State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0936

State of Minnesota,
Respondent,

vs.

Larry Duane Lucas, Jr.,
Appellant.

Filed April 11, 2022
Affirmed
Larkin, Judge

Crow Wing County District Court
File No. 18-CR-20-3983

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Janine L. LePage, Quinn Hoffman,
Assistant County Attorneys, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
A jury found appellant guilty of stalking and making threats of violence. Prior to
the start of trial, the district court found appellant in contempt of court and impose d a 90-
day sentence. On appeal, appellant seeks a new trial, arguing that the district court abused
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its discretion by refusing to grant a continuance so he could represent himself at trial. He
also argues that the district court erred in imposing the contempt sanction. We affirm.
FACTS
Appellant Larry Duane Lucas, Jr. began a romantic relationship with A.J.A. in 2020.
The state charged Lucas with three counts of assault and one count of making threats of
violence, based on allegations that he assaulted A.J.A. on August 1, 2020.
Approximately one week after the alleged assaults, A .J.A. obtained an order for
protection (OFP), which prohibited Lucas from contacting her and from going to her
residence. On August 24, Lucas appeared at A.J.A.’s apartment. She agreed to drive him
to another location. After A.J.A. dropped Lucas off, he left her threatening voicemails.
For example, he said, “I’m coming for you. I swear to God I’m f -cking hurting you.”
Lucas also sent A .J.A. threatening text messages. Lucas then returned to A .J.A.’s
apartment. Her children were present, and she called 911.
The state charged Lucas with felony counts of stalking and threats of violence based
on his conduct following the issuance of the OFP. The state sought an aggravated sentence
because some of the conduct occurred in the presence of children.
A public defender was assigned to rep resent Lucas on all of the pending charges.
On January 14, 2021, a jury found Lucas guilty of the charges stemming from the August
1 offenses. 1 On February 26, 2021, the district court sentenced Lucas to consecutive ,
executed 114-month and 21-month prison terms for the August 1 offenses.

1 Lucas has challenged the resulting convictions in a separate appeal.
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Lucas’s jury trial on the remaining stalking and threats -of-violence charges was
scheduled to begin on March 1, 2021, before a different district court judge. That day,
before jury selection began, Lucas informed the district court that he wanted to discharge
his attorney , asserting that his attorney had failed to regularly communicate with him.
Lucas’s attorney denied that assertion.
The district court advised Lucas that if he discharged his public defender the court
would not appoint another attorney and that he would have to proceed pro se. Lucas
replied, “ That would be fine.” The district court then stated that it would not grant a
continuance and that the trial would occur that day. Lucas told the court: “Well, then I
guess I’m going to get a contempt because I’m not going to go on the trial today.”
After further discussion, this exchange occurred:
THE COURT: I’m going to take your request under
advisement. I want to go review the rules and the law. If I do
allow you to discharge your public defender, as I indicated,
we’re going to trial today.
LUCAS: Well, then -- like I said, contempt. That’s what I’m
going to do.
THE COURT: We’re having a trial today whether you’re in
contempt or --
LUCAS: That’s fine. I’ll sit right here and put on a whole sh-t
show.
THE COURT: No, you won’t. No, you won’t because if you
disrupt these proceedings, you’ll sit in jail and we’ll have this
trial without you.
LUCAS: Okay. Well, then let’s go then.
THE COURT: All right. At this point you can take him back
down to the jail. I’m going to determine whether or not he’ll
be allowed to --
LUCAS: F-ck you.
THE COURT: You are in contempt right now, sir. I am adding
90 days for direct contempt of [c]ourt.
(Defendant exited the courtroom.)
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THE COURT: That will be consecutive to whatever he’s
already been sentenced.

