source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Kou MOUA, Appellant.
    No. C6-03-359.
    Supreme Court of Minnesota.
    April 22, 2004.

      Marie Wolf, State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Va Meng Yang was shot to death on September 26, 2001. An indictment was filed on October 31, 2001, charging appellant Kou Moua with four counts of first-degree murder in Va Meng Yang’s death: (1) first-degree murder (premeditated) in violation of Minn.Stat. § 609.185, subd. (a)(1) (2000) (Count I); (2) first-degree murder (drive-by shooting) in violation of Minn.Stat. § 609.185, subd. (a)(3) (2000) (Count II); (3) first-degree murder (premeditated) for the benefit of a gang in violation of Minn.Stat. §§ 609.185, subd. (a)(1) and 609.229, subds. 2, 3(a), and 4(a) (2000) (Count III); and (4) first-degree murder (drive-by shooting) for the benefit of a gang in violation of MinmStat. §§ 609.185, subd. (a)(3) and 609.229, subds. 2, 3(a), and 4(a) (2000) (Count IV). Following a mistrial, on November 19, 2002, a jury found appellant Moua guilty as to Counts I and II, and acquitted appellant as to Counts III and IV. On November 22, 2002, appellant was sentenced to an executed life term on Count I’s premeditated first-degree murder conviction.

The relevant facts giving rise to Va Meng Yang’s murder are as follows. In August of 2001, approximately one month before his murder, 23-year-old Va moved to Minnesota from California. For most of the month he lived with a sibling, but about four days before his death he went to stay with his cousin, Mary Vang. Mary lived in the basement of a house located at 35 Jessamine in St. Paul.

Va, an alleged member of an Asian gang called the Oriental Loks (OLs), began forging checks, including Kentucky Fried Chicken checks, and asking teenage boys from the Mount Airy Boys (MABs) to cash the checks for him. One of the MABs, Paul Her, became involved in check forgery with Va.

Several of the facts concerning what preceded the murder came from appellant’s brother, Tou Bee Moua. During the investigation of Va’s murder, Tou Bee was incarcerated, at which time he spoke with St. Paul police officer Sergeant Richard Straka, who was assigned to the case. Tou Bee told Sergeant Straka that earlier on the day of the shooting, members of the MABs were upset with Va and crying because Her was “locked up” as a result of the check forgery. According to Tou Bee, prior to the shooting Va acknowledged that members of the MABs were angry and blamed Va for the incarceration of Her.

While the statements and testimony given by several witnesses were inconsistent and contradictory throughout the case below, some facts leading up to the shooting are undisputed. On the night of September 26, 2001, several members of the MABs, including appellant’s two brothers (Tou Bee Moua and Kong Meng Moua), Tommy Yang, Ge Vang, and Houa Vang, gathered at the Mount Airy Boys and Girls Club (the “Club”) to celebrate a birthday. Also present at the gathering were non-MABs appellant, Zoua Vang and the victim Va.

Around 9:45 p.m., Va called his cousin Mary on her cell phone and asked Mary to drive to the Club to “pick him up.” Mary testified that Va sounded anxious and was speaking very fast throughout the conversation. Mary told Va that she would “pick him up” after she picked up her husband from work. When Mary refused to stop at the Club first, Va told her he would find another ride home.

Va then approached Zoua and repeatedly asked her for a ride home. At first Zoua refused to bring him home, but she finally agreed and Va waited by her car, a maroon Toyota Camry. Before meeting Va at her car, Zoua was approached by appellant, who was her friend, and he also asked Zoua for a ride home — a request she granted. With both Va and appellant as passengers, Zoua first drove Va to his cousin Mary’s house at 35 Jessamine. Zoua testified that appellant was sitting in the front passenger seat, and Va was sitting directly behind her in the back seat. She testified that there was normal conversation in the car, -with no hostility or tension. Zoua parked in the middle of the street in front of the house. Va shook hands with appellant and Zoua, said goodbye, and got out of the car. Moments later, appellant also exited the car. Zoua testified that she saw appellant and Va shake hands outside of the car.

After the handshake between appellant and Va, exactly what ensued is unclear. In her statements to the police and to the grand jury, Zoua testified that, although she was not paying attention to appellant and Va until she heard gunshots, appellant repeatedly shot Va in the arm and back as he turned and walked away toward the house at 35 Jessamine. However, at trial Zoua testified that when she looked back after hearing the gunshots, Va was “coming at” appellant.

At trial, appellant provided his own account' of the events directly preceding the shooting. Appellant testified that after he shook hands with Va inside the car, Va exited. Needing to urinate, appellant also exited the car. Once there, appellant went to the back-side of the car. Va then asked him to distribute forged Kentucky Fried Chicken checks to members of the MABs and have them cash the checks. When appellant told Va that he did not want to “get into that stuff,” Va responded, “[Y]ou can’t be a puss.” Va allegedly also told appellant that Va was going to “jump” appellant and essentially “beat him” out of the gang. Appellant testified that during this exchange, Va was “right in [his] face,” moved toward him, and that appellant felt he was trapped between Va and the car. As a consequence of Va’s threatening stance, and the fact that Va was considerably larger than appellant — 280 pounds to appellant’s 140 pounds — appellant testified that he pulled out his .32 caliber gun and shot Va.

When appellant reentered the car, Zoua said to him, “What the f* * * did you do that for?” According to Zoua, appellant told her to “shut the f* * * up” and to not say anything to anybody. At appellant’s request, Zoua then drove appellant back to the Club and dropped him off. Appellant testified that he walked home, got his mother’s ear, drove to the Lafayette Bridge, and threw the gun into the river below.

Neighbors witnessed the immediate aftermath of the shooting. At approximately 10:00 on the night of the shooting, the neighbor who lived across the street from 35 Jessamine heard at least three gunshots and immediately looked out of his bedroom window overlooking Jessamine. He observed a dark-colored car in the middle of the street with the front passenger-side door open, and a “stocky” man stumbling away from the car toward the house located at 35 Jessamine. He further observed the car leaving in a hurry. A second neighbor testified that after hearing gunshots in rapid succession he saw an early-90s model, maroon Toyota Camry driving away with two people in the front seat and one person in the back seat. He believed the driver was a young female and that both the person in the front passenger seat and the person in the back seat were male. A third neighbor also testified that he heard the gunshots in rapid succession.

As the neighbors gathered to assist the injured man, a resident of 35 Jessamine called 911 to request an ambulance. Paramedics were dispatched and arrived within four minutes of being called. One paramedic testified that when she arrived at the scene of the crime she found a responsive, Asian male in his early 20s who had been shot four times. The gunshot wounds were found at the top of Va’s left shoulder, his right humerus, right scapula, and right buttock. The paramedics placed Va in the ambulance, administered oxygen and rushed him to Regions Hospital. At some point en route the paramedics were able to identify the victim as Va Meng Yang, with a birth date of May 2, 1978.

The trauma team at Regions Hospital, comprised of multiple physicians, was activated prior to Va’s arrival. Dr. Randall Hofbauer, a member of the trauma team, was in charge of “airway,” which involves both the initial assessment and management of airway issues. According to Dr. Hofbaiier, when Va arrived at the hospital he was in shock, hypotensive, tachycardic, was in respiratory distress, and had multiple’ gunshot wounds. The trauma team decided that Va needed to go to the operating room for management of the bleeding from his wounds. At that time, the trauma team decided to control Va’s airway through endotrachael intubation.

