author: STRINGER, Justice.

text:
    W.G.O., as GUARDIAN FOR A.W.O., Respondent, v. Mary Louise CRANDALL, Petitioner, Appellant.
    No. C2-00-1266.
    Supreme Court of Minnesota.
    March 7, 2002.
    Lommen, Nelson, Cole & Stageberg, P.A. Kay Nord Hunt, Minneapolis, MN, Dunlap & Seeger, P.A., Ken D. Schueler, Rochester, MN, for Appellant.
    Cooper Law Firm, Stephen W. Cooper, Kathryn J. Cima, Minneapolis, MN, for Respondent.
   OPINION

STRINGER, Justice.

A.W.O. (respondent) was injured when the bicycle he was riding was struck by an automobile driven by Mary Crandall (appellant) in August of 1993, when respondent was twelve years old. W.G.O., respondent’s father, filed suit against appellant in October of 1998, alleging that appellant’s negligence caused physical and emotional injury and financial damage to respondent. Appellant denied these allegations and asserted the affirmative defenses of contributory negligence and assumption of the risk. A jury concluded that appellant was 80% at fault and respondent was 20% at fault and awarded $391,683.16 in damages.

Appellant moved for a new trial or, in the alternative, judgment notwithstanding the verdict (JNOV) arguing that the jury should have been instructed on the “emergency rule” which at the time of the trial was expressed in CIVJIG 110, providing:

A person confronted with an emergency through no negligence of [his][her] own who, in an attempt to avoid the danger, does not choose the best or safest way, is not negligent because of such choice unless the choice was so hazardous that a reasonable person would not have made it under like circumstances.

4 Minn. Dist. Judges Ass’n, Minnesota Practice Jury Instruction Guides, Civil, CIVJIG 110 (3d ed.1986) (since modified and currently found at CIVJIG 26.35 (4th ed.1999)). Appellant also asserted that respondent’s accident reconstruction expert was allowed to express opinions as to average driving speed and appellant’s braking not based on proper foundation. Appellant’s motion was denied and she appealed. The court of appeals, in a split decision, concluded that the trial court did not err in refusing to instruct the jury on the emergency rule because the emergency situation was created, at least in part, by appellant’s own negligence. The court also ruled that the trial court erred in admitting the testimony of respondent’s expert, but concluded the error was not prejudicial. The dissent disagreed, contending that prejudicial error resulted from both the trial court’s failure to instruct the jury on the emergency rule and its improper admission of testimony from respondent’s expert witness. We reverse and remand for a new trial as to liability only.

On the afternoon of August 3, 1993, appellant left her local country club in Austin, Minnesota after playing tennis and eating lunch. She admitted sampling two to four ounces of wine along with her meal approximately one hour before the accident occurred. Appellant exited 1-90 and proceeded in the left lane of the two southbound lanes of Oakland Place heading in the direction of Eighth Avenue. At about the same time, respondent and a friend were riding their bicycles in an easterly direction on Eighth Avenue N.E. toward the intersection of Oakland Place where a stop sign controls the Eighth Avenue traffic. Traffic exiting westbound 1-90 is channeled directly onto Oakland Place which consists of four lanes, two in each direction, separated by a grass median. Vehicles traveling south on this stretch of Oakland Place are not subject to any stop or yield sign; as the investigating police officer testified, this is a “limbo area” with regard to speed as drivers exiting 1-90 onto Oakland Place are likely driving somewhere between the 55-mph highway speed and the 40-mph speed limit posted just beyond the Eighth Avenue intersection. Both parties testified that they were familiar with other traffic at this intersection: appellant acknowledged that she was aware that children frequented the area as there was a lake in the vicinity, and respondent, an experienced biker, knew that cars traveling south on Oakland Place were exiting at freeway speed from nearby 1-90.

From the top of the overpass, about 500 feet from the intersection of Eighth Avenue, appellant noticed respondent and his friend approaching the stop sign at a moderate speed. According to appellant’s testimony, the boys were about 45-75 feet from the intersection when she first saw them. Appellant testified at trial that she was probably going about 50-mph as she exited the freeway, slowing to approximately 40-45-mph on the stretch just before the accident, and that she slowed down when she noticed respondent and his friend in the distance.

Although there is disagreement as to whether respondent stopped at the intersection, it is undisputed that he was looking to the right talking to his friend when he entered Oakland Place and did not see appellant’s car approaching on his left until immediately before impact. Appellant testified that she observed the boys for more than ten seconds, and that she had no indication that respondent was not going to stop until she saw him enter the intersection. At that point appellant put on her brakes and thought she had almost stopped before hitting him — she came to a complete stop about 10-15 feet after the point of impact.

Respondent’s accident reconstruction expert testified that appellant was traveling at a rate of at least 30-mph at the time of impact and that respondent was thrown approximately 60 feet as a result of the collision; appellant’s reconstruction expert estimated appellant’s traveling speed at about 20-mph and estimated that respondent was thrown about 25 feet upon impact with appellant’s vehicle.

According to appellant’s testimony and the police report, there was damage to the front left driver’s side of the vehicle and to the far rear end of respondent’s bicycle, suggesting that appellant’s car just clipped the back of respondent’s bicycle as he was crossing the street. The police officer testified that there was no physical evidence with regard to skid marks or point of impact, and no indication of evasive or defensive maneuvers by either party. Based on his knowledge of average reaction time and stopping distance, the officer concluded that appellant was not traveling at an excessive speed at the time of the accident. Although appellant acknowledged that the accident would not have occurred if she had been just 1 ⅛ feet farther to the right, she claimed she had no time to swerve or even honk her horn. Consistent with that testimony, respondent’s friend, biking with him that day, testified that he did not hear any car honk and that he did not hear the sound of brakes until after respondent was hit.

Respondent sustained serious injuries to his lower left leg as a result of the accident: he had an open fracture, massive soft tissue injury, and required skin grafting on a 26 x 15 cm wound using a donor site on his thigh. Complications from these initial injuries, including skin infections and two subsequent leg fractures, prolonged his recovery for over a year.

On October 16, 1998, respondent’s father filed this lawsuit on respondent’s behalf alleging that appellant’s negligence in driving too fast and failing to yield caused severe physical injury, emotional harm, and significant financial expense to respondent. Appellant denied these allegations and, in her defense, asserted that respondent was negligent in failing to look out for his own safety and that he assumed the risk of his injuries.

The case was tried before a jury in August 1999. At the trial, respondent’s expert on accident reconstruction was allowed to testify, over appellant’s objection, that a “normal driver” would proceed through the area in which this accident occurred at 82 mph based on his determination that this was the average speed motorists passed through this intersection when he studied it five years after the accident. Using this “average speed” as a guide, respondent’s expert concluded that appellant’s higher rate of speed was a contributing factor to the accident and that if appellant had been driving at the speed people “normally travel” at this intersection, respondent would not have been injured.

Also over appellant’s objection, respondent’s expert was permitted to assert that if appellant applied her brakes as she testified, her vehicle, although equipped with an anti-lock brake system (ABS), should have left skid marks. The expert’s testimony was based on experiments he conducted with his wife’s vehicle' — of a different year, make and model than appellant’s vehicle but similarly equipped with ABS brakes. His experiments consisted of repeatedly driving his wife’s car at 30-mph, locking up the brakes, and jumping out to view the surface of the road where he observed that the skid marks were “visible to the naked eye” as apparently evidenced by photographs he took at the time. Although he admitted that ABS skid marks could be faint and dissipate quickly, he maintained that a trained person such as a police officer should be able to identify them. Since the police officer reported that he found no skid marks at the scene of the accident, the implication was that appellant did not apply her brakes as she claimed.

Appellant’s expert on accident reconstruction also testified as to skid marks stating that although cars with ABS brakes do leave marks, they are not technically skid marks; rather, ABS brakes leave a mark from an effect of cleaning the surface of the pavement, but in his opinion, even this type of mark would not be expected on this particular type of road. Appellant’s expert also testified that, based on appellant’s maximum 45-mph rate and an average perception-reaction time of 1.5 seconds, it would have been impossible for appellant to bring her vehicle to a full stop, or even swerve, to avoid the accident.

As the trial came to a close, appellant requested that the jury be instructed on the emergency rule in CIVJIG 110, which provides for a particularized standard of care where a person is confronted with an emergency situation not of his or her own creation. Appellant argued that this instruction was appropriate because appellant had a right to assume respondent would stop at the stop sign and look to the left before proceeding. When respondent did not do so however, an emergency situation was created through no fault of appellant. Respondent objected to the instruction arguing that this was not the type of situation in which the emergency rule would apply and that even if there was an emergency, appellant’s failure to use due care at least contributed to creating it. The trial court agreed, concluding this was not an emergency rule case and noting that, unlike a situation where a child darts out from behind a car, appellant had advance notice of the potential danger here. The jury ultimately concluded that appellant was 80% at fault and respondent was 20% at fault and awarded respondent $391,683.16.

Post trial, appellant moved for a new trial or, in the alternative, JNOV arguing, among other things, that the trial court erred in allowing respondent’s expert witness to testify regarding average speed at the intersection and skid marks left by a different vehicle with ABS brakes, and in refusing to instruct the jury on the emergency rule. The trial court denied appellant’s motion concluding that an emergency rule instruction was inapplicable, that the information presented by respondent’s expert regarding speed was helpful and relevant to the issue whether appellant was driving too fast under the circumstances, and that the photograph evidencing that ABS brakes can leave skid marks, even if made by an unrelated vehicle, was properly admitted.

