author: PORITSKY, Judge

text:
    STATE of Minnesota, Respondent, v. Tou L. YANG, Appellant.
    No. C7-00-713.
    Court of Appeals of Minnesota.
    May 8, 2001.
    Review denied July 24, 2001.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant Henne-pin County Attorney, Minneapolis, (for respondent).

      John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, (for appellant).
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge

Appellant challenges his conviction of second-degree murder, attempted second-degree murder, and second-degree assault. First, appellant argues that the evidence was insufficient to support his conviction because the state’s witnesses’ descriptions of appellant were inconsistent with one another. Second, appellant argues that the district court abused its discretion in making several evidentiary rulings. Third, appellant argues that he should be granted a new trial because the prosecuting attorney committed misconduct by commenting on the credibility of the state’s witnesses, misstating the evidence, inflaming the jury’s passions, and denigrating appellant’s witnesses. Fourth, appellant argues that the district court erred by (1) refusing to reopen the case after the jury had begun its deliberations so that appellant could present evidence that one of the state’s witnesses had recanted his testimony and (2) denying his motion for a new trial based on this purported recantation. Because we find that none of appellant’s claims warrant reversal, we affirm.

FACTS

In the evening of July 9, 1999, Miguel McElroy had an altercation with appellant Tou Yang and another male near Wafana’s Food Market in Minneapolis. Curtis Campbell, Miguel’s father, saw the altercation as he was driving by so he stopped to check on his son. Miguel informed his father that Dominic McElroy, Miguel’s older brother, had taken $60 from appellant to buy marijuana, but Dominic had not returned with the money or the marijuana. Campbell and Miguel began walking toward the entrance of Wafana’s, and the other males followed. Appellant and the other male pulled out guns and fired at Campbell and Miguel. Miguel died at the scene as a result of the gunshot wounds, and Campbell was shot in the left buttock, but survived.

Appellant was charged with one count of second-degree murder, one count of attempted second-degree murder, and one count of second-degree assault. Following a jury trial, appellant was convicted on all counts. The district court sentenced appellant to 406 months for the second-degree murder conviction and 213 months for the attempted second-degree murder conviction, to be run concurrently. Appellant was not sentenced for the second-degree assault because it was a lesser-included offense. Appellant appeals from his conviction.

ISSUES

I. Was the evidence sufficient to support appellant’s conviction even though the state’s witnesses’ descriptions of appellant were not entirely consistent with each other?

II. In its evidentiary rulings, did the district court err by (1) denying appellant’s motion to suppress the photographic identification display; (2) admitting older photos of appellant wearing various head gear; (3) denying appellant’s request for an interpreter for one of his witnesses; and (4) allowing the state to introduce a taped jailhouse telephone conversation between appellant and his wife?

III. Did the prosecuting attorney inappropriately comment on the credibility of the state’s witnesses, misstate the evidence, inflame the jury’s passions, or denigrate appellant’s witnesses, and if so, did the prosecutorial misconduct warrant a new trial?

IV. Did the district court err by refusing to reopen the case after the jury had begun its deliberations so that appellant could present evidence that one of the state’s witnesses had recanted his testimony and by denying appellant’s motion for a new trial based on this recanted testimony?

ANALYSIS

I. Sufficiency of the Evidence

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

Appellant argues that the evidence was insufficient to support his conviction because the state’s witnesses’ descriptions of the shooter were inconsistent with one another.

Identification is a question of fact, which the jury determines. State v. Often, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972). Resolution of inconsistencies among eyewitnesses’ testimony is the jury’s exclusive function “because it has the opportunity to observe the demeanor of witnesses and weigh their credibility.” State v. Lloyd, 345 N.W.2d 240, 245 (Minn.1984) (citation omitted).

Curtis Campbell, and witnesses Ronald Haynes and Toriano Simmons all positively identified appellant — both from the photographic display and in court — as the shooter. Witness Terrance Grady likewise positively identified appellant as being on the scene shortly before the shooting occurred. Although Dominic McElroy was . not present at the shooting, his testimony about the abortive marijuana deal not only supplies appellant’s motive for the offense, it ties appellant closely to the crime: McElroy testified that earlier in the day he took $60 from appellant but never delivered any marijuana. Campbell testified that just before the shooting, appellant demanded his money back, and told Miguel that his brother (Dominic) was dead.

We note that all four witnesses testified that they had the opportunity to observe appellant before he.took out his gun and started shooting. Dominic McElroy testified that he had seen and talked to appellant on prior occasions and on the date of the shooting, and had spent time with appellant while they unsuccessfully shopped for marijuana. Campbell testified that he talked to appellant face-to-face for several minutes before appellant took out his gun. Simmons testified that he likewise observed appellant before the shooting.

In determining the reliability of eyewitness identification, one of the factors to be considered is whether the witness was under any stress at the time he or she observed the offender. State v. Mesich, 396 N.W.2d 46, 50 (Minn.App.1986) (citing and quoting State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969), review denied, (Minn. Jan. 2,1987)). Thus, a witness who observes the offender before the offense — particularly an offense involving a gun — would be under reduced stress and would gain an additional measure of reliability. In fact, because McElroy testified that he had been with appellant earlier on the day of the shooting and had talked to appellant on prior occasions, his identification of appellant was based on recognition, which has a high level of reliability.

Although the state’s witnesses who saw the shooter testified differently regarding the shooter’s clothing, each testified that the shooter was a short, stocky male of Asian descent. Of the witnesses who were at the scene but did not see the shooting, all but one testified that they saw a short, stocky male of Asian descent at the scene, although their testimony regarding the man’s clothing differed. Only two of the state’s witnesses who were at the scene could not identify appellant from a photographic display, but neither witness saw the shooting. The fact that these two witnesses were unable to identify appellant does not mean he is innocent. See State v. Hicks, 380 N.W.2d 869, 873 (Minn.App.1986) (concluding eyewitness who was unable to identify defendant only indicates uncertainty of particular witness and does not mean defendant was innocent).

The record demonstrates that the state’s witnesses (1) had the opportunity to view appellant, (2) had some degree of attention while viewing appellant, both before and during the offense, (3) described appellant as a short, stocky male of Asian descent, (4) with two exceptions, identified appellant in a photographic display with certainty, and (5) viewed the photographic display between three to sixteen days after the incident. Any discrepancy regarding the description of appellant’s clothing is minor. See State v. Saunders, 293 Minn. 372, 372-73, 196 N.W.2d 286, 286-87 (1972) (holding discrepancies in witnesses’ testimony that appellant’s facial hair may have been stubble, mustache, goatee, or full beard did not warrant reversal). Viewing this evidence in the light most favorable to the jury’s verdict, there was sufficient evidence for the jury to conclude that appellant was guilty.

II. Evidentiary Rulings

A reviewing court will largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989).

A. Pretrial Identification Procedure

Appellant argues that the photographic identification display was unnecessarily suggestive and that the district court erred by denying his motion to suppress it. Appellant asserts that the display should have been suppressed because he was the only Hmong in the lineup and because he was pictured in jail clothing. Appellant contends that these factors give rise to a very substantial likelihood of irreparable misidentification, therefore he asserts his conviction should be reversed.

A conviction based on eyewitness identification “will be reversed only if the photographic ‘identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” Seelye v. State, 429 N.W.2d 669, 672 (Minn.App.1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). Minnesota courts review chai-lenges to pretrial identification procedures under a two-part test. State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995). A reviewing court first determines “whether the procedure was unnecessarily suggestive,” which “turns on whether the defendant was unfairly singled out for identification.” Id. (citations omitted). Under the second part of the test, even if the identification procedure was suggestive, the identification evidence may nonetheless be admissible if the reviewing court determines that “the totality of the circumstances establishes that the evidence was reliable,” meaning “the witness’ identification has adequate independent origin.” Id. (citations omitted).

A photographic display need not be comprised of “exact clones of the accused.” State v. Roan, 532 N.W.2d 563, 572 (Minn.1995) (quotation omitted). “It is sufficient if all the people in the display bear a reasonable physical similarity to the accused.” Seelye, 429 N.W.2d at 672-73 (citation omitted).

