author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Karen Marie ATKINSON, Appellant.
    No. 99-0180.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Charles A. Stream, County Attorney, for appellee.
   LARSON, Justice.

Karen Atkinson was convicted of possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (1997). She appealed, and the court of appeals affirmed. On our further review, we vacate the decision of the court of appeals and remand to the district court.

I. Facts and Prior Proceedings.

On October 4, 1998, Karen Atkinson called her former husband, Scott Atkinson, and asked him for a ride to Oskaloosa. Scott agreed to take her, but he doubted whether his car would make the trip. He contacted a friend and arranged to swap cars for the trip. The defendant accompanied Scott to make this exchange. Scott testified he moved his keys and his “fanny pack” to the friend’s car, a station wagon. He testified he placed the fanny pack under the driver’s side of the front seat. Karen testified she could not recall specifically whether Scott had his fanny pack with him because “[h]e almost always has his [fanny pack] with him so I wouldn’t have taken note of [whether he had] it or not.” Scott and Karen drove to Oskaloosa.

In Oskaloosa they were stopped by an officer of the Oskaloosa Police Department who observed their car make an illegal turn. The officer asked Scott to leave the station wagon to go to the patrol car. Karen remained in the front passenger seat. From his patrol car, the officer observed Karen constantly moving in the front seat, “reaching for something.” The officer discovered Scott’s license was suspended, and he arrested Scott on that charge. The officer then approached the defendant in the station wagon, informed her that Scott was under arrest, and asked her to get out of the car. Another officer noticed a black purse in the middle of the front seat. The officers searched the purse because it had been next to the driver. This search revealed a glass pipe for smoking methamphetamine. The defendant admitted the purse and its contents were hers. She was arrested for possession of drug paraphernalia, but that is not the charge involved in this appeal. A search of the vehicle revealed Scott’s fanny pack under the driver’s seat. That is the subject of this case.

A search of the fanny pack revealed approximately seventeen grams of methamphetamine, a scale, and an organizer. An officer testified the packaging and amount of drugs were consistent with a sale, rather than mere use, of methamphetamine. A search of Scott revealed a pager and $104 in cash. Scott pled guilty to possession of methamphetamine, under five grams, with intent to deliver and was sentenced to a prison term not to exceed ten years. The defendant’s case went to trial, and the jury found her guilty of possession of methamphetamine, in excess of five grams, with intent to deliver. The court sentenced her to a term not to exceed twenty-five years.

At trial Scott testified on behalf of the defendant. He said the fanny pack and the drugs in it were his and that he intended to deliver them. However, he testified under cross-examination that the defendant knew there were drugs in the fanny pack:

Q: All right. Did the defendant know — Karen Atkinson know — there [were] drugs in that fanny pack?
A: Yes.
Q: Have an idea what type — Did she know what type of quantity was in there?
A: It would be fair to say that there was a somewhat substantial quantity there.
Q: But did Karen know that?
A: Yes.

The defendant bolstered Scott’s testimony that she knew there was methamphetamine in his fanny pack when she testified:

Q: Would you be aware of what’s in his fanny pack at any given time?
A: I know that he has in the past kept drugs in there.
Q: And how do you know that?
A: Because he has sold drugs to me before and has had them in that bag.

II. Scope of Review.

We review challenges to the sufficiency of the evidence for errors at law. We uphold a finding of guilt if “substantial evidence” supports the verdict. “Substantial evidence” is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. We review the facts in the light most favorable to the State. Furthermore, we consider not only evidence which supports the verdict, but all reasonable inferences which could be derived from the evidence.

State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000) (citations omitted).

III. The Possession Issue.

The defendant contends there was insufficient evidence of her possession of the methamphetamine. This is a constructive-possession case: actual possession requires substances to be found on the defendant’s person, and that was not the case here. See State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990).

We have said constructive possession is established by showing

(a)that the accused exercised dominion and control ... over the contraband,
(b) that he had knowledge of its presence, and
(c) that the accused had knowledge that the material was a narcotic.

State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973). Reeves, which involved drugs found in a building, discussed the proof required and the inferences that may be drawn:

If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred.... But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.

Id. at 23.

When the “premises” in which drugs are found is a motor vehicle, knowledge by the occupants as to the presence and nature of the contraband might erroneously be assumed based simply on their proximity to the drugs. Specific rules have therefore been developed to apply in motor vehicle cases. See, e.g., Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Automobile of Which Defendant Was Not Sole Occupant, 57 A.L.R.3d 1319 (1974) [hereinafter Short]. While some cases recognize a re-buttable presumption of possession if the defendant is the owner or operator of the vehicle, 25 Am.Jur.2d Drugs and Controlled Substances § 149, at 335 (1996), the defendant in this case was neither an owner nor an operator.

The case on which the A.L.R. annotation is based, Payne v. State, 480 S.W.2d 732 (Tex.Crim.App.1972), overruled on other grounds by Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987), is similar to the present case. In Payne the defendant was a passenger in a vehicle in which drugs were found in a matchbox on the driver’s side of the dashboard. The Texas Court of Criminal Appeals held the state had failed to show the defendant exercised the necessary control over the drugs. Quoting an Oklahoma case, the court said: “ ‘Possession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed.’ ” Id. at 734 (quoting Brown v. State, 481 P.2d 475, 477 (Okla.Crim.App.1971)); see also 25 Am.Jur.2d Drugs and Controlled Substances § 149, at 335 (“Where the defendant is not the sole occupant of an automobile, his presence in an automobile in which illicit drugs are found does not, without more, sustain his conviction of possession of such drugs.”); Short, § 2(a), at 1323.

In Mitchell v. State, 268 Ga. 592, 492 S.E.2d 204 (1997), a vehicle was operated by a man named Hicks and owned by his girlfriend. Hicks picked up the defendant, Mitchell, and they were arrested in a routine traffic stop. An officer walked a police dog around the car, and the dog alerted to drugs. Officers searched the car and found plastic bags containing cocaine under the front passenger side floor mat. The court held the proximity of the drugs to the defendant was insufficient evidence of possession because (1) there was no presumption of possession because Mitchell did not own or control the car and (2) a finding of constructive possession cannot rest on mere proximity, especially when the contraband is hidden.

In Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), the defendant was a passenger in a car stopped for a traffic violation. The court reviewed the analytical framework employed by other jurisdictions when contraband is found in a vehicle occupied by more than one person and suggested the facts to be considered are: (1) was the contraband in plain view, (2) was it with defendant’s personal effects, (3) was it found on the same side of the car seat as the defendant or immediately next to him, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant. Id. at 795; see also 25 Am.Jur.2d Drugs and Controlled Substances § 149, at 335.

Taking the State’s evidence against this defendant in the light most favorable to the verdict, we may assume the defendant knew the fanny pack was under the driver’s seat and that she knew it contained methamphetamine. For purposes of resolving the issue of control, we may even assume she knew it contained a “substantial” amount of methamphetamine as her former husband testified. The problem with the State’s case is it did not show that the defendant exercised dominion and control over the drugs. A defendant’s close physical proximity to contraband, as virtually all authorities agree, is insufficient in itself to constitute dominion and control.

Applying the considerations set out above, the evidence was undisputed that the drugs were not in plain view, they were not with the defendant’s personal effects, they were not found on the same side of the car or immediately next to her, and the defendant was not the owner of the car. There was, however, suspicious activity by the defendant, as will be discussed later. See also Hurtado v. State, 881 S.W.2d 738 (Tex.Crim.App.1994) (“[F]urtive movements or gestures alone are insufficient evidence to prove guilt.”).

Here, the fanny pack and its contents, according to the undisputed evidence, were the property of Scott Atkinson, the driver. There was no evidence the defendant had the right to exercise control over the fanny pack. In fact, the evidence was that, when she had obtained drugs from the fanny pack in the past, she had done so as a paying customer, not as one who had any ownership or proprietary rights in the drugs. A search of the defendant at the arrest scene did not reveal any methamphetamine on her person.