On appeal, the court of appeals affirmed the trial court’s ruling that the emergency instruction was not appropriate because appellant was aware of the potential danger as she approached the intersection and that she was not confronted with a sudden peril to which her own negligence did not contribute. The court concluded however, that the trial court’s ruling admitting the testimony of respondent’s accident reconstruction expert relating to the speed of vehicles at the accident scene was speculative, not helpful to the jury, and not based upon a reasonably complete and accurate reconstruction. It also concluded that admission of the expert’s testimony regarding ABS brakes and the accompanying photograph was error, as the record did not indicate that his experiments were conducted under conditions and circumstances substantially similar to those existing when the accident occurred. Nonetheless, the court of appeals held that the trial court’s erroneous evidentiary rulings did not constitute prejudicial error as the jury could have reached its verdict based on other testimony. The dissent disagreed, asserting prejudicial error as to the trial court ruling denying the emergency jury instruction and admitting the disputed testimony of respondent’s expert. The dissent argued that there should have been an instruction on the emergency rule, and that it should be refused only in those cases where it can be said as a matter of law that defendant’s pre-emergency conduct was negligent; otherwise, it should be left to the jury to decide whether to apply the doctrine based upon its resolution of the disputed facts. As to the evidentiary rulings, the dissent concluded they were not only erroneous but also prejudicial, especially because respondent relied heavily upon this testimony to support his argument that appellant was negligent in driving too fast and failing to apply her brakes to avoid the collision.

We first consider whether the trial court’s erroneous admission of the testimony presented by respondent’s accident reconstruction expert entitles appellant to a new trial. An improper evi-dentiary ruling resulting in the erroneous admission of evidence will only compel a new trial if it results in prejudicial error to the complaining party. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn.1997). An evidentiary error is prejudicial if it might reasonably have influenced the jury and changed the result of the trial. See Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725-26 (Minn.1983) (applying standard to exclusion of evidence); Cloverdale Foods of Minnesota, Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51-52 (Minn.App.1998) (applying standard to admission of evidence). On the other hand, erroneous admission of evidence which is cumulative and corroborated by other competent evidence will be deemed harmless and will not warrant a new trial. See In re Estate of Lea, 301 Minn. 253, 259, 222 N.W.2d 92, 97 (1974); Minn. R. Civ. P. 61.

Appellant argues that the testimony of respondent’s accident reconstruction expert relating to calculations of the average speed at which “normal” motorists drive through the intersection where the accident occurred, and his conclusion-that vehicles equipped with ABS brake systems will leave skid marks when applied based on experiments with a vehicle of a different year, make and model than the one involved in this accident, was critical to respondent’s-claims. Appellant claims this evidence was the only evidence supporting respondent’s assertion that appellant was negligent by driving at an unreasonable and excessive speed, and that she did not apply her brakes to avoid the collision. Appellant takes particular issue with repeated characterization of the speed of other drivers passing through the accident site as the rate at which a “normal driver” would proceed, especially in respondent’s closing arguments, and argues that the characterization created an arbitrary standard of care that prejudicially affected the jury’s assessment of negligence entitling appellant to a new trial.

Respondent argues that although the admission of his expert’s testimony regarding vehicle speed and ABS brakes may have been error, it did not prejudice appellant’s defense — juries are quite capable of evaluating the probative value of evidence and rejecting it where appropriate, so respondent asserts, and the verdict should not be overturned as there was “overwhelming” evidence to support it.

After a careful review of the record, we conclude that the erroneous admission of the expert testimony as to vehicle speed and braking might reasonably have influenced the jury and changed the result of the trial. See Jenson, 335 N.W.2d at 725. Although there is some potentially corroborating evidence with regard to the timing and application of appellant’s brakes, the improperly admitted testimony of respondent’s expert was the only source of substantial evidence rebutting appellant’s contention that she did apply her brakes, and that there were no skid marks because the car she was driving was equipped with ABS brakes — crucial evidence that in the absence of the erroneously admitted expert testimony would have explained the lack of skid marks.

As to the testimony. relating to speed, there was nothing in the statements by appellant or the investigating police officer to suggest that appellant’s speed was excessive given the circumstances. The speed limit for the accident site was 40-mph, and the investigating police officer indicated that drivers along this portion of “unsigned” road are likely in the process of decelerating from the 55-mph highway speed to the 40-mph city speed. Thus, the testimony of respondent’s expert that 32-mph was the speed of a “normal driver” at that intersection might reasonably have influenced the jury’s assessment as to the reasonableness of appellant’s speed and changed the result of the trial.

Accordingly, we hold that the testimony from respondent’s accident reconstruction expert regarding speeds of other motor vehicles at the accident site and whether vehicles with ABS brakes leave skid marks on the pavement, admitted in error by the trial court, was prejudicial to appellant’s defense.

In light of our decision that erroneous evidentiary rulings resulted in the admission of prejudicial testimony relating to appellant’s defense, and because the record will be substantially different on retrial, a ruling on whether the trial court erred by failing to instruct the jury on the emergency rule based on the record before the court would serve no purpose. We therefore decline to rule on this issue.

Reversed and remanded for a new trial on the issue of liability only.

      . A.W.O. was an adult by the time this case reached trial. While counsel discussed with the court amending the pleadings to reflect his adult status, the record does not reflect such an amendment. Nonetheless, we treat A.W.O. as the formal party to these proceedings and refer to him as respondent.

      . See also Johnson v. Townsend, 195 Minn. 107, 110, 261 N.W. 859, 861 (1935) (setting forth the emergency rule).

      . The court of appeals panel was in agreement, however, that the trial court erroneously denied appellant’s motion for determination of collateral source offset benefits and that remand on that issue was appropriate. Appellant did not petition this court for review of this issue, and respondent did not file a cross-petition. Determination of the amount of collateral source offset benefits to which appellant is entitled is an issue preserved for resolution at retrial to the extent that its resolution is necessary.

      .Since the issue of damages was fully litigated at the first trial, retrial on the issue of damages is unnecessary.

      . The investigating police officer initially testified that he believed the highway speed at the time of the accident was 65-mph, however, respondent's counsel clarified later in the trial that the speed limit on the interstate in 1993 was 55-mph.

      . The police officer noted that the area between the interstate exit and the accident site is "unsigned,” however, he also acknowledged that technically the speed limit for this particular stretch of road is 40-mph and that a person familiar with the area should have decelerated at least into the low 40s at the point where the accident occurred in anticipation of the 40-mph zone marked just ahead.

      .The statement of the dissent as to the emergency rule is a correct statement of the law. See, e.g., Minder v. Peterson, in which this court held:
      Where the evidence is such that the jury may find either way on the question of whether a litigant has created an emergency, it is proper to instruct the jury on the emergency rule with directions that it is to be applied only if the jury finds that the emergency was not created by the one who seeks to invoke the rule.
      254 Minn. 82, 88, 93 N.W.2d 699, 705 (1958) (citations omitted); see also Emerson v. Eystad, 288 Minn. 401, 406, 181 N.W.2d 337, 339 (1970); Roeck v. Halvorson, 254 Minn. 394, 398, 95 N.W.2d 172, 175-76 (1959). For reasons stated hereafter however, we do not rule on whether the trial court erred in refusing to instruct on the emergency rule.

      . Respondent did not cross appeal the court of appeals' holding that the admission of testimony of respondent's expert as to average speed and skid marks was error, and we granted appellant's petition for review only as to the court of appeals' determination that the trial court's error was not prejudicial; therefore, we do not address whether admission of such testimony was proper.

      . Appellant also asserts that the court of appeals mistakenly reasoned that the erroneous evidentiary rulings were not prejudicial, arguing that the appropriate test is not whether there is other credible evidence upon which the jury could have based its finding, but whether the ruling might reasonably have influenced the jury and affected the result of the trial. While it is not clear from the court of appeals opinion that the test for prejudicial error was misapplied, we have articulated the appropriate standard above.

      . Respondent's friend, biking with him at the time of the accident, testified that he did not hear the sound of brakes and tires squealing until after the point of impact. In addition, the investigating police officer stated that he saw no signs of heavy braking at the accident site.


source: Caselaw Access Project

author: /s/Alan C. Page Associate Justice

license: Public Domain

text:
    QWEST CORPORATION, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. C9-01-691.
    Supreme Court of Minnesota.
    March 7, 2002.
    Rehearing Denied April 15, 2002.

    Robert Cattanach, Marianne D. Short, William R. Goetz, Dorsey & Whitney LLP, Minneapolis, for Relators.
    Mike Hatch, Minnesota Attorney General, Barry R. Greller, Assistant Attorney General, St. Paul, for Respondents.

       BLATZ, C.J., STRINGER, J., and LANCASTER, J., took no part in the consideration or decision of this matter.

   ORDER

Based upon all the files, records, and proceedings and upon an evenly divided court,

IT IS HEREBY ORDERED that the decision of the Tax Court in this matter is affirmed 'without opinion.

BY THE COURT:

/s/Alan C. Page Associate Justice

BLATZ, C.J., STRINGER, J., and LANCASTER, J., took no part in the consideration or decision of this matter.


author: KALITOWSKI, Judge.

text:
    In the Matter of the Risk Level Determination of R.B.P.
    No. C4-01-808.
    Court of Appeals of Minnesota.
    March 5, 2002.

      John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Minneapolis, MN, (for relator R.B.P.).
    Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, Minneapolis, MN, (for respondent).
    Considered and decided by HANSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

KALITOWSKI, Judge.

By writ of certiorari, relator challenges the Administrative Law Judge’s order affirming the End of Confinement Review Committee’s classification of him as a risk level III arguing (1) it was clearly erroneous because the End of Confinement Review Committee exceeded its authority under the statute by assigning him to a risk level two levels higher than the level based on his Sex Offender Screening Tool score; and (2) the evidence does not support the determination that relator should be assigned a risk level III.

