author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Mark Owen STAATS, Appellant.
    No. C8-02-174.
    Supreme Court of Minnesota.
    March 27, 2003.
    Rehearing Denied April 28, 2003.

      Richard Sand, Daniel S. Adkins, Richard Sand & Associates, PA, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Asst. County Attorney, Minneapolis, MN, for Respondent.
   OPINION

MEYER, Justice.

A jury convicted Mark Owen Staats of the crime of aiding and abetting the first-degree murder of Dustin Jirasek. Staats was sentenced to life in prison. In this direct appeal, Staats contends that the district court erred in admitting into evidence each of the five statements he gave to police, the court’s error was not harmless, and consequently his conviction should be reversed. We are asked to determine whether police obtained the first two statements in violation of the recording requirement of State v. Scales, 518 N.W.2d 587 (Minn.1994), and, if so, whether statements and evidence subsequently obtained should be suppressed under a “fruit of the poisonous tree” analysis. We also consider whether one of the statements was obtained in violation of Staats’ right to counsel.

Dustin Jirasek was shot and killed at close range while standing in the doorway of his home on December 16, 2000. Minnetonka police immediately suspected Mike Dahlin. When they spoke to Dahlin, he claimed he was with Mark Owen Staats in another location at the time of the murder. Sergeant Cziok and Officer Petersen of the Minnetonka police department drove to Staats’ home to investigate Dah-lin’s alibi.

Cziok and Petersen arrived at Staats’ residence around 5 p.m. on December 18, 2000. They introduced themselves and went inside. Petersen began questioning Staats about his relationship with Dahlin and their whereabouts on the night of the killing. Staats said he was at home until 10:50 p.m. on the night in question and then went to two bars with Dahlin before eventually retiring to Dahlin’s house. After speaking to Staats for fifteen or twenty minutes, Petersen gave him a Miranda warning and took a recorded statement, recapping the information Staats had given her.

Toward the end of this recorded statement, Staats’ mother arrived at the home. Cziok asked to speak with her in another room. After Cziok and Petersen noticed discrepancies between Staats’ description of the events on the night in question and his mother’s description, Petersen asked Staats to give a second recorded statement and Staats agreed. Petersen reminded him of his Miranda rights and recorded a second statement, in which Staats admitted that he waited in the truck while Dah-lin went up to the house of someone who was “harassing” Dahlin’s girlfriend. Staats claimed he heard a loud “bang” as he waited in the truck. The officers then arrested Staats and brought him to the police station.

Over the course of the next four days, while in police custody, Staats gave three more recorded statements to police and made an admission in court. His story changed several times as he described his activities on the evening of the murder. Eventually, police discovered that Staats and Dahlin were drinking, and Staats understood that Dahlin wanted to rough up Jirasek. Then Staats accompanied Dahlin to a K-Mart where they allegedly discussed which type of ammunition to purchase, and bought ammunition and stocking caps. Staats contributed change to the purchase when Dahlin came up short of cash. They drove to Jirasek’s house, and Staats was present in the doorway when Jirasek was killed. Dahlin and Staats then drove to a wooded area and disposed of the weapon.

The five statements from Staats incriminated himself and Dahlin, and provided police with crucial leads in their investigation. In the suppression hearing, the defense argued that the two interviews at Staats’ home were custodial, and because the police did not properly record them under Scales, the statements must be suppressed. Staats then introduced the report of an expert who found fifteen points at which the tape was stopped and restarted during the two statements at Staats’ home. Staats testified that during those stoppages he had requested an attorney, and that police had coerced him into making incriminating statements. In addition to arguing that these two statements should have been excluded under Scales, Staats argued that his last statement to police should have been excluded as a violation of his right to counsel.

The district court denied Staats’ motion to suppress the five statements after hearing testimony from Staats, his mother, and police officers. The district court acknowledged the seriousness of Staats’ contentions, but specifically rejected the testimony of Staats and found it not credible. It found that the first two statements in Staats’ home need not comply with the Scales recording requirement because Staats was not in custody when he gave them. The district court also concluded that Staats’ fifth statement was properly obtained because he reinitiated contact with the police after invoking his right to counsel. Staats did not testify at trial. The state’s evidence against him consisted primarily of Staats’ five recorded statements.

I.

We first decide whether Staats was in custody when the police recorded two statements in his home. If he was in custody, the recordings may be suppressed if they do not meet the standards directed by this court in State v. Scales, 518 N.W.2d 587 (Minn.1994). If the recordings fail the Scales standard, evidence subsequently obtained may also be suppressed under a “fruit of the poisonous tree” analysis. State v. Warndahl, 436 N.W.2d 770 (Minn.1989); see also Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court found that Staats was not in custody when the police recorded the two statements in his home and therefore the statements were not required to be recorded.

This court makes an independent determination about whether Staats was in custody. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998). With respect to the facts, however, we review the district court’s findings for clear error. State v. Hince, 540 N.W.2d 820, 823 (Minn.1995). We grant “considerable, but not unlimited, deference to a trial court’s fact-specific resolution of such an issue when the proper legal standard is applied.” State v. Champion, 533 N.W.2d 40, 44 (Minn.1995).

The test for determining whether Staats was in custody is whether

a reasonable person in the suspect’s situation [would] have understood that he was in custody. If a suspect has not yet been arrested, a district court must examine all of the surrounding circumstances and evaluate whether a reasonable person in the suspect’s position would have believed he was in custody to the degree associated with arrest.

State v. Miller, 573 N.W.2d 661, 670 (Minn.1998) (citations omitted). In reviewing “all of the surrounding circumstances” to determine whether a suspect was in custody, this court has looked to many factors. While no factor alone is determinative, this court has noted that the following factors may combine to indicate custody: police interviewing the suspect at the police station; the officer telling the individual that he or she is the prime suspect; officers restraining the suspect’s freedom; the suspect making a significantly incriminating statement; the presence of multiple officers (six); and a gun pointing at the suspect. See Wiernasz, 584 N.W.2d at 3-4; Champion, 533 N.W.2d at 43; State v. Rosse, 478 N.W.2d 482, 486 (Minn.1991). However, regardless of whether the suspect made incriminating comments, this court has said that if an interrogation is noncustodial at the outset and no circumstances change, it remains noncustodial. Champion, 533 N.W.2d at 43.

This court has recognized that one or more of the following circumstances may indicate a suspect is not in custody: questioning taking place in the suspect’s home; police expressly informing the suspect that he or she is not under arrest; the suspect leaving the police station at the close of the interview without hindrance; the brevity of questioning (fifteen minutes); the suspect’s freedom to leave at any time; a nonthreatening environment; and the suspect’s ability to make phone calls. See Wiernasz, 584 N.W.2d at 3-5; Hince, 540 N.W.2d at 824.

The circumstances in this case indicate that Staats was not in custody. The officers did not tell him he was under arrest, questioning took place in his home, and the tapes do not indicate any intimidation or show of force by the police. Several friends of Staats were allowed to continue playing video games in the living room while Staats was interviewed in the kitchen. The phone rang multiple times during both recorded statements, and the police officers did not prevent Staats from answering the phone. Staats moved around the house, borrowing cigarettes from friends and placing a barking dog in a bedroom. Importantly, the district court made a finding that Staats’ claim that he was coerced into making incriminating statements was not credible, based on the court’s observations of Staats’ demeanor on the witness stand at the suppression hearing. The interrogation was noncustodial in the beginning and no circumstances changed, so it remained noncustodial. Champion, 533 N.W.2d at 43. Even though the questioning cannot be said to be brief (a total of ninety minutes) and Staats was arrested immediately after the statements were concluded, the overall circumstances surrounding the interviews suggest he was not coerced into talking to the police officers and a reasonable person would not believe he was in custody.

Staats argues that the police officer’s decision to record his statements is proof that the officer considered Staats to be in custody. Officer Petersen testified at the suppression hearing that she did not consider Staats to be in custody, but gave the Miranda warning and recorded the statements in order to be cautious. We observed in Conger that recording even noncustodial interrogations would have significant benefits. State v. Conger, 652 N.W.2d 704, 709 (Minn.2002). While police are not currently required to record noncustodial interrogations, we want to encourage the practice and a rule that treats recording as indicative of custody would undermine that policy. See id. Because the police were not required to record the two statements in Staats’ home, we need not reach the question of whether the stoppages on the tapes violated the Scales standard, nor do we determine whether subsequent statements must be suppressed as “fruits of the poisonous tree.” We hold that Staats was not in custody when the police obtained two recorded statements in his home, and we affirm the district court’s admission of those two statements at trial.

II.

Staats seeks to suppress the last of his five statements to police claiming the statement was obtained in violation of his right to counsel. The district court denied suppression of the fifth statement because it found that even though Staats had invoked his right to counsel before the fifth statement, he reinitiated contact with the police and waived this right. We analyze this question in a three-step process. State v. Munson, 594 N.W.2d 128, 138-39 (Minn.1999). First, we determine whether Staats invoked his right to counsel before the police attempted to take the statement. Id. Second, if he invoked his right to counsel, we examine whether Staats reinitiated conversation with police. Id. Third, if he reinitiated conversation with police, we consider whether he properly waived his invoked right to counsel before the police proceeded to take the statement. Id. See also Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

We review a district court’s findings regarding whether an accused invoked his or her right to counsel for clear error. Munson, 594 N.W.2d at 139. But we conduct an independent review of whether the defendant reinitiated conversation with police or waived his or her invoked right to counsel. State v. Hannon, 636 N.W.2d 796, 804-06 (Minn.2001).