Dr. Hofbauer was standing near Va’s head throughout his entire treatment and assessment preceding Va’s move to the operating room, and testified that Va was responsive to questions regarding medical allergies and medical history. When Dr. Hofbauer told Va he was going to give him medication to sedate him and put a breathing tube in to help him breathe, Va said, “The people who shot me was ah, ah, ah, Kou, um, Kou Moua.” Va then repeated himself, and also said another name, which Dr. Hofbauer could not recall. Va was pronounced dead in the operating room at 1:06 a.m. on September 27, 2001.

Because several of the witnesses changed their testimony, the state relied heavily upon medical evidence in attempting to prove Va was not the aggressor in the events leading up to the shooting. The state called Ramsey County and Washington County medical examiner Dr. Michael McGee, a specialist in pathology and forensic pathology. Dr. McGee testified that the evidence supported the state’s theory of the case that after appellant and Va shook hands, Va turned to walk away, and appellant began shooting Va and continued to do so as Va stumbled to the ground. Dr. McGee based his opinion on the location of the wounds, the angle of the wound tracks, which went from back to front, and up to down, and the close range of the shooting. He believed the wounds were consistent with a scenario where Va was exposing or presenting first his side and then his back to the firearm; that is, after shaking hands with appellant, Va turned and exposed the top of the shoulder as well as his back to appellant. In such a scenario, the shot to Va’s upper right arm would have been the first wound received as Va turned, and the two wounds to the back area would have been received in an indeterminate order, with the final shot being delivered to Va’s buttock region.

On cross-examination, Dr. McGee acknowledged that the wounds were, also consistent with a scenario in which Va was “coming at” appellant when appellant began shooting. However, in order for this to be consistent with the physical evidence, Dr. McGee elaborated that Va would-have had to have approached appellant very low to the ground, in what Dr. McGee described as a “one-armed push-up * * * a matter of inches from the ground.” From that position, it would be plausible that the gunshot yround to the upper shoulder region was the first shot.

To account for the remaining gunshot wounds, Dr. McGee testified that Va, at 5 feet, 7 inches in height and 280 pounds, had to spin from this low, forward-facing position to a position with his back facing appellant. Dr. McGee further stated that if Va were charging at appellant in a position that low to the ground, the-first shot from a .32 caliber gun would not spin the victim around on its own force; in fact, it would most likely make the victim land at the shooter’s feet. Consequently, to account for the shots to-the backside, Va had to spin around on his own strength.

In addition to the medical evidence, the jury heard from several key witnesses initially arrested as part of the investigation — Zoua, the driver of the vehicle, and appellant’s two brothers, Tou Bee and Kong Meng. These three witnesses’ statements and testimony evolved and changed several times during the course, of the investigation and throughout the trial. The changes were significant.

In her statements to the police and in her grand jury testimony, Zoua stated that Kong Meng, appellant’s youngest brother, was in the car and was shocked when he witnessed the shooting. Zoua also made statements and -testified that Va had turned away from appellant when appellant took his gun out and shot Va in the back. Zoua later denied all such statements at trial, stating that Kong Meng was not in the car and that Va was “coming at” appellant at the time of the shooting.

Appellant’s brothers also changed their statements and testimony. Tou Bee made statements to the police officers that members of the MABs were angry at Va because Paul Her had been incarcerated. In his comments to Sergeant Straka and in his grand jury testimony, Tou Bee said that the MABs had a “.32 revolver” and that appellant was the last person to have the gun. Tou Bee also admitted that he told appellant’s girlfriend, Pajtshiab Ly, to make up an alibi for appellant on the night of the murder. Tou Bee retracted these statements at trial. Similar to the initial statements and testimony of his brother, Kong Meng also told police and testified to the grand jury that he had been in Zoua’s ear with Va and appellant on the night of the shooting, but later submitted an affidavit and testified at trial that he had not been in Zoua’s car that same evening.

Zoua, Kong Meng, and Tou Bee made statements in affidavits and testified at trial that they knew Va as “K.B.,” which stood for “Killer Brian,” and that Va had a self-created reputation for violence and owning a gun. They had not previously made such statements, either to the police or to the grand jury. In explaining why their statements changed, all of the witnesses maintained that their original statements were “lies” resulting from police coercion. Tou Bee also stated that he lied because he wanted to get out of custody and get his mother’s car back, which had been impounded during the investigation.

Audio tapes of the police interviews of Zoua and Tou Bee were played at trial. While the officers implied to the witnesses that the officers already knew many of the facts of the case, they repeatedly asked the witnesses to simply tell the truth in their own words. The officers allowed the witnesses to take breaks when they got emotional, offered to get Zoua a soda, and generally encouraged the witnesses to “do the right thing.” They also assured Zoua that she would be released no matter what her answers were, but encouraged her to be honest nonetheless.

During the first trial, the state made a motion requesting that the witnesses’ statements to police officers be admissible as impeachment evidence and as corroboration of the grand jury testimony. The district court granted the state’s motion as to impeachment, but indicated doubt that the statements would be admissible substantively.

At a pretrial hearing before the second trial, the district court indicated that it did not intend to re-open any issues already determined by the judge at the first trial. Later, during the trial, when the audio tapes were played for the jury, appellant’s attorney asked the court for a contemporaneous impeachment instruction because he feared jurors would not be able to distinguish between testimony to be used for impeachment purposes only and substantive testimony. The court denied the motion, noting that at the end of the trial it “might have to amplify the standard JIG.” At the conclusion of the trial, however, the court did not do so but instead instructed the jury that evidence consisted of “sworn testimony of the witnesses both on direct examination and on cross-examination regardless of which side called the witness.” The court also gave the jury the standard instruction that evidence of a prior inconsistent statement “should be considered only to test the believability and weight of the witness’s testimony.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.15(3) (4th ed.1999).

Appellant now appeals, contending that the district court erred in admitting the audiotaped police interviews as impeachment evidence, and that the evidence as a whole was insufficient as a matter of law to prove beyond a reasonable doubt that appellant was guilty of first-degree murder.

I.

We are first presented with the question of whether the district court erred in admitting audio tapes of the police interviews as impeachment evidence. Rulings on evidentiary matters rest within the sound discretion of the district court, and we will not reverse a district court’s evi-dentiary ruling absent a clear abuse of discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn.1997) (citing State v. Ture, 353 N.W.2d 502, 515 (Minn.1984)). Reversal of an evidentiary ruling by the district court requires the appellant to prove “both that the district court abused its discretion in admitting the evidence and that the appellant was thereby prejudiced.” Id. at 907 (citing State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994)). We will only reverse the district court’s ruling “when the error substantially influences the jury’s decision.” Id.

Appellant argues that the jury was presented with an overwhelming amount of impeachment evidence in the form of audiotaped statements to police officers, and that because the impeachment evidence was sb extensive, the audio tapes were, in effect, admitted substantively, or for their truth. Inadmissible “hearsay” is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). If a statement is offered to show something other than the truth of the matter asserted, for example to impeach a witness or to rebut a suggestion of police misconduct, it is not hearsay. See State v. McDonough, 631 N.W.2d 373, 388 (Minn.2001) (citing State v. Martin, 614 N.W.2d 214, 224 (Minn.2000); Minn. R. Evid. 613(b)); Hennepin County v. Perry, 561 N.W.2d 889, 894 (Minn.1997) (holding that a statement to police officers was not hearsay when it was elicited to rebut defense counsel’s suggestion that police officers lied to defendant during his interview); State v. Hanley, 363 N.W.2d 735, 740 (Minn.1985) (concluding declarants statement was not hearsay because it was not offered to prove the truth of the matter asserted but rather to show that he lied to the police). As an initial matter, we hold that the audiotaped statements to police officers were not, in effect, admitted substantively.

