author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Jessica Ann WILTGEN, Appellant.
    No. A06-152.
    Supreme Court of Minnesota.
    Aug. 23, 2007.

      Steven M. Tallen, Tallen And Baertschi, Minneapolis, MN, and Lori Swanson, Minnesota Attorney General, Saint Paul, MN, for Respondent.
    Richard F. Koch, Andrew S. Garvis, Koch and Garvis, LLC, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

This case presents the question of whether an administrative license revocation, which did not receive a prompt pos-trevoeation judicial review because of an automatic stay pending the prosecution of the associated criminal charge, can constitutionally be used as an aggravating factor to support the enhancement of a subsequent driving while impaired (DWI) charge from third-degree to second-degree. Appellant Jessica Ann Wiltgen was charged with second-degree DWI for a September 2005 driving incident. The charge of second-degree DWI was based in part on Wiltgen’s August 2005 DWI license revocation, as to which judicial review had been requested but was stayed. The district court concluded that the enhancement of Wiltgen’s September charge based on the use of the August revocation would violate due process and granted Wiltgen’s motion to reduce the charge to third-degree. The court of appeals reversed, holding that the availability of a statutory mechanism for judicial review of the revocation satisfied due process where Wiltgen “affirmatively procured a collateral stay” and took no action to advance the implied consent review petition to the hearing stage. State v. Wiltgen, No. A06-152, 2006 WL 1320594, at *3-4 (Minn.App. May 16, 2006) (citing State v. Goharbawang, 705 N.W.2d 198, 202 (Minn.App. 2005), rev. denied (Minn. Jan. 17, 2006)). We reverse the court of appeals and affirm the district court’s order reducing the DWI charge to third-degree.

Wiltgen was arrested on August 13, 2005, for DWI. Following Wiltgen’s arrest, her driver’s license was administratively revoked under Minnesota’s implied consent law and she was charged with third-degree DWI. Wiltgen challenged the license revocation by timely filing a petition for judicial review pursuant to Minn.Stat. § 169A.53, subd. 2 (2006).

Although Minn.Stat. § 169A.53, subd. 3 (2006), requires that the hearing be held on the license revocation “at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review,” and Wiltgen’s petition demanded a hearing within 60 days, a district court Standing Order provided that the “hearing date will be scheduled upon disposition of the associated criminal case.” The effect of the Standing Order, at least in Wiltgen’s case, was to eliminate the 60-day hearing requirement on her August 2005 license revocation because Wiltgen’s associated criminal case had not been disposed of, and the hearing on her license revocation had not been held, at the time of the oral argument of this appeal, some 16 months after the filing of Wilt-gen’s petition for review.

The clerk’s notice of the Standing Order stated that a petitioner could request a stay of the balance of the revocation period under Minn.Stat. § 169A.53, subd. 2(c), and represented that such a stay would be granted. After the Standing Order prevented the scheduling of a hearing on Wilt-gen’s petition, Wiltgen requested a stay of the balance of the revocation period and the district court granted that stay on August 30, 2005.

On September 13, 2005, one month after her first DWI arrest, Wiltgen was again arrested for DWI. Following this arrest, Wiltgen was charged with second-degree DWI. This is the charge that is now before us for review. Second-degree DWI requires that two or more aggravating factors be present when the DWI violation was committed. Minn.Stat. § 169A.25 (2006). Under Minn.Stat. § 169A.095 (2006), “each qualified prior impaired driving incident within the ten years immediately preceding the current offense is counted as a separate aggravating factor.” A “qualified prior impaired driving incident” includes a prior impaired driving-related loss of license, which includes a license revocation under the implied consent law. Minn.Stat. § 169A.03, subds. 21-22 (2006). Wiltgen’s August 2005 DWI license revocation was listed as an aggravating factor in her second-degree DWI charge.

When the second-degree DWI charge resulting from the September 2005 arrest was called for trial on November 22, 2005, Wiltgen moved to reduce the charge from second-degree to third-degree, challenging the use of her August 2005 license revocation as an aggravating factor. Wiltgen argued that the state could not constitutionally charge her with second-degree DWI by using an unreviewed license revocation as one of the aggravating factors. The state contended that because Wilt-gen’s August 2005 license revocation was merely stayed, not rescinded, it was proper for the state to use it as an aggravating factor when charging her for the September 2005 offense.

The district court concluded that “a charge cannot be enhanced [by an earlier revocation] where the defendant made a timely challenge to the revocation and the stay is still in force.” The court granted Wiltgen’s motion to reduce the second-degree DWI to third-degree DWI. The court of appeals reversed, stating that the “availability of [judicial] review, although unexercised, satisfies the due process requirements of meaningful review” of revocations. See Wiltgen, 2006 WL 1320594, at *3-4. The court noted that Wiltgen sought the stay and took no action to advance the hearing on her petition, stating that, under Goharbawang, there was “little difference between no petition and a stayed petition.” 2006 WL 1320594, at *3.

We are asked to decide whether using an unreviewed license revocation as an aggravating factor in a subsequent DWI charge violates due process when the defendant has requested but has not yet received judicial review of that revocation. This constitutional question involves the application of law to undisputed facts. Accordingly, our review is de novo. See Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn.2005).

I.

We begin by analyzing the combined effect of the district court’s Standing Order delaying an implied consent hearing until after the disposition of the associated criminal case and the district court’s order staying the balance of the revocation period pending the resolution of both the associated criminal case and the implied consent case.

As noted earlier, the effect of the Standing Order was to prevent a hearing on Wiltgen’s petition for judicial review of her August 2005 revocation until long after 60 days from the date her petition was filed. This might not be the inevitable effect of the Standing Order in all cases, because theoretically the associated criminal case could be disposed of and the implied consent hearing conducted within 60 days from the filing of the petition for judicial review of the revocation. But, as a practical matter, it is likely that the Standing Order will prevent judicial review of most license revocations until after the 60-day period because of the time necessary to dispose of the associated criminal case and to schedule and conduct the implied consent hearing after that disposition. It appears that the district court assumed that the Standing Order would delay the implied consent hearing beyond the 60-day period because the clerk’s notice that accompanied the Standing Order stated that a petitioner could seek a stay of the balance of the revocation period under Minn. Stat. § 169A.53, subd. 2(c) (2006). Subdivision 2(c) authorizes a stay of the balance of the revocation only “if the hearing has not been conducted within 60 days after filing of the petition.” And, the district court ordered a stay of the balance of Wiltgen’s revocation period well before the 60-day period had expired, obviously contemplating that the effect of the Standing Order would be that the 60-day period would expire before the implied consent hearing was conducted.

Viewing the Standing Order in this light, we must disagree with the court of appeals’ conclusion that Wiltgen should be faulted for having “procured a collateral stay” and for not taking action to advance her petition for judicial review to the hearing stage. Wiltgen, 2006 WL 1320594, at *3. That conclusion appears to confuse the effect of the Standing Order with that of the order staying the balance of the revocation period. Wiltgen did not procure the Standing Order. Instead, that order was unilaterally imposed by the district court. And it was the Standing Order that made it impossible for Wiltgen to obtain an implied consent hearing within 60 days after filing her petition for judicial review. Arguably, Wiltgen could have sought relief from the Standing Order, and pressed for a prompt implied consent hearing, but that option was not described in the clerk’s notice and there is no basis in this record to conclude either that the state would have joined in such a request or that the district court would have granted it. As to the latter, the Standing Order suggests the contrary.

The only stay that Wiltgen affirmatively sought was the stay of the balance of the revocation period. That stay did not have the effect of delaying or preventing the implied consent hearing. Instead, it merely allowed Wiltgen to reinstate her driving privileges during the period when the implied consent hearing was delayed by the Standing Order. Wiltgen’s request to stay the balance of her revocation period, thus, cannot be seen as any waiver of the right to the implied consent hearing, but instead should be seen as an action taken to mitigate the prejudice caused by the Standing Order.

