author: ANDERSON, Russell A., Chief Justice. ANDERSON, PAUL H., Justice

text:
    In re State of Minnesota, Petitioner, STATE of Minnesota, Appellant, v. Myon DeMarlo BURRELL, Respondent.
    No. A07-727.
    Supreme Court of Minnesota.
    Jan. 3, 2008.

      Michael 0. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, Minneapolis MN, Lori Swanson, Attorney General, St. Paul, MN, for Appellant/Petitioner.
    Tracy R. Eichhorn-Hicks, Minneapolis MN, for Respondent.
   OPINION

ANDERSON, Russell A., Chief Justice.

Appellant State of Minnesota (the “State”) petitioned the court of appeals for a writ of mandamus ordering the removal of the judge assigned to the retrial of respondent Myon DeMarlo Burrell (“Bur-rell”). The court of appeals denied the writ, and we granted review as to whether the judge should be removed for cause. We affirm.

In 2003, Burrell was convicted and sentenced in Hennepin County District Court for the first-degree murder of Tyesha Edwards for the benefit of a gang and the attempted first-degree murder of Timothy Oliver for the benefit of a gang. On appeal, we reversed and remanded for a new trial based on concerns about Miranda violations, vouching testimony, and the adequacy of discovery. State v. Burrell, 697 N.W.2d 579, 605 (Minn.2005). We also addressed the propriety of admitting expert testimony from a Minnesota Gang Strike Force officer. Id. at 601-02. We directed the district court on remand to admit expert gang testimony only if necessary and helpful and to “weigh our directives in DeShay and Lopez-Rios carefully as it exercises discretion over what expert gang testimony is admitted.” Id.

A judge new to the case was assigned to the retrial. At a pretrial hearing, the State presented the testimony of a Minneapolis Police Department Gang Strike Force investigator. Also, at a Frye-Mack hearing, the State presented the testimony of two academic researchers on gangs who essentially challenged the underlying rationale of DeShay and Lopez-Rios. In an effort to comply with our directives, the judge made a series of rulings adverse to the State, including that “there is to be no [expert gang] testimony based on hearsay.” See State v. Roman Nose, 667 N.W.2d 386, 394 (Minn.2003) (“On remand, it is the duty of the district court to execute the mandate of this court strictly according to its terms.”).

The State argued that the judge’s rulings precluded proof of certain elements of the for-benefit-of-a-gang offense. Acknowledging that under the circumstances it might be difficult to prove that the underlying crime was committed for the benefit of a gang, the judge referred to our mandate and declined to change his ruling. Nevertheless, he attempted to resolve his and the parties’ confusion about expert gang testimony by certifying four questions to the court of appeals. The court of appeals dismissed the certifications. State v. Burrell, No. A06-149, 2006 WL 2807166, at *5 (Minn.App. Oct.3, 2006), rev. denied (Minn. Dec. 20, 2006).

On January 16, 2007, the judge held a pretrial conference in chambers. At this conference, Assistant County Attorney Michael Furnstahl, who had taken over the prosecution, made his first appearance on the case. What exactly transpired at the conference is disputed. There is no transcript. According to Furnstahl’s affidavit, the judge twice said that the State could not prove “the case” and should dismiss it. Burrell’s attorney, on the other hand, avers that the judge never commented on the merits of the case. He explains that the judge •

mentioned that if the State was going to make a test case for the issue of [expert gang] testimony that perhaps this wasn’t the case in which to do it. If [the judge] mentioned * * * dismissal it was only in this context as the discussion centered around the recent refusal by the Supreme Court to hear the certified questions.

He indicates that the discussion referred to the previous prosecutors’ comments, to which Furnstahl was not privy.

The parties and the judge discussed the January 16 conference on the record at Burrell’s jury trial waiver hearing, which took place on March 26, 2007. At the hearing, the State objected to the waiver or, alternatively, to the judge’s remaining on the case. The State argued that the judge should remove himself because he had drawn conclusions about the merits of the State’s case and because his knowledge of disputed facts made it improper for him to preside at a bench trial. The State referred to the judge’s alleged comments at the January 16 conference that the case should be dismissed. The judge denied having gone so far but noted that the State should consider the risks associated with pursuing the for-benefit-of-a-gang offense in light of the evidentiary hurdles. During the hearing, the judge said, “I represent to you unqualifiedly that I will listen to your case, hold you to your standard of proof, and that I have not prejudged the guilt or innocence of Mr. Burrell.” He accepted the waiver and denied the request for removal.

The State next filed a motion with the chief district judge to remove the trial judge for cause. The chief judge denied the motion, finding no evidence that the trial judge said the case should be dismissed. Instead, she determined the judge “was simply alluding to the same problems that the previous prosecutor complained about.” She noted that the judge “has stated absolutely and unequivocally that he has not prejudged the guilt or innocence of Mr. Burrell” and that he “will try this case fairly and impartially.”

Three days later, the State filed with the court of appeals a petition for writ of Mandamus directing removal. The court of appeals denied the writ, deferring to the chief judge. The court noted that “the assigned judge has stated unequivocally that he ‘[has] not prejudged the guilt or innocence of [Burrell].’ ” The State petitioned this court for review, which we granted as to the issue of removal.

I.

The State seeks a writ of mandamus ordering removal of the trial judge for cause. See Minn.Stat. § 586.01 (2006). We have held, however, that “[t]he proper remedy to pursue when a motion to remove has been denied is * * * a writ of prohibition.” State v. Cermak, 350 N.W.2d 328, 331 (Minn.1984). Although we have not specifically defined the relationship between mandamus and prohibition, we need not construe the State’s petition as for one or the other. “The question * * * is not the form of relief but rather the validity of the basis upon which it was awarded.” McClelland v. Pierce, 376 N.W.2d 217, 219 (Minn.1985). Accordingly, we review the underlying issue of whether the State has shown cause for removal. See State v. Dorsey, 701 N.W.2d 238, 246 (Minn.2005) (“Whether a judge has violated the Code of Judicial Conduct is a question of law, which we review de novo.”); State v. Cheng, 623 N.W.2d 252, 256, 257 (Minn.2001) (indicating that “[w]e review the issuance of a writ of prohibition by reviewing the underlying issue” and noting that we have “inherent authority to ensure the effective functioning of the judiciary”).

“A motion to remove a judge for cause is procedural and is therefore governed by the rules of criminal procedure.” Hooper v. State, 680 N.W.2d 89, 93 (Minn.2004). Under the rules, “[n]o judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct.” Minn. R.Crim. P. 26.03, subd. 13(3). However, “[n]o notice to remove shall be effective against a judge who has already presided 'at the trial, Omnibus Hearing, or other evidentia-ry hearing * * *, except upon an affirmative showing of cause.” Id., subd. 13(4).

The Code requires a judge to “Perform the Duties of the Office Impartially and Diligently.” Code of Judicial Conduct, Canon 3.

A judge shall disqualify himself * * * in a proceeding in which [his] impartiality might reasonably be questioned, including but not limited to instances where: (a) [he] has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evi-dentiary facts concerning the proceeding* * *.

Id., Canon 3D(1). “ ‘Impartiality’ or ‘impartial’ denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.” Id., Canon 3F. “The grounds for disqualification in Canon 3D(1) are stated broadly, leaving considerable room for interpretation in their application, to any given set of circumstances. Canon 3D(1) does not provide a precise formula that can automatically be applied.” Greer v. State, 673 N.W.2d 151, 156 (Minn.2004) (citation and internal quotation marks omitted). Thus the canon requires a case-by-case analysis of particular circumstances.

In determining whether a judge should be disqualified under Canon 3D(1), the question is whether an objective examination of the facts and circumstances would cause a reasonable examiner to question the judge’s impartiality. See Dorsey, 701 N.W.2d at 248; Powell v. Anderson, 660 N.W.2d 107, 116 (Minn.2003). The mere fact that a party declares a judge partial does not in itself generate a reasonable question as to the judge’s impartiality.

Judges, of course, should be sensitive to the “appearance of impropriety” and should take measures to assure that litigants have no cause to think their case is not being fairly judged. * * * Nevertheless, a judge who feels able to preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation.

McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn.1984). Likewise, the fact that a judge avows he is impartial does not in itself put his impartiality beyond reasonable question.

In this case, the State argues that the trial judge’s statements at the January 16 conference create a reasonable question as to his impartiality. Relying on Furns-tahl’s affidavit, the State asserts that the judge twice said the State had insufficient evidence for “the case” to “go to the jury.”

The State’s characterization of the judge’s comments improperly conflates the for-benefit-of-a-gang claims with the underlying murder charges. The for-benefit-of-a-gang statute operates to enhance the penalty for the underlying crime. See Minn.Stat. § 609.229, subds. 3-4 (2006). Inability to prove with admissible evidence that the underlying crimes were committed for the benefit of a gang, however, would not preclude prosecution of the murder and the attempt. See State v. Jackson, 714 N.W.2d 681, 699 (Minn.2006) (Hanson, J., concurring). Pretrial, the parties extensively litigated the scope of permissible expert gang testimony. The resulting evidentiary rulings caused the former prosecutors to claim that they could not prove the for-benefit-of-a-gang claim. This concern induced the judge to certify the questions on expert gang testimony. The court of appeals declined to answer them on October 3, 2006, and we denied review on December 20. On January 16, the parties met in chambers to set a trial date. Given this timeline, it is evident that comments about dismissal on January 16 pertained to the gang crimes. As the judge explained at the March 26 hearing, the January 16 discussion was based on concern over having “this be the test-case on the gang issue.” Other than Furnstahl’s remarks at the March 26 hearing and his subsequent affidavit, nothing in the record suggests that the judge expressed an opinion about the State’s ability to prove the underlying crimes. The judge’s comments constituted a valid observation based on the history of the case and the State’s own comments, not prejudgment on the merits of the underlying charges. Our objective examination of the facts and circumstances satisfies us that the judge’s January 16 comments created no reasonable question as to his impartiality.

