author: ANDERSON, RUSSELL A., Justice.

text:
    STATE of Minnesota, Respondent, v. Peggy Louise BURBACH, Appellant.
    No. A04-1530.
    Supreme Court of Minnesota.
    Dec. 1, 2005.

      Richmond H. McCluer, Jr., John Paul Plachecki, Price, McCluer & Plachecki, Wi-nona, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Charles E. MacLean, Winona County Attorney, Winona County Courthouse, Wi-nona, MN, for respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this case, the state appealed a pretrial order by the district court suppressing crack cocaine seized during the consensual search of a vehicle stopped for speeding, and also suppressing additional evidence of drug possession and drug use subsequently seized at the stationhouse from the driver, appellant Peggy Louise Burbach. The court of appeals reversed the district court, concluding that the officer’s detection of the odor of alcohol coming from Burbach’s vehicle justified the officer’s search. State v. Burbach, No. A04-1530, 2005 WL 221980, at *4 (Minn. App. Feb.1, 2005). We granted review and now reverse, concluding, as did the district court, that the officer’s request to search the vehicle violated Article I, Section 10 of the Minnesota Constitution because it was not supported by a reasonable, articulable suspicion of additional criminal activity beyond the original purpose of the stop.

Shortly before 1:30 a.m. on February 8, 2004, a police officer clocked Burbach traveling 55 miles per hour in a 30-miles-per-hour speed zone on 6th Street in Winona, Minnesota. The officer pulled up behind Burbach and turned on his lights, and she pulled over after traveling about a block and then drove slowly in the parking lane for three quarters of a block before stopping. Once the officer approached the vehicle and had Burbach identify herself, he remembered her name and her vehicle’s license plate from a tip he had received from his sergeant at a shift-change meeting one or two weeks earlier. At the meeting, his sergeant had shown him a short list of the license-plate numbers of vehicles suspected by narcotics officers of carrying crack cocaine. His sergeant also told him the corresponding owners’ names, including Burbach’s.

As the officer spoke to Burbach, he detected a strong odor of alcohol, but he could not tell if the smell came from Bur-bach or her passenger, a middle-aged man seated next to her. The passenger volunteered that the alcohol smell came from him, and after ordering Burbach out of the car, the officer smelled no odor of alcohol coming from her. The officer then conducted a nystagmus-gaze test on Burbach, which showed no signs of nystagmus, and a breathalyzer test, which indicated that Burbach’s alcohol concentration was .000. In addition, Burbach’s eyes were neither watery nor bloodshot, and she had no problems related to balance, coordination, vision, following directions, answering questions, or with slurred or ungrammatical speech. The officer concluded that the odor of alcohol did not come from Bur-bach, but he felt that she was significantly more nervous, fidgety, and talkative than a normally nervous person in a traffic stop. He asked her if she had recently used any illegal drugs or if she had any in her car. She answered “no” to both questions, although she said she had taken some NyQuil earlier in the evening.

At this point, about 15 minutes into the traffic stop, the officer requested and obtained Burbach’s consent to search the vehicle. He testified that he wanted to search the vehicle because Burbach’s nervous behavior suggested impairment, and that the tip he had received at the shift-change meeting made him more eager to search due to its suggestion that her car may contain crack cocaine. After a second officer removed Burbach’s passenger from the vehicle, the officer opened the driver’s side door and saw three baggies of crack cocaine sitting on the passenger seat. The officers then arrested Burbach and her passenger. At the stationhouse, an additional rock of crack cocaine and a pipe were found in Burbach’s bra during a body search. She also consented to a urine test, and its results showed that she had marijuana and cocaine in her system.

The state charged Burbach with possession of narcotics, driving under the influence of a controlled substance, possession of drug paraphernalia, speeding, and failure to provide proof of insurance. Bur-bach moved to suppress the crack cocaine and the other drug-related evidence fo'und during the vehicle search and subsequently at the stationhouse, arguing that the search of her vehicle was a violation of her rights under Article I, Section 10 of the Minnesota Constitution because the search was not supported by a reasonable, articu-lable suspicion of criminal activity beyond the original purpose of the stop, and that evidence obtained subsequent to the search was therefore also tainted. Relying on our decision in State v. Fort, 660 N.W.2d 415 (Minn.2003), the district court agreed that the officer’s request to search the vehicle was not supported by reasonable, articulable suspicion, and therefore suppressed the crack cocaine, the pipe, and the urine-test results, and dismissed the drug-related charges. The state appealed the pretrial order, and the court of appeals reversed the district court’s order, basing- its decision on State v. Schinzing, 342 N.W.2d 105 (Minn.1983), in which we permitted a vehicle search when an officer detected the odor of alcohol coming from a vehicle. Burbach, 2005 WL 221980. We then granted Burbach’s petition for review.

I.

This case presents two questions. First, Burbach asks us to revisit the court of appeals’ determination that a request to search a vehicle is justified under the Minnesota Constitution when an officer detects the odor of alcohol coming from an adult passenger. Second, we consider the state’s contention that, under the totality of circumstances in this case, the officer’s request to search Burbach’s vehicle was justified by a reasonable, articulable suspicion of drug possession.

We undertake a de novo review to determine whether a search or seizure is justified by reasonable suspicion or by probable cause. State v. Lee, 585 N.W.2d 378, 382-83 (Minn.1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The district court’s findings of fact are reviewed for clear error. Id. Here, the facts are undisputed, and so our review is entirely de novo.

Both the United States and Minnesota Constitutions prohibit “unreasonable searches and seizures.” U.S. Const, amend. IV; Minn. Const, art. I, § 10. Generally, “a search conducted without a warrant issued upon probable cause is per se unreasonable.” State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985) (internal quotations omitted) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). However, this rule is “subject * * * to a few specifically established and well delineated exceptions.” Id. Due to the exigent circumstances presented by automobiles, there is “a well-established exception to the search warrant requirement for cases involving transportation of contraband goods in motor vehicles.” State v. Munson, 594 N.W.2d 128,135 (Minn.1999).

In Atwater v. City of Lago Vista, the United States Supreme Court determined that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). When the offender, is the occupant of a vehicle, the officer may also conduct a search of the vehicle. See id. at 364, 121 S.Ct. 1536 (O’Connor, J., dissenting); see also New York v. Belton, 453 U.S. 454, 462-63, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

But we have rejected the Atwa-ter approach as a “sharp departure” from our search and seizure jurisprudence. State v. Askerooth, 681 N.W.2d 353, 362 (Minn.2004). In contrast to the laxer requirements of the United States Constitution as articulated in Atwater, we have held that Article I, Section 10 of the Minnesota Constitution requires that “the scope and duration of a traffic stop investigation must be limited to the justification for the stop.” Fort, 660 N.W.2d at 418. And any “intrusion not closely related to the initial justification for the search or seizure is invalid under article I, section 10 unless there is independent probable cause or reasonableness to justify that particular intrusion.” Askerooth, 681 N.W.2d at 364. Both probable cause and reasonableness are evaluated by looking at the “totality of the circumstances.” State v. Henning, 666 N.W.2d 379, 384-85 (Minn.2003). Analysis under these standards must be “particularized” and “individualized to the driver.” Askerooth, 681 N.W.2d at 364; Fort, 660 N.W.2d at 418.

When an officer expands a traffic stop by requesting to search a vehicle, and when this request is not justified by the original purpose of the stop, the officer must have a “reasonable articulable suspicion of other criminal activity” going beyond the initial reason for the stop. Fort, 660 N.W.2d at 419. Here, since the officer’s request to search Burbach’s vehicle was not justified by Burbach’s speeding, to be valid under the Minnesota Constitution, the request must have been supported by a reasonable, articulable suspicion of additional criminal activity. And to be reasonable, any intrusion in a routine traffic stop must be supported by an “objective” and fair “balancing of the government’s need to search or seize ‘and the individual’s right to personal security free from arbitrary interference by law officers.’ ” Askerooth, 681 N.W.2d at 364-65 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).

Since reasonable, articulable suspicion must be “particularized,” we must evaluate the state’s two proffered justifications for the search separately. Fort, 660 N.W.2d at 418. We first consider whether the odor of alcohol coming from an adult passenger provides a reasonable, articulable suspicion of an open-container violation. Second, we consider whether, under the totality of the circumstances, there was a reasonable, articulable suspicion of drug possession.

II.

The state urges that the odor of alcohol coming from a vehicle should always justify a search for open containers of alcohol. It supports this claim with our decision in Schinzing, in which we held that a vehicle search was permissible when an officer pulled a vehicle over for suspicious driving, was told by the passengers that they were 17 years old, smelled alcohol coming from the vehicle, and was told by the passengers that they had been drinking. 342 N.W.2d 105. In this context, we stated:

[The officer’s] detection of the odor of alcohol coming from the car gave him probable cause to believe that a search of the passenger compartment would reveal open bottles or cans of alcohol.

Id. at 109.

The state argues that this language articulates a bright-line rule that the odor of alcohol always justifies a vehicle search. We disagree. Since analysis under Article 1, Section 10 of the Minnesota Constitution must be “individualized” and viewed under “the totality of the circumstances” of each case, the odor of alcohol in Schinzing must be examined in light of its particular context. Most significantly, in Schinzing the officer’s knowledge that the vehicle’s passengers were 17 made his detection of the odor of alcohol clear evidence of underage drinking. Having established this first alcohol-related crime, it was reasonable to suspect an open-container violation as well. Since people who are underage cannot legally drink alcohol, such people are more likely to drink in vehicles, out of the public view. Therefore, when the officer in Schinzing smelled the odor of alcohol, he had a reasonable, articulable suspicion of additional criminal activity beyond the original purpose of the stop, and he was justified searching the vehicle.

