the statute and not by construction) (quotation omitted).

But, of course, there is a difference between what the city is required to do and that which it is permitted to do. Appellants allege, and the city does not dispute, that they have suffered significant economic losses as a result of city-facilitated development on the adjacent parcel.

Given the unique business operated by appellants, it would not be unreasonable for the city to reconsider its position relative to eminent domain proceedings involving appellants’ parcel, particularly in light of the allegation that future city-facilitated development of appellants’ parcel may occur. But I agree, based on the present state of eminent domain law in Minnesota, that it is beyond the authority of this court to require the city to commence such proceedings.


author: GORDON W.SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Thomas Ray JACKSON, Appellant.
    No. C6-02-335.
    Court of Appeals of Minnesota.
    Jan. 28, 2003.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Roger S. Van Heel, Stearns County Attorney, Cloud, MN, (for respondent).
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Minneapolis, MN, (for appellant).
    Considered and decided by SHUMAKER, Presiding Judge, LANSING, Judge, and MINGE, Judge.
   OPINION

GORDON W.SHUMAKER, Judge.

Appellant challenges his conviction of being a felon in possession of a firearm and his 60-month prison sentence, arguing that the district court denied him his right to a fair trial because the court refused to admit hearsay evidence from two defense witnesses who stated that a third party admitted selling the gun that appellant was charged with illegally possessing. Appellant argues that the third-party admissions should have been admitted as statements against penal interest because the third party was also barred from possessing the gun. We reverse.

FACTS

Appellant Thomas Ray Jackson was ineligible to knowingly possess, transport, or receive a firearm because of a prior felony conviction of terroristic threats. Minn. St'at. § 624.713, subd. 1(b) (2000). The state prosecuted Jackson for possessing a pistol, and a jury found him guilty.

Jackson’s defense was that it was not he, but rather his companion, Joseph Miles, who possessed and sold a pistol to a bartender. After the sale, Miles told a deputy sheriff- that Jackson sold the gun. A few months later, Miles told fellow jail inmates, James Stanley, Evan Dixon, and Louis Borgen, that he had falsely accused Jackson, and in fact it was he who sold the gun.

When the case came to trial, Miles could not be found. The state introduced evidence of Miles’s accusation that Jackson sold the gun. Jackson sought to introduce Miles’s contradictory jail statement about the false accusation, but the district court sustained the state’s hearsay objection. At issue in this appeal is the propriety of the court’s preclusion of evidence of Miles’s contradictory jail statement. The salient facts from the trial testimony and related proceedings of record follow.

On February 18, 2001, Thomas Ray Jackson met Joseph Miles, an acquaintance, in a St. Cloud bar. When Miles revealed that he was down on his luck, out of work, and living at the Salvation Army, Jackson invited him to come and live at Jackson’s home for two months. Jackson also said he would get a job for Miles. Miles accepted, and the men drove to pick up Miles’s belongings.

After they arrived at Jackson’s house, Miles produced from his belongings a gun case containing a pistol. Because Jackson was a convicted felon and ineligible to possess firearms, he told Miles that the pistol could not be in the house. Miles replied that he intended to sell it anyway and asked if he could keep it in the garage. Jackson asked his wife’s opinion, and she said the pistol could not be anywhere on the premises.

Jackson told Miles that he knew of a nearby “biker bar” where the pistol might be sold. The men then left in Jackson’s car, picked up a third person, and drove to Doochie’s Bad Company Bar in St. Martin.

Once inside the bar, Jackson approached the owner, Douglas Salzl. Jackson testified that he told Salzl that his roommate, whom he introduced, had a pistol for sale, and, when Salzl said he was interested in seeing the gun, Miles went out to the car and brought the gun into the bar. Salzl’s version was that Jackson said he was a felon and could not have a gun and that it was Jackson who went outside and brought a pistol back into the bar.

Salzl inspected the pistol and inquired, “Does it fire?” Miles said that it did, and Jackson testified that he replied, “Yeah, it fires, we shot it.” Then Salzl, Miles, and Jackson went outside behind the bar so that Salzl could test-fire the pistol. Salzl fired numerous shots into a small refrigerator outside the back door of the bar. Deputy Lehmkuhl, an off-duty sheriff and friend of Salzl’s, testified that he had been drinking a few beers when he heard what sounded like fireworks, looked out the back door, saw Salzl, and went back inside the bar because there did not appear to be a problem outside. When Salzl, Miles, and Jackson returned inside the bar, Salzl offered $100 for the gun, but Jackson negotiated a price of $125. Salzl paid that price, and Jackson kept $20.

