author: ANDERSON, RUSSELL A., Chief Justice.

text:
    Michael C. FRANCIS, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    Nos. A05-190, A06-940.
    Supreme Court of Minnesota.
    April 5, 2007.

      John Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Michael C. Francis, Bayport MN, Appellant Pro Se.
    Mike Hatch, Attorney General, St. Paul MN; and Michael Richardson, Assistant Hennepin County Attorney, Minneapolis MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Michael C. Francis was convicted and sentenced in Hennepin County District Court for the crimes of first-degree premeditated murder for the death of Pamela Ragland and attempted first-degree premeditated murder for the injury of Marvin Pate. On appeal, Francis claims that the evidence was insufficient to support the convictions and that he was deprived of a fair trial. We affirm.

On May 24, 2004, at approximately 10:50 p.m., Marvin Pate and his girlfriend, Pamela Ragland, were sitting in Ragland’s car which had been parked on the east side of the 3300 block of Portland Avenue, a one way southbound street in South Minneapolis. Pate got out of the car and was standing by the open front passenger door, talking to Ragland, who was in the driver’s seat. He noticed a blue Chevrolet Tahoe approach from the north and watched as it stopped in front of him. He looked at the Tahoe, trying to see who was driving, and saw Francis in the driver’s seat. Pate then saw Francis, who was 3 or 4 feet away from Pate, raise a gun and begin firing. Pate realized he had been shot, tried to grab the door, and fell to the ground, first to his knees and then face down. As Pate lay on the ground, he saw the Tahoe, with specialty tire rims and exhaust pipes, speeding away.

Law enforcement officers and medical responders arrived within minutes. When asked who shot him, Pate replied, “It was a blue truck.” In the ambulance en route to the hospital, when again asked who shot him, Pate said that it was “Mike.” Pate had been shot in the hip, abdomen, and back, and underwent emergency surgery. Ragland was shot once in the head and died a few hours later. In police interviews at the hospital and later at his home, Pate said that “Mike” shot him, that Mike drove a blue Tahoe with specialty rims, that he and Mike had argued over those rims sometime in February of 2004, and that Mike had threatened him. Pate gave police a physical description of Mike and later identified appellant Michael Francis as the shooter from a photographic lineup.

During the investigation, the police received a date- and time-stamped videotape from a private surveillance company with a camera trained on the intersection of 31st Street and Portland Avenue. The tape showed an image of a blue Tahoe turning from 31st onto Portland shortly before the shooting. The police obtained the license plate number for a blue Tahoe that matched the description given by Pate. The Tahoe was registered to the mother of Francis’s girlfriend who lived relatively close to the area of the shooting. The vehicle was subsequently stopped, towed, and searched pursuant to a warrant. Francis was driving the vehicle when it was stopped.

Francis was indicted by grand jury for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2006); first-degree intentional drive-by shooting murder, Minn.Stat. § 609.185(a)(3) (2006); attempted first-degree premeditated murder, Minn.Stat. § 609.17, subd. 1 (2006); and attempted first-degree intentional drive-by shooting murder, Minn.Stat. § 609.17, subd. 1 (2006). At trial, in addition to the evidence of Pate’s identification of Francis as the shooter, the state presented evidence of Francis’s cell phone records which showed frequent use in the hour before the shooting, a 15-minute .gap around the time of the shooting, and then the resumption of cell-phone use. The records also indicated that calls placed from Francis’s cell phone shortly before the 15-minute gap were processed through the cell-site tower located within the general area of the shooting. A Portland Avenue resident testified that after hearing gunshots on May 24, 2004, he saw an SUV with a blue glow on the dashboard pass by his home. On examination at the forensic garage, Francis’s Tahoe was found to have an aftermarket stereo system that would emit a blue light. Forensic evidence indicated that the victims were shot with a .44-caliber revolver, “one of the bigger caliber handguns.”

Francis testified on his own behalf and denied shooting either Pate or Ragland. Although he could not recall exactly what he was doing on the evening of May 24, 2004, he testified that his “routine” between 9:00 p.m. and 11:00 p.m. on a school night was to pick up his girlfriend at her mother’s home in South Minneapolis and drive with her to his home in St. Louis Park or to meet her in St. Louis Park. He denied threatening Pate and said that the argument over tire rims “never took place.” He had no idea why Pate would identify him as the shooter. Francis also elicited testimony from an auto mechanic familiar with his Tahoe to cast doubt on evidence that his vehicle was involved in the shooting.

The jury found Francis guilty as charged. He was sentenced to 180 months for the attempted first-degree premeditated murder of Pate and a consecutive mandatory life term for the first-degree premeditated murder of Ragland. Proceeding pro se on appeal, Francis argues that the identification evidence was insufficient to support the verdicts and that he was deprived of a fair trial by prosecutorial misconduct, evidentiary errors, incomplete jury instructions, lack of effective assistance of counsel, and other improprieties at trial. He also asserts the improper denial of an evidentiary hearing on his postconviction claims.

I.

Francis contends that the evidence was insufficient to support the jury’s verdicts. In reviewing a challenge to the sufficiency of the evidence, “[o]ur responsibility extends no further than to make a painstaking review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt is sufficient to permit the jury to reach that conclusion.” State v. Ellingson, 283 Minn. 208, 211, 167 N.W.2d 55, 57 (1969).

Francis initially argues that the victim’s identification of him as the shooter was uncorroborated and unreliable. Assessing the credibility of a witness and the weight to be given a witness’s testimony is exclusively the province of the jury. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990). Here there'was legally sufficient evidence of identity, including the victim’s testimony, the surveillance videotape, cell phone records, and evidence of animosity. Francis also contends that the evidence was insufficient to establish premeditation and intent to kill Ragland, apparently challenging the application of transferred intent to first-degree premeditated murder. But “[p]remeditation will transfer with intent if the perpetrator premeditated the murder of an intended victim but accidentally killed an unintended victim.” State v. Hall, 722 N.W.2d 472, 477 (Minn.2006).

II.

Prosecutorial Misconduct. Francis contends that he is entitled to a new trial because the prosecutor engaged in serious misconduct at trial. As a general rule, we reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006).

Francis initially claims that the prosecutor elicited inadmissible evidence. On direct examination, the chief investigating officer made reference to receiving help from a gang-unit officer and to the retrieval of Francis’s photograph from a computer-system’s arrest records. It is improper for a prosecutor to ask questions that are calculated to elicit or insinuate an inadmissible and highly prejudicial answer. State v. Henderson, 620 N.W.2d 688, 702 (Minn.2001). The prosecutor has a duty to brief the state’s witnesses to avoid referring to inadmissible evidence. See State v. Ray, 659 N.W.2d 786, 745 (Minn.2003). The district court found the elicitation of the objectionable comments inadvertent and provided curative instructions to the jury.

Francis asserts that the prosecutor improperly cross-examined a witness for the defense. On cross-examination of a defense character witness who had testified about Francis’s character as non-violent, the prosecutor inquired into specific acts of violence. When the defense introduces evidence of good character, on cross-examination the prosecutor may inquire “into relevant specific instances of conduct.” Minn. R. Evid. 405(a). The purpose of allowing inquiry into specific acts on cross-examination is to test the knowledge and credibility of the witness. U.S. v. Monteleone, 77 F.3d 1086, 1089 (8th Cir.1996). In cross-examination under Rule 405, “the whole process must be carefully regulated,” including careful limiting instructions “as to the limited purposes for which any cross-examination of defense character witnesses is permitted,” as well as the denial of

inquiry into past incidents under [Rule 403] if probative value seems substantially outweighed by the risk of unfair prejudice — by the risk, for example, that the jury will draw the one forbidden inference that the incidents prove propensity, hence behavior in the case at hand, rather than taking them as affecting the weight to be accorded to the testimony of the character witness.

1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 121 (2d ed.1994). Here, the district court confined the prosecutor’s cross-examination of the defense character witness to the scope of the direct examination and also provided limiting instructions to the jury.

Francis also claims that the prosecutor engaged in misconduct in closing argument by referring to Francis’s drug dealing and disparaging his character. In reviewing claims of prosecutorial misconduct in closing argument, we consider the closing argument as a whole. State v. Powers, 654 N.W.2d 667, 678-79 (Minn.2003). Although the prosecutor made repeated reference to drug dealing in her closing argument, her remarks were based on Francis’s testimony. During direct examination, Francis testified that he earned a living selling marijuana from the time he awoke in the morning “all the way to between nine and eleven.” He said he conducted his business through use of his cell phone and driving to meet somebody “somewhere, maybe in south Minneapolis.”

The prosecutor, however, also stated:

He’s a small man that maybe needs a big truck with some expensive, shiny rims on it to make him feel like a big man and who needs a gun in his hand to make him feel like the big man that he’s not, ⅜ * * he’s a person that thinks he’s smart, that thinks he can outwit the system, outwit the police, that even if he gets caught with drugs he’s going to get out of it by just taking some of his big money he makes and paying a lawyer five grand and walking away from it. * * * That’s the kind of arrogance he showed you on the witness stand.