When a prior inconsistent statement is admitted for- impeachment purposes, the district court is often requested to instruct the jury that the statement is not evidence being admitted for the truth of the matter asserted and should not be considered in reaching the verdict. McDonough, 631 N.W.2d at 388 (citing State v. Thames, 599 N.W.2d 122, 126 (Minn.1999)). The fact that the jury hears two versions of “the facts” and chooses to reject the in-court testimony of a witness in favor of properly admitted out-of-court statements is not of concern to us as long as the court ensures that the evidence’s relevance is not outweighed by unfair prejudice. Minn. R. Evid. 403; see also State v. Ortlepp, 363 N.W.2d 39, 43 (Minn.1985). Judge Learned Hand addressed this very issue in DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.1925), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925) (cited in Ortlepp, 363 N.W.2d at 44, n. 1), in which he stated:

The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury [sic] see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.

Appellant’s central contention is that even if the court deems the prior inconsistent statements as impeachment evidence, and not hearsay evidence, the statements should still be disallowed. In appellant’s view, the state presented the jury with a “deluge of impeachment evidence, so intertwined with other evidence that the most well-meaning juror in the world could not separate what was useable evidence from what was not* *

The amount of impeachment evidence was admittedly extensive; however, it is obvious that the reason there was such overwhelming impeachment evidence is because the witnesses frequently changed their stories. It would be imprudent to deem extensive impeachment evidence as “prejudicial” when the evidence is a result of witnesses’ own actions in repeatedly changing their stories or versions of the facts. Such a result would reward less-than-truthful witnesses and pervert the truth-seeking process. Here, taken together, the evidence admitted presented the jury with a complete picture and allowed the jury to determine witnesses’ credibility against a backdrop of what they actually said throughout the proceedings and not just on the day of the trial. Additionally, as noted by the state, the statements made to police officers did not contain any further prejudicial evidence because such evidence was already presented to the jury as substantive evidence in the form of grand jury testimony.

In addition to the volume of impeachment evidence admitted by the district court, appellant also contends that the court should have granted his request to have a contemporaneous limiting instruction given to the jury at the time the impeachment evidence was admitted. In his view, the lack of such an instruction prejudiced him. While the district court did deny the request for the contemporaneous jury instruction, it gave the standard jury instruction at the conclusion of the trial that evidence of a prior inconsistent statement should be considered only to test the believability and weight of a witness’s testimony. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.15(3) (4th ed.1999). While we do not disagree that a contemporaneous instruction may have been helpful to the jurors, there is no requirement in the law that such an instruction be given when a large amount of impeachment evidence is introduced. Moreover, the instruction to the jury at the conclusion of trial was beneficial to appellant — -the court instructed the jury that all prior inconsistent statements were only admissible as to the believability of the witnesses, and did not tell the jurors that the grand jury testimony could be considered substantively. Consequently, it is unlikely that the jurors were confused about which prior inconsistent statements could be considered substantively and which could be considered to impeach, as they were instructed that all prior inconsistent statements were to be considered for impeachment purposes only.

Accordingly, we hold that the district court did not abuse its discretion in admitting the witnesses’ statements to police officers as impeachment evidence. The evidence was properly admitted under the rules of evidence and its relevance and probative value clearly outweighed any prejudice to appellant.

II.

Next, we must address the issue of whether the evidence was insufficient as a matter of law to prove beyond a reasonable doubt that appellant was guilty of premeditated first-degree murder. When reviewing the sufficiency of evidence in a criminal case, we “are limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the charged offense.” State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof of a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged. State v. McCullum, 289 N.W.2d 89, 91 (Minn.1979) (quoting State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965)). We consider the evidence in the light most favorable to the verdict and will assume that the jury disbelieved any testimony in conflict with the result it reached. State v. Oevering, 268 N.W.2d 68, 71 (Minn.1978).

For the purposes of murder in the first degree, Minnesota Statutes define premeditation to mean to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission. MinmStat. 609.18 (2002). Premeditation requires a period of time to pass between the formation of the intent to kill and the execution of the plan. State v. Moore, 481 N.W.2d 355, 360 (Minn.1992). We have long recognized that premeditation requires no specific period of deliberation, nor extensive planning. State v. Gowdy, 262 Minn. 70, 75, 113 N.W.2d 578, 581 (1962); State v. Richardson, 393 N.W.2d 657, 664 (Minn.1986). However, the state must prove that some appreciable period of time passed after the defendant formed the intent to kill, during which the statutorily required consideration, planning, preparation, or determination took place. See MinmStat. 609.18 (2002).

Premeditation is defined as “a state of mind generally proved circumstantially by drawing inferences from a defendant’s words and actions in light of the totality of the circumstances.” State v. Brocks, 587 N.W.2d 37, 42 (Minn.1998) (citing State v. Andrews, 388 N.W.2d 723, 728 (Minn.1986)). Multiple gunshot wounds and the brutality of the killing may be evidence of premeditation. Id.; State v. Cooper, 561 N.W.2d 175, 180 (Minn.1997). The totality of circumstances includes events after the death as well as before. Cooper, 561 N.W.2d at 180 (citing Andrews, 388 N.W.2d at 728-729). Circumstantial evidence used to form premeditation is entitled to the same weight as other evidence and will be sufficient to sustain a conviction as long as the circumstances proved are consistent with a hypothesis of guilt and inconsistent with any rational or reasonable hypothesis other than guilt. See State v. Rhodes, 657 N.W.2d 823, 840 (Minn.2003).

Our court has recognized three categories of evidence as relevant when inferring premeditation: planning activity, motive and the nature of the killing. State v. Quick, 659 N.W.2d 701, 710-11 (Minn.2003) (citing Moore, 481 N.W.2d at 361). The first category, “planning activity,” concerns itself with “facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing * * Moore, 481 N.W.2d at 361 (quoting Wayne R. Lafave & Austin W. Scott, Jr., Handbook on Criminal Law § 73 at 564-65 (1972)). Planning activity includes “prior possession of the murder weapon by the defendant, surreptitious approach of the victim, or taking the victim to a place where others are unlikely to intrude.” Id.; see, e.g., State v. Voorhees, 596 N.W.2d 241, 247-48, 253 (Minn.1999) (stating that bringing rifle to estranged wife’s place of work and quietly approaching her when she went outside to smoke supported inference of premeditation); Moore, 481 N.W.2d at 361-62 (concluding that removing shotgun from normal storage under the bed, loading it, and placing it on the shelf in the living room before the killing showed planning); State v. Flores, 418 N.W.2d 150, 158 (Minn.1988) (stating that retrieving gun between altercation with victim and shooting indicated planning).

In this case, there is no doubt that appellant procured a weapon prior to the shooting. Given the conflicting testimony of several witnesses and appellant, the state argues there are two different theories from which the jury could draw this conclusion. According to the first theory, appellant’s girlfriend, Pajtshiab Ly, gave appellant a ride home at about 9:30 p.m. to get his mother’s car to run errands. In keeping with this theory, appellant did not go home just to get his car, but also to procure a weapon, and then returned to the Club with a plan to kill Va. According to the state’s second theory, and appellant’s own testimony, appellant kept the gun in a wooded area by the Club and would retrieve it every time he was there, including the day in question.

Appellant argues that basing premeditation on the simple act of possession will sweep in much law-abiding behavior, and that therefore the second theory cannot stand. Specifically, he points to Minnesota’s “conceal and carry” law, which allows individuals to possess firearms, and argues that such legal behavior should not be equated with premeditation.