Appellant’s first argument is that the display was unnecessarily suggestive because he was the only Hmong in the display. This argument lacks merit. Three of the witnesses to the incident (Campbell, Haynes, and Grady) told the police that the shooter was a short, stocky male of Asian descent. McElroy, whose testimony tied appellant to the shooting, described him as a “short chubby Asian.” Another witness at the scene, Mai Lor, told the police the offenders were Asian. Simmons told the police they were either Hmong or Chinese. Another witness, Nancy Lee, recognized the offenders as Hmong, but she also referred to them as “two Asian boys.” The consensus of what the witnesses told the police was that the offenders were Asian males. All the individuals in the display are males of Asian descent and, although not exact clones, bear a general physical resemblance to appellant. Cf. United States v. Briley, 726 F.2d 1301, 1306 (8th Cir.1984) (determining that identification procedures were not unnecessarily suggestive where people in display had complexions fairly resembling appellant regardless of race but appellant was only African American person in display); Seelye, 429 N.W.2d at 673 (concluding photographic display was not unnecessarily suggestive where appellant was Indian and other persons in display, who bore physical resemblance to appellant, were Caucasian). Based on the information given to the police and the testimony at trial concerning the method used to prepare the display, we conclude that the display does not single out appellant on the basis of race.

Appellant’s second argument is that the display was unnecessarily suggestive because he was one of four persons in the display with jail clothing. This argument also lacks merit. Initially, it should be noted that there is nothing about the clothing worn by appellant and three other men in the display to suggest that it was jail clothing. They were all wearing gray over shirts and T-shirts, and the pictures were primarily of the individuals’ faces, with only a small part of their collars showing. See State v. Trimble, 371 N.W.2d 921, 924 (Minn.App.1985) (recognizing that even orange clothing does not necessarily suggest jail clothing), review denied (Minn. Oct. 11, 1985). Perhaps persons with a sophisticated knowledge of the criminal justice system would instantly recognize appellant’s clothing as jail clothing. There is nothing in the record, however, to suggest that appellant’s dress influenced the witnesses in this case to identify him as the shooter. Moreover, it is even less likely that the display was unnecessarily suggestive because four out of the six individuals in the display, in-eluding appellant, were wearing similar jail clothing. Appellant fails to explain why the fact that three other men in the display appear in the same clothing as appellant caused the display to impermis-sibly suggest that he was the shooter. Finally, although fairness dictates that all individuals in a photographic display should be wearing similar clothing, a defendant is not denied due process if all individuals are not so dressed. See State v. Duncan, 312 Minn. 17, 22, 250 N.W.2d 189, 193-94 (1977) (recognizing that lineup “fell short of the ideal, * * * [but] it did not result in a denial of due process” where defendant and one other individual were dressed in jail clothing while four others were dressed in street clothing).

We have examined the photographic display, and we conclude that the district court was well within its discretion when it ruled that the display was not impermissi-bly suggestive. Accordingly, the district court did not err when it denied appellant’s motion to suppress evidence identifying him as the shooter.

B. Photographs of Appellant

Appellant argues that the district court erred by admitting photographs of him. One photograph, taken in 1993, showed appellant wearing a baseball cap backwards and the other, taken in 1996, showed him wearing a bandana. Appellant asserts that the photographs were prejudicial and had no probative value.

Photographs must be relevant to a material issue in order to be admissible at trial. State v. Daniels, 361 N.W.2d 819, 828 (Minn.1985).

Identification of the shooter was a material issue at trial. Three of the state’s witnesses testified that appellant was wearing something on his head on the day of the incident. Two testified that appellant was wearing a bandana and one testified that he was wearing a baseball cap turned backwards. Appellant’s attorney questioned appellant’s family and appellant regarding his use of headgear. Appellant’s family and appellant testified that appellant had not worn a bandana since sometime before 1996 and that appellant always wore his baseball cap with the bill facing toward the front.

Contrary to appellant’s claim, there is nothing inherently prejudicial about the photographs; they are simply snapshots of the appellant. Because the testimony of appellant and his family suggested that he did not wear bandanas or baseball caps with the bill facing backwards, the photographs were probative on this issue. Appellant’s argument relating to the age of the photographs goes to their weight. The district court determined that the photographs were proper rebuttal evidence and that they did not prejudice the jury. Accordingly, we conclude the district court did not abuse its discretion by admitting the photographs.

C. Interpreter

Appellant argues that the district court erred by denying his request for an interpreter for Tin Yang, appellant’s father and one of his alibi witnesses, because Tin Yang had difficulty understanding some of the questions being posed to him at trial.

The district court shall appoint an interpreter for any “witness handicapped in communication.” Minn.Stat. § 611.32, subd. 1 (2000). A person is handicapped in communication if,

because of difficulty in speaking or comprehending the English language, [the person] cannot fully understand the proceedings * * * against the person, * * * or is incapable of presenting or assisting in the presentation of a defense.

Minn.Stat. § 611.31 (2000).

Once a witness begins to testify without an interpreter, the question of whether an interpreter is needed must rest in the broad discretion of the district court. Many of the indicators as to whether an interpreter is needed are nonverbal and may not appear in the record; such things as mispronunciations, pauses, facial expressions, and gestures. The district court must have broad discretion based on its first-hand view of these indicators.

Tin Yang testified at the Rasmussen hearing without an interpreter. At trial, before Tin Yang began his testimony, appellant’s attorney specifically told him, “If there is anything I ask you that you don’t understand, tell us you don’t understand it and we’ll say it differently, okay?” Tin Yang replied, “Yes.” Appellant’s attorney did not request an interpreter for Tin Yang until after the state completed its cross-examination. When the court asked Tin Yang if he wanted an interpreter, he replied, “If they can have someone help me, that would be better. But you are the Honor. If you don’t want that, I don’t — .” After hearing arguments from both attorneys, the district court instructed Tin Yang that he could let the court know if he did not understand a question so that counsel could rephrase it in clearer language, and Tin Yang’s examination continued without an interpreter.

A review of Tin Yang’s testimony does not demonstrate that he had difficulty speaking or comprehending the English language. During direct examination, he seemed to understand appellant’s attorney’s questions and gave clear responses without asking for clarification. During cross-examination, Tin Yang did struggle with some of the questions, but the state’s attorney rephrased each question in clearer language so that the witness could understand what was being asked. The district court reasoned that any problems Tin Yang had were from a lack of understanding of questions using idioms and double negatives, and this reasoning is supported by the transcript. Further, Tin Yang testified that he and his family have been living in the United States for about 23 years, he attended North Hennepin Community College, he had worked for the Minneapolis Community Development Agency, and he currently works as a housing inspector for the City of Minneapolis.

Tin Yang was called by appellant, who did not ask for an interpreter until after the state completed its cross-examination. We conclude that the district court’s ruling on this issue was well within its broad discretion.

D. Disclosure of Tape Recording

Appellant argues that the district court erred by allowing the state to introduce a taped telephone conversation between appellant and his wife while appellant was in jail. Appellant argues that the state did not properly disclose the tape, which deprived appellant of due process and a right to a fair trial.

The state has a duty to disclose relevant recorded statements “which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney.” Minn.R.Crim.P. 9.01, subd. 1(2). The state argues that the taped telephone conversation was rebuttal evidence so the disclosure rules do not apply. Appellant, however, contends that “due process must require disclosure of any possibly exculpatory evidence, even if used for rebuttal.” In making this argument, appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

A Brady disclosure only applies to material evidence; that is, evidence that, had it been disclosed to the defense, would have created a reasonable probability that the result of the proceeding would have been different. State v. Hunt, 615 N.W.2d 294, 299 (Minn.2000). The three components for determining if the state’s failure to disclose evidence constituted a Brady violation are:

[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Id. (emphasis added) (quotation omitted).