While it seems anomalous to look at a defendant’s “right” to control illegal drugs in order to establish possession, that concept basically distinguishes a defendant’s raw physical ability to exercise control over contraband simply because of the defendant’s proximity to it and the type of rights that can be considered constructive possession. A Florida case, State v. Snyder, 635 So.2d 1057 (Fla.Dist.Ct.App.1994), illustrates the point. In Snyder the defendant was a passenger in a car driven by his codefendant, John Parker. The two drove to a post office where, as the defendant knew, Parker was expecting the arrival of a shipment of methamphetamine. Parker picked up the shipment and offered some to the defendant, who said he would like to try some. Parker began to form two “lines” of methamphetamine onto a cassette case, and he placed the rest under his seat in the car. Police arrived before he completed the lines. Parker’s affidavit stated the defendant had not acquired actual possession of the drug because he had no right or opportunity to exercise dominion and control over it. Id. at 1058. The state showed the defendant had prior knowledge of the delivery of the drugs and that he intended to try some of the methamphetamine had police not arrived. The trial court ruled the state had failed to show dominion and control. Id. at 1058. The court of appeals affirmed. It said:

The state argues that Snyder’s proximity to the contraband together with his prior knowledge of the delivery and intent to try some of the substance gives rise to the inference that Snyder had a proprietary interest in the methamphetamine. For these facts to give rise to constructive possession, one must infer from the proprietary interest that Snyder had dominion and control. This reasoning is untenable because neither inference can be deduced from the available facts and because the ultimate existence of constructive possession requires an impermissible pyramiding of inferences. The interpretation of the facts in the light most favorable to the state establishes no proprietary rights in Snyder, nor any immediate right to reduce the methamphetamine to his possession, because Parker had not yet relinquished control over the line he was organizing for their use.
The undisputed facts show that police interrupted Parker before he had given Snyder a sample of the drug. The state’s interpretation of the facts presumes that Parker had made an irrevocable gift to Snyder and deprives Snyder of the right to change his mind about accepting delivery.

Id. at 1058-59 (citations omitted). The court held the state had failed to show constructive possession because it had failed to show dominion and control.

The State introduced evidence of the “suspicious” activities of the defendant in moving around in the station wagon while the officer had Scott in the patrol car. The State thereby suggests (but does not articulate) an argument that the defendant constructively possessed the methamphetamine because she exercised dominion and control over it by attempting to hide it under the driver’s seat. However, while officers testified the defendant was moving around in the vehicle, they did not see her exercising dominion over Scott’s fanny pack. One officer testified “she was moving around a lot inside the vehicle. I’m not sure what she was doing though.” When the defendant was questioned at trial about her movements inside the car, she said her purse was initially on the floorboard and it contained drug paraphernalia (not involved in this case). She testified she was “looking to see if I could stick that somewhere real quick.” She testified she took her billfold out of the purse in case she was asked for identification “because I wanted to be able to produce my identification without having to open the purse.” Any conclusion that the defendant exercised control over the fanny pack by attempting to hide it would be based on pure speculation and would adopt an argument only implicitly raised by the State. We'therefore reject it.

We conclude the State failed to prove the defendant had dominion and control over the fanny pack and thus failed to prove constructive possession of the methamphetamine. Therefore, ’ we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for dismissal.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.


source: Caselaw Access Project

author: BLATZ, Chief Justice. PAGE, Justice

license: Public Domain

text:
    Cedric SCOFIELD, upper Midwestern Region representative sitting on the National Executive Committee of the Reform Party of the United States of America, et al., Petitioners, v. Mary KIFFMEYER, Secretary of State for the State of Minnesota, et al., Respondents.
    No. C9-00-1622.
    Supreme Court of Minnesota.
    Dec. 21, 2000.
    Mark A. Olson, Burnsville, for petitioners.
    Mike Hatch, Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, for respondents.
   OPINION

BLATZ, Chief Justice.

Petitioners, representatives of the Reform Party of the United States of America, the Reform Party of Minnesota, and the Buchanan Reform Presidential Committee, asked this court to order the Minnesota Secretary of State to change the designated party or principle of a president/vice president ticket set to appear on Minnesota ballots in the November 7, 2000, general election. On September 27, 2000, we issued an order denying the petition and indicating that an opinion would follow. We hold that the potential for confusion among voters does not outweigh the strong presumption in favor of giving effect to the intent of the nominators as stated on the nominating petition.

On August 25, 2000, a petition was filed with the secretary of state containing the signatures of at least 2,000 nominators for John Hagelin for president and Nat Gold-haber for vice president. The petition nominated presidential electors “representing the Reform Party.”

On September 12, 2000, a nominating petition was filed with the secretary of state containing the signatures of at least 2,000 nominators for Pat Buchanan for president and Ezola Foster for vice president. That petition nominated presidential electors “representing Reform Party Minnesota.” Petitioners note that Buchanan/Foster and Hagelin/Goldhaber each fought for and laid claim to the nomination of the national Reform Party of the United States of America. Petitioners now argue that that dispute was decided in favor of the Buchanan/Foster ticket by the issuance of a preliminary injunction by the Superior Court of California for Los Ange-les County, South District, enjoining the use of the name of the Reform Party of the United States of America in promotion of Hagelin/Goldhaber as candidates.

The secretary of state accepted both petitions as filed and determined that each met the statutory requirements for nominating petitions. See Minn.Stat. § 204B.07 (2000). The time for filing petitions closed on September 12, 2000. Based on the secretary’s certification of the ballot, Hagelin and Goldhaber were set to appear on the general election ballot ■with the designation Reform Party and Buchanan and Foster with the designation Reform Party Minnesota.

The petition before the court is brought pursuant to the “errors and omissions” provision of Minnesota election law. See Minn.Stat. § 204B.44 (2000). Under that statute, the court is authorized to act to prevent an error or omission in the placement or printing of the name or description of any candidate on any official ballot. See id. When the petition was received, this court issued an order for the secretary of state to appear and show cause for refusing to correct the alleged error and to take all steps necessary to prevent the ballots from being printed until the matter was resolved.

The secretary of state argues that there is no error within the meaning of the statute. The petitioners assert that the Hagelin/Goldhaber ticket has agreed to change its party/principle designation to either “independents” or “Natural Law Party.” Representatives of the Hage-lin/Goldhaber ticket appeared at oral argument and did not oppose the petition pursuant to an agreement with petitioners.

In preparing ballots, election officials are instructed: “The political party or political principle of the candidate as stated on the petition shall be placed after the name of a candidate nominated by petition.” Minn.Stat. § 204D.13 (2000) (emphasis added); see also Minn.Stat. § 204B.07 (nominating petition for office is required to state the candidate’s political party or political principle). Petitioners do not allege, and there is no question that the secretary of state followed this provision in certifying the candidates consistent with the nominating petitions. Instead petitioners claim that the potential for confusion among voters warrants a change in the party/prineiple designation by the secretary of state consistent with petitioners’ agreement with the Hagelin/Goldhaber ticket.

Minnesota’s election laws have historically precluded a candidate from claiming affiliation with a party or principle where that party or principle shares the name or part of a name of an established political party. The current version of that statute provides:

A major political party which has adopted a party name is entitled to the exclusive use of that name for the designation of its candidates on all ballots, and no candidate of any other political party is entitled to have printed on a ballot as a party designation any part of that name.

Minn.Stat. § 202A.11 (2000); see also MinmStat. § 204B.07, subd. 1(c) (2000) (“No part of the name of a major political party may be used to designate the political party or principle of a candidate who files for a partisan office by nominating petition * * *.”). The so-called party name protection act extends only to major political parties in Minnesota. See Minn. Stat. § 202A.11. A major political party is a party that maintains a party organization and either presented a candidate in the last preceding general election who received at least five percent of the vote or whose members, totaling at least five percent of the vote, presented a petition to the secretary of state for placement on the ballot. See Minn.Stat. § 200.02, subd. 7 (2000). Neither the Reform Party nor Reform Party Minnesota is a major political party; therefore, neither is entitled to the protections of the party name protection act.

Although the party name protection act applies only to major political parties, petitioners urge us to consider the potential voter confusion created by the use of similar party names. This court has stated:

[Vjiewing [the party name protection act] as expressive of a legislative intention to prevent confusion which might be engendered by the use of similar political designations, we will examine situations outside the purview of the statute to ascertain whether or not confusion, or the likelihood of confusion, would exist as a result of the designation desired by nonparty candidates.

Shaw v. Johnson, 311 Minn. 237, 239-40, 247 N.W.2d 921, 922 (1976). In Shaw a candidate filed a nominating petition requesting to be designated “independent” on the ballot. See id. The election officer, after consultation with the secretary of state, denied the request for designation on the basis that the term independent had been adopted by a major political party, the Independent-Republicans of Minnesota, and the party name protection act prevented its use by any other candidate. See Shaw, 311 Minn, at 238, 247 N.W.2d at 922. The district court reversed the election judge’s decision, finding that there was no danger of confusion, and this court affirmed, refusing to order a change in the party or principle reflected in the nominating petition. See id. at 239M0, 247 N.W.2d at 922. Nonetheless, this court reserved our authority to do so to prevent confusion with respect to a candidate not affiliated with any party. See id. at 240, 247 N.W.2d at 923.