II.

The State also appears to argue that the judge’s knowledge of disputed facts acquired during pretrial proceedings should disqualify him from presiding at a bench trial. The United States Supreme Court has held that

opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). We have noted that “it is presumed that judges will set aside collateral knowledge and approach cases with ‘a neutral and objective disposition.’ ” Dorsey, 701 N.W.2d at 248-49 (citing Liteky, 510 U.S. at 562, 114 S.Ct. 1147). To defeat this presumption, the State would have to adduce evidence of favoritism or antagonism. The State has failed to do so. Therefore, we conclude that the judge’s knowledge of disputed facts does not merit disqualification.

We hold that the State did not meet its burden to make an affirmative showing of cause for the trial judge’s removal and that the court of appeals properly denied the extraordinary writ.

Affirmed.

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

ANDERSON, PAUL H., Justice

(concurring).

I concur with the majority that an objective examination of the facts and circumstances of this case mandates a holding that the Chief Judge of the Hennepin County District Court did not err when she denied the state’s motion, to remove the trial judge because he lacked impartiality. Nevertheless, I write separately for two reasons. First, I disagree with comments the majority makes with respect to judge “shopping.” The majority implies that the state might be trying to use its motion to have the trial judge removed for cause as a way to find another judge who would rule more favorably on the issue of what expert gang testimony should be admitted. Second, I disagree with the majority’s conclusions as to the status of the judge’s pretrial rulings.

In response to the state’s motion to remove the trial judge, Burrell asserted that the state’s real reason for trying to remove the judge is not a genuine concern about the judge’s impartiality, but is instead a desire to get a new judge assigned to the case who would issue more favorable rulings on what expert gang testimony should be allowed. In commenting on this argument, the majority concludes that “[i]n the context of the larger battle over expert gang testimony, it is conceivable that the State is seeking a judge who will rule more favorably as it seeks to challenge DeShay and Lopez-Rios.” DeShay and Lopez-Rios are recent opinions we issued on the admission of expert gang testimony in criminal trials. State v. DeShay, 669 N.W.2d 878 (Minn.2003); State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003).

I do not conclude that the state is judge “shopping” or that it filed its motion to remove the trial judge for cause for the purpose of getting a new judge who might rule more favorably on what expert gang testimony the state could offer. The state asked the judge to remove himself for cause immediately after learning that Bur-rell was considering waiving his right to a jury trial. Here, it is important to maintain a focus on the sequence of events. The state made its motion to remove the judge in March 2007 based upon comments the judge allegedly made in January 2007. The record shows that in January there was no indication that Burrell was considering waiving his right to a jury trial. Therefore, this new fact that the judge was going to be the trier of fact was a significant change in the status of the case. Because of this change, it is understandable that the state would have heightened concerns about comments it believed the judge made in January about the strength of the state’s case. Legitimate concern about whether the judge had already made up his mind about the case provides a proper basis to move to remove the judge because of impartiality. This concern, while not sufficient to warrant removal under the facts and circumstances of this particular case, has merit and the state’s motion surely was not frivolous.

I am also aware of the particular circumstances of the party making this motion. Unlike a private litigant who may easily think that he will never again appear before a specific trial judge in a matter, or even in Hennepin County District Court again, the state will have many more cases before this judge and his colleagues. The state appears on a daily basis before several judges in Hennepin County District Court. As a result, I believe that the state would be cautious in bringing a motion that, in essence, asserts that a particular judge will not be impartial, and that it would not bring such a motion lightly at this stage of a criminal proceeding as a means to disqualify a judge with whom it was merely unhappy. Therefore, I disagree with the majority’s implication that the state’s motion in this case is about judge shopping. I conclude that the reasons are more substantive and profound; and are based on legitimate concerns about obtaining a fair trial. Thus, while I agree that those concerns do not rise to a level that warrants removal of this judge, we should acknowledge that the state’s reasons for bringing its motion are legitimate and should not be dismissed as merely judge shopping.

I also disagree with the majority’s position with respect to the trial judge’s pretrial rulings. In discussing the state’s motives for bringing the motion to remove the judge, the majority notes that, “[ejven if the State were successful in replacing him, * * * the current judge’s pretrial rulings would stand unless the State could demonstrate ‘extraordinary circumstances.’ ” Unlike the majority, I do not believe that the judge’s prior rulings are binding on this judge or a new judge. These rulings regarding what a gang expert can base his or her opinion on and what specific expert gang testimony could be admitted in this case were made in October and November 2005. I conclude that a new judge, as well as the current judge, is free to reconsider the prior rulings relating to expert gang testimony because the law in this area is more fully developed since those rulings were made in late 2005. Further, I conclude that the judge’s prior rulings were premature and based on an inadequate record.

Not counting our decision reversing Burrell’s convictions, we addressed the admission of gang-expert testimony in six recent cases, three of which were decided after we issued State v. Burrell, 697 N.W.2d 579 (Minn.2005) and after the trial judge made his rulings in this case. See State v. Mahkuk, 736 N.W.2d 675 (Minn.2007); State v. Martinez, 725 N.W.2d 733 (Minn.2007); State v. Jackson, 714 N.W.2d 681 (Minn.2006); State v. Blanche, 696 N.W.2d 351 (Minn.2005); State v. DeShay, 669 N.W.2d 878 (Minn.2003); State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003).

In these cases, we cautioned against the use of gang-expert testimony in criminal cases. Blanche, 696 N.W.2d at 374; Lopez-Rios, 669 N.W.2d at 612. We said, “gang-expert testimony should be admitted only if it is helpful to the jury in making the specific factual determinations that jurors are required to make.” Blanche, 696 N.W.2d at 373. In Mahkuk, we said, “[t]o be admissible, gang expert testimony must add precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience.” 736 N.W.2d at 686 (internal quotation marks omitted). While we.have not stated that a gang expert could not base his or her opinion on hearsay, we have stated that “the state should not be permitted to launder inadmissible hearsay evidence, turning it into admissible evidence by the simple expedient of passing it through the conduit of purportedly ‘expert opinion.’ ” DeShay, 669 N.W.2d at 886.

Our comments in DeShay about the impropriety of using an expert as a means to have inadmissible hearsay evidence admitted are consistent with the Minnesota Rules of Evidence regarding expert testimony generally. See Minn. R. Evid. 703 (“If a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied in forming his or her opinion] need not be admissible in evidence.”). As the Committee Comment to Rule 703 notes, this rule “is aimed at permitting experts to base opinions on reliable hearsay and other facts that might not be admissible under these rules of evidence.” Minn. R. Evid. 703 comm. cmt.-1989. However, “[a]lthough an expert may rely on inadmissible facts or data in forming an opinion, the inadmissible foundation should not be admitted into evidence simply because it forms the basis for an expert opinion.” Id. Rule 703(b) requires that “[u]nderlying expert data * * * be independently admissible in order to be received upon direct examination.”

In some of our cases, we have concluded that the admission of gang-expert testimony was proper, while in others we have held it was in error, albeit harmless error. For example, in Mahkuk we held that in a trial for first-degree premeditated murder and first-degree premeditated murder for the benefit of a gang, it was within the “permissible scope of gang expert testimony” for an expert to testify about the defendant’s membership in a specific gang, the rivalry between the defendant’s gang and another gang, and the specific reasons why the victims may have been targeted in this case. 736 N.W.2d at 686. On the other hand, in Blanche, a trial for first-degree murder, conspiring to commit first-degree murder, and crime committed for the benefit of a gang, we held that it was error to allow a gang expert to testify about the conduct of gang members in general, including that gang members retaliate against each other by shooting at each other, because we concluded that under the facts in Blanche, “there was a risk that the jury would improperly use this evidence to conclude that Blanche was the shooter simply because he is a member of a gang.” 696 N.W.2d at 374. We also said that it was error to allow a gang expert to testify that gang members in general do not falsely accuse their own gang members of crime, but we held that the erroneous admission of this testimony did not warrant a new trial. Id. In DeShay, we held that gang-expert testimony about crimes that gangs in general commit or about drive-by shootings and criminal sexual conduct committed by the gang that defendant was a member of were “neither helpful nor relevant to the fact issues before the jury,” where the defendant was charged with conspiracy to commit a controlled-substance crime. 669 N.W.2d at 886. Nevertheless, we held that the admission of the expert’s testimony was harmless error. Id. at 888. Finally, in Lopez-Rios, we held that it was error to admit much of a gang expert’s testimony, but that the error was harmless. 669 N.W.2d at 612-13.