Appellant has provided no evidence that the taped telephone conversation would have been favorable to him, thus he has not satisfied the first component of the Brady analysis. Also, the state timely disclosed the tape. The taped conversation took place on November 4, 1999. The prosecuting attorney stated that he was not made aware of the tape until the evening of November 29, 1999, and he disclosed it to appellant the next morning before trial began for the day. Because the prosecuting attorney disclosed the tape soon after he became aware of it, there is no basis to conclude that the state attempted to circumvent any discovery rules. Based on the applicable disclosure rules, the district court did not err by concluding that the state timely disclosed the tape. Thus, appellant’s argument under Brady fails.

Further, the district court determined that the taped telephone conversation was proper rebuttal evidence. Rebuttal evidence generally “consists of that which explains, contradicts, or refutes the defendant’s evidence.” State v. Swanson, 498 N.W.2d 435, 440 (Minn.1993) (citation omitted). The determination of what constitutes proper rebuttal evidence rests almost entirely in the discretion of the district court. State v. Brown, 500 N.W.2d 784, 788 (Minn.1993). Disclosure rules do not apply to rebuttal evidence. Cf. State v. Anderson, 405 N.W.2d 527, 531 (Minn.App.1987) (concluding state does not have duty to disclose rebuttal witness), review denied (Minn.July 22,1987).

The district court did not abuse its discretion by ruling that the taped telephone conversation constituted rebuttal evidence. Appellant’s wife testified that appellant was with her the night of the shooting. During the taped conversation, however, appellant asked, “What do you want me to do? Go in there and tell them I did it? What do you want me to do?” Appellant’s wife responded, “Well did you do it?” Appellant replied, “Answer me.” Appellant’s wife asked, “What did you do? If you did it then why the hell you gonna say it, stupid.” The taped conversation conflicts with appellant’s wife’s testimony that appellant was with her on the night of the shooting. Accordingly, the district court did not err in concluding that the taped telephone conversation was proper rebuttal evidence. We note, however, that our ruling only applies to genuine rebuttal evidence. Parties are cautioned not to attempt to inappropriately fail to disclose evidence by classifying it as rebuttal evidence.

III. Prosecutorial Misconduct

Appellant argues that the prosecutor committed misconduct by commenting on the credibility of the state’s witnesses, misstating the evidence, inflaming the jury’s passions, and denigrating appellant’s witnesses. Because of the alleged misconduct, appellant contends he should be granted a new trial.

The determination of whether a new trial should be granted because of prosecutorial misconduct rests within the discretion of the district court. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). When assessing such a claim, the reviewing court must first determine whether the conduct was in fact misconduct, and, if the court so concludes, then a two-tiered test is applied. State v. Washington, 521 N.W.2d 35, 39-40 (Minn.1994). If the reviewing court determines the prosecutor committed unusually serious prosecutorial misconduct, the conviction may be affirmed only if the misconduct was harmless beyond a reasonable doubt. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Where the conduct is less serious, the test is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. at 128, 218 N.W.2d at 200. The prosecutor’s statements must be taken as a whole when determining if there is a basis for reversing appellant’s conviction. Washington, 521 N.W.2d at 40.

A defendant has a duty to promptly object or seek curative instructions if a prosecutor makes an improper statement during closing argument. State v. Brown, 348 N.W.2d 743, 747 (Minn.1984). Generally, a defendant who fails to object or seek curative instructions has waived the right to raise the issue on appeal. Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996).

Here, appellant did not object to the prosecutor’s allegedly improper comments, nor did he seek a curative instruction. Because appellant failed to object or seek a curative instruction, this court reviews the claim under the plain error rule, under which we ask whether the alleged conduct was

so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial that the defendant’s right to a remedy should not be forfeited.

State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000) (citation omitted). Additionally, a conviction may also be reversed prophylac-tically or in the interests of justice when a prosecutor persists in committing misconduct. State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993).

We conclude that the prosecutor misstated certain evidence, which will be discussed below. Otherwise, we conclude that the prosecutor did not commit misconduct.

A. Credibility of the State’s Witnesses

Appellant asserts that the prosecuting attorney improperly vouched for the state’s witnesses in three instances during closing argument. First, the prosecuting attorney stated:

You think for one minute [the detectives] are going to come in on a case with a lineup that’s going to single somebody out and be that obvious? And ruin an investigation? I submit to you, no they are not.

Second, regarding appellant’s testimony, which conflicted with the officers’ testimony, the prosecuting attorney stated:

Now, these are officers who are trained in observation. They are officers trained in writing things down, because they have to generate reports about what they find and what they learn.

Third, regarding Tin Yang’s testimony, which conflicted with the officers’ testimony, the prosecuting attorney stated:

Now, these are again police [who] are writing things down to get it accurate. [Tin Yang] never said that [his son left at 5:30 p.m. to go to his father-in-law’s house].
[Police officers] are authorized to make the type of searches that they did by a District Court judge. That they write things down when they see them so that they can remember * * ⅝ what people said to them, what they saw and so forth.
And the police officers, their stock and trade is to come into court and put their credibility on the line. And you really think that they are going to jeopardize their careers by coming in here and lying? I submit to you no. For one case, a whole career? Doesn’t make sense.

The prosecuting attorney has a right to argue that the state’s witnesses were worthy of credibility. State v. Googins, 255 N.W.2d 805, 806 (Minn.1977). But, the prosecuting attorney may not express a personal opinion about the witnesses’ credibility. State v. Porter, 526 N.W.2d 359, 364 (Minn.1995).

Viewing these comments in light of the prosecuting attorney’s entire argument, we conclude that the prosecuting attorney was attempting to explain how investigators perform their job and why they are trained to document accurately all information discovered during an investigation. It does not appear that the prose-, cuting attorney personally endorsed the witnesses; rather, the prosecuting attorney showed that because of their training and experience, the officers were worthy of credibility. Therefore, we fail to see how the prosecuting attorney impermissi-bly vouched for the state’s witnesses.

B. Misstatement of the Evidence

Appellant argues that the prosecuting attorney misstated the evidence during closing argument by stating that “five people identified this defendant as one of the murderers at Wafana’s store,” and by describing the police department’s database, which contains photographs of individuals who have been arrested that are used to create photographic displays, as “[linking] the defendant to the crime.”

These comments do appear to be misstatements of the evidence. Only three witnesses identified appellant as the shooter. A more accurate statement of the evidence is that five witnesses placed appellant at the scene on the day of the incident. Also, the police department’s computer database did not link appellant to the crime. But, when viewed in context of the entire closing argument, this comment seems to be explaining how the computer system creates a photographic display based on appellant’s characteristics, which can then be shown to the witnesses of the incident. The prosecuting attorney explained how the photographic display became the test for the witnesses and that five witnesses passed the test by identifying appellant. Viewing these comments in light of the prosecuting attorney’s entire argument, even if the comments were improper, they do not rise to the level of plain error and were not so prejudicial to appellant that a reversal is warranted.

C. Inflaming the Jury’s Passions

Appellant argues that the prosecuting attorney attempted to turn the jury against him by stating during closing argument that

the significance of finding marijuana seeds is that there is evidence in the defendant’s truck of what the defendant essentially killed someone for, this marijuana, or not getting it.

A proper closing argument should focus on the evidence and reasonable inferences drawn from the evidence. State v. DeWald, 463 N.W.2d 741, 744 (Minn.1990). A prosecutor “should not use arguments calculated to inflame the passions or prejudices of the jury.” Salitros, 499 N.W.2d at 817 (quotation omitted).

In this case, evidence was admitted at trial establishing that appellant had given Dominic McElroy $60 to purchase marijuana for appellant. On the day of the incident, McElroy and appellant drove around in appellant’s vehicle searching for marijuana to purchase. After their unsuccessful search, McElroy kept appellant’s money without delivering any marijuana. Campbell testified that appellant approached him and Miguel looking for Dominic and/or his money. Accordingly, the prosecuting attorney’s statement was a reasonable inference based on the evidence, tying appellant to the shooting and showing that he had a motive. It was not an improper comment intended to inflame the jury’s passion. See State v. Rose, 353 N.W.2d 565, 569 (Minn.App.1984) (concluding where record established that 13-year-old rape victim suffered and will continue to suffer long-lasting mental anguish, prosecuting attorney’s argument pertaining to her mental anguish was fair comment on evidence), revieiv denied (Minn. Sept. 12, 1984).