FACTS

The End of Confinement Review Committee (ECRC) had evidence that relator R.B.P.’s criminal sexual conduct began when he was 13 years old. Beginning in 1979 relator began abusing a four-yeax*-old and a seven-year-old whom he was babysitting. Because the victims’ parents refused to cooperate with the investigation, R.B.P. was never charged with these offenses.

In 1983, at age 17, relator broke into his neighbor’s home and, while wearing a nylon stocking over his head, threatened the victim with a knife and raped her approximately four times over the course of two and a half hours. Relator was convicted of two counts of first-degree criminal sexual conduct and burglary and sentenced to 90 months. While incarcerated, relator acquired 12 misconduct charges and refused to participate in sex offender rehabilitation. Relator was released from custody in June 1988, but was placed back in custody due to serious chemical abuse. He was again discharged in 1989.

In 1992, relator called a friend of his girlfriend and told her he needed help bailing his girlfriend out of jail. When the friend came over relator grabbed her and dragged her into the house while the friend’s small child remained in her car. Relator threatened her with a long serrated knife and when the victim attempted to escape he caught her by her neck with his shirt and choked her. He cut her several times but eventually let her go. There were ropes tied to the bed and relator subsequently admitted he intended to tie the victim up and rape her.

Relator was convicted of first-degree attempted criminal sexual conduct and sentenced to 134 months. Both sex offender and chemical dependency treatment programs were recommended. In 1997, he was accepted into a sex offender treatment program, which he quit in February 1999. And in January 2000, when he reapplied to the program, the evidence indicates he lied several times on the intake questionnaire.

While in treatment, relator told his psychologist that he had physically abused other women. In addition, he admitted choking and forcing sex on his girlfriend. One of relator’s psychologists stated that relator described his assaults in a “very cold and distant manner[.]” The evidence indicates that relator was considered for civil commitment at this time, but due to the length of time between the offenses he was not committed, despite a determination that he was likely to reoffend.

Based on relator’s score on the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) relator was presumptively a risk level I. But because there were “special concerns” about relator’s risk to the community, a Department of Corrections psychologist recommended that the ECRC assign relator a risk level of II. Following its meeting in December 2000, the ECRC, citing additional special concerns, assigned relator a risk level of III. Relator challenged this assessment and was afforded a hearing before an Administrative Law Judge (ALJ) in February 2001. The ALJ issued an order in April 2001 affirming the ECRC’s risk level determinatiom

ISSUES

1. Did the End of Confinement Review Committee exceed its statutory authority by assigning relator a risk level III where his MnSOST-R score placed him at a risk level I?

2. Does the evidence considered by the End of Confinement Review Committee warrant the committee’s determination that relator is a risk level III?

ANALYSIS

I.

Questions of statutory interpretation are reviewed de novo. Matter of Risk Level Determination of C.M., 578 N.W.2d 391, 395 (Minn.App.1998). But, a reviewing court affords substantial deference to an administrative agency’s interpretation of its own rules and regulations. St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn.1989). “If an ■ administrative agency’s authority is questioned, [a reviewing] court independently reviews the enabling statute.” Weber v. Hvass, 626 N.W.2d 426, 431 (Minn.App.2001).

This case arises under the Sex Offender Community Notification Act, Minn.Stat. § 244.052 (1996 & Supp.1997). The Act provides that at least 90 days before an offender’s release from prison, an ECRC shall convene to determine the offender’s risk level. Id. at subd. 3(d). The ECRC determines the public risk posed by the offender on a case-by-case basis. Id. at subd. 3(a). “An offender assigned * * * to risk level II or III * * * has the right to seek administrative review of [the ECRC’s] risk assessment determination,” but on review the offender has “the burden of proof to show, by a preponderance of the evidence, that the end-of-eonfinement review committee’s risk assessment determination was erroneous.” Id. at subd. 6(a), (b).

The notification statute empowers the law enforcement agency in “the area where the sex offender resides, expects to reside, is employed, or is regularly found,” to disclose to the public, any information that the agency deems “relevant and necessary to protect the public and to counteract the offender’s dangerousness.” Id. at subd. 4(a). The statute mandates that the agency consider the statute’s guidelines that information on level I offenders be disclosed to other law enforcement agencies and victims of or witnesses to the offender’s crime; that information on level II offenders further be disclosed to schools, daycare centers, “establishments and organizations that primarily serve individuals likely to be victimized by the offender,” and individuals who fit the offender’s pattern of victim preference; and that in the case of a level III offender, “the agency also may disclose the information to other members of the community whom the offender is likely to encounter.” Id. at subd. 4(b).

To administer the statute, the Department of Corrections developed and revised a risk assessment scale to assign weights to the statutory risk factors, which is known as the MnSOST-R. Minn. DOC, Policy Number 205.220 (Dec. 20, 1999). Under the MnSOST-R, an offender who has a score of 3 or lower is a risk level I and an offender with a score of 3 or lower who causes “special concern” is a risk level II. Id. An offender starts the process with a presumptive score based on MnSOST-R from which the committee can depart downward or upward. According to the ECRC treatment professional, if there is an upward determination, the committee notes “special concerns,” which are factors that were not considered in arriving at the offender’s MnSOST-R score. In addition, the treatment professional testified that after the offender is assigned a MnSOST-R score, the committee interviews the offender to gather information not contained or fully explained in the offender’s file. Following the interview, the ECRC prepares a risk assessment report specifying the offender’s risk level and the reasons for the committee’s risk assessment decision. MinmStat. § 244.052, subd. 3(f).

Here relator scored a 1 on the MnSOST-R but had numerous factors cited by the committee as causing “special concern.” Relator argues that in light of his MnSOST-R score, the ECRC exceeded its authority and violated its own policy by assigning him a risk level III. We disagree.

The object of all interpretation and construction of laws is to effectuate the legislature’s intent. Minn.Stat. § 645.16 (2000). “Every law shall be construed, if possible, to give effect to all its provisions.” Id. Absurd and unreasonable results are presumed to be against the legislature’s intent. Minn.Stat. § 645.17(1) (2000).

Minnesota courts have not interpreted the Sex Offender Community Notification Act to determine the degree of discretion the ECRC has in determining an offender’s risk level. It is significant that the Act does not state that the committee has no discretion in assigning offenders to risk levels. Nor does the statute provide that the committee is limited to using an offender’s MnSOST-R score in assigning an offender to a risk level.

We reject relator’s argument that this court’s holding in Matter of Risk Level Determination of C.M., 578 N.W.2d 391, severely limits the ECRC’s level of discretion. That case is not controlling because it involves the issue of providing community notification concerning an individual who has not been proven to be a sex offender. Here, relator is a convicted repeat sex offender whose specific situation is not accurately reflected by his MnSOST-R score.

Because the statute states that risk levels are to be determined on a case-by-case basis in consideration of the risk the offender poses to the public, it is apparent the legislature intended that the committee have the authority to exercise some discretion. In addition, we note that the committee is made up of the head of the correctional facility where the offender is confined, a law enforcement officer, a caseworker experienced in assessing sex offenders, and a victim’s services professional. If the sole function of the committee was merely to compute a numerical score based on objective criteria, then a committee with the statutorily specified expertise and experience would not be necessary. Moreover, if the process was purely objective, the committee’s interview of the offender, the purpose of which is to gain information of a subjective nature, would also be unnecessary. We thus conclude that based on the statutory scheme, the intent of the legislature was to vest some discretion in the ECRC.

A review of how courts in other jurisdictions have addressed this issue further supports our conclusion. New York has a statute similar to Minnesota’s establishing a “board of examiners of sex offenders,” N.Y. Correct. Law § 168-1(1) (McKinney Supp.1999-2000), which evaluates offenders prior to their release from custody. Id § 168-1(6). That board recommends whether offenders will be deemed sexually violent predators subject to community notification. Id Similar to the Minnesota Notification Act, the New York statute established three classifications of offenders, with corresponding degrees of notification. Id

The New York Superior Court in People v. Lombardo, 167 Misc.2d 942, 640 N.Y.S.2d 995 (1996), stated the numerical values based on risk factors are presumptive only. Id at 996. The court went on to state:

“The ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case * * a court is therefore permitted to bring its sound judgment and expertise to bear on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective.

Id (quotation omitted).

In addition, the Lombardo court found the objective instrument does not account for conduct unless it falls completely within the boundaries defined by a particular risk factor, and therefore the similar conduct does not factor into the sex offender’s risk level score. Id at 996-97.

Similarly, a New Jersey court found its notification statute was not a scientific device, but rather merely a useful tool to help determine an offender’s risk level. Matter of C.A., 146 N.J. 71, 679 A.2d 1153, 1171 (1996). It held that while the classification should be afforded deference, courts should not rely solely on an offender’s point total when conducting a judicial review of a risk level classification or notification decisions because it is impossible to create an all-inclusive scale. Id.

[TJhere is still a value judgment that must be made when determining a registrant’s risk of re-offense and proper classification. * * * [Tjhere may be cases in which the registrant presents subjective criteria that would support a court not relying on the tier classification recommended by the Scale. In those cases, we do not expect the court to blindly follow the numerical calculation provided by the Scale, but rather to enter the appropriate tier classification.

Id.

We are persuaded by the reasoning of the New York and New Jersey courts. While the MnSOST-R score provides a presumptive risk level, this presumption can be rebutted by individual circumstances not taken into account by it. And the ECRC necessarily has the authority to consider these circumstances when making its ultimate risk assessment. Because the legislature intended the ECRC to have discretion to determine the offender’s appropriate risk level, the ALJ properly determined the ECRC did not exceed its statutory authority in assigning relator to a risk level two levels higher than the presumptive level based on his MnSOST-R score.

