author: ANDERSON, RUSSELL A., Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Kefa Apiemi KEBASO, Appellant.
    No. A04-1239.
    Supreme Court of Minnesota.
    April 13, 2006.

      Bruce Douglas Nestor, De Leon & Nestor, Minneapolis, for Appellant.
    Mike Hatch, Attorney General, St. Paul, Jennifer Marie Inz, Asst. Eden Prairie City Attorney, Minneapolis, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

This case presents the issue of whether a court is permitted to consider the immigration consequences to a criminal defendant when deciding which of multiple sentences to vacate or which of multiple offenses to sentence on under Minn.Stat. § 609.035 (2004). The court of appeals concluded that such consequences may not be considered in the context of sentencing under section 609.035. State v. Kebaso (Kebaso II), No. A04-1239, 2005 WL 1153727, at *3 (MinnApp. May 17, 2005). We affirm, holding that immigration consequences to a criminal defendant are not a proper consideration in a court’s decision as to which of multiple sentences to vacate or which of multiple offenses to sentence on under section 609.035.

On December 25, 2001, appellant Kefa Kebaso’s ex-wife, Emily Kefa, placed a 911 call from an apartment in Eden Prairie but abruptly left the phone. The call remained connected, however, and the 911 dispatcher could hear a woman screaming for someone to call 911. Eden Prairie police responded to the call. Upon arriving at the apartment, police officers could hear a man and a woman arguing inside and could hear a woman scream the words “knife” and “kill me.” After receiving no response to their knock, the officers kicked in the door and entered the apartment.

Inside they found Kebaso, Emily, and Kebaso’s 12-year-old son in the living room. Emily appeared very upset and was crying. The officers saw a butcher cleaver under a chair in the living room, and Emily told one of the officers, “That’s the knife that [Kebaso] was going to use to kill me.” Emily told the officers that she tried to leave the apartment but Kebaso showed her the cleaver and prevented her from leaving. Emily said she became scared and called 911, but Kebaso took the phone away from her.

Based on their discussions with Emily and Kebaso’s son, the officers placed Ke-baso under arrest. On December 27, 2001, a complaint was filed in Hennepin County charging Kebaso with domestic assault and interference with a 911 call, both gross misdemeanors, and disorderly conduct, a misdemeanor. Kebaso waived his right to a jury trial and, following a bench trial, was found guilty on all three counts. On the gross misdemeanor counts, the district court sentenced Kebaso to concurrent terms of 365 days in the workhouse, stayed execution of 245 days for each sentence, and placed Kebaso on probation for 3 years. Kebaso filed a motion for resen-tencing, asking that his sentence be reduced to not more than 364 days to avoid adverse immigration consequences. The district court denied the motion on the grounds that immigration consequences are immaterial to a court’s decision on punishment.

Kebaso appealed. The court of appeals affirmed Kebaso’s convictions but determined that the two gross misdemeanors arose from a single behavioral incident and that Minn.Stat. § 609.035 permitted sentencing on only one of the offenses. State v. Kebaso (Kebaso I), No. C1-02-596, 2003 WL 1702258, at *3 (Minn.App. Apr.1, 2003). The court remanded with instructions for the district court to vacate one of the two sentences for the gross misdemeanors. Id.

On remand, the district court refused to vacate either of the sentences because “the sentenced] imposed on the gross misdemeanors were concurrent and reflected one sentence as one behavioral incident. By operation of law only one sentence was imposed.” Kebaso appealed this decision, asking that the court of appeals vacate the domestic assault sentence because that offense would constitute an “aggravated felony” for immigration purposes if the sentence for it remained in place. Conviction of an “aggravated felony,” as defined for immigration purposes, would likely result in Kebaso’s deportation.

The court of appeals concluded that the district court erred by failing to vacate one of Kebaso’s sentences pursuant to section 609.035. Kebaso II, 2005 WL 1153727, at ⅞2. The court of appeals then vacated the sentence for interference with a 911 call, reasoning that domestic assault is a more serious offense because it is a crime against a person, while interference with a 911 call “is effectively a crime against state administrative services.” Id. The court noted that the two gross misdemeanor offenses carry the same maximum potential sentence. Id. The court rejected Kebaso’s request that it consider the immigration consequences to Kebaso when deciding which sentence to vacate, concluding that it was bound by court of appeals precedent that “possible deportation because of immigration status is not a proper consideration in criminal sentencing.” Id. at *3.

We granted review on the narrow issue of whether the court of appeals erred in refusing to consider the potential immigration consequences to Kebaso when deciding which sentence to vacate. Whether courts are prohibited from considering immigration consequences when deciding which of multiple sentences to vacate or which of multiple offenses to sentence under Minn.Stat. § 609.035 is a question of law, which we review de novo. See In re R.J.E., 642 N.W.2d 708, 710 (Minn.2002).

Kebaso argues that the court of appeals erred when it concluded that it was prohibited from considering the possible immigration consequences to him of its decision to vacate the sentence for interference with a 911 call instead of the sentence for domestic assault. Kebaso contends that immigration consequences are a relevant and lawful consideration in criminal sentencing and that nothing in Minnesota case law bars consideration of immigration consequences in sentencing decisions.

Minnesota Statutes § 609.035 “prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single-behavioral incident.” State v. Norregaard, 384 N.W.2d 449, 449 (Minn.1986). The purpose of section 609.035 is to “ensure[ ] that punishment is commensurate with the crime committed.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn.1995). We have stated that section 609.035 contemplates that a defendant will be punished for the “most serious” of the offenses arising out of a single behavioral incident because “imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.” State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 522 (1966); see also State v. Morris, 281 Minn. 119, 123, 160 N.W.2d 715, 718 (1968).

While we have never explicitly outlined how appellate courts should determine which of multiple offenses is the most serious under section 609.035, we have provided some guidance on this issue. We have indicated that an appellate court vacating a sentence or sentences pursuant to section 609.035 should look to the length of the sentences actually imposed by the district court to ascertain which offense is the most serious, leaving the longest sentence in place. See, e.g., Norregaard, 384 N.W.2d at 450; State v. Herberg, 324 N.W.2d 346, 350 (Minn.1982); State v. Boley, 299 N.W.2d 924, 926 (Minn.1980). In addition, we have implicitly approved the use of the sentencing guidelines’ severity-level rankings as a method for determining which of multiple felony offenses is the most serious. See State v. Van Gorden, 326 N.W.2d 633, 634 (Minn.1982). Further, the court of appeals has suggested that courts should compare the maximum potential sentence for each of multiple offenses to determine which offense is the most serious. See State v. Alt, 529 N.W.2d 727, 731 (Minn.App.1995).

In this case, the court of appeals correctly noted that gross-misdemeanor domestic assault and interference with a 911 call carry the same statutory maximum potential sentence. Kebaso II, 2005 WL 1153727, at *2; see Minn.Stat. §§ 609.2242, subd. 2, 609.78, subd. 2 (2004). Further, the district court imposed identical sentences on the two gross misdemean- or offenses. Kebaso II, 2005 WL 1153727, at *1. Consequently, the court of appeals looked to the nature of the two offenses to determine which offense is the more serious. The court concluded that domestic assault is a more serious offense because it is a crime against a person, while interference with a 911 call is a crime against government administrative services. Id. at *2.

We approve of the analysis employed by the court of appeals in this case to determine which offense is the most serious for purposes of section 609.035. When multiple gross misdemeanors carry the same statutory maximum sentence, it is proper for a court to look to the nature of the offenses to determine which offense is the most serious. The court of appeals’ conclusion that crimes against a person are typically more serious than other sorts of crimes is entirely reasonable. See generally Minn. Sent. Guidelines V (generally ranking crimes against a person at higher severity levels than crimes against government administration or property crimes). More specifically, when multiple gross misdemeanor offenses carry the same statutory maximum potential sentence and the district court imposed the same sentence for each offense, the offense that formed the essence of the behavioral incident is the most serious offense for purposes of section 609.035. Here, the essence of the criminal conduct was the domestic assault; the subsequent interference with a 911 call was only incidental. Consequently, the court of appeals did not err in concluding that the domestic assault was the more serious offense.

The court of appeals expressly rejected Kebaso’s request that it consider the potential immigration consequences to him when determining which sentence to vacate. Kebaso II, 2005 WL 1153727, at *3. The court considered itself bound by a prior court of appeals case, which held “possible deportation * * * is not a proper consideration in criminal sentencing.” Id. (citing State v. Mendoza, 638 N.W.2d 480, 483 (Minn.App.2002), rev. denied (Minn. Apr. 16, 2002)).

We agree with the court of appeals’ conclusion that immigration consequences are not relevant to the inquiry of which offense is the most serious under section 609.035. Such consequences are entirely unrelated to the essence of the behavioral incident and the nature of the offenses. Thus, we hold that a court may not consider the potential immigration consequences to a criminal defendant when deciding which of multiple sentences to vacate or which of multiple offenses to sentence on under Minn.Stat. § 609.035.