But the circumstances in this case are very different. Burbach’s adult passenger volunteered that he had been drinking earlier, and the officer knew, after getting Burbach out of the vehicle and performing sobriety tests, that she had not been drinking. At best, these facts provide only an attenuated inference of an open container. To allow a vehicle search solely because an adult passenger smelled of alcohol would be to permit highly speculative searches against a large group of entirely law-abiding motorists, including designated drivers. Such a rule would not comport with the substantial privacy interest in motor vehicles that the Minnesota Constitution ensures. State v. Wiegand, 645 N.W.2d 125, 131 (Minn.2002). Accordingly, we hold that under Article I, Section 10 of the Minnesota Constitution, an officer’s detection of the odor of alcohol coming from an adult passenger during a traffic stop does not, by itself, provide a reasonable, articu-lable suspicion of an open-container violation sufficient to permit an officer to expand the traffic stop by requesting to search the vehicle.

III.

Since the request to search was not justified by a reasonable, articulable suspicion of an open container, we consider the state’s contention it was justified as a search for illegal drugs. The state points to three factors suggesting that Burbach was on drugs or in possession of them: (1) Burbach’s demeanor, which was nervous, fidgety, and talkative in a way that the officer found more extreme than usual; (2) the tip the officer had received from his sergeant one to two weeks earlier; and (3) Burbach’s driving behavior.

First, we consider Burbach’s demeanor. We have been reluctant to rely on nervous behavior as evidence to support a reasonable, articulable suspicion of criminal activity. See Wiegand, 645 N.W.2d at 138 (determining that a drug dog sniff of a vehicle was not justified where the driver was evasive, nervous, and shaking, and noting that “acting suspiciously is not an articula-ble basis to suspect criminal activity”); see also Fort, 660 N.W.2d at 417, 419 (determining that officers were not justified asking for consent to search a vehicle when the vehicle’s occupants had committed a traffic violation, were driving in a “high drug area,” and were acting nervous and avoiding eye contact). While the officer testified that Burbach’s nervousness was significantly more than normal .nervousness during a traffic stop, the district court observed that her nervousness was reasonable in the context of intense police questioning. Therefore, the district court concluded that the state’s argument that Burbach’s nervousness contributed to a finding of reasonable suspicion was “without merit.” We agree with the district court’s evaluation.

Second, we turn to the tip, which must be evaluated in the context of the totality of the circumstances. State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990). When evaluating tips, courts are to “make a practical, common-sense decision whether, given all the circumstances * * * including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The tip in this case, consisting only - of Bur-bach’s name and license plate number, was passed on at a shift-change meeting to the officer from his sergeant, who, in turn, had gotten the tip from narcotics officers. Beyond this, the state has not attempted to establish the tip’s origins, how old the tip was, or whether the tip was substantiated, and the state has provided no other method of evaluating its reliability. The district court stated that “[b]eeause of its lack of veracity and corroboration, this Court declines to give such a tip much weight in its decision.” Again, we agree with the district court’s conclusion.

Third, we believe that Burbach’s driving behavior — speeding 55 miles per hour in a 30-miles-per-hour zone, and perhaps pulling over and stopping somewhat slowly— provides little reason to suspect drug possession.

Each of these factors is weak evidence of drug possession, and they are also weak in the aggregate. In addition, Burbach showed no other signs of impairment. Her eyes were neither watery nor bloodshot and showed no signs of nystagmus, and she had no problems related to balance, coordination, vision, following directions, answering questions, or with slurred or ungrammatical speech. Therefore, we hold that under Article I, Section 10 of the Minnesota Constitution, when an officer’s suspicion of drug possession during a traffic stop is supported only by a driver’s nervous behavior, an unsubstantiated tip of unknown origin, and speeding, and when the driver does not exhibit other signs of impairment, the officer does not have a reasonable, articulable suspicion of drug possession sufficient to permit the officer to expand the traffic stop by requesting to search the vehicle.

We conclude that because there was not a reasonable, articulable suspicion of any additional criminal activity aside from the initial reason for the stop, the officer was not justified requesting to search Bur-bach’s vehicle. We therefore reverse the decision of the court of appeals. Accordingly, we reinstate the decision of the district court suppressing both the evidence seized during the search of Burbach’s vehicle and all evidence seized subsequently as a result of her arrest, and also dismissing the charges of fourth-degree driving while impaired, fifth-degree possession of a controlled substance, and possession of drug paraphernalia. We remand to the district court for further proceedings on the remaining charges of speeding and failure to provide proof of insurance.

Reversed and remanded.

      . Under Minnesota Rule of Criminal Procedure 28.04, subds. 1(1) and 2(1), the state can appeal a pretrial order in a criminal prosecution if the order will "have a critical impact on the outcome of the trial.” Here, since the suppression of the evidence led directly to the dismissal of all the state's drug-related charges, it is clear that the order had the requisite critical impact.

      . Two of the state's other arguments deserve brief mention here. First, the state also argues that the search was justified as a search incident to probable cause to arrest for driving under the influence of drugs. Since the relevant evidence supporting this theory is the same evidence that supports a suspicion of drug possession, and since the reasonable-suspicion standard is no higher than the probable-cause-to-arrest standard, Wiegand, 645 N.W.2d at 133, we need only address the question of reasonable suspicion of drug possession. Second, the state argues that the search was justified as a search incident to probable cause to arrest for speeding and failure to provide proof of insurance. However, we have held that minor violations such as these, which call for citation only under Minn. R.Crim. P. § 6.01, may not be tire basis for a search incident to probable cause to arrest. State v. Vamado, 582 N.W.2d 886, 892-93 (Minn.1998).


source: Caselaw Access Project

author: MEYER, Justice. PAGE, Justice

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Dennis Gordon LEE, Respondent.
    No. A04-1402.
    Supreme Court of Minnesota.
    Dec. 8, 2005.

      Mike Hatch, Attorney General, Thomas R. Ragatz, Asst. Attorney General, St. Paul, MN, Gaylord Saetre, Todd County Attorney, Joe E. Judd, Asst. Todd County Attorney, Long Prairie, MN, for appellant.
    Robert E. Pottratz, Melrose, MN, for respondent.
    Susan L. Naughton, St. Paul, MN, for amicus curiae League of Minnesota Cities.
   OPINION

MEYER, Justice.

This case concerns the state’s right to appeal from an order for a stay of adjudication on misdemeanor charges, entered by the district court over the objection of the state. The court of appeals rejected the state’s appeal, specifically concluding that an order for a stay' of adjudication that includes jail time to be served is a sentence and a misdemeanor sentence is not appealable under Minn. R.Crim. P. 28.04. State v. Lee, 693 N.W.2d 216, 219 (Minn.App.2005). We reverse and remand to the district court for sentencing.

Respondent Dennis Gordon Lee pleaded guilty on June 21, 2004, to two misdemeanors: violation of Minn.Stat. § 171.24, subd. 2 (2004) (driving after revocation), and Minn.Stat. § 169.797, subd. 2 (2004) (failure of owner to provide insurance.) Lee’s license had been revoked for driving after a prior conviction for failure to provide insurance; his license also had been suspended just days prior to the stop for failure to pay child support. If convicted of the two new offenses, Lee would lose his driving privileges for another year. The district court ordered a presentence investigation report. The presentence investigation report credited Lee with having taken steps to get his license validated and having become current with his child support payments. Nevertheless, the report did not recommend a stay of adjudication “[d]ue to defendant’s extensive prior record regarding Driving After Withdrawal and the fact that he was just in court in September 2003 and in violation of that court order[.]”

At the sentencing hearing, defense counsel urged the court to order a stay of adjudication to avoid the consequence to Lee of losing his driving privileges for a year. Counsel argued that if Lee lost his driving privileges, Lee would most certainly lose his job and consequently be unable to satisfy his child support obligation. The prosecutor opposed a stay of adjudication, arguing that Lee was a repeat offender of driving laws and that Lee had made the choice to drive despite his revoked (and suspended) status.

The district court granted a stay of adjudication over the prosecutor’s objection. The court ordered Lee to serve 45 days of jail time (with work release), to pay court costs, to not have any same or similar offenses or moving violations, to maintain valid insurance, and to regularly provide proof of insurance to the court.

The district court explained its reasons for granting the stay of adjudication: “I also believe that [defense counsel] is correct in that if we have a full-time employed person now with a driver’s license, with insurance, with a child support payment plan, I don’t think we serve the public interest by stopping that.” The court found that the prosecutor had not abused his discretion in charging Lee in the first instance.

The state then appealed, but its appeal was dismissed by the court of appeals. Lee, 693 N.W.2d at 219. The court of appeals determined that the state did not have a right to appeal the district court’s order because the order, in essence, imposed a sentence, and under Minn. R.Crim. P. 28.04, subd. 1(2), the state cannot appeal as of right from a nonfelony sentence. Lee, 693 N.W.2d at 218-19. We granted review.

I.

The first question is whether under the rules of criminal procedure an order for a stay of adjudication is a pretrial order (appealable by the state), or whether it is a sentence (not appealable by the state). This question raises concerns of the jurisdiction of state courts, which we review de novo. State v. Barrett, 694 N.W.2d 783, 785 (Minn.2005). We also construe and interpret rules of criminal procedure de novo. Id. (citing State v. Hugger, 640 N.W.2d 619, 621 (Minn.2002)).

