text:
    STATE of Minnesota, Respondent, v. Philip VANCE, Appellant.
    No. A05-15.
    Supreme Court of Minnesota.
    May 25, 2006.

      John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Hastings, MN, for Respondent.
   OPINION

PAGE, Justice.

On October 5, 2004, a Dakota County jury found appellant Philip Vance guilty of first-degree premeditated murder, first-degree felony murder during an aggravated robbery, and second-degree intentional murder for the shooting death of Khaled AI-Bakri (Al-Bakri). The trial court judge sentenced Vance to life imprisonment. In this direct appeal, Vance raises a number of issues. He contends that the trial court erred when it denied his motion to admit certain alternative-perpetrator evidence and reverse-Spreigl evidence. He also contends that he was denied a fair trial due to the cumulative prejudicial effect of errors by the trial court, including the admission of evidence that witnesses were threatened, felt threatened, or were fearful; the trial court’s failure to sua sponte give a cautionary instruction with respect to that evidence; and the trial court’s failure to sua sponte give a limiting instruction with respect to unredacted statements by police officers asserting that Vance was lying. Pro se, Vance argues that: (1) newly discovered evidence entitles him to a new trial; (2) the trial court erroneously excluded introduction of a relevant letter; and (3) the prosecutor committed misconduct when she cried during her opening statement and while presenting the state’s case. We affirm.

Tariq Bakkri (Bakkri), Al-Bakri’s brother and the owner of Sabreen’s Supermarket (Sabreen’s) in South Saint Paul, was working at Sabreen’s on the afternoon of December 22, 2002. At about 2:00 p.m., Al-Bakri arrived and offered to work the rest of the afternoon and evening. Bakkri left the store between 9:27 p.m. and 9:30 p.m. At about 9:41 p.m., Kathleen Johnson arrived at Sabreen’s. When she entered the store, she observed a man in a black mask taking money out of the cash register. She thought she heard the man shout something and she saw him make a “motion like he was going to pull a gun out from his pants.” She immediately ran from the store to her car. As she drove away, she observed two people running out of the store. One person was slightly taller than the other. Both were slender and wore baggy pants, hooded sweatshirts, and masks.

Also around 9:30 p.m., four teenagers, including D.M., walked to Sabreen’s. As they were walking, one of the teenagers noticed a car parked in an alley just outside of Sabreen’s. He described the car as a four-door, “regular sized car,” “darkish,” shiny, and “tinted gray.” Another of the teenagers testified that it was a big, dark, “grayish-black,” four-door car. The group observed two men run from the store, jump into the-car, and drive away quickly. One of the teens described the two men as wearing baggy clothing, while another observed that the two men wore sweatshirts and dark jeans.

When the teenagers entered the store, they could not locate the clerk. As they waited at the counter, D.M. noticed that the cash register was open. He leaned over the counter and saw Al-Bakri lying on the floor, motionless. He also noticed some blood. The teenagers immediately ran back to D.M.’s home and called the police.

Al-Bakri was pronounced dead at the scene. The cash register indicated that the cash drawer was last opened at 9:35 p.m. for a no-sale transaction. The police found four cartridge casings from a .22 caliber gun on the floor of the store. Two of the cartridges were determined to be Winchester Western brand ammunition and two were CCI brand ammunition. Two bullets were found in Al-Bakri’s body, a third was found in a flashlight near his body, and the fourth was not located. The police were unable to find any physical evidence at the scene connecting Vance or any other suspect to the murder and the murder weapon was never recovered.

A number of witnesses testified about Vance’s activities before and after the murder on December 22. John Martin, a convicted burglar, testified that on December 22, 2002, he, Vance, and Dominic Johnson Were at the Radisson bar in downtown St. Paul between 7 p.m. and 8 p.m. While at the bar, the three discussed the upcoming holidays, and Vance and Johnson discussed making arrangements to buy presents for their children. Martin testified that the three did not discuss a robbery while at the Radisson bar. According to Martin, around 8:30 p.m., Johnson made a phone call from Vance’s cell phone to Yvonne and Nicole, two women from South St. Paul. Vance and Johnson told Martin they were going to South St. Paul and invited him along. Martin declined, and the three left the bar. As Martin was heading to his bus, he saw Yvonne and Nicole arrive in a four-door, dark blue Chevy Corsica. The car pulled up to the area where Vance and Johnson were standing.

Melissa Stites, the head bartender at the Radisson bar, testified that on December 22, 2002, Vance, Johnson, and a third man came into the bar around 7:30 p.m. Stites knew both Vance and Johnson, and she testified that they were “more secretive” than usual that evening. When Stites asked them what was going on, Vance replied “that they were getting their plan on.” Stites interpreted “getting their plan on” to mean “planning to commit a robbery.” Vance and Johnson were in the Radisson bar for about half an hour. As they were leaving, Stites commented that tips were low that night, because Vance and Johnson normally did not tip her. Vance responded, “Don’t worry, Baby, when I get back there’s going to be plenty of money.”

Eric Griffin, an acquaintance of Vance and Johnson, testified that he saw Vance and Johnson arrive at The Buttery, a bar in St. Paul, sometime, after 10:00 p.m. on December 22, 2002. Griffin testified that Vance’s demeanor was “kind of wild * * * from drinking.” Vance was wearing a black hooded sweater and loose-fitting dark blue jeans. Vance told Griffin “that he had did a robbery and it had gone bad, and the guy he was robbing, he had f_ed him up.” Vance told Griffin that the robbery had occurred in South St. Paul.

Colleen McManus, the night manager at The Buttery, saw Vance and Johnson outside the bar as she arrived at work sometime between 10:15 p.m. and 10:30 p.m. on December 22. She saw the two get out of a car, which she believed was a four-door, “silver, light green” midsized car. Johnson wore a white hooded sweatshirt, a light blue Starter jacket, dark jeans, and white tennis shoes. Vance wore a dark blue jacket with leather sleeves, dark pants, and a dark hooded sweatshirt. As she entered the bar, she saw Vance and Johnson talking to a group of people, which included Maynard Cross. Vance approached McManus and asked her not to “throw him out” of the bar. Vance and Johnson both seemed nervous. When Mc-Manus asked Vance what was wrong he said, “I really f_ed up this time.” She responded, “It couldn’t have been that bad,” and he said, “Oh, yeah, it was. I really did it this time. I did it this time.” At one point, Vance started crying, which McManus noted was unusual for him. When she again inquired about his agitation, he said, “Well, I didn’t mean for it to happen, it wasn’t supposed to happen that way.” He then made a motion that Mc-Manus interpreted to mean that he had shot someone. When she asked him if he had shot someone, he replied, “It wasn’t supposed to happen like that.”

McManus immediately called to report her conversation with Vance to her brother, John McManus, a police officer assigned to the Minnesota Gang Strike Force (MGSF). On December 23, 2002, Stites also reported the conversation she had had with Vance at the Radisson bar to Officer McManus, whom she knew because she had previously provided information to him.

Stites agreed to participate in an undercover investigation of Vance and on January 3, 2003, Stites met with Vance and Johnson at The Buttery. Stites was meeting with Vance under the guise of purchasing a gun from him, with the hope that she would be able to elicit information about the murder. The police had arranged to intercept Stites’ conversation with Vance. At some point during the meeting, Vance asked Stites to accompany him to the Lab, another St. Paul bar. Johnson did not accompany Stites and Vance to the Lab.

At the Lab, Stites asked Vance if he had any guns that she could buy and if he would teach her how to shoot. Vance told her that he had four guns. When asked by Stites if he had ever shot anyone, Vance replied that he had “shot a guy two weeks ago over south side five times in the back.” Police officers who listened to the conversation corroborated Stites’ recollection, with slight variations in the exact words that were used to describe the prior shooting: “Two weeks ago Winchester on the south side * * * I shot a guy five times in the back”; “Yes, about two weeks ago over south, Boo * * * I shot a guy in the back five times”; “he shot somebody in the south side five times and it was a Winchester”; “he had shot a guy five times in the back on the south side * * * I shot a guy two weeks ago on the south side.” Vance subsequently sold a .22 caliber handgun to Stites. That gun did not match the weapon used to kill Al-Bakri.

The state also presented testimony from witnesses who were incarcerated with Vance before trial. According to Isaac Hodge, he and Vance were incarcerated at the Sherburne County jail together in 2003. At one point, Vance and Hodge were looking at a newspaper and Vance saw a picture of a man who was later identified as Maynard Cross, one of the people seen talking to Vance at The Buttery the night of the murder. Vance stated, “Man, this dude put my name in some bulls_t.” Hodge also testified that Vance, without going into great detail, told him that he was involved in a murder-robbery. In addition, Vance said “it wasn’t worth it,” which Hodge interpreted to mean that the amount of money that Vance got in the robbery did not justify the murder. Tyrone Crawford, who was housed at the Sherburne County jail around the same time, had a similar conversation with Vance, in which Vance told him that Vance “shot a guy at the grocery store, and he was concerned that that was going to come back on him.” Vance also indicated that Cross “was going to testify against him about shooting somebody * * * at a grocery store.”

John Nunn was housed at both the Sherburne County jail and Sandstone Prison with Vance. Nunn testified that Vance told him that he had committed a robbery in which someone “got murked,” which Nunn interpreted to mean the person was either hurt or shot and killed. Vance told Nunn that he was concerned about the police finding a .22 caliber handgun that had been used in the robbery.

