author: SATHRE, Judge.'

text:
    The STATE of North Dakota, Plaintiff and Respondent, v. Wayne POWELL, Defendant and Appellant.
    No. Cr. 261.
    Supreme Court of North Dakota.
    Dec. 13, 1955.
    Wm. L. Paulson, Valley City, for defendant and appellant.
    Paul Benson, Atty. Gen., Leslie R. Bur-gum, State’s Attorney, D. W. Butts, Asst. State’s Atty., Jamestown, for the State.
   SATHRE, Judge.'

This is a criminal action. The defendant was charged with the crime of Sodomy under Section 12-2207, NDRC 1943 committed on the person of a boy 11 years of age. The crime is alleged to have been committed in the City of Jamestown on the 29th day of August 1953. .The case was tried'to a court and a jury in the' district court of Stutsman County and the jury returned a verdict of guilty. The case is here on appeal from the judgment and sentence.

The victim of the crime, Robert Ulrich was a hoy 11 years of age at the time of the alleged commission of the crime. He had a paper route in the City of Jamestown delivering the Jamestown Sun. The defendant was on his delivery route. The defendant resided on the second floor in what is know as the Duffy Apartments. In the afternoon of August 29th, Robert was delivering papers. He went to the Duffy Apartments about 10 minutes to three, walked up the stairway and threw the paper up and in front of the entrance of the defendant’s living quarters. The defendant came to the door, picked up the paper and asked the boy if he .threw the paper up. The boy said he did and that he wanted to find out if he the defendant was at home because he intended to collect for the paper. He then went up to the defendant’s room and the defendant asked him how much he owed him and he said 30 cents. The defendant then went into his bedroom and from there into the kitchen looking for his wallet and after awhile he came back and handed the boy a dollar. The boy said he did not have that much coming. The defendant then asked him: “are you going to the ball game”, to which the boy replied: “I haven’t the money”; the defendant then said you will be able to go now; Robert said: “I shouldn’t take it”, but finally accepted the dollar. The defendant then told the boy to come over and sit down on the davenport and the defendant sat down beside him. He stated that the defendant had on no shirt, no shoes or stockings but only his shorts; that the defendant then had Robert put down his pants half ways to his knees. The defendant then attempted an act of sodomy upon him, but Robert pushed defendant away, pulled up his pants, and was leaving the apartment; that the defendant then told him to raise his right hand and to promise not to tell anybody what had happened; that he, Robert, then went on his way, delivered one or two papers and then went home, threw his paper bag on the davenport and finally began to cry. After some coaxing by his mother he told her what ■ had happened. The mother then called her husband who came home and they went to the state’s attorney’s office and reported what had happened. The defendant admitted that Robert delivered the paper in the afternoon at about 3 o’clock as stated in his testimony and that the defendant paid the boy one dollar. He denied the rest of the boy’s story. He said that when Robert Ulrich delivered the paper that afternoon, he, the defendant had shoes and socks on, shorts, undershirt and trousers. The defendant’s daughter was a witness in his behalf and she testified that she was at home during that time, and that she was somewhat indisposed and that she went to the bathroom several times. The defendant’s son-in-law also testified in behalf of the defendant and he stated thát he came to the defendant’s apartment at about 1:30 in the afternoon and that he was there assisting his wife who was not feeling well; that thereafter he went down town and had a hair cut and came back about 2:30 p. m. Both defendant’s daughter and his son-in-law testified that they had not seen the boy in the apartment that afternoon.

The case was submitted to the jury, and the jury returned a verdict finding the 'defendant guilty as charged in the information. The defendant thereafter made a motion for a new trial upon the following grounds:

1. That the verdict is contrary to law and is not supported by the evidence. That there is no corroborating evidence of the commission of the crime, and that the sole evidence of the commission of the crime was given by the complaining witness who was an accomplice.
2. The high improbability that this act could have taken place at the time and place alleged and under the circumstances in that there were other persons present in and about the apartment when the act was alleged to have taken place.
3. Irregularities during the trial by the misconduct of the state’s attorney which was prejudicial to the defendant, and which prevented him from having a fair trial.

The motion was denied and the defendant appealed from the ' order denying the motion and from the judgment of conviction.

The defendant contends that the complaining witness Robert Ulrich was an accomplice in that he consented to the act charged and therefore a conviction could not he sustained 'by or on his "own testimony without corroboration under Section 29-2114, NDRC 1943. The trial court submitted to the jury the question of.whether or not Robert Ulrich was an accomplice. We quote from the Court’s instructions:

“An accomplice is defined as ‘An associate in crime; one who cooper--ates, aids or assists in the committing of it.’ It is for you to determine from the testimony in this case whether or not the witness Robert Ulrich was an accomplice in the commission of the alleged crime. If Ulrich was not an accomplice, then the law requiring corroboration of the testimony of an accomplice does not apply. If you find such -crime was committed and that Robert Ulrich was an accomplice in committing it, his testimony must be corroborated before you can find the defendant guilty.”

The trial court instructed further on the question of whether or not the complaining Robert Ulrich was an accomplice:

“If you find there was an act of sodomy, if in the commission of the act, Robert Ulrich was the victim of fraud or undue influence or lack of knowledge of the act so that he did not act voluntarily and join in the commission of the act with the same intent that the accused did, then Robert Ulrich should not be regarded as an accomplice.”

The question whether in an offense of this type in which there are two or more participants, one of them is an accomplice, is a question of fact to be determined by the jury. State v. Kellar, 8 N.D. 563, 80 N.W. 476. See also Dutzler v. State, 41 Ariz. 436, 19 P.2d 326; State v. Warner, 79 Utah 510, 13 P.2d 317.

The defendant next contends that Robert Ulrich testified definitely that he took down his pants and voluntarily permitted the defendant .to do the act complained of. That is not the testimony of Robert Ulrich. According to his testimony whatever he did was at the request of the defendant. It cannot be said therefore that he .voluntarily submitted to the alleged improper advances of the defendant. Robert Ulrich testified that when he came into the apartment there was a large clock on a table near the door and that he looked at the clock and that it showed 10 minutes to three. The defendant admitted that the time was 10 minutes to three by the clock when Robert Ulrich came to the apartment. He admitted that he went to look for change and that he asked Robert if he were going to the ball game, arid that he gave him one dollar, and that he told him to keep it. So far therefore the testimony of the defendant is in agreement with the testimony of Robert Ul-rich.

The defendant next argues that it is highly improbable that this act could have taken place at the time and place testified to by Robert Ulrich for the reason that the defendant’s daughter and his son-in-law testified that they were in the apartment during the time when the alleged act had taken place. It is of course true that it is improbable that this act Could have taken place' in the apartment while the defendant’s daughter and son-in-law- were present and were-in and out of the rooms in the apartment. However it is also improbable that' a boy who' at the time was only 11 years old could have invented a scheme to charge the defendant with a felony of such nature. He would know that he would have to disclose the whole affair to the authorities to his own shame and embarrassment. It is highly improbable that a boy of his age would resort to such reprehensible conduct. The testimony of the defendant' and his- witnesses was in direct conflict with the-testimony of Robert Ulrich. The issue thus created was submitted to the jury and the jury evidently believed the story of Robert Ulrich. ,. . .