We begin by observing that there is no rule of criminal procedure explicitly addressing orders for stays of adjudication. The most pertinent rule states, in relevant part, that the state may appeal as of right to the court of appeals “in any case, from any pretrial order of the trial court,” and “in felony cases from any sentence imposed or stayed by the trial court.” Minn. R.Crim. P. 28.04, subd. 1(1), (2). Thus, if a stay of adjudication in a nonfelony case is a pretrial order, the state may appeal as of right.

The state argues that this court has already said that a stay of adjudication under rule 28.04 is a pretrial order for purposes of appeal. We agree. We expressly stated in State v. Verschelde, 595 N.W.2d 192 (Minn.1999), that “a stay of adjudication is considered a pretrial order for purposes of appeal.” 595 N.W.2d 192, 196 (Minn.1999) (citing State v. Thoma, 569 N.W.2d 205 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn.1997)). In Thoma, we affirmed by memorandum opinion the court of appeals’ determination that stays of adjudication were pretrial orders for purposes of appeal. 571 N.W.2d 773. Prior to Thoma, we reversed the court ’ of appeals’ determination in State v. Twiss that the state could not appeal as of right a nonfelony sentence. 570 N.W.2d 487, 487 (Minn.1997). We again recognized that stays of adjudication are pretrial orders for purposes of appeal in State v. Hoelzel, 639 N.W.2d 605, 608 (Minn.2002).

Lee’s central argument to this court is that the Thoma case was wrongly decided and this court should take this opportunity to overrule it and its progeny. We are extremely reluctant to overrule our precedent under principles of stare decisis. Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000). When overruling precedent, we have required a “compelling reason” to do so. Id.

Lee makes the argument that a stay of adjudication is more like a sentence than it is like a pretrial order — -the fact that a presentence investigation was ordered, a date was set for sentencing, costs and fees were assessed, and jail time was imposed. Lee points out that disposition in this case occurred at a point when' there was nothing left to be tried; at a point in the flow of adjudication where typically a sentence is imposed. Lee asserts that it is a legal fiction for this court to continue to label a stay of adjudication as a pretrial order.

The state counters that a sentence requires a conviction and in the absence of a conviction, there is no sentence. See Minn. R.Crim. P. 28.02, subd. 2(1) (noting that judgment is final when conviction is entered and sentence is imposed or stayed); see also Black’s Law Dictionary 1393 (8th ed.2004) (defining “sentence” as “[t]he judgment that a court formally pronounces after finding a criminal defendant guilty.”).

We have held that, for purposes of appellate review, a stay of adjudication is more akin to a pretrial order than a sentence. Nevertheless, it is fair to say that a stay of adjudication is not precisely a pretrial order, but rather, a unique judicial tool with the need for its own rules of procedure. Our current criminal rules offer only two existing labels for an appeal— either it is an appeal from a sentence or it is an appeal from a pretrial order. In the interest of preserving the integrity of our rules and to avoid any further confusion about choosing between two existing labels to describe a stay of adjudication, we believe that our rules of criminal procedure need to be amended to establish rules of procedure for stays of adjudication.

Implicit in our precedent is our concern that the state be permitted an appeal as of right in all cases where a stay of adjudication is ordered over the state’s objection. We have said that, unless the prosecutor abuses his or her discretion or demonstrates improper intent, “the judiciary is powerless to interfere with the prosecutor’s charging authority.” State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996). Sound policy reasons grounded in separation of powers concerns support appellate review when a district court judge directly interferes with the charging function of the prosecutor. For these reasons, we conclude that Lee has failed to offer a compelling reason to overturn existing precedent. We reaffirm this court’s holding in Thoma and hold that an order for a stay of adjudication is appealable as of right by the state.

The court of appeals distinguished Lee’s case on the basis that none of the Thoma cases “discuss or appear to involve service of jail time.” Lee, 693 N.W.2d at 218. Because Lee was ordered to spend time in jail, the court characterized the proceeding as an appeal from a sentence and not an appeal from a pretrial order. Id. at 219. The court questioned the source of the district court’s authority to impose jail time at a pretrial stage, or at any other time before sentencing. Id.

We share the court of appeals’ concern about the consequences of imposing jail time at the pretrial stage. Nevertheless, we have expressly authorized the imposition of conditions of probation, including jail time, as part of a stay of adjudication. State v. Krotzer, 548 N.W.2d at 255-56. In doing so, we drew a parallel to Minn. Stat. § 152.18, subd. 1 (2004), that authorizes, for certain drug crimes, a stay of adjudication “upon such reasonable conditions as [the court] may require and for a period, not to exceed the maximum sentence provided for the violation.” Krotzer, 548 N.W.2d at 255-56. And in Thoma, the court of appeals plainly stated, “The inclusion of criminal sanctions * * * does not make a stay of adjudication a ‘sentence.’ ” 569 N.W.2d at 207. While other viable legal challenges and issues regarding pre-conviction sanctions may exist, such as whether an order for a stay of adjudication that includes a jail sentence should be subjected to the same procedural safeguards as a traditional sentencing order given pursuant to a guilty plea, Lee does not raise such issues here and we do not reach them.

Therefore, in addressing the narrow issue raised in this appeal, we conclude that the order for a stay of adjudication is appealable as of right by the state, and the court of appeals erred when it dismissed the state’s appeal. Accordingly, we reverse the dismissal of the appeal.

II.

Both parties ask this court to decide the merits of the state’s argument that the district court erred in staying adjudication. Generally, when this court reverses a court of appeals’ dismissal of an appeal, we remand the substantive question to the court of appeals for consideration. See State v. Hugger, 640 N.W.2d 619, 620 (Minn.2002). But there is precedent for this court to address, in the interest of judicial economy, issues that the court of appeals did not address. See, e.g., State v. Gobely, 366 N.W.2d 600, 603 (Minn.1985). The criminal rules allow us to “review any other matter as the interests of justice may require.” Minn. R.Crim. P. 28.02, subd. 11; Minn. R.Crim. P. 29.04, subd. 11; see Minn. R. Civ.App. P. 103.04. The interests of justice warrant our consideration of the district court’s grant of the stay of adjudication.

The state argues that the district court erred because a district court can only enter a stay of adjudication when there has been a clear abuse of discretion by the prosecutor in the exercise of the charging function. The district court found that there was no abuse of discretion in charging and, therefore, the state asserts, the stay of adjudication should be reversed.

Lee argues that either “special circumstances” or an abuse of prosecutorial discretion in charging may support a stay of adjudication over the prosecutor’s objection. He asserts that “special circumstances” include cases in which the consequences of a conviction subject a defendant to “special collateral effects which should be avoided in the interests of justice.”

We have twice spoken on the question of the special circumstances that a district court may consider in imposing the unusual judicial measure of an order for a stay of adjudication over the objection of the prosecutor. The first opportunity was Krotzer. 548 N.W.2d 252. In Krotzer we upheld a stay of adjudication because the decision was well-supported by the “special circumstances” of Krotzer’s case. Id. at 254. We noted the district court’s strong disagreement with the prosecutor’s decision to file charges against Krotzer, and the court’s belief that justice would not be served by giving Krotzer a criminal record as a predatory sex offender (the defendant was 19 years old and if adjudicated would .have had to register as a predatory sex offender for having consensual sex with his 14-year-old girlfriend). Id. at 253-54. We said: “Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor’s charging authority.” Id. at 254 (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)).

Six months after Krotzer, we held in State v. Foss that a stay of adjudication may be ordered “only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.” 556 N.W.2d 540, 541 (Minn.1996). We do not believe it is possible to read Foss as permitting a stay of adjudication whenever there are either special circumstances or an abuse of the charging function. There is no compelling reason to overturn our existing precedent. Therefore, we affirm the standard we announced in Foss — clear abuse of the prosecutorial charging function must be found by the court before it may order a stay of adjudication over the prosecutor’s objection. Here, the district court found that there had been no abuse of discretion by the prosecutor in the charging function and, therefore, the stay of adjudication must be reversed.

Reversed and remanded to the district court for sentencing.

PAGE, Justice

(concurring).

In Foss, we noted that:

In Krotzer, the defendant admitted to having consensual sexual intercourse with his 14-year-old girlfriend. Neither the girlfriend nor the girlfriend’s mother wanted the prosecutor to file criminal charges against the defendant. Nonetheless, the prosecutor insisted on prosecuting the defendant for third-degree criminal sexual conduct. As we stated in our opinion, the trial court strongly disagreed with the prosecutor’s decision and believed that it was totally inappropriate that the defendant be given a criminal record as a predatory sex offender, with the concomitant requirement that he register as a predatory sex offender.

State v. Foss, 556 N.W.2d 540, 540-41 (Minn.1996). On the basis of those facts, we also noted that “the circumstances in [.Krotzer ] constituted special circumstances warranting the unusual judicial action of staying adjudication of guilt over the prosecutor’s objection and in the absence of statutory authority.” Id. We went on to state:

It was not our intention that mere disagreement by the trial court with the prosecutor’s exercise of the charging discretion would constitute “special circumstances.” Rather, it was our intention that the inherent judicial authority recognized in that case be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.

Id. at 541.

In light of the prosecutor’s extremely broad discretion, by defining what constitutes “special circumstances” so narrowly in Foss, we effectively overruled Krotzer. Having done so sub rosa there, we should now remove the rose and do so explicitly here.

      . We refer this matter to the Supreme Court Advisory Committee on Rules of Criminal Procedure for study and recommendation.