Dontay Reese testified that, while in the Dakota County jail with Vance, he had multiple conversations with Vance about a murder in which Vance was involved. Vance told Reese, in reference to shooting the clerk, that “it wasn’t supposed to go down like that” and “[Johnson] said my name and it wasn’t supposed to go down like that. I was zooted, I was drunk and I gave the dude five. And then we got the money and got lit.” Vance also told Reese that Johnson, Vance, and Martin were at a bar and left after Johnson called two women, named Yvonne and Tiffany or Nikki, to get a ride to Johnson’s cousin’s house. Vance told Reese that the women drove a blue Corsica or Accord. Vance and Johnson then met another man and went to a “mom-and-pop store” where Vance and Johnson went inside to commit a robbery. During the robbery, Johnson said Vance’s name, so Vance shot the clerk. Vance told Reese he used a “deuce-deuce” to kill the clerk, which Reese interpreted to mean a .22 caliber handgun.

Gerónimo Estrada testified that he was incarcerated with Vance at the Ramsey County Workhouse and that they discussed the murder on multiple occasions. According to Estrada, Vance told Estrada that when he entered the store he immediately ran behind the counter and grabbed the clerk, who was startled and did not know what was going on. Vance said the clerk was hysterical and crying saying, “please don’t hurt me,” and that Vance shot the clerk once or twice in the back of the head. Vance also told Estrada what they took from the store, which included money, cigarettes, plastic bags, lottery tickets, and a telephone. Officer Daniel Vujovich testified that those were the items taken from Sabreen’s and that at no time during the investigation was the list of items stolen from Sabreen’s disclosed.

At trial, the state introduced recordings of interviews Officer Thomas Kreager and other police officers conducted with Vance during the investigation. During the course of the interviews, the officers accused Vance of lying.

Vance did not testify and presented no witnesses in his defense.

I.

Evidentiary rulings are within the discretion of the trial court and will not be overturned absent an abuse of that discretion. State v. Gutierrez, 667 N.W.2d 426, 436 (Minn.2003). The appellant has the burden of establishing that the trial court abused its discretion and that the error was prejudicial. Huff v. State, 698 N.W.2d 430, 435 (Minn.2005).

We first address Vance’s claim that the trial court abused its discretion when it excluded certain alternative-perpetrator evidence. Vance contends that the trial court’s exclusion of this evidence denied him his constitutional right to present a complete defense. When identity of the perpetrator is at issue, the defendant may present evidence showing that an alternative perpetrator committed the crime. State v. Blom, 682 N.W.2d 578, 621 (Minn.2004). Alternative-perpetrator evidence is admissible if it has an inherent tendency to connect the alternative party with the commission of the crime. State v. Jones, 678 N.W.2d 1, 16 (Minn.2004). Once the defendant establishes that the evidence has an inherent tendency to connect the alleged alternative perpetrator to the commission of the crime, “ ‘it is permissible to introduce evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts which would tend to prove the third person committed the act,’ in order to cast a reasonable doubt on the state’s case.” Id. (quoting State v. Hawkins, 260 N.W.2d 150, 159 (Minn.1977)).

The defendant may also “present evidence of other crimes, wrongs, or bad acts committed by the alleged alternative perpetrator in order to east reasonable doubt upon the identification of the defendant as the person who committed the charged crime.” Id. This evidence is often referred to as revers e-Spreigl evidence. Id. In order for revers e-Spreigl alternative-perpetrator evidence to be admitted, the defendant must, as with all alternative-perpetrator evidence, meet the threshold requirement of connecting the alternative perpetrator to the commission of the crime with which the defendant is charged. Id. If this threshold requirement is not met, the revers e-Spreigl alternative-perpetrator evidence is not admissible. See Hawkins. 260 N.W.2d at 159. If the threshold requirement is met, the defendant must also show by clear and convincing evidence that the alleged alternative perpetrator participated in the reverse-Spreigl incident. Woodruff v. State, 608 N.W.2d 881, 885 (Minn.2000). If that showing is made, the trial court must then determine whether the revers e-Spreigl incident is relevant and material to the defendant’s case and whether the probative value of the evidence outweighs its potential for unfair prejudice. Id.

Harmless error analysis applies to the erroneous exclusion of alternative-perpetrator and revers e-Spreigl evidence. Blom, 682 N.W.2d at 622. An error is harmless beyond a reasonable doubt if the verdict rendered is surely unattributable to the error. State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997).

We first address Vance’s claim that the trial court erred when it excluded revers e-Spreigl alternative-perpetrator evidence involving Cross. At a hearing on the state’s motion in limine, Vance offered the following evidence in support of admitting the Cross alternative-perpetrator evidence: (1) a Sabreen’s employee told detectives that Cross was in Sabreen’s two or three days before Al-Bakri’s murder; (2) Bakkri recognized Cross but could not identify whether he had seen Cross at Sabreen’s or at a store in St. Paul; (8) Cross matched the height and build of the individuals who killed-Al-Bakri; (4) Cross had knowledge of Sabreen’s and was a frequent visitor to South St. Paul; (5) Cross was seen at The Buttery on December 22, 2002; (6) Cross admitted to being at The Buttery with Vance on December 22, 2002; (7) Cross had information about the murder that he claimed to have received from Vance; and (8) Cross was convicted of first-degree murder for the death of a store clerk at a Stop’N’Go in Minneapolis. In the memorandum explaining why the Cross evidence was excluded, the trial court indicated that, “The proffer doesn’t come close to the connections established in Jones regarding the two alternative perpetrators alleged in that case.” We understand this statement to mean that the trial court concluded that Vance failed to present any evidence having an inherent tendency to connect Cross to Al-Bakri’s murder.

We agree. While the evidence offered suggests that Cross had knowledge of Sa-breen’s, was seen in Sabreen’s two or three days before Al-Bakri was murdered, and was seen at and admitted to being at The Buttery with Vance on December 22, 2002, none of the evidence places Cross either at or near Sabreen’s at the time of Al-Bakri’s murder. See, e.g., State v. Richardson, 670 N.W.2d 267, 281 (Minn. 2003); Woodruff, 608 N.W.2d at 885. Thus, Vance failed to present to the trial court any evidence having an inherent tendency to connect Cross to Al-Bakri’s murder. Therefore, the trial court did not abuse its discretion when it excluded the revers e-Spreigl alternative-perpetrator evidence related to Cross.

Vance also sought to introduce alternative-perpetrator evidence relating to Lorenzo Eide, Jesse Magnuson, and Michael Smith. In support of the admission of this evidence, Vance proffered the following: (1) that the day after the shooting Smith called Mary Rose Martinez and told her that he, Magnuson, and Eide had committed the murder; (2) that Samantha O’Reilly told officers that she was with Eide the day after the murder, Eide had a gun and a “couple of hundred dollars worth of drugs the very next night after the shooting,” and Eide threatened her on New Years Eve 2002, telling her “he would do to her what he did to the guy at Sabreens [sic];” (3) that Eide, Magnuson, and Smith live in South Saint Paul and had been involved in and convicted of criminal activities; (4) that an individual identified as Michael Balsimo said that his employees had heard rumors that Eide threatened O’Reilly about Eide’s involvement in the robbery; and (5) that Eide’s alibi was that he was with Magnuson until 11:30 p.m. the night of the robbery.

The trial court determined that Vance had met the threshold foundational requirement with respect to Smith but failed to meet it with respect to Eide and Mag-nuson. In support of that conclusion, the trial court found that Martinez’s statement was an admission on the part of Smith and not the other two, and that Balsimo’s statement was inadmissible hearsay. Implicit, but unstated in the trial court’s memorandum, is the conclusion that Martinez’s statements about Eide and Magnu-son also constituted inadmissible hearsay. Although the trial court found O’Reilly’s statements about Eide “more difficult” because of the clear and convincing standard for the admission of revers e-Spreigl alternative-perpetrator evidence, the trial court concluded that, because it had already determined that the evidence proffered did not have an inherent tendency to connect Eide to Al-Bakri’s murder, there was no need to determine whether the reverse-Spreigl evidence was clear and convincing. In the end, for reasons unknown, Vance did not offer the Smith alternative-perpetrator-evidence at trial.

We conclude that the trial court did not err in finding that Martinez’s statement with respect to Magnuson was inadmissible hearsay. According to the proffer, Smith told Martinez that he, Magnuson, and Eide shot Al-Bakri. As an admission against his penal interest, Smith’s statement to Martinez met the standard of evidence having an inherent tendency to connect Smith to Al-Bakri’s murder and was admissible.

However, Smith’s statement to Martinez, as it pertains to Eide and Magnuson, contains no admission on their part. Thus, Martinez’s statement contains only inadmissible hearsay as it relates to Eide and Magnuson. Therefore, we conclude that Smith’s statement to Martinez did not have an inherent tendency to connect Eide and Magnuson to Al-Bakri’s murder. Because Vance offered no other evidence having an inherent tendency to connect Magnuson to the crime, the trial court properly excluded alternative-perpetrator evidence as it related to Magnuson.

Vance did, however, offer other evidence with respect to Eide. Vance proffered Balsimo’s statement that Balsimo’s employees had heard rumors about Eide’s involvement in the murder. In addition, he offered O’Reilly’s statement about Eide’s threats to do to her what “he did to the guy at Sabreens [sic].” The trial court determined that Balsimo’s statement was inadmissible hearsay and declined to consider it in determining whether Vance had met the threshold requirement. See Minn. R. Evid. 802. In our view, the Balsimo statement fails the inherent-tendency-to-connect test for the same reasons statements Smith made to Martinez about Magnuson failed. As inadmissible hearsay, it does not have an inherent tendency to connect Eide to Al-Bakri’s murder.

