author: GILBERTSON, Chief Justice. AMUNDSON, Justice

text:
    2002 SD 83
    STATE of South Dakota, Plaintiff and Appellant, v. Timothy HULLINGER, Defendant and Appellee.
    No. 22132.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided July 10, 2002.

      Mark Barnett, Attorney General, Gary R. Campbell, Assistant Attorney General, Thomas P. Maher, Stanley County States Attorney, Fort Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Pursuant to SDCL 23A-32-5, the State petitioned for an interlocutory appeal from a magistrate court order suppressing evidence of a horizontal gaze nystagmus (HGN) test. We granted the petition. The State raises first impression issues regarding admission of the HGN test in prosecutions for driving under the influence in this state. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] On March 18, 2001, Stanley County deputy sheriff David Ludwig observed a red Camaro driving slowly out of Fort Pierre. Ludwig noticed its driver touch the curb and cross the center line several times. At the Bad River bridge, the Camaro traveled in the oncoming lane, then jerked back to the proper lane and crossed the fog line. Ludwig activated his emergency lights and the driver increased his speed as he traveled southward on Highway 83. He continued approximately 1 to 1-1/2 miles before pulling to the roadside and stopping.

[¶ 3.] The driver of the vehicle, Timothy Hullinger, provided his driver’s license and registration at Ludwig’s request. Ludwig noted Hullinger’s eyes were bloodshot and watery and the odor of alcohol emitted from his vehicle. When Hullinger spoke, Ludwig noted his speech was slurred. Ludwig explained he stopped Hullinger for erratic driving and asked him to have a seat in the patrol vehicle and then to perform some field sobriety tests. Ludwig noted that Hullinger staggered as he walked.

[¶ 4.] Hullinger correctly recited the alphabet but Ludwig again noted his slurred speech. Ludwig next administered the horizontal gaze nystagmus (HGN) test which required Hullinger to keep his eyes on an object, in this case a pen, while Ludwig slowly moved it through space. Ludwig noted Hullinger could not smoothly follow this object. His eyes showed nystagmus at maximum deviation and an onset of nystagmus prior to 45 degrees. Hullinger was then asked to count backwards from 1988 to 1969. He was able to recite these years correctly, but slurred speech was again noted.

[¶ 5.] All of these tests were performed inside the patrol vehicle. When Ludwig asked Hullinger to perform some outside field sobriety tests, Hullinger stated that he had a problem with one of his legs and asked why he needed to perform more tests. Ludwig then administered a breathalyzer (PBT) which registered over .10 percent blood alcohol content (BAC). He arrested Hullinger for driving under the influence. Hullinger refused to provide a blood sample and was transported to jail where his driver’s license was confiscated and he was issued a 30-day temporary driving permit.

[¶ 6.] The State charged Hullinger with driving under the influence in violation of SDCL 32-23-1(2) and careless driving in violation of SDCL 32-24-8. It later amended its complaint to add a charge of reckless driving in violation of SDCL 32-24-1. Following the initial charges, Hul-linger filed a motion to exclude evidence of the HGN test, claiming that Deputy Ludwig was not an expert and should be precluded from testifying about his opinions or conclusions with regard to his administration of this test.

[¶ 7.] The court ruled that no witness would be permitted to testify about Hul-linger’s performance on the HGN test until the State presented sufficient foundational evidence to justify introduction of such testimony. At the pretrial hearing, the State presented three witnesses: 1) Monte Farnsworth, training director for the Office of Highway Safety at the Division of Criminal Investigation Law Enforcement Training Academy; 2) Deputy Ludwig; and 3) Dr. Larry Menning, optometrist and expert witness. Farnsworth testified that he is a standardized field sobriety test instructor who has instructed approximately 700 police officers in administering the HGN test and analyzing its results. He further testified on these test methods, their standardization and reliability. Ludwig testified regarding his administering the test to Hullinger, its results, and his training and experience in administering the test. Dr. Menning testified regarding the effects of alcohol on the central nervous system, recognized studies regarding the HGN test and its scoring criteria, and correlation of HGN test re-suits and blood alcohol concentration. In addition, the State introduced copies of these HGN test studies into evidence. Hullinger had no objection to their admission.

[¶ 8.] Following the hearing, the court entered an order excluding evidence of the HGN test at trial on grounds that it was irrelevant and -that its probative value was substantially outweighed'by the danger of unfair prejudice to the defendant or that it would confuse the issues or mislead the jury. In large part, the court based its conclusion on the fact that Hullinger was charged with driving under the influence in violation of SDCL 32-23-1(2) and not charged with having a BAC of .10 percent or greater in violation of SDCL 32-23-1(1). The State claims the suppression order was an abuse of the trial court’s discretion and specifically raises three issues:

1. Whether the magistrate court was clearly erroneous in finding that a positive HGN test indicates the presence of .10 percent alcohol in Hullinger’s blood but does not indicate whether he is under the influence of alcohol.
2. Whether evidence of a properly administered HGN test, the results of which indicate the presence of nys-tagmus, is relevant to whether a person is under the influence of alcohol.
3. Whether the magistrate court was clearly erroneous in finding the probative value of a positive HGN test is substantially outweighed by unfair prejudice, confusion of the issues, and misleading the jury.

ANALYSIS AND DECISION

[¶ 9.] Our standard of review for a trial court’s grant or denial of a motion to suppress is abuse of discretion. State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42. An abuse of discretion is discretion “exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Gesinger, 1997 SD 6, ¶ 8, 559 N.W.2d 549, 550. Further, it is well settled that,

A trial court’s findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. This Court’s function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court’s decision.

State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637 (internal citations omitted).

[¶ 10.] Many state courts have recently addressed the issue of admissibility of HGN evidence in driving under the influence cases. The Indiana Court of Appeals recently provided this explanation of HGN and its field testing procedures:

‘Nystagmus is an involuntary jerking of the eyeball. [The involuntariness differentiates it from other field sobriety tests.] The jerking may be aggravated by central nervous system depressants such as alcohol or barbiturates, [citation omitted]. Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they are turned to the side. In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAC) exceeds the legal limit of .10 percent.’ ... [A]s long ago as 1977 the National Highway Traffic Safety Administration, U.S. Department of Transportation, concluded that HGN along with walk-and-turn and one-leg stand tests were the most effective roadside testing to detect impaired drivers. Psychophy-sical Tests for DWI Arrest, No. DOT-HS-802-424 (June 1977).