Petitioners appear to assume that voters will be confused to a degree significant enough to warrant action by the court. However, this is not the first time similar party names have appeared on the ballot. In the 1900 presidential election, candidates from the Socialist Democrat and Socialist Labor parties appeared on the ballot. See Secretary of State, Minnesota Legislative Manual 1999-2000 325 (1999).

Indeed, there is some indication that the legislature intended to limit the circumstances in which this court could change a party designation appearing on a ballot based on similarity in party names. In Davidson v. Hanson, 87 Minn. 211, 92 N.W. 93 (1902), this court extended the protections of the party name protection act to the Socialist Labor party, which had obtained less than one percent of the vote in the most recent general election. This court prohibited a candidate from a distinct political organization from using the party label “Socialist” as had appeared on the candidate’s nominating petition, because that word belonged to the Socialist Labor party under the party name protection act. See id. at 220, 92 N.W. at 96. In the following session of the legislature, the act was amended to limit its protection to parties that received at least one percent of the votes cast in the state. See Act of April 14, 1903, ch. 232, 1903 Minn. Laws 337, 338. Now those protections are limited to parties that received at least five percent of the vote in the last election or where a commensurate number of party members petition the secretary of state for placement on the ballot. See Minn.Stat. § 200,02, subd. 7; Minn.Stat. § 202A.11. Therefore, the limited reach of the party name protection act is intentional.

In light of this legislative intent, petitioners must demonstrate a significant degree of confusion before we will act to modify the ballot. In this case the only difference between the party names is the geographic descriptor “Minnesota.” However, as discussed above, mere similarity in party names does not warrant relief.

Petitioners do not allege whether and how the designation Reform Party Minnesota will confuse voters or work to the advantage of one candidate over another. We might speculate that a voter would not be able to distinguish the candidates based on the similarity in party name. However, those interested in Reform Party candidates would arguably be aware of the split in the party over the nomination of these candidates, which was widely reported in the media. See, e.g., Muriel Dobbin, Buchanan Schism May Kill Reform Party, Star Tribune, Sept. 17, 2000, at A26; Mark Helm, Hearst Newspapers, Buchanan Is Awarded Federal Election Money, St. Paul Pioneer Press, Sept. 13, 2000, at 10A. Thus, while there exists some potential for confusion, we are left to speculate as to its magnitude and significance to voters.

Balanced against the potential for confusion is the intent expressed by at least 2,000 Minnesota registered voters that their candidates and presidential electors appear as representatives of the Reform Party. Those Minnesota voters indicated their desire to have Hagelin and Gold-haber on the ballot as representatives of the principles espoused by the Reform Party, and we do not lightly set aside their wishes. Instead we find a strong presumption in favor of giving effect to the wishes of those nominators.

Indeed, this court has allowed the party name on the ballot to differ from that on the nominating petition in only two instances. In both instances the court acted to give effect to the party name protection act, however. See Lind v. Scott, 87 Minn. 316, 318, 92 N.W. 96, 97 (1902) (holding petition nominating candidate under Social Democratic party violated party name protection act); Davidson v. Hanson, 87 Minn. 211, 220, 92 N.W. 93, 96 (1902) (holding petition nominating candidate under Socialist party violated the act where Socialist Labor party was entitled to protection of party name protection act). Thus, this court has not in the past ordered a change in the party or principle designation of a candidate on the ballot in the absence of a violation of the party name protection act.

The intent of the nominators must be given effect. We have stated that our election laws are “bottomed on the theory that * * * the people ought to be permitted to know whom and what they are voting for.” Foley v. Donovan, 274 Minn. 501, 503, 144 N.W.2d 600, 603 (1966). The same might be said for nominating petitions. The U.S. Supreme Court has acknowledged a state’s legitimate interest in making sure that minor parties are “actually supported, on their own merits, by those who have provided the statutorily required petition.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 366, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). To allow a change in the party designation of a candidate after the petition has been filed would leave future nominators uncertain of whether the candidate will appear on the ballot as nominated. Given that the party often represents the candidate’s guiding principles, a change in the party designation is a significant alteration of the nominators’ intent.

Moreover, while candidates Hage-lin and Goldhaber might agree to be labeled as independents or as representatives of the Natural Law Party, they do not speak for the nominators who understood that the candidates would carry the banner of the Reform Party. Indeed, the intent of the nominators is clear, especially in light of the fact that Hagelin/Goldhaber laid claim to the nomination of the Reform Party. Their nominators may have nominated them on the assumption or hope that they would be the Reform Party candidates nationally. Where the affiliation with the party of nomination is strong, as here, we will not lightly disturb the intent of the nominators.

The potential for confusion in the ballot as proposed does not outweigh the strong presumption in favor of giving effect to the intent of the nominators that the Hage-lin/Goldhaber ticket represent the Reform Party. While there may be circumstances where the possibility of confusion is so great as to warrant this court ordering a change in party designation, we decline to order the secretary of state to change the party designation of the Hagelin/Gold-haber ticket.

Order to show cause discharged.

LANCASTER, J., took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully dissent. The court’s conclusion that voters will not be confused by having Hagelin/Goldhaber designated on the ballot under the name of “Reform Party” and Buchanan/Foster designated on the ballot under the name of “Reform Party of Minnesota” defies common sense and is wrong. This is not a case in which two sets of candidates for election merely want to use similar party designations on the ballot. The recent history of the Reform Party, both locally and nationally, is, at best, confusing. Moreover, it is not at all clear that there is such an entity as the “Reform Party.”

In March of 2000, a faction of the Reform Party of Minnesota officially separated from the national party, the Reform Party of the United States of America (RPUSA). See Robert Whereatt, Reform Party Splits From National Party, Star Tribune, Mar. 5, 2000, at Bl. The faction of the Minnesota party that separated became the Independence Party. The faction that did not separate from the RPU-SA retained the name Reform Party of Minnesota. See id. In August of 2000, the RPUSA split into two factions. One faction chose to support Buchanan/Foster as the RPUSA’s nominees for the offices of President and Vice President of the United States. The other faction supported Hagelin for president. The two factions have been in a battle for control of the RPUSA’s assets and name since the August split. In August, the Natural Law Party, which had nominated Hagelin for president in 1992 and 1996, joined forces with the faction of the RPUSA that supported Hagelin and nominated Hage-lin/Goldhaber for the offices of President and Vice President of the United States. See Eun-Kyung Kim, Hagelin Announces Party Alliance, Associated Press, Sept. 1, 2000 <http://www.hagelin.org/press_arti-cles/ap_9-l-00.htm>.

This history, combined with the party designations permitted by the court, will create voter confusion with the Minnesota ballot that cannot be overcome. A voter who supports the platform of the RPUSA will find two sets of candidates for president and vice president, each with designations that might reasonably be understood to represent that platform. But a voter who supports the platform of the alliance between the Natural Law Party and those who split from the RPUSA will have no way of identifying which of the two tickets for the offices of president and vice president support that platform, even though candidates supporting that platform are on the ballot.

While the court holds that respect for the intent of the Hagelin/Goldhaber nominators counterbalances the likelihood of voter confusion, the political flux that existed during the time in which the nominators gathered and presented signatures casts doubt on what the nominators intended by the “Reform Party” designation. Moreover, given recent history, it is not clear that the Hagelin/Goldhaber nominators would want them designated as “Reform Party” candidates.

In order to avoid confusion, I would order the designation “Natural Law Party” for Hagelin/Goldhaber.

      . Petitioners assert their petition is also supported by a September 13, 2000, decision of the Federal Election Commission determining that Buchanan/Foster were the candidates for the Reform Party and, as such, were entitled to federal grants for their campaigns.

      . We are especially reluctant to do so when the proposed alternatives would either mislead or con fuse voters. Petitioners’ proposal that Hagelin/Goldhaber be designated independents is inaccurate, as the term conveys to the voter that the candidate has no allegiance to or affiliation with a particular party. See Shaw, 311 Minn, at 240, 247 N.W.2d at 923 (noting that persons who are independents refuse to become formally affiliated with any political party). Furthermore, voters might be confused by an "independent” designation for the Hagelin/Goldhaber ticket, in light of the recent name change of a previous incarnation of Reform Party Minnesota to the Independence Party. Finally, there is no indication that the nominators would have nominated Hagelin/Goldhaber had they known they stood for principles espoused by the Natural Law Party. Therefore, the proposed alternatives are either inaccurate or confusing to voters.