Accordingly, the court of appeals’ conclusion that the stayed petition was essentially the same as a case where the driver did not file a petition for judicial review of a revocation was erroneous — the “stayed petition” resulted from the Standing Order and was imposed on Wiltgen, not sought by her. Wiltgen, 2006 WL 1320594, at *3 citing Goharbawang, 705 N.W.2d 198.

We intend no criticism of the policy considerations underlying the Standing Order. Given the substantial ease load facing the district court, we understand the desire to avoid the waste of judicial and party resources in conducting duplicate proceedings, and we recognize that, because the trial of the associated criminal case may result in revocation, it could render the implied consent proceeding moot. But those policy considerations have legal implications in the narrow circumstance

where the revocation is sought to be used to aggravate a subsequent offense, during the time when judicial review of the revocation has been prevented by the Standing Order. We turn now to a discussion of those implications.

II.

Wiltgen argues that the use of an unre-viewed prior license revocation at the trial of a subsequent DWI charge, to establish an aggravating factor that enhances that DWI charge, would violate her right to due process where she has requested judicial review of the revocation and judicial review of the revocation has not yet been promptly provided because of the Standing Order.

We begin our analysis of that argument by reviewing our prior decisions addressing the due process concerns that arise from the legislature’s provision for the prehearing revocation of driver’s licenses. Since 1982, when prehearing revocation was first authorized, we have consistently employed the three-part test established in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether prehearing revocations violate due process. See, e.g., Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 416 (Minn.2007); Fedziuk, 696 N.W.2d at 344; Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 723 (Minn.1999); Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901, 904-05 (Minn. 1994); Heddan v. Dirkswager, 336 N.W.2d 54, 59 (Minn.1983). That three-part test requires consideration of: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. 893; see also Wilkinson v. Austin, 545 U.S. 209, 224-25, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005).

In Heddan, the private interest that we focused on was the loss of the driving privilege. Heddan, 336 N.W.2d at 60. We said that the weight to be given that private interest depends on another three factors: “(1) the duration of the revocation; (2) the availability of hardship relief; and (3) the availability of prompt post-revocation review.” Id. (citing Mackey v. Montrym, 443 U.S. 1, 11-12, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979)). In Fedziuk, we observed that the Montrym factors (1) and (2) did not weigh heavily in favor of the private interest because prehearing revocations for as long as 360 days have been upheld and Minnesota law does provide for hardship relief. Fedziuk, 696 N.W.2d at 346 n. 6. But we concluded that the 2003 statutory elimination of the requirement that a hearing be “held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review,” affected the third Montrym factor, the availability of prompt post-revocation review, and thus affected the first part of the Mathews three-part test by increasing the weight of the private interest that is affected by the official action. Fedziuk, 696 N.W.2d at 346.

Ultimately, in Fedziuk we concluded that the statutory elimination of the requirement for a prompt postrevocation review violated due process and we revived the version of the statute that existed before the 2003 amendments and contained the requirement that the implied consent hearing be “held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” Id. at 345; see Minn.Stat. § 169A.53, subd. 3(a) (2002). Viewed in the light of Fedziuk, the district court’s Standing Order would, by itself, violate due process in situations where it has the effect of eliminating the requirement of a prompt postrevocation review. Under the Mathews test, the lack of the availability of prompt postrevocation review would sufficiently increase the weight of the private interest that is adversely affected by the revocation to outweigh the other considerations, as it did in Fedziuk.

Of course, the adverse effect on the private interest considered in Fedziuk, the loss of the driving privilege, could be reduced by the prompt restoration of the driving privilege. The Standing Order would not violate due process with respect to the driving privilege if the district court stayed the balance of the revocation period and reinstated the driving privilege. Thus, the combination of the Standing Order and the stay of the balance of the revocation period satisfied the concerns in Fedziuk about the driver’s private interest in the driving privilege. But, as Wiltgen argues, this combination does not reduce the adverse effect on a separate private interest — the liberty interest — where the unreviewed revocation is used to enhance a subsequent DWI. Obviously, the stay of the balance of the revocation period does nothing to reduce or offset the effect of the unreviewed revocation on this private interest. Thus, as in Fedziuk, we must separately analyze this private interest under the three-part Mathews test.

If convicted of second-degree DWI by using the August 2005 revocation as an aggravating factor, Wiltgen would face a minimum sentence of 90 days of incarceration. See Minn.Stat. § 169A.275, subd. 2 (2006). But if the revocation is not used as an aggravating factor, Wiltgen can be convicted only of third-degree DWI and could face a minimum of 30 days of incarceration. See Minn.Stat. § 169A.275, subd. 1 (2006). Therefore, the private interest affected — Wiltgen’s liberty interest — is substantial. We have said that “freedom from physical restraint has always been at the core of the liberty protected by the Due Process Clause.” In re Linehan, 594 N.W.2d 867, 872 (Minn.1999) (quoting Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)) (internal quotation marks omitted).

The second Mathews factor we must consider is the likelihood of an erroneous deprivation of the private interest involved. In determining the likelihood of an erroneous deprivation, we must assess the relative reliability of the procedures used and the substitute procedures sought. Montrym, 443 U.S. at 13, 99 S.Ct. 2612. At the trial of a second-degree DWI charge, qualified prior impaired driving incidents — including license revocations under the implied consent law — may be used to establish conclusively an element of the offense. Using a license revocation as a conclusive element of a crime when judicial review has been requested but has not yet occurred greatly increases the risk of an erroneous deprivation. The United States Supreme Court has said that “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). In Mendozctr-Lopez, because there could be no direct judicial review of the deportation proceeding, the Court held that the defendant must be given the opportunity to collaterally attack the administrative determination in the criminal proceeding that resulted from his reentry:

Depriving an alien of the right to have the disposition in [an administrative] deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense.

Id. at 839, 107 S.Ct. 2148.

In Wiltgen’s case, there remains an opportunity for meaningful review of the administrative license revocation in the implied consent proceeding, but until that review has been provided, the same due process concerns arise from the use of the revocation “to establish an element of a criminal offense.” From the standpoint of Mathews, the opportunity for erroneous deprivation is more significant where judicial review has not been provided or has not been waived.

With respect to the third Mathews factor, the government interest, we again emphasize that “ ‘drunken drivers pose a severe threat to the health and safety of the citizens of Minnesota.’ ” Bendorf, 727 N.W.2d at 416-17 (quoting Heddan, 336 N.W.2d at 63). The state has a compelling interest in highway safety that justifies its efforts to keep impaired drivers off the road, particularly those drivers who have shown a repeated willingness to drive while impaired. See id.

Although we appreciate the important nature of the government interest, we conclude that Wiltgen’s interest in her liberty, combined with the risk of erroneous deprivation, outweighs the state’s interest in providing enhanced penalties for repeat offenders, pending resolution of the implied consent proceeding. We hold that the potential prejudice suffered by Wiltgen from the use of an unreviewed administrative revocation to enhance a subsequent DWI rises to the level of a violation of her right to procedural due process.

III.

Having determined that using a prior unreviewed license revocation as a conclusive element of a crime in a subsequent DWI prosecution violates due process, we must determine whether Section 169A.03, subdivision 22, is unconstitutional. The construction of a statute is a question of law, subject to de novo review by our court. In re Estate of Palmer, 658 N.W.2d 197, 199 (Minn.2003). The goal of statutory construction is “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2006). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursing the spirit.” Id.

“To ascertain and effectuate the legislature’s intent, courts must first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when it is subject to more than one reasonable interpretation. A court must give a plain reading to any statute it construes, and when the language of the statute is clear, the court must not engage in any further construction.”

In re PERA Police & Fire Plan Line of Duty Disability Benefits of Brittain, 724 N.W.2d 512, 516 (Minn.2006) (quoting State v. McCoy, 682 N.W.2d 153, 158-59 (Minn.2004)). Sections of the statute should be construed together, giving the words their plain meaning. Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989).