      . Other than noting that the trial court in Krotzer "disagreed with the prosecutor’s decision" and that Krotzer would have received a criminal sentence requiring that he register as a predatory sex offender, we did not explain what constituted the prosecutor's "clear abuse of discretion” in the exercise of the charging function. Foss, 556 N.W.2d at 540-41. Thus, it appears that what ultimately constituted the special circumstances in Krot-zer was the harsh result that would have occurred absent the stay of adjudication. Certainly, there was nothing about the offense itself that gave rise to the "special circumstances.” Analytically, it is hard to see how the facts of this case, absent Foss, would yield a different result than Krotzer. As the trial court noted, the result that is likely to flow from Lee being convicted is not likely to "serve the public interest.”


author: PAGE, Justice.

text:
    Brad Alan VOORHEES, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-27.
    Supreme Court of Minnesota.
    Dec. 8, 2005.

      Brad Alan Voorhees, Bayport, MN, Pro Se Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Alan L. Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, Duluth, MN, for Respondent.
   OPINION

PAGE, Justice.

On July 24, 1997, appellant Brad Alan Voorhees was convicted of first-degree premeditated murder for the shooting death of his wife. Voorhees was sentenced to the mandatory term of life in prison. On direct appeal, we affirmed his conviction. State v. Voorhees (Voorhees I), 596 N.W.2d 241 (Minn.1999). ,Voorhees subsequently filed a pro se petition for posteon-viction relief, which was denied by the postconviction court and which, on appeal, we affirmed. Voorhees v. State (Voorhees II), 627 N.W.2d 642 (Minn.2001).

On August 12, 2004, Voorhees filed this, his second, pro se petition for postconviction relief. In this petition, Voorhees made a number of claims, including claims that: (1) newly discovered evidence proves his blood sample was not diluted and was therefore improperly withheld; (2) the prosecutor lied to the grand jury; (3) the trial court should have sua sponte given a voluntary intoxication jury instruction; (4) newly discovered FDA studies show that the state’s expert witness testified falsely; and (5) he was subject to cruel and unusual punishment, denied equal protection, and discriminated against based on gender. The postconviction court summarily denied the petition, finding that the petition raised the same claims Voorhees raised in his direct appeal and first petition for post-conviction relief. In his appeal to this court, Voorhees, in addition to the claims set out above, raises a number of other claims that he does not fully brief or argue.

When a direct appeal has once been taken by a convicted defendant, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). There are two exceptions to this so-called Knaffla rule. A court may consider issues otherwise barred by the Knaffla rule if (1) a novel legal issue is presented or (2) the interests of justice require review and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 824-25 (Minn.1991). On appeal, a postconviction court’s determinations will not be overturned absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). Because we conclude that the postconviction court properly denied Voorhees’ petition, we affirm.

We begin with Voorhees’ claim that newly discovered evidence, in the form of articles discussing the results of recent FDA studies of Prozac, make the state’s trial expert’s testimony that Prozac is a safe drug false. Assuming, without deciding, that the recent FDA studies constitute newly discovered evidence and that this claim is not procedurally barred, we nonetheless conclude that this claim fails.

Voorhees would have this court hold the state’s expert accountable for testifying falsely even though the information that he claims calls the testimony into question did not exist at the time of trial. We decline to do so. Moreover, and more importantly, the studies Voorhees relies on merely discuss, in the context of children, the possibility that the class of drugs that includes Prozac may cause suicidal thinking. While the articles Voorhees references mention Prozac and adults, the studies themselves do not address Prozac and suicidal thinking as it relates to adults. Nor do the studies indicate, categorically, that the drugs do cause suicidal thinking. Indeed, each article specifically states that the link between Prozac and suicidal thinking is not clear. A March 22, 2004, FDA Talk Paper states that “it is not yet clear whether antidepressants contribute to the emergence of suicidal thinking and behavior.” FDA Issues Public Health Advisory on Cautions for Use of Antidepressants in Adults and Children, FDA Talk Paper, Mar. 22, 2004, http://www.fda.gov/bbs/top-ics/ANSWERS/2004/ANS01283.html (last visited Nov. 11, 2005). An Associated Press article states that “[i]t isn’t clear yet that the drugs actually do lead to suicide.” FDA Seeks Suicide Caution for Ten Antidepressants, N.Y. Times, Mar. 22, 2004. A January 1, 2005, Minneapolis Star Tribune article states that “the FDA ordered that all antidepressants carry warnings that they ‘increase the risk of suicidal thinking and behavior’ in children.” Prozac Maker Knew of Harmful Side Effects, Journal Says, Minneapolis Star Trib., Jan.-1, 2005, at All (emphasis added).

In that the studies did not exist at the time of trial, do not address the effects of Prozac on adults with respect to suicidal thinking, and at most support some portions of Voorhees’ trial expert’s testimony while contradicting some portions of the state’s expert’s testimony, we conclude that the postconviction court did not abuse its discretion in denying Voorhees’ newly discovered evidence claim.

We next address Voorhees’ blood evidence, grand jury misconduct, and voluntary intoxication claims. In his direct appeal, Voorhees claimed that: (1) the trial court improperly limited his trial expert’s testimony regarding the effects of combining Prozac with alcohol and methamphet-amines, his testimony that Prozac caused him to kill his wife, and a cellmate’s testimony regarding Voorhees’ demeanor while in jail; (2) the trial court erred in instructing the jury on involuntary intoxication; (3) the state presented insufficient evidence of premeditation and insufficient evidence that he did not act in the heat of passion; (4) the state committed misconduct during grand jury proceedings and trial; (5) the district court erred when it did not allow him to substitute counsel; and (6) his counsel gave ineffective assistance. Voorhees I, 596 N.W.2d at 245. In his first postconviction petition, Voorhees alleged: (1) violations of due process at trial and on appeal; (2) the trial court should have sua sponte instructed the jury on voluntary intoxication; (3) newly discovered evidence proved his blood sample was wrongfully withheld; (4) misconduct on the part of the prosecutor; (5) violation of his right to effective assistance of trial and appellate counsel; and (6) insufficient evidence of premeditation. Voorhees II, 627 N.W.2d at 645. Having made claims on direct appeal and in his first postconviction petition relating to his blood sample, misconduct by the state in the grand jury proceedings, and the trial court’s failure to sua sponte give an instruction on voluntary intoxication, we conclude that Voorhees is proeedurally barred from raising related, if not exactly the same, claims here. Knaff-la, 309 Minn, at 252, 243 N.W.2d at 741.

Finally, with respect to Voorhees’ remaining claims, we conclude that each of the claims was either known to him or should have been known to him at the time of his direct appeal and first postconviction petition. Furthermore, none of the claims Voorhees raises present novel legal questions, nor does fairness require that they be reviewed in the interests of justice. Therefore, all of them are proeedurally barred. Id.

Affirmed.

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

      . The facts underlying Voorhees' convictions are set forth in detail in this court's Voorhees I and II opinions and will not be repeated here.


text:
    STATE of Minnesota, Respondent, v. Robin Todd PENDLETON, Jr., Appellant.
    No. A04-1128.
    Supreme Court of Minnesota.
    Dec. 8, 2005.

      Barry V. Voss, Barry V. Voss, P.A., Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Michelle Dietrich, Redwood County Attorney, Redwood Falls, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Frank Parker was shot to death on the morning of June 9, 2002, in the yard of Morris Pendleton, Jr.’s home on the Lower Sioux Reservation in Redwood County. The shots were fired from a motor vehicle that stopped in front of the home. One of the passengers in the vehicle, Dennis Pen-dleton, and the driver of the vehicle, Chris Sander, were subsequently charged with aiding and abetting murder in the second degree.

On the first day of his jury trial Dennis Pendleton, pursuant to plea agreement, entered an Alford guilty plea to the lesser offense of second-degree assault with a dangerous weapon and all remaining charges against him were dismissed. Less than a month later, following trial by jury, Chris Sander was acquitted of all charges.

Following Chris Sander’s trial, the state obtained new and significant direct evidence identifying appellant Robin Todd Pendleton as the individual who actually fired the fatal shot that killed Parker. As a result, appellant was indicted for and subsequently found guilty of first-degree premeditated murder and first-degree premeditated murder for the benefit of a gang. The district court imposed a life sentence, and, because the crime was committed for the benefit of a gang, a consecutive sentence of a year and a day as required by Minn.Stat. § 609.229, subd. 4(a) (2004).

In this direct appeal, appellant renews his pretrial claim that he was denied due process because the district court did not apply the doctrine of judicial estoppel to prevent the prosecuting attorney from asserting theories of guilt that appellant argues were inconsistent with and contrary to theories of guilt asserted by the prosecuting attorney in the earlier prosecutions of Dennis Pendleton and Chris Sander.

Appellant’s second claim is that the prosecuting attorney committed prejudicial misconduct by including inadmissible hearsay in a question asked of appellant, even though the district court sustained defense counsel’s objection to the question and instructed the jury to disregard it. Appellant’s third claim is that the district court erred in several of its evidentiary rulings. Finally, appellant claims that the evidence, which we summarize below, was not sufficient for conviction. We affirm.

On the early morning of June 9, 2002, Frank Parker was shot to death in the yard of Morris Pendleton, Jr.’s home on the Lower Sioux Reservation in Redwood County. The shooting occurred after an all night party at the residence. Many in attendance were intoxicated. During the party, Parker had brandished a handgun when an argument occurred between his girlfriend, Kim Berry, and Danielle Grey Eagle and Raquel Eller. Eller later overheard a person at the party, whom she could not identify, phone someone, telling them “to bring their straps [guns]” “because Frankie was over there.”

