author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Lennell Maurice MARTIN, Appellant.
    No. A04-279.
    Supreme Court of Minnesota.
    May 12, 2005.

      John Stuart, State Public Defender, Lydia Villalva Lijo, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Asst. Anoka County Attorney, Anoka, MN, for Respondent.
   OPINION

MEYER, Justice.

Lennell Maurice Martin appeals his conviction of premeditated first-degree murder, first-degree murder while committing a burglary, second-degree assault, and two counts of kidnapping. Martin’s counsel raised two issues in this appeal: whether a statement made by the victim after he was shot was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), or under Minn. R. Evid. 804(b)(2) or 803(2), and whether the trial court’s communications with the jury outside Martin’s presence and without his personal waiver constituted reversible error. Martin raised eight other claims in a pro se supplemental brief. We affirm in part and remand for further proceedings.

Early in the morning of November 3, 2002, Precious Franklin got out of bed to check on the welfare of her 3-year-old son, R.E. She noticed a light on in the kitchen of her apartment. When she approached the kitchen to turn off the light, she saw two men, one armed with a gun and one with a long knife, aiming their weapons in her direction. Franklin later identified these men through photo lineups as Lennell Martin and Jeffery Young.

Franklin screamed and ran to her bedroom to wake up Curtis Anthony, her boyfriend. The men followed her, still aiming their weapons. Franklin’s son, R.E., came in, calling for his mother, and joined Anthony and Franklin on the bed. When Anthony and Franklin pleaded with Martin and Young not to hurt R.E., Martin escorted Franklin and R.E. into the bathroom and shut them in.

Franklin heard Martin and Young interrogating Anthony and heard Anthony making noises as if in pain. After several minutes, Franklin heard a knock at the apartment door, then a gunshot, and the sound of people running from her apartment. Franklin then heard Anthony call her name, prompting her to leave the bathroom. Anthony was in the bedroom doorway, holding his chest. He gasped, “Call the police. Jeff and Lenair.” He was bleeding profusely and appeared to be in great pain.

Franklin tried to use her cell phone to dial 911, but failed to make a connection. She ran to Kevin Tivis’s apartment for help and learned that Tivis had already dialed 911. Tivis was already awake because he had heard Franklin’s scream, and when he got out of bed to look around he saw a car parked in front of the building, which he later identified as a green Cadillac. It was Tivis who had knocked at Franklin’s apartment door when FranMin was shut in the bathroom.

Franklin and Tivis returned to Franklin’s apartment, where Tivis saw Anthony struggling to stand, and trying but failing to speak. When the police arrived, Anthony struggled with them. At one point he spit out blood and said, “I’m choking.” Within a short time, Anthony lost consciousness and stopped breathing. He was pronounced dead an hour after arriving at the hospital.

Monica Green, Anthony’s sister, called Franklin from the hospital and asked her what had happened. Franklin told her and mentioned that Anthony had said two names, “Jeff and Lenair.” Green asked if Franklin meant “Jeff and Lennell,” and Franklin responded, “Yes. That’s it.” Green told the police that “Jeff and Len-nell” were cousins of Anthony’s ex-girlfriend, Monique Frye.

Investigating officers interviewed Monique Frye on the morning of November 3, 2002. She gave them the full names of Jeffery Young and Lennell Martin, and told them that Martin drove a bluish-green Cadillac. The afternoon of the same day, Franklin picked Martin as the gunman from a six-person photo lineup. The next day, Franklin picked Jeffery Young as the other intruder from another six-person photo lineup.

Investigating officers located a 1992 green Cadillac El Dorado, registered to Martin’s mother and parked behind her home. When the Cadillac was searched, police found bloodstains on the dashboard, steering wheel, and headlight switch. An expert witness on DNA tested the blood and determined that it matched the DNA profile obtained from Anthony.

In Jeffery Young’s car police found a printout of directions to Anthony’s apartment with handwritten notations of Anthony’s first name and landmarks on the route to Anthony’s apartment. A handwriting expert identified the notations as having been written by Young.

At trial, the medical examiner testified that Anthony’s injuries included a shotgun wound to the chest involving a major artery and causing significant hemorrhaging; sharp-force defensive wounds to his thumbs and fingers; a broken thumb; a four-inch incision on the back of his scalp; and a stab wound in the neck, the force of which broke one of the larynx cartilages.

Martin testified on his own behalf at trial. According to Martin, he had gone to a couple of family celebrations on the night of November 2. At about 2 a.m. on November 3, he went with Young to the home of Young’s sister, staying until around 6 or 7 a.m. They then left the sister’s home and went to Young’s house to sleep. Martin testified that he did not go to Franklin’s apartment with Jeffery Young on November 3, nor did he shoot Anthony or point a gun at Franklin or her son.

During two days of jury deliberations, the jury had questions for the judge on four separate occasions and on each occasion the judge responded. The trial transcript does not mention any jury questions and the only record is certain notations made by the clerk and identified in Martin’s district court file as “Anoka County District Court Minutes of Criminal Proceedings.” The minutes note the date and time of the four jury questions, but do not describe either the questions asked by the jury or the responses given by the judge. Martin was not notified of the questions or the answers.

Martin was convicted of first-degree premeditated murder, first-degree murder while committing a burglary, second-degree assault against Franklin, and kidnapping of Franklin and her son. We affirm in part and remand.

I.

The trial court admitted into evidence without objection Anthony’s statement, “Call the police. Jeff and Lenair.” On appeal, Martin argues that this statement was inadmissible hearsay under the Minnesota Rules of Evidence and constitutionally barred under the holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The state’s position is that Crawford bars only “testimonial” statements and because Anthony’s statement was not testimonial, it was properly admitted. Additionally, the state asserts that Anthony’s statement is admissible as an exception to the hearsay rule, either as a dying declaration or an excited utterance.

Generally, a defendant failing to object to proffered testimony at trial is deemed to have forfeited his right to have the error reviewed on appeal. State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994). However, the issue may be reviewed on appeal if it constitutes plain error affecting substantial rights; that is, if the error had the effect of depriving the defendant of a fair trial. Id.; see State v. Chiller, 583 N.W.2d 786, 740 (Minn.1998).

A.

We first consider whether Anthony’s statement was a dying declaration and admissible as an exception to the hearsay rule. A trial court has broad discretion as to evidentiary matters, and a trial court’s rulings on such matters will not be overturned on appeal absent a clear abuse of discretion. State v. Chambers, 589 N.W.2d 466, 475 (Minn.1999). Reversal is warranted only if there is any reasonable doubt the result would have been different had the evidence not been admitted. State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002).

Under the Minnesota Rules of Evidence, “a statement made by a declar-ant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death” is admissible in a homicide prosecution as an exception to the hearsay rule. Minn. R. Evid. 804(b)(2). In State v. Elias, we determined that in order for a dying declaration to be admissible, the profferor must show something more than simply that the declarant is aware of the seriousness of his or her injuries and the possibility of death. 205 Minn. 156, 158, 285 N.W. 475, 476-77 (1939). “Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be ‘a settled hopeless expectation’ that death is near at hand, and what is said must have been spoken in the hush of its impending presence.” Id. at 159, 285 N.W. at 477 (internal citation omitted). Thus, the decisive factor is the declarant’s state of mind. Id., 285 N.W. at 477; see also State v. Bergeron, 452 N.W.2d 918, 923 (Minn.1990). The declarant’s state of mind may be shown through direct evidence, such as a statement expressing the declarant’s conviction of impending death, but also may be inferred from the surrounding circumstances. State v. Buggs, 581 N.W.2d 329, 335-36 (Minn.1998) (evidence that the declarant was shot “seven or eight times in her chest, abdomen, arm, and thigh,” was found lying in a pool of blood, struggling to breathe, and died within hours after she was shot, was sufficient for the trial court to conclude that the declarant had a firm belief in her impending death even without an express statement to that effect by the declarant).

Martin argues that Anthony’s statement was not admissible as a dying declaration because his statement gives no insight into how he perceived the severity of his injuries, and because the surrounding circumstances did not suggest that Anthony thought he was dying, since he was standing and walking when he made the statement. The state counters that this case is analogous to Buggs because Anthony had multiple wounds, was bleeding profusely, and was struggling to breathe. We agree with the state’s position because the evidence suggests Anthony recognized the severity of his wounds and believed death was imminent. He had been stabbed in the neck, piercing his larynx, and shot in the chest, severing a major artery. His bleeding was severe, and he clutched his chest as he spoke. Minutes later he was unable to walk and told police he could not breathe. Minutes after that, Anthony stopped breathing and first responders could not locate a pulse. Within an hour he was dead. Considering the circumstances surrounding Anthony’s statement, it is evident that this statement qualifies as a dying declaration, admissible as a hearsay exception under Minn. R. Evid. 804(b)(2). Therefore, we conclude that-the trial court did not abuse its -discretion in admitting Anthony’s statement under thé hearsay exception for dying declarations.