Gratuitous character attacks are improper during closing argument. Ture v. State, 681 N.W.2d 9, 19-20 (Minn.2004). While these comments were likely improper, in considering the argument as a whole, they were not so unduly prejudicial as to deprive Francis of the right to a fair trial.

Evidentiary Issues. Francis claims a new trial is necessary because of evidentiary errors. We review the district court’s evidentiary rulings for an abuse of discretion. State v. Gutierrez, 667 N.W.2d 426, 436 (Minn.2003). A new trial “is warranted only when the error substantially influences the jury’s decision.” State v. DeShay, 669 N.W.2d 878, 888 (Minn.2003) (internal citation omitted).

Francis challenges the admission of his cell phone records and the surveillance videotape as unreliable and therefore irrelevant. Evidence is relevant if it logically tends to prove or disprove a material fact. Minn. R. Evid. 401. The admission of this evidence was based upon sufficient foundation and relevant to identity. It was for the jury to determine both the weight and the credibility of this evidence. See State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985).

Francis also asserts error in the admission of testimony of a witness who had been diagnosed with “bipolar schizophrenia.” “Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence,” except that “[p]ersons of unsound mind and persons intoxicated at the time of their production for examination are not competent witnesses if they lack capacity to remember or to relate truthfully facts respecting which they are examined.” Minn.Stat. § 595.02, subd. 1(f) (2006). Here, the witness’s illness and response to medication were thoroughly explored by defense counsel on cross-examination and the record reflects that the witness was plainly competent to testify.

Francis asserts error in the exclusion of his proffered evidence of an alternative perpetrator. Alternative perpetrator evidence is inadmissible absent some evidence having an inherent tendency to connect the alternative perpetrator with the crime. See State v. Jones, 678 N.W.2d 1, 16 (Minn.2004). Francis put Ragland’s former boyfriend forward as an alternative perpetrator, but Francis did not have sufficient evidence to connect the former boyfriend to the crime so as to satisfy the alternative perpetrator standard.

Finally, Francis asserts error in the district court’s rulings in allowing the prosecutor to impeach him with a conviction for misdemeanor possession of a firearm and in limiting his inquiry into Pate’s pretrial confinement. We need not determine whether these rulings were an abuse of discretion where, even cumulatively in light of the entire record, error, if any, was not prejudicial.

Jury Instructions. Francis asserts error in the denial of his request for jury instructions on lesser-included second-degree unintentional murder offenses. An instruction on a lesser-included offense should be given “ ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.’ ” State v. Harris, 713 N.W.2d 844, 849 (Minn.2006) (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). The inquiry at trial and on appeal “is made by reviewing the evidence actually adduced at trial in the light most favorable to the party requesting the instruction.” Id. (citing State v. Dahlin, 695 N.W.2d 588, 597 (Minn.2005)). If a lesser-included-offense instruction was warranted by the evidence but denied, the analysis proceeds to whether the defendant was prejudiced. See Dahlin, 695 N.W.2d at 599.

Here, where the jury was given a lesser-included-offense instruction as to second-degree intentional, unpremeditated murder and attempt of the same, yet found Francis guilty of first-degree premeditated murder and attempt of the same, we conclude that Francis was not prejudiced by the court’s refusal to give instructions as to unintentional murder. See State v. Shepherd, 477 N.W.2d 512, 514-516 (Minn.1991) (holding that when the jury was instructed as to first-degree premeditated murder, second-degree intentional murder, and first-degree heat of passion manslaughter, and the jury returned a verdict of first-degree premeditated murder, the defendant was not prejudiced by the court’s failure to give a second-degree felony murder instruction).

Ineffective Assistance of Counsel. Francis claims he was deprived of effective assistance of counsel, asserting that counsel failed to investigate his case, failed to call alibi witnesses, failed to prepare his character witness, failed to question him carefully on direct examination and otherwise failed to defend him adequately at trial. To establish this claim, Francis must show that counsel’s “representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Opsahl v. State, 677 N.W.2d 414, 420-21 (Minn.2004). “What evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel.” State v. Mems, 708 N.W.2d 526, 534 (Minn.2006) (citing State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999)). As the postconviction court noted, Francis’s allegations of inadequate legal representation are refuted by the record and otherwise fail to show that had trial counsel presented additional evidence and otherwise addressed Francis’s concerns, the result would have been different.

Other Improprieties at Trial. Francis challenges the seizure of his Tahoe, the jury selection process, the admission of the photographic lineup and the admission of “blurry”- photographs; he asserts discovery violations, juror misconduct, and the denial of a speedy trial; and he also states that his convictions rest on invalid laws and that consecutive sentencing is in error. After a careful examination of these claims, we find them meritless.

III.

Francis contends that the postcon-viction court abused its discretion in denying him an evidentiary hearing. A petition for postconviction relief must contain “a statement of the facts and the grounds upon which the petition is based.” Minn. Stat. § 590.02, subd. 1(1) (2004). An evi-dentiary hearing is not required unless facts are alleged that, if proved, would entitle the petitioner to relief. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). A petitioner’s allegations must be more than argumentative assertions without factual support. See Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). Francis contends that an evidentiary hearing was needed to evaluate the claims he raised in his postconviction petition and now on appeal to this court. We agree •with the postconviction court’s denial of a hearing in that the facts as alleged would not entitle Francis to relief.

In conclusion, we are satisfied from our meticulous review of the trial record that Francis was properly convicted and received a fair trial. We further conclude that the denial of postconviction relief without an evidentiary hearing was not an abuse of discretion.

Affirmed.

      . After a brief was filed by Francis’s appellate attorney, Francis discharged his attorney. We granted his request to proceed pro se and stay the appeal to allow him to institute post-conviction proceedings. Following the completion of those proceedings, Francis filed a notice of appeal from the order denying post-conviction relief. We vacated the stay and consolidated the appeals.


source: Caselaw Access Project

author: GILDEA, Justice. HANSON, Justice ANDERSON, Paul H., J.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Quanartis DaLee TURNAGE, Appellant.
    No. A06-1124.
    Supreme Court of Minnesota.
    April 5, 2007.

      Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant Dakota County Attorney, Hastings, MN, for Respondent.
   OPINION

GILDEA, Justice.

Following a jury trial, appellant Quanar-tis DaLee Turnage was convicted of two counts of first-degree murder and one count of intentional second-degree murder for the death of Wa Vang. The district court sentenced him to life in prison without the possibility of parole. We affirmed Turnage’s convictions and sentence. Turnage v. State, 708 N.W.2d 535, 537 (Minn.2006). Turnage’s brother, Quantez Tur-nage, testified at trial against Turnage, pursuant to a plea agreement. While Tur-nage’s direct appeal was pending, Quantez recanted the testimony he gave at Tur-nage’s trial. Turnage filed a petition for postconviction relief, which the postconviction court denied without holding an evi-dentiary hearing. Turnage appeals the postconviction court’s order. We affirm.

The facts surrounding the murder are set forth in our opinion affirming Tur-nage’s conviction and we set forth only those facts necessary to resolve this appeal. See 708 N.W.2d at 537-41. As noted in our earlier opinion, Vang, the victim, was with Turnage, Quantez, and Damien Robinson the night he was murdered. All three men were prosecuted for their participation in' the crime, but Turnage was the only one of the three to go to trial. Quantez and Robinson both pleaded guilty to intentional second-degree murder and received sentences of 339 and 299 months, respectively. Both testified for the state at Turnage’s trial, but gave differing accounts of what had happened. Both men testified that Turnage participated in killing Vang. But they disagreed as to the level of their own involvement in the murder and each implicated the other.

According to Quantez, he had fallen asleep while he, Turnage, Vang, and Robinson were together in Robinson’s car. When he awoke, Robinson’s car was parked at the Cedarview Commons in North St. Paul, an apartment complex in which Quantez used to live. Quantez noticed that S.R., a woman Robinson was dating, was standing by the car and asking Robinson for money. Later,. Turnage’s friend, M.E., came to the car and talked to Turnage. Quantez then went back to sleep.

When Quantez awoke for the second time, he noticed the car was pulling into a long driveway. He also noticed that Robinson and Vang were arguing and tussling. Subsequently, Robinson and Turnage got out of the car, and Turnage let Quantez out. Quantez initially testified that when Vang got out of the car, Robinson hit Vang in the head with a miniature bat, and Vang took off running. But Quantez also provided a different account, explaining that after Turnage got out of the car, Turnage “leaned in” and swung a straight razor toward Vang. Quantez tried to grab the razor and got cut.

Quantez also testified that both Turnage and Robinson had knives in their hands and they both chased Vang. After a while, Turnage came back to the car and said, “This motherf... .r. won’t die.” Turnage then went to the trunk and ran back out into the field. Eventually, Turnage returned to the car, went to the trunk again, closed the trunk, hopped in the car, and they sped off. Quantez estimated that Turnage and Robinson were in the field with Vang for 30 to 40 minutes. After returning to their apartment, Quantez testified that Turnage collected the clothes that Robinson and Quantez had worn and put them in a bag with the weapons. Tur-nage and Robinson then left with the bag.