About a week after the gun sale, Jackson “bounced” a $100 check at Doochie’s bar. Later, when Salzl saw Jackson in town and attempted to approach him about the bad check, Jackson drove away so as to elude him. Jackson never paid the check.

About two weeks after the gun sale, Jackson learned that Miles was trying to sell a ring at Doochie’s bar. Hearing a description of the ring, Jackson called home and discovered that Miles had stolen his wife’s ring. Jackson called the police, and deputy sheriff Timothy Meland came to Jackson’s home to investigate. When Meland questioned Miles, he admitted that he took the ring, and Meland gave him a citation for theft. Jackson told Miles to get his belongings and leave. Meland agreed to drive Miles to the Path Recovery Center in St. Cloud.

Meland testified that during the trip to St. Cloud, Miles “mentioned that Mr. Jackson had sold a semiautomatic handgun to the bartender of Doochie’s bar.” Jackson did not object to this testimony. In later testimony, sheriffs detective Pam Jensen repeated Miles’s accusation, stating that “Joseph Miles told Deputy Meland that Jackson sold a gun to Douglas Salzl at the bar.” Jackson did not object to Jensen’s testimony.

Miles’s accusation launched an investigation into Jackson’s alleged gun sale. When a deputy asked Salzl about the sale, he said he bought a gun from someone named Joe. Later, Salzl selected Jackson’s photograph from an identification array as the person who sold the gun.

Detective Jensen confronted Jackson with Miles’s accusation. Jackson denied selling the gun and said that someone named Jason had sold it. In a later discussion with Jensen, Jackson said that Josh was involved in the sale.

At trial, Jackson explained why he gave information about Jason and Josh. Jackson stated that Josh was Josh Rode, an acquaintance, who Jackson knew to be a convicted felon. Jackson said that Rode owned the gun before Miles obtained it and he did not want to get Rode in trouble by disclosing that Rode was involved in the gun sale.

Before the trial began, the district court heard the state’s motions in limine to exclude the testimony of Stanley, Dixon, and Borgen, proposed defense witnesses. The court allowed Stanley to testify, and he stated during the trial that Josh Rode had introduced him to Miles and that Miles was in a bar on February 16, 2001, trying to sell a gun. The court sustained the state’s hearsay objection to the testimony of Dixon and Borgen, finding the hearsay evidence to be unreliable. These men and three others were in jail with Miles about two months before the trial. Dixon told an investigator that Miles related to the inmates his experience with Jackson and said he falsely told the police that Jackson was the owner of the gun. Miles stated that he was upset with Jackson because of the stolen-ring incident. Borgen told the investigator that Miles said he sold a gun and a stolen ring to a bartender and that Miles “was very cocky and was acting like he got the best of Thomas Jackson” because Jackson had been charged with selling the gun.

After the state completed its case-in-chief, Jackson renewed his request to be allowed to present the testimony of Dixon and Borgen. The state objected, and the court sustained the hearsay objection.

ISSUE

Did the district court err by excluding evidence of a third-party admission as unreliable hearsay in light of contradictory hearsay evidence admitted without objection at trial and where credibility of witnesses is a central, dispositive issue?

ANALYSIS

The state’s position at trial and on appeal is that Miles’s jail statement was inadmissible hearsay. The district court agreed. Jackson contends that the statement is admissible under a traditional hearsay exception, and the court’s preclusion of the statement violated his right to due process.

Rulings on the admissibility of evidence at trial are generally left to the district court’s discretion and will not be overturned absent an abuse of that discretion. State v. Gates, 615 N.W.2d 331, 337 (Minn.2000). Even when a criminal defendant alleges a violation of his constitutional rights because of an evidentiary ruling, this court reviews the ruling for an abuse of discretion. State v. Tovar, 605 N.W.2d 717, 722 (Minn.2000).