The defendant next contends that the state’s attorney was guilty of misconduct to the prejudice of the defendant because- of certain questions asked of the' corhplaining witness Robert Ulrich and also because of cross examination of the defendant.

On direct ¡examination the complaining witness Robert Ulrich testified to what the defendant did to him while the- two were sitting on the davenport. He was then asked:

“Q. Then what happened, what did he do?
“A. He just got'up and I got — He ■ just sat up and I got up and pulled up my pants and buckled them'.” - • -

Later the state’s attorney asked Robert Ulrich practically the same question as to what the defendant did after -the act complained of.

The question was objected to as repetitious. The objection was sustained. This question was assigned as prejudicial to the rights of the defendant. We fail to see how this question could be prejudicial to the defendant. It was objected to by defendant’s counsel and the objection was sustained.

On direct examination the defendant had testified in detail as to the exact time when-Robert Ulrich -came to his apartment, that is at 10 minutes to three; that his son-in-law came to his apartment at 1:30 p. m. and that during the time the alleged offense was committed his daughter was in the bathroom .and in the bedroom of the apartment. On cross examination he was asked this question:

“Isn’t it'true Mr. Powell that after this matter came up that this time element had to be arranged so that you could account foi every minute and defeat, the testimony of this boy that was here on the stand.”

This question was objected to on the grounds that it was highly prejudicial; in-cqmpetent, irrelevant and immaterial. The objection was overruled and the defendant answered as follows:

“Yes because the time element would be a deciding factor for the case.”

Wé fail to see that the question asked and his answer thereto could be prejudicial to the defendant. The defendant also objected to the following questions asked Robert"Ulrich by the state’s attorney:

“Q. What did you do when you arrived home?
“A. Well I went into the house and I threw my paper bag on the davenport and then I told mother.
“Q. Did you cry Robert ?
“A. Yes after a little while.”

Robert Ulrich was not permitted to tell whát he told his mother or. what he told his father. We fail to see that these questions asked of Robert Ulrich could be prejudicial to the defendant. Several other questions of similar nature were asked Robert Ulrich and objected to as prejudicial, but it is unnecessary to repeat them here except to say that we fail to see where they could in any way prejudice the rights of the defendant.

In his supplemental brief the defendant t.ook exception to certain portions of the Judge’s instructions to the jury. In this connection the record shows that the following proceedings were had. After the close of the testimony and after both sides had made their-arguments the following discussion was had between court and counsel :

“The Court: You gentlemen look over these instructions which the court intends to give. I would like to have you consider them during the recess, and if you have any exceptions, I would like to have them noted; and if you have any additions or alterations, I would like to have your suggestions there too. (Court admonishes jury.)
The Court: We will have-a short recess at this- time. (Recess taken.) (The following proceedings .were .had without the jury.)
“The Court: What do you say' to the instructions ?
“Mr. Burgum: Satisfactory to the. , State.
“The Court: And you, Mr. Paulson ?
“Mr. Paulson: I think so.

Section 29-2133, NDRC 1943 provides as follows:

“The court may submit to the counsel in the case for examination the written instructions which it proposes to give to the jurors, and may require such counsel, after a reasonable examination thereof, to designate such parts thereof as he may deem objectionable, and thereupon such counsel must designate such parts of the instructions ás he may deem improper, and thereafter only the parts as designated shall be deemed excepted to, or subject to exception.”

As pointed out both sides were given copies of the instructions which the court proposed to give and they had an opportunity to examine them. After such examination by counsel the court inquired if the counsel had any additions or alterations, and if they ‘ did -he would like to- have their suggestions. The record shows the state’s attorney considered the instructions satisfactory to the state and likewise the counsel for the defendant stated, “I think so”, which must be construed to mean that he was satisfied with the instructions. We think therefore that upon this record the counsel for the defendant was foreclosed from making any exceptions to the instructions. “

The record does not establish that any errors of law were committed at the trial. A care'ful reading of the transcript demonstrates that the trial court was eminently fair to the defendant, and in all rulings consistently resolved- all doubt in favor of the defendant.

There is a sharp conflict between the testimony of the state’s witness, Robert Ulrich, and the testimony of the defendant and his witnesses. There was therefore an issue of fact which the trial court properly submitted to the jury. The jury heard and saw the defendant, and his witnesses and undoubtedly gave proper weight to their testimony. The jury also saw the complaining witness, Robert Ulrich, observed his general' demeanor and heard and weighed the reasonableness of his testimony as they had a right to do, They undoubtedly took into consideration his age, physical appearance, his degree of intelligence and his general attitude while on the witness stand. They returned a verdict finding the defendant guilty. We think the evidence is sufficient to support the verdict.

Finding no error in the record the judgment is affirmed.

BURKE, C. J., and SATHRE, MORRIS, GRIMSON and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: SATHRE, Judge.

license: Public Domain

text:
    David GUNSCH, Plaintiff and Appellant, v. Fred BAUER and Art Bieber, Defendants and Respondents.
    No. 7440.
    Supreme Court of North Dakota.
    Dec. 19, 1955.
    J. K. Murray, Bismarck, for plaintiff and appellant. ■ ■ : '
    Floyd B. Sperry, Golden Valley, for defendants and respondents.
   SATHRE, Judge.

This is one of a series of actions in which members of the Gunsch family are parties. The actions were consolidated for the purpose of trial and tried together. The issues in the ■ several actions grew out of the same state, of facts. The plaintiff in the instant case brought this action in re-plevin to recover certain personal property for the purpose of foreclosure of a chattel .mortgage thereon to secure payment of the .sum- of $4000.00 and interest at the rate of 4 per cent. The issues raised in the instant case are controlled by a companion case, .Gunsch v. Gunsch, N.D., 71 N.W.2d 623. In that case to which reference is had, we held that the chattel mortgage sought to be foreclosed was paid in full. The chattel mortgage which was the basis'of plaintiff’s claim to possession having been paid the trial court properly rendered judgment for the defendants.

Affirmed.

BURKE, C. J., and JOHNSON, GRIMSON and MORRIS, JJ., concur.


author: JOHNSON, Judge.

text:
    Charles KARABENSH, Plaintiff and Appellant, v. Lee J. GRANT, Defendant and Respondent.
    No. 7533.
    Supreme Court of North Dakota.
    Dec. 19, 1955.

      Lord, Ulmer & Murphy, Mandan, for plaintiff and appellant.
    R. J. Bloedau, Mott, for defendant and respondent.
   JOHNSON, Judge.

This is an appeal from a judgment obtained by default and from an order denying a motion to open or vacate the judgment thus obtained. There is also an attempt to appeal from the memorandum decision upon which the order denying the motion is based. No appeal lies from the memorandum decision. Zenker v. Winder, N.D., 68 N.W.2d 671.

