author: ANDERSON, G. BARRY, Justice.

text:
    STATE of Minnesota, Respondent, v. Morris Jerome PENDLETON, Jr., Appellant.
    No. A05-1758.
    Supreme Court of Minnesota.
    Jan. 11, 2007.

      Mark D. Nyvold, St. Paul, MN, for Appellant.
    Lori Swanson, Minnesota Attorney General, Kimberly Parker, Assistant Attorney General, St. Paul, MN, Michelle Ann Dietrich, Redwood County Attorney, Redwood Falls, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

A jury found appellant Morris Jerome Pendleton, Jr., guilty of first-degree premeditated murder and first-degree felony murder while committing kidnapping for the death of Robert Berry, Jr. The district court sentenced Pendleton to life imprisonment without the possibility of parole for first-degree felony murder while committing kidnapping. Pendleton appeals, arguing that the district court erred when it: (1) overruled Pendleton’s Batson objection to the state’s peremptory challenge of a prospective juror; (2) admitted evidence of two of Pendleton’s prior criminal convictions for impeachment purposes; and (3) instructed the jury regarding felony murder while committing kidnapping. We affirm.

Robert Berry, Jr.’s body was found in the Minnesota River on September 25, 2004. Witnesses testified to the following facts, but Pendleton disputes some of the events leading to Berry’s death and the disposition of the body.

On the evening of September 23, 2004, Shelly Williams hosted a party in Morton, Minnesota. Guests at the party included Pendleton, Keith Crow, Vernon Jones, J.P., and W.S. (“the five men”), all of whom were principally involved in Berry’s death. Other party guests included Alicia Connor and L.B., among others. Approximately 15 people attended the party, many of whom were consuming alcohol and smoking marijuana.

Berry arrived later and began arguing with J.P. The confrontation escalated, and they began punching one another. Crow came to J.P.’s aid, and both proceeded to punch and kick Berry. Soon Berry was bleeding and unconscious on the floor. One witness, S.E., saw Morris Pendleton stomp on Berry.

During the fight, many of the guests left the party, leaving Berry, Pendleton, Crow, Jones, J.P., W.S., Connor, Williams, and L.B. The five men robbed Berry, taking his wallet, jewelry, and car keys. The five men, Connor, Williams, and L.B. left Berry unconscious in the dining room and took Berry’s Chevrolet Tahoe for a ride, with Pendleton driving. During the drive, Pen-dleton suggested that J.P. stab Berry and cut off his head. Crow agreed and suggested that Berry’s body be dumped in the river.

The group returned to Williams’s house, where Berry continued to lie unconscious. The five men carried Berry, who was wrapped in a blanket, out to the Tahoe, placing him in the rear of the vehicle. Crow told Williams and L.B. to stay at the house and clean up Berry’s blood. As the rest of the group got into the Tahoe, Pen-dleton warned Williams that her child would be harmed if she told anyone what happened.

Pendleton drove the Tahoe toward the Minnesota River, taking Oxford Avenue, a rural dirt road, which branches off to a trail that leads down to the river. After backing the Tahoe up to an embankment, the five men took Berry out of the back and dragged him down the embankment to the riverbank. Connor remained with the Tahoe. Five to ten minutes later, the men returned one at a time. Pendleton returned first and said that J.P. fell into the river. When all five men had returned, Pendleton said, “[W.S.] had got him good,” and he also mentioned that he had blood on his shoes.

Pendleton suggested burning the Tahoe, and he drove the group to his parents’ house where he retrieved a can of gas. They drove back to Oxford Avenue after dropping off W.S. and Jones. Connor and Crow got out of the Tahoe some distance down Oxford Avenue, and Pendleton and J.P. continued down the road. The Tahoe was burning a few minutes later. Two police officers soon arrived at the scene, but they never saw Pendleton.

Pendleton later arrived at Floyd Fischer’s house, asked Fischer for a pair of shoes because his were “bloody and muddy,” and also asked for a ride because there were police around. When asked what Pendleton told him about the night’s events, Fischer responded: “That they torched the vehicle and that they stabbed up Junior.” Sandra Larsen-Matray, Fischer’s daughter, gave Pendleton a ride to his parents’ house, and he told her about dumping a body in the river, torching a vehicle, and running from the police.

Berry’s autopsy revealed fifteen stab wounds to his chest. Based on the groupings and angles of the stab wounds, Dr. Paul Nora testified that there was a greater chance than not that there were multiple stabbers. Dr. Nora also determined that the stab wounds caused Berry’s death.

Evidence recovered at or near the crime scene included two tee-shirts. Analysts determined that among the people involved, one tee-shirt contained a mixture of DNA from which only Berry and Pen-dleton could not be excluded. Defense counsel argued that this shirt was worn by J.P. and contained Pendleton’s DNA because J.P. had borrowed the shirt from Pendleton when they had recently stayed at the same house.

Pendleton testified at trial. He denied participating in Berry’s beating at the party. He also denied ever driving Berry’s Tahoe, stating that J.P. drove. He testified that he never suggested that Berry be killed, and he did not help the others carry Berry to the Tahoe or place him in the vehicle. Pendleton testified that once at the river embankment, he did not help take Berry out of the Tahoe, and he remained at the top of the embankment, where he witnessed J.P. stab Berry at least twice. He testified that he then left through a cornfield, arriving at Floyd Fischer’s house two hours later. While on the way to Fischer’s, Pendleton stated that he saw a fire and emergency vehicles in the distance.

On September 24, 2004, Pendleton and his girlfriend, Jamie Renville, went to Ren-ville’s house in Sisseton, South Dakota. Sometime during the following two days, Pendleton went to Minneapolis, where he turned himself in to police on October 4. In statements to police, Pendleton initially denied even witnessing the stabbing.

Pendleton was indicted on three counts of first-degree murder: Count I — premeditated murder, in violation of Minn.Stat. § 609.185(a)(1) (2004); § 609.05 (2004) (aiding); Count II — felony murder while committing kidnapping, in violation of Minn.Stat. § 609.185(a)(3) (2004); § 609.05; and Count III — felony murder while committing aggravated robbery, in violation of Minn.Stat. § 609.185(a)(3); § 609.05. The jury found Pendleton guilty of counts one and two, premeditated murder and felony murder while committing kidnapping, and acquitted him of count three. The district court sentenced Pen-dleton to life imprisonment without the possibility of parole for felony murder while committing kidnapping.

Pendleton asks us to reverse his conviction for several alleged errors by the district court: (1) overruling Pendleton’s Batson objection, (2) admitting two of Pendleton’s past convictions for impeachment purposes, and (3) erroneously instructing the jury on the felony murder while committing kidnapping count. We examine each issue in turn.

I.

Pendleton first argues that the district court committed error during jury selection, when it overruled his Batson objection to the state’s peremptory challenge to prospective juror 34, a Hispanic woman. The use of peremptory challenges to exclude potential jurors is subject to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A peremptory challenge against a prospective juror on account of her race denies equal protection both to the prospective juror, because it denies her the right to participate in jury service, and to the defendant, because it violates his right to be tried by a jury made up of members selected by nondiscriminatory criteria. State v. Reiners, 664 N.W.2d 826, 831 (Minn.2003). The United States Supreme Court established a three-step framework for determining whether a peremptory challenge is motivated by racial discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. We have used the following summary of that framework:

[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.

State v. Blanche, 696 N.W.2d 351, 364-65 (Minn.2005) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

We give great deference to the district court’s ruling on a Batson challenge, recognizing that the record may not reflect all of the relevant circumstances that the court may consider. State v. White, 684 N.W.2d 500, 506 (Minn.2004); State v. Taylor, 650 N.W.2d 190, 200-01 (Minn.2002). “The district court’s determination will not be reversed unless it is clearly erroneous.” Taylor, 650 N.W.2d at 201.

After objecting, Pendleton articulated two reasons why he believed the challenge to prospective juror 34 raised an inference of racial discrimination. First, he noted that the prospective juror was the first prospective juror of a minority race to be questioned, and he was concerned with the lack of “ethnic balance” in the jury pool. Second, Pendleton cited an incident the prospective juror had with the Willmar police, which was discussed in some detail during voir dire.