Kebaso’s attempt to analogize immigration consequences to other factors that courts consider in sentencing, such as the presence of family support, disruption of employment, and a defendant’s status as a parent, is unavailing. As Kebaso notes, courts at times consider such factors in the context of dispositional departures under the sentencing guidelines. See State v. Trog, 323 N.W.2d 28, 31 (Minn.1982); State v. Staten, 390 N.W.2d 914, 918 (Minn.App.1986); State v. Sherwood, 341 N.W.2d 574, 577 (Minn.App.1983). But, while such factors may be relevant to a court’s decision as to the appropriateness of probation, they are not relevant to a court’s analysis of which offense to sentence on under section 609.035. Family disruption caused by the immigration consequences of a conviction, as well as the immigration consequences themselves, are irrelevant to the determination of which offense is the most serious.

In addition, Kebaso argues that a court-created rule that prohibits consideration of immigration consequences in sentencing decisions would improperly intrude on the authority of the legislature to establish sentences for criminal acts. However, while “[t]he power to fix the limits of punishment for criminal acts lies with the legislature^] * * * the imposition of a sentence in a particular case within those limits is a judicial function.” State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002) (citation omitted). In section 609.035, the legislature left courts with discretion to determine which of multiple offenses to sentence on and did not specify which factors may or may not be considered in making that decision. See Alt, 529 N.W.2d at 731. Thus, we are free to provide guidance as to proper and improper considerations in sentencing under section 609.035.

As an alternative basis for reversal, Kebaso argues that the court of appeals erred by vacating his sentence for interference with a 911 call because the court lacked an adequate record to “assess the individualized circumstances related to Kebaso’s immigration status” and thus could not make an informed decision about which sentence to vacate. However, Ke-baso does not specify any particular facts that he was unable to present to the court of appeals that were necessary for it to make an informed decision.

The court of appeals had authority to vacate one of Kebaso’s sentences pursuant to Minn.Stat. § 244.11, subd. 2(b) (2004), which grants the court of appeals the power to vacate a sentence that is “inconsistent with statutory requirements.” Because the court of appeals correctly determined that it could not consider potential immigration consequences in deciding which sentence to vacate, the fact that the court may not have been aware of all of the details of Kebaso’s immigration status did not affect the court’s decision. Kebaso II, 2005 WL 1153727, at *3. Keba-so’s argument therefore lacks merit.

Affirmed.

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

      . Kebaso did not appeal the district court's denial of his motion for resentencing. Instead, he challenged the sufficiency of the evidence supporting the domestic assault conviction and the imposition of multiple sentences for the two gross misdemeanors. See State v. Kebaso (Kebaso I), No. C1-02-596, 2003 WL 1702258, at *1 (Minn.App. Apr.1, 2003).

      .An offense can qualify as an “aggravated felony” under immigration law even if the offense is classified as a misdemeanor under state law. See Wireko v. Reno, 211 F.3d 833, 835-36 (4th Cir.2000). An aggravated felony is defined as, inter alia, "a crime of violence * * * for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101 (a)(43)(F) (2000). “Crime of violence” means, inter alia, "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (2000). “Term of imprisonment,” as used in the definition of aggravated felony, denotes the full extent of the sentence imposed, including time stayed by the sentencing court. 8 U.S.C. § 1101(a)(48)(B) (2000).
      Because Kebaso’s domestic assault involved the threatened use of physical force and because Kebaso received a 1-year sentence for it, it constitutes an aggravated felony under immigration law. Interference with a 911 call, however, is not an aggravated felony because it is not a crime of violence.

      . An alien who has been convicted of an aggravated felony is deportable from and subsequently permanently inadmissible to the United States. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1182(a)(9)(A)(ii) (2000). Such aliens are also ineligible for cancellation of removal. 8 U.S.C. § 1229b(a) (2000).

      . The court of appeals also remarked that the two gross misdemeanors are ranked at the same severity level under the sentencing guidelines. Kebaso II, 2005 WL 1153727, at *2. This is incorrect. The sentencing guidelines provide presumptive sentences only for felony offenses. See Minn. Sent. Guidelines II.C. Gross misdemeanor offenses, including gross misdemeanor domestic assault and interference with a 911 call, are not ranked under the guidelines. See Minn. Sent. Guidelines V.

      . The state did not participate in this appeal.

      . The court of appeals in State v. Alt, faced with two felony offenses, did not specify whether the maximum "potential punishment’' it referred to meant the presumptive guidelines sentence or the statutory maximum sentence. See State v. Alt, 529 N.W.2d 727, 731 (Minn.App.1995). We need not resolve this ambiguity here because Kebaso's case involves gross misdemeanors, which do not carry presumptive sentences under the sentencing guidelines. See Minn. Sent. Guidelines II.C. The relevant maximum potential sentence in a case involving gross misdemeanors is the statutory maximum sentence for each offense.

      . While we agree with the court of appeals’ decision in this case, we do not address its broad assertion that "possible deportation because of immigration status is not a proper consideration in criminal sentencing.” Keba-so II, 2005 WL 1153727, at *3. We acknowledge the concern articulated by a number of federal courts that permitting consideration of immigration consequences in sentencing allows courts to use their sentencing power to circumvent immigration laws, thereby encroaching on the prerogative of Congress to set the immigration consequences of criminal acts. See, e.g., United States v. Maung, 320 F.3d 1305, 1309 (11th Cir.2003); United States v. Aleskerova, 300 F.3d 286, 299-301 (2d Cir.2002). But because Kebaso did not seek review of the district court's initial sentencing decision or its refusal to reduce his sentence to 364 days, the question of whether immigration consequences may be considered in gross misdemeanor sentencing is not before us in this case. While we note that judges have broad discretion in sentencing on misdemeanors and gross misdemeanors and should consider all "facts bearing on the exercise of sentencing discretion,” State v. Lambert, 392 N.W.2d 242, 243-44 (Minn.1986), we leave resolution of this broader question for another day.


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Charles Ray BARNES, Appellant.
    No. A05-810.
    Supreme Court of Minnesota.
    April 27, 2006.

      Michael A. Hatch, Attorney General, State of Minnesota, Saint Paul, MN, James Backstrom, Dakota County Attorney, Hastings, MN, for Respondent.

      Charles Ray Barnes, Saint Cloud, MN, Appellant Pro Se.
    Marie Wolf, Office of the Minnesota State Public Defender, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

Appellant Charles Ray Barnes appeals from his conviction of first-degree domestic abuse murder, Minn.Stat. § 609.185(a)(6) (2004). He argues that domestic abuse murder violates the Equal Protection Clause of the Minnesota Constitution because the elements of the crime overlap with those of third-degree depraved mind murder, Minn.Stat. § 609.195(a) (2004), but domestic abuse murder provides for significantly greater penalties. He also requests a new trial based on several claims of procedural error. We affirm.

Minutes before midnight on July 13, 2004, Barnes called 911 from his Burnsville apartment reporting that he had just arrived home and found his ex-wife, Erin Rooney, unconscious and not breathing. He told the dispatcher that he thought she had overdosed on drugs or alcohol. He said he dragged her from the living room to the bathroom to try to wake her up with water because he thought she had just passed out. Barnes performed some chest compressions at the dispatcher’s direction.

Two police officers attempted CPR by administering chest compressions and tilting Rooney’s head to open her airway. The paramedics arrived shortly thereafter and learned that Rooney had been in this state for 20 to 30 minutes before Barnes called 911. The officers stopped resuscitation efforts a few minutes later when paramedics pronounced her dead.

One officer observed a syringe with a small amount of liquid inside and a rolled-up dollar bill on a table in the living room. When the officer asked Barnes about it, he said it belonged to Rooney and that she was a heroin addict. Rooney had a puncture mark on her inner right arm that appeared to be from a needle. An officer then briefly interviewed Barnes and his version of what happened changed slightly from what he had told the dispatcher. He said he and Rooney ate dinner together and that he went to bed around 9:00. He said he woke up a few hours later and found Rooney unconscious. The officers acknowledged that there was no sign of a struggle in the apartment and that they initially treated the case as a death investigation, not a homicide. Although they took some photographs, they did not change the locks on the apartment or otherwise secure it, they allowed Barnes to leave with his relatives, and they collected no evidence.

An investigator at the coroner’s office responded to the death scene. With the assistance of five or six police officers, she secured Rooney’s body in a body bag and loaded it into the investigator’s personal vehicle. The investigator drove to the morgue and unloaded Rooney’s body onto a gurney by herself.

The next day the medical examiner, Dr. Lindsey Thomas, performed an autopsy on Rooney’s body and documented numerous injuries: (1) several bruises and abrasions; (2) defensive injuries on her hands; (3) hemorrhaging in her neck; (4) a broken hyoid bone (in her neck); (5) petechiae (ruptured blood vessels) in her eyes; (6) swelling and congestion in her face; (7) injuries to her lips and tongue; and (8) a contusion under her chin. At trial Dr. Thomas conceded that until she discovered the neck injuries, the numerous other injuries on Rooney’s body were consistent with a drug overdose. It was not until Dr. Thomas found the broken hyoid bone and hemorrhage in Rooney’s neck that the police began treating the investigation as a homicide.

Barnes was arrested that evening at his mother’s house. The only injury officers found on Barnes was a scratch on his back. Police executed a search warrant on the apartment but found nothing else of significance. At trial, the state introduced medical evidence through the medical examiner who performed the autopsy, Dr. Thomas, and a forensic pathologist who reviewed Dr. Thomas’ conclusions, Dr. Dean Hawley. The state’s theory was that Barnes strangled Rooney during the course of a domestic assault, and then injected her with heroin to create the appearance of a drug overdose. Dr. Hawley gave his opinion that each of Rooney’s injuries occurred while she was still alive and that she died from asphyxiation due to manual strangulation.

