author: CONNOLLY, Judge.

text:
    STATE of Minnesota, Respondent v. William LEHMAN, Appellant.
    No. A06-1912.
    Court of Appeals of Minnesota.
    May 13, 2008.

      Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN; and Melanie S. Ford, St. Louis County Attorney, Duluth, MN, for respondent.
    Mark D. Nyvold, St. Paul, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and CONNOLLY, Judge.
   OPINION

CONNOLLY, Judge.

Appellant attacked and beat his attorney in open court while on trial for felony assault after the district court denied his requests to discharge his public defender and declare a mistrial. The district court determined that, because of the assault, appellant had forfeited his right to court-appointed counsel. The district court further ordered that appellant would appear shackled for the remainder of the trial. Appellant argues that his due-process rights were violated because he was not provided with an evidentiary hearing before the district court’s determination that he had forfeited his right to counsel. He also contends that his due-process rights were violated when he was not present at the hearing in which the district court decided that he would be shackled for the remainder of the jury trial. Appellant further argues that forcing him to wear jail clothes for the remainder of the jury trial also violated procedural due process and that the prosecutor engaged in misconduct by mentioning appellant’s attack on his attorney during closing argument. We affirm.

FACTS

Appellant William Lehman was charged with four counts of second-degree assault, two counts of third-degree assault, and one count of terroristic threats. The complaint alleged that appellant assaulted two men with a knife and inflicted substantial bodily harm on both. In addition, the complaint charged that appellant qualified as a dangerous offender who had committed a third violent felony within the meaning of Minn.Stat. § 609.1095 (2004).

Mark Groettum, a public defender, was appointed to represent appellant. After the state had rested its case in appellant’s jury trial, appellant personally addressed the district court and requested a mistrial. Appellant also requested that a different public defender be appointed to represent him. The district court denied both the motion and his request. When the district court reconvened the jury trial, appellant attacked Groettum by wrapping his arm around Groettum’s neck and punching him repeatedly in the face. During the assault, a chair was tipped over, and appellant and his attorney were both on the courtroom floor. As a result of the assault, Groettum bled profusely from his face and nose. He also suffered a cut lip and a black eye. Blood was all over Groettum, the counsel table, and the floor of the courtroom. Deputies and other court personnel intervened and restrained appellant, who was then removed from the courtroom. The jury was immediately led out of the courtroom, and proceedings were adjourned. The district court reconvened four hours later without the jury or appellant but with Groettum and the prosecutor present. The district court stated on the record:

[T]he actions of the defendant were intended to be disruptive and manipulative of the court process, to seek a mistrial of the court proceedings by engaging in assaultive and violent behavior in the jury’s presence by intentionally physically assaulting his own lawyer, and ... the acts of the defendant were a design on his part to attempt to manipulate the Court process.

The district court further concluded that appellant would remain shackled for the remainder of the trial. The court specifically considered and rejected the use of a stun belt and leg restraints as insufficient to protect the people in the courtroom. The district court held that a stun belt would not be sufficient for security purposes because of the time it would take for a deputy to observe the circumstances and then activate the belt. The district court further observed that leg restraints alone would be insufficient because they would not control appellant’s hands, which appellant had earlier used to attack his lawyer. The district court held that the “least reasonable restrictive measure” was to have appellant shackled in the courtroom at all times in the presence of the jury. The district court stated that it would give a cautionary instruction to the jury concerning the shackling. The court also determined that it would be acceptable for appellant to appear at trial in jail attire if law-enforcement officials believed that appellant’s clothing needed to be confiscated as evidence.

After making its finding, the court took a short recess and reconvened 30 minutes later with appellant present in the courtroom. The state asked that appellant be held in contempt. The district court asked appellant if he wished for Groettum to continue as his lawyer. He answered in the negative, but stated that he was not capable of representing himself. Groet-tum stated that he ethically could not continue to represent appellant. The district court concluded that appellant had forfeited his right to be represented by court-appointed counsel. The district court officially excused Groettum from representing appellant. It also determined that appellant would wear jail clothes because his blood-stained clothing might be evidence of a crime. The district court noted that the appellant would not be prejudiced because the jury had seen him taken into custody after the assault. Thereafter, the trial proceeded with appellant, shackled and in jail clothes, appearing pro se against his wishes.

The district court gave three cautionary instructions. First, it advised the jury that Groettum had been discharged by the court, that the jury should not consider the fact that he was no longer there, and that the decision to discharge counsel had no bearing on appellant’s guilt or innocence. Second, the district court instructed the jury not to concern itself with the reasons why appellant was wearing different clothing and that the jury should not consider the fact that he was in different clothing in determining guilt or innocence. Finally, the district court gave a similar cautionary instruction concerning appellant being shackled.

The jury returned its verdict finding appellant guilty on all counts. This appeal follows.

ISSUES
I. Did the district court abuse its discretion by determining, without a separate hearing, that appellant had forfeited his right to counsel by attacking his attorney in front of the jury?
II. Did the district court abuse its discretion by concluding that appellant would wear shackles for the remainder of the trial?
III. Was it harmless error for the district court to order that appellant wear jail clothing for the remainder of the trial?
IV. Was it harmless error to exclude appellant from the hearing when it was determined that he would be shackled and wear jail clothing for the remainder of the trial?
V. Did the prosecutor commit misconduct in his closing argument by referring to appellant’s attack on his attorney?

ANALYSIS

I. Did the district court abuse its discretion by determining that appellant had forfeited his right to counsel by attacking his attorney in front of the jury?

Appellant contends that his Fourteenth Amendment due-process rights were violated because his attorney was discharged without a hearing in appellant’s presence in which he could participate. He argues that this error necessitates reversal and a new trial. Respondent argues that appellant forfeited his right to an attorney, and it was not necessary to have a separate evidentiary hearing with his participation.

“The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process.” Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 1383, 158 L.Ed.2d 209 (2004) (citing Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). That right is made obligatory on the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963). Whether that right can be forfeited appears to be an issue of first impression in Minnesota. But various federal and state courts have considered the issue and determined that the right to counsel can be summarily forfeited for extremely serious misconduct similar to that which occurred here. See Wilkerson v. Klem, 412 F.3d 449, 455 (3d Cir.2005) (stating that a defendant forfeits his Sixth Amendment right to counsel by engaging in extremely serious misconduct); United States v. Thompson, 335 F.3d 782, 785 (8th Cir.2003) (criminal defendant’s threat to kill his appellate counsel justified permitting counsel to withdraw and the refusal to appoint substitute counsel), cert. denied, 540 U.S. 1134, 124 S.Ct. 1111, 157 L.Ed.2d 940 (2004); Gilchrist v. O’Keefe, 260 F.3d 87, 92-100 (2d Cir.2001) (ruling that habeas petitioner had not been unconstitutionally deprived of counsel during a sentencing proceeding based on a state court finding of forfeiture because the petitioner punched his counsel in the head); United States v. Leggett, 162 F.3d 237, 250-51 (3d Cir.1998) (holding that a defendant’s unprovoked physical battery of his attorney at a hearing qualifies as the sort of “extremely serious misconduct” that amounts to the forfeiture of the right to counsel), cert. denied, 528 U.S. 868, 120 S.Ct. 167, 145 L.Ed.2d 141 (1999); United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir.1995) (holding that defendant forfeited his right to counsel by verbally abusing and threatening to harm his attorney, threatening to sue him, and attempting to persuade him to engage in unethical conduct); United States v. Jennings, 855 F.Supp. 1427, 1443-45 (M.D.Pa.1994) (ruling that indigent defendant who physically assaulted his court-appointed counsel without provocation or justification waived his right to appointed counsel and requiring defendant to proceed pro se), aff’d without opinion, 61 F.3d 897 (3d Cir.1995); Bultron v. State, 897 A.2d 758, 762-66 (Del.2006) (holding that defendant’s continuing profanity and insulting conduct directed toward his court-appointed counsel was intended to force his attorney to withdraw and to prevent his trial from going forward after the trial court had denied his request for substitute counsel and amounted to forfeiture of the defendant’s right to counsel); People v. Sloan, 262 A.D.2d 431, 693 N.Y.S.2d 52, 53 (1999) (holding that the defendant forfeited his right to counsel by a pattern of threatening, abusive, obstructive, and uncooperative behavior toward four successive attorneys); People v. Gilchrist, 239 A.D.2d 306, 658 N.Y.S.2d 269 (1997) (ruling that defendant forfeited his right to counsel by physically assaulting his attorney and requiring defendant to represent himself), appeal denied, 91 N.Y.2d 834, 667 N.Y.S.2d 688, 690 N.E.2d 497 (1997); Commonwealth v. Thomas, 879 A.2d 246, 258-59 (Pa.Super.Ct.2005) (holding that a criminal defendant forfeited his right to counsel through a pattern of serious misconduct, abuse, and threats); State v. Caruthers, 35 S.W.3d 516, 548-50 (Tenn.2000) (recognizing that an indigent defendant may forfeit the right to counsel by using that right to manipulate, delay, or disrupt proceedings and holding that a particular indigent defendant forfeited his right to appointed counsel by verbally attacking and threatening his last appointed counsel as well as counsel’s office staff and family members).