II.

We also reject relator’s argument that the information regarding relator considered by the ECRC was not sufficient to justify the committee’s assignment of a risk level III. In arriving at its determination the committee cited several factors that are appropriate as special concerns.

First, the ECRC asked relator about two prior uncharged offenses, including a charge of molesting children he babysat. This additional information regarding relator’s criminal sexual history was not included in relator’s MnSOST-R score. In addition, the committee noted a special concern with relator’s ability to remain sober. This is significant because there was evidence that chemical abuse played an important role in relator’s past criminal behavior.

The committee also noted that both of relator’s criminal convictions were a result of very serious offenses that involved weapons. On one occasion he entered a house wearing a mask and sexually assaulted the victim for several hours. And on another occasion he lured an acquaintance into his home and sexually assaulted her. Breaking into the victim’s house and assaulting a known victim are both highly predatory offenses that support a risk level III. Moreover, because during the second assault he cut the victim with a knife, the committee appropriately expressed concern that any future victim could be seriously injured.

In addition, because one of relator’s assaults included a break-in of the victim’s residence, the committee reasoned that the statute would not be beneficial to public safety if the neighborhood could not be alerted and therefore relator should be assigned a risk level III.

Finally, the ECRC’s review raised additional questions about the accuracy of relator’s MnSOST-R score. Specifically, the committee was concerned that relator’s MnSOST-R score was lowered because his particular offense did not fit into the predetermined categories. For example, relator received a score of 0 out of a possible 7 because he had been charged or convicted of sexual offenses against only one age group. But the committee had evidence that relator did sexually assault more than one age group but that because the victims’ parents would not help with the prosecution, the charges were dropped. Also, although relator received a “negative-one” for not committing a sexual assault against a stranger, the two adult offenses were perpetrated against persons who were only slight acquaintances: a neighbor and a friend of a friend. Finally, relator received another “negative-one” out of a possible 15 for completing the sex offender program. But the ECRC had information that just a few months before his release date relator had stated that “it doesn’t matter what you do with slutty women.”

Given the potential gravity of a reof-fense, relator’s apparent unchanged lack of concern and respect for women, the inherent difficulty of applying an objective screening tool like the MnSOST-R, and the nature of relator’s past criminal sexual conduct, we conclude that the ALJ did not err in determining that the ECRC acted within its discretion in concluding that a broader notification was necessary and that, therefore, relator should be classified as a risk level III.

DECISION

Under the Sex Offender Community Notification Act, the End of Confinement Review Committee, when it finds and documents special concerns, has the authority to exercise its discretion and assign the appropriate risk level for an offender notwithstanding the presumptive risk level indicated by the Sex Offender Screening Tool. The evidence considered by the ECRC supports its determination that relator should be assigned a risk level III.

Affirmed.


author: LANSING, Judge.

text:
    Richard OCCHINO, Appellant, v. Russell GROVER, Respondent.
    No. C6-01-1216.
    Court of Appeals of Minnesota.
    March 12, 2002.

      Peter James Nickitas, Attorney at Law, St. Paul, for appellant.
    Mark C. Jennings, Attorney at Law, Duluth, for respondent.
    Considered and decided by HANSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

LANSING, Judge.

The district court granted summary judgment in favor of Russell Grover, holding that Minn.Stat. § 504B.255 (2000) did not require Grover to provide a one-year notice before terminating Richard Occhi-no’s Section 8 tenancy. Occhino appeals, and, because we conclude that the district court properly applied the statute, we affirm.

FACTS

Richard Occhino is disabled by epilepsy and has received social-security disability income since 1969. His limited income qualifies him for tenant-based government-housing assistance under Section 8 of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974. See 42 U.S.C. § 1437f (1994 & Supp. V 1999). Section 8 provides rental assistance that is “project-based” or “tenant-based.” In project-based programs, rental assistance is available to tenants who live in specific housing developments or units. 42 U.S.C. § 1437f(f)(6) (Supp. V 1999). With tenant-based assistance, the unit is selected by the tenant, who may rent anywhere a housing authority provides a certificate or voucher program. Id. (7) (Supp. V 1999).

From 1971 to 1999, Occhino rented the upstairs of a duplex at 509 North Second Avenue, in Duluth, Minnesota. Under the terms of his most recent lease, Occhino paid $159 monthly for rent, and the housing assistance program paid $266. In June 1999, Occhino’s landlord sold the building to Russell Grover. In September 1999, Grover notified Occhino that he intended to renovate the building and increase the rent to an amount not permitted under the housing assistance program. Grover also notified Occhino that he must vacate the premises by October 31, 1999. Occhino complied, but brought this action for compensatory damages, alleging failure to provide adequate notice and unlawful discrimination based on receipt of public assistance.

The district court determined that the one-year notice requirement in Minn.Stat. § 504B.255 did not apply to Occhino’s tenancy and granted summary judgment on that claim. Occhino voluntarily dismissed his discrimination claim and brought this appeal.

ISSUE

Do the notice requirements of Minn. Stat. § 504B.255 apply to tenants who receive tenant-based Section 8 housing assistance?

ANALYSIS

On appeal from a summary judgment based on the application of statutory language to undisputed facts, we exercise independent review to determine whether the district court erred in applying the statute. Oslund v. Johnson, 578 N.W.2d 353, 356 (Minn.1998). Occhino and Grover do not dispute that our review is de novo, but they strongly dispute the applicability and priority of the canons that determine the meaning of statutes. A brief overview is, therefore, helpful.

To determine the meaning of a statute, we look first and foremost to the language of the statute itself. See Minn. Stat. § 645.16 (2000) (setting forth plain-meaning rule). If, on its face and as applied to the facts, a statute’s meaning is plain, judicial construction is neither necessary nor proper. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001) (addressing facial or patent meaning); State v. Herbert, 601 N.W.2d 210, 212 (Minn.App.1999) (addressing applied or latent meaning).

Plain meaning presupposes the ordinary usage of words that are not technically used or statutorily defined, relies on accepted punctuation and syntax, and draws from the full-act context of the statutory provision. Am. Tower, 636 N.W.2d at 312 (words and phrases carry plain and ordinary meaning); Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999) (rules of grammar apply to determine meaning); Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989) (sections of the statute must be read together to give words their plain meaning); see also William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 Harv. L.Rev. 26, 97-108 (1994) (dividing canons into three categories: (1) textual or plain meaning canons, which include conventions of grammar and syntax, ordinary usage, and whole-act structure, (2) extrinsic source canons, which include legislative sources, agency interpretation, and continuity principles, and (3) substantive policy canons, which include constitution-based, statute-based, and common law-based canons).

Although plain meaning is the governing principle in applying all statutory language, Minnesota courts will not give effect to plain meaning if it produces an absurd result or an unreasonable result that is plainly at variance with the policy of the legislation as a whole. Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997); Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993).

If the meaning of statutory language is not plain, courts resolve ambiguity by looking to legislative intent, agency interpretation, and principles of continuity which include consistency with laws on the same or similar subjects. See Minn.Stat. § 645.16 (2000); Eskridge & Frickey, supra, at 99-101 (grouping legislative intent, agency interpretation, and continuity principles as extrinsic-source canons that resolve ambiguity but do not trump textual meaning). The test for ambiguity is whether the statutory language has more than one reasonable interpretation. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

Courts also look to substantive-policy canons that specifically relate to the subject matter or the textual structure of the legislation. The substantive-policy canons include constitution-based canons that create a presumption against unconstitutional meanings, statutory-based canons that include restrictions on the interpretation of statutory exemptions and restrictions on the effects of repeal, and common law-based canons that include principles strictly interpreting statutes in derogation of the common law and strictly interpreting penal laws. See Minn.Stat. §§ 645.17(3) (“legislature does not intend to violate the constitution”), .19 (“[ejxcep-tions expressed in a law shall be construed to exclude all others”), .34-43 (2000) (relating to repeal); Whitener v. Dahl, 625 N.W.2d 827, 829 (Minn.2001) (statutes in derogation of common law must be strictly construed); State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985) (penal statutes must be strictly construed).

The statute at issue requires the landlord of federally subsidized rental housing to provide residential tenants a one-year notice under specified conditions:

The landlord of federally subsidized rental housing must give residential tenants of federally subsidized rental housing a one-year written notice under the following conditions:
(1) a federal section 8 contract will expire;
(2) the landlord will exercise the option to terminate or not renew a federal section 8 contract and mortgage;
(3) the landlord will prepay a mortgage and the prepayment will result in the termination of any federal use restrictions that apply to the housing; or
(4) the landlord will terminate a housing subsidy program.
The notice shall be provided at the commencement of the lease if the lease commences less than one year before any of the conditions in clauses (1) to (4) apply.

Minn.Stat. § 504B.255 (2000).

Occhino contends that the plain language of subsections (1) and (4) required Grover to give him a one-year notice before terminating his tenancy. Grover contends that the statutory notice does not apply to Occhino’s tenancy because he is not a tenant of “federally subsidized rental housing” within the technical meaning of that phrase. The statute does not define the phrase “federally subsidized rental housing.”

Grover maintains that “federally subsidized rental housing” is a technical phrase that applies only to project-based Section 8 subsidies and not to tenant-based subsidies. His support for this argument is minimal. Grover does not contend that the underlying federal statute uses the term in a technical fashion. Instead, he relies on a letter written by the general counsel of the Minnesota State Office of Housing and Urban Development in response to a different set of circumstances. The letter provides no basis for Grover’s argument other than the writer’s opinion that “federally subsidized rental housing” applies only to a multifamily, project-based Section 8 contract.