We have issued several opinions in the area of gang-expert testimony that were not directly referenced in State v. Burrell when we instructed the district court, on remand, to determine what gang-expert testimony should be admitted. See 697 N.W.2d 579, 601-02 (Minn.2005). It does not appear that these more recent opinions were considered by the trial judge when he first made his evidentiary rulings on this issue. When our holdings in these newer cases and our earlier cases are properly considered, it becomes evident that whether gang-expert testimony is admissible in a particular case often depends on the trial record and the trial testimony of lay witnesses. For example, in Mah-lcuk, we noted that “[w]hen feasible,” it is best to prove the “for-the-benefit-of-a-gang element” through the testimony of lay witnesses who have firsthand knowledge of gang related issues. 736 N.W.2d at 686. In Blanche, we said that to be admissible, “the gang expert’s testimony must have been helpful to the jury in making factual determinations” and that it was error to admit the testimony in that case, in part, because it was “largely duplicative” of testimony given by fact witnesses. 696 N.W.2d at 374; see also Lopez-Rios, 669 N.W.2d at 612. In DeShay, we noted that in order to be admissible, a gang-expert’s testimony must be helpful to the jury, but that “[g]ang expert testimony in this non-complex drug conspiracy, to the extent relevant, was largely duplicative, giving little assistance to the jury in evaluating the evidence.” 669 N.W.2d at 886.

In its opinion dismissing the trial judge’s certified questions regarding the admissibility of gang-expert testimony, the court of appeals aptly noted that it could not answer several of the certified questions because the answers were largely “contingent upon testimony that may or may not be presented, or may be ruled inadmissible, at trial.” State v. Burrell, No. A06-149, 2006 WL 2807166, at *4 (Minn.App. Oct.3, 2006), rev. denied (Minn. Dec. 20, 2006). I agree. I conclude that it was premature for the trial judge to issue rulings on what, if any, expert testimony should be allowed in this case until there was a more developed trial record, and it became clear what lay witness testimony the state had actually presented on the homicide charge in general and the for-the-benefit-of-a-gang element in particular. I conclude that this need for a more fully developed record, combined with our additional case law on the issue of gang-expert testimony, case law which has developed since the time of the trial judge’s initial rulings, unquestionably points to a conclusion that the trial judge not only may but must reevaluate his evidentiary rulings, and if necessary, change those rulings. To conclude otherwise would unduly elevate form over substance.

      . Burrell was sentenced to life for the murder and 15 years for the attempt. He received an additional 12 months for the murder and 6 months for the attempt pursuant to Minn. Stat. § 609.229 (2006), which provides enhanced penalties for crimes committed for the benefit of a gang. See Minn.Stat. § 609.229, subds. 3-4.

      . DeShay and Lopez-Rios provide guidelines for assessing the admissibility of expert gang testimony. In DeShay, we stated, "That criminal gang involvement is an element of the crime does not open the door to unlimited expert testimony.” State v. DeShay, 669 N.W.2d 878, 886 (Minn.2003).
      [Ejxpert testimony must assist the jury to understand the evidence or to determine a fact in issue. The district court should scrutinize proffered gang expert testimony, preferably outside the presence of the jury, and exclude it where irrelevant, confusing, or otherwise unhelpful. Such testimony must add precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience. Moreover, this testimony must be carefully monitored by the court so that the testimony will not unduly influence the jury or dissuade it from exercising its independent judgment. * * * [Ejxpert testimony should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

        Id. at 887-88 (citations and internal quotation marks omitted); see also State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn.2003).

      . The judge certified the following questions:
      (1) Do the Minnesota Supreme Court's decisions in [DeShay and Lopez-Rios ] prohibit expert opinion testimony regarding Rolling 30s Bloods gang culture and history, if the opinion is based on hearsay?
      (2)(a) Do DeShay and Lopez-Rios prohibit expert opinion testimony that the Rolling 30s Bloods constitute a criminal gang under Minn.Stat. § 609.229, if the opinion is based on hearsay?
      (2)(b) If the answer to (2)(a) is yes, and there is no evidentiary stipulation or adequate first-hand knowledge testimony, should the "criminal gang” element be proved through “Spreigl-type evidence,” where evidence of individual gang members’ offense histories is presented?
      (3) If the trial court finds that the prosecution’s first-hand knowledge testimony regarding the defendant’s gang membership is insufficient to meet its burden of proof under Minn.Stat. § 609.229, can an expert opine that the defendant is a member of the Rolling 30s Bloods based upon the gang Strike Force identification criteria?
      (4)Is the phrase “first-hand knowledge,” as used in DeShay and Lopez-Rios, the equivalent of personal knowledge on the part of the expert?

        State v. Burrell, No. A06-149, 2006 WL 2807166, at *2 (Minn.App. Oct. 3, 2006), rev. denied (Minn. Dec. 20, 2006).

      . Minnesota Rule of Civil Appellate Procedure 110.03 permits the use of a trial-court-approved statement of the proceedings when a transcript is unavailable. The State elected not to avail itself of this option.

      .The March 26 transcript contains the following exchange:
      MR. FURNSTAHL: But, Judge, you made a statement to me, and here is where I want to be delicate, you made the statement to me that you thought the case should be dismissed.
      THE COURT: I thought that there were sufficient concerns about the State’s ability to pursue this case given where it now lies and given the impact on everybody * * * that you ought to consider whether it's appropriate to go forward or not. That's all I said. I didn't say * * * you should dismiss it. I said you ought to think about whether you ought to go forward or not. I think you still should think that. But that doesn't mean that if I hear the facts and they are different or one version is more believable than the other, which at this point I don't know because I haven’t heard all those versions, that it's a different deal altogether.
      MR. FURNSTAHL: With all due respect, I remember you telling me twice you thought the case should be dismissed. Maybe my memory isn't as clear as yours.
      THE COURT: Well, I think you maybe — you may have heard something that I didn’t in fact say.
      MR. FURNSTAHL: Okay. But the fact that you have * * * been privy to disputed factual evidence and the fact that you've made that comment, it causes me a great deal of concern as to—
      THE COURT: Well, * * * let me tell you what my concern is here about this case that was the basis for that discussion, and that is * * * whether you should consider whether it’s really in the interest of the State to have this be the test case on the gang issue. I don’t * * * think that I’m asking you or suggesting to you that you dismiss the case on the merits. I don’t know whether you can prove the case or not on the merits, but I think you are running a substantial risk that we get one more go-round of appeals and maybe even one more go-round of reversals. Because if your colleagues were correct when we issued the certified questions, we really don't know what the rule is on gang testimony. And I don’t think — and I suggest that you ought to think about at least to that extent whether this is the right case to do that in. And I still think that.
      MR. FURNSTAHL: I recall the discussion about the dismissal was in the context of our ability to prove the case because of, for example, Tim Oliver is no longer alive and Dr. Bruggemeyer is no longer alive.
      THE COURT: But you know, the Tim Oliver problem is also a gang testimony problem. I mean the problem with the Tim Oliver previous trial transcript testimony is really much more attributable to the for-the benefit-of-a-gang problem * * *.

      . "A request to disqualify a judge for cause shall be heard and determined by the chief judge of the judicial district * * Minn. R.Crim. P. 26.03, subd. 13(3).

      . The petition alternatively sought writs of prohibition (1) declaring that the trial judge abused his discretion by approving the jury trial waiver and (2) barring waiver without the State's consent. The court of appeals denied the writs of prohibition, and we denied review.

      . Burrell argues that the State is seeking removal of the trial judge not because of genuine concern about impartiality but because it is “shopping” for a judge who would more liberally admit expert gang testimony. In the context of the larger battle over expert gang testimony, it is conceivable that the State is seeking a judge who will rule more favorably as it seeks to challenge DeShay and Lopez-Rios. Even if the State were successful in replacing him, however, the current judge’s pretrial rulings would stand unless the State could demonstrate “extraordinary circumstances.” See Minn. R.Crim. P. 11 cmt. (“[Wjhen the Omnibus Hearing is held before a judge other than the trial judge, the trial judge, except in extraordinary circumstances will adhere to the findings and determinations of the Omnibus Hearing judge.”); see also State v. Hamling, 314 N.W.2d 224, 225 (Minn.1982) (“[W]e do not believe that this is an appropriate case for attempting a full-scale examination of the factors which are relevant to a determination of when a trial judge is justified in modifying or changing an omnibus order of another district court judge.”). The concurrence mischaracterizes what we have said in this note, but we will not engage in an extended debate over the meaning of our words. It suffices to state that we have not concluded and do not imply that the State's motion to remove was motivated by judge-shopping or that the motion was frivolous. Nor have we concluded, or even suggested, that the current judge’s pretrial rulings would be “binding” if a different judge presided at trial.


source: Caselaw Access Project

author: /s/Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for REINSTATEMENT OF Thomas J. BIETER, a Minnesota Attorney, Registration No. 8205.
    No. A06-1685.
    Supreme Court of Minnesota.
    Jan. 4, 2008.
   ORDER

By order filed on September 27, 1999, we placed petitioner Thomas J. Bieter on disability status and stayed disciplinary proceedings then pending against him. Our order provided that, upon the filing of a petition for reinstatement to active status, the stay of disciplinary proceeding would be automatically lifted. On September 6, 2006, petitioner petitioned for reinstatement to the active practice of law. Following a hearing before a panel of the Lawyers Professional Responsibility Board, petitioner has entered into a stipulation with the Director of the Office of Lawyers Professional Responsibility under which petitioner waives his rights to contest the panel’s findings of fact, conclusions of law, and recommendations, and agrees that his petition for reinstatement may be denied without further proceedings.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for reinstatement to the practice of law of Thomas J. Bieter be, and the same is, denied. The stay on disciplinary proceedings imposed by our September 27, 1999, order is hereby reinstated.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: ANDERSON, Paul H., Justice.

text:
    STATE of Minnesota, Respondent, v. Jeffrey David MOHS, Appellant.
    No. A06-199.
    Supreme Court of Minnesota.
    Jan. 10, 2008.