Robinson gave a different account of the roles that he, Turnage, and Quantez played in Vang’s death. According to Robinson, he got out of the car at one point and Turnage let Quantez and Vang out of the car. Turnage then said “plug him” and stabbed Vang in the chest with a knife. Vang took off running, and Quantez tried to stab Vang with a knife. Turnage and Quantez then chased after Vang. After Quantez tackled Vang, both Turnage and Quantez stabbed Vang.

Robinson also testified that prior to the murder, Turnage had made a number of phone calls on Robinson’s cell phone, including a call to M.E. in which Turnage asked M.E. for some knives. And Robinson stated that at the Cedarview Commons apartment complex, M.E. came out and handed Turnage a brown plastic bag.

Several other witnesses also testified at the trial. M.E. testified that at about 7:25 p.m., he received a phone call from Robinson’s phone and an unknown male voice asked for some knives. M.E. brought a chef knife and a boning knife in a tan bag, went downstairs and handed the bag to the person sitting on the passenger side of Robinson’s car. M.E. claimed he did not recognize anyone in the car because it was dark. At around 10 p.m., M.E. received another call from Robinson’s phone where a person whose voice he did not recognize said somebody’s fingers were cut and asked how to bandage a deep cut.

S.R. testified that, on the evening of the murder, she was at M.E.’s apartment and saw M.E. leave the apartment. She went out and saw Robinson, Turnage, and Quan-tez in Robinson’s car. S.R. said that she saw M.E. standing on the side of the car talking to Robinson.

The state also called three witnesses who were held in custody with Turnage at various points before his trial. All three testified to statements Turnage made to them in which he implicated himself in the murder. Finally, while housed at the Ramsey County Workhouse from March 4 to March 18, 2004, Turnage made several phone calls to Quantez and M.E. that were tape recorded by the facility. The recordings of these phone calls were played for the jury, and in these calls, Turnage provided additional evidence of his involvement in the murder.

Turnage testified in his defense. He denied killing Vang and testified that he was not present when it happened. According to Turnage, he was doing laundry at a laundromat on the night of the murder. At around 8 p.m., after washing several loads of clothes, he went to a liquor store and bought some alcohol. He then talked to a friend on the street for about 10 to 15 minutes, and went back to his apartment. At around 9 or 9:30 p.m., Tur-nage received a call from a friend whom he then met in the alley behind Turnage’s apartment building. They sat in a car, talked, and smoked marijuana together. After that, Turnage went back to the apartment. Soon after, Robinson called Turnage and asked Turnage to meet him in 10 minutes. After Turnage got into Robinson’s car, Quantez showed his bleeding hand to Turnage. Turnage asked what had happened, and Robinson told him “dude gone, we had some business, dude gone.”

The jury found Turnage guilty of two counts of first-degree murder and one count of intentional second-degree murder for the death of Wa Vang. The district court convicted Turnage and sentenced him on the first-degree murder conviction. Turnage argued on appeal that (1) the district court erred in admitting tape recordings of calls Turnage made from the workhouse; (2) there was insufficient evidence to support his conviction; and (3) the district court erred in its jury instructions. Turnage, 708 N.W.2d at 537. We affirmed Turnage’s convictions and the sentence of life in prison without the possibility of parole. Id.

On October 19, 2005, while Turnage’s direct appeal was pending, Quantez signed a handwritten recantation of his trial testimony. The statement says in relevant part that “the [testimony] given at the [trial] of Qúanartis Turnage was lies given only because of a promise of less time. * * * Qúanartis Turnage had no knowledge of this crime other than what I told him after it became public.”

Turnage filed a petition for postconviction relief based solely on Quantez’s recantation. The petition requested a new trial or an evidentiary hearing to establish that a new trial is warranted. The postconviction court held a hearing to determine whether Turnage’s petition warranted a new trial or an evidentiary hearing. Following the hearing, the court issued an order denying both a new trial and an evidentiary hearing. Turnage appeals the postconviction court’s order, requesting that we either grant a new trial or remand to the postconviction court for an eviden-tiary hearing to determine whether a new trial is appropriate.

I.

The question presented in this appeal is whether Turnage is entitled to a new trial, or at a minimum to an evidentiary postcon-viction hearing, based on Quantez’s recantation. Turnage has the burden of proving that he is entitled to the relief requested. Minn.Stat. § 590.04, subd. 3 (2006).

We apply a three-prong test known as the Larrison test to determine whether a petition for postconviction relief warrants a new trial based on recantation of trial testimony. Ferguson v. State, 645 N.W.2d 437, 442 (Minn.2002) (citing Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928), overruled by United States v. Mitrione, 357 F.3d 712, 718 (7th Cir.2004) (modifying test)). ■ Under the Larri-son test, a petitioner is entitled to a new trial due to witness recantation of trial testimony if

(1) the court is reasonably well-satisfied that the testimony given by a material witness was false; (2) * * * without the testimony, the jury might have reached a different conclusion; and (3) * * * the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.

Williams v. State, 692 N.W.2d 893, 896 (Minn.2005); Hooper v. State, 680 N.W.2d 89, 94 (Minn.2004). The first two prongs are compulsory, but the third prong is not required in order to grant a new trial. Opsahl v. State (Opsahl III), 710 N.W.2d 776, 782 (Minn.2006). The postconviction court determined that Turnage did not meet either the first or the second Larri-son prong. We review these determinations of the postconviction court for an abuse of discretion. Williams, 692 N.W.2d at 896.

A. First Larrison Prong

In its order denying postconviction relief, the court stated that Quantez had no “disincentive” to recant his trial testimony. Therefore, the court concluded that it was not convinced that Quantez’s testimony at trial was false. Turnage argues that the court abused its discretion by not holding an evidentiary hearing to determine Quan-tez’s credibility before drawing conclusions about Quantez’s trial testimony.

The showing a postconviction petitioner must make in order to receive an evidentiary hearing is lower than the showing required for a new trial. Opsahl v. State (Opsahl II), 677 N.W.2d 414, 423 (Minn.2004). A hearing is required unless “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2006). Any doubts by the court about whether to hold an evidentiary hearing should be resolved in favor of the party requesting the hearing. Ferguson, 645 N.W.2d at 446.

In Wilson v. State, 726 N.W.2d 103 (Minn.2007), we reversed the district court’s denial of an evidentiary hearing based, in part, on a witness’s recantation of trial testimony. We determined that an evidentiary hearing was appropriate because it was “difficult if not impossible to test [the recanting witness’s] conflicting statements without examining [the recanting witness] under oath.” Id. at 107. We concluded that absent a hearing, “the post-conviction court cannot make a judgment about which story is true and which is false.” Id. We reiterate here what we said in Wilson and in Ferguson regarding the necessity of an evidentiary hearing to resolve credibility issues. But because our analysis of the second Larrison prong is dispositive of this appeal, we do not decide whether the postconviction court abused its discretion under the first Larrison prong.

B. Second Larrison Prong

In its order denying postconviction relief, the postconviction court concluded that even if Quantez had not testified at Turnage’s trial, “the jury would still have had a sufficient factual basis to reach the same verdict.” Turnage argues that the court applied an incorrect legal standard for the second Larrison prong. Specifically, Turnage argues that it does not follow from the postconviction court’s “sufficient factual basis” finding that the jury might not have reached a different verdict without Quantez’s testimony, which is the correct focus of the second Larrison prong. We review the postconvietion court’s legal determinations de novo. Williams, 692 N.W.2d at 896.

We agree with Turnage that the postconviction court’s formulation of the second Larrison prong was erroneous insofar as it seemed to focus its inquiry on whether there was sufficient evidence to convict Turnage even without Quantez’s testimony. Under the second Larrison prong, the court is to ask whether the petitioner has demonstrated “that without the [recanting witness’s] testimony, the jury might have reached a different conclusion.” Williams, 692 N.W.2d at 896; see also Hooper, 680 N.W.2d at 96 (affirming the postconviction court’s holding that second prong not met because “even without [the recanting witness’s] testimony, the strength of the other evidence presented at trial was such that the jury would not likely have reached a different conclusion”); cf. Opsahl II, 677 N.W.2d at 424 (holding that second prong was met because of the seven witnesses who testified for the state in a largely circumstantial case, the testimony of five of them was either formally recanted or otherwise called into doubt in postconviction proceedings). As these cases make clear, the second Larrison prong does not ask whether the evidence was sufficient to convict the defendant in the absence of the recanted testimony. The question instead is whether the jury might have found the defendant not guilty if the recanting witness had not testified.

Before turning to an analysis of this question, we first address the point raised in the dissent. The dissent concludes that Quantez’s recantation needs to be analyzed under both the Larrison test for recanting witnesses and under the test for newly discovered evidence set forth in Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). The dissent also seems to suggest that we should reconsider our reliance on Larrison by noting that several jurisdictions do not follow it, and arguing that Larrison does not adequately address circumstances created where there is a recantation plus the addition of new exculpatory evidence. The dissent’s thoughtful approach is not applicable to this case. Thus, we need not, and we do not, decide whether this approach should be followed if we were presented with a case where the petitioner provides evidence that a trial witness has recanted trial testimony and, in addition, offered a new version of the facts.