We conclude that the district court did not abuse its discretion by determining that appellant had forfeited his right to an attorney by attacking his public defender in open court. No court can carry on its business in an atmosphere of violence, fear, and intimidation. As reflected in the opinions cited, the most appropriate response to the type of cynical manipulation of the right to counsel engaged in by appellant is to refuse to allow the manipulation, in the sense that the defendant should not be provided with the advantage sought. Violence in the courtroom cannot be tolerated and when that violence is a part of a manipulation of the right to appointed counsel it is appropriate to deprive the defendant of that right. We are aware that forfeiting a defendant’s right to court-appointed counsel is an extreme sanction. But the outrageous and manipulative conduct of appellant in this instance justified the district court’s decision. Moreover, the district court’s action is the most effective means of deterring repetition of such conduct by appellant and others similarly situated.

The next issue is whether the district court erred in deciding that appellant had forfeited his right to court-appointed counsel without first conducting an evidentiary hearing in appellant’s presence. The denial of due process is a question of law reviewed de novo by this court. Comm’r of Natural Res. v. Nicollet County Pub. Water/Wetlands Hearings Unit, 633 N.W.2d 25, 29 (Minn.App.2001), review denied (Minn. Nov. 13, 2001).

Generally, an evidentiary hearing is required in order for the court to determine whether the alleged misconduct compelling forfeiture of counsel actually occurred. In contrast, when the misconduct giving rise to the forfeiture occurs in the presence of the district court, the forfeiture ruling need not be preceded by such a hearing. This situation is similar to a judicial finding of criminal contempt. An evidentiary hearing is not required when the contemptuous act occurs in front of the judge. See In re Welfare of E.J.B., 466 N.W.2d 768, 770 (Minn.App.1991) (stating that direct contempt, which occurs in the presence of the court, can be punished summarily, whereas constructive contempt, of which the court has no personal knowledge, requires procedural safeguards); MinmStat. § 588.03 (2006) (“A direct contempt may be punished summarily, for which an order shall be made reciting the facts as occurring in the immediate view and presence of the court or officer, and adjudging the person proceeded against to be guilty of a contempt....”). In this case, no separate hearing was necessary because appellant’s physical assault on his attorney occurred in full view of the district court. See Leggett, 162 F.3d at 250 (stating that an evi-dentiary hearing was not necessary when the defendant attacked his attorney in full view of the district court). The Leggett court determined that an evidentiary hearing was not required because the assault was a direct presentation of evidence before the district court. Id. at 250.

Moreover, even though no separate hearing occurred, appellant did have an opportunity to be heard, albeit belatedly. The district court did not make a decision about the forfeiture of counsel until appellant was brought back into the courtroom at 1:53 p.m. At that point, he was allowed to speak. Appellant stated that he no longer wanted to be represented by Groet-tum, but he did not believe that he was capable of representing himself. He also apologized to the court. Appellant was able to speak again a few moments later when he questioned the cases cited by the court supporting forfeiture of counsel:

THE DEFENDANT: Well, after what you have read, it seems to me most of them cases require repeated disruptions. That’s one disruption.
THE COURT: I understand your position, and the one disruption was sufficient to cause the forfeiture based upon the vicious attack that you chose to engage in here against your attorney this morning.
THE DEFENDANT: Aren’t we assuming guilt there? Don’t I have a right to a trial on that attack?
THE COURT: Ultimately you will if there is charges filed, but you did commit the offense in the presence of the Court....

The district court heard appellant’s argument and rejected it.

We therefore hold that the district court did not abuse its discretion by finding that appellant had forfeited his right to court-appointed counsel by physically assaulting his attorney. Furthermore, the district court did not violate appellant’s right to due process by failing to hold a separate evidentiary hearing because the attack occurred in the presence of the district court.

II. Did the district court abuse its discretion by concluding that appellant would wear shackles for the remainder of the trial?

Appellant argues that the district court abused its discretion by ordering him to wear shackles for the remainder of the trial. Respondent asserts that, under the circumstances, it was within the district court’s discretion to have appellant shackled.

The Minnesota Rules of Criminal Procedure explicitly address the issue of shackling an individual while on trial. The pertinent rule provides:

Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order or security. A trial judge who orders such restraint, shall state the reasons on the record outside the presence of the jury. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall on request of the defendant instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.

Minn. R.Crim. P. 26.03, subd. 2(c).

Furthermore, “(1) restraints should not be ordered unless eminently necessary, and (2) once this necessity has been shown, only those restraints which are reasonable and least coercive under the circumstances should be imposed.” State v. Stewart, 276 N.W.2d 51, 61 (Minn.1979). This court reviews the district court’s decision to shackle a defendant for an abuse of discretion. State v. Chambers, 589 N.W.2d 466, 475 (Minn.1999).

Minnesota caselaw dealing with this issue has concluded that “[a] trial court need not wait for a defendant to cause disruptions to require restraints .... ” Id. The Minnesota Supreme Court has listed several factors to consider including the seriousness of the charge, the defendant’s past record, the defendant’s temperament and character, his age and physical attributes, threats made by the defendant to cause a disturbance, the size of the audience, the nature and security of the courtroom and any less-restrictive means. Stewart, 276 N.W.2d at 62 n. 5.

In this ease, appellant actually attacked his attorney in open court, in front of the judge and jury, punching him several times in the face and drawing a great deal of blood. Appellant demonstrated that he was dangerous and needed to be restrained. The district court found, based on appellant’s conduct in the courtroom, that shackling was necessary. It provided its reasons on the record. The court discussed several cases addressing this issue, evidencing its awareness that the decision to shackle should be one of last resort. Lastly, the district court evaluated less-restrictive means and rejected them as ineffective. The district court did not abuse its discretion by ordering appellant restrained for the remainder of the trial in an effort to protect court officers, attorneys, and the jury.

III. Did the district court err when it required appellant to wear jail clothing for the remainder of the trial?

Appellant argues that the district court committed reversible error by requiring him to appear at trial in jail-issued clothing. Respondent asserts that any error was harmless.

The Minnesota Rules of Criminal Procedure state that “[a]n incarcerated defendant or witness shall not appear in court in the distinctive attire of a prisoner.” Minn. R.Crim. P. 26.03, subd. 2(b). Furthermore, “there is a due process violation if the State denies an accused’s objection to being tried in such garb ... and ... there is no relevant constitutional difference concerning that due process right if the accused has not objected to the practice.” Estelle v. Williams, 425 U.S. 501, 517, 96 S.Ct. 1691, 1699, 48 L.Ed.2d 126 (1976). In conclusion, requiring a defendant to wear jail clothes in open court is a due-process violation. “However, a finding of constitutional error in a criminal trial does not require a new trial if the state can show beyond a reasonable doubt that the error was harmless.” State v. Jones, 556 N.W.2d 903, 910 (Minn.1996). “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Id.