B.

We next consider Martin’s constitutional objection assuming, without deciding, that he. did not forfeit this claim by failing to object on this basis at trial. The Sixth Amendment to the United States Constitution provides that an accused has the right to be confronted with witnesses. Martin argues that his constitutional right to confront a witness was violated by the admission of Anthony’s statement, citing Crawford. In Crawford, the defendant was accused of stabbing another man who allegedly attempted to rape the defendant’s wife. 541 U.S. at 38, 124 S.Ct. 1354. Although the wife did not-testify-at trial because of the state’s marital privilege law, her tape-recorded statement to the police, given while, she was under investigation and after she was given a Miranda warning, was admitted into evidence at trial under the hearsay exception for statements against penal interest. Id. at- 38, 40, 124 S.Ct. 1354, The defendant maintained that admitting this statement when he had no opportunity to cross-examine the witness violated his federal constitutional right to be “confronted with witnesses against him.” Id. at 40, 124 S.Ct. 1354.

In a previous-case, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court set forth a test for admissibility that admits an out-of-court statement by an unavailable witness if the statement bears “adequate indicia of reliability,” defined as either hearsay falling within “a firmly rooted hearsay exception” ot bearing “particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. 2531. However, the Crawford Court found that for testimonial statements, the Roberts test departed from historical constitutional principles, and often failed to protect against “paradigmatic confrontation violations.” Crawford, 541 U.S. at 59, 124 S.Ct. 1354. Therefore, the Crawford Court determined, that the Confrontation Clause of the United States Constitution bars admission of testimonial statements of witnesses who do not appear at trial unless (1) they are unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine them. Id. at 53-54, 124 S.Ct. 1354. The Court thus announced a new test for the admissibility of those statements that are “testimonial” but left the Roberts test in place, for nontestimonial statements, determining- that the Roberts test affords needed flexibility to the states in their development of hearsay law. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

According to the Crawford Court, testimonial statements include, at a minimum, “prior. testimony at a preliminary hearing, before a grand jury, or at a former trial; - and * * * police interrogations.” Id. Unfortunately, the Crawford Court “left for another day” any effort to spell out a comprehensive definition of those statements that are “testimonial” and thus admissible only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the de-clarant. Id. In this case, both parties ask us to give some definition to “testimonial” and then apply that definition to Anthony’s dying declaration. We are not unsympathetic to the uncertainty that has been generated by the Supreme Court’s refusal to articulate a comprehensive definition of “testimonial” statements. But, we need not decide in this case whether Anthony’s statement was testimonial and, therefore, this court must also “leave for another day” any effort to discern the Supreme Court’s meaning of “testimonial.” In this case, we conclude that the Sixth Amendment incorporates an exception for dying declarations and Anthony’s dying declaration was admissible as an exception to the Crawford, rule. Our reasoning follows.

The Crawford Court relied heavily on the intent of the framers of the Constitution and the right of confrontation as it existed at common law in defining the parameters of the Confrontation Clause, “admitting only those [hearsay] exceptions established at the time of the founding.” Id. at 54, 124 S.Ct. 1354. The Court stated that there is “scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case” at common law. Id. at 56, 124 5.Ct. 1354. However, the Court noted that “[t]he existence of [the dying declaration] exception as a general rule of criminal hearsay law cannot be disputed. Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are.” Id. n. 6 (internal citations omitted). The Court cited Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), to demonstrate the well-rooted nature of the exception for dying declarations at common law. Crawford, 541 U.S. at 54, 56 n. 6, 124 S.Ct. 1354. “[F]rom time immemorial [dying declarations] have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility.” Mattox, 156 U.S. at 243-44, 15 S.Ct. 337. The Crawford Court did not squarely hold that an exception exists under Crawford for dying declarations. See 541 U.S. at 56, 124 S.Ct. 1354. Yet the Court’s statement that the Confrontation Clause “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding” strongly suggests that because dying declarations were a recognized common-law exception at the time of the founding, there is no inherent conflict in continuing to recognize them today. See id. at 54,124 S.Ct. 1354.

The Supreme Court of California has held that Crawford’s Sixth Amendment concerns are not implicated for dying declarations. People v. Monterroso, 34 Cal.4th 743, 22 Cal.Rptr.3d 1, 101 P.3d 956 (2004).

[I]f, as Crawford teaches, the confrontation clause “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding,” it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment.

Id. at 972 (internal citations omitted). We agree with the California Supreme Court’s conclusion about Crawford’s teaching: Before adoption of the United States Constitution, dying declarations were admissible at common law, and the common law “was not repudiated by our constitution * * * but adopted and cherished.” Id. at 972 (quoting State v. Houser, 26 Mo. 431, 438 (1858); accord Mattox, 156 U.S. at 243-44, 15 S.Ct. 337). We hold that the admission into evidence of a dying declaration does not violate a defendant’s Sixth Amendment right to confrontation within the meaning of Crawford because an exception for dying declarations existed at common law and was not repudiated by the Sixth Amendment.

II.

We turn to the question of whether it was reversible error for the trial court judge to have four different communications with the jury that occurred without Martin’s presence, knowledge, or consent. Minnesota Rule of Criminal Procedure 26.03, subdivision 1, states that the defendant shall be present “at every stage of the trial.” In State v. Thompson, this court held that the right to be present at trial is broader under the Minnesota Rules of Criminal Procedure than is required by the United States Constitution. 430 N.W.2d 151, 152-53 (Minn.1988). Responding to a deliberating jury’s question is a stage of trial. State v. Sessions, 621 N.W.2d 751, 755 (Minn.2001). While the defendant can waive his right to be present at a stage of trial, the decision to waive the right is “not for counsel to make but a personal decision for defendant to make after consultation with counsel.” State v. Ware, 498 N.W.2d 454, 457 (Minn.1993).

In addition, the rules of criminal procedure explicitly require the defendant’s presence, or personal waiver, when a deliberating jury makes a request to review testimony or other evidence or asks to be informed on any point of law. Minn. R.Crim. P. 26.03, subd. 19(2) — (3). Moreover, the jury must be brought into open court and the prosecutor and defense counsel must be notified. Id.; see also Mckenzie v. State, 670 N.W.2d 582, 583 (Minn.2003); Sessions, 621 N.W.2d at 756. “Thus, the general rule in Minnesota is that a trial judge should have no communication with the jury after deliberations begin unless that communication is in open court and defendant is present.” Ford v. State, 690 N.W.2d 706, 712 (Minn.2005).

Martin argues that the trial court erred by failing to have him present when the court responded to certain jury questions and by failing to secure his waiver of the right to be present. He concedes that the record establishes that ten of the fourteen contacts concerned housekeeping matters but argues that the remaining four contacts likely did not concern housekeeping matters because the record is silent about their purpose. Therefore, his right to be present at all stages of the trial was violated, necessitating a new trial. The state argues that the trial court did not err because the circumstances indicate that the jury questions simply dealt with housekeeping matters. Before deliberations began, the court and the attorneys, in Martin’s presence and on the record, discussed and agreed to the circumstances under which the court would contact the parties and bring the jurors into open court, agreeing that it would be unnecessary to take these steps in the case of housekeeping matters. Given this agreement, the state asks us to infer that the trial court judge’s communications with the jury concerned housekeeping matters.

We recently held that “when a judge communicates in writing with the jury about a housekeeping matter, the defendant’s right to be present at trial is not violated.” Ford, 690 N.W.2d at 713. However, we cautioned that “any doubt regarding whether a communication relates to a housekeeping or substantive matter should be resolved in favor of defendant’s presence” and that “a record should be made of all communication between the judge and the jury, regardless of its substance.” Id. Our review of the record leaves us with some doubt as to whether the four communications at issue relate to housekeeping matters or substantive matters. Because there is some doubt about the nature of the communications, we remand to the trial court to make a record of the four communications at issue, so that we may make an informed decision regarding the matter. We retain jurisdiction of this case, ordering that upon completion of the record, the additional record be certified to this court for inclusion in the appellate court file in this mattér. The trial court shall forward the completed record within 90 days of this decision’s filing, appellant shall file a brief, if any, in this court within 15 days of the trial court’s filing, and respondent shall file its brief, if any, in this court 10 days thereafter.