Cooper v. State, 761 N.E.2d 900, 902-03 (Ind.Ct.App.2002).

[¶ 11.] We previously decided an appeal in which an HGN test was administered as part of field sobriety testing, however its admissibility was not in issue. State v. Meek, 444 N.W.2d 48, 50 (S.D.1989). In Meek, an interlocutory appeal by the State, we ruled that the verbal and dexterity field sobriety test results should not have been suppressed against the defendant’s claim of his Fifth Amendment right against self-incrimination. Unlike the present case, the trial court in Meek did not suppress testimony concerning the gaze nystagmus test or the officer’s observations concerning Meek’s physical characteristics. Meek did not appeal this ruling. As the State notes, the issues raised in the present appeal are first impression issues in South Dakota.

[¶ 12.] The overwhelming majority of jurisdictions having addressed the issue permit the admission of evidence of HGN testing in criminal trials involving charges of driving while intoxicated. Klentz v. State, 2002 WL 534156 (TexCtApp, Apr. 11, 2002); Decker v. State, 2002 WL 531136 (Alaska Ct.App., Apr.10, 2002); State v. Krause, 309 Mont. 174, 44 P.3d 493 (2002); State v. Decker, 2002 WL 499416 (OhioCt.App., Apr. 01, 2002); Henderson v. Director, ND DOT, 640 N.W.2d 714 (N.D.2002); Fletcher v. Shahan, 2002 WL 499883 (Del.Super.Ct., Mar. 06, 2002); State v. Pjura, 68 Conn.App. 119, 789 A.2d 1124 (2002); Cooper, 761 N.E.2d 900; Kirkland v. State, 253 Ga.App. 414, 559 S.E.2d 161 (2002) (officer’s testimony as to his opinion of what 6 points of HGN test indicate about person’s level of intoxication was admissible); People v. Herring, 327 Ill.App.3d 259, 261 Ill.Dec. 259, 762 N.E.2d 1186 (2002) (reversed and remanded for Frye hearing); Village of Plover v. Pittman, 638 N.W.2d 395 (Wisc.Ct.App. 2001); State v. Bebb, 2001 WL 953735 (Hawai’i.Ct.App., Aug.22, 2001); State v. Duffy, 146 N.H. 648, 778 A.2d 415 (N.H.2001) (reliability hearing required before admission); State v. Tyler, 107 Wash.App. 1009, 2001 WL 789730 (Wash.Ct.App., Jul.13, 2001); Karamychev v. Dist. of Columbia, 772 A.2d 806 (D.C.2001) (arresting officer was qualified to testify as an expert regarding the results of HGN test he administered to defendant to determine sobriety); State v. Bradley, 57 S.W.3d 335 (Mo.Ct.App.2001) (court acted within its discretion in allowing officer to testify as expert concerning HGN); State v. Forrest, 174 Or.App. 129, 25 P.3d 392 (2001); White v. State, 73 Ark.App. 264, 42 S.W.3d 584 (2001); State v. Van Kirk, 306 Mont. 215, 32 P.3d 735 (2001) (erroneous introduction of HGN without proper foundation was harmless); Shaw v. State, 783 So.2d 1097 (Fla.Dist.Ct.App.2001); State v. Doriguzzi, 334 N.J.Super. 530, 760 A.2d 336 (2000) (HGN is scientific test that must meet Frye standard of admissibility); Smith v. State, 11 P.3d 931 (Wyo.2000) (if the evidence establishes the tests were properly administered by a qualified person, the foundation is sufficient for admission in an administrative hearing); State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000) (citing cases in other state jurisdictions having approved use of HGN in driving under the influence cases); State v. Baity, 140 Wash.2d 1, 991 P.2d 1151 (2000); People v. Vanderlofske, 186 Misc.2d 182, 717 N.Y.S.2d 450 (N.Y.Co.Ct.2000) (administration procedures and results of HGN test generally accepted within scientific community of optometrists as reliable indicator of intoxication, thus results are admissible if officer who administered test was properly trained and administration and scoring of the test was in accordance with accepted techniques and procedures); State v. Torres, 127 N.M. 20, 976 P.2d 20 (N.M.1999) (results of HGN testing constitute seienti-fic evidence that must meet the standard of evidentiary reliability articulated in Daubert); State v. Murphy, 953 S.W.2d 200 (Tenn.1997) (HGN evidence must be offered through expert testimony); State v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996) (only foundation required is that test was properly conducted and officer qualified to administer it); Salt Lake City v. Garcia, 912 P.2d 997 (Utah Ct.App.1996); People v. Joehnk, 35 Cal.App.4th 1488, 42 Cal.Rptr.2d 6 (Cal.Ct.App.1995); State v. Klawitter, 518 N.W.2d 577 (Minn.1994); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (S.C.1993) (testimony relating to HGN test was admissible when used in conjunction with other field sobriety tests to establish evidence of driving under the influence); State v. Gleason, 123 Idaho 62, 844 P.2d 691 (1992); State v. Superior Court, 149 Ariz. 269, </proga@dd>718 P.2d 171 (1986) (one of the first cases to hold HGN satisfied Frye test). This is not a conclusive listing. Most courts permit the admission of HGN test evidence by arresting officers who have been adequately trained in conducting the test and can show that the test in the particular case at bar was conducted in substantial accordance with that training. The Nebraska Supreme Court recently observed that this was the majority rule and pronounced it sound. Baue, 607 N.W.2d at 205. These courts have found that use of HGN testing has gained acceptance in the general scientific community and satisfies both the Frye and Daubert tests for admission of scientific evidence.

[¶ 13.] Hullinger argues that the State is “ham-strung” by the testimony of its expert witness, Dr. Menning. This witness testified that HGN shows a correlation to BAC, but gave no further opinion on its proof that a person was “under the influence” of alcohol. The trial court made this finding of fact # 5:

Based upon the testimony of the State’s expert, the HGN test, when correctly administered, indicates the presence of .10 percent of alcohol in the test subject’s blood but does not indicate whether a person is under the influence of alcohol.

Our review shows this is a misrepresentation of the testimony. The witness gave no opinion whether the person would be under the influence as he did not feel qualified to do so. He did not state that a positive HGN test result, i.e. one in which the defendant fails four of the six points, does not indicate whether a person is under the influence. This mistake of fact by the trial court became the basis for its conclusion. The court believed the difference was significant because Hullinger was charged with driving under the influence in violation of SDCL 32-23-1(2) and not with driving with a BAC of .10 percent or greater in violation of SDCL 32-23-1(1). The court stated it began its analysis of the evidentiary issues with this difference in mind.