      Stephen Vincent Grigsby, Minneapolis, MN, for Appellant.
    Marcy S. Crain, Anoka County Attorney’s Office, Anoka, MN, Lori Swanson, Attorney General, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, Paul H., Justice.

After Jeffrey David Mohs failed to appear for a pretrial hearing and a jury trial, the Anoka County District Court issued a bench warrant for his arrest. While executing this warrant, the police discovered and seized a plastic bag containing methamphetamine. Mohs was subsequently charged with a fifth-degree controlled substance offense. Mohs moved to suppress the evidence seized during his arrest, claiming that the bench warrant violated the federal and state constitutions because it was not based upon probable cause supported by oath or affirmation and did not specify a bail amount. The district court denied Mohs’s motion, and Mohs was convicted of the fifth-degree controlled substance offense following a court trial. The Minnesota Court of Appeals affirmed the district court’s denial of Mohs’s suppression motion on appeal. We affirm.

Appellant Jeffrey David Mohs was scheduled to appear before the Anoka County District Court at 8:30 a.m. on November 1, 2004, for a pretrial hearing on a misdemeanor violation of an order for protection charge and for a jury trial on a felony pattern of harassing conduct charge. The district court called Mohs’s case at approximately 9:00 a.m., but Mohs was not present. Mohs still had not appeared when the court went on the record in his cases at 9:49 a.m. After Mohs’s attorney stated that Mohs was aware of the date of the hearing and the time that he was to appear, the court indicated that it would grant the state’s request for a bench warrant, but that it would “certainly take care of [Mohs]” if he appeared later in the day. The facts regarding Mohs’s knowledge of the hearing and his nonappearance were not submitted to the court through an affidavit or sworn testimony.

On the bench warrant, the district court marked a box next to preprinted language stating: “The defendant failed to appear before this court on-pursuant to the Order of the Court for -.” The court typed “11-01-04” in the first blank and “Pretrial [misdemeanor case number] Jury Trial [felony case number]” in the second blank. In preprinted language, the warrant ordered “the Sheriff of Anoka County or any other person authorized by law to execute this warrant * * * to apprehend and arrest and promptly bring the defendant before this court without unnecessary delay, not later than 36 hours after arrest or as soon thereafter as such judge is available, to be dealt with according to law.” In the place designated for a bail amount, the court wrote “Body Only.” The warrant was dated “11/1/04” and signed by the court.

Later that day, Mohs appeared at the Anoka County courthouse and approached the prosecuting attorney in the hallway. The prosecutor told Mohs that a warrant had been issued because he had not appeared and that his attorney had left the courthouse, but that Mohs could appear before the court to schedule a new trial date. The prosecutor also told Mohs that the state would not seek further bail or arrest if a new trial date was set that day. Mohs left the courthouse without appearing before the court and did not reappear to schedule a new trial date.

The next afternoon, a police officer with the Blaine Police Department was attempting to enforce the warrant and received information that Mohs might be at his girlfriend’s house. While parked in a police car on a public street near the house, the police officer saw Mohs leave the house and walk toward his truck. The truck was parked on the street across from the house. After Mohs apparently saw the police car, the officer saw Mohs remove some items from his pockets, throw them on the ground, and stomp on them. The officer then approached Mohs, arrested him, and searched the area where the officer had seen Mohs throw the objects from his pockets. During this search, the officer found a smashed glass pipe and a plastic bag containing a white crystalline powder. Subsequent laboratory tests established that the powder in the bag contained methamphetamine.

Based on the evidence found by the police officer, Mohs was charged on November 3, 2004, with one count of fifth-degree controlled substance offense for possession of methamphetamine. On that same day, the district court reinstated Mohs’s original bonds and set bail at an additional $3,000 on the original misdemeanor violation of an order for protection and felony pattern of harassing conduct charges. The next day, the district court also set bail on the new controlled substance charge at a Rule 5 hearing.

Mohs subsequently filed a motion to suppress the evidence seized during his arrest, arguing that the bench warrant violated the federal and state constitutions because it was not based upon probable cause supported by oath or affirmation and did not provide for bail. The district court denied Mohs’s motion on May 25, 2005. The court concluded that “so long as probable cause to support the warrant is affirmed, the manner in which the oath is made, whether it appears upon the face of the warrant or the record in Court, does not render the warrant unconstitutional,” and that the necessary facts of Mohs’s failure to appear were affirmed on the record before the bench warrant was issued. With regard to bail, the court concluded that defendants are entitled to a bail hearing within 36 hours of arrest, not to have the bail amount set forth in the warrant.

Following the district court’s ruling, Mohs submitted his case for a court trial on a stipulated factual record from the police reports pursuant to State v. Lothenbach. A week later, the district court found Mohs guilty of the fifth-degree controlled substance offense. On December 30, 2005, the district court ordered that adjudication of this matter be stayed for 5 years. The court of appeals affirmed the district court’s order, concluding that the bench warrant was supported by probable cause that Mohs failed to appear, that the warrant “did not offend the oath-or-affirmation clausefs]” in the federal and state constitutions, and that Mohs failed to identify a constitutional violation with respect to the bail issue. State v. Mohs, 726 N.W.2d 816, 819-22 (Minn.App.2007).

I.

The Fourth Amendment to the United States Constitution provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Minnesota Constitution, using nearly identical language, places the same restrictions on the issu-anee of warrants. Minn. Const, art. I, § 10. The purpose of these provisions is “to shield the citizen from unwarranted intrusions into his privacy.” Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). This purpose is served by the requirement that law enforcement officers obtain from an impartial magistrate a warrant authorizing the particular search or seizure. Id.; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The oath-or-affirmation clause ensures the truthfulness of the information upon which the magistrate’s probable cause determination is based. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.3(e) (4th ed.2004). Thus, we have stated that the intent of these requirements “is to ensure that a magistrate is apprised, in whatever manner, of adequate facts that establish probable cause before a warrant shall issue.” State v. Meizo, 297 N.W.2d 126, 128 (Minn.1980).

Mohs argues that the federal and state constitutions prohibit the issuance of all warrants except “upon probable cause” and that both constitutions “specif[y] the exclusive conditions under which probable cause itself must be specified: ‘supported by oath or affirmation.’ ” Because the facts supporting probable cause in this case were not sworn to under oath, Mohs argues that the bench warrant at issue was unconstitutional.

Neither this court nor the United States Supreme Court has directly addressed the constitutionality of a bench warrant where probable cause is supported only by facts within the personal knowledge of the issuing magistrate. But the authority of courts to order that individuals who fail to appear as required by law be brought before the court is supported by the inherent authority of courts, by analogous precedent of the United States Supreme Court, and by the reasoning of other courts that have addressed this issue.

The inherent authority of a court to order arrest and punishment for offenses committed in the court’s presence has been recognized since before the adoption of the Fourth Amendment. Blackstone described the English common law in the years preceding the American Revolution as follows:

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any farther proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowle[d]ge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him; or, in very flagrant instances of contempt, the attachment issues in the first instance * * *.

William Blackstone, 4 Commentaries *277, * 283 (footnote omitted). The recognition of this inherent judicial power has continued in this country since the adoption of the Fourth Amendment. For example, in Ex parte Robinson, the Supreme Court stated that “[t]he power to punish for con-tempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.” 19 Wall. 505, 86 U.S. 505, 510, 22 L.Ed. 205 (1873). In another case, the Court outlined numerous precedents acknowledging this inherent authority before stating:

[I]t is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that, for direct contempts committed in the face of the court * * * the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof that its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions.

Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405 (1888).

In addition to this historical recognition of the courts’ inherent authority, the Supreme Court addressed a similar issue with respect to a legislative warrant in McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927). During the course of an investigation into misconduct by the United States Attorney General, the United States Senate select committee conducting the investigation issued and served two subpoenas on Mally S. Daugherty, the Attorney General’s brother. Id. at 151-53, 47 S.Ct. 319. When Daugherty failed to appear or respond in any manner to the subpoenas, the committee submitted a report to the full Senate stating that the subpoenas had been issued, that they had been personally served, and that the witness refused to appear as directed. Id. at 152-53, 47 S.Ct. 319. Pursuant to a resolution adopted by the Senate, the President pro tempore issued a warrant directing that Daugherty be arrested and brought before the Senate for questioning. Id. at 153, 47 S.Ct. 319. Following his arrest, Daugherty petitioned for a writ of habeas corpus. Id. at 154, 47 S.Ct. 319.

Addressing Daugherty’s argument that the warrant violated the oath-or-afflrmation clause of the Fourth Amendment, the Supreme Court stated:

In legislative practice committee reports are regarded as made under the sanction of the oath of office of its members; and where the matters reported are within the committee’s knowledge and constitute probable cause for an attachment such reports are acted on and given effect without requiring that they be supported by further oath or affirmation.

Id. at 156, 47 S.Ct. 319. The Court also found support for this legislative practice in the settled judicial doctrine that courts may order commitments for contempts committed in the courts’ presence “without other proof than their own knowledge of the occurrence, and that they may issue attachments, based on their own knowledge of the default, where intended witnesses or jurors fail to appear in obedience to process shown by the officer’s return to have been duly served.” Id. at 157, 47 S.Ct. 319 (footnote omitted). Based on this reasoning, the Court held that the Senate warrant “was sufficiently supported by oath to satisfy the constitutional requirement.” Id. at 158, 47 S.Ct. 319.