The plaintiff brought an action to foreclose a mechanic’s lien against defendant covering property in the city of Mott, Hettinger County, North Dakota. The defendant answered and set up a counterclaim. A reply was made thereto. The plaintiff noticed the case for trial. January 11, 1955, the Clerk of the District Court, Hettinger County, notified the attorneys for the plaintiff that a term of the district court would convene on Tuesday, February- 1, 1955, at the hour of ten o’clock in the forenoon in Hettinger County, 'Mott, North Dakota. At the call of the calendar on ■February 1, 1955; the plaintiff was' represented by local counsel. He, however, did not know anything about the case¡ Plaintiff and his regular counsel were not present. This case was the only case on the calendar'for trial. On February 1, 1955, plaintiff’s' counsel was engaged in the trial of another action in Grand Forks County, North Dakotas' The defendant was ready for trial and the case was tried by the district court in the absence of the plaintiff and his attorneys. Judgment was granted to the defendant on • his counterclaim. It was filed and docketed the same day the case was tried, February 1, 1955.

On February- 15, 1955,';plaintiff’s -attorneys served notice of motion and motión-to stay execution of the judgment to open the default judgment and set it aside. The motion was heard by the district court on the 14th day of April, 1955; On the 21st day of April 1955 the district court denied the motion. The plaintiff based his motion on several grounds. He relies principally, however, on inadvertence and excusable neglect as a basis for his request to vacate and set aside the judgment.

In this court the defendant moves to strike the settlement of the statement of case and dismiss the appeal. He asserts that no proper notice of settlement of the case was ever served upon him and the case never settled as required by statute. He also states that no valid cost bond on appeal has been furnished by appellant. If these objections have merit, the practice questions raised may prevent us from discussing the circumstances upon which the plaintiff relies in'his motion to open and set aside the judgment of the defendant.

, A notice of certification of record was perved ppon the defendant’s attorney. It recites:

“That said plaintiff herein will, not less than fifteen (15) nor more than thirty (30) days after the service hereof, present to 'the Court for certification on appeal the records, files and papers, copies of which are hereto attached and herewith served upon you.”

On June 25, 1955, without further notice to the defendant or his attorney, the district court entered its order settling the statement of the case. No transcript is involved.

It is clear that when Sections 28-2805 and 28-1806 NDRC 1943 are construed together, that the notice of motion for settlement' of the statement of a case contemplates a notice which sets the date, time and place for a hearing thereon. Subsection 2 of section 28-1806 pertains only to the transcript. But it speaks of the “date set” and the “time set”. The notice of certification of the record in this action does not ’ constitute a proper notice contemplated by the statutes. The record shows that there has been no compliance with the statutes for settlement of the statement of the case. Pollock v. Johnson, 42 N.D. 81, 172 N.W. 62. The statement of the case must be stricken.

It is urged that since the defendant did not object to any'part or portion of the record within “five days before the date set”; 'he waived his right to challenge the certification. Suffice it to sáy no date was set by the plaintiff, and the quoted phrase applies to the transcript only.

We will next determine whether any appeal has been perfected. To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by -at least two sureties to the effect that the appellant will pay costs and damages which may be awarded against him on appeal not exceeding $250. Section 28-2709 NDRC 1943. Section 28-2723 NDRC 1943 deals with the justification of sureties on an appeal undertaking. One of the requirements of that section is that each surety shall state that he is worth a certain sum mentioned in his affidavit over .and above his debts and liabilities “in property within this state not by laiw exempt from execution”. In the undertaking filed on this appeal the sureties signed an affidavit of justification as follows :

“ * * * being duly sworn on oath do say each for himself that he is one of the sureties on the foregoing cost bond on appeal, and that he is worth the sum of Five Hundred Dollars ($500.00) over and above his liabilities arid his legal exemptions, and that he is a householder of the County of Morton, State of North Dakota.”
“that an undertaking upon appeal shall be of no effect, unless accompanied by the affidavit of the sureties, in which each surety shall state that he is worth the sum mentioned in such affidavit over and above all his debts and liabilities in property within this state, not by law exempt from exe- . cution, and the sum so sworn to by such sureties shall in the aggregate be double the sum specified in such undertaking. Held, that an appeal to this , court in which the undertaking, referred to in said section is supported by an affidavit which fails to state that the propérty of the sureties is within this state in the amount specified is ineffectual for any purpose, and that such undertaking must. be stricken out on motion, and the appeal dismissed.” (Emphasis supplied.)

In resistance to the motion to strike and to dismiss, the plaintiff asserts that the cost bond on appeal is proper, sufficient and in accord with the statute and that the failure of counsel for defendant to object to the sufficiency of the sureties within the time required by statute at the taking of the appeal constitutes a waiver of such objection, ,The objection does not involve the sufficiency of the sureties. It involves a failure to present an undertaking in which the sureties have justified in terms required by the statute. The-bond is ineffectual and for that reason the appeal, must be dismissed. - .' :

The rule in the case of Stewart v. Lyness, supra, has been reiterated by this court in the cases of Burger v. Sinclair, 24 N.D. 326, 140 N.W. 235 and W. T. Rawleigh Medical Co. v. Laursen, 25 N.D. 63, 141 N.W. 64, 48 L.R.A.,N.S., 198. See also McLean v. Underdal, 73 N.D. 74, 11 N.W.2d 102. In these cases application for leave to amend was made. In this case, as in the case of Stewart v. Lyness, Supra, there is no intimation made by the plaintiff and appellant that he desires to amend his undertaking under the provisions of Section 28-2726 NDRC 1943. Apparently he stands on the undertaking furnished.

The appeal is dismissed.

BURKE, C. J., and SATHRE, MORRIS and GRIMSON, JJ., concur. '


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Wambli S. McARTHUR, Appellant.
    No. A06-853.
    Supreme Court of Minnesota.
    April 12, 2007.

      Benjamin Jon Butler, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, Saint Paul, MN, J. Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant Wambli S. McArthur appeals his conviction for first-degree, premeditated murder. McArthur argues (1) the evidence is insufficient to establish premeditation; (2) the testimony of witnesses’ fears of him was erroneously admitted; and (3) the prosecutor committed misconduct during closing argument. In his pro se supplementary brief, McArthur argues that an order prohibiting his attorney from discussing witnesses’ identities with him until seven days before trial was improper and prejudicial. For the reasons discussed below, we conclude the evidence is sufficient to support a guilty verdict, the district court did not abuse its discretion in admitting evidence of witnesses’ fears of McArthur, and the prosecutor did not commit misconduct during closing argument. In addition, we deny McArthur’s pro se claim without prejudice, as a postconviction proceeding is the proper forum for his claim.

On the night of June 22-23, 2005, a number of individuals relaxed outdoors in a courtyard area of “Cluster Seven” of the Little Earth Housing Project in South Minneapolis. At about 12:30 a.m., two men walked up to the courtyard-facing patio of the unit located at 2515 Cedar Avenue South where Vincent LaRoque had been conversing with several acquaintances. One of these men approached La-Roque from behind and shot him in the head with a handgun. The two men, as well as a number of bystanders, quickly left the scene. LaRoque was taken to a hospital, where he died from the gunshot wound several days later. An autopsy revealed that the gunshot wound had been inflicted from a distance of about 12 inches or less.

The police investigation yielded only a single piece of metal that may or may not have been the bullet that passed through LaRoque’s head. No shell casings were located at the scene. No weapon was found. A grand jury indicted McArthur on one count of first-degree murder in violation of Minn.Stat. § 609.185(a)(1) (2006) and on one count of second-degree murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2006).