Minnesota Statutes § 169A.03, subdivision 22, defines qualified prior impaired driving incidents as “prior impaired driving convictions and prior impaired driving-related losses of license.” A prior impaired driving-related loss of license includes “a driver’s license suspension, revocation, cancellation, denial, or disqualification under * * * 169A.50 to 169A.53 (implied consent law).” Minn.Stat. § 169A.03, subd. 21(a)(1). Sections 169A.50 to 169A.53 of the implied consent law address the chemical tests .for intoxication (169A.51), the license revocation penalties for test failure or test refusal (169A.52), and the availability of administrative and judicial review of a license revocation (169A.53).

By including section 169A.53 in its definition of a prior impaired driving-related loss of license, the legislature evidenced an intent to limit the use of a license revocation, as an aggravating factor, to a situation where judicial review has already occurred or been waived by the failure to file a timely petition. Had the legislature intended an unreviewed license revocation to qualify as a prior impaired driving-related loss of license it would have referenced only section 169A.52, which addresses the license revocation penalties for test failure or refusal under the implied consent law. Because the legislature included the reference to section 169A.53 in the definition of prior impaired driving-related loss of license, we read the plain language of section 169A.03, subdivision 21, to require that judicial review be completed before a license revocation under the implied consent law may be used as an aggravating factor in a subsequent DWI prosecution.

Even if the language of the statute was not plain, we would reach the same conclusion by applying the statutory presumption that “the legislature does not intend to violate the Constitution of the United States or of this state.” Minn.Stat. § 645.17(3) (2006).

IV.

At oral argument before us, some additional focus was given to the pretrial nature of the district court’s order and the question was raised whether, even if the revocation could not be used at trial of the DWI charge, it could be used pretrial to supply probable cause to support the second aggravating factor needed to sustain a charge of second-degree DWI. The state argued that the Standing Order did not rescind the revocation, but only stayed the balance of the revocation period, with the result that the revocation still exists as a qualified prior impaired driving incident that can serve as an aggravating factor for the September 2005 offense. We agree that the Standing Order does not purport to rescind the revocation. And we do not base our holding on the conclusion that the administrative revocation no longer exists, but only on the ground that the administrative revocation has not been judicially reviewed. We thus address the question whether an unreviewed revocation, that cannot be used at the trial of a subsequent DWI charge, can nevertheless be used to support probable cause to prevent the pretrial dismissal of the enhanced charge that depends upon it as an aggravating factor.

That question is answered by the Rules of Criminal Procedure. Under Rule 11.03, the district court, in determining whether there is sufficient evidence to constitute probable cause to support the charged offense, may only consider evidence that is of the kind or character that meets the requirements of Rule 18.06, subd. 1. The latter rule essentially requires that the evidence be of the same kind and character as evidence needed to support an indictment, which is “evidence that would be admissible at trial,” with some exceptions not relevant here. Because we have concluded that the use of the unreviewed August 2005 revocation at trial would violate due process, we further conclude that evidence of the August 2005 unreviewed revocation would not be admissible at trial and thus cannot be considered to support probable cause in a motion made under Rule 11.03.

Further, it is not clear that the district court’s reduction of the charge was made in a probable cause context. As noted, the pretrial discussion that led to the reduction occurred on the day scheduled for trial, immediately before the trial was to begin. As of that date, judicial review of the August 2005 revocation had not occurred and that revocation could not be used at trial, for all of the reasons previously stated.

Reversed and remanded.

ANDERSON, RUSSELL A., C.J., took no part in the consideration or decision of this case.

      . Although the district court file for the September 2005 DWI charge does not contain a copy of the notice of the Standing Order that was provided to Wiltgen in connection with the August 2005 revocation, it does contain a copy of the Standing Order provided to Wilt-gen in connection with the September 2005 license revocation and we assume, based on responses by counsel at oral argument, that the Standing Orders were identical for each license revocation.

      . Wiltgen had also been convicted of driving while under the influence on April 30, 2002.

      . Wiltgen argues that this appeal is not properly before the court because the state did not establish critical impact. We disagree. Since the suppression of Wiltgen’s August license revocation led directly to the dismissal of the second-degree DWI charges, it is clear that the order had the requisite critical impact. See State v. Burbach, 706 N.W.2d 484, 487 n. 1 (Minn.2005) (noting that where suppression of evidence led to the dismissal of all of the criminal charges critical impact was established).

      . The court of appeals' analogy to its decision in Goharbawang, 705 N.W.2d 198, was misplaced. In Goharbawang, the driver failed to timely petition for judicial review of his revocation and thus can fairly be said to have waived that review. Wiltgen, in contrast, did timely petition for judicial review and continues to seek it.

      . This is the analysis that we expressly did not reach in Bendorf v. Comm’r of Pub. Safety because Bendorf did not involve the use of an administrative revocation to enhance a subsequent DWI. 727 N.W.2d 410, 416 n. 7 (Minn. 2007).

      . We have some concern that the authority of the Standing Order to stay the balance of the revocation period is unclear under Minn.Stat. § 169A.53, subd. 2(c), because that provision does not explicitly authorize a stay before the 60-day period for an implied consent hearing has expired. But we need not resolve that concern to decide this case.

      . This result does not seriously prejudice the state because the state can delay the issuance of a second-degree DWI complaint until after the implied consent hearing has been conducted and the revocation has been sustained, or can charge third-degree DWI before the implied consent hearing and amend the complaint to add a second-degree DWI charge after the hearing.


source: Caselaw Access Project

author: ANDERSON, G. Barry, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Ronald Lindsey REED, Appellant.
    No. A06-1033.
    Supreme Court of Minnesota.
    Aug. 23, 2007.

      Melissa Sheridan, Assistant State Public Defender, Eagan, MN, Lawrence Ham-merling, Deputy State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, G. Barry, Justice.

Ronald Reed was convicted of first-degree murder and conspiracy to commit first-degree murder for the 1970 shooting of St. Paul police officer James Sackett. On appeal, Reed raises 13 claims of error through counsel and in a pro se brief. We hold that none of the asserted errors requires reversal.

St. Paul police officer James Sackett was shot and killed while responding to a false emergency call on May 22, 1970. Shortly after midnight, a woman called the police to request a ride to the hospital for a woman in labor at 859 Hague Avenue in St. Paul. Sackett and his partner Glen Kothe were dispatched to 859 Hague and parked in front of the residence.

After Sackett knocked on the front door and received no response, Kothe walked to the back door and knocked on it. He heard a dog bark inside, and as he leaned over the back railing to warn Sackett about the dog, he heard a loud bang and saw a bright flash from the direction of the intersection in front of the house. Kothe heard a scream, and when he ran to the front of the house he discovered that Sack-ett had been shot. Kothe sought cover behind his squad car and radioed for assistance. Sackett was pronounced dead at the hospital as a result of a gunshot wound to the chest.

The ensuing investigation revealed that the shot that killed Officer Sackett did not come from inside 859 Hague and that no one there had called the police or been involved in the shooting. No weapon or shell casing was found in the area. The phone call was traced to a phone booth at Selby Avenue and Victoria Street. Further investigation and voice printing identified the caller as Constance Trimble (now Smith), Ronald Reed’s girlfriend and mother to his child.

Trimble-Smith was indicted, tried, and acquitted of Officer Sackett’s killing in 1972. She testified at her trial that she had been instructed to make the false emergency call as a pre-arranged signal to the St. Paul police to proceed to 859 Hague and bust Gerald Starling, an associate of Trimble-Smith and Reed, for possession of drugs. She denied knowledge of a plan to shoot a police officer. After her acquittal, Trimble-Smith was held in contempt of court and jailed for 25 days for refusing to disclose who told her to make the phone call. Trimble-Smith was the only person charged in Officer Sack-ett’s death until 2005.

Ronald Reed was arrested on November 13, 1970, on an unrelated warrant. In his possession police found weapons and detailed plans for an airplane hijacking and hostage plot designed to win the release of Trimble-Smith, Larry Clark, and another individual from jail. Reed was later charged and convicted of an attempted bank robbery that took place in Omaha, Nebraska, on October 20, 1970. State v. Reed, 188 Neb. 815, 199 N.W.2d 707 (1972).