[¶ 14.] Regarding the differences between these subdivisions, we recently observed:

Under SDCL 32-23-1(1) the state merely must prove that a person was driving or in actual physical control of a vehicle with a prohibited blood-alcohol concentration of 0.10 percent. Under SDCL 32-23-1(2), the query is whether the person is ‘under the influence of an alcoholic beverage.’ We have recognized that this phrase covers ‘not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in alcoholic liquor and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess.’ State v. Mas-teller, 86 S.D. 514, 517, 198 N.W.2d 503, 505 (1972); See SDPJI 3-10-3. Intoxication is a temporary disorder which manifests itself with physical symptoms. 3B Charles J. Frankel, Lawyers Medical Cyclopedia, § 17.14(b)(1983). Under SDCL 82-23-1 (2), the focus is on the condition produced by this intoxication [.]

State v. Vandergrift, 1997 SD 5, ¶ 7, 558 N.W.2d 862, 863 (emphasis added); State v. Gerdes, 252 N.W.2d 335 (S.D.1977).

[¶ 15.] Hullinger refused to perform outside field sobriety tests or provide a blood draw, however, his PBT registered over .10 percent BAC. Certainly a positive HGN test result, which Dr. Menning testi-fled is an indicator of .10 percent or greater BAC and which demonstrates physical abnormalities, is relevant evidence to determine whether a defendant was driving under the influence. “Any evidence tending to connect an accused with the commission of a crime is relevant and probative.” State v. Bunger, 2001 SD 116, ¶ 10, 633 N.W.2d 606, 609 (citing State v. Anderson, 2000 SD 45, ¶ 97, 608 N.W.2d 644, 671). At trial, a defendant would have the opportunity to cross-examine and to present rebuttal evidence, if any, of other reasons for those physical abnormalities apart from alcohol ingestion. The trial court was clearly erroneous in its finding of fact # 5 based on the witness’ testimony. Moreover, exclusion of the HGN test results based on the distinction between the two statutory subdivisions “evolves from an erroneous view of the applicable law.” Belmontes, supra; Vandergrift, supra.

[¶ 16.] The trial court, in findings # 8 and # 9, found that Deputy Ludwig did not have sufficient training or qualifications to administer the HGN test or analyze its results. The record shows Ludwig received six hours of formal training at the Division of Criminal Investigation regarding the HGN test and additional field training by two law enforcement officers. He has been a law enforcement officer since 1995 and has administered the HGN test approximately fifty times along with other standard field sobriety tests. He testified that of those fifty tests, at least thirty persons passed and were not arrested for violation of SDCL 32-23-1. He also testified that he has not observed anyone fail the test who registered with less than .10 percent BAC. Ludwig explained that the presence of four of six points, or the failure of at least four of the six parts of the test, indicates a BAC level of .10 percent or greater. Here, Hullinger failed each part of the test and scored six points out of six.

[¶ 17.] The trial court’s findings that Ludwig did not have sufficient training or experience in administering the test was clearly erroneous, does not comport with the standard for admission of HGN test results in the majority of state court jurisdictions and, in a rural state such as ours, would be problematic in its application. Finding of fact # 9 specifically states that:

Based upon Deputy Ludwig’s testimony and the Court’s ability to take judicial notice of the relative experience of arresting officers in Hughes and Stanley Counties in South Dakota, the Court finds that Deputy Ludwig was not highly skilled or experienced in administering and analyzing the results of the HGN test.

[¶ 18.] In a rural area, there are not likely to be an abundance of 20-year veteran officers who have administered the test 1,000 times. Ludwig testified he received six hours of training in HGN testing and analysis at the DCI Academy and received additional field training with two law enforcement officers. He further testified that since 1995 he has conducted the test fifty times. He testified that Hullinger indicated he understood the test before he began and that Hullinger performed the test correctly. The director of training at the DCI Academy, Farnsworth, testified that he has been training officers in HGN testing for five years and trains them according to National Highway Traffic Safety Administration (NHTSA) standards. Although Ludwig may not be “highly skilled or experienced,” there was no evidence presented that his training did not comply with NHTSA standards or that his administration of the test on Hullinger was not in accordance with those standards. Some state court jurisdictions that have examined this issue, as noted above, have concluded that HGN evidence is admissible if the officer has been adequately trained to administer the test and the test was administered in accordance with that training. State v. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct.App.1999); State v. Taylor, 694 A.2d 907 (Me.1997) (use limited to evidence to support probable cause to arrest without a warrant or as circumstantial evidence of intoxication); Schultz v. State, 106 MdApp. 145, 664 A.2d 60 (1995); City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D.1994); State v. Murphy, 451 N.W.2d 154 (Iowa 1990). A minority of jurisdictions require additional foundational evidence regarding the correlation between HGN test results and alcohol impairment. State v. Helms, 348 N.C. 578, 504 S.E.2d 293 (N.C.1998) (reversible error without proper foundation); Mmphy, 953 S.W.2d 200 (test is “scientific, technical or other specialized knowledge” and must be offered through expert witness). This additional foundational evidence was presented to the trial court by an expert witness at the suppression hearing.

[¶ 19.] The trial court abused its discretion in excluding this relevant evidence in a prosecution for driving under the influence in violation of SDCL 32-23-1(2). We reverse and remand for proceedings consistent with this opinion. HGN testing is nationally recognized as a reliable field sobriety test and if it can be shown that the test was properly administered by a trained officer, such evidence should be admitted for a jury to consider at trial along with evidence of the other accepted field sobriety tests administered in this state.

[¶ 20.] SABERS and KONENKAMP, Justices, concur.

[¶ 21.] AMUNDSON, Justice, concurs specially.

[¶ 22.] ZINTER, Justice, disqualified.

AMUNDSON, Justice

(concurring specially).

[¶ 23.] The conference opinion concludes, “HGN testing is nationally recognized as a reliable field sobriety test and if it can be shown that the test was properly administered by a trained officer, such evidence should be admitted for a jury to consider at trial along with evidence of the other accepted field sobriety tests administered in this state.” I do not disagree that once the proper evidentiary hoops have been cleared, HGN tests can be admitted into evidence, but I do believe it is important to ensure that they are properly admitted.