Unlike Smith’s statement to Martinez, the trial court did not consider whether Eide’s statement to O’Reilly that “he would do to her what he did to the guy at Sabreens [sic]” was sufficient to satisfy the foundational inherent-tendency-to-connect test for admitting evidence of Eide as an alternative perpetrator. Yet, like the admission Smith made to Martinez, this statement by Eide was, in essence, an admission by Eide that he was involved in Al-Bakri’s murder. As such, it had an in inherent tendency to connect Eide to Al-Bakri’s murder. Thus, the trial court erred when it excluded alternative-perpetrator evidence regarding Eide.

Having concluded that the exclusion of evidence of Eide as an alternative perpetrator was error, we must determine whether the error is harmless error. As stated above, an error is harmless beyond a reasonable doubt if the jury’s verdict is surely unattributable to that error. Juarez, 572 N.W.2d at 292. Here, the evidence incriminating Vance was strong. Particularly significant are Vance’s admissions to a number of witnesses that he committed the murder.

Witness testimony established that Vance was going to South St. Paul a short time before the murder took place and that, immediately before departing for South St. Paul, Vance indicated that he would have “plenty of money” when he returned. Approximately 30 minutes after the murder took place, Vance told Griffin that he had been involved in a robbery that had “gone bad.” Vance later told Stites, who was wearing a listening device for the police, that he had “shot a guy two weeks ago over south side five times in the back.” Police officers, who were listening to Vance’s conversation with Stites, corroborated that Vance made the statement to Stites. There was also evidence that Vance knew in detail the items that were taken from Sabreen’s at the time of the murder, even though that information had not been made known to the public.

Further, Vance made statements to at least five different individuals while he was incarcerated, admitting, in varying degrees, to having committed the murder. Estrada testified that Vance described in detail the events surrounding the murder, including how Vance ran behind the counter and grabbed the store clerk, the store clerk’s emotional reaction to the event, and the shooting itself. Vance told Hodge he was involved in a murder-robbery, and Vance told Crawford that he had “shot a guy at the grocery store.” Vance told Nunn that he had committed a robbery in which someone “got murked” and expressed concern that the police would find a .22 caliber handgun that had been used in the robbery. Vance also described the events surrounding the murder to Reese, and said that he “gave the dude five” with a “deuce-deuce.” Based on Vance’s admissions, we conclude that the error in excluding evidence of Eide as an alternative perpetrator did not affect the outcome of the trial and was, therefore, harmless beyond a reasonable doubt.

The other proffered evidence regarding Eide constitutes revers e-Spreigl alternative-perpetrator evidence. Specifically, Vance offered evidence that Eide was “involved in various criminal activities,” and O’Reilly’s statement that Eide was in possession of a gun and drugs the day after the murder. For this evidence to be admissible, it would have to meet the additional revers e-Spreigl alternative-perpetrator requirements. See Woodruff, 608 N.W.2d at 885.

Vance’s bare assertion that Eide was “involved in various criminal activities,” without more, fails to meet the clear and convincing requirement for the admission of revers e-Spreigl alternative-perpetrator evidence. Based on Vance’s proffer, we also conclude that Vance failed to show how evidence of Eide’s prior convictions was relevant to this case. Therefore, it was not error for the trial court to exclude that evidence. We need not decide whether the trial court erred when it excluded O’Reilly’s statement that Eide was in possession of a gun and drugs the day after Al-Bakri was murdered because, even if the exclusion of that statement was error, the error was harmless beyond a reasonable doubt for the same reasons that the erroneously excluded Eide alternative-perpetrator evidence was harmless.

II.

We next address Vance’s claim that the cumulative effect of the trial court’s erroneous admission of evidence that certain witnesses were threatened, felt threatened, or were fearful as a result of testifying, and allowing the jury to hear statements made by police officers during interrogations of Vance in which the officers indicate that he was not being truthful denied him a fair trial. These claims involve trial testimony from Melissa Stites, Eric Griffin, Officer Vujovich concerning trial witness Gerónimo Estrada, who was incarcerated at the Ramsey County Workhouse with Vance, and from Sergeant Phillip Oef-fling concerning a search of co-conspirator Johnson’s prison cell.

On cross-examination, defense counsel elicited testimony that Stites had relocated since the murder, and that the police had given her approximately $1,500 to assist with relocation expenses and lost wages. On redirect, to explain why the police had assisted Stites with relocation expenses and lost wages, the prosecutor elicited testimony that Stites “felt in fear, fear for [her]self, fear for [her] family.”

On cross-examination, Griffin testified that, in exchange for his testimony at trial, the MGSF agreed to recommend to the prosecutor that a drug charge against Griffin be dismissed. On redirect, Griffin testified that he had to leave town because he felt threatened after an incident in which some men stopped him and asked about Vance and Johnson. After Griffin admitted he knew Vance and Johnson, Griffin testified that he thought the men were retrieving something from the back seat of the car, so Griffin ran away. As a result of that encounter, Griffin moved out of state for his safety.

In cross-examining Officer Vujovich, Vance’s defense counsel elicited testimony that authorities gave Gerónimo Estrada, an inmate in the Ramsey County Workhouse with Vance and a witness at his trial, funds with which to pay telephone charges for calls to his girlfriend and that, over time, Estrada had been given approximately $400. On re-direct, in explaining why Estrada was given the money, Vujo-vich testified that during their investigation of the Al-Bakri murder, police officers had told Vance, without mentioning Estrada’s name, that the police had received additional information about, the murder from an inmate at the Ramsey County Workhouse. Shortly thereafter, Estrada was assaulted while at the workhouse and Officer Vujovich requested that the workhouse place him in protective custody, which entails segregation from the other inmates, for Estrada’s safety.

Sergeant Oeffling testified, without objection, about an alleged threat against the fiancé of trial witness Regina Hagerman that led to a search of Johnson’s prison cell. That search resulted in the discovery of a letter from Vance to Johnson that read, in pertinent part, “never, ever discuss the past.” No testimony regarding the alleged threat against Hagerman’s fi-ancé was introduced.

Finally, the state, in its closing, argued that, because of her fears as a result of her testimony, McManus had to quit her job at The Buttery.

At trial, Vance objected to the testimony regarding Griffin and Estrada on relevance grounds. He made a general objection to Stites’ testimony. He did not object to Sergeant Oeffling’s testimony or the prosecutor’s closing argument comment about McManus quitting her job.

Vance argues that there was no evidence linking him to any threat against Stites, Griffin, Estrada, or Hagerman’s fiancé, nor was there any evidence introduced at trial indicating that Vance did anything to cause McManus to quit or leave her job. Thus, he argues that, because the threats and fears these individuals felt could not be linked to him, the trial court erred in admitting that testimony. He further argues that, even if the evidence was properly admitted, it was error for the trial court not to provide a “cautionary instruction ensuring that the jury did not misuse the evidence.”

A defendant may impeach a witness’s credibility by demonstrating that the witness received some benefit in exchange for the witness’s testimony. See State v. Hams, 521 N.W.2d 348, 352 (Minn.1994) (“the defendant is entitled to impeach the witness’ credibility by establishing the witness benefitted [sic] from the [government sponsored protection] program”). At the same time, evidence that the witness’s decision to testify resulted in negative consequences is relevant to rebut “ ‘the appearance of special treatment and improper motivation or bias.’ ” Id. (quoting United States v. Melia, 691 F.2d 672, 676 (4th Cir.1982)).

The state offered the testimony regarding threats to Stites, Griffin, and Estrada only after Vance’s attorney attacked these witnesses’ credibility by highlighting benefits each received from the state in exchange for cooperating with the state’s prosecution of Vance. Thus, the evidence was relevant for purposes of bolstering the credibility of the witnesses involved.

Even when relevant, however, evidence regarding threats will be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” State v. Clifton, 701 N.W.2d 793, 797 (Minn.2005) (internal quotation marks omitted). Specifically, evidence of negative consequences resulting from the witness’s testimony may “be highly prejudicial in that the jury may infer the defendant is connected to the negative consequences.” Harris, 521 N.W.2d at 352.

In Harris, we held that the trial court erred when it allowed the prosecutor to focus on threats in the direct examination of witnesses, repeatedly question multiple witnesses about threats, continuously refer to threat evidence, and create an inference that the defendant was the source of the threats. Id. at 352-53. In this case, unlike Harris, the evidence of threats against witnesses was not “an important focus of [the prosecutor’s] direct-examination of these witnesses.” See id. at 352. Moreover, the testimony regarding the threats was isolated, admitted only with respect to three witnesses, offered only in response to defense counsel’s attacks on the witnesses’ credibility, and mentioned only briefly during closing argument when addressing witness credibility. On that basis, we conclude that the probative value of the threat evidence regarding Stites, Harris, and Estrada was not outweighed by the potential for unfair prejudice. In that we conclude the threat evidence was relevant and that its probative value was not outweighed by its potential for unfair prejudice, we also conclude that it was not error for the trial court to admit the evidence.