D. Credibility of Defense Witnesses

Appellant argues that the prosecuting attorney improperly denigrated the defense witnesses by pointing out that they could have come forward earlier to provide information regarding appellant’s alibi, by commenting on Tin Yang’s desire to have an attorney present when he spoke with the police and appellant’s wife’s unwillingness to give a taped statement, and by questioning Tin Yang’s reasoning for exercising his right to require a search warrant before he allowed police to search his home.

A prosecuting attorney may attack the merit of a particular defense or argument in light of the evidence, but may not belittle a defense in the abstract. State v. Williams, 525 N.W.2d 538, 549 (Minn.1994). Further, a prosecuting attorney may point to circumstances that cast doubt on a witness’s veracity as long as the prosecuting attorney does not inject personal opinion. State v. Ture, 353 N.W.2d 502, 516 (Minn.1984).

Here, several of the prosecuting attorney’s comments were attacking the credibility of appellant’s alibi witnesses by pointing out their lack of timeliness in coming forward with alibi information. Such attacks on witness credibility are permissible. See State v. Dupay, 405 N.W.2d 444, 450 (Minn.App.1987) (concluding attack on timeliness of alibi defense is permissible attack on witness’s credibility).

The prosecuting attorney commented on Tin Yang’s request to have an attorney present while talking to police and his desire for the police to secure a search warrant before searching his home. The prosecuting attorney argued that Tin Yang’s actions created a window of opportunity for appellant to get rid of the gun and the clothes; these are permissible inferences based on the evidence. Three witnesses identified appellant as the shooter. Several days passed before police could search appellant’s home. There was an adequate window of opportunity for appellant to get rid of the gun and any other evidence linking him to the shooting.

The prosecuting attorney’s theory regarding whether appellant’s alibi was legitimate is also a permissible inference. The prosecuting attorney stated:

I submit to you what’s happened here is an exercise in the power of suggestion. * * * I think what’s happened here is family keeping things together, let’s not disappoint each other. Start thinking back. * * * You know, we visit. And that becomes we visit on a regular basis. And that becomes we have been over on a Friday before, it becomes every Friday.

A number of alibi witnesses were from appellant’s family. The prosecutor was commenting on their possible bias in favor of appellant.

In addition, the district court adequately instructed the jury that the closing statements were presented for purposes of argument only and that the jury was to rely on its own recollection of the facts. But see Porter, 526 N.W.2d at 365 (stating district court’s curative instruction did not fully address prosecuting attorney’s misconduct, therefore it could not undo damage done by prosecuting attorney’s comments).

Based on the record before us, we conclude that none of the prosecuting attorney’s comments rose to the level of misconduct. Reaching a contrary result based on appellant’s rationale would make it misconduct any time a prosecuting attorney makes any negative statement about the defense. Such a result is illogical and contrary to the applicable caselaw.

IV. New Evidence

A. Reopening Case After Jury Began Deliberations

Appellant asserts that the district court erred by refusing to reopen the case after the jury deliberations had begun so that appellant could present new evidence pertaining to his defense. Specifically, appellant argues that the jury should have been allowed to hear evidence that Simmons recanted his testimony. Appellant contends that the jury should have been able to hear and weigh this evidence before reaching its verdict.

A review of Minnesota caselaw fails to reveal any criminal case discussing the issue of whether the district court may reopen a case to receive additional evidence after the jury has begun its deliberations. The United States Supreme Court has stated that the district court’s discretion to allow additional evidence after jury deliberations have begun is very limited because providing such evidence would likely distort the evidence’s importance. United States v. Bayer, 331 U.S. 532, 537-38, 67 S.Ct. 1394, 1396-97, 91 L.Ed. 1654 (1947). Further, it is not reversible error to refuse to admit “unsworn, unverified” evidence after the case had been submitted to the jury. Id. at 539, 67 S.Ct. at 1397.

The Maryland Court of Appeals discussed at length the issue of whether the district court may allow a party to introduce evidence after the jury has begun its deliberations. Dyson v. State, 328 Md. 490, 615 A.2d 1182 (1992). After discussing a multitude of other state’s caselaw as well as federal caselaw on point, the court counseled that reopening a case “must be done in a way that does not unduly prejudice the rights of any party.” Id. at 504, 615 A.2d at 1189 (citation omitted). The court reasoned that the district court “must exercise the utmost caution in reopening a case to allow the introduction of additional evidence after the jury has begun deliberating.” Id. at 502-03, 615 A.2d at 1188. The court concluded that allowing additional evidence, where there is no extraordinary reason to do so, and without permitting cross-examination of the witness supplying the additional evidence, warrants a reversal of the conviction. Id. at 504-06, 615 A.2d at 1189. But, the court noted that reversal may not be necessary if the district court permits cross-examination. Id. at 504, 615 A.2d at 1189.

Here, Simmons testified at trial that he observed appellant at Wafana’s talking to Campbell and Miguel. He then saw appellant pull out a gun and shoot them. Shortly after the jury began its deliberations, appellant requested a hearing to inquire whether Simmons had made a statement indicating that he knew appellant had not committed the crime. At the hearing, Deputy Danyelle Becking testified that she heard Simmons say to appellant, “No, man, and it wasn’t you. It wasn’t you. I heard they are trying to give you 30 years.” According to appellant’s testimony, Simmons told appellant that

[T]hey made me say it. They made me come in and testify. I didn’t want to. But they made me come in and testify. No, you are not the guy that did it. I know you are not the guy.

Deputy Becking was recalled and testified that she did not hear this portion of the conversation. At the hearing, Simmons invoked his Fifth Amendment privilege and did not testify.

Subsequently, at the hearing on appellant’s motion for a new trial, after being granted immunity, Simmons agreed to testify. Although Simmons testified that he told another inmate in the holding cell, “I don’t know if [appellant] is the killer,” he further testified that, after reading the trial transcript of his original testimony, he would not significantly change any of his testimony. Simmons explained that he made the statement because, to him, many Asians look alike. Simmons did not indicate that he was forced to testify at trial against appellant or that he was unsure that appellant was the shooter. Simmons did not change his story until he met appellant face-to-face in the holding cell and was left alone with him, and he told the court that he did not feel comfortable being in such close proximity with appellant. In fact, Simmons testified that he heard from other inmates that appellant had called him a “snitch” and that he was “going to get dealt with.”

It is our conclusion that the district court did not abuse its discretion in refusing to reopen the testimony while the jury was deliberating. As long as Simmons was invoking his Fifth Amendment privilege, the state would be denied the opportunity of cross-examining him in front of the jury. This would prejudice the state, and the jury might well have given Deputy Becking’s testimony undue weight. Moreover, as discussed more fully below, at the motion for a new trial, the district court found that Simmons’s recantation was not genuine. Thus, albeit after the fact, Simmons’s testimony at the motion for a new trial ultimately supports the district court’s decision not to reopen the case after the jury had begun deliberating. We therefore affirm the district court on this issue.

B. New Trial

Appellant argues that the district court should have granted his motion for a new trial because Simmons recanted his earlier testimony.

The decision whether to grant a new trial based on a material witness’s recantation rests within the district court’s discretion, and the court’s decision will not be disturbed absent a clear abuse of discretion. Daniels, 447 N.W.2d at 188. Traditionally, courts have “looked with disfavor on motions for a new trial based on recantations unless extraordinary or unusual circumstances exist.” Id. (citation omitted). A defendant should be given a new trial based on recantation of a material witness’s testimony if the defendant shows that

1) the testimony was false; 2) [the defendant] was surprised by the testimony and was unable to counteract it or did not know it was false until after the trial; and 3) the jury might have reached a different conclusion if it had not considered the false testimony.

Flournoy v. State, 583 N.W.2d 564, 569 (Minn.1998) (citation omitted). If the district court finds that the recantation was not genuine, it “does not even need to proceed to the issue of whether the jury might have reached a different result without the witness’ testimony.” State v. Bowles, 530 N.W.2d 521, 534 (Minn.1995) (quotation omitted).

