                        This opinion will be unpublished and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
                                   A14-1360

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                            Trevir Lee Nakomous Siltman,
                                      Appellant.

                                 Filed May 18, 2015
                                      Affirmed
                                Stoneburner, Judge

                            Ramsey County District Court
                              File No. 62-CR-13-9399


Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and

Stoneburner, Judge.




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                          UNPUBLISHED OPINION

STONEBURNER, Judge

          Appellant challenges his conviction of third-degree assault, arguing that the

district court deprived him of a fair trial by eliciting testimony from the state’s expert

witness and applied the wrong legal standard to his self-defense claim. Because the

district court’s questioning of a witness did not implicate its impartiality and the record

reflects that the district court properly evaluated appellant’s self-defense claim, we

affirm.

                                          FACTS

          Appellant Trevir Lee Nakomous Siltman assaulted fellow inmate Shaun Mankey

at the Ramsey County Correctional Facility (workhouse). The last punch thrown by

Siltman caused an injury to Mankey’s nose.         The entire incident was observed by

correctional officer Brian Sanders and recorded by workhouse security cameras.

          Mankey was taken to the emergency room at Regions Hospital where he was

treated by Dr. Carson Harris and residents working with Dr. Harris. Based on the history

Mankey gave and his symptoms of contusions to the head, nasal bleeding, and swelling in

the nasal area, Dr. Harris diagnosed fracture of the bony or cartilaginous area of the nose.

          Siltman was charged with third-degree assault, in violation of Minn. Stat.

§§ 609.02, subd. 7a (defining “substantial bodily harm” as including a fracture of any

bodily member), .223, subd. 1 (defining third-degree assault as requiring infliction of

substantial bodily harm) (2012). Siltman waived his right to a jury trial and gave notice

of the intent to claim self-defense. The recording of the incident was admitted as a trial


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exhibit, and Mankey, Officer Sanders, and Dr. Harris testified for the state. After Dr.

Harris had been examined twice by each attorney, the district court expressed its

confusion and, without objection from either party, asked Dr. Harris (1) if symptoms

exhibited by Mankey could occur without a fracture and (2) whether cartilage actually

fractures. Dr. Harris reaffirmed his earlier testimony that Mankey’s symptoms were

consistent only with diagnosis of fracture.

       In closing argument, Siltman’s attorney argued that, although Siltman initiated the

fight, at the time Siltman threw the punch that injured Mankey’s nose, Mankey was the

aggressor and Siltman was acting in self-defense.

       The district court found Siltman guilty and sentenced him to 29 months in prison.

This appeal followed in which Siltman asserts that (1) by questioning Dr. Harris, the

district court deprived him of a fair trial, and (2) the district court improperly placed the

burden of proving self-defense on him.

                                     DECISION

1.     The district court’s questioning of Dr. Harris did not constitute error.

       Claims raised for the first time on appeal, including claims of judge partiality and

violation of the Code of Judicial Conduct, are reviewed for plain error. State v. Schlienz,

774 N.W.2d 361, 365 (Minn. 2009).        A plain-error analysis consists of a four-pronged

test that requires consideration of whether (1) there was an error; (2) which was plain;

and (3) which affected the defendant’s substantial rights, and if each of these prongs is

satisfied, consideration of whether the error needs to be addressed to ensure the fairness

and integrity of the judicial proceedings. Id. at 366. “An error is plain if it ‘contravenes


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case law, a rule, or a standard of conduct.’ An error affects substantial rights if it is

‘prejudicial and affect[s] the outcome of the case.’” Id. (citations omitted).

       Siltman argues that the district court’s statement that it was confused signaled to

the state a weakness in its case, and the district court’s follow-up questions elicited

critical testimony that the state failed to elicit from its expert witness. Siltman cites State

v. Costello, in which the supreme court held that jurors may not question witnesses in a

criminal case because encouraging jurors to ask questions invites jurors to form

hypotheses about the case before all of the evidence is presented. 646 N.W.2d 204, 210-

11 (Minn. 2002). Siltman argues that the same concern exists when a district court,

acting as the factfinder, questions witnesses, and asserts that the questioning assisted the

state in meeting its burden of proof. We disagree.

       The rules of evidence permit a judge to ask questions and even call witnesses.

Minn. R. Evid. 614(b). Minn. R. Evid. 614 1977 comm. cmt. cautions that the right to

call and question witnesses can be abused by a judge who assumes an advocate’s

position, but the record in this case does not demonstrate abuse of the rule or signal

partiality. The district court’s questions merely clarified for the district court Dr. Harris’s

prior and unequivocal testimony that Mankey suffered a fracture.                 See State v.

