This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1360
State of Minnesota,
Respondent,
vs.
Trevir Lee Nakomous Siltman,
Appellant.
Filed May 18, 2015
Affirmed
Stoneburner, Judge
Ramsey County District Court
File No. 62-CR-13-9399
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and
Stoneburner, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
STONEBURNER, Judge
Appellant challenges his conviction of third-degree assault, arguing that the
district court deprived him of a fair trial by eliciting testimony from the state’s expert
witness and applied the wrong legal standard to his self-defense claim. Because the
district court’s questioning of a witness did not implicate its impartiality and the record
reflects that the district court properly evaluated appellant’s self-defense claim, we
affirm.
FACTS
Appellant Trevir Lee Nakomous Siltman assaulted fellow inmate Shaun Mankey
at the Ramsey County Correctional Facility (workhouse). The last punch thrown by
Siltman caused an injury to Mankey’s nose. The entire incident was observed by
correctional officer Brian Sanders and recorded by workhouse security cameras.
Mankey was taken to the emergency room at Regions Hospital where he was
treated by Dr. Carson Harris and residents working with Dr. Harris. Based on the history
Mankey gave and his symptoms of contusions to the head, nasal bleeding, and swelling in
the nasal area, Dr. Harris diagnosed fracture of the bony or cartilaginous area of the nose.
Siltman was charged with third-degree assault, in violation of Minn. Stat.
§§ 609.02, subd. 7a (defining “substantial bodily harm” as including a fracture of any
bodily member), .223, subd. 1 (defining third-degree assault as requiring infliction of
substantial bodily harm) (2012). Siltman waived his right to a jury trial and gave notice
of the intent to claim self-defense. The recording of the incident was admitted as a trial
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exhibit, and Mankey, Officer Sanders, and Dr. Harris testified for the state. After Dr.
Harris had been examined twice by each attorney, the district court expressed its
confusion and, without objection from either party, asked Dr. Harris (1) if symptoms
exhibited by Mankey could occur without a fracture and (2) whether cartilage actually
fractures. Dr. Harris reaffirmed his earlier testimony that Mankey’s symptoms were
consistent only with diagnosis of fracture.
In closing argument, Siltman’s attorney argued that, although Siltman initiated the
fight, at the time Siltman threw the punch that injured Mankey’s nose, Mankey was the
aggressor and Siltman was acting in self-defense.
The district court found Siltman guilty and sentenced him to 29 months in prison.
This appeal followed in which Siltman asserts that (1) by questioning Dr. Harris, the
district court deprived him of a fair trial, and (2) the district court improperly placed the
burden of proving self-defense on him.
DECISION
1. The district court’s questioning of Dr. Harris did not constitute error.
Claims raised for the first time on appeal, including claims of judge partiality and
violation of the Code of Judicial Conduct, are reviewed for plain error. State v. Schlienz,
774 N.W.2d 361, 365 (Minn. 2009). A plain-error analysis consists of a four-pronged
test that requires consideration of whether (1) there was an error; (2) which was plain;
and (3) which affected the defendant’s substantial rights, and if each of these prongs is
satisfied, consideration of whether the error needs to be addressed to ensure the fairness
and integrity of the judicial proceedings. Id. at 366. “An error is plain if it ‘contravenes
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case law, a rule, or a standard of conduct.’ An error affects substantial rights if it is
‘prejudicial and affect[s] the outcome of the case.’” Id. (citations omitted).
Siltman argues that the district court’s statement that it was confused signaled to
the state a weakness in its case, and the district court’s follow-up questions elicited
critical testimony that the state failed to elicit from its expert witness. Siltman cites State
v. Costello, in which the supreme court held that jurors may not question witnesses in a
criminal case because encouraging jurors to ask questions invites jurors to form
hypotheses about the case before all of the evidence is presented. 646 N.W.2d 204, 210-
11 (Minn. 2002). Siltman argues that the same concern exists when a district court,
acting as the factfinder, questions witnesses, and asserts that the questioning assisted the
state in meeting its burden of proof. We disagree.
The rules of evidence permit a judge to ask questions and even call witnesses.
Minn. R. Evid. 614(b). Minn. R. Evid. 614 1977 comm. cmt. cautions that the right to
call and question witnesses can be abused by a judge who assumes an advocate’s
position, but the record in this case does not demonstrate abuse of the rule or signal
partiality. The district court’s questions merely clarified for the district court Dr. Harris’s
prior and unequivocal testimony that Mankey suffered a fracture. See State v.