At trial, Vance did not object to Sergeant Oeffling’s testimony regarding the search of Johnson’s cell. The testimony of Sergeant Oeffling, which Vance claims was improperly admitted, was elicited by the state on direct examination. Vance did not cross-examine Sergeant Oef-fling or object to the testimony. In his testimony, Sergeant Oeffling gave background information explaining how the state acquired Vance’s letter to Johnson. As part of the explanation, he testified that he had searched Johnson’s prison cell at the Minnesota Correctional Facility in Stillwater (MCF-STW) as a result of a report from Hagerman that her flaneé, who was housed at MCF-STW, had been threatened by Johnson about Hagerman’s involvement in the case. Evidentiary issues to which a party does not object at trial are forfeited for appeal. See Blom, 682 N.W.2d at 617. This court may choose, in its discretion, to review forfeited issues if those issues constitute plain error affecting substantial rights. State v. Gril-ler, 583 N.W.2d 736, 740 (Minn.1998). If the errors constitute plain error, this court may grant a new trial if it is required to ensure the fairness and integrity of the judicial proceeding. See State v. Morton, 701 N.W.2d 225, 234 (Minn.2005).

Here, the challenged evidence was offered solely as foundation and context for the letter from Vance to Johnson. Further, the threat was mentioned only in passing and was not referenced again. We therefore conclude that the testimony was properly admitted. Because the testimony was properly admitted, Vance’s claim fails the plain error test.

Vance also claims that it was error for the trial court to permit the prosecutor to argue in closing that McManus “had to quit her job.” We view Vance’s claim as one of prosecutorial misconduct. Our review of the record indicates that there was no evidence presented that indicates that McManus had to quit her job or that she was threatened. The record also indicates that Vance did not object to the statement during the closing argument. Therefore, our review is for plain error. Having carefully considered the record, we are satisfied that to the extent the prosecutor’s reference to McManus having to quit her job constituted misconduct, that misconduct did not effect Vance’s substantial rights. Thus, Vance is not entitled to any relief.

Vance further claims that, even if the threat evidence was admissible, the trial court should have given a cautionary instruction regarding the evidence. Vance did not request such an instruction. Ordinarily it is not plain error for the trial court to fail to sua sponte give an instruction. State v. Vick, 632 N.W.2d 676, 687 (Minn.2001). In the absence of a request for a cautionary instruction, courts .are hesitant to sua sponte give an instruction because an instruction may draw additional attention to potentially prejudicial issues. See, e.g., McCollum v. State, 640 N.W.2d 610, 617 (Minn.2002) (stating that a no-adverse inference instruction regarding a defendant’s decision not to testify draws attention to defendant’s silence and should not be given absent a request). Moreover, a defendant may choose not to request an instruction for strategic reasons. Therefore, the trial court did not err in not sua sponte giving a cautionary instruction with respect to the threat evidence admitted at trial.

We next address Vance’s claim with respect to the jury being presented with unredacted statements by police officers, made during police interviews with Vance, that Vance was being untruthful in answers to some questions. In a pretrial motion, Vance requested that no police officers be permitted to state an opinion regarding Vance’s credibility, reliability, and/or truthfulness of statements made by the defendants or any witnesses. The court declined to issue an order, holding that no one would elicit opinion evidence from police or other witnesses regarding credibility or reliability because to do so would violate the Minnesota Rules of Evidence. The recordings presented to the jury contained multiple police officers’ statements that Vance was lying about his participation in the murder. In addition, after being cross-examined regarding his training in specific interrogation techniques, Officer Kreager testified that the “signals” Mr. Vance was “sending” during the interviews “were not consistent with open honesty.” Vance did not object to Officer Kraeger’s testimony or to the admission of any police statements presented to the jury, nor did .he at any time request a limiting or cautionary instruction regarding the statements made by police. Here, Vance does not argue that admission of the statements was error, he argues only that the court’s failure to sua sponte give a cautionary instruction was error. Therefore, we will review this claim for plain error.

When police interviews with a defendant are admitted, statements by police during the interviews are generally admissible to give context to the defendant’s statements. See State v. Lindsey, 632 N.W.2d 652, 663 (Minn.2001); State v. Tovar, 605 N.W.2d 717, 726 (Minn.2000). Courts may give a jury instruction that the statements of police are not evidence. In the absence of a request for a jury instruction limiting comments of the police during an interview, plain error review applies. See Tovar, 605 N.W.2d at 725. Further, as discussed earlier, ordinarily it is not plain error for a trial court to fail to sua sponte give a cautionary instruction. Vick, 632 N.W.2d at 687. On that basis, we conclude, as we did with the threat evidence, that the trial court did not err when it did not, sua' sponte, give a cautionary instruction -with respect to the unredacted police statements that Vance was being untruthful.

III.

Vance raises three additional claims in his pro se brief. He claims that: (1) newly discovered evidence entitles him to a new trial; (2) the trial court erroneously excluded a letter from being introduced at trial; and (3) the prosecutor committed misconduct when she began “weeping” during her opening statement and while presenting the state’s case.

Vance claims he has newly discovered evidence in the form of a letter from Trevor Crawford to Vance allegedly stating that Crawford lied to police to corroborate Cross’s claim that Cross did not commit the murder. Vance has not produced the letter. To substantiate a claim for newly discovered evidence, Vance must show:

(1)' the evidence was not known to the defendant or counsel at trial; (2) the failure to learn of the evidence before trial was not due to a lack of diligence; (3) the evidence is material, not merely impeaching, cumulative, or doubtful; and (4) the evidence will probably result in either an acquittal or a more favorable result for the defendant.

Hooper v. State, 680 N.W.2d 89, 96 (Minn.2004).

Vance has not sustained his burden with respect to any of these requirements. Most importantly, because Vance has not made the contents of the letter clear, it is not apparent that “the evidence will probably result in either an acquittal or a more favorable result” for him, and therefore this claim fails.

Vance next claims that the court erred when it excluded a letter written by Bakkri to Cross offering Cross $3,000 to help convict Vance. The purpose of the letter was to show witness bias. The trial court held that the letter was inadmissible because Vance did not lay proper foundation for its admission. In so holding, the trial court stated that, in order to show that Cross was influenced by the offer of payment, Vance would first have to establish that Cross had received the letter, which Vance failed to do. The court did allow Vance to question Bakkri about the contents of the letter. Bakkri acknowledged that he wrote a letter to Cross but claimed that he gave the letter to the police and he did not think the letter was sent. Bakkri also testified that the letter offered $3,000 to Cross for information about Al-Bakri’s death. On this record, we are satisfied that the trial court did not abuse its discretion in excluding the letter.

Finally, Vance claims that the prosecutor “wept” during her opening statement and while presenting the state’s case. Beyond his bare assertion, Vance provides no support for this claim, nor has our review of the record identified any support for it. Absent such support, the claim has no merit.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . McManus had requested that Vance leave The Buttery a few weeks earlier after Vance punched another person at the bar.

      . Nunn interpreted "murked” to mean that the person was either hurt or shot and killed.

      . Reese interpreted "deuce-deuce” to mean a .22 caliber handgun.

      .We note that Vance's claim that he was denied the right to present a complete defense by the trial court’s exclusion of certain alternative-perpetrator evidence is undercut by his failure to introduce at trial alternative-perpetrator evidence the trial court found to be admissible.

      . On recross, Stites stated that she had never been directly threatened by Vance.

      . On recross, Griffin stated that he had never been directly threatened by Vance.

      . See State v. Doppler, 590 N.W.2d 627, 635 (Minn.1999) (concluding that an attorney's decision not to focus on intoxication as a defense and failure to request an intoxication jury instruction was a matter of trial strategy); State v. Eling, 355 N.W.2d 286, 293 (Minn.1984) (stating that an attorney's decision not to request a cautionary instruction "regarding the possibility of defendant's appearing in handcuffs in view of the jurors" was a tactical decision that probably reflected the attorney's attempt to avoid calling further attention to the defendant's restraints).

      . While it may have been improper for Officer Kreager to comment that his impression was that Vance's "signals" "were not consistent with open honesty," Vance does not argue that admission of that statement was error.

      . It is not clear whether Vance is referring to Tyrone Crawford, who testified at his trial, or someone who did not appear at trial.

      . The trial record indicates only that the letter in question offered a reward for information, not for help convicting Vance.


source: Caselaw Access Project

author: ANDERSON, G. BARRY, Justice.

license: Public Domain

text:
    Hanifi Marlow JIHAD, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-2145.
    Supreme Court of Minnesota.
    May 25, 2006.

      Hanifi Marlow Jihad, Bayport, MN, pro se.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Hanifi Marlow Jihad, formerly known as Marlow Devette Jones, appeals the denial of his second petition for postconviction relief alleging ineffective assistance of appellate counsel, entitlement to a new trial based on the cumulative effect of trial errors, and a violation of his right to confrontation at trial. The postconviction court denied the petition. We affirm.

Jihad was convicted of first-degree murder and attempted first-degree murder. The district court sentenced Jihad to life imprisonment for murder and a concurrent 180-month sentence for attempted murder. Our opinion issued in response to appellant’s direct appeal provides a full statement of the facts in this case. See State v. Jones, 556 N.W.2d 903, 906-08 (Minn.1996). We affirmed Jihad’s convictions on direct appeal. Id. at 905-06, 914. Jihad then filed his first petition for state postconviction relief, raising four issues, and the postconviction court denied the petition. On appeal, we affirmed the denial of the petition holding that Jihad’s claims were procedurally barred as they were either raised on direct appeal or known but not raised at the time of trial or direct appeal. Jihad v. State, 594 N.W.2d 522, 524-26 (Minn.1999). Jihad next filed a petition for federal habeas corpus relief, but the federal district court dismissed the petition as time barred and the Eighth Circuit affirmed the dismissal. See Jihad v. Hvass, 267 F.3d 803, 804 (8th Cir.2001).

