This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Daniel Dean Stewart,




Filed December 28, 2004

Affirmed in part, reversed in part, and remanded

Huspeni, Judge*



Clay County District Court

File No. KX-02-2389


Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction on the charge of felony nonsupport of a child, arguing that the trial court erred in determining that venue was proper in Clay County and in its refusal to permit appellant to testify regarding his inability to pay child support.  Appellant further argues that he received ineffective assistance of counsel and, as a result of cumulative error, that he was denied a fair trial.  Because appellant has shown no prejudice, we affirm the determination that venue was proper in Clay County.  Because the trial court abused its discretion in refusing to permit appellant to testify regarding his inability to pay child support, we reverse and remand for a new trial and we conclude the actions of appellant’s trial attorney did not rise to the level required to sustain a determination of ineffective assistance of counsel.


            Appellant Daniel Deane Stewart and Victoria Owens are parents of a child born in 1986.  A subsequent Goodhue County order directed that appellant pay child support.  The parties married in 1990 and were divorced in 1991 pursuant to a decree issued in Clay County, Minnesota.  At the time of the dissolution, appellant was the custodial parent of a child from another marriage, unemployed, and receiving aid from the State of Minnesota.  The dissolution judgment stated that appellant would not be required to pay child support to Owens until he found full-time employment.  At the time of the dissolution, however, appellant was $4,776.81 in arrears under the Goodhue County order.  Pursuant to a stipulated order in 1996, appellant was to pay $80 per month toward these arrearages.

A hearing was held in early 1999 in Clay County to determine appellant’s current child-support obligation.  Appellant testified he was a self-employed truck driver and submitted income tax forms to prove income.  The ALJ determined that appellant was voluntarily underemployed and had the ability to earn $12 per hour as a tractor trailer operator; appellant was ordered to pay $303 per month in child support.[1]  The district court denied appellant’s motion for review.

            In May 2002, the Clay County district court found appellant in civil contempt for nonpayment of child support.  In December 2002, the Clay County Attorney’s Office charged him with felony nonsupport of a child in violation of Minn. Stat. § 609.375, subd. 2a(2) (2002).  Appellant moved to dismiss the charge due to lack of probable cause, and at an omnibus hearing in May and June 2003, he submitted income tax returns for the years 1999, 2000, and 2001, and argued that he had a lawful excuse for nonpayment because of his minimal income.  He later filed a revised motion to dismiss the charge due to a lack of jurisdiction, improper venue, and lack of probable cause.  Appellant argued that because neither he, Owens, nor the child lived in Clay County, the district court did not have jurisdiction to hear the matter, and venue was improper.  The district court concluded that Clay County was a proper venue because the order for child support originated there.  Appellant’s emergency petition for a writ of prohibition or mandamus was denied by this court, noting that appellant had not shown the required basis for granting such a remedy.

On the morning of trial in August 2003, appellant’s counsel officially served notice to the court of his affirmative defense of the inability to pay as a lawful excuse for nonpayment of support.  Counsel stated he was unable to file the notice earlier, and the issue of inability to pay had already been raised at the omnibus hearing.  Respondent argued that not filing the written motion of the affirmative defense violated Minn. R. Crim. P. 9.02.  The trial court ruled that because under the rules written notice of an affirmative defense is required, presentation of the affirmative defense was precluded.  The jury found appellant guilty.  Imposition of sentence was stayed on condition that appellant serve 30 days in jail, complete 200 hours of community service, and make all child support payments in a timely manner.  This appeal followed.




We initially address appellant’s claim that venue was improper in Clay County.  The pretrial remedy for improper venue is a change of venue.  Minn. Stat. § 542.10 (2002); Rosnow v. Comm’r of Pub. Safety, 444 N.W.2d 591, 592 (Minn. App. 1989), review denied (Minn. Aug. 22, 1989).  Pursuant to Minn. Stat. § 542.10, venue is proper if “the county where the action was begun is a county in which the cause of action or some part thereof arose.”  As to venue, the state must prove beyond a reasonable doubt that the charged offense occurred in the charging county.  Minn. Const. art. I, § 6.  “Venue is determined by all the reasonable inferences arising from the totality of the surrounding circumstances.”  State v. Carignan, 272 N.W.2d 748, 749 (Minn. 1978). 

Respondent argues that this court already decided the issue of venue by denying appellant’s writ of mandamus.  A petition for writ of mandamus is the proper vehicle for review of a pretrial venue order.  Ebenezer Soc’y v. Minn. State Bd. of Health, 301 Minn. 188, 193, 223 N.W.2d 385, 388 (1974).  When an appellate court has determined a legal issue on the merits, that ruling becomes the law of the case and will not be re‑examined in a later appeal.  Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994).  But, the order of this court denying appellant’s emergency petition did not settle the issue of proper venue, but rather determined that “the state has shown some grounds for trying petitioner in Clay County, although for purposes of this petition we need not decide whether the state can prove proper venue at trial.” 