In response to a question from the state seeking information about any negative experiences with police officers, the prospective juror recounted a 3-month-old incident. After the prospective juror picked up her two sons and their friend from work late on a Friday night, the Willmar police stopped her car. The prospective juror insisted that she had done nothing wrong, but an officer removed her from the car and placed her in the back of a police vehicle. At least four officers and two police vehicles were involved in the stop. An officer accused the prospective juror of going to “party” and asked to search her car. The prospective juror granted permission. Her car was not searched during the 30-minute stop, and the officer told her at the conclusion of the stop that she had been speeding and would only be warned. The prospective juror speculated that she had been stopped because she and the children were all dressed in black and the children wore black berets, and the police persisted because one of her sons had a tattoo on his hand.

The district court did not immediately rule whether Pendleton established a pri-ma facie showing of racial discrimination but instead allowed the state to respond. The state articulated three reasons for challenging prospective juror 34.

First, the state discussed the prospective juror’s attitude toward plea agreements. The prospective juror stated that she thought plea agreements were wrong because people committing crimes get off easier than they should. She also stated that a witness testifying after receiving a plea agreement should be treated the same as others and not be given a deal. The state argued that its main witness was testifying pursuant to a plea agreement, raising the concern that the prospective juror might not accept the testimony of the witness based on her attitude toward plea agreements. The state also argued that nearly all of the potential jurors questioned were asked about plea agreements, and prospective juror 34 was the only one who expressed negative feelings toward them.

The state’s second stated reason for its peremptory challenge was the prospective juror’s response when Pendleton asked what she thought when someone says that “they were just in the wrong place at the wrong time.” The prospective juror responded that her son often said that and was usually correct. This attitude concerned the state because it believed that “the crux” of Pendleton’s defense would be the “wrong place, wrong time” argument. The state worried that the prospective juror would “particularly relate and sympathize to the defendant in that claim because of her experiences with her son.”

The state’s third reason for the challenge was the prospective juror’s possible attitude toward police in general, following her negative encounter with the Willmar police. When asked how the experience might affect her opinion toward police testimony during trial, she responded that it might be hard because she might think back to her experience. She also stated that she understood not all police are like those who pulled her over, and she said that she could be a fair juror, despite the experience. Based on this testimony, the state argued that the prospective juror was equivocal in how her experience might affect her perception of police who testified in the case, which provided the third reason for the challenge.

The district court then allowed Pendle-ton to respond. Pendleton cited the lack of ethnic diversity on the jury panel. Pen-dleton also rebutted each of the state’s three reasons. In response to the state’s “wrong place, wrong time” reason, Pendle-ton noted that the prospective juror investigated whether her son was telling the truth, which is a sign that as a juror, she would weigh the evidence. In response to the plea agreement reason, Pendleton argued that the state will benefit from a juror who believes people should be punished according to their actions, at least in terms of how the juror might view the defendant’s alleged actions. In response to the Willmar police stop and the prospective juror’s attitude toward police, Pendle-ton noted that the prospective juror acknowledged that not all police are the same.

The district court overruled Pendleton’s Batson objection, concluding that a prima facie ease had not been shown. The court noted that the state had consistently questioned jurors about plea agreements, and prospective juror 34 was the only juror “adamant about plea bargains being bad.” The court determined that the challenge was consistent with the state’s desire for jurors who would look favorably on the state’s key witness, who would testify pursuant to a plea agreement. The court concluded that even if a prima facie case had been made, the prospective juror’s negative attitude toward plea agreements was a race-neutral reason for a challenge.

We first observe that the district court improperly conducted the Batson analysis. “The importance of clarity at each step of the analysis is that the opponent has the burden of proving a prima facie case, the proponent has the burden of production of a race-neutral explanation, and the opponent has the ultimate burden of proving pretext and discriminatory intent.” Reiners, 664 N.W.2d at 832. After Pendleton gave reasons for the objection, the district court should have determined whether a prima facie case of racial discrimination had been shown. See White, 684 N.W.2d at 505. Instead, the court allowed the state to respond and Pendleton to rebut that response. The court’s analysis was not in accordance with our Batson precedent or the Batson procedure set forth in Minn. R.Crim. P. 26.02, subd. 6a(3).

But we have not reversed a district court’s Batson ruling solely because of its failure to follow the prescribed procedure. See Reiners, 664 N.W.2d at 832-34 (holding that the district court’s application of Batson was clearly erroneous but then reviewing the record to make our own determination as to the validity of the objection); Taylor, 650 N.W.2d at 202 (“Because the district court did not apply the proper Batson analysis at step two, we need not defer to the [district court’s] finding that the reasons were not facially race-neutral.”). In State v. Stewart, we concluded that “while the trial court’s duty to rule on the [Batson ] challenge is important, a new trial is not automatic where the court fails to rule explicitly.” 514 N.W.2d 559, 563 (Minn.1994). As we held in Taylor, where the district court erred in applying Batson, we will examine the record without deferring to the district court’s analysis. 650 N.W.2d at 202.

We first determine whether Pendleton made out a prima facie case of racial discrimination. The opponent of a peremptory challenge establishes a prima facie case under Batson by showing “(1) that a member of a protected racial group has been peremptorily excluded from the jury and (2) that circumstances of the case raise an inference that the exclusion was based on race.” Blanche, 696 N.W.2d at 365. Pendleton argued at trial that prospective juror 34 was the only member of a racial minority questioned in the jury pool. The state’s use of a peremptory challenge to remove a member of a racial minority, alone, does not establish a prima facie case. Reiners, 664 N.W.2d at 831. But Pendleton also argued during voir dire that the prospective juror’s negative encounter with the Willmar police during the 30-minute long traffic stop should be considered. On appeal, Pendleton argues that the traffic stop was “apparently racially-motivated” and the peremptory strike by the state “assumed that a person subjected to racism is going to have a grudge against the police, and take it out on the State.” We believe these facts raise an inference that the challenge was based on racial factors and conclude that Pendleton did make a prima facie showing.

In step two, “the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.” Blanche, 696 N.W.2d at 364 (quoting Purkett, 514 U.S. at 767, 115 S.Ct. 1769). Race-neutral explanations do not have to be “ ‘persuasive, or even plausible.’ ” Reiners, 664 N.W.2d at 832 (quoting Purkett, 514 U.S. at 767-68, 115 S.Ct. 1769). Rather, the explanation will be deemed race-neutral “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769. The state argued that the prospective juror had negative feelings toward plea agreements, was sympathetic toward the defense’s theory of “wrong place, wrong time,” and was equivocal in how she might view police witnesses after her negative experience with the Willmar police. There is no discriminatory intent inherent in the explanations, and therefore we conclude that the state met its burden of production.

In step three of the Batson analysis, we must decide whether the opponent of the challenge has proved purposeful discrimination. Blanche, 696 N.W.2d at 364-65. In so doing, we “determine[ ] whether the defendant carried his burden of proving that the peremptory strike was motivated by racial discrimination and that the proffered reasons were merely a pretext for the discriminatory motive.” Taylor, 650 N.W.2d at 202. In our review of the record, we observe that despite Pendleton’s argument on appeal that the district court never reached step three, the court did engage in the type of analysis this step requires. If the district court had properly articulated each step of the Batson analysis, the court would not have scrutinized the merits of the state’s race-neutral explanations until step three. As previously discussed, before overruling Pendleton’s objection, the district court analyzed the state’s explanation regarding plea agreements. We conclude that the district court engaged in all three steps of the Batson analysis. By allowing Pendleton to state his reasons for the objection (step one), allowing the state to offer race-neutral reasons for the challenge (step two), and allowing Pendleton to rebut those reasons before ruling on the merits of the objection (step three), the district court collapsed the Batson analysis into one step.

While we do not defer to the district court’s analysis, we conclude that the court properly overruled Pendleton’s objection. Pendleton failed to carry his ultimate burden of proving that the state’s peremptory challenge was motivated by racial discrimination. The state believed it was critical that selected jurors harbor no prejudice toward a witness testifying pursuant to a plea agreement. The state demonstrated this belief by questioning most jurors about their reactions toward plea agreements. Prospective juror 34 was the only potential juror to express negative feelings. The state’s use of prospective juror 34’s objections to plea agreements as a reason for a peremptory challenge is not a pretext for discrimination.