      . After the RPUSA split, each state had to decide who would receive the Reform Party designation on its ballot before ballots could be printed. States were making those decisions in late August and September by various means. See Mike Glover, Luck of the Draw: States Draw Names to Settle Reform Party Ballot Battles, Associated Press, Aug. 25, 2000 <http://www.abcnews.go.com/sections/ politics / DailyNews / reform_lotteries000824. html>; Associated Press, Reform Party State by State, Aug. 25, 2000 <http://eu-rope.cnn.com / 2000 / ALLPOLITICS / stories /08/24/reformparty.ap/>. As of October 3, Hagelin's name will appear on 38 of the 50 state ballots. See John Hagelin/Nat Goldhaber 2000 (visited Oct. 17, 2000) <http://www.hagelin.org / ballot_access / index.htm>. He will be designated "Natural Law Party” on 27 of those ballots; only four states besides Minnesota will use the designation "Reform Party” for the Hagelin/Gold-haber ticket. See id. In some states, Hage-lin’s campaign willingly gave up the Reform Party designation. See, e.g., Reuters News Service, Buchanan Wins Spot on Florida Presidential Ballot, Oct. 2, 2000 <htlp://buchan-anreform.org / library / default.asp?id=149> (reporting that the Buchanan and Hagelin factions, in Florida state court, stipulated to an agreement that on Florida's ballot Buchanan would be designated Reform Party and Hagelin designated Natural Law Party).


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Brian J. PETERSON, an Attorney at Law of the State of Minnesota.
    No. CX-00-2049.
    Supreme Court of Minnesota.
    Dec. 21, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Brian J. Peterson has committed professional misconduct warranting public discipline, namely, respondent filed an attorney’s lien against a client’s homestead without a signed waiver of the homestead exemption and fabricated a waiver of the homestead exemption by cutting and pasting together a photocopied signature block and notarization block from other documents and submitted the document in an ethics investigation in violation of Minn. R. Prof. Conduct 1.8(j), 3.1, 3.4(b), 5.3(c), 8.1(a)(1), 8.4(c), and 8.4(d) and Lawyers Professional Responsibility Board Opinion No. 14.

Respondent admits his conduct violated the Rules of Professional Conduct and Lawyers Board Opinion No. 14, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a six-month suspension with no waiver of the reinstatement hearing provided in Rule 18, RLPR. The parties further agree that respondent may file a petition for reinstatement 90 days prior to the expiration of the six-month suspension and that reinstatement is conditioned upon completion of the six-month period of suspension, compliance with Rule 26, RLPR, successful completion of the professional responsibility portion of the bar examination pursuant to Rule 18(e), RLPR and satisfaction of the continuing legal education requirements to Rule 18(e), RLPR. Respondent, a sole practitioner, requests that the suspension not commence immediately because he has several client matters he must wind up before the suspension. Respondent represents that the Director does not oppose this request.

This court has independently reviewed the file and approves the jointly-recommended disposition.

IT IS HEREBY ORDERED that Brian J. Peterson is suspended from the practice of law for a period of six months, subject to the agreed-upon terms set forth above, and that he pay $900 in costs and disbursements pursuant to Rule 24, RLPR. The suspension shall commence on February 1, 2001.

BY THE COURT:

Alan C. Page Associate Justice


author: STRINGER, Justice.

text:
    STATE of Minnesota, Respondent, v. Brian Keith HOOPER, Appellant.
    No. C2-99-188.
    Supreme Court of Minnesota.
    Dec. 28, 2000.
    Rehearing Denied Feb. 6, 2001.

      Jeffrey Dean, Special Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, Minneapolis, for respondent.
    John M. Stuart, Minnesota State Public Defender, Minneapolis, observer for respondent.
   OPINION

STRINGER, Justice.

When the decomposed body of Ann Prazniak was found in a cardboard box in a closet of her apartment at 1818 Park Avenue South on April 15, 1998, a criminal investigation soon led the police to suspect appellant Brian Keith Hooper. Appellant was indicted on three counts of first-degree murder and was convicted and sentenced on each charge. His direct appeal raising issues of exclusion and sufficiency of evidence was stayed and remanded to the trial court on his petition for retrial based upon newly discovered evidence. The trial court denied his motion and on appeal here we review the claims he raised in his direct appeal and his claim that he was entitled to a new trial based upon newly discovered evidence. We affirm.

Ann Prazniak, a 77-year-old resident of 1818 Park Ave. South in Minneapolis, was last seen at her bank in late March, 1998 when she reported her checkbook missing. In early April of 1998 Prazniak’s neighbors contacted the police and her apartment manager, fearful that her apartment had been taken over by drug dealers. Prazn-iak, who usually paid her rent promptly, had not paid the April rent on her apartment.

On April 3 the apartment manager entered Prazniak’s apartment to look for her and three days later police searched the apartment. It was in disarray and filled with debris, rotting food and cat feces, but there was no sign of Prazniak. Police saw evidence of drug dealing in the living room, including chopped up bath soap, commonly sold as fake crack, on a coffee table, and torn plastic baggies, typically used to wrap crack cocaine for sale, on the floor. Police called Animal Control to care for a cat found in the apartment and told the apartment caretaker to change the locks.

On April 10 police again searched the apartment and found its condition much the same. On both visits police saw a box inside the bedroom closet with cloth or clothing on top but did not look inside. On the first visit the apartment generally smelled unpleasant, but on the second visit police smelled a noticeable foul odor.

The police returned to Prazniak’s apartment for a third time on April 15. Upon stepping out of the squad car the police noticed a “rotten” odor. The police and building owner determined that the smell came from Prazniak’s apartment and upon stepping inside they determined the source of the smell was the bedroom closet. Inside the closet police found a cardboard box containing a heavy cloth and plastic bundle. Upon cutting into the bundle police discovered human remains. The medical examiner was then called and later testified the remains in the box were those of Ann Prazniak. Prazniak’s body was wedged upside down in a fetal position and a string of Christmas tree lights was wrapped around the box, apparently to reinforce it. Prazniak’s body was wrapped in a mattress pad and two large black/ green garbage bags. Underneath the bedding and garbage bags Prazniak’s head and body were wrapped in a blanket and secured with rope and her wrists were tightly bound with packaging tape. Electrical cord was tied around her ankles, and her nose and mouth were covered by layers of packaging tape wrapped around her face. Prazniak was determined to have suffered a broken rib and bruises to her wrists and knees before her death.

The medical examiner testified that the cause of death was asphyxiation caused by the layers of packaging tape covering her mouth and nose, a broken rib that put pressure on her chest, and the upside down and tightly curled position of her body, which would have prevented her diaphragm from expanding. Although the date of her death could not be established precisely, the medical examiner estimated Prazniak died two weeks to a month before the discovery of her body by police. Prazniak was five feet and one inch tall and weighed less than 100 pounds at the time of her death.

Neighbors told police investigators that they had seen people coming in and out of Prazniak’s apartment including a woman named “Shay” and a man named “Brome.” The police determined “Shay” to be Chala-ka Lewis and “Brome” to be appellant. Police found Lewis’ fingerprints on pieces of brown packaging tape stuck to the floor of the apartment similar to tape removed from the victim’s body. Appellant’s fingerprints were found on two sandwich baggies and a beer can in the living room. The fingerprints of Vonda Quass, a witness who confessed to smoking crack in the apartment, were found on a dark black/ green garbage bag similar to the ones used to wrap the body, and were also found on a white garbage bag. Several other prints were recovered, but none could be identified.

In an interview with police appellant said the only time he had ever met Prazn-iak was when he helped her take out her garbage. He described her as a “nice little old lady.” Appellant claimed that he first went to her apartment with Lewis and Lewis told him she was watching Prazniak’s cat because Prazniak was in treatment for alcohol abuse. Appellant said he noticed a foul smell in the apartment but attributed the odor to waste from the cat. Appellant admitted entering Prazniak’s apartment three different times to smoke crack cocaine and have sex but denied killing Prazniak.

Police interviewed Lewis four times over the course of a month. At first Lewis denied any knowledge of the murder, but in the fourth interview Lewis gave a detailed statement incriminating appellant. Lewis testified that on the night of the murder she was at 1818 Park smoking crack cocaine in the hallway and she saw appellant standing near Prazniak’s apartment with a woman named Tammy and two other people she did not know. Police never found a witness named Tammy.

Not wanting to share her drugs with the others, Lewis went to a different part of the building to smoke. When she returned she hoped that appellant and the others would share their crack cocaine with her. She saw appellant standing alone in the door of Prazniak’s apartment and entered the apartment when appellant offered her crack to be a lookout for him. Once inside, appellant went to a back room of the apartment and shut the door while Lewis watched the hallway of the apartment building. Lewis saw a cat crying at the bedroom door and thought she heard a woman’s voice say “Help.” Lewis became afraid and left the apartment building, but appellant followed her outside and called her back.