Before trial, the district court, pursuant to a motion by McArthur, ordered the state to refrain from introducing evidence related to McArthur’s alleged gang affiliation. In addition, the court declined to admit evidence of McArthur’s prior convictions, either as Spreigl evidence or for impeachment purposes, reasoning that the convictions were unduly prejudicial and insufficiently probative. But the court also ruled, over McArthur’s objection, that witnesses would be permitted to testify about their fears of McArthur, McArthur’s family, and McArthur’s friends. The court did not limit this testimony to redirect examination and did not specify that any foundation would be required before it could be admitted. The court reasoned that this evidence was relevant to witness credibility and may help explain any reluctance the witnesses may have had to come forward with information against McArthur. Many witnesses did ultimately discuss their fear of McArthur. McArthur failed to request a cautionary instruction concerning this testimony, and no cautionary instruction was given.

At trial, the testimony of multiple witnesses implicated McArthur as the man who shot LaRoque. For example, two persons had been with LaRoque on the patio and witnessed the shooting at very close range. One of those persons identified McArthur as the shooter, and she said McArthur “was just staring at Vincent” as he approached and did not speak to anyone on the patio. The second person said she believed the shooter resembled McAr-thur, though she did not get a good look at the shooter’s face. A third person left the patio shortly before the shooting, and he said he saw two persons, one matching McArthur’s description, approach the patio just before LaRoque was shot.

Two other witnesses were close Ry at the time of the shooting. A girl standing just outside the patio of a neighboring unit saw two men walk up behind LaRoque. She observed one of the men pointing at LaRoque as they approached, and she said the other man “got behind him and then he shot him” with a revolver. She named McArthur as the shooter, and she said she heard two shots. A man who had been on the patio of another neighboring unit testified that he saw two men approach La-Roque, and he said one man, fitting McAr-thur’s description, was carrying a revolver. He said he heard a gunshot followed by a pause and then two more gunshots, perhaps from a different gun.

Two individuals were on a basketball court about 74 feet north of the patio at the time of the shooting. One picked Mc-Arthur’s photograph out of a photo lineup on June 23 and testified that McArthur fired two shots at LaRoque. The other said she saw two men, one fitting McAr-thur’s description, walk towards LaRoque shortly before she heard several gunshots.

One witness was looking out a window of a unit in Cluster Seven into the courtyard just before the shooting. From approximately 70 feet away, she thought she saw McArthur and another man standing near unit 2515. She heard loud talking followed by two gunshots several seconds apart. She identified McArthur in a photo lineup.

Two additional witnesses were in a parking lot south or southeast of the patio where LaRoque was shot. They testified that they heard a gun fire and then saw McArthur and another man fleeing from the direction of the patio area.

Another witness lived in a different housing cluster, about 208 feet northeast of unit 2515. From her unit, she saw McArthur and another man walking on a sidewalk near the basketball court toward Cluster Seven. She observed McArthur’s companion talking in McArthur’s ear and pointing towards unit 2515, and she saw McArthur was holding his pants at the beltline, as though he were carrying a gun or a knife. She went into her house and heard a gunshot, and shortly thereafter she saw the two men in the parking lot, laughing and walking quickly while carrying something wrapped in a shirt. She picked both men out of photo lineups.

Several defense witnesses said McAr-thur spent June 22 working for a moving company and then had relaxed with his coworkers in Roseville until late evening, but no witness could definitively account for McArthur’s whereabouts at 12:30 a.m. on June 23. McArthur did not testify.

On January 25, 2006, the jury returned a guilty verdict on the charge of first-degree, premeditated murder, and McArthur was sentenced to life imprisonment. McArthur appeals his conviction.

I.

McArthur challenges the sufficiency of the evidence regarding premeditation. More specifically, he argues that there was no evidence of motive or even any indication that McArthur and La-Roque knew each other. He claims that there is minimal evidence of planning activity because, while he was armed, it was not shown that he armed himself just prior to the murder or that he armed himself for the purpose of committing the murder. He further asserts that the evidence about the nature of the murder is insufficient to support a finding of premeditation, arguing that an attack from behind is insufficient to show premeditation, and that there was no evidence that he overcame any obstacles to commit the murder which might show a determination to kill.

A person is guilty of premeditated, first-degree murder if he or she “causes the death of a human being with premeditation and with intent to effect the death of the person or of another.” Minn. Stat. § 609.185(a)(1). “ ‘[Premeditation’ means to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn.Stat. § 609.18 (2006). Neither a specific period of deliberation nor evidence of extensive planning is required to prove premeditation, but “the state must prove that some appreciable period of time passed after the defendant formed the intent to kill, during which the statutorily required consideration, planning, preparation, or determination took place.” State v. Moua, 678 N.W.2d 29, 39 (Minn.2004). Because premeditation requires proof of an individual’s mental state, it is almost always proved circumstantially. State v. Leake, 699 N.W.2d 312, 319 (Minn.2005).

Typically, when the sufficiency of the evidence is challenged, this court reviews the evidence to determine “whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465, 476 (Minn.2004) (citation and quotation marks omitted). But, when a conviction is based solely on circumstantial evidence, that evidence must be “consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis except that of guilt.” Id. at 477 (citation and quotation marks omitted). “[I]n such cases the circumstantial evidence must do more than give rise to suspicion of guilt; it must point unerringly to the accused’s guilt.” Id. (citation and quotation marks omitted). Nevertheless, this court still recognizes that the jury “is in the best position to evaluate the circumstantial evidence surrounding the crime.” State v. Bias, 419 N.W.2d 480, 484 (Minn.1988) (citation and quotation marks omitted).

Although review for sufficiency of evidence requires consideration of the totality of the circumstances, we typically focus on three types of evidence when reviewing a conviction to determine whether the evidence of premeditation is sufficient. See Moua, 678 N.W.2d at 40. First, we consider evidence of planning activity. Id. Examples of planning activity include prior possession of the murder weapon or stealthy approach of the victim. Id. Second, we consider motive evidence. Id. Motive evidence includes threats by the defendant, conduct by the victim known to have angered the defendant, and plans or desires of the defendant that would be furthered by the victim’s death. Id. at 41. Although evidence of motive is probative of premeditation, motive evidence is not necessary to prove premeditation. Id. Third, we consider evidence about the manner of the killing, i.e., whether it “was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.” Id. (citation and quotation marks omitted). This third type of evidence includes the number of wounds inflicted, infliction of wounds to vital areas, infliction of gunshot wounds from close range, passage of time between infliction of wounds, and a defendant’s concern with escape rather than with rendering aid to the victim. Id. at 41-42.

McArthur is correct that no evidence of motive was introduced. Similarly, the murder itself is the only indication that McArthur and LaRoque may have been acquainted. But there is evidence regarding planning activity. McArthur was armed, and he presumably obtained the gun sometime after he left work, no more than a few hours before the murder. Although McArthur did not have to pursue LaRoque or overcome any specific obstacles, he did have to cross a significant expanse of open ground. Cf. State v. Amos, 347 N.W.2d 498, 501 (Minn.1984) (indicating the fact that the defendant armed himself and ran across the street to shoot a victim from close range is evidence of premeditation). Two witnesses testified that McArthur and his companion were speaking as they approached and that Mc-Arthur’s companion pointed in the direction of the victim. McArthur walked directly up to LaRoque, apparently “staring” at him. Moreover, the evidence regarding the nature of the killing is also significant. McArthur shot LaRoque from behind, in the head, and from extremely close range. While LaRoque suffered only one wound, there was testimony that multiple shots were fired. McArthur fled the scene following the shooting. We conclude that there was sufficient evidence to support a finding of premeditation.