The state also expressed concern over the prospective juror’s attitude toward Pendleton’s “wrong place, wrong time” defense theory. A review of the record shows that the prospective juror was sympathetic to this theory, as a result of her experiences with her son. Peremptory challenges may be exercised for any reason, other than for purposes of impermissible discrimination. See Batson, 476 U.S. at 89, 106 S.Ct. 1712 (“[A] prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried ⅜ ⅜ ⅜.”) (internal quotation marks omitted). The state’s decision to challenge jurors that it believed were sympathetic to the defendant’s case is a permissible use of its challenges.

Finally, we are not persuaded that the state’s reference to the prospective juror’s equivocal feeling toward police, as a result of her negative encounter with the Willmar police, is evidence that the state racially discriminated against the prospective juror by exercising a peremptory challenge. Almost every prospective juror was questioned about his or her attitude toward police, demonstrating that the state’s concern about possible bias against police extended to more than this prospective juror. Moreover, prospective juror 34 never stated that she thought her encounter with the Willmar police was due to race, but rather because she was dressed in black and her sons wore black berets. Even if we were to agree with Pendleton’s argument on appeal that racism should be inferred from the traffic stop, we do not reach the conclusion that the state had a racially discriminatory intent in challenging prospective juror 34, particularly in light of the state’s other valid, race-neutral reasons.

Although the district court did not follow the prescribed procedure for conducting the Batson analysis, we hold that the court did not commit clear error in overruling Pendleton’s objection to the state’s peremptory challenge of prospective juror 34.

II.

Next, Pendleton argues that the district court abused its discretion by admitting evidence of two past felony criminal convictions for impeachment purposes. The court admitted evidence of a conviction for fleeing a peace officer, to which Pendleton pleaded guilty in June 2000, and a conviction for making terroristic threats, to which Pendleton pleaded guilty in July 2000. The facts underlying these convictions were not referred to during trial. Pendleton argues the prejudicial effect of these convictions outweighed their probative value.

“A district court’s ruling on the admissibility of prior convictions for impeachment of a defendant is reviewed under a clear abuse of discretion standard.” State v. Swanson, 707 N.W.2d 645, 654 (Minn.2006). The district court must determine whether “the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a). In making its determination, the court examines the following factors:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

State v. Jones, 271 N.W.2d 534, 538 (Minn.1978). Convictions over 10 years old are ordinarily inadmissible. Minn. R. Evid. 609(b).

The district court made explicit findings on the record as to the Jones factors in admitting the two convictions. See Swanson, 707 N.W.2d at 654 (“ ‘[T]he trial judge should make explicit findings on the record as to the factors considered and the reasons for admitting or excluding the evidence.’ ”) (quoting Minn. R. Evid. 609(a) comm, cmt.—1989). The court found that the impeachment value of the crimes was strong because the crimes were recent, were within a short time of one another, and would “assist the jury in getting a picture of the whole person.” We have stated that prior crimes are important to the jury’s judgment of a witness’s credibility, because it can then see the “whole person.” State v. Gassier, 505 N.W.2d 62, 67 (Minn.1993).

Regarding the second factor, the dates of conviction, the district court reiterated that the crimes were relatively recent and close together in time. We have held that where convictions show a pattern of lawlessness and are less than 10 years old, the dates of conviction do not weigh against admission. Swanson, 707 N.W.2d at 655.

Regarding the third factor, the similarity of the past crimes to the charged crime, the district court found that the past crimes were dissimilar, creating no risk that the jury would view the charged crime as the same as past crimes. The concern weighing against admission with this factor is that the jury will use the convictions as substantive evidence, in addition to impeachment evidence. State v. Bettin, 295 N.W.2d 542, 546 (Minn.1980). But the court instructed the jury that it could not consider evidence of past convictions as evidence of guilt for the crime charged. We have held that such an instruction protects the defendant from the concern that the jury will use his past convictions as substantive evidence. State v. Brouillette, 286 N.W.2d 702, 708 (Minn.1979).

Regarding the fourth factor, the importance of the defendant’s testimony, the district court determined that since Pendleton’s prior testimony to the grand jury and statements to police would likely be admissible even absent his testimony at trial, credibility was an issue, and the convictions should be admitted. In weighing the last factor, the centrality of credibility, the court found that Pendleton’s credibility weighed heavily on what role, if any, he played in the events. “If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.” Swanson, 707 N.W.2d at 655. Credibility was critical, as Pendleton’s “wrong place, wrong time” defense contradicts the consistent story of the state’s witnesses, his DNA on the shirt found near the crime scene, his mention of the murder and surrounding events to Fischer and Larsen-Matray, and his inconsistent story in his statement to police.

Therefore, we hold that the district court did not clearly abuse its discretion by admitting Pendleton’s two prior convictions at issue.

III.

Pendleton’s final argument is that the district court committed prejudicial error in its instruction to the jury on Count II. In that count, Pendleton was charged with violating Minn.Stat. § 609.185(a)(3) (2004) (felony murder while committing kidnapping); § 609.05 (2004) (aiding). In its instruction to the jury on the elements of the crime, the district court defined the underlying felony of kidnapping as follows:

The defendant or another aided by the defendant removed Robert Frederick Berry, Jr., from one place to another without his consent. To remove a person from one place to another is to cause the person to move from one place where the person was to another place;
The defendant or another aided by the defendant acted for the purpose of committing great bodily harm on the person of Robert Berry, Jr., or the defendant or another aided by the defendant acted for the purpose of facilitating the commission of the crime of murder, or facilitating flight after the crime of assault in the third degree.

The district court’s instructions on kidnapping, as they relate to Pendleton’s case, closely track CRIMJIG 15.02. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 15.02 (4th ed.1999). The instructions also reflect the legislature’s definition of kidnapping:

Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person’s consent * * * is guilty of kidnapping and may be sentenced as provided in subdivision 2:
(2) to facilitate commission of any felony or flight thereafter; or
(3) to commit great bodily harm or to terrorize the victim or another[.]

Minn.Stat. § 609.25, subd. 1 (2004). The court instructed the jury that it could find that Pendleton committed kidnapping for any one of the three purposes in the instructions: (1) for the purpose of committing great bodily harm; (2) for the purpose of facilitating the commission of murder; or (3) for the purpose of facilitating flight after the crime of assault in the third degree.

Pendleton argues that the district court committed prejudicial error because it did not instruct the jury that it must unanimously find the purpose for which Pendleton acted. Under the court’s instructions, the jury found Pendleton guilty of felony murder while committing kidnapping, but because the jury was not instructed that unanimity was required to find a purpose, Pendleton argues that he was denied the constitutional right to a unanimous verdict on each element of the crime.

Pendleton did not object to the district court’s instruction on felony murder while committing kidnapping at trial. A party is prohibited from “ ‘assigning] as error any portion of the charge or omission’ unless the party objects to the instructions before they are given to the jury.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001) (quoting Minn. R.Crim. P. 26.03, subd. 18(3)). But we may consider plain error not brought to the district court’s attention if the error affects substantial rights. Id.; Minn. R.Crim. P. 31.02. For plain error, we must find: (1) there is error; (2) the error is plain; and (3) the error affects the defendant’s substantial rights. Crowsbreast, 629 N.W.2d at 437. If all three prongs are met, the error may only be corrected if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

Jury verdicts in all criminal cases must be unanimous. Minn. R.Crim. P. 26.01, subd. 1(5). To achieve that end, a jury must “unanimously find[ ] that the government has proved each element of the offense.” State v. Ihle, 640 N.W.2d 910, 918 (Minn.2002) (citing Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)). But the jury does not have to unanimously agree on the facts underlying an element of a crime in all cases. In Schad v. Arizona, the United States Supreme Court addressed a district court’s jury instructions, where the jury could find that the defendant either committed first-degree murder as a result of premeditation or committed first-degree murder in an attempt to commit robbery. 501 U.S. 624, 629, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). The jury was not required to agree on one of those two mental states, so long as the jury unanimously agreed that the defendant committed first-degree murder. Id. A plurality of the court stated:

We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.”

