author: GILBERT, Justice.

text:
    STATE of Minnesota, Appellant, v. Tyrone S. McCOY, Respondent.
    No. C4-02-1788.
    Supreme Court of Minnesota.
    July 1, 2004.

      Michael A. Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, Dawn Renee Burlingame, St. Paul, MÑ, for Appellant.
    Roy G. Spurbeck, Assistant State Public Defender, Minneapolis, MN, for Respondent.
    Beverly Balos, Kristine Kroenke, Minneapolis, MN, for Amicus Curiae, Minnesota Coalition for Battered Women.
    Carolyn Page Ham, Minneapolis, MN, for Amicus Curiae, Battered Women’s Justice Project.
    Cheryl Thomas, Minneapolis, MN, for Amicus Curiae, Minnesota Advocates for Human Rights.
   OPINION

GILBERT, Justice.

In this case, we are asked to resolve whether evidence of similar conduct by the accused against an alleged victim of domestic abuse may be admitted against the accused under Minn.Stat. § 634.20 (2002) without first being established by clear and convincing evidence. Respondent Tyrone S. McCoy was convicted of misdemeanor domestic assault of his wife. Prior to trial, the district court ruled that the state could admit evidence under Minn. Stat. § 634.20 that respondent had previously assaulted his wife. The court of appeals reversed respondent’s conviction, holding that evidence of prior similar conduct must first be established by clear and convincing evidence to be admitted at trial. State v. McCoy, 668 N.W.2d 425, 430 (Minn.App.2003). Based on the record before us, we conclude that no evidence of the alleged prior domestic assault was ever admitted. We also conclude that evidence of similar conduct by the accused against an alleged victim of domestic abuse may be admitted under Minn.Stat. § 634.20 without being established by clear and convincing evidence.' ■ For these reasons, we reverse.

The facts of the case are as follows. On December 31, 2001, at approximately 8:00 p.m., St. Paul police responded to a 911 call from the home of respondent and his wife. Respondént’s wife, who was crying, stammering, and visibly upset, told an officer that respondent had beaten her with a belt when he came home to gather some clothes while he was staying with a friend for a few days because the two of them were fighting. She told respondent that some of the sweaters he was grabbing were hers. Respondent knocked a telephone out of her hand, saying, “Bitch, you don’t own anything here.” His wife picked up the telephone and attempted to call the police, but respondent grabbed it and hung it up. Respondent picked up a belt and struck her, screaming at her, “I told you not to call the police. This, is for calling the police.” Réspondent and his wife’s four children and at least one other child were present at the time.

A female officer took a photograph of a welt on respondent’s wife’s upper thigh. A photograph of the belt was also taken, and both photographs were ultimately received as evidence at trial. On January 2, 2002, 2 days after the incident, respondent’s wife talked via telephone to a member of the St. Paul Police Department’s Family Violence Unit and confirmed the details of her earlier report to the police. Specifically, she stated that her husband had “whooped her with a belt” and that as a result she had suffered welts and bruises.

On June 20, 2002, respondent was charged with misdemeanor domestic assault in violation of Minn.Stat. § 609.2242, subd. 1 (2002), and interference with an emergency call in violation of Minn.Stat. § 609.78, subd. 2 (2002). Shortly thereafter,, on July 1, 2002, respondent’s wife submitted a letter to officials at the Ramsey County courthouse, which stated that the information she had given in the police report was false and that she had made up the allegations “out of anger and spite” because she had found out that her husband was cheating on her.

Prior to trial, the state moved for the ability to admit evidence that respondent had also assaulted his wife, then-girlfriend, on March 15, 1997, as evidence of prior similar conduct under Minn.Stat. § 634.20. The state provided the district court with copies of police report and medical records from treatment that respondent’s wife received at United Hospital on that date. Respondent objected, arguing that this was a prior bad act that had to be proven by clear and convincing evidence under Minn. R. Evid. 404(b). The court ruled that evidence of the alleged 1997 assault was admissible because its probative value was not outweighed by the danger of unfair prejudice, concluding that it could apply Minn.Stat. § 634.20 “without getting into” the requirements of Rule 404(b).

During trial, respondent’s wife testified that she remembered calling the police and speaking to two officers who came to her house on December 31, 2001, but claimed that respondent had not interfered with her call. She also admitted having a picture taken of a bruise, but claimed not to remember what she told the officers when they arrived and did not remember what she told the Family Violence Unit officer she talked to 2 days after the alleged assault. She later testified, however, that what she had told the police about her husband was untrue and that she had suffered the bruise days before it was photographed, but was not sure how she had suffered the bruise.

The state asked respondent’s wife whether respondent had beaten her on March 15, 1997. Prior to her response, the court gave a cautionary instruction that evidence of past acts was about to be offered for the limited purpose of assisting the jury in determining whether the defendant committed the acts with which he was charged. However, respondent’s wife testified that she did not remember calling the police on March 15, 1997, did not remember the police arriving, did not remember being diagnosed with multiple contusions, and did not remember telling the police, a nurse, or a doctor that respondent had punched her in the face and struck her in the back of the head with a vacuum cleaner part. Respondent’s wife testified that she did remember going to United Hospital on that day and also specifically stated that respondent did not assault her.

Respondent testified in his own defense and admitted that he and his wife argued on December 31-, 2001, but denied ever picking up a belt or hitting his wife and denied that she had attempted to call 911 in his presence. On cross-examination, respondent denied hurting his wife physically or emotionally on March 15, 1997, and did not recall whether she visited the hospital that day.

In its closing argument, the state argued that respondent’s wife’s testimony was not credible because she did not recall telling the staff at United Hospital in 1997 that her husband had beaten her. Respondent, in closing, argued that the state did not present any evidence of the alleged 1997 assault and that the jury should not let the state get away with making allegations of a prior assault without presenting evidence.

The jury found respondent guilty of domestic assault (intent to cause fear of bodily harm), but acquitted respondent of domestic assault (intent to -inflict bodily harm) and interference with an emergency call. Respondent was sentenced to 90 days in the Ramsey County workhouse with execution of the sentence conditionally stayed; ' ’

On appeal, respondent argued that the district court erred in allowing the admission of evidence of the alleged March 15, 1997, assault of his wife because Minn.Stat. § 634.20 violates the separation of powers between the legislature and the judiciary to the extent that it conflicts with Minn. R. Evid. 404(b). The court of appeals reviewed the legislative history of Minn.Stat. § 634.20 and reversed respondent’s conviction. McCoy, 668 N.W.2d at 428-29. The court of appeals concluded that the district court erred in admitting evidence of similar prior conduct without determining whether it had been proven by clear and convincing evidence and held that: (1) the legislature did not intend Minn.Stat. § 634.20 to abrogate the clear and convincing evidencé requirement for the admission of prior bad acts under Minn. R. Evid. 404(b); and (2) it could not determine as a matter of law whether evidence of the alleged 1997 incident offered by the state satisfied the clear and convincing standard. 668.N.W.2d at 429-30.

I.

We first address the court of appeals’ conclusion that “the district court admitted evidence of similar prior conduct.” McCoy, 668 N.W.2d at 426. While the district court did rule in a pretrial motion that evidence related to the alleged March 15, 1997, incident was admissible pursuant to Minn.Stat. § 634.20, no evidence of the alleged incident, including the police report and medical records, was ever offered or received at trial. The state questioned both respondent and his wife regarding the alleged 1997 assault, but each testified that they did not recall what happened and denied that any abuse had taken place. The state did argue in closing that respondent’s wife’s testimony regarding the alleged 2001 assault for which respondent was on trial was not credible because she could not remember telling the police and hospital staff in 1997 that her husband had beaten her. However, the “questions and arguments” of attorneys are not evidence. See State v. Everett, 472 N.W.2d 864, 870 n. 3 (Minn.1991) (noting that courts routinely instruct juries on this point). The district court specifically instructed the jury that the questions and arguments of attorneys are not evidence. We hold that the court of appeals erred in concluding that the district court admitted evidence of similar prior conduct.

II.

Next, we consider respondent’s argument that the district court erred by allowing the admission of evidence that respondent had previously assaulted his wife under Minn.Stat. § 634.20 without first determining that it had been established by clear and convincing evidence under Minn. R. Evid. 404(b). First, however, we address the court of appeals’ review of the legislative history behind Minn. Stat. § 634.20, which it used to conclude that the legislature did not intend the statute to abrogate the clear and convincing evidence requirement for the admission of prior bad acts. 1

In an apparent effort to avoid the constitutional separation of powers issue presented, the court of appeals, without first concluding that Minn.Stat. § 634.20 was ambiguous, looked sua sponte, and without the benefit of oral argument, to the legislative history of Minn.Stat. § 634.20. McCoy, 668 N.W.2d at 427. The court of appeals did so despite our footnote in State v. Cross, in which we noted that through Minn.Stat. § 634.20, “the legislature has expressed an intent to remove evidence of ‘similar prior conduct’ in domestic abuse (non-homicide) prosecutions from the ‘clear and convincing’ standard of Rule 404(b).” 577 N.W.2d 721, 726 n. 2 (Minn.1998). The' court of appeals also departed from some of its own case law, which holds that the admissibility of evidence under Minn.Stat. § 634.20 depends only on (1) whether the offered evidence is evidence of similar conduct; and (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. E.g., State v. Waino, 611 N.W.2d 575, 579 (Minn.App.2000).