As we previously noted, the district court found that Simmons’s recantation was not genuine. This determination is well within the district court’s discretion. The district court reasoned, based on its observation of Simmons in the courtroom at least three to four times, that Simmons was the type of person who said what people wanted to hear. The court further reasoned that Simmons was intimidated by appellant and that his recantation was merely a product of being in the same holding cell with appellant. The court pointed out that Simmons gave his original statement shortly after the incident occurred, he identified appellant in a photographic display, and he testified “at length under oath at trial.” Based on these facts, we conclude that the district court did not abuse its discretion when it found that Simmons’s recantation was not genuine. Because appellant has failed to show that Simmons’s testimony was false, appellant has failed to meet the burden set forth in Flournoy. Accordingly, we conclude that the district court was well within its discretion when it denied appellant’s motion for a new trial.

DECISION

The evidence was sufficient to sustain appellant’s conviction despite minor inconsistencies between the witnesses’ identifications. The district court did not abuse its discretion by (1) admitting the photographic display even though appellant was the only Hmong individual and was one of four individuals featured in jail clothing; (2) admitting photographs addressing the issue of appellant’s appearance; (3) denying appellant’s request for an interpreter for one of his witnesses where the witness was called by appellant, who did not request an interpreter until after the state completed its cross-examination; and (4) admitting appellant’s taped telephone conversation as rebuttal evidence that contradicted the testimony of one of appellant’s witnesses. Further, it is not prosecutorial misconduct for the state to argue that its witnesses are credible, to comment on reasonable inferences based on record evidence, to attack the timeliness of appellant’s alibi, and to comment on the possibility of bias of appellant’s alibi witnesses. In addition, any minor misstatements of evidence by the state do not warrant reversal. Finally, the district court did not abuse its discretion by refusing to reopen the case after the jury had begun its deliberations or denying appellant’s motion for a new trial because of a witness’s alleged recantation.

Affirmed.

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


source: Caselaw Access Project

author: LANSING, Judge

license: Public Domain

text:
    AMCO INSURANCE COMPANY, Respondent, v. INDEPENDENT SCHOOL DISTRICT # 622, Appellant.
    No. C3-00-2104.
    Court of Appeals of Minnesota.
    May 22, 2001.

      George C. Hottinger, Erstad & Riemer, P.A., Minneapolis, for respondent.
    Kay Nord Hunt, Reid R. Lindquist, Sheila A. Bjorklund, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, for appellant.
    Considered and decided by LANSING, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

LANSING, Judge

In a declaratory judgment action to establish priority for payment of no-fault benefits, Independent School District # 622 appeals the district court’s summary judgment establishing the school district’s priority over an injured bicyclist’s insurer. Because the school bus is exempt from the priority level established for vehicles used in the business of transporting persons or property, we reverse and remand.

FACTS

In September 1993, bicyclist Michael Kell collided with a school bus owned by the school district. At the time of the accident, the school bus was transporting students. The bus was self-insured by the school district.

Amco Insurance Company insured the bicyclist as a resident relative under a personal auto policy. Amco paid approximately $20,000 in no-fault benefits to the bicyclist and then brought this declaratory judgment action seeking a declaration that the school district had first priority for payment of no-fault benefits to the bicyclist under Minn.Stat. § 65B.47, subd. 3 (1992). The school district disputed its priority, contending that school buses are exempt from the business-priority provisions under section 65B.47, subdivision la (1992).

On cross-motions for summary judgment, the district court granted summary judgment against the school district and ordered judgment for Amco totaling $40,089.14 in no-fault benefits and statutory interest. This appeal followed.

ISSUE

In a collision between a bicyclist and a school bus transporting school children, which insurer has priority for payment of the bicyclist’s no-fault benefits?

ANALYSIS

When a motor-vehicle accident occurs in this state, injured persons have a right to no-fault benefits for their economic loss. Minn.Stat. § 65B.46, subd. 1 (2000). The No-Fault Act provides a formula to determine which no-fault insurer has priority for payment of no-fault benefits. Minn. Stat. § 65B.47 (1992).

Generally, injured persons look to their own personal auto insurers for no-fault benefits. Id., subd. 4. But when the character or use of an involved vehicle is for business purposes, the priority for payment of no-fault benefits shifts to the insurer of the business vehicle. Id., subds. 1-3. These circumstances include accidents in which a non-occupant of a motor vehicle, such as a bicyclist, sustains injuries that arise out of the maintenance or use of the business vehicles defined in the no-fault priority provisions:

Subd. 3. In the case of any other person whose injury arises from the maintenance or use of a motor vehicle described in subdivision 1 or 2 who is not a driver or occupant of another involved motor vehicle, the security for the payment of basic economic loss benefits is the security covering the vehicle, or if none, the security under which the injured person is an insured.

Id., subd. 3 (emphasis added). Both parties stipulate that the school bus is not a motor vehicle described in subdivision 2. Therefore, the narrow issue is whether the school bus is a “motor vehicle described in subdivision 1” of the no-fault priority provisions. Subdivision 1 designates priority for drivers or occupants of vehicles used for business purposes:

Subdivision 1. In case of injury to the driver or other occupant of a motor vehicle, if the accident causing the injury occurs while the vehicle is being used in the business of transporting persons or property, the security for payment of basic economic loss benefits is the security covering the vehicle or, if none, the security under which the injured person is an insured.
Subd. la. Exemptions. Subdivision 1 does not apply to:
(1) a commuter van;
(2) a vehicle being used to transport children as part of a family or group family day care program;
(3) a vehicle being used to transport children to school or to a school-sponsored activity; or
(4) a bus while it is in operation within the state of Minnesota as to any Minnesota resident who is an insured as defined in section 65B.43, subdivision 5.

Id., subd. 1.

“The appropriate source of coverage for an injured person is located by simply dropping through the priorities until the applicable source of coverage is discovered.” Michael K. Steenson, 1 Minnesota No-Fault Automobile Insurance 125 (2d ed.1989). Once the proper priority level is identified, the injured person is not permitted to recover further no-fault benefits on a lower priority level. Murphy v. Milbank Mut. Ins., 320 N.W.2d 423, 425 (Minn.1982). Therefore, if the circumstances of this accident fit the requirements of the subdivision 3 priority provisions, then the school district would have priority for payment of no-fault benefits. If, however, the circumstances do not fit the subdivision 3 requirements, then the proper priority level is determined under subdivision 4(a), which would assign priority to Amco.

The school district claims that the circumstances of this accident do not meet the requirements of subdivision 3 because its school bus is not a “motor vehicle described in subdivision 1.” Although the school bus was “being used in the business of transporting persons” at the time of the accident, subdivision la exempts vehicles transporting school children. Minn.Stat. § 65B.47, subd. la. Thus subdivision 1 does not apply to a school bus. The school district maintains that the exemption language in subdivision la is incorporated into subdivision 1 for purposes of determining whether a school bus is a “motor vehicle described in subdivision 1” to trigger coverage under subdivision 3. Amco disputes this construction of subdivision la and maintains that the school district, in the business of transporting people, has priority.

Interpretation of a statute is a question of law subject to de novo review. Meister v. Western Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992). If the words of the statute are clear and free from all ambiguity, further construction is neither necessary nor permitted. Owens v. Water Gremlin Co., 605 N.W.2d 733, 736 (Minn.2000). If, on the other hand, the words of the statute are not explicit and more than one reasonable interpretation is possible, the statute must be judicially construed. See Abrahamson v. Abrahamson, 613 N.W.2d 418, 421-22 (Minn.App.2000) (citing Minn.Stat. § 645.16 (2000)).

We agree with the school district that the plain language of the statute is controlling. Under the plain language, the school bus cannot be a “motor vehicle described in subdivision 1” to trigger coverage under subdivision 3 because the bus is exempted from subdivision 1 by virtue of subdivision la. Thus, the trial court erred in granting summary judgment in favor of Amco.

