This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-1598

State of Minnesota,

Respondent,

vs.

Darrell Clarence Ward,

Appellant.

Filed April 14, 1998

Affirmed

Kalitowski, Judge

Meeker County District Court

File No. T3961603

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

David G. Berry, Assistant City Attorney for the City of Litchfield, 34 East Second Street, P.O. Box 682, Litchfield, MN 55355 (for respondent)

Ronald R. Frauenshuh, Jr., 129 N.W. 2d Street, Ortonville, MN 56278 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Foley, Judge.**

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

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

KALITOWSKI, Judge

Appellant Darrell Clarence Ward challenges his conviction for fifth-degree assault claiming: (1) the district court erred in refusing to grant the reasonable use of force jury instruction; (2) the district court committed several errors that denied appellant a fair trial; and (3) it was reversible error for the bench conferences not to be included in the transcript. We affirm.

D E C I S I O N

I.

"The refusal to give a requested jury instruction lies within the discretion of the trial court and no error results if no abuse of discretion is shown." State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). Because, as the district court found, "there were no facts which would reasonably allow a jury to find this case involved protecting property," we conclude the district court did not abuse its discretion in denying an instruction concerning reasonable use of force.

II.

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect. The court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.

State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The constitutional guarantee of a fair trial does not require a perfect trial, but rather one that is fair and does not prejudice the substantial rights of the accused. State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392-93 (1954).

Further, "[r]ulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). "[T]he trial court has broad discretion in deciding whether testimony by a qualified expert should be received." State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).

Appellant makes several arguments complaining about statements made at the trial, procedures used, and the evidence admitted or not admitted. The district court is in the best position to determine whether alleged misconduct was unfair or prejudicial to the accused and to determine what evidence to allow. Here, we cannot say the district court abused its discretion in concluding appellant was not denied the right to a fair trial.

III.

Finally, appellant argues that it was error for the bench conferences not to have been included in the transcript. However, there is nothing in the record to indicate that appellant requested either that additional parts of the trial be transcribed (if available from the recording) or that the bench conferences be recorded at all. See Minn. R. Civ. App. P. 110.02, subd. 1(a) (the appellant has the duty to order a transcript "of those parts of the proceedings not already part of the record which are deemed necessary for inclusion in the record"). Further, because there was no evidence presented that the lack of transcripts of bench conferences was prejudicial to appellant, we conclude their absence does not constitute reversible error.

Affirmed.