We review de novo the court of appeal’s interpretation of a statute. In re Welfare of Children of R.W., 678 N.W.2d 49, 54 (Minn.2004). When interpreting a statute, a court must “ascertain and effectuate the intention of the legislature.” MinmStat. § 645.16 (2002). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit” of a law. Id. To ascertain and effectuate the legislature’s intent, courts must “first look[ ] to see whether the statute’s language, on its face, is clear or ambiguous.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). A statute is only ambiguous when it is subject to more than one reasonable interpretation. State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003). A court “must give a plain reading to any statute it construes, and when the language of the statute is clear, the court must not engage in any further construction.” Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).

Minnesota Statutes § 634.20, enacted in 1985 and amended in 1998, 2000 and 2002, specifically provides for the admission of evidence of “similar conduct” by the accused unless it fails to meet a balancing test that considers whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This balancing test mirrors the language of Minn. R. Evid. 403, which provides for the exclusion of otherwise relevant evidence based on a similar balancing test. The statute is unambiguous— evidence of similar conduct in domestic abuse trials is relevant.and admissible unless it should be excluded for the reasons listed. We therefore reverse the court of appeals and hold, as we noted in Cross, 577 N.W.2d at 726 n. 2, that Minn.Stat. § 634.20 provides for the admission of similar conduct in domestic abuse cases without requiring the heightened standard that the evidence be clear and convincing.

III.

Respondent also argues'that evidence of similar conduct by the accused against an alleged victim of domestic abuse cannot be admitted under Minn.Stat. § 634.20 without the “clear and convincing” requirement of Minn. R. Evid. '404(b) because application of the statute violates the separation of powers. We note first that evidence of “similar conduct” is at least conceptually distinct from Spreigl evidence, which is governed by Rule 404(b). Spreigl evidence is oftentimes evidence of an unrelated crime against another person, which is offered for the purposes listed in Rule 404(b),- such as to show identity, opportunity, intent, or modus operandi. See State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998). Evidence of prior domestic abuse against the alleged victim may be different from this type of Spreigl evidence for at least two reasons: it is evidence of prior conduct between the accused and the alleged victim and it may be offered to illuminate the history of the relationship, that is, to put the crime charged in the ■ context of the relationship between the two.

Our cases indicate that we have treated evidence that illuminates the history of the relationship between a victim and the accused differently from other, Spreigl evidence, although not consistently. We have long held that “Spreigl notice” is not required as a condition for the admissibility of evidence bearing directly on the history of the relationship existing between the defendant and the victim. State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969). The rationale for this difference is that the purpose of the notice requirement is to prevent a defendant from being taken by surprise by the introduction of evidence of collateral bad acts. Id. at 260, 170 N.W.2d at 115. A defendant is aware that his prior relationship with the victim, “particularly in so. far • as it involve[s] ill will or quarrels,” may be presented against him. Id. at 260, 170 N.W.2d at 115. In Cross, we held that evidence of prior domestic abuse does not need to be proven by clear and convincing evidence in first-degree domestic abuse homicide cases. 577 N.W.2d at 725. We reasoned there that the “prior acts were not offered for any of the purposes listed in Rule 404(b),” but rather as direct evidence, offered to prove an element of the offense with which the defendant was charged. 577 N.W.2d at 725. Moreover, in cases decided prior to the incorporation of the clear and convincing evidence requirement into Rule 404(b), we approved arguably Spreigl evidence without discussing whether the evidence was clear and convincing. State v. Blanchard, 315 N.W.2d 427, 431 (Minn.1982); State v. Swain, 269 N.W.2d 707, 714 (Minn.1978); State v. Schweppe, 306 Minn. 395, 402, 237 N.W.2d 609, 615 (1975).

Respondent argues that the district court’s ruling allowing for the admission of evidence that he had previously assaulted his wife violated the separation of powers because it was admitted under Minn.Stat. § 634.20. It is well settled that “what judges should and should not consider as evidence in a controversial matter” are rules of evidence, “the decision of which the constitution, by the departmentalization of the powers of government, has delegated exclusively to the courts.” In re Tracy, 197 Minn. 35, 46, 266 N.W. 88, 93 (1936); see State v. Johnson, 514 N.W.2d 551, 553-54 (Minn.1994) (discussing constitutional separation of powers issues). The courts may, however, apply and enforce statutory rules of evidence as a matter of comity. State v. Willis, 332 N.W.2d 180, 184 (Minn.1983). “Due respect for the coequal branches of government” commands us to “exercise great restraint before striking down a statute as unconstitutional.” Id.

We have previously indicated that we will enforce “reasonable statutory rules of evidence as a matter of comity where the rules [do not] conflict with the Minnesota Rules of Evidence.” State v. Larson, 453 N.W.2d 42, 46 n. 3 (Minn.), cert. granted and judgment vacated on other grounds, 498 U.S. 801, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990). Here, respondent argues that Minn.Stat. § 634.20 directly conflicts with Minn. R. Evid. 404(b). Nevertheless, we believe we may appropriately exercise our supervisory power over Minnesota courts by adopting a reasonable statute regulating the admission of evidence even if it does directly conflict with a rule of evidence. See State v. Wolf, 605 N.W.2d 381, 387 (Minn.2000) (affording comity to legislature’s clearly expressed intent in statute on a procedural matter despite the fact that it conflicted with a rule of civil procedure).

As we have already discussed, our precedent indicates that we have treated evidence that illuminates the history of the relationship between an accused and a victim differently than other, “collateral” Spreigl evidence. We believe this different treatment is appropriate in the context of the accused and the alleged victim of domestic abuse. Domestic abuse is unique in that it typically occurs in the privacy of the home, it frequently involves a pattern of activity that may escalate over time, and it is often underreported. See Cross, 577 N.W.2d at 727 (citing Joseph Biden, The Violence Against Women Act of 1991, S.Rep. No. 102-197, at 38 (1991)). Domestic abusers often exert control over their victims, which undermines the ability of the criminal justice system to prosecute cases effectively. Id; see also Mary E. Asmus et al., Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies From Understanding the Dynamics of Abusive Relationships, 15 'Hamline L.Rev. 115, 121-22 (1991). This case illustrates the difficulties that can arise in prosecuting domestic abuse crimes. The victim, respondent’s wife, testified that she could not remember what she told the police regarding respondent’s alleged assault. No one else was able to provide eyewitness testimony regarding the events that transpired. The district court’s ruling allowing the admission of evidence of respondent’s alleged prior assault of his wife allowed the state to present evidence that, if believed by the jury, could have assisted the jury by providing a context with which it could better judge the credibility of the principals in the relationship.

The purpose underlying Rule 404(b)’s clear and convincing evidence re-quirement is to “prevent the jury from convicting a defendant for being a ‘bad person’ or for having a propensity to commit crimes, even where the evidence is insufficient to convict for the crime charged.” Cross, 577 N.W.2d at 725. Although this heightened evidentiary standard serves the important purpose of helping ensure that a defendant is not unfairly prejudiced, the standard does not implicate a fundamental right. See Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (holding that federal courts are not required to make a preliminary finding that the government had proved “other crimes evidence” by even a preponderance of the evidence before submitting evidence of similar acts to the jury). We believe that the interests of justice are best served by allowing the introduction of evidence of similar acts by the accused against the alleged victim of domestic abuse without requiring that they first be established by clear and convincing evidence.

For these reasons, we expressly adopt Minn.Stat. § 634.20 as a rule of evidence for the admission of evidence of similar conduct by the accused against the alleged victim of domestic abuse. The district court did not abuse its discretion by ruling that the state could introduce evidence of respondent’s alleged March 15, 1997, assault of his wife without first determining that the evidence was clear and convincing.

Reversed.

BLATZ, C.J., and HANSON, J., took no part in the consideration or decision of this case.

      . Minnesota Statutes § 634.20 provides:
      Evidence of similar conduct by the accused against the victim of domestic abuse, or . . against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. "Similar conduct” includes, but is not limited to, evidence of domestic abuse, violation of an order for protection under section 518B.01; violation of a harassment re- ■ straining order under section 609.748; or violation of section 609.749 or 609.79, subdivision 1. "Domestic abuse” and "family or household members” have the meanings .given under section 518B.01, subdivision 2.