The right to an attorney is necessary to protect the suspect’s right to remain silent. See Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). Under Minnesota’s rule of law, police must stop interrogating an accused even if the accused makes an ambiguous or equivocal statement regarding counsel, so long as the statement is one “that could reasonably be construed as an invocation of the accused’s right to counsel, except for narrow questions designed to clarify the accused’s true desires regarding counsel.” State v. Risk, 598 N.W.2d 642, 648-49 (Minn.1999). The district court found that Staats made an unequivocal request for an attorney before giving the fifth statement. On appeal the state argues that the court erred in making that finding.

The facts surrounding Staats’ invocation of counsel are essentially undisputed. He was arrested on the evening of December 18, and his 36-hour hold was due to expire at noon on the 20th. See Minn. R.Crim. P. 4.02, subd. 5(1). After making his fourth statement to police, Staats told Officer Cziok on December 20 that he was concerned about his 36-hour hold having expired. At the suppression hearing, Cziok testified “[Staats] told me that he wanted to talk to a lawyer.” Cziok had the impression that Staats wanted to speak to a lawyer about why he was being held longer and why he had not yet been charged. When Cziok offered Staats a phone book, Staats declined the opportunity to use the phone, suggesting he would use a public defender. Cziok then informed the other investigators that they could not question Staats further unless Staats initiated the contact. The district court found that Staats initially made an equivocal statement regarding his desire for an attorney, but after the officers clarified his request “[t]he defendant’s equivocal statement became unequivocal.” We review the district court’s finding for clear error and conclude that the record amply supports the district court’s ultimate determination that Staats made an unequivocal request for counsel. We hold that Staats unequivocally invoked his right to counsel when he asked to speak to a lawyer about his 36-hour hold.

We turn to the question of whether Staats, having invoked his right to counsel, reinitiated contact with the police before giving his fifth and final recorded statement. The district court reviewed the circumstances and found that Staats had, in fact, initiated further contact with the police. As stated above, the question of initiation is a legal determination that receives independent review from this court. Munson, 594 N.W.2d at 141. Once an accused invokes a right to counsel, he or she cannot be subjected to further interrogation by police until counsel is provided, unless the accused initiates further communication with the police and then waives the right he or she previously invoked. Hannon, 636 N.W.2d at 805. The state has the burden of proving that Staats initiated conversation with the police after telling Cziok that he wanted an attorney. See Munson, 594 N.W.2d at 141. This court must apply a totality of the circumstances test to the district court’s findings in determining whether the state has met its burden. Id.

The United States Supreme Court has held that some questions from accused persons “are so routine that they cannot be fairly said to represent a desire * * * to open up a more generalized discussion relating directly or indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (mentioning specifically requests for a drink of water or a phone call). In Bradshaw, the accused asked, after invoking his right to counsel: “what is going to happen to me now?” Id. at 1045-46, 103 S.Ct. 2830. The Court characterized that as initiating further conversation because it “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” Id. at 1045, 103 S.Ct. 2830.

In this case, soon after Staats asked for an attorney to discuss his 36-hour hold, Sergeant Cayo showed Staats the paper in which the court extended the hold. As Cayo was on his way out of the cell, Staats requested to speak to one of the investigators. Investigator Petersen went to Staats and recorded her conversation with him. She asked what Staats wanted, and he said he wanted to know how long his hold was extended. Petersen informed Staats that his hold was extended for two days and talked to him about getting a shower and a phone call to his mother. The entire conversation lasted a few minutes. The totality of the circumstances does not lead us to conclude that Staats reinitiated substantive conversation about the investigation. He asked about the extension of his 36-hour hold, a shower, and a phone call to his mother. The routine nature of his questions and the fact that the conversation ended after a few minutes do not suggest a desire by Staats to open up a more generalized discussion about the investigation. We conclude that the state did not meet its burden of showing Staats initiated a substantive conversation with police after he invoked his right to counsel.

Even if the state could prove that Staats initiated contact with the police before giving his final statement, it failed to meet its burden of proving that Staats waived his invoked right to counsel. This court makes an independent determination, based on the district court’s findings of fact, “of whether the state has shown by a fair preponderance of the evidence that the suspect’s waiver was knowing, intelligent, and voluntary.” Hannon, 636 N.W.2d at 807. In the instant case, Officers Owens and Holland gave Staats a Miranda warning before they recorded the fifth statement, but neither officer discussed with Staats his previously invoked right to counsel. The state must show the suspect affirmatively acknowledges that he or she is revoking a previously invoked right to counsel. See id. Accord Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (emphasizing that a valid waiver is not established simply by showing that the accused responded to further police-initiated interrogation). The state cannot rely solely on the Miranda warning to establish waiver. Therefore, the state has not met its burden of proving Staats waived his invoked right to counsel. We hold that Staats’ constitutional right to counsel was violated when police obtained the fifth statement and the district court erred in admitting the statement into evidence.

III.

We turn now to decide what remedy, if any, should be granted to Staats for the district court’s error in allowing into evidence Staats’ fifth and final statement. We will not overturn his conviction if “admission of the statement[ ] was harmless beyond a reasonable doubt.” Hannon, 636 N.W.2d at 807. To meet the standard, the verdict must be “surely unattributable” to the error. Id. (quoting State v. McDonough, 631 N.W.2d 373, 384 (Minn.2001)).

We carefully examine the contents of Staats’ fifth statement to determine whether it contains any incriminating evidence not admitted through his other four statements, and the extent to which the state relied on the fifth statement in its case. In the fifth statement, Staats suggests that he may have contributed twelve cents to the purchase of the shotgun shells, but he does not make a definite admission as such. He mentions talking briefly with Dahlin at K-Mart about the types of ammunition Dahlin should buy, but Staats claims that he thought the shells were for shooting clay pigeons or beer cans the next day. The majority of the statement concerns where Staats and Dahlin went after the shooting and what each was wearing.

The crux of Staats’ admissions regarding his involvement in the crime is contained in the second through fourth statements; he went with Dahlin to K-Mart where the ammunition and black stocking caps were purchased; he carried a handgun to the scene of the killing; he stood in the doorway where Dahlin shot Jirasek; after leaving Jirasek’s house, they stopped to get rid of the guns; and Dahlin told him to keep quiet about the evening’s events. The only new admission in the fifth statement was the suggestion that Staats contributed change to the purchase of the shotgun shells at K-Mart. However, this admission was also made in open court at a pretrial hearing and a transcript of that hearing was received in evidence at the trial. Finally, while the state used the fifth statement to attack Staats’ credibility when it went through a litany of inconsistencies in the five statements, most of the inconsistencies were rooted in Staats’ earlier statements.

We conclude that because Staats made all of the key admissions in his first four statements, the jury’s verdict was surely unattributable to the admission of Staats’ fifth statement. We therefore hold that its admission, although error, was harmless beyond a reasonable doubt.

Staats’ conviction is affirmed.

      . In his first appearance before a judge on December 22, 2000, Staats volunteered that he had furnished twelve cents toward Dah-lin’s purchase of shotgun shells.

      . The disputes in this case over the reasons for the tape stoppages and what transpired while the tape was stopped would have been avoided if the officer had given more information before she stopped the tape and after she restarted it. Noting the reason for the stop and the time of stop before turning off the tape, and then the activity during the break and length of break once the tape is restarted, would avoid these types of accusations. See State v. Schroeder, 560 N.W.2d 739, 741 (Minn.App.1997) (noting that it would be prudent for officers to follow these procedures after an unrecorded period).


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Laura Lee LORSUNG, Appellant.
    No. C2-02-610.
    Court of Appeals of Minnesota.
    March 25, 2003.

      Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN; and Lisa Borgen, Clay County Attorney, Courthouse, Moorhead, MN, for respondent.
    Bradford Colbert, Attorney at Law, St. Paul, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; SHUMAKER, Judge; and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

Appellant Laura Lee Lorsung challenges her conviction for second-degree controlled-substance crime, arguing that she cannot properly be convicted of selling methamphetamines because she did not have the intent to complete the sale. We affirm in part, vacate in part, and add a cautionary instruction.

FACTS

On May 5, 2000, a confidential informant (Cl) working with police placed a phone call to appellant Laura Lee Lorsung in an attempt to locate methamphetamine. The Cl left a message, which was returned by appellant. Appellant agreed over the phone to sell the Cl two “eight balls” (⅜ ounce) of methamphetamine for $500. The parties agreed to meet behind a Wal-Mart store in Dilworth, Minnesota at 12:30 a.m.

At about 12:45 a.m., appellant and the Cl met and discussed again the price and quantity of the methamphetamine. The Cl wore a hidden electronic transmitter and carried $500 in serialized bills given to her by police for the purchase. The Cl gave appellant the money, and appellant told the Cl to wait while she went into an apartment to get the drugs. Appellant also asked the Cl if she could drive appellant home after the exchange. The Cl was to drive around to the other side of the building and meet appellant when she came out.