Id. at 631-32, 111 S.Ct. 2491 (quoting McKoy v. North Carolina, 494 U.S. 433, 449,110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring)). The plurality concluded that this rule applied not only to satisfying an actus reus element of an offense, but also to an element of mens rea, which was at issue in that case. Id. at 632, 111 S.Ct. 2491. But the plurality noted that due process may limit a legislature’s “capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense”; for example, a legislature could not create a criminal offense with the generic label of “crime” and allow the jury to find that a defendant violated the offense by committing any range of conduct, from murder to littering. Id. at 632-33, 111 S.Ct. 2491.

The plurality defined the due process limits on a legislature’s ability to define different courses of conduct or different states of mind as alternatives to a single element, by requiring that such alternatives comport with fundamental fairness and rationality. Id. at 637-38, 111 S.Ct. 2491. On the facts in Schad, the plurality determined that fundamental fairness and rationality were met if the two alternative mental states “reasonably reflect notions of equivalent blameworthiness or culpability.” Id. at 643, 111 S.Ct. 2491. The plurality concluded that a moral equivalence between premeditated murder and felony murder while committing robbery “could reasonably be found.” Id. at 644, 111 S.Ct. 2491.

We cited Schad with approval in Crows-breast, where the district court did not require jurors to agree on specific predicate acts that comprised a “past pattern of domestic abuse” underlying a domestic abuse homicide conviction. 629 N.W.2d at 438-39. We concluded that the “grouping of past acts of domestic abuse as a preliminary factual element * * * is in no way an irrational or unfair definition of domestic abuse homicide, nor are those acts so inherently separate as to present a due process issue as to jury unanimity.” Id. at 439.

We note that for purposes of domestic abuse homicide, “domestic abuse” is broadly defined as an act committed against a family or household member that “constitutes a violation of [Minn.Stat. §§ ] 609.221, 609.222, 609.223, 609.224, 609.2242, 609.342, 609.343, 609.344, 609.345, 609.713, or any similar laws of the United States or any other state.” MinmStat. § 609.185(c) (2004). The specifically named sections encompass first-, second-, third-, and fifth-degree assault, domestic assault, first through fourth-degree criminal sexual conduct, and terroristic threats. This definition allows the jury considerable latitude in finding a past pattern of domestic abuse. For example, some jurors could be convinced that a defendant displayed a replica firearm in an attempt to cause terror in a family member, in violation of Minn.Stat. § 609.713, subd. 3 (2004), while other jurors could find that the defendant inflicted great bodily harm on a family member, in violation of MinmStat. § 609.221, subd. 1 (2004). Both offenses contribute to finding a past pattern of domestic abuse, even though the jurors are not required to agree unanimously on which acts of abuse were committed for purposes of domestic abuse murder.

The three kidnapping purposes available to the jury to prove that Berry was murdered while being kidnapped are not so inherently distinct as to violate due process. The three underlying purposes of committing great bodily harm, committing murder, or facilitating flight after third-degree assault are no more divergent than the predicate acts that may make up domestic abuse murder. The legislature also chose to punish kidnapping similarly, regardless of which purpose is found underlying the commission of the crime. MinmStat. § 609.25, subd. 2 (2004). While the legislature’s determination of penalties is not dispositive, it lends credence to assigning similar blameworthiness or culpability among each purpose for kidnapping.

Two other states have relied on Schad in concluding that a defendant is not constitutionally entitled to a unanimous jury verdict on a single purpose for kidnapping, where the jury was instructed on more than one purpose. See Kills on Top v. State, 273 Mont. 32, 901 P.2d 1368; 1383-84 (1995); State v. Avery, 126 Ohio App.3d 36, 709 N.E.2d 875, 881-83 (1998). A third state has held that a defendant was not entitled to a unanimous jury verdict on the purpose for which he engaged in unlawful sexual contact. State v. St. Pierre, 693 A.2d 1137, 1139 (Me.1997).

Our courts have relied on Schad in concluding that jurors are not always required to agree on alternative ways in which a crime can be committed. See Ihle, 640 N.W.2d at 917-19 (holding that various statutory means of committing legal obstruction are not so dissimilar that jury is required to find one unanimously); State v. Hart, 477 N.W.2d 732, 737-39 (Minn.App.1991) (holding that jury does not need to unanimously agree on the statutory circumstance that warrants first-degree sexual assault, but rather that the victim either sustained a personal injury or had fear of harm), rev. denied, (Minn. Nov. 26, 1991).

The jurors agreed that Pendleton had a kidnapping purpose and that the kidnapping led to Berry’s murder. “ ‘[Different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.’ ” Schad, 501 U.S. at 631-32, 111 S.Ct. 2491 (quoting McKoy v. North Carolina, 494 U.S. at 449, 110 S.Ct. 1227 (Blackmun, J., concurring)). The rule that jurors need not agree on the mode of commission of a crime “is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict.” Id. at 650, 111 S.Ct. 2491 (Scalia, J., concurring in part and concurring in the judgment). Pendleton has not established a due process violation as to jury unanimity.

We hold that the district court did not commit error in its jury instruction as it relates to felony murder while committing kidnapping. Because there is no error, there is no need to address steps two and three of the plain error analysis.

Affirmed.

      . Alicia Connor testified for the state pursuant to a plea agreement.

      . Robert Berry, Jr., was also known as "Junior.”

      . The Batson framework also appears in Minn. R.Crim. P. 26.02, subd. 6a(3).

      . The district court also cited prospective juror 34’s interest in police and courtroom dramas as a race-neutral reason for the state's challenge, but since the state did not offer this reason in support of its challenge, it does not factor into our analysis.

      . Pendleton cites our decision in State v. McRae, 494 N.W.2d 252 (Minn.1992), to support the proposition that the district court has a duty to address step three of the Batson analysis. Although Pendleton is correct that the district court in McRae committed error by failing to properly address step three, id. at 257-58, we reversed the conviction and remanded for a new trial not because of the district court’s error, but because the record was insufficient for us to make a determination of whether or not the prosecutor had a facially race-neutral reason for the challenge. Id. at 260. In contrast with McRae, the record here is sufficient for us to determine whether there has been a Batson violation.

      . Minnesota Statutes § 609.185 provides:
      (a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life: * * * *
      (3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit * ⅞ * kidnapping * * *[.]

      . "A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Minn.Stat. § 609.05, subd. 1.

      . Pendleton also argues that under the plain language of section 609.25, each purpose for kidnapping listed is a separate element, so a jury must unanimously find the accused had one of the four listed purposes. We disagree. We interpret the enumerated purposes as alternatives to satisfying a single element of kidnapping. This interpretation is supported by an advisory committee comment made at the time the kidnapping statute was adopted in 1963: "Kidnapping consists of two basic elements: (1) the confinement or restraint of the person * * * and (2) the intent with which the imprisonment is accompanied.” Minn. Stat. § 609.25 advisory comm. cmt. — 1963. The statute has not been revised in any material way since 1963. See Act of May 17, 1963, ch. 753, § 609.25, 1963 Minn. Laws 1185, 1203. Pendleton also cites State v. Patch, 329 N.W.2d 833 (Minn. 1983), to support the proposition that each purpose under element two of the kidnapping statute is an actual element that requires jury unanimity. In Patch, the defendant was convicted of violating two of the statutory kidnapping purposes arising out of the same conduct. We vacated one of the convictions, thereby "bar[ring] the prosecutor from exaggerating the criminality of the defendant’s conduct by obtaining two convictions for the same offense.” Id. at 837. We did not discuss whether each purpose constituted a separate element, as Pendleton suggests; rather, we noted that the case law supported the vacation and the state conceded the issue. Id.

      . Although Schad was decided by a four-member plurality, Justice Scalia agreed with "the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission,” but he disagreed with the plurality's reasoning. 501 U.S. at 649, 111 S.Ct. 2491 (Scalia, J., concurring in part and concurring in the judgment).

