This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Manivone Oot Khamphoune,



Filed May 23, 2006


Shumaker, Judge


Cottonwood County District Court

File No. KX-04-303



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and


L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant challenges his convictions of kidnapping and second-degree assault, arguing that he was denied his right to a fair trial when the same judge who presided during Khamphoune’s initial court appearance also presided as the fact-finder in his bench trial.  Because we find no error, we affirm. 


            Appellant Manivone Oot Khamphoune’s girlfriend, S.P., contacted Cottonwood County police and reported that Khamphoune had assaulted her and had detained her in her apartment.  According to S.P., Khamphoune suspected her of having an affair.  They argued, and when she tried to leave the apartment, Khamphoune grabbed her and threatened to shoot her with his gun.  Khamphoune then pointed the gun near her head and pulled the trigger, but she was not hit.  Khamphoune then forced her to have sex with him.  Police arrested Khamphoune and charged him with kidnapping, criminal sexual conduct, and assault with a dangerous weapon. 

At Khamphoune’s initial rule 5 court appearance, the judge conditionally appointed a public defender to represent him and informed him that he would have to furnish financial information to qualify for public-defender services.  Khamphoune indicated that he wanted to talk with his grandmother and that he would get an attorney.  Khamphoune then spontaneously made exculpatory statements denying the charges and accusing S.P. of making up the story because she was jealous of his new girlfriend. 

Subsequently, with the assistance of counsel, Khamphoune waived a jury trial and consented to a bench trial.  The same judge who presided over the initial appearance questioned Khamphoune about his waiver and ascertained that Khamphoune understood and agreed that he, the presiding judge, would replace the jury as fact-finder. 

The case was tried to the court.  Based on the evidence and testimony, the court found Khamphoune guilty of kidnapping and assault with a dangerous weapon, but not guilty of sexual assault. 


            Khamphoune claims for the first time on appeal that his right to a fair trial was violated because the judge presiding over his bench trial was biased after hearing Khamphoune’s spontaneous exculpatory statements during the initial court appearance.      Failure to move to disqualify an allegedly biased judge results in a waiver of the right to assert bias on appeal.  Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996).  Nonetheless, this court may, in its discretion, consider plain errors affecting substantial rights.  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Plain errors are reversible only if they seriously affected the fairness, integrity, or public reputation of judicial proceedings.  Griller, 583 N.W.2d at 742. 

When Khamphoune waived his right to a jury trial, he knowingly, intelligently, and voluntarily waived any objection to a bench trial before the same judge who presided over the initial appearance:

Q.        And, Mr. Khamphoune, do you understand that both         under   the Minnesota constitution and the United States       constitution, that you have a right to let a jury decide       your guilt or innocence?


A.        I understand.


Q.        And we are currently in the process of jury selection in   your trial and would seat probably 13 jurors; 12 of          which would have to deliberate, and all 12 of the jurors         would have to agree before you could be found guilty      of anything.  Do you understand that?


A.        Yes, I understand.


Q.        Now do you understand that if you give up your right       to a jury of citizens of Cottonwood County, that the    Judge, myself, would find the facts and apply the law?


A.        Yes, I understand. 


            Despite having the opportunity to challenge the judge as the presiding fact-finder, Khamphoune never objected.  

            However, even if Khamphoune had objected, there was no prejudicial error when the rule 5 judge also presided over the bench trial.  The judge heard only exculpatory statements from Khamphoune.  Khamphoune denied being with S.P., stating that on the night of the incident he and several friends “[went] to party in [his friend’s] house.  I drink beer all night and vodka over there . . . .  My friend drop me home,” and that he slept “upstairs in my grandma[’s] house” until the next morning when the police arrested him.  He contended that S.P. falsified the story against him out of jealousy:

[S.P.] [doesn’t] leave me alone because I have a new girlfriend already.  That’s my new girlfriend is [].  She get mad.  She tell somebody to come tell me.  She say I am going to get big trouble because I have a new girlfriend, [].  But I talk to this friend.  Me and her is over with.  I can’t say no more.  But she say you going to get big trouble; you better watch out. 


Khamphoune contested the allegation that he shot S.P. with a gun and argued that this was “not true because . . . [he] [had] never been there before.”  Khamphoune concluded, “I never went to apartment before at all.  That girl there, she don’t leave me alone.  She too smart, sir.  She don’t come talking to me, but she tell somebody to come talking to me, you know.”

Nothing in Khamphoune’s statements could be deemed to be inculpatory so as to cause the judge to be biased toward finding him guilty.  These statements were consistent with Khamphoune’s theory of defense.  Furthermore, the judge’s impartiality is indicated by the fact that he found Khamphoune not guilty of sexual assault.  The district court did not commit plain error when it presided over both the rule 5 appearance and Khamphoune’s bench trial.