This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Jyll A. Gudvangen,



Filed December 5, 2000


Willis, Judge


Polk County District Court

File No. K399176


Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, 223 East Seventh Street, Suite 101, Crookston, MN  56716 (for respondent)


John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges an order denying her pretrial notice to remove, in which she argued that all judges in the judicial district should have been disqualified from hearing her case.  Appellant also argues that the district court erred in refusing to admit testimony that supported her claim that she did not perform legal services in exchange for money.  Because we find no abuse of discretion, we affirm.


            In February 1999, appellant Jyll A. Gudvangen was charged with one count of aggravated forgery, two counts of felony theft by swindle, one count of offering a forged court order, one count of unauthorized practice of law, and one count of wrongfully obtaining assistance (food stamps).

            In April 1999, appellant filed a notice to remove, by which she sought to disqualify all the judges of the judicial district in which she was to be tried from hearing her case on the ground that she had been married to the present chief judge of the judicial district from 1980 to 1984.  In an accompanying affidavit, appellant also described briefly certain disputes, now resolved, between herself and the chief judge over child rearing and child support.  The assistant chief judge of the judicial district denied the notice to remove.

            At her trial, appellant sought to call four witnesses, each of whom was prepared to testify that appellant had provided him or her with assistance in a quasi-legal matter without seeking payment.  The district court did not allow these witnesses to testify, and the jury found appellant guilty of all the charges.  This appeal followed.


            Appellant contends that the denial of her notice to remove all judges of the judicial district warrants a new trial.  The state argues that appellant is precluded from appealing the denial of her notice to remove because she failed to seek a writ of prohibition.  “The proper remedy to pursue when a motion to remove has been denied is to seek a writ of prohibition.”  State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984).  Appellant failed to seek a writ of prohibition, but she argues that the Minnesota Supreme Court’s holding in Jones v. Jones, 242 Minn. 251, 64 N.W.2d 508 (1954), allows a reviewing court to grant a new trial after a notice to remove is denied even when the defendant has not sought a writ of prohibition.  But Jones does not stand for this proposition.  Jones did not involve the denial of a notice to remove, but rather the district court’s refusal to recognize the defendant’s affidavit of prejudice on the ground that it was filed too late.[1]  The supreme court, noting that the deadline for filing an affidavit of prejudice should be given a liberal construction, determined that the affidavit had been timely filed and ordered a new trial before another judge.  Id. at 260, 64 N.W.2d at 514-15; see also Ellis v. Minneapolis Comm’n on Civil Rights, 295 N.W.2d 523, 525 (Minn. 1980) (citing Jones for the proposition that “failure to honor a proper affidavit of prejudice is reversible error requiring a new trial.”).  Here, the district court accepted affidavits from both appellant and her attorney and allowed appellant and the state to file memoranda before it issued its order denying her notice to remove.  At that point, the proper remedy was for appellant to seek a writ of prohibition.

But even if appellant did not waive her right to appeal the denial of her notice to remove by failing to seek a writ of prohibition, we conclude that her appeal fails on the merits.  Appellant argues that the assistant chief judge of the judicial district erred in denying her notice to remove all the judges of the judicial district.  Whether to grant a notice to remove based on allegations of actual prejudice is a matter in the district court’s discretion.  See Durrell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).  Appellate review of the denial of a notice to remove is limited to determining whether the district court abused its discretion.  See State v. Pero, 590 N.W.2d 319, 326 (Minn. 1999) (stating that because there was no claim that recusal was absolutely required by applicable rule, “we must only determine if the trial court abused its discretion in not granting the motion for recusal”).

Removal of a judge in a criminal proceeding is governed by Minn. Stat. § 542.16 (1998) and Minn. R. Crim. P. 26.03.  Rule 26.03, subdivision 13(4), provides that after a criminal defendant has disqualified a judge as a matter of right under Minn. Stat. § 542.16, subd. 1, a defendant may disqualify a substitute judge only upon an affirmative showing of cause.  To make an affirmative showing of cause, a litigant must show that a judge’s impartiality might reasonably be questioned.  State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993).  Applying this standard to the facts here, because appellant made no affirmative showing of cause regarding any judge other than her former husband, we find no abuse of discretion in the denial of appellant’s notice to remove all the judges of the judicial district.

            Appellant also argues that she should be granted a new trial because the district court abused its discretion in excluding testimony from four persons, each of whom was prepared to testify that appellant had provided him or her with assistance in a quasi-legal matter without seeking payment.  Appellant contends that this evidence was relevant to the charge that she had engaged in the unauthorized practice of law because it tended to show that she did not perform legal services in exchange for money.  She claims that exclusion of this evidence denied her the constitutional right to present a defense.

A criminal defendant “has the right to be treated with fundamental fairness and ‘afforded a meaningful opportunity to present a complete defense.’”  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)); accord U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7.  But evidence offered must comply with the rules of evidence.  State v. Wolf, 605 N.W.2d 381, 384 (Minn. 2000) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973); State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999), cert. denied, 120 S. Ct. 153 (Oct. 4, 1999)).  In a case where the defendant alleges that her constitutional rights were violated by the exclusion of evidence, appellate review is limited to asking whether the district court abused its discretion.  State v. Tovar, 605 N.W.2d 717, 722 (Minn. 2000) (citing State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985)).

At trial, appellant’s counsel offered the four individuals’ testimony as character evidence, twice stating that it was not offered as evidence of  habit.  The district court ruled that the expected testimony was both irrelevant and inadmissible as character evidence. 

The Minnesota Rules of Evidence provide that “[e]vidence which is not relevant is not admissible.”  Minn. R. Evid. 402. 

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.


Minn. R. Evid. 401.  The rules further provide that evidence, though relevant, may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


Minn. R. Evid. 403.  Because the very slight probative value of the proposed testimony was substantially outweighed by the danger that it would confuse the issues, and mislead the jury, and by considerations of undue delay and waste of time, the district court did not abuse its discretion in excluding the proposed testimony on relevance grounds.

Further, evidence of a person’s character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.  Minn. R. Evid. 404(a).  But the rule does allow “[e]vidence of a pertinent trait of character offered by an accused” to be introduced.  Minn. R. Evid. 404(a)(1).  The rules of evidence generally limit proof of character to reputation testimony in the form of an opinion.  Minn. R. Evid. 405.  But

[i]n cases in which character or trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.


Minn. R. Evid. 405(b).  The charge of unauthorized practice of law did not put appellant’s character at issue, and none of the defenses appellant raised to that charge involved character as an essential element.  The district court did not abuse its discretion in ruling that the proposed testimony was inadmissible as character evidence.

Appellant claims on appeal that the proposed testimony alternatively should have been admitted as evidence of habit.  Minnesota law provides that a party may not “obtain review by raising the same general issue litigated below but under a different theory.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant did not seek to introduce the proposed testimony at trial as evidence of habit, this argument is not properly before us.



[1] Before 1985, Minnesota Rule of Civil Procedure 63.03 referred to a “notice to remove” as an “affidavit of prejudice.”