Pursuant to Minn. Stat. § 627.01, subd. 1 (2002), “every criminal cause shall be tried in the county where the offense was committed.”  Further, “‘[c]ounty where the offense was committed’ means any county where any element of the offense was committed.”  Id., subd. 2 (2002).  According to the nonsupport of a child statute,

[a] person who violates this section may be prosecuted and tried in the county in which the support obligor resides or in the county in which the obligee or the child resides.[2]

Minn. Stat. § 609.375, subd. 5 (2002) (emphasis added).  Appellant contends that as a result of the nonsupport statute, venue is not proper in Clay County because none of the parties reside in that county.  We disagree. 

Applying the two statutes, venue is established in the county where any element of the offense was committed or may be tried in the county in which any of the parties reside.  Appellant was charged with nonpayment of child support pursuant to Minn. Stat. § 609.375, subd. 1 (2002).  The legal obligation of support is an element of the crime of nonsupport.  Minn. Stat. § 609.375, subd. 1.  Meeting its burden, at trial respondent elicited testimony, establishing that the order was a Clay County order.  We conclude that because the obligation to provide care and support to the child originated in Clay County, the case was properly venued in Clay County.  See Minn. Stat. § 627.01. 



Appellant next argues that the trial court’s erroneous evidentiary ruling improperly denied him the right to present the affirmative defense of lawful excuse to nonsupport of a child.  Rulings on evidentiary matters are within the broad discretion of the trial court and will be reversed only upon a clear abuse of that discretion.  State v. Hooper, 620 N.W.2d 31, 38 (Minn. 2000).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997). 

A.             Lawful Excuse

Initially, the parties disagree over whether inability to pay is a lawful excuse.  The nonpayment-of-child-support statute does not provide a specific definition of lawful excuse.  The statute provides:

It is an affirmative defense to criminal liability under this section if the defendant proves by a preponderance of the evidence that the omission and failure to provide care and support were with lawful excuse.


Minn. Stat. § 609.375, subd. 8 (2002). 

Appellant, in arguing that inability to pay is a lawful excuse under Minnesota law, relies on State v. Townsend, 259 Minn. 522, 529, 108 N.W.2d 608, 613 (1960), where the court held that a defendant was not criminally liable for failing to pay support when that failure was due to an inability to pay and the defendant made a reasonable attempt to work and earn money.  In Townsend, a father had been recently released from prison, was working temporary jobs secured by the Minnesota State Employment Office, reported to the employment office almost daily, had no skills, and could only obtain common labor.  Id. at 528, 108 N.W.2d at 612.  The supreme court concluded that the “return of the defendant from a long prison term of several years, in part accounting for a derelict existence; his inability at the time in question to obtain regular or steady work; and his physical disability are all conditions which might be shown to overcome alleged intent or willfulness,” which was required by the 1960 statute.  Id. at 529, 108 N.W.2d at 613. 

Respondent argues that the ruling in Townsend is distinguishable because it was based on an antiquated statute and appellant did not prove that he made a reasonable attempt to find employment.  Further, respondent argues that inability to pay is not one of those limited situations where the courts have determined that lawful excuse exists for nonpayment of child support; that physical disability, incarceration, and mental incapacity must be shown.  See State v. Burg, 648 N.W.2d 673, 680 (Minn. 2002) (implicitly accepting the district court’s determination that mental incapacity was a lawful excuse and holding that the state had the burden of proof)[3]; State v. Wood, 168 Minn. 34, 38, 209 N.W. 529, 530-31 (1926) (holding that incarceration, without additional facts,was not sufficient to prove lawful excuse, as appellant may not have exhausted prior income, and still may have had the ability to pay support to his children); State v. Garrison, 129 Minn. 389, 391, 152 N.W. 762, 763 (1915) (stating that medical illness was a lawful excuse).

We cannot limit the concept of lawful excuse as stringently as respondent would seem to suggest, however.  Neither the courts nor the legislature have clearly defined “lawful excuse.”  Though the courts have recognized this concept in a number of situations, they clearly have not limited its application to only those situations that have specifically been addressed.  We conclude that a case-by-case analysis is proper.   

B.             Evidentiary Ruling

The defense must give notice of a defense before the omnibus hearing.  Minn. R. Crim. P. 9.02, subd. 1(3)(a).  While there is no dispute that the formal notice of affirmative defense was late because it was tendered only on the morning of trial,[4] as a general matter, the court should consider the following factors in deciding whether evidence preclusion is proper:  (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  Preclusion of evidence is a severe sanction, which should not be lightly invoked.  Id. at 374. 

Here, appellant raised the issue of inability to pay at the omnibus hearing; he submitted tax returns for the years 1999, 2000, and 2001, and both appellant and respondent argued the issue of ability to pay at that hearing.  Any prejudice to respondent from the late presentation was, at worst, minimal.  Respondent clearly had notice of the lawful-excuse argument since the time of the omnibus hearing.  In denying appellant’s request to present an affirmative defense, the trial court stated “the rules require notice in this kind of a situation and that’s my ruling and you didn’t give notice, so you’re not going to present it.”  According to the record, the trial court did not consider a continuance.  The prejudice that respondent may have encountered surely would have been cured by a brief continuance.  Even the need for a continuance is doubtful, however, in view of the thorough litigation of the issue of inability to pay during the omnibus hearing.  We conclude that the trial court abused its discretion by denying appellant the ability to present evidence of lawful excuse, and a new trial is warranted in which appellant shall be permitted to present that evidence.  While on the record before us it is unclear whether a fact-finder would deem appellant’s employment situation to be a lawful excuse, the fact-finder should at least have the opportunity to consider the evidence. 