II.

McArthur claims that testimony regarding witnesses’ fears about participation in the case was irrelevant and inadmissible. He concedes that such testimony would be relevant to “explain[ ] some major inconsistency in the witnesses’ testimony,” but he argues that most of the testimony to which he objects was brought out on direct examination, before it was clear the defense would seek to exploit any inconsistencies. McArthur claims the failure of the court to give a cautionary instruction exacerbated the error.

McArthur specifically objects to the testimony of five witnesses. One of these witnesses explained during direct examination that her failure to name McArthur as the shooter when she first spoke to the police was attributable to her fear of Mc-Arthur and his family, including McAr-thur’s brother, the father of her children. This same witness also testified that the Minneapolis Police Department paid her $600 for rent because the police wanted to keep her out of public places after she heard that threats had been made against her by her children’s father. A second ■witness admitted during cross-examination that she did not tell the police that her daughter ■witnessed the murder, and on redirect examination she explained that she did not name her daughter because her daughter had been afraid and she was not certain her daughter would want to come forward. A third witness, when asked on direct examination why she could not identify the man she saw shoot La-Roque, indicated that she did not get a good look at the shooter and stated “the only people I’m ever around in the projects is my family * * * I don’t know a whole lot of people there[,] I mean, you hear names and you hear stories or reputations and stuff.” A fourth witness testified during direct examination that she did not sign the statement she gave to the police or the photo of McArthur that she picked out of the photo lineup because she was frightened and did not want anyone to “come after” her. A fifth witness, on redirect examination, denied wanting to testify against McArthur to please LaRoque’s family and stated that she did not in fact want to get involved in the case against McArthur because she had concerns about her safety.

This court reviews a district court’s evidentiary rulings under an abuse of discretion standard. State v. Clifton, 701 N.W.2d 793, 797 (Minn.2005). Relevant evidence is generally admissible. Minn. R. Evid. 402. Bias, which may be induced by self-interest or by fear of testifying for any reason, is almost always relevant because it is probative of witness credibility. See Clifton, 701 N.W.2d at 797. But even relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Minn. R. Evid. 403. The district court should be concerned that the evidence of fear is not used to create an inference that a defendant is a bad person who is likely to commit a violent crime. State v. Harris, 521 N.W.2d 348, 352 (Minn.1994).

Recent cases have emphasized that the probative value of evidence of a witness’s fears is greatest when offered on redirect examination, in response to attacks on witness credibility. See State v. Vance, 714 N.W.2d 428, 441-42 (Minn.2006); Clifton, 701 N.W.2d at 797-98. And evidence of witness fears is most prejudicial when it is an important focus of the state’s case. See Vance, 714 N.W.2d at 442; Harris, 521 N.W.2d at 352. But we have also indicated that it may be appropriate for a party to anticipate a challenge to witness credibility and to attempt to explain expected issues of credibility on direct examination. Harris, 521 N.W.2d at 352. Even when introduction of such evidence is proper, we have stressed the need for district courts to provide safeguards, including cautionary instructions, in order to prevent the evidence from being misused. Clifton, 701 N.W.2d at 797-98 (approving the use of a cautionary instruction and the restriction of threat evidence to redirect examination); Harris, 521 N.W.2d at 353 (holding that the district court erred by not instructing that evidence of threats was admitted solely to show the defendant’s consciousness of guilt).

Weighing the probative value of evidence of threats or fears against the potential for unfair prejudice is a difficult task. Evidence of witnesses’ fears of testifying and of purported threats against witnesses both tend to be relevant to general witness credibility or to explain a witness’s reluctance to testify or inconsistencies in a witness’s story. But the district courts should ensure that evidence of fears of or threats by the defendant or others is not used to improperly attack the defendant’s character. In addition, while evidence that the defendant made threats against witnesses may be relevant to show the defendant’s knowledge of his or her guilt, this inference is inappropriate when the threats cannot be traced directly to the defendant.

Furthermore, when evidence of threats or fears is properly admitted, selecting appropriate safeguards is similarly difficult. In most cases in which evidence of threats or a witness’s fears may be properly admitted, it will be best to limit a witness’s testimony about those threats or fears to redirect examination, after cross-examination has made it clear that such testimony is needed to rebut an attack on the witness’s credibility. But such a limit may be improper if it prevents a witness from testifying completely and accurately and in a manner easily understood by the jury. Moreover, in cases where multiple witnesses are likely to be justified in testifying about their fears, it would be unreasonable to require the state to ignore the credibility issues on direct examination and then repeatedly rebut attacks on witness credibility during redirect, and it may be better to permit the state to address the issues on direct examination by inquiring into witness’s fears. There may be cases where it will be appropriate to address threats or a witness’s fears during direct examination to explain the witness’s demeanor or reluctance to respond to the prosecutor’s questions.

Because the proper approach will inevitably vary with the context, we cannot give precise guidance as to how evidence of witnesses’ fears or threats against witnesses should be handled in every case. Instead, we leave the case-by-case determinations to the discretion of the district courts, trusting them to make sound decisions about the admissibility of evidence of witnesses’ fear and to fashion appropriate safeguards in the event such evidence is admitted.

In this case, we agree with the district court’s rulings and hold that it did not abuse its discretion in admitting evidence of the witnesses’ fears. We note that the issues concerning witness fears arose in the broader context of several items of evidence that could prejudicially discredit McArthur’s character. In ruling on each item of proposed evidence, the district court displayed sensitivity to the potential for unfair prejudice. The court excluded evidence related to McArthur’s alleged gang affiliation as well as evidence of Mc-Arthur’s prior convictions. Moreover, some of the testimony of which McArthur complains appears to be clearly unobjectionable. Some of the testimony about a witness’s fears was given on redirect examination as an appropriate response to McArthur’s cross-examination. Other statements challenged by McArthur were so vagué — i.e. references to “stories or reputations and stuff’ — that they do not appear to be even an implicit reference to fear of McArthur.

Regarding the remaining testimony to which McArthur objects, although the state elicited evidence of witnesses’ fears of McArthur on direct examination, the state’s questions appear to be designed to preempt attacks by the defense on the credibility of witnesses and to explain inconsistencies in their statements and any delays in coming forward. And, although multiple witnesses testified about their fears, and the prosecutor mentioned those fears in his closing, the clear focus of the state’s case was the ample eyewitness testimony implicating McArthur as the shooter. Finally, while the court could have offered to give a cautionary instruction related to the testimony regarding threats and witnesses’ fears, no instruction was requested — perhaps as a matter of strategy — and “[o]rdinarily it is not plain error for the trial court to fail to sua sponte give an instruction.” Vance, 714 N.W.2d at 442-43. Accordingly, the district court did not abuse its discretion by permitting the prosecutor to inquire about witnesses’ fears during direct examination.