At approximately 7 a.m., some time after Eller overheard the phone call, a maroon Denali sports utility vehicle stopped near the front of the house. At that time Parker was standing on the porch with Marcus Pendleton, Jr. and John Merrill. Jesse Sander got out of the vehicle, told a nearby group of girls to go home, and warned his cousin, Marcus, that he should go inside the house. Merrill saw Chris Sander in the driver’s seat of the vehicle and Dennis Pendleton seated behind the driver.' Someone in the vehicle said, “Let’s do this.” Marcus, who had gone inside the house, watched through a window as Chris Sander got out of the vehicle and walked toward Parker. As Chris Sander approached, Marcus saw Parker start down the porch steps. According to Marcus, Parker had a handgun, but he did not notice if either Chris or Jesse Sander were carrying guns.

Marcus saw the rear passenger door of the vehicle open and someone, whom he could not identify, step out and point a rifle at Parker. Marcus also saw a second gun, a shotgun, pointed at Parker from the front passenger window. According to Merrill, appellant, who was dressed in Native Gangster Disciples’ blue gang colors, stepped out of the rear passenger door of the vehicle and cocked a long gun. Merrill testified that the long gun looked like a rifle, not a shotgun; the gun was not pumped like a shotgun. Merrill retreated into the house and heard eight or more gun shots. When he left the house by a side door shortly thereafter, he found Parker lying on the ground.

Robert Fairbanks, who was in the house when he heard gunshots, also ran out of the house and saw Parker lying on the ground. At trial, Fairbanks testified that he saw people jump back into the vehicle but was not able to positively identify the individuals because he was not wearing his eyeglasses. Fairbanks testified that he had not identified appellant as the driver or the passenger from newspaper photographs he had been shown during the police investigation. Fairbanks thought that the person entering the front passenger seat was carrying a rifle, and he heard someone yell, “F**k the Native Mob” from the vehicle as it sped away. Fairbanks fired at the fleeing vehicle with his .45 caliber handgun. When police found the vehicle approximately a month after the shooting, appellant’s right thumb print was on the interior rear passenger window.

Parker was struck by four .223 caliber bullets, one of which entered his chest, striking both lungs and damaging his spinal cord. He bled to death from the chest wound. He was also shot in the right thigh and the left calf and had sustained a graze wound on his forearm.

According to Bureau of Criminal Apprehension (BCA) ballistics experts, the bullet casings found at the crime scene came from at least four weapons. Other evidence also indicates that there were at least four weapons involved in the shooting incident. Fairbanks testified that he fired a .45 caliber handgun at the fleeing vehicle; investigators found five .45 caliber spent casings at the crime scene, all fired from the same gun. Parker was carrying and fired a .380 caliber handgun, which was found by his body; there were five .380 caliber spent casings found, although it could not be determined that they were fired from a single gun. A shotgun had been fired from the vehicle and five spent shotgun shells were found. And, of course, the murder weapon, which was never found, was a rifle firing .223 caliber bullets, four of which struck Parker. There were eight .223 caliber spent casings found at the crime scene.

The ballistic experts testified that the .223 caliber bullets that struck Parker could have come from a Ruger Mini 14 Rifle like the one that Dennis Pendleton’s girlfriend, Katrina Swigart, had purchased in January 2002. During a search of Dennis Pendleton’s home, police found an empty Ruger Mini 14 rifle box; Dennis Pen-dleton’s fingerprints were on the gun box and on paperwork within it. During a search of Chris Sander’s home, police found gun cleaning kits and a box of .223 caliber shells.

After Chris Sander’s acquittal, appellant made certain admissions regarding the shooting. On August 25, 2003, appellant admitted to Grey Eagle that he was with Dennis Pendleton and Chris Sander the night of the shooting and that he did not mean to kill Parker. Appellant told Grey Eagle, “once you start you can’t stop.” Appellant was also overheard boasting that he was at the party where Parker was shot and that police could not catch him. For a time, appellant evaded apprehension through the use of false names.

Appellant testified that he was not involved in the shooting and that he was with his mother in the Twin Cities when it occurred. Appellant’s position throughout the trial, and on appeal, was that Merrill, Grey Eagle, and other state witnesses were threatened and coerced by Crow-feather into testifying falsely. According to appellant, Crowfeather, Parker’s fellow gang member, threatened appellant after Parker died and the threats became worse after Dennis Pendleton’s Alford plea and Chris Sander’s acquittal. Appellant also testified that at the time of the shooting, he had good relationships with Parker, Merrill and Fairbanks.

Following a nine-day jury trial, appellant was convicted and sentenced for first-degree premeditated murder and first-degree premeditated murder for the benefit of a gang. This appeal followed.

I.

Appellant claims that he was denied due process because the district court did not apply the doctrine of judicial estop-pel to prevent the prosecuting attorney from asserting theories of guilt that, according to appellant, were inconsistent with and contrary to theories of guilt asserted by the prosecuting attorney in the earlier prosecutions of Dennis Pendleton and Chris Sander. Appellant claims that the prosecuting attorney selectively used evidence to establish inconsistent factual contentions in three related prosecutions for the same crime.

The doctrine of judicial estoppel has not been expressly recognized by this court. It is intended to prevent a party from assuming inconsistent or contradictory positions during the course of a lawsuit. State v. Larson, 605 N.W.2d 706, 713 n. 11 (Minn.2000); see also State v. Profit, 591 N.W.2d 451 (Minn.1999). The doctrine “is not reducible to a pat formula,” but “is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories.” Levinson v. United States, 969 F.2d 260, 264 (7th Cir.1992). Generally, the doctrine requires that three conditions be met. Id. at 264-65. First, the party presenting the allegedly inconsistent theories must have prevailed in its original position (“a litigant is not forever bound to a losing position”). Id. Second, there must be a clear inconsistency between the original and subsequent position of the party. Id. at 264. Finally, there must not be any distinct or different issues of fact in the proceedings. Id. The doctrine acknowledges that the state’s fundamental interest in the prosecution of criminal cases is that justice be done and “[t]he [sjtate’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth.” Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir.2000). Of course, two or more defendants may play varied roles in the commission of a crime and prosecutors are not required to present the same evidence and theories in the trials of different defendants. Id at 1051-52. But the doctrine of judicial estoppel dictates that the state may not, at the core of its case, rely upon factually inconsistent theories and irreconcilable evidence to obtain murder convictions in separate trials for the same murder. See id.) see also United States v. Paul, 217 F.3d 989, 998-99 (8th Cir.2000).

Whether to apply the doctrine of judicial estoppel is a question of law, reviewed de novo. See Modrow v. JP Food-service, Inc., 656 N.W.2d 389, 393 (Minn. 2003). We conclude that the doctrine of judicial estoppel has no application on these facts and, thus, we decline to adopt the doctrine at this time.

First, as mentioned above, judicial es-toppel requires that the party have actually previously succeeded at trial on a factual theory inconsistent to the one in question. Here, that was not the case. The prosecution of Chris Sander was not successful as he was acquitted of all charges, which is certainly not inconsistent with appellant’s conviction. The prosecution of Dennis Pendleton ended on the first day of trial when he was permitted to enter an Alford guilty plea to the lesser offense of second-degree assault with a dangerous weapon in violation of Minn.Stat. § 609.222, subd. 1 (2004). Second-degree assault may consist of causing fear of great bodily harm or death in another through use of a dangerous weapon — in this case, firing a gun at the victim but not necessarily hitting him. Dennis Pendleton’s plea of guilty to this charge is not in conflict with the theory nor irreconcilable with the evidence that two individuals fired two weapons from the vehicle, the bullets from one, a rifle, striking and killing the victim and the bullets from the second weapon, a shotgun, missing the victim. There is therefore nothing inconsistent between the second-degree assault conviction and appellant’s first-degree murder conviction.

Second, there is not even a conflict between the charges as initially filed by the state against the various defendants. Appellant was charged with first-degree premeditated murder, the prosecutor asserting that appellant actually fired the fatal shot. In the earlier prosecutions, the prosecutor alleged that Dennis Pendleton and Chris Sander aided and abetted intentional murder in the second degree in the killing of Parker. We conclude that the prosecutor did not rely upon factually inconsistent theories or irreconcilable evidence in its prosecution of the three cases arising out of Parker’s murder and the results in each of the cases are not theoretically inconsistent nor based upon irreconcilable evidence.

Finally, the application of judicial estop-pel is uncertain where a party changes its position after the previous proceedings due to the discovery of new evidence. As we stated in State v. Profit, the doctrine is aimed at preventing bad faith abuses of the judicial system wherein a party asserts one theory to prevail at one time, then cynically switches to an inconsistent theory to win in a subsequent proceeding. See Profit, 591 N.W.2d at 462. However, parties who change their theories after they discover new evidence bearing on the issue are not acting in bad faith. See id. Such changes are consistent with the court’s truthfinding role.

Here, following the aborted prosecution of Dennis Pendleton and the unsuccessful prosecution of Chris Sander, new and significant direct evidence came to light identifying appellant as the individual who actually fired the fatal shot that killed Parker. In the prosecution of Dennis Pendleton, it is apparent from examining the probable cause portion of the complaint, the transcripts of the prosecutor’s opening statement, and the Alford plea hearing, which almost immediately followed, that the prosecutor had not been able to specifically identify the passenger who fired the rifle shots that killed Parker. The prosecutor was instead relying upon circumstantial evidence that implicated Dennis Pendleton as one of the shooters because he was a passenger in the vehicle from which the shots were fired. It was only after Dennis Pendle-ton’s plea of guilty and after Chris Sander’s trial that the prosecutor learned that, first, Merrill had identified appellant as the individual in the vehicle with the probable murder weapon, and second, appellant had made incriminating admissions regarding the shooting.