      . Minnesota Rule of Evidence 404(b) provides:
      Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence. Evidence of past sexual conduct of the victim in prosecutions under Minn. Stats. § 609.342 to 609.346 is governed by Minn. R. Evid. 412.

      . Having concluded that evidence of similar prior conduct was not admitted against respondent, we would not necessarily have to address the district court’s ruling providing for the admission of evidence under Minn. Stat. § 634.20 and the court of appeals' interpretation of the statute. However, because the court of appeals’ opinion is in conflict with other court of appeals’ opinions, and confusion over the application of Minn.Stat. § 634.20 is likely to reoccur, we address section 634.20 and its application in admitting evidence. See Minn. R. Civ.App. P. 103.04 (recognizing that we may review issues "as the interest of justice may require”).

      . Apparently, the court of appeals embarked upon its own research on legislative history because neither party briefed this issue to the court of appeals.

      . State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

        . Minnesota Rule of Evidence 404(b) was amended in 1989 to incorporate the clear and convincing evidence requirement. Prior to that time, we had applied the clear and convincing evidence standard for the admission of Spreigl evidence since at least State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284-85 (Minn.1967).
      We have recently indicated that when evidence of prior had acts is offered to illustrate the history of the relationship between a victim and the accused, it should first be determined to be clear and convincing under Minn. R. Evid. 404(b). State v. Bauer, 598 N.W.2d 352, 364 (Minn.1999); State v. Buggs, 581 N.W.2d 329, 336 (Minn.1998); State v. Mills, 562 N.W.2d 276, 285 (Minn.1997). An examination of these cases, however, indicates that our statements were dicta. To the extent that they suggest that evidence admitted under Minn.Stat. § 634.20 must be first shown to be clear and convincing, they are expressly overruled.

      . Nothing in this opinion should be read to diminish our longstanding principle that courts have the power to "determine what is judicial and what is legislative; and if it is a judicial function that the legislative act purports to exercise, [this court] must not hesitate to preserve what is essentially a judicial function.” Sharood v. Hatfield, 296 Minn. 416, 423, 210 N.W.2d 275, 279 (1973).


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    Trevor Anthony BROWN, Appellant, v. STATE of Minnesota, Respondent.
    No. A-03-1588.
    Supreme Court of Minnesota.
    July 1, 2004.

      John M. Stuart, State Public Defender, Sara Lynne Martin, Assistant Public Defender, Minneapolis, MN, Relator/Appellant’s Attorneys.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Hastings, MN, Respondent’s Attorneys.
   OPINION

HANSON, Justice.

Appellant Trevor Anthony Brown was convicted of aiding and abetting first-degree felony murder and was sentenced to life in prison. Brown sought post-conviction relief arguing that: (1) the district court erred by failing to give a jury instruction on accomplice testimony; (2) he was denied a fair trial because one of the state’s witnesses made references to his post-arrest silence in violation of his right to remain silent; (3) the district court improperly communicated with the jury in the jury deliberation room; (4) trial counsel was ineffective; and (5) the non-accomplice evidence was insufficient to support the conviction. The postconviction court denied Brown’s petition for postconviction relief, essentially determining that any errors were harmless and sufficient evidence existed to convict Brown. We reverse and remand for a new trial.

Sometime after 10 p.m. on the evening of December 13, 1998, Tucker Calvin Wilson joined three acquaintances — Michelle Young, Allen Jamal Robinson, and Brown — after the three had been drinking for several hours. Wilson drove the group to a church near the Mendota Bridge and the four individuals proceeded to climb down the embankment under the bridge. Wilson’s body was later discovered at that site. An autopsy indicated that he had died of multiple blunt force head and neck injuries.

Brown was ultimately indicted on several counts of first- and second-degree murder. At his trial, both Robinson and Young testified for the state. Although their testimony differed to some degree, both of them implicated Brown as the primary assailant. Robinson testified that after Wilson shoved him down a rocky slope, causing him to injure his head on the rocks, he retaliated by striking Wilson in the face. He claimed that he then ascended the embankment without participating any further in Wilson’s death. Robinson said that he witnessed Brown and Wilson engaged in a fistfight; he continued his ascent of the slope without intervening; and, moments later, he saw Young and Brown walking up the embankment.

Young testified that she witnessed both Robinson and Brown kicking and throwing rocks at Wilson. She said that she attempted to flee but was stopped by Robinson, who required her to search Wilson for car keys, identification, and money. After Robinson escorted her up the embankment, she looked back down the slope and saw Brown “still kicking [Wilson] and yelling at him and telling him to die.” Young testified that the beating lasted for “a good half an hour.” .

Young testified that Robinson, Young, and Brown then drove Wilson’s car to the Mount Airy apartment complex, where an acquaintance of Robinson rented an apartment. At the Mount Airy apartment complex, Brown, Young, and Robinson passed Felicia Rocha. Rocha testified that - she noticed red- spots on Brown’s shirt and pants. Rocha also testified that she saw something red on Robinson’s shoe and the bottom of his pant legs.

Richard Propps was a guest at the apartment when the three arrived. He testified that he spotted blood on Brown’s clothing and immediately decided to leave because he “didn’t like what it looked like * * Young testified that Brown and Young went directly to the bathroom where Brown removed his pants, socks, and shoes and changed into a pair of pants and shoes given to him by Robinson. Security camera tapes show that Brown entered the apartment in light colored pants, yet exited wearing dark colored pants.

Young’s sister, Patricia Young, also testified for the state. She said that after the murder, Brown admitted to her that he had beaten and kicked Wilson to death. Finally, the state elicited testimony from Sergeant Bradley Wayne that made two references to Brown’s exercise of his right to remain silent. When defense counsel objected after the second reference, the district court struck the testimony from the record and cautioned the jury to disregard it. Prior to jury deliberations, the court advised the jury again that, “Any testimony that the court has excluded or told you to disregard is not evidence and must not be considered.”

Brown’s attorney did not request a jury instruction on accomplice testimony and none was given. After the jury retired to deliberate, the district court judge made at least three visits to the jury room. On each visit he was accompanied by a court reporter and he made a record.

On the judge’s first visit to the jury room, he discussed adjournment of jury deliberations for September 28,1999.

THE COURT: The record should reflect that I can’t talk to you about anything unless it goes on the record other than what I did before. Record should reflect that the Judge is in the jury room. The attorneys have been appraised [sic] of what I propose to do, and they have waived their appearance in the jury deliberation room. The jury is present.
The jury has sent me a note indicating that they feel they’ve gone as far as they’re going to go this evening and wish to adjourn. That is the status of the matter?
JUROR: Yes.
THE COURT: All right. Then I would advise you of this. It is now time that the Court will interrupt and adjourn your deliberations until 9:00 a.m. tomorrow morning and permit you to return to your homes.

The judge’s second appearance in the jury room was in response to a jury question on September 30,1999.

THE COURT: The record should reflect that the Court is in the jury room. The record should reflect that the foreperson of the jury has sent a question that says Page 15, 11.15, reference. Second element. Does cause of death of Calvin Wilson mean the defendant acting alone. Question mark. Define the word cause.
The record should reflect that I have conferred with the attorneys of record in chambers regarding this question. The record should further reflect that the attorneys qf record have agreed that the Court may appear before the jury without their presence and without the presence of the defendant. The question is on what you reference as 11.03. As I read the copy of the instructions I’ve sent to you, that’s murder in the second degree elements. 11.03 just simply means the reference number in the jury instruction guides. I would simply have to reread to you this second element that says defendant caused the death of Calvin Wilson. As to defining the word cause, I have to leave that to the common understanding and common meaning that all of you accept.

The jury continued their deliberations. Later that day, the judge, accompanied by counsel, paid a final visit to the jury room in order to respond to a jury question regarding the elements of aggravated robbery.

THE COURT: All right. I don’t want to know where your deliberations are at this time as far as what has been decided, what hasn’t been decided, but do you think realistically there’s any possibility of resolving this this evening?
JUROR: Yes.
THE COURT:" I’m going to invite the attorney [sic] in to listen to what I tell you now.
(Attorneys of record present in jury room.)
THE COURT: The record should reflect that Mr. Shea, Ms. Nee from the county attorney’s office are present.
Mr. Thompson representing the defendant is present. We are in the jury deliberation room. The presence of the defendant has been waived by the defense counsel.
You asked the following question: Please clarify engaged in the act of committing or attempting to commit crime of aggravated robbery under the elements of murder in the first degree against the definition which was clarified yesterday as taking physically from the victim. Signed Richard Bright. 1640 hours. Today’s date. Foreperson.
I will read you something at this time, and I will leave you a copy of it. The statutes of Minnesota provide that a person is guilty of an attempt to commit a crime when the intent to commit the crime -the person does an act which is a substantial step towards and more than a mere preparation for the commission of the crime.

The jury rendered not guilty verdicts all on first-degree murder counts except that for aiding and abetting first-degree felony murder, for which it found Brown guilty. The jury also found Brown guilty of all second-degree murder counts. Brown was sentenced to life in prison on the conviction of aiding and abetting first-degree felony murder.