Although the plain language of the statute mandates this result, the plain meaning is also consistent with the legislative history and general policies underlying no-fault coverage. As originally enacted, the No-Fault Act did not exempt any vehicles from subdivision 1, that is, from being considered a vehicle “being used in the business of transporting persons or property.” Minn.Stat. § 65B.47, subd. 1 (1974). In 1976, subdivision 1 was amended to include certain exemptions in the body of the subdivision 1 text. See Minn.Stat. § 65B.47, subd. 1 (1976). As the number of exemptions increased, the legislature apparently decided to list all of the exemptions in subdivision la. See Minn.Stat. § 65B.47, subd. 1 (1990). But this consolidation does not change the limiting effect that subdivision la has upon subdivision 1. Furthermore, we can perceive no logical or supportable reason why the legislature, when deciding whether a school-bus insurer should bear first priority for no-fault coverage, would treat school-bus occupants in a manner different from non-occupants struck by school buses.

DECISION

We reverse the judgment against the school district and remand for entry of judgment against Amco.

Reversed and remanded.

      . The accident occurred in September 1993; therefore, priority is determined under the provisions in the 1992 statute.


author: G. BARRY ANDERSON, Judge

text:
    J.W., a minor, by and through his mother, D.W., Petitioner, Appellant, v. C.M., a minor, and A.K.M., an infant child of C.M., Respondents, and Terry Braun, et al., Respondents.
    No. C6-00-1500.
    Court of Appeals of Minnesota.
    May 22, 2001.

      Anita A. Flatt, Zenas Baer & Associates, Hawley, MN, (for appellant).
    Stuart J. Kitzmann, Kitzmann Law Firm, (for respondent C.M.); James Shoemaker, Shoemaker Law Office, Detroit Lakes, MN, (for respondent A.K.M.); DeAnn M. Pladson, Maring Williams Law Office, P.C., Fargo, ND, (for interve-nors/respondents); and Mary Sorum, Thorwaldsen, Beeson, Malstrom, Sorum & Donehower, PLLP, Detroit Lakes, MN, (for guardian ad litem).
    Considered and decided by HARRIET LANSING, Presiding Judge, ROBERT SCHUMACHER and G. BARRY ANDERSON, Judges.
   OPINION

G. BARRY ANDERSON, Judge

Appellant challenges the district court’s order granting custody of his biological daughter to the child’s foster parents. Appellant argues that the district court erred or abused its discretion by (1) permitting the foster parents to intervene; (2) concluding that it is in the child’s best interests that custody be awarded to the foster parents; (3) ordering temporary supervised visitation; (4) ordering appellant to undergo a parenting evaluation; and by (5) admitting the guardian ad litem’s report into evidence. The temporary visitation order is unappealable and the parenting evaluation is not part of the record in this case; accordingly, we do not review those issues. Because the district court acted within its discretion in allowing intervention, granting custody, and admitting the guardian ad litem’s report, we otherwise affirm.

FACTS

On April 29, 1999, daughter A.K.M. was born to juvenile C.M. (now age 18). Appellant J.W. (now age 17) is the child’s biological father. Soon after learning C.M. was pregnant, appellant informed her that he would not consent to an adoption, and expressed his desire to keep and raise the child. But before the child’s birth, respondent C.M., with the help of a counseling service, decided to give the baby up for adoption and chose respondents Terry and Susan Braun, ages 37 and 36, respectively, to be the adoptive parents. The Brauns have a biological daughter, B.B., now age nine. Baby A.K.M. has been cared for by the Brauns since May 1,1999.

On June 19, 1999, appellant petitioned for custody through his mother, D.W. At appellant’s request, the district court appointed a guardian ad litem for the child, ordered genetic testing, and granted appellant supervised visitation. Appellant missed approximately one-third of the scheduled visitations. On January 6, 2000, the district court granted the Brauns’ motion to intervene. In April 2000, the district court extended appellant’s visitation schedule but denied his motion for summary judgnent against the Brauns and ordered a custody trial.

Appellant has a seventh-grade education and, with his mother’s permission, dropped out of high school at age 16. Appellant, burned in a 1985 house fire, receives annuity payments as part of the settlement of his personal-injury claim. Appellant suffers no permanent disability and works approximately full-time for his father, earning between five and six dollars per hour as a drywall hanger. Appellant paid the hospital expenses of A.K.M. and C.M., and testified that he had experience bathing and feeding small children. Appellant also explained that his mother intended to help him raise A.K.M. Appellant testified that his family supports his decision to raise A.K.M. in the home where he, his mother, a sister, a brother, his mother’s boyfriend, and the boyfriend’s daughter reside. The family prepared a room in their home for A.K.M., purchased a crib and toys, and made other home improvements in anticipation of having a child in the residence.

D.W. testified on appellant’s behalf and explained that her own experience raising four children, together with her past experience as a day-care provider, would enable her to assist appellant in raising his daughter. D.W. assisted appellant in bringing this custody action; she completed the necessary forms for appellant’s registration with the Adoptive Father’s Registry, communicated with the adoption coordinator, sent out birth announcements, and arranged appellant’s visitations with A.K.M.

The guardian ad litem visited the home and assessed the parenting abilities of appellant and his mother. The guardian ad litem identified problems that led her to conclude that placement with the Brauns was in A.K.M.’s best interests. Both appellant and D.W. were identified as having unresolved chemical-use problems. In addition, the guardian ad litem observed many unsafe conditions in the appellant’s home, and her research uncovered difficulties between D.W. and local authorities.

In contrast, the guardian ad litem described the Braun home as loving, safe, and filled with age-appropriate toys. The Brauns operate a day-care and preschool facility in their home and the guardian ad litem regarded their care of children as “excellent.” An expert testified on behalf of respondents and explained the attachment an infant develops with caregivers and explained attachment disorder and other risks a child in A.K.M.’s situation would face if her custody were to change. The district court applied the statutory “best interests of the child” factors and awarded the Brauns permanent legal and physical custody of A.K.M.

ISSUES

I. Did the district court abuse its discretion by permitting the foster parents to intervene in the custody action?

II. Did the district court abuse its discretion by awarding custody of A.K.M. to the foster parents?

III. Did the district court abuse its discretion by ordering supervised visitation between appellant and A.K.M.?

IV. Did the district court abuse its discretion by ordering appellant to undergo a parenting evaluation?

V. Did the district court abuse its discretion by admitting into evidence the guardian ad litem’s report?

ANALYSIS

I.

Appellant first argues that the district court abused its discretion by permitting respondent foster parents, Terry and Susan Braun, to intervene in this custody action. Permissive intervention rulings are reviewed under an abuse-of-discretion standard. Norman v. Refsland, 383 N.W.2d 673, 676 (Minn.1986).

Minn. R. Civ. P. 24.02 provides that district courts, in their discretion, may permit intervention where the applicant’s claim or defense and the main action have a common question of law and fact if doing so would not unduly delay or prejudice the adjudication of the rights of the original parties. Id. In this case, the Brauns, as A.K.M.’s legal custodians, share with appellant a common claim to custody of the child. Although appellant argues that the foster-parent/child relationship is insufficient to support the permissive intervention granted by the district court here, the supreme court has recognized that, where intervention was sought as a matter of right, “[i]n certain circumstances, it may be appropriate for a [district] court to allow foster parents to intervene ⅞ * Valentine v. Lutz, 512 N.W.2d 868, 871 (Minn.1994) (addressing intervention as a matter of right).

Appellant argues that intervention was not appropriate in this case because he suffered undue delay and hardship. Appellant claims the custody matter would have been resolved “immediately” had the Brauns not intervened. We disagree. Minn.Stat. § 518.156, subd. 1(b) (2000), provides that a custody action may be commenced by a “person other than a parent, where a ⅜ ⅜ * dissolution or legal separation has been entered or where none is sought.” Id.; see also In re E.A.Q.D., 405 N.W.2d 262, 264 (Minn.App.1987) (non-parent with whom child has been placed has standing to seek permanent custody). Because C.M. and appellant never married, no dissolution was entered or sought. Consequently, the Brauns had standing under Minn.Stat. § 518.156, subd. 1(b), to bring their own custody action. See La-Chapelle v. Mitten, 607 N.W.2d 151, 158-59 (Minn.App.2000) (explaining that a non-parent third party has standing to bring custody action pursuant to Minn.Stat. § 518.156 where dissolution not sought), review denied (Minn. May 16, 2000). Had the district court denied the Brauns’ motion to intervene, they could have simply commenced a parallel custody proceeding. The district court did not abuse its discretion by permitting, in the interests of judicial economy, the Brauns’ intervention.

