This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-1735

State of Minnesota,

Respondent,

vs.

Zebadiah R. Mays,

Appellant.

Filed June 15, 1999

Affirmed

Klaphake, Judge

Ramsey County District Court

File No. K7-98-883

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Ste. 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Zebadiah R. Mays challenges his conviction of first-degree aggravated robbery, arguing that the state failed to comply sufficiently with the recording requirement of State v. Scales, 518 N.W.2d 587 (Minn. 1994). Because police noncompliance with Scales was due solely to a technical problem, we affirm.

D E C I S I O N

During Mays' interrogation regarding the armed robbery of Jimmy's Foods in St. Paul on March 9, 1998, Sergeant Frank Zaruba mistakenly failed to record the first part of the interrogation that included Mays' Miranda waiver. Zaruba had switched on the "record" button for the tape recorder, as he had done numerous times, but only later realized that the "power" button was off.

Mays argues that his entire confession should have been suppressed because the police violated the recording requirement of State v. Scales, 518 N.W.2d 587 (Minn. 1994). Scales requires that all custodial interrogations, including information about rights, waiver of those rights, and all questioning, must be recorded when the questioning occurs at a place of detention. Id. at 592. Any unrecorded statement made by a suspect during a custodial interrogation must be suppressed at trial if the recording violation is deemed substantial. Id. Whether a "substantial violation" of Scales has occurred is a question of law, which this court reviews de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

We conclude that the Scales violation in this case was not substantial. The violation of the recording requirement was undisputedly unintentional. In addition, the violation was unlikely to lead to a misunderstanding of Mays' legal rights because contemporaneously with Sergeant Zaruba's reading of those rights, Zaruba asked Mays to initial each right individually listed on a standard police form.[1] The police form was later received into evidence at trial. See Critt, 554 N.W.2d at 95 (enumerating nonexclusive list of factors to consider in determining whether Scales violation is substantial). Further, while Mays claims that Zaruba failed to record approximately 15 minutes of the interrogation, the length of the recording lapse alone is not the criterion by which we determine substantial compliance with Scales. See Critt, 554 N.W.2d at 15. Finally, because Mays did not testify at the Rasmussen hearing, there is no evidence supporting his claim that he was coerced to confess. Thus, the only evidence presented to and considered by the trial court was Zaruba's testimony that Mays' confession was voluntary. See State v. Brovold, 477 N.W.2d 775, 777 (Minn. App. 1991) ("party cannot raise an issue for the first time on appeal"), review denied (Minn. Jan. 17, 1992). Because the record demonstrates that the failure to record a portion of Mays' interrogation was not a substantial violation of Scales, we affirm his conviction.

Affirmed.

[1] Although it would have been better if Sergeant Zaruba had verified that Mays had received and waived his Miranda rights during a recorded interrogation subsequent to his discovery of the unrecorded portion of the interrogation, his use of the standard police form served the same purpose and was sufficient to show compliance with State v. Schroeder, 560 N.W.2d 739, 741 (Minn. App. 1997), review denied (Minn. May 20, 1997).