Brown did not take a direct appeal from his conviction, but sought postconviction relief,.asserting several errors and arguing that the non-accomplice testimony was insufficient to support the conviction. The postconviction court denied Brown’s petition and he appeals.

I.

We will first address Brown’s sufficiency of the evidence arguments. Brown argues that his conviction should be reversed and the remaining charges dismissed because the non-accomplice testimony was insufficient to corroborate the accomplice testimony and did not support the conviction.

We conduct “a rigorous review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt, was sufficient to permit the trial court to reach its conclusion.” DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984) (quoting State v. Mytych, 292 Minn. 248, 252, 194 N.W.2d 276, 279 (1972)). “In reviewing the sufficiency of the corroborating evidence of an accomplice’s testimony, a reviewing court will view the evidence in the light most favorable to the state and will resolve all conflicts in the evidence in favor of the verdict.” State v. Norris, 428 N.W.2d 61, 66 (Minn.1988).

The non-accomplice corroborating evidence established that (1) Brown possessed a motive and intent to rob Wilson; (2) Brown had an opportunity to rob and murder Wilson; (3) Brown attempted to cover up the crime, by changing clothing, cleaning Wilson’s car, and lying to the police; and (4) Brown admitted to one witness that he had beaten Wilson to death. Two non-accomplice witnesses testified that, prior to the murder, Brown had asked them to assist in robbing Wilson. Two other non-accomplice witnesses noticed blood on Brown’s clothing shortly after the murder. A surveillance camera shows that Brown changed clothes in the Mount Airy apartment complex soon after the murder. There was evidence that Wilson’s car had contained a six-disc C.D. changer and another non-accomplice witness testified that shortly after Wilson’s death, Brown attempted to sell him a six-disc C.D. changer. Finally, Young’s sister, Patricia, another non-accomplice witness, testified that Brown admitted to her that he had beaten and kicked Wilson to death.

We conclude that the substantial non-accomplice evidence linking Brown to Wilson’s murder was sufficient to corroborate the testimony of Robinson and Young and to support the conviction of Brown for aiding and abetting first-degree felony murder.

II.

Brown argues that individual and cumulative errors occurred at trial that necessitate a new trial. We will focus first on the claim that the district court judge erred by visiting the jury room to discuss issues relating to the case. In Brown’s petition for postconviction relief, he argued that the judge’s three visits to the jury room during deliberations constitute reversible error. Further, he argued that the judge’s reference during the first visit, that “I can’t talk to you about anything unless it goes on the record other than what I did before,” raises the inference that there was a fourth visit with the jury and that no record was made of that visit.

The postconviction court determined that all of the judge’s communications with the jury were with the knowledge and consent of counsel and, even if there was error, that such communications could not have affected the verdict and thus were harmless.

Each of the judge’s communications with the jury constituted error, for several reasons. First, the judge violated the right of Brown to be present at every stage of the trial, including all communications with the jury. See Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Minn. R.Crim. P. 26.03, subd. 1(1). Although Brown could have waived the right to be present, and his counsel purported to do so, we have held that a waiver by counsel is ineffective unless it is made with the informed consent of the defendant. State v. Ware, 498 N.W.2d 454, 457 (Minn.1993); State v. Sessions, 621 N.W.2d 751, 756 (Minn.2001). There is no indication in this record that Brown personally waived the right to be present or consented to such a waiver by his counsel.

Second, the judge violated the requirement that all communications with a delib--erating jury be conducted in open court. The Criminal Rules mandate that a deliberating jury that wishes to be informed on a point of law “shall be conducted to the courtroom.” Minn. R.Crim. P. 26.03, subd. 19(3). At least three times, the judge communicated with the jury without bringing them to the courtroom.

Third, the judge may have failed to place all communications with the jury on the record. In Sessions, we said:

Generally speaking, a reconstructed record cannot be as precise or comprehensive as a record made at the time of trial. At a minimum, the lack of a record compounds the lack of confidence society can have in the integrity of proceedings. We caution district courts to make a contemporaneous record of each stage of trial, particularly a stage as delicate as communications with the jury and with counsel during deliberations. A record is critical to ensure adequate appellate review and a fair process.

621 N.W.2d at 756. Here, there is at least some ambiguity as to whether the judge communicated with the jury on a fourth occasion, off the record. Also, because the three recorded communications did not occur in open court, we cannot be certain that the record of each of those visits was complete, beginning the instant the judge entered the jury room and including everything said until the instant the judge departed.

Fourth, the judge improperly entered the jury room after deliberations had begun. In State v. Mims, we made it clear that the judge is not to enter the jury room during deliberations, stating:

In view of the judge’s dominant role during earlier stages of the trial, an uninvited entrance into the sanctity of the jury room for any purpose offends the integrity of the proceedings and risks influencing the jury’s decisional process in some degree, however difficult to define or impossible to measure. At the very least, such unwarranted entrance disrupts the jury’s deliberations, intrudes upon their independence, and transgresses the carefully drawn lines of demarcation between the functions of the trial judge and the functions of the jury-

306 Minn. 159, 169, 235 N.W.2d 381, 388 (1975).

The state argues, and the postconviction court found, that any error in communicating with the jury was harmless. It is true that our precedent has recognized that a harmless error analysis is appropriate for the denial of a defendant’s right to be present for all communications with the jury, and even for the district court’s failure to make a complete record of those communications. Sessions, 621 N.W.2d at 756; Ware, 498 N.W.2d at 457-58.. In Mims, however, we held that the court’s entry into the jury room to communicate with a deliberating jury relating to the case is reversible error that is not subject to a harmless error analysis. 306 Minn, at 165, 235 N.W.2d at 386. There, we surveyed the decisions of other jurisdictions on a judge’s visit to the jury room, noted that a majority of jurisdictions applied a harmless error analysis, but reaffirmed our strict rule that “in any criminal case any communication relating to the case occurring during a judge’s uninvited entry into the jury room during deliberations and in the absence of defendant and counsel constitutes reversible error.” 306 Minn, at 165, 235 N.W.2d at 386. We went on to say:

When such an intrusion occurs, we believe there is a significant interference with the orderly decisional process, and prejudice to the process results by the implication that the judge has the prerogative of entering the jury room and there exercising the same dominant authority he possesses in the courtroom. Further, when such an intrusion occurs in the absence of defendant and counsel, the adversary system of demonstrating prejudice by what was gestured or hinted or effected by other unrecorded conduct of those present is frustrated. When the communication relates to the case, the harm is compounded, for the intrusion, if not demonstrably coercive, violates defendant’s right to be present at all stages of the proceedings. A strict rule prohibiting such intrusions has the salutary effect of minimizing the interruptions of the jury during deliberations, eliminating the necessity of determining the existence of actual prejudice and, hopefully, discouraging repetition of the intrusions.

306 Minn, at 169-70, 235 N.W.2d at 388. (Footnote omitted.)

The state does not ask us to overrule Mims or provide any compelling reason to do so. We have again surveyed the decisions of other jurisdictions since Mims was decided in 1975. Virtually all jurisdictions agree that it is error for the judge to visit the jury room during deliberations. Many continue to apply a harmless error analysis, at least where there is a complete record of the judge’s communication in the jury room. But others, apply the strict rule, for the same reasons that we articulated in Mims. And jurisdictions that do not otherwise apply a strict rule may do so where the record of the communication is not complete.

Our district courts have been on notice of, and presumably have followed, the strict rule laid down in Mims for several decades. We see no reason to abandon that rule now, particularly in a case where there is some question whether the record contains all communications with the jury. We, therefore, grant Brown’s request for a new trial.

III.

Because we hold that the district court’s communications with the jury require a new trial, we need not consider whether the other issues raised by Brown would support a new trial. But we will address two of those issues briefly to provide guidance for the new trial.

The district court agreed that the reference in the testimony of Officer Wayne to Brown’s post-arrest silence was inadmissible, ordered it stricken and provided a curative instruction. We trust that the state will prepare its witnesses to avoid any reference to Brown’s post-arrest silence in any new trial.

Further, if the state presents the testimony of either or both Robinson or Young in the new trial, our decision in State v. Strommen requires that the accomplice testimony instruction be given. 648 N.W.2d 681, 689 (Minn.2002).

Reversed and remanded.

      . Prior to entering the jury room for the third time, the trial judge discussed the jury question with counsel and stated:
      I will go in first and ask them if there's any possibility in arriving at a verdict tonight, at the conclusion of which I’ll check the blackboards. If there’s nothing on there or the [sic] erase them, I don't care, then I'll ask you to step in.
      The record does not indicate the contents of the blackboard.