By 1:25 a.m., appellant had not returned. . The Cl and one of the officers attempted to find her in the building, but could not. Further attempts to locate appellant that night were also unsuccessful. Appellant was not arrested until July 17. Appellant was charged with controlled-substance crime in the second degree, sale (Minn. Stat. § 152.022, subd. 1(1) (2000)); and theft (Minn.Stat. § 609.52, subd. 2(4); 3(4) (2000)).

Appellant waived her right to a jury trial and agreed to have the district court determine her guilt based on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Appellant maintained throughout the proceedings that she had never intended to carry out the sale and that her sole purpose had been to steal the money the Cl offered. On May 29, 2001, appellant was found guilty of second-degree controlled-substance crime, sale, and theft. The district court sentenced her to 58 months imprisonment, with credit for time served. This appeal follows.

ISSUE

Could appellant properly be convicted of offering to sell a controlled substance if the state cannot prove beyond a reasonable doubt that she intended to complete the sale?

ANALYSIS

This case turns on an issue of statutory construction, which is a matter of law that this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). What evidence is necessary to convict under a particular statute is likewise reviewed de novo. State v. Tomlin, 622 N.W.2d 546, 548 (Minn.2001).

Appellant was convicted of second-degree controlled-substance crime, sale, under MinmStat. § 152.022, subd. 1(1) (2000). “Sale” is defined by Minn.Stat. § 152.01, subd. 15a (2000), to mean:

(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or
(2) to offer or agree to perform an act listed in clause (1); or
(3) to possess with intent to perform an act listed in clause (1).

Appellant was convicted under 15a(2), because she offered to sell the Cl methamphetamine in exchange for $500. Appellant has consistently argued that because she did not have the intent to complete the transaction, she cannot properly be convicted of the sale. Appellant asks this court to read an intent element into the statute, to avoid what she calls the absurd result that a person could be convicted of selling drugs based on pure speech.

Appellant urges the court to examine the legislative history of Minn.Stat. § 152.01, subd. 15a, which she argues shows that the legislature did not intend that people would be convicted under this section based on speech alone. We first note that we do not look to legislative history unless the language of the statute is ambiguous. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). We conclude that the language of Minn. Stat. § 152.01, subd. 15a, is unambiguous. It states that offering to sell is equivalent to selling. Minn.Stat. § 152.022, subd. 1(1), is similarly unambiguous and contains no specific-intent requirement. The legislature is free to criminalize certain conduct without regard to the actor’s intent. State v. Kjeldahl, 278 N.W.2d 58, 61 (Minn.1979).

Even if we were to accept appellant’s argument that an intent element should be read into the statute, appellant’s conviction would be affirmed. Intent may be inferred from a person’s words or actions. State v. Thompson, 544 N.W.2d 8, 11 (Minn.1996). Appellant pre-arranged a time and place to meet, as well as the price and amount of methamphetamine to be exchanged. Appellant appeared at the agreed-to place at the agreed-to time and accepted the money. A reasonable fact-finder could infer from appellant’s actions that at least until the time she failed to return with the drugs as promised, appellant intended to complete the sale.

Even considering the legislative history, appellant’s conviction is affirmed. Appellant directs the court to portions of the legislative history behind Minn.Stat. § 152.01, subd. 15a, arguing that this history shows that the legislature did not mean for pure speech to be punished under this statute. It does appear that the legislature was concerned that some “behavior consistent with fulfilling that offer” should occur before a person could be convicted under this section. See Hearing on S.F. No. 3 Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary (Mar. 16, 1989) (statement of James Kamin). This language does not refer to intent, only to some corroborating conduct. As explained above, appellant’s actions go well beyond pure speech and constitute corroborating conduct.

The parties cite two unpublished decisions of this court: State v. Bautista, 1998 WL 422221, *1 (Minn.App. Jul.28, 1998), review denied (Minn. Sept. 22, 1998); and State v. Rosillo, 2001 WL 881279, *1 (Minn.App. Jul.31, 2001), aff'd mem (Minn. Aug. 21, 2002). The parties attempt to show an inconsistency between these decisions, and each party urges this court to follow the reasoning of the unpublished decision that best supports its argument. We do not find an inconsistency. In Bau-tista, the defendant’s actions satisfied the essential elements of “offering to sell” a controlled substance, and we inferred his intent from those actions. Bautista, 1998 WL 422221 at *3. In Rosillo, the defendant’s actions satisfied the essential elements of “offering to sell” a controlled substance, and we determined that those actions were enough to corroborate the offer and protect against punishing “pure speech.” Rosillo, 2001 WL 881279 at *2. Here, as discussed above, appellant’s actions satisfy the essential elements of “offering to sell” a controlled substance, whether we read an intent element into the statute or not.

Appellant also argues that by convicting her of theft by swindle, the district court implicitly found that she did not have the intent to sell methamphetamine. Appellant directs the court to Judge (now Justice) Hanson’s dissent in our unpublished decision, Rosillo. In his dissent, Judge Hanson agreed with appellant that you must read an intent element into Minn.Stat. § 152.01, subd. 15a(2). Rosillo, 2001 WL 881279 at *4. If intent to complete the sale (whether expressed or inferred) is an element of controlled-substance crime, and intent not to complete the sale is an element of theft by swindle; the convictions are legally inconsistent. Id.; see also State v. Belfry, 353 N.W.2d 224, 226 (Minn.App.1984), review denied (Minn. Oct. 30,1984) (intent not to perform must exist for theft by swindle to occur). The trial judge in Rosillo, as if anticipating this logical dissent, dismissed the theft conviction after entering the conviction of the crime of offering to sell a controlled substance. Rosillo, 2001 WL 881279 at *1. We recognize the tension here, and so does the state. In open court at oral argument, the state’s attorney candidly recognized this tension, noting with approval the trial court’s decision in Rosillo to dismiss the conviction for theft (after upholding the conviction of offering to sell). The state agrees that if appellant’s conviction of offering to sell a controlled substance is upheld on appeal, her conviction for theft by swindle should be vacated. We agree, and we do. The conviction for theft by swindle is hereby vacated.

Appellant corroborated the genuine nature of her offer by meeting with the Cl and accepting the money. This is enough to support her conviction of second-degree controlled-substance crime. Because we determine that she was properly convicted of making an offer to sell methamphetamine, we vacate her theft-by-swindle conviction.

The attorney for the state further agreed that, for the sake of future administrative ease, prosecutors should treat this situation as “either/or,” rather than attempting to convict a defendant in appellant’s position with both crimes, offering to sell and theft by swindle.

DECISION

Because we find the evidence sufficient to support appellant’s conviction of second-degree controlled-substance crime, we affirm. We vacate appellant’s conviction of theft by swindle.

Affirmed in part, vacated in part.


author: PETERSON, Judge.

text:
    In the Matter of the CIVIL COMMITMENT OF Terry Ray JACKSON.
    No. CX-02-1732.
    Court of Appeals of Minnesota.
    March 25, 2003.
    Review Denied May 20, 2003.

      Warren J. Maas, Brooklyn Park, MN, for appellant Terry Ray Jackson.
    Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County.

      Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and FORSBERG, Judge.

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

   OPINION

PETERSON, Judge.

Appellant challenges his commitment as a sexually dangerous person, arguing that the district court abused its discretion when it based its finding that appellant engaged in a course of harmful sexual conduct on (1) recanted evidence; (2) evidence that the prosecutor deemed to be not credible; and (3) dismissed criminal charges. Appellant also argues that the district court abdicated its responsibility to interpret and apply the law when it permitted the court-appointed examiners to testify that he met the statutory criteria for commitment. We affirm.

FACTS

The state petitioned to commit appellant Terry Ray Jackson as a sexual psychopathic personality and as a sexually dangerous person based on a course of conduct that began almost 20 years ago and includes multiple criminal-sexual-conduct convictions.

In 1984, Jackson lured two girls, ages 13 and 14, into his apartment and sexually assaulted them. Jackson was 20 years old at the time. The victims, C.L. and D.W., were runaways who met Jackson on the street. Jackson was initially pleasant and friendly and invited the girls to his apartment! Once inside the apartment, Jackson immediately became demanding and sexually aggressive. He threatened to strike the girls with a large brass statue unless they performed sexual acts. During ré-peated sexual assaults, Jackson continued to threaten that he would hurt the girls if they did not do what he told them to do. He forced the girls to perform oral sex multiple times, attempted anal intercourse with D.W. several times, ordered the girls to engage in sexual contact with each other, and repeatedly forced vaginal intercourse on D.W. C.L. eventually escaped and called police. When the police arrived, both girls were hysterical and traumatized. They were taken to the hospital by ambulance.

A jury found Jackson guilty of first- and third-degree criminal sexual conduct, and in February 1985, he was sentenced to 43 months in prison. Jackson admitted to sexual conduct, but he claimed that the girls approached him seeking to exchange sex for money, and after he refused to pay them, they accused him of rape. In a 1992 psychological evaluation, Jackson admitted that his sexual contact with C.L. may not have been as consensual as he first assumed and attributed his criminal problems to substance and alcohol abuse.