III.

McArthur claims that the prosecutor committed misconduct during closing argument. In his closing, the prosecutor stated the following:

Do you think by [the witness] naming the defendant, things were going to make — be made any easier for [the witness] given the fact she had a child by the defendant’s brother? I don’t think so. She had fear because of that as to what could happen, what the repercussions would be for her, not only her own safety but the situation with her child.

McArthur asserts this reference tó the witness’s concern for the safety of her child was something to which the witness did not testify, and therefore was a misrepresentation of the evidence. In addition, at the end of a discussion related to witness credibility, the prosecutor said the following:

When [the witnesses] took that witness stand, did they appear to be enjoying this? Did little [witness] appear to be enjoying this when she cried several times? Did [another witness] seem to be enjoying this being hauled in here after being arrested for not honoring her subpoena? I don’t think so. Were they getting anything out of this? Nothing. Again, there’s no motive for them to fabricate anything or engage in a conspiracy with each other. They were afraid to get involved. They were taking a risk, a safety risk.

McArthur contends that the prosecutor was vouching for the validity of the witnesses’ fears and inflaming the passions of the jury in this passage.

It is misconduct for a prosecutor to intentionally misstate evidence or to appeal to the passions of the jury. State v. Mayhorn, 720 N.W.2d 776, 786-88 (Minn.2006). Similarly, a prosecutor should not refer to facts not in evidence or vouch for the veracity of any particular evidence. See id. at 788-91; State v. Swanson, 707 N.W.2d 645, 656 (Minn.2006). Because McArthur did not object to either alleged instance of misconduct, he must establish that the misconduct constitutes error that is plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006).

Regarding the passage about “the situation with her child,” the witness clearly testified on redirect examination about her concerns that testifying against the brother of the father of her child would create intra-family conflict. The prosecutor’s statement is a fair reference to and characterization of that potential conflict. Consequently, nothing appears to have been misrepresented, let alone misrepresented intentionally.

Regarding the second passage, a witness did testify, during cross-examination by the defense, that her family had been threatened by the man who accompanied McArthur during the murder. Another witness testified about threats against her as well. Arguably, the evidence did establish that some witnesses were taking safety risks and the prosecutor’s statement was a fair characterization of the testimony. Moreover, although the prosecutor perhaps should have prefaced his statement about risk with “the witnesses believe,” it was apparent, given the context, that the prosecutor was speaking from the witnesses’ perspective. Accordingly, the prosecutor did not commit misconduct during closing argument.

IV.

Finally, in his pro se supplementary brief, McArthur argues that he was improperly denied adequate opportunity to participate in his defense. Specifically, he objects to a court order that he says restricted his access to information about the witnesses against him until shortly before trial.

Due process requires that defendants be afforded meaningful opportunity to present a complete defense. State v. Wildenberg, 573 N.W.2d 692, 697 (Minn.1998). But the record does not include any written order or a transcript of a verbal order. Thus, it is unclear what the order provided or whether and how McAr-thur may have been prejudiced by such an order. Because evaluation of this claim appears to require facts not in the record, this issue would be most appropriately raised in a postconviction proceeding. Accordingly, we deny the claim without prejudice to the renewal of it by a postconviction petition.

Affirmed.

      . While McArthur does not specifically object to them, there are several additional instances of testimony related to witnesses' fears.

      . McArthur argues that this testimony of a purported witness-protection-slyle arrangement should be treated separately. But we generally analyze evidence of the underlying threat as we do more general evidence of threats or witnesses’ fears, and, even if the rent payment constitutes participation in a witness protection program, evidence about any benefit received by the witness is relevant to credibility. See State v. Harris, 521 N.W.2d 348, 351-52 (Minn.1994) (applying Minn. R. Evid. 402 and Minn. R. Evid. 403). Moreover, if this testimony is treated separately, any error should be reviewed under the plain error standard, a standard less favorable to McArthur, because he did not specifically object to evidence of the rent payments. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Because we do not need to determine if any error was prejudicial and because we hold that the trial court did not err in its evidentiary rulings, we do not differentiate between evidence of the rent payments and evidence of witnesses’ fears more generally.


author: STONEBURNER, Judge.

text:
    In the Matter of the WELFARE OF the CHILDREN of M.L.A. and J.J.K., Parents.
    No. A06-2018.
    Court of Appeals of Minnesota.
    April 17, 2007.

      Donald G. Kirchner, Bemidji, MN, for appellant.
    Timothy R. Faver, Beltrami County Attorney, Annie P. Claesson-Huseby, Chief Assistant County Attorney, Bemidji, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

STONEBURNER, Judge.

Appellant challenges the denial of her motions to withdraw her admission and vacate a judgment terminating her parental rights to her two children and for a new trial, arguing that her admission to the allegations in the petition was coerced, that the judgment is invalid under the Indian Child Welfare Act (ICWA), and that the judgment is void for lack of adequate findings. Because there is no evidence in the record that the children involved are Indian children and because the findings are sufficient to support the judgment, we affirm the denial of appellant’s motions based on ICWA and insufficient findings. But because the district court failed to conduct an evidentiary hearing to determine whether appellant’s admission was coerced, we reverse the district court’s denial of appellant’s motion to withdraw her admission, vacate the judgment, and remand for an evidentiary hearing on this issue.

FACTS

A.T.K., born October 10, 2003, and T.J.K., born February 12, 2005, are the children of appellant M.L.A. (mother) and J.J.K. (father). Mother and father are not married and lived together only sporadically. The children were adjudicated in need of protection or services (CHIPS) based on mother’s admission to the petition of respondent Beltrami County Human Services (the county) alleging that mother failed to attend to the children’s medical and nutritional needs.

The children were placed in the care of their paternal grandparents, who intervened in the CHIPS proceeding without objection from mother. A.T.K. was returned to mother’s care approximately ten days after placement, and T.J.K. was returned to her care about two months later. But both children were soon returned to foster care.

More than six months after the children were adjudicated CHIPS, the county filed a termination-of-parental-rights (TPR) petition, asserting four statutory grounds for TPR and based, in part, on medical evidence that while in mother’s care, T.J.K. had suffered numerous fractures on his arms, legs, heel, and wrist, consistent with child abuse.

At a pretrial hearing, mother and father, who were represented by separate appointed counsel; the Guardian Ad Litem (GAL); paternal grandparents, who were also represented by counsel; and the county reached an agreement that was placed on the record. Mother and father agreed to involuntary termination of their parental rights, each admitting to one of the statutory grounds for TPR, and the county agreed to gradually integrate the children into paternal grandparents’ home for pre-adoptive placement with the understanding that father and mother’s immediate family would have continued contact with the children under supervision of paternal grandparents. The agreement was to be reduced to writing and signed by all parties before being submitted to the district court for issuance of an order and judgment.