Lewis went back to the apartment with appellant and again watched out the door to the hallway while appellant went to the bedroom. A few minutes later appellant came out sweating and “his eyes was looking all wild, ⅜ * ⅜ and he was cussing and swearing.” Appellant looked through the drawers of a desk in the dining room, pulled out some rolls of beige packaging tape and told Lewis to tear off tape for him. Lewis tore strips of tape and threw them on the floor. Appellant took the tape strips to the bedroom and Lewis heard “some rumbling or some bumping noises.” Lewis was frightened, left the apartment and paced in the hallway. Appellant opened Prazniak’s door, asked Lewis, who was pregnant at the time, what she was doing and threatened to kick her in the stomach to make her lose the baby if she didn’t keep watch. At the time Lewis was five and a half months pregnant, five feet five inches tall, and weighed about 140 pounds. Appellant then went down the hallway to purchase some crack, gave it to Lewis and demanded she smoke in Prazn-iak’s apartment. Lewis complied.

After Lewis smoked the crack, appellant offered her more drugs if she straightened up the living room so he could sell drugs out of the apartment. He gave Lewis garbage bags and she picked up trash in the front rooms. Lewis and appellant then went to the street corner where appellant bought more crack. Lewis testified she told appellant that she didn’t want to go back to the apartment but appellant responded “don’t make me hurt you.” When she returned with him he offered her two bags of crack if she straightened up the back room. Lewis testified she was afraid to go in the back room because the eat was at the door crying and she thought appellant had done something to Tammy.

The bedroom was empty when Lewis went in to clean and she was relieved, assuming that whoever had been back there must have escaped. She filled a garbage bag with Christmas lights, string, glass, chain links, newspaper and cardboard. Lewis testified that she tried to open the bedroom closet but could not because a knife was wedged between the door and the doorjamb. Appellant told her to leave the door alone, and she and appellant then put the bags of trash in the hallway and left the building. Once outside, appellant threatened to kill Lewis if she told anyone what happened and instructed her that if anyone asked she should say she went to the apartment with Tammy. Lewis testified that she returned to Prazniak’s apartment about a week later and bought crack, and subsequently returned again to look for something to steal and to smoke crack. In her statement to police, Lewis admitted that she told others to say “the old lady is out of town.”

Four witnesses testified at trial that appellant admitted killing Prazniak. Calvin King testified that he and appellant bought narcotics together at an apartment at 1818 Park Avenue South on April 9, 1998. Appellant suggested that they get high in a place upstairs at 1818 Park, but they went to King’s house instead. After getting high appellant said he was glad they did not go to the place he had suggested “because it stink.” Appellant then told King, “Man, I did some fucked up shit * * ⅜ I had to kill the motherfucker ⅜ * * Me and my girl * * * For real. A old bitch on top of it.” King saw appellant again at the Hennepin County Jail between April 20 and May 4, 1998. Appellant told King he was being held for a burglary connected to the crime he had told King about previously-appellant was in fact being held for burglary of Prazniak’s apartment.

Lolita Fairley testified that on April 18th or 19th of 1998 she and appellant went to a house to use drugs together. Fairley testified that before getting high appellant asked her if she had heard about the killing on 18th and Park and that appellant told Fairley that he “accidentally killed her,” but appellant did not identify the person he referred to as “her.” Fair-ley testified that at first she told police appellant said he killed Prazniak while Prazniak’s apartment was full of people getting high. Fairley also admitted that during police questioning she accused appellant of killing another person.

Cardnel Brown and Lucas James testified that they talked with appellant on separate occasions at the Hennepin County Workhouse during May of 1998 while being held there. Brown testified appellant said he was selling drugs and prostitutes out of Prazniak’s apartment. According to Brown, appellant said he was roaming the hallway with a “female associate” at 1818 Park when a lady came out to see what was going on and that he pushed the lady in the face, knocking her unconscious. The female associate sat down to get high and they discussed what to do with the lady. Brown testified appellant told him he wrapped the victim in bedding and plastic, put her in a box and put her in the closet.

James testified appellant admitted being involved in “Annie’s” murder, that appellant said Prazniak told him to leave the apartment because appellant was not giving Prazniak money for using her home for prostitution, and that appellant said Prazn-iak pushed appellant toward the door causing appellant to “snap” and start “swinging on her.” James further testified appellant told him that he had killed her but said nothing about others being present during this confrontation.

Brown, King and James testified they had heard coverage of the murder in the media prior to testifying. Three of the witnesses Fairley, King, and James testified they did not know one another. Brown did not testify whether he knew the others, but James did know Lewis. Fair-ley did not receive anything from police in exchange for her testimony. Brown testified that he received thirty dollars from a police officer but it was not in exchange for his testimony. In exchange for King’s testimony the prosecutor told King he would assist him in getting credit for time served on an unrelated offense. In exchange for his testimony, James received a shorter-than-guidelines sentence for an unrelated offense.

Vonda Quass, a witness who had admitted smoking crack in Prazniak’s apartment, asserted her fifth amendment right not to testify at appellant’s trial. The defense offered a videotape of a police interview with Quass in which she said she had a conversation with a resident of 1818 Park about the foul smell pervading the building, and she and the resident decided Ann Prazniak was dead in her apartment and considered calling 911 to report the smell. Later in the interview police asked why Quass did not call 911, saying “You just told us that you thought she was dead in there.” Quass responded, “That was two weeks after she died!” When questioned how Quass knew when Prazniak died, Quass said “the whole building knew.” The trial court upheld the state’s objections to admission of the videotape in evidence on the grounds that it was irrelevant hearsay.

A jury convicted appellant of three counts of first degree murder and he was sentenced to three concurrent life sentences. He appealed seeking reversal and a new trial, arguing that the trial court erroneously excluded the videotape evidence implicating a third party in the murder, that the conviction was based on uncorroborated accomplice testimony, and that it lacked sufficient evidence. Shortly before oral argument was to be heard before this court, appellant filed an emergency motion to remand to the trial court based on newly discovered evidence. We stayed appellant’s appeal and remanded for postconviction proceedings. The district court held a postconviction evidentia-ry hearing, heard oral argument on appellant’s postconviction motion and denied appellant’s motion for a new trial. Appellant’s motion to reinstate his appeal was granted and appellant now reasserts all issues raised on direct appeal and further asserts that the evidence is insufficient to sustain the postconviction court’s denial of a new trial.

At the postconviction evidentiary hearing, Christopher Genosky, a witness who came forward after trial, testified that he spoke to his father around April 1 of 1998, and his father told him Quass had called. Quass was Genosky’s former girlfriend and the mother of his child. Genosky called the number his father gave him, and when he spoke to Quass she was “emotional * * * ghg kjn(j 0f swingS from laughing to hysterical * ⅜ * that’s how she normally is when she’s on crack.” Quass told Genosky she wanted a ride to Waukesha, Wisconsin. Genosky testified that “when I kept saying no, she had finally said that her and her friend Shay needed a ride because they had hurt a lady and needed to get out of town.” At the time Genosky thought Quass was lying to manipulate him into doing her a favor.

Genosky moved from Wisconsin to Minnesota in October of 1998, around the time of appellant’s trial, and testified that he did not hear of the Ann Prazniak case until reading about it in the newspaper in October of 1999. Genosky signed an affidavit prepared by appellant’s attorney in which he stated that Quass told him she and Shay hurt a lady in an apartment building, but Genosky testified he was not sure whether Quass mentioned an apartment building during their conversation. The state demonstrated Genosky was unsure of many additional details regarding his contact with Quass, including details of his alleged contact with his father. Phone records show no calls to Genosky from his father between March 22 and April 12, 1998 but they did show a call from Geno-sky to his father on March 29, 1998. Ge-nosky testified his long distance bill did not reflect the call to Quass because he used a prepaid calling card.

The state impeached Genosky with evidence that in the fall of 1998 Genosky falsely accused the manager at his place of employment of sexual harassment because he wanted to be promoted to the manager’s job. When confronted with a copy of a written notice of disciplinary action summarizing the false accusation incident, Ge-nosky maintained that he had never seen the notice, that he had never admitted making false accusations of sexual harassment and that although the signature at the bottom looked like his own, someone must have forged it. The investigator of the reported sexual harassment incident testified that Genosky admitted bringing the false allegations of sexual harassment and that he signed the written notice of disciplinary action in her presence. She also testified that in her opinion Genosky is not a truthful person and that he had a reputation for dishonesty at his former workplace. Genosky’s father acknowledged on the stand that he told police his son tells the truth only about half the time but said he was referring to when Genosky was young. The state introduced evidence of three prior burglary convictions.

I.