Appellant’s argument is unpersuasive. At trial, in addition to the evidence of appellant’s possession of the gun, the jury heard evidence that appellant retrieved the gun from his home or from its hiding place at the Club, carried the gun, and that appellant approached Zoua for a ride after Va did, left his passenger car door open as he exited, shot Va, jumped back into the car and asked Zoua to take him away from the scene of the murder.

The second category of evidence relevant to show premeditation is “facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred.” Moore, 481 N.W.2d at 361 (quoting Wayne R. Lafave & Austin W. Scott, Jr., Handbook on Criminal Lato § 73 at 564-65 (1972)). Motive evidence includes prior threats by the defendant to injure the victim, plans or desires of the defendant that would have been facilitated by the victim’s death, and prior conduct by the victim known to have angered the defendant. Id; see, e.g., State v. Lodermeier, 539 N.W.2d 396, 398 (Minn.1995) (stating that arguing with the victim the night before the killing, the deterioration of the defendant and victim’s relationship, and being angry with victim indicate premeditation). “While proof of a motive is not a necessary element of premeditated murder, presence of a motive strengthens a finding that defendant deliberated over his actions and weakens the argument that the killing was spontaneous.” Moore, 481 N.W.2d at 362.

On the night of the shooting, Va called his cousin Mary with an anxious tone, and asked her to come to get him. Further, as noted by the state, Va was in possession of fraudulent checks, as well as a list of names that included appellant and appellant’s friend, Paul Her. Since Her had been taken to jail the previous day and members of the MABs allegedly had been upset with Va as a result, the jury may have believed that appellant was retaliating against Va for getting his friend into trouble. Finally, the fact that Va asked appellant to involve his other friends in the check forgery scheme immediately prior to the shooting, as testified to by appellant, may indicate that the conversation angered appellant further.

The third category of evidence suggesting premeditation is “facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.” Moore, 481 N.W.2d at 361 (quoting Wayne R. Lafave & Austin W. Scott, Jr., Handbook on Criminal Law § 73 at 564-65 (1972)). In this category, we must examine the manner of the killing, usually by analyzing physical evidence. Id. We have recognized as relevant to this category of evidence the number of times the defendant used the weapon or the number of wounds inflicted and the period of time between infliction of the wounds. See, e.g., Lodermeier, 539 N.W.2d at 398; Cooper, 561 N.W.2d at 179.

As evidence of the premeditated “nature of the killing,” the state points to the three wounds located on Va’s back. Two of the wounds indicated that the shots came from close range and created steeply downward angled wound tracks. We have recognized that the placement of gunshot wounds can be indicators of premeditation. Lodermeier, 539 N.W.2d at 398 (stating that there was an indication of premeditation where two of the three shots inflicted fatal wounds, and both fatal wounds resulted from the gun having been fired at close range). Further, the state relies on Dr. McGee’s testimony that given the location of the wounds, the wound tracks, and the rapid sequence of shots, the most reasonable explanation for the sequence of events was that Va was shot as he was turning and walking away from appellant, and falling to the ground after the initial shot. See Cooper, 561 N.W.2d at 180 (holding that the fact that a victim was about to leave after an exchange of just a few words and was then shot while moving away from the shooter was an indication of premeditation).

In addition to the direct testimony, an analysis of the totality of the circumstances suggests even more evidence of premeditation. Appellant shot Va multiple times at an extremely close range, and according to the physical evidence, did not stop shooting even when Va fell. Appellant then left the scene of the crime quickly after the shooting and told Zoua not to tell anyone else what happened. The fact that appellant was more concerned with escape than with helping the victim, and that appellant appeared to have a plan of escape, may be used to infer premeditation. Cooper, 561 N.W.2d at 180; Flores, 418 N.W.2d at 158. Finally, appellant destroyed evidence of the crime by throwing the gun into a river after the shooting. Flores, 418 N.W.2d at 158 (stating that disposal of a gun after a shooting supports the inference that appellant was capable of premeditation at the time of the shooting).

Viewing the evidence in a light most favorable to the verdict, and acknowledging that the jury can choose to disbelieve evidence presented by appellant, the jury could reasonably conclude that premeditation was proven. While appellant and his witnesses offered a different fact scenario of what occurred, it was within the purview of the jury to evaluate the testimony and determine what witnesses were believable. We therefore hold the evidence is sufficient as a matter of law to prove beyond a reasonable doubt that appellant was guilty of premeditated first-degree murder.

Affirmed.

      . Several individuals will be referred to by their first names throughout this opinion to avoid confusion with the similar surnames of other witnesses.

      . There was testimony at trial, although disputed, that the “Mount Airy Boys” is a gang made up of teenage boys from the Mount Airy housing projects and surrounding neighborhood who, among other things, meet at the Mount Aiiy Boys and Girls Club and play soccer together.

      . Appellant testified that he is a member of the OL gang.

      . Zoua also gave conflicting statements and testimony that appellant’s youngest brother, Kong Meng, was — and was not — in the back seat of the car.

      . This incident and the entire assessment and treatment of Va by the trauma team at Regions Hospital was videotaped and played for the jury. The tape also shows Va identifying someone with the name "Vang.”

      . Zoua testified for the prosecution at trial that Kong Meng was not in the- car; however, when she was later called to the stand during the trial as a defense witness, she admitted that Kong Meng was in the car and that her previous testimony had been an attempt to protect him because he was young. Other witnesses also testified to seeing a third person sitting in the back seat of the car as it left the scene of.the shooting.

      . Initially, appellant and the witnesses were represented by counsel, who later withdrew from the case. A second attorney was appointed to represent the appellant. The first trial, however, ended in a mistrial when the judge refused to make a record requested by defense counsel, and counsel walked out of the courtroom in front of the jury.

      . Appellant concedes that the evidence of statements made by Zoua, Kong Meng, and Tou Bee in front of the grand jury is admissible substantively under Minn. R. Evid. 801(d)(1)(A) (2002) and State v. Amos, 658 N.W.2d 201 (Minn.2003).

      . Appellant contends that the admission of this evidence was similar to that in State v. Dexter, 269 N.W.2d 721 (Minn.1978), wherein the court held evidence of a prior inconsistent statement inadmissible because the prosecution merely sought to present, in the guise of impeachment, evidence which was otherwise not admissible. Such is not the case here. Here, many of the prior inconsistent statements were statements made to the grand jury and therefore admissible substantively. The prior inconsistent statements made to police were in large part duplications of the grand jury testimony and were offered to impeach the witnesses’ testimony on the stand.

      . Appellant also challenges the sufficiency of evidence supporting his conviction for drive-by shooting first-degree murder. Because appellant was never adjudicated guilty of the drive-by shooting first-degree murder and because we hold the evidence sufficient to support a conviction of premeditated first-degree murder, it is unnecessary to address this issue.


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Steven Allen BENNIEFIELD, Appellant.
    No. C1-02-1991.
    Supreme Court of Minnesota.
    April 22, 2004.

      John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant was convicted of third-degree possession of a controlled substance within a school zone. He argues that punishing possession within a school zone more harshly than possession outside a school zone violates the equal protection guaranty of the Minnesota Constitution. Alternatively, he argues that a conviction of this crime requires proof that he either knew he was in a school zone or intended to commit the crime in a school zone. Because there is a rational basis to enhance the crime where possession occurs within a school zone, and the plain language of the statute does not impose a mens rea requirement on the location element of the crime, we affirm.

On December 17, 2001, at approximately 11:00 p.m., police officer John Fishbauger noticed appellant Steven Allen Benniefield walking at the corner of 7th Avenue and 6th Street Southeast in Rochester, Minnesota, within approximately 61 feet of the Riverside School property line. The officer recognized Benniefield from previous encounters and checked with police dispatch to see if there were any outstanding warrants for his arrest. After being informed that there was an outstanding warrant for Benniefield, Officer Fishbauger stopped Benniefield and placed him under arrest. During a pat-down search, the officer discovered a makeshift crack pipe in Benniefield’s pocket.