III.

In his pro se supplemental brief, Martin raises several additional arguments in support of his request for a new trial. He argues that the photo lineup procedure, the alleged destruction of evidence, and the amendment of the indictment with additional charges violated his due process rights; that the state committed prosecu-torial misconduct; that the trial court judge erred in giving the jury an instruction based on CRIMJIG 3.04 and in failing to order the removal of Martin’s leg restraint; and that he received ineffective assistance of trial counsel. We have reviewed each of Martin’s pro se claims and find them to be without merit, with the exception of Martin’s claim of ineffective assistance of counsel.

In Strickland v. Washington, the United States Supreme Court held that in order to demonstrate ineffective assistance of counsel, an appellant must show that “representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Opsahl v. State, 677 N.W.2d 414, 421 (Minn.2004). A reasonable probability is “ ‘a probability sufficient to undermine confidence in the outcome.’ ” State v. Jones, 392 N.W.2d 224, 236 (Minn.1986) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). There is a strong presumption that counsel’s performance was reasonable. Jones, 392 N.W.2d at 236. An appellant claiming to have received ineffective assistance of counsel bears the burden of proof on his or her claim. State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998). We give particular deference to trial strategy, id, and have stated that “[w]hieh witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel.” Jones, 392 N.W.2d.at 236.

Martin argues that his trial counsel (1) failed to hire an investigator to investigate “how Ms. Franklin got the name, Lennell instead of Lenair”; (2) failed to contest “the amending of the indictment to include additional charges — rather than adding a lesser included offense”; (3) failed to challenge police interference with the photo lineup; (4) failed to retain an expert DNA witness to challenge any and all evidence found in his vehicle; and (5) failed to retain an investigator to perform an extensive investigation to assist in preparation of his defense.

The general rule under Knaffla is that all known claims must be brought on direct appeal, and are procedurally barred in a subsequent postconviction proceeding. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). However, “a claim of ineffective assistance of trial counsel that cannot be decided on the district court record because it requires additional evidence need not be brought on direct appeal and may be brought in a postcon-viction petition.” Torres v. State, 688 N.W.2d 569, 572 (Minn.2004). See also State v. Gustafson, 610 N.W.2d 314, 321 (Minn.2000) (holding that where the defendant raised claims that required additional fact-finding to explain the attorney’s decisions, a postconviction hearing was the appropriate forum). In the present case, it is not possible to determine from the existing record the basis for Martin’s trial counsel’s decisions not to retain an investigator or an expert DNA witness. The trial record, understandably, is silent about the reasons for trial counsel’s decisions in this regard. If Martin decides to further pursue his claims of ineffective assistance of trial counsel, he may do so in a postconviction proceeding, and his claims will not be procedurally barred under the Knaffla rule if additional evidence is produced in support of his claims.

Affirmed in part and remanded.

      . The majority in Crawford itself acknowledged that its "refusal to articulate a comprehensive definition [of 'testimonial'] in this case will cause interim uncertainty." 541 U.S. at 68 n. 10, 124 S.Ct. 1354.

      . Two other state supreme courts have confronted the question of the admissibility of dying declarations since Crawford. The Supreme Court of Kansas held that the defendant forfeited his confrontation right by procuring the unavailability of a witness; i.e., killing the maker of the dying declaration. State v. Meeks, 277 Kan. 609, 88 P.3d 789, 794-95 (2004) (basing its holding on the Crawford Court’s acceptance of the rule of forfeiture by wrongdoing that extinguishes confrontation claims on essentially equitable grounds). The Georgia Supreme Court declined to address the issue, holding that the defendant’s failure to raise a Sixth Amendment objection at trial precluded consideration of the issue on appeal. Walton v. State, 278 Ga. 432, 603 S.E.2d 263, 265 (2004).


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Michael James DAHLIN, Appellant.
    No. A03-1454.
    Supreme Court of Minnesota.
    May 12, 2005.

      Leslie J. Rosenberg, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike-Hatch, Minnesota State Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna Wolf-son, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Following a jury trial, appellant Michael James Dahlin was convicted of aiding and abetting the first-degree premeditated murder of Dustin Jirasek under Minn.Stat. §§ 609.185(a)(1), 609.05 (2004). Prior to the sentencing hearing, Dahlin filed a motion to vacate his conviction pursuant to Minn. R.Crim. P. 26.04 on the basis that the trial court erred in instructing the jury only on first-degree premeditated murder despite Dahlin’s request at trial that the jury receive instruction on the lesser charge of second-degree intentional murder. The trial court denied this motion and sentenced Dahlin to life in prison.

On appeal, Dahlin claims he is entitled to a new trial because the trial court committed reversible error 'by refusing to include jury instructions for the lesser-included offenses of second-degree intentional murder and second-degree unintentional felony murder. Dahlin further claims that he was deprived o'f his right to a fair trial by the prosecutor’s misconduct during the trial and by the improper peremptory strike of a minority member of the venire panel. Because we hold that the trial court erred in refusing to instruct the jury on second-degree intentional murder, we reverse and remand for a new trial.

Dustin Jirasek was killed by .a single shotgun round fired at close range when he opened the door to his home on December 16, 2000. A month later, appellant Michael Dahlin and his friend Mark Staats were indicted for aiding and abetting the first-degree premeditated murder of Jira-sek.

Dahlin’s girlfriend, Sarah Troska, worked with Jirasek. Troska introduced Dahlin to Jirasek in the fall of 2000, and Troska encouraged Dahlin to audition for a place in Jirasek’s band. However, Jirasek did not offer Dahlin a band position, telling Troska that the other band members were offended by the nature of the tattoo on Dahlin’s arm. When Troska relayed this news to Dahlin, who' was a self-described methamphetamine addict, he became visibly angry and telephoned Jirasek in a rage. Unsettled by this call, Jirasek later called Dahlin back and smoothed things over.

In the following months, Dahlin became suspicious that Troska and Jirasek were having an affair. In October 2000, Dahlin drove his truck to Jirasek’s home to confront Jirasek about his suspicions. Although Dahlin’s shotgun was in his truck, Dahlin did not take the gun along when he walked to Jirasek’s door to speak with him. Two days later, an “urgent care center” notified Jirasek and his wife that it had received a telephone call saying that someone at the Jirasek home would soon need the center’s services.

After Dahlin’s visit and the call from the urgent care center, Jirasek quit his job so that he could end all contact with Troska and Dahlin. Jirasek later accepted his employer’s offer of a shift-transfer, which allowed Jirasek to return to work without seeing Troska. Jirasek last worked with Troska in October 2000, and the two never saw each other again. Nonetheless, Dah-lin’s suspicions persisted.

In the months before the shooting, Dah-lin told a number of people that he wanted to hurt Jirasek. Close friends of Dahlin testified that Dahlin had said he wanted to “kick [Jirasek’s] butt,” and that he had asked for help to “kick [Jirasek’s] ass.” On December 15, 2000, Dahlin became angry at Jirasek because Troska told him that months earlier Jirasek had made an insulting comment about Dahlin’s male anatomy; Dahlin testified that Troska also told him she had slept with Jirasek, but Troska testified that she had neither had an affair with Jirasek nor told Dahlin that she had. The day before Jirasek was shot, Dahlin told Troska he was going to “kill [Jirasek].” Troska did not believe Dahlin was serious, because threatening to kill people was “a normal part of his ranting and raving.”

The next day, Dahlin, armed with his shotgun and a recently purchased semiautomatic handgun, went to Jirasek’s house accompanied by his friend, Staats. En route, the two men stopped at a K-Mart to buy ski masks, shotgun ammunition, and a container of gasoline.

Staats did not testify at Dahlin’s trial, but during the investigation Staats made a number of statements to the police that were admitted into evidence. In these statements, Staats told the police that he thought Dahlin wanted to “beat up” Jira-sek, and that Dahlin never told Staats he planned to shoot Jirasek. According to Staats, after the two men arrived at Jira-sek’s home, they walked to Jirasek’s door together. Dahlin was carrying his shotgun, and Staats was unarmed. Dahlin either knocked or rang the doorbell, and when Jirasek opened the door about five to ten seconds of silence passed before Dah-lin fired one shot at Jirasek. While Staats’ statements regarding Dahlin’s actions were consistent, Staats’ explanation of where he was during the shooting changed during the course of the investigation. Initially he stated that he was in Dahlin’s truck when Dahlin shot Jirasek, but in subsequent interviews he said that he went to Jirasek’s door with Dahlin and was standing off to the side when Dahlin fired the shotgun.