Jihad then filed this petition for state postconviction relief, essentially making the following claims: (1) that he received ineffective assistance of appellate counsel on direct appeal because appellate counsel failed to request a new trial based on the cumulative effect of trial errors, (2) that he is entitled to a new trial based on the cumulative effect of trial errors, and (3) that he is entitled to a new trial because the admission at trial of a stipulation summarizing the statements of a codefendant violated Jihad’s right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The postconviction court denied Jihad’s petition for relief without a hearing, determining that Crawford did not apply retroactively to Jihad’s case and that Jihad’s petition for postconviction relief was untimely. Jihad appealed the postconviction court’s order to this court.

A person convicted of a crime may request postconviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (Supp.2005). A post-conviction court may deny a petition without a hearing if “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2004). “Review of a postconviction proceeding is limited to determining ‘whether there is sufficient evidence to sustain the postconviction court’s findings, and a post-conviction court’s decision will not be disturbed absent an abuse of discretion.’ ” Zenanko v. State, 688 N.W.2d 861, 864 (Minn.2004) (quoting Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001)). When making this determination, we are not limited to the reasoning of the postconviction court, and can affirm the denial of posteon-viction relief on grounds other than those on which the postconviction court relied. See Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000); see also Black v. State, 560 N.W.2d 83, 84-85 (Minn.1997).

The postconviction court cited Jihad’s delay in filing his second petition for post-conviction relief as a reason for denying relief, and this was the only cited basis for denying Jihad’s claims of ineffective assistance of appellate counsel and cumulative error. Jihad appears to argue that the filing of the second petition was delayed because of his petition for federal habeas corpus relief. The state argues that Jihad’s petition was properly denied as untimely. We need not determine whether Jihad’s delay in filing the second petition, by itself, justifies denial of his petition for relief because, as discussed below, review of Jihad’s petition and the record conclusively shows that Jihad is not entitled to relief.

After a direct appeal has been taken, a postconviction court will not consider “matters raised * * * [or] claims known but not raised” in the direct appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). This procedural bar also applies if the petitioner should have, known about the issue at the time of the direct appeal. Mckenzie v. State, 707 N.W.2d 643, 644 (Minn.2005); see also Minn.Stat. § 590.01, subd. 1. In addition, the postconviction court will not consider claims which Jihad raised or knew of and could have raised in his first petition for postconviction relief. See Jones v. State, 671 N.W.2d 743, 746 (Minn.2003); Wayne v. State, 601 N.W.2d 440, 441 (Minn.1999). “A postconviction court, however, may hear previously known or considered claims if (1) a claim is so novel that the legal basis was not available on direct appeal or (2) fairness requires and the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on appeal.” Mckenzie, 707 N.W.2d at 644 (quoting Carney v. State, 692 N.W.2d 888, 891 (Minn.2005)).

Jihad’s first two claims are procedurally barred by this rule. Jihad’s claim that he is entitled to a new trial due to the cumulative effect of trial errors is procedurally barred because he either knew or should have known of this claim at the time of his direct appeal. Similarly, Jihad’s claim of ineffective assistance of appellate counsel is procedurally barred because Jihad could have raised this claim in his first petition for postconviction relief. Neither claim falls under either exception to the Knaffla bar. Consequently, the postconviction court did not abuse its discretion when it denied Jihad relief on these claims.

Jihad’s final claim is that he is entitled to a new trial because admission of a stipulation summarizing the statements of a codefendant violated his right to confrontation under Crawford. While the state argues that this claim is barred by Knajf-la, we conclude that Jihad is not procedurally barred from raising a claim of Crawford error. Jihad argued on direct appeal that the statement at issue was not truly self-inculpatory and therefore admission of the statement violated the rule in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Jones, 556 N.W.2d at 908. Williamson did not deal directly with the Confrontation Clause but instead interpreted the federal eviden-tiary hearsay exception for statements against interest. See 512 U.S. at 604-05, 114 S.Ct. 2431. Crawford, on the other hand, interpreted the Confrontation Clause directly. See 541 U.S. at 50-68, 124 S.Ct. 1354. While Jihad’s Crawford argument concerns the admission of the same out-of-court statement as his Williamson argument on direct appeal, each argument is a discrete legal claim. Moreover, since Crawford was not decided until 2004, the legal basis for Jihad’s Crawford claim was not available to him on direct appeal or his first petition for postconviction relief.

While Knaffla and its progeny do not prevent Jihad from raising his Crawford claim in this proceeding, we need not determine whether the admission of the codefendant’s statement violated Crawford or whether Crawford applies retroactively to cases on collateral review at the time of its decision. This is because any constitutional error in the admission of the statement at issue was harmless beyond a reasonable doubt. We recently applied harmless error analysis to Crawford error and found such error harmless beyond a reasonable doubt if “the guilty verdict actually rendered was ‘surely unattributable’ to the error.” State v. Courtney, 696 N.W.2d 73, 79-80 (Minn.2005) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). On direct appeal, we analyzed whether any Williamson error was harmless using the “surely unattributable to the error” standard that we later referenced in Courtney. See Jones, 556 N.W.2d at 910. Applying this test in the direct appeal, we held that any error in the admission of the statement at issue was harmless beyond a reasonable doubt. See id. There is no reason to reach a different conclusion here. Because any Crawford error was harmless beyond a reasonable doubt, the postconviction court did not abuse its discretion when it denied Jihad relief on this claim.

Affirmed.


author: PER CURIAM.

text:
    2006 ND 107
    In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST C. Charles CHINQUIST, a Member of the Bar of the State of North Dakota Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. C. Charles Chinquist, Respondent.
    No. 20050359.
    Supreme Court of North Dakota.
    May 16, 2006.

      Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, N.D., for petitioner.
    C. Charles Chinquist (pro se), Fargo, N.D., respondent.
   PER CURIAM.

[¶ 1] C. Charles Chinquist and counsel for the Disciplinary Board object to a hearing panel report finding that Chinquist violated N.D.R. Prof. Conduct 1.5(a) and (b), 1.8(a), and 1.15(a) and (f), and recommending that Chinquist be suspended from the practice of law for 30 days and that he pay $5,289.45 for the costs and expenses of the disciplinary proceeding. We conclude there is clear and convincing evidence Chinquist violated N.D.R. Prof. Conduct 1.5(a) and (b), 1.7(a), 1.8(a), and 1.15(a) and (f). We suspend Chinquist from the practice of law for six months and one day and order that he pay the costs and expenses of the disciplinary proceeding.

I

[¶2] Chinquist was admitted to practice as an attorney in North Dakota on July 19, 1972. In 1996, Chinquist, who has a law office in Fargo, began representing a woman in connection with legal matters relating to custody of her minor child. The child had been placed in the custody of the father after the woman was incarcerated on criminal charges, and Chinquist had represented her in the past as court appointed counsel in criminal matters. He had also represented the woman’s mother in her divorce case.

[¶ 3] Chinquist did not have a written fee agreement with the woman and did not send her statements of attorney fees and costs incurred during the course of the representation. The woman paid Chin-quist between $13,500 and $15,000 in the form of money orders and cash delivered to Chinquist’s home and office in a manila envelope, a Cracker Jack box, and an Altoids tin. The woman also ‘gave Chinquist $5,000 to be applied to the account of another of Chinquist’s clients in an unrelated criminal matter. Chinquist did not provide the woman with billing statements for any of the money she gave him during the course of the representation and did not place the funds in a trust account. Although Chinquist accounted for some amounts paid by the woman early in the representation, he quit documenting his time spent on her case and he shredded the existing records after he was suspended from the practice of law for 90 days in 2004. See In re Reciprocal Discipline of Chinquist, 2004 ND 87, 679 N.W.2d 257.

[¶ 4] During the course of the representation, Chinquist reviewed the woman’s medical, psychological, and psychiatric records which indicated that she had an emotional disorder. The woman told Chinquist she was classified as disabled by the Social Security Administration for emotional problems and that she also had drug and alcohol problems. Beginning in the spring or early summer of 2000, while still representing her in the custody proceedings, Chinquist engaged in a sexual relationship with the woman. According to the woman, their sexual relationship lasted until early 2003, several months before custody of her son was restored to her. At some point before the woman received custody of her son, Chinquist told her he could no longer assist her with custody matters and she retained a new attorney.

[¶ 5] In April 2005, disciplinary counsel petitioned for discipline against Chinquist. The petition alleged Chinquist had violated N.D.R. Prof. Conduct 1.5(a) and (b) relating to fees, N.D.R. Prof. Conduct 1.7(a) and (c) and 1.8(a) and (f) relating to conflict of interest, N.D.R. Prof. Conduct 1.15(a), (b) and (f) relating to safekeeping property, N.D.R. Prof. Conduct 1.16(e) relating to declining or terminating representation, and N.D.R. Prof. Conduct 8.4(d) relating to misconduct.