When an out-of-court statement made by an unavailable declarant is offered into evidence in a criminal trial to help establish an accused’s guilt, hearsay, due-process, and Confrontation Clause issues emerge. See State v. Henderson, 620 N.W.2d 688, 696-97 (Minn.2001) (noting that out-of-court statement may be admitted into evidence without violating Confrontation Clause if the statement is necessary and reliable); see also State v. Keeton, 573 N.W.2d 378, 382 (Minn.App. 1997) (stating that due process is upheld when corroborative evidence indicates that an out-of-court statement admitted as a result of waiver to hearsay objections was not “totally lacking” in reliability). Generally, constitutional protections will not preclude the admissibility of a hearsay statement that may be allowed under a firmly rooted exception to the hearsay rule. State v. King, 622 N.W.2d 800, 808 (Minn.2001).

1. First Hearsay Statemen

During the state’s case-in-chief, the jury heard twice that Joseph Miles, a person who was present when the gun was sold, identified Jackson as the seller. First, Deputy Meland testified to this hearsay accusation without objection. Then, also without objection, Detective Jensen recited double hearsay, testifying that Meland told her that Miles had told the deputy that Jackson sold a gun to Salzl.

Although we have found no definitional category or exception that would allow Miles’s hearsay accusation into evidence, there was no contested issue about this statement at trial nor is there one on appeal. We therefore begin by recognizing that hearsay admitted into evidence without, or over, objection becomes substantive evidence in a trial. See McNab v. Jeppesen, 258 Minn. 15, 18, 102 N.W.2d 709, 711-12 (1960) (stating that when otherwise inadmissible opinion evidence is admitted without objection at trial, the evidence must be given probative force because the plaintiff is limited on appeal to objections raised during trial proceedings). Early in the trial, the jury learned that not only had Miles accused Jackson of selling a gun, but also that the deputy sheriff found the accusation sufficiently credible to expend official time and effort investigating it. The first hearsay statement thus provides the context for analyzing Miles’s later contradictory assertion and for assessing the likely overall impact of this inadmissible hearsay statement.

The state downplays the significance of this first hearsay statement, arguing that it did not base its case on Miles’s accusation, but rather relied on Salzl’s testimony to prove the charge. Although the record shows that the state did emphasize Salzl’s testimony, the prosecutor did not ignore Miles’s statement. In his final argument, the prosecutor characterized Salzl as his main witness, but also called the jury’s attention to Miles by recalling that two law-enforcement officers “told you that this mysterious Joe Miles guy happened to mention a gun sale at Doochie’s Bad Company Bar* * Of course, the jury had heard not only a mention of a gun sale, but also an accusation that Jackson was the seller.

Earlier in his final argument, the prosecutor suggested to the jury.

[mjaybe you want to hear from Joe Miles, maybe you want to hear from Josh Rode, but that’s not evidence, it wasn’t presented in court. You heard their names come up, you can consider what the evidence was about those Uvo gentlemen.

(Emphasis added.)

The jury had heard more than Miles’s name come up. Part of the evidence about Miles was that he accused Jackson of selling a gun.

Despite the state’s emphasis of Salzl as its main witness, when the jury deliberated it had before it accusations by two people, only one of whom had appeared at trial and was cross-examined. Of course, we do not know what evidence persuaded the jury to find Jackson guilty. We do not know if the testimony of Salzl alone was sufficient or if the jury needed the corroborative statement by Miles to reach its verdict. When a case involves one person’s word against another’s, it seems reasonable to think that a jury will be less skeptical of an accusation if two unrelated accusers with firsthand knowledge corroborate each other in identifying the perpetrator of a crime.

The likelihood of a corroborative effect of Miles’s accusation is even more plausible when we consider that the state itself was less than fully confident in the credibility of its main witness. The prosecutor began to signal his concern in his opening statement when he described the gun sale:

Mr. Douglas Salzl of Doochie’s bar will tell you he paid $125 for it. You’ll probably hear that Doochie’s isn’t the best place. You might hear .some things about Douglas Salzl, who is also known as Doochie.

(Emphasis added.)

In his final argument, the prosecutor again mentioned the possibility of hesitation in accepting Salzl’s testimony: “Now, when you first got a look at Douglas Salzl, my thought, wow, this is the State’s witness?” The prosecutor then argued that, despite first-impression reservations about Salzl, the state’s main witness had appeared to give sincere and truthful testimony. Yet, the suggestion of Salzl’s negative image continued: “I don’t call him Mr. Salzl to try and clean him up * * and Salzl is “[mjaybe not the kind of guy any of us want to hang around regularly.” (Emphasis added.)