Barnes’ theory was that Rooney died from an overdose of heroin and alcohol. On cross-examination of the state’s witnesses, he tried to show that all of Rooney’s injuries could be explained by other causes. He argued that the drugs and alcohol she consumed caused her to fall down and bump into things, which caused all of her bruises and abrasions. He also suggested that the hyoid bone either broke when Rooney fell and hit some furniture, or when the coroner’s investigator mishandled Rooney’s body. Finally, he suggested that the neck hemorrhages were the result of an improper autopsy procedure.

Because of the importance of the medical testimony, defense counsel applied to the court for, and was granted, state funds to hire two different medical experts. The court carved out an exception to its sequestration order allowing Barnes’ expert to be present during the state’s medical testimony to aid in cross-examination. Barnes did not take advantage of this authorization. Barnes listed only one of the two experts as a potential witness. After the state closed its case, Barnes reported that the listed expert witness was unable to appear. Barnes moved for a mistrial or for a continuance, suggesting that the time was needed to retain another expert. Barnes only gave a vague reason why the listed witness was unable to appear, and did not explain why the other expert he had retained was not listed as a witness, or who he would now seek to retain. The court denied his motion.

Barnes was found guilty of first-degree domestic abuse murder, Minn.Stat. § 609.185(a)(6); second-degree unintentional felony murder, Minn.Stat. § 609.19, subd. 2(1) (2004); and first-degree felony assault, Minn.Stat. § 609.221, subd. 1 (2004), but not guilty of second-degree intentional murder, Minn.Stat. § 609.19, subd. 1(1) (2004). He was sentenced to life in prison based on the first-degree domestic abuse murder' conviction. This appeal followed.

I.

Barnes first argues that his sentence for first-degree domestic abuse murder should be vacated and a new sentence imposed for the second-degree murder conviction. He argues that the domestic abuse murder statute violates the Equal Protection Clause, article 1, section 2 of the Minnesota Constitution. Unless a fundamental right or suspect class is involved, statutes are presumed to be constitutional. Rio Vista Non-Profit Housing Corp. v. County of Ramsey, 335 N.W.2d 242, 245 (Minn.1983). We will hold a statute unconstitutional “only when absolutely necessary.” State v. Behl, 564 N.W.2d 560, 566 (Minn.1997). The constitutionality of a statute is a question we review de novo. State v. Machholz, 574 N.W.2d 415, 419 (Minn.1998).

Barnes makes two equal protection arguments. First, he claims that first-degree domestic abuse murder impermissibly overlaps with third-degree depraved mind murder. Second, he argues that first-degree domestic abuse murder singles out domestic abusers for harsher punishment without a rational basis.

A. Overlapping Statutes

Section 609.185(a)(6), the domestic abuse murder statute, makes it first-degree murder to cause “the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim * * * and the death occurs under circumstances manifesting an extreme indifference to human life.” Section 609.195(a), the depraved mind murder statute, makes it third-degree murder to, without intent to effect the death of any person, cause “the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard to human life.” The penalty for first-degree domestic abuse murder is life imprisonment and the penalty for third-degree depraved mind murder is a maximum of 25 years in prison, with a presumptive sentence under the sentencing guidelines of 150 months in this case. Barnes argues that “there is no significant difference in the culpable mental state required by these statutes” and that “the lack of a meaningful variance between the two does not justify the huge disparity in the two sentences under the equal protection provisions of the Minnesota Constitution.”

Barnes relies in part on the equal protection analysis of Professor Wayne R. LaFave, who classifies three types of overlapping statutes and discusses the differing equal protection implications of each:

(1) where one statute defines a lesser included offense of the other and they carry different penalties (e.g., whoever carries a concealed weapon is guilty of a misdemeanor; a convicted felon who carries a concealed weapon is guilty of a felony); (2) where the statutes overlap and carry different penalties (e.g., possession of a gun by a convicted felon, illegal alien or dishonorably discharged serviceman is a misdemeanor; possession of a gun by a convicted felon, fugitive from justice, or unlawful user of narcotics is a felony); (3) where the statutes are identical (e.g., possession of a gun by a convicted felon is a misdemeanor; possession of a gun by a convicted felon is a felony).

4 Wayne R. LaFave, et al., Criminal Procedure § 13.7 at 95-96 (2d ed. 1999). La-Fave identifies the first category as “certainly unobjectionable,” the second as “presenting a harder case,” and the third as “highly objectionable.” Id. at 96. Barnes argues that domestic abuse murder falls under this second category because it overlaps with the depraved mind murder statute.

Barnes concedes that the situation here would not violate the Equal Protection Clause of the United States Constitution because of the Supreme Court’s decision in United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). But he argues that we should not follow Batchelder in interpreting the Minnesota Constitution because (1) we have applied a more rigid equal protection standard under the Minnesota Constitution, and (2) the overlapping statutes in Batchelder involved minimally different sentences, whereas the murder statutes here involve significantly different sentences. We disagree with the threshold of Barnes’ argument because we do not view these two statutes as being sufficiently overlapping to present equal protection concerns. They punish very different conduct.

First, domestic abuse murder focuses on a specific type of actus reus — death while committing domestic abuse — while depraved mind murder is much more broad — death while “perpetrating an act eminently dangerous to others.” Barnes argues that these requirements are identical because “it is likely that nearly all domestic abuse incidents resulting in death could be classified as ‘[eminently] dangerous.’ ” Even if this were true, the conclusion that the requirements are identical does not follow because the reverse is not true. Not all “eminently dangerous” acts constitute “domestic abuse.”

Second, domestic abuse murder is more specific because it only applies to (1) a specific group of defendants who cause the death of (2) a specific group of victims. Domestic abuse murder only applies to defendants who have “engaged in a past pattern of domestic abuse upon the victim.” Minn.Stat. § 609.185(a)(6). Depraved mind murder applies to any defendant. Minn.Stat. § 609.195(a). Domestic abuse murder only applies with a victim who had a domestic relationship with the defendant. Minn.Stat. § 609.185(c)(2); see Minn.Stat. § 518B.01, subd. 2(b) (2004). Depraved mind murder, on the other hand, can apply with “any person” as the victim. Minn.Stat. § 609.195(a).

The statutes can also be distinguished because the mens rea elements have a different focus. Domestic abuse murder requires that the extreme indifference be directed at the specific person. Depraved mind murder, on the other hand, cannot occur where the defendant’s actions were focused on a specific person:

This statute was intended to cover cases where the reckless or wanton acts of the accused were committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.

State v. Wahlberg, 296 N.W.2d 408, 417 (Minn.1980) (citations omitted) (emphasis added) (holding that an instruction on depraved mind murder was inappropriate where the evidence suggested “that all the blows were directed toward the victim”).

There is a further basis to distinguish the mens rea elements of the two statutes. We have interpreted the “depraved mind” standard from depraved mind murder to be equivalent to a reckless standard. See State v. Carlson, 328 N.W.2d 690, 694 (Minn.1982). Domestic abuse murder requires proof of at least one of the underlying domestic abuse crimes, each of which has an intent element. See Minn.Stat. § 609.185(c) (requiring that the state also prove one of the enumerated underlying “domestic abuse” crimes).

Because the two statutes do not punish identical conduct, their coexistence does not present an equal protection concern.

B. Disparate Treatment

Barnes suggests that domestic abuse murder violates equal protection because, without a rational basis, it singles out domestic abusers for harsher punishment than those who commit depraved mind murder. He focuses on the “past pattern of domestic abuse” element of domestic abuse murder.

When a statute does not involve a suspect classification or a fundamental right, this court reviews the constitutional challenge to the statute under a rational-basis test. Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 74 (Minn.2000). Barnes does not claim that domestic abuse murder involves a suspect classification or a fundamental right. Thus domestic abuse murder is presumed to be constitutional “if the classification drawn by [the statute] is rationally related to a legitimate governmental interest.” Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn.2002). This court employs a three-pronged rational-basis test:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

State v. Russell, 477 N.W.2d 886, 888 (Minn.1991) (citations omitted).

Barnes does not take a position on the second or third prongs. The obvious purpose of the domestic abuse murder statute is to combat domestic violence. This is certainly a legitimate legislative goal. And providing harsher punishment for those who have a past pattern of domestic abuse serves that goal. Barnes focuses only on the first prong, arguing that the “past pattern of domestic abuse” element creates an arbitrary classification because it is both overinclusive and under-inclusive.

As for overinclusiveness, Barnes argues that because domestic abuse murder only requires prior allegations of domestic abuse, and not prior convictions, some defendants may be wrongfully convicted of domestic abuse murder based on unproven allegations. But we have repeatedly upheld this portion of the statute against similar arguments made in the context of due process challenges. State v. Manley, 664 N.W.2d 275, 283 (Minn.2003); State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn.2001); State v. Cross, 577 N.W.2d 721, 727 (Minn.1998); State v. Kelbel, 648 N.W.2d 690, 703 (Minn.2002) (upholding an identical element from the first-degree child abuse murder statute).

As to underinclusiveness, Barnes argues that because “domestic abuse is an underreported crime,” some defendants who actually have a past pattern of domestic abuse are not charged with first-degree domestic abuse murder because the past incidents were unreported. But the authority he cites refers to domestic assault being unreported to law enforcement. The past pattern requirement can be proven by incidents that were not reported to law enforcement. See Manley, 664 N.W.2d at 280. Further, substantial deference is given to the legislature where an underinclusiveness challenge is made on rational basis review. See Haskell’s Inc. v. Sopsic, 306 N.W.2d 565, 559 (Minn.1981).