On the record, all parties confirmed to the court that this was the agreement. Under oath, mother and father admitted a factual basis for TPR. Specifically, mother, after acknowledging that she had a right to trial, admitted that T.J.K. had suffered approximately nine fractures while in her care, constituting grounds for TPR of both children under Minn.Stat. § 260C.301 subd. 1(b)(6) (2006). The district court accepted the agreement and the parents’ admissions, confirmed that the county attorney would reduce the agreement to writing for submission to the district court after it was signed by all parties, set the date and time of the first 90-day review hearing, and, despite the fact that the parties still needed to sign a written agreement, discharged mother’s and father’s appointed counsel.

Approximately seven weeks after the agreement was placed on the record, mother’s former attorney wrote to the district court, stating that mother had refused to sign the agreement drafted by the county attorney. Counsel’s letter represented to the district court that mother had authorized counsel to contact the district court “in an effort to have [the court] issue the order based on what was placed on the record at the [pretrial] hearing, which would dispose of [mother’s] need to sign the stipulation.” Counsel requested an informal meeting with the district court, attorneys, and GAL to discuss the issue. The letter indicates that it was copied to all counsel and the GAL, but there is no indication that it was copied to mother. The record does not disclose whether a chambers meeting occurred, but the district court issued its TPR order based on the agreement that was placed on the record.

A month after the TPR judgment was entered, mother, represented by a different attorney, moved to vacate the TPR under Minn. R. Juv. Prot. P. 32.06; 45.03(a), (b), (c), (e), and (h); 46.02(a)-(e); and 46.03. Mother sought relief based on her assertion that her admission was coerced and that the children are Indian children subject to the provisions of ICWA.

To support her claim that her admission was coerced, mother alleged in her affidavit that her former attorney told her that if she admitted to the petition, the county would agree to place the children with paternal grandparents for adoption and paternal grandparents would allow supervised contact by father and members of mother’s immediate family. Mother further claimed that she was warned that if she went to trial and lost, which her attorney thought was likely based on the evidence that the county proposed to introduce, the county would place the children with strangers and the children would have no further contact with any biological family.

Mother asserts that her former counsel continuously urged her to admit to the petition in the best interests of the children and that even after the hearing, counsel, who had been discharged from representing mother, continued to call mother, telling her that she had to sign the written agreement so that the children would not be placed with strangers.

At a hearing on mother’s motions, the county argued primarily that the motions were untimely, but stated that if the district court was going to consider mother’s allegations of coercion, the county requested an evidentiary hearing to develop a better understanding of what took place at the pretrial hearing. In response to the district court’s question about whether mother’s allegations were supported by anything other than her affidavit, father’s attorney stated that, although father had not brought a motion or provided an affidavit, he had confirmed that he also was told that if the parents did not agree to involuntary termination of their parental rights, there would be no guarantee that the children would be placed with his parents or that he would ever see them again. The district court denied mother’s motions without an evidentiary hearing, and this appeal followed.

ISSUES

I. Did the district court err by denying mother’s motion under ICWA?

II. Is the judgment terminating parental rights void for lack of adequate findings?

III. Were mother’s motions to withdraw her admission and for relief from judgment timely and proper?

IV. Did mother present sufficient evidence of coercion to require an eviden-tiary hearing?

V. Must a party establish a likelihood of success on the merits under Minn. R. Juv. Prot. P. 46.02 to obtain relief from a judgment allegedly based on a coerced admission?

VI.Did the district court abuse its discretion by discharging appointed counsel without cause before the conclusion of the TPR proceeding?

ANALYSIS

I. ICWA

We first address mother’s argument that she is entitled to vacation or invalidation of the TPR judgment because the children may be Indian children subject to the provisions of ICWA.

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may file with the court and serve upon the parties a Petition to Invalidate such action upon a showing that such action violates the Indian Child Welfare Act, 25 U.S.C. §§ 1911-1914....

Minn. R. Juv. Prot. P. 46.03, subd. 1. “Indian child” is defined in the rules with reference to 25 U.S.C. § 1903(4), and Minn. Stat. § 260.755, subd. 8, as “any unmarried person who is under age eighteen (18) and is either (1) a member of an Indian tribe or (2) is eligible for membership in an Indian tribe.” Minn. R. Juv. Prot. P. 2.01(g).

Mother, who made no objection to the statement in the initial CHIPS petition that the children are not Indian children, now asserts that she is at least “l/8th Native American,” that father also has “Native American” blood, and that she is in the process of trying to determine which tribe is involved and if the children are eligible for enrollment in such tribe. At the hearing on mother’s motions, father’s attorney informed the district court that father does not claim to have any Native American blood.

Because the children are not members of an Indian tribe, and there is no evidence that the children are eligible for membership in any Indian tribe, the district court did not err in concluding that the children are not Indian children as defined by the statutes and in denying mother’s motion for relief under rule 46.03 or any other child-protection rule relating to Indian children.

II. Sufficiency of findings

Mother argues that, even if her admission had not been coerced, the findings contained in the district court’s order terminating parental rights are insufficient to support termination, rendering the judgment void. We disagree. TPR is appropriate when

a child has experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care.

Minn.Stat. § 260C.301, subd. 1(b)(6) (2006) (emphasis added). The district court found that mother admitted that T.J.K. “suffered nine (9) fractures on his body while in her care” and, based on this admission, concluded that T.J.K. “experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard [for] the child’s well-being such that a reasonable person would believe it contrary to the best interest of [T.J.K.] or any child including [A.T.K.] to be in the parent’s care.” Although minimal, the findings are sufficient, and the judgment is not void for lack of adequate findings.

III. Bases and timeliness of motions

Mother moved for a new trial under Minn. R. Juv. Prot. P. 45.03 and for relief from the TPR order under Minn. R. Juv. Prot. P. 46.02. The county argued to the district court and on appeal that mother’s motion for a new trial is untimely and that because there was no trial, the motion was without merit. The district court did not address timeliness, and after reciting on the record what occurred at the pretrial hearing, it concluded that “[n]o grounds exist under R. 45.03 or R. 46.02 of the Rules of Juvenile Protection Procedure to grant a new trial in this matter.”

The county’s argument about the procedural deficiencies of mother’s motion for a new trial is not dispositive. Inexplicably, mother did not base her motion on the specific provision in the rules that “an admission may be withdrawn at any time upon a showing that withdrawal is necessary to correct a manifest injustice.” Minn. R. Juv. Prot. P. 35.03, subd. 5(a) (emphasis added). Mother’s motion is essentially a motion to withdraw her admission to correct a manifest injustice. Because we conclude that mother’s motion is a motion under Rule 35.03, subd. 5(a), and because such a motion can be brought at any time, in the interests of judicial economy, we will address the motion under both Rule 35.03, subd. 5(a), and Rule 46.02. Under the plain language of Rule 35.03, subd. 5(a), the motion is not untimely.

Minn. R. Juv. Prot. P. 46.02 provides:

Upon motion and upon such terms as are just, the court may relieve a party or the party’s legal representatives from a final order or proceeding, including a default order, and may order a new trial or grant such other relief as may be just for any of the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial;
(c) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(d) the judgment is void; or
(e) any other reason justifying relief from the operation of the order.
The motion shall be made within a reasonable time, but in no event shall it be more than ninety (90) days following ... the filing of the court’s order.

Mother’s motion under Rule 46.02 was also timely because it was brought within a reasonable amount of time and before the 90-day deadline.