Despite Salzl’s negative image, the prosecutor seemed satisfied with Salzl’s trial testimony after all. However, we do not know that the jury found the state’s main witness alone to be sufficiently credible to convict Jackson. When we couple Salzl’s image with the trial evidence that Jackson’s “bounced check” arguably gave him a motive to get even with Jackson, it seems that the jury could reasonably have had reluctance to rely solely on Salzl’s testimony in finding Jackson guilty.

Credibility was the central, dispositve issue in this prosecution. With the state showing tentativeness in arguing the credibility of Salzl, and with evidence that Salzl had a motive to falsely accuse Jackson, Miles’s unequivocal accusation of Jackson as the seller of the gun became critically significant.

2. Second Hearsay Statement

Rule 804(b)(3) exception

An out-of-court statement offered to prove the truth of a matter asserted is hearsay. Minn. R. Evid. 801(c). Jackson offered Miles’s exculpatory statement to prove its truth. For that purpose, the statement was hearsay.

Subject to exceptions, hearsay evidence is inadmissible. Minn. R. Evid. 802. One exception allows the admission of a hearsay statement by an unavailable declarant if the statement would so expose the de-clarant to criminal liability that a reasonable person would not have made it unless it were true. Minn. R. Evid. 804(b)(3). Traditionally called a declaration against penal interest, the statement, if offered to exculpate the accused, is admissible only if corroborating circumstances clearly indicate the statement’s trustworthiness. State v. Higginbotham, 298 Minn. 1, 5, 212 N.W.2d 881, 883 (1973).

The attorneys and the court accepted the propositions that Miles was unavailable within the meaning of rule 804(a) and that he was a convicted felon who was likely to be sent to prison if he possessed a pistol. See Minn. R. Civ. P. 804(a) (defining “unavailability as a witness”). With these preconditions satisfied, Miles’s jail statement met the requirements of rule 804(b)(3). But because Jackson was offering the statement to exculpate himself, he had to point to corroborating circumstances that clearly indicated the trustworthiness of the statement. See Higginbotham, 298 Minn, at 5, 212 N.W.2d at 883. The district court properly assumed the duty of determining whether there had been a sufficient showing of trustworthiness to admit the statement into evidence. Minn. R. Evid. 104(a).

The state characterized the statements of Miles, Dixon, and Borgen as “jailbirds talking about jailbird talk” and argued that Dixon’s and Borgen’s stories were rehearsed: “A rehearsed story. I believe in rehearsal. I believe you can get a bunch of people together to learn their lines together; that’s hearsay.” The district court found the requisite corroborating circumstances lacking and ruled that Miles’s jail statement was inadmissible.

However, neither the state in its argument nor the court in its ruling distinguished the issue of the credibility of Dixon and Borgen from the trustworthiness of Miles’s statement. These are separate and distinct matters.

The credibility of trial witnesses is the domain of the trier of fact. Henderson, 620 N.W.2d at 705. Accordingly, if Dixon and Borgen had testified, they would have been subject to cross-examination and impeachment. Wigmore placed unflinching confidence in cross-examination, calling it “that great instrument for discovery of lies.” 4 Wigmore, Evidence § 1263 at 518 (3d ed.1940). Thus, the credibility of the reporters of Miles’s exculpatory statement was not an issue for the court to consider in determining whether there were circumstances that corroborated the trustworthiness of the statement. See United States v. Seeley, 892 F.2d 1, 3 (1st Cir.1989) (it is not necessary to make a special assessment of the credibility of an in-court witness who relates an out-of-court statement against penal interest because that is a matter for the jury).

The rule 804(b)(3) issue before the district court related to the sufficiency of circumstances themselves to corroborate the trustworthiness of Miles’s exculpatory statement. Weinstein states the test as follows.

The court should only ask for sufficient corroboration to “clearly” permit a reasonable man to believe that the statement might have been made in good faith and-that it could be true.

4 Weinstein & Berger, Weinstein’s Evidence, § 804(b)(3)[03]; see also United States v. Lopez, 111 F.2d 543, 554 (10th Cir.1987).