In this case, the district court apparently determined that because appellant’s blood-stained clothes could contain evidence of his assault, he could not wear them. But we do not believe it necessarily follows that appellant should have been required to wear jail clothes for the rest of the trial. He could have been provided with different civilian clothing. But we conclude that any such error was harmless beyond a reasonable doubt. The rationale behind the rule is so that a jury does not know a defendant is in custody, which might influence their deliberations. Here, appellant attacked his attorney in open court, in front of the jurors. After the assault, they witnessed appellant being taken into custody. Therefore, there would have been no illusion, in or out of jail clothes, that appellant was not in custody for the remainder of the trial. Moreover, the district court gave an explicit instruction to the jury that they were not to consider the fact that appellant was wearing court-issued clothing. See State v. Budreau, 641 N.W.2d 919, 926 (Minn.2002) (“[W]e presume that the jury followed the instructions as given.”).

IV. Did the district court err by excluding appellant from the hearing in which it was determined that he would be shackled and wear jail clothing for the remainder of the trial?

Appellant argues the district court erred by not allowing him the opportunity to appear at the hearing to contest being shackled and forced to wear jail clothing. He believes this was plain error that prejudiced him and necessitates a retrial. Respondent asserts that it was not error to exclude appellant from the hearing, and any error that did occur in that regard was harmless. The rule provides: “The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.” Minn. R.Crim. P. 26.03, subd. 1(1). This is a question of law, which this court reviews de novo. Ford v. State, 690 N.W.2d 706, 712 (Minn.2005).

This hearing was a stage of the trial at which appellant had the right to be present. That right, however, may be forfeited under certain circumstances. State v. Ware, 498 N.W.2d 454, 457 (Minn.1993). “Furthermore, even if a defendant is wrongly denied the right to be present, the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt.” Id at 457-58.

Assuming that the district court erred by not allowing appellant to attend the hearing, some relief is proper unless such error was harmless beyond a reasonable doubt. Id. at 457. We conclude that this was harmless error. First, appellant was given a chance to speak after the attorneys and judge had met without him for approximately 30 minutes. At that time, appellant addressed the judge directly, apologized for his earlier conduct, and stated that he did not know what happened, that he “just snapped,” and that his assault upon his attorney was not intentional. The district court rejected these arguments and persisted in its decision to have him shackled and in jail clothes for the remainder of the trial. Second, as previously stated, there was no need for a separate evidentiary hearing because the conduct giving rise to the hearing occurred in the district court’s presence. Lastly, the district court articulated very clearly the reasons for the shackling and jail clothes and rejected any alternatives to shackling after deliberations over the course of four hours between the attack and the hearing. Any error that occurred in barring appellant from the hearing for the first 30 minutes was harmless beyond a reasonable doubt.

V. Did the prosecutor commit misconduct in his closing argument by referring to appellant’s attack on his attorney?

Appellant argues that the prosecutor committed serious misconduct on two occasions in his closing argument when he said the following:

Who is the one who showed the temper on that night? And sadly enough, ladies and gentlemen, you have had a firsthand experience with the defendant’s temper. You have seen it firsthand. Now, you have seen his temper how he acts here in the courtroom, a place where you would like to feel there is a certain amount of decorum, a certain amount of respect. You have seen his temper show up when he is sober. Now ask yourself what was his temper like that night when he is drunk? What would it have been like back then on that night when he is out and about, doesn’t necessarily have to worry about it happening in a courtroom full of people, and he is actually intoxicated?
Now, the defendant makes a great issue of the fact that some of the details from different witnesses, perhaps they remember differently, but keep in mind again it is seven months ago. But I’ll give you a classic example, ladies and gentleman, of memory. You saw an assault occur here yesterday. You saw the defendant assault Mr. Groettum. I would ask yourself when you go back into the jury room whether every one of you is going to remember all the details the same. How many of the chairs were knocked over? Where was the blood? Which of the deputies came in to assist? Now, it was all right in front of you. Are you all going to remember each and every one of those details, though, and remember them all perfectly? No. But you know there is one thing you are going to remember and that is the defendant assaulting Mr. Groettum.

Prosecutorial misconduct can occur when the prosecutor argues facts not in evidence. State v. Steward, 645 N.W.2d 115, 122 (Minn.2002). It can also occur when inadmissible evidence is referred to in an effort to have jurors draw inferences from it, State v. Mayhorn, 720 N.W.2d 776, 788-89 (Minn.2006), or when the prosecutor argues that the defendant had a propensity to commit the charged crimes. State v. Hoppe, 641 N.W.2d 315, 319 (Minn.App.2002), review denied (Minn. May 14, 2002). Misconduct can also occur when the prosecutor acts to inflame the jury’s prejudices and passions. Id. Generally, a party must object to these instances of misconduct at trial or forfeit these arguments on appeal. State v. Powers, 654 N.W.2d 667, 678 (Minn.2003) (citing State v. Sanders, 598 N.W.2d 650, 656 (Minn.1999)). In this case, appellant did not object at trial.

The general rule that a party must object to alleged prosecutorial misconduct or waive the issue on appeal does not apply to a criminal defendant appearing pro se. State v. Reed, 398 N.W.2d 614, 617 (Minn.App.1986) (citing State v. Stufflebean, 329 N.W.2d 314, 318 (Minn.1983)), review denied (Minn. Feb. 13, 1987). Therefore, the unobjected-to alleged pros-ecutorial misconduct is analyzed under a plain-error standard. State v. Ramey, 721 N.W.2d 294, 299 (Minn.2006). Plain-error analysis requires “(1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998) (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

The prosecutor did not engage in misconduct in his first statement. This assault occurred in open court in front of the jury, and appellant referred to the attack in his own direct examination by apologizing to the jury. Furthermore, the district court refused to instruct the jury to disregard the assault, but did instruct them that they were able to take the witnesses’ manner into account. Therefore, the prosecutor did not refer to inadmissible evidence. Nor did he imply that appellant had the propensity to commit the crime because of the assault in open court. Rather, he was merely drawing attention to the fact that appellant had a temper when sober and that it seemed likely he would have a temper when drunk. He did not say that it was more likely that appellant committed the underlying offense because he had assaulted his lawyer.

The prosecutor did not engage in misconduct in his second statement. In this situation, the prosecutor was not inflaming the passions or prejudices of the jury, but rather giving them a concrete example of something they had all witnessed and would recollect differently. This reference was not an end, in and of itself, but rather a means to an end. The prosecutor was attempting to make a larger point and used this convenient reference to do it. The record does not support appellant’s contention that this is misconduct.

Even assuming that these statements were prosecutorial misconduct, they were not prejudicial and would not necessitate a retrial. First, the jury had actually witnessed the assault on the day before closing arguments. There is little doubt that it was present in their minds. It is extremely unlikely that the prosecutor’s reference brought the attack to the forefront of their thoughts or changed their opinion of appellant. Thus, the statements were not prejudicial to appellant and were harmless overall. Furthermore, these two statements were taken out of a much longer closing argument, and it is unlikely that these comments had a substantial impact on the jury. State v. Glaze, 452 N.W.2d 655, 662 (Minn.1990) (finding no prejudice to defendant when the remarks are isolated and not representative of closing argument in its entirety); See State v. Daniels, 332 N.W.2d 172, 180 (Minn.1983) (stating that the prosecutor’s argument must be evaluated as a whole, without solitary comments being taken out of context). The majority of the closing was devoted to an analysis of the evidence, which, giving the jury the benefit of the doubt, was the basis for their verdict.

DECISION

Because appellant attacked his attorney in its presence, the district court did not abuse its discretion in concluding that appellant forfeited his right to court-appointed counsel or that he would remain shackled for the remainder of the trial. Because the assault occurred in its presence, it was not necessary for the district court to conduct a separate evidentiary hearing. It was harmless error to have appellant appear in jail clothes and to ex-elude him from the hearing in which that decision was made. The state did not engage in prosecutorial misconduct when it referred to the attack in its closing argument.

Affirmed.

      . This court will evaluate whether forfeiture of court-appointed counsel was warranted under an abuse-of-discretion standard of review. The district court is closer to the event or events leading to a declaration of forfeiture, and this court will not overturn that determination absent an abuse of discretion.