      . The statutory maximum penalty differs only by virtue of the final result of the kidnapping, based on whether the victim was released in a safe place without great bodily harm, which carries a lighter maximum sentence than if the victim was not released in a safe place, suffered great bodily harm, or was 'under the age of 16. Minn.Stat. § 609.25, subd. 2. The purpose for committing the kidnapping is irrelevant.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Arturo Montano MARTINEZ, Appellant.
    No. A05-696.
    Supreme Court of Minnesota.
    Jan. 11, 2007.

      John M. Stuart, State Public Defender, Office of the State Public Defender, Minneapolis, MN, Charles F. Clippert, Special Assistant Public Defender, Bethel & Associates, St. Paul, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

On December 14, 2004, a Hennepin County jury found appellant Arturo Mon-tano Martinez guilty of four counts of first-degree murder. The trial court sentenced Montano Martinez to life imprisonment on count one — first-degree premeditated murder, and a 24-month consecutive sentence on count two — first-degree premeditated murder committed for the benefit of a gang. Montano Martinez raises three issues on appeal: (1) whether the admission of accomplice Francisco Vargas’s testimony from the trial of another accomplice was error; (2) whether the admission of certain gang expert testimony was error; and (3) whether Montano Martinez’s sentence is lawful. For the reasons discussed below, we affirm Montano Martinez’s conviction, but vacate his sentence and remand for resentencing consistent with this opinion.

The events giving rise to Montano Martinez’s conviction began on the evening of December 2, 2000. That evening, Monta-no Martinez was standing outside near Lake Street and Portland Avenue in Minneapolis with members of the Latin Kings gang. A car with members of the rival 18th Streeters gang, including the victim, Ernesto Ayala, approached the group. Shots were fired from the car and two Latin Kings members were wounded. Montano Martinez assisted one of the victims into a vehicle and accompanied him to the hospital. After leaving the hospital, Montano Martinez went to the home of Roberto Lopez-Rios, where a group of Latin Kings members were hanging out with members of a separate gang, the Sureños 13. According to Vargas, at some point he, Montano Martinez, Lopez-Rios, and two Sureños 13 gang members set out to find 18th Streeters to shoot in retaliation for the earlier shooting. The plan was for either Vargas or Lopez-Rios to do the shooting. Just before the shooting, Lopez-Rios attempted to hand Vargas a gun but dropped it on the floor between Mon-tano Martinez’s legs. Montano Martinez then picked it up, got out of the vehicle by crawling over Vargas, and shot at Ayala.

Montano Martinez testified in his own defense. He testified that he was a member of the Latin Kings gang and had been a member for approximately six months before shooting Ayala. He further testified that the Latin Kings commit crimes of violence, including drive-by shootings and murders. When asked about the role of retaliation and respect, he testified that when an enemy of the Latin Kings “disrespects” a King, “something” has to be done and that “[something] is harm.” With respect to the night of the Ayala shooting, Montano Martinez testified that he remembered very little because he had been drinking heavily and had smoked crack and marijuana.

In his testimony, Montano Martinez admitted getting into the vehicle with Lopez-Rios, Vargas, and two others, but denied knowing about a plan to retaliate against the 18th Streeters. Montano Martinez explained that he was not aware of what was going on because he was intoxicated and under the influence of drugs. Montano Martinez testified that he fell asleep in the car, but awoke when they encountered the 18th Streeters because he felt a gun fall into his lap. According to Montano Martinez, he picked up the gun and crawled out of the vehicle and then, out of fear, shot at Ayala.

Montano Martinez fled to Mexico, but turned himself in to authorities in California in April 2004. Two Minneapolis detectives interviewed Montano Martinez while he was in custody in California and recorded a statement in which Montano Martinez admitted killing Ayala. In that statement, Montano Martinez indicated that on the night of the shooting the group in the car went to the scene of the shooting to retaliate against 18th Streeters gang members for the earlier shooting. He also indicated that the plan was for either Vargas or Lopez-Rios to be the shooter, but when Lopez-Rios dropped the gun, Montano Martinez picked it up, exited the vehicle, and shot Ayala. When the detectives asked Montano Martinez why he and the others in the vehicle went searching for the 18th Streeters, he responded, “[I]t was just some stupid stuff with gangs.”

At trial, the state called Vargas to testify. Vargas had reached a plea agreement with the state. Pursuant to that agreement, Vargas pleaded guilty to a reduced charge of second-degree murder for the benefit of a gang and assault. The agreement required Vargas to testify at the trials of Lopez-Rios and Montano Martinez. Vargas complied with the plea agreement and testified at the trial of Lopez-Rios. However, when called to testify at Montano Martinez’s trial, Vargas refused to testify against Montano Martinez, explaining that living in prison as a snitch was worse than the possibility of a longer sentence for refusing to testify. Based on Vargas’s refusal to testify, the state offered Vargas’s testimony from the Lopez-Rios trial as substantive evidence pursuant to Minn. R. Evid. 803(24) and State v. Ortlepp, 363 N.W.2d 39 (Minn.1985).

Montano Martinez’s counsel objected and made the following argument:

[Pjrocedurally, he should be made to sit here and answer questions and, if he refuses, Counsel could then impeach him on his prior record, prior statements, but to suggest that we go forward with just the statement from a prior trial without my having ability to cross-examine him I think would be reversible error, if that is where Counsel is going with this.

The state indicated that it had “no problem with Counsel’s approach to present [Vargas] with his testimony and his answers.” With the court’s permission, the state proceeded by treating Vargas as a hostile witness' and reading his trial testimony from the Lopez-Rios trial aloud. Early in this process, defense counsel objected, stating, ‘Your Honor, I’m going to object to this matter of the transcript. He has to allow the witness either to agree or disagree that that is an accurate, truthful statement he made at that time.” The court allowed the state to continue reading Vargas his Lopez-Rios trial testimony, but required that the state allow Vargas to confirm his earlier testimony and to view each page of the transcript being read.

When the state finished taking Vargas through his testimony from the Lopez>Rios trial, the trial court compelled Vargas to testify, which he did on both direct and cross-examination. While counsel for Montano Martinez was able to elicit some testimony supportive of defense theories, Vargas’s testimony was largely consistent with the testimony he gave at the Lopez-Rios trial.

Don Bautista, a former member of the Minnesota Gang Strike Force, testified as an expert on criminal gangs. Bautista, who had also testified at the Lopez-Rios trial, testified generally about the Latin Kings’ colors, symbols, and turf and that, in December 2000, the Latin Kings had three or more members who individually or collectively engaged in a pattern of criminal activity. Bautista further testified that he was familiar with Montano Martinez and knew him to be a Latin Kings member. With respect to the importance of respect in gang culture and the way respect played into the Ayala shooting, Bautista testified:

In this particular case, it’s not brain surgery that the Latin Kings, well, as you say, the 18th Streeters at the time, were disrespected. They came by, they shot. Retaliation by the Latin Kings had to come soon after that and that is exactly what happened.
[Ayala’s death] benefited the Latin Kings, because they now got their respect back. Several hours before, like I said, when they were disrespected by the 18’s and got shot at and 2 of their people were hit, they had to retaliate. Once they did retaliate, then they got them respect back.

There was also testimony that Montana Martinez told other people that he was involved in Ayala’s shooting. Bryanna Redbird, who was with Montano Martinez when the 18th Streeters gang members carried out their shooting, testified that after the Ayala shooting Montano Martinez told her that “they went and blasted them fools.” Armando Jaramillo testified that Montano Martinez admitted to him that he shot at the 18th Streeters gang members.

I.

Montano Martinez first argues that the trial court committed reversible error when it admitted Yargas’s testimony from the Lopez-Rios trial as substantive evidence pursuant to Minn. R. Evid. 803(24) and Ortlepp. He further argues that Vargas’s testimony was not otherwise admissible to impeach Vargas because the state had not elicited a prior inconsistent statement. In support, Montano Martinez argues that, because Vargas was an accomplice to Ayala’s murder, Vargas’s testimony from the Lopez-Rios trial is inherently untrustworthy and therefore does not satisfy the reliability requirements of Rule 803(24) and Ortlepp and was inadmissible as substantive evidence.