Benniefield was placed in another officer’s squad car and taken directly to the adult detention center. When the transporting officer searched his squad car, he found a baggie containing small off-white colored “rocks.” These rocks were later identified as containing 1.10 grams of cocaine.

Benniefield was charged with violation under Minn.Stat. § 152.023, subd. 2(4) (2000), a third-degree controlled substance offense for possession of any amount of a Schedule II narcotic drug “in a school zone, a park zone, a public housing zone, or a drug treatment facility.” Cocaine is a Schedule II narcotic drug. Minn.Stat. § 152.01, subd. 10 (2002). A school zone is defined as:

(1) any property owned, leased, or controlled by a school district or an organization operating a nonpublic school, as defined in section 123B.41, subdivision 9, where an elementary, middle, secondary school, secondary vocational center or other school providing educational services in grade one through grade 12 is located, or used for educational purposes, or where extracurricular or cocurricular activities are regularly provided;
(2) the area surrounding school property as described in clause (1) to a distance of 300 feet or one city block, whichever distance is greater, beyond the school property; and
(3) the area within a school bus when that bus is being used to transport one or more elementary or secondary school students.

Minn.Stat. § 152.01, subd. 14a (2002).

Benniefield represented himself at trial. In his opening statement, Benniefield informed the jury that he had not intended to be in a school zone, that he was merely on his way home from work, and that this was the most direct route to his home. The state filed a motion in limine requesting that the court not allow Benniefield to argue that intent to be in a school zone or knowledge of being in the school zone was a necessary element of the crime. The district court granted the motion in limine. Benniefield presented no witnesses and did not testify himself.

The jury returned a verdict of guilty. The court denied Benniefield’s motion for a new trial and sentenced him to 37 months in prison for third-degree possession, a severity VI level offense. According to the sentencing guidelines in effect at that time, the presumptive sentence with a criminal history score of 3 was from 37 to 41 months. See Minnesota Sentencing Guidelines IV.

On direct appeal, Benniefield argued that punishing for possession of a controlled substance in a school zone more harshly than possession outside a school zone violates equal protection and that the district court erred in failing to instruct the jury that the offense required proof of intent to be in a school zone. See State v. Benniefield, 668 N.W.2d 430, 433 (Minn.App.2003). The court of appeals affirmed the conviction. Id. at 435-38.

I.

Benniefield challenges the constitutionality of Minn.Stat. § 152.023, subd. 2(4), on equal protection grounds. Unless a fundamental right or suspect class is involved, statutes are presumed to be constitutional. Rio Vista Non-Profit Housing Corp. v. Ramsey County, 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). We review the constitutionality of a statute de novo. State v. Machholz, 574 N.W.2d 415, 419 (Minn.1998). A defendant, claiming that a statute is unconstitutional, bears the burden of showing that the statute is unconstitutional beyond a reasonable doubt. Scott v. Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 73 (Minn.2000).

Benniefield did not challenge the constitutionality of the statute at trial. We need not consider issues that were not presented to the district court but may choose to do so where the interests of justice so require. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). The court of appeals considered the equal protection claim in the interests of justice. Benniefield, 668 N.W.2d at 435. We do likewise.

Benniefield argues that MinmStat. § 152.023, subd. 2(4), “violates the equal protection component of the Minnesota Constitution because there is no genuine and substantial distinction between those who receive longer sentences for possession of a controlled substance in a school zone and those who possess the substance outside such a zone.” Benniefield reinforces his argument by pointing out that the statute does not require that school children actually be present and does not distinguish between mere possession and the manufacture or sale of drugs in a school zone. Benniefield concludes, “[without some greater connection to the statute’s purpose, such as children being present or a requirement tied to the time of day, the greater penalty for mere possession in the school zone does not relate to the purported goals to be achieved, that is protecting children.”

Benniefield acknowledges that federal courts have determined that similar federal drug statutes that enhance drug crimes 'that occur within a school zone are constitutional. He argues that the Minnesota Constitution provides greater protection than the federal constitution when reviewing equal protection challenges and the federal enhancement statute is distinguishable because it requires the sale, distribution or manufacture of drugs within the school zone, not mere possession.

The state counters that drug activity in a school zone, even at times when children are not present, can have adverse consequences for children and thus the enhancement of the crime for possession in a school zone has a rational basis. The state suggests the example that if Benniefield had disposed of the drugs when he was first observed by the officer, the drugs could have later been found and used by children. The state concludes that the possible consequences of the presence of any kind of drug activity in a school zone provides “a rational basis for the legislature trying to deter possession or use of drugs in a school zone at any time of day.”

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, 615 N.W.2d at 74. Ben-niefield does not claim that Minn.Stat. § 152.023, subd. 2(4), involves a suspect classification or a fundamental right. Thus, Minn.Stat. § 152.023, subd. 2(4), will be presumed to be constitutional and should be sustained “if the classification drawn by it 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 as follows:

(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).

Benniefield does not claim that the definition of a school zone is arbitrary or capricious, but that the imposition of a more severe sentence for third-degree possession, based solely on the location in a school zone and with no limitations as to the time of day or the actual presence of children, does not further the public safety goal of the legislature. It is true that conviction of third-degree possession under Minn.Stat. § 152.023, subd. 2(4), carries a significantly greater penalty than conviction of fifth-degree possession for possession of the same quantity of drugs outside a school zone. The maximum prison term for third-degree possession is 20 years and the presumptive sentence, with a criminal history score of 2, is 33 months. Minn.Stat. § 152.023, subd. 3; Minnesota Sentencing Guidelines IV. The maximum prison sentence for fifth-degree possession is 5 years and the presumptive sentence, with a criminal history score of 2, is 13 months stayed. Minn.Stat. § 152.025, subd. 3(a) (2002); Minnesota Sentencing Guidelines IV, V.

Applying the three-prong test, we must first determine whether there is a genuine or substantial reason to differentiate between those who possess drugs within a school zone and those who possess drugs outside a school zone. See Russell, All N.W.2d at 888. We conclude that there is a rational connection between the goal of protecting children from drugs and deterring the possession of drugs in a school zone. There is a genuine risk that those involved in illegal drug use, whether selling or merely possessing a controlled substance, could bring the dangers associated with illegal drugs into school zones. For example, abandoned drugs or discarded drug paraphernalia might be found in or around areas of drug use. The desire to provide an area for schoolchildren, free of illegal drags and the possible accessories that go with illegal drug use, is a genuine and substantial reason for enhancing the crime to deter criminals who choose to bring illegal drugs within 300 feet of school property. See, e.g., Polk v. State, 683 N.E.2d 567, 571 (Ind.1997) (concluding that “it is within the legislature’s prerogative to determine that a drug-free zone deters possible spillover effects, and to provide enhanced penalties for controlled substance violations in proximity to schools.”).

We must next determine whether differentiating between those who possess controlled substances in a school zone and those who possess them outside a school zone is relevant to the purpose of the law. See Russell, All N.W.2d at 888. Both parties acknowledge that the purpose of the statute is to provide for public safety, especially that of schoolchildren on their way to or while at school. Preventing illegal drugs from being present near schools is relevant to the purpose of protecting school children from the dangers associated with illegal drug use.

Finally, we must determine whether the objective of achieving a safe area for school children is a legitimate one for the state. Id. Benniefield concedes, and it is apparent, that the state can legitimately take measures to provide a safe area for children to attend school.