In 2002, the police re-opened the investigation into Officer Sackett’s killing. Based on newly discovered evidence, Reed and Clark were indicted together for aiding and abetting each other and for conspiring with each other to kill Officer Sack-ett. The two cases proceeded together through pretrial proceedings until the state agreed to Reed and Clark’s request for severance. Reed was tried first. Trimble-Smith testified that Reed drove her to the phone booth on May 22, 1970, directed her to make the 911 call, and told her what to say. She also told investigators and testified that after making the call, she and Reed went directly to Clark’s residence at 882 Hague. Clark’s residence is 102 yards from 859 Hague, where Officer Sackett was shot. Trimble-Smith and Reed remained at Clark’s residence for five to seven minutes before going home. Their presence thus coincided with Sack-ett’s shooting roughly 100 yards away.

Joseph Garrett testified that several days before the murder, St. Paul police made a traffic stop and confiscated a gun found in his possession. After a discussion, Garrett told the police officers to “watch the rooftops.” Garrett was apprehended and questioned about this remark hours after Officer Sackett’s killing. He told police that his “watch the rooftops” comment was a general comment made in anger and that he knew nothing about the killing. He was never a suspect in Officer Sackett’s murder. Garrett provided no further information until the summer of 2005, when he told investigators that Reed attempted to recruit him in 1970 to help in “bringing down the first pig,” which Garrett understood to mean killing a police officer. Garrett testified that he told Reed he would think about it and would let him know. He testified that he avoided Reed after that encounter and that he did not tell police about Reed’s proposal earlier because he feared for his life. Garrett also testified that he and Reed were part of an organization called the Black United Front, at the meetings of which Reed advocated protecting “the community” from the police by whatever means necessary, including killing.

Donald Walker testified that in 1969 he attended meetings of the Inner City Youth League at which Reed and Clark would voice “hate talk about the government, the police, and the White Establishment.” He also testified that on two occasions he transported a rifle for Reed and Clark in the trunk of his car. Walker, who was familiar with guns from his military service, testified that the rifle was a single-shot, bolt-action rifle larger than ,22-cali-ber. Forensics determined that Officer Sackett was probably killed with a large caliber single-shot, bolt-action rifle.

John Griffin was involved in the Black Panther movement in the late I960’s. He testified that Reed advocated killing a police officer to put St. Paul “on the map” and possibly to get an official Black Panther chapter. Griffin also testified that at an encounter in the early 1980’s Reed told Griffin that “when [Reed] put a bead on that officer * * * he felt powerful,” but “when he seen the bullet hitting him, he said he never felt more fucked up in his life.”

A jury convicted Reed of first-degree murder and conspiracy to commit first-degree murder, and this appeal followed. Reed raises six issues through his counsel and an additional seven issues in his pro se brief. We address each in turn.

I.

Reed argues that the district court erred in overruling his objection to the court’s subject matter jurisdiction. Reed asserts that under the law as it stood in 1970, the juvenile court had exclusive original jurisdiction over a 19-year-old who committed an offense.

Under the law as of May 1970, the juvenile court had “original and exclusive jurisdiction in proceedings concerning any child who is alleged to be delinquent, a juvenile traffic offender, neglected, or dependent, and in proceedings concerning any minor alleged to have been a delinquent or a juvenile traffic offender prior to having become eighteen years of age.” Minn. Stat. § 260.111, subd. 1 (1969). A “child” was defined as an individual under 18 years of age. Minn.Stat. § 260.015, subd. 2 (1969). A “minor” was defined as an individual under 21 years of age. Minn. Stat. § 260.015, subd. 9 (1969). Thus, there were two situations in which the juvenile court had exclusive jurisdiction: when an individual under 18 was alleged to be delinquent and when an individual under 21 was alleged to have been delinquent before turning 18. Reed was not subject to the juvenile court’s exclusive jurisdiction under either prong of section 260.111, subd. 1, because he was over 18 at the time of the offense. The district court therefore properly overruled Reed’s objection to the court’s subject matter jurisdiction.

II.

Reed argues that the district court erred in instructing the jury that it was not required to find that Reed aided and abetted or conspired with Clark. The grand jury indicted Reed and Clark for aiding and abetting one another and conspiring together to kill Officer Sackett. The state did not move to amend the indictment to include unnamed accomplices or co-conspirators. Over Reed’s objection, the district court instructed the jury on Count One that the state needed to prove beyond a reasonable doubt that “the defendant, or someone being aided and abetted by the defendant, caused the death of James Sackett.” The court added that Reed was guilty if he “aided, advised, hired, counseled or conspired with another or otherwise procured the commission of a crime by another person, whether or not that person is named in the indictment or even identified.” On Count Two, the court instructed the jury, again over Reed’s objection, that the state needed to prove that Reed “conspired with at least one other person to commit the crime of murder in the first degree. It makes no difference whether that person is named in the indictment. You do not have to find that the other person charged in the indictment was a member of the conspiracy.” The jury returned general verdicts finding Reed guilty of aiding and abetting murder in the first degree and conspiring to commit murder in the first degree.

Reed argues that because he was indicted for aiding and abetting and conspiring with Clark, the state was required to prove, as an essential element of the offense, that Clark was Reed’s co-conspirator and accomplice. Reed relies exclusively on a Rhode Island case for the proposition that the identity of an aider and abettor or co-conspirator named in an indictment becomes an essential element of the offense. See State v. DeSanto, 603 A.2d 744, 746 (R.I.1992) (“When, as here, the information specifically alleges that only two named persons conspired the identity of those two individuals becomes an essential element of the offense.”). DeSanto is neither binding on this court nor persuasive, for the Rhode Island court simply stated its conclusion without reasoning or authority. DeSanto has not been followed or cited by any court, including the Rhode Island Supreme Court, in the 15 years since its publication.

A court “may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Minn. R.Crim. P. 17.05. While no formal amendment was made here, the charge to the jury was the same as it would have been with such an amendment. The instructions did not add any new or different offenses, and Reed did not adequately explain, in his brief or in response to questioning at oral argument, how the jury instructions caused him any prejudice. The state’s case emphasized Reed’s motives, opportunity, and behavior. The only necessary connection to Clark was that Reed and Trimble-Smith went to his house after the 911 call. Reed’s only defense was to impeach the memory and credibility of the state’s witnesses. We cannot see how his defense would have changed had the indictment included unnamed co-conspirators from the outset. See State v. Lucas, 372 N.W.2d 731, 739 (Minn.1985) (holding that use of the word “co-conspirator,” rather than the name of the co-conspirator identified in the indictment, in jury instructions was an “insignificant [change] that could not have prejudiced defendant”).

It is preferable for a district court to require a formal motion from the state before amending an indictment. This ensures that an adequate record of the reasons for, and objections to, the amendment is preserved. Nonetheless, the district court would have been within its discretion to amend the indictment, and Reed has not shown that the instructions caused him any prejudice. On these facts, we cannot conclude that the district court’s jury instructions constitute reversible error.

III.

Reed argues that the evidence presented at trial was insufficient as a matter of law to support his convictions. The state bears the burden of proving guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). On appeal, the reviewing court must determine whether there was sufficient evidence to justify a finding of guilt beyond a reasonable doubt by a rational trier of fact. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). For a jury to convict a defendant on circumstantial evidence alone, the circumstances must form a “complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Bias, 419 N.W.2d 480, 484 (Minn.1988) (internal quotation marks omitted). Evidence must be viewed in the light most favorable to the state. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981). Therefore, a defendant who requests a reviewing court to reverse the factual findings of a jury bears a heavy burden. State v. Strimling, 265 N.W.2d 423, 428 (Minn.1978).

One who “causes the death of a human being with premeditation and with intent to effect the death of the person or of another” is guilty of murder in the first degree. Minn.Stat. § 609.185(a)(1) (2006). “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Minn.Stat. § 609.05, subd. 1 (2006). “Whoever conspires with another to commit [first-degree murder] and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy may be sentenced [to] * * * imprisonment for not more than 20 years * * Minn. Stat. § 609.175, subd. 2 (2006). Because Reed was charged with aiding and abetting and conspiracy, the state was not required to prove that Reed was directly involved in firing the shot that killed Sack-ett.