In the absence of a statutory definition or technical terminology, the plain meaning of words and phrases is determined by their common and approved usage. The common and approved usage of the phrase “federally subsidized rental housing,” together with accepted rules of grammar, tends to support Grover’s argument that the one-year termination applies to project-based rather than tenant-based assistance. By referring to “the landlord of federally subsidized rental housing” and “tenants of federally subsidized rental housing,” the statute uses the term “federally subsidized” to modify the noun “housing.” A straight-forward parsing of this phrase supports an argument that a project-based subsidy more likely satisfies the meaning of “federally subsidized rental housing” than a tenant-based subsidy. In other words, although Occhino may receive housing through a federal subsidy, it is his rent that is federally subsidized, rather than the housing itself.

The context of the statutory provision or the plain meaning within the whole act further supports a reading that would not apply the one-year notice provision to tenant-based subsidies. Subsections (2) and (3) refer to mortgages, which would not be relevant to a tenant-based subsidy, and even subsections (1) and (4) suggest that the section relates to a contract or program that is more comprehensive than one lease providing a subsidy for one eligible tenant.

In refutation of a plain meaning that would exclude his tenancy from the one-year notice, Occhino argues’ that the statute is at least ambiguous because an earlier St. Louis County district court opinion held that the one-year notice applied to a tenant-based subsidy. Douglas v. Sparby, No. C8-96-601471 (Minn.Dist.Ct. Sept. 10, 1996). We are not convinced that Douglas v. Sparby addressed the same legal issue. But even if we accepted Occhino’s argument that the statute is ambiguous because it is subject to more than one reasonable interpretation, we conclude, for the following reasons, that principles of statutory construction that apply to resolving ambiguity would produce the same result.

First, we reject Occhino’s and Grover’s arguments that a footnote near the end of subsection (2), referencing 42 U.S.C.A. § 1437f, should affect judicial construction of the statute. Although the footnote appears in West’s Minnesota Statutes Annotated, it does not appear in either the session laws or in the Minnesota Statutes published by the revisor’s office. Compare Minn.Stat. Ann. § 504B.255 (West Supp.2001), with 1999 Minn. Laws ch. 199, art. 1, § 32, and Minn.Stat. § 504B.255 (2000). The reference appears to have been inserted by West as an aid to readers to identify the source of Section 8. But it is the session laws and the revisor’s version of Minnesota Statutes that contain the official text of a statute. See Minn. Stat. § 3C.13 (legal status of statutes). Thus, we ascribe no significance to the placement of the footnote in Minnesota Statutes Annotated.

We do attach significance, however, to the fact that section 504B.255 is derived from 42 U.S.C. § 1437f. Neither Occhino nor Grover argue that the federal statute preempts the state law, and the federal statute specifically provides that if the tenant in question is receiving federal housing assistance that is not project based, any landlord terminating a lease is only required to give notice that conforms to the time requirements of state landlord-tenant law. See 42 U.S.C. § 1437f(o)(7) (Supp. V 1999). But the statute contains a provision comparable to section 504B.255 that requires a one-year termination notice under specified . conditions. 42 U.S.C. § 1437f(c)(8)(A) (Supp, V 1999). Unlike section 504B.255, however, the federal provision specifically exempts contracts for tenant-based assistance. Id.

We recognize that a state could enact legislation that is intended to extend or expand the notice rights available under federal law. See California Leads the Way: First State to Provide Nonproject-Based Section 8 Tenants a 90-Day Notice of Contract Termination, 30 Housing L. Bull. 28 (Feb.2000). But nothing in the enactment of section 504B.255 suggests that Minnesota intended to provide such a significant change from the federal provisions.

Section 504B.255 came into effect in July 1999 as part of a larger housing bill, the main purpose of which was to consolidate, clarify, and recodify the majority of Minnesota’s housing statutes under one chapter. Hearing on S.F. No. 2232 Before the Senate Comm. on Jobs, Housing and Cmty. Dev. (May 3, 1999) (statement of Sen. Higgins). When the bill was discussed in both House and Senate committees, it was made clear that no substantive changes to the current housing laws were intended. Id.; Hearing on H.F. 2125 Before the House Comm. on Civil Law (May 3, 1999) (statement of Rep. Dawkins). Therefore, section 504B.255 is simply a renumbering of the original Minnesota notice statute for section 8 housing, which was Minn.Stat. § 504.32 (1998). Section 504.32 was originally passed in 1989 as a small part of a larger housing bill in Minnesota. 1989 Minn. Laws ch. 328, art. 2, § 6. The language of section 504.32 is nearly identical to that of section 504B.255 and, again, suggests no major divergence from existing law.

Construing section 504B.255 to apply to project-based subsidies rather than tenant-based subsidies is also consistent with Oc-chino’s lease. The lease is a form lease provided by the U.S. Department of Housing and Urban Development and provides that after the first year of tenancy, the lease continues on a month-to-month basis. The lease requires notice of termination equivalent to the payment period, which in Occhino’s case is the one-month notice that he received.

We conclude that, by its plain meaning, the one-year termination notice required by section 504B.255 does not apply to tenants who receive tenant-based assistance under the Section 8 certificate and voucher program. And even if we accepted Occhi-no’s argument that the statute is ambiguous, a reasonable statutory construction would exclude tenants who receive tenant-based assistance from its scope.

Grover requests taxation of costs, disbursements, and attorneys’ fees. A proper request may be submitted for consideration under Minn. R. Civ.App. P. 139.

DECISION

Because Occhino received tenant-based rather than project-based rental assistance, the district court correctly concluded that he was not entitled to a one-year termination notice under Minn.Stat. § 504B.255.

Affirmed.


author: FOLEY, Judge.

text:
    STATE of Minnesota, Respondent, v. Jeffrey Warren BAIRD, Appellant.
    No. C1-01-894.
    Court of Appeals of Minnesota.
    March 12, 2002.

      Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul; and Charles C. Glasrud, Stevens County Attorney, Morris, for respondent.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and FOLEY, Judge.
   OPINION

FOLEY, Judge.

Appellant challenges his conviction and sentence for third-degree assault. Appellant contends that the district court (1) committed plain error by instructing the jury that appellant had a duty to retreat when the assault occurred inside his home and (2) erred by ordering appellant to pay restitution for the victim’s lost wages without proving that the victim would have been employed on those days. We reverse and remand for a new trial.

FACTS

Appellant Jeffrey Baird and James Nelson resided together in Baird’s motor home at a campground. On June 16, 2001, at about 1:30 a.m., Nelson, Baird, and some friends, including Baird’s former wife, Jolene Bedel, who is also the mother of Baird’s two young children, returned to the campground after being at a local bar. Bedel wanted to leave the campground in her vehicle, but Baird, believing she was drunk, confronted her, and took away her keys. Nelson thought Bedel should be allowed to leave and offered her his vehicle. At this point, Baird and Nelson tell different stories.

Nelson testified that he tried to push Baird away from the vehicle’s door, but he did not threaten or punch Baird. Baird turned hostile, came at Nelson, punched Nelson to the ground, and started beating on him. Nelson did not strike back at Baird because Baird pinned Nelson face down onto the ground and was punching him in the back. Eventually, Nelson was able to get up. Baird told Nelson to move out of the motor home, so Nelson went inside to gather his belongings. Shortly after, Baird entered the motor home and pinned Nelson face down on the bed. Baird punched Nelson in the back and head, and Nelson was unable to punch back. During the altercation, items were moved around inside the motor home.

Baird testified that once Nelson offered his vehicle to Bedel, Baird blocked the vehicle’s door. Nelson tried to pull Baird away from the door, grabbed his shirt, and then pushed him. Baird testified, “[Finally it got to the point where I just said — I said if you really want some I said come and get some * * * and he said yeah.” The matter continued as a “shoving match” for a short while. Nelson grabbed and pushed Baird and “[drove] his hands” into Baird’s chest. Eventually, Baird “threw a swing,” Nelson “went down,” and Baird punched Nelson in the back “a few times.” Two people pulled Baird off Nelson. Baird told Nelson to take his things and leave. After Nelson went inside the motor home, Baird heard a “a big kaboom and rattling.” Baird went inside, saw his television “all over the floor,” and then saw Nelson grab a screwdriver. Baird assumed Nelson was coming after him with it; he reacted immediately by striking Nelson on the side of his face, pinned him on the bed, and told him to give up the screwdriver. As Baird “wrenched” Nelson’s arm, another person took the screwdriver away from Nelson.

After the altercation, Nelson reported the incident to the police. Baird was charged with fifth-degree assault for the incident near the vehicle and third-degree assault for the- incident inside the motor home.-

At trial, Nelson testified that he went to the bar sometime between 8:00 and 10:00 p.m., and left when the bar closed, at about 1:00 a.m. Nelson indicated that he, Baird, and Bedel went to the bar together. Nelson testified that he drank ten to twelve eight-ounce glasses of beer and believed that Baird drank about the same amount. But Nelson later testified that he left the bar for a short time and returned at about midnight, and it was at this point that Baird first accompanied him to the bar. Baird’s attorney asked, “So Jeff Baird would have had maybe one or two drinks at the bar while you were there?” Nelson replied, “I don’t recall.”

When asked if he damaged Baird’s property, Nelson replied, “To my knowledge, no.” Baird’s attorney asked him, “Now isn’t it a fact that you were throwing things around and that’s why he came in?” Nelson replied, “I don’t recall.”