[¶ 6] Following a hearing, the hearing panel concluded Chinquist had violated N.D.R. Prof. Conduct 1.5(a) and (b) “by accepting large, suspicious cash payments” from the woman “that were excessive and bore no apparent relationship to the work being performed,” and “by not communicating to his client before or within a reasonable time after commencing representation the rate or amount of the fees to be charged.” The panel concluded Chinquist had violated N.D.R. Prof. Conduct 1.15(a) and (f) by accepting the large cash payments from the woman “without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned,” and by failing to maintain records of the cash payments and to deposit the payments into a trust account. The panel also concluded Chinquist violated N.D.R. Prof. Conduct 1.8(a) by accepting money from the woman to represent another person without advising her to seek independent counsel before consenting to the transaction. However, the panel further found that, although the sexual relationship between Chinquist and the woman “was not appropriate, the relationship did not arise to a conflict of interest since it did not affect Chinquist’s ability to consider, recommend, or carry out a course of action on behalf of his client nor did it have the potential of adversely affecting Chinquist’s responsibility with re■spect to his representation” of the woman. The panel further found that the woman’s “motives in becoming involved in this sexual relationship are unclear in light of a sexual relationship that she engaged in with another professional and a disciplinary complaint filed against that professional.” The panel recommended that Chin-quist be suspended from the practice of law for 30 days and that he pay $5,289.45 for the costs and expenses of the disciplinary proceeding.

II

[¶ 7] We review disciplinary proceedings de novo on the record. Disci plinary Bd. v. Giese, 2006 ND 13, ¶ 7, 709 N.W.2d 717. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere rubber stamp. Disciplinary Bd. v. Ward, 2005 ND 144, ¶ 6, 701 N.W.2d 873. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Disciplinary Bd. v. Edin, 2005 ND 109, ¶ 9, 697 N.W.2d 727. Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted. Disciplinary Bd. v. McKechnie, 2003 ND 170, ¶ 7, 670 N.W.2d 864.

A

[¶ 8] The hearing panel found Chinquist violated N.D.R. Prof. Conduct 1.15(a) and (f), which provide:

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be deposited in one or more identifiable interest bearing trust accounts in accordance with the provisions of paragraph (d). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer in the manner prescribed in paragraph (f).
(f) A lawyer shall maintain or cause to be maintained on a current basis records sufficient to demonstrate compliance with the provisions of this rule. Such records shall be preserved for at least six years after termination of the representation.

[¶ 9] The record reflects Chinquist accepted large cash payments from the woman without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned. Chinquist also failed to maintain records of the cash payments from the woman and did not deposit the payments into a trust account. We conclude there is clear and convincing evidence that Chinquist violated N.D.R. Prof. Conduct 1.15(a) and (f).

B

[¶ 10] Chinquist argues the hearing panel erred in determining that he violated N.D.R. Prof. Conduct 1.5(a) and (b), which provide:

(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
(b)When the lawyer has not regularly represented the client, the basis, rate, or amount of the fee shall be communicated to the client before or within a reasonable time after commencing the representation.

[¶ 11] There was no written fee agreement, fee statements, or correspondence detailing the terms of Chinquist’s representation of the woman. Chinquist accepted large sums of cash from the woman but did not give her receipts, account for the funds, or refund any amounts that were unearned. After Chinquist’s law license was suspended in 2004, he shredded his records making it impossible to determine how much money Chinquist received from the woman for legal services and the reasonableness of the fee.

[¶ 12] Chinquist claims the funds the woman paid to him were for work he had completed on her custody case, and he attempted to reconstruct a record of the time he spent on the case. Chinquist also claimed that he informed the woman of the rate or amount of fees to be charged. This evidence, however, conflicts with the woman’s testimony that she loaned him amounts of money because of his office cash flow needs. We conclude there is clear and convincing evidence that Chin-quist violated N.D.R. Prof. Conduct 1.5(a) and (b).

C

[¶ 13] Chinquist argues the hearing panel erred in finding that he violated N.D.R. Prof. Conduct 1.8(a), which provides:

(a) Except for standard commercial transactions involving products or services that the client generally markets to others, a lawyer shall not enter into a business, financial or property transaction with a client unless:
(1) The transaction is fair and reasonable to the client; and
(2) After consultation, including advice to seek independent counsel, the client consents to the transaction.

[¶ 14] While representing the woman on custody matters, Chinquist attempted to have her participate in a demonstration in connection with a murder case in which he was representing the defendant. She became friends with the defendant’s family, and the woman eventually paid Chinquist $5,000 toward the defendant’s legal bills. Chinquist told the defendant that he had “written off’ this part of the bill rather than telling him the woman had paid the bill. Disciplinary counsel argues that Chinquist capitalized on the woman’s sympathy for the defendant’s family by having her pay his legal fees without advising her to seek independent counsel’s advice concerning this financial transaction before she consented to the transaction. Although Chinquist argues he was no longer representing the woman when this transaction occurred, he admits that he continued to represent her “to iron out details” of summer visitation after the payment was made. We conclude there is clear and convincing evidence Chinquist violated N.D.R. Prof. Conduct 1.8(a).

D

[¶ 15] Disciplinary counsel argues the hearing panel should have found that Chinquist, who had a sexual relationship with the woman during the representation, violated N.D.R.Prof. Conduct 1.7(a), which provides:

(a) A lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.

[¶ 16] We agree with the hearing panel’s finding that the “sexual relationship between Chinquist and [the woman]” occurred “during a time when Chinquist was providing legal representation” for her. Chinquist admitted that he continued working on visitation and child support matters for the woman for a period of time after their sexual relationship. The panel, however, found “the relationship did not arise to a conflict of interest since it did not affect Chinquist’s ability to consider, recommend, or carry out a course of action on behalf of his client nor did it have the potential of adversely affecting Chinquist’s responsibility with respect to his representation of’ the woman.

[¶ 17] The North Dakota Rules of Professional Conduct do not expressly prohibit sexual relationships between a lawyer and a client. Although this Court has not decided whether the Rules of Professional Conduct nevertheless prohibit sexual relationships between lawyer and client, the subject has received considerable judicial attention in the context of attorney disciplinary actions and, as stated in ABA/BNA Lawyer’s Manual on Prof. Conduct 51:416, at p. 262 (2006), “[t]he idea that sex between consenting adults is a private matter has lost much of its force when it comes to lawyer-client sexual relations.” Courts have imposed discipline upon lawyers for having sexual relationships with clients for many years. See, e.g., Gregory G. Sarno, Annotation, Sexual Misconduct as Ground for Disciplining Attorney or Judge, 43 A.L.R.4th 1062 (1986), and cases collected therein. This prohibition has been applied with particular force to a lawyer’s sexual relationship with a domestic relations client because of the great potential of prejudice to the client’s interests. See, e.g., People v. Zeilinger, 814 P.2d 808, 810 (Colo.1991) (a sexual relationship with a client undergoing a divorce may inflict harm on the client in a contested custody case where the attorney may become the focus of the proceeding and be called as a witness); Matter of Lewis, 262 Ga. 37, 415 S.E.2d 173, 175 (1992) (“Every lawyer must know that an extramarital relationship can jeopardize every aspect of a client’s matrimonial case”); In re Tsoutsouris, 748 N.E.2d 856, 860 (Ind.2001) (lawyer’s ability to represent client effectively may be impaired); Committee on Prof'l Ethics and Conduct v. Hill, 436 N.W.2d 57, 59 (Iowa 1989) (“attorney must be aware that the actions of the client and attorney may affect negotiations in the dissolution case, including determination of custody and visitation of minor children”); Matter of Berg, 264 Kan. 254, 955 P.2d 1240, 1247 (1998) (“there is a significant danger in a divorce situation that the attorney may become a witness in the proceedings and also inflict great harm to the client when division of property or custody of children is contested”); Bourdon’s Case, 132 N.H. 365, 565 A.2d 1052, 1057 (1989) (intimate relationship between lawyer and client can prejudice chances of being awarded custody of children); Matter of DiPippo, 678 A.2d 454, 456 (R.I.1996) (“Any competent attorney practicing in the area of domestic-relations law must be aware that the sexual conduct of a divorce client may have significant bearing on that client’s ability to secure child custody”).

[¶ 18] Although courts have justified discipline under various rules of professional conduct, there is substantial authority to support the imposition of discipline for sexual relations with a client in a domestic relations case under rules that are substantially similar to N.D.R. Prof. Conduct 1.7(a). See, e.g., Zeilinger, 814 P.2d at 809; Lewis, 415 S.E.2d at 175; Tsoutsouris, 748 N.E.2d at 857; Berg, 955 P.2d at 1242; DiPippo, 678 A.2d at 455. Courts-have routinely rejected arguments that the lack of a rule specifically forbidding sexual relations with a client excuses this type of conduct. See In re Rinella, 175 Ill.2d 504, 222 Ill.Dec. 375, 677 N.E.2d 909, 914 (1997); Tsoutsouris, 748 N.E.2d at 858; Berg, 955 P.2d at 1247, 1251; DiPippo, 678 A.2d at 455. Furthermore, courts have also rejected the argument that sexual relationships should be authorized unless there is evidence of impaired representation, because having consensual sexual relations with domestic relations clients serves the attorney’s own interests and thereby threatens the representation. Tsoutsouris, 748 N.E.2d at 858, 860; Berg, 955 P.2d at 1251; Druckers’ Case, 133 N.H. 326, 577 A.2d 1198, 1203 (1990). “The lawyer’s own interest in maintaining the sexual relationship creates an inherent conflict with the proper representation of the client.” DiPippo, 678 A.2d at 456.

[¶ 19] The record establishes that Chinquist had a consensual sexual relationship with a client he was representing in a domestic relations case during the period of the representation. Chinquist is an experienced lawyer who had to have known that the sexual relationship jeopardized the disposition of his client’s custody case. The absence of a bright-line rule prohibiting sexual relationships with clients, and the lack of evidence of impaired representation, provide no excuse. The client’s “motives” for becoming involved in the sexual relationship with Chinquist are irrelevant. By engaging in a sexual relationship with his client during the course of the representation, Chinquist placed his own interests above those of his client. We conclude there is clear and convincing evidence that Chinquist violated N.D.R. Prof. Conduct 1.7(a).