The evidence presented by the state included: Reed’s advocacy, at meetings of the Black United Front and Inner City Youth League, of killing police officers; evidence that members of these organizations practiced shooting at silhouettes that looked like police officers; evidence that Reed and Clark possessed and transported a bolt-action rifle of the type used to murder Officer Sackett; evidence that Reed approached Joseph Garrett a week before the murder and attempted to recruit him for “bringing down the first pig”; Trim-ble-Smith’s uncontradicted testimony that Reed prompted her to make the 911 call and travel to Clark’s residence, approximately 100 yards from where Sackett was shot; and Reed’s confession to John Griffin. Taken together, this evidence would justify a reasonable jury in convicting Reed.

IV.

Reed argues that the district court erred in failing to give an accomplice corroboration instruction to the jury regarding Trimble-Smith’s testimony. Reed neither requested such an instruction nor objected to its omission. The state disputes that Trimble-Smith was Reed’s accomplice and asserts that the omission was harmless in any event.

A conviction “cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Minn.Stat. § 634.04 (2006). Although Reed did not request an accomplice instruction, “trial courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice.” State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002). Accomplice testimony is inherently untrustworthy because the accomplice may testify against the defendant in the hopes of obtaining clemency for himself. State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966). To determine whether the omission of the instruction requires reversal, we must ask whether Trimble-Smith was Reed’s accomplice, and if so, whether the omission was plain error that we may review.

Was Trimble-Smith an accomplice?

Generally, the “test for determining whether a witness is an accomplice for purposes of section 634.04 is whether he could have been indicted and convicted for the crime with which the accused is charged.” State v. Lee, 683 N.W.2d 309, 314 (Minn.2004) (internal quotation marks omitted). When it is unclear whether a witness is an accomplice or not, it generally becomes a question of fact for the jury to decide. State v. Gail, 713 N.W.2d 851, 863 (Minn.2006). The precise question of whether Trimble-Smith can be considered Reed’s accomplice in light of her earlier trial and acquittal, however, is a question of law.

Trimble-Smith was indicted and charged with first-degree murder in connection with Officer Sackett’s death. State ex rel. Trimble v. Redman, 291 Minn. 442, 444, 192 N.W.2d 432, 434 (1971). She was tried and acquitted. Reed asserts that the mere fact that he and Trimble-Smith were each charged with the same crime establishes that she is an accomplice, but we are not persuaded by this conclusory assertion. An acquittal of a crime is a bar to further prosecution of any included offense. Minn.Stat. § 609.04, subd. 2 (2006). Trim-ble-Smith therefore can no longer fear prosecution by the state for first-degree murder. Furthermore, there is no separate criminal liability for a crime committed by another person, State v. Britt, 279 Minn. 260, 263, 156 N.W.2d 261, 263 (1968), so she need not fear prosecution for aiding and abetting Sackett’s killer. It follows that the state could not influence Trimble-Smith’s testimony with promises of leniency in relation to those charges.

Conspiracy to commit murder, however, is not a lesser included offense of first-degree murder. Lucas, 372 N.W.2d at 740-41. Thus, Trimble-Smith could theoretically be charged with conspiracy to commit murder, the same crime of which Reed has been convicted. Trimble-Smith also testified that she received a letter in December of 2005 granting her immunity from federal prosecution. It is not clear what federal prosecution she could have faced or if this letter was related in any way to the state’s investigation. Nevertheless, the fact that Trimble-Smith could, in theory, still be charged with the same offense of which Reed was convicted indicates that she could reasonably be considered an accomplice, and the grant of federal immunity further implicates the concern for integrity of testimony that underlies the accomplice instruction. We conclude that the district court’s failure to give the accomplice testimony instruction was error and now turn to consider whether the error is subject to our review.

Was the failure to give the instruction plain error?

Reed did not request an accomplice instruction or object to the district court’s failure to give one. The plain error analysis allows an appellate court to consider unobjected-to error that affects a criminal defendant’s “substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). This analysis involves consideration of four factors. The first three factors are expressly articulated in Minn. R.Crim. P. 31.02 (providing that “[p]lain errors or defects affecting substantial rights may be considered by the court * * * although they were not brought to the attention of the trial court”). Under the first three factors there must be: (1) an error, (2) that was plain, and (3) that affected the defendant’s substantial rights. State v. Ramey, 721 N.W.2d 294, 298 (Minn.2006). If these three factors are satisfied, the appellate court then considers the fourth factor: whether the error should be addressed “to ensure fairness and the integrity of the judicial proceedings.” Id. (quoting Griller, 583 N.W.2d at 740).

We have already established that the first factor of the plain error analysis, whether there was error, has been satisfied. Under the second factor, an error is “plain” if it was “clear” or “obvious.” Strommen, 648 N.W.2d at 688 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and State v. Ihle, 640 N.W.2d 910, 917 (Minn.2002)). “Usually [clear or obvious error] is shown if the error contravenes case law, a rule, or a standard of conduct.” Ramey, 721 N.W.2d at 302.

The “affects substantial rights” language of the third plain error factor is the same language used to define harmless error. See Minn. R.Crim. P. 31.01 (stating that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded”), quoted in Santiago v. State, 644 N.W.2d 425, 450 (Minn.2002). Under the third plain error factor, an error affects substantial rights where there is a “reasonable likelihood” that the absence of the error would have had a “significant effect” on the jury’s verdict. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn.2005). Unlike a harmless error analysis, the defendant generally bears the burden of persuasion with respect to the third plain error factor. See Olmo, 507 U.S. at 734, 113 S.Ct. 1770; Ramey, 721 N.W.2d at 301-02 (explaining that except in the case of prosecutorial misconduct, a defendant bears the burden of showing that the error affected a substantial right); 3B Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice and Procedure § 856 (3d ed.2004).

If an appellate court finds that the first three prongs of plain error analysis have been met, it then considers the fourth factor: whether the unobjected-to error should be addressed to ensure fairness and integrity of the judicial process. Ramey, 721 N.W.2d at 302. We have declined to grant a defendant a new trial where the unobjected-to error did not seriously affect “the fairness, integrity or public reputation of judicial proceedings.” Griller, 583 N.W.2d at 742 (quoting Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (explaining that it would be a miscarriage of justice to grant the defendant a new trial).

Because Reed did not request, or object to the omission of, the accomplice corroboration instruction, the issue is whether the omission requires reversal under plain error analysis. Because the instruction is required by our caselaw, see Strommen, 648 N.W.2d at 689, the failure to give it was plain error. But because the concerns underlying the accomplice corroboration instruction were largely mitigated at trial, we conclude that Reed has not carried his burden, under the third prong of plain error analysis, of showing that absence of the error would have had a significant effect on the verdict.

Corroborative evidence need not, standing alone, be sufficient to support a conviction, but it must “affirm the truth of the accomplice’s testimony and point to the guilt of the defendant in some substantial degree.” Sorg, 144 N.W.2d at 786. “Circumstantial evidence indicating the defendant’s participation in the crime is sufficient to corroborate the accomplice’s testimony.” State v. Bowles, 530 N.W.2d 521, 532 (Minn.1995) (citing State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984)). Trimble-Smith’s testimony about Reed’s involvement with the Inner City Youth League and his association with some of its other members was generally corroborated and established a motive for Reed to bring about the death of a police officer. Joseph Garrett testified that Reed advocated defending the community from the police “by whatever means necessary,” which he interpreted to include killing, and that Reed invited him to “be involved in getting our first pig.” Anthony Foster testified that Reed commented, “[t]hey [the police] are killing us, so we have to kill them.” John Griffin and Foster both testified that Reed noted that killing a police officer could put St. Paul “on the map” and potentially get the city a Black Panther chapter. Testimony by these witnesses also established a close association between Reed and Clark, whose house was 100 yards from the scene of Officer Sackett’s shooting. Foster further testified that, a few days after Officer Sackett’s shooting, he asked Reed and two other friends “[d]id you hear about the police officer that got killed”? According to Foster, Reed remained silent while another friend advised Foster to “drop it” because “we don’t want to go there.” Donald Walker testified that Reed possessed a rifle of the type used to shoot Officer Sackett. Evidence of Reed’s arrest in 1970 with weapons and detailed plans for a hijacking plot designed to free Trimble-Smith and Clark from jail also supported the inference that Reed was involved in the killing. Finally, Griffin testified that Reed confessed to the killing. While Reed challenges the credibility of each witness for a variety of reasons, the weight of their collective testimony was sufficient to corroborate Trimble-Smith’s testimony.