      . There is another case involving leg restraints and this appellant. The Minnesota Supreme Court concluded in State v. Lehman, 511 N.W.2d 1, 3 (Minn.1994), that based on his past actions, including an escape from custody, appellant had not shown that the use of leg restraints was unjustified.

      . The district court concluded that a stun belt alone would not be effective because the operator may not be able to act quickly enough to protect those in the courtroom. It also determined that leg restraints would not be sufficient as appellant had already shown the damage that could be inflicted by his hands.


source: Caselaw Access Project

author: SHUMAKER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Vincent Lanarde SMITH, Appellant.
    No. A06-2235.
    Court of Appeals of Minnesota.
    May 13, 2008.

      Lori Swanson, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant Public Defender, St. Paul, MN, and Charles F. Clippert, Special Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; SHUMAKER, Judge; and PORITSKY, Judge.

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

   OPINION

SHUMAKER, Judge.

Having been convicted of being an ineligible person in possession of a firearm, appellant contends that the district court abused its discretion in allowing Spreigl evidence of a prior conviction of the same crime and an incriminating photograph taken at another time. He also contends that his right to a speedy trial was violated. Because the court improperly allowed the Spreigl evidence, we reverse and remand on that issue, but we find no violation of appellant’s right to a speedy trial.

FACTS

The primary issue on appeal is whether the district court abused its discretion in allowing the prosecutor to introduce Spreigl evidence during appellant Vincent Lanarde Smith’s jury trial.

The facts pertaining to this issue show that police officers executed a search warrant on September 15, 2005, at an apartment on Marshall Avenue in St. Paul. This was the residence of Charilyn Suggs, who lived there with her two young children. Smith, the father of the younger child, had a sporadic romantic relationship with Suggs. Although Smith did not live at the Marshall Avenue residence, he sometimes stayed there overnight.

During their search, officers found a .25 caliber handgun between the box spring and the mattress of a bed in Suggs’s room. The officers also found clothing that appeared in size and style to be that of an adult male, a prescription-drug bottle showing Smith as the patient, items of correspondence to Smith that listed an address different from Suggs’s, and in a basement utility room, a current Minnesota identification card in Smith’s name that listed a Minnehaha Avenue address.

When a police sergeant questioned Suggs about the handgun, Suggs stated that it was not hers. When the sergeant asked, “If it’s not yours, whose is it?” Suggs replied, “It must be Vincent’s.”

With this information and the fruits of the search, the state charged Smith with possession of a firearm by an ineligible person, a felony, in violation of Minn.Stat. § 624.713, subd. 1(b) (2004). Smith pleaded not guilty, and a jury trial was held.

During the trial, the court allowed the prosecutor, over defense counsel’s objection, to introduce as Spreigl evidence, Smith’s prior conviction of the same crime and a photograph, taken prior to the incident in question, showing Smith at the Marshall Avenue residence standing near a table on which handguns had been placed.

The jury found Smith guilty as charged. On appeal, he contends that the district court abused its discretion in allowing the Spreigl evidence. He also contends that he was denied a speedy trial, an issue that is not dispositive and that we will address briefly for clarification.

ISSUES

1. The appellant was charged with the crime of unlawful possession of a firearm. At trial, the prosecutor was allowed over defense counsel’s objection to introduce, under Minn. R. Evid. 404(b), evidence of the appellant’s prior conviction of the identical charge and a photograph showing him in the presence of firearms on an occasion other than the one in issue. Did the district court abuse its discretion in allowing the 404(b) evidence?

2. Because of numerous continuances, appellant did not stand trial until ten months after he was charged. Was appellant’s right to a speedy trial violated?

ANALYSIS

I. Rule 404(b) (Spreigl) Evidence

As of the time of the search that gave rise to this case, Vincent Smith was not eligible to possess a firearm. He never disputed that fact. Rather, he denied that the gun the police found in their search belonged to him or that he possessed it, actually or constructively.

With Smith’s defense in mind, the prosecutor invoked Minn. R. Evid. 404(b) and proposed to offer evidence of Smith’s prior juvenile-delinquency adjudications in 1997 of possession of a controlled substance and in 1998 of possession of a firearm by an ineligible person; his adult conviction in 2001 of possession of a firearm by an ineligible person; and two photographs, taken before the September 15, 2005 search, purporting to show Smith standing next to a table on which handguns had been placed.

Athough the state apparently noted these items in pretrial disclosures, it failed to indicate that any would be offered under rule 404(b) and failed to identify the purpose of the evidence. See Minn. R. Evid. 404(b) (requiring that the prosecutor give notice of the intent to offer such evidence and to disclose what the evidence will be offered to prove). Despite the lack of proper rule 404(b) notice, the prosecutor did indicate before the trial started that he had Spreigl evidence to offer, and, at or near the conclusion of the state’s case-in-chief, the court held a conference regarding that evidence.

During the conference, the prosecutor stated that Spreigl evidence would be offered under rule 404(b) to prove the identity of Smith as the possessor of the gun found at the Marshall Avenue residence. In support of the admissibility of the evidence, the prosecutor argued that the items were relevant and probative to show “that this defendant is the one who possesses firearms, this is the defendant who has possessed firearms in the past. He arms himself regularly. He keeps guns close by.” As to the photographs, which showed two men standing next to the table on which the guns were displayed, the prosecutor noted that, when Smith pleaded guilty in 2001 to the firearms possession crime, he admitted being the one who was in charge of a firearm that he and his half-brother jointly owned.

The prosecutor also argued that the credibility of crucial state’s witnesses was in dispute. This, he urged, tended to weaken the state’s case and made the Spreigl evidence necessary. Finally, he contended that admission of the evidence would be fair because defense counsel had made a tardy disclosure of some witnesses.

Defense counsel cited the state’s failure to give a proper rule 404(b) notice but did not pursue that violation. Rather, she objected to the Spreigl evidence as being impermissible character evidence and as being unfairly prejudicial. She also disputed the admissibility of the photographs on the ground that there was no clear and convincing evidence of when they were taken or of the identity of Smith as one of the men depicted.

The district court ruled that it would be cumulative to allow all of the convictions but that the most recent one, from 2001, was admissible because the “[sjtate’s case is fairly weak,” and defense counsel did not disclose certain potential witnesses “until the eleventh hour, just prior to beginning trial.” The court also stated that one photograph, the clearer of the two, would be allowed, but to allow both would be unfairly prejudicial. The record contains no rule 404(b) analysis of the admissibility of the 2001 conviction and the photograph. Although the court stated at the Spreigl conference that it would issue written findings on its rulings, no such findings appear in the record on appeal, and neither party has cited any such findings. Thus, the record regarding the 404(b) evidence consists of the prosecutor’s arguments, defense counsel’s responses, and the court’s statements, all as summarized above.

Minn. R. Evid. 404(b), also called the Spreigl rule — named for the case, State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), establishing the same law before the codification of the evidence rules in Minnesota — controls the issue here. That rule precludes evidence of another act extrinsic to the case if the purpose is to show a person’s character and then to invite the inference that the person’s conduct conformed to that character. Stated another way, the rule bars propensity evidence. See State v. Washington, 693 N.W.2d 195, 200-01 (Minn.2005) (noting that propensity to commit crime is an improper purpose of Spreigl evidence).

But evidence of another crime, wrong, or act may be “admissible for other purposes.” Id. at 200. To qualify for rule 404(b) admissibility, other-acts evidence must legitimately serve a relevant purpose other than to show propensity or character. The rule contains an illustrative, nonexclusive list of “other purposes” that can qualify. See Minn. R. Evid. 404(b) (listing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”). These “other purposes” are not exceptions to the character rule, for that would imply that they still are character-evidence and are admissible as such. See Minn. R. Evid. 404(a) (providing exceptions to the character-evidence prohibition). Thus, rule 404(b) permits only strictly non-character uses of evidence.