Ill

[¶ 20] Disciplinary counsel argues a two-year suspension would be a more appropriate sanction than the 30-day suspension recommended by the hearing panel. Chinquist argues that we should consider a public reprimand and order that he not pay the entire costs and expenses of the disciplinary proceeding because a “large part of [the] expense was unnecessary.”

[¶21] In determining the appropriate sanctions for violations of the Rules of Professional Conduct, we are guided by the North Dakota Standards for Imposing Lawyer Sanctions. Disciplinary Bd. v. Edwardson, 2002 ND 106, ¶ 21, 647 N.W.2d 126. Under N.D. Stds. Imposing Lawyer Sanctions 2.0, potential sanctions include disbarment, suspension, reprimand, and assessment of costs. Disciplinary Bd. v. McKechnie, 2003 ND 170, ¶ 23, 670 N.W.2d 864. In determining the proper sanction, N.D. Stds. Imposing Lawyer Sanctions 3.0 directs that we consider “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.”

[¶ 22] Under N.D. Stds. Imposing Lawyer Sanctions 4.12, “[suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” Under N.D. Stds. Imposing Lawyer Sanctions 4.32, “[s]uspensio'n is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” Chinquist did not communicate to his client the rate to be charged for the representation, accepted excessive cash payments that bore no relationship to the legal work performed, provided no billing statements to the client, and failed to maintain records and to deposit the payments in a trust account. Chinquist also entered into unrelated financial transactions with the client without advising her to seek independent advice. Chinquist engaged in a sexual relationship with the woman and failed to appreciate the danger to his client’s interests in her domestic relations case. Chinquist’s mishandling of client funds, coupled with his conflict of interest occasioned by the sexual relationship, warrants a suspension from the practice of law.

[¶ 23] Aggravating factors we may consider under N.D. Stds. Imposing Lawyer Sanctions 9.22 include “(a) prior disciplinary offenses; (b) dishonest or selfish motive; ... (d) multiple offenses; ... (h) vulnerability of victim; ... [and] (i) substantial experience in the practice of law.” Chinquist was suspended from the practice of law for a 90-day period in 2004 for failure to pay income taxes for 10 years. He has also had one private reprimand in the past. Chinquist displayed a selfish motive in his financial dealings with the client and in his sexual relationship with her. We have found that Chinquist violated several provisions of the Rules of Professional Conduct. Chinquist knew his client had emotional problems and was vulnerable. Chinquist has been practicing law for more than 30 years. As mitigating circumstances under N.D. Stds. Imposing Lawyer Sanctions 9.32(e) and (Í), we consider that Chinquist provided full and free disclosure to the disciplinary board, displayed a cooperative attitude toward the proceedings, and showed remorse.

[¶ 24] Under these circumstances, we order that Chinquist be suspended from the practice of law for six (6) months and one (1) day beginning July 1, 2006, and that he pay the full costs and expenses of the disciplinary proceeding in the amount of $5,289.45 under N.D.R. Lawyer Discipl. I.3(D). Chinquist must comply with the notice of status provisions of N.D.R. Lawyer Discipl. 6.3, and upon expiration of the suspension period, must comply with the reinstatement provisions of N.D.R. Lawyer Discipl. 4.5.

[¶ 25] GERALD W. VANDE WALLE, C.J., ZANE ANDERSON, D.J. DANIEL J. CROTHERS, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.

[¶ 26] The Honorable ZANE ANDERSON, D.J., sitting in place of MARING, J., disqualified.

      . This Court recently adopted amendments to the North Dakota Rules of Professional Conduct. See Order of Adoption, No. 20050353 (May 3, 2006). Effective August 1, 2006, N.D.R. Prof. Conduct 1.8(j) provides: "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”


author: SANDSTROM, Justice.

text:
    2006 ND 109
    Jerry LANDERS, Randy Landers, Julie Landers, Altha Landers, and Herman Landers, Plaintiffs and Appellees v. Neal BIWER and Cherlyn Biwer, Defendants and Appellants.
    No. 20050313.
    Supreme Court of North Dakota.
    May 16, 2006.

      Dean A. Frantsvog, Frantsvog Law, P.C., Minot, N.D., for plaintiffs and appel-lees.
    Monte L.. Rogneby, Vogel Law Firm, Bismarck, N.D., for defendants and appellants.
   SANDSTROM, Justice.

[¶ 1] Neal and Cherlyn Biwer appeal the district court’s judgment entered after a bench trial. The Biwers argue the district court erred when it did not specifically enforce a land sale agreement between Jerry, Randy, Julie, Altha, and Herman Landers (“the Landers”) and themselves. The district court also refused the Biwers’ request for money damages. Lastly, the Biwers appeal the district court’s judgment ordering them to pay rent and repair costs to the Landers for use of a Wishek disk. We affirm the district court’s denial of specific performance, denial of money damages for the Biwers, and grant of damages for the Landers for use of the disk. We reverse and remand because the district court clearly erred when it did not order the Landers to return $500 paid towards the purchase of the property in dispute.

I

[¶ 2] In May 1997, the Biwers and the Landers signed an option agreement granting the Biwers an option to buy property known as the “South Quarter.” The Biwers exercised the option. According to the Biwers, they exercised the option because the Landers agreed to sell them another property known as the “North Quarter.” The Landers maintain they never agreed to sell the North Quarter.

[¶ 3] On January 21, 2002, the parties met in Stanley, North Dakota, to complete the transaction. After discussing the South Quarter, an argument arose between Neal Biwer and Herman Landers over whether the North Quarter was part of the transaction. Neal Biwer left the room, and Cherlyn Biwer continued to discuss the North Quarter with the Landers. According to the Biwers, the Landers agreed to execute an option agreement for the North Quarter, but the Landers claim they believed they were entering into a right-of-first-refusal contract, not an option agreement. The following day, the parties met in Kenmare, North Dakota, to finish the transaction. The parties completed the transfer of the South Quarter, which is not in dispute on appeal. Also on that day, an option agreement on the North Quarter was signed. None of the Landers read the option agreement before signing it. The Landers contend Cherlyn Biwer misrepresented the contract, stating it was a right of first refusal.

[¶ 4] After discovering the agreement they signed was actually an option agreement, the Landers sued the Biwers to rescind the option and to collect past debts they claimed the Biwers owed them, including the cost of rent and repairs for a disk the Landers loaned to the Biwers. The Biwers counterclaimed, requesting specific performance of the option agreement, or, in the alternative, damages. The district court found the option agreement was enforceable because the Landers failed to read it, but concluded specific performance was inappropriate because the agreement was not just and reasonable to the Landers and the Biwers misrepresented the contract. The district court also denied the Biwers’ request for money damages. The court found, relying on the Biwers’ testimony, that the land was worth less than the contract price, so they were not entitled to any damages. The court also ruled the Biwers owed the Landers $1,100 in rent and damages for the use of and repairs to the Wishek disk.

[¶ 5] On appeal, the Biwers argue the district court erred when it concluded they were not entitled to specific performance or, in the alternative, damages. The Biwers also argue the district court erred when it concluded they owe the Landers rent and repairs for the disk. The Lan-ders argue the district court correctly decided the case.

[¶ 6] The district court had jurisdiction under N.D. Const.' art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 7] The Biwers argue the district court abused its discretion when it denied their request for specific performance. Specific performance rests in the sound discretion of the district court, and this Court will not reverse a lower court’s decision unless it has abused its discretion. Linderkamp v. Hoffman, 1997 ND 64, ¶ 5, 562 N.W.2d 734. “A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law.” Sec. Nat’l Bank v. Wald, 536 N.W.2d 924, 928 (N.D.1995).

[¶ 8] Specific performance is presumed to be the proper remedy when there is a breach of an agreement to transfer real property:

It is to be presumed that the breach of an agreement to transfer real property cannot be relieved adequately by pecuniary compensation and that the breach of an agreement to transfer personal property can be thus relieved.

N.D.C.C. § 32-04-09. Section 32-04-13, N.D.C.C., provides for exceptions when specific performance cannot be enforced, however:

Specific performance cannot be enforced against a party to a contract in any of the following cases:
2. If it is not as to that party just and reasonable.
3. If such party’s assent was obtained by misrepresentation, concealment, circumvention, or unfair practice of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled.

[¶ 9] In Boe v. Rose, this Court outlined the equitable considerations for specific performance:

Specific performance is an equitable remedy and equitable principles must be followed in its use. Linderkamp v. Hoffman, 1997 ND 64, ¶ 5, 562 N.W.2d 734. A litigant seeking the remedy of specific performance is held to a higher standard than one merely seeking money damages, and to receive equity he must “do equity” and must not come into court with “unclean hands.” Sand v. Red River Nat’l Bank & Trust Co., 224 N.W.2d 375, 377-378 (N.D.1974). A purchaser seeking specific performance of a contract for the sale of real property must make a showing of utmost good faith by him in executing the contract. See Rohrich v. Kaplan, 248 N.W.2d 801, 807 (N.D.1976).