Trimble-Smith, furthermore, insisted that both she and Reed had been duped into making the call and that neither knew that a police officer would be shot. She also testified, contrary to her grand jury testimony, that neither Reed nor Clark could have left Clark’s house in the short time they were there, precluding the possibility that either man left the house to shoot Officer Sackett. Her efforts to absolve Reed of complicity in the shooting belie the suggestion that she was a pawn of the state.

Given the extent of the corroborating evidence in the record and Trimble-Smith’s testimony taken as a whole, we find that the omission of the accomplice corroboration instruction does not fall within the plain error scope of review because it did not affect Reed’s substantial rights.

V.

Reed contends that the district court’s failure to instruct the jury about the limited purpose for which evidence of Reed’s “other bad acts” was admitted constitutes reversible error. Reed points to the admission of evidence of the guns and notes found with him when he was arrested in 1970, and of his extremist beliefs and desire to be affiliated with the national Black Panther organization. Reed concedes that he did not request a limiting instruction but contends that failure to give the instruction sua sponte constitutes plain error warranting a new trial.

“[Wjhere two or more offenses are linked together in point of time or circumstances so that one cannot be fully shown without proving the other * ⅜ * [evidence of the other offense] is admissible.” State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271 (1962). “Such evidence may be considered only for the purpose for which it is sought to be introduced, regardless of the fact that it may incidentally show commission of some other offense.” Id. Evidence of a defendant’s association with a group is admissible where the association establishes motive or opportunity to commit the crime. United States v. Looking Cloud, 419 F.3d 781, 786 (8th Cir.2005).

The state’s theory at trial was that the guns and notes found with Reed when he was arrested were part of the conspiracy to kill a police officer and gain publicity, during which Reed planned to free Clark and Trimble-Smith. The evidence of which Reed complains, whether or not evidence of criminality by itself, was directly related to the conspiracy alleged by the state. See State v. Hogan, 297 Minn. 430, 434-35, 212 N.W.2d 664, 668 (1973) (noting that evidence of a scheme or plan was “inextricably bound together” with evidence of the immediate episode of the crime charged). The description of Reed’s political beliefs was evidence that Reed had a motive to kill a police officer. In addition, a review of the transcript portions complained of by Reed reveals that the prosecution mentioned the guns, notes, and organizations only to link Reed to Officer Sackett’s killing, not to prejudice the jury. The failure to give the unrequested instruction was not plain error.

VI.

Reed contends that the district court committed reversible error by replaying Trimble-Smith’s 911 call to the jury during deliberations because the replay “unduly emphasized a critical piece of evidence.” Reed argues that because the jury asked to hear the call (which they had already heard three times), but asked for no other evidence or testimony, the jury “show[ed] they were determined to give undue weight to this one piece of evidence despite the court’s caution” and that the court thus abused its discretion by replaying the call. Reed alleges that the error was harmful because the jury’s request to hear the tape indicated that “they were unsure of what had occurred” and because they did not rehear any other evidence.

We review a trial court’s evi-dentiary rulings for abuse of discretion. State v. Kendell, 723 N.W.2d 597, 612 (Minn.2006). A jury may request review of testimony or other evidence after it has retired to deliberate, and the court has discretion to grant the request. Minn. R.Crim. P. 26.03, subd. 19(2). Even where evidence is admitted in error, harmless error review applies. State v. Courtney, 696 N.W.2d 73, 79-80 (Minn.2005). “An error is harmless beyond a reasonable doubt if the guilty verdict actually rendered was surely unattributable to the error.” Id. at 80 (internal quotation marks omitted).

The tape of the 911 call was received as evidence and played for the jury three times during the trial. On the jury’s second day of deliberation, it requested to hear the tape again and did so in the presence of Reed and both counsel. Reed objected to this fourth playing. The court allowed the tape to be played with this warning:

I want to make sure that the jury does not take this out of context. This is a piece of evidence that you have a right to listen to, but that [sic] you need to listen to it in the context of all of the other evidence that’s been presented in the case.

The jury is permitted to choose which evidence it will re-examine. If the jury was “unsure of what had occurred” as Reed asserts, it was proper for the jury to listen to the tape to inform itself of what occurred. It is also not clear what “undue weight” Reed believes the tape could have, as it does not contain Reed’s voice or mention his name. The district court, furthermore, gave an appropriate cautionary instruction. Our observations in State v. Kraushaar are apt here: “at worst, the replaying of the tape allowed the jury to rehear what it had already heard,” and “it is extremely unlikely that the replaying of the tape by the jury affected the verdict as by prompting the jury to convict where it otherwise would not have done so.” 470 N.W.2d 509, 516 (Minn.1991). The district court did not abuse its discretion.

VII.

Reed raises seven issues in his pro se brief for our review. We hold that none of the alleged errors requires reversal.

Grand Jury Testimony of John Griffin

Reed contends that the district court erred in denying his motion to dismiss the indictments against him because the prosecution failed to disclose exculpatory evidence to the jury. Reed asserts that the prosecution allowed John Griffin to testify to the grand jury that Reed ordered him to kidnap Kelly Day to prevent him from testifying at Trimble-Smith’s trial, but that this testimony was false because Day was in police custody at the time.

A defendant in a criminal proceeding bears a heavy burden when seeking to overturn an indictment, and it is a rare case where an indictment will be invalidated. State v. Moore, 438 N.W.2d 101, 104 (Minn.1989). The record before this court does not contain a transcript of the grand jury proceedings, but assuming Reed’s account is accurate, evidence that Kelly Day was in police custody is only remotely related to Reed’s involvement in Officer Sackett’s killing and is not exculpatory. Also, Reed has not asserted that he knew Day was in custody or believed it was impossible to kidnap him, so even if we were satisfied that Day was in custody at the time in question it would not necessarily render Griffin’s testimony false. It is extremely unlikely that Griffin’s testimony about Day affected the grand jury’s decision to indict, and it is equally unlikely that the grand jury would have reached a different decision if it were informed that Kelly Day was not in a position to be kidnapped. The district court did not err in refusing to dismiss the indictments.

Motion to Appoint Substitute Counsel

Reed argues that the district court erred by refusing to afford him a hearing on his motion to represent himself. This is a mischaracterization of the record, as Reed’s motion was to appoint substitute counsel, not to represent himself. The district court denied this motion as groundless and untimely, finding that Reed’s counsel was competent, prepared, and zealous. The district court also denied Reed’s request to read his motion into the record, but ordered that Reed’s written request be made a part of the court file. Reed then refused to participate in the trial and left the courtroom. Reed later returned and was present throughout the rest of the trial.

A defendant has a right to demand new counsel, but “the right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his own choosing. * * * Although he may ask for a substitution, his request will be granted only if exceptional circumstances exist and the demand seems reasonable.” State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). “A defendant may not obtain a continuance by discharging his counsel for purposes of delay or by arbitrarily choosing to substitute counsel at the time of trial.” Id.

The district court’s finding that Reed’s counsel was adequate was not erroneous. Reed makes no showing that his counsel was inadequate. For example, while Reed claimed in his motion that “[my attorney] has not met with me more than 6 times” during his entire detention, Reed’s inmate visitor log indicates that Reed’s counsel visited Reed 22 times between March 2005 and February 2006. Reed also complained, inter alia, that on the eve of trial he was “in the dark as to the strategy to be used in [his] case” and that “[my attorney] has not partnered with me in preparing my defense.” The 22 visits with Reed suggest otherwise, but even if Reed was genuinely dissatisfied with his counsel he offered no excuse for delaying his request until the morning of trial. Reed’s motion was a transparent effort to delay his trial and was properly denied.