Jackson was released from prison in January 1987, subject to conditions of supervised release. In February 1988, he was convicted of unauthorized use of a motor vehicle. Also in 1988, he was convicted of simple robbery following a purse-snatching incident in which he threatened the victim with a meat cleaver. He was also arrested several times for domestic assault and disorderly conduct.

In June 1988, Jackson was arrested for sexually assaulting P.J., a 36-year-old woman. Jackson and another man met P.J. on the street and persuaded her to come to Jackson’s apartment. Once at the apartment, the men ordered P.J. to take off her clothes and perform oral sex on both of them. When she did not comply fast enough, Jackson beat her on the head with his fists. Jackson hit, kicked, and choked P.J. and repeatedly threatened to kill her. At one point, he struck her in the head with a telephone and ordered her to lick the blood off her face. He forced her to perform oral sex numerous times during a four-hour period and beat her when she was not “doing it right.” He forced vaginal intercourse, attempted anal intercourse, and digitally penetrated P.J.’s rectum. She tried to escape several times, but each time Jackson caught her and beat her. He spilled beer on his chest and made her lick it off, and then he urinated on her face. When Jackson went into the bathroom, P.J. fled, but Jackson caught her. While she kicked and screamed for help, he dragged her and tried to ram her head into a building and against a car and threatened to kill her. When the police arrived, they saw Jackson standing over P.J., who was kneeling on the ground.

Jackson was charged with first-degree criminal sexual conduct, but the charge was dismissed after P.J. failed to appear to testify at trial. The matter was charged again in 1992 after P.J. was located and Jackson was arrested on another criminal-sexual-conduct charge stemming from an incident that occurred in 1991. P.J. was scheduled to testify at the trial on the new charges, but became upset when Jackson’s mother visited her to ask her to change her testimony against Jackson. Eventually, the case involving P.J. was dismissed because the statute of limitations had expired before the case was charged the second time. Jackson claimed that his sexual contact with P.J. was consensual and that he beat her only because he was drunk, high on cocaine, and believed that she was trying to steal from him.

In September 1991, Jackson sexually assaulted N.M., a 26-year-old woman. Jackson approached N.M. as she left a bar in Minneapolis around midnight. N.M. was intoxicated and upset after arguing with her boyfriend. She accepted Jackson’s invitation to come to his house for a drink. Once inside his house, Jackson became sexually aggressive and tried to take off N.M.’s clothes. When she resisted, Jackson struck her several times with his fist, choked her, and pulled her hair. While holding onto N.M., Jackson removed his pants and masturbated. He then removed her pants and forced his fingers into her vagina. Jackson also threatened to kill N.M. She could not escape because he had locked the door from the inside. Around 4:30 a.m., Jackson unlocked the door and let N.M. out. She ran into a newspaper delivery person who helped her call the police. The delivery person’s statement indicated that N.M. was bleeding profusely about her face with blood dripping on the sidewalk. When the police arrived, N.M.’s face was swollen, and she had dried blood on her lips. N.M. suffered numerous injuries, including two black eyes, a bloody nose, choke marks on her neck, and bruises, cuts, and scratches on her arms and legs.

Jackson was charged with first- and third-degree criminal sexual conduct. The charges were eventually dismissed because the prosecutor believed that N.M.’s credibility at trial would be undercut due to her level of intoxication at the time of the assault and her admission that she tampered with evidence when, after realizing that she had inadvertently laundered the shirt she was wearing when she was assaulted, she cut her finger and dabbed her blood on the shirt.

At the commitment hearing, Jackson denied having any sexual contact with N.M. He claimed that her story was incredible because he could have easily subdued her if he wanted to due to her relatively small stature and his strength and that N.M. left his home shortly after arriving because she referred to him as a “nigger,” and he asked her to leave.

In June 1992, Jackson attacked M.H., a 44-year-old woman with a mental disorder. Jackson approached M.H. in the early morning hours as she was walking home and invited her to his home to drink alcohol and smoke crack. M.H. agreed to have a drink. Twenty minutes after arriving at his house, Jackson became sexually aggressive and threatening. He hit M.H. in the head with his fist several times and bit her on her neck. Because the door was locked from the inside, M.H. could not escape. M.H. fought back, using a frying pan and a drapery rod. Eventually, when Jackson could not control M.H., he called 911 and told the operator that there was a crazy woman in his house. The sounds of struggling and M.H. yelling “date rape” can be heard on the tape of the 911 call. Soon after making the 911 call, Jackson opened the door and let M.H. out. M.H. went to a neighboring house, and the neighbor called 911. The neighbor described M.H. as nervous, frightened, crying, and disheveled. The neighbor said that M.H. showed her the injuries on her neck and told her that she was almost raped. M.H. suffered injuries with bruising on her neck, legs, arms, and forehead. A jury convicted Jackson of attempted first-degree criminal sexual conduct for his assault of M.H., and he was sentenced to 150 months in prison.

Jackson denied that he attempted to rape M.H. but admitted assaulting her after she went “crazy.” Jackson claimed that he and M.H. went to his house to smoke crack, and when he complained about the quality, she “went crazy” and assaulted him. He referred to his 911 call as proof that M.H. victimized him.

Jackson asserts that his habitual alcohol and cocaine use account for all of the difficulties in his life, and he believes himself to be the victim of racial inequities of the legal system. During psychological evaluations, Jackson admitted that his use of alcohol renders him powerless and that he is easily overcome by temptation. Jackson wa^ offered chemical-dependency treatment numerous times, but each time he either resisted treatment or his disciplinary violations interfered with treatment. Jackson has not entered or completed any sex-offender treatment programs, though he has been encouraged to do so on numerous occasions. Psychological-test results placed Jackson in categories where violent or sexual recidivism is highly likely to occur.

Jackson accumulated numerous disciplinary violations while in prison despite warnings and negative consequences. While serving the sentence for his most recent criminal-sexual-conduct conviction, Jackson accumulated more than 30 discipline reports due to violent assaults, disobeying orders, possessing contraband, destroying state property, and inappropriate sexual behavior. Jackson exposed himself to and masturbated in front of female guards and others numerous times between 1996 and 2000.

The district court found that Jackson’s offenses followed a distinct pattern. He engaged vulnerable women in friendly conversation with the promise of alcohol or drugs and took them to his home where he demanded sexual acts. When the women refused to submit to his demands, he threatened them and beat them. He maintained control over his victims with his strength and by locking them inside his house. When apprehended, he consistently claimed that any sex was consensual and described a scenario where he reacted because the woman did something to him. The court found that Jackson had no empathy with his victims and no plan to avoid future sexual offenses, in part because of his refusal to recognize his problem or enter treatment.

The district court concluded that there was not clear and convincing evidence that Jackson is a sexual psychopathic personality as defined in Minn.Stat. § 253B.02, subd. 18b (2002), but that there was clear and convincing evidence that Jackson is a sexually dangerous person as defined in Minn.Stat. § 253B.02, subd. 18c (2002).

ISSUES

1. Does the evidence support the district court’s finding that Jackson engaged in a course of harmful sexual conduct?

2. Did the district court abuse its discretion by permitting the court-appointed examiners to testify that Jackson met the statutory criteria for commitment as a sexually dangerous person?

ANALYSIS

On appeal from an order committing a person as a sexually dangerous person,

this court is limited to an examination of the [district] court’s compliance with the statute, and the commitment must be justified by findings based upon evidence at the hearing.

In re Knops, 536 N.W.2d 616, 620 (Minn.1995) (citations omitted) (commitment as mentally ill and dangerous); see Minn. Stat. § 253B.185, subd. 1 (2002) (provisions of commitment statute pertaining to persons who are mentally ill and dangerous to the public apply with like force and effect to person alleged to be sexually dangerous person). “The record is viewed in the light most favorable to the [district] court’s decision.” Knops, 536 N.W.2d at 620. Findings of fact shall not be set aside unless clearly erroneous, and due regard is given to the opportunity of the district court to judge the credibility of witnesses. Id.

The petitioner must prove by clear and convincing evidence that the standards for commitment as a sexually dangerous person are met. MinmStat. § 253B.18, subd. 1(a) (2002). This court reviews de novo whether the record contains clear and convincing evidence that each element of the standard for commitment has been met. In re Linehan, 518 N.W.2d 609, 613 (Minn.1994).

A “sexually dangerous person” means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.

Minn.Stat. § 253B.02, subd. 18c(a) (2002).

1. Jackson argues that the district court’s finding that he engaged in a course of harmful sexual conduct is not supported by clear and convincing evidence because the finding is based in part on three incidents where the victim (1) recanted her testimony; (2) failed to appear at trial to testify against him; or (3) was deemed by the prosecution to be not credible. Jackson contends that because only one of the incidents that the district court relied on was not based on highly questionable evidence, the district court’s finding that he engaged in a course of harmful sexual conduct is erroneous. We address each of the incidents that Jackson contends were shown only by highly questionable evidence:

a. Although a jury found Jackson guilty of attempted first-degree criminal sexual conduct in November 1992 for his assault of M.H., Jackson contends that the assault cannot be part of a course of harmful sexual conduct because M.H. recanted her allegations of rape at Jackson’s commitment hearing. But the district court found that M.H.’s testimony at the commitment hearing “contained inconsistent and incredible facts that varied remarkably from what she told the police in 1992,” and that M.H.’s testimony “was not credible and was obviously influenced by her contact with [Jackson’s] mother.”