Nelson denied that he went towards Baird with a screwdriver, but admitted he probably did have a screwdriver:

Q: [Y]ou had a screwdriver in your hand during that fight?
A: When he had first come in, yeah.
Q: Okay. And, in fact, somebody else came in and took that away from you. Isn’t that correct?
A: I believe so. * * *
Q: Okay. And, ah, so what you’ve told the jury is you were pinned on the bed, he was beating on you and some people came in to separate you and they took something away from you. Is that right?
A: Correct.

Nelson insisted he did not threaten Baird with the screwdriver.

Bedel had left the scene before the altercation began, but Alicia Bergs, Nelson’s girlfriend, was present. Her testimony was consistent-with Nelson’s.

The investigating- officer testified that Baird did not tell him-that Nelson verbally threatened him. But the officer acknowledged that- Baird told him Nelson repeatedly pushed and. shoved him and threw his television set. Baird admitted he probably did not tell the police officer that Nelson had a screwdriver. Baird also admitted that he had a bad day and that it was a “matter of opinion” whether he lost his temper, snapped, and hit Nelson more than he needed to in order to protect himself or his property.

The district court instructed the jury that the excuse of self-defense imposes a duty to retreat or avoid the danger if reasonably possible. Baird was convicted of third-degree assault for the incident in the motor home and fifth-degree assault for the incident near the vehicle, and ordered to pay restitution. This appeal followed.

ISSUES

1. Did the district court err in instructing the jury that Baird had a duty to retreat before defending himself in his home?

2. Did the district court err by imposing restitution for the victim’s lost wages?

ANALYSIS

I.

Baird argues that, because the altercation occurred in his home, the district court erred when it instructed the jury that self-defense imposes a duty to retreat or avoid the danger if reasonably possible.

Baird did not object to the instructions at trial and did not make a motion for new trial based on the alleged error. Baird, however, asserts that the erroneous jury instructions constitute plain error. As a general rule, if defense counsel fails to object to an error at trial, the defendant “is deemed to have forfeited his right to have this court consider that error on appeal.” State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983). But

[p]lain eiTors or defects affecting substantial rights may be considered by the court * * * on appeal although they were not brought to the attention of the trial court.

Minn. R.Crim. P. 31.02. Before an appellate court reviews an unobjected-to error, appellant must meet a three-prong test for plain error: “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998) (citation omitted). If appellant establishes that these three prongs are met, the appellate court assesses whether it should address the error to ensure the fairness and integrity of the judicial proceedings. Id. Moreover, a reviewing court may also “reverse if the instructions were misleading or confusing on fundamental points of law * * *.” State v. Butler, 295 N.W.2d 658, 659 (Minn.1980).

Under this three-prong test, we consider first whether the district court erred. The court is afforded considerable latitude in choosing the language of jury instructions, provided that the instructions do not materially misstate the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). On review, an appellate court must view the jury instructions in their entirety “to determine whether they fairly and adequately explained the law[.]” State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

In several cases, the supreme court appeared to approve jury instructions imposing a duty to retreat on defendants claiming self-defense when the incident occurred inside the defendant’s home and the defendant and the victim were co-residents. State v. Hennum, 441 N.W.2d 798, 800 n. 5 (Minn.1989); State v. Morrison, 351 N.W.2d 359, 362 (Minn.1984). But in 1999, the supreme court examined the duty to retreat in self-defense cases and concluded that “self-defense in the home should not incorporate a duty to retreat.” State v. Carothers, 594 N.W.2d 897, 903 (Minn.1999). Carothers did not consider whether a defendant claiming self-defense in his home had a duty to retreat when the aggressor was a co-resident. But the court noted that in past cases, instructions imposing the duty to retreat against a co-resident had been summarily upheld, and the court reserved the issue for future resolution, suggesting that the question may be open. Id. at 902, 904 n. 6; see also State v. Glowacki, 630 N.W.2d 392, 399 (Minn.2001) (stating Carothers recognized that cases affirming duty to retreat against co-occupants did so summarily and that by reserving issue in Carothers, the court suggested the question may be open).

Based on Carothers, this court in Glo-wacki concluded that jury instructions that included a duty-to-retreat requirement for a self-defense claim in an encounter between co-residents were erroneous. State v. Glowacki, 615 N.W.2d 843, 845 (Minn.App.2000), rev’d on other grounds, 630 N.W.2d 392 (Minn.2001). The Minnesota Supreme Court affirmed our decision that the jury instruction was erroneous and that there was no duty to retreat from one’s own home before defending oneself against a co-resident, but reinstated the jury’s verdict, concluding that the error was harmless. Glowacki 630 N.W.2d at 402-03.

The state argues that this court should apply Glowacki prospectively, asserting that because Glowacki was decided seven months after Baird’s trial, Glowacki does not apply in this case. But

[t]he general rule is that, absent special circumstances or specific pronouncements by the overruling court that its decision is to be applied prospectively only, the decision is to be given retroactive effect.

Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn.1982) (citation omitted). In Glowacki, the supreme court did not specifically pronounce or otherwise indicate that the rule should only apply prospectively. 630 N.W.2d at 392. Therefore, we decline to so limit Glowacki.

Moreover, Hoff sets forth a three-factor test to determine when a decision should be given prospective application:

First, the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed * * *. Second, it has been stressed that “we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” * * * Finally, we have weighed the inequity imposed by retroactive application, for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

317 N.W.2d at 363 (quotation omitted). Glowacki does not satisfy the first factor. Although Glowacki appears to establish a new rule, past precedent was no longer clear because Carothers reserved the issue, suggested that the question may be open, and noted that cases supporting the duty to retreat against a co-resident were merely summary treatments of the issue. Carothers, 594 N.W.2d 897 at 902, 904 n. 6; see also Glowacki, 615 N.W.2d at 845 n. 2 (stating that Carothers “inevitably leads” to the conclusion that the law does not impose duty to retreat against eo-occupant). Because Glowacki does not satisfy the first factor, we need not address the second or third factors. Moreover, the cases cited by the state to support its argument that Glowacki should be given only prospective application are cases in which the supreme court, when announcing a new rule of law, announced the rule would be applied prospectively. See e.g., State v. Olsen, 258 N.W.2d 898, 907 (Minn.1977). The state failed to cite any case where this court has declared that a supreme court decision only applied prospectively without such guidance by the supreme court.

Additionally, we note that the law available to the district court at the time of Baird’s trial included Carothers and this court’s Glowacki decision, which, at the very least, would have cautioned against including a duty-to-retreat instruction. Carothers, 594 N.W.2d at 904 n. 6; Glowacki, 615 N.W.2d at 845.

Because we conclude that Glowacki does not apply prospectively only, we consider whether the court’s instructions in this case were erroneous. The district court instructed the jury that

[t]he legal excuse of self-defense is only available to those who act honestly and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible.

Baird was inside his home, of which Nelson was a co-resident. Baird argued self-defense, and the record shows that Nelson was holding a screwdriver while in the home. Therefore, under Glowacki, Baird did not have a duty to retreat against a co-resident, and the district court’s instruction was erroneous. Baird has established the first prong of the plain-error test.

The second prong of the plain-error test, requires that we consider whether the district court’s error was plain error. “[T]o satisfy the second prong, it is sufficient that the error is plain at the time of the appeal.” Griller, 583 N.W.2d at 741 (citation omitted). Under Glowacki, the district court’s instruction that Baird had a duty to retreat was error, and thus was plain error.

Third, we consider whether appellant has established the third prong of the test. The third prong is satisfied “if the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741 (citation omitted). Plain error is prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury’s verdict. Id. The district court instructed the jury that self-defense imposes a duty to retreat, and the state emphasized the duty to retreat in its closing argument:

There’s also an instruction in here about retreat. Remember we talked about— could you leave that place, could you go get help. Did you have to hit him? The Judge will tell you that the legal excuse of self defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid danger if reasonably possible. So let’s be real clear on this. Whatever he thinks, the defendant does not have the right to say well, he’s in here in this place that we live in and he’s got a screwdriver in his hand. Think I’ll hit him in the face. He can only do that if that’s reasonably necessary to protect himself, but he had a world of other options * * *.

Because the court included a duty to retreat, and Baird admitted that he did not retreat, the jury may never have considered whether Baird’s actions were otherwise reasonable and taken in self-defense.

A proper consideration of the reasonableness of Baird’s actions could have led the jury to conclude that Baird’s actions were reasonable. Nelson consumed 10 to 12 eight ounce glasses of beer between 8:00 p.m. and 1:00 a.m., while Baird only drank between midnight and 1:00 a.m. Under Baird’s version of the facts, he only punched Nelson a “few times” after Nelson repeatedly pushed and shoved Baird and “drove his knuckles” into his chest as he tried to prevent Baird’s ex-wife from driving while under the influence of alcohol. After Nelson damaged Baird’s television and came at Baird with a screwdriver, Baird punched him. Nelson “did not recall” damaging Baird’s property before Baird entered the motor home. Nelson admitted he held a screwdriver and someone took it away from him while inside the motor home. The record establishes that the jury could have concluded that Baird acted in self-defense and therefore there is a reasonable likelihood that the error had a significant effect on the jury’s verdict. Therefore, we conclude the plain error was prejudicial and affected the outcome of the case and cannot be considered harmless. Baird has established the third and final prong of the plain-error test.

Finally, we consider whether we should address this error to ensure fairness and the integrity of the judicial proceedings. Id. at 740. The court instructed the jury that Baird had a duty to retreat. It is undisputed that Baird was able to exit the motor home. On this record, we cannot conclude that the jury ever looked beyond the undisputed fact that Baird could have retreated. Moreover, Baird’s version of the facts was not farfetched. Id. at 742 (concluding it would be a miscarriage of justice to grant Griller new trial because jury considered and rejected Griller’s farfetched version of events). Under these circumstances, fairness requires that Baird be afforded an opportunity to present his version of the facts to a jury under the proper instructions. See State v. Olson, 482 N.W.2d 212, 216 (Minn.1992) (defendant entitled to new trial unless appellate court concludes beyond a reasonable doubt that district court’s erroneous instruction had no significant impact on jury).