Deterred from Testifying

Reed asserts that the prosecution acted improperly by deterring him from testifying with the threat of introducing a prior conviction. Reed refers to his conviction for an attempted bank robbery in Omaha that occurred less than six months after Officer Sackett’s murder. Evidentia-ry rulings rest within the trial court’s discretion and will not be reversed absent a clear abuse of discretion. State v. Grayson, 546 N.W.2d 731, 736 (Minn.1996).

The state did not seek to introduce evidence of this conviction during its ease-in-ehief. At the conclusion of its case, the state informed the court that it reserved the right to offer the conviction to rebut Reed’s defense. The state suggested that the conviction was admissible to show Reed’s intent in prompting the 911 call and to impeach Reed’s character if he put it in issue. Reed did not respond, but he reserved his right to argue that the conviction was inadmissible “at the appropriate time.” The district court mused briefly on the requirements for Spreigl evidence and then stated, “I don’t know that it would come in — and I am just thinking out loud here — I don’t know that it would necessarily come in as Spreigl evidence in the normal way that Spreigl evidence is offered, but may come in as — in another form.” The court did not rule, and Reed did not ask it to rule, on the admissibility of the conviction.

On the next day of trial, before the jury was called in, Reed informed the court, “under extreme duress, I am inclined to waive my right to testify in my behalf.” The court asked him to clarify that he was making the decision of his own accord without pressure from anyone. Reed repeated that “[u]nder extreme duress” he was “inclined to waive” his right to testify and went on to explain,

it is my understanding that it is the position of the court that if I were to proceed with my defense, that * * * this court would allow the prosecution to then impeach my testimony by introducing into evidence a 25 or 35 year old conviction. That’s my understanding. That if I were to testify or if any of my witnesses were to testify. So the courts [sic], I feel, is placing an albatross around my neck. That if I testify, that the state would then be able to introduce a 35-year old conviction.

The court then clarified,

I have indicated that that conviction is stale and that I would not allow the state to cross-examine the defendant using that conviction.
On the other hand, I did indicate to counsel in chambers that in the event that the defendant were to put his character into evidence that, although I have not made a decision as to the Spreigl issue, that if the defendant’s character were put into evidence, that there would be a stronger likelihood that it would be appropriate to allow the Spreigl evidence. But, again, I indicated to your attorney that I have not made a decision, that I would be leaning in that direction, but that I would want to hear what evidence the defense presents in its case in chief. And that’s the way I left it with counsel and I want the record to be clear on that.

The court then asked both attorneys whether it had accurately summarized the discussion in chambers. Reed’s attorney stated, “I believe the message was that it was a strong likelihood the Spreigl would come in.” The prosecutor stated that the court had “indicated that it would come in not only on the character question, but on the question of intent and absence of mistake or lack of knowledge.”

The district court adequately explained to Reed that it had not decided whether or not the conviction would be admitted. The court simply reserved its decision on the issue until it heard Reed’s case-in-chief. Reed cannot challenge the district court’s ruling on the admissibility of the conviction, as the court made no such ruling. We will therefore treat Reed’s challenge as one to the district court’s reservation of its ruling on the conviction until it heard Reed’s case-in-chief.

Because Reed did not object to the reservation of the ruling, we apply plain error analysis to determine whether we may properly review the alleged error. As noted above, in plain error analysis we look for (1) an error, (2) that is plain, and (3) that affects substantial rights of the defendant. Griller, 583 N.W.2d at 740. Reed does not explain why it was error for the court to reserve its decision on the admissibility of the conviction. We are aware of no case law, rule, or standard of conduct that would prohibit a district court from hearing a defendant’s ease-in-chief before ruling on the admissibility of a prior conviction for Spreigl purposes or to rebut the defendant’s assertion of good character. Nor are we inclined to require a district court to give an advisory ruling on the admissibility of a prior conviction before the record for such a ruling is complete.

Reed could have asked for the evidentiary ruling, explaining to the court that his decision to present a defense was contingent on the ruling. If the court declined, Reed could have put on his defense and, if the conviction were ultimately admitted, challenged that admission on appeal. Defendants “often make decisions not to testify based on the potential damage that prior convictions could inflict on their credibility. The mere fact that a trial court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense.” State v. Gassier, 505 N.W.2d 62, 68 (Minn.1993). The district court did not commit plain error by reserving its ruling on the admissibility of Reed’s prior conviction.

Organizational Involvement

Reed asserts that the district court abused its discretion by allowing introduction of Reed’s involvement with black extremist organizations because this evidence inflamed potential bias and prejudice among members of the jury. The state asserts that the evidence of Reed’s involvement in these groups was directly relevant to his commission of a racially- and politically-motivated crime.

In State v. Ferguson, we held that evidence of a defendant’s gang affiliation was “essential to the state’s proof of motive” to commit gang-related murder and, while arguably highly prejudicial, was also highly probative of that motive. 581 N.W.2d 824, 834-35 (Minn.1998). In Looking Cloud, the Eighth Circuit Court of Appeals held that evidence of the defendant’s involvement in the American Indian Movement was admissible where the murder “could only be explained within the context of the American Indian Movement and its activities.” 419 F.3d at 786-87.

The evidence of Reed’s involvement with the organizations in question is essentially the same as the evidence properly admitted in Ferguson and Looking Cloud. It was probative because it established a motive for Officer Sackett’s murder and developed Reed’s relationship with other witnesses, including Clark, Garrett, and Trimble-Smith. The state’s theory of Officer Sackett’s murder could only be understood against the backdrop of late 1960’s racial tension, and Reed’s motive could only be understood in the context of the organizations in which he apparently advocated killing police officers. The district court did not abuse its discretion. Accomplice Instructions

Reed asserts that the district court erred in failing to give an accomplice corroboration instruction regarding the testimony of Griffin, Garrett, Walker, and Foster. Reed does not explain how these witnesses could be considered accomplices, and the record does not suggest that they were. The district court did not err.

Jailhouse Conversation

Reed asserts that statements he made in a jailhouse conversation with another inmate were hearsay and were improperly admitted at trial. A statement by a party offered against him at trial is not hearsay. Minn. R. Evid. 801(d)(2)(A). The district court did not err in admitting the statements.

Recantation

Finally, Reed asserts that Trim-ble-Smith has admitted that she lied in her testimony and that he is therefore entitled to a new trial. Cherra Trimble claims in a document titled “Affidavit,” a copy of which is appended to Reed’s pro se brief, that she is Trimble-Smith’s daughter and that shortly after Reed’s trial, Trimble-Smith admitted that she lied during her testimony because investigators plied her with money and promises of reward. The affidavit was signed and notarized on January 11, 2007, roughly ten months after the conclusion of Reed’s trial.

“Courts have * * ⅜ looked with disfavor on motions for a new trial founded on alleged recantations unless there are extraordinary and unusual circumstances.” State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (1977). Minnesota follows the three-prong Larrison test in evaluating witness recantation claims. To obtain a new trial, a petitioner must establish the following by a fair preponderance of the evidence:

(1) the court must be reasonably well-satisfied that the testimony in question was false; (2) without that testimony the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.

Opsahl v. State, 677 N.W.2d 414, 422-23 (Minn.2004).

Reed has not satisfied any of Larrison’s three prongs. He has not established that any of Trimble-Smith’s testimony was false, for the affidavit contains only hearsay related by her daughter and does not specify which parts of her testimony were allegedly fabricated. Because he has not identified the fabricated testimony, Reed has not established that the jury might have reached a different conclusion without it. He also has not shown that any of Trimble-Smith’s testimony took him by surprise. Therefore, the affidavit does not compel a new trial.

Affirmed.

      . Reed was born on August 31, 1950, and was 19 on May 22, 1970, the date of Officer Sack-ett's murder.

      . The state did move to amend the dates of the conspiracy alleged in the indictment, and the district court granted the motion. Reed does not challenge that amendment in this appeal.