The court also found that Jackson’s mother visited M.H. sometime before the commitment hearing and asked her to “tell the truth” and that Jackson admitted that he asked his mother to do this. Jackson’s mother persuaded M.H. to sign a prepared statement that she took with her to M.H.’s home, but the district court found the written statement “devoid of any persuasive value.”

In light of the district court’s determination that M.H.’s attempt to recant her allegations of rape was not credible, Jackson’s conviction of attempted first-degree criminal sexual conduct for assaulting M.H. was not shown only by highly questionable evidence. Recognizing this conviction as part of a course of harmful sexual conduct was justified by findings based upon evidence presented at the commitment hearing.

b. In 1988, Jackson was charged with first-degree criminal sexual conduct for the assault of P.J., but after P.J. failed to appear to testify at trial, the matter was dismissed. In 1992, Jackson was charged again for the assault after P.J. was located and Jackson was arrested for a sexual assault against N.M. P.J. was scheduled to testify at the trial on the charges involving N.M., but three days before the trial began, P.J. reported that Jackson’s mother had visited her and asked her to change her testimony against Jackson. On the morning of trial, P.J. reported that she was very upset that Jackson’s family had found her. The charges against Jackson for the assault against P.J. were finally dismissed because the statute of limitations had expired when charges were reissued in 1992.

Although the charges against Jackson for the assault on P.J. were ultimately dismissed, there is clear and convincing evidence in the record of the commitment proceeding that indicates that the assault occurred. The record contains police reports, the statement P.J. gave police at the time of the assault, and the statement that the other man who was present at the time of the assault gave police. There is no evidence that discredits PJ.’s report, and the police reports indicate that the police found Jackson outside standing over P.J., which corroborates P.J.’s report that Jackson chased her when she fled from his home.

Jackson testified at the commitment hearing that the sexual contact with P.J. was consensual, but the district court specifically discredited his testimony, finding it “incongruent and inconsistent.” Recognizing the assault on P.J. as part of a course of harmful sexual conduct was justified by findings based upon evidence presented at the commitment hearing.

c. Jackson argues that there is not clear and convincing evidence that he sexually assaulted N.M. in 1991 because the criminal matter was dismissed because the prosecutor believed that N.M. was not credible. But the commitment court found that the criminal matter was dismissed because the prosecutor believed that N.M.’s testimony would seem incredible to a jury due to her level of intoxication at the time of the assault and her admission that she tampered with evidence by adding blood to her shirt after she got home. The commitment court did not find that the prosecutor believed that N.M.’s account of the incident itself was not credible.

Furthermore, N.M. testified at the commitment hearing, and the court found that N.M. “explained her state of intoxication persuasively” and that her explanation for putting more blood on her shirt to improve the likelihood that Jackson would be convicted “appeared to be candid and reasonable, although the conduct she described would obviously be fatal to a successful prosecution.” The court also found that N.M.’s testimony at the commitment hearing closely followed statements given by corroborating witnesses to the police at or near the time of the assault. Recognizing the assault on N.M. as part of a course of harmful sexual conduct was justified by findings based upon evidence presented at the commitment hearing.

As to Jackson’s argument that two of the incidents never resulted in criminal convictions, this court has previously concluded that a course of conduct need not consist solely of convictions, but may also include harmful sexual conduct for which the offender was not convicted. In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn.App.2002).

2. Jackson argues that by asking the court-appointed examiners whether he met the statutory criteria for commitment, the district court permitted the witnesses to assume the court’s responsibility of determining the facts and applying the law. Jackson contends that answering this question required no psychological expertise and instead required statutory interpretation, which psychologists are not competent to provide.

Minn. R. Evid. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Minn. R. Evid. 704 provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

“[T]he reception of opinion evidence on ultimate issues rests largely in the discretion of the [district] court.” State v. McCarthy, 259 Minn. 24, 32, 104 N.W.2d 673, 678 (1960).

Jackson acknowledges that it is within the broad discretion of the district court to admit an expert opinion that embraces the ultimate legal issue, but he argues that allowing the examiners to testify whether he met the statutory criteria for commitment was beyond the court’s discretion because answering the question did not require the expertise of a psychologist. We disagree.

The specialized knowledge of a psychologist could assist the trier of fact to determine whether each of the three criteria in the definition of “sexually dangerous person” is met. As we have already stated, MinmStat. § 253B.02, subd. 18c(a), provides:

A “sexually dangerous person” means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(8) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.

“ ‘Harmful sexual conduct’ means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn.Stat. § 253B.02, subd. 7a(a) (2002).

Each of the criteria used to determine whether a person is a sexually dangerous person involves an assessment of the psychological state of either the person whose conduct is being assessed or a person who was harmed by the conduct, and the specialized knowledge of a psychologist may' assist the trier of fact in determining a person’s psychological state.

Furthermore, Minn.Stat. § 253B.07, subd. 3 (2002), provides that after a commitment petition has been filed, the court shall appoint an examiner. See also Minn. Stat. § 253B.18, subd. 1(a) (2002) (upon filing of petition alleging that proposed patient is a person who is mentally ill and dangerous to the public, court shall hear petition as provided in sections 253B.07 and 253B.08); Minn.Stat. § 253B.185, subd. 1 (provisions of commitment statute pertaining to persons who are mentally ill and dangerous to the public apply with like force and effect to person alleged to be sexually dangerous person). And the rules of civil commitment require the court-appointed examiner to examine the person for whom commitment is sought and prepare a

report stating the examiner’s opinion and the facts upon which the opinion is based. The report shall address:
(a) Whether the [person for whom commitment is sought] is * * * a sexually dangerous person, or a sexual psychopathic personality; * * *
(f) If the petition alleges that the [person for whom commitment is sought] is a sexual psychopathic personality and/or a sexually dangerous person, the report shall address each element set out in Minn.Stat. § 253B.02, subd. 18b and 18c respectively, including an opinion as to the likelihood that the [person for whom commitment is sought] will engage in future dangerous behavior.

These procedures for appointing an examiner to prepare a report explicitly require the report to include the examiner’s opinion whether the person for whom commitment is sought is a sexually dangerous person and explicitly require the examiner to address each of the criteria in the definition of a sexually dangerous person under Minn.Stat. § 253B.02, subd. 18c. In light of these explicit requirements, we conclude that when the district court asked the expert psychological witnesses whether Jackson met the statutory criteria for commitment, the district court did not invite the witnesses to assume the court’s responsibility of determining the facts and applying the law.

Finally, the district court’s findings of fact and conclusions of law demonstrate that it independently evaluated whether Jackson satisfied each of the elements for commitment. Although both experts testified that Jackson met the requirements for commitment as both a sexual psychopathic personality and a sexually dangerous person, the court concluded that Jackson met only the requirements for commitment as a sexually dangerous person.

DECISION

The district court’s finding that Jackson engaged in a course of harmful sexual conduct is supported by clear and convincing evidence, and the district court did not abuse its discretion by permitting the court-appointed examiners to testify whether Jackson met the statutory criteria for commitment as a sexually dangerous person.

Affirmed.


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Christopher Henry McNEIL, Appellant.
    No. C0-02-542.
    Court of Appeals of Minnesota.
    April 1, 2003.

      Mike Hatch, Attorney General, St. Paul, MN, and Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Stillwater, MN, for respondent.
    John Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant challenges his conviction of three counts of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subds. 1(a), (g), and (h)(iii) (2000). Appellant contends that numerous instances of prosecutorial misconduct caused him prejudice and denied him his right to a fair trial. The prosecution committed misconduct by failing to adequately prepare witnesses to avoid the mention of suppressed evidence, by asking a direct question eliciting suppressed testimony, by vouching for a witness’s credibility, and by making statements in closing arguments aimed at jury sympathy and inviting the jury to compensate the victim. But based on the particular facts of this case, we conclude that in light of the untainted evidence presented by the state these actions did not substantially prejudice the jury and deny the appellant a fair trial. Therefore, we affirm.

FACTS

The facts of this case are not in dispute on appeal. Appellant began a romantic relationship with T.L.M.’s mother (mother) in the summer of 1993. ' Approximately two months after he and mother met, appellant moved into the house where mother lived with her son and daughter, T.L.M. Appellant allegedly began sexually abusing T.L.M., then eight years old, shortly after he moved into the home. In the time period between September 1993 and July 2000, the incidences of abuse took place, in one manner or another, two to three times a week.

T.L.M. first reported the abuse to her mother in the summer of 2000. The police were not immediately contacted because mother wanted T.L.M. to speak first to Jean Hamm, T.L.M.’s therapist. After hearing T.L.M.’s report of abuse, Hamm notified the Oakdale Police Department.