Dahlin’s testimony contradicted many of Staats’ statements to the police. Dahlin testified that he went to Jirasek’s house the night of the shooting to “talk,” and that he planned on “intimidating” Jirasek but never intended to hurt him. After arriving at Jirasek’s, Dahlin testified that Staats went to the door alone with the shotgun while Dahlin walked around the house, peeking in the basement windows. Dahlin claimed that he left the handgun in the truck, and thus was unarmed. Dahlin testified that while he was walking to the front of Jirasek’s house, Staats unexpectedly fired the shotgun into the doorway. Dahlin stated he did not know why Staats shot Jirasek, but speculated that perhaps Staats was afraid of Jirasek’s dog. There were no other eyewitnesses to the shooting, but Jirasek’s wife was in the next room and heard the shot. According to Dahlin, the two men then ran to Dahlin’s truck and drove away, disposing of the guns on a country road.

At trial, Dahlin stipulated that DNA testing on pants the police seized from his bedroom revealed the presence of small spots of Jirasek’s blood. Dahlin also stipulated that his DNA and Jirasek’s blood were found through DNA testing on a pair of gloves seized by the police from Dahlin’s vehicle two days after the shooting. Staats’ DNA was not found on the gloves. Despite these stipulations, Dahlin testified that he had no idea why Jirasek’s blood was on his pants, and that he had never seen the gloves until after being arrested.

Before closing arguments, the trial court held a jury instruction conference with counsel. Dahlin’s counsel orally requested a second-degree unintentional felony murder instruction, with assault as the underlying felony. The court refused this request, stating that felony murder was not a lesser-included offense of first-degree premeditated murder. After the noon recess, defense counsel brought State v. Leinweber, 303 Minn. 414, 228 N.W.2d 120 (1975), to the court’s attention, and asserted that second-degree intentional murder “is a mandatory instruction based on this case,” thus requesting a second-degree intentional murder instruction in addition to the previously requested second-degree unintentional felony murder instruction. The court read Leinweber during a brief recess, then discussed the case at length with counsel before concluding that a second-degree intentional murder instruction was not required because there was “no evidence affirmatively presented by the Defendant or brought out in cross-examination [to test] the prosecution’s case that would throw premeditation in doubt.” The court also reaffirmed that it would not instruct on unintentional felony murder because it did not believe it was a lesser-included offense of first-degree premeditated murder.

Later, while deliberating, the jury sought clarification regarding the meanings of “intent” and “premeditation.” In response, the trial court read the definitions of each term given to the jury during instructions, adding that the jury should “give the words their plain meaning.” After deliberating for one day, the jury convicted Dahlin of first-degree premeditated murder, the only crime for which it received instruction.

Dahlin subsequently filed a motion to vacate his conviction and requested a new trial on the ground that the trial court erred in refusing to instruct the jury on second-degree intentional murder. The trial court denied this motion, stating that “any rational view of the evidence would either lead to the conclusion that the defendant had nothing to do with the killing or that it was premeditated murder,” and explained that “[t]he evidence of premeditation is so strong and really uncontrovert-ed that it would require convoluted thinking to find otherwise.” It is from this denial of a new trial that Dahlin now appeals.

I.

The issue we must decide in this case is whether the trial court erred in not giving the lesser-included offense instructions Dahlin requested. In order to provide context for our analysis of whether the requested lesser-included offense instructions should have been given, we first outline the development of our case law regarding lesser-included offense jury instructions.'

The leading Minnesota cases addressing lesser-included offenses are State v. Jordan, 272 Minn. 84, 136 N.W.2d 601 (1965) and State v. Leinweber, 303 Minn. 414, 228 N.W.2d 120 (1975). In Jordan, we summarized our earlier decisions addressing the factors courts must consider when determining whether lesser-included offense instructions should be given. The opinion set forth five governing principles:

(a) A person prosecuted for a crime may be convicted either of the crime charged or an included crime, but not both.
(b) If a defendant is guilty as charged, or not at all, instructions with respect to lesser but included crimes are not appropriate.
(c) If the evidence adduced at trial would permit a finding of guilty of an included crime, defendant is entitled to appropriate instructions advising the jury of its power to return a verdict of guilty of the lesser offense.
(d) The right of the defendant to have such instructions given to the jury may be waived expressly or implicitly by failure to make a proper request for such submission.
(e) Where the jury is provided with forms of verdicts and paragraph (c) above applies, a form of verdict should be included for use by the jury if it finds the defendant guilty of the lesser but included offense.

272 Minn. at 86-87, 136 N.W.2d at 603-04. Ten years later, in Leinweber, we applied these principles and set forth an analytical framework that has guided our lesser-included offense jurisprudence for three decades. Here, we reaffirm the core principles articulated in Leinweber and also seek to provide further clarification of our lesser-included jurisprudence to better guide trial courts.

A. Leimveber

In Leinweber, defendant Harry Leinwe-ber was charged with second-degree intentional murder in the death of his wife, who was killed in the kitchen of their home by a single round fired from his wife’s rifle. 303 Minn. at 415-16, 228 N.W.2d at 122. The trial court instructed the jury on the offense charged as well as on the lesser-included offenses of unintentional third-degree murder (depraved mind) and second-degree manslaughter (culpable negligence), but denied Leinweber’s request that the jury be instructed on first-degree manslaughter (heat of passion). Id. at 416, 228 N.W.2d at 123. Leinweber was convicted of unintentional third-degree murder. Id. at 415, 228 N.W.2d at 122. On appeal, we held that the refusal to give the requested manslaughter instruction was error, and reversed and remanded for a new trial. Id.

The holding in Leinweber is better understood in the context of the case’s key-facts. First, Leinweber did not dispute that the rifle discharged while he was handling it, killing his wife. Id. at 416, 228 N.W.2d at 122. However, Leinweber testified that the shooting was accidental, the result of the rifle firing as he dislodged a jammed shell. Id. In contrast, the state argued that the killing was intentional— but not committed in the heat of passion. Id. The state presented evidence that the Leinwebers’ marriage had become “increasingly discordant” and that Leinweber had threatened to kill his wife six weeks earlier. Id. at 417, 228 N.W.2d at 123. Mrs. Leinweber’s eleven-year-old son testified that he was awakened on the night of the shooting by the argument between his mother and Leinweber — his step-father— before hearing a gunshot. Id. at 418, 228 N.W.2d at 124. The son further testified that he saw his mother on the floor and that she “cursed and swore” at her husband for two minutes before she died. Id.

Our holding in Leinweber acknowledged the “difficult problem” faced by trial courts when determining which lesser-included offense instructions should be given in homicide cases. Id. at 419, 228 N.W.2d at 124. After setting forth the lesser-included offense principles from Jordan, 272 Minn. at 86-87, 136 N.W.2d at 603-04, we stated:

To this we add that in a murder case it is preeminently the trial court’s duty in the exercise of its discretion to determine what lesser degrees of homicide to submit. * * * Neither the prosecution nor the defense can limit the submission of such lesser degrees as the trial court determines should be submitted.

Leinweber 303 Minn. at 421, 228 N.W.2d at 125. Having established the trial court’s duty to instruct when necessary, the Lein-weber court then articulated a test for trial courts to employ when determining whether a lesser-included offense instruction should be given:

[T]he test should be whether the evidence would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified.

Id. at 422, 228 N.W.2d at 125-26.

Applying this test to the facts before us in Leinweber, we emphasized that, because the shooting was “unwitnessed,” the jury was faced with the task of “reconstructing what actually occurred prior to and at the time of the shooting.” Id. In this process, the jury was free to “credit or reject not only any part of defendant’s testimony but also any other testimony, including that presented by the state.” Id. at 417, 228 N.W.2d at 123. Thus, despite the fact that Leinweber testified that the rifle discharged accidentally and the state argued that the killing was intentional, the jury could “reasonably have inferred” from the evidence that the shooting occurred in the heat of passion. Id. at 418-19, 228 N.W.2d at 123. We then summarized the evidence in the record from which the jury could have drawn such a reasonable inference, emphasizing the known tensions in the Le-inweber marriage, recent public displays of those tensions, Mrs. Leinweber’s visit to an attorney in contemplation of a divorce, and her son’s account of events the night of the killing. Id. at 418, 228 N.W.2d at 124. Accordingly, we concluded that the trial court erred by failing to instruct the jury on heat-of-passion manslaughter. Id. at 415, 228 N.W.2d at 122.