We review the admission of rule 404(b) evidence for an abuse of discretion. State v. Blom, 682 N.W.2d 578, 611 (Minn.2004). We will not reverse the district court’s allowance of such evidence unless it has been shown that the court clearly abused its discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn.1996). “A defendant who claims the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.” State v. Ness, 707 N.W.2d 676, 685 (Minn.2006). If there is a reasonable possibility that the verdict might have been favorable to the defendant had the evidence not been allowed, the evidence is prejudicial and its admission is reversible error. Id. at 691; see also State v. Clark, 738 N.W.2d 316, 347-48 (Minn.2007) (declining to reverse a district court’s erroneous admission of Spreigl evidence absent a showing of prejudice by defendant).

Before we discuss the evidence in question, three preliminary observations seem appropriate. First, the prosecutor’s argument that Smith is a person who possesses firearms, one who arms himself regularly and also keeps firearms close by, is a classic character-evidence argument. The prosecutor is arguing that Smith has the propensity to possess guns and, at least implicitly, invites the inference that he followed that propensity on the occasion at issue. Although certain character evidence can be admissible, it has to fit an exception to the character-evidence prohibition in Minn. R. Evid. 404(a)(l)-(3). The prosecutor identified no exception that fits here, and it does not appear that any applies. Despite the prosecutor’s character argument, he did identify a proper rule 404(b) purpose, which we discuss below.

Second, in deciding to allow some of the 404(b) evidence, the district court seemed to be persuaded in part by defense counsel’s untimely disclosure of certain witnesses. We are unaware of any authority that would support the admission of 404(b) evidence as a remedy or sanction for a discovery violation.

Third, the district court also seemed to be persuaded in part that the state’s “fairly weak” case justified admission of the 404(b) evidence. The supreme court in Ness cautioned that “courts should not have to rely on the need factor as an independent requirement of admissibility.” 707 N.W.2d at 690. Under Ness, the state’s need for 404(b) evidence is a factor in the overall balancing process the district court must undertake in deciding admissibility. Id. The court here appeared to give “need” independent significance.

Acknowledging the history of rule 404(b) jurisprudence in Minnesota since the Spreigl case, the supreme court in Ness outlined the process to be used for a rule 404(b) analysis at the district-court level:

The court has developed, through the many cases since Spreigl, a five-step process to determine whether to admit other-acts evidence. The steps are: (1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.

Id. at 685-86 (footnote and citations omitted).

Notice

We have commented above on the inadequacy of the Spreigl notice here, but, because Smith has not cited improper notice as a basis for reversal, we need not address the issue further.

Clear and Convincing Evidence

Evidence is clear and convincing when it is highly probable that it is true. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998).

Smith pleaded guilty to the 2001 offense, and evidence of this offense was the first item of Spreigl evidence admitted here. His plea satisfies the requirement of clear and convincing evidence.

The Spreigl photograph shows two men, but their faces are covered from the eyes down. Nevertheless, Smith is identifiable from a distinguishing tattoo on his arm; the location of the picture is identifiable as the Marshall Avenue residence through Suggs’s testimony; and the approximate timing of the photograph is shown through Suggs’s testimony as being after the time she moved into the Marshall Avenue residence in the fall of 2004. The sergeant, at trial, was able to further pinpoint the date of the photographs as taken in the spring of 2005. The evidence is clear and convincing that the photograph shows Smith in the residence where the gun was found, relatively close in time to that discovery, and that he is in close proximity to guns.

Relevance and Purpose

The relevancy of 404(b) evidence can be assessed through an identification and analysis of the purpose for which the evidence is to be offered. The mere statement of the purpose is not to be taken at face value, but rather the court must ascertain the purpose for which the evidence truly is offered. Ness, 707 N.W.2d at 686. Thus, the legitimacy of the purpose must be demonstrated, and the talismanic invocation of an item from the rule 404(b) list does not constitute such a demonstration. See State v. Montgomery, 707 N.W.2d 392, 398 (Minn.App.2005) (“It is not sufficient simply to recite a 404(b) purpose without also demonstrating an arguable legitimacy of that purpose.”). Relevant evidence is that which has “any tendency” making it more likely or less likely that a consequential fact exists than it would be if there were no such evidence. Minn. R. Evid. 401. Here, the consequential and disposi-tive fact was the identity of the person who possessed the gun found in the search. There was no evidence that Smith actually possessed the gun, but circumstantial evidence tended to link him to it. The other-acts evidence, showing conclusively that at one time he admitted to possessing a gun when he was ineligible to do so and showing convincingly that he was in the presence of guns at the same location and at a time not remote from the date of the search, surely made it more likely that he possessed the gun at issue than if there was no such other-acts evidence. The evidence was relevant for the purpose of showing the identity of Smith as the possessor of a firearm.

Balancing

Minnesota caselaw is consistent in applying the rule that a 404(b) analysis requires a balancing of probative value against the danger of unfair prejudice. Some cases have expressly applied the balancing test provided in Minn. R. Evid. 403, namely, that even relevant evidence can be excluded if its probative value is “substantially outweighed by the potential for unfair prejudice.” Washington, 693 N.W.2d at 201; see also Ness, 707 N.W.2d at 688-89 (applying the balancing approach of Washington).

The Minnesota Rules of Evidence were amended in 2006, and rule 404(b) now contains its own balancing test, providing that the probative value of the evidence must not be outweighed by its potential for unfair prejudice. Minn. R. Evid. 404(b).

Our first concern in applying the rule 404(b) balancing test is an assessment of the probative value of the Spreigl evidence, which was relevant under the rule 401 “any tendency” requirement. We then must assess the danger that the evidence might cause unfair prejudice to the defendant.

Because virtually all evidence that a party offers in support of the party’s case will likely prejudice the opponent’s case to some degree, the concern expressed through rule 404(b) is that the prejudice not be unfair. The United States Supreme Court has explained the distinction: “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

2001 Conviction

Smith’s 2001 firearms conviction was convincingly shown through his own admission. Whatever probative value that conviction has in establishing identity in this case likely depends on the similarity of the two acts. The more similar the circumstances of each, the more compelling the inference that the same person was involved in each. Ness, 707 N.W.2d at 688. The similarity between the 2001 conviction and the current charge begins and ends with the name of the crime and the possession of a handgun.

In 2001, Smith possessed a .9 millimeter handgun, having carried it on his person. He admitted that the gun belonged to him and to others collectively and that he was in charge of keeping it. The location of the possession was not the Marshall Avenue residence. The gun in the current charge was a .25 caliber handgun. No actual possession was shown as to anyone. The gun was in a location that was accessible to several other people, and, because of their overnight stays, those people also had opportunities to place the gun there. There was no showing that Smith had any connection with anyone other than Suggs. Thus, the facts do not support an inference of collective constructive possession with those other people. No ownership of the gun was ever established.

There are more dissimilarities than similarities between the two incidents. But because the prior and current charges are identical, that in itself might have been enough to “lure a juror into a sequence of bad character reasoning,” as the Supreme Court expressed in Old Chief. 519 U.S. at 185, 117 S.Ct. at 652. The prosecutor here actually demonstrated that type of reasoning when he argued to the court that Smith is a possessor of guns; that is what he does, and he does it regularly. We conclude that the danger that the jury would, and likely did, use the prior conviction improperly for character purposes was substantial and that danger outweighed the probative value of the evidence. The district court abused its discretion in allowing this evidence.

Photograph

Taken in 2005 at the Marshall Avenue residence, the Spreigl 8⅜ x 11 color photograph shows a table, on which there are keys, lottery tickets, a cell phone, plastic bags, various bills of U.S. currency, and two visible black handguns. Two men are standing next to the table, and they appear to be posing for the camera. Both are wearing bandanas covering their faces below their eyes. Both are making gestures with their hands that worldly jurors could easily interpret as gang signs.

The photograph clearly shows that neither man is in actual possession of the guns. It shows nothing from which to infer to whom the guns belong. It does not necessarily even show joint constructive possession, although that inference is plausible. But the nearly inescapable message the picture conveys is that these are gun-toting gangsters. There is a gun for each, and they are displaying their loot and hiding their identities.