We afford trial courts considerable discretion in admitting evidence. State v. Stallings, 478 N.W.2d 491, 496 (Minn.1991); State v. Glaze, 452 N.W.2d 655, 660 (Minn.1990). We review their evidentiary rulings for an abuse of that discretion. State v. Byers, 570 N.W.2d 487, 491 (Minn.1997). We will not reverse a trial court’s findings unless those findings are clearly erroneous. Id. Under our rules of evidence, an otherwise inadmissible hearsay statement by an available witness may be admitted at trial if the statement fits within one of the exceptions to the hearsay rule set out in Minn. R. Evid. 803. Minn. R. Evid. 802, 803; see Ortlepp, 363 N.W.2d at 44. The evidentiary rule at issue here is Minn. R. Evid. 803(24). In Ortlepp, we held that a hearsay statement made by the defendant’s accomplice was sufficiently trustworthy and therefore an admissible statement under Rule 803(24) because (1) there was no confrontation problem presented by the admission of the statement as substantive evidence because the de-clarant testified, admitted making the statement, and was available for cross-examination; (2) there was no dispute that the declarant made the statement and no dispute as to what the statement contained; (3) the statement was against the declarant’s penal interest; and (4) the state “introduced[ ] evidence which pointed strongly toward” the guilt of the accused. 363 N.W.2d at 44.

We recently made clear that we did not establish an all-encompassing four-factor test in Ortlepp for determining the admissibility of hearsay statements under Rule 803(24). Rather, we explained that we review the totality of the circumstances to determine whether the extrajudicial statement had sufficient guarantees of trustworthiness to be admissible under the rule. State v. Robinson, 718 N.W.2d 400, 408 (Minn.2006). Therefore, although the factors articulated in Ortlepp provide guidance, they are not an exclusive list of the indicia of reliability relevant to our analysis.

Here, as in Ortlepp, there is no confrontation problem, nor is there any doubt about whether Vargas made the statement or what it contained. Before Vargas’s testimony from the Lopez-Rios trial was admitted into evidence, Vargas admitted giving the testimony and indicated that he told the truth at the time that he gave it. Moreover, because Vargas admitted giving the testimony, there is no dispute over whether he made the statement or what it contained. Finally, it should be noted that Vargas ultimately testified at Montano Martinez’s trial and was subject to cross-examination. While Vargas was a reluctant witness, his testimony was largely consistent with his testimony from the Lopez-Rios trial.

Also, as in Ortlepp, there was a significant amount of evidence introduced at trial pointing towards Montano Martinez’s guilt. That evidence included Montano Martinez’s trial testimony and his self-incriminating statement to the police, both of which corroborate much of Vargas’s testimony from the Lopez-Rios trial and point toward finding Montano Martinez guilty. The state also introduced testimony from Redbird and Jaramillo indicating that Montano Martinez had told them that he was involved in Ayala’s murder.

Based on the totality of the circumstances, we conclude that Vargas’s statements from the Lopez-Rios trial are sufficiently trustworthy and were admissible as substantive evidence under Rule 803(24). Therefore, the trial court did not abuse its discretion when it admitted them.

II.

At trial, the state offered the testimony of gang expert Don Bautista who testified generally about the Latin Kings gang and specifically about the night of Ayala’s shooting. Montano Martinez did not object to this testimony at trial and, in fact, vigorously cross-examined Bautista (with particular emphasis on several points beneficial to his defense theory). Montano Martinez now asserts that, despite his failure to object, this court should address the admissibility of Bautista’s testimony because it was plain error affecting his substantial rights.

Specifically, Montano Martinez asserts that Bautista’s testimony that Montano Martinez was a member of the Latin Kings gang and that the crime was committed for the benefit of a gang was error because it was testimony that went to an ultimate issue in the trial. The state asserts that, even if the admission of Bautista’s testimony was error, the testimony did not affect Montano Martinez’s substantial rights because there was ample independent evidence both linking Montano Martinez to the Latin Kings and demonstrating that the murder was premeditated retaliation for the benefit of a gang.

Failure to object to the admission of evidence generally constitutes a waiver of the right to appeal on that basis; however, this court has discretion to consider an error not objected to at trial if it is plain error that affects substantial rights. State v. Taylor, 650 N.W.2d 190, 205 (Minn.2002); State v. Griller, 583 N.W.2d 736, 740, 742 (Minn.1998). In order to constitute plain error, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. Griller, 583 N.W.2d at 740. If any one of these prongs is not met, the claim fails and will not be considered. Id. If all three prongs are met, then we will “assesses whether [we] should address the error to ensure fairness and the integrity of the judicial proceedings.” Id.

We have considered the admissibility of gang expert testimony in four recent cases: State v. Jackson, 714 N.W.2d 681 (Minn.2006); State v. Blanche, 696 N.W.2d 351 (Minn.2005); State v. DeShay, 669 N.W.2d 878 (Minn.2003); and State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003). In each case, there was ample independent evidence linking the defendant to the gang and supporting a conclusion of guilt as to the crime charged. Jackson, 714 N.W.2d at 693; Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613. In each case, we concluded that the expert corroborated the testimony of numerous witnesses and likely was no more influential than much of the other evidence presented linking the defendant to the crime. Jackson, 714 N.W.2d at 693; Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613. And, in each of those cases, we concluded that reversal was not warranted because the error did not affect substantial rights. Jackson, 714 N.W.2d at 693; Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613.

On the record presented here, we need not determine whether the admission of Bautista’s gang expert testimony was error or whether, if error, the error was plain because any possible error did not affect Montano Martinez’s substantial rights. As in Jackson, Blanche, DeShay, and Lopez-Rios, there was ample independent evidence establishing that Montano Martinez was a member of the Latin Kings gang and that the shooting of Ayala was for the benefit of a gang. That evidence includes Montano Martinez’s testimony that he was a member of the Latin Kings gang. Vargas’s testimony, corroborated by Montano Martinez’s statement to police, the testimony of other Latin Kings members, Montano Martinez’s trial testimony with respect to the role of respect and retaliation, and the timing of the shooting all support the conclusion that Montano Martinez killed Ayala in retaliation for the 18th Streeters’ earlier shooting. Thus, while Bautista’s testimony may have been cumulative, it merely confirmed the testimony of other witnesses and did not affect Montano Martinez’s substantial rights.

III.

Montano Martinez was sentenced to life in prison on count one, first-degree premeditated murder, and a consecutive sentence of 24 months in prison on count two — first-degree premeditated murder committed for the benefit of a gang. Mon-tano Martinez argues, and the state agrees, that the court erred when it imposed Montano Martinez’s sentence in that manner. They are correct. As we said in State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984): “[T]he proper procedure to be followed by the trial court when the defendant is convicted on more than one charge for the same act is for the court to adjudicate formally and impose sentence on one count only.” (Emphasis added.)

Here, Montano Martinez was found guilty on four counts and the court adjudicated formally and imposed sentences on counts one and two. Therefore, we vacate Montano Martinez’s sentences and remand to the trial court for resentencing.

Affirmed in part, vacated in part, and remanded for resentencing.

      . Specifically, Montano Martinez was found guilty of count one, first-degree murder in violation of Minn.Stat. § 609.185(1) (2006); count two, first-degree premeditated murder committed for the benefit of a gang in violation of Minn.Stat. §§ 609.185(1) and 609.229 (2006); count three, felony murder in violation of Minn.Stat. § 609.185(3); and count four, felony murder committed for the benefit of a gang in violation of Minn.Stat. §§ 609.185(3) and 609.229. In addition to the counts for which he was convicted, Mon-tano Martinez was indicted on four additional counts: count five, assault in the second degree; count six, assault in the second degree committed for the benefit of a gang; count seven, drive-by-shooting; and count eight, drive-by-shooting committed for the benefit of a gang. These four counts of the indictment were dismissed during trial.