B. The Rational Basis Evidentiary Standard

Leimveber continues to be the core case in our lesser-included offense jurisprudence. As we currently apply the test first articulated in Leinweber, when evaluating whether to give a lesser-included offense instruction, trial courts must determine whether 1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. Stiles v. State, 664 N.W.2d 315, 319 (Minn.2003) (citing Bellcourt v. State, 390 N.W.2d 269, 273 (Minn.1986); Leinweber, 303 Minn. at 421-22, 228 N.W.2d at 125-26). In applying this test, Minnesota courts have struggled to determine what, precisely, the phrase “rational basis” means. We have never directly addressed the subject, and a review of our case law provides mixed guidance regarding the quantity and quality of evidence required to satisfy the rational basis standard.

Some cases have stated or implied that a lesser-included offense instruction is not warranted when there is no evidence adduced to support acquitting of the greater charge and convicting of the lesser. See, e.g., State v. Merrill, 428 N.W.2d 361, 370 (Minn.1988) (stating that when expert testimony supported an inference of intent and “no evidence” suggests the death was negligent or accidental, no rational basis existed for a jury to acquit of intentional murder and convict of unintentional felony murder); State v. Koop, 380 N.W.2d 493, 495 (Minn.1986) (stating that the record “is devoid” of evidence showing the killing-occurred in the heat of passion); State v. Murphy, 380 N.W.2d 766, 772 (Minn.1986) (stating record contained “no proof’ that defendant engaged only in indecent liberties with victim to rebut uncontroverted evidence that he raped her). We believe that this line of cases — suggesting that a lesser-included offense instruction need not be given if no evidence is adduced to support giving the lesser-included offense instruction — is supported by the reasoning in Leimveber.

However, we are concerned that other cases have suggested that trial courts may make witness credibility determinations when deciding whether a lesser-included offense instruction should be given. For example, in State v. Richardson, we affirmed a trial court’s refusal to instruct on lesser-included offenses when the defendant’s testimony alone supported the lesser instruction but the trial court found the testimony “so unworthy of belief’ in the context of the evidence as a whole that “the jury could not rationally have believed it.” 332 N.W.2d 912, 913 (Minn.1983). Our concern is that this language improperly suggests that the trial court may evaluate the credibility of the defendant’s testimony when determining whether a rational basis exists in the evidence warranting a lesser-included offense instruction.

We are also concerned that other cases from our court have suggested that, when determining whether a rational basis exists in the evidence to acquit the defendant of the greater charge and convict him of the lesser, trial courts may not only make credibility determinations, but may also weigh the evidence. For example, in State v. Dukes, the defendant was charged, inter alia, with first-degree felony murder, and the trial court denied Dukes’ request for a lesser-included offense instruction on second-degree felony murder. 544 N.W.2d 13, 16 (Minn.1996). Dukes argued that because his accomplice was the actual shooter, and because his accomplice had stated that he fired his weapon merely to scare the victim, the jury had a rational basis to conclude the shooting was unintentional. Id. at 17, 20. We rejected Dukes' argument and affirmed the trial court’s refusal to submit a second-degree unintentional felony murder instruction, stating that “[w]e believe the evidence of intent was strong enough that the jury could not rationally have acquitted appellant on the first-degree charge.” Id. at 20 (emphasis added). Similarly, in State v. Malzac we concluded that because the “balance of the evidence” indicated that the shooting was intentional — contrary to the defendant’s testimony — the trial court did not err in refusing to submit a second-degree manslaughter instruction. 309 Minn. 300, 306-08, 244 N.W.2d 258, 262-63 (1976). The reasoning in Dukes and Mal-zac improperly suggests that trial courts may weigh the overall “balance” of the evidence — and consider how “strong” it is — when deciding whether a rational basis exists in the evidence to acquit of the greater charge and convict of the lesser.

We emphasize that both credibility determinations and the weighing of evidence are tasks reserved to the jury. State v. Washington, 521 N.W.2d 35, 42 (Minn.1994) (“The weight and credibility to be given disputed evidence are determinations to be made by the jury.”); State v. Landa, 642 N.W.2d 720, 725 (Minn.2002) (“Weighing the credibility of witnesses is the province of the jury.”) In determining whether a lesser-included offense instruction should be given, trial courts must consider only whether a rational basis exists in the evidence to acquit of the greater charge and convict of the lesser — without considering either the strength of the evidence or the credibility of the witnesses.

Our system of justice assumes that juries that are properly instructed will weigh the evidence, determine the credibility of witnesses, and reach the appropriate verdict. Indeed, a number of our sister jurisdictions have recognized these principles and require that, in determining whether a rational basis exists to submit a lesser-included offense instruction to the jury, trial courts must look at the evidence in the light most favorable to the party requesting the instruction. See, e.g., State v. Wilburn, 249 Kan. 678, 822 P.2d 609, 612 (1991); People v. Henderson, 41 N.Y.2d 233, 391 N.Y.S.2d 563, 359 N.E.2d 1357, 1360 (1976); State v. Davis, 6 Ohio St.3d 91, 451 N.E.2d 772, 776 (1983); State v. Velarde, 734 P.2d 449, 451 (Utah 1986); State v. Fernandez-Medina, 141 Wash.2d 448, 6 P.3d 1150, 1154 (2000); Warren v. State, 835 P.2d 304, 330-31 (Wyo.1992).

The requirement that trial courts look at the evidence in the light most favorable to the party requesting the instruction protects the defendant’s right to the presumption of innocence, maintains the state’s burden of proving the defendant’s guilt, and reserves the responsibility of evaluating the weight and credibility of the evidence for the jury — where it belongs. As the United States Supreme Court stated in Keeble v. United States:

[I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other— precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. * * * [Wjhile we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the [statute in question] to preclude such an instruction would raise difficult constitutional questions.

412 U.S. 205, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (emphasis in original). The Supreme Court again addressed the constitutional implications of lesser-included offense instructions in Beck v. Alabama, noting that “[w]hile we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard.” 447 U.S. 625, 637, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

Because we share the Supreme Court’s concern that the denial of lesser-included offense instructions may lead a jury to resolve any doubts in favor of conviction, we hold that in evaluating whether a rational basis exists in the evidence for a jury to acquit a defendant of a greater charge and convict of a lesser, trial courts must henceforth view the evidence in the light most favorable to the party requesting the instruction. This rule best serves the presumption of innocence while reserving to the jury its responsibility to credit or discredit the witnesses, to weigh the evidence, and to draw reasonable inferences from it.

C. Lesser-included Offense Instruction Analytical Framework

Having adopted the rule that trial courts must view the evidence in the light most favorable to the party requesting the instruction, we now seek to provide an overview of the analytical framework trial courts must apply when determining whether a lesser-included offense instruction must be given. Under Minn.Stat. § 609.04, subd. 1 (2004), a defendant “may be convicted of either the crime charged or an included offense, but not' both.” An included offense includes a lesser degree of the same crime. Id., subd. 1(1). In Minnesota, every lesser degree of murder is intended by § 609.04 to be characterized as an included offense. Leinweber, 303 Minn. at 421, 228 N.W.2d at 125.

It is well established in our jurisprudence that we review the denial of a requested lesser-included offense instruction under an abuse of discretion standard. See, e. g., Leinweber, 303 Minn. at 421, 228 N.W.2d at 125 (stating that “it is preeminently the trial court’s duty in the exercise of its discretion to determine what lesser degrees of homicide to submit”). It is equally well established that where the evidence warrants a lesser-included offense instruction, the trial court must give it. See, e. g., Bellcourt, 390 N.W.2d at 273 (“The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, * * * but where the evidence warrants an instruction, the trial court must give it.”). Further, we have stated that “the failure to submit lesser-included offenses to the jury is grounds for reversal only if the defendant is prejudiced thereby.” State v. Shepherd, 477 N.W.2d 512, 516 (Minn. 1991) (citing Bellcourt, 390 N.W.2d at 273). Taken together, these three dimensions of our lesser-included offense jurisprudence may create confusion regarding how the trial court’s discretion, the trial court’s duty, and the conditions giving rise to reversible error relate. We seek to clarify these issues here.