We hold that the domestic abuse murder statute does not violate the Equal Protection Clause of the Minnesota Constitution.

II.

Barnes next argues that he should be granted a new trial because the district court abused its discretion in denying his motion for a mistrial or a continuance when his expert witness became unavailable to testify. “The decision to grant or deny a continuance lies within the discretion of the trial judge.” State v. Lloyd, 345 N.W.2d 240, 247 (Minn.1984). A defendant must show that the denial “prejudiced defendant by materially affecting the outcome of the trial.” State v. Turnipseed, 297 N.W.2d 308, 311 (Minn.1980).

Following the presentation of the state’s case, Barnes requested a continuance or a new trial arguing that he needed time (1) to secure an expert witness to refute a portion of Dr. Hawley’s testimony that was erroneous and (2) to respond to statements Dr. Hawley made that he says were not in Dr. Hawley’s pretrial disclosure. Although this latter ground for the motion was characterized before the district court as a “discovery violation,” Barnes did not make a record of Dr. Hawley’s pretrial disclosure or demonstrate how his trial testimony differed from it. Thus Barnes did not support any claim for a discovery sanction. Further, when making the motion for the continuance Barnes’ counsel said, “I have no intention of asking an expert to testify about cause of death or review the file.” Accordingly, the only remaining ground for the motion for continuance was Barnes’ assertion that he needed one week to secure additional medical testimony to respond to two disputed portions of Dr. Hawley’s testimony. Our independent review of the record reveals that the district court did not abuse its discretion in denying Barnes’ motion.

The district court took steps to ensure that Barnes had adequate access to expert medical advice during trial. The court granted both of Barnes’ requests for public funds to hire expert witnesses. The court authorized sufficient funds to enable Barnes to have one of the experts present to assist his counsel during testimony of the state’s medical witnesses. The court also made an exception to the sequestration order so that Barnes’ medical expert could be present while the state’s medical witnesses testified. Barnes did not take advantage of this authorization. He did not have an expert present during Dr. Hawley’s testimony and he did not have an expert available to testify in response to Dr. Hawley.

Further, Barnes made his motion for a continuance after the close of the state’s case two weeks into a murder trial that involved numerous witnesses and complex medical testimony. Greater deference is generally given to the district court’s denial of a continuance where, as here, the trial had already begun. See, e.g., State v. Beveridge, 277 N.W.2d 198, 199 (Minn.1979) (“One who waits until the day of trial before moving for a continu-anee ought to have a good explanation for the delay.”). When the court asked why Barnes’ expert was not available, Barnes’ counsel did not have a good explanation, stating only, “apparently she has scheduling difficulties, and frankly I think she also has some job concerns.” This was insufficient to constitute good cause.

Finally, our review of the record reveals that Barnes misunderstood or exaggerated both the content and the importance of the two portions of Dr. Hawley’s testimony that he criticizes.

First, Barnes argues that Dr. Hawley surprised him when he testified that a bone in Rooney’s neck — the hyoid bone— “was completely broken off and that it had blocked the airway.” Barnes does not argue that he was unaware that the hyoid bone was fractured. Instead he seems to be arguing that his surprise was limited to Dr. Hawley’s testimony that the fracture was a complete break, as opposed to it being a crack that left the bone intact. But the question of whether the fracture was complete or a crack was not crucial to the state’s case or to Dr. Hawley’s conclusions. Dr. Hawley testified that the cause of death was asphyxiation from the impaired flow of blood from Rooney’s heart to her brain, not suffocation from the impaired flow of oxygen from her mouth/nose to her lungs. He testified that a broken hyoid bone is not necessary to cause asphyxiation and, in fact, is uncommon in strangulation cases. In other words, the broken hyoid bone was irrelevant to the cause of Rooney’s death. Dr. Hawley said the only relevance of the broken hyoid bone was to show the extreme amount of force applied to her neck.

As to Barnes’ suggestion that Dr. Haw-ley testified that the hyoid bone blocked the airway, we find nothing from his testimony to suggest that the complete fracture of the hyoid bone could do more to block Rooney’s airway than a fracture that was only a crack. Dr. Hawley testified that in order to fracture the hyoid bone, sufficient pressure would have to be applied to the neck so as to collapse the larynx and thus close off the airway. In other words, Rooney’s airway could have been closed off whether the fracture to Rooney’s hyoid bone was complete or merely a crack. Moreover, Dr. Hawley did not testify that the hyoid bone obstructed Rooney’s airway. Instead he said the pressure to her neck caused the airway to collapse and become obstructed.

Second, Barnes says Dr. Hawley testified that a phenomenon known as the Prinsloo Gordon artifact is limited to decomposed bodies. Barnes argues this is medically incorrect and that he needed an expert to refute it.

Barnes first raised the issue of the Prinsloo Gordon artifact during cross-examination of the state’s medical examiner, Dr. Thomas. Barnes’ counsel questioned Dr. Thomas based on an excerpt from a treatise, Pekka Saukko & Bernard Knight, Knight’s Forensic Pathology 375 (3d ed. 2004), which refers to the artifact. Then, on direct examination of Dr. Hawley, the state also referred to the same portion of this treatise. Dr. Hawley explained:

The original description is a 1951 medical paper out of the Medical Journal of South Africa. * * * And they describe a technique for dissection of the neck so that you can avoid having blood drained from the blood vessels of the neck into the field of your dissection while you’re performing the autopsy.
What they were working with and what many other medical reporters have described in much more modern times is that it is extremely difficult, as I said previously, to determine strangulation in decomposed bodies. And what we end up with very often is a decomposed body for whom you’re trying to figure out the cause of death. And these hemorrhages can develop in the neck during the natural part of this process of putrefaction.
⅝ ⅝ ⅝ ⅜
But what we’re dealing with for the most part is the problem that decomposition causes.

The state then showed Dr. Hawley a picture from the treatise and Dr. Hawley identified the picture as “obviously” being from a decomposed body. He then contrasted the picture with Rooney’s autopsy: “[SJhe’s not decomposing. There’s no decomposition and none of that artifact was present in this body.”

Dr. Hawley never expressly testified that the Prinsloo Gordon artifact was limited to decomposed bodies. To the extent that Dr. Hawley’s testimony could be construed to imply this, defense counsel had the opportunity to clarify this point on cross-examination but did not.

Barnes also argues that a continuance or new trial was warranted by the state’s failure to disclose e-mail communications between the prosecutor and Dr. Hawley that Barnes discovered during cross-examination. But this issue was not preserved for appeal. Barnes’ counsel specifically said she was not requesting a continuance on this issue. Counsel requested 30 minutes to review the e-mails and the court granted that request. Barnes did not, and still does not, disagree with the court’s determination that the emails did not contain any information that was new or that Dr. Hawley used as a basis for his conclusions. Our independent review of the e-mails leads us to the same conclusion.

For these reasons the district court did not abuse its discretion in denying Barnes’ motion for a continuance or a new trial.

III.

Barnes makes several other allegations of error in his supplemental pro se brief.

Ineffective Assistance of Counsel

Barnes argues that his attorneys deprived him of his Sixth Amendment right to effective assistance of counsel because (1) they were surprised by Dr. Hawley’s testimony that the hyoid bone was completely broken, and (2) they were not prepared to cross-examine or rebut the state’s medical witnesses.

To the extent that Barnes’ ineffective assistance of counsel claim relates to the failure to present any defense medical expert testimony, it cannot be determined on the trial record. We are not able to determine whether this omission was a tactical decision, the result of a decision concurred in by Barnes, the failure to locate any witness who could help his case, or some other reason. Because additional facts are needed to review this issue, it is more properly suited for a postconviction proceeding. Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn.1997). Therefore, we reject this aspect of Barnes’ ineffective assistance of counsel claim without prejudice to the right of Barnes to attempt to develop and present such claim in a postconviction petition.

But to the extent Barnes criticizes defense counsels’ conduct of the trial, his claim can be determined on this record. Torres v. State, 688 N.W.2d 569, 572 (Minn.2004). A new trial based on a claim of ineffective assistance of trial will only be granted if the defendant proves:

First * * * that counsels’ performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels’ errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[Tjhere is a strong presumption that a counsels’ performance falls within the wide range of reasonable professional assistance.” Hodgson v. State, 540 N.W.2d 515, 518 (Minn.1995) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn.1986)).

On the record of the trial, counsels’ performance does not rise to the level of ineffective assistance of counsel under Strickland. As already established, the difference between a crack in the bone and a complete fracture was immaterial to the cause of death and thus did not prejudice Barnes’ defense. As for the claim that counsel was not prepared for the state’s medical witnesses, the cross-examination of each witness was vigorous and detailed. Counsel secured several concessions favorable to Barnes, made numerous objections, and made numerous motions.

Sufficiency of the Evidence

Barnes argues that there was insufficient evidence to support his conviction for first-degree assault because each of the injuries could have been explained by other causes. Barnes is essentially asking us to view the evidence in the light most favorable to him. But the evidence must be taken in the light most favorable to the verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). And the state’s expert witnesses ruled out each of these other causes of injury with “scientific certainty,” giving their opinions that the cause of death was strangulation. The evidence was sufficient.