We also note that several other courts have addressed the same question we are now presented with and have concluded that the Fourth Amendment and similar state constitutional provisions do not prohibit the issuance of bench warrants supported only by the personal knowledge of the issuing court. For example, the Oregon Supreme Court, when addressing a provision of the Oregon Constitution that is nearly identical to the oath-or-affirmation requirement of the federal and Minnesota Constitutions, held that “an exception to the warrant requirement exists when the facts giving rise to probable cause occur in the presence of the court.” State v. Noble, 314 Or. 624, 842 P.2d 780, 782 (1992) (internal quotation marks omitted). The Oregon court, however, held that this exception is limited to “events that occur in the physical presence of a judicial officer acting in the judicial officer’s official capacity.” Id. Similarly, in concluding that there is a “personal knowledge” exception to the general rule that the facts supporting probable cause for a warrant be sworn in an affidavit, the Nebraska Supreme Court recognized that “[t]he ‘personal knowledge’ exception to the affidavit requirement recognizes the commonsense notion that there is no point in a judge executing an affidavit when that judge has personal knowledge of facts establishing probable cause,” and that requiring an affidavit in such circumstances “would accomplish nothing other than to elevate form over substance.” State v. Davidson, 260 Neb. 417, 618 N.W.2d 418, 425 (2000); see also United States v. Evans, 574 F.2d 352, 355 (6th Cir.1978); People v. Allibalogun, 312 Ill.App.3d 515, 245 Ill.Dec. 186, 727 N.E.2d 633, 636 (2000); State v. Pinela, 113 N.M. 627, 830 P.2d 179, 181 (Ct.App.1992); Kosanda v. State, 727 S.W.2d 783, 784-85 (Tex.App.1987). Further, we note that Mohs has not cited a single case in which a court reached a decision contrary to this overwhelming authority.

In the present case, Mohs was ordered to appear in the district court at 8:30 a.m. on November 1, 2004. But Mohs was not present when the court called his case at 9:00, and still had not appeared when the court went on the record at 9:49 a.m. All of this information was within the personal knowledge of the presiding judge, who was in the courtroom. The judge knew Mohs’s cases were scheduled and could see firsthand that Mohs was not present. We conclude that to require either the judge or some other person to state these facts in an affidavit, as Mohs suggests, would not further the Fourth Amendment’s policy of ensuring that a detached magistrate independently determine when a warrant shall issue and would not provide any new information related to the court’s probable cause determination. Rather, as the Nebraska Supreme Court recognized, the only effect of such a rule would be the elevation of form over substance. Accordingly, we hold that the district court did not violate either the federal or Minnesota Constitution when it issued a bench warrant based on its personal knowledge, obtained in its official capacity, that Mohs had notice of the scheduled court appearance but did not appear.

II.

Mohs also argues that the district court lacked sufficient knowledge to support a probable cause determination that a contempt was committed because the court did not know the reason for Mohs’s failure to appear. In support of this argument, Mohs cites our decision in Knajdek v. West, 278 Minn. 282, 153 N.W.2d 846 (1967). In Knajdek, an attorney was sentenced to 60 days in jail as punishment for failing to obtain the court’s approval of a settlement and appearing 20 minutes late to a scheduled court proceeding. Id. at 283-84, 153 N.W.2d at 847. The attorney appealed this adjudication of contempt, arguing that we had previously held that a person charged with constructive criminal contempt — i.e., “a criminal contempt not committed in the presence of the court”— is entitled to a jury trial on the charge. Id. at 284, 153 N.W.2d at 847. In determining whether the contempts at issue were direct or constructive, we stated:

Admittedly, both the failure to secure the court’s approval of the minor’s settlement and the failure to appear on time occurred in the court’s presence in the sense that the judge was personally aware of the respective failures and the possible implications. But the mere fact of the failure was in neither instance sufficient in itself to constitute the offense. It was the reasons for the failure which would render them either contemptuous or excusable, and the court could have no firsthand knowledge as to these reasons. Thus, the judge did not, as a result of acts occurring in his immediate view and presence, have personal knowledge as to all the operative facts which constituted the offense and were necessary to a proper adjudication of appellant’s guilt or innocence of the contempt charges.

Id. at 284-85, 153 N.W.2d at 847-48 (footnote omitted).

We conclude that Knajdek is distinguishable. In Knajdek, we were addressing the imposition of punishment by the district court for criminal contempt. The present case, on the other hand, merely involves a bench warrant ordering that a defendant be brought before the court in order to advance the ongoing proceedings. In this context, we conclude that the reason for the defendant’s failure to appear is not a necessary fact to the court’s probable cause determination. Therefore, we hold that the bench warrant for Mohs’s arrest did not violate the warrant clause of the federal or Minnesota Constitutions on the grounds that the court did not know the reason Mohs failed to appear.

III.

Article I, section 7, of the Minnesota Constitution provides that “[a]ll persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.” Mohs argues that this provision requires that all warrants specify a bail amount on their face, and that the issuance of a “Body Only” warrant is therefore unconstitutional.

Mohs is correct that Article I, section 7, creates a constitutional right to bail in all noncapital cases. See State v. Pett, 253 Minn. 429, 432-33, 92 N.W.2d 205, 207-08 (1958). But the right to bail does not necessarily mean that the bail must be set on the face of the warrant. The only temporal condition in the constitutional text specifies that persons are bailable “before conviction,” not immediately upon arrest. As the court of appeals correctly noted, Article I, section 7, “neither expressly states nor implies that all arrest warrants must provide for bail.” Mohs, 726 N.W.2d at 822.

To support his argument that bail must be set out on the face of the warrant, Mohs cites Rule 3.02 of the Minnesota Rules of Criminal Procedure. Rule 3.02 states that “[f]or all offenses, the amount of bail shall and other conditions of release may be set by the issuing officer and endorsed on the warrant.” Based on this language, Mohs asserts that a warrant governed by Rule 3.02 must include a bail amount. But Rule 3 only addresses warrants or summons upon complaint. Thus, “the warrant” addressed by Rule 3.02 must be the warrant issued under Rule 3.01 upon initiation of the prosecution. The warrant m this case — which was issued when Mohs failed to appear for a pretrial hearing and a jury trial in violation of the conditions of his release — is therefore not governed by Rule 3.02.

Mohs also cites the comment to Rule 6 of the Minnesota Rules of Criminal Procedure, which provides that “the court is not authorized to revoke the defendant’s release without setting bail because such action is not permitted under Minnesota Constitution Article 1, section 5.” This comment, however, is specifically directed at Rule 6.03, subdivision 3, which requires the district court to “continue the release upon the same conditions or impose different or additional conditions for the defendant’s possible release,” but only “[a]fter hearing and upon finding that the defendant has violated conditions imposed on release.” (Emphasis added). The comment, when read together with the rule that it addresses, suggests only that the court may not permanently revoke the defendant’s release without setting bail. The comment does not address revocation of the defendant’s release pending a hearing on the alleged violation. Moreover, the language of Rule 6.03, subdivision lb, expressly provides that when a warrant is issued for violations of release conditions, including failure to appear at a scheduled court proceeding, the warrant “shall direct that the defendant be arrested and taken forthwith before such judge, judicial officer or court.” Thus, Rule 6 could be interpreted to require that such warrants be Body Only, and that new conditions be imposed only after the defendant is brought before the court. Therefore, we conclude that Mohs’s reliance on the comments to Rule 6 is misplaced.

For the foregoing reasons, we conclude that neither Article I, section 7, of the Minnesota Constitution nor the Minnesota Rules of Criminal Procedure require that a bail amount be specified on the face of a bench warrant issued based on a violation of the defendant’s conditions of release. Therefore, we hold that the “Body Only” bench warrant in this case was valid.

Affirmed.

      . In State v. Lothenbach, we authorized the submission of a criminal case for a court trial based on stipulated facts, rather than the entry of a guilty plea, to preserve the defendant’s right to appeal pretrial decisions regarding the suppression of evidence. 296 N.W.2d 854, 857-58 (Minn.1980).

      . The warrant clause in the Minnesota Constitution provides that "no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” Minn. Const, art. I, § 10. The minor differences between the state and federal provisions do not affect our interpretation in this case.

      . One of the illustrations of this principle provided by the Oregon Supreme Court is particularly relevant to the present case: "For example, while the court is in session, when a party fails to appear without excuse at the time and place of a scheduled hearing, * * * the facts giving rise to probable cause occur 'in the presence of the court.’ ” Noble, 842 P.2d at 782.

      . Rule 3.01 provides for the issuance of a warrant "[i]f it appears from the facts set forth in writing in the complaint and any supporting affidavits or supplemental sworn testimony that there is probable cause to believe that an offense has been committed and that the defendant committed it.”

      . Rule 6 of the Minnesota Rules of Criminal Procedure governs pre-trial release.

      . Rule 6 allows the issuance of either a summons or a warrant when a defendant violates his release conditions. Minn. R.Crim. P. 6.03, subds. la-lb. But the court may issue a warrant instead of a summons only “if it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to a summons, or that the continued release of the defendant will endanger the safety of any person or the community, or that the location of the defendant is unknown.” Minn. R.Crim. P. 6.03, subd. lb.


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Eugene CASTRO, a Minnesota Attorney, Registration No. 335915.
    No. A07-2416.
    Supreme Court of Minnesota.
    Jan. 14, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), based on an order of the Appellate Division of the Supreme Court for the First Judicial Department for the State of New York filed on October 18, 2007, disbarring respondent following his felony conviction in New York of offering a false instrument for filing. The Director and respondent have entered into a stipulation under which respondent admits the allegations of the petition for reciprocal discipline and waives his rights under Rule 12(d), RLPR. The parties jointly recommend that the appropriate reciprocal discipline is disbarment.