Similarly, in the trial of Chris Sander the prosecutor argued unsuccessfully that Chris Sander (who was in the vehicle from which the fatal shots were fired) should be convicted of aiding and abetting second-degree murder for the benefit of a gang. New and significant direct evidence discovered after Chris Sander was acquitted indicated that Chris Sander had walked away from the vehicle before the shots were fired and that appellant actually fired the fatal shot from the vehicle. We conclude that the prosecutor’s position in ap-peUant’s case was neither inconsistent with nor contrary to her position in the aborted prosecution of Dennis Pendleton nor in the unsuccessful prosecution of Chris Sander.

II.

Appellant’s second claim is that the prosecutor committed prejudicial misconduct during her cross-examination of appellant by referring in a question to an out-of-court statement by Chris Sander, who did not testify. The question, contextually in response to appellant’s direct testimony that he was not at the scene of the shooting, was: “if you were not with Chris Sander and Dennis Pendleton, why would Chris Sander in a recorded conversation at the jail say that you were [there]?” Defense counsel objected to the question before appellant could answer and the district court sustained the objection and instructed the jury to disregard the question. Again at the conclusion of the trial, the district court instructed the jury to disregard all evidence the court had instructed the jury to disregard.

Appellant argues that merely posing the question placed him in an untenable position because he could not explain why Chris Sander made such a statement and the question assumed the truth of Chris Sander’s statement. Appellant asserts that the question was improper, and that even though his objection was sustained, the error was not harmless.

We conclude that the question was indeed improper. It impermissibly interjected the inadmissible hearsay statement Chris Sander made at the jail into the trial. It is not “artful cross-examination” to inform the jury of inadmissible evidence by the question asked. See United States v. Sanchez, 176 F.3d 1214, 1222 (9th Cir. 1999). In its brief to this court the state does not suggest otherwise. The question is whether, under the circumstances, appellant is entitled to a new trial. We reverse because of prosecutorial misconduct only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Roman Nose, 667 N.W.2d 386, 401 (Minn.2003).

Prosecutorial error may be cured by the court’s instructions. See State v. Race, 383 N.W.2d 656, 664 (Minn. 1986). But if remarks impart substantial prejudicial evidence into the case, it may not be proper to say its effect can be removed by an instruction from the court. See State v. Caldwell, 322 N.W.2d 574, 590-91 (Minn.1982). Improper prosecuto-rial statements are examined under a harmless error test. See State v. Washington, 521 N.W.2d 35, 39-40 (Minn.1994).

Appellant relies on United States v. Sanchez in arguing that the error in this ease was prejudicial. In United States v. Sanchez, extrajudicial statements by the defendant’s wife were wrongly admitted over objection during cross-examination of the defendant. Sanchez, 176 F.3d at 1221-22.

However, unlike Sanchez, the district court in this case sustained the objection to the problematic question, did not allow it to be answered, and instructed the jury to disregard it. The district court also provided final instructions which would further cure any misconduct. It is presumed that the jury follows the court’s instructions. State v. Taylor, 650 N.W.2d 190, 207 (Minn.2002). We conclude that while asking the question was improper, the court’s ruling and instructions adequately addressed the misconduct, and the improper question did not impair appellant’s right to a fair trial.

III.

Appellant’s third claim is that the district court abused its discretion by three evidentiary rulings that excluded defense evidence.- Every criminal defendant has a right to fundamental fairness and to be “afforded a meaningful opportunity to present a complete defense.” State v. Richards, 495 N.W.2d 187,191 (Minn.1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). This right includes the opportunity to “present the defendant’s version of the facts * * * so [the jury] may decide where the truth lies.” Id. at 194 (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920,18 L.Ed.2d 1019 (1967)).

However, a defendant must still comply with the rules of evidence when presenting his or her defense. State v. Reese, 692 N.W.2d 736, 740 (Minn.2005). The district court may exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Minn. R. Evid. 403. Evidentiary rulings of the district court will not be overturned absent a clear abuse of discretion, even when constitutional rights are implicated. See Profit, 591 N.W.2d at 463; State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). The appellant must prove that the district court abused its discretion and that the abuse of discretion prejudiced the appellant. State v. Moua, 678 N.W.2d 29, 37 (Minn.2004).

The first evidentiary ruling that appellant complains of relates to certain newspaper photographs of Chris Sander and Dennis Pendleton that had been shown to Fairbanks by the police during their investigation. According to appellant’s counsel, Fairbanks had indicated that Chris Sander looked like the driver of the vehicle and had indicated that Dennis Pendleton looked like the front seat passenger with a long gun who had yelled “f**k the Native Mob.” Appellant claims that admission of these photographic identifications might have persuaded the jury that Chris Sander and Dennis Pendleton were the actual murderers.

The district court’s pretrial ruling in the Dennis Pendleton case was that the photographs were unduly suggestive and the identification resulting from the photographs inadmissible. In this case, appellant’s counsel in opening statement referred to Fairbanks’s previous identification of Dennis Pendleton from the newspaper photographs. On cross-examination, appellant’s counsel began to ask Fairbanks about his previous identification based on the photographs. The district court sustained the state’s objection, noting that the identification was fundamentally flawed, but did permit appellant’s counsel to elicit testimony that Fairbanks had been shown photographs by authorities and that he had not identified appellant from those photographs as either a driver or passenger in the vehicle. In closing argument appellant’s counsel reiterated that Fairbanks had been shown photographs and had not identified appellant as the person getting in the right front seat of the vehicle. We conclude that it was not an abuse of discretion under the circumstances for the district court to sustain objection to “fundamentally flawed” identifications from newspaper photographs earlier ruled to be unduly suggestive and inadmissible, but to permit the witness to testify that he had not identified appellant from the photographs.

The second evidentiary ruling that appellant complains of is the exclusion of evidence that the second-degree murder charges against Dennis Pendleton were dismissed as part of a plea agreement. Appellant contends that after the murder charges were dismissed against Dennis Pendleton and he was permitted to plead guilty to second-degree assault, members of Parker’s gang (angry about the dismissal of the murder charges) coerced and threatened witnesses to induce them to testify falsely against appellant. Appellant argues that evidence of Dennis Pendleton’s plea agreement and Chris Sander’s subsequent acquittal would have confirmed that rival gang members were increasingly seeking retribution against appellant. The jury was informed of Chris Sander’s acquittal. The district court instructed the jury during trial that “Dennis Pendleton was convicted of a charge arising out of these events. However, you are not to concern yourself with what action, if any, was taken against any other person in this case.” In its final instruction the district court instructed the jury that they were not to concern themselves with what action, if any, was taken against others who may have been involved. Appellant made two references to the dismissal of murder charges against Dennis Pendleton in closing argument. We conclude that the district court did not abuse its discretion by its ruling excluding evidence of the plea agreement in the Dennis Pendleton case.

We also conclude that the district court did not abuse its discretion with regard to the third evidentiary ruling complained of, excluding, as cumulative, testimony from Grey Eagle’s mother that Grey Eagle had been threatened and intimidated by Crowfeather before testifying before the grand jury. Grey Eagle testified that she was told by Crowfeather before she testified before the grand jury that she should be “scared” if she did not testify that appellant was at the shooting. The testimony of Grey Eagle’s mother was merely cumulative, and the district court was within its discretion to exclude it.

IV.

To address appellant’s final claim that the evidence was insufficient for conviction, we must make a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the verdict, were sufficient to allow the jury to reach its verdict. State v. Asfeld, 662 N.W.2d 534, 544 (Minn.2003); State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

The evidence, considered in the light most favorable to the verdict, indicates that the shooting was premeditated; it was planned and deliberately carried out. Firing four shots from a rifle at another indicates that the killing was intentional. Merrill saw appellant, dressed in gang clothing, step out of the rear passenger door of the vehicle with a long gun that appeared to be a rifle. Appellant also admitted to others that he was present at the shooting and that he had not meant to kill Parker. Appellant was a member of the Native Gangster Disciples, a gang rival to the Native Mob gang to which decedent Parker belonged. There was ample evidence the crime was committed for the benefit of a gang.

Appellant argues that we should consider witness credibility in our review of the record to determine if there was sufficient evidence for conviction. We acknowledge, as appellant asserts, that the credibility of the state’s witnesses was a significant concern in these cases. Many witnesses were intoxicated when the shooting occurred. Gang involvement could have motivated some witnesses to testify falsely or made others reluctant to testify. Some witnesses may have been threatened or coerced into testifying by the gangs involved in the case. Given the general confusion, conflicting statements, and biases of the witnesses, there were certainly grounds for the jury to doubt the credibility of the trial witnesses.

The evidence regarding credibility, however, was presented and argued to the jury, and it is for the jury, not this court, to determine the credibility and' weight to be given to the testimony of witnesses. State v. Olhausen, 681 N.W.2d 21, 26 (Minn.2004). We assume that the jury believed the witnesses whose testimony supports the verdict and that the jury did not believe evidence to the contradictory. State v. Voorhees, 596 N.W.2d 241, 252 (Minn.1999); State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). The jury properly decides which evidence is credible. State v. Pippitt, 645 N.W.2d 87, 92 (Minn.2002). Even where witness credibility has been challenged, the jury may nonetheless believe the witness. See id. at 94.

From our review of the record we are satisfied that the jury was presented with sufficient evidence to assess the credibility of the witnesses. It is up to the jury to decide the issues of fact, and they have done so. We conclude that the evidence was sufficient for conviction.