II.

Baird also argues that the district court erroneously ordered him to pay for the victim’s loss of wages after June 30 because the state did not prove that Nelson would have been employed beyond that date. Because we reverse Baird’s third-degree assault conviction and remand for a new trial, and because the restitution for lost wages resulted from Nelson’s jaw injury that occurred inside the motor home as a result of the alleged third-degree assault incident, we vacate Baird’s duty to pay restitution. Depending on the result of the new trial, the district court may reconsider the restitution award.

DECISION

Because the district court erroneously instructed the jury that Baird had a duty to retreat against a co-occupant when he was in his own home, and the error was not harmless, we reverse Baird’s third-degree assault conviction, and Baird is entitled to a new trial. The award of restitution is vacated and may be reconsidered by the district court after the new trial if restitution is then appropriate.

Reversed and remanded.

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

      . Baird concedes that the jury could have convicted him of fifth-degree assault for the conduct occurring outside the motor home and does not challenge that conviction.

      . In Glowacki, the supreme court reviewed the appellant’s claim of error even though he did not object at trial. Glowacki, 630 N.W.2d at 398. In Glowacki, the defendant did, however, preserve his objection by moving for a new trial. Id. The supreme court noted that the district court had relied on a case it reversed two months before the trial, and “the error was one of fundamental law or controlling principle.” Id.


author: VANDE WALLE, Chief Justice.

text:
    2002 ND 36
    STATE of North Dakota, Plaintiff and Appellee, v. Lance E. HIRSCHKORN, Defendant and Appellant.
    No. 20010094.
    Supreme Court of North Dakota.
    Feb. 21, 2002.

      Cynthia Mae Feland, Assistant States Attorney, Bismarck, for plaintiff and ap-pellee.
    Wayne D. Goter, Bismarck, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Lance E. Hirschkorn appealed from a criminal judgment entered on a jury verdict finding him guilty of class B felony gross sexual imposition for engaging in sexual contact with a female under the age of 15 years. We conclude the trial court abused its discretion in admitting the child’s hearsay statements about sexual abuse into evidence because the prosecutor failed to satisfy the foundational requirements for admitting the statements under N.D.R.Ev. 803(24). We further conclude admission of the evidence was obvious error affecting Hirschkorn’s substantial rights under N.D.R.Crim.P. 52(b), and we reverse and remand for a new trial.

I

[¶ 2] On October 21, 1999, a mother was with her children in their home when she discovered her five-year old daughter in a bedroom with her pants pulled down and a Ken doll between her legs. When the mother asked her daughter what she was doing, the daughter told her “Uncle Lance told me not to tell.” The mother called “Ask-A-Nurse” for assistance, and was told the information would be reported to the Burleigh County Sheriffs Department. Deputy Sheriff Gary Schaffer contacted the mother and arranged a meeting with Deb Osowski, a forensic interviewer at a Bismarck child advocacy center. During Osowski’s October 27, 1999 interview with the child, the child indicated “Uncle Lance” had touched her “privates” in his bedroom at her grandmother’s ranch near Wing. Lance Hirsch-korn lives with his mother near Wing and is the younger brother of the child’s father, who is divorced from the mother.

[¶ 3] On October 29, 1999, law enforcement officers obtained a warrant to search Hirschkorn’s residence, seized videotapes from his bedroom, and arrested Hirsch-korn. Hirschkorn was interviewed by Schaffer upon his arrival at the Sheriffs Department, and answered “I guess” or “I suppose” to questions tending to implicate him in having had sexual contact with the child. Hirschkorn was charged with gross sexual imposition in violation of N.D.C.C. § 12.1 — 20—03(2) (a).

[¶ 4] On September 13, 2000, eight days before trial, the State moved under N.D.R.Ev. 803(24) to allow hearsay statements of the child admitted into evidence. Following a hearing on September 19, 2000, the trial court granted the motion, ruling the mother and Osowski could testify about statements the child had made to them about sexual abuse. The child testified at trial, but did not remember anyone touching her in a “bad place.” The mother and Osowski testified about what the child had told them, but the trial court did not allow admission of a videotape of Osowski’s interview with the child into evidence. Schaffer also testified, and an audiotape of his interview with Hirschkorn was played for the jury. Hirschkorn, his mother, and the child’s father were called to testify by the defense. The jury returned a guilty verdict, and Hirschkorn was sentenced to ten years imprisonment, with seven years suspended.

II

[¶ 5] On appeal, Hirschkorn argues the trial court erred in granting the State’s motion to allow the child’s hearsay statements into evidence and in allowing Schaf-fer and Osowski to testify about the truthfulness of statements made to them.

[¶ 6] At trial, Hirschkorn did not make a hearsay objection to the testimony of the mother and Osowski about what the child told them. In State v. Wiest, 2001 ND 150, ¶ 6, 632 N.W.2d 812, we held, even if a defendant objects at the pretrial hearing on a N.D.R.Ev. 803(24) motion, failure to object at trial to testimony of a child victim’s out-of-court statement regarding sexual abuse limits our inquiry to determining whether its admission into evidence constitutes obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). To establish obvious error, the defendant has the burden of showing (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law. State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658.

[¶ 7] The applicable legal rule in this case is N.D.R.Ev. 803(24):

Child’s statement about sexual abuse. An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

We apply the abuse of discretion standard of review to a trial court’s evidentiary rulings under N.D.R.Ev. 803(24), and we will not reverse unless the trial court acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. State v. Messner, 1998 N.D. 151, ¶ 13, 583 N.W.2d 109.

[¶8] Hirschkorn first argues the State’s motion was untimely because it was made only eight days before trial and he received less than 24 hours notice of the hearing on the motion. Hirschkorn claims he was prejudiced by the untimely notice because he had no time to serve subpoenas on witnesses to testify at the hearing and his defense counsel had inadequate time to prepare.

[¶ 9] Rule 803(24)(a), N.D.R.Ev., does not specify a deadline for bringing a motion to admit a child’s statement about sexual abuse, but merely requires that a hearing be held “upon notice in advance of the trial of the sexual abuse issue.” Most courts have adopted a flexible approach to the similar notice requirement under the residual exception to the hearsay rule. See 5 J. McLaughlin, Weinstein’s Federal Evidence § 807.04[2] (2nd ed.2001); N.D.R.Ev. 807. Here, Hirsch-korn’s major complaint about the timeliness of the notice is unfair surprise. The proper remedy for unfair surprise is a continuance. State v. Gross, 351 N.W.2d 428, 433 (N.D.1984). A judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation. Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790. Hirschkorn did not request a continuance. Consequently, we conclude the alleged untimeliness of the State’s motion and the hearing is not error.

[¶ 10] Hirschkorn also argues the State failed to establish a legal foundation for the use of the child’s hearsay statements. Although this Court discussed N.D.R.Ev. 803(24) in Messner, 1998 N.D. 151, 583 N.W.2d 109, we have not addressed the procedural requirements for the “hearing” contemplated by the rule, and the rule itself does not expressly set them forth. The Explanatory Note to N.D.R.Ev-. 803 states that paragraph (24) “is modeled in part after the Colorado and Utah statutes on a child victim’s out-of-court statement regarding sexual abuse.” The courts of Colorado and Utah have construed their similar rules codified in Colo.Rev.Stat. § 13-25-129 and Utah Code Ann. § 76-5-411 on various occasions, and their decisions on the subject are deserving of our consideration. See Wiest, 2001 ND 150, ¶ 7, 632 N.W.2d 812.

[¶ 11] Enactment of child-hearsay rules is intended to ensure that child abusers do not go free merely because the prosecutor is unable to obtain witnesses to the abuse other than the child, who is unable to testify about the abuse. Stevens v. People, 796 P.2d 946, 951 (Colo.1990). See also Annot., Validity, Construction, and Application of Child Hearsay Statutes, 71 A.L.R. 5th 637 (1999). While the child-hearsay rule permits the admission of otherwise inadmissible hearsay evidence in order to facilitate prosecution, the rule’s requirements are also intended to safeguard the accused’s right to confront the witnesses testifying against him. People v. Juvenile Court, 937 P.2d 758, 760 (Colo.1997). The child-hearsay rule is intended to balance the interests of the accused and the interests of the truth-seeking process. Wiest, 2001 ND 150, ¶ 7, 632 N.W.2d 812. Indicia of reliability and guarantees of trustworthiness are constitutionally required before admission of hearsay statements to preserve the Sixth Amendment’s basic interest in requiring “confrontation,” even though an accused cannot directly confront the hearsay declarant. Idaho v. Wright, 497 U.S. 805, 814-16, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Messner, 1998 N.D. 151, ¶ 12, 583 N.W.2d 109; Stevens, 796 P.2d at 952. Because- of the importance of the accused’s confrontation rights, the safeguards built into the child-hearsay rule must be strictly observed. State v. Loughton, 747 P.2d 426, 432 (Utah 1987).