The district court recessed the proceedings and later reconvened in Lucas’s absence.
The district court explained that Lucas reportedly had refused to change out of his jail
clothes and to return to the courtroom. The district court stated that it had found Lucas in
“direct contempt” because he “dropped th e F bomb” and appeared to have directed that
remark toward the presiding judge. The district court explained that it ordered Lucas to
“serve a consecutive 90 days in jail,” even though it had planned to “allow him an
opportunity to purge that contempt by not disrupting further proceedings.” The district
court noted that Lucas was “not present to even discuss any of these issues.”
The district court asked the attorneys how they wanted to proceed. Lucas’s counsel
requested a continuance “of at least a week ” and indicated that Lucas would be willing to
waive his speedy-trial demand. Lucas’s counsel indicated that Lucas was not “emotionally
ready to proceed.” The district court continued the trial to the next day and informed the
attorneys that “if [Lucas] continues to absent himself from these proceedings, as of
tomorrow morning we will plan to proceed with selecting a jury and trying [the] case.”
Before adjourning for the day, the district court directed the bailiff to ascertain whether
Lucas would be willing to return to the courtroom. Lucas reportedly was unwilling to do
so.
The next morning, Lucas refused to attend the trial and indicated that he wanted to
discharge his attorney and proceed pro se. The district court found that Lucas had waived
his ri ght to be present for trial and ruled that the trial would proceed despite Lucas’s
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absence. The district court stated that it would “reinstate” Lucas’s right to be present for
trial if he gave assurances that he would behave appropriately. Lucas was informed of the
court’s decision and told a bailiff that he did not want to appear for trial.
The district court arranged for Lucas to appear from jail remotely via Zoom. Lucas
told the court that he wanted to discharge his attorney and had “pro se paperwork.” Lucas
also told the district court that he did not want to appear and did not understand how the
trial could go on with counsel he was “trying to fire.” The district court indicated that if it
granted the petition for Lucas to proceed pro se, it would not grant a continuance. Lucas
then walked off camera. Thus, the district court did not discharge Lucas’s attorney. The
district court found that Lucas’s behavior was “designed as a delay tactic” and observed
that Lucas was unhappy with his sentenc es for the August 1 offenses. The district court
held the trial in Lucas’s absence, and Lucas’s public defender represented him at trial.
The jury found Lucas guilty of stalking and threats of violence . It also found that
the offenses were committed in the presence of a child. At sentencing, t he district court
revisited its contempt finding and stated that it had found Lucas in direct contempt pursuant
to Minn. Stat. § 588.20, subd. 2(1) (2020). The district court sentenced Lucas to a 36 -
month prison term for stalking, consecutive to the sente nces previously imposed for the
August 1 offenses. The district court ordered that the 90-day contempt sanction be served
consecutive to the sentence s for the August 1 offenses and before the executed 36-month
prison term for stalking.
Lucas appeals.

6
DECISION
I.
Lucas contends that the district court abused its discretion by not continuing the
trial. We review a district court’s denial of a continuance request for an abuse of discretion.
State v. Courtney, 696 N.W.2d 73, 81 (Minn. 2005). “A district court abuses its discretion
when its decision is based on an erroneous view of the law or is against logic and the facts
in the record.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
In determining whether to grant a continuance request , the district court must
consider the facts and circumstances surrounding the request. State v. Fagerstrom , 176
N.W.2d 261, 264 (Minn. 1970); State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998). In
his brief to this court, Lucas claims that he requested a continuance to “prepare to represent
himself.” But the record indicates that his request was not quite so clear.
When Lucas informed the district court that he wanted to represent himself at trial,
he did not expressly request a continuance. The distr ict court responded that it needed to
“review the matter” and informed Lucas that if it allowed him to discharge his attorney, it
would not grant a continuance and the trial would occur that day. Lucas responded that he
would not go to trial that day, he could not “do it,” it was not “possible,” and he could not
“deal another week with the prosecutor talking sh -t.” Lucas stated that he would rather
“get a contempt” and left the courtroom.
After Lucas left the courtroom , his attorney requested a continuan ce of “at least a
week,” because Lucas was not “emotionally ready to proceed with the trial .” Defense
counsel informed the court that Lucas was willing to waive his speedy -trial demand. The
7
district court continued the matter to the next day, noting that it was impossible to make
“definitive rulings” because Lucas was not present.
Lucas’s contention that the district court erred by refusing to further continue the
trial is partly based on his assertion that he had “an absolute right” to exercise his right to
self-representation “because jury voir dire had not begun.” The right of self-representation
has been described as “virtually absolute, subject only to the conditions necessary to a
waiver of the right to assistance of counsel.” State v. Christian, 657 N.W.2d 186, 191
(Minn. 2003). A defendant’s request for self-representation should be granted if it is “clear,
unequivocal, and timely” and the defendant “knowingly and intelligently waives his right
to counsel.” State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). “[S]elf-representation
motions made after the beginning of trial are addressed to the discretion of the district
court” and “trial begins, for this purpose, when the jury selection process begins .”
Christian, 657 N.W.2d at 193-94.
Although Lucas’s request for self-representation may have been timely, he did not
provide a waiver of counsel. The Minnesota Rules of Criminal Procedure require the
district court to ensure that a defendant charged with a felony who wishes to repres ent
himself “enter on the record a voluntary and intelligent written waiver of the right to
counsel” and that if the defendant refuses to sign “the written waiver form,” the waiver
must be on the record. Minn. R. Crim. P. 5.04, subd. 1(4). Before accepting a waiver of
the right to counsel, the district court must advise the defendant of the following:
(a) nature of the charges;
(b) all offenses included within the charges;
(c) range of allowable punishments;
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(d) there may be defenses;
(e) mitigating circumstances may exist; and
(f) all other facts essential to a broad understanding of
the consequences of the waiver of the right to counsel,
including the advantages and disadvantages of the
decision to waive counsel.