Among the circumstances to consider were: (1) Miles had direct personal knowledge of the gun sale; (2) Miles did not merely exculpate Jackson but inculpated himself as well; (3) the statement was volunteered and spontaneous and was not part of an investigation or interrogation; (4) the statement was made in the presence of five people; any of whom presumably could have been called to verify the statement; (5) two hearers of the statement reported basically the same content; (6) there is no evidence of threats or promises or other coercive circumstances to cause Miles to exculpate Jackson; (7) there was no suggestion that the two reporters of the statement knew or had any connection with Jackson or received or were promised any incentive to exculpate Jackson; (8) Miles had no motive to exculpate Jackson; on the contrary, he had a motive to inculpate him; and (9) although Miles made a prior contradictory statement, he gave a plausible explanation, namely, that he made the prior statement out of vindictiveness against Jackson.

These circumstances sufficiently corroborated the trustworthiness of Miles’s jail statement to allow it into evidence. It would then be up to the jury to evaluate both Miles’s credibility and the veracity of the statement. Therefore, it was error for the district court to preclude Miles’s statement under rule 804(b)(3).

3. 806 Admissibility

After the state’s case-in-chief, Jackson renewed his request to be allowed to present the testimony of Dixon and Borgen, and the district court stated:

If the issue is whether it was said or not I would permit it * * * but the issue isn’t whether it was said or not, the issue is whether what was said is reliable * * ⅜.

Despite the court’s response, Jackson persisted in urging the rule 804(b)(3) exception. Allowance under that exception would, of course, make Miles’s jail statement substantive evidence. See Minn. R. Evid. 801(c) (defining hearsay as an out-of-court statement offered to prove the truth of the matter asserted). But the court correctly indicated that the statement would be admissible for another purpose. This purpose would be impeachment, because Miles’s jail declaration would be inconsistent with his initial accusation. See State v. Carillo, 623 N.W.2d 922, 928 (Minn.App.2001) (stating that out-of-court statement offered for impeachment purposes falls outside the hearsay rule), review denied (Minn. June 19, 2001). Furthermore, Miles himself disclosed the lack of veracity of the initial accusation by indicating it was false.

The vehicle for the admission of Miles’s jail statement when Miles himself was not available is rule 806. That rule provides:

When a hearsay statement ⅜ * * has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if the declarant had testified as a witness.

Minn. R. Evid. 806.

Rule 806 is directed to the credibility of the absent hearsay declarant who, in effect, has become a witness in the trial and who has provided substantive evidence in the case. Because of the admission of the declarant’s hearsay statement, the accused has been deprived of the opportunity to cross-examine this “witness.” Rule 806 offers at least the opportunity to impeach the declarant.

The principal impeachment that would be accomplished here if the jail statement were admitted would be a showing of a prior inconsistent statement. The theory of the prior inconsistent statement as impeachment is that the witness has made two contradictory declarations and that fact raises doubt not only as to the veracity of one statement over the other, but as to the witness’s personal credibility as well. Edward W. Cleary, et al., McCormick on Evidence, § 34 at 68 (2d ed.1972). According to McCormick,

the witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore.

Id. § 251 at 603.

Jackson did not raise the rule 806 issue either at trial or on appeal, but the court itself alluded to the possibility of admissibility that would fit under that rule. We make this brief rule 806 analysis to show that even if Miles’s jail statement did not satisfy the criteria for admissibility under rule 804(b)(3), it was clearly admissible under rule 806, and, in the context of this case, where credibility was fragüe and determinative, the statement should have been allowed.

4. Harmless-Error Analysis

The state concedes that a criminal defendant must be given “a meaningful opportunity to present a complete defense.” State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984)).

If the jury likely would have reached the same vérdict had the evidence of Miles’s jail statement been admitted, any error in its exclusion was harmless. State v. Ses sions, 621 N.W.2d 751, 756 (Minn.2001). On the other hand, if

there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, then the erroneous exclusion of the evidence is prejudicial.

State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

We have already noted that credibility was the central, dispositive issue in this case. The jury had before it an accusation by Miles, as substantive evidence, that Jackson sold the gun. The jury also had before it a statement by Salzl, as substantive evidence, that Jackson sold the gun.

Had the jury known that Miles, without apparent inducement or provocation, admitted that he sold the gun and then falsely accused Jackson of doing so, the jury might have believed Miles’s confession. This possibility becomes all the more reasonable when we consider that the state intimated that Salzl, the main witness, had a less than a sterling character and when we recognize that Salzl had a motive, like Miles, to falsely accuse Jackson. The error in excluding Miles’s jail statement was prejudicial.