Appellant first asserts that because the videotape of the interview of Quass tends to show Quass knew the date of Prazniak’s death and only the murderer or an accomplice would know it, the trial court erred in excluding it from evidence when it ruled that Quass’ exclamation “That was two weeks after she died!” was inadmissable hearsay because it was not a statement against interest. We accord broad discretion to the trial court in evi-dentiary rulings and will not reverse absent a clear abuse of discretion. See State v. Flores, 595 N.W.2d 860, 865 (Minn.1999).

Under the statement against interest hearsay exception, a statement made by an unavailable declarant is not excluded by the hearsay rule if it

was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declar-ant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Minn.R.Evid. 804(b)(3) (1998). Whether “a reasonable person in the declarant’s position would not have made the statement unless believing it to be true” is determined in light of the surrounding circumstances. See Williamson v. United States, 512 U.S. 594, 603-04, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).

In State v. Ashby this court held that a statement by a third party was not against interest where “there was no explicit confession and no actual acceptance of responsibility. Moreover, it was not clear from the statement itself what [de-clarant] was taking responsibility for there was no mention of the murder at all.” 567 N.W.2d 21, 26 (Minn.1997) (emphasis in original). In addition, “[b]ecause hearsay statements tending to exculpate the accused must be regarded with suspicion, * * * to be admissible, declarations against penal interest must be proven trustworthy by independent corroborating evidence that bespeaks reliability.” State v. Higginbotham, 298 Minn. 1, 5, 212 N.W.2d 881, 883 (1973).

Quass did not admit to personal knowledge regarding Prazniak’s death or her murder in the videotaped interview conducted more than two weeks after police discovered Prazniak’s body. She referred to the smell in the hallways and a comment made to her by the “girl that lives next door to Lindsay,” but made no reference to timeframe, crime committed, or knowledge of any details of the crime. Importantly, she denied any involvement in the murder.

Evidence tending to show that another person committed the crime charged to the defendant is relevant to whether the defendant in fact killed the deceased, see State v. Hawkins, 260 N.W.2d 150, 158 (Minn.1977), but the statements made by Quass are so ambiguous and their probative value is so low that they cannot reasonably be considered to show that someone other than the defendant committed the crime. In light of the evidence that concerned neighbors contacted the police and Prazniak’s landlord nine days before the body was found, and four witnesses testified that appellant admitted killing Prazniak, it would not be unreasonable to conclude that Quass was repeating rumors rather than implicating herself in the murder. We conclude that the trial court did not abuse its discretion in ruling that Quass’ interview was irrelevant and not a statement against interest.

II.

Next, appellant argues that his conviction violates Minn.Stat. § 634.04 (2000) because his conviction was based on the uncorroborated testimony of an accomplice. We review the evidence in the light most favorable to the state and resolve all conflicts in the evidence in favor of the verdict. See State v. Bergeron, 452 N.W.2d 918, 924 (Minn.1990).

Corroborative evidence supporting the testimony of an accomplice must be “weighty enough to restore confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial way.” State v. Norris, 428 N.W.2d 61, 66-67 (Minn.1988). “Corroborating evidence may be secured from * * * the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.” State v. Adams, 295 N.W.2d 527, 533 (Minn.1980).

Assuming that Lewis was an accomplice, much of the evidence presented at trial corroborated her testimony. Appellant’s admission to police that he was in Prazniak’s apartment was confirmed by fingerprint evidence, and physical evidence of drug dealing in the apartment provided a possible motive for the killing. Lewis’ testimony that she handled packaging tape was confirmed by her fingerprints on pieces of packaging tape found in the apartment and Prazniak’s body was found wrapped in similar packaging tape. Neighbors had seen Lewis and appellant at the apartment and four independent witnesses testified that appellant admitted killing Prazniak. Lewis testified that a knife stuck in the door of Prazniak’s bedroom closet prevented her from opening the door and police later discovered a steak knife in the closet where Prazniak’s body was found. Lewis testified that she cleaned up tape, Christmas lights, and other debris from Prazniak’s bedroom and saw a box like the one in which Prazniak was found these items were discovered with Prazniak’s body.

Appellant’s defense rested in part on his contention that Lewis was the killer or an accomplice and therefore had a motive to lie about appellant’s role in the murder. In her statement to police and her testimony at trial, Lewis maintained that she never saw Prazniak either alive or dead. At trial, appellant argued that Lewis’ knowledge of the details of the crime implicated her in the killing because the fact that Prazniak was wrapped in a blanket, bound with tape and electrical cord and that she suffered a fractured rib and bruising was withheld from the public. Lewis said to police, “I figured that he had her taped up tied up and had her mouth taped shut so that she couldn’t talk and had her arms taped up.” Lewis then held her wrists in front of her, in the same manner as Prazn-iak’s wrists were bound. Lewis said she just assumed the victim’s mouth was taped to keep her quiet and that her wrists were bound that way because she had seen it in the movies. A witness who admitted to smoking crack in Prazniak’s apartment told police that Lewis admitted accidentally killing Prazniak, but later said he made up the story. A cashed check from Ann Prazniak’s account with Lewis’ handwriting on it was recovered by police. The check was dated March 23, 1998, near the time the medical examiner determined Prazniak could have died. Lewis testified that in mid-March she got some checks from one of appellant’s cousins while in the park, but she could not remember the name on the checks. Thus some evidence supported appellant’s theory that Lewis was implicated in the murder.

Nonetheless, as to appellant’s guilt, Lewis’ testimony was corroborated by the greater weight of the physical evidence, witness testimony, and appellant’s own admissions. Viewing the evidence in the light most favorable to the state, ample corroborating evidence was presented to the jury to support a finding that Lewis’ testimony was reliable as to appellant’s guilt. We hold appellant’s conviction did not violate Minn.Stat. § 634.04 prohibiting a criminal conviction from resting on the uncorroborated testimony of an accomplice.

III.

Appellant next asserts that the evidence was insufficient to support his conviction. When assessing the sufficiency of the evidence our inquiry is limited to whether, given the facts in the record and legitimate inferences drawn therefrom, a jury could reasonably conclude the defendant was guilty of the offense charged. See Ashby, 567 N.W.2d at 27. The reviewing court “must view the evidence in the light most favorable to the prosecution and assume the jury believed the prosecution’s witnesses and disbelieved any contrary evidence.” Id.

Appellant argues that because Lewis knew facts about the murder that were withheld from the public and James, King, Brown and Fairley gave differing accounts of who accompanied appellant into Prazniak’s apartment, the evidence supports a finding that Lewis was the killer. A close review of the record indicates that King, Brown and Fairley all testified that appellant first entered the apartment with a woman and two others an account consistent with Lewis’ testimony that she saw appellant with a woman shortly before he asked her to be his lookout. James testified that appellant never mentioned whether anyone was with him. In the end however, Lewis’ knowledge of the crime may raise a suspicion that she was implicated, but it does not exonerate appellant.

Viewing the evidence in the light most favorable to the prosecution, a reasonable jury had ample evidence to convict appellant. We hold that there was sufficient evidence to support appellant’s conviction.

IV.

Finally, appellant asserts that the evidence at the postconviction hearing was insufficient as a matter of law to support the postconviction court’s refusal to grant a new trial. The denial of a new trial by a postconviction court will not be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the postcon-viction court’s findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992).

Appellant’s petition for postcon-viction relief challenges the ruling of the postconviction court that the alleged admission by Quass to Genosky that she and “Shay” had “hurt a lady” was not a statement against interest and was therefore inadmissible hearsay. As noted above, a statement is admissible under the hearsay exception if it “was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest * * * that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Minn.R.Evid. 804(b)(3). A statement that is so vague as to make it impossible to determine what interest the declarant is jeopardizing does not qualify under the exception for a statement against interest. See Ashby, 567 N.W.2d at 26.

Genosky testified the alleged statement by Quass was made close in time to Prazn-iak’s death and included the name “Shay.” It was established at trial that Lewis’ and Quass’ fingerprints were found in Prazn-iak’s apartment, that Lewis was known as “Shay,” and that Lewis knew many details of the murder. The alleged statement did not include any information that would connect Quass with Prazniak’s death. Quass didn’t identify the victim or the crime committed or how, why, where or when she “hurt a lady.” Her statement was too vague to determine what penal interest Quass was jeopardizing.

The circumstances surrounding the statement cast further doubt on the credibility of Quass’ statement. Genosky testified that Quass made the admission while trying to induce Genosky to give her a ride, and Genosky indicated Quass typically lied to him when she wanted a favor. Genosky testified Quass sounded high on crack and was joking and laughing. Other evidence at trial showed that in any event, Quass returned to Prazniak’s apartment to smoke crack rather than attempting to leave town.