[¶ 24.] Most courts treat HGN tests as scientific evidence, rather than common knowledge, and require presentation of a proper foundation before admission, and we should do the same. See State v. Witte, 251 Kan. 313, 836 P.2d 1110, 1115 (1992). Although not all field sobriety tests are treated as scientific evidence, HGN tests should be. “The relationship between the effects of alcohol on the central nervous system, the nystagmus phenomenon, and the HGN test is not within the realm of common knowledge of the average person. Other field sobriety tests, such as the walk-and-turn test, the one-leg-stand test, and the modified finger-to-nose test, obtain their legitimacy from effects of intoxication based on propositions of common knowledge.” State v. O’Key, 321 Or. 285, 899 P.2d 663, 675 (1995) (internal citation omitted). The common knowledge being “that excessive alcohol can cause coordination, balance, and mental agility problems.” State v. Doriguzzi, 334 N.J.Super. 530, 760 A.2d 336, 340 (N.J.Super.Ct.App.Div.2000) (holding HGN test is scientific and must meet Frye standards). The correlation between the amount of alcohol a person consumes and the angle of the onset of the nystagmus is not mere common knowledge. Although no special equipment is required to administer the HGN test, and the procedure of holding an object a certain distance from the eye and judging certain angles and eye responses does not sound technical, the underlying principle of correlating alcohol consumption to nystag-mus is technical.

[¶ 25.] Furthermore, there is still disagreement about the appropriate angle for the onset of nystagmus, the accuracy of the test, other causes of nystagmus, and the effect of the body’s circadian rhythm on nystagmus. Witte, 836 P.2d at 1119-20. One court noted:

The arresting officer’s ‘reading’ of the HGN test cannot be verified or duplicated by an independent party.... The test’s recognized margin of error provides problems as to criminal convictions!,] which require proof of guilt beyond a reasonable doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystag-mus may be caused by conditions other than alcohol intoxication....

Faires v. State, 711 So.2d 597, 598 (Fla.App.1998). Therefore, there is not a clear acceptance of the test across the board, which is what the conference opinion indicates.

[¶ 26.] I believe we should ensure that witnesses who testify about the HGN test are properly qualified. The Daubert test should be used to ensure “the proponent offering expert testimony must show that the expert’s theory or method qualifies as scientific, technical, or specialized knowledge under SDCL 19-15-2[.]” State v. Guthrie, 2001 SD 61, ¶ 34, 627 N.W.2d 401, 415-16. See also O’Key, 321 Or. 285, 899 P.2d 663 (treating HGN as scientific evidence and applying the Daubert test). Cf. Witte, 836 P.2d at 1115 (noting that the majority of jurisdictions still apply the Frye foundation and citing numerous cases utilizing Frye to analyze HGN tests). One court stated that the HGN test

rests on scientific premises well beyond [the officer’s] knowledge, training, or education. Without some understanding of the processes by which alcohol ingestion produces nystagmus, how strong the correlation is, how other possible causes might be masked, what margin of error has been shown in statistical survey, and a host of other relevant factors, [the officer’s] opinion on causation, notwithstanding his ability to recognize the symptom, was unfounded.

Id. at 1115-16 (citation omitted). Thus, officers who do not have a scientific background to adequately explain nystagmus causation should not be allowed to testify to its causation; rather, they should have their testimony limited to observations only.

[¶ 27.] Clearly, “the party seeking to admit the results of the HGN test [should be] required to establish the foundation for admission of scientific evidence.... ” Commonwealth v. Apollo, 412 Pa. Super. 453, 603 A.2d 1023, 1026 (1992) (holding trial court did not abuse its discretion by precluding admission of HGN evidence). Unless the arresting officers or other individuals who administer the HGN test possess the appropriate training, knowledge and experience, they should not be allowed to testify about administration of the test. And, unless a witness is properly educated on the science of HGN, he should not testify about the physiology of the test. Finally, because of the discrepancies concerning the accuracy of the test, I do not believe HGN tests should be used to prove a particular blood alcohol content. See O’Key, 899 P.2d at 681 (stating HGN tests are not admissible to prove a person has a blood alcohol content of .08 or more); Williams v. State, 710 So.2d 24 (Fla.Dist.Ct.App.1998) (holding HGN alone cannot be used to prove blood alcohol content of .08%).

[¶ 28.] For the foregoing reasons, I would hold a blanket acceptance of HGN testimony by the officer administering the test goes too far. The officer’s testimony should be limited to his observations as made when giving the test pursuant to his training.

      . The Smith court observed:
      In the criminal context, a significant number of courts have held that admission of sobriety tests, including the horizontal gaze nystagmus test, is appropriate as long as a proper foundation as 10 the techniques used and the officer's training, experience, and ability to administer the test has been laid. State v. Ito, 90 Hawaii 225, 978 P.2d 191, 201 (1999); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998); Zimmerman v. State, 693 A.2d 311 (Del.Super.Ct. 1997); State v. Taylor, 694 A.2d 907 (Me.1997); Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803 (1996); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996); Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995); Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994); People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992); State ex rel. Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La.Ct.App.), writ denied, 568 So.2d 1077 (La.1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988).
      11 P.3d at 935.

      . Baue is factually similar to Hullinger’s case in that Baue failed the PBT and HGN test, but passed an alphabet test, counting backwards test, as well as two additional outside field sobriety tests Hullinger did not take, the one-legged stand and the walk-and-turn tests. 607 N.W.2d at 196.

      . In South Dakota, we adopted the Daubert test from Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994) and departed from the former Frye rule of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). "The Daubert standard requires the trial court to ensure that an expert’s testimony both ‘rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.' ” State v. Loftus, 1997 SD 131, ¶ 21, 573 N.W.2d 167, 173.

      . By statute, a .10 percent BAC based on a chemical analysis of blood, breath or other bodily substances gives rise to a presumption of being under the influence. SDCL 32-23-7(3) provides:
      If there was at that time ten hundredths percent or more by weight of alcohol in the defendant's blood, it shall he presumed that the defendant was under the influence of intoxicating liquor.

      Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 1.0 cubic centimeters of whole blood or 2100 cubic centimeters of deep lung breath.

      (emphasis added).

      . Dr. Menning testified that approximately 3 percent of the population has nystagmus from other causes.