Officer Rolf Hagland was assigned to investigate the allegations of abuse. Hag-land asked Lynn Hansen, a child-protection worker for Washington County Community Services, to assist him with his investigation. Hansen interviewed T.L.M. at the Oakdale police department. In this interview, T.L.M. recounted the incidences of abuse. T.L.M. also stated that appellant had a scar on his back related to a congenital condition (spinabifida) and described appellant’s penis as crooked or bent. Evidence at trial confirmed these unique physical features.

Prior to trial, appellant made several motions to suppress various testimonial evidence. The district court ruled that opinion testimony as to T.L.M.’s truthfulness, evidence that appellant had avoided meeting with Hagland, and evidence relating to appellant’s drug use would not be admissible at trial. But, eventually, testimony regarding all three of these suppressed subjects was heard by the jury.

The prosecutor admitted that despite the court’s ruling he had not instructed mother to avoid vouching for T.L.M.’s credibility. The prosecutor was unsure whether or not he instructed Hamm not to mention appellant’s drug use, but he asserted that he had told Hagland not to mention that appellant had missed appointments to meet with him.

T.L.M. had undergone a gynecological exam, the results of which appellant asserts were exculpatory, that appellant did not learn of until the trial had commenced. The results of the exam revealed that, although T.L.M. had alleged that appellant had penetrated her, T.L.M.’s vagina appeared “normal,” and although appellant had hepatitis A, B, and C, T.L.M. tested negative for all three diseases.

Appellant asserts that it is unlikely that, although three of the state’s witnesses knew of the exam, the prosecutor did not, and nondisclosure — intentional or inadvertent — warrants reversal under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Minn. R.Crim. P. 9.01, subd. 1(1)(6). The district court denied appellant’s motions for a mistrial and a continuance, and allowed appellant time to obtain an expert witness but ruled that the trial would otherwise go forward as scheduled. Appellant did not obtain an expert, but argued the exculpatory nature of the medical examination to the jury.

Appellant was found guilty of all three counts of first-degree criminal sexual conduct. This appeal followed.

ISSUES

I. Does the introduction of suppressed, evidence as a result of prosecutorial misconduct warrant reversal of appellant’s convictions?

II. Did a Brady violation occur warranting reversal of appellant’s convictions?

III. Were the prosecution’s improper statements in closing arguments unduly prejudicial, warranting reversal of appellant’s convictions?

ANALYSIS

I.

In cases involving serious prosecu-torial misconduct this court will reverse if the misconduct was so prejudicial as to have substantially affected the jury and denied appellant a fair trial. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).

Prior to trial, appellant moved to have various pieces of evidence suppressed. The district court ruled that opinion testimony concerning C.C.’s truthfulness, evidence of appellant’s drug use, and evidence that appellant had missed two scheduled meetings with Hagland were to be suppressed. Testimony by state witnesses about these prohibited subjects was eventually heard by the jury, and appellant duly objected.

During direct examination, the prosecutor specifically asked T.L.M.’s mother if she believed T.L.M.’s allegations of sexual abuse. Mother replied, “Yes.” There is no doubt that it was misconduct for the prosecution to ask if mother believed T.L.M. See Van Buren v. State, 556 N.W.2d 548, 551-52 (Minn.1996). The state has a duty to prepare its witnesses, prior to testifying, to avoid inadmissible or prejudicial statements. State v. Carlson, 264 N.W.2d 639, 641 (Minn.1978) (citing State v. Huffstutler, 269 Minn. 153, 130 N.W.2d 347 (1964)). A reviewing court is much more likely to find prejudicial misconduct when the state intentionally elicits impermissible testimony. State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974). But an intentional elicitation of impermissible testimony, although erroneous, will warrant reversal only when it is likely that the impermissible testimony substantially weighed on the jury’s decision. Id. at 563, 214 N.W.2d at 695.

While testifying on cross-examination, in response to an otherwise appropriate defense question calling only for a yes- or-no answer, Hamm stated that appellant was, at a particular time, in treatment for cocaine addiction. Defense counsel has a responsibility to limit questioning to avoid eliciting objectionable testimony, and appellant’s trial counsel did so in this case. State v. Underwood, 281 N.W.2d 337, 342 (Minn.1979). The statement was made in response to a yes-or-no question as to whether appellant was living with T.L.M. and her family at a particular time. Following the statement, appellant’s counsel objected, and the district court directed the jury to disregard Hamm’s statement.

To prevent its witnesses from offering improper testimony, the state has a duty to properly prepare them — defining for the witness the acceptable limits of their testimony — prior to trial. Underwood, 281 N.W.2d at 342. The prosecutor did not recall whether or not Hamm had been told she would not be permitted to testify about appellant’s drug use. Respondent argues that the prosecutor was not required to do so because the court’s order suppressing the evidence did not so direct him. But respondent cites no authority for this proposition. To the contrary, Minnesota law is crystal clear on this issue — the state has an absolute duty to prepare its witnesses to ensure that they are aware of the limits of permissible testimony. State v. Hogetvedt, 623 N.W.2d 909, 914 (Minn.App.2001), review denied (Minn. May 29, 2001).

The evidence that appellant abused T.L.M. was overwhelming and included graphic, consistent testimony from T.L.M. as well as her description of appellant’s unique physical characteristics. Given this evidence, we cannot conclude that the single occurrence of vouching, even though initiated by the prosecutor, or the mention by Hamm of appellant’s drug addiction substantially affected the jury’s decision.

During the course of the state’s direct examination of Hagland, notwithstanding the district court order prohibiting this testimony, Hagland mentioned twice that he had set up an interview with appellant; appellant’s counsel objected and sought a mistrial. The court denied the motion, stating that there was no testimony that appellant had missed the appointment or had been avoiding Hagland and then directed the jury to disregard the testimony.

A district court’s denial of a motion for a mistrial based on prosecutorial misconduct is reviewed under the abuse-of-discretion standard. State v. Scruggs, 421 N.W.2d 707, 716 (Minn.1988). The key element is whether the misconduct has prejudiced appellant, denying him his right to a fair trial. Id. While it is less clear that prosecutorial error occurred here, the analysis remains the same — even if error occurred, we cannot conclude that Hag-land’s testimony caused appellant unfair prejudice. The district court properly gave a curative instruction, and we find no abuse of discretion in the denial by the district court of a motion for a mistrial.

When a jury is exposed to potentially prejudicial material, a problem of constitutional magnitude has arisen — the accused’s right to an impartial jury has been threatened. Id. In evaluating whether an appellant has been denied his right to trial by an impartial jury, we must consider the source of the improper evidence and the number of jurors exposed to it. We must then weigh the prejudicial evidence against the evidence properly before the court and consider the effectiveness of any curative measures. Hogetvedt, 628 N.W.2d at 914.

We conclude that error did occur in the above instances, but the overwhelming weight of the evidence including compelling testimony by T.L.M. and her description of facts that she was very unlikely to know absent the abuse, lead inescapably to the conclusion that appellant was not denied his right to trial by a fair and impartial jury. We conclude that the jury was not, in all likelihood, prejudicially affected by the improper testimony.

II.

T.L.M. testified during cross-examination that Hamm had taken her to see a gynecologist following the report of sexual abuse. Although three of the state’s witnesses — T.L.M., mother, and Hamm— knew of the examination, both appellant’s counsel and the prosecutor indicated this was the first they had learned of the medical examination. Appellant moved for a mistrial and alternatively requested time to review the examination results. Appellant did receive a limited amount of time to review the documents, but the motion for a mistrial was denied. The examination results, which were initially incomplete when presented to the defense, once completely retrieved, indicated that T.L.M. had a “normal” vagina and that she tested negative for sexually transmitted diseases.

Appellant argued the examination results were exculpatory, and that the defense would have been different had the results been available during discovery. Appellant further argues that since three of the state’s witnesses were allowed to testify before the medical reports were reviewed by appellant’s counsel, his right to a fair trial was denied.

Minn. R.Crim. P. 9.01, subd. 1(1)(6), requires the state to disclose information in its possession “that tends to negate or reduce the guilt of the accused as to the offense charged.” Respondent insists that the medical examination was not in the possession of the prosecution and was unknown until T.L.M. mentioned it at trial.

A district court’s ruling on discovery issues is reviewed for an abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979). To demonstrate a due-process violation warranting reversal of a conviction, appellant must show that (1) the state willfully or inadvertently withheld evidence, (2) the evidence was favorable to the defendant, and (3) he or she was prejudiced thereby. Woodruff v. State, 608 N.W.2d 881, 886 (Minn.2000). Although it is difficult to understand how such a critical piece of information was not within the prosecution’s knowledge until after the commencement of trial, we cannot say the district court abused its discretion in denying appellant’s motion for a mistrial. Based on the record before this court, and given our limited standard of review in evidentiary matters, we cannot conclude that the state willfully or inadvertently withheld the evidence.