The dissent’s conclusion that this case needs to be analyzed under Larrison and Rainer is premised on the dissent’s conclusion that “it is undisputed that Quantez was present at the commission of the murder” and that “his recantation testimony provides new eyewitness exculpatory testimony.” But Turnage has the burden on postconviction to set forth facts entitling him to the relief requested. We have said that to carry this burden petitioners must do more than offer concluso-ry, argumentative assertions, without factual support. See Rainer, 566 N.W.2d at 695 (holding that anonymous letter was insufficient to entitle petitioner to hearing); see also Morrissey v. State, 286 Minn. 14, 16, 174 N.W.2d 131, 133-34 (1970) (“[PJostconviction procedures * * * do not comprehend that a petitioner may have a full evidentiary hearing on the basis of bald assertions * * *.”). The desire for finality in the criminal justice system is one reason it is appropriate to place this burden on the petitioner who seeks to set aside a conviction. See Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002) (“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”).

We conclude that Turnage has not demonstrated that his petition should be analyzed under Rainer because the recantation and petition do not include specific facts that would constitute exculpatory evidence. Cf. Wilson, 726 N.W.2d at 107 (concluding that evidentiary hearing was warranted because newly discovered evidence included affidavits from “three new witnesses” who “swear that they witnessed the shooting and that [the petitioner] was not the shooter.”). Indeed, Turnage does not even argue in his brief to this court that he is entitled to relief because Quan-tez would have, had he testified truthfully, exonerated Turnage by testifying that while Quantez was at the scene of the murder, Turnage was not. Rather, Tur-nage argues that he is entitled to relief because Quantez recanted, and asks us to assess whether “the jury might have reached a different verdict without Quan-tez Turnage’s false testimony.” In light of Turnage’s burden on posteonvietion to set forth specific facts — not conclusions — that would entitle him to relief, we conclude that the only test applicable to the recantation is the Larrison test. We turn now to the question of whether Turnage is entitled to relief under the second prong of the Larrison test.

Without Quantez’s testimony, the jury still heard an eyewitness account of the murder through Robinson’s testimony. Robinson testified that he saw Turnage stab Vang multiple times. It seems that the state’s case against Turnage would have been even stronger without Quantez’s testimony, because the inconsistency between Quantez and Robinson’s version of events would have been removed from the case.

Furthermore, Robinson’s account of events leading up to Vang’s murder was corroborated in several aspects by M.E. and S.R. M.E. testified that he received a phone call requesting knives and delivered those knives to Robinson’s car. S.R. testified that she saw Turnage in Robinson’s car, contradicting Turnage’s testimony that he was not with Robinson and Quan-tez during the car ride.

Separate from Robinson, the jury heard testimony from inmates housed with Tur-nage that Turnage implicated himself in the murder. Finally, Turnage’s phone calls made from the Ramsey County Workhouse provided further evidence of his involvement in the murder of Vang. From our review of the record we cannot say that the jury might have found Tur-nage not guilty had it not heard from Quantez.

Based on this record, we hold that while the postconviction court did not articulate the correct legal formulation of the second Larrison prong, the postconviction court’s denial of the petition was not an abuse of discretion. Because Turnage did not meet the second prong of the Larrison test, the postconviction court did not err in denying Turnage’s petition and his request for an evidentiary hearing.

Affirmed.

HANSON, Justice

(dissenting).

I respectfully dissent. I agree that Tur-nage has not yet satisfied his burden of proof to establish the right to a new trial because the presentation of the handwritten recantation statement by Quantez is not sufficient to do so. But I conclude that the recantation statement is sufficient to entitle Turnage to an evidentiary hearing. I reach that conclusion by first reformulating the analytical framework used by the majority because I believe the second Larrison factor, as traditionally applied by our court, does not completely address the issues presented by the recantation statement of Quantez.

A. The Larrison Test Deals With the Withdrawal of Incriminating Testimony But Not the Addition of New Exculpatory Testimony.

All of our previous applications of the Larrison test involved trial witnesses whose recantations only involved the withdrawal of incriminating testimony. The recantation by Quantez likewise purports to withdraw Quantez’s incriminating testimony concerning Turnage — “the [testimony] given at the [trial] of Quanartis Tur-nage was lies.” But the recantation goes one step further when it also offers exculpatory testimony — “Quanartis Turnage had no knowledge of this crime other than what I told him after it became public.” Because it is undisputed that Quantez was present at the commission of the murder, his recantation statement provides new eyewitness exculpatory testimony that supports the trial testimony of Turnage that Turnage was not even present at the commission of the murder.

The traditional framing of the second Larrison factor addresses only the withdrawal of the witness’s trial testimony. It asks whether the jury might have reached a different conclusion “without the testimony.” Larrison v. United States, 24 F.2d 82, 87 (7th Cir.1928). Where, as here, the witness offers both the withdrawal of his incriminating trial testimony and the substitution of new exculpatory testimony, the traditional Larrison test does not deal with the potential impact of the new exculpatory testimony.

This appears to be a case of first impression in Minnesota because none of our former cases involved the substitution of new exculpatory testimony. There are perhaps two options to fully address this new exculpatory testimony: (1) to reformulate the second Larrison factor to ask whether the jury might have reached a different conclusion if the witness had testified consistent with his recantation statement; or (2) to bifurcate the portion of the recantation statement that purports to withdraw the witness’s incriminating trial testimony from the portion purporting to add new exculpatory testimony — dealing with the former under the Larrison test and the latter under the standard for post-conviction claims of newly discovered evidence. See Minn. R.Crim. P. 26.04, subd. 1; Sutherlin v. State, 574 N.W.2d 428, 434 (Minn.1998). The choice between these two options is important because the standard of proof required for a new trial under Larrison is lower than that required for a new trial based on newly discovered evidence.

In choosing between these two options, we need to revisit State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn.1982), where we adopted the Larrison test for recanted testimony. In Caldwell, we contrasted the Larrison test from that applicable to newly discovered evidence, stating:

In the case of ordinary newly-discovered evidence, as, for example, where a witness comes forward who did not testify at the defendant’s trial, a heightened standard of materiality — that the new evidence “probably would produce a different result — seems to be necessary because this new evidence has not been tried. The trial court is thus required to anticipate the effect on a second trial of evidence of unknown reliability. To avoid retrying defendants in all cases in which any new evidence, no matter how dubious or inconsequential, is discovered after trial, it became necessary to impose a rule permitting new trials only in those unusual circumstances in which the newly discovered evidence probably would produce a different result. The situation is different, however, where the evidence meets the requirements of the Larrison rule. In those eases, because the witness has recanted or other discovery has been made regarding the falsity of the testimony, the court has already been able to make a determination that the testimony actually was false; thus the matter of credibility, as it concerns a second trial, is less important. The “newly-discovered evidence” in such cases, in fact, is the absence of certain testimony, rather than the addition of new material, at a second trial. Thus the court is really considering what impact the false testimony had on the jury in the first trial; under Larri-son, it is necessary only that the jury “might have reached a different conclusion” if the testimony had not been given.

Id. at 585 (footnotes omitted).

Using this framework from Caldwell, I would conclude that the better option for dealing with exculpatory evidence that is contained in a recantation statement is to separate it from the withdrawal of the incriminating testimony and subject it to the heightened standard for newly discovered evidence. The new exculpatory testimony described in Quantez’s recantation statement, like the “ordinary newly-discovered evidence” described in Caldwell, has not been “tried” and is “of unknown reliability.” Caldwell, 322 N.W.2d at 585. The heightened standard of materiality seems appropriate to avoid automatically retrying all such cases, no matter how dubious or inconsequential the new exculpatory testimony may be.

This option is also supported by the significant retreat in the federal circuit courts from the lower standard used in Larrison. Several circuits have rejected the “might have reached a different result” standard in the second Larrison factor, and replaced it with a probability standard, at least in those cases where the government did not knowingly or negligently use false testimony. See, e.g., United States v. Williams, 233 F.3d 592, 594-95 (D.C.Cir.2000); United States v. Huddleston, 194 F.3d 214, 219 (1st Cir.1999); United States v. Sinclair, 109 F.3d 1527, 1532 (10th Cir.1997); United States v. Provost, 969 F.2d 617, 622 (8th Cir.1992); United States v. Krasny, 607 F.2d 840, 844-45 (9th Cir.1979). In fact, the seventh circuit has itself overruled this aspect of Larrison and adopted a “reasonable probability” test. United States v. Mitrione, 357 F.3d 712, 718 (7th Cir.2004).

Treating the new exculpatory testimony of Quantez as newly discovered evidence, a new trial will be granted only if it meets the four factor Rainer test:

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial;
(2) that the evidence could not have been discovered through due diligence before trial;
(3) that the evidence is not cumulative, impeaching, or doubtful; and
(4) that the evidence probably would produce an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).