IV. Coercion and manifest injustice

a. Standard of review

Generally, appellate courts review a district court’s decision on a motion to vacate an order or judgment for an abuse of discretion. See In re Welfare of T.D., 631 N.W.2d 806, 808 (Minn.App.2001) (applying an abuse-of-discretion standard to a decision on a motion to vacate in a TPR proceeding). No published cases have addressed the standard of review of the denial of a motion to withdraw an admission under Rule 35. By analogy to Minn.R.Crim. P. 15.05, which requires a district court to permit a defendant to withdraw a plea of guilty “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice,” we conclude that abuse of discretion is the appropriate standard of review for a Rule 35 motion to withdraw an admission to a TPR petition. See generally Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998) (applying an abuse-of-discretion standard of review to denial of motion to withdraw a guilty plea).

b. Showing of coercion

The purpose of the laws relating to ... termination of parental rights is to ensure that ... if placement with the parents is not reasonably foreseeable, to secure for the child a safe and permanent placement, preferably with adoptive parents.... The paramount consideration in all proceedings for permanent placement of the child ... is the best interests of the child....

Minn.Stat. § 260C.001, subd. 3(2) (2006). The county, as the responsible social-service agency, is required by statute to recommend to the district court only such permanent placement options as are in the best interests of the children involved in a TPR. Id. And the role of a GAL in a TPR proceeding is to advocate for the best interests of a child. Minn. R. Juv. Prot. P. 26.01, subds. 1, 2 (providing that GALs appointed by the district court are to “advocate for the best interests of the child”).

Because the county and GAL ultimately recommended, and the district court approved, pre-adoptive placement of the children with paternal grandparents with provision for continued contact with father and other biological relatives, we can only conclude that such placement was considered by the county and the GAL to be in the best interests of the children.

Although we have not had prior occasion to address what constitutes “manifest injustice” under Rule 35, we conclude that manifest injustice certainly includes coercing a parent to admit to a TPR petition by use of a threat that not admitting to the petition would result in a placement of the children contrary to their best interests. See State v. Kaiser, 469 N.W.2d 316, 319 (Minn.1991) (recognizing, in the context of criminal law, that a manifest injustice occurs when a defendant is coerced into pleading guilty); cf. Lynumn v. Ill., 372 U.S. 528, 533-34, 537-38, 83 S.Ct. 917, 920, 922, 9 L.Ed.2d 922 (1963) (reversing a guilty judgment and refusing to apply the harmless-error doctrine when a confession was coerced by police officers, who threatened the defendant that the state would take away her children and her children’s state-funded aid.)

c. Need for evidentiary hearing

In the context of criminal law, the supreme court has held that “whether or not a [defendant’s plea] was coerced cannot be decided without the trial court first making factual findings relating to the alleged coercion.” Kaiser, 469 N.W.2d at 319. The supreme court also held in Kaiser that conclusory affidavits alone are not enough to establish coercion. Id. The logic of this holding equally applies to a motion to withdraw an admission to a TPR. We conclude that the district court should have held an evidentiary hearing, as recommended by the county, to determine whether, in fact, the representations mother’s affidavit alleges were made, and if so, by whom they were made, and what role the representations played in mother’s admission to the TPR petition. In short, it is necessary for the district court to determine whether, in fact, mother’s admission was coerced.

V. Relief under Rule 46.02

Although we have concluded that mother is entitled to an evidentiary hearing under the provisions of Rule 35.03, subd. 5(a), because mother brought a timely motion under Rule 46.02, we -will address the issues raised under that rule. The county correctly notes that Rule 46.02 is very similar to Minn. R. Civ. P. 60.02, and urges us to import the requirements for obtaining relief from a civil judgment under Rule 60.02 to the juvenile-protection-procedure rules.

In civil actions, to obtain relief under Rule 60.02, a party “must establish (1) a reasonable case on the merits; (2) a reasonable excuse for the failure to act; (3) action with due diligence after entry of judgment; and (4) lack of prejudice to the opposing party.” Reid v. Strodtman, 631 N.W.2d 414, 419 (Minn.App.2001) (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964)). But satisfying these factors is not always a prerequisite to obtaining relief under Minn. R. Civ. P. 60.02. In Lyon Dev. Corp. v. Rieke’s, Inc., 296 Minn. 75, 84-85, 207 N.W.2d 273, 279 (1973), the supreme court declined to apply the four-factor test when there were “procedural defects of such consequence that ... the mere showing of that failure in and of itself is grounds to set aside [a] default judgment.”

Whatever the merit of requiring, in some cases, that the factors developed under Minn. R. Civ. P. 60.02 be met before a party can obtain relief under Minn. R. Juv. Prot. P. 46.02, we conclude that if a party establishes that the judgment is based on a coerced admission, that, in and of itself, is grounds to provide relief from judgment.

VI. Discharge of counsel

Although it was not raised as a separate issue on appeal, mother’s argument to the district court and on appeal repeatedly emphasized how she was disadvantaged by the discharge of her appointed counsel before the conclusion of the matter in district court. The record shows that mother’s former counsel continued to contact mother and the district court after she was discharged from representing mother, but it is not clear that counsel was even purporting to represent mother in those contacts. Counsel did not make any motions, and nothing in the record suggests that counsel assisted mother in any way to challenge the agreement or withdraw her admission to the TPR prior to the issuance of the judgment. Prompt and appropriate resolution of this matter was, at least in part, hampered by the district court’s discharge of mother’s counsel prior to the conclusion of the district court’s involvement in the TPR. We conclude that the district court abused its discretion by discharging mother’s appointed counsel, without cause, before the conclusion of the action in district court.

DECISION

Because the record does not show that Indian children are involved in this action, the district court did not err in denying mother’s motions for relief from judgment under ICWA. The district court’s judgment is not void for lack of adequate findings on the statutory basis for a TPR. But the district court abused its discretion by discharging mother’s appointed counsel, without cause, before the TPR proceeding was concluded in district court, and because mother has presented evidence that her admission to the TPR petition was coerced, we reverse the district court’s denial of her motions to withdraw her admission and for relief from the TPR judgment and remand for an eviden-tiary hearing to determine whether mother’s admission was coerced.

Affirmed in part, reversed in part, and remanded.

      . The agreement placed on the record specifically referenced the fact that the district court would review the matter every 90 days until adoption was completed as required by Minn. R. Juv. Prot. P. 41.06, subd. 1. Mother was criticized for not challenging TPR at this review hearing, but the TPR judgment terminated her right to participate in the review hearing.

      . Mother also cites Minn. R. Juv. Prot. P. 32.06, which requires notice to an Indian child’s tribe or if the tribe cannot be determined, the Secretary of the Interior, "in any juvenile protection proceeding where the court knows or has reason to know that an Indian child is involved.” Because there is no evidence that the children are Indian children as defined in ICWA, this rule has no application to this case.

      . Rule 35.03, subd. 5(a), was first discussed at oral argument on appeal. Mother’s counsel questioned whether the rule applies only to CHIPS proceedings, but Minn. R. Juv. Prot. P. 34.03, subd. 3(c), specifically provides that if a court determines that a TPR petition states a prima facie case in support of TPR, "the court shall proceed pursuant to Rule 35.”