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

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Eugene Castro is disbarred. Respondent shall comply with Rule 26, RLPR (requiring notice of disbarment to clients, opposing counsel, and tribunals), and shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice


author: /s/Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Melissa Ashley ZENTNER, a Minnesota Attorney, Registration No. 327189.
    No. A08-86.
    Supreme Court of Minnesota.
    Jan. 18, 2008.
   ORDER

Based upon the application of the Director of the Office of Lawyers Professional Responsibility, pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility, and upon evidence that respondent Melissa Ashley Zentner cannot be found in the state or served personally with the petition for disciplinary action,

IT IS HEREBY ORDERED that respondent Melissa Ashley Zentner is suspended from the practice of law in Minnesota. Within one year from the date of this order, respondent may move for vacation of the order for suspension and for leave to answer the disciplinary petition. Respondent is advised that if she fails to appear in this matter within one year from the date this order is filed, the allegations in the petition for disciplinary action shall be deemed admitted.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent v. Jonathan SANDERS, Appellant.
    No. A06-1354.
    Court of Appeals of Minnesota.
    Jan. 15, 2008.

      Lori Swanson, Attorney General, St. Paul and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh; Assistant County Attorney, St. Paul, for respondent.
    John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, St. Paul, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; SHUMAKER, Judge; and WORKE, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant challenges his conviction for first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(a) (2004), arguing that the district court erred by admitting the statements he made to FBI officers in Chicago, Illinois, who did not record the statements as required for admission at trial under Minnesota law by State v. Scales, 518 N.W.2d 587 (Minn.1994). Appellant also asserts that the court erred by admitting evidence of prior sexual misconduct against the victim and her sister under Minn.Stat. § 634.20 (2004), absent the procedural safeguards required by Minn. R. Evid. 404(b) for so-called Spreigl evidence.

Because the Scales requirement is a procedural measure designed to govern the conduct of Minnesota law enforcement personnel and does not rise to the level of a constitutional guarantee, and because the evidence of prior sexual misconduct against the victim and her sister rests squarely within the limits of Minn.Stat. § 634.20, we affirm.

FACTS

On October 29-30, 2004, appellant engaged in first-degree criminal sexual conduct with B.J., the eleven-year-old daughter of his girlfriend, S.J. B.J. told her mother about the assault that day; S.J. immediately called appellant and accused him of having sexual contact with B.J. After the confrontation, appellant left the Twin Cities for the Chicago area, where his mother lives.

A criminal complaint and fugitive warrant were issued, and on May 24, 2005, the FBI arrested appellant at his mother’s home near Chicago. Appellant was taken to a local Chicago Police Department, where the FBI contacted the St. Paul Police Department. After this contact, the FBI interrogated appellant in accordance with Illinois law, which does not require the recording of custodial interrogations. According to FBI agents, appellant was advised of his constitutional rights and chose to waive them. The FBI produced an “Advice of Rights” form, with “signature refused” on it. During the interrogation, appellant denied having sexual contact with B.J. Appellant also made the following revealing statements: (1) he did not “f* * *” B.J.; (2) he masturbated throughout the house on a regular basis, including in B.J.’s room, but not while she was present; (3) he would not have sex with B.J., because he believed that she had a venereal disease, based on a vaginal odor that he compared with a neighbor’s; and (4) he had never observed B.J.’s genitalia.

St. Paul police and a specially trained nurse interviewed B.J. immediately following the assault. B.J. credibly described the incident in which appellant came into her bedroom, removed her pants and underwear, masturbated against her, ejaculated, and washed himself with a washcloth. When she arrived at the hospital on the date of the assault, B.J. was not wearing underwear, consistent with her story about appellant replacing only her pants. B.J. was also tested for venereal disease and was found not to have a disease or an odor. The washcloth identified by B.J. was tested for DNA; it revealed the presence of semen, and appellant could not be excluded as a source of that DNA.

During trial, the state offered evidence of appellant’s similar conduct under Minn. Stat. § 634.20 (2006). B.J. testified that on two separate occasions, appellant had licked her breast and hit her on the head with his penis. B.J.’s older sister, N.J., lives with N.J.’s father in Chicago. N.J. testified that during spring break of 2003, when she was about 17 years old and was visiting her mother, appellant approached her and touched her vagina when she was sleeping on the couch. She got up and went into B.J.’s room to get away from him. She reported the misconduct to her father, who told her grandmother, who informed S.J. of the incident. Appellant denied this sexual contact, but S.J. barred him from the house until N.J. returned to her father’s house.

Appellant testified at trial. He stated that neither the charged sexual offense nor the prior incidents of sexual misconduct had occurred. Appellant also denied making any statements to the FBI, asserting that he had simply denied having any sexual contact with B.J. and suggesting that the FBI officers had fabricated other purported statements.

Appellant was convicted of first-degree criminal sexual conduct and brought this appeal. The state moved to strike portions of appellant’s pro se supplemental brief.

ISSUES

1. Did the district court err by admitting appellant’s statements made to FBI officers in Illinois, despite the FBI’s failure to record those statements?

2. Did the district court abuse its discretion by admitting evidence of appellant’s prior sexual misconduct against the victim and her sister?

3. Has appellant raised meritorious issues in his pro se brief?

4. Should portions of appellant’s pro se appellate brief be stricken?

ANALYSIS

1. Scales Requirement

In State v. Scales, 518 N.W.2d 587, 593 (Minn.1994), the Minnesota Supreme Court held that all phases of custodial interrogation, including a reading of constitutional rights, must be recorded where feasible, and that all custodial interrogation that occurs at a place of detention must be recorded. If there is a substantial violation of the recording rule, a district court must suppress the statements at trial. Id. The court declined to determine whether the Due Process Clause of the Minnesota Constitution guarantees this right to a criminal suspect, but instead relied on its inherent supervisory power “to insure the fair administration of justice.” Id.

Neither the FBI nor the state of Illinois has a recording requirement, however. See State v. Conger, 652 N.W.2d 704, 707 n. 2 (Minn.2002) (noting that recording of interrogations is not required under the Illinois due process clause). Appellant argues that while the Minnesota courts do not have jurisdiction over Illinois or FBI procedure, the Scales requirement is a procedural requirement in Minnesota and courts of this state have the power to admit or exclude evidence obtained elsewhere if state standards are not met.

In formulating the Scales requirement, the supreme court intended to limit factual disputes about defendant statements, to promote accuracy, to discourage misleading and false testimony, to curb abusive police practices, and to preserve a defendant’s right to a fair trial. Scales, 518 N.W.2d at 591. The court considered the recommendations of the Model Code of Pre-Arraignment Procedure, § 150.3, (2), (3) (1975), which sets forth considerations to be made in determining when violations of pre-arraignment procedure are substantial. Scales, 518 N.W.2d at 592 n. 5. These considerations include whether the act was a willful deviation from lawful conduct and whether exclusion of evidence would deter future violations. Id. The court’s reasoning makes it clear that the Scales recording requirement is a state procedural rule intended to govern conduct occurring within the state.

Because the Scales requirement is not a part of either Illinois law or federal law, we conclude that the FBI did not willfully deviate from lawful conduct during the interrogation and that suppression of this evidence would not prevent future violations in Minnesota. The district court therefore did not err by admitting appellant’s statement.

Appellant also argues that the prejudicial effect of the statements made to the FBI outweigh their probative value. See Minn. R. Evid. 403 (excluding even relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”). Although appellant’s statements undoubtedly cast him in a poor light, they are undoubtedly highly probative of appellant’s attitude toward the victim. The district court did not abuse its discretion by admitting these statements. See State v. Bell, 719 N.W.2d 635, 641 (Minn.2006).

2. Similar Conduct Evidence

Minn.Stat. § 634.20 (2006) allows introduction of “[ejvidenee of similar conduct by the accused against the victim of domestic abuse, or against other family or household members,” unless the prejudicial effect of the evidence outweighs its probative value. See Minn. R. Evid. 403 (setting forth similar balancing test to determine general admissibility of evidence). “Domestic abuse” is defined in Minn.Stat. § 518B.01, subd. 2 (2006), to include criminal sexual conduct inflicted on a family or household member.

Prior domestic abuse evidence admissible under Minn.Stat. § 634.20 is like Spreigl evidence, but differs in critical ways. State v. Meldrum, 724 N.W.2d 15, 20 (Minn.App.2006), review denied (Minn. Jan. 24, 2007); see Minn.Stat. § 634.20 (defining “domestic abuse” for purposes of the statute as it is defined in Minn.Stat. § 518b.01, subd. 2). Caselaw following Spreigl makes clear that Spreigl evidence is admissible only after a five-step process; for limited purposes of showing motive, intent, lack of mistake or accident, or common scheme or plan; and only upon clear and convincing evidence of the defendant’s participation in the prior similar conduct. State v. Ness, 707 N.W.2d 676, 685-86 (Minn.2006). Minn.Stat. § 634.20 does not include the same procedural prerequisites. State v. McCoy, 682 N.W.2d 153, 159-60 (Minn.2004).

Commenting on the different treatment of Spreigl and prior domestic abuse evidence, the supreme court stated:

As we have already discussed, our precedent indicates that we have treated evidence that illuminates the history of the relationship between an accused and a victim differently than other, “collateral” Spreigl evidence. We believe this different treatment is appropriate in the context of the accused and the alleged victim of domestic abuse. Domestic abuse is unique in that it typically occurs in the privacy of the home, it frequently involves a pattern of activity that may escalate over time, and it is often un-derreported. Domestic abusers often exert control over their victims, which undermines the ability of the criminal justice system to prosecute cases effectively.