1998 ND 29, ¶ 12, 574 N.W.2d 834.

[¶ 10] The Biwers argue that only the contract should be examined and not the other circumstances surrounding the transaction when considering whether specific performance would be just and reasonable. See Linderkamp, 1997 ND 64, ¶ 5, 562 N.W.2d 734 (“Specific performance may be denied if a contract is not fair, reasonable, and based on adequate consideration.”). Specific performance, however, is an equitable remedy and equitable principles must be followed. Id. California, for example, in analyzing its statute limiting the use of specific performance examines all the circumstances of a transaction as they existed at the time the contract was entered to decide whether the transaction is just and reasonable. See Ellison v. Ventura Port Dist., 80 Cal.App.3d 574, 145 Cal.Rptr. 665, 670 (1978) (“It is settled that the fairness and reasonableness of a contract is determined from the circumstances as they existed at the time of the making of the contract.”) (citing County of L.A. v. Law Bldg. Corp., 254 Cal.App.2d 848, 62 Cal.Rptr. 542, 547 (1967)). We are persuaded by the California court’s logic because its approach better serves the equity principals on which specific performance is based. See Sand, 224 N.W.2d at 377 (“As such, concepts of justice, and even mercy, for the individual case predominated over general rules of law.”). We conclude that all the circumstances surrounding the transaction may be considered when deciding whether specific performance is just and reasonable to a party.

[¶ 11] Herman Landers testified at trial that he told the Biwers the North Quarter was not for sale. He testified Cherlyn Biwer asked him if he would sell the North Quarter to them if he ever decided to sell. Herman Landers testified that the day they signed the North Quarter option, Cherlyn Biwer told him they were signing “an option giving us first chance to buy if you ever decide to sell.” Herman Landers testified he completely trusted her. He also testified he considers the North Quarter a family keepsake. Cherlyn Biwer testified she asked the Landers, “[I]f you don’t want to sell it today will you give us an option to buy it?” In light of the Landers’ adamant unwillingness to sell, the short time in which the Biwers claim the Landers had changed their minds, the Landers’ understanding that the document was a right of first refusal, and Cherlyn Biwer’s comment of “if you don’t want to sell it today,” the district court found that the Biwers had not proven specific performance would be just and reasonable to Herman Landers. We give “due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.” Moen v. Thomas, 2001 ND 95, ¶ 20, 627 N.W.2d 146. The district court reasonably concluded that the Landers’ unwillingness to sell, the Landers’ belief that the contract was a right of first refusal, and Cherlyn Biwer’s and Herman Landers’ exchange about an option if the Landers did not want to sell the North Quarter that day made specific performance neither just nor reasonable to Herman Landers. The Landers regarded the North Quarter as a family keepsake, and the district court, exercising its province to assess the credibility of the witnesses, clearly believed the Landers had no intention of selling it. Therefore, the district court did not abuse its discretion when it concluded specific performance would not be just and reasonable to the Landers.

[¶ 12] The court also found the Biwers misrepresented the contract to the Landers as a right of first refusal. Although this misrepresentation could not rescind the contract because the Landers failed to read what they signed, the court was clearly persuaded by Herman Lan-ders’ testimony that Cherlyn Biwer told them the contract was “an option giving us first chance to buy if you ever decide to sell.” Although Cherlyn Biwer disputed the testimony, the court concluded Herman Landers’ testimony was more credible. We give “due regard to the trial court’s opportunity to assess the credibility of the witnesses,.... ” Moen, 2001 ND 95, ¶20, 627 N.W.2d 146. Herman Landers’ testimony is evidence that the Biwers came “into court with ‘unclean hands.’ ” Boe, 1998 ND 29, ¶ 12, 574 N.W.2d 834. Therefore, the district court did not abuse its discretion when it concluded that because of their misrepresentations, the Biwers were not entitled to the equitable remedy of specific performance. The district court’s denial of specific performance of the contract is affirmed.

Ill

[¶ 13] The Biwers argue the district court erred when it concluded they were not entitled to any damages for the breach of the option agreement. The Biwers argue they may rely on the Landers’ complaint and Herman Landers’ deposition testimony to prove the value of the North Quarter. The amount of damages to which a party is entitled is a question of fact, and this Court will not reverse the district court unless it is clearly erroneous. Hopkins v. McBane, 427 N.W.2d 85, 94 (N.D.1988).

[¶ 14] The party seeking damages has the burden to prove the amount of damages incurred. Olson v. Fraase, 421 N.W.2d 820, 827 (N.D.1988). Section 32-03-13, N.D.C.C., defines the formula for damages for a breach of a property contract:

The detriment caused by the breach of an agreement to convey an estate in real property is the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach and the expenses properly incurred in examining the title, and in preparing to enter upon the land, and the amount paid on the purchase price, if any, with interest thereon from the time of the breach.

We will sustain an award of damages if it is within the range of the evidence presented to the trier of fact. See State v. Tupa, 2005 ND 25, ¶7, 691 N.W.2d 579.

[¶ 15] The Landers’ complaint stated the North Quarter “was appraised during the probate in November 1990 at $65,000; which is still the fair market value.” Herman Landers testified at his deposition that the North Quarter had been appraised at $60,500. He also testified that if he were to place the North Quarter on the market, he would not take $70,000 and could get $75,000.

[¶ 16] The Biwers also provided evidence regarding value of the North Quarter. In her deposition, Cherlyn Biwer testified a contract price of $50,000 was more than what the land was worth:

Q: Okay. And is 50,000 a good price for that land?
A: Yes. It’s probably more than what it’s really worth, but it’s worth that to us, because it borders our land.

Cherlyn Biwer testified at trial that $50,000 was a fair price:

Q: So, you felt basically the negotiated price of 50,000, which works out to be a little more than 300 an acre, was a fair price?
A: It was more than fair.

The Biwers argue the district court may not rely on their own testimony because they were not qualified as experts. Then-evidence regarding property value, however, was not objected to by any party but came into evidence and could be considered by the district court. See Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 7, 646 N.W.2d 681 (“To take advantage of irregularities during trial, a party must object at the time they occur, so that the trial court may take appropriate action if possible to remedy any prejudice that may have resulted.”). Evidence from the Lan-ders and the Biwers, therefore, provided the district court with a range of value from $50,000 to $75,000.

[¶ 17] Furthermore, the district court gave the Biwers fourteen days from the date of its memorandum opinion to submit a detailed claim for damages. The district court extended this deadline by another fourteen days. The Biwers presented no expert appraisal in that time, instead relying solely on the Landers’ statements of value.

[¶ 18] Section 32-03-13, N.D.C.C., provides for recovery of the difference between the contract price and the value of the real estate at the time of breach. The Biwers’ proof of value at the time of breach included amounts both less than and greater than the $55,000 contract price. The value the district court found was within the range of the evidence presented to the trier of fact. Therefore, the district court did not clearly err when it concluded the Biwers were entitled to no damages.

[¶ 19] Section 32-03-13, N.D.C.C., however, provides for the return of the amount paid on the purchase price when there has been a breach of a real estate contract. In the option agreement for the North Quarter, the Biwers paid $500 as consideration for the option that was to be applied towards the purchase price if the option was exercised. The Biwers attempted to exercise the option. Therefore, the Biwers are entitled to return of the $500 paid towards the North Quarter, plus interest due. The district court clearly erred when it did not order the Landers to return the $500 to the Biwers. We reverse and remand to the district court for an order returning the $500 paid towards purchase of the North Quarter, plus interest.

TV

[¶ 20] The Biwers argue the district court erred when it found they owed the Landers rent and repair costs for the use of the Wishek disk. For disputes involving oral contracts, the trier of fact determines whether an oral contract exists and what the terms of the oral contract are. Smith Enters., Inc. v. In-Touch Phone Cards, Inc., 2004 ND 169, ¶ 13, 685 N.W.2d 741. The findings of the district court will not be reversed unless they are clearly erroneous. Id.; N.D.R.Civ.P. 52(a). “On appeal, the trial court’s findings of fact are presumed to be correct, and the complaining party bears the burden of demonstrating a finding is clearly erroneous.” Moen, 2001 ND 95, ¶ 19, 627 N.W.2d 146. We give “due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.” Id. at ¶ 20.

[¶21] Randy Landers testified he and his brother Jerry Landers had loaned the disk to the Biwers in the past. Randy Landers testified the agreement for its use had been $3.50 per acre. The alleged unpaid use of the disk was for roughly 77.5 acres. Randy Landers also testified the disk was damaged when it was returned to them. He testified he paid for repairs costing “over $1,000.” The Biwers introduced into evidence four checks that show payment for use of the disk in prior years. From this evidence, the court could reasonably conclude the parties had continued their past oral agreement, under which the Biwers would pay the Landers $3.50 per acre. The court could also reasonably conclude repairs were part of the oral agreement. Randy Landers’ testimony showed the amount owed for using the disk was $271.25. Repairs would have been $828.75 of the $1,100 judgment. Randy Landers testified the disk was roughly five or six years old, and some of the repairs, such as bearing replacement, were normal maintenance. Therefore, some reduction in the $1,800 the Landers prayed for is justified. The district court did not clearly err in finding a contract existed between the parties for use of the Wishek disk or in determining the amount of rent and repairs due. The district court’s judgment awarding the Landers $1,100 for rent and repairs for the disk is affirmed.

V

[II22] We affirm, in part, the district court’s judgment denying specific performance, denying money damages for the Biwers, and granting damages for the Lan-ders for use of the disk. We reverse and remand so the $500 paid towards the purchase of the North Quarter, plus interest, may be returned.

[¶ 23] GERALD W. VANDE WALLE, C.J., STEVEN L. MARQUART, D.J., DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

[¶ 24] The Honorable STEVEN L. MARQUART, District Judge, sitting in place of KAPSNER, J., disqualified.