Because the majority opinion only addresses the question of “whether the jury might have found the defendant not guilty if the recanting witness had not testified,” it does not resolve the newly exculpatory testimony presented in Quantez’s statement. And, although the standard for newly discovered evidence is higher than that for withdrawn testimony, the failure of Turnage to meet the second Larrison factor by the withdrawal of Quantez’s trial testimony does not necessarily compel the conclusion that Turnage could not meet the fourth Rainer factor because the focus is different — -the Larrison factor focuses on the absence of any testimony from Quantez while the Rainer factor focuses on the presence of new testimony.

If the analysis is thus reformulated into two questions, we can proceed to answer them separately.

B. Did Turnage Satisfy the Second Larrison Factor for Withdrawn Testimony?

I agree that Quantez’s recantation statement, by itself, does not sufficiently satisfy the second Larrison factor to require a new trial. But, I conclude that the statement was at least sufficient to warrant an evidentiary hearing to address each of the Larrison factors. Clearly, the postconviction court should not answer the first Lar-rison factor — whether Quantez’s trial testimony was false — without an evidentiary hearing to test that statement. We have regularly cautioned against making reliability determinations without an evidentia-ry hearing. See, e.g., Wilson v. State, 726 N.W.2d 103, 107 (Minn.2007); Opsahl v. State, 677 N.W.2d 414, 423-24 (Minn.2004).

The majority attempts to avoid this concern about the first Larrison factor by, in essence, assuming that this factor has been met and proceeding to the second Larri-son factor to determine if the absence of any testimony from Quantez might have produced a different result. To hold that the second Larrison factor was not met, the majority must conclude that the absence of testimony from Quantez could not possibly have changed the result. In other words, if it is not enough to simply conclude that the other evidence would be sufficient to convict, because we must ask the more difficult question of whether the absence of Quantez’s testimony “might” have made a difference, we should not give a negative answer to that question summarily, without a hearing, unless we are satisfied that there is no possibility that the absence could have made a difference. I find that question to be a close call. If this were the only aspect of Quantez’s recantation statement, I might be inclined to agree with the majority. But because it is not the only aspect, I respectfully disagree and conclude that an evidentiary hearing is warranted, for the reasons discussed below.

C. Did Turnage Satisfy the Fourth Rainer Factor for Newly Discovered Evidence?

Similarly, the recantation statement is not, by itself, sufficient to warrant a new trial under Rainer. But the more difficult question is whether it meets the much lower threshold to warrant an evidentiary hearing.

The practical consequence of the failure of the postconviction court to provide an evidentiary hearing likely is that we must either determine that the newly discovered evidence is insufficient to present genuine issues of material fact or we must assume, for purposes of a Rainer analysis, that the newly discovered evidence is true. Clearly, Quantez’s new exculpatory testimony is relevant and material and we could not conclude that the trial record “conclusively” shows that the new exculpatory testimony is false. See, e.g., Ferguson v. State, 645 N.W.2d 437, 446 (Minn.2002). And if we assume that Quantez’s new exculpatory testimony is true, the conclusion that a jury probably would not have acquitted Turnage if it had heard the exculpatory testimony is not clear, even though the Rainer standard that Turnage must meet is higher than the Larrison standard. The potential impact on the jury of the testimony of an admitted perpetrator that the defendant was not present during the commission of the crime would necessarily be greater than the impact of the failure of that perpetrator to testify at all.

The majority interprets Quantez’s recantation statement somewhat differently, concluding that it does not “include specific factual exculpatory evidence.” I agree that the recantation statement is minimal and also somewhat ambiguous. For example, when Quantez writes that his trial testimony “was lies,” it is unclear whether he is referring to all of the testimony, including his description of his role in the crime, or just his testimony implicating Turnage. But, in my view, that ambiguity underscores the need for an evidentiary hearing to sort out what Quantez currently claims is the truth. Because Quantez pleaded guilty for his involvement in the murder, and is currently serving a prison sentence under the resulting conviction, I would not read his statement to mean that he now denies his own involvement. I read his further statement, that Turnage “had no knowledge of the crime,” when made by someone who has previously admitted being present for the crime, to be a factual statement, albeit phrased in a con-clusory manner.

I recognize that the newly discovered evidence presented in Wilson v. State was stronger than that presented here — three eyewitnesses whose proposed testimony would exculpate the defendant. But I am drawn to the same conclusion that we reached in Wilson — that the newly discovered evidence was sufficient to warrant an evidentiary hearing in order to fully develop the Rainer factors, including credibility determinations. 726 N.W.2d at 107. And, because the Larrison and Rainer issues arise from the single recantation statement of Quantéz and are necessarily interrelated, I would remand to the postconviction court for an evidentiary hearing on both aspects of the recantation statement.

ANDERSON, Paul H., J.

(dissenting).

I join in the dissent of Justice Hanson.

      . At a hearing held after the petition was filed, the postconviction court stated that Quantez had "complete immunity because you can’t try a person twice for the same offense.” Turnage argues that the postcon-viction court incorrectly applied principles of double jeopardy in denying his petition. Because we determine that the second prong of Larrison is dispositive, we do not decide whether the postconviction court committed a legal error in reaching its conclusion on the first prong.

      . The recantation says that Quantez’s testimony was “lies.” The dissent reads this to mean that only a portion of Quantez’s testimony was a lie, specifically that portion wherein Quantez implicated Turnage in the murder, and that other parts of Quantez’s testimony, for example his admission to being present at the murder scene, were truthful. Because Quantez was present at the murder scene, the dissent contends Quantez can conclude that “Turnage had no knowledge of this crime.” The recantation, however, says only that "the [testimony] given at the [trial] of Quanartis Turnage was lies.” It does not set forth what facts Quantez now claims to be the truth and neither the recantation nor the petition in-eludes specific factual exculpatory evidence. The petition does not even say whether Quan-tez still maintains he was at the murder scene or whether the information Quantez shared with Turnage came to him from other sources or from his own first hand knowledge.

      . See, e.g., Wilson v. State, 726 N.W.2d 103, 107 (Minn.2007) (a jailhouse informant withdrew his testimony that the defendant had confessed to committing the murder); Hooper v. State, 680 N.W.2d 89, 95 (Minn.2004) (witness recanted his trial testimony that the petitioner admitted to him that he murdered the victim); Opsahl v. State, 677 N.W.2d 414, 424 (Minn.2004) (five out of seven witnesses recanted their testimony that the defendant had made incriminating statements after the crime was committed); Dukes v. State, 660 N.W.2d 804, 809 (Minn.2003) (an eyewitness and accomplice to the murder recanted a statement that was read into evidence at the defendant’s trial, stating that the statement "was a lie”); Ferguson v. State, 645 N.W.2d 437, 446 (Minn.2002) (the recanting witness testified at trial that the defendant/petitioner told him that he was going to kill the victim and admitted to doing so shortly after the alleged murder); Flournoy v. State, 583 N.W.2d 564, 567 (Minn.1998) (the defendant's former girlfriend recanted her trial testimony that the defendant confessed to killing the victim).

      . A new trial will be granted under the Larri-son test if the absence of the recanted testimony might have caused the jury to reach a different result, whereas a new trial will be granted for newly discovered evidence only if the evidence “probably would produce an acquittal or a more favorable result,” placing a significantly greater burden on the petitioner. Sutherlin, 574 N.W.2d at 434.


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Alonzo FERGUSON, Appellant.
    No. A05-1729.
    Court of Appeals of Minnesota.
    March 27, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hen-nepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; PETERSON, Judge; and WORKE, Judge.
   OPINION

LANSING, Judge.

A jury found Alonzo Ferguson guilty of second-degree intentional murder and second-degree intentional murder for the benefit of a gang. On appeal, Ferguson challenges the use of an anonymous jury, the district court’s Batson ruling, the finding that no jury misconduct occurred, the admission of gang-expert testimony, the prosecutor’s conduct during closing arguments, the sufficiency of the evidence, and the calculation of Ferguson’s sentence. We agree that in sentencing Ferguson the district court incorrectly assigned a felony point for juvenile convictions and failed to merge two convictions. Although the gang-expert’s testimony was improper, we conclude that the error was harmless, and we reject Ferguson’s other arguments. Accordingly, we affirm in part, reverse in part, and remand.

FACTS

Allen Wheatley Jr. drove with his father and his cousin from Chicago to Minneapolis to visit relatives in September 1994. They arrived in the early morning hours, and, a short time later, Wheatly and five relatives decided to walk to an unlicensed alcohol seller in the relatives’ south Minneapolis neighborhood.

Alonzo Ferguson, the appellant, approached the group as they were walking and made a comment about Wheatley’s blue University of Kentucky sweatshirt. Ferguson told Wheatley that he was in Rolling 30s Bloods territory and that he should not wear blue in the neighborhood. The state presented evidence at trial that Ferguson was a member of the Rolling 30s Bloods.

Wheatley was offended by Ferguson’s warning, and Wheatley and Ferguson began to argue. The dispute continued outside the house of one of Wheatley’s relatives. Ferguson left and told Wheatley that he would return.

