                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1032

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                    Gary Lee Burnett,
                                       Appellant.

                                 Filed February 2, 2015
                                        Affirmed
                                      Smith, Judge

                             Mille Lacs County District Court
                                 File No. 48-CR-10-2092

Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, St.
Paul, Minnesota; and

Janice S. Jude, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Jill A. Brisbois, Eric L. Newmark, Newmark Law Office, LLC, Minneapolis, Minnesota;
and

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Ross, Judge; and Schellhas,

Judge.
                         UNPUBLISHED OPINION

SMITH, Judge

      We affirm the district court’s denial of appellant’s petition for postconviction relief

because its factual finding that appellant was able to hear adequately during his trial is

not clearly erroneous.

                                          FACTS

      Appellant Gary Lee Burnett suffers from a hearing-loss condition that allows him

to hear about 60% of what goes on around him. He does not know sign language, but he

is able to read lips.

      In September 2010, the state charged Burnett with two counts of first-degree

criminal sexual conduct and two counts of second-degree criminal sexual conduct.

Before trial, he informed the district court that the hearing-assistance devices provided by

the court did not work for him, and he moved the district court to allow a friend to sit

with him and assist him by taking notes and answering his questions. The friend was not

trained or certified as an interpreter. The district court granted the motion, and it also

instructed Burnett to inform the court if he was unable to hear or understand anything as

the trial progressed.

      The jury was unable to reach a verdict, and the district court declared a mistrial.

Before his second trial, Burnett again requested that the district court allow his friend to

assist him, and the district court again granted his request. The jury found Burnett guilty

of one count of first-degree criminal sexual conduct and both counts of second-degree




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criminal sexual conduct.        The district court sentenced Burnett to 156 months’

incarceration.

      In January 2014, Burnett petitioned for postconviction relief, arguing that the

district court’s failure to provide a qualified interpreter denied him a fair trial. The

district court convened a hearing in March 2014. Burnett testified that he had been

unable to use the court-provided headphone system because it interfered with his lip-

reading. He stated that, during his trial, he had to sit in a position where he could read the

notes written by his friend, but “that put [him] out of reach from everybody,” impeding

his ability to participate in the proceedings. Burnett estimated that he had understood

only 50% to 60% of the words spoken during his trial.             He opined that a closed-

captioning system would have been more helpful. He stated that he had not requested

one because he had not known it was available. Burnett admitted, however, that he had

never told the district court or his attorney during his trial that he was unable to aid in his

defense. He also admitted that the district court had complied with his requests to

reposition the podium to facilitate his efforts to understand the questioning of witnesses.

      The postconviction court denied Burnett’s petition. It found that Burnett’s claim

that he was able to understand only 50% to 60% of his trial proceedings was not credible,

noting that Burnett had lied during his first trial about his military experience and that he

had been able to understand and answer questions during both trials without difficulty.




                                              3
                                       DECISION

       Burnett argues that the district court erred by denying his petition for

postconviction relief because his inability to hear during his second trial denied him his

constitutional right to a fair trial.      When reviewing a district court’s denial of

postconviction relief, “we address questions of law de novo, review the postconviction

court’s factual findings for clear error, and evaluate the postconviction court’s ultimate

decision to deny relief for an abuse of discretion.” Lussier v. State, 853 N.W.2d 149, 153

(Minn. 2014).

       Minnesota state policy requires that “persons disabled in communication” be given

assistance by “qualified interpreters” when they are otherwise “incapable of presenting or

assisting in the presentation of a defense.” Minn. Stat. §§ 611.30, .31 (2012).1 We

normally review a district court’s determination of how to accommodate a defendant’s

communication disability under an abuse-of-discretion standard. State v. Cham, 680

N.W.2d 121, 126 (Minn. App. 2004), review denied (Minn. July 20, 2004)).2 But when a

party asks the district court to take an action that the party then alleges on appeal to be

1
   Burnett assumes that sections 611.30 and 611.31 govern the provision of a closed-
captioning system. But since these sections relate to the appointment of “qualified
interpreters,” it is unclear whether a technological device such as a closed-captioning
system is within their scope. And since Burnett does not understand sign language, it is
unclear what interpreter could have been provided to him under these sections.
Nonetheless, for purposes of addressing Burnett’s argument, we assume without deciding
that a request for a closed-captioning system is within the scope of sections 611.30 and
611.31.
2
  In his brief, Burnett asserts that the district court bears a burden to find the best possible
mechanism to address a defendant’s hearing disability. But Cham does not state the
burden that Burnett asserts, and Burnett cites no authority requiring district courts to
override a defendant’s own requested accommodation or to inform a defendant of all
possible alternative accommodations before acceding to a defendant’s request.

                                               4
erroneous, we review only for plain error, determining whether there was error, whether

the error was plain, and whether the error affected the appellant’s substantial rights. State

v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012). When these three criteria are met, we

consider whether reversal is necessary “to ensure fairness and the integrity of the judicial

proceedings.” Id. (quotation omitted).

       Burnett requested the accommodation that he now challenges as inadequate, so

plain-error review applies. Under plain-error review, an appellant bears the burden to

show that an alleged error affected his substantial rights. State v. Goelz, 743 N.W.2d

249, 258 (Minn. 2007). When determining whether a purported error affected substantial

rights, “we ask whether the error was prejudicial and affected the outcome of the case.”

Carridine, 812 N.W.2d at 142.

       Burnett identifies no prejudice resulting from the district court’s acquiescence to

his requested accommodation. Burnett identifies no specific instance during his trial

where he was unable to understand the proceedings or participate in his own defense. He

admitted that the district court complied with his requests to reposition the podium to

allow him to read lips, when necessary. The district court found that his claim that he

was unable to understand 40% to 50% of the proceedings was not credible, and we defer

to its credibility determinations. See State v. Losh, 694 N.W.2d 98, 102 (Minn. App.

2005), aff’d, 721 N.W.2d 886 (Minn. 2006). The district court also found that Burnett

was able to understand his trial proceedings because Burnett did not inform the district

court of any problems understanding and because he was able to respond to the

prosecutor’s and the district court’s questions.      Apart from Burnett’s own belated


                                             5
testimony at his postconviction hearing, no evidence in the record indicates that he had

any problems understanding his trial proceedings, so the district court’s finding is not

clearly erroneous. Because the record supports the finding that Burnett was able to

understand the trial proceedings and participate in his own defense, he was not entitled to

an interpreter. Cf. State v. Kail, 760 N.W.2d 16, 19 (Minn. App. 2009) (“One who fully

understands the arrest and postarrest implied consent proceeding despite having hearing

and speech deficiencies is not a ‘person disabled in communication’ and is therefore not

entitled to an interpreter.” (quoting Minn. Stat. § 611.31)). We therefore conclude that

the district court did not abuse its discretion by denying Burnett’s petition for

postconviction relief.

       Affirmed.




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