Additionally, the district court took steps to ameliorate the harm to appellant — allowing appellant access to the examination file, allowing appellant the option of recalling witnesses, and allowing appellant time to obtain an expert witness — and these ameliorative measures adequately addressed any inconvenience due to the late discovery of the evidence. While in cases of mid-trial discovery of relevant and significant evidence a reasonable continuance may at times be appropriate, the district court stated on several occasions that continuances would not be granted and that the trial would proceed. To obtain a continuance in such cases, an appellant must demonstrate that the result of the trial would likely be different but for the alleged error. State v. Hunt, 615 N.W.2d 294, 299 (Minn.2000). Appellant made no showing before the district court as to how a continuance would have benefited appellant’s case and, in fact, declined to call an expert witness. We conclude that appellant was not denied his right to a fair trial by the late discovery and denial of his requests for continuances.

III.

Appellant argues that the prosecutor committed prejudicial misconduct by arguing beyond the facts of the case and the elements of the charges in closing statements. Appellant’s trial counsel did not object during the state’s closing and, therefore, this court will reverse based on these alleged errors only if the comments were unduly prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn.1997). In cases such as this, where credibility is the central issue, special attention must be paid to statements that may prejudice or inflame the jury. State v. Porter, 526 N.W.2d 359, 363 (Minn.1995). When reviewing alleged misconduct in closing statements, this court must look at the whole argument in context, not just selective phrases or remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993). “Prosecutors in sexual abuse cases must abide by the highest behavior.” State v. Danielson, 377 N.W.2d, 59, 61 (Minn.App.1985) (quoting State v. Jahnke, 353 N.W.2d 606, 611 (Minn.App.1984)). Sexual-abuse cases inevitably evoke an emotional reaction, and any attempt by the prosecutor to exacerbate this natural reaction by making “any emotive appeal” to the jury “is likely to be highly prejudicial.” Id. Appellant argues that in the following portion of the state’s closing argument an appeal was made to the sympathies of the jurors:

[T.L.M.], this means that you’re not a virgin anymore. Her first sexual experience, not as an adult, not on her wedding night, not in college, not even in high school. As an eight year old, as a nine year old, as a ten year old. You can’t take away the burden that [T.L.M.] will carry with her the rest of her life. You can’t give her back her childhood. You can’t give her back her virginity. But you can give her justice.

Appellant contends that this statement was made to play on the sympathies of the jury and had nothing to do with the facts of the case or the elements of the crimes charged. We agree. These statements were wholly unrelated to the elements of the offenses with which appellant was charged or the evidence at trial.

Appellant also argues that the prosecutor improperly vouched for T.L.M.’s credibility during closing arguments. In explaining to the jury that it was implausible that T.L.M. had fabricated the alleged abuse, the prosecutor stated the following:

Did anyone think that was fun for her? No. No, it wasn’t. Maybe she lied about taking food from the fridge, but not about this. When [T.L.M.] was on that witness stand did she look to you like she was lying as she sat there and sobbed every time she had to recall the abuse? No.

Later, when explaining why T.L.M. testified as'she did, the prosecutor stated: “Because it’s the truth, that’s why.”

It is not proper for a prosecutor to endorse the credibility of a witness in closing statements. Porter, 526 N.W.2d at 364. A prosecutor may argue as to the credibility of witnesses but may not throw his own opinion onto the scales of credibility. State v. Ture, 353 N.W.2d 502, 516 (Minn.1984). It is the jury’s province to determine, of its own accord, what constitutes the truth. State v. Costello, 646 N.W.2d 204, 213 (Minn.2002). It is not for the prosecutor to tell the jury what he believes the truth to be.

Appellant also argues that it was improper for the prosecutor to invite the jury to punish appellant for exercising his right to trial. Appellant specifically points to the following statement in which the prosecutor attacks appellant for forcing C.C. to go through a trial: “To come in here and put her through this, shamed her for never telling anyone, [victimize her] all over again.” Article I, Section 6 of the Minnesota State Constitution guarantees a criminal defendant the right to a public trial by an impartial jury and to confront witnesses against him. Minn. Const, art. I, § 6. It is misconduct for a prosecutor to attack a defendant for exercising his right to a fair trial and to encourage the jury to punish him for what the prosecutor perceives as further victimization of the victim.

The assertion by respondent that there was no error in the prosecution’s closing argument is simply wrong. But although we recognize that it is improper for a prosecutor to evoke sympathy for a victim and encourage ire against a defendant for exercising his absolute right to face his accuser and be tried by a fair and impartial jury, this act of misconduct simply cannot, even when considered with the other errors, outweigh T.L.M.’s descriptive and detailed testimony. Therefore, we do not find these statements, although improper, to have unduly prejudiced appellant. See Whittaker, 568 N.W.2d at 450.

Prosecutors have a duty not to win a case by any means necessary but to see that justice is done. State v. Haney, 222 Minn. 124, 130, 23 N.W.2d 369, 372 (1946). Justice is done only when the accused, regardless of guilt or innocence, receives a fair trial. Id. at 130-32, 23 N.W.2d at 372-73. The cumulative actions and decisions, or in some cases, non-decisions, of the prosecutor in this case fall well short of the high standard of behavior required by Danielson and other appellate decisions; but given the extraordinary weight of the evidence, we cannot say appellant did not receive a fair trial.

DECISION

In order to reverse a conviction for serious prosecutorial misconduct, the prosecutor’s misconduct must be inexcusable and so serious so as to deprive appellant of a fair trial. State v. Bright, 471 N.W.2d 708, 711 (Minn.App.1991), review denied (Minn. Aug 1, 1991). Here, we conclude that the individual instances of prosecutorial misconduct are serious and inexcusable, but after careful consideration of the record in this particular case, we cannot say that appellant was denied his right to a fair trial. Therefore, we affirm.

Affirmed.

      . Appellant did not object, at trial, to mother’s credibility vouching but, as noted in the committee comment to Minn. R. Evid. 103, a pretrial motion to prohibit evidence operates as a timely objection, and further objection is not necessary to preserve the issue for review.

      . Appellant has hepatitis A, B and C.

      . We also note that the improper statements in this case ran afoul of the ABA standards for criminal prosecution, which the Minnesota Supreme Court has cited with approval:
      Standard 3-5.8 Argument to the Jury

      (b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
      (c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.
      (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.
      Standard 3-5.9 Facts Outside the Record
      The prosecutor should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.
      ABA Standards for Criminal Justice Prosecution Function and Defense Function, standards 3-5.8, 3-5.9 (Third Ed. 1993); see State v. Richardson, 514 N.W.2d 573, 577 (Minn.App.1994).


author: HARTEN, Judge.

text:
    CAROLINA HOLDINGS MIDWEST, LLC, a Delaware limited liability company, d/b/a Inter State Lumber, Respondent, v. James A. COPOULS, et al., Appellants, Citizens State Bank of Waverly, et al., Defendants, Scherer Bros. Lumber Co., Respondent, Flare Heating & Air Conditioning, Respondent, and Scherer Bros. Lumber Co., Defendant and Third Party, Plaintiff, v. Robb Gass, individually, Third Party, Defendant, and Carolina Holdings Midwest, LLC, a Delaware limited liability company, d/b/a Inter State Lumber, Plaintiff and Third Party, Plaintiff, v. Littfin Lumber Company, d/b/a Littfin, Third Party, Defendant, and Robb Gass Construction, Inc., Defendant and Second Third Party, Plaintiff, v. Britt J. and Michele Willis, d/b/a Design Classics Custom Home Designers, et al., Second Third Party, Defendants.
    No. CX-02-1200.
    Court of Appeals of Minnesota.
    April 1, 2003.

      John G. Westrick, Tammy L. Merkins, Westrick & McDowall Nix, P.L.L.P., St. Paul, MN, for appellants.
    Michael J. Dupont, William M. Hennes-sey, Wagner, Falconer & Judd, Ltd., Minneapolis, MN, for respondent, Carolina Holdings Midwest.
    Jonathan M. Bye, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for respondents, Scherer Bros. Lumber Co. and Flare Hearing & Air Conditioning.
    Considered and decided by HARTEN, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

HARTEN, Judge.

Respondents, subcontractors, filed mechanics’ liens on appellants’ property. Appellants challenge the district court’s determinations that service of both pre-lien notices and lien statements was adequate, that Minn.Stat. § 514.03 (2000) does not limit the amounts of the liens, that respondents are entitled to a personal judgment against appellants for the amount of the liens not satisfied by the foreclosure sale, and that respondents are entitled to an order for attachment. Because we see no error of law in these determinations, we affirm.

FACTS

Appellants James and Barbara Copouls contracted for a house to be built for $485,079. Respondents Scherer Bros. Lumber Co. (Scherer), Flare Heating & Air Conditioning (Flare), and Carolina Holdings Midwest, d/b/a Inter State Lumber (Inter State), are subcontractors who provided materials and labor for appellants’ house.

Scherer and Flare sent pre-lien notices by certified mail to the Copouls’ residence, where they were signed for by a mail carrier, who then put them with the rest of appellants’ mail inside their mailbox. Appellants do not deny that they received the notices.

Respondents filed mechanics’ lien statements and, using a lien service company, sent copies of the statements to the work site address by certified mail. Appellants had previously given the work site address as their address on the mortgage papers and directed their bank to send notices to that address. Nevertheless, the lien statements were not accepted at the work site address and were returned to respondents. When respondents sought to foreclose the liens, appellants moved the district court to dismiss the liens on grounds of improper service of both the pre-hen notices and the mechanic’s lien statements. The district court denied this motion.