      . See, e.g., U.S. v. Bishawi, 186 F.Supp.2d 889 (S.D.Ill.2002); State v. Moya, 138 Ariz. 12, 672 P.2d 964 (1983); State v. Hilliard, 133 Ariz. 364, 651 P.2d 892 (1982); Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); People v. Knighten, 105 Cal.App.3d 128, 164 Cal.Rptr. 96 (1980); State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987); People v. Olson, 66 Mich.App. 197, 238 N.W.2d 579 (1975); State v. McMahon, 186 Wis.2d 68, 519 N.W.2d 621 (1994).

      . See, e.g., U.S. v. Nosov, 221 F.Supp.2d 445 (S.D.N.Y.2002) (visit to ensure deliberations proceeded smoothly); State v. Moya, 138 Ariz. 12, 672 P.2d 964 (1983) (visit to discuss recess); People v. Knighten, 105 Cal.App.3d 128, 164 Cal.Rptr. 96 (1980) (visit to read requested portions of the testimony); Hogan v. State, 274 Ind. 119, 409 N.E.2d 588 (1980) (visit to answer question by telling jury to read the instructions); State v. Neal, 685 S.W.2d 271 (Mo.Ct.App.1985) (visit to respond to juror questions of law); State v. Settle, 670 S.W.2d 7 (Mo.Ct.App.1984) (visit to ask what question the jury wanted answered); and State v. Burton, 112 Wis.2d 560, 334 N.W.2d 263 (1983) (visit to check on progress of deliberations and discuss recess).

      . See, e.g., Graves v. State, 377 So.2d 1129 (Ala.Crim.App.1979) (visit to discuss recess); Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986) (visit to answer question about parole eligibility); State v. Hilliard, 133 Ariz. 364, 651 P.2d 892 (1982) (visit to discuss recess); People v. Olson, 66 Mich.App. 197, 238 N.W.2d 579 (1975) (visit to discuss recess); State v. Graff, 96 Nev. 474, 611 P.2d 196 (1980) (visit to answer jury questions).

      . See, e.g., State v. Corrales, 121 Ariz. 104, 588 P.2d 846 (1978); Coley v. State, 431 So.2d 194 (Fla.Ct.App.1983); Caldwell v. State, 340 So.2d 490 (Fla.Ct.App.1976); State v. Tapson, 307 Mont. 428, 41 P.3d 305 (2001).

      . 10 Minn. Dist. Judges Ass’n; Minnesota ■ Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.18 ("Accomplice Testimony”) (4th ed.1999).


author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Dennis Edward TATE, Appellant.
    No. A03-485.
    Court of Appeals of Minnesota.
    June 29, 2004.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Jennifer Beens Harper, Assistant Attorneys General, St. Paul, MN; and Janelle Kendall, Stearns County Attorney, St. Cloud, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, MN, for- appellant.

      Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges his conviction of first-degree assault, arguing that (1) the district court violated his constitutional right to the free exercise of religion by ordering him to “tuck [his cross] inside [his] sweater” during trial, (2) the district court abused its discretion by allowing the state to introduce a statement of appellant’s alleged ,accomplice as substantive evidence under the catchall exception to the hearsay rule, and (3) the prosecutor committed prejudicial misconduct in his closing argument by inflaming the jury’s passions and by shifting the burden of proof to the defense.

We conclude that, although the district court’s order regarding appellant’s cross arguably infringed on appellant’s constitutional right to the free exercise of religion, it was not in this context an error affecting a fundamental trial right that warrants a new trial. Further, we conclude that the district court did not abuse its discretion by admitting the accomplice’s statement under the catchall exception and that the prosecutor did not commit misconduct that warrants reversal of appellant’s conviction. We affirm.

FACTS

On the evening of February 5, 2002, the St. Cloud police received a call from a homeowner reporting a suspicious person outside his home. When Officer Aaron Dix arrived at the home, he found Michael Krzmarzick outside the home, bleeding profusely from his head. Krzmarzick was taken to a local hospital where it was determined that he had a depressed skull fracture that required surgery. At the hospital, Krzmarzick told the medical staff that he had been assaulted; a member of the medical staff called the St. Cloud police, and Officer Jason Burke was sent to the hospital to investigate. Krzmarzick told Officer Burke that earlier in the evening, (1) he had biked to a local store, where he saw a woman whom he had met before but whose name he could not recall, (2) the woman was with a man, and they offered to give Krzmarzick a ride, (3) before they all left, the man placed Krzmar-zick’s bicycle in the back of the couple’s pickup truck, and (4) when the vehicle stopped, all three got out, and the man hit Krzmarzick over the head. Medical personnel told Officer Burke that they believed Krzmarzick’s injury was caused by being hit with an object that would cause a blunt-force injury, such as a hammer.

At approximately 2:20 a.m. on February 6, 2002, approximately 30 miles outside St. Cloud, Paynesville police officer Joseph Schmitz stopped a pickup truck for erratic driving. Velma Shavers was the driver, and appellant Dennis Edward Tate was the passenger. Officer Schmitz brought Shavers back to his squad car to check her license and to question her; while he was investigating, he received a call telling him that an assault had recently occurred in St. Cloud and that the vehicle and the people that he had just stopped matched the descriptions of those involved. After being informed that the victim had been assaulted with a “rounded item,” Officer Schmitz returned to the vehicle and asked Tate, the owner of the truck, if he could “look around” the vehicle; Tate consented. In the back of the truck, Officer Schmitz found a chrome tire wrench and a tire jack. Tate and Shavers were transported to the Stearns County jail on charges unrelated to this case.

Officer Gerald Lehner interviewed Shavers and Tate at the jail. In a tape-recorded statement, Shavers told Officer Lehner that she and Tate had given Krzmarzick a ride and that, after they stopped at a cemetery, they had taken money from Krzmarzick; Shavers stated that she had asked Krzmarzick where his money was and that Tate had taken $46 out of Krzmarzick’s pocket. She stated that Tate hit Krzmarzick in the head with a “silver” tire iron, and she and Tate left Krzmarzick at the cemetery. She then described a house in St. Cloud where she and Tate had left Krzmarzick’s bicycle. Officer Lehner then spoke with Tate, who denied (1) being at the store, (2) seeing Krzmarzick and giving him a ride, and (3) having anything to do with the assault and the robbery.

After the interviews, Officer Lehner drove to the house that Shavers had described and found Krzmarzick’s bicycle there. Officer Lehner also confiscated the clothing that Tate was wearing at the time of his arrest; a forensic scientist at the Minnesota Bureau of Criminal Apprehension compared blood spots on Tate’s shirt with samples of both Tate’s and Krzmar-zick’s blood and determined that the blood on the shirt matched Krzmarzick’s DNA profile. As the investigation continued, the officers obtained videotape from security cameras outside the store where Krzmarzick said that he had gone before the assault. The videotape showed Tate placing Krzmarzick’s bicycle in the bed of the pickup truck before he, Shavers, and Krzmarzick drove off together.

Before trial, Shavers told a defense investigator that she had lied in her statement to Officer Lehner. At trial, the state moved for admission of Shavers’s tape-recorded statement to Officer Lehner as substantive evidence under Minnesota Rule of Evidence 803(24). After Shavers told the district court that she would be invoking her Fifth Amendment privilege against self-incrimination, the state sought an order giving Shavers use immunity to compel her testimony; the district court granted Shavers use immunity and ordered her to testify. Shavers testified that (1) she had lied about some of the information in her earlier statement to Officer Lehner, (2) she and Tate had not stolen money from Krzmarzick, and (3) Tate had not assaulted Krzmarzick. Tate also testified that, although he and Shavers had given Krzmarzick a ride, they had not taken any money from him, and Tate had not assaulted him.

Krzmarzick testified that (1) when he was at the store, Shavers and Tate offered to give him a ride to a friend’s apartment, (2) Tate drove them to a secluded area, (3) Tate came toward him with a “silver” tire iron and hit him on the head, and (4) Shavers and Tate both went through his pockets and took approximately $40 from him.

The jury found Tate guilty of first-degree assault, in violation of Minn.Stat. § 609.221, subd. 1 (2000); first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2000); and second-degree assault, in violation of Minn. Stat. §§ 609.222, subd. 1, 609.11, subd. 4 (2000). This appeal follows.

ISSUES

I. Is appellant entitled to a new trial because the district court ordered him not to openly wear a cross around his neck during trial?

II. Did the district court abuse its discretion by allowing the state, to introduce as substantive evidence a prior statement of appellant’s alleged accomplice?

III. Did the prosecutor commit.misconduct by making statements in his closing argument that were intended to inflame the passions of the jury and by shifting the burden of proof to the defense?

ANALYSIS

I.