      . Montano Martinez argues that any sentence imposed for a conviction of a crime "committed for the benefit of a gang" requires compliance with the Minnesota Sentencing Guidelines as well as the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This argument is unavailing. As we said in Lopez-Rios, "In a crime committed for the benefit of a gang, the underlying crime is an included crime.” 609 N.W.2d at 615 (quoting State v. Matelski, 622 N.W.2d 826, 833 (Minn.App.2001)). Because the underlying crime here is first-degree murder, the sentencing guidelines do not apply. Minn. Sent. Guidelines V ("First Degree Murder is excluded from the guidelines by law.”).


author: ANDERSON, G. Barry, Justice.

text:
    In the Matter of the WELFARE OF S.M.E., Child.
    No. A06-330.
    Supreme Court of Minnesota.
    Jan. 11, 2007.
    Ann McCaughan, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, State Attorney General, St. Paul, MN, Michael A. Fahey, Carver County Attorney, Janet L. Barke Cain, Assistant Carver County Attorney, Chas-ka, MN, for Respondents.
   OPINION

ANDERSON, G. Barry, Justice.

S.M.E. seeks review of a decision from the court of appeals holding that his appeal from a district court’s adjudication was untimely. We hold that, in the unusual circumstances of this case, an out-of-time appeal should be granted in the interests of justice. Therefore, we reverse and remand to the court of appeals.

Petitioner S.M.E. was charged on April 14, 2005, with two counts of third-degree criminal sexual conduct involving victims 24 months younger than him. S.M.E. admitted to the second count, which occurred when he was a 17-year-old juvenile, and was given a stay of adjudication and six months probation.

On December 12, 2005, the district court held a probation revocation hearing. At that hearing and at two previous hearings, S.M.E. admitted to multiple probation violations. On December 13, the district court issued findings and an order revoking the stay of adjudication. As a result, S.M.E. was placed on indefinite probation and ordered to register as a predatory sex offender, complete two days of community service, provide a DNA sample, and continue to attend therapy.

On December 19, S.M.E.’s attorney faxed a letter to the district court. The letter stated that it was written “pursuant to Minnesota General Rules of Practice 115.11, asking [him] to consider rehearing” the order revoking the stay of adjudication. The letter noted that a hearing had been scheduled for December 27, and that if the court decided not to hear the matter it would be removed from the calendar. As the basis for the rehearing, the letter asserted a lack of due process because the report of S.M.E.’s therapist was not provided to S.M.E. or the state in enough time for either to review it prior to the December 12 hearing.

There is no indication that the district court responded to the letter, but the court held the requested hearing on December 27 “for the purpose of arguing the motion for reconsideration.” At the hearing, the court heard the testimony of S.M.E.’s therapist and received the probation officer’s chronological records as exhibits. The court gave the parties two weeks to submit additional written responses to those exhibits. S.M.E. submitted additional information.

On January 12, 2006, the district court issued another set of findings and order. The findings were identical to those issued on December 13 except that they noted the December 27 hearing. The order, in its entirety, read: “The Juvenile’s Motion for Reconsideration is hereby denied.” Attached to the order was a new memorandum describing the court’s “great difficulty in determining the proper course to take in this matter” and citing two reasons for denying the motion for reconsideration: (1) reservations about S.M.E.’s purported low risk to reoffend, and (2) concern for the integrity of the court in light of S.M.E.’s pattern of “impulsive and unlawful” behavior.

On February 13, S.M.E., represented by new counsel, filed a notice of appeal from the January 12 order. On February 15, the state filed a motion to dismiss the appeal, arguing that S.M.E. had thirty days to appeal the January 12 order and that the appeal was thus untimely. See Minn. R. Juv. Delinq. P. 21.03 (setting the time to file an appeal at thirty days).

On March 7, the court of appeals dismissed the appeal as untimely for a different reason. The court held that because the thirty-day appeal period beginning January 12 expired on a weekend, Minn. R. Juv. Delinq. P. 31.01 extended the time to file to the following Monday, February 13. S.M.E.’s appeal was therefore timely if the January 12 order was appeal-able. The court held, however, that the January 12 order was not appealable because neither the juvenile delinquency rules nor the civil appellate rules recognize a motion for reconsideration as one that extends the time to appeal.

S.M.E. petitioned this court for review, asserting that the December 19 letter extended the time to appeal and that the January 12 order was appealable. In the alternative, S.M.E. requests that we grant an out-of-time appeal either in the interests of justice or for ineffective assistance of appellate counsel for failure to file a timely notice of appeal.

Any effort to neatly apply procedural rules to the history of this case is fruitless. The December 19 letter was, on its face, a request to make a motion to reconsider under Minn. R. Gen. Prac. 115.11. That rule does not apply in juvenile delinquency proceedings. See Minn. R. Gen. Prac. 101. And the district court did not expressly give permission for S.M.E. to make the motion to reconsider as Rule 115.11 requires, although the court seems to have implicitly granted permission by holding the December 27 hearing.

At that hearing, the district court received the parole officer’s chronological records as exhibits and heard brief testimony from S.M.E.’s therapist regarding his progress and risk to reoffend. Thus, the December 27 hearing, although purportedly for the purpose of hearing the motion for reconsideration, was also in the nature of an evidentiary hearing. The January 12 order was styled as a denial of the motion for reconsideration, but the expanded memorandum attached to the order detailed the court’s great difficulty in deciding to adjudicate S.M.E., suggesting that the court did, in fact, “reconsider” his decision, although arriving at the same conclusion the court reached the first time.

The procedural effects of the letter, the hearing, and the order are thus open for debate, and S.M.E. invokes them all. His brief is an amalgam of disparate authorities that never makes quite clear the grounds on which he believes his appeal can be deemed timely. We will attempt to discern those grounds and address each as appropriate.

We interpret procedural rules de novo. Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168, 170 (Minn.2000). When construing procedural rules, we look to the plain language of the rule and its purpose. Id. at 171. Our policy is to preserve the right to appeal, simplify practice, and lessen confusion. Huntsman v. Huntsman, 633 N.W.2d 852, 855 (Minn.2001). Minnesota Statutes § 260B.415 (2004) provides an appeal as of right for a child adjudicated delinquent. An appeal in a juvenile delinquency proceeding must be taken within thirty days of an appealable order. Minn. R. Juv. Delinq. P. 21.03, subd. 2(A).

S.M.E. appears to rely, in part, on the comments to Minn. R.Crim. P. 28.05 and State v. Wollan, 303 N.W.2d 253, 254 (Minn.1981), which indicate that a good-faith timely motion by a prosecuting attorney for clarification or rehearing of an appealable order extends the time to appeal from that order. S.M.E. argues that his good-faith motion for rehearing of the appealable December 13 order should similarly be viewed as extending the time for appeal of that order. Otherwise, he contends, his equal protection rights would be violated. This argument is to no avail, however, because the Rules of Civil Appellate Procedure, not the Rules of Criminal Procedure, apply to appeals from juvenile delinquency proceedings. See Minn. R. Juv. Del. P. 21.01.

S.M.E.’s letter to the district court referenced Minn. R. Gen. Prac. 115.11, which authorizes motions for reconsideration if expressly allowed by the court, and asked “that this matter be reconsidered.” While certain post-decision motions extend the time to appeal until those motions have been decided, motions for reconsideration do not. Minn. R. Civ.App. P. 104.01, subd. 2. Motions for reconsideration were deliberately excluded from the list in Rule 104.01 because such motions are never mandated and are considered only at the district court’s discretion. Id., Advisory Committee Comment — 1998 Amendments.

Recognizing this, S.M.E. now characterizes his motion as one for reconsideration “and rehearing.” Indeed, the December 19 letter not only asks for reconsideration, but also states that S.M.E.’s attorney “is asking [the court] to consider rehearing the [S.M.E.] ruling that was filed December 13, 2005.” (Emphasis added.) Like a motion for reconsideration, a motion for rehearing is not among those motions expressly listed as extending the appeal period in Rule 104.01, subd. 2. But the juvenile rules provide that denial of a motion for rehearing is a final appealable order in the same provision that includes denial of a new trial motion, Minn. R. Juv. Delinq. P. 21.03, subd. 1(A)(5), and Minn. R. Civ. App. P. 104.01, subd. 2, provides that motions for new trial extend the appeal period.