Wheatley entered the house and removed his sweatshirt. Within a half-hour, seven shots were fired through the dining-room window. Wheatley was hit and he died from gunshot wounds. Before the shooting, Ferguson was seen standing outside the window with another man.

Ferguson was first indicted for the murder of Wheatley in June 1996. Following a jury trial, Ferguson was convicted of first-degree murder in December 1996. In a divided decision, the supreme court affirmed the conviction. State v. Ferguson, 581 N.W.2d 824 (Minn.1998).

After an informant recanted in April 2000, Ferguson filed for postconviction relief and his petition was denied. On appeal, the supreme court remanded for an evidentiary hearing. Ferguson v. State, 645 N.W.2d 437 (Minn.2002). Following the evidentiary hearing, the district court granted Ferguson a new trial.

Ferguson’s second trial, in September 2004, ended in a mistrial because of a hung jury. Before that trial, the district court granted the state’s request for an anonymous jury and denied the defense’s motion to exclude expert testimony about gangs.

Ferguson’s third trial was held in April and May 2005. The district court adhered to the anonymous-jury and gang-expert rulings from the second trial and denied the defense’s request for reconsideration. During voir dire for the third trial, the defense made a Batson challenge to the state’s preemptory strike of a juror. The district court concluded that the defense failed to make a prima facie case of discriminatory purpose. At the end of the trial, the jury found Ferguson guilty of the lesser-included offenses of second-degree murder and second-degree murder for the benefit of a gang. Ferguson was sentenced to 326 months for the first charge and 24 months for the second charge.

The district court denied Ferguson’s motion for a new trial and he appealed to this court. Pending review, a juror contacted the defense about racial comments made during jury deliberations. This court stayed the appeal and remanded for a Schwartz hearing. State v. Ferguson, No. A05-1729 (Minn.App. Sept. 6, 2005) (order). On remand, the district court held a Schwartz hearing and found that the claims of jury misconduct were not credible. Ferguson now appeals his conviction and sentence.

ISSUES

I. Did the district court abuse its discretion when it empaneled an anonymous jury?

II. Did the district court clearly err by finding that the defense faded to make a prima facie case under Batson?

III. Did the district court abuse its discretion by denying Ferguson’s motion for a new trial?

IV. Did the district court abuse its discretion by admitting expert testimony about retaliation by gang members?

V. Did the prosecutor engage in misconduct that denied Ferguson his right to a fair trial?

VI. Could a jury reasonably conclude that Ferguson was guilty of second-degree intentional murder and second-degree intentional murder for the benefit of a gang?

VII. Did the district court improperly calculate Ferguson’s criminal-history score and sentence?

ANALYSIS

I

The use of anonymous juries is limited by two sources of constitutional protection. First, criminal defendants have a right to a trial “by an impartial jury.” U.S. Const, amends. VI, XIV; Minn. Const, art. I, § 6. Second, the due process clause guarantees the right to a fair and impartial trial. U.S. Const, amend. XIV; Minn. Const, art. I, § 7; State v. Varner, 643 N.W.2d 298, 304 (Minn.2002).

Minnesota appellate courts review the use of an anonymous jury for “actual prejudice to the defendant.” State v. Bowles, 530 N.W.2d 521, 530 (Minn.1995). An anonymous jury may be empaneled when two conditions are met. Id. at 530-31. First, the district court must find a “strong reason to believe that the.jury needs protection from external threats to its members’ safety or impartiality.” Id. Second, the district court must take “reasonable precautions to minimize any possible prejudicial effect the jurors’ anonymity might have on the defendant.” Id. at 531. If these conditions are satisfied, a presumption arises that the defendant was not prejudiced. State v. Ford, 539 N.W.2d 214, 222 (Minn.1995).

All previously reported Minnesota anonymous-jury cases arose out of a single incident: the execution-style murder of Minneapolis Police Officer Jerry Haaf in 1992. Kambon v. State, 583 N.W.2d 748, 750-51 (Minn.1998); Flournoy v. State, 583 N.W.2d 564, 566 (Minn.1998) (Flournoy II); State v. Ford, 539 N.W.2d 214, 217 (Minn.1995); State v. Flournoy, 535 N.W.2d 354, 357 (Minn.1995) (Flournoy I); State v. McKenzie, 532 N.W.2d 210, 213 (Minn.1995); Bowles, 530 N.W.2d at 525. The supreme court relied on three factors in concluding that strong reasons supported the belief that the jury needed protection in these cases. First, the existence of allegations that the defendant or his associates had previously used violence to interfere with judicial and law-enforcement processes. Flournoy I, 535 N.W.2d at 362; McKenzie, 532 N.W.2d at 219-20; Bowles, 530 N.W.2d at 531. Second, the crime being prosecuted was itself retaliatory in nature. Flournoy I, 535 N.W.2d at 362; Bowles, 530 N.W.2d at 531. Third, significant publicity surrounded the crime and the trial. McKenzie, 532 N.W.2d at 219; Bowles, 530 N.W.2d at 531.

The district court gave reasons relating to all three of these factors when it granted the state’s motion for an anonymous jury in this case. First, the district court made note of the state’s allegation that Ferguson had harassed a witness in a different case. Second, the defendant was charged with retaliating against the victim for wearing a blue sweatshirt. Third, the district court found that the pretrial publicity was extensive.

We conclude that these factors provide strong reason to believe the jury needed protection. Although there were merely allegations that the defendant had harassed a witness, evidence to support the allegation was introduced at trial and there is no basis for concluding the allegation was made in bad faith. The district court could therefore use the allegation to conclude, that the jury needed protection. In addition, the district court provided a number of other reasons, most of which involved the defendant’s gang-related activities. A defendant’s gang membership may not be, by itself, a legitimate reason to use an anonymous jury. See United States v. Vario, 943 F.2d 236, 240-41 (2d Cir.1991) (noting that links to organized crime, without something more, would be insufficient to warrant anonymous jury). Because the district court’s other reasons were sufficient, we need not determine whether gang membership alone would suffice. The record supports the district court’s finding that strong reason existed to believe the jury needed protection from external threats to its members’ safety or impartiality.

Furthermore, the district court took reasonable precautions to minimize any possible prejudicial effect. To minimize any possible prejudicial effect, courts should (1) permit extensive voir dire of the jurors to expose bias and (2) provide instructions designed to eliminate any implication of the defendant’s guilt. McKenzie, 532 N.W.2d at 220.

The district court permitted extensive voir dire. The transcript contains almost 1000 pages of voir dire. The district court used a jury questionnaire and placed no significant limits on juror questioning. More importantly, Ferguson made an on-the-record waiver of his right to a jury instruction about the anonymous jury. We therefore conclude that the district court took sufficient precautions to minimize prejudicial effect. As a result, the anonymous jury was properly empaneled and the anonymity did not result in any actual prejudice.

We recognize that the district court’s ruling on juror anonymity essentially reapplied the anonymous-jury decision that preceded Ferguson’s second trial. Pretrial evidentiary decisions made before a mistrial are generally viewed as the law of the case and may be reapplied absent clear error or a change in circumstances. United States v. Tham, 960 F.2d 1391, 1397 n. 3 (9th Cir.1991). Evidentiary decisions and anonymous-jury decisions are similar in requiring a case-by-case determination. Thus, absent clear error or a change in circumstances, the district court’s reliance on the previous determination did not constitute prejudicial error. Before the third trial, Ferguson argued that an anonymous jury was no longer appropriate because no jurors had been harassed during or after the second trial. But, as the district court noted, the jurors in the second trial could not have been contacted because an anonymous jury had been used. Consequently, the district court’s reliance on the previous determination of the juror-anonymity factors did not constitute prejudicial error. Even if the law-of-the-case doctrine does not, in its strict sense, apply to the anonymous-jury ruling, the district court’s reliance is an incorporation and ratification of the earlier finding that stands as a separate determination of the anonymous-jury issue.

II

The state cannot exercise a peremptory challenge for a racially discriminatory purpose. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). The existence of racial discrimination is a fact question, and we give great deference to the district court’s determination. State v. Dobbins, 725 N.W.2d 492, 501 (Minn.2006). We reverse only if the conclusion was clearly erroneous. State v. Gomez, 721 N.W.2d 871, 884 (Minn.2006).

In this case, the district court did not hold a full Batson hearing. Instead, the district court concluded that Ferguson had failed to make a prima facie case of discriminatory purpose. A prima facie case exists when (1) a member of a protected racial group has been peremptorily excluded and (2) the totality of the relevant facts gives rise to an inference of discriminatory purpose. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2416-17, 162 L.Ed.2d 129 (2005); State v. Taylor, 650 N.W.2d 190, 201 (Minn.2002).

In 2005, after Ferguson was convicted, the U.S. Supreme Court provided relevant guidance on the first step in a Batson analysis. Johnson, 125 S.Ct. at 2417. To determine whether a prima facie case has been made, the defendant does not need to show that it is more likely than not that the peremptory challenge was the product of purposeful discrimination. Id. “Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id. (emphasis added). To implement the Johnson standard fully, it may be necessary for appellate courts to review de novo the sufficiency of the evidence to establish a prima facie case. See State v. White, 684 N.W.2d 500, 510 n. 2 (Minn.2004) (Hanson, J., concurring) (advocating de novo standard in advance of Johnson decision).