Id. Lucas’s attorney informed the distr ict court that he had “offered to go over a pro se
petition” with Lucas and had “tailored one specifically for his case,” but Lucas was
unwilling to review the petition. Because Lucas never provided a waiver of counsel, h e
was not entitled to represent himself at trial. A continuance to prepare for self -
representation was therefore unnecessary.
Moreover, a defendant may not obtain a continuance by discharging his attorney or
seeking to represent himself for the purpose of delaying the proceedings. Christian, 657
N.W.2d at 191; Courtney, 696 N.W.2d at 81-82. Here, the district court found that Lucas’s
conduct constituted a delay tactic, and the record supports that fin ding. Given the
circumstances, the district court did not abuse its discretion by refusing to further delay the
start of trial.
Even if the district court had erred, Lucas must show prejudice to obtain a reversal.
See Courtney, 696 N.W.2d at 81. Prejudice exists when the failure to grant a continuance
denies the defendant a meaningful opportunity to prepare for trial. In re Welfare of T.D.F.,
258 N.W.2d 774, 775 (Minn. 1977). Lucas’s assertion of prejudice is tied to his request
for s elf-representation. Lucas notes that a violation of a defendant’s right to self -
representation requires a reversal without a showing of prejudice. See Richards , 456
N.W.2d at 263. He argues that “the district court’s refusal to grant a continuance
9
effectively denied [him] his right to self -representation by denying him any meaningful
opportunity to prepare for representing himself at trial.” He asserts that he should “be
granted a new trial at which he can exercise his constitutional right to represent himself.”
However, Luca does not assign error to the district court’s refusal to grant his request for
self-representation. Such an assignment of error would be futile given Lucas’s refusal to
cooperate with the procedures necessary to ensure that his decision to waive his right to
counsel was knowing and intelligent.
We appreciate that Lucas may have been upset about the outcome of the case
involving his August 1 offenses . B ut his emotional state does not excuse his refusal to
participate in the procedu res required to perfect a waiver of counsel. Absent a knowing
and intelligent waiver of counsel, Lucas was not entitled to represent himself at trial. Thus,
Lucas was not prejudiced by the district court’s refusal to further delay the trial for that
purpose.
Finally, Lucas points to the “moratorium on criminal jury trials” stemming from the
COVID-19 pandemic as a basis for finding error on appeal . See Order Governing the
Continuing Operations of the Minnesota Judicial Branch , No. ADM20-8001 (Minn. Jan.
21, 2021) (prohibiting district courts from starting new jury trials before March 15, 2021,
except under certain exceptions). He argues that trials were limited to those necessitated
by a speedy-trial demand and notes that he was willing to waive his right to a speedy trial.
But Lucas does not provide any authority or argument indicating that a violation of the
relevant supreme court order constitutes prejudicial error justifying a new trial. “An
assignment of error based on me re assertion and not supported by legal authority or
10
argument is waived unless prejudicial error is obvious on mere inspection. ” Brooks v.
State, 897 N.W.2d 811, 818 (Minn. App. 2017), rev. denied (Minn. Aug. 8, 2017). Again,
Lucas has not shown prejudicial error justifying relief from this court.
II.
Lucas contends that the district court erred in imposing the 90-day contempt
sanction.
“Contempt historically has been regarded as part of the court’s inherent power to
punish summarily offenses committed in its presence.” In re Welfare of R.L.W. , 245
N.W.2d 204, 205 (Minn. 1976). Although Minnesota statutes address the subject of
contempt, the judiciary’s contempt powers exist independent of those statutes. Id.; State
v. Tatum, 556 N.W.2d 541, 547 (Min n. 1996); see also Minn. Stat. §§ 588.01-.21 (2020)
(governing contempt of court). The Minnesota Supreme Court has explained:
The judiciary retains inherent authority to punish direct
contempt whether or not statutory authorization exists . . . .
This power is intended to be punitive in order to preserve the
dignity of the courtroom proceedings. While chapter 588
declares the court’s power, that contempt power exists
independent of the statute. The power is essential to the
effectiveness of all other court powers. This inherent authority
can be derived from the creation of the judiciary in article III,
section 1 of the Minnesota Constitution, and the necessity of
its preservation in our tripartite system of government.