We conclude that there is a rational basis for the legislature to enhance the crime for those who possess illegal drugs in a place where children are likely to be present on a regular basis in order to protect children from discarded drugs or drug paraphernalia. Thus, we conclude that Minn.Stat. § 152.023, subd. 2(4), as applied to the present facts, does not violate the guaranty of equal protection contained in the Minnesota Constitution.

II.

Benniefield argues that the district court erred in not allowing him to argue lack of intent to be in a school zone and in not including intent to be in a school zone as a necessary element of the crime in the jury instructions. Benniefield argues that the dramatic increase in the penalty associated with possession of a controlled substance in a school zone compels the court to imply the requirement that the state prove not only the intent to possess but also the intent to possess in this particular location. The state argues that the plain language of the statute does not require proof of an intent to be in a school zone. The state points out that the statute does have a mens rea requirement, the intent to possess an illegal drug, and argues that a mens rea requirement need not attach to every element of the crime.

In In re C.R.M., 611 N.W.2d 802 (Minn.2000), we examined the language of a somewhat similar criminal statute that makes it a felony offense to possess a dangerous weapon on school property. At that time, the statute was silent on any mens rea requirement. MinmStat. § 609.66, subd. Id (1998). A juvenile was convicted of the crime based on his possession on school property of a folding knife with a 4-inch blade. C.R.M., 611 N.W.2d at 803. We observed that knives are not inherently dangerous or anti-social and thus that the possessor would not necessarily be put on notice that mere possession could be a crime. Id. at 809-10. We declared that “great care is taken to avoid interpreting statutes as eliminating mens rea where doing so criminalizes a broad range of what would otherwise be innocent conduct.” Id. at 809. We concluded that the state was required to prove that the appellant “knew he possessed the knife on school property.” Id. at 810.

In re C.M.R. can be distinguished from the present case and is not controlling. In fact, in In re C.M.R. we distinguished possession that only becomes criminal in certain locations from possession that is criminal independent of the location. We observed that items such as knives “are certainly not as inherently anti-social as illegal drugs and hand grenades.” Id. (emphasis added). Because the mere possession of illegal drugs is a crime, the possessor is already on notice of the illegality of his actions, without regard to location.

We have implied a mens rea requirement for the possession of a controlled substance. In State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975), a case charging the defendant with possession of cocaine, we held that the “state must prove that defendant consciously possessed * ⅜ ⅜ the substance and that defendant had actual knowledge of the nature of the substance.” Having established that mens rea is an implied element in the statute with respect to possession, we see no basis for requiring the state to demonstrate an additional mens rea element with respect to location. See Florine, 303 Minn, at 104, 226 N.W.2d at 610. The possessor of the illegal drug who is already on notice that his conduct is criminal can reasonably be expected to assume the risk that he might enter a location that will make the consequences of his crime more severe. Polk, 683 N.E.2d at 572.

Finally, we recognize that proof of a defendant’s intent to be in a specified location would be difficult. Benniefield was charged with possession of a controlled substance for which possession was a crime even outside the protected area. The district court correctly ruled that the state was not required to prove that Ben-niefield also knew that he was in a school zone or intended to commit the crime in a school zone.

This conclusion is consistent with federal and other state decisions that have consistently held that, although the government must prove an intent to sell illegal drugs, it need not prove an intent to do so in the prohibited location of a school zone. See, e.g., United States v. Dimas, 3 F.3d 1015, 1022 (7th Cir.1993); United States v. Falu, 776 F.2d 46, 50 (2d Cir.1985); State v. Denby, 235 Conn. 477, 668 A.2d 682, 685 (1995). See also Tracy A. Bateman, Validity, Construction and Application of State Statutes Prohibiting Sale or Possession of Controlled Substances Within Specified Distance of Schools, 27 A.L.R. 5th 593 § 31 (1995 & Supp.2003) (compiling cases from Florida, Indiana, Ohio, and Pennsylvania holding that intent to be or knowledge of being in a school zone is not necessary for conviction).

We hold that Minn.Stat. § 152.023, subd. 2(4), does not require proof that a defendant intended to be or knew that he was in a school zone.

Affirmed.

      . The court of appeals remanded the sentence to the district court because the court had improperly calculated Benniefield's criminal history score at 3 instead of 2. Benniefield's sentence was subsequently reduced to 33 months to reflect the proper criminal history score.

      . Benniefield also observes that the distinction for possession in a school zone would produce the irrational result that a person merely traveling through a school zone on a city bus could be prosecuted for the greater offense. But this fact pattern is not before us and we need not determine whether the statute would be constitutional as applied to those facts. Benniefield does not contest that he was on foot within 61 feet of school property while in the possession of a controlled substance.

      . This statute was amended in 2003 to expressly state "while knowingly on school property.”


author: BLATZ, Chief Justice. PAGE, Justice

text:
    In the Matter of the WELFARE OF the CHILDREN OF R.W.
    No. A03-262.
    Supreme Court of Minnesota.
    April 22, 2004.

      Sherri Dawn Hawley, Walling, Berg, & Debele, P.A., Minneapolis MN, for Appellant’s.
    Arden Jay Fritz, Elk River, MN, for Respondent’s.
    Thomas Richards, Buffalo, MN, for Children’s.
    Barbara Onken, Guardian ad Litem, Elk River MN.
   OPINION

BLATZ, Chief Justice.

Following a contested hearing, the district court terminated appellant R.W.’s parental i-ights to two children he had by K.K. based on findings that (1) appellant had abandoned the children; (2) appellant had substantially, continuously or repeatedly neglected to comply with the duties imposed upon him by the parent and child relationship; (3) reasonable efforts had failed to correct the conditions leading to the out-of-home placement; and (4) the children were neglected and in foster care. See Minn.Stat. § 260C.301, subd. l(b)(l)-(2), (5), (8) (2002). The district court also found that termination was in the best interests of the children. The court of appeals rejected the district court’s findings of fact and concluded that no statutory grounds for termination existed, but affirmed termination of appellant’s parental rights on the ground that termination was in the best interests of the children. We conclude that the court of appeals erred in affirming termination based solely on the best interests of the children but nonetheless affirm the termination of appellant’s parental rights because we conclude that the district court’s order terminating parental rights was based on clear and convincing evidence that statutory grounds for termination were met and that termination is in the best interests of the children.

Appellant and K.K. are the biological parents of J.L.W., born on May 20, 1996, and A.A.W., born on November 5, 1997. Appellant and K.K. never married, but appellant lived with K.K. until March 1999, at which time K.K. asked appellant to move out. While appellant lived with K.K., both he and K.K. provided only marginal care for the children. After moving out, appellant visited the children weekly and often stayed overnight at K.K.’s home. Appellant, who was on probation for selling methamphetamine, knew that K.K. used methamphetamine but he did not consider K.K.’s drug use to be a problem and had no concerns about the children being left in K.K.’s care.

On April 6, 2000, appellant was arrested on a burglary charge and for violating the terms of probation. He is currently incarcerated in Appleton, Minnesota, and his earliest possible release date is in October 2005.

Initially, K.K. wrote letters to appellant in an attempt to reunite with him. However, K.K. stopped corresponding with appellant in December 2001 after appellant made it clear that their relationship was over. Appellant never sent cards or letters to A.A.W. or J.L.W. directly, and he never provided any gifts or financial assistance to the children. Any contact appellant had with the children was indirect through his correspondence with K.K.

In October 2001, Sherburne County Social Services (county) filed a child in need of protection or services (CHIPS) petition alleging that the children were in need of protection based on K.K.’s use of methamphetamine and evidence that K.K. had left the children at her home without heat for four days under the supervision of a babysitter. At the time the CHIPS petition was filed, A.A.W. and J.L.W. were ages 5 and 3, respectively. Pursuant to court order, the children were placed in foster care.