Id. at 161 (citations omitted).

We observe no abuse of discretion in the district court’s admitting evidence of appellant’s prior sexual misconduct against B.J. and N.J. The court weighed the probative value of the evidence against its prejudicial effect. Bell, 719 N.W.2d at 639. Although the court gave no limiting instruction during B.J.’s or N.J.’s testimony, it did give a limiting instruction during the investigating officer’s testimony, and the following limiting instruction in its charge to the jury:

The State has introduced evidence of acts of alleged sexual misconduct by the defendant on dates other than October 29th through 30, 2004. This evidence was admitted for the limited purpose of assisting you in determining whether the defendant committed the act with which he is charged in the complaint. The defendant is not being tried for, and may not be convicted of any offense other than the charged offense. You may not convict the defendant solely on the basis of any prior occurrence. To do so might result in unjust double punishment.

In Bell, 719 N.W.2d at 638, the district court gave a similar limiting instruction during the charge to the jury, and no other limiting instruction during the trial.

Because the prior domestic abuse evidence here meets both the requirements and purposes of Minn.Stat. § 634.20; the district court did not abuse its discretion by admitting this evidence.

3. Appellant’s Pro Se Issues

Appellant has raised a number of issues in his pro se supplemental brief and the addendum to this brief. We have carefully reviewed the record and conclude that these issues lack merit. Insofar as appellant is asserting ineffective assistance of counsel, we note that there is a strong presumption that an attorney acted competently. Dukes v. State, 621 N.W.2d 246, 252 (Minn.2001). To successfully assert ineffective assistance of counsel, appellant must have demonstrated that his attorney failed to exercise the customary skills and diligence of a reasonably competent attorney acting in those circumstances, and he was so prejudiced by counsel’s error that a different result would be expected but for the error. See id. Courts defer to decisions of counsel regarding trial strategy. State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998). Appellant has asserted that his attorney erred in issues of strategy, and we decline to 'find ineffective assistance of counsel on the record before us.

k. Motion

The state has moved to strike portions of appellant’s pro se supplemental brief as relying on evidence outside the record. Minn. R. Civ.App. P. 110.01 (record on appeals consists of papers filed in the trial court, the exhibits, and a transcript of the proceeding). We have reviewed the record and grant the state’s motion to strike those portions of appellant’s pro se supplemental brief as set forth in the state’s motion papers.

DECISION

The district court did not err by refusing to suppress appellant’s unrecorded statements made to FBI agents in Illinois, and by permitting evidence of appellant’s prior sexual contact with B.J. and N.J. pursuant to Minn.Stat. § 634.20 (2006). Appellant’s references in his pro se brief to matters outside the record, as set forth in the state’s motion papers, are stricken.

Affirmed; motion granted.


author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Jeffrey Scott JOHNSON, Appellant.
    No. A06-2166.
    Court of Appeals of Minnesota.
    Jan. 15, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Michael A. Fahey, Carver County Attorney, Stuart N. Radde, Special Assistant County Attorney, Chaska, MN, for respondent.
    John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; KALITOWSKI, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

In this appeal from an order revoking probation imposed for appellant’s 2001 conviction of first-degree assault, appellant argues that the district court erred in revoking his probation because the district court based its decision on its belief that Minn.Stat. § 609.135, subd. 4 (2006), precluded it from sentencing appellant to additional jail time when appellant had already served more than a year of probationary jail time. Because the district court’s interpretation of Minn.Stat. § 609.135, subd. 4, was erroneous, we reverse and remand for resentencing.

FACTS

On May 4, 2001, appellant was arrested in Carver County, Minnesota, after being involved in an assault of a middle-aged man. The victim was transported to a hospital with serious, life-threatening head injuries. On September 11, 2001, Carver County charged appellant with aiding and abetting first-degree assault in violation of Minn.Stat. § 609.221, subd. 1 (2000).

Appellant pleaded guilty to the charge and the district court imposed a 98-month prison sentence, stayed for a period of ten years, and set conditions of probation which included serving nine months in the Carver County jail, paying approximately $12,500 in restitution, abstaining from the use of alcohol or non-prescription drugs, submitting to random testing, and remaining law abiding.

In May 2004, the Department of Corrections (DOC) filed a probation-violation report alleging that appellant had tested positive for the use of marijuana and cocaine. Appellant admitted the violations, and in August 2004, the district court reinstated appellant’s probation and ordered him to serve five months in the Carver County jail.

In July 2005, the DOC filed another probation-violation report alleging that appellant had failed to pay restitution and had failed to report to jail as ordered. As a result, the district court revoked appellant’s probation and issued an order for his arrest. The district court reinstated appellant’s probation in August 2005 and ordered him to serve nine months in the Carver County jail. But after appellant failed to report to jail as ordered, the district court again revoked appellant’s probation and issued a warrant for appellant’s arrest. In December 2006, the DOC filed another probation-violation report because appellant had failed to report to jail as ordered.

In May 2006, appellant appeared before the district court for a hearing on his probation violations. At the hearing, the district court indicated that it had considered imposing additional time in the county jail as a consequence of his probation violations, but at the conclusion of the hearing, the district court stated that

the Court has no other sanction left available to make you comply in the future with the Court orders. You’ve been here three times now in violations and you continue to intentionally violate the Court orders ... commitment to the Commissioner would be the least restrictive alternative that I have available to me.

The district court then took the matter under advisement “with the intent that [it would] execute the prison sentence,” but asked the parties for their input “as to whether there are other alternatives available to the Court.” One week later, the parties appeared before the district court to present arguments regarding whether the district court was precluded from imposing jail time as an intermediate sanction because appellant had already served more than one year in jail in connection with the offense.

In August 2006, the district court issued an order revoking appellant’s probation and executing his 98-month prison sentence. The district court found that appellant admitted that he failed to report to jail as previously ordered and that he had only paid $728 toward his restitution. The district court also found that (1) appellant’s probation violations were willful and without legal excuse; and (2) “failure to revoke [appellant’s] probation would unduly depreciate the seriousness of the violations.” In its written memorandum, the district court stated:

In spite of [appellant’s] probation violations, the Court does not find that confinement is necessary to protect the public from further criminal activity by [appellant]. The Court also fails to find that [appellant] is in need of correctional treatment which can most effectively be provided if he is confined. The Court does, however, believe it would unduly depreciate the seriousness of [appellant’s] latest violations if probation were not revoked.

The district court, aware that appellant had already served a cumulative total of more than one year in jail in connection with his previous sentence and probation violations, stated:

[Appellant’s] most recent probation violation, failing to report to jail as ordered, requires the Court to consider whether additional jail time is a possibility or revocation is the only option. Because Minnesota Statutes specifically limit the amount of time a district court may order a Defendant to serve in jail as a condition of probation to one year, this Court has no choice but to revoke [appellant’s] probation.

This appeal follows.

ISSUE

Did the district court err by revoking appellant’s probation and executing his prison sentence?

ANALYSIS

Appellant argues that the district court erred by revoking his probation and executing his prison sentence because the district court’s decision was based on its erroneous conclusion that Minn.Stat. § 609.135, subd. 4 (2006), precluded it from sentencing appellant to additional jail time for a probation violation where he has already served more than 12 months in jail as part of his stayed sentence and for probation violations. We agree.

A district court has broad discretion when determining whether to revoke probation, and it will not be reversed absent an abuse of that discretion. State v. Ornelas, 675 N.W.2d 74, 79 (Minn.2004). The Minnesota Supreme Court has established a three-step analysis that must be applied before probation may be revoked. State v. Austin, 295 N.W.2d 246, 250 (Minn.1980). The district court must “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.” Id. The supreme court reaffirmed the third requirement in 2005 and noted that “[t]his process prevents courts from reflexively revoking probation when it is established that a defendant has violated a condition of probation.” State v. Modtland, 695 N.W.2d 602, 608 (Minn.2005). In determining whether the need for confinement outweighs the policies favoring probation, district courts should consider whether:

(i) confinement is necessary to protect the public from further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.

Modtland, 695 N.W.2d at 607.

If a defendant violates a condition of probation or an intermediate sanction, a district court “may without notice revoke the stay and direct that the defendant be taken into immediate custody.” Minn. Stat. § 609.14, subd. 1(a) (2006). If grounds for revocation are found to exist, a district court may, “if sentence was previously imposed and execution thereof stayed, continue such stay and place the defendant on probation or order intermediate sanctions in accordance with the provisions of section 609.135, or order execution of the sentence previously imposed.” Minn.Stat. § 609.14, subd. 3(2) (2006). “[I]intermediate sanctions” include incarceration in a local jail. Minn.Stat. § 609.135, subd. 1(b) (2006). Under Minn. Stat. § 609.135, subd. 4, a district court “may, as a condition of probation, require the defendant to serve up to one year incarceration in a county jail ... or require the defendant to pay a fine, or both.”

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Id.

The record shows that the district court relied heavily upon its belief that section 609.135, subdivision 4, precluded it from imposing any additional jail time upon appellant when deciding to revoke appellant’s probation because appellant had already served more than one year in jail. The transcripts of the probation-violation hearings clearly show that the district court considered alternatives to execution of appellant’s sentence, including giving appellant more time in the county jail or imposing a shorter executed sentence. In its written order, the district court acknowledged that section 609.135, subdivision 4, permits it to, “as a condition of probation, require a defendant to serve up to one year in jail.” But the district court ultimately concluded that it had “no choice but to revoke [appellant’s] probation” because appellant “had already been required to serve in excess of one year in jail” as a condition of his stayed sentence and probation violations.