Affirmed.

      . Under an Alford plea, a defendant may voluntarily, with knowledge and understanding, plead guilty to an offense without expressly admitting the factual basis for the plea, if the defendant reasonably believes, and the record establishes, that the state has sufficient evidence to obtain a conviction. State v. Goul-ette, 258 N.W.2d 758, 761 (Minn.1977) (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).

      . Appellant was indicted for, and subsequently found guilty by jury of premeditated first-degree murder, first-degree murder committed for the benefit of a gang, intentional second-degree murder, intentional second-degree murder for the benefit of a gang, and wrongful possession of a firearm. See Minn.Stat. §§ 609.185(a)(1), 609.19, subd. 1(1), 609.229, subd. 2, 624.713, subd. 1(b) (2004); see also Minn.Stat. § 609.05 (2004) (liability for crimes of another). The district court entered ■judgments of conviction for the two first-degree murder offenses and sentenced for those two convictions. Appellant, who was age 15 at the time of Parker’s death, did not chal- ' lenge certification for adult prosecution.

      . Merrill and Marcus had not admitted that they were witnesses to the shooting until after Chris Sander's acquittal when Reuben Crow-feather, who was also suspected of belonging to the same gang as Parker, told the police that Merrill had additional information concerning the shooting. Merrill disclosed that Marcus was also at the party. Merrill denied that he had been coerced into coming forward to testify. Instead, he maintained that he came forward because Parker’s mother had asked him to do so. Merrill also testified that he had not come forward earlier because he was concerned for the safety of his mother, who lived on the reservation.

      . There was evidence that Parker was a member of a gang identified as the Native Mob, as were Fairbanks, who was at the party and a trial witness, and Crowfeather, whom appellant asserts pressured witnesses to testify against him. Evidence was also introduced that appellant, Jesse Sander and Marcus were actual or suspected members of a rival gang, the Native Gangster Disciples. Appellant wore gang clothing during the shooting. While confined awaiting trial, appellant had prepared gang related writings. This evidence, in addition to the statement yelled at the time of the shooting, supported the state's claim that the shooting was gang-related.

      . Appellant also testified that he was with his brother, Marcus Gregg, in the Twin Cities the weekend of the shooting but two witnesses later testified that Gregg was on the Reservation that weekend. Appellant explained that he was with Gregg only part of the weekend. A police officer testified that he overheard appellant tell Autumn Jones that he was in Marshall, Minnesota the weekend of the shooting. Appellant denies making the statement.

      . In the recent case of Bradshaw v. Stumpf, the Supreme Court also declined to expressly adopt (or reject) the doctrine of judicial estop-pel. See Bradshaw v. Stumpf, -U.S. -, -, 125 S.Ct. 2398, 2408, 162 L.Ed.2d 143 (2005).

      . "Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.” Minn.Stat. § 609.222, subd. 1.

      . Some of the circumstantial evidence the state planned to use was mentioned in the opening statement. Witnesses allegedly saw someone get in the front passenger seat with a rifle as the car sped away, who yelled "F**k the Native Mob”; a box for ammunition of the type that killed Parker was found at Dennis Pendleton’s girlfriend’s home; a rifle purchased by Dennis Pendleton’s girlfriend used the type of ammunition that killed Parker; and this rifle was never found.


author: HALBROOKS, Judge.

text:
    Richard BREZA, Respondent, v. CITY OF MINNETRISTA, Appellant.
    No. A04-2286.
    Court of Appeals of Minnesota.
    Nov. 29, 2005.

      Gary A. Van Cleve, Jessica B. Rivas, Larkin Hoffman Daly & Lindgren, Ltd., Minneapolis, MN, for respondent.
    George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for appellant.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, MN, for Amicus Curiae.
    Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; and WRIGHT, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s decision to grant respondent’s petition for a writ of mandamus. Appellant contends that the district court lacked subject-matter jurisdiction to consider respondent’s petition because respondent did not appeal to the Board of Water and Soil Resources (BWSR) before petitioning the district court for a writ of mandamus. But because appellant failed to make a decision on respondent’s exemption application within 60 days, as required by Minn.Stat. § 15.99 (2004), appellant lost the ability to act on that application. Therefore, respondent was not required to appeal to the BWSR, and the district court had subject-matter jurisdiction. Appellant also argues that the district court erred in finding that it has the authority to grant respondent a wetland exemption in the amount of 5,737 square feet. Under the applicable statutes, we conclude that appellant’s authority to grant respondent an exemption was limited to a maximum of 400 square feet. We affirm the district court on the issue of subject-matter jurisdiction, but reverse the district court’s decision with respect to the application of Minn.Stat. § 15.99.

FACTS

During the summer of 2000, respondent Richard Breza filled 5,737 square feet of wetland on his property in Minnetrista. It is undisputed that pursuant to Minn.Stat. §§ 103G.221-.2242 (2004), a permit was required to fill this wetland and that Breza did not obtain one before he acted. In the fall of 2000, a DNR officer observed the fill on Breza’s land; the officer informed Bre-za that he would receive a cease-and-desist order in the mail and that in order to avoid having to remove the entire amount of fill, Breza needed to file for an exemption. In December 2000, Breza received the cease- and-desist order, which contained a wetland-exemption application. He then completed the application and sent it to appellant City of Minnetrista (city).

Breza did not receive any response from the city regarding his application until January 2002, at which time the city advised him that his application could not be accepted because the Wetland Conservation Act measures impact to wetlands by area of fill, not volume, as Breza had described it. In June 2002, Breza’s attorney wrote to the city, stating that, because it failed to deny Breza’s application within 60 days, the application was approved by operation of law under Minn.Stat. § 15.99, subd. 2 (2004). The city responded in July 2002, conceding that it had failed to respond to Breza’s application within 60 days and informing Breza that the only exemption legally permissible was a de minimis exemption of 400 square feet under Minn. R. 8420.0122, subp. 9(A)(5) (2005). The city further advised Breza that the decision would be final unless appealed to the BWSR within 15 days of the date of mailing of the notice.

Breza contends that the entire area filled — 5,737 square feet — should have been approved as a consequence of the city’s failure to deny his application within 60 days. Breza sought review of his application at a city-council meeting in February 2003. The city council affirmed the decision to grant Breza a maximum exemption of 400 square feet. Breza then petitioned the district court for a writ of mandamus to compel the city to approve Breza’s exemption application for 5,737 square feet.

The district court denied the parties’ motions for summary judgment and held a bench trial on the merits of Breza’s petition. The district court granted the writ because it found that Breza’s exemption application was for the full 5,737 square feet and that, as a result of the city’s failure to act within the statutorily provided time frame of 60 days, the full extent of Breza’s application was approved by operation of law. This appeal follows.

ISSUES

1. Did the district court have subject-matter jurisdiction to consider Bre-za’s challenge to the city’s wetland-exemption decision?
2. Did the district court err in granting a writ of mandamus compelling the city to grant Breza a wetland exemption for 5,737 square feet?

ANALYSIS

I.

Whether a district court has “subject-matter jurisdiction is a question of law, which we review de novo.” In re Thulin, 660 N.W.2d 140, 143 (Minn.App. 2003). Various statutes and administrative rules govern the granting of wetland exemptions. See, e.g., MinmStat. § 103G.2242 (2004); Minn. R. 8420.0100-.0290 (2005). And statutory construction is a legal question subject to de novo review. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

MinmStat. § 103G.2242, subd. 4, states that “[ujpon receiving and considering all required data, the local government unit reviewing ... exemption ... requests must act on all ... exemption ... requests in compliance with section 15.99.” Minn. Stat. § 15.99, subd. 2(a) (2004), provides, in pertinent part, that

notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request.

Application of MinmStat. § 15.99 (2004) under these circumstances is a case of first impression.

It is undisputed that Breza applied to the city on December 29, 2000, for a wetland exemption and that the city did not act within the requisite 60 days. Thus, as of February 28, 2001, Breza’s application was approved by operation of law. See MinmStat. § 15.99, subd. 2(a). In January 2002, approximately 11 months after the 60-day time frame expired, the city first contacted Breza. In July 2002, approximately 16 months after the 60-day time limit expired, the city conceded that, due to its failure to act within 60 days, Breza’s application was approved by operation of law, but only as to 400 square feet, the maximum exemption permitted by statute.

The city argues that, due to Breza’s failure to appeal its July 2002 decision to the BWSR within 30 days, that exemption determination was final. We disagree, because Breza’s application was approved by operation of law as of February 28, 2001. Once an application is approved by operation of law under MinmStat. § 15.99, subd. 2, the local government unit (LGU) loses jurisdiction over the application, and any attempt thereafter to act on the application is invalid. As a result, the city did not make a decision that Breza could appeal to the BWSR. Neither of the January 2002 or July 2002 letters that the city sent to Breza constituted appealable decisions made by the city because they were well beyond the 60-day time limit. Thus, the district court had subject-matter jurisdiction to consider Breza’s petition for a writ of mandamus.

II.

To determine whether the district court erred in granting Breza’s petition for a writ of mandamus, we must analyze whether the city had the authority to grant Breza an exemption for 5,737 square feet, whether mandamus was appropriate under these circumstances, and if the district court erred in finding that Breza applied for an exemption in the amount of 5,737 square feet. If the city lacked the authority to grant an exemption for 5,737 square feet, we need not reach the related issue of the amount of exemption Breza applied for.