Before trial, the prosecutor requested that Tate put a cross that he was wearing around his neck inside his shirt so that it was not visible to the jury, arguing that Tate’s cross would be “sending a religious connotation to the jury.” The district court then told Tate “to tuck [the cross] inside [his] sweater.” Tate argues that the district court’s order (1) violated his federal and state constitutional rights to the free exercise of religion and (2) precluded the jury from viewing him as a “whole person” when he testified. Tate asserts that he is, therefore, entitled to a new trial. Whether the district court’s actions violated Tate’s constitutional rights is a question of law, which this court reviews de novo. See State v. Schwartz, 598 N.W.2d 7, 9 (Minn.App.1999), review denied (Minn. Sept. 28, 1999).

The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. The Minnesota Freedom of Conscience Clause provides:

The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; ... nor shall any control of or interference with the rights of conscience be permitted.

Minn. Const, art. I, § 16. The Minnesota Constitution affords religious protections . broader than those in the federal constitution. State v. Hershberger, 462 N.W.2d 393, 397 (Minn.1990). Minnesota courts apply a balancing' test when analyzing whether a state regulation infringes a right under the Freedom of Conscience Clause of the Minnesota Constitution. Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 865 (Minn.1992). Courts must ask if (a) the objector’s belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means. Id.

Tate argues that it is clear that the district court’s restriction violated his right to the free exercise of religion because (1) he “strongly objected to the suggestion that he hide his cross, an indication that his religious beliefs are sincere” and (2) the district court failed to conduct its own inquiry into the substance and sincerity of his beliefs; See Joseph v. State, 642 So.2d 613, 615 (Fla.Dist.Ct.App.1994) (holding that the Free Exercise Clause entitled defendant to wear sweatshirt and jeans with religious pictures and names when trial court conceded that defendant’s clothing was based on his religious beliefs and there was no evidence to support trial court’s decision to prohibit defendant from wearing the clothing); In re Palmer, 120 R.I. 250, 386 A.2d 1112, 1114 (1978) (holding that trial court’s refusal to allow defendant to appear in courtroom while wearing a prayer cap unjustifiably infringed on his right to the free exercise of religion because trial court did not attempt to determine the sincerity of defendant’s beliefs or whether such beliefs precluded the removal of the-prayer cap in court).

Tate further asserts that the state failed to articulate any compelling state interest in having Tate hide his cross, although the district court expressed concern that if Tate did not hide his cross, the jurors would see it because they were “captives of the system and would not have that same right to express their religious beliefs or the right to refuse to have other’s religious beliefs expressed to them.” Tate maintains that it is unclear what interest was promoted by the hiding of his cross and that, further, no interest in courtroom decorum could outweigh his right to wear his cross.

Tate acknowledges that there is no case-law prescribing a remedy for when it is found after conviction that a district court’s order violated a defendant’s constitutional right to the free exercise of religion and further admits that “there is no articulable prejudice here.” But because the right to the free exercise of religion is fundamental, Tate argues that a violation of that right during the course of a criminal trial “should be considered presumptively prejudicial” and that he is entitled to a new trial. See State v. Sanders, 376 N.W.2d 196, 205 (Minn.1985) (listing certain trial errors that are presumptively prejudicial).

Ordinarily, a criminal defendant seeking a new trial bears the burden of proving not only that error occurred but also that it was prejudicial. Id. at 204. “If the appellate court concludes that error occurred, it analyzes the error in the context of the record on appeal to determine the likelihood that the" error affected the verdict.” Id. But certain errors, such as the complete denial of counsel to a criminal defendant and errors affecting a defendant’s right to a decision by an impartial jury, are errors that are presumed to be prejudicial. Id. at 205.

Here, because the district court did not conduct an inquiry into the substance and sincerity of Tate’s beliefs, the district court’s order forbidding Tate from openly wearing his cross was error. But because the district court’s order did not affect a fundamental right guaranteed in a criminal trial, such as the complete denial of counsel to a criminal defendant or the right to a trial by an impartial jury, we conclude that it was not a “presumptively prejudicial” error warranting a new trial. And we further conclude that Tate is not entitled to a new trial because, as Tate concedes, “there is no articulable prejudice here.”

Tate also argues that his convictions should be reversed because the district court’s order directing him to hide his cross affected his constitutional right to testify, citing State v. Brouillette for the proposition that the district court’s order prevented the jury from seeing the “whole person” during his testimony and may have affected their determination of his credibility. 286 N.W.2d 702, 707 (Minn.1979). But Brouillette does not support Tate’s argument. Brouillette explains that impeachment by evidence of a prior crime aids the jury by allowing it “to see ‘the whole person’ and thus to judge better the truth of his testimony.” Id. (quoting St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)). Further, Tate’s argument that the cross would allow the jury to see his “whole person” is contrary to Minn. R. Evid. 610, which provides that “[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.”

II.

Tate argues that the district court committed reversible error by allowing the state to introduce Shavers’s out-of-court statement to Officer Lehner as substantive evidence. Absent an erroneous interpretation of the law, whether to admit or to exclude evidence is a question within the district court’s discretion. State v. Buggs, 581 N.W.2d 329, 334 (Minn.1998). Although generally inadmissible, hearsay statements may be admitted under one of several exceptions, including the catchall exception. Minn. R. Evid. 803. Rule 803(24) excludes from the hearsay rule

[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Tate argues that Shavers’s statement to Officer Lehner did not have the requisite circumstantial guarantees of trustworthiness. In State v. Ortlepp, 363 N.W.2d 39, 44 (Minn.1985), the supreme court held that an accomplice’s statement, which the accomplice claimed at trial was false, had sufficient circumstantial guarantees of trustworthiness to be admissible under rule 803(24). The court reasoned (1) there was no confrontation problem presented by the admission of the statement as substantive evidence because the accomplice “testified, admitted making the prior statement, and was available for cross-examination by defense counsel”; (2) because the accomplice admitted making the prior taped statement, “there was no real dispute over whether he made it or over what it contained”; (3) the reliability of the statement was enhanced because it was made against the accomplice’s penal interest; and (4) the statement “was consistent with all the other evidence the state introduced, evidence which pointed strongly toward both the defendant and [the accomplice’s] guilt.”

Tate concedes that (1) Shavers testified, admitted making the tape-recorded statement to Officer Lehner, and was available for cross-examination; (2) admitted making the prior statement, and the contents of the statement are undisputed; and (3) the statement was consistent with the state’s other evidence. Tate admits that, therefore, “most of the Ortlepp factors were satisfied.” But Tate maintains that the statement did not meet the third Ort-lepp factor because Shavers’s statement to Officer Lehner was not against her penal interest, asserting that Shavers did “everything she could to shift blame from herself to Tate.”

We conclude that the third Ortlepp factor was satisfied. In her statement to Officer Lehner, Shavers stated “I know we just took somebodyfs] money. That’s what I was involved in, The taking.” This statement was clearly against Shavers’s penal interest because it inculpated her in the robbery. Further, this court has found that the third Ortlepp factor may be satisfied even when a declarant’s statement is not against the declarant’s penal interest providing that the declarant is hostile to the state and supportive of the defendant. See State v. Whiteside, 400 N.W.2d 140, 146 (Minn.App.1987) (concluding that the district court did not abuse its discretion by admitting under Minn. R. Evid. 803(24) declarant’s prior statement inculpating the defendant, her boyfriend, because declarant was hostile to the prosecution and supportive of the defendant), review denied (Minn. Mar. 18, 1987). Here, Shavers testified that she and Tate had been in an “off and on” relationship for two years and that she loves him. Thus, because Shavers was hostile to the prosecution and supportive of Tate, Shavers’s statement was against her interest.

And we further note that there are additional circumstantial guarantees of trustworthiness with Shavers’s statement because (1) it was made the day after the incident, (2) Shavers was not promised leniency in exchange for her statement, (3) Officer Lehner did not ask her leading questions or coerce her statement in any way, and (4) her statement was substantially consistent with the other evidence because she told the investigator where the crime occurred, identified the weapon used in the assault, stated how much money was taken from the victim, and told the investigator where she and Tate had left Krzmarziek’s bicycle. See State v. Soukup, 376 N.W.2d 498, 501 (Minn.App.1985) (determining that although statement was not against declarant’s interest, it was admissible under rule 803(24) because there were other circumstantial guarantees of trustworthiness), review denied (Minn. Dec. 30, 1985).

Tate further argues that he is entitled to a new trial because it was improper for the district court to allow the prosecutor to call Shavers as a witness at trial solely for the purpose of impeaching her with the prior statement. See State v. Dexter, 269 N.W.2d 721, 722 (Minn.1978) (stating that Minn.- R. Evid. 801(d)(1)(A) precludes a prosecutor from calling a witness solely for the purpose of impeaching the witness with a prior unsworn statement that is otherwise inadmissible hearsay). But when a-prior statement is admissible as substantive evidence, “the Dexter problem is not present and defendant has no legitimate cause to complain.” Ortlepp, 363 N.W.2d at 43. -Tate’s argument is, therefore, not compelling.

III.