Even though it is not illegal for Smith to be in the presence of firearms — as long as he does not possess them — the photograph is so bluntly compelling that it is unlikely that a jury would — or that this one did— make any distinction between presence and possession. The picture associates Smith with firearms and does so with a nefarious connotation.

Because the photograph invites an inference that the men depicted are criminals, it has substantial potential for activating a sequence of impermissible character reasoning that could cause the jury to decide the case on an improper basis. We conclude that the danger of unfair prejudice from this evidence outweighs its probative value and that the district court abused its discretion in allowing it.

Two additional observations pertinent to this case need to be made regarding 404(b) evidence. First, if the evidence is of another crime or wrongful act, it likely will carry a “propensity taint” to some extent. That in itself does not justify exclusion:

The rule is one of inclusion. It authorizes the admission of a party’s conduct that is extrinsic to the matter on trial for any relevant reason other than to prove the party’s propensity to do the thing at issue. It would be indulging in fiction to say that admissible other conduct evidence must be completely free of any propensity taint. A reasonable fact finder might entertain that notion no matter how careful the trial judge is in defining the limited purpose of the evidence. The mere existence of the possibility of misuse is not enough to bar the evidence if it fits within ... 404(b). It is enough to call on the judge to carefully exercise his discretion.

Thomas A. Mauet & Warren D. Wolfson, Trial Evidence § 5, at 103 (1997).

Thus, our holding that the Spreigl evidence should have been excluded is not based on the mere possibility that the jury might use the evidence improperly but rather on the substantial and demonstrable danger that it would in fact do so because of the nature of each Spreigl item.

Our second observation reflects a statement in the Advisory Committee Note to the Federal Rules of Evidence, from which the Minnesota rules were derived. Commenting on the issue of determining whether to exclude evidence because of potential for unfair prejudice, the committee indicates that the likelihood of the effectiveness of a limiting instruction — which the court properly gave here — is a consideration, and “[t]he availability of other means of proof may also be an appropriate factor.” Fed.R.Evid. 403 1972 advisory comm. note. Even though the other proof here rested on circumstantial evidence, it was not insignificant in linking Smith to the location of the gun and the gun itself. His identification card, prescription-drug bottle, and correspondence all link him to the residence. A DNA sample was obtained from the gun. An expert witness testified that five out of sixteen genetic locations produced a match to Smith’s DNA as a predominant profile. And Suggs, despite some reluctance, also linked Smith directly to the gun.

Each of the Spreigl items is independently excludable under the 404(b) balancing test. Taken together — as happened at trial — the danger of unfair prejudice increased immensely and likely made it impossible for the jury to resist the nearly overwhelming character implication the evidence invited.

II. Speedy Trial

Smith’s second claim is that, because it took ten months for his case to come to trial, his constitutional right to a speedy trial was violated and he is entitled to a dismissal of the case.

A person accused of a crime has a constitutional “right to a speedy and public trial.” U.S. Const, amend VI; Minn. Const. art. I, § 6. Whether that right has been violated is a question of law that we review de novo. State v. Cham, 680 N.W.2d 121, 124 (Minn.App.2004), review denied (Minn. July 20, 2004).

Minnesota rules require that trial be commenced within 60 days of a defendant’s demand for a speedy trial, unless good cause is shown why trial cannot be started within that time. Minn. R.Crim. P. 11.10. A ten-month delay raises a rebuttable presumption of prejudice and warrants further analysis. See State v. Jones, 392 N.W.2d 224, 235 (Minn.1986) (finding seven-month delay sufficient to trigger further analysis). The speedy-trial analysis entails an assessment of the so-called Barker factors, namely, (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant demanded a speedy trial; and (4) the extent to which the delay prejudiced the defendant. State v. Windish, 590 N.W.2d 311, 315 (Minn.1999) (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972)).

Smith was charged with the crime at issue on October 6, 2005. He demanded a speedy trial on October 27, 2005. As of that date, Smith was represented by a public defender. Trial was set to begin on December 5, and the state was ready to proceed. A newly assigned public defender requested a continuance. The trial was reset for December 12 and December 14, and the state was ready to proceed, but Smith’s attorney again requested continuances.

Smith pleaded guilty on January 30, 2006, and was released from custody. This obviated the necessity for a speedy trial. Sentencing was set for April 18. But Smith was charged on another matter while on release pending sentencing, and the court refused to honor the January plea agreement.

On May 2, the court allowed Smith to withdraw his plea of guilty, and on May 11, Smith reasserted his speedy-trial demand. Trial was set for July 17. On July 18, Smith withdrew his speedy-trial demand and asked for a one-week continuance. The court granted that continuance, and then on July 25, at Smith’s request, the court granted a two-week continuance. Trial began on August 7, 2006.

All delays in this matter were for good cause and most were attributable to Smith’s attorney’s need for time to prepare an adequate defense. Furthermore, when Smith pleaded guilty, his speedy-trial right evaporated, and any delay up to that time was nullified by his plea. He reasserted his right to a speedy trial on May 11, and the matter was ready on July 17, seven days beyond the 60-day requirement. Smith did not object to that relatively brief delay, and on the next day he waived his right to a speedy trial and did not reassert it.

Thus, there was a delay of seven days beyond the 60-day limit. Smith has failed to show any prejudice because of that short delay. Smith’s right to a speedy trial was not violated.

DECISION

Because the district court admitted Spreigl evidence that was unfairly prejudicial, appellant is entitled to a new trial, despite the fact that he was not denied his constitutional right to a speedy trial.

Reversed and remanded.


author: HALBROOKS, Judge.

text:
    U.S. HOME CORPORATION, d/b/a Lundgren Brothers, Appellant, v. ZIMMERMAN STUCCO AND PLASTER, INC., Respondent.
    No. A07-0889.
    Court of Appeals of Minnesota.
    May 13, 2008.

      Robert H. Torgerson, Robert L. Smith, Ryan Stai, Leonard, Street and Deinard, P.A., Minneapolis, MN, for appellant.
    James A. Reding, Jr., Eric Lee Nelson, Reding & Pilney, PLLP, Lake Elmo, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; KLAPHAKE, Judge; and SCHELLHAS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant U.S. Home Corporation d/b/a Lundgren Brothers challenges the district court’s grant of summary judgment to respondent Zimmerman Stucco and Plaster, Inc. The district court held that appellant’s claims are barred by the repose period in Minn.Stat. § 541.051 (2004). The Minnesota Legislature subsequently amended section 541.051. Because the legislature’s amendment to Minn.Stat. § 541.051 is intended to be retroactive and because summary judgment in favor of respondent was not a final judgment as of the effective date of the amendment, we reverse and remand.

FACTS

Appellant was the general contractor for a home completed in October 1994 that was purchased by Jeanne Maier. Respondent was the stucco subcontractor for the home. Maier filed a lawsuit against appellant on May 4, 2004, claiming breach of statutory warranties under Minn.Stat. §§ 327A.01-.08 (2002 & Supp.2003), and negligence in the construction of the home. Respondent was not named in the lawsuit. Appellant tendered Maier’s claims to respondent and requested that respondent defend and indemnify appellant. Respondent rejected appellant’s tender on June 10, 2004.

Appellant settled Maier’s claims on April 7, 2005. On May 3, 2006, appellant served a summons and complaint on respondent, asserting claims of indemnification and contribution as a result of the settlement with Maier. Respondent moved for summary judgment, arguing that appellant’s claims were barred by the ten-year repose period in Minn.Stat. § 541.051 (2004). Appellant opposed the motion on the ground that the 2004 version of section 541.051 violated the equal-protection guarantees of the Minnesota Constitution. In the alternative, appellant argued that the repose period in subdivision 1 of section 541.051 was not applicable and that subdivision 4 governed its claims. Because subdivision 4 did not include a ten-year repose period, appellant contended that its claims were not barred.

In addition to its arguments in opposition to the summary-judgment motion, appellant also advised the district court that the Minnesota Legislature was then considering an amendment to section 541.051. Appellant asserted that the amended statute would have retroactive effect and asked the district court to reserve its ruling on the summary-judgment motion until after the legislature acted. The district court denied appellant’s request to reserve judgment and granted respondent’s motion for summary judgment on March 5, 2007. Appellant timely filed its notice of appeal on May 2, 2007. On May 21, 2007, Governor Pawlenty signed into law legislation amending section 541.051. The amended statute stated that it is “effective retroactively from June 30, 2006.” 2007 Minn. Laws ch. 105, § 4, at 625-26. This appeal follows.