Appellant learned of the CHIPS petition from K.K. in October 2001, and he received formal notice of the petition on or about November 1, 2001. The notice informed appellant that he had the right to participate in the decision-making process affecting the future of his children and included a card with a toll-free number for the county that he could call for that purpose. Accompanying the petition was a request by the county for background information on the children. Appellant did not respond to the petition, provide information requested by the county regarding Indian heritage, or otherwise contact the county. Instead, appellant decided to rely on K.K. to comply with her case plan in order to have the children returned to her. Appellant did not request information on how to contact his children in foster care, nor did he ever make any attempt to have contact with them.

On March 26, 2002, a county social worker sent a form to appellant asking appellant to agree to voluntary termination of his parental rights. This request was made based on representations by the children’s mother that appellant had not been involved with the children for more than two years and on the fact that appellant had not contacted the county or the children following receipt of the November 1, 2001 notice of the CHIPS petition.

In response to the request for voluntary termination of his parental rights, appellant sent a letter requesting more time to contact family members to care for the children. However, appellant never provided the name of a relative who was interested in custody of the children and no member of his family ever contacted the county. Although appellant stated that he did not want to “lose” his children in the letter, he again did not request information about their whereabouts, their status, or how to initiate contact with them.

On July 19, 2002, appellant was personally served with a summons and petition to terminate his parental rights. At a district court hearing on August 27, 2003, K.K. voluntarily terminated her parental rights to A.A.W. and J.L.W. The district court terminated appellant’s parental rights based on his failure to appear.

After receiving notice of the order terminating his parental rights, appellant wrote to the social worker and to the district court. In the letter to the district court, appellant claimed that he had telephoned the court on August 27 for the hearing, but had been placed on “hold” and never put through to the judge. Upon confirming that appellant had in fact attempted to participate by telephone, the district court granted appellant’s motion to vacate the default termination order. A new trial was subsequently scheduled.

At trial, appellant testified that he did not respond to the CHIPS petition because K.K. told him that she would comply with her case plan and have the children returned to her. He further testified that he had “done everything that [he] could” to oppose termination after learning that the children would not be returned to K.K. On cross-examination, appellant acknowledged that the only action he took to prevent termination of his parental rights was to write two letters to the social worker and one letter to the district court. He admitted that he never contacted the children’s guardian ad litem in the case or attempted to have contact with his children after they were placed in foster care. In contrast, appellant testified that while incarcerated he has had contact through letters and phone calls with another minor child, not the subject of the current petition.

At trial, the guardian ad litem for A.A.W. and J.L.W. testified that while the children asked about their mother when first placed in foster care and continue to do so, they have never spoken or inquired about their father. The guardian ad litem stated that she had not contacted appellant in the course of her evaluation because appellant had never responded to the CHIPS petition. She further testified that she had not considered appellant a permanent placement option because appellant was incarcerated and it was not in the children’s best interests to -delay permanent placement to “wait[] for maybes.”

In its order terminating appellant’s parental rights, the district court found that appellant’s claim that he had maintained a continuous relationship with the children while incarcerated was not credible. Instead, on the evidence before it, the court found that there was clear and convincing evidence to support termination of appellant’s parental rights under four separate statutory criteria: (1) that appellant had abandoned the children; (2) that appellant substantially, continuously or repeatedly neglected to comply with the duties imposed upon him by the parent and child relationship and that reasonable efforts to correct the conditions that formed the basis for the petition would be futile; (3) that reasonable efforts had failed to correct the conditions leading to the out-of-home placement; and (4) that the children were neglected and in foster care. Minn.Stat. § 260C.301, subd. l(b)(l)-(2), (5), (8). The court also found that termination was in the children’s best interests because of their need for permanent placement.

Appellant appealed, challenging the district court’s findings that statutory grounds for termination existed and that termination was in the children’s best interests. Although the court of appeals rejected the district court’s findings of fact and concluded that no statutory grounds for termination existed, the court of appeals nonetheless affirmed termination of appellant’s parental rights. It did so on the basis that it was in the children’s best interests because the children would have to wait at least two years before appellant would be available to parent them due to his incarceration.

We granted appellant’s petition for further review to address whether the court of appeals erred in concluding that appellant’s parental rights could be terminated in the absence of statutory grounds for termination. If not, we must also address whether the court of appeals’ decision should nonetheless be affirmed on the basis that the district court’s findings as to the statutory grounds for termination are supported by clear and convincing evidence.

I.

The court of appeals concluded that termination of appellant’s parental rights was appropriate even though it concluded that no statutory grounds for termination existed. The court made its decision solely on the basis that termination was in the “best interests of the children.” The determination of whether “best interests of the children,” standing alone, is a sufficient basis to support termination of parental rights requires our court to interpret the termination statute, Minn.Stat. § 260C.301. Interpretation of a statute involves a question of law, which is subject to de novo review. In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn.1998).

Although Minn.Stat. § 260C.301, subd. 7, provides that the best interests of the child are the paramount consideration in determining whether parental rights should be terminated, the statute also provides that “at least one condition [for involuntary termination under Minn.Stat. § 260C.301, subd. 1(b) must be] found by the court.”

In affirming termination based solely on the best interests of the children, the court of appeals ignored the clear statutory directive that parental rights cannot be terminated in the absence of at least one statutory ground for termination. Therefore, we hold that the court of appeals erred in affirming the termination of appellant’s parental rights solely on the basis that termination would be in the children’s best interests.

II.

Having held that the court of appeals erred in affirming termination based solely on the best interests of the children, we nonetheless affirm the court of appeals’ decision because we conclude that statutory grounds for termination were established by clear and convincing evidence and that the court of appeals erred in concluding otherwise.

In reviewing an order terminating parental rights, “[w]e study the record carefully to determine whether the evidence is clear and convincing.” In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001) (citing In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980)). Termination of parental rights will be affirmed as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interests. In re Welfare of L.A.F., 554 N.W.2d 393, 396-97 (Minn.1996). Having reviewed the record, we conclude that at least three of the grounds for termination found to exist by the district court were established by clear and convincing evidence. Thus, the court of appeals erred in holding that none of the statutory grounds for termination were proven.

A. Abandonment.

Minnesota Statutes § 260C.301, subd. 1(b)(1) provides that parental rights may be terminated if the district court finds “that the parent has abandoned the child.” A presumption of abandonment arises if a parent has had no contact with the child on a regular basis and not demonstrated a consistent interest in the child’s well-being for six months and social services “has made reasonable efforts to facilitate contact.” Minn.Stat. § 260C.301, subd. 2(a)(1). However, reasonable efforts by the county to facilitate contact between the parent and the child are not required if the county is not seeking to use the presumption of abandonment. In re L.A.F., 554 N.W.2d at 398. Abandonment may be established in the absence of a presumption of abandonment if the parent has actually deserted the child and has “an intention to forsake the duties of parenthood.” Id. (quoting In re Stoat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970)).

In rejecting the district court’s determination that appellant had abandoned his two children, the court of appeals concluded that the district court had based its finding of abandonment solely on the fact of appellant’s incarceration. The court of appeals held that such a finding was improper under In re Staat, 287 Minn, at 506, 178 N.W.2d at 713 (holding that incarceration of parent, standing alone, does not constitute intentional abandonment but noting that fact of imprisonment may combine with other factors, such as parental neglect and withholding of parental affection, to support a finding of abandonment). In so holding, the court of appeals ignored the district court’s finding that appellant was “not credible in his testimony that he maintained a continuous relationship with the minor children” as well as the district court’s statement that it found abandonment “for reasons other than the mere fact of [appellant’s] incarceration.”