Tate also argues on appeal for the first time that the prosecutor committed serious misconduct during his closing argument by attempting “to inflame the passions of the jury” and improperly suggesting that the defense had some burden of proof. Whether a defendant is entitled to a new trial because of prosecutorial misconduct is within the discretion of the district court, which is in the best position to appraise the effect of any misconduct. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). An appellate court will reverse a conviction, or reverse the district court’s denial of a motion for a new trial, on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial [was] denied.” State v. Smith, 541 N.W.2d 584, 588 (Minn.1996). In cases involving less-serious prosecutorial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury to convict. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974). A defendant usually is deemed to waive his right to raise the issue of prosecutorial misconduct on appeal when he fails to object at trial. State v. Torres, 632 N.W.2d 609, 617-18 (Minn.2001). The failure to object implies that the defendant found nothing improper in the closing argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn.1983). Relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” prosecutorial misconduct. State v. Whittaker, 568 N.W.2d 440, 450 (Minn.1997).

Tate argues that the prosecutor made two statements in his closing argument that improperly inflamed the passions of the jury. See State v. Porter, 526 N.W.2d 359, 363 (Minn.1995) (stating that a prosecutor may not argue to inflame the passions and prejudices of the jury). The first was:

I remember reading once a quote, and the quote went “you can judge the worth of a nation by how the people treat their most vulnerable citizens.” And I thought about that a lot, and I thought about that in the context of this case. First of all, I think it is a philosophy for all of us to live by. How do you treat the people that are more vulnerable than you? And isn’t that what you folks are going to determine in this case?

The second was: “This is despicable. Horrendous. Did you really need to crack open his skull to steal his $49? Really?”

Closing arguments should focus on the evidence and any reasonable inferences that can be drawn from the. evidence. State v. Yang, 627 N.W.2d 666, 679 (Minn.App.2001), review denied (Minn. July 24,..2001). Because the two comments at issue did not focus on the evidence, analyze and explain the evidence, or present any proper inferences to be drawn from the evidence, we conclude that the prosecutor was intending to inflame the passions of the jury with his comments. But the statements were not “unduly prejudicial” and do not require reversal of Tate’s conviction. The statements were short comments, involving 13 lines of a closing argument transcript that is 25 pages long. See State v. Washington, 521 N.W.2d 35, 40 (Minn.1994) (holding that jury was not unduly influenced by improper statements in prosecution’s closing argument in • part because the statements were found on only four pages of the 45-page transcript of the closing argument). Further, the statements likely did not play a substantial role in the jury’s decision to convict because the state’s theory was supported by evidence consisting of (1) the store’s surveillance video showing Tate, Shavers, and Krzmarzick putting Krzmar-zick’s bicycle in the back of the pickup and driving off together, (2) Krzmarzick’s testimony that the person who gave him a ride was the person who assaulted him, (3) Shavers’s statement to the police the day after the incident that Tate had assaulted Krzmarzick, and (4) Krzmarzick’s blood on Tate’s shirt. See State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993) (concluding that, even where closing argument was “in some respects out-of-bounds,” it is regarded as harmless error unless the misconduct played a substantial role in jury’s decision to convict).

Tate next argues that the prosecutor committed prejudicial misconduct by shifting the burden of proof to Tate when he stated:

Folks, all of this evidence that you see is disclosed before these trials. The defendant in their defense have to explain away this evidence.... But that is what to the best of their abilities is going on here, trying to explain away the evidence. But there is so much to explain away in this case.

Because the state bears the burden of proving all of the elements of a crime beyond a reasonable doubt and is prohibited from shifting to a defendant the burden to prove his innocence, Tate argues that the prosecutor committed misconduct by improperly implying that the defense had some burden to “explain away” the state’s evidence. State v. Gassler, 505 N.W.2d 62, 69 (Minn.1993). But we conclude that (1) the prosecutor’s comments, taken as a whole, do not indicate that the-burden of proof was shifted to Tate because the prosecutor further stated in his closing argument, “Now folks, the defendant, he doesn’t have to prove anything, and that is the way the law should be. We should have to prove our case,” and (2) any prejudice was alleviated by the district court’s instruction to the jury that Tate was not required to prove his innocence.

Further, we conclude that if the prosecutor’s statement were error, the error was harmless because, based on the state’s evidence, the statement likely did not play a substantial role in the jury’s decision to convict.

DECISION

Although the district court arguably infringed on Tate’s constitutional right to the free exercise of religion by ordering him to wear his cross inside his sweater, this was not an error affecting a fundamental trial right that warrants a new trial. The district court did not abuse its discretion by admitting the prior statement of Tate’s accomplice as substantive evidence under the catchall exception. And Tate is not entitled to a new trial on the basis of prosecutorial misconduct when he failed to timely object and the record does not show unduly prejudicial misconduct.

Affirmed.

      . Because Shavers, as the declarant, testified at trial and was subject to cross-examination concerning the statement, the Confrontation Clause does not apply to invalidate the hearsay exception. See Crawford v. Washington, — U.S. —, —, 124 S.Ct. 1354, 1369 n. 9, 158 L.Ed.2d 177 (2004). Thus, although the .statement appears to be the type of testimonial statement that concerned the Court in Crawford, that case, which deals only with the protections provided by the Confrontation Clause, does not apply here.


author: PETERSON, Judge.

text:
    Karen P. ROER, petitioner, Respondent, v. Debra Ali DUNHAM, Appellant.
    No. A03-1583.
    Court of Appeals of Minnesota.
    June 29, 2004.

      Linda L. Holstein, Anh T. Le, Parsinen Kaplan Rosberg & Gotlieb P.A., Minneapolis, MN, for respondent.
    Jill Eleanor Clark, Golden Valley, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; ANDERSON, Judge; and CRIPPEN, Judge.

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

   OPINION

PETERSON, Judge.

In this appeal from a restraining order, appellant argues that the district court misconstrued Minn.Stat. § 609.748 (2002) to allow the district court to extend the duration of a restraining order for more than two years. We reverse.

FACTS

In June 2001, respondent Karen P. Roer brought a petition seeking a harassment restraining order against appellant Debra Ali Dunham. The district court found that Dunham engaged in specific acts of harassment against Roer and issued a two-year restraining order effective until August 29, 2003, prohibiting Dunham from harassing Roer and from having any direct contact with her.

In July 2003, Roer filed a motion to extend the restraining order for an additional two-year period, until August 29, 2005. The district court conducted an evi-dentiary hearing on Roer’s motion. The court ruled that it would consider only events that occurred after a related criminal trial against Dunham, which took place in October 2002. Dunham was acquitted in the criminal proceeding.

Roer presented evidence regarding four incidents of alleged harassment that occurred following the criminal trial. Shortly after the criminal trial, Dunham sent a letter to members of the Wayzata Country Club and members of Roer’s church. Appended to the letter was a copy of Dun-ham’s attorney’s closing argument in the criminal proceeding, which referred to Roer as “a liar and a cheat.” In January 2003, Dunham sent a second letter to members of the Wayzata Country Club, appended to which was a letter from Dun-ham’s attorney referring to an affair between Roer and Dunham’s husband. Roer testified about two incidents, one that occurred at her church on May 7, 2003, and one that occurred after Roer drove through Dunham’s neighborhood on May 8, 2003.

The court issued an order extending the restraining order for one year until August 29, 2004. This appeal followed.

ISSUES

1. Does Minn.Stat. § 609.748, subd. 5(a) (2002), permit the court to extend a restraining order beyond two years?

2. Did the district court err in issuing the restraining order?

ANALYSIS

1. Statutory interpretation is a question of law subject to de novo review. Schumacher v. Ihrke, 469 N.W.2d 329, 332 (Minn.App.1991). The object of statutory interpretation is to determine and give effect to the legislature’s intent. Minn. Stat. § 645.16 (2002).

Minn.Stat. § 609.748, subd. 5(a) (2002), states, “Relief granted by the restraining order must be for a fixed period of not more than two years.” The statute is silent as to the court’s authority to extend a restraining order beyond the two-year period.

Citing Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn.App.2000), Roer argues that the court has the authority to extend a restraining order based on a continuing pattern of harassment by the person subject to the order. In Witchell, shortly before a one-year restraining order expired, the district court issued an order extending the restraining order for two years based on a finding that there were reasonable grounds to believe that the appellant had continued to harass the respondent. This court reversed on the ground that the acts on which the extended order were based did not fall within the statutory definition of harassment. Id. at 732. The Witchell court did not address the issue of the court’s authority to extend a restraining order beyond two years.

Minn.Stat. § 609.748, subd. 6 (2002), sets forth criminal penalties for violating a restraining order and provides that violation of a restraining order shall constitute contempt of court. Construing Minn.Stat. § 609.748 to allow for an extension of a restraining order beyond the statutory maximum two-year period would expand the penalties set forth in Minn. Stat. § 609.748, subd. 6. We, therefore, conclude that a court may not extend a restraining order beyond two years from the effective date of the initial restraining order. This construction is consistent with the statutory rule of construction that this court cannot add language that is not present in the statute or supply what the legislature purposely omits or inadvertently overlooks. See Ullom v. Ind. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994) (stating statutory rule of construction).