      . We also note that the indictment and early proceedings in this matter contemplated a joint trial between Reed and Clark, and it was at Reed’s request that separate trials were ordered.

      . In Gail, 713 N.W.2d at 863-64, and Lee, 683 N.W.2d at 316, we applied harmless error review to a district court's failure to give an accomplice corroboration instruction sua sponte. In Lee, we applied harmless error analysis, citing State v. Shoop, 441 N.W.2d 475, 480 (Minn.1989), and concluded that the duty to give an accomplice corroboration instruction applies regardless of whether defendant requests it. 683 N.W.2d at 316. In Gail, we noted that we could not grant defendant relief under either a plain error or a harmless error standard. 713 N.W.2d at 863 n. 9. We clarify today that where a district court fails to give a required accomplice corroboration instruction and the defendant does not object, an appellate court must apply the plain error analysis. Although a plain error analysis includes the equivalent of a harmless error inquiry in its third factor, a plain error analysis requires consideration of a fourth factor, specifically, whether correction of the unobjected-to error is required to ensure fairness and integrity of the judicial process. The court of appeals' decision in State v. Moon, 717 N.W.2d 429 (Minn.App.2006), holding that harmless error analysis applies to a district court’s failure to give the accomplice corroboration instruction sua sponte, is overruled.

      . Reed asserts in his brief that the jury had already heard the tape four times. Based on our review of the record, the tape had only been played three times.


author: PARKER, Judge.

text:
    David William LEWIS, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A06-1550.
    Court of Appeals of Minnesota.
    Aug. 21, 2007.

      James L. Berg, Chaska, MN, for appellant.
    Lori Swanson, Attorney General, Joan M. Eichhorst, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by ROSS, Presiding Judge; SHUMAKER, Judge; and PARKER, Judge.
   OPINION

PARKER, Judge.

Appellant challenges the district court’s decision sustaining the revocation of his driver’s license under the implied-consent law. Appellant argues that (a) his immediate change of mind regarding testing and agreement to take the breath test cured his initial refusal; and (b) the investigatory stop of his vehicle was unlawful because the officer’s claim that he saw appellant fail to stop at a stop sign was not credible due to inconsistencies in the officer’s testimony. We affirm.

FACTS

On January 27, 2006, appellant David William Lewis was stopped by officer Ryan Lodermeier for failing to make a complete stop at a stop sign. Lodermeier observed indicia of alcohol consumption after appellant stepped out of his vehicle, and Lodermeier asked appellant to perform some field sobriety tests. After appellant failed the field sobriety tests and submitted to a preliminary breath test, he was arrested for driving under the influence and taken to the Plainview Police Station.

At the police station, Lodermeier read the implied consent advisory to appellant. Lodermeier offered appellant a choice of which test to take: blood, urine, or breath. Appellant chose a urine test, but Loder-meier was unable to find a urine-test kit, so he asked appellant to take a breath test. Appellant refused the breath test. Loder-meier informed appellant that refusal to take the test was a crime and asked appellant again if he would take the breath test and appellant responded, “Charge me.” Lodermeier testified that he gave appellant two or three opportunities to take the test, and appellant refused. Lodermeier reminded appellant more than once that refusal to take the test was a crime.

Lodermeier contacted the dispatch center to confirm it had room for one male, retrieved his recording equipment and paperwork for a DUI refusal, and then returned to appellant. Lodermeier testified that this process took approximately nine to eleven minutes. It was not until after Lodermeier placed appellant in handcuffs to transport him to jail that appellant said, “[Y]ou know, I’ll take the test.” Loder-meier informed appellant that he had given him several opportunities to take the test and that he had refused each time, and that the implied-consent-advisory period was over.

Appellant’s refusal to take a breath test led to the revocation of his driving privileges. Appellant sought judicial review of the revocation order. The implied-consent hearing was held, and the district court sustained the revocation of appellant’s driving privileges. This appeal follows.

ISSUES

1. Did the district court err in ruling that appellant’s initial refusal to take the breath test was not cured by his subsequent offer to take the test.

2. Did the district court err in finding that appellant failed to stop at a stop sign?

ANALYSIS

1. Refusal to take the breath test

Appellant argues that the district court erred in determining that his initial refusal to take the breath test was not cured by his subsequent change of mind and agreement to take the test. The Minnesota Supreme Court has stated that the general rule is that an initial refusal to submit to testing cannot be cured by a subsequent agreement to be tested. Nyflot v. Comm’r of Pub. Safety, 369 N.W.2d 512, 517 n. 4 (Minn.1985). This court has consistently held that a subsequent change of heart does not revoke an initial refusal, even when a relatively short period of time has elapsed between the initial refusal and the reconsideration except for an “almost immediate” change of mind. See Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 342-44 (Minn.App.1995) (applying general rule and noting corollary applicable when change of mind is “almost immediate”); see also Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502-03 (Minn.App.1992) (concluding that refusal not revoked when driver changed her mind nine minutes later).

In Schultz v. Comm’r of Pub. Safety, the officer only had time to mark a refusal on the form before the driver changed his mind. 447 N.W.2d 17, 18 (Minn.App.1989). The court held that because the “change of mind was almost immediate, and was not separated from his initial response by any substantial time, place, or a telephone call to counsel or a friend,” the police should have accepted the driver’s change of mind. Id. at 19.

Lodermeier testified that appellant’s change of mind was not immediate but took more than some nine to eleven minutes. It is undisputed that appellant refused the test more than once. Loder-meier provided appellant with information regarding the consequences for not taking the test, and appellant’s refusal was clear. Once an officer has given the relevant information on the consequences of refusing to take a chemical test for intoxication, a driver’s clear refusal that is not immediately withdrawn constitutes a refusal and precludes a change of mind. The district court did not err in determining that appellant’s change of mind did not cure his initial and subsequent refusals to take the test for intoxication.

Appellant contends that Lodermeier’s testimony is inconsistent with the police report, which was referred to during cross-examination. The record on appeal consists of documents “filed in the trial court.” Minn. R. CivApp. P. 110.01. A search of the district court file reveals that it does not include the police report. Thus, the police report is not before us, and without the report itself, we cannot evaluate appellants’ contention.

2. Reasonable suspicion

Appellant argues that the police lacked a reasonable, articulable suspicion to stop him. “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.” State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000); see also Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985) (applying standard of review in driver’s license revocation proceeding).

The United States and Minnesota Constitutions protect against unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. An investigatory stop does not violate the prohibition against unreasonable search and seizure if the officer has a reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889, (1968). Minnesota cases require very little justification for an investigatory stop. See, e.g., State v. George, 557 N.W.2d 575, 578 (Minn.1997); State v. Pike, 551 N.W.2d 919, 921-22 (Minn.1996). The proper inquiry is whether an officer, under the totality of the circumstances at the time of the stop, had a particular and objective basis for suspecting the person stopped of criminal activity. Berge, 374 N.W.2d at 732.

Lodermeier testified that appellant failed to come to a complete stop at a stop sign. The district court found that rolling through a stop sign was a valid basis for stopping appellant. Appellant concedes that if it were true that he rolled through a stop sign, that would be sufficient to support a stop, however, appellant argues that Lodermeier’s testimony was not credible. Appellant contends that the inconsistencies in Lodermeier’s testimony render his testimony not credible. Inconsistencies in testimony do not require reversal; they are merely factors to consider when making credibility determinations, which is the role of the fact-finder. State v. Johnson, 679 N.W.2d 378, 387 (Minn. App.2004), review denied (Minn. Aug. 17, 2004). The district court credited Loder-meier’s testimony, and we defer to the district court’s credibility determinations. See State v. Miller, 659 N.W.2d 275, 279 (Minn.App.2003) (stating that weight and believability of witness testimony is issue for district court, and appellate court defers to district court’s credibility determinations).

DECISION

Because appellant clearly and unequivocally refused to submit to testing for a reasonable amount of time, the district court did not err in determining that this refusal could not be cured by a subsequent change of mind to take the test. And because the district court properly credited the officer’s testimony that appellant did not come to a complete stop, the officer had a reasonable, articulable suspicion to stop appellant.

Affirmed.

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