ISSUE

Does the amendment to Minn.Stat. § 541.051 (2004), that was signed into law on May 21, 2007, apply retroactively to appellant’s contribution and indemnity claims against respondent and operate to revive them?

ANALYSIS

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). There are no genuine issues of material fact presented here. When the district court grants summary judgment based on an application of a statute to undisputed facts, the result is a legal conclusion, which is reviewed by this court de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The unique aspect of this case is the change in the statute after the district court’s determination that appellant’s claims of contribution and indemnity were barred by the ten-year repose period in Minn.Stat. § 541.051 (2004). Because appellant contends that the statutory amendment has revived its claims, we examine the statutory language and whether or not it is retroactive in its application.

A law is presumptively not retroactive. See Minn.Stat. § 645.21 (2006). For a law to have a retroactive effect, the legislature must clearly manifest its intent to make the law retroactive. Id,.; Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002). Inclusion of the word “retroactive” is a clear manifestation by the legislature that a statute is intended to be applied retroactively. Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn.1985). Here, the term “retroactive” is used in the language of the 2007 amendment to Minn.Stat. § 541.051. 2007 Minn. Laws ch. 105, § 4, at 626. Therefore, we conclude that Minn.Stat. § 541.051 (Supp.2007) is properly applied retroactively to June 30, 2006, the specified effective date in the statute. Id.; see also Gomon, 645 N.W.2d at 416-17 (applying a retroactive modification of a statute of limitations to the date specified in the amendment).

Having determined that the law overcomes the presumption against retro-activity, we next analyze whether retroactive application of the statute revives appellant’s claims. “[T]here can be no doubt that the legislature has the power to amend a statute of limitations to revive a claim that was already barred under the prior limitations period.” Gomon, 645 N.W.2d at 418. An amendment to the statute of limitations is not prohibited because the “passage of time creates no vested right in the exemption from the remedy.” Peterson v. City of Minneapolis, 285 Minn. 282, 288, 173 N.W.2d 353, 357 (1969) (quotation omitted). But the Fourteenth Amendment of the United States Constitution prohibits a legislature from enacting retroactive legislation that divests a private vested interest. K.E. v. Hoffman, 452 N.W.2d 509, 512 (Minn.App.1990), review denied (Minn. May 7, 1990).

“[A] right is not ‘vested’ unless it is something more than a mere expectation, based on an anticipated continuance of present laws. It must be some right or interest in property that has become fixed or established, and is not open to doubt or controversy.” Olsen v. Special Sch. Dist. No. 1, 427 N.W.2d 707, 711 (Minn.App.1988) (quotation omitted). Accordingly, the Minnesota Supreme Court has stated that there “is no vested right in an existing law nor in an action until final judgment has been entered therein.” Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 250 Minn. 130, 136, 84 N.W.2d 282, 287 (1957); see also McClelland v. McClelland, 393 N.W.2d 224, 227 (Minn.App.1986), review denied (Minn. Nov. 17, 1986) (stating the same). The current case falls within these principles, as the district court’s grant of summary judgment was not yet final because appellant’s timely appeal of the decision was pending when the legislature amended the statute at issue. See Janssen v. Best & Flanagan, LLP, 704 N.W.2d 759, 765 (Minn.2005) (stating that a judgment or appealable order becomes final if a timely appeal is not filed); Dailey v. Chermak, 709 N.W.2d 626, 631 (Minn.App.2006), review denied (Minn. May 16, 2006) (same). Therefore, respondent has no vested right that implicates the Fourteenth Amendment.

There is a meaningful distinction between a statute of limitations and a statute of repose. See, e.g., Camacho v. Todd & Leiser Homes, 706 N.W.2d 49, 54-55 (Minn.2005) (discussing how a statute of limitations bars an action if a plaintiff does not file suit within a set period of time after a cause of action accrues while a statute of repose bars a suit a fixed number of years after the defendant has acted, regardless of the timing of a plaintiffs discovery of an injury). As a general rule, when a claim is barred by a statute of repose, subsequent repeal of that repose period cannot revive the claim. See Larson v. Babcock & Wilcox, 525 N.W.2d 589, 591 (Minn.App.1994) (citing Firestone Tire & Rubber Co. v. Acosta, 612 So.2d 1361, 1363-64 (Fla.1992), for the proposition that repeal of statute of repose alone cannot affect a defendant’s interest in not being sued). But when an amendment is clearly intended to be retroactively applied, the legislature can revive a claim that was otherwise barred by a repose period. See id. (citing Indep. Sch. Dist. No. 197 v. W.R. Grace & Co., 752 F.Supp. 286, 298 (D.Minn.1990)).

Subdivision 1(a) of the 2004 version of the statute combined the provisions of a statute of limitations and a statute of repose:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

Minn.Stat. § 541.051, subd. 1(a) (2004) (emphasis added). It is the ten-year repose period that the district court relied on in granting summary judgment to respondent. But the 2007 amendment removed the references to contribution and indemnity claims from subdivision 1(a) and created subdivision 1(b) to address such claims. The amended statute provides:

(a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury, nor in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the intended purpose.
(b) Notwithstanding paragraph (a), an action for contribution or indemnity arising out of the defective and unsafe condition of an improvement to real property may be brought no later than two years after the cause of action for contribution or indemnity has accrued, regardless of whether it accrued before or after the ten-year period referenced in paragraph (a).

Minn.Stat. 541.051, subd. 1(a)-(b) (Supp.2007) (emphasis added); see also 2007 Minn. Laws ch. 105, § 4, at 625-26.

Appellant filed its claims of contribution and indemnification on May 3, 2006. Because substantial completion of the home occurred in October 1994, the district court determined that appellant’s contribution and indemnification claims were barred by the ten-year repose period in the 2004 version of Minn.Stat. 541.051. We agree that the district court properly applied the law that was in effect at the time of its decision. Interstate Power Co. v. Nobles County Bd. of Commrs., 617 N.W.2d 566, 579 (Minn.2000) (“The general rule [is] that courts apply the law existing at the time of [the] decision....”). And as the district court noted in response to appellant’s prediction of what the legislature was going to do, it was, at the time of the district court’s decision, a “potential amendment which may never be enacted.”

But Minn.Stat. 541.051 was subsequently amended in 2007 with a clearly retroactive intent. As previously noted, because the district court’s grant of summary judgment preceded enactment of the amendment but the matter was still on appeal, the judgment was not “sufficiently fixed to accord [respondent] ... a constitutionally protected vested right.” K. E., 452 N.W.2d at 512. Thus, we are charged with applying the law in effect at the time of our decision. Holen, 250 Minn. at 136-37, 84 N.W.2d at 287 (stating that because “a court has no power to perpetuate a rule of law which the legislature has either changed or repealed, it follows that amen-datory or curative legislation, though enacted after the rendition of a judgment and pending the appeal, must govern the final disposition of the case upon appeal” (footnote omitted)).

We conclude that although appellant’s claims were barred by the 2004 version of the statute, the language of the amended 2007 version of section 541.051 removes the ten-year repose barrier to appellant’s timely assertion of the claims. As a result, we look to Minn.Stat. § 541.051, subd. 1(c) (Supp.2007), to determine whether appellant’s claims for contribution and indemnity are barred by the two-year statute of limitations. Minn.Stat. § 541.051, subd. 1(c) (Supp.2007), provides:

For purposes of paragraph (a), a cause of action accrues upon discovery of the injury; provided, however, that in the case of an action for contribution or indemnity under paragraph (b), a cause of action accrues upon the earlier of commencement of the action against the party seeking contribution or indemnity, or payment of a final judgment, arbitration award, or settlement arising out of the defective and unsafe condition.

Here, appellant’s contribution and indemnity claims accrued upon Maier commencing suit against it on May 4, 2004. Because appellant’s claims against respondent were initiated on May 3, 2006, within the two-year statute of limitations, they are timely.