As a preliminary matter, we emphasize that when a defendant fails to request a lesser-included offense instruction warranted by the evidence, the defendant impliedly waives his or her right to receive the instruction. Leinweber, 303 Minn. at 422, 228 N.W.2d at 126; Jordan, 272 Minn. at 86, 136 N.W.2d at 604; Minn. R.Crim. P. 26.03, subd. 18(3). If a defendant expressly waives the right to receive an instruction, the trial court may, in its discretion, withhold the instruction. Bellcourt, 390 N.W.2d at 274 (stating that defendant’s request that the court not give a warranted lesser-included offense instruction constituted a waiver and the trial court did not err in refusing to give it); State v. Walker, 306 Minn. 105, 120-21, 235 N.W.2d 810, 820 (1975) (holding that when a defendant knowingly waived a lesser-included offense instruction warranted by the evidence, the defendant could not subsequently allege that the trial court erred in not sua sponte giving the instruction). Thus, absent plain error affecting a defendant’s substantial rights, a trial court does not err when it does not give a warranted lesser-included offense instruction if the defendant has impliedly or expressly waived that instruction. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). We emphasize, however, that “[njeither the prosecution nor the defense can limit the submission of such lesser degrees as the trial court determines should be submitted.” Leinweber, 303 Minn. at 421, 228 N.W.2d at 125. Even when a defendant has expressly or impliedly waived a jury instruction, a trial court may, in its discretion, ignore the waiver and give any instructions warranted by the evidence.

The more difficult questions arise in cases where a trial court has refused to give an instruction requested by the defen-. dant. As our court has made clear, trial courts must give a lesser-included offense instruction when 1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. Stiles v. State, 664 N.W.2d 315, 319 (Minn.2003) (citing Bellcourt, 390 N.W.2d at 273; Leinweber, 303 Minn. at 421-22, 228 N.W.2d at 125-26)). In addition to this three-part test, we have clarified in this opinion that trial courts must look at the evidence in the light most favorable to the party requesting the instruction when determining whether a lesser-included offense instruction is warranted. Trial courts may not weigh the evidence or make credibility determinations when determining if a lesser-included offense instruction is warranted. See Part I.B, supra.

Our adoption of the “light most favorable” standard raises the question of to what degree — if any — a trial court may exercise its discretion in determining whether a requested lesser-included offense instruction must be given. We hold that, under the “light most favorable” standard, when evidence exists to support the giving of the instruction, it is an abuse of discretion for a trial court judge to weigh the evidence or discredit witnesses and thereby deny an instruction. In other words, on appeal we will review the record in the light most favorable to the party requesting the instruction to determine whether the trial court abused its discretion in deciding the instruction was not warranted by the evidence.

The determination of whether the requested lesser-included offense instruction is warranted by the evidence does not, however, end our inquiry. As noted above, “the failure to submit lesser-included offenses to the jury is grounds for reversal only if the defendant is prejudiced thereby.” Shepherd, 477 N.W.2d at 516 (citing Bellcourt, 390 N.W.2d at 273); see also State v. Edwards, 343 N.W.2d 269, 276 (Minn.1984) (stating that “[a]lthough we believe that the court erred in failing to submit the offense, we do not believe that the error was prejudicial”); Leinweber, 303 Minn. at 422, 228 N.W.2d at 126. Accordingly, when we determine that an instruction requested by a defendant and denied by the trial court was warranted by the evidence, we then must proceed to an analysis of whether the defendant was prejudiced by the trial court’s- failure to give it.

Under our case law, when determining if a defendant has been prejudiced by the court’s failure to give a requested lesser-included offense instruction, appellate courts should consider the instructions actually given and the verdict rendered by the jury. For example, in State v. Shepherd, we concluded that the defendant was not prejudiced by the court’s failure to give a second-degree unintentional felony murder instruction. 477 N.W.2d at 516. The court in Shepherd instructed the jury on first-degree premeditated murder, sec-, ond-degree intentional murder, and first-degree heat-of-passion manslaughter and the jury returned a verdict of guilty of first-degree premeditated murder. Id. at 514. We stated that the jury’s conclusion that the defendant acted with premeditation, despite the option of acquitting him of premeditated murder and finding him guilty of only intentional murder or heat-of-passion manslaughter, demonstrated that the jury would not have found the defendant guilty of unintentional felony murder. Id. at 516; see also State v. Merrill, 274 N.W.2d 99, 105 (Minn.1978) (stating that when the trial court instructed the jury only on first-degree premeditated murder and second-degree intentional murder, the failure to give requested lesser-included offense instructions did not prejudice the defendant on the issue of intent because the jury’s verdict of guilty of first-degree premeditated murder indicated that it not' only believed the defendant acted with intent, but that he acted with premeditation as well). When an appellate court determines that a requested 'lesser-included offense instruction was warranted by the evidence, and the denial of that instruction- prejudiced the defendant, reversal is required. State v. Griffin, 518 N.W.2d 1, 4 (Minn.1994); Leinweber, 303 Minn. at 419, 228 N.W.2d at 124; see also State v. Shannon, 514 N.W.2d 790, 792-93 (Minn.1994) (stating that lesser-included offense instruction should have been given, but reversing for new trial on other grounds); accord Keeble, 412 U.S. at 213, 93 S.Ct. 1993 (stating that where the jury was faced with either convicting on instruction given or acquitting outright, a different verdict may have been reached had the jury been given the requested lesser-included offense instruction).

II.

With these principles in mind, we turn to Dahlin’s claim that the trial court erred' in refusing his request at trial for instructions on second-degree intentional murder and second-degree unintentional felony murder. The element of premeditation distinguishes first-degree premeditat-

ed murder from second-degree intentional murder, and the element of intent further distinguishes second-degree intentional murder from second-degree felony murder. Compare Minn.Stat. § 609.185(a)(1) with § 609.19, subd. 1(1) (2004), and § 609.19, subd. 2(1) (2004). In this case, by refusing Dahlin’s request for second-degree intentional murder and second-degree unintentional felony murder, the trial court determined as a matter of law that the evidence warranted giving the jury only two alternatives in their deliberations — either Dahlin was guilty of premeditated murder or he was innocent.

In explaining its conclusion that the jury could not rationally find a lack of either intent or premeditation, the trial court noted that, regardless of whether Dahlin or his accomplice was the shooter, the facts incontrovertibly established both elements. The trial court emphasized that Dahlin’s theory of the case was that Staats was the shooter, but that Dahlin “never offered evidence or a theory as to why Staats would shoot Jirasek at all.” The trial court went on:

The fact of the matter is that the only practical way the Jury could find intentional and unpremeditated murder is if they found Dahlin the shooter and that his act was unpremeditated. The evidence of premeditation is so strong and really uncontroverted that it would require convoluted thinking to find otherwise.

The trial court then determined that “any rational view of the evidence would either lead to the conclusion that the defendant had nothing to do with the killing or that it was premeditated murder.”

Dahlin disputes the trial court’s conclusion that there is no rational basis in the evidence to acquit of first-degree premeditated murder and convict of second-degree intentional murder. While the state presented substantial evidence in support of its theory that Dahlin killed Jirasek with both intent and premeditation, Dahlin’s argument is persuasive in that evidence was also presented to suggest that the killing may not have been premeditated. For example, Dahlin testified that he only wanted to “talk with” Jirasek, or perhaps “intimidate” him, and this testimony was corroborated by his accomplice, who told the police that he thought Dahlin only wanted to “beat [Jirasek] up.” Dahlin’s girlfriend testified that threatening to kill people was a normal part of Dahlin’s “ranting and raving” but that she did not think he would actually kill Jirasek. In addition, a friend of Dahlin’s testified that a few days before the shooting, Dahlin asked his friend to help him “kick [Jira-sek’s] ass.” Indeed, it appears that the issue of premeditation caused the jury some difficulty, because during the course of deliberations the jury sent a note to the trial judge seeking clarification regarding the meaning of “intent” and “premeditation” before finding Dahlin guilty of the only charge before it — aiding and abetting first-degree premeditated murder.

We urge trial courts to be mindful of our statements in prior cases which recognize that, even when “the defendant’s own testimony does not support the theory that he is guilty only of a lesser offense,” a lesser-included offense instruction is not precluded “if the record on the whole provides a rational basis for acquitting the defendant of the charged offense and convicting him of the lesser offense.” Griffin, 518 N.W.2d at 3 (citing Leinweber, 303 Minn. at 417-18, 228 N.W.2d at 123). Such was the case in Leinweber. There, the defendant testified the shooting was accidental, but nonetheless requested a heat-of-passion manslaughter instruction. Leinweber, 303 Minn. at 416-20, 228 N.W.2d at 123-24. We held that the refusal of the heat-of-passion instruction was error, emphasizing that the jury was free to credit or reject any part of the defendant’s testimony, as well as any other testimony, in reaching its verdict. Id.