Whatever the meaning of the confluence of these rules, S.M.E.’s argument appears to focus on the fact that a hearing, indeed an evidentiary hearing, was held as a result of his request for reconsideration/rehearing. Where a district court allows a motion for reconsideration to proceed and hears the motion, the parties and the court would seem to be faced with the same procedural dilemma that the tolling provision of Rule 104.01, subd. 2, was intended to address: “to clarify when parties can file appeals, and to provide consistent means for district courts to consider all pending motions without losing jurisdiction by a premature appeal.” Huntsman, 633 N.W.2d at 855. Here, when the court held an evidentiary hearing and opened the record within the thirty-day appeal period, S.M.E. was placed in the very predicament Rule 104.01, subd. 2, tries to eliminate: appeal and divest the district court of jurisdiction over a pending motion, or wait for the court’s order and risk losing the appeal entirely.

It might be appropriate to provide for tolling of the appeal period in all such procedural circumstances, and it certainly would be appropriate to clarify the tolling rules, but lacking the opportunity for considered input from the bench and bar through our rulemaking process, we decline now to adopt such a blanket rule. Instead, we believe the circumstances here warrant the exercise of our inherent authority to allow an appeal to proceed in the interests of justice. See In re Welfare of J.R., Jr., 655 N.W.2d 1, 3-4 (Minn.2003). In J.R., Jr., we declined to create a wholesale “good cause” exception under this inherent authority for failure to follow the rules by mere inadvertence or otherwise. Id. at 4-5. Rather, we explained that we have allowed appeals to go forward in the interests of justice “on the basis of peculiar facts, such as recent changes in the law or interpretation issues” and emphasized that “it is an exceptional case that merits such a departure from the rules that we have recognized as jurisdictional and leads the court to invoke our inherent powers.” Id. at 4. For a number of reasons, this is such a case.

First, juvenile delinquency matters are something of a procedural hybrid, increasing the risk of confusion regarding proper procedure. The Rules of Juvenile Delinquency Procedure contain specific rules relating to appeals from those proceedings, Minn. R. Juv. Del. P. 21, but also incorporate the Rules of Civil Appellate Procedure, Minn. R. Juv. Del. P. 21.01. In addition, the nature of delinquency proceedings is often more akin to criminal proceedings, and many of the juvenile delinquency procedure rules are modeled on their analogs in the Rules of Criminal Procedure. See, e.g., Minn. R. Juv. Delinq. P., Comment — Rule 10. Rule 21 even expressly incorporates one aspect of criminal appellate procedure, Minn. R. Juv. Delinq. P. 21.03, subd. 1 (allowing a petition for discretionary review under Minn. R.Crim. P. 28.02, subd. 3).

Second, S.M.E.’s December 19 letter to the juvenile court referenced Minn. R. Gen. Prac. 115.11, which does not apply to proceedings governed by the Rules of Juvenile Delinquency Procedure. See Minn. R. Gen. Prac. 101. The letter also expressly requested rehearing, and the rules of juvenile delinquency procedure make denial of a motion for rehearing an appeal-able order. Minn. R. Juv. Del. P. 21.03, subd. 1(A)(5).

Third, the hearing scheduled by S.M.E.’s counsel was held within the appeal period from the December 13 order, so if the court had denied permission to proceed with the motion, a timely appeal could have been filed.

Most importantly, the district court held the hearing, allowed the introduction of two exhibits to make the record more complete for appeal, took testimony (albeit limited) from S.M.E.’s therapist, and allowed the parties to file additional written submissions. Given these circumstances, counsel could reasonably understand the case to be under advisement, suggesting that an appeal would be premature. Cf. Servin v. Servin, 345 N.W.2d 754, 758 (Minn.1984) (stating that requiring an appeal from the original judgment while the issues were under consideration by a district court appeal panel would defy common sense and sound judicial practice). And although the court’s subsequent January 12 order reached the same result as the December 13 order and stated that the motion for reconsideration was denied, the accompanying memorandum demonstrates that the court had indeed taken the matter under advisement and reconsidered, but not changed, its prior ruling.

Under these circumstances, allowing the appeal to go forward in the interests of justice is consistent with the purpose of the recent amendments to Minn. R. Civ. App. P. 104 to provide district courts with a means to consider postdecision motions without losing jurisdiction by a premature appeal and our policy of preserving the right to appeal. See Huntsman, 633 N.W.2d at 855. Moreover, it provides appropriate relief in this case while allowing time to consider further rulemaking to clarify the rules and eliminate traps for the unwaiy.

We remand to the court of appeals for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . Rule 115.11 provides:
      Motions to reconsider are prohibited except by express permission of the court, which will be granted only upon a showing of compelling circumstances. Requests to make such a motion, and any responses to such requests, shall be made only by letter to the court of no more than two pages in length, a copy of which must be sent to opposing counsel.

      . The state argues that the hearing was not "evidentiary” because no new facts were presented and no testimony was heard. The first contention is accurate, but the second is not. It appears that the probation records entered as exhibits at the December 27 hearing had been discussed before and were only entered to make a record for appeal. But S.M.E.’s therapist testified, briefly, as to S.M.E.’s progress. While the testimony probably added little to what the district court had already heard, it was testimony nonetheless.

      . We have also recognized that juvenile delinquency proceedings have both rehabilitative and punitive aspects. See State v. McFee, 721 N.W.2d 607, 612-14 (Minn.2006).


author: /s/Helen M. Meyer Associate Justice

text:
    In re the Petition for REINSTATEMENT to the Practice of Law of Wendy Alison NORA, Registration No. 165906.
    No. A06-1292.
    Supreme Court of Minnesota.
    Jan. 11, 2007.
   ORDER

On January 19,1990, we indefinitely suspended petitioner Wendy Alison Nora from the practice of law with no right to apply for reinstatement for at least 30 days. In re Nora, 450 N.W.2d 328, 330 (Minn.1990). In 1991, we denied petitioner’s application for reinstatement. In re Nora, 471 N.W.2d 670 (Minn.1991). Petitioner voluntarily withdrew a second application for reinstatement in 1992. In re Nora, 489 N.W.2d 525 (Minn.1992). During her suspension from the practice of law in Minnesota, petitioner has continued to practice in Wisconsin, where she was admitted to practice in 1975.

Petitioner again applied for reinstatement in July 2006, and a hearing was held before a panel of the Lawyers Professional Responsibility Board. The panel found that petitioner has proven by clear and convincing evidence that she is competent and morally fit to resume the practice of law. See In re Swanson, 343 N.W.2d 662, 664 (Minn.1984) (providing that burden is on attorney to establish by clear and convincing evidence the moral fitness to resume the practice of law). The panel recommended that petitioner be reinstated to the practice of law and be placed on supervised probation for two years subject to additional conditions. Petitioner and the Director agree with the panel’s recommendation and waive briefing and oral argument on the petition.

This court has independently reviewed the file and approves the panel’s recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that, effective immediately, petitioner Wendy Alison Nora is reinstated to the practice of law and is placed on supervised probation for a period of two years, subject to the following conditions:

(a) Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Petitioner shall abide by the Minnesota Rules of Professional Conduct.
(c) Petitioner’s Minnesota practice shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Petitioner shall not agree to represent any Minnesota clients until a supervisor has signed a consent to supervise. Petitioner shall provide to the Director, no later than two weeks from the date of filing of this order, the names of four attorneys who have agreed to be nominated as petitioner’s supervisor. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Petitioner shall make active client files available to the Director upon request.
(d) Petitioner shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Petitioner shall contact the supervisor and schedule bi-monthly, in-person meetings with her supervisor, at which meetings the supervisor shall randomly select and review a sample of petitioner’s open Minnesota files. Petitioner’s supervisor shall have access to all Minnesota client files unless such access would constitute a conflict of interest. Petitioner shall submit to the supervisor an inventory of all active Minnesota client files by the first day of each month during the probation. With respect to each active Minnesota client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, anticipated closing date, and any complaints or circumstances that might lead to a complaint. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(e)Petitioner shall continue medical treatment from a medical professional approved by the Director and abide by the course of treatment recommended. Petitioner shall complete the necessary authorizations for release of medical information to ensure that information regarding petitioner’s health status is shared with the Director on a regular basis.

BY THE COURT:

/s/Helen M. Meyer Associate Justice

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this matter.