The district court’s analysis is flawed, however, because there is a distinction between imposing jail as a condition of probation and imposing jail for violating probation. Section 609.135, subdivision 4, limits the amount of local jail time a district court can impose at one time, whether as a condition of probation or as an intermediate sanction, but the statute neither states nor implies that there is a limit to the cumulative amount of local jail time a district court may impose as a consequence of probation violations. And this court “cannot add to a statute what the legislature purposely omits or inadvertently overlooks.” State v. Collins, 655 N.W.2d 652, 661 (Minn.App.2003) (quotation omitted), review denied (Minn. Mar. 26, 2003). Therefore, we conclude that the district court erred when it concluded that Minn.Stat. § 609.135, subd. 4, precluded it from imposing additional local jail time as a consequence for appellant’s probation violations. Because the district court relied so heavily on its erroneous interpretation of section 609.135, subdivision 4, when making its decision, we reverse and remand for resentencing in light of the correct interpretation. We take no position on the merits of the probation revocation.

DECISION

The district court erred by concluding that Minn.Stat. § 609.135, subd. 4 (2006), imposed a limit on the cumulative amount of local jail time that may be imposed as a consequence of probation violations.

Reversed and remanded.


author: ROSS, Judge.

text:
    David FRANK, Relator, v. HEARTLAND AUTOMOTIVE SERVICES, INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A06-2217.
    Court of Appeals of Minnesota.
    Jan. 15, 2008.

      David Frank, Big Lake, MN, pro se.
    Heartland Automotive Services, Inc., Omaha, NE, for respondent.
    Lee B. Nelson, Department of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
    Considered and decided by DIETZEN, Presiding Judge; ROSS, Judge; and HARTEN, Judge.

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

   OPINION

ROSS, Judge.

This case arises from an automobile-service manager’s fraudulent charge to a customer for a service that the manager knew had not been performed on the customer’s car. David Frank appeals from an unemployment-law judge’s finding that Frank was discharged for employee misconduct and was therefore disqualified from receiving unemployment benefits after his employer discharged him for the fraudulent charge. Frank denies knowing that the service had not been performed, and he alternatively contends that if he did knowingly charge the customer incorrectly, it was merely an isolated incident that is excepted from employment misconduct. Because we hold that substantial evidence supports the unemployment-law judge’s finding that Frank intentionally charged the customer for a service that Frank knew was never performed, and because an employee’s fraudulent charge to his employer’s customer is not the kind of single incident that is excepted from misconduct under the statute, we affirm the decision that Frank committed disqualifying employee misconduct.

FACTS

David Frank worked as a store manager for Heartland Automotive Services at a Jiffy Lube store in Montieello. On May 27, 2006, Frank sold a customer a “signature service” oil change, serpentine belt service, and transfer-case service. Frank asked employee Jon Shinnick to perform the requested services, but Shinnick soon informed Frank that he would be unable to perform the transfer-case service because the vehicle’s structural design made it impossible. Frank came to the service bay to examine the vehicle, and he determined that Shinnick was correct; the car’s design prevented access. Frank told Shinnick to proceed without doing the transfer-case service, and he informed two other employees that the transfer-case service could not be performed.

Shinnick completed the other services. As Frank was preparing the invoice, assistant manager Jake Zoccoli reminded Frank that the transfer-case service had not been performed. Frank expressed disappointment, noting that transfer-case service was one of the “big nine,” which is a group of services that employees are encouraged to sell and that entitle them to bonuses. But the invoice that Frank completed charged the customer for the transfer-case service, and the customer paid in full. Another employee later pointed out to Zoccoli that the company computer reflected the charge for the transfer-case service. Zoccoli spoke with Shinnick, who confirmed that he had not performed that service. Zoccoli reported the discrepancy to the district manager.

It violates Heartland’s code of conduct for an employee to create a false invoice or include unperformed services on an invoice to increase statistics or to deceive a customer or the company. Heartland investigated Zoccoli’s report and then discharged Frank for falsifying an invoice and charging a customer for a service that was not performed.

Frank sought unemployment benefits from the Department of Employment and Economic Development, and Heartland opposed the request, contending that it had discharged Frank for employment misconduct. An unemployment-law judge (ULJ) conducted a hearing in September 2006 to decide the issue. Frank contended that he had not intentionally billed the customer for the transfer-case service, which he admitted was not performed on the customer’s car. The ULJ found that Zoccoli’s inculpatory testimony was more credible than Frank’s denial and that the preponderance of the evidence showed that Frank knew that the transfer-case service was not performed but billed to the customer regardless. He found that Frank’s action exposed Heartland to liability for fraud and possible property damage and demonstrated a substantial lack of concern for Heartland. The ULJ concluded that Heartland terminated Frank’s employment for employee misconduct and that Frank was therefore disqualified from receiving unemployment benefits. Frank requested reconsideration and the ULJ affirmed. This certiorari appeal follows.

ISSUES

I. Is the unemployment law judge’s decision that Frank intentionally and fraudulently billed a customer supported by substantial evidence?

II. Does Frank’s single act of intentional and fraudulent billing constitute employee misconduct?

ANALYSIS

I

Frank challenges the ULJ’s factual determination that led to the conclusion that Heartland discharged him for employment misconduct. He specifically disputes the finding that he intentionally billed a customer for work that was not performed on the customer’s car. A person who is discharged from employment is eligible to receive unemployment benefits unless discharged for misconduct. Minn. Stat. § 268.095, subd. 4 (2006). Whether an employee has committed misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.2002). It is a question of fact whether the employee committed a particular act, and this court reviews an unemployment law judge’s findings of fact in the light most favorable to the decision. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App.2006). This court will not interfere with those factual findings when they are supported by substantial evidence. Id.

The record supports the ULJ’s factual determination that Frank knew the transfer-case service was not performed and that he knowingly charged the customer for the service anyway. Frank admits that the customer requested a transfer-case service and that it was never done. He admits that he knew that the technician he assigned to perform the service could not perform it. That technician, Jon Shinnick, stated that Frank not only knew that Shinnick could not perform the service but that Frank told him that service could not be performed. And Jake Zoccoli testified that, less than one minute before Frank finalized the bill, he reminded Frank that the service had not been performed. He also testified that Frank was upset that the transfer-case service could not be done. The ULJ rejected Frank’s argument that if he charged the customer incorrectly, it resulted from his mere clerical mistake. We generally defer to the ULJ’s credibility assessments and weighing of the evidence. Id. The ULJ reasonably chose not to credit Frank’s testimony. Based on that credibility assessment, the ULJ found that Frank knew that the service was not performed but that he knowingly charged the customer anyway. This finding is well supported by the record.

II

Frank also challenges the ULJ’s legal conclusion that the fraudulent billing constitutes misconduct. This court reviews de novo the ULJ’s conclusion that Frank’s act was employee misconduct. Schmidgall, 644 N.W.2d at 804. Employee misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.” Minn.Stat. § 268.095, subd. 6 (2006). Frank cites the statutory exception that some single incidents may not constitute misconduct, and he highlights that his misbilling was only a single incident. It is true that a single act that does not have a significant adverse impact on the employer is excepted from employee misconduct. Id. But we conclude that even a single fraud on an employer’s customer is not an excepted act because customer fraud may be presumed always to have a significant adverse impact on the employer.

Frank’s fraudulent billing does not qualify as an exception to employee misconduct as an isolated incident. In Ska-rhus, we held that even a single incident of a cashier’s theft from her employer has a significant adverse impact on the employer, despite the small amount of the theft, because the employer could no longer entrust the employee with responsibilities necessary to carry out her duty as a cashier. Skarhus, 721 N.W.2d at 344. In that case, we noted that the employee’s conduct must be considered in the context of her job responsibilities, and we specifically referenced the employee’s responsibility to handle the money of the employer “and its customers and to accurately account for items sold to customers.” Id. For the purposes of applying the single-incident exception to employee misconduct as set forth in section 268.095, subdivision 6, a cashier’s theft from her employer and a service manager’s theft from his employer’s customer carry the same fundamental, significant impact on the employer. They equally undermine the employer’s ability to assign to the employee tasks necessary to an essential function of the employee’s position. Regardless of the amount or frequency of the employee’s fiduciary failing, this sort of integrity-measuring conduct will always constitute an act that has a significant adverse impact on the employer, who can no longer reasonably rely on the employee to manage the business’s financial transactions. We therefore conclude that Frank’s fraudulent charge to Heartland’s customer constitutes a single act with a significant adverse impact on his employer.

Frank also argues that Heartland arbitrarily selects which policy violations to punish, and which not to. See Bautch v. Red Owl Stores, Inc., 278 N.W.2d 828, 381 (Minn.1979) (“An employer’s condonation of an employee’s wrongful conduct is a mitigating factor which may cause the employer to waive its right to discharge the employee on the basis of such misconduct.”). But he presented the ULJ with no evidence that Heartland condones charging customers for services not performed. Frank’s claim that Heartland previously encouraged employees to charge customers for a full service after performing only partial service was unconvincing to the ULJ and is therefore insufficient to show that Heartland waived its right to challenge Frank’s request for unemployment benefits after it discharged him for billing a customer for a service that he knew was not performed.

DECISION

We affirm the ULJ’s decision because the record supports the finding that the employee knowingly charged a customer for a service that the employee knew was not performed and because fraud on the customer dqes not qualify as a statutory single-incident exception to employment misconduct.

Affirmed.