Prosecutorial Misconduct

Barnes argues that the prosecutor violated his rights during closing argument by giving an “unqualified medical reason” as to why Barnes vomited, and by giving a “purely hypothetical” and unwit-nessed “blow by blow” account of a fight that the state claimed had occurred between Barnes and Rooney. The state’s closing argument can include reasonable inferences from the evidence. State v. Porter, 526 N.W.2d 359, 363 (Minn.1995). The prosecutor’s comment about Barnes vomiting was qualified and was a reasonable inference from the evidence: “I suggest that the evidence, the totality of the evidence shows that he started getting sick because he was afraid.” Further, each of the prosecutor’s remarks about the fight and how Rooney sustained various injuries was supported by medical testimony.

Improper Character Evidence

Barnes argues that the district court erred by not declaring a mistrial when one of the officers commented on a conversation he- had with Barnes about Barnes’ past drug use. Apparently, the state agreed that it would not disclose this information. The disputed testimony arose when the state asked the officer to review his report to refresh his memory about the conversation. The officer began reading his report and said: “He talked about her drug use, heroin use. He made comments that he used it at one time but was not currently using.”

This disclosure appears to have been inadvertent and the district court immediately gave the jury a curative instruction. More importantly, events that occurred later in trial eliminated any prejudice in the statement about Barnes’ past drug use. While in prison Barnes made a telephone call to a Mend in which he stated that he was under the influence of heroin when Rooney died. The court determined that this statement was admissible because it showed that he had knowledge of heroin and the methods for ingesting it, which was relevant to the state’s claim that Barnes injected heroin into Rooney’s body after her death. Barnes did not object to or appeal from this decision. Thus the officer’s statement was harmless.

Failure to Test Evidence

Barnes argues that the police violated his rights because they did not test vomit in the toilet. Barnes does not argue that the vomit could have been from an alternate perpetrator. Instead he says this is important because the vomit could have been from Rooney and one of the experts conceded that vomiting can cause petechiae, a condition found in the autopsy. But even if the vomit was from Rooney, (1) the state’s experts ruled out vomiting as the cause of Rooney’s petechiae, and (2) none of her other injuries could have been explained by the vomit. Thus, the failure of the state to test the vomit did not violate Barnes’ rights.

Improper Jury Influence

Finally, Barnes argues that the court erred by not declaring a mistrial during jury selection when a potential juror brought to the court’s attention an incident where other potential jurors were discussing Barnes’ guilt or innocence. He argues that the court excused a certain pool of jurors instead of all of them. But Barnes failed to order a transcript of the jury selection and the state did not stipulate to the facts claimed by Barnes. Because Barnes’ arguments are not supported in the record, the issue is deemed waived. See State v. Engler, 319 N.W.2d 705, 705 (Minn.1982).

Affirmed.

      . The state presented evidence that the puncture mark on Rooney's right arm did not reach her vein, Rooney hated needles, Rooney was right-handed, and that her lungs did not contain a certain crystal typically found in intravenous drug users. Dr. Hawley testified that Rooney's heroin level appeared to be one large dose injected shortly before her death.

      . The expert witness fund of the state public defender's office was previously depleted.

      . That section provides that "[n]o member of this state shall be disfranchised or deprived'of any rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.”

      . Because Barnes did not challenge the constitutionality of the statute at trial, we need not consider the issue here. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). But we choose to address Barnes' constitutional claims in the interests of justice. See State v. Benniefield, 678 N.W.2d 42, 45 (Minn.2004).

      . See State v. Russell, 477 N.W.24 886, 889 (Minn.1991) (holding there is no rational basis under the Minnesota Constitution to justify the significant disparity in punishment between users of crack cocaine versus users of powder cocaine).

      . The Prinsloo Gordon artifact is a disruption of the body during the autopsy that creates the appearance of pre-mortem neck hemorrhaging. It is caused by an improper dissection technique, not pre-death violence. At trial Barnes argued that the hemorrhage observed in Rooney's neck was an "artifact” from the autopsy, not an "injury” from strangulation.


author: ANDERSON, PAUL H., Justice.

text:
    Estelle BUSCH, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. A05-656.
    Supreme Court of Minnesota.
    May 11, 2006.

      Estelle Busch, Minneapolis, MN, pro.se.
    Mike Hatch, Minnesota Attorney General, Craig R. Anderson, Assistant Attorney General, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

Relator Estelle Busch’s Minnesota individual income tax returns for 1999, 2000, and 2001 were audited by the Commissioner of Revenue and as a result Busch was assessed $102,245 in additional taxes, plus interest, under the Minnesota Alternative Minimum Tax. The additional assessment was based on Busch’s gambling activity. Busch played slot machines extensively, winning substantial amounts of money, but losing more money than she won. Under the Minnesota Alternative Minimum Tax, a taxpayer cannot deduct gambling losses unless they are incurred as part of the taxpayer’s trade or business. Minn.Stat. § 290.091, subd. 2 (2004). The commissioner concluded that Busch was not engaged in the trade or business of gambling and therefore disallowed her gambling loss deductions. Busch' appealed, and the Minnesota Tax Court affirmed thé commissioner’s determination that Busch’s gambling did not constitute a trade or business, and that the commissioner’s review was not barred by a possible IRS determination. Busch, who represented herself in these legal proceedings, appealed the tax court’s judgment. We reverse.

The parties agreed at the tax court hearing that the facts of this case are essentially undisputed. Busch held several jobs before 1998, including administrative assistant, teacher, police dispatcher, landlord, and building renovator. She did not gamble until 1998. Upon reaching 65 years of age in 1999 and quitting her previous occupations, Busch began to spend a considerable amount of time playing the slot machines at Mystic Lake Casino. By the year 2001 she was spending between 40 to 60 hours every week playing the slot machines. Busch testified that she had read several articles “on the computer” regarding slot machine play and talked to Mystic Lake employees and customers about which slot machines were “rolling” favorably to the gamblers. Additionally, Busch kept detailed records of her gambling winnings and losses. However, Busch admitted she was not an expert on how slot machines worked and that she chose slot machines as a method of gambling because “it didn’t take a great deal of knowledge to play a slot machine.” Busch told the tax court that, for her, gambling was not entertainment, but “just plain hard work.”

It is undisputed that Busch sought to gain a profit at the slot machines and that she believed she was good at telling whether a slot machine was rolling favorably to the player. Her winnings each year were substantial — $79,482 in 1999, $430,280 in 2000, and $972,980 in 2001, but she asserted and the tax court found that her losses always at least equaled her gains — she claimed $79,482 in losses in 1999, $430,280 in 2000, and $1,161,824 in 2001. Busch initially deducted her 1999 and 2000 gambling losses as Schedule A itemized deductions on her federal tax returns. In 2001, Busch claimed her gambling losses as a deduction on Schedule C, which is the form used for trade or business deductions. She then amended her 2000 return to claim her gambling losses on Schedule C.

On August 14, 2002, the Minnesota Department of Revenue notified Busch that the department had audited her 1999 tax return and had assessed an additional tax under Minnesota’s Alternative Minimum Tax (AMT). The additional tax was assessed because gambling losses may not be deducted from gambling winnings under the Minnesota AMT unless the losses are incurred in the course of a trade or business. Minn.Stat. § 290.091, subd. 2. The result of the audit was that Minnesota taxed Busch on her 1999 gambling winnings without any deduction for gambling losses, despite the fact that she had lost more money than she had won. In December 2002, the revenue department notified Busch that it also had audited her 2000 and 2001 returns, and was similarly assessing additional Minnesota AMT taxes on Busch’s gambling winnings for those years. Altogether, Busch was assessed $102,245 in additional taxes, plus interest. Busch appealed the tax assessments to the Commissioner of Revenue (the commissioner).

Meanwhile, in August 2004, the Internal Revenue Service (IRS) conducted an audit of Busch’s 2001 federal income tax return wherein one of the IRS’s specific enumerated questions for Busch was: “It appears you are treating your gambling activity as a business. If so, what are your reasons for treating this as a business?” As a result of this audit, the IRS made minor adjustments to Busch’s 2001 tax return, but did not move Busch’s gambling losses from Schedule C to Schedule A or otherwise comment on the losses.

In response to Busch’s administrative appeal of the department’s audit, the commissioner examined Busch’s returns, reviewed her arguments, and concluded that Busch’s gambling did not constitute a trade or business. Busch then appealed the commissioner’s decision to the Minnesota Tax Court. Following a hearing, the tax court concluded that Busch had not overcome the presumptive validity of the commissioner’s determination and affirmed the commissioner’s audit assessment. Busch v. Comm’r of Revenue, No. 7590-R (Minn. T.C. March 2, 2005) (slip op. at 9). The court noted that Busch’s slot machine play involved no skill or research and was entirely dependent on chance. Id. The court also noted that Busch admitted she was not a slot machine expert and that her “personal situation” suggested that she was not trying to earn a living from gambling. Id. As such, the court concluded that Busch’s gambling activity was more of a hobby than a trade or business. Id. at 8. The court further stated that “the expectation of making a profit must be a realistic one” for the activity to qualify as a trade or business. Id. at 9. Busch petitioned our court for review, and we issued a writ of certiorari.

I.