The parties stipulated as to the amount of Inter State’s lien, but went to trial on the amount of Scherer’s and Flare’s hens. Appellants argued that Minn.Stat. § 514.03 (2000) operated to hmit the hens. The district court rejected that argument and entered judgment establishing the hen amounts.

When respondents became concerned that appellants might demolish the house that was security for their hens, appellants’ counsel reassured them that they would be notified before demolition occurred. But without notifying respondents or their own counsel, appehants demolished their house. Respondents then moved for an order to attach appellants’ property. The district court granted the motion but stayed the order for three days to ahow appellants to post bond, which they did.

Respondents moved to amend the judgment to include interest, attorney fees, language on the priorities of mechanics’ hens, and foreclosure sale procedures. Appellants also moved to amend, arguing that Minn.Stat. § 514.03 limited the hens and that attachment was improperly ordered. In a supplementary motion, appellants raised the issue of the adequacy of the pre-lien notice.

ISSUES

1. When property owners have acknowledged receipt of pre-lien notices sent in good faith to their current residence by certified mail and signed for by a mail carrier, does the fact that the owners did not personally sign for the pre-hen notices void the hens?

2. When mechanic’s hen creditors send copies of hen statements by certified mail to the work site address given by the property owners as their address, does the fact that the mailed copies are not accepted at that address void the hens?

3. Does Minn.Stat. § 514.03 (2000) hm-it the amounts of mechanics’ hens to the reasonable value of the property?

4. Are mechanic’s hen creditors whose hens are not satisfied by the proceeds of a foreclosure sale entitled to a personal judgment against property owners who have demohshed the property that secured the hens?

5. Are mechanic’s lien creditors whose liens are not satisfied by the proceeds of a foreclosure sale entitled to attach the asset of property owners who have demolished the property that secured the liens?

ANALYSIS

All the issues appellants raise are questions of law. We review questions of law de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

1. Service of Pre Lien Notices

By sending the pre-lien notices to appellants’ residence, respondents made a good-faith effort to comply with Minn.Stat. § 514.011, subd. 2(a) (2000), providing that subcontractors must notify property owners of potential liens by personal delivery or certified mail.

A person entitled to a lien does not lose the right to the lien for failure to strictly comply with this subdivision if a good faith effort is made to comply, unless the owner or another lien claimant proves damage as a direct result of the failure to comply.

MinmStat. § 514.011, subd. 2(b). Appellants have not proved damages as a direct result of the fact that the certified mail was signed for by appellants’ mail carrier rather than appellants. Therefore, that fact does not void respondents’ hens.

Appellants rely on Merle’s Constr. Co. v. Berg, 442 N.W.2d 300, 302 (Minn.1989). But Merle’s is distinguishable: it involved a dispute as to whether notice had in fact been given, because there was no proof of service and neither the notice nor a copy appeared in the record. Id. Here, there is no question that notice was given. The district court did not err in concluding that the liens were not void because of defective service of the pre-lien notices.

2. Service of Lien Statements

Appellants contend that the liens are void because the lien statements were sent to the work site, where no one was living, and returned to the sender undelivered. Har-Ned Lumber Co. v. Amagineers, Inc., 436 N.W.2d 811, 814 (Minn. App.1989), rejects the argument “that service by certified mail is only complete upon receipt by the addressee.” Id. Notice has been found when certified mail is properly directed to an intended recipient, even though not actually received. Id. Here, the lien statements were properly directed to appellants.

Moreover, the lien statements were sent several months after the completion date to the work site address that appellants themselves had given as their address when they obtained a mortgage; it was not unreasonable for respondents to assume that mail sent to this address would reach appellants. The district court’s conclusion that the liens were not void because of inadequate service was not an error of law.

2. Minn.Stat. § 514.03

Minn.Stat. § 514.03, subd. 2(c) (2000), provides that “[t]he total sum of all liens * * * shall not exceed the * * * contract price * * * less * * * [pjayments made by the owner * * * to the contractor.” The total sum of all liens here did not exceed $328,996 (the contract price of $485,079 less the $156,083 made in payments). Appellants contend that, notwithstanding the statutory language, the correct measure is not the contract price but the reasonable value of the house and that the hens should have been reduced accordingly. They rely on E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 237 N.W.2d 627, 630 (1976). But E.C.I. does not concern the statutory subdivision to which appellants refer, and it involved a single contractor’s hen, not a group of subcontractors’ hens. Appellants’ rehance on E.C.I. is misplaced.

The district court did not err in refusing to depart from the statutory language.

4. Personal Judgment

Appellants argue that respondents were not entitled to a personal judgment against them because respondents are not their creditors. The district court did not give respondents an unqualified personal judgment against appellants, nor does a mechanic’s hen confer an unqualified personal judgment.

The judgment in [a mechanic’s hen] case is not an ordinary personal judgment against the owner or party personally hable for the debts, so as to be a hen upon other real estate of the owner or party personally liable or to permit execution before the sale of the real estate has been completed. The mechanics hen claimant must exhaust his rights against the property by sale before any deficiency judgment may be entered personally against a party personally liable.

Karl Krahl Excavating Co. v. Goldman, 296 Minn. 324, 327-28, 208 N.W.2d 719, 721 (1973) (citations omitted). Thus, although respondents do not have rights against appellants’ other property until they have exhausted their rights against the property sale proceeds, they will have a right to a deficiency judgment if the property sale does not satisfy the liens.

Moreover, because appellants voluntarily and surreptitiously demolished the property that was the security for respondents’ liens, respondents are entitled to a personal judgment against them for any lien amounts not satisfied by the foreclosure sale. The district court did not err in giving respondents an appropriately qualified personal judgment against appellants.

5. Order for Attachment

It is undisputed that appellants’ attorney led respondents to believe that appellants would notify them before demolishing the house that was security for the mechanics’ liens and that appellants demolished the house without notifying respondents or their own attorney.

An order of attachment that is intended to provide security for the satisfaction of a judgment may be issued * * *
(1) when the respondent has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, any of the respondent’s nonexempt property, with intent to delay or defraud the respondent’s creditors * * *.

Minn.Stat. § 570.02, subd. 1 (2000). The district court stated that “[appellants’] actions demonstrate intent to delay or defraud [respondents]” and that “[respondents] are entitled to attach [appellants’] property to satisfy any judgment since [appellants] destroyed [respondents’] previous security.”

Appellants challenge the district court’s statement that their demolition of their house indicated an intent to delay or defraud respondents, claiming that the demolition of the house raised the value of the property. But we note that appellants’ decision to demolish the house made it impossible for respondents to determine whether the demolition did or did not raise the property value.

Appellants also argue that respondents are not entitled to an attachment order because only creditors have the right to attach and respondents are mechanic’s lien claimants, not judgment creditors. Minn. Stat. § 570.011 (2000), providing the definitions relevant to the statutes on attachment, does not define creditor. Absent a particular definition of a word or phrase, the ordinary definition applies. Minn.Stat. § 645.08(1) (2002). A creditor is “a person or firm to whom money is due.” Webster’s Unabridged Dictionary 473 (2d ed.1998). Respondents are firms to whom money is due. See also Minn.Stat. § 513.41(4) (2002) (defining creditor in relation to fraud as “a person who has a claim”); Minn.Stat. § 513.41(3) (2002) (defining claim as “a right to payment, whether or not the right is reduced to judgment”). The district court did not err in ordering attachment of appellants’ property.

DECISION

The district court did not err as a matter of law in concluding that (1) mechanics’ liens are not void because property owners do not personally sign the certified mail receipts of the pre-lien notices; (2) mechanics’ liens are not void because mailed copies of the lien statements are not accepted at the work site address given by the property owners as their address; (3) Minn.Stat. § 514.03 (2000) does not limit the amount of mechanics’ liens to the reasonable value of the property; (4) mechanic’s lien creditors are entitled to a personal judgment against the property owners for lien amounts not satisfied by the foreclosure sale when the property owners have demolished the property without the creditors’ consent; and (5) mechanic’s lien creditors are entitled to attach the owners’ personal property when the amounts of the liens are not satisfied by the foreclosure sale and the property owners have demolished the property without the creditors’ consent.

Affirmed.

      . Appellants also raised the issue of whether respondents were entitled to liens absent substantial performance. We do not address this issue because it was not raised at trial. "It is a well-settled principle that issues not presented at trial cannot be raised on appeal.” Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n. 2 (Minn.1979) (citations omitted); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (this court may consider only issues that the record shows were presented to and considered by the district court; a party may not obtain review by raising the same general issue under a different theory). In any event, • appellants offer no support for the legal theory that the validity of a mechanic's lien is contingent on substantial performance.

      . Appellants also argue that the parties’ erroneous stipulation that the pre-lien notices were sent to the job site, not to their residence, governs this issue. But this stipulation was not before the district court at the time it made its decision, and, in any event, appellants concede that it is erroneous because "the pre-lien notices did in fact list [appellants’] current address.”

      . The district court found that the property sale is unlikely to satisfy the liens, and appellants do not dispute this.

      . We note that this issue is of limited practical significance because appellants posted a bond.