5. Jackson’s pro se arguments

Jackson argues in his pro se brief that the district court in various ways violated his due-process rights, that the state violated discovery rules, and that he received ineffective assistance of counsel. He also raises one issue regarding a sentencing reference, for which he has no transcript. Without a transcript, there is nothing for this court to review. See Minn. R. Civ. App. P. 110.01 (stating record on appeal includes papers filed in district court, exhibits, and transcript).

For the majority of Jackson’s listed issues, he does not “argue” the issue in the “argument” portion of his brief, nor does he provide legal analysis or support. An issue that is not addressed in the “argument portion” of a brief is deemed waived on appeal. In re Application of Olson for Payment of Services, 648 N.W.2d 226, 227 (Minn.2002). See also Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987). Notwithstanding that the majority of his listed issues are not properly argued, we address Jackson’s pro se arguments relating to due process and discovery that appear to be addressed in his argument and his claim of ineffective assistance of counsel.

First, Jackson generally argues that his due-process rights were violated in various ways, including that he was not allowed to provided a complete defense; Deputy Lemkuhl did not testify that he witnessed the crime, did not withdraw himself for conflict of interest (because he was the bar-owner’s friend), and committed perjury on the stand; and the state submitted last-minute witnesses.

The majority of Jackson’s brief is an argument challenging the credibility of Lemkuhl and Salzl. Jackson argues in his brief that he wanted to show the jury that Lemkuhl and Salzl were biased witnesses and that their .testimony was not reliable. The credibility of a witness, however, is for the jury to evaluate, and this court assumes that, after proper consideration, the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. Henderson, 620 N.W.2d at 704.

Jackson also argues that his due-process rights and discovery rules were violated because the district court did not allow evidence of Salzl’s criminal history into evidence. Evidence of a witness’s conviction is admissible for impeachment purposes if the crime “involved dishonesty or false statement, regardless of the punishment.” Minn. R. Evid. 609(a)(2). But convictions of lesser offenses not involving dishonesty or false statement are inadmissible. Minn. R. Evid. 609(a) 1989 comm, cmt. And the rule places a limit of ten years based on the assumption that, because of the length of time since the conviction occurred, the conviction does not provide effective probative value on the question of the witness’s credibility.

At trial, Salzl stated that he “got a felony for buying a TV and a stereo about 17 years ago.” Jackson also wanted to admit evidence that Salzl had pleaded guilty on recent charges of assault in the fifth degree and disorderly conduct. But Salzl was not charged with a felony, and the district court determined that the assault/disorderly conduct incident was not relevant to the current case. Under the rules of evidence, there was no error or abuse of discretion in the district court’s ruling.

Jackson further argues that evidence of his criminal record was presented at trial and that many of his convictions are stale. Jackson has the burden to prove that the evidence of his prior convictions was erroneous and prejudicial. State v. Lee, 645 N.W.2d 459, 465 (Minn.2002). In determining whether an error warrants reversal, the test is whether it is likely that the error substantially influenced the jury to convict. Id.

Under Minn. R. Evid. 609(b), any evidence of a conviction older than ten years is stale and inadmissible. Jackson’s pre-plea sentencing worksheet reveals that Jackson has one conviction for theft that is dated September 1986. The remainder of the convictions listed dated from April 1992 through February 2000. Under the rule, the only apparent stale conviction is the theft in 1986. It appears from the record that evidence of his criminal history was revealed on direct examination by his own attorney and that Jackson’s trial strategy was to establish his prior criminal record as one basically involving theft without violence. On these facts, Jackson’s brief reference to his criminal history was not prejudicial.

Finally, Jackson claims that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, Jackson must prove that his counsel’s representation fell below an objective standard of reasonableness, and that, but for counsel’s errors, the outcome would have been different. Roby v. State, 547 N.W.2d 354, 356 (Minn.1996) (quotation omitted). “There is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.” Hale v. State, 566 N.W.2d 923, 927 (Minn.1997). Aside from alleging that his counsel failed to represent his best interests and was inadequate in his representation, appellant offers no substantive argument as to why counsel was ineffective. After fully considering Jackson’s pro se arguments, we conclude that they are without merit.

DECISION

The district court erred when it excluded evidence of a third-party admission as unreliable hearsay in light of contradictory hearsay evidence admitted without objection at trial.

Reversed.