Busch first claims that the IRS has already ruled that it was acceptable for her to deduct her gambling losses as trade or business deductions and that the commissioner may not contradict the IRS’s ruling. Busch points out that during the IRS’s audit of her 2001 federal income tax return, the IRS asked if she was treating her gambling activity as a business, and if so, to identify her reasons for such treatment. Busch argues that this inquiry indicates that the IRS specifically examined Busch’s claim that gambling was her trade or business, and that the IRS’s failure to contest that claim or move her gambling loss deductions from Schedule C to Schedule A means that the IRS concluded that she was in fact engaged in the trade or business of gambling. While Busch does not specifically identify it as such, Busch’s argument appears to be a collateral estop-pel argument.

When parties have agreed to the underlying facts, we need consider only whether the law was applied properly. See Mayo Collaborative Services, Inc. v. Comm’r of Revenue, 698 N.W.2d 408, 412 (Minn.2005). Here, the parties disagreed whether Busch was engaged in a trade or business, but agreed as to the essential underlying facts; thus, our review is de novo. We have held that collateral estop-pel applies when the particular tax matter has been previously adjudicated by a federal court. Tarutis v. Comm’r of Revenue, 393 N.W.2d 667, 669 (Minn.1986). For collateral estoppel to apply, the following four factors must be fulfilled: (1) the issue must be identical to one in a prior adjudication; (2) in the prior adjudication, there must have been a final judgment on the merits; (3) the estopped party must have been a party or in privity with a party to the prior adjudication; and (4) the es-topped party must have been given a full and fair opportunity to be heard on the adjudicated issue. Id.

We have said that when the IRS has failed to adjust or correct a taxpayer’s federal return, collateral estoppel does not apply because there was no prior adjudication and the commissioner was neither a party nor privy and therefore has no opportunity to be heard. Id. Moreover, in Weed v. Comm’r of Revenue, we stated that even if the IRS had made a determination of a taxpayer’s federal taxable income, the commissioner was not foreclosed from adjusting the taxpayer’s state taxable income. 550 N.W.2d 285, 289 (Minn.1996). Even when Minnesota tax law incorporates the federal law, the commissioner is not necessarily bound by the IRS’s determinations. See id.; see also Specktor v. Comm’r of Revenue, 308 N.W.2d 806, 809 (Minn.1981). In Specktor, we noted that in Minnesota the commissioner has the authority to examine tax returns and order adjustments of individual taxes, which authority would have no meaning if the IRS’s action or lack thereof were always to govern the outcome. Id.

Busch seeks to support her position by citing several Minnesota Tax Court cases that hold that, when a taxpayer has, after an audit, come to a settlement with the IRS regarding the amount of the taxpayer’s gross income for the audited year, the taxpayer cannot contest that gross income figure when it is used to compute the taxpayer’s Minnesota liability. DeBoer v. Comm’r of Revenue, No. 6712, 1997 WL 675466, at *3 (Minn. T.C. Oct. 27, 1997); Yocum v. Comm’r of Revenue, No. 5697, 1992 WL 15465, at *2 (Minn. T.C. Jan. 22, 1992). Though decisions of the tax court may be persuasive, they are not binding on our court. A & H Vending Co. v. Comm’r of Revenue, 608 N.W.2d 544, 546 (Minn.2000). Moreover, the cases cited by Busch deal with a different circumstance. For example, in DeBoer and Yocum, the taxpayers were audited by the IRS and consented in writing to a higher gross income than they originally claimed. DeBoer, 1997 WL 675466, at ⅜3; Yocum, 1992 WL 15465, at *2. Then the commissioner used these federal gross incomes to determine the taxpayers’ state income tax liability. Id. In such cases, collateral estoppel is more applicable because the commissioner is trying to hold the taxpayer to an agreement to which the taxpayer was a party. Here, Busch is attempting to hold the commissioner to a determination to which the commissioner was not a party. Because the line of cases cited by Busch deals with a circumstance wherein the income that the commissioner calculated for Minnesota tax purposes was the same as the taxable income the taxpayer had already expressly agreed to for federal income tax purposes, we conclude that the cases are inapplicable.

We also conclude that when the issue of Busch’s Minnesota tax liability came before the tax court, there had been no final adjudication of whether Busch’s gambling activity constituted a trade or business. The arguable IRS determination that Busch’s gambling constituted a trade or business was not the result of fairly contested litigation in court or any inquiry where the commissioner was included as a party. Therefore, collateral estoppel does not apply. We hold that under the facts of this case and our prior case law, the commissioner has the right to make an independent assessment of Busch’s state tax liability regardless of any IRS determination as to the status of Busch’s gambling activities as a trade or business.

II.

We must now determine whether Busch is correct in her claim that her gambling activity constituted a trade or business and therefore she should be allowed to deduct her gambling losses to the extent of her winnings for purposes of calculating her Minnesota AMT. But before doing so, we must determine the correct standard of review for the tax court’s decision under the AMT. As mentioned above, when parties agree to certain underlying facts, we need consider only whether the law was applied properly, and therefore our review is de novo. See Mayo Collaborative Sews., Inc., 698 N.W.2d at 412. Here, the parties agreed at trial that the facts were undisputed and the only question before the court was the application of the law to the facts. There is no fact question here as to the nature and purpose of Busch’s gambling activities. Therefore, the question before us is what the law is and how it is to be applied to the undisputed facts. Accordingly, we review the tax court’s decision de novo.

The Minnesota AMT, like the federal AMT, was created to reduce the ability of certain wealthy individuals to avoid payment of individual income tax by using the numerous tax deductions or exemptions available under the regular tax formula. Minnesota House of Representatives Research, The Minnesota Individual Alternative Minimum Tax (July 2005). Minnesota Statutes § 290.091 (1978) contains the rules for the Minnesota AMT. The AMT is an alternative tax formula, which limits deductions and exemptions. See Minn. Stat. § 290.091 (2004). A Minnesota taxpayer is required to compute the amount of his or her Minnesota income tax each year under both the regular Minnesota formula and the AMT formula, pay the tax due under the regular formula, then pay an additional tax in the amount of the tax calculated under the AMT minus the regular tax. See Minn.Stat. § 290.091, subd. 1.

Under both the Minnesota and federal regular tax formulas, taxpayers may claim an itemized deduction for gambling losses to the extent of their winnings. See Minn. Stat. § 290.01, subd. 19; 26 U.S.C. § 165(d) (2000). For the purpose of computing federal alternative minimum taxable income, the taxpayer may still take this deduction. 26 U.S.C. §§ 55(b), 56, 67(b), 165(d) (2000). But under Minnesota law, except in limited circumstances, a taxpayer may not deduct gambling losses when computing his or her Minnesota AMT. See MinmStat. § 290.091, subd. 2. Therefore, in calculating the Minnesota AMT, a taxpayer’s gambling winnings are included in taxable income, but the taxpayer cannot deduct gambling losses.

The exception to the rule that a taxpayer may not deduct gambling losses under the Minnesota AMT is the trade or business deduction. See Minn.Stat. § 290.091, subd. 2 (beginning the calculation of Minnesota alternative minimum taxable income with the taxpayer’s federal alternative minimum taxable income); 26 U.S.C. § 62. The Minnesota AMT, while disallowing certain itemized deductions allowed by the federal AMT, still allows trade or business expenses to be deducted from taxable income. See id. Therefore, if a person is engaged in the trade or business of gambling, he or she would be able to deduct his or her gambling losses from adjusted gross income as trade or business expenses for the purposes of both the federal and Minnesota AMT.

There are two ways to view Busch’s gambling activities for taxation purposes. Under one theory, Busch was a serious gambler who believed she would make a profit and sought to do so, and therefore she should receive a trade or business deduction as does anyone else who is engaged in a trade or business. Under the second theory, Busch worked until retirement, then began gambling, which she enjoyed as entertainment. Under this second theory, Busch did not “lose” money; rather, she won a considerable sum and then spent it on entertainment. This type of loss is known as a “hobby loss.” See Michelle B. O’Connor, The Primary Profit Objective Test: An Unworkable Standard?, 27 Loy.U.Chi.L.J. 491, 498-99 (Spring 1996). Hobby losses often arise from activities that appear on some level to be a “trade or business,” but are actually a sporadic activity, hobby, or entertainment that does not qualify as a trade or business for tax purposes. See, e.g., Brook, Inc. v. Comm’r, 799 F.2d 833, 839 (2nd Cir.1986) (holding that club’s deduction of losses it suffered in providing food to nonmembers was not authorized as the sales were not engaged in for a profit); Ruben v. Comm’r, No. 87-7079, 1988 WL 79313, at *1 (9th Cir., April 4, 1988) (concluding that appellant’s horse ranching operations were not a trade or business). The question before us is whether Busch’s losses from her gambling activity should be treated as trade or business losses' or as “hobby losses.”

Busch claims that she is entitled to take her gambling losses as a trade or business deduction, asserting that she considered playing the slot machines to be her “work.” She points to the up to 40 to 60 hours per week that she spent at a casino over a three-year period. While conceding that her expectation of earning a profit might have been unreasonable, Busch claims she had such an expectation and that this expectation, in addition to the regularity of her slot machine play and her research into slot machine strategy, shows that she was engaged in gambling as a trade or business.