      . Compare with officer training in Nebraska as testified to in Baue, 607 N.W.2d at 202 (state patrol director of training testified that Nebraska state troopers receive 24 hours of field sobriety test training, of which 12 hours are devoted to HGN testing.)


source: Caselaw Access Project

author: Paul H. Anderson Associate Justice

license: Public Domain

text:
    Sean PETERS, Respondent, v. UNIVERSITY OF MINNESOTA, Self-Insured/Sedgwick Claims Management Services, Relators, and Carpenters and Joiners Health & Welfare Fund, Intervenor, and Special Compensation Fund.
    No. C5-02-794.
    Supreme Court of Minnesota.
    Aug. 8, 2002.
    Roderick C. Cosgriff, Eric S. Westphal, Heacox, Hartman, Mattaini, Koshmrl, Cos-griff & Johnson, P.A., St. Paul, MN, for Relator.
    David A. Thompson, Lakeville, MN, for Intervenor.
    Russell G. Sundquist, Sundquist & Associates, St. Paul, MN, for Respondent.
    Karen R. Swanton, St. Paul, MN, for Special Compensation Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 19, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

Paul H. Anderson

Associate Justice

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


author: STRINGER, Justice. GILBERT, Justice

text:
    STATE of Minnesota, Respondent, v. Tze THAO, Petitioner, Appellant.
    No. C1-00-2022.
    Supreme Court of Minnesota.
    Aug. 8, 2002.

      Michael C. Davis, (# 20688x), Special Assistant State Public Defender, St. Paul, MN, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, (# 45056), Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

STRINGER, Justice.

A shot fired from a vehicle parked near a basketball court in a public park struck and killed a basketball player. Following a jury trial, appellant Tze Thao was found not guilty of first-degree premeditated murder but guilty of murder in the second degree while committing a drive-by shooting for the benefit of a gang. The district court imposed an upward durational departure of 1.5 times the presumptive sentence, noting that the number of shots fired, the number of people in close proximity, and the location in which the offense, occurred made it significantly more serious than a typical drive-by shooting. The court of appeals affirmed, dismissing appellant’s arguments that there was insufficient evidence to support the verdict and that the court had no proper basis for departing from the presumptive sentence. State v. Thao, 634 N.W.2d 245, 248-51 (Minn.App.2001). We granted review and now affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

On the evening of September 24, 1999, Zoo Chu Yang Heu (Zoo) was playing basketball on a basketball court adjacent to a parking lot in a public park and playground near the Edgerton School in Ma-plewood, Minnesota. Zoo was accompanied by six others, five playing on the court with him and another watching the game from a bench nearby. The neighboring basketball court — further removed from the road and parking lot — was also occupied, and there were other people, including children, present in the park and nearby playground at the time. Zoo’s friends testified that they noticed a red Toyota Corolla car and a maroon Jeep drive into the parking lot near the basketball courts. The Jeep immediately turned around and left the area, apparently because both basketball courts were in use. The car however, stopped about 10-15 feet from the court where Zoo was playing and someone in the car asked -Zoo and his friends if they were members of the Oriental Loks, a Hmong street gang. Before anyone replied, several gunshots were fired at the basketball court from the window of the car, one striking Zoo. The car sped away and soon after Zoo died of the gunshot wound.

A Maplewood police officer on the west side of the park heard the gunshots around 6:45 to 6:50 p.m. and proceeded to the basketball courts. A second Maple-wood police officer arrived shortly thereafter and in the course of his investigation, found eight casings from a small handgun on the ground near the vehicle tracks and discovered three bullet holes at heights between 3’8” and 7’8” in the nearby garages that faced the basketball courts.

A St. Paul police officer - working off-duty as a security guard at a Target store heard the police radio broadcast regarding the shooting and recognized the description of the suspected vehicles as those he had seen at the store earlier in the evening. He had been patrolling the store’s parking lot on foot when he noticed the vehicles. Because the occupants seemed to be watching him warily, he ran a check of their license plate numbers. Thereafter, he observed two females come out of the store headed for the Jeep carrying a basketball. As the vehicles sped off, he heard a passenger from the car yell back to the Jeep to meet at the playground. He relayed the license plate numbers from the vehicles over the police radio, and when St. Paul Police Officer Richard Stra-ka heard them, he recognized appellant’s car. Officer Straka, assigned to the Minnesota Gang Strike Force, believed appellant was a member of a Hmong street gang called the White Tigers and joined in the investigation when it appeared to be gang related.

Later that same night the four occupants of the Jeep were arrested. Three of the occupants testified that appellant drove his car to the park to play basketball after their group purchased a ball at Target. Appellant did not immediately follow when the Jeep they occupied left the park, but when appellant later left, he was driving very fast and they were unable to catch up with him. Appellant showed up at a movie they decided to see and, according to one witness, he said he had shot at the group playing basketball.

Appellant was arrested the next day and initially denied being at the Target store or at the park; he claimed he was out of town hunting during the day and at a movie with his girlfriend later that evening. His girlfriend however, told a different story. She told the police that appellant had driven her to and from school on the day of the shooting and that night she went bowling with some friends. According to her, appellant called around midnight and asked if he could come over. She noticed appellant was “acting a little strange” and testified that he told her “something happened.” Appellant asked her to say that she and appellant went out together that night, and that is what she initially told the police when they questioned her.

Appellant continued his efforts to manipulate the testimony of potential witnesses even after incarceration. He maintained communication with his girlfriend, at one point telling her to say that the shooter was actually an acquaintance named “Jimmy.” According to a translator who listened to approximately 100 hours of phone calls made by appellant from jail, appellant also contacted many of those present during the shooting in an effort to influence their account of the incident. An inmate in an adjacent cell testified that he overheard a conversation in Hmong in which appellant attempted to relay a message to his sister to hide a .22 caliber handgun “real good” somewhere outside of the house because the police were looking for it.

Eventually the three occupants of appellant’s car were also arrested. Initially they all denied knowledge of the incident but one ultimately agreed to talk after being assured that he and his girlfriend, also an occupant, could avoid jail if they told the truth, their stories matched, and the facts could be corroborated. The witness said that he was the front passenger in appellant’s car that night and was looking through CDs when he heard shots. When he looked up he saw appellant holding a gun, extending his arm out the window, and shooting at the group playing basketball. His girlfriend, sitting directly behind him, also stated that appellant fired the shots. The third passenger agreed to talk and told police that appellant fired the shots from a .22 caliber handgun that he had seen in appellant’s possession on a previous occasion. At trial, all three testified that appellant was the shooter.

The great weight of the testimony of those witnesses present in the park on the night of the incident was that the driver of the car was the shooter. One of the five playing basketball with Zoo testified that the car stopped with the driver’s side of the car facing the court, that the driver yelled out at them,' and that the driver then looked down, pulled out a gun, and shot 6 or 7 times at their group. Although he was unable to pick the driver out of a photo lineup, the witness testified that he was “a hundred percent sure” that the driver of the car was the shooter.