Appellant also argues that the adoption agency acted improperly by placing A.K.M. in foster care with the Brauns without his consent. Appellant contends that the district court’s failure to recognize those alleged mistakes in granting intervention constitutes an abuse of discretion. This custody action is not, however, part of an adoption proceeding commenced under Minn.Stat. § 259.22 (2000), and the agency appellant accuses of wrongdoing is not a party to this litigation. We decline to reach appellant’s adoption claims because they were neither considered nor decided by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988).

II.

Appellant next argues that the district court abused its discretion by awarding permanent legal and physical custody of A.K.M. to the Brauns. Appellant contends that the record does not show sufficient reason to deprive him of custody and that respondents did not-rebut the presumption of parental fitness. District courts have broad discretion to determine matters of custody. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989). “Appellate review of custody determinations is limited to whether the [district court] abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985).

The general rule that a natural parent is presumed fit to have custody of his child emerged from cases involving proof of unfitness in terminating parental rights. In re Welfare of P.L.C., 384 N.W.2d 222, 225 (Minn.App.1986). When deciding custody disputes between a parent and a third party, the presumption that a natural parent is entitled to custody of his own child will not be overturned unless it

clearly appears that [the parent] is unfit or has abandoned [the parent’s] right to custody, or unless there are some extraordinary circumstances which would required [the parent] be deprived of custody.

Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971).

Minnesota statutes and case law, however, recognize that a district court’s primary commitment in matters concerning custody is the best interests of the child. See Minn.Stat. § 518.17, subd. 1(a) (2000) (enumerating best interest factors); Olson v. Olson, 534 N.W.2d 547, 549 (Minn.1995) (referring to the “paramount commitment to the best interest of the children”); see also Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn.1999) (stating that child’s best interests are “paramount” concern in resolution of custody issues) (citation omitted). Because he was adjudicated A.K.M.’s father, appellant’s custody rights are decided as an initial custody determination under Minn.Stat. § 518.17 (2000). See Minn.Stat. § 257.541, subd. 3 (2000). Minn.Stat. § 518.17, subd. 1(a), governs custody disputes and enumerates 13 “best interests” factors that district courts must consider when making a custody determination. Id.

Wallin and subsequent case law make clear that the “best interests of the child” is “the primary test” to be applied in awarding custody, including disputes between a natural parent and a third party. See LaChapelle, 607 N.W.2d at 161 (citing Wallin and explaining the test). In this case, the district court addressed the statutory factors and determined that it would be in A.K.M.’s best interests to remain in the Brauns’ custody.

A. Findings

Appellant disputes many of the district court’s findings concerning the best-interest factors. District court findings are sustained unless they are clearly erroneous. Pikula, 374 N.W.2d at 710. In order for a finding to be clearly erroneous, we must be left with a “definite and firm conviction that a mistake has been made.” Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000) (citation omitted). In addition, we view the record in the light most favorable to the findings and defer to a district court’s credibility determinations. Id. “That the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.” Id. at 474.

The district court was required to make findings concerning (1) the wishes of the parties; (2) the role of the child’s primary caretaker; (3) the relationship between the parties and the child; (4) the intimacy and interaction between the child and those persons who may affect the child’s interests; (5) the child’s adjustment to home and community; (6) the length of time the child has lived in a stable environment and the importance of continuity; (7) the permanence of a proposed custodial home; (8) the mental and physical health of the individuals involved; and (9) the capacity of the parties to give the child love, affection, guidance, and education. See Minn.Stat. § 518.17, subd. 1(a) (providing 13 best-interest factors).

1. Wishes of the Parties

The district court found that this factor favored the Brauns because appellant’s mother served as the impetus behind his claim to A.K.M.’s custody. The evidence shows D.W. handled all of appellant’s business with the adoption registry and arranged visitations. In her absence, appellant missed visitations. On one occasion, D.W. advised appellant to attend visitation despite her absence because otherwise “it would look bad in court.”

2. The Child’s Primary Caretaker

The district court found that this factor favored the Brauns, who served as A.K.M.’s primary caretakers. The Brauns began caring for A.K.M. two days after her birth and the guardian ad litem regarded their care as excellent. The district court expressly recognized that this factor alone does not determine custody. See Minn.Stat. § 518.17, subd. 1 (2000) (stating “primary caretaker factor may not be used as a presumption in determining the best interests of the child”).

3. Intimacy Between Parent and Child

The district court found a strong attachment existed between A.K.M. and the Brauns but none existed between A.K.M. and appellant because of his canceled and failed visitations. Appellant argues that he was not afforded the opportunity to develop a relationship with A.K.M., but the record shows he cancelled or missed nearly one-third of the scheduled visitations. When he did attend visitations, appellant sometimes left early, did not interact significantly with A.K.M., and often D.W. spent most of the scheduled time playing with or holding the child. Appellant never telephoned the Bruans to inquire about his daughter and never recognized her first Christmas or birthday with gifts or other contact.

j. Interaction and Interrelationship of Child with Others Who May Significantly Affect the Child’s Best Interests.

The district court found there is a positive relationship between B.B. and A.K.M., a finding supported by the guardian ad litem’s testimony and report. The district court found that the activity at appellant’s home is cause for law-enforcement concerns from time to time and that D.W. furnished her minor children with alcohol. Uncontested testimony from a deputy sheriff supports these findings.

5. Child’s Adjustment to Home and Community

The district court found this factor favored the Brauns. The guardian ad litem found the Braun home to be a safe, enriching environment filled with age-appropriate toys and observed that A.K.M. is meeting all developmental criteria.

6. Length of Time Child Has Lived in a Stable Environment

The district court found that this factor favored the Brauns, who own and operate a day care and preschool and meet all of A.K.M.’s needs. The district court found that the proposed custodial home with appellant presents an undesirable living environment for the child. The guardian ad litem twice visited the home and described the yard as a “horrible mess” filled with 12 junked cars and an abandoned trailer. The guardian ad litem described the basement, including appellant’s bedroom, as a “squalid mess.” Large dogs growled at the guardian ad litem and at a smaller child in the home. D.W. explained to the guardian ad litem that some doors in the home had missing knobs because pet raccoons had destroyed them. The guardian ad litem observed posters of a naked woman and the grim reaper, and saw cats walking around on the kitchen counter-tops. The guardian ad litem reported dirty, worn rugs and linoleum flooring pieced together with a strip of wood.

A social worker also visited the home and testified that she observed: (1) dangerous stair railings; (2) large dogs, which she was told may have been part wolf and which she perceived as a threat to the child; (3) a sliding glass door that opened not to a deck, but to the outside high above the ground; (4) an open foundation; and (5) automobiles in the back yard. The photographs introduced as exhibits depict these and other safety concerns, including doors missing from lower kitchen cabinets. In addition, an expert explained the parent-child attachment risks A.K.M. would face if placed in appellant’s care.

7. Permanence, as a Family Unit, of the Existing Proposed Custodial Home

The district court found that this factor favors the Brauns. Appellant’s family is his only support system because, as he explained when asked why he did not complete a form listing six names of friends, neighbors, teachers, or anyone who knew him well, he did not have six friends. In addition, contacts made by the guardian ad litem volunteered that the home was “not a good environment.”

8. The Mental and Physical Health of the Parties Involved

The district court found that this factor favored the Brauns because appellant has unresolved chemical-use issues. D.W. testified that appellant, a minor, drank alcohol in January of 2000, and had smoked marijuana in the past but had not done so within four months of trial. The district court specifically found D.W.’s testimony not credible. School officials suspended appellant several times for alcohol and tobacco consumption on school grounds, and appellant twice dropped out of a chemical-treatment program. A counselor testified that appellant is in need of treatment. D.W.’s testimony concerning her own alcohol and drug use supports the district court’s finding that she, too, has unresolved chemical-use issues.