Accordingly, we conclude that, when the evidence is viewed in. the light most favorable to Dahlin, the trial court abused its discretion in determining that no rational basis existed in the evidence for the jury to find that Dahlin killed Jirasek without premeditation. Questions of intent and premeditation are not easily susceptible to direct proof, and usually can only be inferred by a jury from the evidence presented. State v. Fratzke, 354 N.W.2d 402, 409 (Minn.1984) (stating determinations of intent are primarily questions of fact for jurors “to decide on the basis of their experiences in life and common sense”); State v. Flores, 418 N.W12d 150, 155 (Minn.1988) (“Premeditation, being a process of the mind, is wholly subjective and hence not always susceptible to proof by direct evidence.”) (quoting 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 11.02 (1985)). By not giving the lesser-ineluded offense instruction of second-degree intentional murder, the trial court forced the'jury to choose between convicting Dahlin of premeditated murder and acquitting him of a crime for which the evidence clearly suggested he was responsible — at least to some degree. Such either-or framing of guilt or innocence is appropriate only in exceptional cases.

Therefore, we hold that the trial court erred when it concluded that Dahlin was not entitled to an instruction on second-degree intentional murder. This error prejudiced Dahlin, because the jury — had it been instructed on second-degree intentional murder — may have convicted Dahlin of the lesser charge.

In addition to asserting that the trial court erred in failing to give an instruction for second-degree . intentional murder, Dahlin also claims the court erred in refusing to give an instruction for second-degree unintentional felony murder, with assault as the underlying felony. Because we are remanding for a new trial, we need not reach the question of whether the failure to give the unintentional felony murder instruction was also error. If Dahlin requests an unintentional felony murder instruction at the next trial, the trial court must determine, viewing the evidence in the light most favorable to Dahlin, whether the instruction is warranted.

Reversed and remanded.

ANDERSON, G. BARRY, 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.

      . In his motion to vacate, Dahlin did not object to the district court's denial of a second-degree unintentional felony murder instruction. He has, however, argued in his appeal to this court that the district court erred in denying both the second-degree intentional murder instruction and the second-degree unintentional felony murder instruction.

      . Each of these cases supports the principle that an appellate court may look to the jury instructions given and the verdict rendered in determining whether a defendant was prejudiced by the trial court's refusal to give a requested lesser-included offense instruction. However, to the extent.these cases suggest that appellate courts may consider the sufficiency of the evidence supporting the verdict rendered in determining whether a defendant - was prejudiced, they should no longer be followed. Rather, appellate courts must consider the jury instructions given and the verdict actually rendered to determine whether a possibility exists that the jury could have returned a verdict of guilty on only the requested lesser-included offense instruction. If so, the defendant is prejudiced and the court's failure to give the instruction is reversible error.

      . We believe that cases in which premeditation exists as a matter of law — thereby precluding the submission of a lesser-ineluded offense instruction on second-degree intentional murder — will be rare. See 10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 11.02 cmt. (4th ed. 1999) ("The charge as to the lesser offense of murder in the second degree has been included, because * * * it seems there are few cases in which murder in the second degree is not a lesser-ineluded offense. When the killing is alleged to have been done by another at the instigation of defendant, it is possible that only a charge of murder in the first degree would be appropriate.”).

      . Because we have remanded for a new trial, we do not address Dahlin’s claim that he was deprived of his right to a fair trial by the improper peremptory strike of a member of the venire panel. We also do not reach Dah-lin’s claims of prosecutorial misconduct, including his assertion that the prosecutor committed misconduct by presenting DNA in an improper and misleading way. Without deciding the issue, we nonetheless caution prosecutors to refrain from describing DNA evidence as "magical stuff,” and "the best thing to happen to the criminal justice system since the United States Constitution because it's like truth serum.” See State v. Bailey, 677 N.W.2d 380, 403 (Minn.2004).


text:
    STATE of Minnesota, Respondent, v. Patrick James MODTLAND, Appellant.
    No. A04-17.
    Supreme Court of Minnesota.
    May 12, 2005.

      Susan Andrews, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, Norman J. Loren, Kane-bec County Attorney, Mora, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Patrick James Modtland appeals from an unpublished decision by the court of appeals holding that the district court did not abuse its discretion when it revoked Modtland’s probation because Modtland did not object to the court’s failure to make two of the three findings required by State v. Austin, 295 N.W.2d 246, 250 (Minn.1980) and because the probation revocation hearing record contained sufficient evidence to demonstrate that the Austin factors had been satisfied. State v. Modtland, No. A04-17, 2004 WL 1774771 *1, *3 (Minn.App. Aug.10, 2004). We reverse.

On January 28, 2003, Modtland burglarized a home in Mora, Minnesota, taking various household items and several firearms. Modtland was charged in Kanabec County District Court with first-degree burglary while possessing a firearm in violation of Minn.Stat. § 609.582, subd. 1(b) (2004); second-degree burglary in violation of Minn.Stat. § 609.582, subd. (2)(a) (2004); theft of firearms in violation of Minn.Stat. § 609.52, subds. 2(1), 3(1) (2004); and third-degree criminal damage to property in violation of Minn.Stat. § 609.595, subd. 2(a) (2004).

Modtland pleaded guilty to the fírst-and second-degree burglary charges on May 1, 2003. At sentencing, the judge stayed the execution of Modtland’s 107-month sentence on the condition that Modtland complete the Minnesota Teen Challenge Program (MTC). The sentencing order specifically provided that “Defendant shall either be in the Teen Challenge program or in jail.”

Modtland entered MTC on June 30, 2003 — the day of his sentencing hearing— and was discharged three months later without completing the program. The discharge summary written by MTC’s dean of men stated that on the day before Modt-land was discharged he had an outburst with staff members in which he threatened to call a lawyer and insisted his rights were being violated. The discharge summary also stated that Modtland had “[grown] while in the program and there were moments where he was very genuine in his desire for help in the program, but his anger continued to flair up and hindered his progress.”

Because the district court judge who originally sentenced Modtland was not available, the probation revocation hearing was presided over by another district court judge on October 6, 2003. At the revocation hearing, Modtland admitted that he had been discharged from MTC, but asked the court to allow him to return to the program. While he acknowledged that he had not expressed himself in the “right way” at MTC, he explained that he had become angry with the staff because medication he was taking to treat his stomach problems had been thrown away:

[PJeople were praying for me to be healed for my stomach problems. I wasn’t finding any relief. My medication accidentally ended up in the garbage, and I felt it didn’t end up in there by accident, and I was hurt, and I didn’t believe what they were telling me, and I sit here, and I see them here willing to take me back, and I know in my heart that that program can help me.

After Modtland’s explanation of his behavior at MTC, the district court revoked Modtland’s probation, stating:

I think what might be helpful is for me to note that Mr. Modtland has waived his right to a contested hearing and entered an admission and agrees that he was in fact terminated involuntarily apparently from the Teen Challenge program. I think there are some confusions as to what exactly occurred, but getting to the bottom of those might not be exactly necessary for the revocation to be ordered, but it may become relevant on the issue of resentencing.
So what I will do at this time is find that Mr. Modtland has waived his right to a contested hearing and there has been sufficient information provided by him and in a review of the file, including the report of [the probation officer], for me to find that he has in fact violated the terms of his probation by failing to successfully complete the program, and Mr. Modtland’s probation is hereby revoked.

After revoking Modtland’s probation based on Modtland’s admission that he had been discharged from MTC, the district court then proceeded to what it described as a “resentencing” phase of the proceeding. The court heard testimony from MTC staff members and Modtland’s probation officer in order to determine whether Modtland should be allowed to continue on probation and return to MTC.

The MTC program director testified that as a result of several “outbursts” by Modtland, he had concluded that MTC and Modtland were not a “fit” and discharged Modtland. However, the director further testified that after reviewing Modtland’s file and speaking with MTC’s dean of men, he was willing to allow Modtland to return if he agreed to show more respect, refrain from having outbursts, and adopt a more positive attitude toward the program.

The district court then asked Modtland’s probation officer for her recommendation. The probation officer stated that she believed Modtland was a “huge risk to public safety” and that because he was not amenable to the MTC program the “only alternative” was for the court to execute his sentence. The court agreed and executed Modtland’s 107-month sentence.

The court cited several factors supporting the execution of Modtland’s sentence. First, it noted that Modtland had seven criminal history points and had already been given a chance by his sentencing judge. In the court’s view, Modtland did not deserve “one more chance” because he had learned to “manipulate the system.” The court also told Modtland it was time that he “take some responsibility” for his behavior. In concluding that Modtlarid’s sentence should be executed, the court did not find that Modtland’s probation violation was intentional or inexcusable, nor did it find that the need for Modtland’s con finement outweighed the policies favoring probation.