[¶ 12] Although witness testimony is often given at hearings conducted under the child-hearsay rule, courts have ruled a determination that a witness’s testimony contains sufficient indicia of reliability and guarantees of trustworthiness can be made without a hearing at which witnesses testify. See Juvenile Court, 937 P.2d at 761; People v. Guajardo, 262 Ill.App.3d 747, 201 Ill.Dec. 431, 636 N.E.2d 863, 871 (1994); State v. Nelson, 725 P.2d 1353, 1355 (Utah 1986). Consequently, in People v. Bowers, 801 P.2d 511, 520 (Colo.1990), the Colorado Supreme Court ruled a trial court’s determination on reliability may be supported solely by a prosecutor’s offer of proof. See also People v. Moss, 260 Ill.App.3d 272, 196 Ill.Dec. 685, 630 N.E.2d 850, 856 (1993). We conclude the hearing in this case was not objectionable because the State proceeded with an oral offer of proof, rather than with witness testimony or sworn affidavits.

[¶ 13] Under N.D.R.Ev. 803(24)(a), the child’s hearsay statements are not admissible unless the trial court finds that “the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness.” Factors to consider include spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate. Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109. A trial court must make explicit findings as to what evidence it relied upon regarding the factors and explain its reasons for either admitting or excluding the testimony so a defendant can be assured the required appraisal has been made, and so this Court can properly perform its appellate review function. State v. Matsamas, 808 P.2d 1048, 1051 (Utah 1991); Nelson, 725 P.2d at 1356 n. 3; see also State v. Reed, 173 Or.App. 185, 21 P.3d 137, 142 (2001). Although written findings are preferred, duly recorded oral findings satisfy the requirements of the child-hearsay rule. Bowers, 801 P.2d at 518; State v. Seale, 853 P.2d 862, 871 (Utah 1993).

[¶ 14] During the hearing in this case, the prosecutor informed the court the child was five years old when she was interviewed by Osowski and the videotape of the interview was provided to defense counsel. The prosecutor told the court the Messner case was “factually very similar to this case,” explained that only Osowski and the child were present during the interview, and related Osowski’s qualifications as a forensic interviewer. The following exchange then occurred:

THE COURT: So what statements are you asking to be admitted?
MS. FELAND: The statement the child makes to the interviewer in relation to what happened to her; who touched her, where she was touched, where it happened at, whether or not it was below or above clothing, and details about the incident itself. In addition, I am asking that the statements of the mother be allowed as to how this came to light. The mother basically observed the child engaged in sexual role playing with a Ken doll and asked the child some questions and the child gave some initial responses. The mother did not get any great detail, but it shows consistencies in the type of contact that the child references both to the mother and forensic interviewer.
THE COURT: You are asking for the statements made to the forensic interviewer be admitted?
MS. FELAND: For the statements made to the forensic interviewer and those are admitted on the videotape of the child. In addition, I am asking that the statements the child made to the mother that led to the report roughly on October 21st be admitted. Those are outlined in the 960 report as well as a written statement that was provided by the mother to law enforcement. Both of those statements were provided to the defense at the time discovery was initially requested in this case.

[¶ 15] Defense counsel objected that there was an inadequate record for the court to make the findings required by the rule and argued the child’s statements given to Osowski during the interview contained “four material misstatements of fact.” After the subject of the hearing-shifted to other pretrial matters, the prosecutor continued:

As I said, this is very similar to the Messner case as to the facts. In that case there is a social worker and in this case a forensic interviewer, not like just statements made to some guy as parties to the proceeding. These are made basically to the equivalent of a law enforcement type professional, someone who does this for a living. Clearly shows reliability and I would ask the Court to admit the same.
THE COURT: ALL right.... As to the motion to allow hearsay regarding the child’s statement about sexual abuse, from the information I have here today, it appears that just the statement made to the interviewer — at this point you are asking about the mother’s statements also, is that correct?
MS. FELAND: Yes.
THE COURT: About what the child told her?
MS. FELAND: And those would be, those were provided to the defense. Both in the 960 report it indicates that the mother said this is what the child told her, and there is also a written report that the mother provided to law enforcement and included in discovery and when I saw and observed this. I asked the child where she learned this or seen this. And it would be strictly limited to those statements. Nothing outside of the statements that have already been provided to the defense.
THE COURT: There may be statements provided to the defense, but what’s the guarantee of the trustworthiness?
MS. FELAND: Basically again look at the time, content. The time again is in close proximity to when this occurred. The content is consistent with the information that was provided to the forensic interviewer. It’s not like getting inconsistent statements here. The child’s mother has basically had no other discussions with the child in any manner regarding this with the exception of the initial conversation which led up to this report.
THE COURT: Okay. As far as the statements are concerned under Rule 803, based on the information they have here today, it appears that there are sufficient guarantees of trustworthiness regarding time, content and circumstances and the Court would allow those statements....

[¶ 16] Although apparently provided to defense counsel, the videotape of the Osowski interview, the mother’s report to law enforcement, and the “960 report” were not admitted in evidence, do not appear in the record, and were not reviewed by the trial court.

[¶ 17] The trial court’s admissibility evaluation failed to comply with the requirements of N.D.R.Ev. 803(24) in several respects. The court did not even know the verbatim content of the out-of-court statements so an evaluation of their reliability could be made. See State v. Reiners, 803 P.2d 1300, 1306 (Utah App.1990). The prosecutor’s offer of proof does not contain any specific factual circumstances that would be necessary to evaluate whether “the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness.” N.D.R.Ev. 803(24)(a). No details were provided to the court concerning spontaneity and consistent repetition, the mental state of the child, the use of terminology of a child of similar age, and a lack of motive to fabricate. See Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109. The prosecutor’s analogy to Messner and general assurances to the court that “time ... is in close proximity to when this occurred” and “[t]he content is consistent with the information that was provided to the forensic interviewer,” without providing the court with any of the underlying factual circumstances, were insufficient to support the admission of the child’s hearsay statements.

[¶ 18] A trial court must make an in-depth evaluation of the proposed testimony. Nelson, 725 P.2d at 1355 n. 3. A trial court should not, as did the trial court here, merely quote the terms of the rule and order the testimony admitted, but should make specific findings of the facts relevant to reliability and trustworthiness and explain how these facts support the conclusion of admissibility. See Matsamas, 808 P.2d at 1052. Although nondetailed findings might suffice when there is an adequate factual basis in the offer of proof to support the trial court’s determination, see Bowers, 801 P.2d at 521-22, that is not the situation in this case. Moreover, in reviewing a trial court’s evidentiary ruling under N.D.R.Ev. 803(24), we are limited to reviewing the proponent’s offer of proof made at the pretrial hearing and may not consider the entire evidence admitted during the trial to support the earlier ruling. In Bowers, 801 P.2d at 518, the Colorado Supreme Court so ruled when interpreting Colo. Rev.Stat. § 13-25-129, upon which N.D.R.Ev. 803(24) is modeled:

The text of section 13-25-129 also contemplates that the trial court’s ruling, which obviously will affect the trial preparation of the party adversely affected by the ruling, will be based solely on those matters presented to the court at the in-limine hearing. Indeed, if this were not the legislative intent, the in-limine hearing would serve no purpose at all and there would be no reason for mandating it by statute.

[¶ 19] We conclude the trial court abused its discretion in admitting the child’s hearsay statements into evidence. Because the prosecutor’s motion was so lacking in factual support, we further conclude the error is plain because it is “a clear or obvious deviation from an applicable legal rule ...” Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658.

[¶ 20] To affect substantial rights, a plain error must have been prejudicial, or have affected the outcome of the proceeding. State v. Erickstad, 2000 ND 202, ¶ 22, 620 N.W.2d 136. Analyzing obvious eiTor requires examination of the entire record and the probable effect of the alleged error in light of all the evidence. State v. Glass, 2000 ND 212, ¶ 11, 620 N.W.2d 146.

[¶ 21] In this case, credibility was a crucial issue. There were neither eyewitnesses nor direct physical evidence in the form of a physical examination conducted on the child. The child testified and could not remember anyone touching her in a “bad place.” Hirschkorn testified and denied touching the child’s vagina. Although the jury heard the audiotape of Schaffer’s interview with Hirschkorn in which Hirschkorn answers “I guess” or “I suppose” to questions tending to implicate him in the crime, Schaffer described Hirsch-korn’s responses as “subtle admissions.” Hirschkorn testified about the circumstances surrounding the interview. Hirschkorn, who was 23 years old at the time of trial, testified he “just [went] along” with what Schaffer was telling him because he assumed the sexual contact must have occurred accidentally while “wrestling ... or horsing around” with the child. Hirschkorn further testified he was “scared” and “wanted to get out of the interview room.” The only other evidence directly linking Hirschkorn with committing the crime was the inadmissible hearsay testimony of the mother and Osowski about what the child had told them. On this record, we conclude it is probable the inadmissible hearsay testimony affected the outcome of the proceedings.

[¶ 22] Even if the defendant meets the burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within our discretion, and we will exercise that discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Miller, 2001 ND 132, ¶25, 631 N.W.2d 587. In view of the importance of a defendant’s confrontation rights, the total lack of factual support for admission of the hearsay statements under N.D.R.Ev. 803(24), and the probability that admission of the hearsay statements affected the outcome of the trial, we exercise our discretion to correct the error and conclude Hirschkorn is entitled to a new trial.

[¶ 23] Because the child-hearsay issue is dispositive of this appeal, it is unnecessary to address the other issues raised by Hirschkorn. See State v. Flamm, 351 N.W.2d 108, 109 (N.D.1984). We need not consider issues not necessary to our decision. See Farmers State Bank of Leeds v. Thompson, 372 N.W.2d 862, 865 n. 3 (N.D.1985).

Ill

[¶ 24] The criminal judgment is reversed and the case is remanded for a new trial.

[¶ 25] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ„ concur.

      . In an in-chambers conference on the morning of the trial, the trial court ruled the jury would not be allowed to watch the videotape of the Osowski interview, explaining "I have not seen this video. I don’t know what is on it. I have no idea what is on it, so I wouldn't let it come in.”