          Appellant’s next argument is similar to that which he makes regarding presentation of an affirmative defense of lawful excuse.  He testified in his own behalf at trial, and wished to explain his intent and motivation for nonpayment of child support; he had been involved in a vehicle accident that resulted in a death, and that such a record severely limited his ability to be gainfully employed as a truck driver.  He urges that the trial court’s refusal to allow him to explain these matters to the jury deprived him of his constitutional right to testify on his own behalf.  He also argues that respondent opened the door for the testimony appellant seeks to present by arguing that he was voluntarily underemployed.  He alleges that he was entitled to rebut this argument of respondent with his own testimony.  See Morissette v. United States, 342 U.S. 246, 274, 72 S. Ct. 240, 255 (1952) (holding that the existence of criminal intent is a question of fact, which must be submitted to a jury). 

There is merit in appellant’s argument.  If a trial court’s evidentiary ruling is determined to be erroneous, and the error reaches the level of a constitutional error, such as denying the defendant the right to present a defense, the standard of review is whether the exclusion of evidence was harmless beyond a reasonable doubt.  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).  The error cannot be said to be harmless beyond a reasonable doubt, and therefore reversible, where there is a reasonable possibility that the error complained of may have contributed to the conviction.  Id.

The U.S. Supreme Court has held that a criminal defendant has a constitutional right to testify in his or her own behalf.  Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 2708 (1987).  Even though this right is limited by rules of evidence, courts have concluded that “the defendant’s constitutional right to give testimony regarding his intent and motivation is very broad.”  State v. Buchanan, 431 N.W.2d 542, 550 (Minn. 1988).  And this court has found that criminal defendants have a due-process right to explain their conduct to the jury, “whether or not their motives constitute a valid defense.”  State v. Rein, 477 N.W.2d 716, 719 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992).

We conclude that the district court committed error in precluding appellant from testifying on his own behalf.  And the trial court’s error cannot be said to be harmless beyond a reasonable doubt.  Therefore, a new trial is required.[5]



Appellant’s final claim is that his trial counsel’s failure to provide notice to the court of the affirmative defense of lawful excuse deprived him of effective assistance of counsel.  Arguably, our determination that the trial court abused its discretion in ruling as it did on the notice of claim of affirmative defense makes it unnecessary for us to address this issue.  We shall do so, nonetheless, in the interests of fully addressing all issues on appeal.

A claim of ineffective assistance of counsel requires a defendant to show (1) that defense counsel’s representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  There is a strong presumption that counsel’s performance fell within the wide range of reasonable assistance.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). 

Appellant argues that a reasonably competent attorney would have followed the rules of discovery.  Because of defense counsel’s discovery violation, appellant’s affirmative defense of lawful excuse because of an inability to pay was precluded.  All evidence pertaining to appellant’s alleged difficulties in gaining and maintaining employment was precluded, as well as appellant’s income tax filings.  Appellant argues, therefore, that he was prejudiced by the discovery violation, and that defense counsel’s representation was clearly ineffective.  We disagree.  Appellant’s attorney presented the lawful-excuse argument at the omnibus hearing, and it was at least arguably reasonable that the attorney believed any further notice was unnecessary.  Under the particular facts of this case, the failure to check the appropriate box on form 18 does not rise to the level required to prove ineffective assistance of counsel. 

Affirmed in part, reversed in part, and remanded.

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

[1]  According to the Minnesota Child Support Guidelines, Minn. Stat. § 518.551, subd. 5 (1998), child support would have been $403 per month.  The ALJ deviated downward due to appellant’s custody of another child.

[2] Language used in Minnesota Statutes is given specific meaning by the section governing interpretation of statutes; thus “may” is permissive while “shall” is mandatory.  Minn. Stat. § 645.44, subds. 15, 16 (2002). 

[3] This was based upon the pre-2001 statute that included the phrase “without lawful excuse” within the paragraph defining the crime.  This element was subsequently moved to another subdivision, under the heading of affirmative defense. 

[4] The parties disagree over what was required to plead the affirmative defense of lawful excuse.  Appellant claims that his attorney simply failed to check a box on form 18, Notice of Defenses and Defense Witnesses for Felony or Gross Misdemeanor Cases.  Respondent claims that appellant was required to specify facts, which provide the basis for the affirmative defense of lawful excuse.  We agree with appellant that all that was required was to check the box on the form denoting that he was bringing the affirmative defense of lawful excuse.

[5]  Because we reverse and remand for a new trial due to an abuse of discretion in denying an affirmative defense and limiting appellant’s trial testimony, we do not address appellant’s argument that cumulative errors of the trial court necessitated a new trial.