Appellant also challenges the constitutionality of Minn.Stat. § 541.051 (2004) and the district court’s determination that subdivision 1 of Minn.Stat. § 541.051 (2004) is applicable to their claims. Because we conclude that Minn.Stat. § 541.051 (Supp.2007) is retroactive, we do not reach those additional arguments.

DECISION

Because the language of MinmStat. § 541.051 (Supp.2007) manifests a clear legislative intent for retroactive application, appellant’s claims are properly analyzed under that statute. The district court’s grant of summary judgment was not a final judgment. As a result, respondent lacks a vested right in the grant of summary judgment, and appellant’s claims for contribution and indemnity are revived by operation of Minn.Stat. § 541.051 (Supp.2007).

Reversed and remanded.


text:
    Ernesto LONGORIA, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1317.
    Court of Appeals of Minnesota.
    May 13, 2008.

      Lawrence Hammerling, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, MN, for appellant.
    Lori Swanson, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    Considered and decided by CONNOLLY, Presiding Judge; STONEBURNER, Judge; and MINGE, Judge.
   OPINION

CONNOLLY, Judge.

Appellant Ernesto Longoria challenges his conviction under Minn.Stat. § 243.166 (Supp.2005). He argues that the law does not apply to him because the ten-year period of conditional release under the statute became effective only for crimes that occurred on or after August 1, 2005, and he had moved without registering before that date. We affirm.

FACTS

Appellant, based on his criminal history, is required to register as a predatory offender under Minn.Stat. § 243.166 (Supp. 2005). On August 29, 2005, the St. Paul Police Department went to the address on Robie Street that was registered by appellant as his current address. Upon their arrival, they were informed by another tenant that appellant had not been there for several months, and his room was empty. Appellant was charged with violating the predatory-offender-registration statute, and he pleaded guilty to that charge. Minn.Stat. § 243.166. At his plea hearing, appellant provided a factual basis for his plea. The following exchange occurred:

THE PROSECUTOR: Mr. Longoria, you are required to register as a sex offender, correct?
THE DEFENDANT: Yes, Ma’am.
THE PROSECUTOR: And at some point in May, did you register at an address on Robie in the City of St. Paul, Ramsey County?
THE DEFENDANT: Yes, Ma’am, I did.
THE PROSECUTOR: And a level-three notification meeting was held in June for that address, right?
THE DEFENDANT: Yes, it was.
THE PROSECUTOR: And at some point in August you stopped living there, is that correct?
THE DEFENDANT: Yes, it was.
THE PROSECUTOR: In fact, on August 29, 2005, you were not living there, were you?
THE DEFENDANT: Correct.
THE PROSECUTOR: And you had not registered any new address with the police department, correct?
THE DEFENDANT: No, I hadn’t.

Appellant now claims that he was confused at the plea hearing, and he had actually moved months before August 1, 2005.

Appellant was sentenced to 13 months in prison with ten years of conditional release. One year later, appellant filed a motion for sentence modification. He argued that it was an error to sentence him to ten years of conditional release because his crime was committed before August 1, 2005, the date that Minn.Stat. § 243.166, subd. 5(a), took effect. The district court denied appellant’s motion for postconviction relief, concluding that the violation of the statute is a continuing offense. This appeal follows.

ISSUE

Did the district court abuse its discretion by denying appellant’s motion for postconviction relief by holding that a violation of Minn.Stat. § 243.166 (Supp.2005) is a continuing offense?

ANALYSIS

“The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Statutory construction, however, is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

A postconviction petitioner bears the burden of alleging and proving by a fair preponderance of the evidence facts that would warrant a decision to reopen the ease. Hummel v. State, 617 N.W.2d 561, 564 (Minn.2000). Appellant alleges in his petition for postconviction relief that he moved before August 1, 2005, and therefore Minn.Stat. § 243.166, subd. 5(a), is not applicable to him. He also argues that he is entitled to have a jury determine when he actually moved. See State v. Robinson, 480 N.W.2d 644, 646 (Minn.1992) (holding that the issue of whether defendant’s conduct occurred before or after the effective date of a recently enacted repeat-offender statute was properly a question for the jury). The district court denied appellant’s motion for postconviction relief, concluding that appellant violated the statute on August 29, 2005, by residing somewhere other than Robie Street without registering the new address.

The district court based its decision on its determination that failing to register under the predatory-offender-registration statute is a continuing offense. Under that theory, appellant continued to be in violation each day that he was no longer living at the Robie Street address until he registered his new address. Whether a violation of the predatory-offender-registration statute is a continuing offense is an issue of first impression in Minnesota. This is a matter of statutory construction that is reviewed de novo by this court. Brookfield Trade Ctr., Inc., 584 N.W.2d at 393.

Appellant cites caselaw stating that “a crime is not continuing in nature if not clearly so indicated by the legislature.” State v. Lawrence, 312 N.W.2d 251, 253 (Minn.1981). But such an indication need not be given through an explicit statement. Words and phrases are given their plain and ordinary meaning, and the court assumes that the legislature does not intend absurd or unreasonable results. In re Eleven, 736 N.W.2d 707, 709 (Minn.App.2007). As respondent points out, failing to interpret violation of the predatory-offender-registration statute as a continuing offense leads to absurd results.

For instance, consider the hypothetical case of an offender who is required under Minn.Stat. § 243.166 to register for ten years but moves from his registered address at the end of the first year of the registration period without filing a change of registration with the proper authorities. Under the statute, he is in violation five days before he actually moves. See Minn. Stat. § 243.166, subd. 3(b) (“Except as provided in subdivision 3(a), at least five days before the person starts living at a new primary address, including living in another state, the person shall give written notice of the new primary address to the assigned corrections agent or to the law enforcement authority with which the person currently is registered.”) Under appellant’s theory, if that first day of failing to register is the only day that he is in violation of the statute, then, assuming a three-year statute of limitations, four years later he cannot be charged with a crime. Under that theory, for the next six years, the offender is required by law to register, but he cannot be charged with a statutory violation for failing to do so. This would clearly be an absurd result and not what the legislature intended.

Furthermore, the Minnesota Supreme Court has addressed what conduct is prohibited by the statute. The prohibited conduct is that of an “identified predatory offender residing or moving without maintaining a current address registration with the proper authorities.” State v. Jones, 729 N.W.2d 1, 6 (Minn.2007) (emphasis added). Based on this language, it is a violation of the statute to move without registering, but it is also a violation to reside at an address without registering. Therefore, appellant was in violation of the statute when he moved, and he was also in violation when he resided somewhere other than Robie Street without notifying the proper authorities. The district court correctly summarized how to interpret the statute when it stated:

Petitioner’s argument suggests that the date of offense is only the date that the petitioner actually moved from the registered residence or, alternatively, five days earlier when he was required to give notice of his impending move. However, the statute is broader than petitioner’s proposed application and requires not only the notice to move, but places a continuing requirement on a defendant to register his place of residence. The offense is a continuing one until such time as a defendant properly registers, as required by the statute. Accordingly, even if petitioner was in violation of the statute by moving from the Robie address prior to August 1, 2005, he continued to be in violation each and every day thereafter until such time as he properly registered. Under the registration statute, the state is only required to establish the element of non-registration on any particular date, as opposed to establishing the date upon which a defendant moved.

DECISION

Because violation. of the predatory-offender-registration statute is an offense that continues as long as the person required to register fails to do so, appellant was correctly sentenced to 13 months in prison and ten years of conditional release.

Affirmed.

      . However, in this instance appellant waived his right to a jury trial on all elements of the crime when he pleaded guilty. Moreover, when he moved is not an aggravating factor for purposes of sentencing. Therefore, he was also not entitled to a Blakely trial.

      . In 1981, the Minnesota Supreme Court concluded that receiving stolen property is a continuing offense. Lawrence, 312 N.W.2d at 253. There was nothing in the statute that explicitly stated that receiving stolen property is a continuing offense. Minn.Stat. § 609.53, subd. 1(1) (1980).