Rasmussen, 268 Minn. 42, 45, 128 N.W.2d 289, 291 (1964) (discouraging judicial
questioning of the defendant in a criminal case tried to a jury, but concluding that such
interrogation did not constitute reversible error when it was intended to merely clarify the
record).
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Siltman relies on cases that preclude a judge, sitting as factfinder, from seeking or
obtaining evidence outside of that presented by the parties at trial. See State v. Dorsey,
701 N.W.2d 238, 250 (Minn. 2005). Siltman also asserts that the district court violated
rule 2.9 (C) of the Minnesota Rules of Judicial Conduct, prohibiting a judge from
independently investigating facts. But the district court did not seek information outside
of evidence presented by the state or make any independent investigation of facts. The
district court sought only clarification of evidence already presented by Dr. Harris.
On this record, we conclude that Siltman has failed to establish error, let alone
plain error attributable to the district court’s questioning of Dr. Harris. Because there was
no error, the remaining factors of a plain-error analysis are not discussed.
2. The record reflects that the district court applied the correct standard to
Siltman’s self-defense claim.
The elements of self-defense include (1) absence of aggression or provocation on
the part of the defendant; (2) the defendant’s actual and honest belief that he or she was
in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds
for the belief; and (4) the absence of a reasonable possibility of retreat to avoid the
danger. State v. Johnson, 719 N.W.2d 619, 629-30 (Minn. 2006). When, as here, a
defendant admits that he was the initial aggressor, the defendant can establish a revived
self-defense claim by establishing that he (1) declined to carry on the assault, (2) honestly
tried to escape from it, and (3) clearly and fairly informed the adversary of his desire for
peace and an abandonment of the assault. See State v. Carridine, 812 N.W.2d 130, 144
(Minn. 2012).
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A defendant has the burden of production to come forward with evidence to
support a self-defense claim. State v. Penkaty, 708 N.W.2d 185, 207-08 (Minn. 2006). If
the defendant meets this burden, the burden shifts to the state to disprove one or more of
the elements of self-defense beyond a reasonable doubt. Id.
At trial, Siltman asserted that, although he was the initial aggressor, at the time he
threw the punch that injured Mankey, he was acting in self-defense. In its amended
findings of fact, conclusions of law, and order, the district court found that after Siltman
began the fight, Mankey came toward Siltman, attempting to hit him. The district court
found that Siltman “although able to escape, punched [Mankey] one more time in his
face. He connected with [Mankey’s] nose.” The district court also found that Siltman
“presented no evidence to support [self-defense] other than the video tape of the incident”
and “[t]hat [Siltman] has not met his burden of establishing that he acted in self-defense.”
Siltman argues that the district court’s findings demonstrate that the district court
improperly shifted the burden of proof of self-defense to Siltman, requiring reversal of
his conviction and remand for consideration under the correct legal standard.
The state argues that the district court’s finding that Siltman failed to meet his
“burden” plainly refers to Siltman’s “burden of production.” Under the circumstances of
this case, we agree.
Siltman’s argument is, in part, based on his assertion that if the reference in the
district court’s finding to his “burden” was meant to be a reference to his burden of
production, he was entitled to know about that finding prior to final arguments. Siltman
supports this argument with caselaw holding that a defendant is entitled to a jury
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instruction on self-defense if he meets his burden of production such that, in a jury trial, a
defendant must know whether he has met that burden before final argument in order to
determine if he will be able to argue self-defense. See Johnson, 719 N.W.2d at 629-30.
But Siltman cites no authority for his proposition that in a bench trial the district court is
required to make and announce a finding that the defendant has or has not met the burden
of production prior to final arguments. There is no such requirement. And the record
does not reflect that Siltman’s final argument was affected by lack of such a ruling prior
to final arguments. Siltman fully argued both self-defense and that the state had failed to
prove substantial bodily harm.
The state’s final argument focused extensively on Siltman’s failure to meet his
burden of production to support his self-defense claim and in its rebuttal argument, the
state correctly stated the law as it pertains to revival of an aggressor’s right to self-
defense. The record plainly establishes that Siltman carried on the assault after his initial
punch, did not try to escape although escape was possible, and never informed Mankey
by word or act that he desired to abandon the assault. Despite the wording of the district
court’s finding, the record makes it plain that the district court’s reference to Siltman’s
burden refers to the “burden of production,” not the “burden of proof” of self-
defense. We conclude that the finding does not demonstrate that the district court
improperly shifted the ultimate burden of proof to Siltman.
Affirmed.
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