The commissioner contends that some forms of gambling can constitute a trade or business, but Busch’s gambling did not because it involved no skill and making any money via gambling on the slot machines is entirely a matter of chance. The commissioner’s audit order stated that:

A Professional Gambler is one who has attained a certain level of skill in a gaming activity whereby he or she makes their living off of the net winnings in the business. Professional gamblers exist only in activities where skill is a factor in winning, not only the luck of the game. Such activities include black jack, poker (where legal), and thoroughbred horse racing. On the other hand, games such as bingo, pull-tabs, scratch-offs and slot machines are simply games of chance with no skill factor to provide higher odds of winning.

The commissioner concluded that Busch’s “entire gambling winnings and losses were incurred by playing the slot machines, therefore the activity would not qualify as a business.” The commissioner did go on to comment on other factors, however, such as that Busch spent three years gambling without making a profit, and that she spent her savings and retirement funds on gambling. On appeal, the commissioner also noted that Busch could not remember any specific written materials she had studied on slot machine play and that she admitted to having no particular expertise regarding slot machines. Additionally, the commissioner noted that Busch never supported herself on her winnings. The commissioner asserts that these factors indicate that for Busch, gambling was a “form of entertainment” that she enjoyed and began to engage in only after she had retired.

As yet, we have not squarely addressed the question of whether, gambling may constitute a trade or business under Minnesota tax laws. But the United States Supreme Court, in the case of Commissioner of Internal Revenue v. Groet-zinger, addressed the question of whether and when gambling may constitute a trade or business under federal tax law. 480 U.S. 23, 107 S.Ct. 980, 94 L.Ed.2d 25 (1986). Additionally, in its regulations, the IRS has set forth a number of nonexclusive factors to be considered when making a determination whether a taxpayer’s activity is a trade or business. See Treas. Reg. § 1.183-2(b) (1972).

In our analysis, we will first consider the relevancy of the Supreme Court’s holding in Groetzinger and the IRS factors in determining whether Busch’s gambling activity constitutes a trade or business. We will then consider the commissioner’s and the tax court’s conclusions that a taxpayer must have a reasonable expectation of profit from a given activity in order for the activity to qualify as a trade or business.

A. Commissioner v. Groetzinger

In Groetzinger, the Supreme Court was asked to determine whether Groetzinger’s gambling activity constituted a trade or business under the federal tax code. Groetzinger, 480 U.S. at 24, 107 S.Ct. 980. Because Groetzinger applies to the federal tax code and this case concerns the Minnesota tax code, Groetzinger does not control our decision. But Groetzinger is still persuasive authority, particularly because the Minnesota tax code incorporates sections of the federal tax code, including the trade or business sections. Minn.Stat. § 290.01, subd. 19 (2004) (defining Minnesota net income as the federal taxable income, with specified exceptions); 26 U.S.C. § 62, 162 (providing that trade or business expenses are allowed as a deduction to federal adjusted gross income); see Wilson v. Comm’r of Revenue, 656 N.W.2d 547, 552 (Minn.2003) (“When we interpret a clause of our state constitution that is identical to a clause of the federal constitution, a decision of the United States Supreme Court is of inherently persuasive, but not necessarily compelling, force.”). Therefore, we will consider the Court’s reasoning in Groetzinger.

In Groetzinger, the taxpayer, Groetzinger, after losing his job, had begun betting on greyhound dog races full time. 480 U.S. at 24, 107 S.Ct. 980. Groetzinger went to the racetrack six days a week, spending approximately 60-80 hours per week at the racetrack. Id. He had no other employment, regularly studied racing forms, programs, and other materials, and kept a detailed accounting of his wins and losses. Id. at 24-25, 107 S.Ct. 980. But despite all this effort, Groetzinger lost more than he won. Id. at 25, 107 S.Ct. 980. Under the law at that time, Groet-zinger was subject to the federal AMT and his losses were not deductible unless they were incurred as part of a trade or business. Id. The United States Tax Court held that Groetzinger’s gambling activity qualified as a trade or business, and the Seventh Circuit Court of Appeals affirmed the Tax Court’s decision. Id. at 26, 107 S.Ct. 980.

On appeal, the Supreme Court affirmed, holding that gambling can constitute a trade or business, even if the gambler/taxpayer does not make a profit. See id. at 33,107 S.Ct. 980. The Court stated that if a person “devotes his full-time activity to gambling, and it is his intended livelihood source, it would seem that basic concepts of fairness * * ⅜ demand that his activity be regarded as a trade or business.” Id. The Court then went on to say that resolution of the issue of whether the taxpayer is gambling as a trade or business “requires an examination of the facts in each case.” Id.' at 36,107 S.Ct. 980 (quoting Higgins v. Comm’r, 312 U.S. 212, 217, 61 S.Ct. 475, 85 L.Ed. 783 (1941)). The Court stated that “to be engaged in a trade or business, the taxpayer must be involved in the activity with continuity and regularity and that the taxpayer’s primary purpose for engaging in the activity must be for income or profit. A- sporadic activity, a hobby, or an amusement diversion does not qualify.” Id. at 35, 107 S.Ct. 980. Finally, the Court concluded that Groetzinger had met the trade or business standard. The Court said:

[I]f one’s gambling activity is pursued full time, in good faith, and with regularity, to the production of income for a livelihood, and is not a mere hobby, it is a trade or business within the meaning of the statutes with which we are here concerned. Respondent Groetzinger satisfied that test in 1978. Constant and large-scale effort on his part was made. Skill was required and was applied. He did what he did for a livelihood, though with a less-than-successful result. This was not a hobby or a passing fancy or an occasional bet for amusement.

Id. at 35-36,107 S.Ct. 980.

The main factors considered by the Supreme Court in Groetzinger were the regularity of Groetzinger’s gambling, the effort he exerted, the skill that he applied, and his intent to produce a livelihood via gambling. See id. While Busch’s slot machine gambling involved no provable skill, she did gamble 40-60 hours per week, which is with as much or more regularity than traditional employment requires. She also kept scrupulous records and read articles “on the computer” regarding the use of slot machines. Finally, her intent to make a profit via her gambling activity was acknowledged by the commissioner at the tax court hearing. In Groetzinger, the Court gave much weight to the time and effort distinction; the Court appears to have considered a hobby as something one is involved in part time or as a side activity. Under the Groetzinger factors, Busch’s gambling appears to qualify as a trade or business as she gambled full time, made attempts to improve her “skill” at using slot machines and to apply that skill, kept detailed, businesslike records of her winnings and losses, and engaged in the gambling activity intending to gain a profit and possibly a livelihood.

B. The IRS “activity engaged in for profit” factors

As mentioned above, the IRS has set forth a number of nonexclusive factors to be considered when determining whether a taxpayer’s activity constitutes a trade or business for tax purposes. See Treas. Reg. § 1.183 — 2(b). These factors include: (1) the manner in which the taxpayer carries on the activity (e.g., keeping records in a businesslike way); (2) the expertise of the taxpayer or his advisors; (3) the time and effort expended by the taxpayer in carrying on the activity; (4) the expectation that assets used in the activity may appreciate in value; (5) the success of the taxpayer in carrying on other similar or dissimilar activities; (6) the taxpayer’s history of income or losses with respect to the activity; (7) the amount of occasional profits, if any, which are earned; (8) the financial status of the taxpayer; and (9) elements of personal pleasure or recreation. Id. The IRS stresses that these factors are nonexclusive and that the ultimate determination of whether an activity qualifies as a trade or business for taxation purposes depends on the specific facts of the situation. Id. Like the criteria articulated in Groetzinger, the IRS factors are not binding on our court because they apply to the federal tax code, but they are still instructive because, as previously noted, the Minnesota tax code incorporates aspects of the federal tax code. See Minn. Stat. §§ 290.01, subd. 19, 290.091, subd. 2.

When applying the IRS factors, we are left with the clear impression that Busch’s case presents a close call; nevertheless, we believe that overall, the most relevant factors weigh in Busch’s favor. Some factors admittedly do not favor Busch. For example, the second factor — the expertise of the taxpayer or her advisors — weighs against Busch in that she openly admits that she is not an expert on how slot machines work. The fourth factor is the expectation that assets used in the activity may appreciate in value; this factor is not relevant because Busch did not acquire any assets in her gambling pursuits. The fifth factor is the success of the taxpayer in carrying on other similar or dissimilar activities. Busch had no reported success in any other gambling activities and acknowledged that she had not undertaken any. Under the sixth factor, the IRS also considers the taxpayer’s history of income or losses with respect to the activity. This factor weighs against Busch, as she not only did not make money, she lost considerable sums consistently for three years.

But at least four of the IRS factors favor Busch’s position, and we believe that these factors are the most applicable and meaningful to her case. For example, the first factor the IRS considers is the manner in which the taxpayer carries on the activity. Busch has scrupulously kept records and reported income, which suggests that her gambling was a trade or business. The third IRS factor is the time and effort expended by the taxpayer in carrying on the activity. Busch expended a significant amount of time on gambling, up to 60 hours per week. The seventh IRS factor is the amount of occasional profits, if any, which are earned. Busch did win several jackpots, which may have provided her with short-term profits. Under the eighth factor, the IRS considers the financial status of the taxpayer — whether the taxpayer has another job or substantial income from another source. Busch’s income came entirely from other sources, specifically her savings and retirement funds, but she had no occupation other than her claimed gambling occupation during the relevant tax years. This suggests that Busch intended to devote herself to gambling as a possible means of earning a living and was simply unsuccessful in making any money.