9. The Capacity and Disposition for the Parties to Give the Child Love, Affection, and Guidance, and to Continue Educating and Raising the Child in the Child’s Culture and Religion or Creed

The district court found that this factor also favored the Brauns because of the nurturing home environment they maintain and their specific testimony concerning their plans for raising A.K.M. The record shows that the Brauns have prepared for A.K.M.’s preschool, elementary-school, and high-school education, and are financially preparing for her college expenses. The Brauns attend church weekly and involve A.K.M. in observing their faith there and at home through meal and bedtime prayers. Susan Braun testified at length concerning the Brauns’ parenting and discipline style. Appellant, in contrast, offered limited testimony concerning his plans for A.K.M.’s care. When asked about his plans for raising A.K.M., J.W. testified, with no elaboration, that he would feed her, bathe her, and make sure she got to school.

Each of the findings has ample basis in the record, and although appellant and D.W. often supplied contrary testimony, the district court expressly found some of their testimony not credible or relied on expert opinion, and we defer to such determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (criticizing this court as going beyond its scope of review in a custody appeal by reweighing evidence). Accordingly, we conclude that the district court’s findings concerning AK.M.’s best interests are not clearly erroneous.

B. Unfitness

Appellant argues that these findings, even if not clearly erroneous, fail to rebut the presumption of parental fitness. Appellant contends that mere poverty is insufficient to show unfitness and claims that he never had the opportunity to establish a relationship with A.K.M.

Because of the inherent lack of objective custody factors, this court has recognized that “current law leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations” when the decision is supported by defensible findings. Vangsness, 607 N.W.2d at 477. All of the district court’s best-interests findings support the custody award to the Brauns. Since her birth, the Brauns have served as A.K.M.’s primary caretaker, providing excellent care and meeting her medical, educational, physical, and emotional needs in a warm, loving, and supportive environment. The Brauns, who operate a day-care and preschool, have a safe home filled with age-appropriate toys, and presented evidence of specific plans for meeting A.K.M.’s future needs, including planning for her college education. A.K.M. has a close relationship with her foster sister, B.B.

The findings also show that appellant is not presently fit to parent A.K.M. Appellant pursued custody of A.K.M. at the urging of, and with significant help from, his mother, D.W. The findings show that appellant did not take advantage of many of the scheduled visitations to bond with his daughter, and during those he attended, D.W., rather than appellant, interacted with A.K.M. Appellant never telephoned the Brauns to ask about A.K.M. and never recognized her on her birthday or at Christmas. Appellant, age 15 at A.K.M.’s birth, dropped out of school at age 16 after problems with alcohol, drugs, and truancy. While appellant testified that he had some babysitting experience, he had difficulty explaining exactly how he would care for A.K.M.

A social worker and the guardian ad litem identified problems in the appellant’s home that would have profound effects on A.K.M., including appellant’s unaddressed chemical-use problems, the fragile family unit, and numerous, significant, health and safety concerns. See Durkin, 442 N.W.2d at 152-53 (holding no abuse of discretion in finding presumption of parental fitness overturned where experts testified that returning child to natural parent would be detrimental to child). The district court took pains to explain that the custody conclusion in this case was not based on the Brauns’ role as A.K.M.’s primary caretaker, nor was it based on the limited income of appellant’s family. Although it is not disputed that appellant and his mother care about A.K.M. and wish to have her in their lives, on this record, we cannot say the district court abused its broad discretion by determining that respondents had overturned the presumption that appellant was fit to parent A.K.M. and that it was in A.K.M.’s best interests to be in the custody of the Brauns.

III.

Appellant next challenges, as an abuse of discretion, the district court’s pretrial order that visits between appellant and A.K.M. be supervised. As a preliminary matter, the district court’s order was temporary, made pursuant to Minn.Stat. § 518.131 (2000). In its conclusions of law, the district court has reserved the issue of future visitation. Because a temporary order made under Minn.Stat. § 518.131 is generally not a final, appealable order, we decline to address this issue. See Minn. R. Civ.App. P. 103.03 (addressing appealable judgments and orders); see also Hennepin County v. Griffin, 429 N.W.2d 283, 284 (Minn.App.1988) (order denying temporary custody not a final, appealable order).

IV.

Appellant also argues that the district court abused its discretion by ordering appellant to undergo a parenting evaluation, and contends that the report is not trustworthy. When addressing custody, district courts are required to

make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

Minn.Stat. § 518.17, subd. 1(a). As part of the proceeding, “the court may order an investigation and report concerning custodial arrangements for the child.” Minn. Stat. § 518.167, subd. 1 (2000). The decision to order such a report will not be overturned absent an abuse of discretion. Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn.App.1985), review denied (Minn. Dec. 30,1985).

In this case, on the guardian ad litem’s motion, the district court ordered appellant to undergo a parenting evaluation. The order reads, “[t]he Court will only consider the ‘capacity to parent evaluation’ for visitation purposes and the. report will have no impact on the Court’s final decision in this [custody] matter.” The district court did not rule on the issue of visitation, but instead reserved it pending the outcome of the evaluation. The date of the evaluation, July 5, 2000, falls after the district court’s order in this case, June 26, 2000, and the evaluation was not admitted into evidence during the custody proceeding. Consequently, the evaluation is outside the record in this case. See Minn. R. Civ.App. 110.01 (providing that the record on appeal includes papers and exhibits filed in the district court, together with transcripts). We decline to review the district court’s discretion in ordering a report because the report was not the basis of any district court order now on appeal.

V.

Finally, appellant contends that the district court abused its discretion by admitting the guardian ad litem’s report into evidence. Whether to receive evidence is discretionary with the district court. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990).

Appellant requested that the guardian ad litem be appointed by the court, and Minn.Stat. § 518.165, subd. 2a(5) (2000), provides that the guardian ad litem “shall” make “written reports on the child’s best interests” including “recommendations and the facts upon which they are based.” Id. The reports made for the purposes of a court-ordered evaluation are admissible as business records under Minn. R. Evid. 803(6). In re Welfare of R.T., 364 N.W.2d 884, 886 (Minn.App.1985). The admission of such records does not constitute an abuse of discretion if the parties were given an opportunity to cross-examine the author of the report. See Timmons v. Timmons, 298 Minn. 523, 524, 213 N.W.2d 335, 336 (1973) (no abuse of discretion where investigator subject to cross-examination).

The record establishes that appellant was permitted to see the contents of the report well before trial and that the guardian ad litem was subjected to rigorous and lengthy cross-examination. In addition, the guardian ad litem testified that County Deputy Sheriff Jay Nelson served as her contact for the law-enforcement-report information that appellant deems objectionable. Respondents called Nelson as a witness but appellant elected not to subject him to cross-examination despite his availability. Accordingly, the district court did not abuse its discretion by admitting the guardian ad litem’s report into evidence.

DECISION

The district court did not abuse its discretion by (1) permitting the foster parents to intervene in the custody proceeding; (2) determining that appellant is unfit to parent and that application of the statutory best-interest factors supports granting custody of the child to the foster parents; or by (3) admitting the guardian ad litem’s report into evidence under the business-record exception to the hearsay rule. We decline to review appellant’s claims concerning supervised visitation and the parenting evaluation because they are not properly before us.

Affirmed.

      . Several factors are not applicable in this case: the child's preference, the child's cul-iural background, and factors that relate to child abuse and contact between parents.

      . Significantly, this is not a termination-of-parental-rights case commenced under Minn. Stat. § 260C.301 (2000), which involves a more stringent test and the fulfillment of one or more statutory factors. Nor is this an adoption proceeding commenced under Minn.Stat. § 259.22 (2000). Custody is at issue here, not appellant’s status as A.K.M.’s parent.

      . At oral argument, appellant disputed the joint brief submitted by the Brauns and the guardian ad litem. Because there is no rule of Minnesota Civil Appellate Procedure pre-eluding joint briefing by parties with shared interests, and because we see no prejudice here, we decline to assign error to respondents' brief.