Nonetheless, even if we applied a de novo standard of review, we would be unable to conclude that the district court erred. Although the prosecutor asked no questions before exercising peremptory challenges against two nonwhite jurors, he had the benefit of the defense’s questioning of the two jurors, and the jurors had also completed questionnaires, which were available to the prosecution and defense in advance of the voir dire. It is therefore less significant that the prosecutor failed to ask questions. And the prosecutor had questioned a black juror who had been accepted before the prosecutor exercised the disputed peremptory challenges. Under the circumstances, the sufficiency of the evidence to establish an inference of discrimination is not evident, and the district court therefore did not clearly err when it declined to hold a Batson hearing.

III

We review a district court’s decision to deny a new trial on the basis of jury misconduct for an abuse of discretion. State v. Kyles, 257 N.W.2d 378, 381 (Minn.1977). Factual findings on allegations of misconduct are reviewed for clear error. Chafoulias v. Peterson, 668 N.W.2d 642, 662-63 (Minn.2003). And credibility determinations on conflicting testimony are the exclusive province of the fact-finder. State v. Reiners, 664 N.W.2d 826, 837 (Minn.2003).

The district court held a Schwartz hearing and considered testimony alleging discriminatory racial statements during jury deliberations. After hearing the testimony, the district court found that the testimony alleging jury misconduct was not credible. Based on this finding, the district court denied the motion for a new trial. The testimony alleging misconduct was vague and contradicted by other jurors. Because the testimony conflicted, the district court was required to make credibility determinations, which receive special deference. Id. We discern no error in the district court’s findings incorporating the credibility determinations, and we, therefore, conclude that the district court did not abuse its discretion when it denied Ferguson’s motion for a new trial.

IV

In general, expert testimony is admissible if (1) the witness is qualified as an expert and (2) the witness’s knowledge will assist the trier of fact. Minn. R. Evid. 702. Expert testimony should nonetheless be excluded if the probative value of the testimony is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403.

On expert testimony relating to gangs the Minnesota Supreme Court has provided more specific guidance. State v. Martinez, 725 N.W.2d 733, 738-39 (Minn.2007); State v. Jackson, 714 N.W.2d 681, 691 (Minn.2006); State v. Blanche, 696 N.W.2d 351, 372-73 (Minn.2005); State v. DeShay, 669 N.W.2d 878, 886 (Minn.2003); State v. Lopez-Rios, 669 N.W.2d 603, 611—13 (Minn.2003). Gang-expert testimony should only be admitted if it is helpful to the jury in making the specific factual determinations that jurors are required to make. Blanche, 696 N.W.2d at 373. The potential problem with gang-expert testimony is that although it “logically adds nothing to witness credibility, it does strongly suggest to the jury that a law enforcement specialist believes the state’s witnesses and therefore the jury should find the defendant guilty.” DeShay, 669 N.W.2d at 886.

Ferguson raises a narrow challenge to the expert’s testimony about mandatory retaliation. The expert testified that “when someone who is a member of a gang is disrespected ... retaliation must occur.” In order to save face, the gang member must personally retaliate or “they will lose face or respect of the other gang members.” The prosecutor later asked what would happen if a person — as Wheat-ley apparently did in this case — said to a gang member, “F — k you, f — k your colors, f — k your hood.” The expert testified that the statement would ensure “that you’re going to be assaulted.” The expert also testified that Ferguson was a member of the Rolling 30s Bloods and that the expert had received no report about Ferguson losing face in the gang after the encounter with Wheatley.

In Blanche, the supreme court held that it was improper for an expert to testify that “if a gang member is involved in an incident with a rival gang, members of his gang have to retaliate in order to maintain their respect within the community and the gang subculture.” 696 N.W.2d at 373. The Blanche holding applies to this case because the expert testified that retaliation was mandatory. The expert’s opinion testimony was improper because the jury could infer that Ferguson was the perpetrator “simply because he is a member of a gang.” Id. at 374. Testimony about man-dato,)“y retaliation tends to “dissuade [the jury] from exercising its independent judgment.” DeShay, 669 N.W.2d at 888. Because the objectionable expert testimony in this case closely parallels the expert testimony determined to be error in Blanche, we similarly conclude that the testimony about mandatory retaliation was improper and its admission was an abuse of discretion.

The difficult question in this case is whether the admission of the expert’s testimony is harmless error. When gang-expert testimony is erroneously admitted, we will affirm the conviction if the error was harmless. See Lopez-Rios, 669 N.W.2d at 613 (applying harmless-error analysis). Ferguson argues that we should apply the rigorous, five-factor standard for harmless error set forth in State v. Caulfield, 722 N.W.2d 304, 314-16 (Minn.2006). Under Caulfield, we determine whether error is harmless beyond a reasonable doubt by considering five factors: (1) the manner in which the evidence was presented, (2) whether the evidence was highly persuasive, (3) whether it was used in the closing argument, (4) whether it was effectively countered by the defense, and (5) the strength of the other evidence against the defendant. 722 N.W.2d at 314-316.

Identifying a harmless-error standard for evidentiary error in criminal cases is complicated by divergent application in appellate cases. See Townsend v. State, 646 N.W.2d 218, 222-23 (Minn.2002) (using harmless-error-beyond-a-reasonable-doubt standard in case that did not involve constitutional error); State v. Shoen, 598 N.W.2d 370, 377-78 n. 2 (Minn.1999) (acknowledging discord in cases). In Caul-field the supreme court clarified that the Townsend harmless-beyond-a-reasonable-doubt standard applies only to constitutional error. See Caulfield, 722 N.W.2d at 314-15 (discussing standard for constitutional error); see also State v. Valtierra, 718 N.W.2d 425, 435 n. 4 (2006) (noting that standard for harmless evidentiary error is lower). Because the jury can bring its common sense to evidentiary issues, the jury may be “well-positioned to judge” the value of the evidence. Valtierra, 718 N.W.2d at 435. As a result, we reverse only when the error substantially influences the jury’s decision. Id.; see also DeShay, 669 N.W.2d at 888 (applying “error-substantially-influencing-jury-decision-to-convict” standard to issue of whether gang-expert testimony was harmless error.)

We therefore conclude that the Caulfield analysis does not apply to erroneously admitted gang-expert testimony. Gang-expert testimony may have due process implications, but the primary concern is that the testimony violates the rules of evidence. See Lopez-Rios, 669 N.W.2d at 613 (discussing rules 702 and 403). When gang-expert testimony is erroneously admitted, reversal “is warranted only when the error substantially influences the jury’s decision.” DeShay, 669 N.W.2d at 888; see also Martinez, 725 N.W.2d at 739 (noting that in every recent gang-expert case the supreme court “concluded that reversal was not warranted because the error did not affect substantial rights”).

Under the circumstances, we cannot conclude that the gang-expert’s testimony substantially influenced the jury’s decision. First, the evidence against Ferguson was generally strong. The state had eyewitness testimony that Ferguson was standing outside the window when the shots were fired. Second, there was other evidence that Ferguson intended to retaliate. Witnesses testified that, shortly before the shooting, Ferguson yelled, “I’ll be back.” Third, although the expert’s testimony may have been emphasized, it was not compelling. For example, in the prosecutor’s closing argument, he told the jury that the expert’s testimony alone “would be sufficient to warrant a guilty verdict because he told you exactly how it is laid out with the gangs out on the street.” But it is unlikely that the jury would take the expert’s testimony about mandatory retaliation literally. Any reasonable juror would recognize exceptions to the retaliation rule.

In addition, we note that the expert’s testimony also supported Ferguson’s theory of the case. The evidence suggested that the victim, Allen Wheatley Jr., argued with two people that night — Alonzo Ferguson and Prentice Wheatley. The defense’s theory of the case apparently was that Prentice Wheatley was the killer. The evidence of a fight between Prentice Wheatley and Allen Wheatley Jr. is not well-established and, even if considered in its strongest light, it provides only a highly speculative basis for the jury to believe that Prentice Wheatley, rather than Ferguson, shot Allen Wheatley Jr. Nonetheless, the defense elicited testimony to show that Prentice Wheatley was also a gang member. Therefore, the expert’s testimony about retaliation supported not only the prosecution’s theory of the case, but also the defense’s theory.

In light of the record as a whole, we conclude that admission of the expert testimony did not substantially affect the jury’s verdict. Admitting the gang-expert testimony was therefore harmless error.

V

The overarching problem presented by prosecutorial misconduct is that it may deny the defendant’s right to a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn.2006). We will reverse a conviction if prosecutorial error, considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006). Ferguson argues that the prosecutor engaged in misconduct in five different ways, but we conclude that the record does not support the allegations of misconduct.