A. The scope of the city’s authority

Minnesota Rules chapter 8420 (2005) governs wetland conservation, including fill exemptions. A provision of that rule states that, “[t]he local government unit decision shall be based on the exemption standards in part 8420.0122.” Minn. R. 8420.0210 (emphasis added); The standards provide ten different exemptions that depend on a number of variables, including the type of wetland being filled and the purpose for the fill. Minn. R. 8420.0122, subps. 1-10. In this case, it is undisputed that the wetland at issue is a Type 3 wetland. The only statutory exemption to which an individual filling a Type 3 wetland is entitled, without satisfying one of the enumerated purposes (e.g., agricultural activities, drainage, etc.), is a de minimis exemption. Minn. R. 8420.0122, subp. 9. A de minimis exemption is 400 square feet. Id., subp. 9(A)(5).

Breza argues that Moreno v. City of Minneapolis, 676 N.W.2d 1 (Minn.App. 2004), supports his position that he is entitled to an exemption for 5,737 square feet. In Moreno, the Minneapolis Institute of Art applied to the city for an amendment to its planned-unit development. 676 N.W.2d at 3-4. The city had the authority to grant the entire application. Id. Thus, the city’s failure to act on the application within 60 days resulted in full approval of the application. Id. at 6.

But those are not the facts before us. Because the city did not have the authority to grant Breza’s application for a 5,737 square-foot exemption if it had acted during the 60 days, its inaction cannot serve to approve it. Thus, Moreno is inapposite.

Breza cites Gun Lake Assoc, v. County of Aitkin, 612 N.W.2d 177 (Minn.App. 2000), for the proposition that, when an application has been approved by operation of law, regardless of what the application was for, approval cannot be considered an error of law. We disagree. In Gun Lake, a residents’ association opposed a planning commission’s “approval” of a conditional-use permit (CUP) (the planning commission did not actually approve the CUP; it missed the 60-day deadline) and appealed the “approval” to the county board. 612 N.W.2d at 179-80. The allegations made by the residents’ association were that the county board’s decision denying its appeal “was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law or without eviden-tiary support.” Id. at 182. On review, this court stated that those allegations were erroneous because the approval of the CUP was compelled by operation of law, given that the planning commission failed to approve or deny it within 60 days. Id. Thus, the county board’s denial of the appeal was the appropriate action, because the result, essentially affirming the “approval” of the CUP, was compelled by statute. Id.

As previously stated, statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., 584 N.W.2d at 393. The statutory language is clear and unambiguous that the LGU, in this case the city, must base its exemption decisions on the standards provided in the rules. And the only exemption that applies to Breza is the de minimis exemption. Therefore, the city lacks the authority to grant an exemption to Breza that is more than 400 square feet.

Breza asserts that the language “notwithstanding any other law to the contrary” contained in the first sentence of Minn.Stat. § 15.99, subd. 2, qualifies the second sentence of that section. Thus, under Breza’s reasoning, any application, for literally any action made by an individual to an LGU, regardless of whether the LGU has the authority to grant such application, is deemed automatically approved by operation of law if the LGU fails to act within 60 days. But this interpretation of the statute leads to an absurd and unreasonable result. See Minn.Stat. § 645.17 (2004) (“legislature does not intend a result that is absurd, impossible of execution, or unreasonable”).

To conclude as Breza urges that the legislature intended Minn.Stat. § 15.99 to supersede every statute that grants specific, limited authority to an agency would give agencies the ability to indirectly approve applications that they do not have direct authority to approve by simply failing to make a decision within 60 days. We conclude that Minn.Stat. § 15.99 is a timing statute. See Manco of Fairmont, Inc. v. Town Bd. of Rock Dell Twp., 583 N.W.2d 293, 296 (Minn.App.1998) (stating that “the underlying purpose ... is to keep government agencies from taking too long in deciding”). It does not alter the underlying statutory authority of an agency to approve an application. The phrase “notwithstanding any other law to the contrary” is contained in the first sentence of Minn.Stat. § 15.99, subd. 2. It does not qualify the second sentence; it only applies to the sentence that it is in. Therefore, the time requirement contained in Minn. Stat. § 15.99 is applicable when compared with a timing provision contained in the underlying substantive statutes.

Thus, if an LGU does not have the underlying authority to approve an application within the 60 days, the application cannot be approved by the LGU’s inaction. Here, the city only had the authority to grant Breza an exemption of 400 square feet. Therefore, as a result of the city’s inaction and violation of the timing statute, that is the only exemption that was approved by operation of law.

B. Mandamus

We will reverse a district court’s order on a petition for mandamus relief “only when there is no evidence reasonably tending to sustain the trial court’s findings.” Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn.App.1995). ‘When the district court’s decision on a petition for a writ of mandamus is based solely on a legal determination, this court reviews that decision de novo.” Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 493 (Minn. App.2003), review denied (Minn. Mar. 16, 2004). “Mandamus is an extraordinary legal remedy that courts issue only when the petitioner shows that there is ‘a clear and present official duty to perform a certain act.’ ” Kramer v. Otter Tail County Bd. of Comm’rs, 647 N.W.2d 23, 26 (Minn.App. 2002) (quoting McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989)). “To be entitled to mandamus relief the petitioner must show three elements: (1) the failure of an official to perform a duty clearly imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other adequate remedy.” Id. (citing Demolition Landfill Servs., L.L.C. v. City of Duluth, 609 N.W.2d 278, 280 (Minn.App. 2000), review denied (Minn. July 25, 2000)).

Breza relies on Kramer for the proposition that, under these circumstances, a writ of mandamus from the district court is appropriate. Breza is correct that seeking a writ of mandamus for a Minn.Stat. § 15.99 violation is a possible remedy. But his reliance on Kramer under these circumstances is misplaced because Kramer is distinguishable.

Kramer applied for a plat from the county planning commission, and the commission failed to approve or deny the plat application within the requisite 60 days. Id. at 24-25. The commission then attempted to deny the application after the 60-day time limit had expired. Id. As a result of the commission’s failure to act, the application was approved by operation of law. Id. at 26. Nevertheless, the commission continued to deny the application. Id.

Kramer filed a petition for a writ of mandamus in the district court to compel the commission to approve his plat application as Minn.Stat. § 15.99 required the commission to do. Id. at 25. The district court granted the writ, stating that “the county was required to approve or deny [Kramer’s] application within 60 days. It did not do so, and [Kramer’s] application was approved by operation of law. The county’s refusal to approve the plat was therefore a failure to perform an official duty clearly imposed by law.” Id. at 26.

Because the county’s persistent refusal to grant Kramer’s application after the 60 days had elapsed was a “failure of an official to perform a duty clearly imposed by law,” a writ of mandamus compelling it to approve the application was appropriate. Id. Here we have no such failure. The city concedes that it failed to act on Breza’s exemption application within 60 days. It further concedes that, as a result of its failure to act, Breza’s application was approved by operation of law. In fact, the city acknowledges that Breza has an exemption for 400 square feet. Although the parties dispute whether that amount is correct, the city is not, like the county in Kramer, refusing to acknowledge that some part of Breza’s exemption application is approved.

Because the city does not have the authority to grant Breza an exemption for more than 400 square feet, the city has fully satisfied its official duties. Therefore, under these circumstances, mandamus is not appropriate, and the district court erred by granting Breza’s petition.

Because the city lacked the authority to grant Breza an exemption larger than 400 square feet, we need not reach the issue of the extent of Breza’s exemption application or whether the district court erred by finding that he applied for an exemption of 5,737 square feet.

DECISION

Because the city failed to approve or deny Breza’s exemption application within 60 days, it was approved by operation of law under Minn.Stat. § 15.99 (2004), and the city lost the ability to act on the application. Therefore, the city did not make a decision that Breza could appeal to the BWSR, and the district court had subject-matter jurisdiction to consider Breza’s petition for a writ of mandamus. But because the city did not possess the authority to approve Breza’s exemption application in an amount greater than 400 square feet, the district court erred in granting Breza’s petition for a 5,737 square foot exemption.

Affirmed in part and reversed in part.

      .In his brief, Breza raises as an issue the propriety and independence of the amicus brief that was written by an attorney for the League of Minnesota Cities because the League also provided an attorney for the city in the district court. The amicus application was properly made under Minn. R. Civ.App. P. 129.01, and Breza did not make a proper motion to strike the amicus brief under Minn. R. Civ.App. P. 127. Moreover, it is this court’s practice to freely grant amicus applications to ensure the development of a more complete appellate record.

      . The Legislature has not altered the substance of the statutes or the administrative rules since 2000-01, the time frame in which Breza filled the wetland and applied for this exemption.

      . Minn.Stat. § 645.001 (2004) states that principles of statutory interpretation also apply to rules.

      . For discussion and analysis of this statute, see, infra section II.A.

      . "Appeal of a[n] ... exemption ... may be obtained by mailing a petition ... to the board within 30 days after the postmarked date of the mailing [of the summary of approval or denial.] If appeal is not sought within 30 days, the decision becomes final.” Minn.Stat. § 103G.2242, subd. 9(a). Further,
      [t]he decision of a local government unit to approve, approve with conditions, or reject a[n] ... exemption ... becomes final if not appealed to the board within 30 days after the date on which the decision is mailed.... This subpart applies to those determinations which are made under comprehensive wetland protection and management plans.
      Minn. R. 8420.0250, subp. 1. The board referred to in these sections is the BWSR. Minn.Stat. § 103G.005, subd. 6a (2004).

      . It should be noted, however, that this exemption amount is the maximum amount that Breza is entitled to without filing an after-the-fact wetland permit application to the city, proposing an alternative mitigation plan for the remaining impacts. If the application were approved, Breza would be able to keep more than 400 square feet of fill.