In addition to the fact that the record demonstrates that the district court did not rely solely on incarceration to find abandonment, the record is replete with other findings supporting a finding of abandonment. For example, the court found that appellant failed to maintain any direct contact with the children during incarceration, failed to inquire about their welfare after learning they had been placed in foster care, relied on the children’s mother to assume sole responsibility for having the children returned to her, failed to respond to the CHIPS petition, and that appellant’s actions indicated an intention to forsake the duties of parenthood. The court found that “[a]s a result of [appellant’s] failure to maintain contact with his children, the parent-child relationship between them is now nonexistent.” We therefore conclude that there is clear and convincing evidence that appellant abandoned the children as set forth in Minn.Stat. § 260C.301, subd. 1(b)(1), and hold that the district court did not err.

B. Failure of reasonable efforts to correct conditions leading to out-of-home placement.

The district court also found that termination of parental rights was appropriate based on the failure of reasonable efforts to correct the conditions leading to the out-of-home placement under Minn. Stat. § 260C.301, subd. 1(b)(5). The district court concluded that “there is nothing the State can do to foster reunification of [appellant] with his children! ] due to his own action of becoming incarcerated * * * and his failure to maintain any type of meaningful relationship with the children.”

The court of appeals concluded that termination under subdivision 1(b)(5) was erroneous because the county did not provide any services to appellant. Implicit in the court of appeals’ analysis is the conclusion that the county must provide or attempt to provide a ease plan to parents who have shown but minimal interest or involvement with their children or the CHIPS proceeding. We reject this conclusion. Such a requirement would put an impossible burden on counties to provide services to a parent who has chosen not to respond to a CHIPS petition despite being given the opportunity to do so and would force counties to attempt to reunify children with a parent who has little interest in reunification.

While subdivision 1(b)(5) does not expressly excuse the failure to make “reasonable efforts” based on futility, “reasonable efforts,” by definition, does not include efforts that would be futile. As the district court correctly noted, nothing in state law required the county to facilitate contact between appellant and the children to assist appellant in establishing a relationship with the children. The purpose of the child-protection laws is not to create relationships between children and their biological parents where none previously existed but rather to preserve existing relationships where reunification in the foreseeable future is possible and such relationships are in the children’s best interests. See Minn.Stat. § 260C.001, subd. 3 (2002) (indicating that purpose of laws relating to termination of parental rights is to secure permanent placement for children where child cannot be reunited with parents in a safe and permanent home). We therefore conclude that the district court did not err in concluding that reasonable efforts had failed to correct the conditions leading to the out-of-home placement under Minn.Stat. § 260C.301, subd. 1(b)(5).

C. Children are neglected and in foster care.

The district court also found that the children are neglected and in foster care within the meaning of Minn.Stat. § 260C.301, subd. 1(b)(8). Termination under this subdivision is appropriate if (1) the child is in foster care by court order; (2) the child’s parents’ circumstances, condition, or conduct are such that the child cannot be returned to them; and (3) the child’s parents, “despite the availability of needed rehabilitative services, have willfully failed to * * * meet reasonable expectations with regard to visiting the child or providing financial support for the child.” Minn.Stat. § 260C.007, subd. 24 (2002). At issue in this case is whether the third criterion of this ground is met.

The court of appeals concluded that this statutory ground was not satisfied because the county failed to present evidence on what expectations are reasonable regarding, visitation and child support for a parent who is incarcerated. Such a formulaic approach is not necessary, however, in child protection cases. The question is whether a parent has failed to meet reasonable expectations with respect to “visiting the child or providing financial support for the child.” Id. The answer to that question can be answered by looking specifically at what actions a parent has taken and the circumstances in which a parent finds himself or herself. Here, appellant’s own testimony provides proof that he fell completely short of meeting the reasonable expectations of the conduct and support a parent needs to provide to his or her child, whether in prison or at liberty.

Although the district court did not make specific findings on what reasonable efforts appellant could have taken, the district court properly found that the efforts made by appellant were not sufficient and did not meet the reasonable expectations element of Minn.Stat. § 260C.007, subd. 24(c). Accordingly, the district court did not err in concluding that the children were neglected and in foster care within the meaning of Minn.Stat. § 260C.301, subd. 1(b)(8).

D. Best interests of the children.

Having' concluded that statutory grounds for termination exist, the only remaining issue is whether termination is in the best interests of the children. Both the district court and the court of appeals concluded that termination was in the children’s best interests because the children would best be served by adoption, which would give them a permanent home.

Appellant argues that the district court’s “best interests” analysis is flawed because the district court failed to address whether long-term foster care would also be in the children’s best interests. According to appellant, long-term foster care is preferable to termination and adoption because it avoids termination of his parental rights. However, the legislature has clearly expressed a preference for either adoption or placement with a relative over long-term foster care if placement with the parents is not reasonably foreseeable. Minnesota Statutes § 260C.001, subd. 3 (2002), in relevant part, provides:

The purpose of the laws relating to termination of parental rights is to ensure that:
(2)if placement with the parents is not reasonably foreseeable, to secure for the child a safe and permanent placement, preferably with adoptive parents or a fit and willing relative through transfer of permanent legal and physical custody to that relative.

Further, the legislature has clearly supported a policy favoring adoption or relative placement over long-term foster care with other provisions limiting long-term foster care. See, e.g., Minn.Stat. § 260C.201, subd. 11(d)(3) (2002) (providing that court can order long-term foster care only if it finds, inter alia, “compelling reasons that neither an award of permanent legal and physical custody to a relative, nor termination of parental rights is in a child’s best interests”). Therefore, the district court was not required to consider long-term foster care as an alternative to adoption as part of its best interests analysis.

In this case, the record supports the district court’s determination that adoption was in the children’s best interests. The court found that the children were in need of an immediate permanent home with a family “capable of providing for their welfare.” Accordingly, the court did not err in concluding that termination of parental rights to allow immediate adoption was in the children’s best interests.

In summary, we hold that the court of appeals erred in holding that statutory grounds for termination were not established by clear and convincing evidence and that notwithstanding that fact, termination was in the best interests of the children. Because we conclude that the statutory grounds for termination were supported by clear and convincing evidence and that termination of parental rights is in the children’s best interests, we affirm the result reached by the court of appeals.

Affirmed as modified.

PAGE, Justice

(concurring specially).

On the record presented, I concur in the result reached by the court.

      . The initials of appellant, the children, and the children's mother are used in this opinion in accordance with Minn. R. Juv. Prot. 8.08, subd. 2, which provides, “The body of any decision filed in any Minnesota appellate court shall use the parent's and child’s initials, not their names.”

      . Because we conclude that the termination of parental rights was supported by three statutory grounds, it is not necessary to address whether there was clear and convincing evidence that appellant failed to comply with the duties imposed by the parent and child relationship under Minn.Stat. § 260C.301, subd. 1(b)(2).

      . In re L.A.F. involved the presumption of abandonment found in Minn.Stat. § 260.221, subd. la (1998). This statute was repealed in 1999 and replaced with Minn.Stat. § 260C.301. See Act of May 11, 1999, ch. 139, art. 3, § 29; art. 4, § 3, 1999 Minn. Laws 567, 678, 692. The presumption of abandonment is identical in both statutes.

      . Indeed, appellant testified that he had maintained a relationship via mail and telephone with a third child not the subject of the petition. While a letter or a phone call alone should not be interpreted to be proof of a meaningful and legally recognizable relationship, the absence of such evidence here disposes of the inquiry.