Another witness, claiming he was the closest basketball player to the car, testified that he was looking directly at the driver when the driver aimed a gun at the group and started shooting. A third player on the court with Zoo agreed that the driver’s side of the car was facing the court, and testified that only the driver’s window was open when he saw a hand come out of the window and fire shots. A witness who was watching the basketball game from a bench testified that she was about 15 feet from the back of the car and confirmed that only one window was open. She testified that she was sure it was the driver who leaned over, pointed a gun out the window, and started shooting at the boys on the court.

A player on the adjacent court testified that he noticed the car come into the playground area and he dropped to the ground when he heard the gunshots. He looked up for “just for a second” from where he was lying about 60 feet away and saw a handgun being brought back into the driver’s side of the car, although he was not able to tell if it was actually the driver or the left rear passenger who did the shooting. Another player on the same court, admittedly the farthest away from the vehicle of all the players at about 80-95 feet distant, was the sole defense witness and testified that he “whipped” his head around when he heard the shots, looked for a “split second,” and then dove to the ground. Although he acknowledged a slight vision impairment and was not wearing corrective lenses at the time, he was “positive” that the car was facing in towards the playground and that the gunfire came from the front passenger side.

Appellant elected not to testify. The jury acquitted appellant on the first-degree murder charge but found him guilty of murder in the second degree while committing a drive-by shooting for the benefit of a gang. At sentencing, the court granted the state’s motion for an upward dura-tional departure and imposed an executed term of 477 months, a sentence 1.5 times the presumptive sentence. The court cited several factors supporting its conclusion that substantial and compelling circumstances warranted a departure from the presumptive term: the number of people in close proximity, the shots fired directly toward them, the presence of a school and playground in the vicinity, and that people have an expectation of safety in this particular setting. The court acknowledged that there was minimal case law guiding its ruling, but concluded the upward departure was justified because the shooting was significantly more serious than a typical drive-by shooting.

The court of appeals affirmed both the conviction and the sentence, rejecting appellant’s argument that the evidence was insufficient to support the verdict because of inconsistencies in the testimony and that the district court had no basis for departing from the sentencing guidelines. Thao, 634 N.W.2d at 247, 251. As to the sentencing departure, the court ruled that the park or playground location of the shooting was an aggravating factor as it constituted a “zone of tranquility” where one would reasonably expect to be safe. Id. at 250. In addition, the court determined that the randomness of the shooting, the number of shots fired into the crowd, and the tenuous motivation for the crime were facts showing substantial and compelling circumstances making departure more appropriate than the presumptive sentence. Id.

I.

We first consider appellant’s claim that the state’s evidence was not sufficient to prove beyond a reasonable doubt that appellant was guilty of second-degree murder. In reviewing a challenge to the sufficiency of the evidence, we review the record in the light most favorable to the conviction to determine whether the evidence reasonably could have permitted the jury to convict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We do not retry the facts; we assume the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989); State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). If the jury could reasonably have found the defendant guilty of the charged offense, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, the verdict will not be disturbed. State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997).

Appellant claims that the testimony of those in the car with appellant on the night of the shooting is “worthless” because it was the product of improper questioning by police and was induced by threats that they, too, might be charged with a crime. He also discredits the statements that came from Zoo’s group, noting that the time of night and speed of the occurrence of events hindered their ability to see the shooter, and that several of them failed to name the driver of the car as the shooter in their pre-trial statements. He argues that the testimony regarding his activities following the shooting, such as lying about where he was and telling his girlfriend “something” happened, were not tantamount to a confession of guilt and did nothing to rebut the presumption of his innocence.

Summarizing the testimony, the state points out that four witnesses in Zoo’s group identified the driver of the car as the shooter. The driver of the car, according to six other witnesses, was appellant, and of those that named appellant as the driver, three — all present at the time of the shooting — also identified appellant as the shooter. The state claims that this identification testimony is reliable because in at least some cases it was quickly forthcoming, and because it came from numerous witnesses who were in the best position to observe the incident. The state also points to other evidence of appellant’s guilt including his discredited alibi, his attempts to influence testimony and hide the gun, and his purported confession to one witness shortly after the incident that he was the one who fired the shots at Zoo’s group.

We agree with the state that, viewing the evidence in the light most favorable to the verdict, it is sufficient to support appellant’s second-degree murder conviction. The only testimony contradicting that of numerous eyewitnesses came from a witness who was standing farthest from the car, had a vision deficiency, and made his identification based upon a “split second” glimpse. Appellant’s counsel pointed out the potential weaknesses in the state’s witness identification testimony, vigorously cross-examining the witnesses, dissecting the videotaped police interviews and challenging the witnesses’ reliability and motivation for testifying as they did — points further emphasized in closing arguments. As the trial came to an end, jurors were properly instructed that they were the sole judges of the credibility of witnesses and the weight to be given each witness’s testimony.

We have long recognized that the credibility of a witness is an issue for the jury, as the jury is in the best position to make such a determination. See State v. Henderson, 620 N.W.2d 688, 705 (Minn.2001); Johnson, 568 N.W.2d at 435; State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990); State v. Rainer, 411 N.W.2d 490, 495 (Minn.1987); State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985); State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980); Merrill, 274 N.W.2d at 111. Further, upon review of a conviction we must assume that the jury considered the testimony and believed the state’s witnesses. Moore, 438 N.W.2d at 108; Merrill, 274 N.W.2d at 111. Here, where numerous eyewitnesses identified appellant as the driver and the shooter, and appellant’s own conduct after his arrest weighs heavily toward his guilt, there clearly was sufficient evidence to support his conviction of second-degree murder.

II.

The more difficult question is whether the district court erred by imposing an upward durational departure from appellant’s presumptive sentence. The decision to depart from a presumptive sentence under the Minnesota Sentencing Guidelines is within the district court’s discretion, see Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981), but when a district court departs from the presumptive sentence, it must articulate “substantial and compelling reasons” justifying the departure, Minnesota Sentencing Guidelines II.D; see State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). Even though the reasons given may be improper or inadequate, if there is sufficient evidence in the record to justify the departure, it will be affirmed. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985).