First, we agree that it is misconduct for a prosecutor to mischaracterize evidence or make arguments unsupported by the record. State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993). But we cannot conclude that the prosecutor improperly mischaracterized the evidence when he discussed the location of a car. Although the prosecutor’s momentary reference to the car suggested that this evidence was only valuable for impeachment, the prosecutor apparently realized as he was making the comment that the defense had admitted the testimony as substantive evidence through a hearsay exception for pri- or testimony. The prosecutor immediately substituted a different example of impeachment evidence. Under the circumstances, we cannot conclude that the prosecutor’s reference was misconduct.

Second, we do not agree that the prosecutor impermissibly bolstered the testimony of Prentice Wheatley by stating that the witness exposed himself to criminal liability by testifying. Ferguson had claimed that he had been at a party with Prentice Wheatley that night. Instead of verifying Ferguson’s story, Prentice Wheatley testified that he had been selling cocaine during that time period. Contrary to the prosecutor’s suggestion, Prentice Wheatley could not have been prosecuted for selling drugs because the relevant statutes of limitations had passed. But the message actually conveyed by the prosecutor’s statements was that Prentice Wheat-ley would be unlikely to admit to illegal acts if he had actually been doing something legal. Because Prentice Wheatley was testifying for the state, it is very unlikely that the jury would conclude that Prentice Wheatley might be prosecuted either for perjury or for his statement that he was selling drugs. The prosecutor therefore did not improperly bolster a witness’s testimony or misstate facts.

Third, we reject Ferguson’s argument that the prosecutor told the jury to protect society or to send a message with its verdict. During closing arguments, the prosecutor said, “I’m bringing them in here because those people deserve to be safe in their own neighborhoods.” When viewed in context, however, this statement did not tell the jury to protect society or to send a message. The prosecutor was explaining why a number of the state’s own witnesses appeared hostile or reluctant to testify. The prosecutor’s statement came in the context of an extended, general explanation of the practice of forcing people to testify.

Fourth, we disagree that the prosecutor impermissibly argued that Ferguson tailored his 1996 trial testimony to fit the testimony of other witnesses. A prosecutor cannot, without evidence of tailoring, argue that the defendant tailored his testimony to fit the state’s case. Swanson, 707 N.W.2d at 657-58. In this case, Ferguson’s account of the events changed significantly as the investigation progressed. Initially, Ferguson denied seeing the victim on the day of the shooting. After obtaining discovery and learning about the state’s evidence, Ferguson’s story changed significantly. The prosecutor thus had evidence of tailoring and could legitimately point out changes in Ferguson’s story.

Fifth, the record does not support a claim that the prosecutor attempted to lessen the burden of proof. The prosecutor said, “Many people have exited these doors after having been found guilty by proof beyond a reasonable doubt.” The prosecutor said this while explaining that reasonable doubt is not an impossible standard to meet. In context, the prosecutor’s statement does not suggest that the state’s burden is light or that the defendant was guilty by association. Instead, the prosecutor gave a legitimate explanation of the state’s burden of proof and did not commit misconduct.

VI

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Laine, 715 N.W.2d 425, 430 (Minn.2006). We view the evidence in the light most favorable to the verdict and assume the jury disbelieved any evidence in conflict with the verdict. State v. Bolstad, 686 N.W.2d 531, 538-39 (Minn.2004). Convictions based on circumstantial evidence warrant a higher standard of review. Bernhardt v. State, 684 N.W.2d 465, 477 (Minn.2004). A conviction based on circumstantial evidence will be upheld if the reasonable inferences drawn from the evidence are “consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis other than guilt.” State v. Leake, 699 N.W.2d 312, 319 (Minn.2005).

Ferguson was found guilty of second-degree murder and second-degree murder for the benefit of a gang. To support a conviction of second-degree murder, the evidence must show that the defendant (1) causes the death of a human being (2) with intent to effect the death of that person or another, (3) without premeditation. Minn.Stat. § 609.19, (1) (1994). A conviction of second-degree murder for the benefit of a gang requires evidence that the defendant (1) committed second-degree murder and (2) did so “for the benefit of, at the direction of, or in association with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.” Minn.Stat. § 609.229, subd. 2 (1994).

The evidence was sufficient to show that Ferguson shot Wheatley or assisted the person who did shoot him. Shortly before the shooting, Ferguson was seen standing outside the dining room window. Because Wheatley had just arrived in Minneapolis earlier that morning and had taken his sweatshirt off, Ferguson was one of the four people in the area, not in the house, who could identify him. The other three people described where they were at the time of the shooting. The seven shots were fired in rapid succession and only Wheatley was hit. The single target and multiple shots validate the intentional nature of the shooting. Because Wheatley had just arrived in Minneapolis, the jury could infer that Ferguson was the only person who had a reason and opportunity to intentionally shoot Wheatley.

In addition to the pattern of the shots, further evidence sustains the jury’s finding that Ferguson intentionally killed Wheat-ley. Multiple witnesses testified that Ferguson and Wheatley had a heated argument about Wheatley’s sweatshirt. The witnesses testified that they saw the fight and identified Ferguson. According to the witnesses, Ferguson walked away and yelled, “I’ll be back.”

Admissible evidence established that Ferguson was a gang member who might feel obligated to retaliate against Wheatley for wearing blue in the neighborhood. This evidence also supports the element of intent. In addition, this evidence establishes that the crime was committed for the benefit of a gang. The parties stipulated that the Rolling 30s Bloods was a criminal gang.

Although a significant amount of evidence linked Ferguson directly to the shooting, the record contains no direct evidence that Ferguson actually fired the shots. Because Ferguson was charged on an aiding-and-abetting theory, the state was not required to prove that Ferguson actually fired the gun. Nonetheless, the evidence of aiding and abetting is circumstantial. We therefore address whether “the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis except that of the defendant’s guilt.” Gates, 615 N.W.2d at 337. The record contains direct evidence that Ferguson was standing outside the dining-room window immediately before the shooting. If the jury believed that testimony, and the verdict demonstrates that it did, then the rest of the evidence is inconsistent with any rational hypothesis except that of Ferguson’s guilt.

We therefore conclude that the evidence was sufficient to convict Ferguson of second-degree intentional murder and second-degree intentional murder for the benefit of a gang.

VII

Finally, we address Ferguson’s claim for modification of his sentence. Ferguson argues that the district court improperly assigned a criminal-history point and improperly imposed a second sentence for a lesser-included offense. Both issues involve questions of law, which we review de novo. State v. Kebaso, 713 N.W.2d 317, 322 (Minn.2006). We conclude that both of Ferguson’s sentencing arguments are correct.

First, Ferguson should not have been assigned a criminal-history point. A defendant should be sentenced according to the sentencing guidelines in effect at the time the crime was committed. Minn. Sent. Guidelines III.F. Under the 1994 sentencing guidelines, a defendant can be assigned a criminal-history point if the defendant, after his sixteenth birthday, committed two juvenile offenses that would have been felonies if committed by an adult. Minn. Sent. Guidelines II.B.4 (1994). Currently, the age limit is fourteen. Minn. Sent. Guidelines II.B.4 (2007). Ferguson had two juvenile offenses, but one of them was committed before he turned sixteen. No partial points are allowed. Minn. Sent. Guidelines II.B.405 (1994). Therefore, Ferguson should have been assigned a criminal-history score of zero. Under the 1994 sentencing guidelines, his mid-range presumptive sentence for second-degree intentional murder would have been 306 months. Minn. Sent. Guidelines IV (1994).

Second, Ferguson’s convictions should have merged into a single conviction, because murder is a lesser-included offense of murder committed for the benefit of gang. Lopez-Rios, 669 N.W.2d at 609, 615-16. A person cannot be convicted of both the crime charged and a lesser-included offense. Minn.Stat. § 609.04, subd. 1 (1994). Ferguson therefore should have only been convicted of second-degree intentional murder for the benefit of a gang, and we vacate his second-degree murder conviction.

When a crime is committed for the benefit of a gang, the 1994 sentencing guidelines permit 12 months to be added to sentence that would be assigned for the underlying crime. Minn. Sent. Guidelines II.G (1994). With that addition, Ferguson’s mid-range presumptive sentence is 318 months. Minn. Sent. Guidelines IV (1994). The 1994 guidelines provided for a presumptive range between 299 and 313 months for the underlying offense. Id. The district court could impose any sentence within the range of 311 to 325 months without departing from the guidelines. Minn. Sent. Guidelines II.C (1994). We therefore remand to give the district court an opportunity to impose an appropriate sentence within that range.

DECISION

The district court did not err by empaneling an anonymous jury because the record provides strong reasons to believe the jury needed protection and the district court took reasonable precautions to minimize any possible prejudicial effect. Although some of the gang-expert’s testimony was erroneously admitted, we conclude on this record that the error was harmless. We also conclude that Ferguson failed to state a prima facie case under Batson, that the district court did not err by finding that no jury misconduct occurred, that the record does not support a claim of prose-cutorial misconduct, and that the evidence was sufficient to convict Ferguson. Because Ferguson’s sentence was incorrectly calculated, however, we remand for sentencing within the presumptive range as modified by the crime-for-the-benefit-of-a-gang statute.

Affirmed in part, reversed in part, and remanded.