We conclude that overall, both the Groetzinger factors and the IRS factors narrowly support Busch’s contention that she engaged in gambling as a trade or business. While, as mentioned above, neither the Groetzinger factors nor the IRS factors áre binding on our court, they help to inform our decision here and support a conclusion that Busch’s gambling did constitute a trade or business for the purpose of computing her Minnesota tax liability.

C. Reasonable expectation of profit

The commissioner and the Minnesota Tax Court both appear to have based their conclusions that Busch’s gambling did not constitute a trade or business in large part on their determination that her expectation of profit was not reasonable. Slot machines are programmed for the gambler to lose. Over time and despite Busch’s assertion that she could tell which machines would pay out, she never made a profit. Indeed, she lost money steadily for three years. Under these circumstances, it is fair for the commissioner to assert that Busch’s belief that she could make a profit was unreasonable.

On this point we find the IRS regulations informative and helpful. In its regulations regarding. “Activities not engaged in for profit,” wherein guidance on determining whether an activity qualifies as a trade or business is given, the IRS states: “Although a reasonable expectation of profit is not required, the facts and circumstances must indicate that the taxpayer entered into the activity, or continued the activity, with the objective of making a profit.” Treas. Reg. § 1.183 — 2(a) (1972). Several federal circuit courts of appeals that have addressed this issue are in agreement with the IRS that while it is absolutely necessary for the person engaging in the claimed trade or business to have engaged in the activity with the intent to earn a profit, that expectation of earning a profit need not be reasonable.

The Minnesota Tax Court reached a different conclusion when it held that Busch must have had a reasonable expectation of profit from her gambling activity for the activity to qualify as a trade or business. When interpreting Minnesota tax law, we are not bound by the federal courts’ determination of federal tax law. But we disagree with the tax court’s conclusion that a reasonable expectation of profit is required for a given activity to qualify as a trade or business. We conclude that it is often too difficult and uncertain for courts to decide, from the safe position of hindsight, which business activities had a reasonable expectation of profit and which did not. Furthermore, if trade or business tax incentives hinged upon a court’s determination of whether an activity had a “realistic” expectation of profit, valuable innovation in our entrepreneurial society could be chilled. We conclude that the taxpayer’s expectation of profit from a given activity need not always be reasonable for the activity to qualify as a trade or business.

As the above discussion shows, the determination of whether an activity constitutes a trade or business is a case-by-case, fact-based inquiry and requires consideration of many factors. While the determination may be difficult, we believe that in this case, the commissioner’s con-elusion was not consistent with the purpose of the Minnesota AMT law. Having considered the. Groetzinger factors, the IRS factors, our discussion of the reasonableness of Busch’s expectation of profit, and the specific facts of this case, we conclude that Busch’s gambling did constitute a trade or business for the purposes of computing her Minnesota tax liability. Accordingly, we reverse the decision of the tax court.

Reversed.

      . Busch refers to herself as having retired in 1998 "in one sense,” but contends that this was not actual retirement because she began professionally gambling at that time.

      . "Rolling” refers to the "roll” of the columns on the slot machine. According to Busch, slot machine players look for patterns and tendencies in the "roll” of the columns of given machines and attempt to predict which machines will pay out more jackpots on this basis. In her testimony, Busch pointed to her many jackpots as evidence that she had insight into which machines would pay out. However, slot machines play on these emotions. See Alan Krigman, If Pavlov Played the Slots, He Wouldn’t Have Needed a Dog, Casino City Times (April 12, 2004), at 2. For instance, the idea that a machine is rolling more favorably may be based on the number of times a machine almost wins. But almost wins are a powerful reinforcement function of slot machines which encourage gamblers, as noted in Kligman's article. Id. at 2. "Numerous small wins are augmented in maintaining behavior by secondary conditioning mechanisms, especially during periods when little or no return is obtained. In slot machines, the most important of these is the relative frequency at which players think they 'almost' win.” Id. Another tactic is to show "high value” jackpot symbols on the display, but not on the payout line. Id. at 3.
      Busch's testimony is an example of slot machine psychology in action: despite losing substantial amounts of money every year on the slot machines, she testified that she believed she had a knack for predicting payouts and believed that she could make money on the slot machines.

      .Busch claims that she was "advised” by the Internal Revenue Service to deduct her 2001 losses on a Schedule C. There is no record of such advice from the IRS.

      . Busch also claims that the IRS "approved” her placement of gambling losses on a Schedule C form on her 2000 (amended) and 2001 returns. It appears, however, that the IRS sent a letter acknowledging her amendments to those tax returns.

      . The court in Specktor cited a statute regarding the commissioner's powers which has since been repealed. Specktor, 308 N.W.2d at 808. The commissioner’s power to review returns is now noted in Minn.Stat. § 289A.35 (2004).

      . We also note that, for the taxation purposes of the federal government in this case, whether Busch’s gambling constituted a business is not very important. As will be discussed in section II, under both the regular federal tax formulas and the federal AMT, gambling losses are deductible to the extent of winnings. 26 U.S.C. §§ 62, 55, 165(d) (2000).

      .Minnesota incorporates the federal AMT calculation method, but changes it somewhat. Minn.Stat. § 290.091, subd 2. Minnesota starts by stating that to calculate the Minnesota AMT, the taxpayer first calculates his federal alternative minimum taxable income, then adds back the itemized deductions the federal AMT authorizes except for a few specifically enumerated itemized deductions. Id. at (1)-(2). The effect of this approach is to use the federal AMT laws for calculating the gross income subject to the Minnesota AMT, but to apply Minnesota’s own curtailed list of itemized deductions instead of the broader federal list. Minnesota retains the federal government's nonitemized deductions, such as the trade or business deduction. See id.

      . Trade or business deductions are "above the line" deductions, not itemized deductions. See 26 U.S.C. § 62(a). As such, they are not part of the federal itemized deductions that are "added back” to the federal alternative minimum taxable income in calculating the Minnesota alternative minimum taxable income. See Minn.Stat. § 290.091, subd. 2(a).

      . Federal courts have held that gambling losses, even if incurred in the trade or business of gambling, may be deducted only to the extent of gambling winnings. See, e.g., Boyd v. United States, 762 F.2d 1369, 1372-73 (9th Cir.1985). Busch has not claimed that her gambling losses over and above the amount of her winnings may be deducted, so that issue is not before us in this case.

      . Federal cases have not dismissed slot machine gambling out of hand as incapable of being a trade or business, though we can find no cases wherein a taxpayer was actually found to have engaged in the trade or business of slot machine gambling and the cases which have involved slot machine gambling are unpublished. Cf. Panages v. Comm’r, No. 16154-03S, T.C. Summ. Op.2005-3, 2005 WL 15138 (U.S.Tax Ct. Jan.4, 2005) (finding that a taxpayer who gambled after work was not in the trade or business of gambling); Neymeyer v. Comm'r, No. 12161-00S, T.C. Summ. Op.2002-120, 2002 WL 31163665 (U.S.Tax Ct. Sept. 18, 2002) (finding that a taxpayer who gambled infrequently was not in the trade or business of gambling).

      . Specifically, the IRS regulations state:
      In determining whether an activity is engaged in for profit, all facts and circumstances with respect to the activity are to be taken into account. No one factor is determinative in making this determination. In addition, it is not intended that only the factors described in this paragraph are to be taken into account in making the determination, or that a determination is to be made on the basis that the number of factors (whether or not listed in this paragraph) indicating a lack of profit objective exceeds the number of factors indicating a profit objective, or vice versa.
      Treas. Reg. § 1.183-2(b).

      . The ninth factor is whether the activity involves elements of personal pleasure or recreation. Busch testified that her gambling was "just plain hard work.” But the record is unclear whether or to what degree Busch enjoyed gambling. Therefore, the ninth factor does not appear to be probative on the issue of whether Busch's gambling constituted a trade or business.

      . See, e.g., Bryant v. Comm’r, 928 F.2d 745, 750 (6th Cir.1991) (stating that "the court should not engage in an independent inquiry of whether the [business] was likely to be profitable” and the court should "[keep] in mind that a small chance of making a large profit can support a profit motive”); Evans v. Comm’r, 908 F.2d 369, 373 (8th Cir.1990) ("[W]hile a reasonable expectation of profit is not required, a bona fide objective of realizing a profit must exist.”).

      . We note that we stated that tax statutes must be strictly construed against the taxing authority and in favor of the taxpayer when ambiguous. Benda v. Girard, 592 N.W.2d 452, 455 (Minn.1999). In a few cases, we have also articulated an exception to this general rule in the case of tax deductions. See, e.g., National Can Corp. v. Comm’r of Revenue, 437 N.W.2d 416, 418 (Minn.1989). But we have said that strict construction of tax deduction or exemption statutes should not invariably be applied when the reason for invoking the rule is not present. Sevcik v. Comm’r of Taxation, 257 Minn. 92, 101-02, 100 N.W.2d 678, 685-86 (1959); see also Abex Corp. v. Comm’r of Taxation, 295 Minn. 445, 468-69, 207 N.W.2d 37, 50 (1973) (Kelly, J., dissenting). Here, the purpose of the trade or business tax deduction is to reward and encourage business ventures. This purpose will be hindered and innovation discouraged if we were to put the burden on the taxpayer of proving that her activity qualifies as a trade or business. Therefore, we decline to apply the exception to the general rule that tax statutes must be strictly construed in favor of the taxpayer.