The postconviction court’s determination that Quass’ alleged statement was inadmissible hearsay is based on the statement’s failure to meet the requirements of Minn.R.Evid. 804(b)(3) and the lack of independent corroborating evidence that might bolster its reliability. The inadmissibility of the newly discovered evidence, however, is not the only issue upon which the postconviction court denied appellant a new trial. A petitioner for a new trial on the basis of newly discovered evidence must show that “the evidence is material” and “will probably produce either acquittal or a more favorable result” for petitioner. Woodruff v. State, 608 N.W.2d 881, 888 (Minn.2000).

In holding that the newly discovered evidence presented by appellant was not material and would not produce a more favorable result, the postconviction court first observed that Genosky’s reputation for truthfulness was substantially impeached. The court found that Genosky could not remember many of the details of the alleged conversation with Quass, the phone records were incomplete, he had lied for personal gain in the past, he had a poor reputation for truthfulness and he had demonstrated his willingness to lie on the stand when confronted with a notice of disciplinary action for making false accusations against a previous supervisor on an earlier occasion. The court also noted that Quass’ alleged desire to leave town was not consistent with evidence presented at trial that Quass returned to Prazniak’s apartment to smoke crack. Finally, even if Quass’ alleged statement was believed, it would not impeach the evidence presented at trial relating to appellant’s four confessions to independent witnesses, his own admission that he was in Prazniak’s apartment, or Lewis’ testimony pointing to appellant’s guilt.

The postconviction court’s denial of a new trial based on newly discovered evidence is supported by detailed findings and the court’s ruling that Quass’ statement that she “hurt a lady” was inadmissible hearsay due to the vagueness of the statement and the lack of corroborating evidence supporting its trustworthiness; that Genosky, appellant’s only witness, was impeached, and that the newly discovered evidence proffered by appellant did not directly impeach evidence of appellant’s guilt. If admitted, appellant’s newly discovered evidence would at most support a theory that Lewis was an accomplice to the murder an assertion irrelevant to the issue of appellant’s own guilt. We hold that the evidence supports the denial of a new trial by the postconviction court.

Affirmed.

      . Appellant was indicted on counts of premeditated murder, murder with burglary, and murder with kidnapping under Minn.Stat. § 609.185, subds. 1, 3 (2000).

      . Police investigators later found a knife in the closet.

      . There is no dispute that Quass was unavailable; she invoked her Fifth Amendment right not to testify.

      . "A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Minn. Stat. § 634.04 (2000).


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Pedro JUMPING EAGLE, Petitioner, Appellant.
    No. C8-99-874.
    Supreme Court of Minnesota.
    Dec. 28, 2000.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, for appellant.

      Mike Hatch, Attorney General, St. Paul, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, for respondent.
   OPINION

PAGE, Justice.

In January 1993, Pedro Jumping Eagle was arrested for sexually assaulting a nine-year-old female. Jumping Eagle was charged with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (1992), and subsequently pleaded guilty to the charged offense, pursuant to a plea agreement that made a number of contingent recommendations to the court regarding sentencing. At the time, Minn.Stat. § 609.346, subd. 5(a) (1992) (now codified at Minn.Stat. § 609.109, subd. 7 (1998)), required that Jumping Eagle’s sentence include a mandatory term of conditional release. The plea agreement, however, did not include any reference to the mandatory conditional-release term.

Accepting the agreement, the sentencing court sentenced Jumping Eagle to 172 months in prison, a double durational upward departure from the presumptive sentence of 86 months; departed disposition-ally and stayed execution of the 172-month sentence and placed Jumping Eagle on probation for 30 years; required Jumping Eagle to serve one year in the county workhouse and complete the Alpha House sex-offender treatment program; and ordered him to pay restitution. The mandatory conditional-release term was not mentioned at Jumping Eagle’s sentencing hearing and no such term was imposed by the court. In February of 1999, after five years of largely successful sex-offender treatment, a probation revocation hearing was held at which Jumping Eagle admitted to violating the terms of his probation, resulting in revocation of his probation and execution of his 172-month prison sentence. At that hearing, the court for the first time mentioned the mandatory conditional-release term, which it then imposed in addition to the 172-month sentence. Jumping Eagle, claiming that the conditional-release term was not a part of the plea agreement and that he had not been informed about the conditional-release term at the time of sentencing, moved to withdraw his guilty plea, relying on State v. Garcia, 582 N.W.2d 879 (Minn.1998). That motion was denied. A divided panel of the court of appeals affirmed. See State v. Jumping Eagle, 602 N.W.2d 653 (Minn.App.1999).

A valid guilty plea must be accurate, voluntary, and intelligent. See Alaniz v. State, 583 N.W.2d 573, 577 (Minn.1998); see also Minn.R.Crim.P. 15.05, subd. 1 (stating court shall allow defendant to withdraw guilty plea if necessary to correct manifest injustice). “The volun-tariness requirement insures that the guilty plea is not in response to improper pressures or inducements.” Alanis, 583 N.W.2d at 577. Inducement of a guilty plea by promises that cannot be fulfilled invalidates the plea; possible remedies include requiring specific performance of the agreement, altering the sentence, or allowing the plea to be withdrawn. See State v. Brown, 606 N.W.2d 670, 674 (Minn.2000); Garcia, 582 N.W.2d at 882.

Interpretation and enforcement of plea agreements present issues of law that we review de novo. See Brown, 606 N.W.2d at 674. Each agreement necessarily presents unique facts, but our analysis is guided by Garcia and Brown. In Garcia, the defendant’s plea-bargained sentence for attempted first-degree criminal sexual conduct, see Minn.Stat. §§ 609.27, 609.342, subd. l(e)(i) (1998), was amended to include the conditional-release term required by Minn.Stat. § 609.346, subd. 5(a), after the court had accepted his guilty plea. Garcia’s plea petition made no mention of the conditional-release term, nor was it mentioned in any hearings on his case before or at the time of sentencing. See Garcia, 582 N.W.2d at 881. Even though we concluded that Garcia’s plea agreement had been violated by the addition of the conditional-release term, we held that Garcia was not entitled to specific performance of his plea because conditional release was mandatory and non-waivable. See id. at 881-82; see also State v. Humes, 581 N.W.2d 317, 319 (Minn.1998). We remanded to the district court with instructions allowing Garcia to choose either to be bound by his original agreement plus the required conditional-release term or to withdraw his guilty plea. See Garcia, 582 N.W.2d at 882.

In Brown, we addressed the question of whether a defendant whose plea-bargained sentence was amended to include the mandatory conditional-release term may in every instance withdraw his guilty plea. Brown’s plea agreement called for probation and a stayed 172-month sentence if he entered and completed a sex-offender treatment program; if he was not accepted into a treatment program, he was to receive an executed 86-month sentence. See Brown, 606 N.W.2d at 672. Brown was not admitted into treatment and received the 86-month sentence, later corrected to include the required five-year conditional-release tenn, which had not been mentioned in Brown’s plea petition. See id. at 673.

We held that because, as the district court found, Brown’s plea was induced by the opportunity for probation rather than the upper limit of his executed sentence, adding a conditional-release term to the maximum executed sentence did not violate the agreement. See id. at 675. We also held that, because Brown bargained for a sentence of up to 172 months as part of his plea agreement and the corrected sentence (86 months plus a five-year conditional-release term) was less than 172 months, allowing him to withdraw from the agreement was not required. See id. at 675 & n. 6 (clarifying that in Garcia the state conceded that the defendant could withdraw his plea under the circumstances and therefore the issue of whether withdrawal of the plea was a required remedy was not squarely before the Garcia court).

Here, Jumping Eagle understood he was subject to a 172-month sentence if he failed to successfully complete an approved treatment program. Like the defendant in Brown, Jumping Eagle was offered the opportunity for probation. While that opportunity no doubt played some role in inducing the plea, Jumping Eagle reserved the right to withdraw his plea if he was found amenable to a treatment program that the prosecutor opposed. Thus, it appears Jumping Eagle considered the maximum executed sentence significant in the negotiation of the plea.

Moreover, unlike the defendant in Brown, Jumping Eagle received both the maximum sentence to which he was subject under the plea agreement and an additional period of conditional release. Because the conditional-release term must be imposed, Jumping Eagle now faces a sentence that exceeds the upper limit of his court-accepted plea petition, thus violating that agreement.

Therefore, on remand, the court must either (1) allow Jumping Eagle to withdraw his plea, or (2) modify his sentence so that the maximum period of incarceration, including the period of conditional release, does not exceed the 172-month upper limit to which Jumping Eagle agreed. The state should be allowed to present to the court argument regarding whether the court should modify the sentence or allow the plea to be withdrawn. See Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968)) (noting that a plea should not be withdrawn and judgment vacated without the strongest of reasons, if serious prejudice to state); see also Hoagland v. State, 518 N.W.2d 531, 536-37 (Minn.1994) (discussing factors considered in determining whether state is unduly prejudiced by award of new trial).