Tatum, 556 N.W.2d at 547 (quotation and citation omitted).
There are two types of contempt: remedial and punitive. Id. at 544. Remedial
contempt vindicates “the rights of a party by imposing a sanction that will be removed
11
upon compliance with a court order that has been defied.” Id. Punitive contempt vindicates
“the court’s authority by punishing the contemnor for past behavior.” Id.
In addition, contempt may be direct or constructive. Id. Direct contempt is
disruptive conduct that occurs in the presence of the court, whereas constructive contempt
involves “a variety of conduct” committed outside the presence of the court, “of which the
court has no personal knowledge.” Id. at 544-45; see also Minn. Stat. § 588.01 (defining
direct and constructive contempt). Direct contempt ma y be punished summarily. Tatum,
556 N.W.2d at 545.
Finally, “[t]here are two kinds of criminal contempt in chapter 588: one
encompassed by sections 588.01 -.15 that is punishable at the discretion of the judiciary,
and the other in section 588.20 that is prosecutable by the state like any other crime.” State
v. Jones , 869 N.W.2d 24, 27 (Minn. 2015) (quotation omitted); see also Tatum , 556
N.W.2d at 546 (discussing section 588.20).
“The district court’s decision to invoke its contempt powers is subject to reversal
for abuse of discretion.” In re Welfare of Child. of J.B. , 782 N.W.2d 535, 538 (Minn.
2010). We review a punitive contempt order to ensure that it is not arbitrary, capricious,
or oppressive. Tatum, 556 N.W.2d at 547.
Lucas argues that the district court ’s contempt sanction was remedial, and not
punitive, because the district court mentioned providing Lucas “an opportunity to purge
that contempt by not disrupting further proceedings.” Lucas further argues that the district
court failed to follow the proper procedures for imposi ng a remedial sanction. For the
reasons that follow, we disagree that the district court imposed a remedial sanction.
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The district court summarily imposed a 90 -day contempt sentence because Lucas
made a profane statement while the presiding judge explained what would happen next in
the proceeding. Although the district court later indicated that it had planned to give Lucas
an “opportunity to purge that contempt,” it did not provide Lucas an opportunity to do so.
We do not view th ose circumstances as an erroneous imposition of a remedial contempt
sanction. Instead, we view those circumstances as a deliberate choice to impose a punitive
contempt sanction, despite an initial willingness to use a remedial sanction. The summary
sanction was clearly punitive. See id. at 545 (“The purpose of the district court’s summarily
imposed 6-month sentence was punitive because Tatum’s sentence was fixed and because
he had no opportunity to purge the penalty.”).
Lucas also argues that his conduct did not warrant a punitive sanction because it did
not interrupt the judicial proceedings. See Minn. Stat. § 588.01, subd. 2 (defining direct
contempt as “disorderly, contemptuous, or insolent behavior toward the judge while
holding court, tending to interrupt the due cours e of a trial or other judicial proceedings ,”
or “a breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt
the business of the court” ). As support, Lucas notes that “the court had ordered [him]
removed before he made the remark.” Regardless, the record shows that Lucas interrupted
the district court judge midsentence, stating, “F-ck you,” as the judge attempted to explain
what would happen next in the proceeding. Lucas’s comment was insolent and undeniably
interrupted the proceeding.
Lucas correctly observes that the district court erred in citing Minn. Stat. § 588.20,
subd. 2(1), as the basis for its contempt sanction. “[T]he misdemeanor penalty in section
13
588.20 cannot apply to summarily punished direct contempts.” Tatum, 556 N.W.2d at 546.
Nonetheless, the district court acted within its inherent and statutory authority. Section
588.03 states that “[a] direct contempt may be punished summarily” and requires an order
“reciting the facts as occurring i n the immediate view and presence of the court” and
“adjudging the person proceeded against to be guilty of a contempt, and that the person be
punished as therein specified.” The district court complied with those requirements. It
stated on the record that Lucas was in “direct contempt” because he “dropped the F bomb”
and appeared to have directed that obscenity toward the presiding judge. The district court
specifically imposed a 90-day sentence as a sanction. On this record, the district court did
not abuse its discretion in holding Lucas in direct contempt of court.
Affirmed.