Here, although the district court labeled its order as an extension of the existing restraining order, the proceeding met the requirements for issuing an initial restraining order. Minn.Stat. § 609.748, subd. 5(a), states:

The court may grant a restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if all of the following occur:
(1) the petitioner has filed a petition under subdivision 3;
(2) the sheriff has served respondent with a copy of the temporary restraining order obtained under subdivision 4, and with notice of the time and place of the hearing, or service has been made by publication under subdivision 3, paragraph (b); and
(3) the court finds at the hearing-that there are reasonable grounds to believe that the respondent has engaged in harassment.

Minn.Stat. § 609.748, subd. 3 (2002), requires that the petition identify the parties and “be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.”

Roer’s motion for an extension of the restraining order identified the parties and was accompanied by a sworn affidavit setting forth alleged incidents of harassment. The district court conducted an evidentiary hearing. The district court’s finding that Dunham had engaged in.harassment was based on recent events, not on the events on which the initial order was based. The district court, thus, in effect, issued a new restraining order and did not violate the prohibition against extending a restraining order beyond two years from the effective date of the initial restraining order.

2. This court uses an abuse-of-discretion standard to review a harassment restraining order issued under Minn.Stat. § 609.748 (2002). Witchell, 606 N.W.2d at 731-32. We give due regard to the district court’s opportunity to judge the credibility of witnesses and will not set aside findings of fact- unless clearly erroneous. Minn. R. Civ. P. 52.01.

A district court may issue a harassment restraining order if it finds “reasonable grounds to believe that [a person] has engaged in harassment.” Minn.Stat. § 609.748, subd. 5(a)(3).. Harassment includes “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have, a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.” Minn.Stat. § 609.748, subd. 1(a)(1).

The district court’s order identifies only one incident of harassment, which occurred on May 7, 2003. But to support a finding of harassment, “repeated incidents of intrusive or unwanted acts, words, or gestures” are required. - Minn.Stat. § 609.748, subd. 1(a)(1) (emphasis added). Because the district court identified only one incident of harassment, the findings are insufficient to support the restraining order.

DECISION

A district court does not have authority to extend an existing restraining order beyond two years from the effective date of the existing restraining order, but because the proceeding before the district court met the statutory requirements for issuing an initial restraining order, the district court, in effect, issued a new restraining order and did not extend an existing restraining order. However, the district court erred by issuing a restraining order based on a finding of only one incident of harassment.

Reversed.

      . The parties' briefs cite unpublished authority. Unpublished opinions are not of value in deciding an appeal. See Minn.Stat. § 480A.08, subd. 3(c) (2002) (stating "[u]n-published opinions of the court of appeals are not precedential"); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn.App.1993) (stating dangers of miscitation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential”). Moreover, the unpublished cases cited by the parties are distinguishable from this case.


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Scott David MONDRY, Appellant.
    No. A03-1643.
    Court of Appeals of Minnesota.
    June 29, 2004.
    Steven M. Light, Lindsey D. Haugen, Grand Forks, ND, for appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Lisa Borgen, Clay County Attorney, Moorhead, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and HUSPENI, Judge .

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

   OPINION

WRIGHT, Judge.

Appellant challenges his sentence for second-degree sale of a controlled substance, arguing that the district court abused its discretion' by including two points in his criminal-history score for felony offenses committed after the instant offense that resulted in sentences imposed prior to the sentencing for the instant offense. We affirm.

FACTS

In April 2002, appellant Scott Mondry was arrested and subsequently charged in Clay County, Minnesota, with several offenses, including second-degree sale of a controlled substance. Five months later, Mondry was arrested for two felony offenses committed in North Dakota. Mon-dry pleaded guilty to the North Dakota offenses in February 2003 and was sentenced to a five-year prison term with three years suspended. The sentencing court in North Dakota did not consider the pending Minnesota charges when determining the length of the North Dakota sentence.

In August 2003, Mondry pleaded guilty to second-degree sale of a controlled substance in Minnesota, and the district court ordered a presentence investigation. Mondry’s criminal-history score for the Minnesota offense included two points for the North Dakota felony convictions.

Mondry challenged the use of the North Dakota convictions to increase his criminal-history score, relying on Scott v. State, No. C1-99-2093 (Minn. Oct. 26, 2000) (order). Rejecting Mondry’s argument, the district court accepted the criminal-history score as calculated in the presentence investigation report and sentenced Mondry to a prison term of 68 months, to be served concurrently with the North Dakota sentence. This appeal followed.

ISSUE

Did the district court err by including in appellant’s criminal-history score points for the North Dakota offenses, which were committed after the instant offense but sentenced prior to the sentencing at issue here?

ANALYSIS

We review de novo a district court’s interpretation of the Minnesota Sentencing Guidelines. State v. Jones, 587 N.W.2d 854, 855 (Minn.App.1999). When interpreting a provision of the Minnesota Sentencing Guidelines, we shall not disregard the plain and unambiguous language of the sentencing guidelines and accompanying commentary. Id. at 856; see also Minn.Stat. § 645.16 (2000) (governing statutory construction to discern legislative intent). When employing the sentencing guidelines to determine an offender’s presumptive sentence, the offender’s prior felony record is a critical component of the criminal-history score. See Minn. Sent. Guidelines II.B.l. For each felony conviction “for which a felony sentence was stayed or imposed before the current sentencing,” the offender is assigned a designated number of points. Id. (emphasis added). “The phrase ‘before the current sentencing’ means that in order for prior convictions to be used in computing [a] criminal history score, the felony sentence for the prior offense must have been stayed or imposed before the sentencing for the current offense.” Minn. Sent. Guidelines cmt. II.B.101. Thus, an offender’s conviction of an offense committed subsequent to the current offense, but sentenced prior to the current sentencing, is properly included in the defendant’s criminal-history score. State v. Best, 370 N.W.2d 691, 696 (Minn.App.1985).

In support of his assertion that his criminal-history score was miscalculated, Mon-dry relies on an order opinion of the Minnesota Supreme Court that, in the interests of justice, remanded with instructions to re-sentence without including a prior felony sentence in the criminal-history score. See Scott v. State, No. C1-99-2093 (Minn. Oct. 26, 2000) (order). The parties in Scott negotiated a plea agreement based on the parties’ assumption that the offender would be sentenced in Ramsey County prior to being sentenced for an unrelated offense in Washington County. Id. When the sentencings did not occur in the order contemplated, the defendant received a longer sentence in the case from Ramsey County than anticipated based on his criminal-history score, which included the Washington County offense. Id. The Scott court’s ruling honored the terms of the plea agreement, which, due to circumstances beyond the parties’ control, were negated by operation of the sentencing guidelines. Id. Unlike the facts presented in Scott, Mondry’s sentence did not contravene the negotiated plea agreement.' Rather, Mondry’s sentence was determined by proper application of the sentencing guidelines.

Mondry argues that remanding his sentence is consistent with the plain language of the sentencing guidelines, which provides that “[mjultiple offenses are sentenced in the order , in which they occurred.” Minn. Sent. Guidelines II.B.1; see also Minn. Sent. Guidelines cmt. II. A.02 (providing that “the date of [the] offense determines the order of sentencing with multiple convictions”). Examination of the commentary to the sentencing guidelines, however, leads to a different conclusion. The order in which offenses occur becomes relevant under the sentencing guidelines when the offenses are being sentenced on the same day before the same judge. Minn. Sent. Guidelines cmt. II.B.101. ‘When multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred. The dates of the offenses shall be determined according to the procedures in II.A.02.” Id. (emphasis added); see also State v. Hernandez, 311 N.W.2d 478, 481 (Minn.1981) (holding that, when sentencing a defendant on the same day for three convictions from separate courses of conduct, the district court properly considered the first two convictions in determining the criminal-history score for the third conviction). But the sentences for the North Dakota offenses were not imposed by the same judge on the same day as the Minnesota offenses. Based on the facts presented here, guidelines .provision II.B.l and comment II.B.101 direct the sentencing court to compute the criminal-history score by using offenses for which a sentence has been “stayed or imposed before the sentencing for the current offense.”

Mondry’s offenses in North Dakota were sentenced prior to his sentencing for the Minnesota offenses. Accordingly, the district court correctly interpreted and applied Minn. Sent. Guidelines II.B.l by calculating Mondry’s criminal-history score to include the North Dakota convictions.

DECISION

Because Mondry’s North Dakota offenses were sentenced prior to the sentencing for the current offense, the district court did not err by including the North Dakota convictions in Mondry’s criminal-history score.

Affirmed.

      . The record is silent as to the reason for the delay in the Minnesota proceedings.