Rasmussen, 268 Minn. 42, 45, 128 N.W.2d 289, 291 (1964) (discouraging judicial

questioning of the defendant in a criminal case tried to a jury, but concluding that such

interrogation did not constitute reversible error when it was intended to merely clarify the

record).




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       Siltman relies on cases that preclude a judge, sitting as factfinder, from seeking or

obtaining evidence outside of that presented by the parties at trial. See State v. Dorsey,

701 N.W.2d 238, 250 (Minn. 2005). Siltman also asserts that the district court violated

rule 2.9 (C) of the Minnesota Rules of Judicial Conduct, prohibiting a judge from

independently investigating facts. But the district court did not seek information outside

of evidence presented by the state or make any independent investigation of facts. The

district court sought only clarification of evidence already presented by Dr. Harris.

       On this record, we conclude that Siltman has failed to establish error, let alone

plain error attributable to the district court’s questioning of Dr. Harris. Because there was

no error, the remaining factors of a plain-error analysis are not discussed.

2.     The record reflects that the district court applied the correct standard to
       Siltman’s self-defense claim.

       The elements of self-defense include (1) absence of aggression or provocation on

the part of the defendant; (2) the defendant’s actual and honest belief that he or she was

in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds

for the belief; and (4) the absence of a reasonable possibility of retreat to avoid the

danger. State v. Johnson, 719 N.W.2d 619, 629-30 (Minn. 2006). When, as here, a

defendant admits that he was the initial aggressor, the defendant can establish a revived

self-defense claim by establishing that he (1) declined to carry on the assault, (2) honestly

tried to escape from it, and (3) clearly and fairly informed the adversary of his desire for

peace and an abandonment of the assault. See State v. Carridine, 812 N.W.2d 130, 144

(Minn. 2012).



                                              5
       A defendant has the burden of production to come forward with evidence to

support a self-defense claim. State v. Penkaty, 708 N.W.2d 185, 207-08 (Minn. 2006). If

the defendant meets this burden, the burden shifts to the state to disprove one or more of

the elements of self-defense beyond a reasonable doubt. Id.

       At trial, Siltman asserted that, although he was the initial aggressor, at the time he

threw the punch that injured Mankey, he was acting in self-defense. In its amended

findings of fact, conclusions of law, and order, the district court found that after Siltman

began the fight, Mankey came toward Siltman, attempting to hit him. The district court

found that Siltman “although able to escape, punched [Mankey] one more time in his

face. He connected with [Mankey’s] nose.” The district court also found that Siltman

“presented no evidence to support [self-defense] other than the video tape of the incident”

and “[t]hat [Siltman] has not met his burden of establishing that he acted in self-defense.”

Siltman argues that the district court’s findings demonstrate that the district court

improperly shifted the burden of proof of self-defense to Siltman, requiring reversal of

his conviction and remand for consideration under the correct legal standard.

       The state argues that the district court’s finding that Siltman failed to meet his

“burden” plainly refers to Siltman’s “burden of production.” Under the circumstances of

this case, we agree.

       Siltman’s argument is, in part, based on his assertion that if the reference in the

district court’s finding to his “burden” was meant to be a reference to his burden of

production, he was entitled to know about that finding prior to final arguments. Siltman

supports this argument with caselaw holding that a defendant is entitled to a jury


                                             6
instruction on self-defense if he meets his burden of production such that, in a jury trial, a

defendant must know whether he has met that burden before final argument in order to

determine if he will be able to argue self-defense. See Johnson, 719 N.W.2d at 629-30.

But Siltman cites no authority for his proposition that in a bench trial the district court is

required to make and announce a finding that the defendant has or has not met the burden

of production prior to final arguments. There is no such requirement. And the record

does not reflect that Siltman’s final argument was affected by lack of such a ruling prior

to final arguments. Siltman fully argued both self-defense and that the state had failed to

prove substantial bodily harm.

       The state’s final argument focused extensively on Siltman’s failure to meet his

burden of production to support his self-defense claim and in its rebuttal argument, the

state correctly stated the law as it pertains to revival of an aggressor’s right to self-

defense. The record plainly establishes that Siltman carried on the assault after his initial

punch, did not try to escape although escape was possible, and never informed Mankey

by word or act that he desired to abandon the assault. Despite the wording of the district

court’s finding, the record makes it plain that the district court’s reference to Siltman’s

burden refers to the “burden of production,” not the “burden of proof” of self-

defense. We conclude that the finding does not demonstrate that the district court

improperly shifted the ultimate burden of proof to Siltman.

       Affirmed.




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