The core issue for the district court in determining whether to depart duration-ally from the guidelines is whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime described in the applicable statute. State v. Back, 341 N.W.2d 273, 276 (Minn.1983). Here, the district court found that multiple shots fired into a large number of people in close proximity in a playground location made it significantly more serious than a typical drive-by shooting. The court of appeals agreed, noting that although a playground is not a zone of privacy, it is uniquely held out to the public as a “zone of tranquility,” a place where one reasonably expects to be safe from harm. Thao, 634 N.W.2d at 250. The court also cited the randomness of the shooting and the tenuous motivation for the crime as factors that made this drive-by shooting atypical justifying a one and one-half times upward departure in sentencing. Id. at 250-51.

A. “Zone of tranquility” as a basis for departure

Appellant argues that the court of appeals erred by creating a new “zone of tranquility” departure factor, an improper extension of the aggravating “zone of privacy” factor justifying an upward departure where the crime occurs in a victim’s home or cartilage. See State v. Winchell, 363 N.W.2d 747, 750 (Minn.1985); State v. Kindem, 338 N.W.2d 9, 17-18 (Minn.1983); see also State v. Morales, 324 N.W.2d 374, 376-77 (Minn.1982); State v. Norton, 328 N.W.2d 142, 146 n. 3 (Minn.1982). Although the court of appeals emphasized that it did not equate a public playground with a crime victim’s home, appellant asserts that the court’s rationale was the same and was discarded by this court long ago in State v. Mortland, 399 N.W.2d 92 (Minn.1987). In Mortland, the trial court imposed an upward departure in a criminal sexual conduct case in part on a finding that the crime occurred “in a seemingly safe neighborhood park close to the victim’s home (which the trial court referred to as within the victim’s zone of privacy).” 399 N.W.2d at 95. The court of appeals affirmed that the park was within the victim’s zone of privacy. Id. at 95 n. 2. We disagreed:

There may be something about sexually assaulting a child in a neighborhood park that makes the assault more serious, but referring to a public park as within a victim’s zone of privacy is to extend the concept of zone of privacy too far.

Id. Appellant relies on this language to argue that we have rejected a public park as an aggravating factor to justify an upward durational sentencing departure.

The state, on the other hand, views Mortland as supportive of the proposition that a park location increases the seriousness of the offense. It asserts that the court of appeals decision here was a straightforward recognition that a park is like a home — a place where one reasonably would have a lower expectation of being the victim of a crime. See, e.g., Back, 341 N.W.2d at 274, 277 (“The victim was a totally innocent person who was in a place [the porch of her home] where she had every right to expect she was safe.”) (emphasis added). The state goes on to argue that it was appropriate for the district court to recognize the park location as a place where the victim had a right to expect to be safe, and that expectation justified an upward departure from the presumptive sentence. We disagree.

Although we have clearly recognized the commission of a crime in the victim’s “zone of privacy” as justifying a more severe punishment, see Kindem, 338 N.W.2d at 17-18, we have with equal clarity rejected the inclusion of a public park in that zone. See Mortland, 399 N.W.2d at 95 n. 2. While the lower courts are not limited exclusively to the aggravating factors set forth in the guidelines, see Minnesota Sentencing Guidelines II.D.2. (indicating that the list of aggravating factors provided in the guidelines is “nonexclusive”), a judicially-created factor must have sufficient definition to be applied in other circumstances. The “zone of privacy” factor, for example, has generally been limited to a victim’s home and curtilage. See Winchell, 363 N.W.2d at 750.

The “zone of tranquility” factor has no such definition. At its outer limits, it is where one would feel serene, at peace, or tranquil — a subjective state, so ephemeral that in the context of a departure from the guidelines, it has little meaning. A place of tranquility for one person might well be a place of stress and anxiety for another. But even if we were to adopt such a factor, it is debatable whether a public park would meet the standard, as judicial notice may be taken that parks are often the scene of serious crimes — perhaps for their characteristics of privacy and remoteness, ironically the same characteristics that might create a sense of peace and tranquility. We also note that it is not unreasonable to conclude that the legislature deliberately chose not to differentiate between various locations of drive-by shootings with regard to punishment when other subdivisions within Minn.Stat. § 609.66 refer specifically to crimes committed in a park. Compare id., subd. la(b)(l) (authorizing a more severe penalty for a nondrive-by reckless discharge of a firearm when committed in a park zone) with id., subd. le (outlining penalties for a felony drive-by shooting without consideration of location).

B. Other bases for departure

We next consider whether the other factors identified by the lower courts would justify a departure, specifically the indiscriminate firing of multiple shots into a group. Appellant argues that a departure on these facts was an abuse of discretion as they are the predicate facts upon which the presumptive sentence for a drive-by shooting is based. See State v. Brusven, 327 N.W.2d 591, 594 (Minn.1982) (holding it was unfair for the trial court to rely upon factors already considered in the presumptive sentence as a basis for a du-rational departure).

The definitions of the relevant crimes are key to this analysis. Murder in the second degree is defined as:

(1) caus[ing] the death of a human being with intent to effect the death of that person or another, but without premeditation or
(2) causing] the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision le, under circumstances other than those described in section 609.185, clause (3).

Minn.Stat. § 609.19, subd. 1. Section 609.66, subd. le, defines drive-by shooting and provides varying levels of punishment depending on the target:

(a) Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.
(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

Section 609.185 defines conduct constituting first-degree murder, a charge as to which appellant was acquitted, and includes:

(3)causfing] the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit * * * a drive-by shooting * * *.

Appellant focuses on the language of section 609.66, subd. le, and argues that by definition a drive-by shooting involves “recklessly discharging] a firearm * * * toward a person [or group of people],” and that this is essentially the conduct cited by the lower courts in support of the upward durational departure. Appellant cites legislative history suggesting that the risk to human life associated with drive-by shootings was exactly what the legislature had in mind when it enacted this statute. Appellant asserts that the legislature sought to make the random discharge of a weapon from a motor vehicle at or toward a group of people a crime, and that because that is what appellant was convicted of here, the district .court impermissibly relied on the statutory predicates of the crime to support the sentence departure.