Modtland appealed to the court of appeals, claiming that the district court failed to make findings as required by State v. Austin, 295 N.W.2d at 250, and that this failure constituted a basis for reversing the district court’s revocation of his probation. Modtland, 2004 WL 1774771 at *1. The court of appeals affirmed the district court. Modtland then filed a petition for review with this court, which was granted on October 19, 2004.

I.

The issue that must be resolved in this case is whether the district court abused its discretion by revoking Modt-land’s probation without making two of the three required findings set forth in State v. Austin. 295 N.W.2d at 250. A, district court has “broad discretion in determining if there is sufficient', evidence to revoke probation and should be reversed only if there .is a clear abuse of that discretion.” Id. at 249-50. However, whether a lower court has made the findings required under Austin presents a question of law, which is subject to de novo review. Komberg v. Komberg, 542 N.W.2d 379, 384 (Minn.1996) (stating questions of law reviewed de novo).

In State v. Austin, we considered whether the district court abused its discretion in revoking the probation of a defendant who had been released from jail in order to enter into .a drug rehabilitation program. 295, N.W.2d at 248-50. We stated that the “threshold question” presented in the case was determining “what findings a trial court must make before revoking probation.” . Id. at 250 (emphasis added). Our inquiry was grounded in United States Supreme Court precedent establishing that defendants must be afforded procedural due process, when courts revoke parole or probation. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (setting forth “minimum requirements of due process” to be accorded defendants in parole revocation proceedings); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (extending the holding in Mor-rissey to probation revocation hearings); see also Minn. R.Crim. P. 27.04. Accordingly, in Austin we announced the prospective rule that Minnesota courts must make three findings before revoking probation:

For the future guidance of the lower courts, we adopt a three-step analysis which requires that before probation be revoked, the court must 1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that the need for confinement outweighs the policies favoring probation.

295 N.W.2d at 250. Because the application of the rule was prospective, we reviewed the facts in the record before us to determine whether the district court abused its discretion in revoking the defendant’s probation.

In the 25 years since Austin, our decision has been interpreted to allow for a “sufficient evidence exception” to the requirement that courts make the requisite three findings. See, e.g., State v. Boushey, No. A04-976, 2005 WL 288685, at *3 (Minn.App. Feb.8, 2005) (unpublished) (stating that the court of appeals has acknowledged a “ ‘sufficient evidence’ exception”); State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn.App.1995) (noting the “ ‘sufficient evidence’ exception” and stating “[w]hen a district court has failed to make the three Austin findings, the reviewing court may nevertheless affirm the district court’s revocation of a stayed sentence, provided that there is sufficient evidence in the record to support the necessary findings”); State v. Theel, 532 N.W.2d 265, 267 (Minn.App.) review denied (July 20, 1995); State v. Wittenberg, 441 N.W.2d 519, 521 (Minn.App.1989). While this reading of Austin has taken hold in the lower courts, we do not believe such an interpretation can be reconciled with the language of Austin itself.

The misreading of Austin to allow for a “sufficient evidence exception” was compounded in the court of appeals’ decision in the case at hand when it stated that the Austin factors must only be addressed when “the probationer asserts at the probation revocation hearing that the state has presented insufficient evidence to satisfy the factors” — an analysis that appears to be based on an earlier court of appeals decision, State v. Hlavac, 540 N.W.2d at 553. Modtland, 2004 WL 1774771 at 2. However, Austin does not impose such a requirement on the defendant, and we clarify that defendants do not bear the burden of requesting that district courts make the required Austin findings.

Moreover, we reaffirm Austin’s core holding that district courts must make the following three findings on the record before probation is revoked. 295 N.W.2d at 250. First, courts must designate the specific condition or conditions of probation the defendant has violated. Id. Second, courts must find the violation was inexcusable or intentional. Id. Once a court has made findings that a violation has occurred and has found that the violation was either intentional or inexcusable, the court must proceed to the third Austin factor and determine whether the need for confinement outweighs the policies favoring probation. Id.

In making the third Austin finding, we emphasize that district courts must bear in mind that “policy considerations may require that probation not be revoked even though the facts may allow it” and that “[t]he purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.” Id. When determining if revocation is appropriate, courts must balance “the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety,” and base their decisions “on sound judgment and not just their will.” Id. In this regard, our language in Austin regarding the careful balance between public safety and rehabilitation remains relevant today:

To insure that both the probationer’s and the public’s needs are served, the trial courts should refer to the following found in the American Bar Association Standards for Criminal Justice regarding probation:
Grounds for and alternatives to probation revocation.
(a) Violation of a condition is both a necessary and a sufficient ground for the revocation of probation. Revocation followed by imprisonment should not be the disposition, however, unless the court finds on the basis of the original offense and the intervening conduct of the offender that:
(i) confinement is necessary to protect the public from further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.

295 N.W.2d at 251 (citing A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).

II.

We now turn to the question of whether the district court made the findings required under Austin in the instant case. As to the first Austin factor, it is not disputed that Modtland was required to successfully complete the MTC program as a condition of his probation, and that at the revocation hearing Modtland admitted that he had been discharged from MTC. However, the record indicates some confusion on the part of the court regarding the significance of Modtland’s admission and the steps necessary to revoke probation. Rather than making all three Austin findings before revoking probation, the court first concluded that

there has been sufficient information provided by [Modtland] and in a review of the file, including the report of [the probation officer], for me to find that he has in fact violated the terms of his probation by failing to successfully complete the program, and Mr. Modtland’s probation is hereby revoked.

The court then proceeded to what it described as a “resentencing” phase of the hearing, which inyolved taking testimony regarding whether Modtland should be returned to MTC.

Austin does not support this division of the revocation hearing into a “revocation” phase and a “resentencing” phase. Instead, Austin contemplates an evidentiary hearing in which the district court makes the requisite three findings before deciding whether to revoke the defendant’s probation. This process emphasizes that while an intentional or inexcusable probation violation is a necessary condition for probation to be revoked, it is not a sufficient condition. Rather, once an intentional or inexcusable violation has been found, the court must proceed to an evaluation of whether the need for confinement outweighs the policies favoring probation. This process prevents courts from reflexively revoking probation when it is established that a defendant has violated a condition of probation. Austin, 295 N.W.2d at 251 (“The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.”) (citation and quotation omitted).

The requirement that courts make findings under the Austin factors assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation. We emphasize that, in making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon. This comports with Minn. R.Crim. P. 27.04, subd. 3(4), which provides that “[a] verbatim record shall be made of the proceedings at the revocation hearing and in any contested hearing the court shall make written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court’s reasons for its determination.” Thus, courts should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.

We conclude that in this case the district court did not address either the second or third Austin factor before revoking probation. Accordingly, we reverse and remand for a new hearing in which findings are to be made on the record in accordance with the principles set forth in this decision.

Reversed and remanded.

      . On the probation revocation order dated the day of Modtland’s heáring, the court checked the boxes next to “Admits violation(s),” "Factual basis established,” and “Willful violation found.” Although the record contains no reference to the order, it presumably was filled out after the hearing.

      . In the years since Austin., the A.B.A. has replaced these standards with more general guidelines regarding the imposition of sanctions on criminal defendants. See ABA Standards for Criminal Justice: Sentencing, §18-3.12(a)(i) — (iii) (3d ed. 1994).

      . Under Minn. R.Crim. P. 27.04, subd. 3(2), “[i]f the court finds that a violation of the conditions of probation has not been established by clear and convincing evidence, the revocation proceedings shall be dismissed, and the probationer's probation continued under the conditions theretofore ordered by the court.” It should also be noted that when a district court has found that a probationer has intentionally or inexcusably violated a term, of his probation, but finds under the third Austin factor that the defendant’s sentence should not be executed, the court may, in light of the nature of the probation violation, alter the terms of the defendant’s probation — including imposition of intermediate sanctions — under Minn.Stat. § 609.135 (2004).

      . The "written findings” requirement is satisfied by the district court stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review. See Pearson v. State, 308 Minn. 287, 292, 241 N.W.2d 490, 493 (1976).

      . We note that Modtland has raised a number of issues in his pro se briefs, alleging, inter alia, that his constitutional rights were violated because MTC forced him to "submit to 'Faith Healing’ that was clearly not working” and that MTC discharged him because of his medical problems without allowing him access to his probation officer or an attorney. Because we are reversing and remanding for a new hearing, we do not address Modtland’s arguments here. To the extent Modtland believes there are constitutional dimensions to the revocation of his probation not raised at the original revocation hearing, he is free to raise those issues at the hearing on remand.