Reversed and remanded.

      . Conditional release is a period of supervision by the Commissioner of Corrections. The commissioner may revoke the conditional release and order' the person to serve the remaining portion of the release term in prison if the terms of the release, crafted by the commissioner, are violated. See Minn.Stat. § 609 .109, subd. 7(b) (1998).

      . The state argues that Jumping Eagle had an agreement on a recommendation, not an agreement, as to sentence. See Perkins v. State, 559 N.W.2d 678, 687 (Minn.1997) (noting that petition provided that agreement on length of sentence was for recommendation only and defendant could not withdraw plea if court chose not to follow that recommendation). Although the terms of the agreement in this case literally called for a joint recommendation, the written plea petition provided that if the court did not "approve this agreement” Jumping Eagle had the absolute right to withdraw the guilty plea. We infer that by "approve the agreement” the parties meant that, if the court did not follow the recommendation, Jumping Eagle would have the right to withdraw. Moreover, the procedures used in Perkins and State v. Ford, 397 N.W.2d 875 (Minn.1986), to ensure that the defendant understood the trial court was free to depart from the recommended sentence, and that any departure would not allow the defendant to withdraw the plea, were not used here. Finally, the plea transcript reflects that, before the plea was accepted, the parties discussed the agreement with the judge in chambers, presumably to determine whether she was likely to adhere to the joint recommendation. Therefore, despite the label used, Jumping Eagle bargained for more than a recommendation from the state. When the court sentenced him in accord with the joint recommendation, the agreement became binding.


author: HARTEN, Judge.

text:
    In the Matter of the Appeal of the DETERMINATION OF the RESPONSIBLE AUTHORITY FOR the SOUTH WASHINGTON COUNTY SCHOOL DISTRICT 833 that certain data concerning Hilda P. Dunbar are accurate and/or complete.
    No. C8-00-977.
    Court of Appeals of Minnesota.
    Nov. 21, 2000.

      Peter D. Bergstrom, Thomas P. Carlson, Michelle M. Soldo, Bergstrom, Carlson & Soldo, P.L.L.P., St. Paul, for relator Independent School District 833.
    Mike Hatch, Attorney General, Amy M. Kvalseth, Assistant Attorney General, St. Paul, for respondent Commissioner of Administration.
    Dale C. Nathan, Eagan, for respondent Hilda Dunbar.
    Considered and decided by KLAPHAKE, Presiding Judge, HARTEN, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

HARTEN, Judge.

The Commissioner of Administration ordered relator school district to rescind and destroy a letter drafted by its employees expressing their concern over a child’s home care. The district appeals, contending that the commissioner lacks jurisdiction because the letter was a confidential mandated report within the meaning of Minn.Stat. § 626.556, subd. 7 (1998), and that the district is not the “responsible authority” within the meaning of Minn. Stat. § 13.04, subd. 4 (1998). Because we conclude that the letter was not a mandated report and that the district is the “responsible authority,” we affirm.

FACTS

I.H., a six-month-old child whose numerous health problems included cerebral palsy, was placed in foster care with Hilda and Dick Dunbar. Three employees of relator South Washington County School District — an occupational therapist, a physical therapist, and an Early Childhood Special Education (ECSE) teacher — visited the Dunbar home to work with I.H.

The three employees wrote a letter to I.H.’s guardian ad litem (GAL) in which they expressed concerns about I.H.’s care. Their purpose was to support the guardian ad litem’s “advocacy for [I.H.] as the questions of custody and appropriate care are addressed through the court system.” The GAL faxed the letter to Ramsey County Child Protection, which decided not to investigate. Ramsey County Child Protection in turn sent a copy of the letter to the Professional Association of Treatment Homes (PATH), which licenses the Dunbars. PATH investigated, reported no areas of concern, relicensed the Dunbars, and subsequently recommended increasing their capacity to three children. PATH also asserted that the comments unfavorable to the Dunbars were unfounded and that they had not violated licensing requirements.

Hilda Dunbar became aware of the letter. Through an attorney, she demanded that relator rescind the letter. Relator refused. Hilda Dunbar appealed the refusal, first to relator, then to the Commissioner of Administration. Following a contested case hearing, an administrative law judge (ALJ) recommended that the letter be rescinded and destroyed. The commissioner adopted the ALJ’s recommendation and issued findings of fact, conclusions of law and an order that the letter be rescinded and destroyed. Relator petitioned this court for a writ of certiorari.

ISSUES

1. Was the letter a confidential mandated report outside the commissioner’s jurisdiction?

2. Was relator the responsible authority for the purpose of challenging the accuracy and completeness of the letter?

ANALYSIS

Standard of Review

A reviewing court may reverse or modify an administrative agency decision if substantial rights of the petitioners may have been prejudiced because the administrative decision exceeds the agency’s jurisdiction or is affected by errors of law. Minn. Stat. § 14.69 (1988).

1. Jurisdiction

Whether the commissioner has jurisdiction depends on whether the letter is classified as a confidential mandated report of child neglect or abuse made pursuant to Minn.Stat. § 626.556, subd. 7 (1998). If it is, the commissioner has no jurisdiction. If it is not, it is classified as public or private government data, the Dunbars have the right to challenge it pursuant to Minn.Stat. § 13.04, subd. 4(a) (1998), and the commissioner has jurisdiction to order corrections of factual errors and conclusions in it pursuant to Hennepin County Community Servs. Dept. v. Hale, 470 N.W.2d 159, 165-66 (Minn.App.1991), review denied (Minn. July 24, 1991).

Minn.Stat. § 626.556, subd. 2(e) (1998), provides that a report is “any report received by the local welfare agency, police department, or county sheriff pursuant to this section.” The letter was written by three of relator’s employees to I.H.’s GAL in connection with a custody dispute. The letter does not refer to itself as a report; its writers did not address or send it to a statutorily designated recipient of reports. Nothing indicates that at the time it was written, those who wrote it intended it to be a report. They were child-care professionals who presumably knew their obligation to report abuse and neglect to a welfare agency or law enforcement, not to a GAL. The letter to a GAL would not have fulfilled their obligation to report any abuse or neglect of I.H.

Relator argues, however, that the letter was transformed into a report when the GAL faxed a copy to a Ramsey County child protection worker who, as part of a “local welfare agency,” was a designated recipient of mandated reports. Relator offers no support for the argument that faxing a document not intended to be a report to a statutorily-designated recipient transforms the document into a report, and the mandated reporter statute provides no such support. We conclude that the letter was not a mandated report of abuse or neglect. It is therefore government data and falls under the jurisdiction of the commissioner.

2. The “Responsible Authority”

Minn.Stat. § 13.04, subd. 4 (1998), grants the subjects of government data, who believe that data to be inaccurate or incomplete, the right to contest the data by writing to the “responsible authority.” Minn.Stat. § 13.02, subd. 16 (1998), defines “responsible authority” as “the individual responsible for the collection, use, and dissemination of any set of data * * The Dunbars brought this action against relator school district as the “responsible authority” for its employees’ letter.

Relator contends that it is not the responsible authority because the letter was transmitted to Ramsey County Child Protection, which had the responsibility for using it to protect I.H. and therefore became the responsible authority. But the letter was prepared by relator’s employees who collected the information and disseminated it to the GAL. The allegations in the letter were based exclusively on their observations and impressions. The accuracy and completeness of the letter were not related to any Ramsey County employee; Ramsey County had no knowledge of the sources on which the letter is based. Asking Ramsey County to evaluate its accuracy and completeness would have been futile. We conclude that relator was correctly identified as the responsible authority.

DECISION

The commissioner has jurisdiction over the letter and relator was the responsible authority in relation to it. The order to rescind and destroy the letter is affirmed.

Affirmed.

      . Relator did agree to modify one factual assertion in the letter. That modification is not relevant to this appeal.

      . Relator does not contest the accuracy of any of the findings on I.H.’s treatment or condition.

      . Because we conclude that the letter was not a mandated report, we do not address relator's argument that the commissioner is precluded by statute from ordering its rescission and destruction. That argument is predicated on the view that the letter is a mandated report not subject to challenge under Minn. Stat. § 13.04, subd. 4. We note also that this issue is raised for the first time on appeal and is therefore not properly before us. See Fred-rich v. Independent Sch. Dist. No. 720, 465 N.W.2d 692, 696 (Minn.App.1991) (school district cannot bring issues before this court that it has not raised below), review denied (Minn. Apr. 29, 1991).

      . Ramsey County Child Protection chose not to investigate the matter.