It is a close question whether the predicate conduct set forth in the statutory definition of drive-by shooting in section 609.66, subd. le, is so similar to the departure factors set forth by the district court, and relied upon by the court of appeals in affirming, that in effect appellant was treated differently than others convicted of this offense because his sentence was enhanced based on offense factors rather than aggravating factors. On balance however, we believe that he was. The words defining the crime are not strikingly different from those of the district court in its rationale for the departure:

The firing of the gun. The drive-by shooting crime relates to the reckless discharge of a firearm. The district court referred in its departure to firing eight shots toward people on the basketball courts but without a specific target. While the facts before the district court most certainly put the statutory definition in context, they did little more than that. Appellant clearly discharged the gun recklessly, but neither the statute nor the legislative history suggests that the random firing of eight shots was so significantly more serious than the statutory reference to a reckless discharge that an upward departure in sentencing is justified.
The target. The crime refers to the discharging of the firearm “at or toward a person.” The district court cited appellant’s discharge of eight shots toward ten people, unknown to him, and without trying to shoot any particular person. Appellant discharged his firearm toward a person— the victim Zoo — -but the others, while certainly endangered by the shooting, are not dissimilar from those referred to in the. legislative hearing as at risk because they are in or near the line of fire. The reliance by the trial court on the ten bystanders at risk, or that they were unknown to appellant, is not a distinguishing feature from the definition of the crime itself to justify a departure.
The setting. The district court also relied on the occurrence of the shooting at the playground near a school and park, and that the setting makes those using the facilities particularly vulnerable because they believed they were in a safe place. This reasoning is based on the same consideration relating to the “zone of tranquility” concept we rejected above and therefore it also fails as support for the sentencing departure.

Appellant’s crime was heinous by any standard, but appellant’s conduct here was not so different than the offense described in section 609.66 that we can conclude it was “significantly more serious than a typical drive-by shooting,” as the trial court ruled and the court of appeals affirmed. We therefore remand for resentencing.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

GILBERT, Justice

(concurring in part and dissenting in part).

I concur with the majority’s opinion that there was sufficient evidence to support a second-degree murder drive-by shooting conviction, but respectfully dissent on the remand for sentencing and would affirm the lower court’s upward durational departure of 1.5 times the presumptive sentence. There were severe aggravating circumstances present with respect to this offense as found by the district court.

The violent act of firing eight shots toward ten people gathered in a public place presents sufficient aggravating circumstances to depart from the presumptive sentence. It is true, as the majority states, that a public park is not traditionally a zone of privacy. See State v. Mortland, 399 N.W.2d 92, 95 n. 2 (Minn.1987). Also, I agree that a public park may not necessarily be within a zone of tranquility. However, it is important to move beyond the labels that were used by the lower courts and decide the case on its merits. We must decide whether the district court abused its discretion by ordering an upward durational departure based on appellant’s act of firing multiple shots at close range directly toward a number of people attempting to enjoy their freedom in a public gathering place.

If there is sufficient evidence in the record to justify the departure, we are to affirm the sentence. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). It is important to note that although in Mort-land we held that a public park was not within a victim’s zone of privacy, we went on to overturn the court of appeals’ reduction of defendant’s total sentences and reinstated the district court’s sentence. 399 N.W.2d at 95. One of the factors the Mortland district court considered was “the fact that the snatching took place in a seemingly safe neighborhood park close to the victim’s home.” Id. While disagreeing with the district court’s conclusion that this park was within the victim’s zone of privacy, we explicitly referenced the court’s recognition that one of the aggravating circumstances was that the crime took place in a seemingly safe neighborhood park before going on to affirm the court’s upward durational departure. Id. Here, we also have a crime that took place in a seemingly safe neighborhood park, which was a factor that the district court considered. To do so was not an abuse of discretion.

The majority states that it is a “close question” whether the district court sentenced appellant twice for the same crime but goes on to conclude that appellant’s behavior was no different than that which is required to be convicted under Minn. Stat. § 609.66, subd. le (2000), which allowed appellant to be convicted of second-degree murder. Notwithstanding the legislative history cited by the majority, the district court did not abuse its discretion in finding that the firing of eight random shots into a group of ten people was significantly more serious than the statutory reference to a reckless discharge. As the majority points out, to be convicted under the drive-by shooting statute one must recklessly discharge a firearm at or toward a person (or toward another motor vehicle or building). Id. Here, appellant recklessly discharged a firearm eight times at ten people in a public park. While the majority concludes this is just a typical drive-by shooting, it fails to recognize the varying degrees of recklessness that may exist and the interplay between the drive-by shooting statute and the second-degree murder statute.

Under the relevant statutes, a defendant who recklessly discharges a firearm once from a vehicle toward a single person standing in the middle of the field or vacant parking lot would also be guilty of second-degree murder if the victim died from the gunshot. See Minn.Stat. §§ 609.66, subd le, 609.19, subd. 1(2) (2000). In fact, a defendant who recklessly discharges a firearm once from a vehicle toward another motor vehicle or building is also guilty of second-degree murder if the bullet happens to kill somebody, even if the defendant thought the motor vehicle or building was unoccupied. See Minn. Stat. §§ 609.66, subd le, 609.19, subd. 1(2). Certainly the facts in this case indicate that appellant’s level of recklessness was more serious than that in either of the above hypotheticals. There is a dramatic difference in the level of recklessness involved depending on the number of shots fired, the number of people directly in the vicinity of the shooting, and where the shooting took place. Here, eight shots were fired at ten people in a public park— this is sufficient evidence in the record to justify the district court’s upward departure. Accordingly, I would hold that the district court did not abuse its discretion and would affirm both appellant’s conviction and sentence.

      . See Minn.Stat. §§ 609.19, subd.- 1(2); 609.229, subds. 2, 3; 609.66, subd. le (2000).

      . Officer Straka testified at trial that appellant met at least three of ten criteria used to identify gang members, including associating with known members of the White Tigers and throwing gang signs in photographs with known members of the White Tigers. Four witnesses testifying at trial also confirmed appellant was part of the White Tigers.

      . Appellant's presumptive sentence was 318 months, the presumptive 306 months for second-degree murder plus an additional 12 months for a crime committed for the benefit of a gang. See Minnesota Sentencing Guidelines II.G; Minn.Stat. § 609.229; see also Thao, 634 N.W.2d at 249-50. Appellant received custody credit of 340 days and was ordered to pay restitution to the victim's family and the Crime Victims Reparations Board.

      . Minnesota Statutes § 645.08(2) (2000) regarding the interpretation of statutes provides that generally, the singular (e.g., person) includes the plural (e.g., people).

      . See, e.g., Hearing on H.F. 178, H. Sub-comm. Just. & Fam. L., 78th Minn. Leg., Feb. 17, 1993 (audio tape) (including testimony from proponents of the bill that the drive-by shooter exposes everyone in or near the line of fire to the risk of death or serious injury and essentially terrorizes the “entire neighborhood”).